The Ver dict. Online contracts. Meet Linda Lavarch ART COMPETITION RESULTS THE YEAR IN REVIEW RIGHTS OF VICTIMS OF CRIME. With the Chief Jus tice

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1 The Ver dict Volume 1 THE YEAR IN REVIEW With the Chief Jus tice ART COMPETITION RESULTS The 2006 cal en dar winners Online contracts RIGHTS OF VICTIMS OF CRIME Meet Linda Lavarch NEW LOOK ISSUE! PLUS PARENTAL RESPONSIBILITY What does the future hold? WEB WEAVING Communication breakdown, practical points and much more!

2 State Legal Educators' Conference Fri day 9 June 2006, Royal on the Park, Bris bane Link ing you with the law Last year's con fer ence sold out! Mark your diaries! Top ics in clude: Queensland Drug Court Legal research workshop New national defamation laws. To ex press your in ter est, schools@qls.com.au

3 Welcome e...to the first of fi cial hard copy issue of The Verdict. It is with great ex cite ment that we release the first ever of fi cial hard copy print of The Verdict mag a zine. With its new look and layout I m sure you will enjoy The Verdict even more. Whilst The Verdict will still be avail able online to all sub scribers we will issue all 2006 subscribers with a hard copy for your class- room or library. The hard copy Verdict will continue in subse quent sub scrip tion years. In this issue we are very pleased to an nounce the winners of the 2005 SCES Cal en dar Art Com peti tion. Further details of the compe tition and winning entries can be found on page 24. Fol lowing the success of this compe tition, we are pleased to an nounce a new poster com pe ti tion for all our schools LAW WEEK For more infor ma tion, see page 13. We are also excited to intro duce a new com peti tion for our ter tiary edu cation readers. Turn to page 43 to find out more about our ter tiary student essay com peti tion. With great prizes to win, it may just be the com peti tion for you... In this issue we open with a re pro duc tion of the Chief Jus tice s end of year speech to the legal profes sion. In his speech at the Hilton Hotel on the 2 December 2005, Chief Justice de Jersey launched the new state-wide Solic- i tors...your experts in the Law cam paign. More infor ma tion on the campaign can be found on pages 8 and 9. For those who could not make the Trop ical North Queensland Legal Edu cation Con ference we have re pro- duced two papers pre sented on the day. Suzanne Hadley dis cusses the family law issue of paren tal re spon si bil ity, whilst barris ter Josh Trevino s paper, repro duced in two parts, dis cusses the Property Agents and Mot or Dealers Act. Fol lowing on from Josh is so lic i tor Angie Bart- lett s article on the most recent amend ment to the Act. We hope you enjoy this issue of The Verdict and remember we value your feed back, so let us know what you think! Contact us via schools@qls.com.au or fax Warmest regards Rebekah House Schools & Com mu nity Edu cation Su per vi sor Queensland Law Society SCES - Linking you and the Law! The Verdict The Ver dict Ed i tor Rebekah House Graphic De signer Steph a nie Brims Il lus tra tions Ste phen Irwin, SeaWitch Cre ations Man ag ing Ed i tor Sharon Burke Pub lished by the Queensland Law So ci ety QLS Schools and Com mu nity Ed u ca tion Ser vice Schools & Com mu nity Ed u ca tion Su per vi sor Rebekah House Schools & Com mu nity Ed u ca tion Of fi cer Clare Bouche Contributors to The Verdict express their own views and these do not necessarily reflect the opinions or views of the Queensland Law Society. The content of any part of The Verdict should not be construed as legal or professional advice. Vol The Verdict 1

4 What's inside What's in side FEATURES The Verdict's cover story! A year in re view The Hon. Chief Jus tice Paul de Jer sey looks at the year that was in a speech given at the QLS Christ mas Break fast...03 So lic i tors. Your ex perts in the law Take a look at the Queensland Law So ci ety's lat est mar ket ing cam paign...08 On line con tracts Da vid Ja cob son looks at the ba sics of on - line con tracts Rights of vic tims of crime Vic tims have the right to be treated with dig nity and have ac cess to the jus tice sys tem. Toby Niel sen ex am ines the law in re la tion to vic tims of crime and the com pen sa tion sys - tem...16 Linda Lavarch Rus sell Grenning chats to Queensland's At tor - ney-gen eral the first woman law yer in Queensland Par lia ment and the state's first female At tor ney-gen eral...20 SCES Art competition The re sults of the state wide Schools and Com mu nity Ed u ca tion Scheme art com pe ti tion...24 Pa ren tal responsbility Su zanne Hadley looks at what the fu ture holds for pa ren tal responsbility...30 Prop erty Agents & Mo tor Deal ers Act In the first part of Joshua Trevino's ar ti cle on the PAMD Act, he looks at the Act in re la tion to res i den tial conveyancing and re lated is sues...35 Amend ments to the PAMD Act 2000 With the pass ing of the Li quor and Other Acts Amend ment Bill 2005, there are var i - ous amend ments to the PAMD Act. Angie Bart lett looks at how these amend ments af fect res i den tial con tracts REGULARS Work experi ence...7 Practi cal point...15,27 Private eye...14 Commu ni ca tion break down...46 News...49, 59 Web weaving...50 Essen tial links...54 Legal glossary...56 Puzzle page The Verdict Vol

5 2005 The year in re view Speech given by Chief Justice de Jersey at the QLS Christmas Breakfast, Friday 2 December Vol The Verdict 3

6 year in review by the Hon. Paul de Jer sey AC The Hon. Paul de Jersey AC is the Chief Justice of Queensland and he has served as a judge of the Supreme Court of Queensland since Ihave in ter preted my topic The year in re - view to re fer to our year in the pro fes sion. I will ac cord ingly avoid dis cus sion of tsu na - mis, avian flu, ter ror ism - and for that mat ter antiterrorism leg is la tion - I was tempted to men - tion Gra ham Ken nedy, but lack the nec es sary wit: and only bores are bril liant at break fast. I need no en cour age ment to avoid what used to be called the Mor ris in quiry: am ple has been said of that al ready: did I say more than am ple? Our year in the law has been a mixture of comfort and discom fort, with however resil ience the abidingly evident feature. Let me talk for a few moments about the profes sion, and then the courts. The Queensland profes sion contin ues to grow quite dramat i cally. There are presently 6,396 solic i tors with practis ing certif i cates and 865 members of the Bar Associ a tion. That shows, you may be inter ested to know, an increase overall of 49.5% (47% for solic i tors and 52% increase for barris ters) over the last decade. And new entrants abound. So far this year, the Court of Appeal has admit ted as many as 530 new practi tio ners. Last year the figure was 690. Of course their desti na - tions are diverse: pure legal practice could not accom mo date regular injec tions of that magni tude. But for those enter ing practice, one hopes optimis tic expec ta tions are not dashed. I hear of some young practi tio ners soon losing heart and leaving the profes - sion, when subjected to the demands of firms driven to meet high overheads and display compet i tive edge. I not infre quently plead for balance and measure in profes sional life. Quite apart from the wellbeing of practi tio ners and their families, a client is gener ally not well-served by a solic i tor harried into a rut by profes - sional pressures. This last year saw the first full year of op er a tion of the Legal Pro fes sion Act 2004, and the new reg u la tory and dis ci plin ary regime it es tab lished. I note from the Legal Ser vices Com mis sion s report that it finalised 502 conduct com plaints fol low ing the com mence ment of the new leg is la tion. Only 1% of those were re ferred on to the Legal Prac tice Com mit tee, and only 3%, the more serious matters, to the Legal Prac tice Tri bu nal. In the years pre and post the new leg is la tion, the number of conduct com plaints rose by 153 to 818. That sug gests greater aware ness of the avenue for com plaint, and I suggest greater con fi dence in the pro cess ing of com - plaints. There has not been any notable in crease in the extent to which dis ci plin ary orders, fines, sus pen sions and strikings off has been nec es sary. This data con - firms the as sump tion I have pre vi ously felt and ex pressed: that Queens landers are for tu nate to have a legal pro fes sion of high ef fi ciency and ethical com mit - ment. The other di men sion of the new regime, though, is that with the es tab lish ment of the Legal Ser vices Com mis sion, and the court as the Legal Prac tice Tri bu - nal, (the dis ci plin ary body for serious cases), the public un doubt edly now has greater con fi dence in the fully in - de pend ent and ob jec tive treat ment of the com plaints they make. The year also saw the first full year of opera tion of the new Contin u ing Profes sional Devel op ment Scheme. Who have we here today? Don't you recognise me? I'm a reality TV pop star. Oh yes. Easy to recognise an Australian, idle 4 The Verdict Vol Spring 2005 The Verdict 4

7 year in review The compul sion to satisfy the require ments of the profes sional associ a tions has meant aston ish ingly large atten dances at confer ences, and not just those held at Noosa and Port Douglas. I note by the way the Queensland Law Society annual sympo sium has not yet been held at Cable Beach. Some annual events I have attended over recent years had become a tad listless: now they bristle with huge atten dances, not only at the confer ence venue, but at confer ence sessions. This is very refresh ing. So is the increased popular ity of the Law Society s Special ist Accred i ta tion Programme. I under stand, by the way, that listen ing to me this morning attracts, what is it... a tenth of a tenth of a CPD point? But you have not come to score points: neither have I. The year witnessed an ever expand ing commit - ment in the profes sion to pro bono work, with one firm even appoint ing a partner exclu sively devoted to this commit ment. The Queensland Public Inter est Clear ing House contin ued some very good work in this area, with a number of commend able projects - the homeless person s legal clinic, the refugee and immigra tion legal support project, a consumer law advice clinic and an admin is tra tive law clinic. There are now 27 firms of solic i tors and 29 members of the Bar affil i ated with QPILCH, and I commend them all. I think it is inter est ing that younger solic i tors, from large firms partic u larly, enjoy second ment to the pro bono programs, in that it exposes them to much greater diver sity in their work than their ordinary daily diet allows. It is regret ta ble the pro bono commit ment within the profes sion is not more widely acknowl edged. It is humbling to realise we are all part of such an endur ing insti tu tion. The Supreme Court will reach its sesqui cen te nary in the year I wonder (Attor ney) if The year witnessed an ever expand ing commit ment in the profes sion to pro bono work we will have a new court house by then? We were reminded recently, in fact on 5 Novem ber just past, that it is now 100 years since women were first given the right to be admit ted to the legal profes sion in Queensland. Our ceremo nial sittings, by the way, at which we celebrated that anniver sary, was attended by more than 300 people. Now the courts: well predict ably, unremarkably, reassur ingly, they have contin ued reliably to dispose of their relent less caseloads. The goal of the courts must be, in large measure, to secure predicability of outcome. A solic i tor should be able to advise the client at the office with reason able certainty as to the likely outcome of litiga tion subject always to findings on disputed facts. Likewise, the sentences imposed in the crimi nal court should be reason ably predict able - not too high, not too low. The public would gener ally, I think, applaud the courts for their predict abil ity rather than their startling surprises. What did Evelyn Waugh say - that he preferred people he knew well - they were totally predict able and boring so that he didn t have to listen to them. Most of the work of the courts passes without fanfare. This year some high profile work attracted a lot of public comment and analy sis, some of it destruc tively criti cal to the point where I became concerned over risk of erosion of public confi dence. Some quite intem per - ate criti cism was published, for example, follow ing the courts effec tive deter mi na tion of the Morris inquiry. But 5 The Verdict Spring 2005 Vol The Verdict 5

8 year in review I believe public confi dence in the courts of law survives undimin ished. The resil ience of this system is consis - tent with the public s confi dence that the right result will prevail, if ultimately. And as to the extent of inter fer ence on appeal, the rate of success on the part of appel lants remains relatively low, in the context of the vast amount of work daily accom plished in the courts statewide; and as a measure of that vastness, we should remem ber that 24 Supreme Court judges sit in 12 centres, 36 District Court judges in more than 40 and about 90 magis trates in more than 100. When I speak of predict abil ity and our work passing without fanfare, our contin ual progres sive refine ment of the processes should never the less be acknowl edged. This last year saw the produc tion of our Equal Treat - ment Benchbook, a guide to fair treat ment of all litigants whatever their diverse circum stances, avail - able on the courts webpage; we commenced a jurors counsel ling programme, a debrief ing from profes sion - als for jurors emotion ally disturbed by the experi ence; we estab lished at Brisbane a vulner a ble witness suite, for the giving of evidence remotely, for which the direc - tor-general kindly provided more than $400,000. And we contin ued with our public outreach programme: to illus trate, more than 400 members of the public attended the Supreme Court on Queensland Day - volun tarily. Inter est in the work of the courts is proba bly more acute than one is inclined to think. The courts webpage, for example, contin ues to be a focus of profes sional and public atten tion. Last year it regis tered more than 850,000 hits. Mind you, as judges, our role is not neces sar ily well under - stood, even by the suppos edly well informed. I heard of a cocktail party at Windsor, where a High Court judge was intro duced to the Queen Mother. What do you do?, she eventu ally asked. I am a judge, Maam." Oh, came the query, Of dogs or horses? There is no doubt that the best lawyers, the best judges, are those who continue growing after they join the profes sion, the court; and that is fostered by not allow ing the law to consume one s entire life. We should all strive to live and learn and to know what it is we do not know is incor rect (Hon W A Bablich: Reflec - tions on the Art and Craft of Judging ). In terms of being up-to-date and acces si ble, there is of course a bound beyond which a Judge must not go. The judge must in the end remain an author ity figure, not one of a pack. We must resist the tempta tion to foster undue famil iar - ity. On the other hand, some judges - of course in other juris dic tions - have trespassed beyond the bound by perversely effect ing an ignorance of pop culture, for example. In the end, it is a question of balance. Most judges would immedi ately grasp the point of an old cartoon published in Punch magazine, with the RAF chaplain propping up the bar: What I cannot stand about the Padre, says one pilot officer to another, is his unholier than thou attitude. The great est contem po rary challenge for our courts is levelled by the extent of self repre sen ta tion by litigants - currently about 30% of all cases in the Court of Appeal for example. That is a recent phenom e non. The long endur ing albatross remains, which is the inacces si bil ity of justice, partic u larly on the civil side with the cost of litiga tion and the general unavail abil ity of legal aid in that arena. We strive in the courts to stream line our processes to enhance acces si bil ity: the embrace of media tion and other mecha nisms of ADR, and the exten sion of technol ogy, through electronic set downs, e-chambers, the Internet gener ally, video record ing and so on, have gone a long way in that regard. But civil litiga tion in the Supreme Court never the less would remain finan cially beyond the capac ity of most people, and that is greatly to be regret ted. On behalf of the judges I should express grati tude for the cooper a tion of the profes sion in ensur ing that the courts dispose of their caseloads with efficiency, and as I have been saying, predict abil ity. I come finally to our host this morning, the Queensland Law Society. The Society has, over the last year, reshaped itself and redefined its relevance. Its struc ture is leaner, and its reach clearer. I partic u larly applaud its more pronounced regional commit ment. The Society is there to assist solic i tors in amazingly diverse circum stances through out the state, from the solic i tor who does the run with the Magis trates around the Indig e nous commu ni ties in the Cape, to the solic i - tor on the 27th level of the Ripar ian Plaza, not forget ting, in between, my civilized friends in Maryborough who close the doors at and go home for lunch with their spouses. The image of solic i tors was tarnished some time ago by negative public ity concern ing the handling of complaints, and by the serious ethical derelic tion of a small number of practi tio ners. But that is now, as I say, some time ago. Moving around the state and speak ing with those who inter act with the courts and the profes - sion, I am convinced the legal practi tio ners of this state are held in high regard. But what may not be suffi ciently under stood is the impor tance of harness ing expert legal services at an early stage, before a problem escalates. Some people, also, may too readily conclude their problem does not need expert involve - ment. Others may mistak enly believe a solic i tor need be involved only where millions of dollars are at stake. Experi ence shows that what may appear relatively straight forward is, not infre quently, decep tively so. I am accord ingly pleased today to launch the Society s statewide campaign, Solic i tors - your experts in the law. We will shortly see public ity by highways around the state, on Brisbane buses, in high traffic areas like Central Station. The people will be reminded that solic i tors are not only experts in the law, but are approach able, friendly and acces si ble human beings: male or female, youth ful or mature, and from a broad range of ethnic backgrounds. And the public will be reminded of the vast array of situa tions in which profes sional assis tance is not only warranted, but essen tial. It is with great pleasure, there fore, that I launch this, the Society s most recent progres sive initia tive. And in conclud ing now, ladies and gentle men, I wish you all a restful, reinvigorating and safe Christ mas season. 6 The Verdict Vol Spring 2005 The Verdict 6

9 Look ing for work experience options? Consider the SCES Work Experience Placement Program Ex pand ing the ser vices of fered to SCES sub scrib ers, the Queensland Law So ci ety (the QLS) is pleased to an nounce the com mence ment of the SCES Work Ex pe ri ence Place ment Pro gram. From July 1, 2005, the QLS will of fer place ments within our busy work ing of fices to stu dents in ter ested in gain ing ex pe ri ence in a le gal of fice en vi ron ment/mar ket ing de part ment. Place ments in this program will be pre dom i nately in the Pro fes sional De vel op ment De part ment of the QLS. En com pass ing five dif fer ent busi ness sec tions, in clud ing the Con tin u ing Le gal Ed u ca tion (events) sec tion, the Pro fes sional De vel op ment De part ment is an ex tremely busy of fice en vi ron ment, which will give stu dents ac cess to le gal of fice work, ad min is tra tion, mar ket ing and pro mo tions. Work ex pe ri ence place ments will be avail able for pe ri ods of 1 to 4 weeks (lon ger place ments and sum mer in tern ships are avail able upon ne go ti a tion with the Man ager, Pro fes sional De vel op ment). To reg is ter your school/stu dents' in ter est in par tic i pat ing in this program, please for ward an ex pres sion of in ter est via to Ms Sharon Burke, Man ager, Pro fes sional De vel op ment at s.burke@qls.com.au Please in clude in your ex pres sion of in ter est; School name & ad dress Staff Con tact name Di rect phone num ber of con tact per son ad dress of con tact per son Stu dent de tails (if known) Pro posed dates of place ment Vol The Verdict 7

10 Solicitors. your ex perts in the law The So lic i tors. Your Experts in the Law is a land mark mar ket ing and public ed u ca tion cam paign aimed at overcoming old-fashioned public perceptions about who solicitors are and what solicitors do. This highly visual cam paign was launched by The Hon our able Chief Justice Paul de Jersey on 2 De cem ber 2005 and highlights a number of common chal lenges in clud ing family issues, work place re la tions, issues of justice, conveyancing and con trac tual obligations. The central theme of the cam paign is to inform people that they don t need to handle these types of chal lenges alone by calling a so lic i tor they can access both support and expert advice. The cam paign also focuses on the di ver sity of the legal pro fes sion, highlighting that solicitors may be male or female, youth ful or mature, and from a broad range of ethnic back grounds. An im por tant aim of the cam paign is also to show that while so lic i tors are experts in all manner of legal areas, they are also ap proach able, friendly and ac ces si ble. Common to each image is the Queensland Law So ci ety s website for the find a so lic i tor cam paign at This site will assist members of the public needing legal as sis tance to quickly and easily access a so lic i tor, either by name, lo ca tion or area of spe ci al ity. 8 The Verdict Vol Vol The Verdict 9

11 online contracts Online Contracts by David Jacabson David was admitted to practice in Queensland in As a solicitor of the Supreme Court of Queensland he practices mainly in business and commercial law, banking and finance, technology The Age re cently re ported on an on line pric ing er ror by Dell: Dell s website in ad ver tently ad ver tised 250Gb hard drives for $A8.80 almost $A600 less than their usual price. News of the blunder quickly spread on Aus tra - lian internet forums, with hun dreds of cus tom ers at tempt ing to order the hard drives. One claimed to have ordered 50. By Tuesday, Dell had removed the hard drive from sale. Spokes man Paul McKeon said the $A8.80 price was a cler i cal error, and af fected cus tom ers could either have their money re funded in full or pay the dif fer ence. Many cus tom ers refused the offer when con tacted by Dell, be liev ing the deb it ing of their credit cards con sti tuted a con tract. This was backed up by the NSW Office of Fair Trading, which said Dell had a legal ob li ga tion to provide the hard drives at the agreed price ($A8.80)." Was there in fact a contract to sell at the adver tised price? This article will look at the basics of online contracts. What is an on line con tract and how does it re late to e-com merce? Electronic commerce ('commerce') is defined in the Best Practice Model 1 as meaning: "Commer cial activ i ties carried out through electronic networks includ ing the promo tion, market ing, supply, order or deliv ery of goods or services". 10 The Verdict Vol

12 online contracts There are two types of electronic commerce: firstly, contracts for physi cal goods and services and, secondly, contracts for electronic materi als (software, music, images, voice, text etc.). This basic distinc tion leads to a further division of e-commerce contracts: in the first type, the internet is being used as the medium to commu ni cate and sometimes to even conclude a contract, while in the second type the internet repre sents the place where the perfor mance takes place. In other words, in the first case the contract is concluded by using electronic means but the perfor mance takes place outside the electronic environ ment, in the second case the whole trans ac tion, from the moment an offer is made and until the obliga tion in question is performed, can be located on the same network. This distinc tion may be impor tant in terms of juris - dic tion. Issues you need to consider when deciding whether there is a binding online contract a) Can you cre ate an en force able con tract on line? It is not essen tial that a contract be in the tradi tional form of a written paper document with a handwrit ten signa ture for it to be enforce able. An online contract can be enforce - able provided its terms can be proven and it is not for an illegal purpose. The law relat ing to paper contracts substan tially applies to online contracts. b) When is an on line con tract en force able? In order for a contract to be enforce able you must first prove the existence of the contract. c) What ev i dence is needed to show there was a con tract? In the absence of a formal written contract, there can be a dispute as to the existence of an agree ment or the exact terms of agree ment. The terms of the contract must be specific and clear. An agree ment should state: 1. Each party's ob li ga tions, 2. What pay ments must be made and when, and 3. Pre cise de tails of the work that will be done or goods to be sold and when. It is advis able to keep a copy of the contract for your records, whether it be stored electron i cally or in paper form. d) How is an on line con tract formed? In order to form a valid, binding contract, the follow ing elements need to be estab lished: 1. Of fer 2. Ac cep tance 3. In ten tion to cre ate le gal re la tions 4. Con sid er ation e) When is an or der for goods or ser vices an or der? When is an order placed? When it is received or when it is accepted? When it enters a computer network or when it is drawn to the atten tion of a partic u lar person desig nated as the recip i ent? This is impor tant. If either the seller or the customer wish to withdraw from a deal it is neces sary to estab lish whether it is binding as that will estab lish their rights. Is an order effec tive from the time an on screen order is made or when a receipt for the order is given? What if the seller's order clerk is on holidays and the orders were not checked? What if there is insuf fi cient stock and the customer was not warned about delays? f) When is the con tract formed? Legal obliga tions are only incurred when a valid, binding contract is in existence. In order to deter mine whether a person has enforce able rights, it is neces sary to be able to deter mine when the contract came into existence. This will be especially impor tant if the contract contains cooling off periods or time limits. g) Where is the con tract formed? This is impor tant because this will deter mine where any legal action can be commenced. It is especially impor tant in the digital environ ment when contract ing parties may be in separate countries. In order to avoid any confu sion, the contract should specify in which juris dic tion the contract is formed. For example, if an Austra lian company wishes to sell goods on the internet, it should make it clear that the laws of Austra lia and in partic u lar, which ever state the company is based in, apply to the contract. If a company only wishes to deal (or are only legally able to deal) with residents of a partic u lar juris dic tion, it should say so. If it is promot ing a 'special offer' does it include Austra lian residents? Contract creation Of fer/in vi ta tion to treat Why is it impor tant for you to know when there is an offer or invita tion to treat? Whether an offer has been made or an invita tion to treat is funda men tal to the issue of whether a contract has been formed or not and when it is formed. Accep tance of an offer results in the immedi ate forma tion Vol The Verdict 11

13 online contracts of a contract provided there is an inten tion to create legal relations. Conversely, what may appear to be accep tance will be regarded as an offer if the initial state ment regard ing the product is actually an invita tion to treat. In the physi cal world, the display of goods on a store shelf is an invita tion to treat. The offer is made when a customer takes them off the shelf and offers to pay for them. Accep tance is commu - ni cated when the shopkeeper accepts money in exchange for the goods. If the goods are mispriced the shopkeeper can refuse to sell them at the wrong price. It there fore follows that in the online environ ment, adver - tis ing of goods, like goods displayed on a shelf, would be an invita tion to treat. By order ing the goods, the customer would be making an offer to purchase them. If a seller accepts the offer (eg. by taking money or credit card details or by sending a formal accep tance letter/message) then the contract will be complete without further notice to it, subject to any specific terms. When is post ing of in for ma tion on a web site about goods or ser vices, ei ther an of fer or an in vi ta tion to treat? Two funda men tal issues arise concern ing adver tis ing and market ing on the internet. Is it an ad or an offer? Normally, home page product descrip tions and adver tise - Le gal ob li ga tions are only in curred when a valid, bind ing con tract is in ex is tence. ments would be treated as invita tions to treat rather than offers to enter into contract. Does an by a purchaser or click ing on an 'agree' button consti tute an accep tance of an offer by the website owner or merely an offer to the website owner in response to the owner's invita tion to treat? It is the purchaser click ing on 'agree' who is actually making the offer. Over the internet custom ers can obtain for themselves precise infor ma tion as to avail able products and can customise them and simulate their perfor mance. This shows what is avail able, although it comes very close to being actually an offer to the individ ual concerned for a specific product. Er rors or gar bled of fer If a person does not receive an offer because of a techni - cal error or the message is garbled, then they cannot accept it. It is impor tant that confir ma tions be sent so there is no misun der stand ing. Whether there was a contract to sell at the adver tised price depends on whether there was an offer by Dell or an invita tion to treat whereby the offer is by the customer and subject to accep tance by the seller. Example So what about Dell's predic a ment discussed at the begin ning? Dell s website terms and condi tions clearly stated: No contract shall come into existence until the customer's order has been ac cepted by Dell and such ac cep tance has been re ceived by the cus tomer. The con tract shall be deemed to be con cluded at the time and place where such ac cep tance is re ceived by the cus tomer. Dell could strongly argue that it did not accept the wrong-price offers. Whether that term was brought to its custom ers atten tion is another issue however. To protect themselves against pricing errors (and to avoid confu sion by buyers) ecommerce provid ers should incor po rate the follow ing steps into their sales process: Make sure the terms and condi tions include provi sions such as: While we try and ensure that all prices on our website are accurate, errors may occur. If we discover an error in the price of goods you have ordered we will inform you as soon as possi ble and give you the option of recon firm ing your order at the correct price or cancelling it. If we are unable to contact you we will treat the order as cancelled. If you cancel and you have already paid for the goods, you will receive a full refund. Accep tance of your order and the comple tion of the contract between you and us will take place on dispatch to you of the products ordered unless we have notified you that we do not accept your order or you have cancelled it. Include an acknowl edge ment of the terms on the order page When the payment is complete, send an to the customer saying Thank you for your order. Include an order number and state: This is only an acknowl edge ment of receipt of your order which is being processed. This gives the seller a chance to spot pricing errors and cancel the order if the buyer won t pay the correct price. Conclusion As a matter of princi ple, it should not matter whether a contract is formed by signing a piece of paper or by electronic commu ni ca tion. However, achiev ing functional and techno log i cal neutral ity for online contracts is not simple. As a start ing point however, many of the laws relat - ing to paper contracts apply equally to online contracts. Dis claimer: No per son should rely on the con tents of this pa per with out ob tain ing le gal ad vice. It is only a gen eral state ment of cur rent is sues. The au thor is not re spon si ble for the re sults of any ac tions taken on the ba sis of in for ma - tion in this pa per nor for any er rors in or omis sions from this pa per. Notes 1 Building Con sumer Sov er eignty in Elec tronic Com merce: A Best Prac tice Model for Business, De part ment of Trea sury, May 2000, sury.gov.au/html/eco mmerce.htm. 12 The Verdict Vol

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15 people in the law Private eye with Catherine and Monique Abercrombie Sisters in the law Catherine Aber crom bie Solicitor, Brisbane Catholic Education Monique Abercrombie Solicitor, Suncorp General Insurance Where did you study law and when were you ad mit ted to prac tice? Catherine: QUT I was ad mit ted to prac tice in June Monique: I studied a com bined Bach e lor of In for ma - tion Tech nol ogy/bach e lor of Laws degree course (five years full time) at QUT. I was ad mit ted to prac tice in the Queensland Supreme Court in January Do you have any other de grees or qualifications? Catherine: Master of Laws - QUT. Monique: Apart from the com bined IT/Law degree, I grad u ated from Master of Laws in January Despite the fact that Catherine and I both vowed we d never study again after fin ish ing our initial degrees, we both decided in de pend ently of each other to study Masters on vir tu ally the same day - we ob vi ously just could n t get enough! What was your first job af ter be ing ad mit ted to prac tice? Catherine: So lic i tor in private prac tice, spe cial is ing in family law and estates. Monique: I took the op por tu nity to do a number of work ex pe ri ence place ments while study ing, one of which led to a part-time job as a re search clerk during my last couple of years study. I was for tu nate to com - plete my ar ti cles at the same firm and re mained em ployed there as a so lic i tor and then as so ci ate for four years before moving to Suncorp. Why did you study law? Catherine: As I child I loved Famous Five and Secret Seven books and Agatha Chris tie. I was in trigued by mys ter ies and solving them and thought this was what law would be like. Monique: Catherine and I are often asked that ques - tion given no one in our family history had studied law pre vi ously and yet both of us decided it was the career for us. For me the de ci sion was due to the in flu ence of two role models - one a family friend who was a so lic i tor and the other my best friend s father who is a bar ris ter. I re spected both of them in cred i bly for their honesty, in - teg rity and sense of justice. It was their in flu ence that led me to study law. 14 The Verdict Vol

16 What is your cur rent job? Catherine: In-house so lic i tor with Bris bane Cath o lic Ed u - ca tion, and mother of two de light ful boys. Monique: My current title is a mouth ful - manager Queensland legal strat egy and claims, CTP cus tomer de - vel op ment and injury claims, Suncorp General In sur ance. Es sen tially, I have moved away from pure law into a man - age ment role dealing with a number of aspects of com pul sory third party injury claims. What other jobs have you had in your ca reer? Catherine: Working in various private prac tices as an em - ployed so lic i tor and as so ci ate. Monique: I have had two em ploy ers since fin ish ing my law degree. After leaving private prac tice, I moved to Suncorp, ini tially as a so lic i tor in their in ter nal defence unit (IDU - not to be con fused with DUI, as was a common error made in jest) and then in a variety of man age ment roles before ac cept ing the chal lenge of my current role. What is the best thing about hav ing a law de gree? Catherine: Knowing that I achieved it and the many doors it can open in dif fer ent careers. Monique: Ver sa til ity. The skills you learn whilst study ing law are in valu able in a wide range of sit u a tions. Having a level head to assess nu mer ous op por tu ni ties, weigh up the pros and cons, ar tic u late them clearly and make a ra - tio nale de ci sion is always looked upon as an asset. Practical What is an easement? point people in the law What do you wish some one had told you when you where study ing law? Catherine: Prac ti cal ex pe ri ence of the law is in valu able. Get some work ex pe ri ence in a legal en vi ron ment or vol un - teer with one of the many worthy agen cies who provide free legal advice to the com mu nity. Monique: Whilst content is im por tant, the process and skills are es sen tial because content can be learned and re - searched whereas ef fec tively learned, prac ticed and finely tuned skills are in valu able eg. re search, problem solving, ar tic u la tion of ar gu ments, ad vo cacy. If you had n t stud ied law what do you think you d be do ing now? Catherine: Teach ing, which is kind of ironic given my current em ploy ment is ad vis ing within the ed u ca tion arena. Monique: If I d won lotto, trav el ling the world and drop - ping in on friends on various con ti nents. In the real world, pos si ble teach ing or pae di at rics (because I love chil dren al though the fact that maths/science weren t my fa vour ite sub jects prob a bly put a swift stop to that). Out side of law what are your fa vour ite past times? Catherine: Spend ing time with my chil dren and other family members. Monique: My main focus outside of work is family and friends. Just making time to catch up is often dif fi cult but always worth while. During 2005 I also em barked on a get fit regime and have enjoyed a lot more of the out doors, par - tic u larly playing with my nephews who are just ador able. An easement is the grant of a non- exclusive right in regard to the use of one piece of land for the benefit of another piece of land. The land burdened by the right is known as the servient tenement and the land that has the benefit of the right is the dominant tenement. Or, a right enjoyed by a person with regard to the land of another person, the exercise of which interferes with the ordinary rights of the owner or resident of that land. For an easement to be legally enforceable it must have: 1. A dominant tenement (the land having the benefit) which benefits from the easement, 2. A servient tenement (the land burdened by the benefit) which is subject to the easement, 3. The dominant and servient tenements are owned by different persons 4. And the easement must be recognised in law. Easements are divided into two distinctive types, positive and negative. Positive easements give the dominant tenement the right to make some positive use of the land burdened. These easements usually involve a right of entry onto the burdened land, or servient tenement, but may be limited to a right of activity, which would otherwise constitute a private nuisance (Tort Law). Examples of such easements are discharging water over the servient tenement from the dominant tenement. Fixing telephone or electricity wires to the servient tenement and entering onto the servient tenement in order to repair and maintain part of a building on the dominant tenement. Negative easements grant rights on the dominant tenement to restrict in some way the lawful use of the servient tenement. Negative easements however, do not confer a right of entry. A common example of negative easement is to restrict the height of a building on the servient tenement so as to obtain natural light for the buildings on the dominant tenement. Another is the right to lay foundations on the servient tenement in support of a building or more commonly a wall, on the dominant tenement. Vol The Verdict 15

17 victims of crime RIGHTS OF VICTIMS OF CRIME by Toby Nielsen Toby Niel sen is an as so ci ate with McInnes Wil son Law yers, Maroochydore. Toby has a Bach e lor of Laws and Di ploma of Le gal Prac tice. He was ad mit ted in 1995 and has worked ex ten sively in the area of crim i nal com pen sa tion. Introduction W ith the in ci dence of vi o lence over the fes tive sea son in clud ing some of the ugly in ci dents which have oc - curred at school ies week cel e bra tions it is per haps a per ti nent time to look at the rights which vic tims of crime have in Queensland. Vic tims have the right to be treated with dig nity and have ac cess to jus - tice. The law also pro vides for vic tims to be com pen sated for in ju ries suf fered at the hands of crim i nal el e ments. This ar ti cle will fo cus heavily on the com pen sa tion system. Victims' rights Who is a vic tim? The Crim i nal Of fence Vic tims Act 1995 (COVA) pro vides that a vic tim of crime is a per son who has suf fered harm from a crim i nal of fence: (a) be cause a crime was com mit ted that in volved violence committed against the person directly; or (b) be cause the per son is part of the im me di ate fam ily, or a de pend ant of a vic tim, per son has di rectly suf fered harm in ter ven ing to help a vic tim men tioned in (a). 1 What are the rights of a vic tim? Vic tims have the fol low ing fun da men tal rights: 1.The right to be treated with cour tesy, com pas sion and re spect in a way that is re spon sive to age, gen der, eth - nic ity, dis abil ity or any other spe cial need. 2 2.To have ac cess to the sys tem of jus tice. 3 3.Provided with information about ways to pre vent crime. 4 4.So far as pos si ble, the right to pri vacy in a crim i nal in - ves ti ga tion. 5 5.The right to have any prop erty taken as ev i dence re - turned as soon as rea son ably pos si ble. 6 6.Very im por tantly, the right to re quest an ex pla na tion from the Queensland Po lice Ser vice re gard ing the crim i nal jus tice pro cess in clud ing the pro cess by which ac cused peo ple are en ti tled to bail. 7 7.Pro tec tion from vi o lence and in tim i da tion from an ac - cused per son. 8 This can take the form of bail con di tion - ally pre vent ing an ac cused per son from con tact ing a po ten tial vic tim. 8.The wel fare of the vic tim must be a con sid er ation at all stages of the in ves ti ga tion and pros e cu tion of a crime. 9 9.To pro vide in for ma tion to pros e cu tors about the im - pact of the crime at the time of sen tence. This com - monly takes the form of a vic tim im pact state ment To be pro vided in for ma tion about the stage of in ves ti ga - tion of a crime and its pros e cu tion in clud ing the out - come of any pro ceed ings save where such dis clo sure is likely to jeopardise the investigation or prosecution The Verdict Vol

18 victims of crime 11.The right to be con sulted about any de ci sion to change the charge against the ac cused. This ef - fec tively means that vic tims should be con sulted when any 'plea bargain' type ar range ment is be ing en tered into be tween a pros e cu tor and an ac - cused. Compensation A large por tion of this pa per is des ig nated to crim i nal com pen sa tion, which is an area of ten over looked by victims. From 1969, Queensland has al lowed crim i nal com - pen sa tion as a sep a rate and dis tinct course of ac tion be tween a vic tim and a con victed per pe tra tor of a crime. Up un til 18 De cem ber 1995, com pen sa tion was al low able un der the pro vi sions of the Crim i nal Code 1899 (the Code). COVA is the ap pli ca ble leg is la tion for any in ju ries suf - fered from 18 De cem ber 1995 onwards. In this pa per we deal only with the com pen sa tion pay - able pur su ant to COVA due to the fact that ap pli ca tions for com pen sa tion un der the Code are now a rea son - ably rare oc cur rence and ap ply only to quite old of fences, usu ally those in volv ing of fences com mit ted against young children. What is the dif fer ence be tween the com pen sa tion sys tem and the com mon law sys tem? At com mon law a de lib er ate act caus ing phys i cal in ju - ries will give rise to a claim for dam ages for tres pass to the per son. 12 In some cir cum stances even where there is no phys i cal con tact, an ac tion for tres pass of the per - son will arise. 13 A com mon law claim for dam ages is as sessed in ac - cor dance with prin ci ples which al low plain tiffs to be com pen sated for pain and suf fer ing, med i cal and out-of-pocket ex penses, gra tu itous care and as sis - tance and most im por tantly, eco nomic loss. Such pro ceed ings usu ally also re sult in an or der that the plain tiff be re im bursed for his or her legal costs. COVA spe cif i cally re cog nises that vic tims of crime may pur sue a claim at com mon law. 14 On the other hand, as is set out be low in de tail, the amounts al low able for com pen sa tion are lim ited and a per son will not be en ti tled to claim for those dif fer ent heads of damage. Is it better to claim com pen sa tion or dam ages? A per son who claims dam ages has the po ten tial to ob tain a greater award than a per son who claims com - pen sa tion. A com pen sa tion award is capped at $75, The dif fi culty with a com mon law claim how ever is that any judge ment re ceived by the court is only en force - able as against the de fen dant. If the de fen dant does not have the abil ity to pay any judge ment then a plain tiff will not be able to re cover any damages. On the other hand, an ap pli cant for com pen sa tion may re ceive an ex gra tia pay ment from the Gov ern ment in cir cum stances where the de fen dant is un able to pay. This is dealt with fur ther below. Ul ti mately the de ci sion must be made on a case by case basis as to whether a victim seeks damages or com pen sa tion. Pre-requisites to right to apply for compensation Who is en ti tled to claim com pen sa tion? Not all vic tims are en ti tled to com pen sa tion. An ap pli - ca tion for com pen sa tion may only be made where the applicant: (a) has suf fered an injury caused by a personal offence com mit ted against them; (b) is a de pend ant of a de ceased whose death was caused in cir cum stances con sti tut ing mur der or man - slaugh ter; (c) is a surviv ing family member of a deceased killed in circum stances consti tut ing murder or manslaugh ter; (d) suf fered an in jury whilst help ing a po lice of fi cer to make an ar rest or pre vent an of fence. 16 A per son is not al lowed to bring an ap pli ca tion for com pen sa tion when they were a party to the com mis - sion of the rel e vant offence. What is an in jury? An injury is defined as, "a bodily injury, mental or nervous shock, pregnancy or any injury speci fied in the compen sa tion table or prescribed under a regula tion." 17 What is a per sonal of fence? A per sonal of fence is an in dict able of fence com mit ted against the per son of some one. This of course means that in ju ries caused through as sault, at tempted mur - der, dan ger ous driv ing or other such in dict able of fences would be cov ered. A per sonal of fence would not in clude men tal or ner - vous shock caused by of fences such as steal ing or fraud. Con vic tion on in dict ment For a vic tim to be en ti tled to claim, the per pe tra tor must be con victed on in dict ment of a crim i nal of fence. In dict able of fences in clude crimes of vi o lence such as mur der, man slaugh ter, as sault and rape. How ever, for an of fence to be "dealt with on in dict - ment" as is re quired un der COVA, 18 the per pe tra tor must be sen tenced in the Dis trict or Su preme Courts. If a mat ter is dealt with sum marily in the Mag is trates Court then a vic tim will be re stricted to a com pen sa tion award un der the Pen al ties and Sen tences Act 1992, which pro vides that the court may award com pen sa tion for per sonal in ju ries suf fered by a per son even when the per son is not the vic tim against who the of fence was com mit ted. 19 Usu ally such com pen sa tion is lim ited how ever. If a per pe tra tor is dealt with in the Mag is trates Court then there is no right to make a sep a rate ap pli ca tion to the court for com pen sa tion. Calculating compensation Sched ule of com pen sa tion The max i mum com pen sa tion which can be claimed is $75, As stated above, the max i mum amount must be re served for the most se ri ous cases. Vol The Verdict 17

19 victims of crime The court is re quired to as sign a per cent age of the max i mum to each of the in ju ries and Sched ule 1 to COVA sets out 36 dif fer ent in ju ries with the ranges for each. Ex am ples of the types of in ju ries and ap pli ca ble compensation are: Injury Bruis ing/ lac er a tion Loss or dam age to teeth Men tal or ner vous shock Gun shot or stab wound Loss of vision - one eye Loss of vision - both eyes Percentage of maximum Amount 1% 5% $750 $3,750 1% 12% $750 $9,000 2% 34% $1,500 $25,500 6% 40% $4,500 $30,000 70% $52, % $75,000 Where a per son suf fers men tal or ner vous shock as a re sult of a sex ual of fence ('ad verse im pacts'), they are en - ti tled to re ceive up to the max i mum com pen sa tion. 21 The courts have held how ever that men tal or ner vous shock must be more than a nat u ral hu man re sponse to the cir cum stances of crime, hor ri fy ing though such an ex pe ri ence might be. 22 As sess ment of com pen sa tion Only one or der for com pen sa tion can be made in re - spect of an in ci dent and there fore if a per son is the sub ject of a num ber of per sonal of fences aris ing from the same in ci dent, only one ap pli ca tion for com pen sa - tion may be made. 23 How ever, where a per son suf fers multiple in ju ries, the court may add the com pen sa tion with re spect to each in jury to ar rive at a to tal. There fore, if a per son were to be stabbed and beaten suf fer ing den tal in ju ries, he might re cover compensation of: Injury Allowable percentage of maximum Percentage in this case Amount Stab wound 2% 34% 30% $22,500 Dental injuries Bruising /laceration 1% 12% 10% $7,500 1% 5% 3% $2,250 To tal: 43% $32,250 How ever, the award of com pen sa tion may not ex ceed 100% of the max i mum of $75,000 even if there are mul - ti ple se vere in ju ries. There fore in cir cum stances where the per son in the above ex am ple also lost vi sion in one eye, the cal cu la tion of com pen sa tion might look like: Injury Allowable percentage of maximum Percentage in this case Amount Stab wound 2% 34% 30% $22,500 Dental injuries Bruising/ laceration Loss of vision (one eye) 1% 12% 10% $7,500 1% 5% 3% $2,250 70% 70% $52,500 To tal: 113% See be low 113% of the max i mum would math e mat i cally work out to $84,750, al though in those cir cum stances a court must re duce the amount to $75,000. Con tri bu tion The court in con sid er ing an ap pli ca tion for com pen - sa tion must con sider ev ery thing rel e vant to the in jury, in clud ing any be hav iour by the ap pli cant that di rectly or in di rectly con trib uted to the in ju ries. 24 For ex am ple, in the case of Hohn v King, 25 the Court of Ap peal re duced by one-third the applicant's award of com pen sa tion on the ba sis that the plain tiff suf fered in ju ries dur ing a drug deal in which he was will ingly in volved. In the case of Rid dle v Coffey 26 the vic tim, Rid dle, and the of fender, Coffey, had both been drink ing heavily at Coffey's home. Coffey asked Rid dle to leave and pro - duced a cane knife sug gest ing that he would use the knife if he needed to de fend him self. Rid dle left the pre mises but later re turned to con front Coffey re sult ing in an al ter ca tion whereby Rid dle was struck a num ber of times with the cane knife caus ing him in jury. The court ordered Riddle had in ju ries com - men su rate with an award of com pen sa tion of $57,750 al though that sum was re duced by 10% to al low for his con duct. Num ber of re spon dents A sin gle com pen sa tion or der may be made against more than one con victed per son. 27 The com pen sa tion may be ap por tioned be tween the sep a rate re spon dents or may sim ply be awarded on the ba sis that they jointly be re spon si ble for payment. Under no cir cum stances how ever may the com pen sa - tion or ders in re spect to sep a rate re spon dents add up to a to tal in ex cess of $75, Applying to the court for compensation Court ap pli ca tion An ap pli ca tion for com pen sa tion may be started by way of orig i nat ing ap pli ca tion. 29 The re spon dent/re - spon dents must be served per son ally with the orig i nat ing ap pli ca tion and any sup port ing ma te rial The Verdict Vol

20 victims of crime It is im por tant to re mem ber with re spect to the ser vice of pris on ers that ser vice must be ef fected on the pris on - ers' lit i ga tion guard ian or oth er wise the per son in charge of the prison where the pris oner is im pris oned. Ac cord ingly, ser vice would nor mally be ef fected through Queensland Cor rec tive Ser vices. 31 It is im por - tant if the pris oner's es tate is be ing man aged by the Pub lic Trustee to en sure that their writ ten con sent is ob - tained. 32 An ap pli ca tion for com pen sa tion must be sup ported by rel e vant med i cal and other ev i dence. The courts re - quire that any med i cal or other ev i dence is given by ap pro pri ate ex perts giv ing ev i dence only within their area of ex per tise. 33 An application for compensation must be supported by relevant medical and other evidence. Time lim its for ap pli ca tion An ap pli ca tion for com pen sa tion un der COVA must be made: (a) within three years af ter the end of the con victed person's trial; or (b) if the vic tim is a child, within three years of their 18th birth day; or (c) out side that pe riod only with the leave of the court where a ma te rial fact of a de ci sive char ac ter did not be - come known to the vic tim un til a later time. 34 Applications to the State Government Where of fender can not pay Where a judge ment has been ob tained for com pen - sa tion, in the first in stance it is nec es sary for the vic tim to seek pay ment from the per pe tra tor. If the per pe tra tor has as sets they can be seized and sold. If how ever the per pe tra tor has no abil ity to pay then an ap pli ca tion may be made to the De part ment of Jus tice and At tor - ney-gen eral for what is called an ex gra tia pay ment. Ex gra tia is Latin for 'act of grace'. This means that the Queensland Gov ern ment may pay to the vic tim the amount of the judge ment al though it does not have to. 35 Pay ments are made from the Gov ern ment's con sol i - dated fund and the Gov ern ment has the right to re cover the amount of any ex gra tia pay ment from the per pe tra - tor. 36 Other cir cum stances where an ap pli ca tion can be made for an ex gra tia pay ment. Nor mally com pen sa tion will only be pay able where a per son is con victed on in dict ment of a per sonal of - fence. How ever, where: (a) a per son has sus tained an in jury as a re sult of a per sonal of fence; and (b) the of fender was found not guilty on the ba sis of in - san ity; or (c) the of fender was not charged due to insan ity; or (d) the of fender is under 10 years old and there fore is not crim i nally re spon si ble for any ac tions; or (e) the of fender can not be iden ti fied or found and the ac tion caus ing the in ju ries would have re sulted in a per - son be ing tried on in dict ment; or (f) a per son is in jured whilst as sist ing a po lice officer in the exercise of his duties; then an ap pli ca tion may be made di rect to the State Gov ern ment for an ex gra tia pay ment. 37 The ap pli ca tion is sub ject to the same as sess ment pro cess de tailed above ie. com pen sa tion is lim ited to $75,000. Other amounts payable to victims Where a per son is killed in cir cum stances con sti tut ing mur der or man slaugh ter, fam ily mem bers are en ti tled to: (a) re im burse ment for fu neral ex penses up to a max i - mum of $4,000; and (b) up to $2,000 for ex penses re lat ing to dam age caused in the course of the crime; and (c) in the event that the fam ily mem ber is a fi nan cial de pend ent a fur ther pay ment of up to $30, Summary Queensland law re cog nises that as a so ci ety it is ap - pro pri ate for the Gov ern ment to do ev ery thing pos si ble to en sure that vic tims of crime are kept in formed and treated with dig nity. As Charles Macklin said: "Good laws are the off spring of bad ac tions." 39 Cer tainly, this is the case in Queensland, which has cod i fied the rights of the vic tims of crime and re cog nised the im por tance of pay ing them com pen sa tion for injuries suffered as a re sult of crim i nal of fences. The sys tem re cog nises it is im por tant for crim i nal of fend ers to be held re spon si ble for the in ju ries caused to vic tims whilst on the other hand ac knowl edg ing that where crim i nals are un able to ap pro pri ately com pen sate vic tims the gov ern ment should step in to en sure that ap pro pri ate com pen sa - tion is paid. Notes 1 Sec tion 5 of COVA. 2 Sec tion 6 of COVA. 3 Sec tion 7 of COVA. 4 Sec tion 9 of COVA. 5 Sec tion 10(1) of COVA. 6 Sec tion 10(2) of COVA. 7 Sec tion 10(4) of COVA. 8 Sec tion 12 of COVA Turn to page 59 for a full listing of the notes for this article. Vol The Verdict 19

21 people in the law L indaa Lavarch h A history of firsts, an agenda for justice by Rus sell Grenning Rus sell Grenning is the Pub lic Affaris Ad vi sor of the Queensland Law So ci ety. Some where in Bris bane no names, no pack drill is a crusty old male prac ti tio - ner who once told a bright young so lic i - tor and new mum that she could n t pos si bly be a real law yer and only work part time so there had to be a part ing of the ways. Can you imag ine the im pu dence of the girl want ing to work part- time just to do baby car ing sorts of things? It did n t seem to af fect her ca reer much Linda Lavarch is now At tor ney-gen eral and Min is ter for Jus - tice and, in ci den tally, still a mum and a wife. As it hap pens, she was sworn in on the same day as So ci ety Pres i dent Rob Da vis be gan his term and co-in ci den tally, they both went to Mi ami High School on the Gold Coast. Of course, he was ahead of me by a few years, she said which nice chap our President is and all of that really didn t need to be said. I d done a bit of re search prior to our chat and I could only won der at the jour ney of this woman from a work ing-class back ground who had no ad van tages handed to her as a child, who had bat tled out dated per cep tions, prej u dice and bias and who had cre ated po lit i cal and le gal his tory. She greeted me warmly and apol o get i cally be cause of the de lay in my ap - point ment and, styl ishly at tired, be trayed no sign of ha rass ment let alone pres sure. The clut tered desk, the half-fin ished cuppa and the un touched bis cuits sug gested it was a busy day with a big agenda. Linda Lavarch s child hood or least her ed u ca tion was rather frac tured as the fam ily moved about and she at tended nine dif fer ent schools in Bris bane, Tas - ma nia and the Gold Coast al though she cheer fully ad mit ted to en joy ing the ad ven ture of be ing the new kid in class, meet ing new peo ple and get ting to learn about their lives. She did n t know then she was learn ing the first les son in pol i tics. In those days, most girls cer tainly most work ing class girls would have left school at grade 10 but her place in his tory was born by the de ci sion of the then Whitlam La bor Gov ern ment in Can berra to abol ish uni ver sity fees. I knew that I wanted to go to Uni ver sity and my first choice was so cial work and then sci ence but I didn t get them and a friend in tro duced me to a lawyer and 20 The Verdict Vol

22 people in the law they both per suaded me that was the course so I en - rolled in 1977 in the first intake of the then Queensland In sti tute of Tech nol ogy Law School, she said. It was the be gin ning of a journey which is still in its early years. Uni ver sity courses might have been free but stu - dents still had to live and Linda Lavarch had to take on as many as four dif fer ent part-time jobs to pay her way. Sell ing cof fee and hotdogs at the trots, work ing in a bak ery and a phar macy and baby sit ting made for a tough sched ule and, along the way, Linda Lavarch did some trav el ling and, in her words, bal anced study and the need to work. She grad u ated in 1985 and was ad mit ted in In many ways the law found me, she said sim ply. Apart from study and those bruis ing work de mands, some other less than mi nor things hap pened in her life around this time in clud ing join ing the ALP, get ting mar ried and hav ing her first child. She had no ticed a nice young man who caught the same train most morn ings and who was a fel low law stu dent at QIT and he had cer tainly no ticed her - but nei ther sum moned the nerve to say hi. Linda Mor ri son, as she was then, had been out - raged like so many of her gen er a tion by the heavy-handed tac tics of the Bjelke-Petersen State Gov ern ment, ap palled by the de ci sion of the Fra ser Lib eral Fed eral Gov ern ment to re im pose uni ver sity fees and gen er ally fired up with a youth ful en thu si - asm to right wrongs and fight in jus tice. In 1982 she joined the Petrie-Lawn ton Branch of the ALP and the first per son she met there was that nice young man from the train, Mi chael Lavarch. Two years later they were mar ried and their first child - now 19 and a law stu dent at QUT was born early as she was try ing to com plete her de gree and while still in hos pi tal with her new baby, Linda Lavarch was writ ing her fi nal as sign ment. Hardly had they set tled down with Linda work ing at a Redcliffe firm and Mi chael with a Strath pine firm, he won ALP en dorse ment for the Fed eral elec tor ate of Fisher for the 1987 elec tion. He they did n t ex - pect him to win but he went out cam paign ing and Linda took over his job at the Strath pine firm and, against all ex pec ta tions, Mi chael Lavarch was elected. He was 26. I kept on work ing and be ing a mum and, of course, be ing the spouse or part ner of a pol i ti cian is al most a full-time job in it self, she re called. Life, al ready busy, was about to get busier. Her work as a sub ur ban so lic i tor deal ing with ev ery con ceiv able mat ter again fired her so cial con science when Linda Lavarch was faced with the prob lem of try ing to find so lu tions for low in come cli ents with se - verely lim ited means. These cli ents ob vi ously did n t have un lim ited re sources to fight in our ad versarial court sys tem so early on I be came a dis ci ple of al ter - na tive dis pute res o lu tion and com mit ted to Le gal Aid, she said. To hone and di rect her nat u ral peo ple skills, she took an ADR course at Bond Uni ver sity which has proven to be im mensely valu able both pro fes sion ally and in the de mand ing world of pol i tics. And Linda Lavarch learned some thing else about the law in those early days at the coalface You could think that you had been suc cess ful - that you had won for your cli ent - but the look on the cli ent s face said the op po site and that the cli ent did n t be lieve that jus tice had been de liv ered, she said. Around twenty years ago, women practi tio ners were more or less expected to go into family law the real hard stuff like crimi nal law was consid ered by many tradi tion al ists to be wholly inappro pri ate for the delicate female sensi bil i ties and Linda Lavarch who hadn t got as far as she had then by being stereo typ i - cal, predict ably rebelled against that expec ta tion. Yet she grav i tated to it and ad mit ted that it matched her per son al ity and abil i ties. It had noth ing to do with my be ing a woman, she said. With the birth of her sec ond child, a girl, in 1991, the de ci sion was taken to work part-time al though even Linda Lavarch s de scrip tion of part-time work left me feel ing ex hausted. She plunged into the world of Le - gal Aid, chair ing fam ily con fer ences to try and re solve fam ily dis putes. Come 1993, hus band Mi chael was mak ing his own his tory by be ing ap pointed At tor ney-gen eral in the Keating Gov ern ment. Linda Lavarch by now was work ing as an ad vi sor to State At tor ney Gen eral Dean Wells in the Goss Gov ern ment on Le gal Aid and Com mu nity Le gal Cen tres and while she and Mi chael are their own peo ple there were clear po ten ti al i ties for al leged con flict of in ter est so she quit and re turned to pri vate prac tice, the study of psy chol ogy and chair - ing fam ily con fer ences for Le gal Aid. I knew that I wanted to go to uni ver sity and my first choice was so cial work and then sci ence but I did n t get them and a friend in tro duced me to a law yer and they both per suaded me that was the course... In 1996, the world for the Lavarch fam ily came to a shud der ing crash with the de feat of the Keating Gov - ern ment and Mi chael Lavarch lost his own seat and with the al most si mul ta neous de feat of the Goss State Gov ern ment, the op por tu ni ties to work in pol i tics and pol icy mak ing dried up over night. Mi chael re turned to pri vate prac tice then got back on the Can berra merry-go-round when he signed up as Sec re - tary-gen eral of the Law Coun cil and, sud denly in 1997, an op por tu nity arose for Linda Lavarch.The Labor MP for the State elector ate of Kurwong bah their local area re signed due to ill-health. It was tre men dously flat ter ing to be asked by lo cal party mem bers to con sider seek ing en dorse ment Vol The Verdict 21

23 people in the law and there were fam ily dis cus sions about it but, in the end, we all real ised that this was a once-in-life time op - por tu nity so I grabbed it, she said. With daugh ter in grade one and son just start ing high school, the tim ing was n t ex actly per fect but Linda Lavarch knew more than most about pol i tics and what it meant. She went on to win the seat and kept alive the hope of Op po si tion Leader Pe ter Beat - tie to take the ALP back to Gov ern ment. With a quiet de ter mi na tion and solid ground work she climbed the pro mo tion lad der with the re turn of the ALP to Gov ern ment in 1998 chair ing im por tant com mit tees, serv ing as a Par lia ment Sec re tary and learn ing the ropes of Gov ern ment. Yet, per haps oddly, Linda Lavarch did n t give much thought to her own place in his tory. It was n t un til she was to speak on the Le gal Pro fes sion Bill in 2003 that she was told she was ac tu ally the first woman law yer elected to the Queensland Par lia ment. She didn t believe it Every body says there are too many lawyers in Parlia ment and she had the Parlia men tary Library confirm it and they did. That speech was mea sured, in formed, fair and ac tu - ally paid trib ute to the Law So ci ety for its cooper a tion and con struc tive con tri bu tion to the re form de bate. Linda Lavarch said then, Coregulation ide ally will see the Law So ci ety and Bar As so ci a tion in ves ti gat - ing and pros e cut ing is sues of pro fes sional mis con duct and be hav iour from mem bers of that pro - fes sion. However, it is es sen tial that such a role is over - sight ed by an in de pend ent au thor ity which also has the ca pac ity and the ob li ga tion to un der take its own in ves ti ga tions and pros e cu tions in ap pro pri ate cases. Dryly not ing in that speech that law yer bash ing is a long-prac tised rit ual, Linda Lavarch spoke up for the pro fes sion in a way that put to shame so much of the near-hys ter i cal pop u list rants of other pol i ti cians and the me dia say ing the sen sa tion al ist re port ing we have come to ex pect hardly pro vides a bal anced ac count of the re al ity of the so ci ety s ac tions in deal - ing with com plaints. We ranged over a few of the philo soph i cal things that law yers think about and which At tor neys-gen eral have to ac tu ally have se ri ous ideas about and Linda Lavarch switched from easy and bright af fa bil ity to thought ful al most in tro spec tive re flec tion. Her words were care ful and dip lo matic. Mandatory minimum sentences? The ju di ciary should have the wid est pos si ble dis - cre tion and while there are cer tain of fences where there are min i mum sen tences, I don t ac cept that there should be some sort of a whole sale ap proach. I don t ac cept that min i mum man da tory sen tences per se are the an swer to tack ling crime. I don t want to tie the hands of courts - I have the highest respect for the ju di ciary and its in de pend ence and the work they do as sess ing the facts and reach ing de ci sions - but from time to time there may be circums tances where a rea son able person would con sider that the pun ish ment should better fit the crime. Cer - tainly, rea son able people have that ex pec ta tion. One of her heroes is for mer High Court Jus tice Mary Gaudron who was the first woman QC in New South Wales, the first woman on the NSW Bar Coun cil, the first woman to be a State So lic i tor-gen eral and the first and only woman High Court Jus tice. Back in 2003, she said in Par lia ment when speak ing about her hero, Let us en sure that her lead is sim ply not an ab er ra tion and that we con tinue to see women fill se - nior po si tions in our courts, cab i nets, cor po ra tions and com mu ni ties. An nounc ing her ap point ment, Pre mier Pe ter Beat tie noted that this year is the cen te nary of the Le gal Prac - ti tio ners Act 1905 which al lowed women to prac tice as bar ris ters and so lic i tors in Queensland for the first time and Linda Lavarch is com mit ted to en hanc ing the role of women in the pro fes sion hav ing spo ken about the mat ter in Par lia ment only in April. She noted the prog ress that had been made re - cently, in 1990, there was not a sin gle woman on the Dis trict or Su preme Courts in this state, nor was there a sin gle woman QC. By the end of last year, the state had seven women on the Su preme Court, five were Dis trict Court judges and there were twenty women mag is trates and, fur ther, Prob a bly the most strik ing shift has been in the study of law. At pres ent, nearly sixty per cent of all law stu dents in Queensland are women. That speech, only some two months be fore her swear ing in as At tor ney-gen eral and Min is ter for Jus - tice, ended with the sal u ta tion Happy cen te nary to all Queensland women law yers! They and all of us can be sure Her Maj esty s At - tor ney for Queensland will be say ing that again and this time with au thor ity and not just with pas sion. 22 The Verdict Spring 2005

24 DVDs, movies books & more! NEW RESOURCES! The Schools and Community Education Scheme (SCES) is pleased to announce these new additions to the SCES Resource Library; DVD MOVIES 12 Angry Men (Rated G) Presumed Innocent (Rated M15+) The Rainmaker (Rated M15+) The Juror (Rated MA 15+) Witness (Rated M15+) The Man Who Sued God (Rated M15+) A Time to Kill (Rated M15+) Philadelphia (Rated PG) The Verdict (Rated M15+) Conduct Unbecoming (Rated M15+) Erin Brockovich (Rated M15+) Runaway Jury (Rated M15+) VIDEOS Lawyers Education Channel Various. Pt 1 Age Discrimination Act 2004, Pt 2 Super Splitting, Pt 3 Director s Liability for Insolvent Trading. Video 85 mins AUDIO Cds Sound Education in Family Law. Pt 1 Summary & Family Law Report, Pt 2 Case Watch, Pt 3 Lump Sum Workers Compensation & Damages Awards mins Sound Education in Family Law. Part 1 Summary & Family Law Report, Part 2 Case Watch, Part 3 Divorcing the Family Trust mins Available to all SCES subscribers (full service) by contacting schools@qls.com.au. Please give your name, organisation and address, along with the title you wish to borrow. More titles can be found by logging into the subscription service at TEXTBOOKS Laying Down the Law Islamic Law & Society Australian Legal Institutions Principles, Structure & Organisations The Immigration Kit A Guide to Preparing & Presenting Assignments Psychology & the Law Criminology A Sociological Introduction SEMINAR DVDs Negotiation Skills Seminar (QLS Young Lawyers Series) Basics of Conveyancing Seminar (QLS Legal Supprt Staff Series) Part 1 Basics of Conveyancing Seminar (QLS Legal Support Staff Series) Part 2 Residential Conveyancing Seminar (QLS Conveyancing Series) Part 1 Residential Conveyancing Seminar (QLS Conveyancing Series) Part 2 Wills & Enduring Powers of Attorney Seminar (QLS Young Lawyers Series) Family Law Act 1975 New Provisions Seminar (QLS Newsflash Series) Exploring Career Pathways Seminar (QLS Young Lawyers Series) Jurisdiction of the Court Seminar (QLS Legal Support Staff Series) New Summary Offences Legislation Seminar (QLS Newsflash Series) Commercial Negotiation Workshop (QLS Young Lawyers Series

25 art competition art competition Competition a success! Con tin u ing in our fo cus of link ing stu dents with the law, the Schools and Com mu nity Ed - u ca tion Scheme has re cently been run ning a State wide Art com pe ti tion for pri mary and high school stu dents. With the theme The Law in Your Com mu nity, stu dents were asked to sub mit artworks of any me dium to the So ci ety, in the hopes of win ning ex cel lent prizes as well as pub li - ca tion of their art work in the 2006 QLS cal en dar. The Profes sional Devel op ment Depart ment Office was flooded with entries, which were as varied in theme as they were in artis tic profi ciency! With collages, diora mas, paint ings, linocuts, photos and papier mache models focus ing on a broad range of topics includ ing Stranger Danger, Safety House, the differ ent emergency services, the courts, bird smuggling, traffic offences and drink driving each submis sion brought much pleasure to the staff in the Profes sional Devel op ment Depart ment. With hundreds of entries received, our three judges (Ms Robyn Meadows of the Queensland Law Founda tion, Mr Stephen Irwin of Seawitch Creations and Ms Rebekah House, Schools & Commu nity Educa tion Scheme) had an extremely diffi cult time choos ing our winners. But in the end, selec tions were made based on a mixture of cre ativ - ity, orig i nal thought and ar tis tic ability. The 2006 Queensland Law Society Calen dar will highlight all of our winning entries, includ ing our overall winning entry from 7-year-old Courtney from Harris ville State School. Courtney s paint ing of a Safety House will feature as the cover of the new QLS Calen dar. The QLS would like to congrat u late all those children who partic i pated in the compe ti tion for their excit ing and artis tic efforts. Many thanks also to the Depart ment of Educa tion and the Arts for their support and promo tion of this compe ti tion. Don't miss a selec tion of art compe ti tion entries on pages 28 and 29. Compe ti tion winner Courtney (centre) and fellow prize winners Shanice (right) and Emily (left), with their art teacher Jenny Hall (centre) and QLS corpo rate services direc tor Peter Lyons and profes sional devel op ment manager Sharon Burke. SCES Art Compe ti tion Winners 2006 Division Name School Place Overall Winner Courtney Harrisville State School (SS) (Yr 1,2) Junior Primary Years 1 & 2 Shanice Harrisville SS 2nd Paige Abercorn SS 3rd Overall winner & First Junior Primary Bryton Ithaca Creek SS Highly Com mended Brayden Abercorn SS Highly Com mended Harry Harrisville SS Highly Com mended Joshua Harrisville SS Highly Com mended Special Ed u ca tion Nyah Virginia SS 1st Special Education Middle Primary Years 3 & 4 Arron Virginia SS 1st Special Education Sarah Virginia SS 1st 24 The Verdict Vol Vol The Verdict 25

26 art competition Division Name School Place Middle Primary Years 3 & 4 Senior Primary Years 5-7 Junior High Years 8 & 9 Senior High Years Madeline Wowan SS 2nd Jessica Kelvin Grove SS 3rd Allyssa Harrisville SS Highly Com mended Hayley Harrisville SS Highly Com mended Daniel Vir ginia State School Highly Com mended Kasey-Lee Vir ginia State School Highly Com mended Davlyn Ithaca Creek SS Highly Com mended Rachael Kelvin Grove SS Highly Com mended Emily Abercorn SS Highly Com mended Hannah Cranbrook SS Highly Com mended Breen Ithaca Creek SS 1st Alexandra Buranda SS 1st Jackson Abercorn SS 2nd Emily Harrisville SS 3rd Clayton Murgon SS Highly Com mended Gemma Wowan SS Highly Com mended Jason Strath pine West SS Highly Com mended Nicholas Wowan SS Highly Com mended Nathan Glad stone West SS Highly Com mended Breanna Buddina SS Highly Com mended Elle Murgon SS Highly Com mended Nathan Harrisville Highly Com mended Samuel Brisbane SHS 1st Corey Tannum Sands SHS 2nd Leigh Tannum Sands SHS 3rd Kirsty Tannum Sands SHS Highly Com mended Kayla Tannum Sands SHS Highly Com mended Louise Wruck All Hallows School 1st Joanne Blaszczyk All Hallows School Highly Com mended Jessica Quinn All Hallows School Highly Com mended 26 Vol The Verdict

27 Practical point Who is a minor? practical point A minor is gener ally a person who has not attained the age of major ity or a child under the age of 18 years. At common law infant was used to refer to anyone under the age of 21 years, but the word minor is now gener - ally used to refer to all persons under the age of major ity. In the early 1970s the law provided that a person attained adult status upon reaching 21. However, in the mid 1970 s it was altered by statute in each State and Terri tory so that a person attains majority when they reach 18 years. In 1974 the Queensland Parliament enacted the Age of Major ity Act, which was replaced by the Law Reform Act 1995 (the Act). Section 17 of the Act states The age of major ity is 18 years. There fore a person under the age of 18 years is a minor and as such has no legal personal ity. An individu als status as a minor or an adult is impor tant as it indicates whether a person is legally respon sible for their actions and deter mines when they acquires rights reserved to adults or those who have reached the age of major ity. Some of these rights are the legal capac ity to contract, the right to sue and be sued and the right to hold public or private office. Another term used for a minor is child. This term is defined to be anywhere between 16 and 18 years depending upon the legis lation being referred to. For example under the Juvenile Justice Act 1992, Qld a child is defined as an individual under the age of 17. Practical point Who are Justices of the Peace and what do they do? Also known as a JP, they are people with a commis- sion of the Crown who are able to exercise particular legal functions within a jurisdiction, such as the taking of oaths, declarations, and affidavits. Their responsi- bilities include a wide range of services, from witnessing the signing of documents to hearing certain matters in court. Interestingly, JPs are not paid for their services nor can they accept payment for their services. To become a JP in Queensland you must be an Australian citizen by birth, descent or grant, be at least 18 years old and of good character. You must also be registered on the state electoral roll. In Queensland, the Justices of the Peace and Commissioners for Declarations Act 1991 govern Justices of the Peace. At the time the Act was introduced the JP system was reorganised into three new categories replacing the old style JPs as below. 1. Commissioners for Declarations (C.dec) have purely administrative duties. This category includes Justices of the Peace (Commissioners for Declarations), abbrevi - ated as JP (C.dec). Their duties are witnessing signatures on documents, certify- ing true copies of documents. They do not deal with any type of court process. 2. Justices of the Peace (Quali fied) have the same duties as C.decs, plus issuing search warrants, remand ing defendants (return ing defen dants to custody until their case can be heard), adjourn ing court hearings, grant ing bail 3. Justices of the Peace (Magis trates Court) have the same duties as JPs (Qual) plus conduct ing commit tal hearings, hearing simple offences where the defendant has pleaded guilty. The more simple form of JP being a Commis sioner of Declara tion does not require an appli cant to sit an exam, however to become a Quali fied JP you must pass the appropriate exam. At present, the appointment of JPs (MagCt) is restricted to remote Aborig i nal and Torres Strait Islander communi ties where there is no resident magistrate to conduct court hearings. For information on Justices of the Peace in Queensland and how to become a Qualified JP, go to So,should I give you an affidavit? No thanks, I don't like Turkish food. Vol The Verdict 27

28 Overall winner 28 The Verdict Vol Vol The Verdict 29

29 Parental responsibility parental responsbility PARENTAL RESPONSIBILITY what does the future hold? by Su zanne Hadley Suzanne Hadley is an Accredited Specialist in family law and partner at Farrellys Lawyers. She has extensive experience in the fields of civil litigation, family law and criminal law. leg is la tion, a state ment of intent about what the Par - lia ment saw as the un der pin ning core of the law re lat ing to chil dren con tained in the Family Law Act. This is con tained in Part VII of the Family Law Act at S60B. Sec tion 60B(1) states that there are two ob jects of Pt VII: 1. The first is to ensure that children receive adequate and proper parenting to help them achieve their full poten tial. 2. The second is to ensure that parents fulfil their duties, and meet their respon si bil i ties, concern ing the care, welfare and devel op ment of their children. Sec tion 60B(2) sets out the four prin ci ples un der ly - ing these ob jects, al ways sub ject how ever, to the rider that they should not be con trary to a child s best in ter ests. The four prin ci ples are: 1. Chil dren have a right to know and be cared for by both their parents, re gard less of whether their parents are married, sep a rated, have never married or have never lived to gether; and 2. Chil dren have a right of contact, on a regular basis, with both their parents and with other people sig nif i - cant to their care, welfare and de vel op ment; and 3. Parents share duties and re spon si bil i ties con cern - ing the care, welfare and de vel op ment of their chil dren; and 4. Parents should agree about the future parenting of their chil dren. Al though the Act changed the terms a de cade ago, and the Fam ily Court and fam ily law yers have been ed u cat ing the pub lic about the change ever since, it is fair to say that the terms are not ac cepted gen er ally in the com mu nity nor even it would seem by jour nal - ists. It is com monplace to hear the terms 'cus tody' and 'access' in news items re lat ing to chil dren of separated parents. A quick search on the internet yielded this ex tract from the Syd ney Morn ing Her ald: To many of you here to day, the terms res i - dence, contact and parental responsibil - ity have a clear mean ing and the use of the previous terms, Custody Access Guardianship, care and con trol has possessory over tones. Be fore the Fam ily Law Re form Act 1995, the Fam ily Law Act used the ex pres sions, cus tody, guard ian - ship and care and con trol to sig nify par tic u lar bun dles of rights and pow ers that an adult may have had over chil dren. These terms all had rea son ably well-es tab lished mean ings at com mon law. They were then given stat - u tory def i ni tions with the in ser tion of s60a, re num bered s63e by the Fam ily Law Amend ment Act The ef fect of the in ser tion of s63e was to re name the com mon law no tion of care and con trol as custody, and to call the re main der of the com mon law no tion of cus tody (apart from care and con trol) and all of the com mon law no tion of guard ian ship as guard ian ship. Sec tion 63E(1) stated: A per son who is the guard ian of a child un der this Act has re spon si bil ity for the long-term wel fare of the child and has, in re la tion to that child, all the pow ers, rights and du ties that are, apart from this Act, vested by law or cus tom in the guard ian of a child, other than - (a) the right to have the daily care and con trol of the child; and (b) the right and re spon si bil ity to make de ci sions con cern ing the daily care and con trol of the child." Sec tion 63E(2) stated: A per son who has or is granted cus tody of a child un der this Act has - (a) the right to have the daily care and con trol of the child; and (b) the right and re spon si bil ity to make de ci sions con cern ing the daily are and con trol of the child." On 11 June 1996 these possessory terms cus tody, ac cess and guard ian ship were abol ished. They no lon ger ap pear in the Fam ily Law Act and in their place, the con cepts of res i dence, con tact and spe - cific is sues and pa ren tal re spon si bil ity came into ef fect on 11 June 1996 when the Fam ily Law Re form Act 1995 com menced. Pa ren tal re spon si bil ity was in tro duced into the Fam - ily Law Act in 1995 with the ob ject of draw ing at ten tion away from pa ren tal rights over a child. The terms of guard ian ship and cus tody used were thought to en cour age the idea that par ents have rights, and in par tic u lar pro pri etary rights, cus to dial rights, over their chil dren. The Fam ily Law Re form Act 1995 en shrined into the Cus tody wars: put kids first Sep tem ber 19, 2005 "Crit ics of pro posed changes to fam ily law say they tip the scales too far in fa vour of non-custodial partners, writes Stephanie Peatling." It looks like we have some splanning to do. Whilst the in tent of the leg is la tion was to em pha sis the re spon si bil i ties of par ent hood and steer away from the no tion of par ents hav ing rights over their chil dren, such as a right to con tact, the clear re al ity is that par ents do con sider, in many cases, that they do have rights, chief amongst them a right to con tact with a child. More than any other right it is the right to con tact that is be lieved to ex ist by par ents them selves. Not with stand ing the change in ter mi nol ogy, it is clear that par ents do still have rights over their chil - dren. This is im plicit in the terms 'pow ers' and 'au thor ity' in the def i ni tion of pa ren tal re spon si bil - 30 The Verdict Vol Vol The Verdict 31

30 Parental responsibility ity. So, for ex am ple, there can be no doubt that par ents of a young child or di narily have a right to the phys i cal pos ses sion of their child. These prin ci ples [S60B(2)] are not pre scrip tive rules. They are not en force able rights or heads of power. How ever, be cause they are the prin ci ples that un der lie the ob jects of Pt VII they may im pact quite nat u rally on the ex er cise of the court s dis cre tion under this part. That they are not en force able rights was emphasised in Re Na than (Lim ited con tact con sent or ders) (2001) FLC , where Nichol son CJ ap - proved con sent or ders pro vid ing only for lim ited con tact be tween a fa ther and son. In that case, al le - ga tions were raised that the fa ther had sex u ally abused his son. The al le ga tions were de nied by the fa ther. Nichol son CJ in di cated that he en vis aged a grad u ated con tact re gime be ing com menced. The fa - ther de cided how ever to con sent to lim ited con tact. The Chief Jus tice noted that chil dren have a right to know and love their fa thers and have con tact with them but that a fa ther can not be forced to have con - tact if he does not wish it or wish to pur sue it. The pa ren tal re spon si bil ity pro vi sions in Pt V11 of the Fam ily Law Act con cern two main mat ters. First is the or di nary rules of pa ren tal re spon si bil ity re gard ing chil dren which op er ate im me di ately upon the birth of a child. These con tinue un til ei ther the Act, an agree ment be tween the par ties or a court or - der de ter mines otherwise. The sec ond mat ter is the power of par ents and of courts to vary or oth er wise af fect the or di nary pa ren - tal re spon si bil ity rules. Who has parental responsibility? Each par ent of a child who has not at tained the age of 18 or di narily has pa ren tal re spon si bil ity for that child. [S61C(1)] The re spon si bil ity is not af fected, by a break down in the pa ren tal re la tion ship by sep a ra tion or by ei ther par ent mar ry ing or re-mar ry ing. [S61C(2)] It may be im plicit in the leg is la tion that where two par ents have pa ren tal re spon si bil ity for a child, this re spon si bil ity should be ex er cised jointly, and cer - tainly this was the view of the Par lia men tary Sec re tary to the At tor ney-gen eral, Mr. Duncan, when mov ing the Sec ond Read ing of the Fam ily Law Re form Bill 1994; (Parl. Deb., 8 November 1994 p 2759). It seems clear, how ever, that at least where par ents have sep a rated, some as pects of pa ren tal re spon si - bil ity must be ex er cised by the par ent who has the day-to-day care of the child in de pend ently of the other. When does parental responsibility cease? Al though S 61C(1) may be read as im ply ing that pa - ren tal re spon si bil ity con tin ues un til a child at tains the age of 18 even though he or she has mar ried be low that age, this is al most cer tainly an in cor rect in ter pre - ta tion of the stat ute. That re spon si bil ity has been held, at com mon law, to cease upon a child mar ry ing be low 18 years of age ** Lough v Ward [1945] 2 All ER 338 at 348; R v D [1984] AC 778 at 791; Re Adop - tion of J (an In fant) (1990) 102 FLR 152 at 153. By vir tue of s61b, pa ren tal re spon si bil ity is de lin - eated as the du ties, pow ers, re spon si bil i ties and au thor ity which, by law, par ents have in re la tion to a child. The words by law prob a bly im port the com - mon law rule on the ef fect of marriage by a minor. Pa ren tal re spon si bil ity may be af fected by an or der of the Court S61C(3) i.e. when a parenting or der is made pur su ant to the Act, or by an other court or der, for ex am ple an Or der made un der the Child Pro tec - tion Act and by adop tion S61E sub ject to the pro viso in S61E(2) The pa ren tal re spon si bil ity may be al tered by the par ties reach ing agree ment and rat i fy ing that agree - ment by lodg ing a con sent or der al ter ing their re spon si bil i ties for ex am ple, agree ing that one par ent has the re spon si bil ity for mak ing de ci sions about school ing, re li gious ob ser vance or relocation from the area. How will the court vary or af fect those responsibilities? By mak ing a parenting or der.in the main, the court is called upon to in ter vene in the ex er cise of pa ren tal re spon si bil ity only when the par ents are un able to agree on how that re spon si bil ity ought be ex er cised or by whom i.e. is it ap pro pri ate for only one per son to make that de ci sion or should the de ci sion be made by the per son with whom the child resides Who may ap ply for a parenting or der? Sec tion 65C pro vides upon ap pli ca tion by: ei ther or both of the child s par ents, the child, a grand par ent of the child, any other per son con cerned with the care, wel fare or de vel op ment of the child, a court may make such a parenting or der as it thinks proper. A res i dence or der is a spe cies of parenting or der that deals with the per son or per sons with whom a child is to live. Grand par ents are en ti tled to make an in de pend ent ap pli ca tion by vir tue of this sec tion. Pre vi ously, grand par ents had no in de pend ent stand ing to bring ap pli ca tions and their en ti tle ment to do so came un - der the head of any other per son. This leg is la tive change re cog nises the in creas ing num ber of ap pli ca - tions for parenting orders made by grandparents. There are four types of parenting or ders en vis aged by s64b(2) namely: (a) A res i dence or der, which will de ter mines the per son or per sons with whom a child is to live ei ther on a day to day ba sis or on a shared residence basis; (b) A contact order, determining contact be tween a child and an other per son or other per sons, on oc ca sion not only a par ent or grand par ent but per haps an other per son who is sig nif i cant in the child s life. 32 The Verdict Vol

31 parental responsbility (c) A child main te nance or der mak ing pro vi sion for the main te nance of a child: and (d) A spe cific is sues or der which deals with any other as pect of pa ren tal re spon si bil ity. It is clear from the terms of s64b(2)(a) that by mak - ing a res i dence or der, it does not fol low au to mat i cally that any du ties, pow ers, re spon si bil i ties or au thor ity is con ferred in re la tion to the child. A res i dence or der in the nor mal course of events, does not give the res i den tial par ent/per son any pow - ers, re spon si bil i ties or au thor ity in re spect of ei ther the long-term or day-to-day wel fare of the child that they did not have prior to the mak ing of the orders. To con fer sole re spon si bil ity on one par ent, or more usu ally, ex clude the other from these re spon si bil i ties, one of the other types of parenting or der, par tic u larly a spe cific is sues or der is made. In the ab sence of a spe cific is sues or der it is sim ply as sumed from each par ent re tain ing pa ren tal re spon - si bil ity sub ject to any or der expressly providing to the con trary. As it thinks proper In VR v RR(2002) FLC , the Full Court con sid - ered the is sue of pa ren tal re spon si bil ity within the con text of an ar gu ment over over seas con tact travel ar range ments. The Full Court held that whilst the word 'proper' in s 65D(1) con notes a very wide area of dis cre tion, the leg is la tive scheme makes it clear that where the court in ter venes in the per for mance of an as pect of pa ren - tal re spon si bil ity that seeks to in ter fere with or di min ishes the re spon si bil ity of ei ther par ent to care for the child, in the man ner that par ent deems ap pro - pri ate, the court s in ter ven tion should come only where the court is of the view that the wel fare of the child will be clearly ad vanced by that order being made. The court added that it is not the court s roleto iden - tify and then seek to de ter mine ev ery mat ter in is sue be tween two es tranged par ents un able to agree on the way their child is to be raised. The court should only in ter fere in the way in which a par ent pro poses to raise a child to the ex tent that the wel fare of the child re quires interference. The child s best in ter ests re main the par a mount con sid er ation in any parenting or der s65e. Sec tion 63B, in serted in 2003, makes it clear that par ents re main en cour aged to reach agree ment with re spect to their chil dren and should be guided by: the best interests principle; recognition of their responsibilities as parents; the need to mini mise con flict; and the fact that the le gal sys tem should be a place of last, not first, re sort. Sec tion 65AA, in serted at the end of 2000, sets out the mea sures ini ti ated by the Fam ily Law Amend ment Act 2000 to: improve communication between separated parents; educate parents about their responsibilities in relation to children; promote compliance with orders relating to children. Hav ing es tab lished then, who has pa ren tal re spon - si bil ity, when it ceases and when it may be var ied, I turn to what pa ren tal re spon si bil ity is in terms of s61b in real terms. Sev eral cases re fer spe cif i cally to pa ren tal re spon - si bil ity as an is sue.no ta bly 1. T 2004) FLC GDPW and IDPW The ar range ment by a par ent for the is su ing to a child of a pass port to en able the child to par tic i pate in over seas travel is a quite or di nary in ci dent of pa ren tal re spon si bil ity un der s61c(1) of the Fam ily Law Act 1975, and a mat ter con cern ing a child s wel fare un - der s67zc. In 2003) FLC H and H the is sue was that of school ing, with the father want ing the child to at tend a cath o lic school.in that case the par ents were in ac cord with ex pos ing the child to their re spec tive re li gious be liefs of Ca thol - i cism and Is lam. They shared pa ren tal re spon si bil ity in all other re spects but could not agree on schooling. What is the notion of parental responsibility in practice? It is not un com mon, in the prep a ra tion of con sent or ders on be half of par ties, for prac ti tio ners to draft rou tinely, clauses re lat ing to the shar ing of pa ren tal re spon si bil ity, some times re ferred to in con sent or - ders as long term care wel fare and de vel op ment with out ever tak ing the step fur ther of out lin ing for the parties what that encompasses. It is pru dent, in my view, for the par ties to have this de fined clearly. Each party is in no doubt as to what con sti tutes an is sue for joint dis cus sion and ap - proval. School ing clearly is a sig nif i cant parenting issue. Religious ob ser vance, an other. By draft ing into con sent or ders an out line of sig nif i cant parenting is - sues, the prac ti tio ner alerts the par ties to their joint pa ren tal re spon si bil i ties, but does not limit them. An ex am ple of sig nif i cant parenting is sues in cludes, but is not lim ited to: (a) any med i cal or health mat ter con cern ing the child (b) any med i cal or health mat ter con cern ing the par ent which may af fect the abil ity of that par ent to care for the child (c) mat ters re lat ing to the ed u ca tion of the child, in clud ing but not lim ited to, choice of school and curriculum (d) dis ci plin ary mat ters other than of a triv ial nature (e) mat ters con cern ing the so cial and sport ing activities of the child (f) mat ters con cern ing the faith or re li gion of the child (g) any change in place or do mi cile (h) any in tended change of name by which the child is com monly known from that ap pear ing on the child s birth cer tif i cate Vol The Verdict 33

32 parental responsibility (i) gen er ally any mat ter re gard ing the child in re spect of which a par ent should be in formed of or con sulted with re spect to hav ing re gard to the pro vi sions of Part VII of the Fam ily Law Act 1975 You will be aware of con tin u ing re forms to the Fam - ily Law Act that are the sub ject of dis cus sion be tween var i ous in ter ested par ties and the fed eral gov ern - ment.it is not the in ten tion of this pa per to dis cuss those is sues but it is noted that the re forms are part of an on go ing cli mate of change oc cur ring, not only in the fam ily law ju ris dic tion but through out the jus tice sys tems. In 2004, prac ti tio ners faced Changes aris ing from the Family Law Amend ment Act 2003, pass ing into operation in January 2004 A trial of the Chil dren s Cases pro gram in the Syd ney and Parramatta reg is tries of the Fam ily Court and which is set to re lease pro gres sively into more reg is tries, fund ing and re sources permitting A com plete over haul of Fam ily Law Rules com menc ing March 2004 Re forms pro pos ing a new sys tem of fam ily law dis pute res o lu tion which will fo cus on par ties at tend ing relationship centres to resolve dis putes with the court as a fo rum of last re sort and pro pos ing those Family Relationship Centres to be the sin gle point of en try for fam ily law dis putes. Those re forms also pro pose: A greater em pha sis on shared parental responsibility Greater rec og ni tion to the role of grandparents Directing parties to primary dispute resolution to a greater de gree prior to fil ing in the Fam ily Court In tro duc ing mea sures in an at tempt to make the sys tem less ad versarial in child mat ters Fur ther changes will come.the law is sta ble but never static and evolves to meet the chang ing needs of so ci ety. Fam ily law is that type of prac tice.change is noth ing new to fam ily law yers and the un der ly ing phi los o phy of al ter nate dis pute res o lu tion and timely con clu sion of dis putes is lit tle dif fer ent un der the proposed changes. Findlaw news Defamation Laws Introduced in Tas, Qld Queensland and Tasma nia have intro duced uniform defama tion laws into their Parlia ments following an agreement by the states for uniform defama tion laws. The new approach encour ages parties to resolve disputes out of court, through an 'offer of amends' process. Damages for non-economic loss have been capped at $250,000, although courts will continue to be able to award full recov ery for economic loss. Other features of the legisla tion include prevent ing corpora tions (other than non-for-profit organi sa tions or small businesses) from suing for defamation, reducing the time limit for bring ing a defama tion action from six years to one year, and limit ing juries to deter- min ing whether a person has been defamed, leaving the awarding of damages to judges. Queensland's Attor ney-general and Minis ter for Justice, Linda Lavarch, described the bill as "a triumph for State and Terri tory cooper a tion and common sense." Mrs Lavarch said the new laws replaced legisla tion that had been virtu ally unaltered since it was adopted in The states and terri tories have agreed to enter an inter gov ern mental agreement to maintain uniformity in making future reforms. South Austra lia, Victoria and Western Austra lia have already tabled the bills in their parlia ments. The new laws should come into effect across the country on 1 January Find Law News 34 The Verdict Vol

33 PAMD Act Prop erty Agents & Mo tor Deal ers Act an update by Josh Trevino Joshua is a barris ter in private practice at the Cairns Bar. Prior to his admission Joshua spent two years as a judge's associ ate in 2003 as associ ate to the Hon. Justice John Jerrard, Qld Court of Appeal. The in tro duc tion of the Prop erty Agents and Mo tor Deal ers Act 2000 (Qld) ('the PAMDA') to Par lia ment by the Beat tie Gov ern ment in Sep tem ber 2000 was a mea - sure aimed at re stor ing con sumer con fi dence in the Queensland prop erty in dus try, af ter its rep u ta tion had re ceived a bat ter ing be cause of the ad verse pub lic ity gen er ated by the shon ky prac tices of prop erty 'mar ke teers', lo - cated pri mar ily on the Gold Coast, that had left many mum and dad in ves tors and re tir ees out of pocket. In the late 1990s, the national media lifted the lid on the slick and shady practices of these marke teers. Residen tial proper ties on the Gold Coast were gener - ally marketed inter state at prices consid er ably in excess of local market prices (hence the descrip tion of the practice as two-tier marketeering ) and sold to unsus pect ing custom ers through the use of high pressure and unfair sales tactics by real estate agents, property devel op ers, market ing compa nies, valuers, finan cial advis ers, solic i tors and finan ciers. 1 Their techniques included exten sive cold calling of poten tial inves tors, high energy promo tional evenings, free or subsi dized inspec tion flights or tours to the Gold Coast to view proper ties, the provi - sion of expert and independ ent advice at seminars by solic i tors, valuers and finan cial advis ers (all taking a cut of the action of course) and the provi sion of on the spot finance. 2 Many buyers that were pressured into the purchase of a residen tial unit at an inflated price, when faced with crippling mortgage repay ments, were then relieved of the property by the market ers who arranged for the re-sale of the property on or below the actual market value to another member of the Vol The Verdict 35

34 PAMD Act marketeering food chain or a local inves tor; leaving the origi nal buyer to foot the differ ence in price. 3 Whilst the PAMDA was intro duced in response to the problem of marketeering, the scope of the Act is much broader, and as the name suggests, the Act provides a regula tory frame work for the market ing and sale of property and motor vehicles in Queensland. Previ ous to the intro duc tion of the PAMDA, Queensland s property indus try was regulated by the Auction eers and Agents Act 1971 (Qld), a mere 174 sections; the PAMDA with 650 sections, two sched ules, 58 regula tions as well as six separate codes of conduct for the regulated occupa - tions is much more substan tial. Its provi sions govern the licens ing of real estate agents, motor dealers, auction eers, commer cial agents (debt collec tors), and property devel op ers as well as the regis tra tion of sales or collec tion employ ees. It also regulates the ethical conduct of these licens ees and their employ - ees through codes of conduct. The PAMDA also has provi sions aimed directly at the protec tion of the inter ests of consum ers when enter ing into contracts for the sale of property or of a motor vehicle includ ing: cooling off provi sions for both residen tial and motor vehicle sales; disclo sure require ments for real estate agents and property devel op ers; the provi sion of warning state ments on contracts for the sale of property and; mecha nisms provid ing for compen sa tion and redress against licens ees and other persons who contra vene the require ments of the Act. The marketeering provi sions of the Act prohibit mislead ing conduct, uncon scio na ble conduct and false repre sen ta tions by marke teers in relation to residen tial property and provide a range civil remedies and penal ties in relation to such conduct. The PAMDA is ad min is tered by the Of fice of Fair Trad ing within the De part ment of Tour ism, Fair Trad - ing and Wine In dus try De vel op ment. The ob jects of the Act are set out in s10: 10 Ob jects (1) The main ob ject of this Act is to pro vide a sys tem for licens ing and reg u lat ing per sons as re stricted let - ting agents, real es tate agents, pas to ral houses, auc tion eers, property devel op ers, mo tor deal ers and com mer cial agents, and for regis ter ing and reg u lat - ing per sons as reg is tered employ ees, that achieves an ap pro pri ate bal ance be tween- (a) the need to reg u late for the pro tec tion of con - sum ers; and (b) the need to pro mote free dom of en ter prise in the marketplace. (2) Another signif i cant object of this Act is to provide a way of protect ing con sum ers against par tic u lar un - de sir able practices associ ated with the pro mo tion of res i den tial prop erty. (3) The objects are to be achieved mainly by- (a) en sur ing- (i) only suit able per sons with ap pro pri ate qual i fi ca tions are li censed or reg is tered; and (ii) per sons who carry on busi ness or are in charge of a licensee s busi ness at a place un der the au thor ity of a prop erty agents and mo tor deal ers licence maintain close per sonal su per vi sion of the way the busi ness is car ried on; and (b) pro vid ing- (i) pro tec tion for con sum ers in their deal ings with li cens ees and their em ploy ees; and (ii) a leg is la tive frame work within which per sons per form ing ac tiv i ties for li cens ees may law fully op er ate; and (c) reg u lat ing fees and com mis sions that can be charged for partic u lar trans ac tions; and (d) provid ing protec tion for consum ers in their dealings with marke teers; and (e) promot ing admin is tra tive efficiency by provid ing that- (i) re spon si bil ity for li cens ing rests with the chief ex ec u tive; and (ii) re spon si bil ity for mi nor claims against the fund rests with the chief ex ec u tive; and (iii) re spon si bil ity for claims, other than mi nor claims, against the fund rests with the tri bu nal; and (iv) re spon si bil ity for re view ing par tic u lar de ci sions of the chief ex ec u tive rests with the tri bu nal; and (v) re spon si bil ity for dis ci plin ary mat ters rests with the tri bu nal; and (f) es tab lish ing a claim fund to pro vide com pen sa - tion in partic u lar cir cum stances for per sons who suffer finan cial loss be cause of their deal ings with persons, other than prop erty de vel op ers and their employ ees, regulated un der this Act; and (g) pro vid ing for the en force ment of mat ters involv - ing marke teers by the tri bu nal and the Dis trict Court; and (h) pro vid ing in creased flex i bil ity in en force ment measures through codes of con duct, in junc tions, under tak ings, and, for contra ven tions by mar ke teers, pres er va tion of assets and civil pen al ties." Scope of pa per Given the substan tial nature of the Act and as the title of this paper suggests, a full analy sis of the PAMDA will not be under taken. Rather, this paper will discuss two areas of the Act that seem of most inter - est to lawyers. The paper will first discuss Chapter 11 of the Act. Chapter 11 deals with residen tial property sales. The paper will conduct a brief analy sis of some of the issues arising out of the opera tion of these provi sions and discuss the sections of the chapter that have attracted judicial comment and inter pre ta tion. Sec ondly, the pa per will briefly sur vey some of the mech a nisms that pro vide con sum ers with av e nues for seek ing com pen sa tion and re dress against li - cens ees and mar ke teers who con tra vene the re quire ments of the Act. Chapter 11 - Residential property sales Section 363 of the Act provides that the purposes of Chapter 11 are: (a) to give persons who enter into relevant contracts a cooling-off period; and (b) to require all relevant contracts for the sale of 36 The Verdict Vol

35 PAMD Act res i den tial prop erty in Queensland to include con - sumer pro tec tion in for ma tion, in clud ing a state ment that the con tract is subject to a cooling-off period; and (c) to en hance con sumer pro tec tion for buy ers of res i den tial prop erty by en sur ing, as far as prac ti ca - ble, the in de pend ence of law yers act ing for buy ers." 1A relevant contract is defined in s 364 as a contract for the sale of residen tial property in Queensland, other than a contract formed on sale by auction. Residen tial property is broadly defined by s17: 17 Meaning of residential property (1) Prop erty is res i den tial prop erty if the prop erty is- (a) a sin gle par cel of land on which a place of res i dence is constructed or be ing con structed; or (b) a sin gle par cel of va cant land in a res i den tial area. Without limit ing subsec tion (1), property is residen tial property if the property is any of the follow ing lots that is a place of residence or in a residential area- (a) a lot in cluded in a com mu nity ti tles scheme, or proposed to be in cluded in a com mu nity ti tles scheme, un der the Body Cor po rate and Community Management Act 1997; (b) a lot or proposed lot under the Build ing Units and Group Titles Act 1980; (c) a lot shown on a lease hold build ing units plan regis tered or to be regis tered under the South Bank Corpo ra tion Act Despite subsec tions (1) and (2), the follow ing property is notres i den tial prop erty- (a) a sin gle par cel of land on which a place of res i dence iscon structed or be ing con structed if the prop erty is usedsub stan tially for the pur poses of in dus try, com merce or primary pro duc tion; (b) a sin gle par cel of va cant land, if the prop erty- (i) is in a non-res i den tial area; or (ii) is in a res i den tial area, but only if a lo cal gov ern ment has ap proved de vel op ment in re la tion to the prop erty, the de vel op ment is other than for res i den tial pur poses and the ap proval is cur rent; or (iii) is used sub stan tially for the pur poses of indus try, commerce or pri mary pro duc tion." The cool ing-off pe riod The cooling-off period for a contract for the sale of residen tial property in Queensland is five business days start ing on the day the buyer is bound by the contract and ending at 5pm on the fifth business day. 4 Pursu ant to s368(1) a buyer may termi nate the contract at any time before the cooling-off period ends by giving a signed and dated notice to the seller or seller s agent. The seller must within 14 days after termi na tion, refund any deposit paid under the contract but may deduct an amount (no more than 0.25% of the purchase price under the contract) from the deposit by way of a termi na tion penalty.5 Failure to refund the deposit attracts a penalty of 200 penalty units ($1,500). Section 365(1) provides that the parties are bound by the contract when the buyer or the buyer s agent receives a copy of the contract signed by the buyer and the seller. Thus, the cooling off period does not start until the buyer or buyer s agent receives the signed contract; the effec tive cooling off period may then be greater than 5 business days. Bound for all pur poses As stated above, s365(1) pro vides that the buyer and seller of a con tract are bound for all pur poses by the con tract, from the date on which the buyer or the buyer s agent re ceives a copy of the con tract signed by both par ties. The phrase bound for all pur - poses raises the is sue of whether the sec tion al ters the com mon law time of for ma tion of the con tract from the time the seller no ti fies of ex e cu tion to the time the buyer re ceives a copy of the con tract. It seems ar gu able that a buyer could prop erly with draw their of fer, even af ter ac cep tance had been com mu ni - cated, if the of fer was with drawn be fore the buyer re ceived a signed copy of the contract. In any event, as a re sult of the word ing of the sec tion the ob li ga tions in the con tract that are linked to the date of the con tract, com mence at a time prior to the time which the par ties are bound un der s 365(1). Con fu sion about ob li ga tions com menc ing from the Con tract Date but be fore par ties are bound to the con tract could have sig nif i cant re per cus sions in clud - ing a claim for breach of con tract for fail ure to com ply with an obligation within time. It has been sug gested that the prac tice of send ing only the ref er ence sched ule of the con tract to the par - ties for ex e cu tion may con tra vene s 365(1).6 Such prac tice fre quently oc curs when con tracts are amended and terms ne go ti ated by the par ties prior to sign ing and the agent sends and re-sends the con - tract a num ber of times for ex e cu tion. As the stan dard terms form part of the con tract, it is ar gu able that the buyer has re ceived an in com plete con tract and that as a re sult nei ther party is bound by the terms. Lawyer s certificate Sec tion 365B states that a buyer s law yer, when - ever en gaged by the buyer, must give the buyer a cer tif i cate that con firms the law yer s in de pend ence and dis closes any com mis sions or other ben e fits the law yer re ceives in re la tion to the sale. The law yer must also ex plain to the buyer the pur pose and na - ture of the cer tif i cate.7 The cer tif i cate must be in the ap proved PAMDA form: 32a (Lawyer s certifications). This require ment is really a means of re-affirm ing to a client the discharge of basic obliga tions owed by a solic i tor. In any event, the efficacy of the require ment as a means of protect ing consum ers is question able in the absence of any provi sion in the PAMDA for a penalty if solic i tors fail to provide the certif i cate. Pursu ant to s599 of the Act, the Chief Execu tive of the depart ment may ask a solic i tor to give a written under tak ing that they will comply with a require ment. If the solic i tor agrees to give the under tak ing, the Vol The Verdict 37

36 PAMD Act Chief Execu tive can take action to enforce the under - tak ing if it has been contra vened and may seek an order from the District Court direct ing the solic i tor to pay an amount of money to the State or to pay compen sa tion to someone who has suffered loss. However, the Act does not require a person to give an under tak ing when asked to do so by the Chief Execu - tive. Although, at least one law firm has given such an under tak ing. In January 2004, Gold Coast lawyers Butler & Clements gave an under tak ing after failing to comply with s 365B. 8 Warning state ment Sec tion 366 pro vides that a Form 30a Warn ing State ment must be at tached as the front page of a con tract for the sale of res i den tial prop erty: 366 Warn ing state ment to be at tached to rel e vant con tract (1) A rel e vant con tract must have at tached, as its first or top sheet, a state ment in the ap proved form ( warn ing state ment ) contain ing the in for ma tion men tioned in sub sec tion (3). (2) The seller of the prop erty or a per son act ing for the seller who prepared a rel e vant con tract com mits an of fence if the seller or person pre pares a con tract that does not com ply with sub sec tion (1). Max i mum pen alty pen alty units. (3) The warn ing state ment for a rel e vant con tract must state the follow ing in for ma tion - (a) the con tract is sub ject to a cool ing-off pe riod; (b) when the cool ing-off pe riod starts and ends; (c) a rec om men da tion that the buyer seek in de - pend ent legal advice about the con tract be fore the cool ing-off pe riod ends; (d) what will hap pen if the buyer ter mi nates the con - tract before the cool ing-off pe riod ends; (e) the amount or the per cent age of the pur chase price that will not be re funded from the de posit if the con tract is termi nated before the cool ing-off pe riod ends; (f) a rec om men da tion that the buyer seek an independ ent valua tion of the prop erty be fore the cool ing-off pe riod ends; (g) if the seller un der the con tract is a prop erty de - vel oper, that a person who suf fers fi nan cial loss be cause of, or aris ing out of, the per son s deal ings with a prop erty de vel oper or the property de vel oper s em ploy ees can not make a claim against the claim fund. (4) A state ment pur port ing to be a warn ing state - ment is of no effect unless - (a) be fore the con tract is signed by the buyer, the state ment is signed and dated by the buyer; and (b) the words on the state ment are pre sented in sub stan tially the same way as the words are pre - sented on the ap proved form. Ex am ple for para graph (b) - If words on the ap proved form are pre sented in 14 point form, the words on the warning state ment must also be pre sented in 14 point form." The fail ure to at tach the warn ing state ment is not only a stat u tory of fence pur su ant to s 366(2), but al - lows a buyer to ter mi nate the con tract at any time prior to settlement: 367 Buyer s right if warn ing state ment not given (1) This sec tion ap plies to a con tract to which a warn ing state ment must be at tached. (2) If a warn ing state ment is not at tached to the con - tract or is of no effect un der sec tion 366(4), the buyer un der the con tract may termi nate the con tract at any time be fore the con tract set tles by giving signed, dated no tice of ter mi na tion to the seller or the seller s agent. (3) The no tice of ter mi na tion must state that the con - tract is termi nated un der this sec tion. (4) If the con tract is ter mi nated, the seller must, within 14 days after the ter mi na tion, re fund any de - posit paid un der the con tract to the buyer. Max i mum pen alty pen alty units (5) If the seller, act ing un der sub sec tion (4), in - structs a licensee acting for the seller to re fund the de posit paid un der the con tract to the buyer, the li - censee must im me di ately re fund the de posit to the buyer. Max i mum pen alty pen alty units (6) If the con tract is ter mi nated, the seller and the per son act ing for the seller who pre pared the con tract are li a ble to the buyer for the buyer s rea son able le gal and other ex penses in curred by the buyer in relation to the con tract af ter the buyer signed the con tract. (7) If more than 1 per son is li a ble to re im burse the buyer, the liabil ity of the per sons is joint and sev eral. (8) An amount pay able to the buyer un der this sec - tion is re cov er able as a debt." The buyer s right to termi nate the contract is not waived by a buyer who contin ues to perform the contract armed with the knowl edge of the contra ven - tion of s 366; there is no incon sis tency between acknowl edg ing the existence of the contract and taking a step under or in reliance on it on the one hand and the mainte nance of the right to termi nate conferred by s 367(2), on the other: see MP Manage - ment (Aust) P/L v Churven & Anor [2002] QSC 320. The right to termi nate conferred by s 367(2) is able to be exercised at any time prior to settle ment. However, the Act is silent on the scope of the buyer s right to termi nate in the face of a purported termi na tion of the contract by the seller prior to settle ment. It could be argued that where such termi na tion is wrong ful, the buyer s right to termi nate and re-claim any deposit paid is still extant. Attached? In the recent decision of MNM Devel op ments P/L v Gerrard [2005] QCA 230, the Court of Appeal consid - ered the meaning of attached for the purposes of s 366. The court was asked to consider whether a 38 The Verdict Vol

37 PAMD Act You'll love it! Bril liant resort-style liv ing. I dunno... can I see it? Of course not! It's filthy swamp land! I'll take it! warning state ment was attached in circum stances where it and the contract had been sent to the buyer via facsim ile trans mis sion. Chief Justice de Jersey, with whom Williams JA agreed on this issue, ruled that attached required some form of physi cal joinder, fasten ing or affixation and that it could not be said that a warning state ment was attached to a contract where the only physi cal relation ship between the documents, within the contin u ous fax, was that where the warning state ment ended, the separate contract began. 9 In arriv ing at this conclu - sion the Chief Justice observed that: [16] The con text of the re quire ment set up by s366 tells against a lib eral in ter pre ta tion of that re quire ment. Chap ter 11 of the Act, in which s 366 oc curs, con tains a de tailed set of tech ni cal re quire ments plainly di rected to en sur ing a form of consumer protection for purchasers of residential prop erty. One of the ob jects of the Act, stated in its pre am ble, is to pro tect con sum ers against par tic u lar un de sir able prac tices". That pro tec tion ex tends, in cases like these, to giv ing a pur chaser a right to ter mi nate even for quite tech ni cal contra ven tions, and whether or not the pur chaser has suffered any material disadvantage. See, for ex am ple, s 366(4)(a), s 366(4)(b) (including the example) and s 367(2)." The Chief Justice noted that the require ment that the warning state ment be attached as the first or top sheet of a contract was a stipu la tion obviously directed to consumer protec tion, not the conve - nience of vendors of residen tial property 10 but said that: [12] It would be an ex ag ger a tion to sug gest that construction would frustrate commercial dealings. In the first place, the con ve nience of com mer cial deal ings is, im plic itly, only sub sid iary. Of pri mary im por tance is the pro tec tion of pur chas ers of res i den tial prop erty. Also, this ap proach would in no way im pede ne go ti a tions by fax. But it would mean the act of con tract ing must be done by the exchange of original documents, a course Vol The Verdict 39

38 PAMD Act prob a bly re flected by s 365, and a course most con tract ing par ties, even in this elec tronic age, would fa vour any way, to ensure the security of their binding dealings. While the re quire ment may not frus trate com mer cial deal ings it most cer tainly will be a source of frus tra - tion to those in the prop erty in dus try, where the use of and re li ance on elec tronic forms of com mu ni ca tion through fac sim ile and is wide spread. How ever, those agents and sell ers who con tinue the prac tice of send ing con tracts via fax or now do so at the risk of in cur ring a pen alty of up to $15,000 on top of los ing out on the con tract and in cur ring li a bil ity for the reasonable legal costs of the buyer. At what point must the Warn ing State ment be at tached? This issue was also consid ered by the Court of Appeal in MNM Devel op ments P/L v Gerrard [2005] QCA 230. Williams JA observed that s366(1) was badly drafted and that the refer ence in s 366(1) should not be to a contract but to documents submit ted to an intend ing purchaser. A contract does not come into existence until signed by both parties. The refer ence in s 366(1) to the contract thus leaves open the possi bil ity that the warning state ment could be attached at a time after the draft contract was submit ted to an intend ing purchaser. McMurdo J in his reasons canvassed the possi ble points at which the warning state ment could be required to be attached to the contract document: [55] It would be logical to require the warning state ment to be attached when the prospec tive buyer receives the (draft) contract. That might enhance the prospects of the buyer s signing the warning state ment before signing the contract. But there is no clear impli ca tion that the state ment must be attached by that point in time. An alternative interpretation is that the statement must be attached by the time the buyer signs the contract. That inter pre ta tion would make the warning equally effec tive but it would allow for some greater conve nience and expedi tion. Assum ing for the moment that a state ment is not attached to the contract by a buyer receiv ing copies by facsim ile trans mis sion, this alter na tive inter pre ta tion would permit the buyer s copies, as printed from the fax machine, to be signed by the buyer. [56] A further alternative interpretation is that the warn ing state ment must be at tached to the con tract doc u ment by the time the par ties be come bound. That would still pro vide a warn ing con sis tently with the pur poses ex pressed in s 363. It would still re quire the warn ing to be signed and dated by the buyer be fore the buyer signs the con tract. And the at tach ment of the warn ing to the front of the con tract would serve an im por tant pur pose, al though the at tach ment was not made un til the buyer or the buyer s agent was sent a copy of the con tract, signed by the buyer and the seller. That is be cause the cool ing-off pe riod only be gins when the par ties be come bound. The con tent of a warn ing state ment, as pre scribed by s 366(3), seems largely to be de signed to as sist the buyer to de cide whether to opt out dur ing the cool ing-off pe riod. Of course, it is also rel e vant for the buyer s de ci sion to sign the con tract, for oth er wise the sec tion would not re quire the warn ing state ment to be signed prior to the con tract be ing signed. But the sub se quent at tach ment of the warn ing state ment serves a substantial purpose in informing purchasers dur ing the cool ing-off pe riod. The ben e fit of the cool ing-off pe riod is en hanced by the prom i nence of the warning as to what the purchaser should or could do within that period." McMurdo J left for an other day de ter mi na tion of which of the above in ter pre ta tions is cor rect. Wil liams JA how ever was firmly of the view that the first pos si - ble in ter pre ta tion was the cor rect one. His Hon our observed that: [29] What the leg is la ture to my mind clearly in tended to say, but did not, was that the doc u ments pre sented to a po ten tial pur chaser for ex e cu tion, and which would re sult in a rel e vant con tract com ing into ex is tence, must have at tached as the first or top sheet a warning statement. Wil liams JA s con struc tion of s 366(1) finds sup port in the ear lier Trial Di vi sion de ci sion of Helman J in Devine Ltd v Timbs [2004] QSC 024. In that case, Helman J had to con sider at what point the warn ing state ment was re quired to be at tached in the con text of a put and call op tion contract. In Devine the re spon dent buyer en tered into a put and call op tion con tract with the ap pli cant seller by which the buyer signed a draft con tract that by the terms of the op tion agree ment was to be held by the seller and only signed by it if ei ther op tion was ex er - cised. A warn ing state ment was at tached to the front of the draft con tract and signed by the buyer at this stage. Over a year later, the seller sought to ex er cise its op tion and signed the draft con tract. In that pe riod of time, a new Form 30a had been ap proved. The re - spon dent pur ported to ter mi nate the con tract af ter the seller had ex er cised its call op tion on the ba sis that a warn ing state ment in the ap proved form was not at tached to it. The ap pli cant seller sought a dec la - ra tion that the buyer s ter mi na tion was not valid on the ba sis that a warn ing state ment in the ap proved form had been at tached to the con tract at the rel e vant time re quired by s 366(1). Helman J found in fa vour of the applicant seller. His Honour observed at [12]: The Act con tem plates that the seller or the seller s agent will pre pare the con tract (s 366(2)) and then, be fore sign ing the con tract the buyer 40 The Verdict Vol

39 PAMD Act will sign the warn ing state ment (s 366(4)(a)). (The word con tract is there used to mean the doc u ment which the buyer signs whereby the buyer becomes contractually bound.). That se quence sug gests that the rel e vant warn ing state ment will be one in the form ap proved at the time when the buyer signs the contract document. [13] [If this is not correct], a buyer in the position of the respon dent would be bound by the terms of a contract document of the kind in question in this case for a lengthy period without having the benefit of a warning state ment. That does not appear to be what was intended in a regime that contem plates the buyer s receiv ing the notice and signing it before signing the document. Futhermore, to construe the provi sions of the Act as contended on behalf of the appli cant would best achieve the consumer protec tion of the Act." McMurdo J left for another day deter mi na tion of which of the above inter pre ta tions is correct. Williams JA however was firmly of the view that the first possi ble inter pre ta tion was the correct one. His Honour observed that: "[29] What the legis la ture to my mind clearly intended to say, but did not, was that the documents presented to a poten tial purchaser for execu tion, and which would result in a relevant contract coming into existence, must have attached as the first or top sheet a warning statement." Williams JA's construc tion of s 366(1) finds support in the earlier Trial Division decision of Helman J in Devine Ltd v Timbs [2004] QSC 024. In that case, Helman J had to consider at what point the warning state ment was required to be attached in the context of a put and call option contract. In Devine the respon dent buyer entered into a put and call option contract with the appli cant seller by which the buyer signed a draft contract that by the terms of the option agree ment was to be held by the seller and only signed by it if either option was exercised. A warning state ment was attached to the front of the draft contract and signed by the buyer at this stage. Over a year later, the seller sought to exercise its option and signed the draft contract. In that period of time, a new Form 30a had been approved. The respon dent purported to termi nate the contract after the seller had exercised its call option on the basis that a warning state ment in the approved form was not attached to it. The appli cant seller sought a decla ra tion that the buyer's termi na tion was not valid on the basis that a warning state ment in the approved form had been attached to the contract at the relevant time required by s 366(1). Helman J found in favour of the appli cant seller. His Honour observed at [12]: "The Act contem plates that the seller or the seller's agent will prepare the contract (s 366(2)) and then, before signing the contract the buyer will sign the warning state ment (s 366(4)(a)). (The word 'contract' is there used to mean the document which the buyer signs whereby the buyer becomes contrac tu ally bound.). That sequence suggests that the relevant warning state ment will be one in the form approved at the time when the buyer signs the contract document. [13] [If this is not correct], a buyer in the position of the respon dent would be bound by the terms of a contract document of the kind in question in this case for a lengthy period without having the benefit of a warning state ment. That does not appear to be what was intended in a regime that contem plates the buyer's receiv ing the notice and signing it before signing the document. Futhermore, to construe the provi sions of the Act as contended on behalf of the appli cant would best achieve the consumer protec tion of the Act." Next is sue: See the next issue of The Verdict for part two of this article. Notes 1 Explan a tory Notes to the Property Agents and Motor Dealers Amend ment Act 2001 (Qld), 13 Septem ber Min is te rial Coun cil on Con sumer Af fairs Work ing Party of the De part ment of Tour ism, Fair Trad ing and Wine In dus try De vel op ment, Au gust 2004, Prop erty In vest ment Ad vice Dis cus sion Pa per, p16, t.pdf 3 Ibid 4 s364 5 s367(2) 6 See Paul Luton, Form 30c warning state ments - Sellers and agents beware, ew= s365b(2) 8 See Tim O'Dwyer, Brief History of Over-Priced Marketeering of Qld Proper ties, 9 at [18] 10 at [19] Vol The Verdict 41

40 / / / / / / / / / / / 42 The Verdict Vol

41 SHORT ESSAY COMPETITION The Changing Face of the Law The Queensland Law Society invites tertiary students (all levels) to submit a short essay (up to 3000 words) on the above theme. Students are encouraged to be creative in their approach to this topic and, as examples, may choose to explore: a particular area of the law (e.g. criminal law, insurance law, etc.) a particular aspect of the law of its supporting mechanisms (e.g. medical negligence, eye witness testimony, trial by jury, etc.) The winning entry will receive $500 and will be published the QLS Schools and Community Education Scheme (SCES) Magazine The Verdict! 2 nd Prize - $200 3 rd Prize - $100 Highly Commended Certificates CLOSING DATE: 5 May 2006 Please forward your essay to: Sharon Burke Manager, Professional Development Queensland Law Society PO Box 1785 Brisbane Qld 4001 Please note that submitted essays will not be returned. It is a condition of entry that the QLS may publish or distribute submitted essays in any QLS publication.

42 PAMD Act contracts 44 The Verdict Vol

43 PAMD Act contracts by Angie Bartlett Angie Bartlett is a solicitor with Hopgood Ganim Lawyers in Brisbane. Angie was admitted to practice in Queensland mid 2005 and practices in the areas of property, commercial and banking and finance law. The Li quor and Other Acts Amend ment Bill 2005 ( the Li quor Bill ) pro poses cer tain amend ments to the Prop erty Agents and Mo tor Deal ers Act 2000 ( the PAMD Act ). This Bill has now been passed with the amend ments to the PAMD Act com menc ing from 1 De cem ber Of partic u lar note, the amend ments include relax ation of the require ments of certain sections of the PAMD Act that require residen tial contracts to physi cally include as the first or top sheet of a contract a warning state - ment (the PAMD Form 30c). Whilst the warning state ment is still a require ment for residen tial contracts, the amend ments will mean that residen tial contracts may now also be sent to a buyer by either facsim ile or by . Residen tial contracts may also now become binding upon a buyer when the contract is sent by facsim ile or by to the buyer or their agent. The recent case of MNM Devel op ments v Gerrard [2005] QCA 230 is author ity for the princi ple that a residen tial contract is not binding on a buyer where the contract and warning state ment is sent by facsim ile to a buyer. The court held that it is not possi ble for the warning state ment to be attached as the first and top sheet of the contract if the same is sent by facsim ile. This strict inter pre ta tion of the provi sions of the PAMD Act have been consid ered by some to be not commer - cially unreal is tic. However, the amend ments to the PAMD Act intro duced by the Queensland govern ment provide that it is now accept able for residen tial contracts to be sent by facsim ile or ed to a buyer. Further more, the buyer will now be bound by the contract when they receive a faxed or copy of the same (provided the other provi sions of the PAMD Act are complied with in all respects). The amend ments to the PAMD Act commence from 1 Decem ber This means that any contracts entered into after this date, will be regulated by the amended provi sions of the PAMD Act. Contracts sent by facsim ile The amend ments require that if a residen tial contract is being sent by facsim ile to a buyer the facsim ile must contain the follow ing (in this order): a) a single cover sheet that directs the buyer s atten - tion to the warning state ment and the contract; b) the warning state ment; c) the contract; and d) any other documents (includ ing agent s disclo sures). Contracts sent by The amend ments provide that similar provi sions apply for contracts that are to be ed. The must contain the follow ing (in this order): a) an message that directs the buyer s atten tion to the warning state ment and the contract; b) the warning state ment; c) the contract; and d) any other documents (includ ing agent s disclo sures). The warning state ment and the contract must be one single document protected against unauthor ised change. Contracts sent by mail or person ally delivered If the contract is being sent in the mail then the seller or the seller s agent must also include a written state - ment direct ing the atten tion of the buyer or the buyer s agent to the warning state ment and contract. It will be accept able for the state ment to be given verbally if the contract is being deliv ered by hand directly to the buyer. Contracts for lots in a commu nity titles scheme For contracts for the sale of a lot in a commu nity titles scheme, the infor ma tion sheet required pursu ant to the Body Corpo rate and Commu nity Manage ment Act 1997 is required to be placed between the warning state ment and contract when faxing or ing the contract documents. The disclo sure state ment required pursu - ant to the Body Corpo rate and Commu nity Manage ment Act 1997 must follow the contract and not inter vene between the warning state ment, infor ma tion sheet or contract. It's not the contract in the fax that worries me it's the facts in the contract! Vol The Verdict 45

44 communication breakdown by Rebekah House Rebekah House is the So ci ety's Schools and Com mu nity Ed u ca tion Supervisor The first in stall ment in a three-part se ries on draft ing clear and pre cise doc u ments, this short ar ti cle will ex am ine the im por - tance of us ing plain Eng lish in all forms of cor re spon dence. What is plain English? In the legal system the use of plain language is gener ally referred to as plain English. Plain English is the favoured manner of commu ni ca tion for all legal documents and it has become so popular that there are now a great number of lengthy texts dedicated solely to address ing the issue of draft ing in this manner. Whilst the terms plain English and plain language can be used inter change ably, plain language is proba bly the more appro pri ate term as it accurately Part 1 Plain language and preparation conveys that, no matter what language you are writing in, the content should still be expressed in as plain and simple manner as possible. The plain language movement began in both Austra lia and England in the 1970's. Prior to this time, a typical legal document (such as a will) needed a legal practi tio ner to inter pret it due mostly to the long-winded and archaic language used. This left clients in the position where they were fequently not able to under stand the content of their own legal documents and would certainly need to access legal assis tance even to explain the content of their legal documents to other indidivuals. In 1987 a signif i cant move forward was evidenced in relation to the plain English cause, when the Victo ria Law Reform Commis sion published its report on Plain English and the Law. The report consid ered and criti cised, the then use of legal language examing its impact on causing misun - der stand ings and misin ter pre ta tions in draft ing. The report also stated that, "Plain English involves the use 46 The Verdict Vol

45 communication breakdown of plain straight for ward language which avoids these defects and conveys its meaning as clearly and simply as possi ble, without unnec es sary preten sion or embellishmentà The adoption of a plain English style demands simply that a document be written in a style which readily conveys its message to its audience. 1 The benefits of plain English Documents that are written in a simple and straight - for ward manner allow the reader to quickly under stand and absorb the main message or content. The plain English document will avoid, wherever possi ble, the use of tech ni cal or indus - try-specific terms as well as jargon, colliquialisms and archaic words. In the event that an indus try-specific term is required to be used, this term should be clari fied further, either via textual expla na tion, footnote or a glossary. Other consid er ations is using plain English Plain English is more than just about writing in simple terms. To create a success ful, clear document atten tion also needs to be paid to the document s content, struc ture, style and presen ta tion. The impor tance of prepa ra tion and organi sa tion cannot be under es ti mated in writing a clear and precise document. Taking the time to plan the order of content in a document will enable the writer to form a logical and infor ma tive argument, position or overview, whilst avoid ing the omission or repeti tion of content. Long before putting pen to paper, it is impor - tant to reflect on what you want your document to Preparation and organisation are the means to effec tively writing any document. achieve. Con sider such ques tions as: Do I have all the infor ma tion I need? Do I know what I want to say? Do I have a thorough under stand ing of the topic and content? Is there another position I should discuss/consider? Who is your audience Another key aspect to consider in writing a plain English document is the audi ence that is being targetted. Consider: What level of knowl edge does the target audience have in relation to the subject matter? Does the audience have prior knowl edge/under stand ing of the subject matter? Is the document likely to be read by people other than the main target group? If your audience is not famil iar with the subject matter to be discussed, it is even more impor tant that the document is kept as simple and straight for ward as possi ble. However, even if your audience has an advanced knowl edge of the subject matter, this does not excuse the use of complex or overly techni cal terms, especially where there is no real need to use them! To snuff it? Or not? I can't decide... Vol The Verdict 47

46 communication breakdown What is the purpose of my document? When writing in plain English another key factor to consider is the purpose/aim of the document. Whether the document is a letter, an instruc tion sheet, an assign - ment or an appli ca tion, consid er ation needs to be given to the main infor ma tion that needs to be conveyed. In the event that there is more than one issue or aim, take time to priori tise the issues in order of impor tance. The body of the document should then place more empha - sis on the issues of most impor tance and then work succes sively through the other, less signficant issues. (Tip: A good way of dealing with multi ple issues is to mention them briefly in the intro duc tion and then address them individ u ally and in more length, in the body of the text). Outcomes and conse quences Any actions that arise from reading the document should also be consid ered when under tak ing plain English draft ing. Consider: What is the reader expected to do? Do they need to read and remem ber the contents of the document? Is the reader expect to follow instruc tions or under take certain actions? In partic u lar, any instruc tions for the reader should be clearly noted at the commence ment of the document, thereby provid ing the reader with an early aware ness as to what is/will be expected of them. Planning your document Even when draft ing the most infor mal of documents (eg. , memo etc) a good habit to get into is to note down the major points that need to be covered. The more complex the document the more exten sive the notes should be. In his book Paul Rylance 3 describes several steps in planning a document. Briefly put they include: Note all your ideas that spring to mind concern ing the issues relat ing to the document. The order is not impor tant at this stage. Concen trate on getting as much detail down on paper as possi ble. Highlight the main ideas or issues in your notes. Specif i cally those that may be appro pri ate as headings Trans fer your headings to a new page and enter keywords in relation to facts, examples and arguments. Decide the logical order of the items under each heading and assign subhead ings where neces sary. If a heading has a large number of points under it consider break ing them into further headings or subheadings. Review you plan for relevance by refer ring to your defined aims and your assess ment of your readers and their needs. Delete all irrel e vant and non-essential items. Number the headings in the order you intend to present the material. The beauty of devel op ing a plan for your document is that it doesn't matter if your position changes or you change your mind on what you want to cover your plan can just be quickly adjusted to suit your new direc tion. Order and logic The order in which infor ma tion is placed in your document is of great impor tance, as it will directly influ ence the reader s under stand ing of the infor - ma tion presented. Poorly ordered infor ma tion will lead to the reader feeling that the document is disjointed and that they may have somehow missed earlier infor ma tion. So what is the best organi sa tional struc ture? Organi sa tional struc ture will vary depend ing on the type of document that is being written. For example, if a document is intended to direct the reader to fill out a form then the infor ma tion needs to be laid out in a logical step-by-step sequence that will assist the reader in doing just that. No matter what type of document is being written however, it is very impor - tant that the most impor tant infor ma tion/facts are presented first. Sometimes it assists to use headings in order to highlight the impor tance of the presented information. There are many ways in which to sort your infor - ma tion. Consider: Sort events and dates chrono log i cally. If your document contains multi ple catego ries of information, sort it categorically. Organise the issues addressed in descending order of importance. For example, when writing a document that has one central issue and other minor issues, place the central issue first and then discuss the minor ones. Impor tant facts in any document are those impor - tant to the reader, not the writer and a document should follow the order the reader will expect and find natural. Next issue: Part 2 The finer points of draft ing In the next part of this three part article we will look at the impor tance of word usage, sentences and paragraphs, the tone, issues of courtesy and struc ture and layout. Notes 1 Plain Eng lish and the Law, Vic to rian Law Re form Com mis sion, Re port No 9, FD Atkinson Gov ern ment Printer, Mel bourne, D Clark-Dick son & R Mac Don ald, Clear & Pre cise Writ ing skills for to day s law yers, Qld Law So ci ety, 2002, pp P Rylance, Le gal Writ ing and Draft ing, Blackstone Press Ltd, 1994, pp The Verdict Vol

47 Court news Geese ate school walls Romanian builders are in trouble after geese ate the walls of the school they were renovating. Geese pecked away the polysty rene panels they had installed on the outer walls of the school in Risesti village, Vaslui county. Village mayor Constantin Negru said the build ers were respon sible for failing to protect the panels until they were covered with mortar. He told 7 Plus newspaper: After all a goose is just a goose. This project was financed by the public budget and I don t blame the birds for the damages. It s the build ers fault because they didn t take care of their work. Wearing high heels an occupational hazard An indus trial tribu nal in Brazil has ruled that a woman who was sacked from her job for wearing high heels was unfairly dismissed. Brazil ian newspaper 'Folha de Sao Paulo' reports that the company admit ted sacking the 32-year-old woman, who was a secre tary with the Planarc Company, solely because she wore high heels to work. The company's lawyer said the woman's choice of footwear made her more likely to fall and injure herself, poten tially costing the company money. "She was an accident waiting to happen!" he said. The tribu nal ruled that, while the company would have been within its rights to dis cipline the woman, it should not have fired her. The company was ordered to offer the woman her job back. Buried alive news A Serbian funeral director is facing legal action after organis ing the burial of a man who was still alive. The mistake was noticed only as the coffin was being lowered into the ground, prompt ing angry scenes from relatives. The Topalovic family from Novi Sad in Serbia rang relatives to inform them of the death of the head of their family, Bogoljub Topalovic, 84, who they were told had passed away in hospi tal. But they realised a mistake had been made when Bogoljub rang his daughter on her mobile during the funeral service to ask why no-one had been to visit him for a few days. An investi ga tion into the mix-up exposed a system where medical staff tipped off funeral staff about deaths. A nurse noted down the wrong name as she hurried to be the first to inform the funeral parlour and claim a cash bonus. Slobodan Curic, head of the haematology clinic in Novi Sad, said: "We are extremely sorry for the mix-up and are taking the matter very seriously. "It was not in the nurse's juris dic tion to inform the funeral company about the death of a patient, and we shall be taking disciplinary measures against her." Findlaw news Federal sentencing laws The Austra lian Law Reform Commis sion (ALRC) has called for a major overhaul of federal sentenc- ing laws and proce dures. ALRC president Professor David Weisbrot said the ALRC was proposing "four major structural changes that may be seen as contro ver sial, but repre sent logical responses to the problems we've found and are necessary to meet the signif i- cant new demands being placed on the federal criminal justice system". The major changes include: the introduction of a new, dedicated Federal Sentencing Act; the expansion of the role of the Federal Court, to provide for original (trial) jurisdic tion for specified federal crimes and to enable it to act as a national court of criminal appeal in federal matters; the creation of an Office for the Management of Federal Offenders to monitor federal offenders and liaise more actively with state and territory authorities; and the establishment of a new Federal Parole Board, similar to those operating in all states and territories. Professor Weisbrot's comments came as the ALRC released a discus sion paper - Sentenc ing of Federal Offend - ers (DP 70) - as part of its review of federal sentencing laws and proce dures. The discus sion paper contains 140 proposals for reform, which will be subject to further consulta tion and debate before a final report and recom mendations are presented in early The report is avail able via /au/other/alrc/publi ca tions/dp/70. Find Law News Vol The Verdict 49

48 web weaving WEB WEAVING by Rebekah House Rebekah House is the Queensland Law Society's Schools and Com mu nity Ed u ca tion Supervisor The Le gal Aid Qld website The Queensland Le gal Aid website is an ideal place to go for any one seek ing in for ma tion on how to best get through a le gal sit u a tion such as a fam ily dis pute, em ploy ment prob lem or crim i nal charge. The website is designed to help every Queens lander under stand their legal rights and what help is avail able to them. Very acces si ble, easy to use and full of common sense, this website is a mine of easy to under - stand legal infor ma tion. The Legal Aid website is packed with infor ma tion sheets infor ma tive self help kits and much more. It is also a wonder ful resource for those study legal studies in high schools and legal topics gener ally. Navigat ing around this website is easy with the choice of a naviga tion bar across the top of the page or a more detailed naviga tion menu down the left hand side of the website pages. On the central panel of the homepage you will find a short one-line descrip tion of what type of infor ma tion you will find in each section. I will look at 50 The Verdict Vol

49 web weaving three of the sections the website has to offer in the order they appear on the naviga tion bar. Need legal help With a very sensi ble title, and this site is full of them, this section offers exactly what you d expect. It immedi ately tells you how to contact Legal Aid, what there website has to offer and even what to do and how to go about contact ing them, if you have hearing disabil i ties or do not speak or read English. The page gives a link to a section, which will tell you what sort of legal advice and repre sen ta tion Legal Aid can provide and also a PDF version of the appli ca tion for legal aid funding. In the naviga tion menu on the left hand side of the page is a drop down section called Special ist Services. The sections listed are the special ist units and areas within legal aid. The individ ual links will take you to their own pages and these will give more detailed infor ma tion on the partic u lar functions and services of each unit. red links to relevant organi sa tions and four green links to related infor ma tion. So instead of one page of infor ma - tion you have one page with a lot of further infor ma tion that is very much at your finger tips. All the guess work has been removed. The Family Court Proce dures link in this list is an excel lent example of the use of this colour system with links to court forms, kits, brochures, further infor ma tion, legis la tion, and relevant web links. You will also find details in this section in regard to guest speak ers avail able to speak to schools, TAFE colleges, univer si ties and commu nity associ a tions on a range of legal issues, includ ing the appro pri ate contact number. Legal information When you select the link to this section from the homepage you will see at the bottom of the page a key or expla na tion box on coloured links through out the follow - ing pages. It does the user well to pay atten tion to this colour coded system as it will save you from a lot of needless and unnec es sary search ing and click ing. If you are after infor ma tion on a given topic then the dark blue (further infor ma tion) and purple (defini tions) links will be what you are looking for but don t ignore the others as they may lead you to another website that contains relevant information. You will find this colour coded system is used quite exten sively in the Page Links section, which is sorted in an alpha bet i cal table of contents with 125 links given on various topics. As an example if you click on the word Adop tion, it will take you to the page as shown below. On this page it gives ten purple links to defini tions, three The above mentioned dark blue links can be directly accessed from the legal infor ma tion page via the glossary of terms link. This section can be browsed alpha bet i cally or searched. This search engine is separate from the site search engine and will only search the glossary. Unlike most glossa ries though, it goes beyond simply giving you the defini tion. It also gives you infor ma tion screen links. Each page in this section is cross refer enced to each other. The frequently asked questions can be found in this area also. It is broken into three groups, being Civil Law, Crimi nal Law and Family Law. Publications This is possi bly the best publi ca tions section in a public website I have ever seen. This section is divided into very Vol The Verdict 51

50 web weaving The kits also use plain easy to under stand English. Where the writer has had to use a legal term or word they have included a defini tion section or glossary within the kit. The whole concept of these self help kits seems to be clear, precise and easy to use and under stand. A job well done I believe. sensi ble areas such as brochures, fact sheets, posters, self help kits, etc. You always know what you re going to get. There is nothing more annoy ing than click ing on a link think ing you're about to get a nice big document full of infor ma tion only to find out it s a poster. Not here. Posters are only found in the poster section, brochures are where they ought to be and those meatier self help kits are exactly what you d expect. Packed full of relevant infor ma tion, yes, forms as well. The brochures and fact sheets sections will give you more specific infor ma tion on the differ ent areas of Legal Aid, their services, units and depart ments. There are a few brochures and fact sheets dealing with specific issues but not as many as you would expect. Although the Youth Legal Aid Fact Sheets at the bottom of the fact sheet page are excel lent. They cover issues relevant to those in their teens such as mobile phones, School ies week, getting your wheels, moving out of home and many more. Person ally I think these should be at the top of the page. The Self Help Kits page, as shown below, is one of my favour ites on the site as it gives you exactly what you re hoping it will. A complete how to do-it-yourself kit, forms and instruc tions, on all sorts of legal issues. The seven - teen kits are split into three areas, Civil Law, Crimi nal Law and Family Law. Within the first few pages of each kit they will individ u - ally explain when you can use the kit and when you can t. All of the kits that require forms give you actual samples. No they re not just a copy of the form; they have in fact shown how they should be filled in. These are proper examples. The only forms you will find that aren t filled out are those that will be issued by the courts or must be filled in by a solic i tor or Justice of the Peace. In these cases there is a sample sign diago nally across the page. So what sorts of kits are there? In the Civil section you will find kits on minor money issues and vehicle issues such as buying a car and property damage to a car. In the Crimi nal section are kits in relation to vehicle licens - ing, bail appli ca tions and an excel lent guide to going to court. The Family section has all the most common orders and appli ca tions covered with consent orders, domes tic violence orders and varia tions orders covered. Well worth a mention in the publi ca tions section are the Juvenile Justice - A Legal Practi tio ner s Guide and the Untying the knots - your guide to family law. They are 82 pages and 64 pages respec tively and offer a vast amount of useful infor ma tion to the reader. The Juvenile Justice document gives an intro duc tion to juvenile justice in Queensland and goes on to discuss, commenc ing proceed ings, sentenc ing, varia tion and contra ven tion of orders and court powers. The Family Law document discusses relation ship break down and separa tion, family violence, children s and property issues; proof of parent hood, chang ing names and wills. It also covers both state and common - wealth family law. Searching The search facil ity on this site allows you to confine your search ing to the legal infor ma tion database or to search the whole site. I decided to try search ing for something I knew was on the site so a put in one word Bail. What did I get? Much to my pleasure I received a very decent amount of hits that were colour coded again. 52 The Verdict Vol

51 web weaving Not the same as before but coded all the same. Two colours are given in the search results. One is red these are all the hits that link to infor ma tion in the Legal Infor ma - tion database. The blue links lead to other links within the legal aid website includ ing the publi ca tions section. The Bail by Mail self help kit was amongst the list of hits. tion are freely avail able on the website. There are an immense amount of papers here well worth a look at. Many of the papers would be great for using in group discus sions and debates. Links Although the website has many notable links one to take notice of is the Youth Justice Confer ence link which can be found on the right hand side at the bottom of the Legal Aid homepage. Copies of the papers and presen ta - Overall opinion This website is easy to get around with its options of naviga tion menus bars always in sight. The search facil - ity is always in the top right hand corner ready if you should need it. The whole site has a simple layout that is very well updated. Court news Burglar kidnaps parrot A burglar abduc ted a parrot - fearing it would reveal his identity to police. Monty, an African Grey parrot, was the only witness as David Carlile, 32, stole antiques, jewel lery and cash from an isolated country house. When he was arrested and asked why he took the bird Carlile said: Parrots can talk and I didn t want it grass ing me up. Accord ing to The Sun a police spokesman said: We were in stitches. This guy really thought we could inter - view the parrot. It s just as well we nicked him through finger prints and DNA - I wouldn t have liked to have intro duced the parrot to a judge as our chief prose cution witness. Monty remains at large after being sold. But at least Carlile is doing some bird. Carlile, of Bristol, admit ted more than 100 burglaries throughout Berkshire and was jailed for seven years at Swindon Crown Court. Monty s owner Diana Winter appealed for his safe return. The seven-year-old has red feathers in his tail and a blue plastic ring on his foot. He eats only white grapes. Mayor wants to ban death The mayor of a Brazil ian town is trying to bring in a law making it illegal for residents to die. Mayor Roberto Pereira da Silva, of Biritiba-Mirim, came up with the idea because the town s only cemetery is full. He wants to bring in a law that would see relatives of people who die before their time face fines or even jail. The law would make it an offence for the town s 28,000 citizens to not look after their health properly. Mayor Pereira da Silva said there was no way of expend ing the cemetery or build ing a new one, reports Agora Sao Paulo. He said: Eighty nine per cent of the town is rivers, the rest is protected because it is tropi cal jungle. The state govern ment had promised to help build a new verti cal cemetery - but nothing has as yet been done to build a new cemetery. Gym member ships have report edly shot up since the mayor announced his plans, and more people are visit ing doctors. Vol The Verdict 53

52 internet sites Essential links Online Contracts - David Jacobson NSW Office of Fair Trading QLD Office of Fair Trading ACT Govern ment Business Entry Point nlinecontracts.pdf OZ NetLaw dividual&topicid=39&category=shop+online&categ oryid=179 Common wealth Depart ment of Treasury Linda Lavarch - a his tory of firsts, an agenda for jus tice - Rus sell Grenning Depart ment of Justice & Attor ney General Qld Linda Lavarch MP Website Austra lian Women Lawyers Legal Aid Queensland Chief Jus tice - a year in re view Queensland Courts website Prop erty Agents & Mo tor Deal ers Act an update Property Agents & Motor Dealers Act la tion.qld.gov.au/legisltn/cur RENT/P/PropAgMoDA00.pdf Property Sales Associ a tion Qld 7 Hunt & Hunt Lawyers - Article detail.asp?newsid=273 Gadens Lawyers - Article pdateoctober% htm FindLaw Austra lia - Property Resources tory/default_id44_ sitele.htm 54 The Verdict Vol

53 internet sites Essential links Parental responsibility Suzanne Hadley Austra lian Insti tute of Family Studies Family Court of Austra lia Austra lia Online - Family & Relation ships ction=browse&taxonomy=&id=1114&resultcount=2 0&breadcrumbs=514^1114 Law Council of Austra lia - Family Law Section Federal Attor ney Gener als Depart ment - Family Law Statistical Information CCA256C C59?OpenDocument Family Law Act mpilation1.nsf/browse?openform&view=&order =&COUNT=50&START=1&CLASSIFICATION=&CA TEGORY=actcompilation-Fa Amend ments to the PAMDA Faxing and ing of con tracts now Liquor and Other Acts Amend ment Acts Amend ment Bill la tion.qld.gov.au/bills/51pdf/2005/li quoroaab05_aince.pdf Hunt & Hunt Lawyers - Article detail.asp?newsid=272 Body Corpo rate & Commu nity Manage ment Act la tion.qld.gov.au/legisltn/cur RENT/B/BodyCorpA97.pdf Deacons Lawyers - Article =842 Rights of Vic tims of Crimes - Toby Neilsen The Crimi nal Offence Victims Act 1995 ( COVA ) Crimi nal Code Act la tion.qld.gov.au/legisltn/cur RENT/C/CriminCode.pdf Settle ment and Penal ties Act la tion.qld.gov.au/legisltn/cur RENT/P/PenaltASenA92.pdf Crimi nal Offence Victims Bill la tion.qld.gov.au/bills/48pdf/199 5/CriminalOffnVictmB95E.pdf MBA Lawyers - Article s_criminal-injuries.html Vol The Verdict 55

54 glossary Glossary Aberration A de par ture from what is normal or ac cepted or re - garded as right. Adversarial In volv ing con flict or op po si tion or opposed or hostile. Affixation The attachment, addition to, or fastening on permanently. Canvass To examine in detail; scrutinise. Claimant One who asserts a right or demand. Commercial agents One who is au tho rised to act for or in place of another in busi ness or com merce. Confer To con verse with or consult. Connotes Means or sig ni fies, or imply in ad di tion to the literal or primary edition. Contrary Opposed in nature or ten dency, in op po si tion or con trast. Contraventions An act vi o lat ing a legal con di tion or ob li ga tion. Credit A person's fi nan cial stand ing, the sum of money at a persons dis posal in a bank etc. Critic A person who judges the merits of a lit er ary, ar tis tic or musical works; es pe cially, reg u larly or pro fes sion ally. Customise Make to order or modify ac cord ing to in di vid ual re - quire ments. Debt collector A person who is em ployed to collect debt for cred i tors. Delineated De scribe or in di cate pre cisely. Domicile The place that which a person is phys i cally present and that the person regards as home; a person's true, fixed, prin ci pal, and per ma nent home, to which that person intends to return and remain even there cur rently re sid - ing else where. Electronic communication To con verse via elec tronic means such as internet, tele - phone, fax, radio, tele vi sion or sat el lite. Enforceable Able to be given force or effect to; to be able to compel obedi ence. Enterprise An or ga ni sa tion or venture. Evidentiary Of or pro vid ing facts and cir cum stances sup port ing or oth er wise a belief or prop o si tion; or in di cat ing whether or not a thing is true, valid or present. Extant Still ex ist ing or sur viv ing. Guardianship The legal au thor ity and duty to care for another's person or prop erty es pe cially because of the others infancy, in ca pac ity or dis abil i ties. Impede To hinder; retard by ob struct ing. Impudence To behave in so lently or dis re spect fully; to be shame - lessly pre sump tu ous. 56 The Verdict Vol

55 glossary Glossary Impunity An ex emp tion or pro tec tion from pun ish ment. Inadvertently To act un in ten tion ally; to act without proper at ten tion. Injunctions A court order com mand ing or pre vent ing an action. Introspective The ex am i na tion, ob ser va tion of one's own mental land emo tional pro cesses. Marketeer A pro fes sional mar keter. Mechanism The mode of op er a tion of a process; a means. Medium An agency or a means of doing some thing; the ma te rial or form used by an artist or com poser etc. Mortgage A con vey ance of title to prop erty that is given as se cu rity for payment of a debt or the per for mance of a duty and that will become void upon payment or per for mance ac - cord ing to the stip u lated terms. Notwithstanding Despite; in spite of; even though. Observe To adhere to or abide by. Overtones A subtle or elusive quality or im pli ca tion. Pastoral Of land used for or suit able to be used for stock and crop raising. Pursuant In com pli ance with; in ac cor dance with; under. Populist A member or ad her ent of a po lit i cal party seeking support mainly from the or di nary people. Possessory To have or to own. Prohibit To forbid by law; to prevent or hinder. Proviso A lim i ta tion, con di tion, or stip u la tion upon whose com pli ance a legal or formal document's va lid ity or ap pli ca tion may depend. Prudent Cir cum spect or ju di cious in one's deal ings; cau tious. Reform The removal of faults or abuses of a moral or po lit i cal or social kind. Registry A place where doc u ments are lodged or filed with the court. For example, the Reg is try of the Family Court may perform func tions such as the receipt of doc u - ments to be lodged or filed in the court. Tribunal A body ap pointed to ad ju di cate dis putes; a place of judg ment. References The Aus tra lian Con cise Ox ford Dic tio nary, 4th Edi tion, Ox ford Uni ver sity Press, 2004 Black s Law Dic tio nary, 7th Edi tion, West Group, 1999 The Aus tra lian Encyclopaedic Dic tio nary, Lexis Nexis, 2005 Vol The Verdict 57

56 puzzles Puzzle page Find the hidden message... CLAIMANT CONNOTES CONTRAVENTIONS DELINEATED ENFORCEABLE EVIDENTIARY GUARDIANSHIP IMPEDE IMPUDENCE INTROSPECTIVE OBSERVE OVERTONES POPULIST PROHIBIT PROVISO PURSUANT REGISTRY TRIBUNAL VIRTUE Hidden message: Answer next page 58 The Verdict Vol

57 Findlaw news ACT to legislate for civil unions ACT Chief Minis ter Jon Stanhope said the ACT Govern ment was draft ing legis lation to provide for civil unions in the ACT, paving the way for same-sex couples to have their relation ships formally recog - nised for the first time. Mr Stanhope said the govern ment had gone to the last election promis ing to look at recogni tion of same-sex relation ships and he hoped the legis lation would be introduced into the Legisla tive Assembly early next year. Civil union will deliver real, functional equal ity under ACT law for couples who either do not have access to the Common wealth Marriage Act or who prefer not to marry, Mr Stanhope said. This includes opposite-sex couples and transgender and intersex Canberrans. Partners to a civil union will have the same legal recog ni tion under ACT law as married couples. The announce ment comes six months after the release of a discus sion paper looking at three possi- ble options for deliv er ing legal equal ity to same-sex couples - marriage, civil union and registration. Justice Kirby NSW Australian of the Year news High Court Justice Michael Kirby has been named NSW Austra lian of the Year 2006 during a ceremony in Sydney. Justice Kirby was recognised for his humani - tarian work. He will now represent the state as a final ist in the national Austra lian of the Year awards to be presented in January. The national direc tor of the National Austra lia Day Council, Warren Pearson, said Kirby had made a tremen dous effort both in and out of the court room and was a "fantas tic choice". "He gives back to the local community here in Austra - lia through endless charity and community work, but also on an inter na tional scale he goes above and beyond to fight for human rights," Pearson said. The Austra lia Day Council said Michael Kirby was the youngest male to be appointed to federal judicial office. He served as the first chair of the Austra lian Law Commis sion, and became a High Court judge in Kirby's work for the UN and in estab lish ing judicial systems for new or struggling nations brings him inter - national respect, the Council said in a state ment. Court news Wheelchair ban for drink-driver A disabled man had his electric wheel chair confiscated after being caught more than four times over the drink drive limit. Sven Mietke, 26, from Loebau in Germany, was fined 1,300 and banned from using his electric wheel chair for three months. Police stopped Mietke as he was on his way to buy beer from a petrol station in the early hours of the morning. They said he was going down the road from side-to-side and when breathalysed found he had 228 milli grams of alcohol in 100 milli litres of blood. In Germany, the legal limit is 50 milli grams of alcohol in 100 milli litres of blood. In court Mietke admit ted: I drink 10 to 12 bottles of beer a day. He will now have to use a regular wheel chair until the ban is over. Cashier recognises sweetheart robber A masked robber was arrested after he held up a bank where his high school sweet heart worked - and she recog nised him by his blue eyes. The 21-year-old bank clerk, unnamed for legal reasons, was on duty in the Austrian lakeside town of Obermillstadt when a masked man carrying a gun burst in. He demanded she hand over all the cash from the safe. She gave him the money and the man ran off. But when the police came the clerk told them she had recognised the robber as her first boyfriend and gave them his name. Police arrested the man after they found the stolen money at his home. Bank robber referred to next counter A bank robber fled empty-handed in Austria after being referred to a different counter. The clerk he approached told him she did not deal with those types of queries. But there was a big queue for the next cashier at the Landeskbank-Hypothekenbank in Vienna. So the man, who was holding a silver box that he claimed was a bomb, fled before repeat ing his request. Clerk Maria Bertel said: He came up to me wearing his scarf wrapped high around his face and said he wanted money. I said I didn t deal with money here and told him to go to the next counter. It was only after wards I realised he was trying to rob the bank. We called the police, but by the time they came he had run off. Answer: Online contracts Vol The Verdict 59

58 Rights of vic tims of crimes (cont..) notes Notes (cont. from page 19) 8 Sec tion 12 of COVA. 9 Section 13 of COVA. 10 Section 14 of COVA. 11 Section 15 of COVA. 12 Cole v. Turner (1704) KB Purcell v. Horne (1838) 112 ER Section 22 of COVA. 15 Section 2 of COVA. 16 Section 19 of COVA. 17 Section 20 of COVA. 18 Section 24(1) of COVA. 19 Sec tion 35 of the Pen al ties and Sen tences Act Sec tion 2 of COVA Amend ments to COVA û ap ply from 19 De cem ber See also Re: Julie v. Atwell (2001) QCA R v. Kazakoff; ex parte Fer gu son (2001) 2 QDR Sec tion 26(3) of COVA. 24 Sec tion 25(7) of COVA. 25 (2004) QCA (2002) QCA Sec tion 26(5) of COVA. 28 Sec tion 26 of COVA gen er ally. 29 Rule 11 of the Uni form Civil Pro ce dure Rules (UCPR) Rule 105 of UCPR. 31 Rule 110 of UCPR. 32 See sec tion 95 of the Pub lic Trustee Act 1978 and Fitzpatrick v. Jack son (1989) 2 QDR See Ned v. Ned 2000 QVC 323 and Hendry v. Llorente 2000 QCA Sec tion 40 of COVA and sec tion 31 of the Lim i ta tion of Ac tions Act Sec tions 32 and 23 of COVA. 36 Sec tions 37 and 38 of COVA. 37 Sec tions 33 and 34 of COVA. 38 Sec tion 35 of COVA and sec tions 3-5 of the Crim i nal Of fence Vic tims Reg u la tion Man of the World (Act 1, Scene 2). 60 The Verdict Vol