Issue 54 - July 2008

• The University of Wollongong's new Innovation Campus
• Recent amendments to the Franchising Code of Conduct
• Compulsory mediation in parenting proceedings
• Assessing capacity when executing wills, powers of attorney or guardianship documents
• Does a backyard spa pool need to be fenced?
• The Verdict 
   

Grand opening of iC Central The University of Wollongong's new Innovation Campus

Warren McKeon Dickson have a long standing association with the University of Wollongong, through their Work Integrated Learning Scholarship offered by the firm in conjunction with the University and were pleased to attend the grand opening of the iC Central at the new Innovation Campus on 27 June 2008.

The new Innovation Campus (IC) is located at Squires Way, Wollongong. iC Central was designed by the University as a 'business and innovation hub' and in addition to a state of the art building for its commercial tenants, it offers many services and facilities, including function and conference centres, campus management and tenant support offfices, gym and health facilities and cafes, kiosks, a restaurant and meeting rooms. We are proud to act as the University's lawyers for the leases in iC Central.

Two Principals from our firm, Rebecca Flynn and Craig Pryor, were present at the opening of iC Central by Premier Morris Iemma and are pictured here with a University representative, Ms Vickie Tsiantarlis at the opening.

If you would like further information regarding the Innovation Campus, take a look at the website, www.innovation campus.com.au or contact the University directly on (02) 4221 5115.

Franchising, keep up to date  Recent amendments to the Franchising Code of Conduct

The Federal Government recently conducted a review of the Franchising Code of Conduct (Code). 

The Code is a mandatory code under the Trade Practices Act 1974 (Cth) which governs the relationship between a Franchisor and Franchisee (including potential franchisee).  Importantly, it includes provisions about the documents and information that a Franchisor must provide to each Franchisee and a procedure for resolving disputes between a Franchisor and Franchisee which is aimed at reducing the need for either party to commence court proceedings.

Amendments to the Code were enacted on 1 March 2008 and set out below is a summary of some of the more substantial amendments:

Franchisors must now provide a copy of the Franchise Agreement to a prospective Franchisee, in the form that is to be executed by the parties, at least 14 days before the Franchisee enters into the Agreement or pays any non-refundable money to the Franchisor.
Franchisors must disclose to Franchisees, in writing within 14 days, any “materially relevant facts” about the Franchisor for which the Franchisor has become aware of.
Franchisors have 4 months from the end of each financial year to update and provide a new disclosure document for the franchise system.
For long form disclosure documents, a Franchisor must disclose the name of any business or company that will provide a rebate or benefit to the Franchisor if the Franchisor is supplying those goods to each of the Franchisees.
The Code now applies to foreign Franchisors that grant only one franchise or master franchise in Australia.
A Franchise Agreement cannot contain or require a Franchisee to sign a waiver of reliance on any verbal or written representation made to the Franchisee prior to executing the Franchise Agreement.
There are other amendments to the Code. It is therefore important that both Franchisors and Franchisees are aware of their respective obligations and rights under these most recent amendments to the Code.
For further information regarding buying or selling a franchise, the franchising amendments or franchising generally, please contact David Nicoll on 9525 8688 or email david@wmdlaw.com.au.

Do I have to mediate before I commence proceedings in the Family Court?  Compulsory mediation in parenting proceedings

As from 1 July 2008, all parties have to obtain a certificate from a registered Family Dispute Resolution Practitioner before they commence parenting proceedings in the Family Court of Australia or the Federal Magistrates Court of Australia.  Parties will not be able to file an Application in the Family Court or the Federal Magistrates Court seeking Orders in relation to children unless they have a certificate or an exemption is granted by the Registrar of the Court.

The certificate from the Family Dispute Resolution Practitioner needs to say that:

Mediation has not taken place because the other party refused to participate in mediation;
Mediation has not taken place because it is not appropriate to conduct the proposed family dispute resolution;r
Mediation has taken place but no agreement was reached despite both parties genuine effort to resolve the issues in dispute;
Mediation has taken place but no agreement was reached because one party did not make a genuine effort to resolve the issues in dispute.
If a party wants to apply for an exemption from obtaining a certificate, they will have to prepare and send a covering letter to the Registrar together with an Affidavit setting out the reasons why an exemption should be granted. 

A copy of the precedent Affidavit form can be found on the Family Court website at www.familycourt.gov.au.  Not all mediators are recognised as being Family Dispute Resolution Practitioners, so parties will need to check whether their chosen mediator is appropriately qualified.

Please do not hesitate to contact Greg Dickson from our office on 9525 8688 for further information and advice.

Ensuring clients fully understand the nature and effect of documents they sign  Assessing capacity when executing wills, powers of attorney or guardianship documents

We are often called upon by close friends and relatives of elderly clients to prepare a will, power of attorney or appointment of an enduring guardian.

The friend or relative is adamant that they know what their friend’s, parent’s or spouse’s wishes are and that it is absolutely urgent that new documents are prepared and signed as soon as possible.

When we are considering those instructions (or any new instructions from any client) there are 2 very important questions that we, as lawyers, need to consider.  The first is whether the instructions we have been given accurately reflect the wishes of the person who is going to sign the document.  The second question is whether that person has the relevant capacity to understand the nature and effect of the documents they are to sign.

To answer both questions we need to spend time with our client (and in these circumstances, our client is the person who will be asked to sign the documents) to determine their level of understanding of their own circumstances and the documents presented to them. 

We have a duty to our client to ensure they are given the opportunity to express their wishes without any undue influence from friends or relatives.  We must also ensure that that our client has a complete understanding of the effect of the decisions he or she is making.

Generally, when a person has capacity to make a particular decision they can:

understand the facts and the choices involved;
weigh up the consequences; and
communicate their decision.
Capacity can depend on a person’s health and personal experience, including any stressful or anxious feelings that person may be experiencing.  We will assess a client’s capacity having regard to our client’s individual circumstances and if we have any concerns about a client’s ability to understand the nature and effect of a document, we will advise them of this and seek their permission to consult with their treating medical practitioner to obtain an expert medical opinion.  If it becomes clear that a person does not have the relevant capacity to sign documents, it may become necessary to apply to the Guardianship Tribunal or a Court for appropriate orders to assist that person and their family.

If you have any concerns about a friend or relative and their ability to understand the legal effect of documents they have signed or have been asked to sign or if you have any questions about the Guardianship Tribunal and its functions, please contact Craig Pryor or Jayne Humphreys or email craig@wmdlaw.com.au or jayne@wmdlaw.com.au.
 

Pools and fencing  Does a backyard spa pool need to be fenced?

Many of us have swimming pools in our backyards and we are aware of the requirements to fence the pool, have self locking gates and display the necessary resuscitation signs.  However, does this mean that a child’s wading pool or spa located in the backyard must also comply with these criteria? 

The Swimming Pools Act 1992 (NSW) defines a swimming pool as an excavation, structure or vessel that is capable of being filled with water to a depth of 300 millimetres or more and that it is solely or principally used, or that is designed, manufactured or adapted to be solely or principally used, for the purpose of swimming, wading, paddling or any other human aquatic activity.

The Act goes on to say that the definition of “swimming pool” includes a spa pool, but does not include a spa bath that is situated within a bathroom.  Therefore any “swimming pool” which falls within the above definition must be fenced, have a self locking gate and have the required resuscitation signs displayed.  Accordingly, you should ensure that any “swimming pool” located in your backyard complies with the above requirements in order to avoid any drownings, any orders being made against you by the local council and any fines.
If you have any queries as to whether you are required to erect a pool fence or any other property related matter, please contact Rebecca Flynn or Gina Haramis or email rebecca@wmdlaw.com.au or gina@wmdlaw.com.au

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.

I've been served with a subpoena to produce documents- what should I do?

A subpoena to produce requires the person served with the subpoena to provide certain documents or things as set out in the subpoena by a certain date. Once a subpoena has been issued by a Court, it operates as an order compelling you to comply. You must not ignore a subpoena.

To comply with a subpoena to produce, you must produce the documents or things to the appropriate Court on the date set out in the subpoena or deliver those documents or things to that Court at least 2 days prior to the date specified in the subpoena. You must produce original documents, unless you have obtained the consent of the party who issued the subpoena to produce a copy.

There are certain rules about when and how a subpoena must be served on you. If you have knowledge of the subpoena and what you are required to do by the date specified in the subpoena, you should comply even if you think the subpoena has not been properly served. If you fail to comply with the subpoena (without a lawful excuse) you may be in contempt of court and you may be arrested as a result.

You also have certain rights to apply to the Court, either to set aside the subpoena or to make an application for privilege or confidentiality of some or all of the documents which you have been ordered to produce. You should seek our advice if you are unsure about whether you can make such applications and how to approach the Court.

If you have been served with a subpoena and you are unsure of your obligations you should seek our advice.

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