• April 3, 2020 in Commercial Law, Litigation

    Making sure you know what IS and what IS NOT captured as “Building Work”

    The Supreme Court’s recent decision in Waterford PPG Pty Ltd v Civil Constructors (Aust) Pty Ltd [2020] QSC 8, provides further clarity as to what is and what is not included as “building work” under the Queensland Building and Construction Commission Act 1991 (Qld) (the Act) – providing essential guidance as to what work requires an appropriate licence under the Act.

    Background

    Waterford PPG Pty Ltd (Waterford) entered into a contract with Civil Constructors (Aust) Pty Ltd (Civil Constructors) for the construction of roadworks, drainage, sewerage reticulation, water supply, conduits and stormwater quality for a 51 lot subdivision located at Ellen Grove, Queensland.

    After a dispute arose following a payment claim and payment schedule being issued, Civil Constructors made an application for adjudication for the disputed owing amount. The adjudicator found in Civil Constructor’s favour and, as a result, Waterford appealed the Adjudicator’s decision to the Supreme Court.

    What the Court considered?

    Waterford argued that pursuant to s.42 of the Act, Civil Constructors could not carry out “building work” as defined under the Act because they did not hold the necessary licence to conduct sewerage works. Given the breach under the Act, Waterford argued that Civil Constructors had no entitlement to make the application for adjudication and the contract between the parties was unenforceable.

    Civil Constructors argued that the sewerage works undertaken were not “building work” for the purposes of s.42 of the Act. Instead, they said the exceptions contained in clause 11 of Schedule 1 of the Act excluded sewerage systems from the definition of “building work”. This was because Civil Constructors did not conduct works which involved a connection of a sewer system to any particular building or proposed building.

    What was the decision?

    The works undertaken by Civil Constructors involved the installation and connection of waste tanks to the pressure sewer mains in proposed streets within the subdivision.

    Civil Constructors’ installation of the waste tanks themselves did not constitute a structure which amounts to connecting a building to a main of that system and rather, fell within the constructions of the sewerage system which requires additional work to be undertaken to connect any building or proposed building.

    At the time Civil Constructors undertook the works, there was no proposed building or even the existence of proposed subdivided lots. The Court also considered that if “building work” was to include undertaking work involving the construction of a sewerage system (including the installation of waste tanks and connections to pressure mains), this would specifically defeat the express wording of the exceptions to “building work” as contained clause 11 of Schedule 1 of the Act.

    Accordingly, Boddice J dismissed Waterford’s appeal and found:

    • Civil Constructors did not contravene s.42 of the Act;
    • Civil Constructors undertook the works pursuant to the contract and therefore was entitled to dispute the payment schedule under the relevant Act; and
    • The adjudication application was properly made and the adjudicator had jurisdiction to make her decision.

    How can Creevey Russell Lawyers assist?

    Irrespective of whether you are a Principal or Contractor, the works you are undertaking or works conducted by a contractor may be captured by the definition of “building work” under the Act. This of course is relevant to enforcement mechanisms most appropriate or available should a dispute arise resulting from a payment claim or payment schedule.

    If you would like further information, we recommend getting in touch with the team at Creevey Russell Lawyers by contacting our office on (07) 3009 6555 or emailing .

    Jakob Mignone
    Paralegal
    Ph:   07 3009 6555
    Email: jmignone@crlawyers.com.au
    Josh Mountford
    Associate
    Ph:   07 3009 6555
    Email: jmountford@crlawyers.com.au

    Prepared by Jakob Mignone and settled by Josh Mountford of Creevey Russell Lawyers. The contents of this article are for general information purposes only and do not constitute legal advice.

  • April 2, 2020 in Commercial Law, Litigation

    How to navigate your business and commercial contracts or agreements through COVID-19

    With the rapid economic shockwaves of COVID-19 being felt around the world, many businesses in Australia will experience how COVID-19 will impact their current and future business contractual obligations.

    Trade, supply or distribution agreements, or commercial contracts often contain a provision called a force majeure clause. If a force majeure clause is not included or applicable, parties to an agreement may attempt to rely on common law relief based on the doctrine of frustration.

    What is a force majeure clause?

    A force majeure clause contained in a contract or agreement will define what a “Force Majeure Event” is, thereby governing what circumstances the parties have decided relief should be available from performance of their contractual obligations following an unexpected or unforeseen event.

    A Force Majeure Event typically captures:

    • an act of God (including weather events);
    • acts of war or acts of public enemies;
    • terrorist acts, riots or civil commotions; or
    • industrial actions which involves a blockage, labour disputes or strikes,

    which are not caused by and are outside the control of either party to the contract or agreement.

    Relief from COVID-19?

    Given the World Health Organisation has declared COVID-19 a “pandemic”, some force majeure clauses may provide relief to parties if they are appropriately structured. For example, a Force Majeure Event, if drafted to cover a wider spectrum of events, may include events such as a “pandemic” or “epidemic”.

    The continuous impact of COVID-19 also has the ability to trigger events, trade controls or operating restrictions which are out of the control of the contracting parties. For example, measures which have already been put in place with respect to the Government mandating forced business closures for particular industries.

    It is important for contracting parties to review their contracts or agreements to ensure that future unforeseen events may be covered by a force majeure clause and to explore whether any relief may be available given the wide-spread impacts of COVID-19.

    Still feeling frustrated?

    If a force majeure clause does not provide either one or both of the parties relief during this unprecedented COVID-19 crisis, parties may be able to rely upon the doctrine of frustration instead.

    In Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, Lord Radcliffe described frustration as occurring whenever the law recognises:

    “…that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract…”.

    It is important to note that parties cannot simply rely on a contract being frustrated as relief if one party merely faces an increased financial burden to perform their obligations under the contract. A frustrating event must directly relate to and make it nearly impossible for a contracting party to perform its obligations. For example, if the Government issues a COVID-19 compliance ruling, performance by one party to a contract may become unlawful.

    It is also important to bear in mind the nature of frustration. Frustration can only arise where the performance of the contract cannot continue in the manner intended by the parties. Where the parties have included a force majeure clause, the inference has to be that they have turned their mind to the manner in which the contract might be frustrated and have provided for those eventualities. Therefore, a higher level of event would be required to invoke the doctrine.

    How can Creevey Russell Lawyers assist?

    There is not a blanket solution for all businesses who continue to operate during this COVID-19 crisis.

    We recommend you get in touch with the team at Creevey Russell Lawyers to discuss whether you have the ability to exercise any rights under a force majeure clause in your contract or whether performance of your contract will be hindered by frustration. Please do not hesitate to contact our office on (07) 3009 6555 or .

    Jakob Mignone
    Paralegal
    Ph:   07 3009 6555
    Email: jmignone@crlawyers.com.au
    Josh Mountford
    Associate
    Ph:   07 3009 6555
    Email: jmountford@crlawyers.com.au

    Prepared by Jakob Mignone and settled by Josh Mountford of Creevey Russell Lawyers. The contents of this article are for general information purposes only and do not constitute legal advice.

  • January 24, 2020 in Criminal Law, Litigation

    Illegal Tree Clearing: Farmers and Land Owners Beware

    The recent Queensland District Court Appeal decision of Baker v Smith (No 2) [2019] QDC 242, involving fire breaks sends a stark warning to all landowners about the penalties and costs for illegal tree clearing.

    While many disagree with the impact of the various amendments to the Vegetation Management Legislation the reality is that these laws are here to stay and the ramifications for breaking them are severe.

    Everyone, including owners of Freehold and Leasehold Land are subject to the existing law until is it repealed or amendment by an act of Parliament. With an increasing environmental focus, and the rising involvement of agencies like the Department of Environment and Science (DES), the Department of Mines and Natural Resources (DMNR) and the Environmental Protection Authority (EPA), we should all anticipate a crack-down on breaches of these sometimes inconvenient laws.

    These laws can be tricky, and to expect everyone to know their ins-and-outs might be unrealistic, but land owners and lease holders alike need to be aware that an ignorance of the law or disagreement with law, does not provide a defence to it.

    Should you choose to wilfully break the law that will be a factor a sentencing court will take into account, but many environmental laws also do not require intent, and people can and are being prosecuted on a strict or absolute liability basis. This means that even if you have breached one of these laws inadvertently, harsh penalties can still apply.

    The Courts are generally not constituted by gullible fools and the recent decision in Baker made that abundantly clear. The case was brought by the Department of Mines and Natural Resources for the unlawful clearing of trees under both the Forestry Act and the Sustainable Planning Act.

    In mitigation of penalty, the Appellant raised that the unlawful clearing was conducted for the purposes of fire safety management, to create a firebreak. That argument was rejected by both the Magistrate at first instance, and later in the appellate court, due to the inexplicability of that submission having regard to the substantial size of the area cleared for the stated purpose. At first instance, the Defendant was fined $276,000 for the clearing offences and ordered to pay the costs of the prosecution and investigation, which were assessed at a staggering $541,309.15. Although the fine was reduced on appeal to $250,000 and the costs to $495,000, further costs were awarded against the Appellant on appeal of nearly $225,000, at a total cost to the Defendant of almost $1,000,000.

    This case exemplifies that the courts will deal with these matters seriously and will reject inherently improbable submissions. Everyone knows that the real purpose of clearing vegetation is to grow grass and expand the commercial viability of land.

    If one thing is clear, it is that land owners need to go through the appropriate approval processes built into the legislation to avoid financially crippling penalties and costs orders that will almost inevitably flow from these sorts of prosecutions.

    An increasing focus on larger fines and greater deterrence against any person or company engaging in these types of activities without appropriate approval will be a focus of prosecuting authorities and the Courts.

    In Baker, personal deterrence was a significant consideration against the defendant. The overall conduct showed a disregard to the law for a protracted period in which unlawful clearing was pursued without justification or excuse, including for commercial purposes.

    Courts and Departments will also seek penalties that focus on deterring others from engaging in similar conduct. These considerations of deterrence in environmental matters will only increase with the added attention being given in light of the global environmental crisis.

    Vegetation Management – Forestry Act – Sustainable Planning Act Liabilities

    A starting point is that a penalty unit is $110 and a maximum penalty for an offence is prescribed by the legislation. For example, a breach of section 39 of the Forestry Act has a maximum penalty of 1000 units or $110,000.

    Subsequent offences under this legislation and other laws provide for far higher maximum penalties. It is important to keep in mind the penalties are applied for each charge, not for a set of offending and that offences under legislation like the Vegetation Management Act and or the Forestry Act will usually also constitute breaches of the Sustainable Planning Act.

    The accumulation of these penalties exposes people to incredible levels of liability. The maximum penalty available under the Sustainable Planning Act in Baker’s case was $6.7m.

    It is imperative that land owners take the necessary steps to inform themselves and make sure that any conduct is not breaching one of these pieces of legislation. Our team at Creevey Russell Lawyers specialise in these areas and are equipped to assist you in all areas, from dealing with applications for approval, to representing our clients who are being prosecuted under these increasingly misunderstood and serious laws.

     

     

    Michael Burrows
    Senior Associate
    Ph:   07 3009 6555
    Email:
  • November 18, 2019 in Litigation

    A Duck by Any Other Name: The Ever Present Question as to Employee Classification

    Any litigation lawyer has had to explain to a client at some point in their career why that very expensive contract they had drawn up saying that Joe Bloggs is a contractor and not an employee doesn’t get them out of that unfair dismissal claim.  Most lawyers have their favourite go to in that situation, whether it be Issacs J ‘disregarding the parties’ labels’ in Curtis v Perth and Freemantle Bottle Exchange Co Ltd (1914) 18 CLR 17, the plurality’s consternation over who actually owns a bicycle in Hollis v Vabu Pty Ltd (2001) 207 CLR 21, Gray J’s duck-masked roosters in Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179, or, my personal favourite, Shakespeare’s rose by another name.

    A more troubling and contemporary question, however, has arisen: when is a TV reality show contestant an employee?

    Arbitrator Burge of the Workers Compensation Commission of New South Wales recently had to consider that question.

    The Current State of Play

    These issues are hardly new – one of the earlier statements is that of Issacs J (referred to above) in Curtis, where his Honour noted “many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance”.

    The principle was more memorably stated by Gray J in Re Porter (above), where his Honour was clear that “the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck”.

    This was echoed by the High Court in Hollis (again, referred to above), who held the key consideration was the substance of what the contract provided for within “the totality of the relationship”.

    Bromberg J has provided, perhaps, the most authoritative collection of the authorities on this point in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366, where his Honour reframed the question as a two-stage test: first, is there a business?, and second, whose business is the activity being performed in and for?  Paragraphs [217] & [218] of his Honour’s judgment are well worth reading as to the various indicia within each question.

    House Rules

    All that came to be considered by the Arbitrator in Prince v Seven Network (Operations) Ltd [2019] NSWWCC 313.

    Ms Prince was a contestant in the 2017 series of Seven’s renovation competition, House Rules.  She was paid a weekly fee for the times that she was shooting the competition, and received pro-rata’d payments for ad hoc shoots (biographical compilations, the grand finale, etc).  She was exclusively engaged in the competition for a period of time, and was obliged to do as she was told by producers (including what to wear and what to say).  She had to do the work on the renovations herself, and to the extent that tradespersons were engaged, the cost of that was taken from the putative budget that Seven allocated to her renovations for that week.  Seven provided the tools for the works.  The contract she signed was clear, however – she was not an employee; she was a contestant.

    It became apparent that the producers were setting Ms Prince and her friend, Ms Taylor, up to be the season’s villains, and actively drove a wedge between Ms Prince and the other contestants.  This caused altercations (in one instance, physically) with the other contestants, and exposed Ms Prince to vitriolic abuse on social media.  Ms Prince alleged that Seven, in undertaking this, caused her a psychological injury.

    Seven’s insurer denied liability, maintaining that Ms Prince was not an employee.

    The Arbitrator found that Ms Prince was an employee whilst she was competing in the contest, and was entitled to relief for her injury.  He held:

    1. In my view, having regard to the relevant factors set forth in the authorities discussed above, the relationship between the applicant and respondent is appropriately categorised as that of employee and employer.
    2. In reaching this finding, I note the following:

    (a) The rate of remuneration was set by the respondent;

    (b) The applicant was an integral part of the show and essential to the very product and business in which the respondent was engaged;

    (c) The respondent had exclusive use of the applicant for every hour of every day during which the show was being filmed;

    (d) The respondent had the power to veto the applicant wearing certain clothes, and she was unable to wear any items which displayed business or brand names;

    (e) The rules of the show provided the applicant was a public face of the respondent’s business;

    (f) The respondent paid the applicant an allowance for her weekly expenses, paid on a pro rata basis;

    (g) The applicant took no risk as an entrepreneur in the running of her own business. Rather, she was paid a weekly rate which was set by the respondent;

    (h) The activity being carried out by the applicant (and Ms Taylor and the other contestants) was done for the benefit of the respondent’s business, rather than any enterprise of her own. Any goodwill arising from that activity vested in the respondent’s enterprise, rather than in the applicant;

    (i) The applicant commenced and completed tasks when directed by the respondent;

    (j) The respondent provided tools and materials for the applicant to use;

    (k) The applicant employed no one else to carry out the work for them, and to the extent she retained tradespeople, they were approved by the respondent and the cost of them was taken from a budget allocated to the applicant by the respondent.

    Take Aways

    As can be seen from the above, if there is one thing that almost never comes into play in these matters is the actual semantics – whether you call your employees exactly that (an employee), a contractor, a duck or even a rose (although we would probably recommend you don’t call your employee’s Romeo – that may get some attention under other policies…), the Court will not give any credence whatsoever

  • November 18, 2019 in Litigation

    What is disclosure and how can it affect my case?

    For participants involved in civil litigation in the Queensland, one of many important steps is that of ‘disclosure’. In broad terms, ‘disclosure’ refers to the process of exchanging documents which are relevant to the issues in dispute in a proceeding. This article briefly examines the obligations of ‘disclosure’ under the Queensland Court Rules (Uniform Civil Procedure Rules 1999 or “UCPR”)).

    When and how must disclosure be made?

    In general terms, disclosure must be effected by delivering a list of the relevant documents to the other party or parties involved in a dispute. The list of documents is an approved form under the UCPR and can be obtained from the QLD Courts website. If copies of any documents in the list are requested, you must provide (at your cost) a copy of that document to the party requesting within 14 days.

    The UCPR provides that in most cases, disclosure must be made within ’28 days after the close of pleadings’. ‘Pleadings’ are the court documents filed by the parties which define the issues to be determined by the Court. In many cases, the filing by the plaintiff of a ‘Reply’ marks the ‘close of pleadings’ for the purpose of the disclosure rules however this can vary in some cases.

    What documents must be disclosed?

    Rule 211 of the UCPR requires each party to disclose documents which are:

    (a) in the possession or under the control of the party; and

    (b) directly relevant to an allegation in issue in the pleadings; and

    (c) if there are no pleadings—directly relevant to a matter in issue in the proceeding.

    While on its face it appears a straightforward provision, there has been many cases decided on the application of the rule to particular situations. This article does not include a detailed review of those decisions so it is important that you apply the rules carefully to each individual case.

    When are documents under a party’s possession or control?

    With respect to limb (a):

    • ‘possession’ means “the physical or corporeal holding of the document pursuant to a legal right to its possession[1]; and
    • ‘control’ means that the party has the power to exercise discretion over the document. It does not necessarily mean exclusive control, and documents possessed or controlled jointly with another person must be provided.

    Possession will extend to documents on a party’s computer or in situations where the party has a right to possess the document (such as a document held at a location away from the person’s usual residence). Control includes the situation where a document can be accessed by request from a third party.

    When are documents directly relevant to an allegation in issue in the pleadings?

    This limb of the test (whether a document is ‘directly relevant’) is another which has been the subject of regular litigation. A document is directly relevant if it tends to prove or disprove an allegation in issue in the proceeding. This meaning came from a 1997 case[2] which been endorsed repeatedly by courts considering the meaning of this phrase in the UCPR.

    Exceptions to requirement to disclose

    The UCPR provides that the following documents do not need to be disclosed:

    (a) a document in relation to which there is a valid claim to privilege ;

    (b) a document relevant only to credit;

    (c) an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.

    Disclosure obligations are ongoing

    Rule 211(2) of the UCPR provides that the duty of disclosure continues until the proceeding is decided. This means that if a document comes into your possession or control at a later time, it must still be disclosed in accordance with the rule.

    Conclusion

    While the duty of disclosure might appear on its face as being straightforward or ‘common sense’, it has the power to win or lose cases. For this reason, it is vital that pleadings in any litigious matter be carefully drafted and understood to maximise the benefit of disclosure under the rules.

    [1]  Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2)  [2006] FCA 1001 at [53].

    [2] Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102

  • November 18, 2019 in Litigation

    Everything You Wanted to Know about Calderbank Offers

    Every lawyer has heard of them.  Most lawyers have delivered at least one.  Few lawyers understand what they are drafting and the consequences of getting it wrong.

    There are two central reasons why a party to litigation would deliver a Calderbank offer (or, as the author has endearingly heard them called, a “call to bank” offer) – either (1) they want to avoid the ever increasing legal costs that well run litigation incurs, or (2) they reckon they’re on a good run and want to set things up for a shot at indemnity costs when the judgment inevitably comes down in their favour.

    However, a properly crafted Calderbank offer, unless it involves simply the payment of a sum and a reciprocal release of liability (and even then), can be incredibly difficult to draft.

    Calderbank itself was an unusual case.  In Calderbank v Calderbank [1975] 3 All ER 333, a family law property case, following trial the husband was awarded £10,000 of an £80,000 pool, along with his costs of the action.  Complicating matters was that the wife had made an offer earlier in the action to give the husband one of the properties forming part of the matrimonial pool, a property which the trial judge valued at £12,000.  The wife appealed.

    On appeal, the Court found for the wife on the ground of appeal that the husband had unnecessarily prolonged the proceeding by refusing the offer.  The costs order was reversed in favour of the wife.

    However Calderbank itself does not stand for that proposition (namely, that the refusal of an offer that is not beaten at trial warrants a departure from the general rule of costs – that they follow the event); Calderbank stands for the proposition that a party can rely on an appropriately marked without prejudice communication (which ordinarily is inadmissible) for the purposes stated therein (for the purposes of bringing it to the Court’s attention on an application for a special costs order, either reversing the general rule, or improving the basis upon which such an order is assessed).

    So it must be seen that to class an offer as being a “Calderbank” offer merely means that it has been marked as “without prejudice save as to costs”.

    Calderbank v Chapter 9 Part 5

    A distinction must also be drawn between a Calderbank offer and a formal offer under the Rules of Court; in Queensland, a formal offer is made under Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 (Qld).

    A Calderbank offer can be made at any time and include anything that a party desires – so long as it meets the minimum requirements (discussed below).  Whereas, a formal offer can only be made in a “proceeding” as that is defined in r.352 of the Rules (in effect, only matters where pleadings are to be drawn – whether started by claim, ordered to proceed as if started by claim, or where the Court has ordered pleadings or other documents defining the issues).

    Minimum Requirements

    Formal offers under Chapter 9 Part 5 of the Rules are not the subject of this article – readers should carefully read Chapter 9 Part 5 and the key cases flowing from it – in particular, John Goss Properties Pty Ltd v Thiess Watkins White Constructions Ltd (in liq) [1995] 2 Qd R 591.

    Calderbank offers otherwise don’t need to do too much to pass muster – so long as they are clear and unambiguous, capable of easy comparison with the result of the litigation and everyone is on the same page that the offer will be used for the purposes of costs, the Court’s discretion will be enlivened.  An offer must also be left open for a reasonable period of time to allow the recipient to carefully consider the terms.

    Capable of Easy Comparison with the End Result

    As can be seen from Calderbank itself, the offer is only useful if the Court can easily compare the offer with the end result.  This point is also tied closely to the clear and unambiguous requirement – if an offer is ambiguous, then it’s certainly not capable of being easily compared with the judgment.

    A good example of this is Kemp v Ryan & Anor [2012] ACTCA 12.

    There, the offer contained a provision that interest would be paid at “20% in accordance with clause 21 of the contract until that money is paid”.

    The Court was unclear as to when the interest was to accrue from (clause 21 of the contract provided for interest to be paid on each progress payment, and there were several progress payments outstanding), and ultimately held that the offer did not meet the requirements of being a valid Calderbank offer.

    Yes, there is a difference between “Without Prejudice” and “Without Prejudice save as to Costs”…

    You were in a rush.  You had to get the email urgently to the other party.  You only marked the email “without prejudice”.  It’ll be right, won’t it?

    The Common Law has long recognised a distinction between something marked “without prejudice” and something marked “without prejudice save as to costs” – see Computer Machinery Co Ltd v Drescher [1983] 1 WLR 1379 per McGarry VC.

    There, the Vice Chancellor noted that the key point of difference was that the inclusion of “save as to costs” prevented the communication from otherwise becoming inadmissible on the question of costs – and, as we all know, a Court does not have any discretion to admit otherwise inadmissible evidence.

    That principle has even found a new home in some of the Evidence Acts – see s.131 of the Evidence Act 1995 (Cth).

    As was noted in Calderbank itself, the evidentiary rule established in that case will not apply if the other party is not on notice as to the intentions behind the offer – it isn’t a form over substance point, but the rules of procedural fairness apply such that the other party needs to clearly understand that the offer will find its way to a judge for the purposes of a costs application.  Expectations as to competence on the part of the other party are not enough: experience and case law tell us as much.  The intention that the offer will be used must be spelt out, either by expressing the communication as being “without prejudice save as to costs”, or by expressly stating that the communication will be brought to the attention of the Court on the question of costs (see, for instance, Naomi Marble & Granite Pty Ltd v FAI General Insurance Company Ltd [1999] 1 Qd R 518).  Best practice would dictate that both approaches be adopted.

    Effect of a Valid Offer

    Unlike a formal offer under the Rules, a Calderbank offer merely provides a basis for the Court’s discretion to depart from the general rule that costs follow the event on the standard basis.  The obvious extension of that is that it is near impossible to appeal a Court’s decision to make a special costs order off the back of a Calderbank offer (an error of the type discussed in House v The King (1936) 55 CLR 499 being required).

    It must also be considered who made the offer in what effect it has – a successful plaintiff who made the offer could expect indemnity costs to flow from the date of the offer (or, arguably, the date of rejection of the offer).  On the other hand, a defendant may not need to succeed entirely to get the benefit of an exercise of discretion – even if the plaintiff obtains judgment against a defendant, if the plaintiff should have accepted an offer from the defendant, then costs could be ordered to lay where they fell, or in exceptional cases, flow to the defendant.

  • November 18, 2019 in Litigation

    Class Actions in Queensland

    The burial of maintenance and champerty in QLD or their death Throes.

    Has the last dice been rolled by those opposed to the class (representative) action in Queensland?

    In a forlorn attempt to argue that by entering into a litigation funding agreement, one is committing a civil wrong and further, funding agreements are unenforceable in Queensland as contrary to public policy in Queensland, Gladstone Ports Corporation Limited opposed declarations sort to the contrary.

    The Representative Action regime was given a sound endorsement by the Supreme Court in Rockhampton last month.

    11 November 2016 the Civil Proceeding Act in QLD was amended to include part 13(a) which introduced class (representative) actions to QLD.

    The first of class actions was filed on ‘insert dated’ by our firm

    In the face of the dire predictions of an avalanche of Class Action litigation in Qld since its inception only 7 class have been filed in the Supreme Court of Qld.  The warnings of the large Defendant Law firms that outside the United States, Australia is the most likely place where a corporation can find itself on the receiving end of a class is simply nonsense.

    Justice Crowe provides a comprehensive history of the ancient torts of maintenance and Champerty in a lengthy decision delivered in the Supreme Court at Rockhampton on the 13.09.2019. Murphy Operator and ors v Gladstone Ports Corporation (4 [2019] QSC 228).

     In the face of submissions from the plaintiff that the torts of maintenance and Champerty no longer exist in common law of Australia and ought to be offered a decent common law burial, His Honour   declined to lower the casket and declined to make that determination on the basis that the introduction of part 13(a) of the Civil Proceedings Act 2011 permits class action proceedings to be funded by a commercial litigation funder.

    He rejected any suggested that ‘improper control’ is an element of the remnants of the torts of maintenance and champerty.

    The decision has been appealed.

    The ability of the Supreme Court to make any orders it considers just for the distribution of money  paid under settlement or paid into court is a significant power to ensure the class action litigation is conducted for and in the interest of the group members and not in the interest of a litigation funder.

    The power reposed in the Court, pursuant to s103R(2) to be determined what proportion of a  settlement fund is paid to the litigation prevails over any constitutive contractual contract with respect to remuneration of the litigation funder. To paraphrase his Honour’s reasons….. The public policy …. Is that it lays down a regime that permits class actions to be funded by a commercial litigation funder.

    What then are the consideration of modern public policy which result in conduct being characterised as maintenance and Champerty: –

    1. The traditional legal policy’s underling maintenance and Champerty content to apply although they must be substantially quailed by other considerations. Officious intermeddling in litigation is the mischief which is targeted and which results an impression of the person in which the action was brought
    2. The fact that an arrangement made be caught by the broad definitions of maintenance and or Champerty is not in itself sufficient to found liable.
    3. Countervailing public policies must be taken into account and especially polices in favour of ensuring access to justice.

    One can only hope that good sense prevails and the class action in Queensland be finally fully and comprehensively endorsed as a lawful and necessary access to justice for those by the CA.

    Let’s move on Queensland.

  • March 13, 2019 in Agricultural Law, Commercial Law, Litigation

    Native Title Blow for Primary Producers

    Primary producers who have battled drought and flood along with continually challenging economic conditions have been dealt yet another blow with a Federal Court ruling against a pastoral holder who applied to upgrade her tenure to freehold.

    Creevey Russell Lawyers Principal Dan Creevey said the refusal by Justice John Reeves in the Federal Court to grant an order by Sophie  Pate that native title did not exist over her cattle property near Carmila in North Queensland was “another nail in the coffin for primary producers” and should be appealed.

    “Just when you thought it can’t get any harder for primary producers, the Federal Court has cast a shadow over the ability to obtain a determination that native title does not exist over country, and therefore the ability to freehold that property,” he said.

    Mr Creevey said Ms Pate sought to upgrade her tenure to freehold and commenced a non-claimant application seeking an order native title did not exist over her property.

    “The application was not contested and there wasn’t a native title claim filed in response, with the applicant arguing the court could infer no native title existed on her land,” Mr Creevey said.

    “But Justice Reeves ruled even though the application was unopposed, the applicant must prove on the balance of probabilities that native title did not exist. He found to make an order that native title did not exist would be contrary to the objectives of the Native Title Act 1993.”

    Mr Creevey said the Reeves judgment has foreshadowed a view on the Native Title Act which may result in a failure of the application no matter how strong the evidence that native title does not exist.

    “The Court arrived at a conclusion in the Pate case that a negative determination of native title would prevent any future application for compensation against the State for loss of native title rights and would be contrary to the objects and purposes of the Native Title Act,” he said.

    “The concern arising from this is that someone, somewhere may have an unexercised native title claim but that granting an application for a determination that native title does not exist will forever prevent that right being exercised.

    “This is despite a section in the Native Title Act which provides expressly for the reservation of compensation claims against the state when non claimant application provisions are utilised.

    “At the moment the Court has only expressed a qualified view on the state of the law but if that view is confirmed, freeholding of any country where native title has not been extinguished will not be on option.

    “The opportunity to persuade the Court of a contrary view should not be missed but will require the joining of forces to promote a favourable outcome.”

    Further Enquirers, please contact our Litigation Team:

     

    Dan Creevey
    Principal

    Ph:       +61 7 4617 8777
    Email:    

  • February 7, 2018 in Agricultural Law, Litigation

    CREEVEY RUSSELL LAWYERS INVITES ALL TO SHATTERCANE CLASS ACTION INFORMATION EVENING IN WILLOW TREE– 13TH FEBRUARY 2018

    Leading legal firm Creevey Russell Lawyers will provide its first update for 2018 on its class action against Advanta Seeds Pty Ltd, previously trading as Pacific Seeds, on behalf of growers who used MR43 Elite sorghum seed anytime between 2010 and 2014 and have suffered a Shattercane infestation on their land due to the use of that seed.

    Creevey Russell Principal Dan Creevey said the firm will be hosting an information evening at Graze Willow Tree Inn on Tuesday, 13 February, 2018.

    “The latest position pleaded by Advanta Seeds in their defence is that the term “shattercane” is uncertain and as a result, they do not know and cannot know the meaning of the term,” Mr Creevey said, “It is disappointing to both me and the farmers that they now won’t even recognise the term shattercane as a known industry term.”

    Creevey Russell last year obtained funding to proceed with the class action for group members on a No Win, No Fee basis.

    The class action seeks to recover compensation for losses that sorghum growers are alleged to have suffered as a consequence of planting contaminated MR43 Elite sorghum seed.

    “Any person who has been affected by Shattercane after planting MR43 Elite seed should attend this meeting to see whether they might be able to benefit from this action,” Mr Creevey said. “The farmers have been suffering from the impacts of shattercane for a long time and I am proud to be able to fight for them”.

    The class action was initiated in Queensland but has also extended to include those sorghum growers in New South Wales who have also been affected.

    Shattercane is a noxious weed which if present in a sorghum crop competes strongly with the planted sorghum and results in a reduced yield. Once present on the land, it can spread vigorously quickly infesting and overrunning the land. It is also difficult to eradicate, often meaning that the land cannot be used commercially for a considerable time.

    Please contact 07 4617 8777 to register your interest in attending the information session, at Graze Willow Tree Inn, 18 New England Hwy, Willow Tree NSW 2339, from 5.30pm-7.30pm, on Tuesday, February 13, 2018. Refreshments will be provided.

    When: Tuesday 13th of February at 5.30pm

    Where: Graze Willow Tree Inn – 18 New England Hwy, Willow Tree NSW 2339

    RSVP: CLICK HERE or call 07 4617 8777

  • January 30, 2018 in Agricultural Law, Litigation

    CREEVEY RUSSELL LAWYERS INVITES ALL TO SHATTERCANE CLASS ACTION INFORMATION EVENING IN TOOWOOMBA – 6TH FEBRUARY 2018

    Leading legal firm Creevey Russell Lawyers will provide its first update for 2018 on its class action against Advanta Seeds Pty Ltd, previously trading as Pacific Seeds, on behalf of growers who used MR43 Elite sorghum seed anytime between 2010 and 2014 and have suffered a Shattercane infestation on their land due to the use of that seed.

    Creevey Russell Principal Dan Creevey said the firm will be hosting an information evening in their Toowoomba offices on Tuesday, 6 February, 2018.

    “The latest position pleaded by Advanta Seeds in their defence is that the term “shattercane” is uncertain and as a result, they do not know and cannot know the meaning of the term,” Mr Creevey said, “It is disappointing to both me and the farmers that they now won’t even recognise the term shattercane as a known industry term.”

    Creevey Russell last year obtained funding to proceed with the class action for group members on a No Win, No Fee basis.

    The class action seeks to recover compensation for losses that sorghum growers are alleged to have suffered as a consequence of planting contaminated MR43 Elite sorghum seed.

    “Any person who has been affected by Shattercane after planting MR43 Elite seed should attend this meeting to see whether they might be able to benefit from this action,” Mr Creevey said. “The farmers have been suffering from the impacts of shattercane for a long time and I am proud to be able to fight for them”.

    The class action was initiated in Queensland but has also extended to include those sorghum growers in New South Wales who have also been affected.

    Shattercane is a noxious weed which if present in a sorghum crop competes strongly with the planted sorghum and results in a reduced yield. Once present on the land, it can spread vigorously quickly infesting and overrunning the land. It is also difficult to eradicate, often meaning that the land cannot be used commercially for a considerable time.

    Please contact 07 4617 8777 to register your interest in attending the information session, at 580 Ruthven Street, Toowoomba, from 5.30pm-7.30pm, on Tuesday, February 6, 2018. Refreshments will be provided.

     

    When: Tuesday 6th of February at 5.30pm

    Where:   Our Toowoomba Offices, 580 Ruthven Street Toowoomba

    RSVP: CLICK HERE or call 07 4617 8777

     

    If you have Shattercane problems please contact Dan Creevey for a no obligation, free of charge discussion about the class action, please call on 07 4617 8777 or email