News and resources

All areas of the law evolve under the stimulus of societal change, and few areas evolve more quickly than that of employment law. The pace of change in the field of employment law can make it hard to keep up with what’s happening, and this is made harder by the complex tapestry of legal sources […]

In 2003, a nineteen-year-old man began employment as a trainee accountant with a major accounting firm in Perth, under an employment contract that included a post-employment restraint clause.

Restraint of trade clauses are often included by employers to protect their client relationships should an employee leave and start up work in competition.

However, clauses of this nature are not always easy to enforce, because the law recognises that it is not in the public interest to hinder a person’s ability to earn a living or to restrict healthy competition between businesses.

The onus to prove that a particular restraint clause is “reasonably necessary” to protect “legitimate business interests” therefore rests with the employer.

A case in NSW centred on the question of whether a hospital was liable for a patient developing an infection after surgery.

On 7 June 2010, a woman attended a hospital for the repair of an incisional hernia that had developed at the site of her caesarean section wound, following the birth of her third child at the end of 2009.

The patient was admitted for surgery by a senior surgeon, but underwent the hernia repair at the hands of a junior surgeon, with the senior surgeon present to assist. The hernia was repaired and surgical mesh was placed over the hernia site.

A case heard in Queensland revolved around alleged copyright infringement of building plans.

A couple owned a block of land in Port Douglas, Queensland, and set out to build an architecturally unique house on the land.

They engaged a building designer to assist and sent an email to the designer with their ideas for the house, which included proposed specifications, four pages of draft floor plans and two photographs of houses illustrating the architectural style the couple had in mind.

The building designer prepared detailed plans (“the building plans”) and the couple engaged a builder to undertake the construction. Sometime after the house was built, the couple listed the property for sale and sold it to a new owner.

A case that went all the way to the High Court revolved around the question of whether a binding financial agreement (prenup) was signed under duress.

A couple became acquainted on the internet via a website for potential brides. He was a wealthy property developer, an older man who had previously been married and who had three adult children from his first marriage. His family was in Australia, as were his assets, which were worth between $18-$24 million.

She was an Eastern European woman who was much younger than him, had been married and divorced, had no children and wanted to have children of her own. She had no assets, spoke little English and her family lived overseas. She had no connections or community in Australia.

The couple met overseas in person shortly after making contact via the website. He took her on an extended European holiday and met her family. Seven months after they met, the couple moved to Australia with the intention of getting married.

Jumping castle an attraction at school event Although more than three years have passed since the Tasmanian jumping castle accident, the tragedy is still fresh in our minds. On 16 December 2021 there was an event, the “Big Day In” at Hillcrest Public School in Devonport, on the north coast of Tasmania. The weather was […]

A case in NSW revolved around the question of whether a note on a mobile phone should be admitted to probate as an informal will.

A 79-year-old man had an estate worth $13.6 million.

He had no surviving dependants and lived alone, but maintained close relationships with his older brother and with his best friend, who had become like a son to him.

For years, the man’s solicitor had “badgered” him to make a will, but he kept putting it off, saying he didn’t know what to do with his money.

On 4 August 2022, the man had a severe diabetic episode in the middle of the night and called an ambulance, as well as calling his best friend, who drove to the man’s house.

After the paramedics left at around 3:30am, the man’s friend told him he needed to “put in writing what his intentions were with his property” because “none of us know when we’re going to go.”

NSW firefighters face a higher cancer risk than the general population and they need to be aware there are special avenues for them to claim workers compensation entitlements. Cancer risk for firefighters significantly higher than for general population A study by Monash University found the overall cancer rates for full-time firefighters were significantly higher than […]

A case heard in the Supreme Court of NSW in 2017 concerned whether or not an old man had the mental capacity to change his will.

In 2011, the man signed a will which gave his estate to his three children equally. The will instructions were taken by his long-term solicitor. The man was aged 87 at the time.

In 2013 the man signed a new will, which gave his estate to his three children and his de facto spouse equally. Again, the will instructions were taken by his long-term solicitor. The man was aged 89 by this time.

Unforeseen level of interest in legal aspects of photography A dozen years ago, an item was published on our website about the legal aspects of photography, When photos break the law – your rights when taking photos. It attracted an unforeseen level of interest, such that in 2019 a revised and updated version was published, […]

The patient was a 73-year-old man who was happy, fit and active. In early 2011, he began to experience headaches and consulted his GP for treatment.

After performing various diagnostic investigations which were found to be inconclusive, the man’s GP referred him to a neurosurgeon.

The man consulted the neurosurgeon, who identified on a CT scan that the man had a benign brain tumour. The surgeon took the view that the tumour could be removed endoscopically, without the need to open up the patient’s skull. The surgeon said that this surgery would enable him to remove the tumour through the patient’s nose.

A case in 2018 concerned the question of whether a contractor’s injuries were caused by negligence of the company where he worked.

A light vehicle mechanic employed by a service company was working as an independent contractor at a landscaping and garden supply company, servicing bulldozers, excavators, forklifts, trucks and wheel loaders across their 15 work sites.

In early 2007, the mechanic was directed to service a Volvo wheel loader that was owned and operated by the landscaping company. The machine had been damaged and the mechanic was unable to realign and fasten the bolts of the “bash plate” on one side. As a short-term solution, the bash plate was welded on, so that the loader could be put back into operation quickly.

Later in 2007 the mechanic was again directed to service the wheel loader. While he was attempting to remove the bash plate, which weighed approximately 200 kilograms, it fell onto the ground, crushing his right arm.

A case in 2017 revolved around the question of whether the police had “reasonable suspicion” to conduct a strip search.

A man was riding a motorcycle along a road when he was stopped by police for not having his helmet strap done up. The man appeared to be nervous.

The police officer made enquiries and found out that the man had previous charges of drug possession and was on bail for manufacturing a prohibited drug. The police officer also observed “ice sores” on the man’s face.

Accordingly, the police officer formed the view that the motorcyclist might be in possession of drugs and decided to search him. In searching the man, the police officer conducted a frisk search and also put his hand inside the man’s jeans and into his genital area.

The man resisted and said: “You can’t do that”. He was then handcuffed and a strip search was performed. The strip search was conducted in public on the roadside in front of other officers.

A plastic bag containing methamphetamine was found in the man’s genital area.

The NSW government has foreshadowed changes to workers compensation legislation that will tighten access for psychological injuries. Massive upsurge in claims The state government has warned the NSW workers compensation system is “unsustainable” unless it cuts back on victims’ eligibility for payments for workplace psychological injuries. These can include PTSD, anxiety and depression. Treasurer Daniel […]

A case heard in the Federal Court in 2016 concerned an allegation by franchisees of a pizza chain of unconscionable conduct on the part of the franchisor.

In 2014, the franchisor of the Pizza Hut system in Australia devised a new “value strategy”, first to reduce the number of pizza ranges on offer from four to two; and secondly, to reduce the price of one range from $9.95 to $4.95 and the other from $11.95 to $8.50.

The strategy was devised in the wake of similar measures introduced by rival pizza chain Dominos, and on the back of several years of declining sales at Pizza Hut.

The franchisor undertook some testing of the value strategy in the ACT market, with promising results, and determined to implement the strategy Australia-wide.

Franchisees were required to adopt the strategy because the franchise agreements they had signed gave the franchisor the discretion to change the product range at their outlets and to set maximum prices.

Mortgagee sales increasingly common In our offices, we are suddenly seeing an unfortunate rise in mortgagee sales. A mortgagee sale occurs if a property owner can no longer meet their mortgage repayment obligations, and their lender or bank forces the property to be sold. Disadvantages of distressed property sales There are significant downsides for a […]

A dispute heard in the NSW Court of Appeal concerned whether or not a property vendor was entitled to cancel a contract of sale and keep the purchaser’s deposit.

A parcel of land in Fairfield, Sydney, was sold at auction for $1.46 million. The buyer and seller entered into a contract for sale and the buyer paid a ten per cent deposit of $146,000. The contract stated that the completion date was to be 20 June 2015.

Some time prior to entering into the contract, the vendor had performed earthworks on the property. The local council had declared the earthworks illegal and issued an order requiring that the seller reinstate the property to its previous condition.

By a special condition contained in the contract, the seller agreed to reinstate the property as required by the order “before completion”. The contract stated that the buyer would be entitled to terminate the contract and be repaid the deposit if the seller failed to do so.

A case in the Family Court involved a dispute over the division of marital assets.

The husband was aged 39, the wife was aged 37 and they had been married for about ten years at the time of separating. They had two children.

When they started living together, the husband had assets of a total value of $226,000, while the wife had assets of a total value of $11,500.

The husband was employed at all times and the wife was employed until shortly before the first child was born, then employed part-time after the first child turned five.