In October 2013 Sydney awoke to a burnt orange sun, and a cloud of dust. The sunset was equally remarkable with a black cloud permeating in the sky as a dark orange sun; set to rest for the night. In this remarkable display of a darkened sky was confirmation of the bushfires which have devastated New South Wales.

The bushfires have affected various parts of New South Wales including the blue mountains areas. Information from the Rural Fire Service of NSW, shows the impacted areas including amongst others Katoomba, Oberon, Blackheath (“The Blue Mountains Region”) and Port Stephens.

With homes lost, animals dead and areas in turmoil the question turns on what is the Law and whether or not it is adequate.

Crimes Act 1900 (NSW)

In New South Wales the Bushfire Legislation is contained in the Crimes Act 1900 (NSW) (“The Act”). Division 5 deals with bush fires and has only two sections, which are as follows:-

CRIMES ACT 1900 - SECT 203D

203D Definitions in this Division:

• "causing a fire" includes:
  • (a) lighting a fire, or
  • (b) maintaining a fire, or
  • (c) failing to contain a fire, except where the fire was lit by another person or the fire is beyond the control of the person who lit the fire.
• "firefighter" means a member of a fire brigade under the Rural Fires Act 1997 or the Fire Brigades Act 1989 or of any other official firefighting unit (including a unit from outside the State).
• "spread" of a fire means spread of a fire beyond the capacity of the person who causes the fire to extinguish it.

203E Offence:

(1) A person: (a) who intentionally causes a fire, and (b) who is reckless as to the spread of the fire to vegetation on any public land or on land belonging to another, is guilty of an offence. Maximum penalty: Imprisonment for 14 years.

(2) For the purposes of this section, recklessness may also be established by proof of intention.

(3) A person is not criminally responsible for an offence against this section if: (a) the person is a firefighter or acting under the direction of a firefighter, and (b) the person caused the fire in the course of bushfire fighting or hazard reduction operations.

(4) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence against section 100 (1) of the Rural Fires Act 1997 , it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.

The Management of Bushfires is regulated by the Rural Fires Act (1997) NSW (“Rural Fires Act”). The Act was proclaimed in September 1997 and superseded the Bush Fires Act, 1949. The act is read in conjunction with the Rural fire Regulation 2002.

The act has 7 parts which deal with the set up and conduct of the NSW Fire Service, the approach and co-ordination of bushfire fighting, bush fire prevention, the NSW rural fighting fund, the bushfire advisory council and miscellaneous matters.

Section 100 creates an offence for a person who without authority lights a fire or sets a fire, the liability is extended to an owner/occupier of the land who permits fire to escape the land under circumstances as to cause or is likely to cause injury/damage.

Some interesting sections of the Rural Fires Act:

• Section 99 – “Total Fire ban”, provision is made for a total fire ban in certain circumstances, this includes lighting a fire in “open air”, including for cooking a meal or having a BBQ; è
• Section 81 – “General Bush fire danger period” – from 1 October to 31 March each year; è
• Division 6A – Insurance companies are required to contribute annually to a rural fire brigade contribution. Owner/occupiers may be responsible for this payment if it is otherwise payable by a foreign insurance company.

The legislation has not been completely successful in eradicating bushfires in NSW as evidenced by the recent circumstances; however there are mechanisms in place for prevention and crisis control. For those who have been affected by bushfires our thoughts and prayers are with you.

If you are facing criminal charges as a result of bushfires, or have been affected by bushfires, please contact us on 02 8917 8700.

The end of our calendar year is rapidly approaching.  Thanks to the support of our clients, our colleagues, our service providers as well as family and friends, Freedman & Gopalan is able to report a successful year of service to our clients. Before you finalise your holiday arrangements, there are a number of legal issues which you may need to consider:-

Have you updated your Will?

Do you have a Will?  Does your Will provide for your Estate to be easily administered and finalised?  Have you provided for all the Beneficiaries that you ought to?  Many of our clients update their Wills before lengthy holiday periods particularly when they are travelling.  Please feel free to contact us to discuss this matter.

Holiday Cash Flows

We would all like to provide for bonuses for staff, Christmas parties, Christmas gifts to clients and suppliers and money in the Bank for the holiday period.  Have all your customers and clients paid what is due and owing?  Freedman & Gopalan are highly experienced in Debt Recovery processes and would be happy to assist you in recovering any outstanding debt.  A complimentary letter of demand from Freedman & Gopalan can often result in prompt payment.  Please feel free to contact us.

Employer Liabilities at Christmas Parties

As Employers, we are responsible for conducting a safe working environment for all of our staff.  The lead up period to the holiday season often means celebrations, staff parties and other forms of entertainment.  Be sure that you are aware of your responsibilities to provide a safe environment for your staff.  Please feel free to contact us to discuss directions which can be forwarded to staff, ensuring good and appropriate behaviour at staff parties.

Arrangements for Children

Are you planning to go overseas with your children?  Does your former partner agree to this?  Do the children have Passports? The holiday period can often result in high tension in all families including those where the parents have separated.  Have the arrangements for your children to spend time with you and your former partner been adequately considered and agreed to.  Now is the time to make sure that these arrangements have been made so that the holiday season does not become a time of argument and dispute.

Having all of these arrangements in place will surely prove for a stress-free and relaxing holiday season.  If you require assistance, contact us to ensure that all arrangements have been made.

Please feel free to contact us at any time and we wish you a safe and happy holiday season.

If you require any assistance with your end-of-year arrangements, or wish to put in place arrangements for your children to travel, contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP! 

Our Senior Partner, Mr Harry Freedman, of Freedman & Gopalan solicitors, was awarded the Law Society Pro bono solicitor of the year award at a lavish ceremony held at Parliament House on Wednesday evening, 29 October 2014, as part of

In his acceptance speech, Mr Freedman , who had previously been nominated for the same award in 2013, acknowledged the importance of assisting those less fortunate in the community. He stated that the giving of charity was a concept ingrained in his family life and also part of his Jewish culture. Over the years he has acted on numerous matters for those in need and was mostly successful in obtaining positive results.the Justice awards 2014.

He acknowledged the support of his Partner and staff in assisting in being able to provide this service and encouraged all professionals to consider offering a certain amount of time per annum to provide similar assistance to those in need. He stated that, “rewards do not always have to be financial”. The award given by the Law Society of New South Wales ought to better be publicised  throughout the community to counter the few but highly publicised instances when solicitors had acted poorly to the detriment of clients. He stated that, “the reputation of solicitors is often harmed by the greedy actions of a few members, as the vast majority of solicitors always act in the best interests of their clients”. Even though he commenced a new partnership in the last 12 months, he and his partner were committed to putting back into the community and intended to continue on this path.

You may recall an incident where a Sports Commentator, (Rex Mossop) undertook a citizen's arrest of a man walking naked to a local beach.

The term "citizen’s arrest" carries with it a lot of folk law and myth.  It is however a legitimate form of conduct which can be undertaken in certain circumstances.

The power to make a citizen’s arrest is set out in section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).  The section reads as follows:-

A person (other than a police officer) may, without a warrant, arrest a person if:-

a.      The person is in the act of committing an offence under any Act or statutory instrument; or

b.      The person has just committed any such offence; or

c.       The person has committed a serious indictable offence for which the person has not been tried.  Pursuant to Sub-section 2, a person who arrests another person under this section must as soon as reasonably practical, take the person, and any property found on the person before an authorised officer to be dealt with according to law.

Notwithstanding this right to do so and perhaps notwithstanding a very strong urge to do so in certain circumstances, extreme care and caution must be exercised at all times.  One needs to be careful about your own safety not knowing whether or not the person that you are trying to arrest is mentally stable or has a weapon. At the same time the power granted by this section also imposes on such a person an obligation to be able to determine whether or not the person misbehaving is in fact committing an offence.  That is a decision which creates in some circumstances a need to be able to understand the law.

One must also exercise control over the manner in which the arrest in to be undertaken.  Notwithstanding the misconduct of the person whom you wish to arrest, you still have a duty of care to only use reasonable force and to act appropriately.  It is generally safer to call the police who have far greater powers and training in undertaking arrests.

If you have any queries in relation to a citizen's arrest, or have been charged in a criminal matter, give us a call on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP! 

Freedman & Gopalan Solicitors are happy to report another successful Court decision in favour of one of our clients, Australian National Car Parks (ANCP).

After what appeared to be extensive lobbying to the Department of Fair Trading about the business operations of our client ANCP, the Department issued charges against ANCP alleging undue harassment for pursuing unpaid payment notices levied against the drivers of vehicles on properties managed by our client. We were familiar with the recovery processes undertaken by ANCP and never considered that those processes were either undue harassment or in any other way inappropriate.

Mr Peter Silver, Senior Counsel briefed to appear on behalf of ANCP made submissions to the presiding Judge demonstrating the hopelessness of the Prosecution’s case. Following his submissions, the Judge recommended negotiations. The presiding Judge also expressed her concern as to how the charges could ever be proven against ANCP. It was recommended that the parties engage in some discussion in relation to payment of legal costs. In accordance with Her Honour’s directions, ANCP did enter into negotiations with the Department’s representatives which led to the charges being formally withdrawn and the Department arguing to meet with representatives of ANCP to discuss dealing with consumer complaints and a general review of the business operation.

We are pleased that our initial advice was proven correct and we were able to provide sound legal advice and assistance to our client.

Previous news report:

http://www.smh.com.au/nsw/car-park-company-crossed-the-line-court-told-20130904-2t5lq.html

F&G’s current media statement:

When F&G were asked to comment in relation to the Court proceedings, we said:

“We were initially surprised that any charges were laid against our client, ANCP. The withdrawal of those charges was not only gratifying, but also appropriate. After having spent significant time in understanding our client’s business model and methods of operation, it was clear that ANCP undertakes a legitimate business enterprise which also assists its customers in managing their property portfolio.

Not only were we able to negotiate the withdrawal of charges against our client but have been able to enter into arrangements to meet with the Department of Fair Trading to ensure that an even better processes for dispute resolution are negotiated and our clients overall business process receives the necessary approval and endorsement from the Department. We consider the outcome to be a positive result for all concerned.”

New laws and amendments have been introduced.  Make sure you keep up to date with these changes.

Bankruptcy Law: Important name change for ITSA

As of 15 August 2013, the Insolvency and Trustee Service of Australia (ITSA) has changed its name to Australian Financial Security Authority (AFSA).

Estate Law: The law says multiple spouses - be wary

The changing dynamics and structures of the family unit and the increase in multiple spouses and domestic partners has led to changes in the Succession Amendment (Intestacy) Act 2009 (“the Act”) which deals with the distribution of a deceased persons assets in circumstances where there is no Will.

Employment Law: A post on social media (LinkedIn or facebook) will it cost your job?

Do you hold a belief that no matter what you post on social media (whether Linkedin or Facebook) that it would be a private matter and not concerning your employer? You might be of that belief, however, the Fair Work Commission has upheld an architectural companies position to dismiss an employee after it was found that he had attempted to approach his employer’s clients through the social media’s network, Linkedin (so that he could promote and expand his own business).

Bradford Pedley v IPMS Pty Ltd t/as Packvonhartel (2013) FWC 4282 looked into the issued when an employee was pursuing, out of work activities, which were against employees duties to his employer

Family Law: The times - they are a-changing: can an affair be legally considered a de facto relationship?

Relationships are complicated generally and when the Law becomes involved further complications arise. Up until some years ago, the Law treated marital relations and de facto relations differently. Family Law Act gave exclusive jurisdiction to the Family Court and Federal Circuits Court to effectively treat de facto relationships on the same basis that marital relationships are being dealt with. At the time that these amendments were being contemplated, concern was voiced by many Practitioners as to the broad description of what constituted a de facto relationship. This issue was recently considered by the Family Court in a matter of Jonah & White. In this Application the Applicant sought a division of property from the Respondent claiming they were in a de facto relationship. The Court was asked to declare the existence of the de facto relationship

Employment Law - Unfair dismissal - your rights

Under the Fair Work Act a person has been unfairly dismissed,

• if the dismissal was harsh, unjust or unreasonable and;
• Was not consistent with the Small Business Fair Dismissal Code and/or
• was not a case of genuine redundancy.

Read more (Reporter September 2013 Issue)