Questionable Post – Defamation by Instagram Story

After posting on Instagram, it was not so ‘BeautyFULL’ for the Defendant as the Court awarded damages to the Plaintiffs for its former employee’s defamatory Instagram story. In the decision of BeautyFULL CMC Pty Ltd and Ors v Hayes [2021] QDC 111, Reid DCJ of the Brisbane District Court awarded damages to the Plaintiffs in the collective sum of $85,222.00 for the Defendant’s defamatory (Instagram story) publications. Arguably, this is the first trial Judgment for defamation via an Instagram story that identifies the changing landscape of liability and dangers of social media by users. This Judgement reminds all users (of social media accounts) to be mindful of what they post and the potential legal ramifications that may apply. Publication by Instagram Story At the outset, BeautyFULL CMC Pty Ltd and its owners (together, the Plaintiffs) operated a cosmetic medical clinic and subsequently brought a claim against a former employee (Defendant) for publications made about the clinic on Instagram by way of a story. Against that background, the dispute arose when the First Plaintiff posted a photograph on its Instragam account with the caption: “Dr Margaret serving during COVID-19”. To which, the Defendant re-shared the photograph on her Instagram story including the following comment: “Before you watch my story I am not naming and shaming but when I see a company upload a FAKE photo that a medical practitioner is going to work on the frontline during the Covid-19 crisis, it’s disgusting and disrespectful to the people who are actually putting their lives at risk to save others.” As a matter of context, we must say, the Judgement revealed the Defendant had commenced a relationship with the Third Plaintiff’s former husband in 2018, which may have led to the personal animosity and unexplained anger between the parties. Court’s Decision Notwithstanding the apparent personal hostility between the parties, the Court outlined social media accounts generally are often “infected by personal grievances in an obnoxious manner and are often not a reliable source of information. The truth defence was argued by the Defendant, however, no evidence was filed at trial and therefore the defence could not be accepted or explained. To that end, Reid DCJ found that the Defendant was motivated by “unexplained anger and resentment” to which the publications were intentionally false and without basis. Takeaways 1. Always consider what your post (before posting) and know that legal consequences may follow; 2. This case serves as a reminder that defamatory material conveyed to third parties online through comments, posts or ‘stories’ on social media, give rise to the same causes of action as traditional modes of publication; 3. The concern that Instagram stories are only active for 24 hours means you may be left short in your ability to prove publication (screenshots are recommended to be taken immediately); and 4. Regardless of the number of followers/audience size, aggrieved parties are being defamed seeking damages. The full decision of the Brisbane District Court is available here: BeautyFULL CMC Pty Ltd [2021] QDC 111. [...]

Salerno Law2022-07-05T11:24:10+10:00February 2nd, 2022|Blog|

Alarms Sound for Property Investors in Queensland

On 1 January 2022, new legislation regarding smoke alarm compliance in Queensland came into effect. The most substantive change is that residential rental properties are required to have interconnected photoelectric smoke alarms installed in every bedroom, in hallways and on every level. Selling Residential Property From 1 January 2022 From 1 January 2022, all residential property owners must install compliant smoke alarms in the property before they sign a contract to sell the property. If an owner sells their property without compliant smoke alarms installed, they will be in breach of the Fire and Emergency Services Act 1990 and may face legal penalties. This also applies to the incoming and subsequent owners of the property. There is a contractual obligation for the sellers to notify the buyer that compliant smoke alarms are installed in the property. The Queensland Titles Office is notified about the smoke alarms in the property from the transfer forms which transfer the property to the new owner. If the owner states anything false or misleading they may face legal penalties. It is recommended that owners discuss the above requirements with their real estate agent prior to signing a contract to sell their property. Leasing Residential Property From 1 January 2022 From 1 January 2022, any property subject to a new or renewed residential tenancy agreement must have compliant smoke alarms. The Residential Tenancies and Rooming Accommodation Act 2008 states that the owner must not breach any law dealing with issues regarding health and safety. Therefore, if the owner does not install compliant smoke alarms and signs or renews a tenancy agreement from 1 January 2022, the tenant may be entitled to terminate the agreement or apply to the Queensland Civil and Administrative Tribunal to seek an order for the owner to install compliant smoke alarms. It is recommended that property managers confirm that the properties they manage with tenancy agreements commencing from 1 January 2022 are fitted with compliant smoke alarms. According to both real estate software management company Console and the Queensland Fire and Emergency Services’ research team, anywhere between 20-50% of Queensland rental properties still do not comply with these new laws. If you are a landlord or residential property owner/manager and wish to seek further advice in relation to property compliance matters, please contact us. If you are seeking a smoke alarm fitter to bring your property up to standard, feel free to contact our recommended smoke alarm installer and inspector, Dean Kenway of Reefcosa Electrical and Air. By Thomas Malios and Josiah Neal

Salerno Law2022-07-05T11:24:10+10:00January 31st, 2022|Blog, Property & Conveyancing|

Borders ‘Slam’ Shut for Novak Djokovic

The full bench of the Federal Court has unanimously decided to uphold the decision of Immigration Minister Alex Hawke in cancelling the visa of world number one men’s tennis star Novak Djokovic. Chief Justice James Allsop ordered that the reasons of the Court be delivered at a alter date but did stress that the Court was required to rule on the legality of Minister Hawke’s decision rather than its merit. The saga surrounding Djokovic’s vaccination status and the effect it was having on his visa to enter Australia and play lasted for 11 days, primarily due to his initial success having the decision of the Australian Border Force overturned. The reason that the visa was initially cancelled was due to the suspicion that Djokovic (or rather his agent) had given false or misleading information on his Australian traveller declaration upon entering the country. This is considered a serious offence and often results in the cancellation of visas as well as civil penalties. However, the legal challenge brought against this decision by Djokovic was successful, primarily thanks to the knowledgeable and effective work of the Australian legal team from Hall and Wilcox he chose to represent him. Although he lost the dispute in the end, it was a perfect example of the need for solicitors that are going to be in your corner and fight for you in every way possible. For someone who was visiting Australia, such as Djokovic, it was obviously vital that he had legal representation who were able to understand the law and communicate with him in a way that was easy to understand. At Salerno Law, our Litigation team can provide representation that fights for you as fiercely as Djokovic’s advocates did in his matter. We have a wealth of experience in the courtroom helping to win for you and secure the best outcome when issues reach the litigation stage. From civil procedure to dealing with Courts and opponents, the Salerno Law Litigation team is efficient, effective and most importantly, constantly oriented towards your needs as the client. If you need representation in a litigious matter, contact us today or learn more about our litigation practice here. By Josiah Neal

Salerno Law2022-07-05T11:24:12+10:00January 17th, 2022|Blog, Sports|

Seller’s Guide: Commercial Property

Selling a commercial property is a big decision, therefore it is important that you understand your rights, responsibilities and the legal process involved. The process of selling a home is different in every Australian State and Territory. This article covers the process in Queensland. What is Conveyancing? Conveyancing is the legal term used for the transaction of buying or selling a property. A lawyer plays an important part in this process because we understand the Contract and all the forms and processes involved. Selling a property will be a large change to a person's financial position. When a seller signs a Contract this does not mean that the buyer then legally owns the property: There will be a process of the seller's lawyer dealing with the buyer's lawyer, real estate agents and banks. A conveyance usually takes between 4 to 6 weeks. A Contract will usually contain conditions to be fulfilled by certain dates. If the buyer organises a building and pest inspection that reveals a bad result, or cannot obtain finance from their bank by a certain date then they may be entitled to terminate the Contract. This means they can walk away and are released from further obligations under the Contract and they will have their deposit returned. A property must have a 'clear title' in order to be sold – meaning no restrictions that prevent a sale. A lawyer carries out searches to determine whether the seller has the right to sell the property. The conveyancing process leads up to 'settlement or 'completion' – this is the day when the banks, seller’s and buyer’s lawyers exchange the money and other documents, and the keys are released. A seller should remember that time is of the essence of the Contract. This means that things must be done by their due dates because neither a buyer nor a seller has an obligation to grant extensions. An example is the obligation of the seller to settle the sale on the settlement date. Time limits are strict and failure to comply by the due date can have drastic consequences. Our lawyers help the transaction move smoothly and swiftly. What a Seller Must do in the Early Stages of a Conveyance 1. Sign the Contract We are often approached by sellers either just before or after signing a Contract to sell their commercial property. We prefer to speak to clients before they sign. That way we can explain the terms and ensure the conditions are appropriate. When selling a commercial property there are a few things we like to ensure the Contract covers: The Contract needs to disclose whether there are any encumbrances over the property such as easements or covenants. If these are not disclosed then the buyer may have the right to terminate the Contract If the seller is a company and/or trust, then certain Special Conditions sometimes need to be inserted for land tax adjustments at settlement. If there is a Lease with a tenant, then the terms of [...]

Salerno Law2022-07-05T11:24:12+10:00November 26th, 2021|Blog, Property & Conveyancing|

Seller’s Guide: Residential Property

Selling your home is a big decision, therefore it is important that you understand your rights, responsibilities and the legal process involved. The process of selling a home is different in every Australian State and Territory. This article covers the process in Queensland. What is Conveyancing? Conveyancing is the legal term used for the transaction of buying or selling a property. A lawyer plays an important part in this process because we understand the Contract and all the forms and processes involved. Selling a property will be a large change to a person's financial position. When a seller signs a Contract this does not mean that the buyer then legally owns the property: There will be a process of the seller's lawyer dealing with the buyer's lawyer, real estate agents and banks. A conveyance usually takes between 4 to 6 weeks. A Contract will usually contain conditions to be fulfilled by certain dates. If the buyer organises a building and pest inspection that reveals a bad result, or cannot obtain finance from their bank by a certain date then they may be entitled to terminate the Contract. This means they can walk away and are released from further obligations under the Contract and they will have their deposit returned. A property must have a 'clear title' in order to be sold – meaning no restrictions that prevent a sale. A lawyer carries out searches to determine whether the seller has the right to sell the property. The conveyancing process leads up to 'settlement or 'completion' – this is the day when the banks, seller’s and buyer’s lawyers exchange the money and other documents, and the keys are released. A seller should remember that time is of the essence of the Contract. This means that things must be done by their due dates because neither a buyer nor a seller has an obligation to grant extensions. An example is the obligation of the seller to settle the sale on the settlement date. Time limits are strict and failure to comply by a due date can have drastic consequences. Our lawyers help the transaction move smooth and swiftly. What a Seller Must do in the Early Stages of a Conveyance 1. Sign the Contract We are often approached by sellers either just before or after signing a Contract to sell their home. We prefer to speak to clients before they sign. That way we can explain the terms and ensure the conditions are appropriate. The buyer is usually required to pay an initial deposit to the real estate agent on the day of signing the Contract. Sellers should be mindful that buyers of residential property are also entitled to a 5 business day 'cooling off' period starting on the day they sign the Contract. This means that if a buyer changes their mind about the purchase then they can terminate the Contract. However the seller can charge a termination penalty of 0.25% of the purchase price. So while the percentage is small [...]

Salerno Law2022-07-05T11:24:13+10:00November 19th, 2021|Blog, Property & Conveyancing|

First Home Buyer’s Guide to Buying Residential Property

Buying your first home is a big decision, therefore it is important that as a first home buyer you understand your rights, responsibilities and the legal process involved. The process of buying a home is different in every Australian State and Territory. This article covers the process in Queensland. What is Conveyancing? Conveyancing is the legal term used for the transaction of buying or selling a property. A lawyer plays an important part in this process because we understand the Contract and all the forms and processes involved. Buying a property is an important step and often the biggest investment a person can make. When a buyer signs a Contract this does not mean that they then legally own the property: There will be a process of the buyer’s lawyer dealing with the seller’s lawyer, real estate agents and banks. A conveyance usually takes between 4 to 6 weeks. A Contract will usually contain conditions to be fulfilled by certain dates. If the buyer organises a building and pest inspection that reveals a bad result, or cannot obtain finance from their bank by a certain date then they may be entitled to terminate the Contract. This means they can walk away and are released from further obligations under the Contract and they will have their deposit returned. A property must have a 'clear title' in order to be sold – meaning no restrictions that prevent a sale. A lawyer carries out searches to determine whether the seller has the right to sell the property, and aims to uncover any issues which could be a nasty surprise for a new home owner. The conveyancing process leads up to 'settlement or 'completion' – this is the day when the banks, buyer’s and seller’s lawyers exchange the money and other documents, and the keys are released. A buyer should remember that time is of the essence of the Contract. This means that things must be done by their due dates because a seller has no obligation to grant extensions. Time limits are strict and failure to comply by a due date can have drastic consequences. Our lawyers help the transaction move smooth and swiftly. What a Buyer Must do in the Early Stages of a Conveyance 1. Sign the Contract We are often approached by buyers either just before or after signing a Contract for their first home. We prefer to speak to clients before they sign. That way we can explain the terms and ensure the conditions are appropriate. The buyer is usually required to pay an initial deposit to the real estate agent on the day of signing the Contract. Buyers of residential property are also entitled to a 5 business day 'cooling off' period starting on the day they sign the Contract. This means that if a buyer changes their mind about the purchase then they can terminate the Contract. However the seller can charge a termination penalty of 0.25% of the purchase price. So while the percentage is small [...]

Salerno Law2022-07-05T11:24:14+10:00November 19th, 2021|Blog, Property & Conveyancing|

Director Identification Numbers required from November 2021 for Company Directors

From November 2021, company directors will be required to apply for and authenticate their identity through a Director Identification Number (DIN). A DIN is a 15-digit identification number used to identify a director (and alternative director) when applications open in November 2021. By the Federal Government passing the Treasury Law Amendment (Registries Modernisation and Other Measures) Bill 2019, which saw the introduction of the requirement coupled with a new Commonwealth Modernising of Business Registers (MBR) regime, the MBR program has established the Australian Business Registry Services (ABRS) which will attempt to streamline how businesses register and maintain their information with the Government. The intended purpose of the DIN regime is to deter and tackle illegal ‘phoenixing’ activities in circumstances where directors deliberately avoid paying liabilities by winding down an insolvent company and transferring its assets to a newly incorporated entity. By increasing director accountability and traceability, the introduction of DINs will allow for stronger regulation upon directors and enable the Australian Securities Investments Commission (ASIC) to prevent and hopefully stop illegal phoenixing. Directors will only be required to make one application, for a DIN, which will stay with them for life, irrespective of whether they become a director of another company, cease bring a director and/or the changing of their personal name in preventing illegal phoenix activity. Who is required to hold a DIN? A DIN is required by an individual if they are a director of: A company registered under the Corporations Act 2001 (Cth) (Corporations Act); An Aboriginal and Torres Strait Islander corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act); and A Charity or Not-for-Profit registered under the Australian Charities and Not-for-Profit Commission (ACNC). How do directors apply for a DIN? Directors can apply for a DIN via the ABRS website, however, before doing so, directors will need a myGovID number. Should directors fail to apply for a DIN by the designated timeframe, they face possible infringement notices and/or civil and criminal actions from ASIC. When do directors need to apply? Applications for DINs for existing and new directors can commence from November 2021 as follows: Salerno Law has a talented commercial law and litigation team which can assist with the DIN requirements and their rollout upon company directors. Should you have any queries regarding the DIN requirements, Alexander Phillips and Matthew Krog would welcome the opportunity to discuss them. By Alexander Phillips DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information. Salerno Law is managed by Emma Salerno, Managing Partner and CEO, who has a wealth of experience from operating her own businesses across Australia as well as a range of in-house and commercial experience both in Australia and overseas.

Salerno Law2022-07-05T11:24:15+10:00October 27th, 2021|Blog, Commercial & Corporate|

Best Crypto Lawyers in Australia

If you’re investing in crypto or your business uses blockchain, you will no doubt be in need of a lawyer at some stage in the game to help navigate the rules and regulations of this fast-moving space. Crypto News Australia posted this recent article naming Salerno Law as the Best Crypto Lawyers in Australia. Read more below: https://cryptonews.com.au/guides/10-best-crypto-lawyers-in-australia If you require legal advice in relation to cryptocurrency issues, contact our team today! By Krish Gosai DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information. Salerno Law is managed by Emma Salerno, Managing Partner and CEO, who has a wealth of experience from operating her own businesses across Australia as well as a range of in-house and commercial experience both in Australia and overseas.

Salerno Law2022-07-05T11:24:16+10:00October 12th, 2021|Blog, Cryptocurrency|

Australian Swimmer Shayna Jack Returns

Court of Arbitration for Sport dismisses World Anti-Doping Agency and Sport Integrity Australia appeal. On 26 June 2019, Shayna Jack (Jack) underwent an out-of-competition doping control test. The test sample returned a positive result for a metabolite of Ligandrol. Ligandrol is a Non-Specified Substance and is prohibited both in and out of competition under Class S1.2 of the 2019 World Anti-Doping Code (the Code). On 12 July 2019, Swimming Australia imposed a mandatory provisional suspension in accordance with Article 7.9.1 of the Swimming Australia Limited Anti-Doping Policy 2015 (the Policy). On 7 November 2019, the Anti-Doping Rule Violation Panel[1] of Swimming Australia determined that Jack had possibly committed an Anti-Doping Rule Violation[2] (ADRV). Upon final consideration of the ADRV, a four-year period of ineligibility was imposed under article 10.2 of the Policy, commencing on the date of the provisional suspension. Jack challenged the determination of imposing a four-year period of ineligibility through the Court of Arbitration for Sport (CAS). Jack submitted that although she was unable to demonstrate how the Prohibited Substance entered her system, the ADRV was not intentional and did not occur due to her recklessness. Consequently, she sought a finding of no significant fault or negligence under clause 10.5 of the Policy. In order to invoke this clause, Jack needed to demonstrate that the ADRV was not intentional and did not occur due to her recklessness. Based on such a finding, Jack sought the period of ineligibility be reduced to two years under clause 10.2 of the Policy. The Sole Arbitrator found, on the balance of probabilities, that Jack did not intentionally or recklessly ingest the prohibited substance and considered that she had discharged her onus of proving that the ADRV was not intentional. Consequently, a reduced ineligibility period of two years was imposed. Both the World Anti-Doping Authority and Sports Integrity Australia (SIA) appealed the decision, primarily seeking to reinstate the four-year period of ineligibility. SIA CEO, David Sharpe, said the decision to appeal was based on the need for clarity and consistency in the application of the Code. A three-member panel of the CAS (the Panel) heard the case de novo[3] and ultimately upheld the sole arbitrator’s decision for different reasons. The Panel found that the sole arbitrator’s reasoning was not in accordance with the Policy and to WADA and SIA’s credit, created a lack of uniformity in the Policy’s application. The Panel analysed Jack’s case through the lens of the Jarrion Lawson[4] (Lawson) meat contamination case. In Lawson, the CAS panel analysed the relevant evidence by beginning with the science, considering the totality of the evidence through the prism of common sense which then may be bolstered by the athlete’s credibility. In Jack’s case, the science was important but not decisive given the absence of the origin of the prohibited substance. The science did not point towards an intentional violation and presented contamination as an option. The totality of the evidence supported Jack’s assertion that the violation was unintentional. Common sense suggested that Jack [...]

Salerno Law2022-07-05T11:24:17+10:00October 7th, 2021|Blog, Sports|

Employers and Casual Conversion – Deadline Looming

On 27 March 2021 the Fair Work Act 2009 (Cth) (the Act) introduced new permanent employee benefits for existing casual employees, defining the transition as ‘casual conversion’. The Act, amongst other things, provided employers six (6) months to adhere to the introduced amendments, which are due to come in to effect next week, on Monday 27 September 2021. From 28 September 2021, employers are legally obliged to offer casual conversion to casual employees who qualify. What is casual conversion? Subject to eligibility, casual conversion provides casual employees permanent employee benefits, where casual employees are entitled to convert from casual employment to part-time or full-time employment. What are my obligations as an employer regarding casual conversion? All employers who employ casual workers should familiarise themselves with these new laws, and ensure they undertake their assessments by Monday, 27 September 2021. Along with making the assessment, employers must provide their casual employees with a copy of the federal government’s Casual Employment Information Statement. Small Businesses If your business employs fewer than 15 people, then you do not have to offer casual conversion, but casuals may make the request should certain requirements be met. Casual employees do not have to wait until 28 September 2021 to make this request. Other Businesses As an employer, you must offer casual conversion if: a) You’ve employed the worker for more than 12 months; b) The employee has worked a regular pattern of hours for 6 months; and c) The regular hours could be continued with the employer becoming a permanent employee without significant changes. When don’t you have to offer casual conversion? a) You have reasonable grounds to not provide the casual conversion; and b) The casual employer is not eligible for casual conversion. The above is subject to relevant awards and employment contracts, which may outline different casual conversion eligibilities. As a Casual Employee, can I apply? From 28 September 2021, you can make a request to your employer to become a permanent employee if: a) You’ve been employed for at least 12 months; b) You’ve worked a regular pattern of hours in the last 6 months on an ongoing basis; c) You haven’t refused a previous offer to become permanent in the last 6 months; d) Your employer hasn’t told you in the last 6 months you won’t be offered casual conversion on reasonable grounds; and e) Your employer hasn’t already refused a request made on reasonable grounds in the last 6 months. These requests must be made in writing and can only be made 21 days after the annual date of working for the employer for 1 year. The employer has 21 days from receipt of your request to respond, and they may only refuse the request after having discussions with you and providing you reasonable grounds as to why they refuse. Another request may be made 6 months after the refusal, provided the above requirements are met. What are the consequences of not offering casual conversion? Employers may be met with various [...]

Salerno Law2022-07-05T11:24:17+10:00September 21st, 2021|Blog, Commercial & Corporate|

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