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From time to time we will share useful legal information with you so check back at this page regularly to stay up to date regarding Brisbane and Queensland legal developments.

Australian fatigue management legislation

In 2008 the Queensland Government brought in laws with the intention of reducing crashes on our roads by way of fatigue management. Whilst this may very well have been the government’s intention, the practical effects have been very different.

The issue of monetary penalties and the loss of demerit points for failing to record a name or date in a work diary or the need for drivers to drive a cab-over are to reduce the length of the prime mover and therefore increase the length of the load that they are required to carry are just two examples of the practical effects of this fatigue management legislation. However it seems neither of these examples do anything whatsoever to reduce road safety risks associated with driver fatigue.

There is also the ongoing burden to drivers to deal with the inconsistency of laws between states and territories and the need for drivers to be familiar with different requirements around our country. Clearly this detracts from the original intention of the law, being the safer operation of heavy vehicles both to drivers and other road users.

After years of discussion between state governments, the Queensland Parliament passed the Heavy Vehicle National Law Act being the principle piece of law and as at 14 February 2013 the Heavy Vehicle National Amendment Act to resolve the finer points raised as concerns following public consultation, particularly with the transport industry.

The legislation creates a national regulator and it is intended that the laws will be mirrored by all states of Australia (except Western Australia) so that there is one set of rules rather than the complex legislative maze that currently exists. Now that the two pieces of legislation have been passed by parliament, they are set to become effective as at 1 July 2013.

The legislation, which applies to all vehicles weighing more than 4.5 tonnes is 719 pages long and seeks to address all the issues relevant to the transport industry in Australia.

In constructing this new legislation, there has been significant input from the National Transport Commission, other transport related bodies and individuals so it is hoped that this legislation, whilst being nationally consistent, will also be practical for all levels of our industry from the owner-driver to major fleets.

One key point to consider is the extent to which liability can be imposed under the new laws, not just on the driver but other related parties. The responsibility now also extends to employers and other related entities as they will need to show that they took reasonable steps to ensure that drivers don’t speed by imposing unrealistic time limits on drivers etc.

The legislation establishes the National Heavy Vehicle Regulator, which is the single administrator and national point of contact for heavy vehicle operators rather than state transport authorities as has previously been the case.

All applications for mass management, maintenance management, basic fatigue management and advanced fatigue management will be through the national regulator. Registration, licensing and issues to do with the carriage of dangerous goods will remain the responsibility of the states and state police and authorised officers will continue to enforce heavy vehicle offences though this will all be under the new national laws.

The real question is now what do these laws mean for you. There are a number of key changes that we will address in future issues though the first point that is immediately relevant is the focus by the government on fatigue management. There have been significant increases in monetary penalties for breaches of hours and thankfully a reduction in penalties for minor unrelated fatigue management offences such as typographical errors in the recording of work diaries.

We will ensure that in further editions we will outline some key changes created by the new laws relating to drivers and owners as this is a major change for the transport industry as a whole.

Chasing transport industry debts

Happy new year and welcome to 2013.

In the course of the past year Hall & Co Solicitors saw many situations where companies, trusts and sole traders were not paid for work they had performed as a consequence of customers being wound up or being declared bankrupt.

With stressed cash flow due to not being paid on time by their customers, many of our clients struggled to stay afloat themselves and in some situations found themselves facing bankruptcy or insolvency as a result. In the transport industry, cash flow is critical to pay for tyres, bills, petrol, loan repayments etc and late payment or worse non-payment of your invoices can be disastrous.
Whilst we are not in the business of providing financial planning advice, there were a few key factors which, once put into practice, provided our clients with some assurance that they would be paid for work they had completed and limited the amount of damage that would occur if a non-payment situation arose.

  • Proper Contracts
    • Where possible, ensure that there is a concise agreement between you and your customer which sets out the terms and conditions of payment and your rights if those terms and conditions are breached by the customer.
    • Terms and conditions may include the ability to register an interest over property owned by the customer so that recovering larger debts becomes possible and your ability to recover your legal costs incurred in enforcing the agreement.
  • Contracting with the Proper Person
    • Understanding who you are contracting with is very important. If your contract is with an individual trading as a business name, it is the individual person who will be liable to you. If the customer is a corporation / company (usually ending in “Pty Ltd”), it is common that the company may only be worth $2 and therefore there should be provisions in your agreement to appoint a guarantor, meaning that if the company is unable to pay your debts, you are able to chase an individual (usually a director of the company).
  • Invoice
    • Whilst the last thing on your mind may be issuing invoices once you have returned from days or weeks away from home, the sooner your invoice is issued, the sooner you will be paid for the hard work you have done. This will improve your cash flow and your ability to pay your own debts such as fuel card accounts.
  • Time to pay
    • Strictly adhere to the time which you have stipulated in your agreement or invoice that your customer must pay you by. Each business is different, however if, once the account becomes 60 days old (for example), don’t rely on promises of payment as in our experience talk is cheap. Have a debt recovery system in place and remember that the sooner you chase the debt, the sooner the sometimes lengthy process of debt recovery can begin and the sooner you will have your cash flow back to normal.
    • Often companies try to trade out of bad situation which often makes the situation worse – in our experience, the longer your account remains outstanding the less likely it is that you will be paid at all as your customers may be moving towards bankruptcy or insolvency.

If the situation arises that you have not received payment within the time you have prescribed on your invoice, it may only be the cost of a letter of demand from a solicitor which is necessary to recover that money. Alternatively, you may have to go down the path of briefing solicitors to institute legal proceedings against your customer if the amount of time is significant enough to justify this and if there is a question as to the financial solvency of your corporate customer, you may also wish to consider applying to have the company wound up.

Irrespective of how good your work ethic is, or the quality of service you provide, it is important to make sure that you have systems in place to give you the best opportunity to be paid fully for the work you have performed. This should make 2013 a more enjoyable year without so much worry about not being paid your outstanding accounts.

Drink driving - be safe over Christmas

Well the festive season is upon us and it is at this time of year that we can embark upon a little too much Christmas cheer. As is the case every year at this time, the police services of Australia will be out in force in an effort to reduce road traffic accidents and remove drink drivers from our roads.

Whilst we all are familiar with responsible consumption of alcohol and when we can and cannot drive, it is often the morning after a big night when offending drivers are caught out. You can feel fine to drive even if your blood alcohol limit exceeds that which is legally allowed.

We would like to remind readers that, depending upon certain criteria, if you are charged with a drink driving offence you may be eligible to apply for a work licence to enable you to keep driving.

In Queensland, a work licence may be granted in the following circumstances:

• Drink driving;
• Being in charge of a vehicle whilst over the legal alcohol limit;
• Driving with cannabis, ecstasy or ice in your saliva or blood;
• Being in charge of a vehicle with a relevant drug in your saliva or blood; or
• Failing to supply a breath or saliva sample at the roadside (not at the police station).

Exceptions to this include any readings where your blood alcohol content is 0.15% or more or if you are the holder of a provisional licence. Further you must have been the holder of a current licence at the time of the offence and not been convicted of a drink driving, dangerous driving or similar offence in the last 5 years.

Also, your licence must not have been disqualified, suspended or cancelled in the previous 5 years, though if your licence was suspended by the State Penalties Enforcement Registry (SPER) as a consequence of failing to pay a fine, then this will not prohibit your application from proceeding.
Importantly, if you wish to make an application for a work licence you must apply to the Magistrates Court of Queensland at your first appearance there, as it will be too late if you wait until the court disqualifies your licence. Therefore, once you are charged make sure you seek appropriate legal advice before your first court appearance to determine whether or not you fit within the criteria to make an application for a work licence.

If you do fall within the criteria, the other points which you will need to prove are as follows:

• You are a fit and proper person;
• You are without a licence;
• You and/or your family would experience extreme hardship if you are not able to drive;
• It is likely you would lose your job (if you are self-employed, that you would be unable to earn an income).

All of these particulars will be set out in affidavit material (sworn statements) that are submitted to the court for consideration together with submissions by your lawyer.

Hopefully you will not need to go down this path this festive season or thereafter, though it can never hurt to be aware of your rights if things don’t go to plan.

Transport Work Diaries Legal Issues

Gone are the days where blowing a steer tyre or frying a turbo on the Nullarbor are the most dreaded situations for a truck driver.

Both state and federal legislation has brought about requirements for drivers to complete work diaries in the course of their employment with a view to providing a structure for fatigue management to make our roads safer. Despite the good intentions of this legislation, each day I hear from drivers who have failed to comply with the recording rules of a work diary on points that don’t relate to fatigue, leading to the widespread feeling that work diaries are a tool to generate revenue for governments.

Even though these requirements have been around for some time now, there are still interpretations rolling around as to what are and are not the correct methods of filling out work diaries and when they should or should not be completed.

To clarify some key points which have lead to fines being issued to our clients:

1. When starting work, you must record the following:

a. Your name and current driver’s licence number (including the state where the licence was issued);
b. The day and date of the week;
c. The address and time zone of your base (and if you have more than two employers, the base of each employer);
d. The address where the driver’s records are kept;
e. Whether you are working as a solo or a 2-up driver;
f. The work rest option you are working under;
g. The accreditation number of the operator of the vehicle if you are working under BFM or AFM accreditation.

2. Immediately before and after each work and rest change, you must record:

a. The nature of the work or rest change;
b. The length of rest time spent anywhere since the last work and rest change;
c. The time and place of the work and rest change;
d. The odometer reading;
e. The registration number of each heavy vehicle driven at the time of the change.

3. Before finishing work, you must complete the totals of the work time and the rest time for that day.

At this stage, at the completion of a period of work and prior to commencing rest time, you should be completing your work diary prior to leaving your truck and equally at the end of a rest time and before commencing work time you should complete your work diary.
The other area drawing attention from the authorities is the spelling of names of places. Though the name of the location would obviously relate to the general area you are in, this is also a subject that is leading to the issuing of fines to drivers along with penalty points which have implications for licensing.

Regarding fatigue management (or revenue raising… I will let you decide), make sure you are complying with the rules relating to recording in your work diary so that the next time your diary is inspected it is a far more enjoyable experience.

Company Debt Recovery Explained

In recent times the topic of company liquidation relating to business debt recovery has become more apparent in the media as a consequence of both difficult economic times and the lack of proper systems and structures within companies.

The issuing of a Statutory Demand and ultimately the filing of an application to wind up a company (with company debt recovery in mind) with the Supreme Court of your state or territory must be undertaken only after you have received proper legal advice due to the criteria needed to be met by the Corporations Act and the substantive common law principles which exist in this area.

Often Statutory Demands are used as debt recovery tools which is not their intention. Statutory Demands are designed to be used only for the winding up of companies that are insolvent – i.e. those companies that are unable to pay their debts when they fall due and owing.

The Statutory Demand requires consideration of the nature of the debt, the standing by the creditor to issue such a document along with compliance of the contents of the document and service of same.

Failure to comply with these strict requirements may expose people to the risk of the company to which the Statutory Demand is being issued making an application to the Supreme Court to set aside the Statutory Demand which, if successful, may expose people to significant adverse costs orders.

Following the expiration of the 28 day period allowed for a company to respond to a Statutory Demand, the application to wind up, service and advertising also require strict adherence to a number of statutory time limits and steps which must be undertaken in order to bring about a successful winding up application.

Despite these factors, with the proper legal advice, in instances where debts from insolvent companies remain outstanding, these orders are able to be obtained following proper consideration of your individual circumstances and the relevant law.

The staff of Hall & Co Solicitors have previous advised a variety of clients ranging from large corporate entities in the transport industry through to small sole trader businesses, offering practical and affordable advice to recover outstanding money and deal with difficult debtors.

CTP Insurance Law in Queensland

In Queensland if you have a motor vehicle accident or suffer an injury at work, it may be that you are entitled to compensation for the accident you have suffered. This short article gives a summary of the background to an important part of the Queensland insurance landscape. The relevant legislation for consideration is the Motor Accident Insurance Act 1994 (Qld).

If you have a car or other vehicle, such as a motorcycle, that travels on Queensland roads, you must register the vehicle with the Queensland State Government and a part of this registration fee is called Compulsory Third Party insurance, or CTP insurance for short. In the event that there is a motor vehicle accident, the CTP insurance steps in to pay for damage caused to the vehicles involved in the crash and to pay for medical costs associated with personal injuries suffered. But have you wondered who the third party is? What about the first party and the second party?

In Brisbane and throughout Queensland, the first party is the driver or owner of the vehicle which is found to be at fault in the accident.

The second party is the CTP insurer of the at fault vehicle.

The third party is the person or people injured in the accident.

The Queensland government felt that it was necessary to force everybody to take out insurance to cover injuries caused by motor vehicles as a matter of public policy, due to the large medical costs that can ensue.

Due to the large amount of money held by CTP insurers (just think, everybody who drives in Queensland contributes a large amount of money every year to their accounts), an industry has sprung up around personal injuries sustained due to car accidents, motorcycle accidents and other motor accidents. This is why people hire personal injuries lawyers in Brisbane and throughout Queensland.

Personal injuries lawyers understand that in most cases it is more expensive for a CTP insurer to fight against a claim made against them for money due to an injured person than to simply pay a reasonable amount of money to them. Litigation is often an option for somebody who is fighting resistance from an insurance company and lawyers use this as a threat to make sure the CTP insurance companies don’t just hold onto the money and earn interest on it, but use it for its rightful purpose – to compensate people who have been injured in motor vehicle accidents.

There are large fines if you do not obtain CTP insurance for your car or bike but more troubling than this is what can happen if you get into an accident. If you don’t have CTP insurance and you cause somebody an injury, you may be personally liable to pay them damages and compensation, so make sure you have CTP insurance!

For more information you can visit the Motor Accident Insurance Commission or contact a lawyer.

Tips for Creating a Queensland Will

When you are looking for a Mt Gravatt solicitor to visit in order to draft your will, there are some points you should consider before you book a time for your appointment.

Firstly, it’s in everybody’s interests that the drafting and execution processes associated with forming a legally binding will proceed as efficiently as possible. The main way you can achieve this is by ensuring that you have prepared everything in advance so that your lawyer can easily ascertain your intentions and convert them into a will.

Here are some hints and tips for you to make the process of forming a will in Queensland easier:

  1. Create a list that explains who the beneficiaries are and in particular their relationship to you (e.g. daughter, sister, spouse etc).
  2. Compile documentation to do with any property you own so that your solicitor can include real property descriptions in the will rather than street addresses.
  3. Check that you are providing your lawyer with current information to do with your company by conducting a search with ASIC prior to your consultation.
  4. Find the details of your life insurance policy so that your lawyer can put these on file with your will (if you are storing it in safe custody with your solicitor) – this will make life easier for your executors when it comes time to manage your affairs.
  5. Draw a diagram of your assets and liabilities and who owns what and what will go to whom so that your lawyer can see much more easily what your testamentary intentions are.

Importantly, remember that there is legislation that will make it possible for people to challenge your will in certain circumstances, so it is critical that you obtain legal advice to ensure that if this does happen, your will is likely to stand up to the challenge. A key way to do this is to make sure your will provides for people who may make what is known as a family provision claim.

Finally, avoid using DIY will kits. Although these are usually as valid as a will drafted by a qualified Australian Legal Practitioner (solicitor), you don’t get the face to face question & answer session that a lawyer will provide for you. It is this quizzing of your legal affairs that may prompt you to remember something you previously wanted to include in your will or that may prevent you from making a mistake.

If you would like to come and see us at Hall & Co Solicitors, we have plenty of free parking surrounded by gardens with a view of picturesque Mt Gravatt. Our office is located in the heritage listed building at the top of the Mount Gravatt Showgrounds – simply look for our signs once you have come into the main showgrounds gate off Logan Road.

Online Business Terms and Conditions

Website user agreements / terms & conditions (or Ts & Cs for short) are a critical yet often ignored part of the online legal landscape. Hopefully you will never have to argue with your customers, let alone engage in a protracted dispute but if you find yourself going down this path and you do not have tight terms & conditions to rely on to prosecute your argument, you will wish you did. Legislation will step in to protect you in some cases but in the vast majority of online transactions your only friend is contract law and if you haven’t crossed your Ts and curled your Cs, you may be out of pocket or otherwise in trouble.

Record your Agreement

A key consideration for your online user agreement or terms and conditions is to make sure you have a record of the agreement being clicked or otherwise agreed to. If you cannot prove that the agreement was actually executed electronically by the user or customer, it will be your word against somebody else’s and since it will be your responsibility to prove your allegations to a court, you will have to be a pretty convincing witness to show the agreement without a shred of evidence. For this reason, consider saving a time and date stamped copy of your electronically agreed to contracts for later use as evidence and ideally to prevent having to go to court.

Assess Key Risks

Another consideration for drafting t’s & c’s for your website is making sure they cover all the risks you need to cover. A good way to make sure your terms are up to scratch is of course hiring a lawyer to advise you on the matter however if you want to do this yourself, make sure you draft a comprehensive list of problems and worst case scenarios so that you can address these by way of including a term or condition to counteract the risk. For example if you think a risk is that the customer won’t pay you on time, make sure you have strict payment conditions regarding time in the agreement.

Utility of Agreement

Do you even need terms and conditions or a user agreement on your website? Many people simply copy and paste somebody else’s agreement assuming that they need an agreement simply because everybody else has one. Whilst it is often true that you should protect your legal interests by having an agreement on your website, it is also true that you don’t need to have a novel-length contract if you aren’t even selling anything online. As a rule, if you are selling things online you do need a user agreement but if you aren’t, think carefully about what type of agreement you need and you will often find that something simple will suffice.

Other questions to ask yourself with respect to online terms and conditions include:

  • What is my business’ policy regarding refunds?
  • If my customer doesn’t pay me, what effect will this have on their user account permissions?
  • The laws of which jurisdiction will govern the relationship between users and my business?
  • What behaviour from the user would constitute grounds for barring them from my service?
Copyright and Intellectual Property

Finally, remember that you can’t simply copy and paste an agreement you find on someone else’s website without infringing the owner of the original agreement’s intellectual property rights – specifically copyright law. Obviously this is an ironic situation, given that your goal was to comply with law and protect your legal affairs. Draft an original agreement or purchase a template for which the owner grants you the right to copy and amend as required and then you can rest easy, as long as you are completely sure that the agreement protects against all the risks you have identified.