Minors Signing Cancelling Contracts

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                                                                             letter of the law
  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                           February 2006
  professional advice.

  Do your homework on gyms before
  Have you resolved to get fit and healthy?                   want to cancel, suspend or transfer your                        • the fee for membership;
  The Office of Fair Trading (OFT) is urging                  membership.                                                     • the method and timeframe for
  Queenslanders to do their homework before                      “Be aware of direct debit terms and                             cancelling direct debit authorities;
  signing up for gym membership or weight                     conditions for paying gym fees, note when                       • the administration fee, which applies
  loss deals.                                                 payments are due, what fees are involved,                          if the contract is terminated during the
     The OFT regularly receives calls and                     and how the agreement can be terminated or                         cooling-off period; and
  written complaints from consumers who                       amended.                                                        • the termination fee
  have made the mistake of not taking the                        “You also need to ensure you have                            “If you have signed a contract for a gym
  time to read membership contracts and                       enough funds in your account to cover the                    membership, remember under the Fair
  understand the conditions.                                  payment each month or your bank may                          Trading (Code of Practice – Fitness Industry)
     “Before you sign a contract, do your                     charge penalty fees.”                                        Regulation 2003, you can cancel the contract
  research,” a Fair Trading spokesman said.                      Fair Trading advises Queenslanders                        within the 48-hour cooling-off period if you
  “Take the time to read through all the terms                searching for the best gym or weight loss                    have second thoughts,” the spokesman said.
  and conditions, including the fine print, and               deal to take careful note of:                                   For expert advice on contracts, contact
  ask questions about what happens if you                        • the initial joining fee;                                your local solicitor.

  National bankruptcy                                                                                                          What’s inside...
                                                                                                                               A case in point... ugg boots

  campaign                                                                                                                     and trade marks
                                                                                                                               The iconic Australian ugg boot is at the centre of a
                                                                                                                               recent case before Australia’s trade mark regulatory
                                                                                                                               body – IP Australia.
  The Insolvency and Trustee Service                         public confidence and minimised the                               New laws to aid people with
  Australia (ITSA), has announced it is                      impact of financial failure on the                                disabilities
                                                                                                                               The Disability Services Bill 2005, introduced into
  launching a national campaign targeting                    community.                                                        State Parliament recently, aims to strengthen the
  bankrupts who have failed to comply with                      “Broadly speaking, the bankruptcy laws                         rights of people with disabilities.
  their legal obligations under the                          in Australia are designed to provide                              Pie in the sky awards
  Bankruptcy Act, Findlaw News reports.                      legitimate relief (and) to give bankrupts                         The Australian Securities and Investment
                                                                                                                               Commission (ASIC) has released a who’s who list of
     This follows a routine audit by ITSA                    some breathing space to get back on their                         the most outrageous and far-fetched financial scams
  which found there were hundreds of                         feet, while simultaneously providing                              of the year.

  bankrupts all over Australia who had failed                creditors with some level of repayment                            Anti-hooning laws
                                                                                                                               Over 2,000 cars have been impounded since the
  to comply with their legal obligations, such               when      assets    are   identified   and                        introduction of Queensland’s anti-hooning laws three
  as the requirement to file their Statement of              subsequently realised,” Mr Hanley said.                           years ago.

  Affairs.                                                      “ITSA will take action against those                           Teen takes action against mum for
     Under the Bankruptcy Act, once a                        bankrupts who exploit the well-intentioned                        giving pets away
                                                                                                                               A family feud has ended with a 19-year-old pressing
  debtor becomes bankrupt by order of a                      protection offered under the bankruptcy                           charges against her mother for giving her pets away.
  court hearing a creditor’s petition, the                   laws... when ITSA identifies criminal                             Crackdown on pseudoephedrine
  bankrupt has 14 days to complete and file a                behaviour such as this, it investigates the                       medications
                                                             matter and pursues the offender to the full                       Customers purchasing medication containing
  Statement of Affairs outlining their                                                                                         pseudoephedrine from pharmacies may now be
  financial and personal particulars. Penalties              extent of the law.”                                               required to present ID.
  that can be imposed for breaches of the Act                   Mr Hanley said that last year ITSA                             Smoking laws hit retailers
  range from fines and good behaviour                        investigated 536 individuals for criminal                         Tobacco retailers now face tighter restrictions on
                                                                                                                               cigarette product displays and harsher penalties for
  bonds through to terms of imprisonment.                    offences, with 120 found guilty and many                          selling cigarettes to minors under the latest phase of
     ITSA’s national manager of fraud                        others warned of the consequences of their                        Queensland’s anti-smoking laws.

  investigation, Jeff Hanley, said ITSA’s                    actions.                                                          Wearing heels an occupational
  purpose was to provide a personal                             “This year we are expecting to deal with                       hazard
                                                                                                                               A company who sacked a woman for wearing high
  insolvency system that produced equitable                  a much higher number”, Mr Hanley said.                            heels has been ordered to give the woman her job
  outcomes for debtors and creditors, enjoyed

newsletter of the law, February 2006                                                                                                                                                    1
               a case in point . . . ugg boots and trade marks
  Who would have thought the humble ugg boot could be the subject of such
  scrutiny? A recent decision by Australia’s trade mark regulatory body has removed
  the term ‘ugg boot’ from the register of trademarks and will allow Australian
  manufacturers and retailers the right to call sheepskin boots ‘ugg boots’.
  Background                                          The applicants submitted that in using       used to describe a specific style of
      The term ‘ugh-boots’ was registered as a     the terms ‘ugh’, ‘ugh boots’ (with no           sheepskin boot and are the first and most
  trade mark in Australia in 1971. ‘Ugh’ was       hyphen), ‘ugg’, ‘Ugg Australia’, or ‘ugg        natural way in which to describe these
  registered by the same owner in 1982. Both       boots’, the opponent had not used its           goods.” He also concluded the terms are
  of these trade marks were sold to Ugg            registered trade mark in Australia within       required by other traders without any
  Holdings Inc in 1996. In 1999, Ugg               the required three-year period under the        improper motive to describe the boots.
  Holdings registered the Ugg logo.                Act. They also contended the opponent              Mr Thompson also found that the trade
      The issue first attracted media interest     had only used a generic term (prior to          mark ‘ugh-boots’ was registered and the
  when American-based company Ugg                  registering a trade mark, the Register of       hyphen was essential to its identity as a
  Holdings Inc (a subsidiary of Deckers            Trade Marks determines whether a trade          trade mark. He concluded that the
  Outdoor Corporation) allegedly threatened to     mark has any descriptive or generic             advertisement included as evidence did not
  take legal action against Australian exporters   meaning that may make it unsuitable for         use that particular registered trade mark
  and United States importers of sheepskin         registration).                                  and as such the opponent had not
  boots using the terms ‘ugg’ or ‘ugh’ as             A central piece of evidence in the case      demonstrated any use of the trade mark
  descriptions of their products.                  was an advertisement appearing in the           before, during or after the three-year
      In December 2003, Perth retailers Bruce      Sydney Morning Herald in November               period.
  and Bronwyn McDougall (the applicants)           2003. The applicants claimed the                   Subject to an appeal to the Federal
  filed an application under s92 of the Trade      advertisement did not display the               Court by the opponent, the trade mark will
  Marks Act 1995 with IP Australia – the           registered trade mark ‘ugh-boot’. The           be removed from the Register of Trade
  Federal Government agency responsible for        opponents countered that even though            Marks.
  granting rights in patents, trade marks and      the hyphen in the trade mark ‘ugh-boot’         Implications
  designs – requesting the removal of the trade    was missing in the advertisement, it was           This is a significant development for
  mark, claiming that the registered trade mark    an alteration or addition which did not         Australian manufacturers and retailers of
  was not used during the period from              substantially affect the identity of the        sheepskin boots and means they may now
  30 November 2000 until 30 November 2003.         trade mark.                                     have the right to call the boots ‘uggs’, if
      Ugg Holdings Inc (the opponent) filed a      Decision                                        there is no appeal. Deckers Outdoor
  notice opposing the removal of the trade            Trade mark hearings officer Ian              Corporation still owns the trade mark in
  mark in May 2004, contending as the sole         Thompson ruled that the trade mark              other jurisdictions, such as the United
  ground for opposition that the trade mark        ‘ugh-boots’ had not been used in                States, as trade mark laws are national laws
  had been used within the period in question.     Australia within the three-year period.         and each country registers and protects
  The case                                         Mr Thompson said: “The evidence                 trade marks within their own jurisdiction.
      Section 92 of the Trade Marks Act 1995,      overwhelmingly supports the proposition            For more information on trade marks,
  relates to the application for removal of a      that the terms ‘ugh boot(s)’, ‘ug boot(s)’      seek legal advice from your solicitor.
  trade mark from the Register of Trade Marks.     and ‘ugg boot(s)’ are interchangeably

                                 New laws to aid people with disabilities
  Legislation has been introduced into State          • the right to live a life free from           keeps pace with changing community
  Parliament to strengthen and safeguard the             abuse, neglect or exploitation; and         expectations.”
  rights of people with a disability.                 • the right to receive disability services         Mr Pitt said the new Disability Services
      The Disability Services Bill 2005 aims             in a way that respects the                  Bill focused on recognising human rights,
  to improve the quality of disability services          confidentiality       of      personal      consumer safeguards, service standards,
  across Queensland, acknowledge the rights              information.                                accountability,        and       monitoring
  of people with a disability – including             “Significant changes have occurred             mechanisms.
  promoting their inclusion in the life of the     since Queensland first enacted disability             “About 22 percent of Queenslanders
  community – and to ensure that disability        services legislation in 1992, and the             have a disability, according to the latest
  services funded by the department are safe,      establishment of Disability Services              available Australian Bureau of Statistics
  accountable and respond to the needs of          Queensland in 1999,” Mr Pitt said.                figures.”
  people with a disability.                           “The existing Disability Services Act              Mr Pitt said the Bill gave the
      The Minster for Disability Services,         contains many positive features and has           Government the power to act swiftly when
  Warren Pitt, said the proposed new               contributed     to    greater    community        it needed to investigate instances of abuse,
  legislation retained the existing rights of      participation and inclusion of people with a      neglect, or exploitation of people with a
  people with a disability, and added two          disability in everyday life, but a review of      disability within funded non-government
  new rights:                                      the Act was necessary to ensure that it           services.

newsletter of the law, February 2006                                                                                                                2
  Pie in the sky awards
  Do you want to make a killing on the share     promised returns of up to 8 percent a week         You’ve won a slice of her
  market? This stock is ready to explode –       – figures described by the court as                inheritance. Collect your winnings
  you can make a 280 percent return when         “astronomical”. Investors were even issued         by contacting the writer. This is
  the target price is reached (unfortunately,    with a Certificate of Guarantee by a               ‘advance fee’ fraud, having nothing
  the stock never quite got there, closing the   fictitious ‘International Investment and           to do with Princess Diana or her
  year at a meagre US$0.39).                     Securities Commission’.                            estate – You’ll be asked to pay
      Why not turn $10,000 into $124,600 in          Mr McKim was jailed in October 2005.           various           ‘handling’         and
  a single year by trading currency and US           According to ANZ’s 2005 Australian             ‘administration’ fees until your
  Treasury bonds, with your capital              financial literacy research, 85 percent of         patience or your money runs out.
  guaranteed by the International Investment     Australians know that high returns mean          • Get into the action on the overseas
  and Securities Commission?                     high risk, but some 47 percent would still         share markets. ‘This stock’s ready to
      For a handling fee (and other charges to   be willing to invest their money in                explode. It’s our hot pick this week.
  be revealed later), you can collect your       something offering well above market rates         It can easily go up to $2.25 very fast
  winnings from a lottery supposedly set up      of return.                                         here’, says the email offering
  under the will of the late Princess Diana.         ASIC’s acting executive director of            ‘unparalleled investment research’.
      We’ve all received the emails of           consumer protection, Delia Rickard, said           Recommended on 10 September
  investment schemes promising instant           the purpose behind the awards was to warn          2005 at a price of US $0.80, the
  riches, but with so many scams out there,      the public.                                        stock topped out at US $1.30 on 14
  which ones are this year’s award-winning           “Pie-in-the-sky financial schemes still        September, and then sank to a paltry
  investment scams?                              devastate far too many people, she said.           US $0.39 by the end of 2005 –
      The     Australian     Securities    and   “They frequently use sophisticated props           Without a shred of protection, you
  Investment Commission (ASIC) has just          and hard-sell techniques that lure even            could easily be taken to the cleaners.
  released its 2006 ‘Pie In The Sky’ awards      financially experienced people.                    A time-honoured scam, these emails
  (‘the PITS’), a who’s who list of the most         “Deal     with    licensed    Australian       pump up interest in little-known
  outrageous and far-fetched financial           businesses, because that way your rights           offshore companies traded through
  schemes of the year.                           are better protected if something goes             international bulletin boards, so the
      The top gong for 2006 goes to an illegal   wrong. Businesses can be checked by                promoters can dump their own shares
  investment scheme promoted through             visiting ASIC’s investor and consumer              quickly before the share price drops.
  wealth seminars throughout Australia.          website, FIDO, at www.fido.asic.gov.au or        • Surprise! You own some valuable
  Operated by Mr Craig McKim, Pegasus            calling 1300 300 630.”                             overseas shares. If you want to
  Leveraged Options Group (Pegasus) lured            For more information on illegal                double check, just contact the
  around 90 unsuspecting investors and           schemes that ASIC has taken court action           International Asset and Compliance
  raised $3.7 million. Over $2.1 million of      over, obtained court orders, or identified         Centre. Just pay the fee to have these
  the funds raised were lost in personal         those involved in court, please visit FIDO.        shares transferred to your name – No
  gambling and other personal expenses by            2006 ‘Pie in the Sky’ runners up;              genuine investor protection agency
  Mr McKim.                                          • A firm of London solicitors is               exists. It’s just another front set up to
      In the case of the Pegasus scheme, the            administering Princess Diana’s estate       persuade you to pay the fees.
  NSW Supreme Court found investors were                which includes a lottery promotion.

                   2,000 cars impounded under                                                      Teen takes
                        anti-hooning laws                                                         action against
  More than 2,000 Queensland drivers have
  had their vehicles confiscated since the
                                                 vehicles confiscated since these laws took
                                                 effect. In the North Coast region there have     mum for giving
  introduction of Queensland’s anti-hooning
  laws three years ago.
                                                 been 521 vehicle confiscations.”
                                                    Far North Queensland had the lowest             away pets
     Police Minister Judy Spence said the        number of vehicle confiscations, recording
  laws were forcing dangerous drivers to         96 offences since 2002.                        A 19-year-old is taking legal action against
  realise that public roads and suburban            The anti-hooning laws give police the       her mother for giving her pets away.
  streets were not race tracks.                  power to impound vehicles used for                The girl came home to find her mother
     “If you drive in a manner that is           hooning for 48 hours. Repeat offenders         had taken her pet dog, seven puppies and
  dangerous or causes excessive noise or         could have their car taken off the road for    two guinea pigs to a local animal rescue
  smoke, then you will be caught by police       three months or even forfeited to the state    shelter.
  and risk having your vehicle impounded,”       after a third or subsequent offence.              The pair had apparently been arguing
  Ms Spence said.                                   “By September this year, only 46            about the pets since the birth of the
     The highest number of hoon offences         offenders had been detected committing         puppies. So when the girl went out to
  were recorded in the South-East and North      hoon offences on a second occasion in the      college, her mother seized the opportunity
  Coast police regions.                          past three years,” Ms Spence said. “Three      to offload the animals.
     “Both regions combined account for          offenders have been detected committing a         The daughter was so angry she went to
  more than half of Queensland’s total           third offence – one in each of the Ipswich,    the police station and pressed charges
  vehicle confiscation figures,” Ms Spence       Bundaberg and Redcliffe districts.             against her mother.
  said.                                             “This legislation is not aimed at              Police are investigating the charges, but
     “As of September, 702 drivers in the        targeting young drivers or car enthusiasts.    are hoping to settle the matter before it
  South-East region, which includes Logan,       If you abide by the law, there is no reason    comes before the court.
  Beenleigh and the Gold Coast, had their        why this legislation should affect you.”

newsletter of the law, February 2006                                                                                                            3
                     Crack down on pseudoephedrine medications
  Customers purchasing over-the-counter                     Only’ Schedule 3 medicines.                           medications such as nasal decongestants and
  pharmacy        medicines         containing                 Health Minister Stephen Robertson said             cold and flu medications sold at pharmacies
  pseudoephedrine will now be required to                   pharmacists must not sell any Schedule 3              (note: similar products sold in supermarkets
  present identification or satisfy the                     medicines containing pseudoephedrine unless           do not contain pseudoephedrine).
  pharmacist of their genuine need for the                  they were satisfied the customer had a                   “We recognise the overwhelming majority
  medication, under new state laws.                         genuine, therapeutic need for the medication.         of Queenslanders have a genuine therapeutic
     Queensland’s Health (Drugs and                            “Pharmacists will be authorised to                 need for these medications,” he said.
  Poisons) Regulation 1996 has been                         request identification from unknown                      “However, the continued diversion of
  strengthened to prevent the diversion of                  customers. They will also record details              medicines containing pseudoephedrine for
  medicines containing pseudoephedrine into                 about each sale of Schedule 3 medicines               use as a precursor to manufacture
  the manufacture of illicit drugs.                         containing pseudoephedrine, including                 methamphetamine (speed) is an issue of
     The new laws, which came into effect                   details such as the date, brand name,                 grave concern for health regulators and law
  from 1 January 2006, now classify all                     quantity and the purchaser’s name and                 enforcement agencies.”
  over-the-counter Schedule 2 medicines                     address,” Mr Robertson said.
  containing pseudoephedrine as ‘Pharmacist                    Pseudoephedrine is commonly found in

                     Smoking laws hit retailers                                                                       Wearing high
  Tobacco retailers now face tighter display
                                                                                                                        heels an
                                                               Mr Robertson said more than 3,000 tobacco
  restrictions and harsher penalties for selling           retailers had been sent a “Selling Smoking

  cigarettes to minors under the latest phase of           Products Information Kit”, including required
  Queensland’s anti-smoking laws.                          public awareness signage.

     The new legislation, which came into effect               He said tobacco retailers who had not
  on December 31, will limit the size of cigarette         received a kit or were unsure of their
  product displays in retail outlets for the first time.   responsibilities under the new laws could contact
     Under the new laws, minors who pretend to             the Tobacco Hotline on 1800 005 998.                   An industrial tribunal in Brazil has ruled
  be the legal age to purchase cigarettes can also be          “Enforcement of the new laws for tobacco           that a woman who was sacked from her job
  fined.                                                   retailing will start at the end of March 2006, after   for wearing high heels was unfairly
     Health Minister Stephen Robertson said that           a three-month education period,” Mr Robertson          dismissed.
  while pubs and clubs had been the most affected          said. “This will give retailers time to adapt to the       Brazilian newspaper Folha de Sao
  by smoking laws, tobacco retailers would be the          new changes, however, I stress to retailers that       Paulo reports that the company admitted
  focus of new laws in the New Year, with                  previous laws still apply, particularly regarding      sacking the 32-year-old woman, who was a
  particular emphasis on the sale and supply of            sales to minors.                                       secretary with the Planarc Company, solely
  smoking products to children.                                “Tobacco retailers also need to be aware that,     because she wore high heels to work.
     Under the new laws:                                   if the same business is found to have repeated             The company’s lawyer said the
     • Each retail outlet can show only one                breaches of the new tobacco laws during the            woman’s choice of footwear made her
         smoking product display. The maximum              ‘education period’, this will result in an on-the-     more likely to fall and injure herself,
         size of this display is one square metre for      spot fine or prosecution.”                             potentially costing the company money.
         general retailers and three square metres             The specialist Tobacco Control Investigation           “She was an accident waiting to
         for tobacconists. Cigarette cartons cannot        Team targets the illegal supply of smoking             happen!” he said.
         be on display. Currently, there are no            products to minors across the state by conducting          The tribunal ruled that, while the
         restrictions. In addition, the purchase of        surveillance of tobacco retail outlets.                company would have been within its rights
         smoking products cannot accumulate                    There are currently 14 prosecutions pending        to discipline the woman, it should not have
         shopper loyalty points, such as Fly Buys          for the illegal supply of smoking products to a        fired her. The company was ordered to
         or fuel discounts.                                child, including those as a result of surveillance     offer the woman her job back.
     • People under the age of 18 years who                during the recent Schoolies Week.
         falsely represent their age in order to be            The new restrictions add to a busy past 12-
         sold smoking products will be committing          months for tobacco laws in Queensland, as
         an offence and may be subject to a                reported previously in the ‘Newsletter of the
         maximum penalty of $1,500. Currently,             Law’. Other restrictions which came into effect
         no law applies.                                   include a ban on smoking:
     Penalties for sales to minors have also                   • between the flags on all patrolled beaches;
         strengthened and include:                             • within 10 metres of children’s playground
     • $10,500 fine for a first offence. Currently,                equipment;
         the fine is $5,250. A court can also                  • while standing within four metres of non-
         prohibit the supplier from selling tobacco                residential building entrances; and              This newsletter is a free service from
                                                                                                                    your solicitor. If there is any issue you
         products for six months.                              • at all sporting venues administered by the         would like us to cover in a future
     • $21,000 fine for a second offence.                          Major Sports Facility Authority, including       newsletter please call us. Also, if there
         Currently, the fine is $10,500. A court can               Suncorp Stadium, the Gabba, the                  is anyone you know who would like to
                                                                                                                    receive this newsletter please let us
         also prohibit the supplier from selling                   Queensland Sport and Athletics Centre            know and we’ll add their name to our
         tobacco products for 12 months.                           (formerly QEII Sports Centre and ANZ             distribution list.
     • $31,500 for a third or subsequent offence.                  Stadium), the Sleeman Centre, the                However, if you do not wish to
         A court can also prohibit the supplier from               Brisbane Entertainment Centre, and Dairy         continue receiving it please let this
         selling tobacco products for three years.                 Farmers Stadium, Townsville.                     firm know and we will not send it to
                                                                                                                    you again.

newsletter of the law, February 2006                                                                                                                             4

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