August 2004 by website1981


									         Gall Standfield & Smith

                                                                             letter of the law
                      Level 5, GCIT Building
                      91 Scarborough Street
                    SOUTHPORT QLD 4215
                           PO Box 259
                    SOUTHPORT QLD 4215
          Tel: (07) 5532 5944      Fax: (07) 5532 1025

  The information in this newsletter is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for
  any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for                              August 2004
  professional advice.

  Warning on ‘payday loan’                                                                                                 What’s inside...
                                                                                                                           A case in point... compensation for lost

  sharks                                                                                                                   subdivision
                                                                                                                           a developer’s plans for a subdivision were destroyed by
                                                                                                                           the introduction of a new town plan
  Queenslanders are being warned against                        • let you know all the terms of the loan,                  Big names attack fakes
  short-term cash or ‘payday loans’ that can                       fees, charges payable, interest rates,                  brand name companies are hiring private investigators
  leave them paying interest rates of up to                        repayments, loan terms and if any                       and lawyers to stop counterfeiters

  1,300%.                                                          security is required                                    Bald bride shocks husband
                                                                                                                           a Cairo professor is suing after discovering his beautiful
      Payday loans are becoming increasingly                    • provide a loan contract in writing and                   long-locked wife is really bald
  attractive with many on low incomes or                           a copy of the contract                                  Assault with taco lands man in hot seat
  with poor credit histories who don’t qualify                  • keep proper records of repayments                        disgruntled with poor service a customer turns to assault
                                                                                                                           with a deep fried taco
  for loans with lenders such as banks.                            made
                                                                                                                           Farewell to the food of love
      The Office of Fair Trading warns,                         • check whether you can repay the loan                     a Russian man is finding that getting back presents of love
  however, that these are the people who can                       without significant hardship.                           isn’t so easy when they are items of food
  least afford the debt they may fall into with                 Payday lenders are subject to the same                     Psychological injury grows in the workplace
  short-term loans.                                          laws as other lenders and this includes                       psychological injury complaints are growing in the
                                                                                                                           workplace – find out how to avoid costly compensation
      Consumers are being lured with promises                making sure people are able to make                           payouts
  of quick cash. but even small payday loans                 repayments without getting into financial                     Don’t trash emails – you may break the law
  can quickly become big amounts when high                   trouble.                                                      deleting your old emails? You might be breaking the law
  interest rates kick in.                                       Under the Consumer Credit Code,                            Driving tired? Police plan a wake-up call
                                                                                                                           proposed new laws will give police the power to order tired
      Payday lenders can make demands for                    lenders can be fined up to $10,000 for each                   drivers off the road
  direct debit from a bank account, and if                   breach, lose the right to make their                          Online divorce now an option for Australians
  insufficient funds are in the account, the                 customers pay the loan, and may have to                       divorce is now only a short mouse-click away
  consumer will incur penalty fees from both                 repay the interest charged.                                   Young fast-food workers exploited
  the lender and the bank.                                      If you think you may be the victim of                      a recent study has shown that young Australian fast-food
                                                                                                                           workers are being exposed to serious dangers and
      Consumers are urged to find out the                    an unscrupulous lender contract, or to                        exploitation in the workplace
  exact conditions of a payday loan before                   learn more about your rights and                              Overseas real estate a risky investment
  signing anything.                                          obligations under a payday loan contract,                     buyer beware – you may have no legal rights when
                                                                                                                           purchasing real estate outside Australia
      Lenders should:                                        contact your solicitor.
                                                                                                                           Real estate agent feels the sting of dishonesty
                                                                                                                           a real estate agent who charged the buyer of property
                                                                                                                           higher amounts than the actual costs of sale-related
                                                                                                                           expenses and then pocketed the difference has been
                                                                                                                           charged with fraud
                                                                                                                           Teens lured into mobile phone debt
                                                                                                                           SMS messages and mobile phone contracts are becoming

  Age no barrier to romance                                                                                                a debt trap for teenagers and their parents

  The Family Court has sanctioned the                         for the day. It was during one of the day-                   understanding the nature and effect of the
  marriage of an elderly couple, even though                  trips that the couple allegedly got married                  marriage ceremony.
  the wife had forgotten she was single                       again.                                                          Although the judge didn’t accept that the
  beforehand.                                                     The wife’s legal guardians, her niece and                woman believed she was already married at
     The 80-year-old woman, who suffered                      nephew, petitioned the court to rule that the                the time of the second marriage, even if she
  vascular dementia, was also unable to                       marriage was null and void because the                       had, it did not mean she was mentally
  remember her name or how old she was.                       wife, who wasn’t aware she’d ever been                       incapable of understanding the nature and
     The couple who first married in 1947 and                 divorced, was incapable of giving proper                     effect of the ceremony.
  divorced in 1993, but continued to live next                consent to marry.                                               The court found she would merely have
  door to each other for seven years until the                    The husband faced difficulties defending                 been mistaken as to a fact (whether she was
  wife entered a nursing home due to ill                      the case as he was partially deaf, had limited               able to be married), not about the legal
  health.                                                     English, did not understand how to conduct                   effects or nature of the ceremony.
     A legal guardian was appointed for the                   a court matter and was accused of violence                      When dismissing the case to nullify the
  wife when she entered the home as she also                  to the woman during their first marriage.                    union, the judge said that the law did not
  suffered from paranoid psychosis and was                        After having considered various medical                  require a person to have a detailed and
  partially deaf.                                             reports and expert evidence on the wife’s                    specific understanding of the legal
     Her ex-husband continued to visit her in                 mental capacity, the court found that the                    consequences of marriage in order to have
  the nursing home, sometimes taking her out                  woman       was mentally        capable     of               the ability to give consent.

newsletter of the law, August 2004                                                                                                                                                      1
               a case in point… compensation for lost subdivision
  A Queensland developer has been given the green light to seek compensation from
  a council after the High Court held the developer’s plans for a subdivision were
  destroyed by the introduction of a new town plan.
  The developer, Kettering, had purchased 49        developers were limited to the                 Government (Planning and Environment)
  acres of land in the Noosa Shire it intended to   construction of 24 houses and 75 units.        Act which allows the council to refuse
  subdivide and develop.                                After Noosa council’s rejection of         compensation for restrictions placed on the
     In 1991, the council introduced a new town     Kettering’s demand for compensation, the       use of land for particular purposes.
  plan, the Noosa Hill Development Control          company appealed successfully to the               However, the High Court overturned that
  Plan’ (DCP), which contained restrictions on      Planning and Environment Court for             decision and held that the restriction was
  potential developments and caused the market      compensation, however the decision for         placed on the developer’s right to subdivide
  value of the land to fall.                        was overturned on appeal by the council        rather than on the particular use of land as
     The company had previously planned to          to the Queensland Court of Appeal.             stated in section 3.5. Houses and units could
  subdivide the land to allow for the                   The Court of Appeal upheld the             still be built, but fewer of them, so the
  construction of 73 houses and 132 units.          council’s right to refuse compensation to      council was required to compensate
     After the introduction of the DCP, the         Kettering under section 3.5 of the Local       Kettering.

  Big names                                         Bald bride                                      Assault with taco
  attack fakes                                      shocks                                          lands man in hot
  Big brand name companies Oakley, Ralph
  Lauren, Rolex, Louis Vuitton, Versace,
                                                    husband                                         An Iowa man has been arrested for
  Tommy Hilfiger, Gucci and Kate Spade are          An Egyptian professor got less than he          assaulting a woman by throwing a chalupa,
  hiring private investigators and lawyers in       bargained for after discovering on his          or deep-fried taco, in her face.
  Australia in a bid to stop the production of      wedding night that his attractive young            Christopher Lame, 24, threw the
  counterfeit items.                                wife was bald.                                  steaming missile at the head of Taco Bell
     The market for fakes in Australia is              The professor, from Cairo, is                worker Nancy Harrison after she refused to
  growing, with investigators claiming seizure      demanding a divorce and damages of more         deal with his complaint about not being
  of up to a few hundred items a month.             than $86,000 from his wife for deception.       served the right food.
     Investigators hired by the multinational          The professor said he made the                  Harrison reportedly refused to take the
  companies scour local shops and markets           shocking discovery while running his            complaint seriously when Lame could not
  for fake pieces, but admit counterfeiting is a    fingers through his wife’s beautiful hair as    produce a receipt and pointed out that the
  growing problem that police find hard to          she slept and claimed that horror set in        restaurant was closing.
  control.                                          when the hair turned out to actually be a          She turned away from him, but not
     International enforcement specialists for      wig.                                            before she was hit in the face by the flying
  Oakley helped Customs seize 30,000                   He said that one of the things he liked      deep-fried chalupa.
  counterfeit stickers in March amid claims         about his wife was her beautiful long hair         Lame ran out of the restaurant, but
  that trademark laws were not being                and he was disgusted to find out on his         Harrison followed him and took down his
  enforced, with mobile vendors selling             wedding night that it wasn’t real.              car number-plate.
  dodgy sunglasses in markets, service                 The unfortunate bride lost her hair at a        Amused detectives said they had never
  stations, shops and at the beach.                 young age due to illness and had worn a         had a complaint quite like it before.
     Oakley claims fakes are cheapening its         wig ever since.
  brand and the quality of fake lenses can
  sometimes be bad enough to cause eye
     Louis      Vuitton    has    also
  investigators who have seized 159 fake
                                                               Farewell to the food of love
  printing cylinders and instigated the arrest      A jilted lover is suing his former girlfriend for the return of chocolates and other gifts of
  of more than 1000 counterfeiters since            food he gave her after she ended their short affair.
  January.                                             But his former girlfriend has told the court that she is unable to return the gifts, which
     According to a Vuitton spokesman,              included Swiss chocolates, nuts, three kilos of bananas and a bright red apple, because she’s
  genuine Louis Vuitton products are only           already eaten them.
  sold in their stores.                                Nikolay Kozlov, from Yekaterinburg, Russia, who has vowed to take his case to the
     A Brisbane operator selling fake Louis         highest courts in Russia, began the legal action after being dumped by his girlfriend.
  Vuitton handbags said that replicas let              “If I don’t win in Yekaterinburg I’ll go to the Supreme Court and even the European
  people into an otherwise elitist market and       Court for Human Rights,” Kozlov said.
  the amount of money paid for three or four           His unnamed girlfriend, said in a letter to the courts: “Most of his presents have already
  authentic pieces could buy three or four          been eaten so I can’t give them back.”
  cupboards of fakes.

newsletter of the law, August 2004                                                                                                                 2
  Psychological injury grows in the
  Psychological injury in the workplace is           motivation, absenteeism and relationships.       would be unlikely to be able to return to the
  one of the fastest growing types of                   In the Queensland case, the court ordered     workplace as she had developed a
  complaint resulting in compensation                the employer to pay $500,000 after the           personality disorder directly related to her
  payouts.                                           employee’s manager subjected her to              treatment at the hands of the manager.
     Not only are such complaints on the             treatment including:                                The court found that the employer owed
  increase, they are becoming extremely                 • language that was foul, abusive,            the worker a duty of care to ensure that she
  costly for employers, with one Queensland                aggressive, bullying, derogatory and       had a safe working environment and it had
  worker awarded $500,000 for psychiatric                  belittling                                 breached its duty by not taking reasonable
  injuries sustained after the court found her          • threats of dismissal                        steps to provide this.
  employer had breached his duty of care.               • obstructing the worker in the                  Employers are encouraged to take steps
     New figures show that claims for                      performance of duties                      to minimise psychological risks and avoid
  psychiatric injury make up 21% of total               • refusing the worker a leave of absence      costly payouts by addressing stressful work-
  workers’ compensation claim payouts,                     to visit the bedside of her husband’s      related issues, not just employees’ stress
  costing four times as much as other claims.              dying father and displaying an             responses.
     They also take longer to resolve and have             insensitive attitude to the worker’s          Employers and employees with questions
  indirect costs such as a negative impact on              distress.                                  on psychological injury should contact their
  workforce productivity, morale, turnover,             Evidence was given that the worker            solicitor for comprehensive advice.

  Don’t trash emails – you                                                                            Driving tired?
  may break the law                                                                                   Police plan a
                                                                                                      wake-up call
  Document storage and retrieval experts             it is considered a legal document.
  have warned that many businesses are                   The managing director of Access Office       Tired motorists may soon be given a wake-
  unaware of laws requiring them to keep             Systems, Rob Heymink, said that most             up call under proposed laws that give
  emails for seven years.                            email systems had rudimentary search and         police the power to order them off the
      The Federal Electronic Transactions Act        storage features at best. And for businesses     road.
  1999 came into effect five years ago and           with 20 or more staff, this problem was              This follows concerns that official
  allows courts to treat email in the same way       escalated immensely due to sheer volume.         statistics grossly underestimate the number
  as all written communication, including a              “Emails should be routed as normal to the    of crashes caused by tired motorists.
  requirement to retain copies for a minimum         computer of the user they are directed to, as        A state parliamentary committee,
  of seven years.                                    well as being copied to a central mail server,   TravelSafe, has been set up to investigate
      The majority of administration and             and automatically indexed,” he said.             driver fatigue amid claims driving while
  records managers do not keep their own             “Summaries of emails and their attachments       tired can be just as dangerous as drink
  emails for seven years, let alone those of staff   should be created, to make searches easier,      driving.
  who may have left up to six years previously.      and a company’s email management system              TravelSafe chairman Jim Pearce said
      With email quickly becoming the primary        should also find emails and their attachments    that, while most people frowned on drink-
  source of business communication and usage         based on content rather than just index (or      driving, many still didn’t take the dangers
  predicted to increase 160% in the next two         email subject) fields.                           of driving tired seriously.
  years, unmanaged emails put businesses at              “The management of emails has now                “Driving tired is not just a problem for
  risk by possibly landing them in court or          become both important and urgent. Already        long-distance truckies out on the open
  costing them a great deal of money.                there are cases of employee dismissal for        road,” he said. “It affects all motorists in
      Retrieval experts also warn that it may        what has been written in emails; it’s only a     urban and rural areas driving for all kinds
  not be enough to simply keep emails for            matter of time before someone sues a             of reasons.”
  seven years; business owners also need to          business entity for an unauthorised email.”          Fifteen percent of fatal crashes and five
  know what’s in them and how to find them.              For advice on the legal issues relating to   percent of all accidents are classed as
      Email is not treated in the same way as        email copying and retrieval, contact your        fatigue-related.
  fact-to-face or telephone communications –         solicitor.                                           People are still under the assumption
  if it’s under a company domain name, then                                                           that having a coffee or turning the music
                                                                                                      up means that you aren’t fatigued anymore
  Online divorce now an option for                                                                    but, according to RACQ transport and
                                                                                                      safety officer John Gray, some people
  Australians                                                                                         aren’t even aware what fatigue is.
                                                                                                          The committee’s inquiry would need to
  Australians now have the option of filing for divorce without even having to leave home.            find out how to define fatigue with a
     First there were online chat rooms, followed by speed dating, and now e-divorce.                 roadside test and how penalties would be
     Couples simply fill in an online application form, a solicitor attends court on their            imposed.
  behalf and about four months later the divorce is final. Only one spouse needs to be
  resident in Australia.
     Australian law requires only that couples be separated for 12 months before filing for

newsletter of the law, August 2004                                                                                                                    3
  Young fast-food workers exploited
  Young people working for fast-food outlets       outlets, including fish and chip shops,       shifts of 11 hours or more, while more than
  are being exposed to serious dangers,            general takeaway shops, pizza takeaway        half had worked shifts longer than eight
  including bullying and harassment.               shops, ice cream parlours and juice bars.     hours.
      An alarming community legal service             More than one in three experienced            Fast-food companies are required by law
  study has found that almost half (46%) of        violence or bullying at work (35%),           to provide a safe working environment for
  young fast-food workers suffered injury or       including sexual harassment and assault.      young people and comply with health and
  illness at the workplace, but a quarter (24%)       One in ten were paid less than the legal   safety requirements.
  did not report the problem for fear of losing    minimum wage and almost one in four were         If you have concerns about the safety of
  their jobs.                                      not paid for attending staff meetings as is   your workplace or have been injured at
      The youngsters surveyed worked either        legally required.                             work, always seek legal advice.
  in a major fast-food chain or in stand-alone        Around one in three (23%) worked long

  Overseas real estate a risky investment
  Consumers    who missed out during                  Get-rich-quick     property    schemes        Buyers need to research the current
  Queensland’s recent property boom are           involving time-shares and condominiums         market value around the property location
  being lured into overseas investment            outside Australia often take advantage of      and not rely on a persuasive salesperson’s
  schemes.                                        people desperate to buy property and, if the   word only.
     The schemes, typically involving free        property is outside Australia, buyers have        Independent legal and financial advice
  seminars about overseas real estate             no guarantee of its location, what the         should always be obtained before signing
  investments, often target naïve investors       property market is like in context, or even    any contract or paying a deposit.
  with demands of upfront deposits and            if the property actually exists.                  For overseas investments, ask a solicitor
  immediate contract sign-up.                         Consumers also need to be wary of          to conduct searches to check the validity of
     Overseas property purchasers may have        schemes offering exclusive access to the       the property and title, and the country’s
  no protection under Australian laws and         purchase of luxury properties, with the        local laws relating to real estate.
  are urged not to buy real estate sight          bonus of little or no deposit, and promises
  unseen.                                         of huge profits.

  Real estate agent feels                                                                        Teens lured into
                                                                                                 mobile phone debt
  the sting of dishonesty                                                                        SMS messages and mobile phone contracts
  A real estate agent who charged a property         “This penalty serves as a warning to        are fast becoming a debt nightmare for
  buyer higher amounts than the actual costs      real estate agents to comply with the law,”    many teenagers and parents, landing them
  of sale-related expenses and then pocketed      Mrs Keech said. “Stringer took advantage       with legal problems.
  the difference has been charged with fraud.     of vendors from overseas who were unable          Teenagers are becoming hooked on the
     The agent, Lindsay Stinger, a licensed       to keep a close eye on the sale of the         popular phone messaging service, which
  principle of Stringer Corporation trading as    property, and then engaged in a complex        has seen many quickly accumulating huge
  The Professionals Shailer Park, profited by     scheme to cover the fraud when it was          bills they are unable to pay. Some
  $3,567 from the illegal transactions.           discovered. People buying a house should       youngsters are making payments of over
     Stringer, who pleaded guilty to              not have to worry about whether the agent is   $500 a month on mobile phones, which are
  dishonestly converting trust monies, was        acting honestly and professionally.            similar to those on a loan for a new car.
  given a six-month suspended jail term and          “This prosecution should deter other           Aggressive advertising is being used to
  ordered to pay $1,925 legal costs in 12         individuals from engaging in fraudulent        lure teens into signing contracts for mobile
  months or face 32 days’ imprisonment.           activities with the deliberate intent of       phones without fully understanding their
     Stringer Corporation was fined $5,000        misleading consumers.                          obligations under the contract and
  and ordered to pay $1,925 in legal costs for       “When purchasing real estate, consumers     ultimately landing them in legal hot water
  what Fair Trading Minister Margaret             should carefully evaluate all purchase         when they default on repayments.
  Keech described as conduct that abused a        documentation with the assistance of an           According to Legal Aid, first-time
  trust relationship.                             independent legal advisor.”                    phone buyers often rush into signing up for
                                                                                                 new phones without reading contracts
                                                                                                 properly and working out if they can
                                                                                                 afford the repayments on the phone or the
                                                                                                 phone bills.
                                                                                                    Text messaging can add up and create
 This newsletter is a free service from your solicitor. If there is any issue you would like     huge debts which, if not paid, can result in
 us to cover in a future newsletter please call us. Also, if there is anyone you know who
 would like to receive this newsletter please let us know and we’ll add their name to our
                                                                                                 a black mark against a young person’s
 distribution list.                                                                              name and make it difficult to get a credit
 However, if you do not wish to continue receiving it please let this firm know and we will
                                                                                                 card or loan in the future.
 not send it to you again.                                                                          For advice on mobile phone debt or
                                                                                                 contracts, contact your solicitor or Legal Aid.

newsletter of the law, August 2004                                                                                                                 4

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