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Category: Law

BY: root
12 September, 2025 Comments (0)

Statutory Demands: A Guide

A Guide to Statutory Demands for both Creditors & Debtors in Australia A statutory demand is a formal, written notice issued by a creditor to a debtor (which must be a corporation), requiring immediate payment of an outstanding debt. Failure to comply within 21 days may result in the company being presumed insolvent open to being subject to a winding up application in the Federal Court or Supreme Court. A statutory demand is a powerful legal instrument under the Corporations Act 2001 (Cth) and is often the first step in corporate debt enforcement and collection. This article explains the process and implications of statutory demands, both from the perspective of a creditor seeking to recover a debt, and a company that has been served with one. What is a statutory demand? Under section 459E of the Corporations Act 2001, a statutory demand is a formal demand issued by a creditor which compels the debtor company, which owes a debt (or debts) totalling more than $4,000.00 to, within the statutory period: pay the debt or debts, in full; enter into an arrangement acceptable to the creditor; or apply to the court to have the demand set aside. If the debtor company fails to take appropriate steps within the statutory period, the creditor can apply to wind the company up in insolvency pursuant to section 459Q of the Corporations Act 2001. Purpose of a Statutory Demand A statutory demand serves two primary functions: enforcement: It places legal pressure on the debtor to resolve or pay the debt. insolvency trigger: Non-compliance establishes a legal presumption of insolvency, forming the basis for a liquidation application. Statutory demands are not intended to resolve disputes. They are only appropriate where the debt is undisputed, due, and payable. Nevertheless, they remain an effective means of compelling payment. Requirements of a valid statutory demand To be effective, a statutory demand must strictly comply with the formal requirements of the Corporations Act 2001. Non-compliance can render the demand invalid and lead to adverse cost consequences for the creditor. Key statutory requirements (under s459E(2)): A statutory demand must: be in writing; be in the prescribed form; specify the debt or total amount owing (if more than one debt); require the debtor company to pay, secure, or compound the debt to the creditor’s reasonable satisfaction; be signed by or on behalf of the creditor; and if the debt (or a part of the debt) is not a judgment debt, be accompanied by an affidavit verifying that the debt is due and payable. Errors in the form, or failure to provide a supporting affidavit, can invalidate the demand. Supporting Affidavit For debts that are not based on a court judgment, a statutory demand must be accompanied by a properly sworn affidavit confirming: the creditor’s belief that the debt is due and payable; the basis on which the debt is claimed; and must comply with the rules of court. Serving the statutory demand Service of the statutory demand must be executed in accordance with the Corporations Act 2001. Correct service is essential to enforceability. Common methods include: delivering the demand to the company’s registered office; or leaving it with a director or authorised officer. Service by post is permitted if addressed to the registered office. Courts regularly deal with challenges to statutory demands based on improper service, and even minor defects in service can be fatal to enforcement. Consequences of non-compliance If the debtor company fails to respond within 21 days of effective service, the following consequences may arise: a presumption of insolvency is triggered under section 459C(2)(a); the creditor may file an application for the company to be wound up in insolvency; the burden shifts to the debtor to rebut the presumption in court. It is not necessary to prove actual insolvency at this stage. The failure to comply with the statutory demand is, on its own, sufficient evidence of insolvency for the purpose of a winding up application. Grounds for setting aside a statutory demand If a company wishes to challenge a statutory demand, it must apply to the court within 21 days of service to have the demand set aside. The application must be supported by an affidavit outlining the reasons. Under section 459H, the court may set aside a statutory demand if: 1.     There is a genuine dispute about the existence or amount of the debt The dispute must be bona fide and based on real grounds, not simply a denial of the debt. A genuine dispute does not require the company to prove it will succeed, only that there is a serious question to be tried. 2.     The company has an offsetting claim An offsetting claim arises where the debtor company has a counterclaim, set-off or cross-demand against the creditor, whether liquidated or unliquidated, and whether or not the claim arises from the same transaction. 3.     There is a defect in the demand causing substantial injustice This may include errors in form, amounts, or inconsistent or unclear descriptions of the debt. 4.     There is some other reason the demand should be set aside Courts retain discretion to set aside a demand in circumstances of abuse of process, unconscionable conduct, or other equitable grounds. 5.     The “Substantiated Amount” If the court finds that part of the debt is in dispute or subject to an offsetting claim, it may assess what is called the substantiated amount – the undisputed portion of the debt. If the substantiated amount is below the statutory minimum ($4,000), the demand must be set aside. Timeframes are strict Strict compliance with time limits is essential. The application to set aside the demand must: be filed in the court within 21 days of service; and be served on the creditor promptly. Late applications will not be accepted, and the statutory presumption of insolvency will remain in place. Strategic considerations for creditors Creditors should carefully assess the circumstances before issuing a statutory demand. Key considerations include: whether the debt is genuinely undisputed

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BY: root
12 September, 2025 Comments (0)

Can I refuse to be an Executor of a Will?

Can I refuse to be an executor under a will? Being named as the executor of a loved one’s Will can sometimes come as a surprise. For many people, the news arrives during an already difficult time, following the death of someone close to them. While some view the role of executor as an honour, others may see it as an overwhelming burden. So, what happens if you do not want to act as executor? Do you have a choice? What are your legal options? In this article, we explain what it means to be named an executor of a Will, when and how you can refuse the role, and the legal consequences of your decision. What Is an executor of a will? An executor is the person appointed in a Will to carry out the deceased’s final wishes and administer their estate. This is a role of trust and responsibility. Executors are responsible for tasks such as: locating the original Will; arranging the funeral and burial or cremation; applying for a grant of probate (formal approval of the Will by the relevant Supreme Court in your State or Territory); identifying and securing the deceased’s assets; paying debts and taxes owed by the estate; distributing the estate to the beneficiaries according to the terms of the Will. It is not unusual for people to nominate family members, close friends, or professional advisers as executors. However, being named does not mean you are compelled to accept the role. Do I have to accept being an executor? The simple answer is no. A person named as executor has the freedom to accept or decline the role, unless they have already taken steps that amount to “intermeddling” in the estate (explained below). Declining the role is referred to as renouncing probate. This means you are formally refusing the responsibility of administering the estate. Importantly, even if you told the deceased during their lifetime that you would act as executor, you are not legally bound to follow through if you change your mind after their death. Why might someone refuse to be an executor? There are many reasons why a named executor may not want to accept the appointment, including: emotional reasons – the grief of losing a loved one can make the thought of handling their affairs too distressing. personal circumstances – you may have too many commitments, health concerns, or live overseas, making the role impractical. financial considerations – if you are not receiving any benefit from the estate, you may not wish to shoulder the burden of administration. family dynamics – disputes or tension among beneficiaries may make the task of executor particularly challenging. It may simply be better to allow another person to act as executor, reducing the likelihood of disputes. Whatever the reason, the law recognises that not everyone is in a position to take on this responsibility. How do I refuse to be an executor? If you decide not to act, you must formally renounce probate. This involves: signing a renunciation of probate document, which must be in the proper form; filing the renunciation with the Supreme Court of your State or Territory; having the renunciation accepted by the Court. The renunciation does not take effect until the Court has accepted it and must usually be accompanied by an affidavit of verification, to be completed by a lawyer. It is strongly recommended that you obtain legal advice before renouncing. A solicitor can explain the process, prepare the necessary affidavit, and ensure your documents meet the Court’s requirements. What Is intermeddling? You can only refuse to act as executor if you have not already “intermeddled” in the estate. Intermeddling refers to conduct that shows you have accepted the role of executor, such as dealing with the estate’s property or finances. Examples of intermeddling may include: closing or accessing the deceased’s bank accounts; selling, transferring, or managing estate assets; paying debts or liabilities of the estate; representing yourself to others as the executor. Once you have intermeddled, you usually cannot later renounce your appointment. Acts that usually do not amount to intermeddling include: arranging and paying for the funeral (including from estate funds); securing the deceased’s property from damage or theft; caring for pets or livestock; advertising or applying for a grant of probate without taking further steps. The distinction can be subtle. If you are unsure whether something you have done amounts to intermeddling, it is important to seek legal advice promptly. What happens If I do nothing? Some executors neither renounce their role nor take any steps to administer the estate. This can create significant delays and stress for beneficiaries. If this happens, any person with an interest in the estate may apply to the Court under section 15 of the Administration and Probate Act 1958 (Vic). The Court can order you to: bring the Will before the Court; explain why you are not proving the Will or renouncing; allow the Court to appoint someone else to administer the estate. If such an application is necessary, you may be ordered to pay the legal costs of the proceedings. Consequences of renouncing While renouncing can relieve you of responsibility, it may also have consequences that you should consider carefully. These may include: loss of entitlements under the Will – in some cases, your entitlement as a beneficiary may be conditional on you acting as executor, even if this is not stated explicitly. loss of executor’s commission – executors can apply for commission as compensation for the time and effort involved in administering the estate. By renouncing, you give up this potential entitlement. Every situation is different. The impact of renouncing depends on the terms of the Will and the overall structure of the estate. Should I get legal advice before renouncing? Absolutely. Deciding whether to accept or refuse an executor appointment can have long-term consequences for you and the estate. A solicitor can: explain your rights and obligations as executor; advise whether your actions so far amount to

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BY: root
12 September, 2025 Comments (0)

General protection claims

General Protections Claims under the Fair Work Act 2009 (Cth): What You Need to Know The Fair Work Act 2009 (Cth) (the FW Act) provides employees across Australia with a broad range of workplace protections. Among these, the General Protections provisions are some of the most powerful. They protect employees and prospective employees from adverse action, coercion, misrepresentation, and undue influence or pressure. Unlike unfair dismissal claims, General Protections matters do not require minimum employment periods or salary thresholds. As such, they are a valuable legal avenue for workers who believe their rights have been breached—especially where discrimination, retaliation, or coercion is alleged. This article explains what General Protections are, what types of claims may be brought, the legal framework for adverse action, and the process for resolving disputes. It focuses on the jurisdiction of the Fair Work Commission and Federal Courts, and provides guidance on remedies and enforcement. What are general protections? The General Protections provisions, found in Part 3-1 of the Fair Work Act, aim to: Protect workplace rights; Ensure freedom of association; Provide protection against workplace discrimination; Promote fairness in the workplace. These protections apply not only to employees, but also to prospective employees, contractors, industrial associations, and union members. The provisions create obligations that employers must not breach, regardless of the size or nature of the business. Key Protections Under the Act The General Protections regime encompasses several distinct legal protections. 1. Workplace Rights A person has a workplace right if they are: entitled to a benefit or role under a workplace law, award, agreement or order; able to initiate or participate in a process or proceeding under a workplace law; able to make a complaint or inquiry in relation to their employment. It is unlawful for an employer to take adverse action against a person because they have (or exercise or propose to exercise) a workplace right. 2. Freedom of Association This refers to the right of individuals to: choose whether or not to join a union; be represented in the workplace; participate in lawful industrial activities. Employers must not take adverse action because an employee participates in (or refuses to participate in) union-related activity. 3. Protection from Discrimination General Protections prohibit adverse action based on protected attributes, including: race; sex; age; disability; religion; political opinion; national origin; family or carer responsibilities. Discriminatory treatment on these grounds may give rise to both a General Protections claim and a claim under anti-discrimination legislation. What Is Adverse Action? Understanding the meaning of adverse action is crucial. Under section 342 of the FW Act, adverse action includes: dismissing an employee; altering the position of the employee to their prejudice; injuring the employee in their employment; discriminating between employees; Critically, it is not necessary to prove that the adverse action was the sole reason for the conduct. It need only be one of the reasons, even if it is not the dominant or primary one. This threshold, coupled with a reverse onus of proof, makes general protections claims more favourable to applicants compared to other employment claims. Reverse onus of proof One of the most significant features of the General Protections regime is the reverse onus under section 361 of the Act. Once an applicant establishes that adverse action occurred and alleges a prohibited reason, it is presumed that the adverse action was taken for that reason – unless the employer proves otherwise. The employer must lead clear and cogent evidence to rebut the presumption. If they fail to do so, the court will likely find that the prohibited reason was the sole, or a, motivating factor, and therefore find in favour of the applicant. Examples of General Protections Breaches Termination after safety complaint An employee who raises concerns about workplace safety and is later dismissed may have a claim for adverse action if the dismissal is connected to the complaint. Retaliation for taking personal leave An employee who exercises their entitlement to personal leave and is demoted, terminated or disadvantaged may pursue a general protections claim. Refusal to hire due to union affiliation A prospective employee denied employment because of their union membership may be able to establish unlawful adverse action. How to make a general protections claim The process for making a general protections claim depends on whether or not the alleged adverse action involves dismissal. 1. Claims involving dismissal Where adverse action results in termination of employment, the applicant must: lodge an applicant with the Fair Work Commission; do so within 21 days of the dismissal taking effect. The Commission will then convene a conciliation conference, usually conducted by telephone, to attempt to resolve the matter. If no resolution is reached, the applicant may request a certificate allowing the matter to proceed to the Federal Court or Federal Circuit and Family Court of Australia. 2. Claims not involving dismissal For adverse action claims that do not involve dismissal, the applicant may apply directly to the Federal Court or Federal Circuit and Family Court, without the need to first approach the Commission. However, legal advice is strongly recommended in such cases, as court proceedings can be complex and costly. Remedies available Successful general protections claims can result in a broad range of remedies. These include: reinstatement (in cases of dismissal); compensation for economic loss, hurt, or humiliation; civil penalties against the employer and any individuals involved in the contravention; injunctions to prevent ongoing or future contraventions. There is no cap on compensation, unlike unfair dismissal claims, where compensation is generally capped at 26 weeks’ pay. This makes General Protections claims particularly powerful where there is evidence of financial harm or emotional distress. Case Law: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 This High Court decision remains one of the leading authorities on general protections. Mr Barclay, a union representative, sent an email raising concerns about workplace conduct. He was suspended and later dismissed. The employer argued the dismissal was due to misconduct, not his union involvement. The High

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BY: root
12 September, 2025 Comments (0)

A Victorian Guide to Residential Tenancy Law & Disputes

A Guide to Residential Tenancy Law & Disputes in Victoria In Victoria, residential tenancy disputes are common occurrences between landlords and tenants. Whether it involves unpaid rent, property damage, bond disputes or lease termination issues, these conflicts often require resolution through the Victorian Civil and Administrative Tribunal (VCAT). Understanding the types of disputes that arise, and how VCAT manages them, is essential for both property owners and tenants. This article explains the nature of residential tenancy disputes in Victoria, outlines common types of conflicts, and sets out the procedure for resolving such disputes through VCAT. What Is a residential tenancy dispute? A residential tenancy dispute is a legal disagreement between a landlord (rental provider) and a tenant (renter) arising from a residential tenancy agreement. These disputes may involve breaches of the rental agreement, issues of maintenance and repairs, disagreements over rent or bond, or concerns about access, privacy, and termination. In Victoria, such disputes fall under the Residential Tenancies Act 1997 (Vic), which outlines the rights and responsibilities of parties to a residential lease. When informal negotiations fail, parties may escalate the matter to VCAT – the body responsible for hearing and resolving tenancy disputes in a timely, low-cost and accessible manner. Common Types of Residential Tenancy Disputes Although rental disputes vary, certain categories arise frequently across Victoria. Below are the most common types of disputes heard at VCAT. 1.     Bond Disputes Bond disputes are among the most frequent issues. Typically, a dispute arises when: The landlord claims part or all of the bond for damages, cleaning or unpaid rent The tenant contests the deduction, asserting the property was left in a reasonable condition, or that rent has been paid up to date, etc. It is important to note that bonds must be lodged with the Residential Tenancies Bond Authority (RTBA). After the tenancy ends, either party may apply to have the bond released. If there is no agreement, the dispute may proceed to VCAT. 2.     Rent Arrears Disputes concerning unpaid rent often lead to notices to vacate and eviction proceedings. A landlord may serve a Notice to Vacate if the tenant falls behind on rent for 14 days or more. If the rent remains unpaid, the landlord can apply to VCAT for possession of the property. However, if tenants pay within the notice period, no application can be made (until a certain number of notices have been issued). Further, the tenant can apply for a payment plan or negotiate alternative arrangements. VCAT must balance the rights of both parties and will usually consider hardship before ordering possession. 3.     Property Damage Allegations of damage beyond reasonable wear and tear frequently lead to conflict. Landlords may claim compensation for: Stains, broken fittings, or structural damage Failure to maintain cleanliness or sanitation On the other hand, tenants often argue that the damage was pre-existing or resulted from fair wear and tear. Supporting evidence, such as entry and exit condition reports, becomes critical in such disputes. 4.     Repairs and Maintenance Tenants have a legal right to live in a property that is in good repair and reasonably clean. Landlords must address urgent repairs without delay and non-urgent repairs within a reasonable timeframe. Disputes arise when: Landlords fail to undertake repairs Tenants carry out unauthorised repairs and seek reimbursement There is disagreement about whether a repair is urgent or non-urgent VCAT may order repairs, reimbursement or compensation depending on the circumstances. 5.     Entry and Privacy Under Victorian law, landlords must provide proper notice before entering the premises. Tenants may dispute: Unlawful or excessive entry Entry without notice Lack of respect for quiet enjoyment Landlords may enter only under specific conditions, such as inspections, repairs, or emergencies, and must provide at least 24 hours’ written notice in most cases. 6.     Lease Termination and Evictions Lease terminations often generate disputes, particularly when one party alleges breach of the agreement. These issues commonly include: Early termination by tenants Non-payment of rent Landlord seeking possession during a fixed-term lease VCAT hears applications regarding the validity of notices to vacate, whether reasonable grounds exist for termination, and whether hardship would result from eviction. 7. Rent Increases Disputes may occur when: Tenants believe a rent increase is excessive or unjustified Proper notice was not given (minimum 60 days) Increases occur more frequently than permitted (once every 12 months for periodic agreements) VCAT can assess whether the new rent is excessive based on market comparisons. Attempting Resolution Before VCAT Before applying to VCAT, parties are encouraged to resolve disputes through informal negotiation. In many cases, disputes can be settled by: Communicating in writing Using the services of Consumer Affairs Victoria Engaging in voluntary conciliation Consumer Affairs Victoria offers dispute resolution assistance and may help parties reach agreement without needing a tribunal hearing. While not mandatory in all cases, attempting resolution before escalating the matter can save time, stress and costs. The VCAT Process for Tenancy Disputes When disputes cannot be resolved informally, parties may apply to VCAT’s Residential Tenancies List. The process is designed to be accessible, even without legal representation. 1. Filing an Application The first step is to complete and lodge a VCAT application form, which can be done online or in person. The application must: Clearly state the nature of the dispute Identify the orders sought Include relevant supporting documents (e.g. lease agreement, notices, condition reports) There is usually a filing fee, although fee relief may be available for eligible applicants. 2. Notifying the Other Party VCAT requires that the other party (the respondent) be properly notified of the application. In most cases, this involves serving the application via post or email. Proof of service must be provided. The respondent may file a response or attend the hearing to present their side. Failure to attend may result in orders being made in their absence. 3. Attending the Hearing VCAT hearings are conducted in an informal setting. The parties are usually not required to have legal representation, although they may engage a

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BY: root
12 September, 2025 Comments (0)

An Introduction to the Victorian Civil & Administrative Tribunal

A Comprehensive Guide to VCAT – Victorian Civil and Administrative Tribunal Introduction The Victorian Civil and Administrative Tribunal, more commonly known and referred to as VCAT for short, plays a central role in resolving a wide range of disputes in Victoria. Established to provide a faster, more affordable, and accessible alternative to court proceedings, VCAT hears thousands of cases each year, and does so in a less formal, rigid manner that a typical Court. For individuals and businesses, understanding how VCAT works can be the difference between a smooth resolution and a stressful, drawn-out process. This guide explains what VCAT does, the types of disputes it hears, how to start a case, and what to expect about the process. What Is VCAT? VCAT is a tribunal, not a court. This means it operates with less formality than courts, but it still makes legally binding decisions. Created under the Victorian Civil and Administrative Tribunal Act 1998 (Vic), it brings together several separate boards and tribunals into one body. Its purpose is to offer: Accessible dispute resolution Affordable hearing fees and simplified procedures Specialist divisions with expertise in different areas of law VCAT’s structure and divisions VCAT is divided into specialist divisions and lists, each dealing with specific types of cases. 1.       Civil division Covers disputes such as: Consumer and trader disputes Domestic building disputes Owners corporation matters Certain disputes involving property 2.       Administrative division Handles disputes about decisions made by government agencies, such as: Planning and environment matters Land valuation objections Freedom of Information reviews 3.       Human rights division Deals with: Guardianship and administration orders Equal opportunity and anti-discrimination cases Mental health treatment matters 4.       Residential tenancies division Hears cases involving: Tenants and landlords Rooming houses Caravan parks Retirement villages Advantages of VCAT compared to courts Lower cost – Application fees are generally lower than court filing fees Less formality – Procedures are simplified, and legal representation is often optional Specialist expertise – Each division has members experienced in the area of law it is dealing with Speed – Many disputes are resolved faster than through the court system When VCAT is appropriate You may bring a case to VCAT if your dispute falls under an area of law in which VCAT has jurisdiction to hear and determine the issue. Starting a case at VCAT 1.       Check if it’s the right jurisdiction First, confirm that VCAT can hear your dispute. Not all matters can be brought to VCAT. Its website and the relevant legislation can help to determine what types of disputes VCAT has jurisdiction to hear and determine. 2.       Prepare your application Applications are usually lodged online via the VCAT website. The application form requires: Details of the parties The type of dispute The orders you are seeking Any supporting documents 3.       Pay the application fee Fees vary depending on the type of case, the division, and whether you are an individual or business. Concession fees are available for eligible applicants. 4.       Serve the application Once lodged, you may need to serve the application on the other party. VCAT will provide instructions on how to do this. Before the hearing Directions hearings and mediation VCAT may hold a directions hearing to set timelines for filing documents. In many cases, parties are referred to mediation or compulsory conferences before a final hearing. Preparing your evidence You should gather all documents, photos, contracts, and witness statements that support your case. Evidence should be filed and served according to VCAT’s directions. The hearing process VCAT hearings are generally less formal than court trials, but they follow a structured process: Opening – The tribunal member introduces the case and outlines the process. Presentation of Evidence – The applicant presents their case first, followed by the respondent. Questioning – Parties or the tribunal member may ask questions of witnesses. Closing Submissions – Each party summarises their case. Decision – The tribunal member may give an oral decision at the end or reserve the decision to be delivered later. Legal representation at VCAT Unlike courts, legal representation at VCAT is not always automatic. In many lists, you must seek permission to be represented. However, in more complex matters, such as large building disputes, representation is common and often advisable. Outcomes and orders VCAT can make a range of orders, including: Payment of money Completion of works Termination of tenancy agreements Orders to set aside or vary government decisions These orders are legally binding and enforceable. Enforcing a VCAT order While VCAT’s orders are binding, they are not self-enforcing. To enforce a monetary order, you must register it with the appropriate, which can then be enforce in accordance with that court’s enforcement procedures. Appeals and reviews VCAT decisions can be appealed to the Supreme Court of Victoria, but only on a question of law. This means you must show that VCAT made an error in applying the law, not simply that you disagree with the outcome. There are two (2) divisions of the Supreme Court of Victoria in which an appeal can be filed: The Court of Appeal; or The Trial division. Practical tips for success at VCAT Be prepared – Have all your evidence organised and ready to present. Stay professional – Even though VCAT is less formal, respectful and concise communication is essential. Know the law – Understand the legislation which applies to your dispute. Consider legal advice or representation – Even if you represent yourself, professional advice beforehand can improve your case strategy. Common misunderstandings about VCAT It’s informal, so preparation is unnecessary – Incorrect. While VCAT is less formal than court, thorough preparation is essential. It’s always faster – While many cases are quicker, some lists (such as planning) have significant backlogs. Conclusion VCAT offers Victorians an accessible and cost-effective way to resolve many types of disputes. However, success at VCAT still requires preparation, understanding of the process, and attention to detail. Whether you are a landlord, tenant, consumer, business owner, or challenging a

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BY: root
12 September, 2025 Comments (0)

A Guide to Default Judgments

In litigation, time is critical. As is frequently the case, the failure to obtain proper legal advice after receiving a court document can result in judgment being entered against you. This often occurs without any notice. This is why, it is important to: Obtain legal advice as soon as possible after being given court documents; and Take appropriate steps in accordance with that requirements of that document. Each year, many Australians are blindsided by what is known as a default judgment. This typically happens when a party fails to appropriately respond to a claim, such as by filing a defence on time Default judgment is where the plaintiff is awarded judgment without a hearing, and usually because the defendant did not take any steps to respond to the claim, even after notice. So, what can you do if this happens to you? Fortunately, Australian courts have the power to set aside default judgments. However, the process is not automatic, and delay can be fatal. This article explores how default judgments operate, the grounds for setting them aside, and the steps you should take immediately. Whether you’re a business owner who missed a court notice or an individual facing unexpected legal consequences, understanding your rights is essential; especially if you have a default judgment entered against you. What Is a Default Judgment? A default judgment is a court order granted in favour of a plaintiff when the defendant has failed to comply with a procedural requirement; most commonly, this occurs where the defendant has failed to file a notice of appearance, or a defence, in the relevant court proceedings. Typically: A defendant has 28 days from service of the Statement of Claim to file a defence (timeframes may vary slightly by jurisdiction). If no defence is filed within time, the plaintiff may apply for default judgment without giving further notice. The consequences of a default judgment are that: Judgment is entered against you (or your business); and That judgment is recorded on your (or your business’) creditor report. Additionally, after judgment is obtained by a plaintiff, they can usually apply to enforce that judgment, and seek orders such as: a garnishee order (requiring your employer or a third party to pay a portion of your income to the creditor); a sale and seizure, or similar order, which requires the bailiff to seize and thereafter, sell, personal property (such as a case), or real property (land); or bankruptcy or insolvency proceedings; amongst other types of orders. A default judgment is serious. If not dealt with promptly, it can escalate into further legal or financial consequences, in addition to the effects on credit ratings, etc. Common reasons for not responding Missing a deadline to file a defence can occur for many reasons: Court documents were served at the wrong address You mistakenly believed the claim lacked merit You were overseas or hospitalised at the time You simply misunderstood the deadline Even if your explanation is genuine, you must still persuade the court to set aside the judgment. Timing and detail, as to the reasons, to set aside a judgment are necessary and critical to success.   Can a Default Judgment be set aside? Yes. Australian courts have discretion to set aside default judgments under their procedural rules. However, you must actively apply to the court, and success is not guaranteed. Courts will consider several key factors when deciding whether to grant your application. Setting aside a Default Judgment Each State and Territory court usually have their own procedural rules, but the legal test is usually the same across jurisdictions. The court will usually examine: Whether there is a satisfactory explanation for the default Whether the defendant has a genuine defence on the merits Whether the application was made promptly Where judgment was entered illegally, irregularly or against good faith These principles are grounded in both legislation and case law, according to each State or Territory the judgment was given in. 1.        A reasonable reason for the delay in responding to the claim You must give the court a valid and reasonable explanation for why you didn’t file a defence, or take appropriate and necessary steps as requested in the summons, in time. Some of the following reasons may be accepted: You did not receive the claim documents (e.g. incorrect address) You were incapacitated or medically unfit You were unaware of the proceedings due to travel or unforeseen events Evidence is crucial. Medical records, affidavits, or travel documents will assist in supporting your explanation. Courts take a dim view of defendants who simply ignore proceedings or misunderstand court deadlines. 2.        A defence on the merits It is usually preferable to give a reason as to why you say that there is a defence to the claim, whilst seeking to set aside the default judgment. This gives the court something to assist it when determining whether the reasons for setting the default judgment aside, are worthwhile. You don’t need to provide much evidence at this stage, but you should give a basic outline of why you say there is a genuine dispute that should be heard. An undertaking, or a solicitor at this stage, who can prepare the defence, is helpful in persuading the court that steps will be taken to resolve the non-compliance, allowing the case proceed. Common examples include: Disputing the amount claimed Denying liability under the contract Arguing the claim is out of time (statute-barred) Asserting defences like misrepresentation or lack of agreement   3.        Promptness of the application to set aside Promptness is essential. Even with a valid explanation and a strong defence, an unreasonable delay may result in the application being denied; for example, a failure to file an application to set aside the default judgment is unlikely to be accepted (for example) after 2 years have elapsed since default judgment was entered. As a rule of thumb: File your application as soon as possible after discovering the judgment Include an affidavit explaining the timeline of events

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BY: root
12 September, 2025 Comments (0)

The Importance of a Will: Insights from a Wills & Estates Lawyer

The Importance of a Will: Insights from a Wills & Estates Lawyer When life is busy with work, family, and personal goals, it’s easy to push estate planning to the bottom of the list. But failing to have a valid Will in place can create significant and unnecessary, legal and financial problems for the loved ones you leave behind. As an experienced Will & Estates Lawyer in Melbourne, we’ve seen first-hand how important a properly drafted Will can be. It provides clarity, protects your family, and ensures that your wishes are honoured after your death. In this article, we’ll explore the importance of having a Will, what happens if you die without one, how a Wills & Estates Lawyer, such as those at Allen Law can help, and why the present is always the best time to get your wishes down on paper. What Is a Will? A Will is a legally binding document that outlines how your estate is to be managed and distributed after you pass. Your estate includes everything you own—property, bank accounts, investments, vehicles, personal items, and even digital assets. A properly prepared Will also allows you to: Appoint an executor to carry out your wishes Nominate guardians for your children Make special gifts or charitable donations Create testamentary trusts for vulnerable beneficiaries Additionally, a Will can provide instructions as to what you would like to be done after your death, for example, if you wish to be buried, and where, or cremated and your ashes stored or scattered, along with any religious rites you may want to be performed. It’s a foundational document in any comprehensive estate plan, and working with a Wills & Estates Lawyer ensures it’s properly and correctly prepared in accordance with the law.   Why a Will is important 1.     You Stay in Control of Your Estate One of the greatest benefits of having a Will is that you, not the law, decide how your assets are distributed. If you die intestate (without a valid Will), your estate will be divided according to a strict legal formula under the laws of intestacy. That formula may not reflect your personal wishes or family dynamics. A well-crafted Will puts you in control. You can leave specific assets to specific people, divide your estate how you see fit, and even exclude certain individuals if appropriate. At Allen Law, we regularly help clients structure their Wills to reflect their unique relationships and values and wishes. 2.     You Can Appoint a Trusted Executor An executor is the person responsible for administering your estate after your passing. The executor is responsible for collecting your assets, paying any debts or taxes, and distributing what’s left in accordance with your Will. If you die without a Will, the law determines who can be appointed the executor of your estate. This may ultimately be someone you would not have chosen to be the executor and administrator of your estate.   A Wills & Estates lawyer can help you select an appropriate executor and explain the legal duties involved. You may also want to appoint a secondary, supplementary executor in case your first choice is unwilling or unable to act, such as when the executor passes before you. 3.     Protecting Children and Dependants If you have children under the age of 18, a Will is essential. It allows you to appoint guardians who will care for your children if you and your partner both pass away. Without a Will, a court will usually decide who takes on this role, and may result in a guardian being appointed that you would not agree with. In addition to guardianship, a Wills & estates lawyer can help you set up testamentary trusts; this is a legal structure that protects inheritances for minors or vulnerable beneficiaries (e.g., those with disabilities or addiction issues). This ensures your estate is used wisely and for the right purposes, until the beneficiary (for example, in the case of children), ascertain a certain age. 4.     Avoiding Family Disputes Sadly, when someone dies without a clear Will, it often leads to family conflict. Disagreements over property, finances, or funeral wishes can spiral into full-blown legal disputes. A properly drafted Will, prepared by a qualified lawyer with experience in Wills and estates, significantly reduces the chance of a dispute. Your intentions are clearly stated, legally enforceable, and hard to contest when done correctly. 5.     It Speeds Up the Probate Process Probate is the legal process of validating a will and administering the estate. When a will is properly drafted and executed, this process is usually straightforward. Without a valid Will, the process becomes longer, more expensive, and more emotionally taxing for your loved ones. Working with a Wills & Estates Lawyer ensures the document meets all legal requirements, helping your family avoid unnecessary court delays. 6.     You Can Leave a Legacy Many people want to leave something behind for causes they care about, whether it’s a charity, a community organisation, or a religious institution. A Will allows you to leave bequests to charities or causes that matter to you. You can also leave personal gifts, such as family heirlooms or sentimental items, to specific people. What happens if you die without a Will, or a valid Will? When a person dies without a Will in Victoria, they are said to have died intestate. In such situations, the Administration and Probate Act 1958 (Vic) determines how your estate will be divided, and who can administer it. Here’s what could happen if you die intestate: Your spouse may receive everything, even if you have children from a previous relationship. Your children may receive equal shares, regardless of need or your wishes. Stepchildren, close friends, or unmarried partners may receive nothing. The court appoints an administrator (not necessarily someone you trust). The process can be slow, stressful, and expensive for your family. These problems can be avoided almost entirely be having an appropriate and legally valid Will in place before

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BY: root
12 September, 2025 Comments (0)

Unfair Dismissal: Australian Employment Law

Unfair Dismissal in Australia: Rights & Obligations Under the Fair Work Act 2009 Losing your job can be distressing, especially if you believe your dismissal was unjust, harsh, or not handled properly. Under Australian law, employees are protected from unfair dismissal by the Fair Work Act 2009 (Cth). If you’ve recently been dismissed or terminated, you may have legal grounds to challenge it. At Allen Law, we help employees and employers across Australia navigate termination and other workplace disputes, including unfair dismissal claims. In this article, we explain what constitutes an unfair dismissal, who is eligible to make a claim, the application process, and how we can help you. What is unfair dismissal? Under section 385 of the Fair Work Act, a dismissal is considered unfair if: The person has been dismissed, and The dismissal was harsh, unjust, or unreasonable, and The dismissal was not a case of genuine redundancy, and The dismissal was not consistent with the Small Business Fair Dismissal Code (if applicable). Each of these elements must be assessed to determine whether a dismissal is unfair under the law. If any element cannot be established, the person will be taken to have not been unfairly dismissed. Understanding ‘harsh, unjust or unreasonable’ The Fair Work Commission (FWC) must take into account various matters when considering whether a dismissal was harsh, unjust or unreasonable. Some of these include: Whether there was a valid reason for the dismissal (e.g., poor performance, misconduct); Whether the employee was notified of the reason; Whether the employee was given a chance to respond; Whether the employee had a support person present at any discussion relating to the dismissal; and Any other matter the Fair Work Commission considers relevant. In many cases, it’s not just what the employer did, but how they did it that determines whether the dismissal was unfair. Who can make an unfair dismissal claim? Not every dismissed worker is eligible to make a claim. You must meet certain jurisdictional requirements under the Fair Work Act. Eligibility Criteria: You must be an employee (not an independent contractor); You must have completed the minimum employment period: 6 months for large businesses (15 or more employees) 12 months for small businesses (fewer than 15 employees) Your annual earnings must be less than the high-income threshold (as of 1 July 2025, this is $183,1,000, excluding super and bonuses), unless you are covered by a modern award or enterprise agreement You must lodge your application within 21 days after the dismissal has taken effect. The time frame is strict, and accordingly, a failure to lodge an application will usually result in your application being objected to. Despite this, you can make an application, seeking that your unfair dismissal application be accepted out of time. What Is a genuine redundancy? A dismissal is not unfair if it is a genuine redundancy. This means: The role is no longer required due to changes in operational requirements. The employer consulted with the employee in accordance with any applicable award or agreement. The employee could not reasonably be redeployed to another role. If your employer claims redundancy but still hires someone to do the same job, or fails to consult you, the dismissal may be challenged as unfair. Small Business Fair Dismissal Code If you work for a small business (fewer than 15 employees), the Small Business Fair Dismissal Code will apply to your dismissal. This code allows provides a small business with a degree of greater flexibility in relation to dismissals in cases of serious misconduct, such as theft, violence, or safety breaches, provided the employer ha reasonable grounds and acted promptly. The code also provides a longer period in which an employee can be dismissed i.e., 12 months, as opposed to 6, which would generally prohibit an application being made if the dismissal occurred after a period of less than 12 months employment. If the code is not followed, the dismissal may still be ruled unfair. Common examples of unfair dismissal No valid reason given for dismissal; Termination without warning after a minor mistake; Termination during a period of leave; Retaliation for making a complaint, requesting flexible work, or exercising a workplace right (being more a general protections claim as opposed to unfair dismissal); or Forced resignation, where the employer created an intolerable work environment (constructive dismissal), which caused the employee to resign. What compensation can you get for unfair dismissal? If the Fair Work Commission finds that your dismissal was unfair, it may order:Reinstatement to your former job; Compensation, capped at 26 weeks’ pay or half the high-income threshold; Back pay, if reinstated; Lost entitlements, such as notice pay or unused leave (in some cases). Note: A remedy under the Fair Work Act 2009 is not automatic, it is discretionary. Accordingly, even though a finding of unfair dismissal occurs, a remedy may not automatically follow (although it usually will). The unfair dismissal application process Here’s a step-by-step guide to how unfair dismissal claims are handled: 1. Lodge the ApplicationYou must file an application with the Fair Work Commission within 21 days after the dismissal took effect. This is a strict deadline. 2. Employer ResponseThe employer must respond within 7 days. 3. Conciliation ConferenceMost cases are first referred to a conciliation conference: an informal phone mediation between you, the employer, and a conciliator from the Fair Work Commission. Many disputes are resolved at this stage. 4. Hearing or ConferenceIf conciliation fails, the case may proceed to a formal hearing or conference before a member of the Fair Work Commission. 5. DecisionThe FWC will issue a binding decision based on the evidence, which may include reinstatement, compensation, or dismissal of the claim. Legal Representation: Do You Need a Lawyer? An employment lawyer can significantly improve your chances of success in employment disputes. At Allen Law, we: Help prepare strong, compelling applications Identify procedural and legal errors made by the employer Represent clients at conciliation and hearings Advise on realistic outcomes and negotiate settlements Help calculate lost earnings and

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BY: root
12 September, 2025 Comments (0)

Publication & Defamation Law in Australia

Publication & Defamation Law in Australia As previously discussed in our article What is Defamation?, a plaintiff commencing a defamation claim in Australia must establish four essential elements. One of the most critical—and usually the first to consider—is publication. In defamation law, publication refers to the communication of defamatory material to someone other than the person it is about. This article explores in detail how publication is defined, how it occurs, and what evidence is needed to prove it in different contexts, including oral defamation, written defamation, and other less common forms. What Is Publication in Defamation Law? In all Australian jurisdictions, for a statement to be considered defamatory, it must be published to a third party. This is a fundamental element of the tort of defamation and must be proven for a claim to succeed. Put simply, a defamatory statement must be seen, heard, or otherwise received by someone other than the plaintiff. The courts require evidence that a third party had access to and comprehended the defamatory matter in question. Although publication is generally considered the most straightforward element to prove, there are scenarios where it becomes complex—particularly when the publication is alleged to have occurred in private conversations or through limited circulation. Establishing Publication: Types of Defamation and Required Evidence The type of evidence needed to prove publication depends heavily on the form of the defamatory matter. Below, we examine common categories: oral defamation, written defamation, and other forms. Oral Defamation Oral defamation, often referred to as slander, involves spoken words. This is typically the most challenging type of defamation to prove due to several practical and legal hurdles: Most defamatory conversations are not recorded. Even when recorded, such recordings are often inadmissible in court. For example, under section 6 of the Surveillance Devices Act 1999 (Vic), recording a private conversation without consent may be illegal, and therefore, inadmissible. Human memory is fallible, especially with time – witnesses may forget details or misremember exactly what was said or when it was said. To prove oral publication, a claimant must rely on third-party witnesses who heard the defamatory statement being made. These individuals must be willing to provide a written statement and, ideally, give evidence in court or be available for subpoena. Written Defamation The majority of defamation claims in Australia involve written statements—also known as libel. Written defamation is easier to prove than oral defamation because there is typically a tangible record of the defamatory content. In modern contexts, written defamation often appears on: Social media platforms like Facebook, Instagram, Twitter, and WhatsApp Emails and text messages Blogs, forums, and websites Printed materials, including newspapers and magazines Importantly, for publication to be valid, at least one recipient must be capable of understanding the language in which the content is published. For instance, if defamatory content is published in Indonesian, and none of the recipients understands Indonesian, then no publication has occurred. However, if even one recipient can comprehend it and did comprehend it, that satisfies the requirement. In high-profile cases, such as those involving media outlets, publication typically includes broadcast via television, radio, or digital news platforms. Sometimes, publication can be presumed or is otherwise not in dispute. This is usually the case involving mass media publications via television or radio. Other Forms of Defamatory Publication Less common but recognised forms of defamatory publication include: Theatrical performances or plays Artworks or visual representations Cartoons or illustrations These mediums are rarely the subject of defamation claims because they are often viewed as subjective or artistic interpretations, which may not carry a specific, defamatory meaning in the same way that precise words do. Nonetheless, they can still constitute defamation if the material clearly implies a defamatory imputation and is understood as such by a third party. How Allen Law Can Help At Allen Law, we specialise in defamation law across Australia, including cases involving complex questions of publication. If you believe you have been defamed, or if you have received a concerns notice or are defending a defamation claim, it is critical to obtain legal advice without delay. We will help you: Determine whether publication has occurred Identify and secure witnesses or documentary evidence Comply with procedural requirements Prepare and present your case, whether you’re the plaintiff or the defendant Our legal team has experience dealing with both everyday defamation (e.g., on social media) and large-scale, high-profile media litigation. Contact Allen Law Phone: (03) 7020 6563Email: enquiries@allenlawyers.com.auWebsite: www.allenlawyers.com.au Speak to a defamation lawyer at Allen Law today for practical, fast, and strategic legal advice. Disclaimer: This article is general in nature and does not constitute legal advice. Consult with a qualified defamation lawyer regarding your specific circumstances, as the law may and does change.

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BY: root
12 September, 2025 Comments (0)

Serious Harm & Defamation Law in Australia

Defamation & Serious Harm In the world of defamation law, one of the most significant recent developments in Victoria and other parts of Australia is the introduction of the “serious harm” element. This requirement fundamentally reshapes how defamation claims are assessed, filtering out trivial or unmeritorious cases at an early stage. If you are considering a defamation claim, or defending against one, understanding the legal test of serious harm is essential. At Allen Law, we are experts in defamation law in Victoria, and we are here to guide you through what the serious harm threshold means and how it applies to your circumstances. What Is the Serious Harm Element? As of 1 July 2021, the law of defamation in Victoria includes an additional statutory hurdle: the plaintiff must prove that the publication of defamatory matter has caused, or is likely to cause, serious harm to their reputation. This requirement is set out in section 10A of the Defamation Act 2005 (Vic), introduced by the Defamation (Model Provisions) and Other Legislation Amendment Act 2020 (Vic). The provision reads: “It is an element of a cause of action for defamation that the publication of the defamatory matter has caused, or is likely to cause, serious harm to the reputation of the person.” This legislative reform aligns Victoria with jurisdictions such as New South Wales, Queensland and South Australia, which have also adopted the serious harm threshold. Purpose of the Serious Harm Test The serious harm requirement is designed to: Prevent minor or trivial claims from proceeding to trial Reduce the burden on the courts and defendants Ensure that only genuinely damaging defamation claims proceed to court In doing so, the reform strikes a balance between protecting reputation and ensuring freedom of expression, especially in the digital age, where social media has amplified the spread of casual, often reckless, commentary. When and How Is Serious Harm Assessed? The serious harm element can be assessed at various stages of a defamation proceeding, but most commonly it is raised by a defendant early in the litigation, by way of a preliminary determination application. Courts may decide to deal with the issue as a threshold question—before dealing with any other substantive issues in the claim—through a summary dismissal or interlocutory hearing. If the plaintiff fails to establish serious harm, the claim is dismissed at that stage, sparing both parties the cost and time associated with proceeding to a trial. This assessment typically considers: The content, tone, and reach of the defamatory publication The context in which the matter was published The audience size and demographic Any actual consequences suffered by the plaintiff, such as reputational damage, emotional distress, job loss, or social exclusion Key Case Law: Serious Harm in Action Australian courts have begun applying the serious harm test in line with UK precedent, particularly the landmark UK Supreme Court case of Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB). The Lachaux decision confirmed that serious harm is a fact-based inquiry, requiring more than just the publication of defamatory words. Lachaux has been applied in many Australian cases since the introduction of the serious harm element. See, for example, Whittington v Newman[2024] NSWCA 27. Evidence Required to Prove Serious Harm To meet the serious harm threshold, plaintiffs are advised to present tangible and credible evidence, which may include: Witness testimony that their opinion of the plaintiff has been lowered Loss of business, employment, or professional opportunities Social media metrics indicating wide dissemination Psychiatric or medical evidence (in some cases) Generalised claims about damage to reputation will no longer suffice. Plaintiffs must demonstrate actual or likely reputational damage that goes beyond mere embarrassment or hurt to individual feelings. Serious Harm and Social Media Defamation A common context for modern defamation claims is social media—platforms such as Facebook, Instagram, Twitter, and messaging apps like WhatsApp. Courts have shown a willingness to consider the reach and permanence of social media posts when determining whether serious harm has occurred. However, a social media post seen by only a handful of people, with limited engagement, may not meet the threshold—even if the statement is clearly defamatory. If you’re concerned about online defamation, Allen Law can assist with assessing whether a viable claim exists under the serious harm standard and advise on whether to pursue takedown notices, letters of demand, or formal litigation. Can Serious Harm Be Presumed? No. Under the new regime, serious harm is not presumed. Plaintiffs must plead and prove the element. This marks a departure from the earlier position under common law, where defamatory statements were presumed to cause harm unless proven otherwise. This change enhances the burden on plaintiffs and requires more strategic, evidence-based preparation before commencing court proceedings. Implications for Defendants For defendants, the serious harm test presents a powerful early defence tool. If a plaintiff cannot establish serious harm, the defendant can apply for the matter to be dismissed early, saving legal costs and reputational risk. Defamation defence strategies now often include challenging the serious harm threshold at the outset. Why Legal Advice Is Essential Because the serious harm element adds a complex new layer to defamation litigation, it is vital to obtain early, informed legal advice—whether you are pursuing or defending a claim. At Allen Law, we specialise in defamation claims across Victoria and are highly experienced in navigating the serious harm threshold. We can help you: Evaluate the viability of a defamation claim Collect and assess the evidence needed to prove (or refute) serious harm Represent you in court during preliminary hearings or trials Resolve disputes before they escalate through strategic negotiations Contact Allen Law for Expert Defamation Advice Whether you’ve been defamed, served with a concerns notice, or are navigating a social media controversy, Allen Law is ready to act swiftly and decisively to protect your legal and reputational interests. Phone: (03) 7020 6563Email: enquiries@allenlawyers.com.auWebsite: www.allenlawyers.com.au Disclaimer: This article is general in nature and does not constitute legal advice. Please consult with a qualified defamation lawyer regarding your specific circumstances.

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