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MBB’S MILE STONES SINCE OUR LAST NEWSLETTER
The Prime Minister Honourable Mr. John Howard, Member for Bennelong, together with more than 300 guests joined with us to celebrate our 80 years of legal founding. Clients who have been with our firm for more than 50 years as well as our more recent clients joined together for a wonderful evening. Photographs can be viewed on our website. |
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Milne Berry and Berger have been engaged to assist
and provide legal advice to Ms Vivian Solon, who was wrongfully deported by the Australian Government, even though she was an Australian citizen.
Working in conjunction with the partner Harry Freedman is Mr George Newhouse, Deputy Mayor of Waverly Council, The Honourable Mr Justice Marcus Einfeld AO QC PhD, Mr Peter Strasser Barrister and Ms Susie Waters.
Steps are being taken to negotiate a package of assistance to bring Vivian home, and once she has settled back home steps will taken to negotiate a suitable compensation package for her to assist her in rehabilitating herself.
We are in constant negotiations with the Federal Government and its various offices. We hope to be able to report a successful final conclusion to the matter by the time of our next newsletter.
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| In this issue: |
• Have you been discriminated?
• Getting married? or is it too late?
• Can your children enter into contracts?
• Real Estate Agents and their duties
• Is computer software protected by copyright?
• Bringing your loved one to Australia
• Dealings with International Persons
• Regulator warns on loan scams |
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| Have you been discriminated? |
Discrimination is when one is treated unfairly or harassed i.e.: any form of behaviour that one does not want, that intimidates, offends or humiliates one or identifies one because of ones sex, age, race, disability, marital status, sexual preference. Discrimination can also involve those who feel they have been prejudiced due to their role as a Carer.
These forms of discrimination are against the law if they happen in relation to employment, education, access to goods and services, accommodation or registered clubs.
Laws exist in New South Wales and the Commonwealth to protect individuals some of which are;
• Anti Discrimination Act 1977
• Disability Services Act 1993
• Age Discrimination Act 2004
• Equal Opportunity for Women in the Workplace Act 1999
If you believe you have been harassed or victimised under one of the categories of D iscrimination, you have the legal right to speak out to try and stop that person or persons. If the harassment occurs at work, your Employer or Manager must take your complaint seriously and investigate. If the harassment occurs at school, principals and teachers must address the complaints. The Anti Discrimination Board deal with complaints under New South Wales law and the Human Rights and Equal Opportunity Commission handles complaints under Federal Laws. If you have been a victim or knows someone who has been discriminated and wish to know about your rights, please call us.
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| Getting married? or is it too late? |
Changes to the Family Law Act now allow parties either intending to marry, or already married to come to an agreement as to how they would like to divide their assets in the event that the marriage breaks down.
These changes have been subject to debate for more than
10 years. Whilst the thought of considering what is to
happen if your marriage breaks up may not be the most romantic topic to discuss before your wedding, there can be significant practical benefits in considering the issue before your marriage. Even if you are married agreements can now be made between spouses as to the division of property in the event of marriage breakdown.
Financial Agreements may be entered into before, during or after dissolution of marriage and will be considered to be a financial agreement if they are made with specific reference to the relevant section of the Family Law Act and refer to:
(a) how, in the event of the breakdown of the marriage, property or financial resources held at the time of the agreement or at a later time are to be dealt with, and
(b) the maintenance of either of the parties during the marriage, after the marriage or both during or after the dissolution of the marriage.
If you have any questions please call us to discuss.
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| Can your children enter into contracts? |
Can your child enter into a contract and be bound by its terms? For example, can your child enter into a mobile phone contract and be bound by its terms?
It is a common perception that people under the age of 18 cannot be legally bound by contracts or responsible for their actions, but is this correct?
In NSW the issue is dealt with by the Minors (Property and
Contracts) Act 1970. Section 17 of the act states that;-
“Unless provided for in this Act, a minor will not be bound by a contract”
However; Section 19 of the Act states that;-
“where a minor participates in a civil act and his/her participation is for his/her benefit, then the contract is presumptively binding on the minor”.
Similar provisions apply regarding acts of negligence. If you have any uncertainty about these matters please contact us to discuss, it might save you significant expense and anxiety.
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| Real Estate Agents and their duties |
The office of the Fair Trading recently investigated the issue as to whether Real Estate Agency LJ Hooker North Ryde had neglected to inform 2 purchasers that their new home was the scene of 3 brutal murders in the recent past. Only after the new purchasers had paid the deposit of $80,000.00 on their former family home, did the couple discover that it was the home of the convicted triple murderer Sef Gonezles.
Subsequent to the purchaser having commenced proceeding at the Office of Fair Trading, LJ Hooker North Ryde, licensee in charge, Peter Hinton and sales person Erica Hinton, were found to have breached the Properties, Stock and Business Agents Act and the Fair Trading Act for their misleading behaviour and for having failed to disclose the homes’ history when the purchasers expressed their interest in the property.
The decision confirmed that all agents have to disclose all important facts that would in fact relate to the potential impact value of the property. If the same are not disclosed to you, the Real Estate Agent faces the risk of proceedings being commenced against them.
The Office of Fair Trading also confirm that it is currently liaising with the Real Estate Institute of New South Wales on amending the Rules of Conduct for real estate agents including possible penalty increases and having codes and guidelines on “Disclosure Requirements” to be disclosed to the potential client.
If you have been affected by any non disclosures made by any real estate agents in the past or know someone who have in fact been affected by any similar actions, or dummy bidding or improper sale price estimates being provided by any real estate agents, please do not hesitate to contact us in order to discuss your issues. |
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| Is computer software protected by copyright? |
| Please wait till this program loads…beep ..beep..beep
Welcome to the digital world!
Computers are omnipotent, they are tools which we use in our every day life. But the question we must ask is, is the software code written by programmers which make these machines function, protected by the law, namely by copyright. To be more precise is the source code (programming statements before compilation of a program) and object code (compiled output in machine language) given legal protection. The answer to this lies in deciphering the High Court Case of Data Access Corporation v Powerflex Services Pty Ltd (1999) HCA 49 (30 Sep 1999).
Data Access owned the copyright in a system of programs known as ‘Dataflex’, which had been published in 1981 following two years of research and development. The third respondent Dr Bennett had familiarized himself with the Dataflex system and decided to create an application development system, which was compatible with the Dataflex language (PowerFlex). Data Access claimed that the PowerFlex system had infringed their copyright.
The court based their decision on whether certain words in the source code and object code on their own would constitute a computer program. If it did, it would mean that the code was a literary work and would therefore have copyright protection. Put simply, their Honours concluded that their was no breach because these words did not satisfy the meaning of a computer program. It should be noted that this case was based on single words in the code on its own. A distinction is made where the entire code is copied it will be easier to prove that the code is a computer program. It should also be mentioned that the definition of computer program has now been amended by the COPYRIGHT AMENDMENT (DIGITAL AGENDA) ACT 2000 to mean “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” One can only wait in anticipation to see how the courts will apply this definition to software code.
The case illustrates the ambiguity of protecting computer software in the current legal copyright framework, perhaps a sui genris method should be adopted to afford clearer and better protection for computer programmers so as to ensure that the digital world will continue to survive beep…beep…ACCESS HAS BEEN TERMINATED
…GOODBYE!
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| Bringing your loved one to Australia |
If your spouse, partner or fiancé lives overseas and you just can’t handle the long distance relationship anymore, we suggest you seek advice from an Australian Registered Migration Agent in regard to an application for her or him to be able to live in Australia with you permanently.
All persons applying to migrate to Australia under the family stream (including de-facto partners) must be sponsored. To sponsor your partner you must be either an Australian Citizen, permanent resident or eligible New Zealand citizen. The application, lodged by your partner when either in or outside Australia, is assessed on an individual basis and will be assessed against Australia’s health and character requirements.
A sponsor is required to provide a written undertaking to the Department of Immigration and Multicultural Affairs, to provide the applicant with support for her or his first two years in Australia, including accommodation and financial assistance as required to meet their reasonable living needs. Australian Migration Laws also have provisions in regard to sponsoring dependant children, adopted children, parents, carers, aged dependant relatives, and remaining relatives.
It is important that you seek Migration Law advice and assistance from only a Registered Migration Agent.To obtain advice in regard to the above or any other migration law issue, you are able to contact our Registered Migration Agent Victor Berger (RMA 0323406). |
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| Dealings with International Persons |
The speed and ease of modern commerce through innovations such as the internet make the regulation and enforcement of such interactions ever more challenging. With websites accessible in any place connected to the internet, website hosts need to be wary of the ramifications of their actions in any country in the world and internet users conscious of the difficulties of pursuing and enforcing their legal rights where web sites are located overseas.
Two of the difficulties encountered by parties when dealing with persons or companies located internationally are the lack of amenability of such persons to Australian Laws (Personal Jurisdiction) and an inability to enforce your local judgments (Enforcement).
“Personal jurisdiction” will usually only be achieved where the defendant is present in the jurisdiction or has submitted to the jurisdiction. However Australian Superior Courts have provisions that provide for “long arm” jurisdiction that expand this concept in limited circumstances.
Enforcement is always difficult with foreign defendants without assets and/or a significant presence in Australia. There are means available pursuant to the Foreign Judgments Act 1991 and certain treaties by which Australian Judgments can be enforced against foreign persons located in signatory countries. But the difficulty remains with respect to Defendants in non signatory countries.
Hence special care needs to be taken when dealing with foreign persons. To limit the difficulties that may be encountered when enforcing such contracts it should clearly state the agreed “place of contract” and what law will apply. Unfortunately this will not eliminate the potential for problems and hence it is advisable that advice be sought prior to commencing business dealings with foreign parties. |
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| Regulator warns on loan scams |
Loan scams are becoming more frequent. The ASIC identified a car loan scam as the top of the “Pie In the Sky” award for 2005. Some 220 people invested $2.4m after they were told that if they bought a car through a vehicle buyers’ club and borrowed a little more and invested it offshore the high return would repay their car loan. In the event the returns offshore promised were less than expected. The ASIC said “Scammers frequently use sophisticated props and hard selling techniques that trap even financially experienced people”
The scheme has since been wound up and enquiries are being into a company that was advertising interest-free loans. The advice of the ASIC was: “People should remember to always deal with licensed Australian businesses because that way their rights are protected if something goes wrong.” |
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