Emojis are an ever increasing trend on social media and can be used to denote the emotion behind a message, replace words entirely and can even convey an entire sentence worth of meaning.

Text Messages, Emojis and Wills

The case of Nichol v Nichol in 2017 saw the Brisbane Supreme Court assessing whether a deceased man’s drafted text message constituted a valid last Will and Testament. The message described that the man’s brother and nephew would receive his house and pension rather than his wife and son. The text message included instructions as to the man’s ashes and concluded with a smiley face emoji and the words “my will”. The deceased man did not have a valid Will in place when he died. Justice Susan Brown found that informality of the format and the inclusion of an emoji was not enough to exclude the man’s intentions for his Will.

Emojis and criminal convictions

Intentions conveyed through emojis have been found to be so clear and deliberate that criminal convictions have resulted across the world.

Notable cases concerned with emojis:

According to a study from Cadbury Dairy Milk Oreo, around 9.9 million Australians use emojis. With the majority of frequent emoji users under 30, it raises the question whether judges, who do not often belong to this age bracket, are able to follow the evolving trends behind emoji use. Emoji trends and meanings vary depending on the time of year, their relationship to current internet fads and celebrity use. Elizabeth Kirley and Marilyn McMahon from Deakin University suggest that accredited specialists in digital speech may become necessary to assist judges in interpreting the meaning behind emojis.

Let’s take it seriously

It is likely that with new emojis being released each year, the number of emoji-related charges is going to increase. The cases are a warning to us all that emojis convey meaning in a similar way to words, and threats can come from both forms of communication. The importance placed on informal forms of communication is increasing in the legal sphere, so we should be wary that everything we send, post and write may be scrutinised later.

With Christmas over, it is now time to look forward to the New Year. The start of every new year brings with it the promise of new beginnings. Although a time of celebration, it is also a time where many of us may feel burdened to set new life goals or make resolutions. If you are experiencing pressure to resolve issues related to finance, travel, property, family or custody matters, then the team at Freedman & Gopalan are here to help! Below is a checklist to help you bring in the New Year stress free.

  1. Firstly, are you entering the New Year with any outstanding debts? The holidays are a time when cash flow is important, but many of us are shocked with the consequences after. The staff at Freedman & Gopalan are highly experienced in debt recovery and can help you recover the funds that you are owed.
  2. Secondly, are you travelling overseas before going back to work? If this is you, don’t let unexpected terms and conditions ruin your holiday! It is common for airlines to exclude check-in baggage and in-flight entertainment from bargain prices, so be sure to check the fine print of your flight ticket.
  3. Thirdly, are you insured for all overseas travel? It is important to know your cover and read the terms and conditions prior to travel, as some medical treatments may not be covered.
  4. Fourthly, have you been given a faulty or dangerous Christmas gift? Know your rights – when purchasing Australian-made goods, all consumers are protected under the Australian Consumer Law. Where a product is unsafe, unfit for its purpose, faulty or different from the description, consumers are entitled to ask for a replacement or refund. Alongside gifts, have you received a voucher that is due to expire soon? Under the Fair Trading Act 1987 gift cards and vouchers in NSW must be sold with a minimum expiry period of 3 years to any consumer in NSW.
  5. Fifthly, are you looking to buy or sell a property in the New Year? Don’t let yourself be ripped off – inform yourself about the process and the market.
  6. Sixthly, are you facing family disputes, settling a marriage or contemplating a divorce in the New Year? Or rather, are you facing disputes surrounding the custody of your children? Have your children not been returned to you as per the pre-agreed upon custody arrangements? If so, it is imperative to protect your legal rights and those of your children. The expert team at Freedman & Gopalan can provide you with the assistance and counselling needed to help you through this difficult time.
  7. Lastly, is your Will up to date? Enter the New Year knowing your loved ones will be taken care should anything go wrong.

If you have considered all these points, then you are ready to celebrate the New Year!

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 holiday season is a wonderful opportunity to spend time with friends and family. For each person, their time off work, and pay entitlements will differ.

For business with a 'Shut Down Period'

Many businesses will have a shutdown period over the break.

Employees can be directed to take their annual leave during a shut down if the award or registered agreement allows it. Usually the employee needs to be given a certain amount of notice. If there is no award or agreement, the direction to take annual leave must be reasonable.

If you are taking a break, you may want to consider creating an Out of Office message that will reply automatically to emails you receive in the holidays. The best practice is to thank the sender and let them know that you are away, and when you will return. If people might be contacting you with urgent enquiries, your Out of Office message should point them to another person or a number they could contact during the break. If you are planning on checking emails intermittently, you can also include this in your message, so people know what to expect.

If you are working throughout the break

For many people, including nurses, doctors, carers, retail and hospitality workers, and Santa's elves, the Christmas break is business as usual.

For the public holidays in the break – 25 and 26 December 2018 and 1 January 2019 – some employees may be entitled to penalty rates, based on their industry award or enterprise agreement. Full-time and part-time employees are entitled to a paid day off.

There is no general right not to work during this time, but you can refuse to work on a public holiday if there are ‘reasonable grounds’. For example, if you gave early notice to your employer that you would not be available due to personal circumstances, and then your employer requested that you work on a public holiday, you could refuse. For employers, there are also no automatic rights to terminate employees if they refuse to work on a public holiday. In the case of Steven Pietraszek v Transpacific Industries Pty Ltd T/A Transpacific Cleanaway [2011] FWA 3698, the employer terminated the employee for not working on Christmas and Boxing Day. Here, the Commissioner held that the employee’s refusal was reasonable in the circumstances, as he had believed he would not be asked to work.

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.

From the 12 December 2018, all employees are entitled to take unpaid leave as a result of domestic violence.

WHAT IS FAMILY AND DOMESTIC VIOLENCE?

Family and domestic violence refers to violence, abuse and intimidation between family members as well as people who are or have been in an intimate relationship.

Historically, family and domestic violence has been considered a taboo subject. An issue not to be discussed and its existence was to be hidden behind closed doors. Fast forward to the present, public perceptions surrounding family and domestic violence has slowly, but surely, developed. With increased social awareness of its effects, family and domestic violence is now considered a major health and welfare issue.

WHAT IS THE NEW ENTITLEMENT?

Under the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018, all employees are entitled to take 5 days of unpaid family and domestic violence leave per year.

WHO IS ENTITLED TO UNPAID LEAVE?

As of 12 December 2018, the entitlement has been extended to all employees. This includes part-time and casual employees.

WHEN CAN YOU TAKE THE LEAVE?

Employees are entitled to take 5 days leave from work, allowing them time to deal with the effects of family and domestic violence. This will enable victims of family and domestic violence to access medical, counselling and police services, as well as time to relocate and attend court hearings during work hours.

NEXT STEPS FOR AUSTRALIA?

The new entitlement is reflective of Australia placing an increased focus on domestic violence and the effects it has on its victims. However, the grim reality is that family and domestic violence is still a major issue throughout Australia today. According to the Australian Institute of Criminology, one woman a week is murdered by her current or former partner. Advocacy group, White Ribbon Australia, encourages the creation of a national homicide review panel so that we, as a country, may work toward preventing future instances of domestic homicide.

If you are a victim of family or domestic violence, or have any queries relating to the issues featured in this article, please do not hesitate to contact us at any time on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

There are insufficient nurse to patient ratios in NSW. Our public hospitals face increased patient admissions, without the increased staff to meet the demand, putting patients’ lives at risk. In Queensland and Victoria, there is a nurse for every 3 patients in emergency and for every 4 patients in medical and surgical wards. In NSW, there is no mandatory requirement of a particular nurse to patient ratio, and this is what the NSW Nurses and Midwives Association is planning to campaign for in the run-up to the next State election.

However, this year the NSW Government has slashed the cap on electoral funding for third-party campaigners from $1.2 million $500,000 in the 6 months before an election. New laws also prevent unions from pooling their resources and imposes a 10-year jail term for anyone caught breaching the rule.  The reforms were introduced apparently to reduce corruption and undue influence in electoral funding. However, they simultaneously silence unions and third parties such as the NSW Nurses and Midwives Association trying to campaign for safer hospitals.

A united group of 6 unions have challenged the legislation in the High Court, and will argue that the laws infringe their constitutional freedom of political communication. According to constitutional law expert Professor Anne Twomey, if the High Court finds that a $500,000 cap is too low to run an effective campaign and bring important matters to the attention of voters, then the Court will rule the laws unconstitutional. According to the General Secretary of the NSW Nurses and Midwives Association, if you consider NSW’s population, $500,000 would barely cover distributing flyers to 10% of the population. Furthermore, the television campaign run by the nurses’ union in 2015 opposing privatisation cost more than $600,000.

The Court will also find the laws unconstitutional if the difference between the funding cap for third parties and political parties is disproportionate. Under the proposed laws, political parties will be able to spend up to 22 times more than third parties.

The six unions involved in the High Court challenge are the NSW Nurses and Midwives Association, the Electrical Trades Union, NSW Teachers Federation, United Services Union, Health Services Union and Unions NSW. Their message is that the legislation will impact democracy and the silence the voices of workers throughout NSW, and that third parties such as the Nurses Union will not be able to bring important issues such as nurse to patient ratios to the voting public.

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.

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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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).

  1. 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.

  1. 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.

  1. 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 3rd Annual Navzad Memorial Foundation Fundraising Gala Event on 10th 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.

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