Firstly, it is proposed to provide a section which includes links to other organisations (and their websites) which clients might find useful. We would include, for instance, the website address for the Financial Services Ombudsman which deals with disputes that people have with their Bank or other financial institutions.

It is proposed that we would not simply include the website link but that there would be a short explanation as to what services the Financial Services Ombudsman offers so that people can see whether the body in question is potentially able to provide them with assistance or is otherwise of interest to them.

The hope is that people who have a problem or an issue could go to that section of the website to see if there appears to be any organisation that can help them and that they could then use the link to go to that website to take their issue further. Obviously if you needed our help in pursuing the issue we would be happy to help you but the facility would allow you to hopefully see if there is a source of help otherwise available to you and to give you the ability to readily make contact with that other organisation directly.

The other change that we are contemplating is to provide certain documents on our website so that they can be downloaded directly by the client. In some cases these documents would be made available to the client free of charge, if, for instance, the document is one that is easy to complete and the client could easily deal with it themselves.

It is proposed that there would also be some documents which, are more complicated because there is a need to provide with the documents advice as to how to use them, or perhaps because the download would involve a whole series of documents which would need to be used in a particular order and in a particular way.

In regard to that type of documentation there would be a charge made to the client for downloading the documents and the explanatory guideline that goes with them. We would anticipate that the charges involved would be modest and would be generally less than would be involved if the client was to instruct a solicitor in the normal way to handle that sort of problem for them.

We would like to obtain as much feedback as possible, both in relation to the two proposed changes that have been discussed and/or in regard to any other improvements that could be made to the website.

The Banks of course would have you believe that the customer simply has to pay the charge because there is a Clause in the original Loan/Mortgage documents which allows the Bank to charge that type of fee generally.

This however is an example of situations where in spite of what is in the documents that you sign, there is an overriding law which places limits on the amount the lender can charge. Indeed, the law in some situations will prevent the Bank from charging anything.

There are two (2) ways in which the law restricts the freedom of the Banks in this regard. Firstly, the Uniform Consumer Credit Code sets out a number of restrictions on what the Lender can do in certain circumstances. One of the restrictions is Section 72(4) of the Code which invalidates “unconscionable interest and other charges” and allow charges to be reviewed. The Review can be conducted by the Bank, by the Financial Services Ombudsmen or by a Court.

Section 72 (4) specifically says that “a fee or charge payable on early termination” ….. “is unconscionable” …. “if it appears that it exceeds a reasonable estimate of the credit provider’s loss arising from early termination or prepayment”. The effect of this is that the Bank has to justify the amount that it wants to charge. If no “loss” is in fact to be suffered then the Bank is not entitled to charge anything.

The other option readily available is to lodge a complaint with the Financial Services Ombudsman (www.fos.org.au) which will carry out the exercise of recalculating the charge and forming an opinion as to whether it is a reasonable estimate of the Bank’s loss or not.

In one recent case the Bank went from wanting to charge a customer $4,700.00 to agreeing to charge nothing. In another case the charge was reduced from nearly $10,000.00 to less than half that figure.

If you believe that a Bank is seeking to impose an unreasonable fee or charge upon you we would urge you to obtain advice as to whether or not the Bank can be challenged. As a practical matter, what often occurs is that rather than delay the payout of the loan, the customer proceeds to pay the charge but does so having given specific written notice that they reserve their rights to challenge the amount involved. The process in challenging the amount can sometimes take a little while and it is therefore sometimes better for the customer to proceed with the transaction rather than see it held up, and to then challenge the Bank’s calculations and hopefully obtain a refund later.

If receiving the money is part of the allegedly illegal sale activity, then our client having the money in his possession is part of the activity which is covered by the charge ofillegally selling the drugs.    To then charge him with possession of the money means he is being charged twice in regard to the money.  Additionally, the Courts have agreed that if the Police, in what is commonly called a “sting” operation, pretended to be a purchaser of the drugs and paid the money to the seller of the drugs then it would be a different sort of abuse of the legal process, namely what is commonly called “entrapment” for the Police to be allowed on the one hand to set up the original charge of illegally selling drugs by paying money to the seller and then on the other hand to add a second charge against the seller for having possession of the money, which the Police themselves deliberately gave to the seller.

Our law has traditionally recognised that an accused person (or a “suspect”) has a right to silence, i.e., a right to refuse to answer any questions on the ground that the answers may incriminate that person.   This right to refuse/decline to answer questions is absolute unless there exists some legislation (i.e., an Act of Parliament) that takes away or reduces that right “in very clear terms”.

There are only a very small number of situations in NSW where the law has reduced the right to silence.    Generally the situations where such special laws have been created are very unusual and involve laws which most people will never have any contact with such as laws relating to Terrorism or Bikie Gangs.

We have always advised our clients that the Police are often entitled to ask anyone for their name and address.   This right however does not normally entitle Police to then force a person to answer any other questions.

The Supreme Court of NSW recently confirmed that if the Police think you are a possible suspect in regard to a crime they can ask you to identifyyourself, and a refusal to do so is a criminal offence for which the Police can then arrest you.   However, if you answer the question(s) as to your identity, you are then entitled to refuse to answer any other questions at all.   The Police cannot arrest you for the purpose of interviewing you or requiring you to take part in an identification parade.

If, after you identify yourself, you tell the Police you do not want to answer any questions, the Police then either have to arrest you and charge you with an offence or let you go.    It is always sensible to politely answer any request for you to identify yourself (which could include a request to produce your Licence or other proof of identity) and to then again politely (and if necessary repeatedly) refuse to answer any other questions or to take any part in a Record of Interview.

The Police may say something like:-

“We just want to give you a chance to give your side of the story” or

“If you don’t answer our questions you will look guilty”.

However, if you do not want to answer their questions then you should politely continue to refuse to do so.    There is no inference of guilt arising from the mere fact that you refused to answer the questions of the Police.

Even if the Police do charge you with something, or they take you into custody, you can still refuse to answer their questions and the law says that the Police cannot just keep you in custody indefinitely.   Once you are charged you are entitled to be released or should be brought before a Court as soon as possible if the Police are not prepared to grant you Bail and release you.    If they are not going to charge you with something then the Police are required to release you.

If the Police breach these laws then they may be prevented from using any evidence against you that arises from their unlawful detention or arrest of you and you may be able to sue the Police for wrongful arrest, unlawful imprisonment or malicious prosecution.   We have successfully handled such cases.

The NSW Supreme Court has recently ruled that it is unlawful for the Village Manager to prevent the owner of an individual unit from choosing their own Real Estate Agent when they are wanting to sell their Unit.

If the landlord or the real estate agent are delaying signing and lodging the necessary form, or if there is some dispute about whether the tenant is entitled to their full bond, then a tenant can lodge a Claim for Refund of Bond Money with Fair Trading by fax. Fair Trading will then give the real estate agent notice that the Claim has been lodged and give them 14 days to prove that they have commenced proceedings in the Consumer Tenancy & Trader Tribunal. If the real estate agent does not lodge the claim within 14 days then the bond will be refunded to the tenant.

This can be useful if the landlord or real estate agent is dragging their feet, or if they are claiming some deduction, for instance, that the tenant has damaged the premises but the tenant maintains that the property is as it was when it was when originally rented. This Claim puts the landlord on notice that they either need to be willing to lodge a claim with the CTTT, or refund your bond.

Of course the real estate agent and the tenant can also agree to release the bond and sign the necessary paperwork together. The other procedure is only necessary if the tenant and the Agent can’t reach an agreement.

What we expect to see therefore is Vendors attempting to structure the dealings so as to bring themselves within the definition of a “solicited” Contract. Party-plan events, for example, are considered to be “solicited” sales as are Sales Agreements which are “renewal of an existing Agreement”.

If a business asks you to provide them with contact details it may be that what they are then wanting to do is to pretend that when they ring you back it is not an “unsolicited” approach. Similarly, we won’t be surprised of some Vendors adopt the practice of terminating a phone call after it rings only once or twice so that the call then shows up on the receiver’s phone as a missed call. If the person then rings back the missed call it is arguable that it is no longer a “solicited” phone call because the consumer is now ringing the Vendor.

As with all new laws we will be watching things closely to see what attitude the Courts take to these new situations.

• In the first instance it is the company which is the entity that should be held liable where some law has been broken, and
• The Directors should not be liable for corporate fault as a matter of course or by the blanket imposition of liability, and
• There would need to be some compelling public policy reason for a Director to generally now be held personally liable for a company’s wrongdoing – for example, the potential for public harm.

The overall effect is to lessen the obligation potentially imposed on Directors. In related changes the Employment Laws have been changed so that the duty of a Director to ensure the health, safety and welfare of the company’s employees is now described as being a duty to take all steps “reasonably practicable” to ensure their safety, etc. Officers of a corporation under the new laws are required to exercise “due diligence” to ensure the corporation complies with work, health and safety duties whereas in the past the officers could have been strictly liable no matter what steps they took to deal with the situation.