Have you ever received a gift card or voucher during Christmas only to discover later that you missed the expiration date? One in seven gift cards bought in Australia go unused every year.

NSW Gift Card Reform

From 31 March 2018, most gift cards and vouchers in NSW must be sold with a minimum expiry period of 3 years to any consumer in NSW. Businesses also cannot apply post- purchase administration, including account-keeping and activation fees to the balance on the card. These requirements appear in the Fair Trading Act 1987. Prior to the NSW gift card reforms, businesses could essentially place any expiration period which could range from anywhere between 3 months to 24 months. In NSW alone, it is estimated that $60 million a year is lost on unredeemed gift cards!

Unfortunately, any cards and vouchers sold prior to 31 March 2018 continue to have the same expiry period and applicable fees as at the time of purchase.

Tom Godfrey, Head of Media at consumer advocacy group, CHOICE, welcomed the reforms:

These reforms have been a long time coming and are a big win for NSW consumers … we hope it signals the beginning of the end of retailers cashing in at our expense.

What can you do if your gift voucher has expired?

Unfortunately, businesses are generally not required to honour gift cards after the expiration date has lapsed. However, there are still some options you can pursue:

1. Ask to speak with a Store Manager - as a sign of good faith and to retain your business in the future, managers are often flexible and may allow you to use an expired gift card.
2. Speak to the Head Office of the business- you can either do so by sending them an email or phoning their customer care line directly.
3. Make a complaint to Consumer Affairs or Fair Trading.
4. Contact the Australian Competition and Consumer Commission (ACCC).
5. Depending on the nature of your complaint, you may be entitled to take your complaint to the State Tribunal.

Otherwise, if you have explored all the options above and you wish to obtain independent legal advice, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

Pay rises in Australia used to increase wages by around 3-4% per year but are now idling at around 2% annually. This low rate of wage growth falls well below the rising cost of living. The Australian Council of Trade Unions took a poll this year that found only one in five workers (19.5%) had a pay rise in the past year that covered increases in the cost of living, and approximately half (47.6%) had no pay rise at all.

Why is wage growth so low?

The Reserve Bank of Australia Deputy Governor Guy Debelle has said lack of substantial pay rises are due to business finding creative ways to avoid increasing wages, for example though non-wage incentives. Such incentives include bonuses, flexible work hours, extra hours, additional annual leave, shares, and subsidies on services people can use, such as gyms. Businesses have also linked pay increases to individual performance, instead of regular increases linked to rising cost of living. The Deputy Governor has also said that people are now more reluctant to take a risk and leave their job for a better paying one.

Other reasons may include people refusing to leave their jobs, due to an ageing workforce and the fact that older workers tend to change jobs in search of pay increases less than younger workers. There is also a widening gap between the skills needed in job vacancies and the skills that unemployed workers have. Finally, there are the general issues of increased casualisation, low rates of industrial action and foreign retailers which put pressure on business to keep costs low.

What about the Minimum Wage?

Australia’s National Minimum Wage was established more than a century ago and increased by 3.5% on 1 July 2018 to $18.93 per hour. While this is very welcome, it is also well below the 7.2% increase called for by unions, which would better help with rising costs of living in Australia. Alongside the National Minimum, there is also a detailed system of award wages which elevate the pay you are entitled to, depending on industry, age, skill and qualifications. So, many people are entitled to a higher wage than the National Minimum, but may not know it.

Approximately one quarter of all employees in Australia have their wage set according to a minimum or award wage, and the Reserve Bank has indicated this number is rising. Go to the Fair Work website to find out your Award and minimum pay rate. Additionally, depending on if you are full/part-time or casual, you will be entitled to paid leave, minimum notice requirements if your employment is terminated. It is important to know what wage and benefits you are entitled to, in order to asset your rights.

If you are being under-paid, or have any queries relating to the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

Do you think you have a legal action? If so, is time running out?

People who believe they have a legal claim against a debtor or a company who owes a debt or an employer who retained payments illegally or a motor vehicle accident claim, do not realise that there is a limitation period “imposed by legislation” which has to be followed.

A “limitation period” is a term that is defined as a maximum period of time which can elapse from the time of cause of action arising until the time when proceedings can in fact be commenced in court pertaining to that cause of action. Section 14 of the Limitation Act 1969 clearly states that the period of time specified to commence a claim in court is limited to 6 years to the date on which the cause of action accrued. This is very crucial as proceedings if commenced after the expiration of the 6-year time period can only be done pursuant to leave being granted by the court and substantial costs will be incurred at that stage. Chances are you also face a risk of your claims being struck off as it has been filed after that statute of limitation time period.

Areas of law;

Different statute of limitations that applies with regards to different areas of law. For example;

1. Family Law

For property settlement or spousal maintenance proceedings, if a Divorce Order has been given, then you only have time until 12 months after the date on which the Divorce Order took effect.

2. For filing of application seeking Parenting Orders:

During school Christmas holiday period, applications other than urgent applications should be filed before 4.00 pm on second Friday in November of the application year.

3. Child Abduction cases:

In relation to Child abduction cases, Family Court must make an Order if an application is filed within 1 year of child’s removal or retention.

4. Matters relating to Wills and Estates;

An application made for the Family Provision Order must be filed within 12 months of date of death- s 58 (2) of the Succession Act 2006.

5. Misleading or deceptive conduct:

When a claim for damages confirms that the victim only has 6 years from the date of causation to commence proceedings – s 68 of the Fair-Trading Act 1987.

6. Unfair dismissal claims:

Kindly note that unfair dismissal claims have to be filed by no later than 21 days after dismissal of an employee – S 55 of the Industrial Act 1996. It is imperative that an application has to be made within 21 days. However, an application might be accepted out of time if sufficient reasons are outlined (this relates to NSW).

7. Motor accident claims:

Claims for statutory benefits must be made within 3 months of accident and principle limitation period of 3 years applies, this of course does not include time from when a claim is referred for assessment and continuing up to 2 months after the certificate as to assessment or exemption is issued. A claim pursuant to Motor accident Compensation Act 1999 must be made within 6 months of the accident. If not, claimant must provide full and satisfactory explanation – s 72 and 73 motor accident Compensation Act 1999.

8. Personal Injuries Claim

An injury claim should be filed within 3 years from the date when cause of action accrues s 18A Limitation Act 1969.

9. Enforcement of judgements

One can enforce a judgement from 12 years from the date of judgement becomes enforceable – s 17 of Limitation Act 1969.

What is an impact of a statute like this on your case;

If you believe that you have a claim in relation to a particular type of matter, kindly note that the existence of a statue of limitation can have a very large impact on a claim. It may even be a situation where time has expired and that you no longer have a right to make a claim. Accordingly, we would strongly recommend that you consider your legal options as a matter of urgency and if you wish to discuss the matter with us, please do not hesitate to contact us to discuss your potential claim.

Mittu Gopalan was delighted to partake in the 3^rd Annual Navzad Memorial Foundation Fundraising Gala Event on 10^th November by donating a beautiful and original painting to be auctioned off. These funds will go towards brain cancer research, awareness and education, in the loving memory of Navzad Engineer.

It is through the strength of our communities that we can strive to make a difference and a change.

To learn more about the Navzad Memorial Foundation, please visit their website.

The deadline to opt out of My Health Record was extended yesterday to January 31st 2019. The deadline had been set for today – November 15th 2018 – but the Senate approved an extension, after the site crashed when large numbers people tried to opt out before the deadline.

My Health Record has been created on an opt-out basis, meaning that if you do not express your wish not to have a record, a record will automatically be created for you. About 1.15 million people have already opted out online, by telephone and through the mail, 300,000 have opted in, and about 17 million people are expected to be automatically enrolled the deadline passes.

The advantages of a My Health Record

Health Minister Greg Hunt has said such a centralised database was a necessary part of any modern health management system, and says it is arguably the safest system in the world.

Its main advantage is that any registered health provider treating you, who is registered with the Australian Health Practitioner Regulation Agency, can see the record. This includes doctors, pharmacists, physiotherapists, nurses, diagnostic imaging practices, chiropractors, optometrists, dentists and psychologists. While patients can place restrictions online to give only certain people access, these controls can be overridden in any emergency. In an emergency, giving doctors access to medical records may assist them in knowing about your allergies, immunisations and medical history. Essentially, the system is ‘designed to save lives’ according to Federal Health Minister Greg Hunt.

Access also will not be given to employers, despite some fears that potential employees will have their information released without their permission.

The disadvantages of a My Health Record

Since the system was announced, there have been many privacy concerns about who can see the data. The government has proposed legislation that would ensure a patient’s right to permanently delete the record, as well as ensuring that police can only access someone’s medical history with a court order, but this legislation has not yet been passed. There is also debate about the privacy for those aged 14 to 17 and whether their parents should have automatic access. Hobart GP Robert Walker has said he plans on closing his weekly high school clinic which offers mental health support and STI checks for teens, after deciding it was ‘too risky’ under My Health Record.

The issue that has gained the most media attention is the issue of hacking, given that any online record is susceptible to this, regardless of its advanced security system. The Office of the Australian Information Commissioner – the independent regulator of the privacy aspects of the system – recently submitted more than 100 breaches to a Senate inquiry. Also, the director of privacy at Australian Digital Health Agency – the agency behind the My Health Record – quit last month, claiming that the Health Minister Greg Hunt’s office was not taking privacy concerns seriously enough.

Another issue is that not all data is automatically uploaded, despite the aims of the scheme. Two years of data from the Medicare Benefits Schedule, Immunisation Register, Organ Donor Register and Pharmaceutical Benefits Scheme will be automatically uploaded, but otherwise, it is up to doctors to upload the information. Given that most doctors already use their own systems and are often strapped for time, it is questionable whether records will be consistently updated. Moreover, only 86% of GPs are connected to the software that can access My Health.

Ultimately, it is a personal decision for you and your family whether to join the My Health Record or opt out. If you have any queries relating to the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

The Australian Institute of Family Studies estimate 2-5% of older Australians experience elder abuse each year. However, this issue is chronically under-reported due to a lack of understanding and the inability of the victims to seek help in situations of abuse.

The issue of elder abuse will only become more prevalent as Australia’s population ages, and can manifest in a variety of ways:

• Neglect: where an older person is not having their physical, medical or emotional needs met
• Physical: being slapped, restrained and over- or under- medicated
• Psychological: being intimidated, humiliated, isolated from friends and family, treated like a child or being denied the right to make decisions
• Financial: being forced to change a Will, being unduly influenced into making contracts, having belongings sold without permission or money taken improperly through misuse of Enduring Power of Attorney

Elder abuse is most often perpetrated by someone the person trusts, such as a family member, carer or worker in a nursing home, and most importantly, is not always malicious. Elder abuse can arise through sheer lack of thought about how your actions and decisions impact the person you are caring for.

Anyone can take steps to stop an instance of elder abuse. In cases of serious financial abuse, you can also seek assistance from court or tribunal to freeze a bank account, recover stolen money or property or reverse an unfair contract.

If you suspect someone you know is experiencing elder abuse, or have any queries relating to the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

The Australian Competition and Consumer Commission (ACCC) commenced proceedings against Optus for breaching section 12DA of the Australian Securities and Investments Commission (ASIC) Act 2001. Allegedly, at least 240,000 consumers have been impacted by a third-party billing service that added a charge for premium content that consumers did not agree to purchasing, such as games, ringtones and votes in TV programs. As Optus did not ask for payment details or verify the account-holder's identity, many charges were accrued without the account-holder’s knowledge, for example by children or other members of their household.

This billing scheme charged customers a total of $195 million and earned Optus $66 million in revenue. Optus has admitted to knowing about the misleading conduct since at least April 2014 and has issued $12 million of refunds so far. Likewise, the third-party providers have provided $19 million of refunds to affected consumers.

The ACCC has sought orders from the Federal Court to hit Optus with a $10 million penalty for their actions. The orders sought in relation to Optus by the ACCC echo the suit placed earlier this year against Telstra, who were penalised $10 million and have refunded more than $9.3 million to customers.

Reforms to the ASIC Act in May 2018 may mean that companies engaged in such conduct in the future could face penalties upwards of $100 million. Such moves towards greater penalties for misconduct committed by large service providers are reflective of a refocussing on the rights of consumers.

In the meantime, consumers on any mobile network are advised to check their mobile accounts, and contact the mobile carrier if they find unauthorised charges. If you have any queries relating to the issues featured in this article, please do not hesitate to contact Freedman & Gopalan Solicitors on 02 8917 8700.

Recently, a store in Kuwait was reportedly closed after its owners were caught sticking plastic eyes on their fish to make them appear fresh. Other fishmongers have responded with using the tagline “without cosmetic enhancements and coloured lenses.”

This incident comes in the same month as news of “fake” honey being sold in supermarkets around Australia. Among those found guilty of producing adulterated honey were IGA’s Black and Gold private brand, Aldi’s Bramwell’s Mixed Blossom private label and Capilano’s Allowrie brand.

Section 18 of the Australian Consumer Law is outlined in the Competition and Consumer Act 2010. It prohibits conduct by corporations in trade or commerce which is misleading or deceptive, as well as that likely to mislead or deceive. Moreover, the doctrine aims to provide consumer protection by preventing businesses from misleading their customers.

The elements required to establish misleading or deceptive conduct are:

1. The apparent conduct was undertaken during trade or commerce;
2. The apparent conduct was, in all circumstances, misleading or deceptive;
3. The claimant/consumer relied on the conduct;
4. As a result of reliance on this conduct, the claimant suffered a loss.

Parties to a contract cannot exclude liability for misleading or deceptive conduct under Section 18 of the Australian Consumer Law. Terms that purport to do so will be unenforceable, to protect the public interest in ensuring that the statutory remedies are available to persons who are misled or deceived.

This was established in Section 52 of the Trade Practices Act 1974 (Commonwealth) - the modern equivalent of which is Section 18 of the Competition and Consumer Act 2010.

Though there are no pecuniary penalties available for breach of section 18, a breach allows a consumer to seek pecuniary penalties up to $1.1 million from corporations and $220,000 from individuals, pursuant to their rights being followed through at the Australian Competition and Consumer Commission (ACCC). A victim of misleading or deceptive conduct is only entitled to damages if they have suffered los or damage as a result of the conduct. Kindly note that there is a limitation period of 6 years on actions for damage.

If you believe that you have been falsely misled with regards to a product or goods, that you were falsely led to believe the work to be of another quality, you can make a claim pursuant to the Australian Consumer Law rights. If you wish to discuss this matter further, please do not hesitate to contact Freedman and Gopalan Solicitors (8917 8700).

If you are selling a product or service, it is crucial that you do not mislead the public or a reasonable person with regards to the services and goods that you are intending to supply.

https://www.sbs.com.au/news/fish-fraud-googly-eye-trick-forces-shop-to-close

http://www.abc.net.au/news/2018-09-05/accc-launches-investigation-into-fake-honey/10205452

The NSW government is proposing amendments to the current Crimes Act so that anyone who stalks or intimidates another person online could face up to five years imprisonment. This will empower police to arrest perpetrators and make the law clearer for magistrates when making Apprehended Violence Orders.

Stalking or intimidating another person online or via text is commonly known as cyberbullying and includes sending abusive emails, posting threatening messages, pictures or videos online, or repeatedly sending unwanted messages. It can have potentially devastating psychological consequences, especially when victims feel they have no escape from the abuse, and can often go unnoticed as the victim suffers in silence. It affects both children and adults, and up to 98% of victims of domestic and family violence have been subject to online abuse, according to Domestic Violence NSW.

Many have called for tougher penalties for cyberbullying, and these changes only come after the tragic death of Northern Territory teenager Dolly Everett who took her own life earlier this year after sustained online bullying. Her parents Tick and Kate Everett have been tireless in campaigning the government to do more to address online harassment. Many have criticised the cyberbullying laws as being too ‘soft’ and the proposed changes are intended to empower victims and encourage them to take action against cyberbullies.

If you or someone you know needs help, call Lifeline on 13 11 14, or the Kids Helpline on 1800 551 800. If you have any queries relating to the issues featured in this article, please do not hesitate to contact Freedman & Gopalan Solicitors on 02 8917 8700.