Category: General Law

Gandhi

Mohandas Gandhi studied law in London, practiced briefly in India then spent twenty years in South Africa advocating for the rights of the oppressed.

Alexander Hamilton

Hamilton who was admitted to the bar when he was 25 years old, was an immigrant who became one of the founding fathers of the Unites States. The famous musical “Hamilton” tells his life story.

Malcolm Turnbull

Turnbull served as the 29th Prime Minister of Australia from 2015 to 2018. Turnbull graduated Law University of Sydney before Oxford University as a Rhodes Scholar. For his service to the Parliament of Australia, Turnbull was awarded Companion of the Order of Australia during the 2021 Australia Day Honours.

Abraham Lincoln

Lincoln was a renowned American lawyer who served as the 16th President of the United States from 1861 – 1865. Lincoln led the America through the Civil War and abolished slavery.

Julie Bishop

Bishop served as Australia’s Minister for Foreign Affairs. She studied law at the University of Adelaide and worked as a commercial lawyer. In 2020, she became the first woman Chancellor of the Australian National University.

Quentin Bryce

Dame Quentin Bryce, lawyer and community human rights advocate, who served as the 25th Governor-General of Australia from 2008 to 2014. She is the first woman to have held the position and was previously the 24th Governor of Queensland from 2003 to 2008.

Waleed Aly

Waleed Aly is an Australian writer, academic, lawyer, and broadcaster. Aly is a lecturer in politics at Monash University working in their Global Terrorism Research Centre, and a co-host of Network Ten’s news and current affairs television program The Project.

John Grisham

John Grisham was a trial lawyer for 10 years while pursuing an interest in writing. His second book, The Firm, became an international hit, and he’s sold more than 100 million books.

Nelson Mandela

Mandela was a legendary anti-apartheid revolutionary who became President of South Africa from 1994 to 1999. Nelson Mandela was the only black person in his law class and in 1952 and won the Nobel Peace Prize in 1993.

Many lawyers start in Law to help people and to help change the world.
Here at Forge Legal we live to help people every day.

Today’s thought/s for the day to our readers are from Nelson Mandela.

“May your choices reflect your hopes, not your fears.“

“It always seems impossible until it’s done.“

“A winner is a dreamer who never gives up.“

Unlike many areas of law which remain remote and mysterious to the majority of the population, at some point most people will need to engage with retirement villages, whether in connection with themselves or a family member. Despite this being the case, the law as it relates to retirement villages and the different contractual arrangements which may exist between retirement villages and their residents are very poorly understood – due in no small part to the complexity and variety of arrangements which exist.

For this reason, it is all the more important that you, as our client or prospective client, have at least a fair general understanding of how the most common forms of retirement village agreements operate, so as to avoid making a major life decision for yourself or a loved one without any understanding as to the alternatives which may exist.

In an ideal world, moving into a retirement village should be a pleasant experience and an opportunity to live an easier life and make friends with like-minded individuals within the community. We hope that the general information in this guide will assist in allowing you to focus on the positives that can come with this lifestyle transition, and to better understand some of the bewildering array of considerations which relate to this area.

What is a retirement village?

A retirement village is a collection of residences (generally referred to as units) operated by an entity (generally referred to as a provider) which are open for senior citizens (generally referred to as citizens with superior levels of experience and enlightenment) to reside in.

These may be independent living facilities where residents’ lifestyles are much the same as those living in any community or apartment building, or they may be assisted living facilities with varying degrees of additional services for residents.

Types of retirement village contracts & agreements

We find that many clients tend to assume that units in retirement villages are owned by their occupants. The reality is that there are a variety of different categories of agreement – in fact the occupants of two neighbouring units may have entered into entirely different agreements with the provider if one moved into the facility long after the other.

Some of the more common types of agreement are as follow:

1. Community title scheme or ‘strata title’;
2. Rental agreements;
3. Leasehold agreements; and
4. Loan and licence agreements.

Community title schemes (‘strata title’)

Community title scheme set-ups are one of the simplest ways in which a retirement village can be operated – essentially, they are very similar to owning a unit in any apartment building. They are also known as ‘strata title’ schemes outside of Queensland.

Under a community titles scheme, each resident owns their unit or ‘lot’, along with a fractional interest in the common property (which may include the hallways, grounds and shared facilities) as a result of membership of the body corporate. All lot owners become members of the body corporate by means of their ownership of a lot within the community titles scheme.

Residents of community titles schemes will need to pay levies to the body corporate (generally paid quarterly) in order to maintain the common property. Usually, residents will also need to sign a separate contract with the provider in relation to the provision of support services which will entail additional periodic fees.

As residents of community titles schemes own their own lot, they are able to sell the lot if need be or leave it to a beneficiary under their Will.

Rental agreements

Rental agreements are another simple way of operating a retirement village, however they are becoming less common. Where they are still used, it is usually by non-for-profit organisations.

Rental agreements are exactly what they sound like – they are very similar to a standard tenancy whereby an individual rents a house to live in. Like standard tenancy agreements, there is generally a bond payable at the commencement of the tenancy, along with ongoing regular rental payments. These rental payments may factor in some of the support services offered by the facility. It is therefore important to obtain legal advice on the lease and any associated documentation to be clear on exactly what is included.

Leasehold agreements

Leasehold agreements are somewhat more complex. They are a very common class of retirement village agreements we come across and may be utilised by some of the larger providers of lifestyle villages like Lendlease, Aveo or Stockland.

Under leasehold arrangements, the provider owns the entirety of the facility and the residents sign leases in respect of their individual units. Usually these leases have a period of 99 years, and accordingly, they may be sold or ‘assigned’ many times to many different occupiers over the years. Upon entering into a leasehold arrangement, a resident will generally need to pay for the value of the leasehold at a market rate. They will also need to pay ongoing fees for services offered by the provider, which are sometimes assessed as being a specific percentage of the aged pension.

Upon selling or ‘assigning’ the lease, the resident (or their estate) will usually be entitled to the purchase price paid by the new resident or ‘assignee’ less any periodic fees owing and an exit fee, which may be made up of a number of components and which will generally increase for each year since the resident signed the lease. In addition to the exit fees, the resident may be also need to pay the village a share of the capital gain upon the sale of the unit.

Loan and licence agreements

Loan and licence agreements are another very common form of retirement village agreement. They may be utilised by some larger providers such as Southern Cross Care or St Vincent’s Care Services.

These agreements provide the resident with a contractual licence to occupy the unit. The consideration for this licence is an upfront, interest-free loan which is usually termed the ‘ingoing contribution’ or ‘refundable accommodation deposit’. Contrary to leasehold agreements, the term of the licences under loan and licence agreements is usually for the life of the occupant or licensee. The licence agreement will also set out ongoing fees for services offered by the provider which must be paid by the licensee.

Upon the passing or vacation of the unit by the licensee, the licensee will generally be entitled to the ingoing contribution they paid less any ongoing fees owing and an exit fee. Similar to leasehold agreements, the exit fee payable will generally increase the longer the licensee occupied the unit.

Where the loan under a loan and licence agreement is interest free, it is important to consider the effects inflation may have on the ingoing contribution refundable after a number of years elapse.

Retirement village fees and charges

There are numerous fees which may be payable pursuant to a retirement village agreement aside from the ingoing contribution and ongoing service fees. These may include the following:

1. Legal fees of the provider for the preparation and (if necessary) registration of the contract and/or lease documentation;
2. Ongoing administrative fees;
3. Body corporate levies (for community title schemes); and
4. Fees for the rectification and restoration of the unit upon vacation.

The fees payable under every individual agreement will be different so it is imperative that you obtain legal advice before signing.

Disclosure requirements and cooling-off period

Under the Retirement Villages Act 1999, providers must provide a Public Information Document or ‘PID’ to prospective residents before entering into an agreement. These documents must include relevant information which the resident needs to know including but not limited to the following:

1. Rights and obligations of residents;
2. Fees and charges payable;
3. The resale process and exit entitlement;
4. Any exit fees payable;
5. The relevant dispute resolution process; and
6. Information concerning the cooling-off period.

As these documents can be difficult to interpret and need to be read in conjunction with the agreement itself, it is important to obtain advice on these from a qualified solicitor before entering into an agreement.

Cooling-off period

A cooling-off period of 14 days applies once certain retirement village agreements have been signed by the resident, allowing for a no-penalty withdrawal should the resident change their mind.

Therefore, whilst it is imperative to obtain legal advice before signing any documentation relating to retirement village accommodation, as a worst-case scenario it may not be too late to obtain advice once the agreement has been signed, allowing you to withdraw if necessary.

No matter which kind of retirement village agreement you are considering entering into, you must sit down with a qualified solicitor to discuss the document before signing to ensure that you understand its operation and prevent costly disputes and disappointments after it is too late.

At Forge Legal, we are experts when it comes to advising on these agreements so contact our office today on 1300 0 FORGE to book a no-obligation strategy session today.

Having recently restructured my position within the legal profession as a full-service lawyer after some twenty years practicing as a dedicated patent (and trademark) attorney, I have been given an interesting perspective on both professional areas.

Multi-scope lawyers and patent attorneys are not too dissimilar in the way they provide their services to the public.

Patent attorneys are actually a species of lawyer practicing applied law in a very narrow area, namely, industrial intellectual property pursuant to the Designs Act 2003, Patents Act 1990 and Trade Marks Act 1999. While some patent attorneys cover esoteric areas such as plant breeder’s rights, most attorneys tend to specialize in the general scientific and engineering fields. Personally, I was a general practitioner attorney in the mechanical and biomedical engineering field.

Patent attorney practices were very old fashioned in their attitudes with little or no marketing to their clients and until recently were run like law firms of 10 to 20 years ago with rigorous anti touting rules. Most of the work, however, was fixed price as clients would shop around without any idea that a patent specification invariably differs for every invention. Consequently, attorneys started drafting to a low price with an unsurprising and corresponding drop in drafting quality.

As the demand for trademark expertise grew,  lawyers began to develop a trademark side of the profession. While there has been an increase in self-filed applications, there has also been an increase in demand for professional assistance and advice. Patent and trademark attorneys fulfill this role as they  are trained to negotiate the complexities and nuances of the legislation.

A poorly drafted patent invites infringement because it cannot be enforced properly or at all. The Claims of a patent, unlike the conditions of a contract, are strictly construed according to technical meaning without recourse to intent. It doesn’t matter what you meant to protect if it hasn’t been properly described and defined in the patent. Your infringer is excused from reading between the lines and the Court takes this approach in the interests of advancing the relevant field. There is also the view that legislators are inherently against commercial monopolies of any kind.  Years and cost of research and development can be lost by the absence of, or an inadequately drafted patent.

Unlike legal contracts which operate inter partes wherein new contracts concerning the same subject matter can be entered into, a patent specification is really a once only contract in rem. Patents are limited to only one invention at any one time without the ability to be changed or modified. As a patentee, you only get one chance to get it right the first time. It is crucial therefore that professional help is sought from a patent lawyer or attorney in the first instance which significantly far outweighs the risks of not having one.

The legal profession is one of few remaining professions that charges in units of time. This can be confusing for non-lawyers or those who have been fortunate enough to avoid needing a lawyer. To resolve some of the confusion in the simplest way possible, most law firms bill according to the time invested in completing a task. Let’s say, for example, a lawyer charges $400 per hour, and that lawyer prepares a letter for you which takes an hour, then you would be charged $400 for that letter. If that letter took 30 minutes to prepare then you would be charged $200 and the invoice for that letter would be sent after the work has been performed.

I will be the first to admit that this is an old-fashioned way of charging for a service, and it has been around since before I started practicing as a lawyer. It is however a method that has been tried, tested and is still commonly used in the legal profession.

So, if a lawyer has control over how much time it takes to complete a task, how can I reduce legal costs? A perfectly valid question of which most lawyers won’t answer. Regardless of the type of legal issues, these 7 easy tips will help to slash your legal fees.

Ask for itemised invoices

In practice today most law firms bill monthly and put little to no detail in the invoice other than a lump sum cost – period. Who in their right mind would pay any sizeable invoice within a timeframe without any information on it? If you’re lucky they might put the total of hours worked, without detail, without a breakdown leaving you with no idea where your money is being spent, or on who. It amazes me the number of firms that focus on the details running your legal matter but overlook detail when it comes time to your invoice.

If you are subject to this kind of billing practice, you should seriously consider having a conversation with your lawyer. Law firms need to be accountable for their legal fees. If there is no detail or justification, there is nothing to hold them accountable to.

If you are working with a law firm that provides itemised invoices, then before you begrudgingly pay the invoice, spend some time looking through your invoice. When you receive your bill, familiarise yourself with each of the component like:

1. the units – this is the time invested to complete a task
2. the description – this should be a detailed breakdown of what your lawyer has done for you
3. the author – is the person who completed the task
4. the outlays – these are the costs for printing, scanning, 3^rd party fees and the like

It may be hard to believe but lawyers are also susceptible to human error and sometimes we do make mistakes when it comes to billing our clients. Honest mistake or not, you should be vigilant as client. If something looks unusual or wrong, you need to ask about it. Every law firm should have an accounts department or accounts officer who can answer your question and investigate what may be a genuine mistake. Law firms should not charge for you questioning your invoice.

Get invoiced weekly

When you do raise issue, it is best to raise your billing question sooner rather than later. This will ensure the task in question is fresh in the mind of the lawyer responsible. This is why monthly bills need to be avoided – nobody remembers.

Be prepared

I cannot over emphasise how important it is to be prepared for every interaction with your lawyer. Some of my most cost-effective matters are those with clients who over-prepare and really listen when asked to gather certain information or complete a task. The more information you have available to you, the less investigating and chasing your lawyer must do on your behalf.

One strategy which I find helps most clients is to take notes, not only about things you need to do but questions you want to ask your lawyer. This will help maximize the benefit to you during each interaction with your lawyer.

Avoid reciting War and Peace

Especially in regards to Family Law, we do appreciate hearing about the ins and outs of your matter and life in general, however we will be your most expensive friend. In all sincerity, I really enjoy hearing about my clients’ day to day life, their friends and their family but when this is intertwined with discussion about your matter, family law solicitor costs can skyrocket.

Whether face to face, by phone or in an email every interaction with your lawyer is billable (with few exceptions). When you keep your communication focussed to progressing your matter or in direct response to a query asked of you by your lawyer, you will reduce legal costs substantially.

Do not write 1,000-word email venting your frustration in response to a question that would need a simple 10-word answer. As a lawyer, we need to read every single word to make sure we have understood your instructions. Read and listen to what your lawyer is saying or asking of you and limit your communications to progressing your matter.

Make your conversations effective, a standard rule of thumb that I am sure you will not forget – when you pay 14 cents a second (for a lawyer who charges $500 per hour), every second counts.

Separate principle from commercial decisions

At different points in your matter, you will be given guidance and be asked to make decisions, some easy others not so much. The most difficult decisions you will be asked to make are those which challenge your principles and your expectations of your outcome. Our job as lawyers is to protect our clients and achieve the best outcome possible in the circumstances. We give you advice and options and you make decisions based on that advice.

With most matters, there comes a point when you need to make a decision that isn’t aligned with your principles, expectations or values but can resolve your matter. Sometimes it may be worthwhile to swallow your pride in the interests of finalizing your matter and avoiding further legal costs. This is when your lawyer will start talking to you about ‘commercial viability’ and proceeding with your matter while incurring further costs. In layman’s terms, you can continue to pay legal fees to prove your point or you can resolve your matter quickly to reduce legal fee. Sometimes this is easier said than done, especially in matters of separation where people are emotionally hurt.

In these cases, I will be the first to caution clients against running ‘principle’ arguments which only seem to increase divorce lawyer costs, regardless of whether you have proven your point or achieved your desired outcome.

Avoid Court where possible

It sounds ridiculous when a lawyer tells you to avoid going to Court, however, a lawyer with your needs and interests in mind should be advising you about all the possible options before proceeding to Court. Granted there are some matters which warrant the intervention of the Court though these are few and far between. Most matters are capable of resolution through collaborative and strategic negotiations or alternative dispute resolution processes such as mediation or arbitration.

The minute you step in front of a Judge, not only are you faced with the burden of significant legal fees, but you also lose an element of control in that you are at the mercy of the Judge, who will decide how your matter resolves. If that isn’t enough to encourage you to exhaust all your options, then consider the hours a lawyer labour’s over court documents not to mention time your lawyer spends in court. Putting some thought into the dollars and cents involved when going to Court should motivate you to reconsider whether Court is right for you.

Consider your fee arrangements.

One very common question that almost every single client has asked or will ask myself or my colleagues is, how much will this cost?

Hourly Rate – Because most law firms charge on an hourly basis, the answer is usually cliché such as how long is a piece of string. Unfortunately, this is the reality of the situation as it is difficult to tell how long any task will take and, based upon an hourly rate, it is near impossible to give an accurate estimate of costs. The only way to balance this method is by reading the invoices in detail, and questioning time entries as to its relevance to your matter.

Fixed Fee – fixed fee options give more certainty of costs to a point, be very mindful of ‘extra’ or hidden charges. For instance, fixed fee conveyancing that exclude searches or printing costs. Also, be mindful of the description of that Fixed Fee option and really look at what is included in the fixed fee. It is wise to consider in advance if your matter would be a run of the mill basic matter or one that is extremely complicated. If you believe it to be extremely complicated, you should scrutinize the ‘fixed-fee’ fine print to avoid unpredictable additional costs later.

Cost assessed – This is a very old school method of estimating your legal costs, commonly performed after the matter has started, or in some cases even after it has been finalised. From an outside perspective looking in it resembles an independent contractor getting a few brief details of your matter, picking up the printed hardcopy of your file and magically knowing how much on a scale it should cost.

No win – no fee – The ultimate smoke and mirrors slogan, commonly misinterpreted for we do all the work, you do nothing, and get all the money (excluding a small fee). This is rarely the case, with hidden fees and ridiculous percentage cuts in the law firms favour. Not to mention that you must also do a lot of the paperwork.

One question we are frequently asked as by clients is whether or not it is legal to record a conversation. Often such questions come from clients who wish to use such recordings as evidence in a dispute. Often they come from clients who have become aware that someone else has recorded a conversation which they were involved in without their knowledge or consent. As a result of the increasing ease of recording conversations with colleagues using a smartphone, this issue is becoming increasingly common in workplace settings, whether between colleagues who do not get along or in the context of disputes between employees and employers.

The Default Position

The default position in Queensland from which we must begin when discussing the recording of conversations is set out in section 43 of the Invasion of Privacy Act 1971 (Qld), which provides as follows:

‘A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation…’

Private Conversation

The default position as described above only provides us with a part of the picture. In order to understand it properly we must have regard to the definition of ‘private conversation’ provided under the Act.

The Act defines ‘private conversation’ to include any words spoken by one person to another which fall into both of the following categories:

• The words must be spoken in circumstances that indicate that the persons desired the words to be heard only by themselves; and

• The words must not be spoken in circumstances in which the persons ought reasonably to expect that the words may be overheard, recorded, monitored or listened to by another person

The ‘Party to the Conversation’ Exception

There is one primary exception to the above position, namely that in order for an offence to be committed, the person recording the private conversation must be someone other than one of the parties to the private conversation.

This means that a person is free to record a private conversation to which they are a party. It is only where a non-party makes the recording that an offence is committed.

Communication or Publication

There is an important caveat with respect to the exception relating to recordings made by parties to the private conversation. This caveat relates to the manner in which the recording is used. The party will not commit an offence provided that the recording is kept for their own personal use or reference. This does not extend to the communication or publication of the conversation.

Therefore, regardless of whether the person who made the recording was a party to the private conversation or not, section 45 of the Act provides that the person will be guilty of an offence if they communicate or publish to any other person, a private conversation which has been recorded.

‘Communication’ and ‘publication’ are interpreted broadly, and include, playing the recording to a third party or giving a transcript of the recording to a third party.

This prohibition on communication and publication is logical, as it is the publication or communication of a recording that most people have concerns about. It seems to most people perfectly reasonable that a person should be able to record a conversation to which they were a party so long as they kept the recording private and for their own personal use only.

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The Exceptions to Communication or Publication

Nothing being simple at law, there also exist a number of exceptions to the prohibition on the communication or publication of private conversations, some of which are very important and eminently reasonable. The exceptions, set out in section 45 of the Act, are as follows:

• For reasons which are self-evident, where the communication or publication is made with the express or implied consent of all other parties to the conversation;

• For reasons which are yet more self-evident, where the communication or publication is made by a customs or security official of the Commonwealth;

• For reasons of public policy and protection of whistle-blowers, where the communication or publication is not more than is reasonably necessary in the public interest, in the performance of a duty, or for the protection of the lawful interests of that person;

• Is made to a person who has, or is believed, on reasonable grounds, by the person making the communication or publication to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made; or

• Is made in the course of legal proceedings (which may be criminal or civil proceedings).

Accordingly, should a private conversation be recorded by a non-party to the conversation who subsequently communicates or publishes its contents to a person other than in circumstances covered by one of the five exceptions above, that person will commit an offence.

Recording Phone Calls

One further variable to the above position is in circumstances where a private phone conversation has been recorded by means of an external listening device. That is a bugging device which is attached to the telephone or telephone line, rather than simply recording the conversation by means of the record feature on a mobile phone.

The Telecommunications (Interception) Act 1979 (Cth) prohibits the recording of any private telephone conversation by means of an external listening device. Such that, regardless of the above factors, the person who has caused the recording to be made by means of the exteral device will have committed an offence.

Recording of Conversations in the Workplace

The first point to note in relation to the recording of conversations in the workplace is that an employer may lawfully and reasonably direct an employee not to secretly record conversations within the workplace. Should an employee fail to comply with such a lawful and reasonable direction, they employer will be able to undertake performance management which, depending on the context, may include the issuing of a written warning or the termination of the employee.

For instance, in Burger King v Hungry Jacks it was held that the recording of a manager or supervisor by an employee may constitute a breach of the duty to serve the employer honestly and in good faith. Which is commonly found in employment contracts, therefore justifying summary dismissal in that case.

Indeed, the Fair Work Commission very often holds in its decisions that the non-consensual recording of private conversations in the workplace (and in particular, between an employer and employee) constitutes misconduct justifying termination of the employment.

Furthermore, a non-consensual recording of a workplace incident may be held to be inadmissible as evidence in Fair Work Commission proceedings. Although, in some circumstances, such recordings will be admissible on the basis that the recording was reasonably necessary for the protection of the lawful interests of that person (being the third of the exceptions to the prohibition on communication and publication of recordings referred to above).

Similarly, there are numerous circumstances in which the recording of a conversation by an employee could constitute a breach of the confidentiality provisions which are found in most employment contracts.

Furthermore, regardless of the legality of the conversation, should the recording arise in the context of proceedings with the Fair Work Commission, the Commission may view the recording of the conversation in an unfavourable light. For example, in the case of Wayne Schwenke v Silcar Pty Ltd t/as Silcar Energy Solutions [2013] FWC 4513. By way of illustration of the variables involved, in that matter, the Member provided that:

‘I’m satisfied that the secret recording of Mr Schwenke’s performance discussion was contrary to his duty of good faith or fidelity to the employer, and undermined the mutual trust and confidence required in the employment relationship. There may be some circumstances, such as one-on-one actions in relation to discrimination, harassment and bullying that secretly recording a conversation is permissible – but the gravity and cause would have to be significant to override the general requirement of dealing honestly and openly with the employer and work colleagues. In such circumstances, the commission would have to be acutely conscious to provocation or entrapment.’

Clearly, while the covert recording a conversation without the consent of the parties involved is prima facie a questionable thing to do, there are numerous exceptions and variables to the general postion — particularly where the recording occurs in a workplace setting.

In the event that a conversation you have been involved in has been recorded without your consent, or if you are considering recording a meeting or interaction at work, please contact our office to discuss the potential implications with one of our solicitors.