Issue 45 - October 2007

• The employer and vicarious liability
• The rise of identity fraud
• Best practice to obtain good title when you purchase a property
• Changes to patent disclosure laws
• Welcome to our new lawyers and graduates
• The Verdict

Will you be held liable for your employee’s actions? The employer and vicarious liability

The recent decision in Ffrench v Sestili [2007] has effectively increased the liability of employers when it comes to the wrongful acts of its employees. An employer may now be vicariously liable for the wrongdoing of its employees even if such wrongdoing is in clear breach of any employment obligations binding the employee.

In this case, Ms Sestili, a care provider, hired Ms Brown to provide full time care for Ms Ffrench who was a totally dependent quadriplegic following a motorcycle accident. As part of her duties, Ms Brown had access to the credit card of Ms Ffrench for shopping purposes and managed to misappropriate around $33,000 of Ms French’s money over a 2 month period.

The Court's reasons for holding Ms Sestili vicariously liable for her employee’s wrongdoings were essentially twofold. The Court found that Ms Brown was acting under the ostensible authority given to her by Ms Sestili in the context of the employment relationship and that her actions were sufficiently connected to the duties imposed on her.

It seems, therefore, that the Court will be more likely to find an employer vicariously liable for the actions of its employees where the impugned conduct could have only taken place because the employment relationship gives the employee the opportunity to behave criminally, even if the employer expressly forbids such activity.

If you have any concerns regarding your duties under the law as an employer or if you have any other queries in the area of employment law, please contact Kevin Dwyer or email kevin@wmdlaw.com.au.

Protect your identity The rise of identity fraud

FIDO, the monthly bulletin issued by the Australian Securities & Investments Commission (ASIC) has again warned Australians to be alert to scams that try to steal your identity.

Having your identity stolen can be devastating both financially and emotionally. Victims of identity theft can spend years and thousands of dollars trying to restore their good names and credit ratings.

Identity scams usually occur by email but scams can also take place through the post, by telephone or without you even knowing however, you can take a number of simple steps to help protect yourself from identity theft. ASIC advises to follow the following 3 steps to protect yourself:

Never give out personal information by email or phone to someone you don't know or trust. Putting together a 'picture' of the person is the start of building up the use of your identity fraudulently. Don't make it easy. People that you meet online or casually may not be people you can trust. Don't give them personal information like your phone number or where you live or important confirming evidence like children's and spouses names or mother's maiden name. Your personal information is valuable so take care who gets hold of it.

Don't just throw it out, destroy old bills, records and expired cards. Identity thieves will use all methods to build up a profile on people, including rummaging in your garbage for records of past purchases, expired credit and other cards and telephone and utility bills. Destroy these by ripping them up finely or shredding them before you discard them. Check important bills like credit cards and bank account statements for unauthorised activity.

Check your credit report regularly. An easy way to make sure that fraudulent use of your identity has not occurred is to check your credit report from a reputable source. If you find that you have been marked as having unpaid accounts, for example, that you have not ever heard of, you might have become the victim of identity theft.

For more help, visit the ACCC's scam watch website, set up by the Australasian Consumer Fraud Taskforce. Or you can download the Government's National Identity Theft Prevention and Response kit on the Attorney General's webpage.

If we can assist with any matter relating to your credit, unpaid debts or identity theft, please contact Craig Pryor or email craig@wmdlaw.com.au.

Best practice after Black v Garnock Best practice to obtain good title when you purchase a property

The recent High Court of Australia decision in Black v Garnock [2007] HCA 31 raises important issues in relation to conveyancing practice, which is of particular importance to purchasers. The facts of the case were that the parties entered into a contract for the sale of a rural property, contracts were exchanged and a deposit was paid in the usual course. On the day of settlement the purchasers were put on notice that the vendor owed a debt to a third party and that third party was going to "stop the sale".

Although the purchasers had obtained a final search on the morning of settlement, they did not obtain an updated final search after receiving the notice from the third party and prior to settlement taking place later that day. Between those times, the third party had lodged a writ against the property, and the High Court held that the writ defeated the interests of the purchasers. Even though the purchasers had paid the balance of the price to the vendor, they were not able to be registered on the title to the property.

This decision has significant practical consequences and as a result, our practice is to strongly recommend to our purchaser clients that they should lodge a caveat on title as soon as possible after exchange of contracts and to conduct a title search as close to the time of settlement as possible. Whilst the chances of the same circumstances arising as in Black and Garnock are not likely, the case highlights the importance of properly protecting the interests of a purchaser as soon as possible after an exchange of contracts has taken place.

If you have any questions in relation to the implications of the decision, the rationale for lodging a caveat to ensure good title for a purchaser or any other property matter please contact Rebecca Flynn or email rebecca@wmdlaw.com.au.

Protecting your inventions Changes to patent disclosure laws

The Federal Government is proposing new reforms to intellectual property laws, which will reduce the current disclosure requirements imposed upon patent applicants. These reforms will affect persons who are applying for registration of a new patent in Australia and at the same time applying for registration of the invention overseas.

When applying for a patent for any new invention, you must conduct a search of all current registered patents and applications to ensure that your invention is in fact “new” or “unique” and has not already been patented by somebody else. If you are applying for registration of a patent in Australia and in a foreign country at the same time, IP Australia requires you to produce a copy of the search results from the overseas jurisdiction in considering whether the patent should be granted in Australia. Failure to provide these searches would prevent you from changing the scope of the patent once registered.

However, given the availability of information over the Internet from Patent Offices around the world, the Federal Government is proposing to do away with this disclosure requirement, which will be benefit patent applicants greatly by lowering costs and increasing the speed of processing patent applications. These reforms are yet to be introduced, however if passed will significantly ease the application process for prospective patentees.

Please contact Dean Groundwater or email dean@wmdlaw.com.au in relation to any intellectual property matters, including registration of a patent or trade mark or in relation to intellectual property infringement and breach issues.
 
The expanding WMD team  Welcome to our new lawyers and graduates

Warren McKeon Dickson Lawyers would like to introduce and welcome our new lawyers, Amanda Solomon and Melanie Tilbrook.

Amanda has recently joined the firm having worked predominantly in the areas of family law, de facto relationships and child related matters, since being admitted as a solicitor in 2001. We would also like to congratulate Amanda on attaining her specialist accreditation in family law earlier this month.

Melanie joined the firm earlier this year, after making a career change from journalism. Melanie practices mainly in the areas of family and criminal law.

In addition, Kieran Haydon and Kara Yacoubian will be joining the firm as law graduates, upon completion of the Bachelor of Laws at the end of the year. Kieran and Kara were recipients of the Work Integrated Learning Scholarship offered by WMD through the University of Wollongong.

Your questions answered The Verdict

In this section, we answer your general questions in relation to any area of law. Obviously, we are not able to provide specific legal advice or advice in relation to a current legal matter. If you have a question you would like us to answer, please submit it by email to rebecca@wmdlaw.com.au

What checks should I perform when buying a used car from a private seller?

To protect your interests when purchasing a used car from a private seller there are a number of checks which you can perform to ensure you know what you are buying. The first check you should make is in relation to the ownership of the vehicle. This can be as simple as the seller showing you the certificate of registration, compare the name on the papers with some identification from the seller. Also, check all of the details on the registration certificate. Make sure that in addition to the owner's name, that the licence plate and engine number of the vehicle match the registration details.

Checking the title to the vehicle is the next check you should make. You can obtain a certificate from the Register of Encumbered Vehicles. The register contains the details of anyone who has an interest in the vehicle (other than the owner), such as a finance company. You can pay a small fee to obtain the certificate that sets out whether there are any other interests in the car. If there is money owing on the car, you will need to involve that person in the process to ensure that the money is paid out, and you obtain clear title, with effect from your purchase of the vehicle.

If you are not mechanically minded, it is often a good idea to have the vehicle checked for mechanical problems. You can obtain such checks from private testing companies or take it to your local mechanic. Make sure you know what they are testing and satisfied with the results of the tests, because you will have no comeback against the seller if there are any problems with the vehicle.

Finally you should ensure the car has a roadworthy certificate. If you are not satisfied with the results of any of these checks, the car is possibly not what you thought it would be and you should seriously consider whether to proceed with the purchase.
 

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