The Difference Between a Barrister and a Solicitor

The Difference Between a Barrister and a Solicitor

What Is the Difference Between a Barrister and a Solicitor?

Barristers and solicitors are both people who can assist with your legal matters. The difference between a barrister and a solicitor is the type of legal work they do. In general, a barrister specialises in making court appearances and speaking on your behalf. However, a solicitor often does the preparation work before your court appearance and liaises with the barrister. Barristers are formally trained in court advocacy and cross-examining witnesses.

In most cases, a solicitor will look after your case initially. They will then engage a barrister for court advice and appearances. Barristers do not liaise directly with clients.

When to Involve a Barrister in Your Matter

Clients often ask at what stage we will involve barristers in their matter.  A good way to think about it is that solicitors are like general practitioners and barristers are like specialists. Barristers work in particular areas of law and often speak at court.

Sometimes solicitors will discuss your case with a barrister and ask them to provide a written opinion on the prospects of your case. They might also ask their opinion on a specific issue. If a matter is complex or unusual, barristers might also be involved in the drafting of court documents.

Barrister Costs

Barristers are required to provide you with an estimate of their costs. Their costs agreement and disclosure documents are issued to your solicitor.

Barristers usually charge an hourly rate. They can also charge a daily rate, especially for court attendances or mediation sessions. Some barristers will charge a cancellation fee if a hearing settles or is adjourned.

Choosing a Barrister

You solicitor will choose a barrister based on factors including:

  1. Your financial circumstances;
  2. The type of matter; and
  3. Which barrister they believe is most suitable.

A barrister can be perfectly suited to one type of case but not another.

If you need any legal advice or assistance we are here to help. If you would like to discuss the involvement of a barrister in your legal matter contact us today.

What you Need to Know About Restraint of Trade Clauses

What you Need to Know About Restraint of Trade Clauses

Restraint of trade clauses are often found in employment agreements and shareholder agreements. Their purpose is to protect business interests such as client information, intellectual property, employees and trade secrets. However, the extent to which a business can restrict an employee’s or a former director’s activities through such a clause is often contentious and can result in disputes.

What is a Restraint of Trade?

A restraint of trade clause in an employment contract applies when an employee leaves the organisation. Such restraint clauses can be enforced, but only to the extent that is ‘reasonably necessary’ to protect the legitimate interests of the business. Whether a provision is enforceable will therefore depend on the wording of the clause and the context of each case.

Restraint of trade clauses can be characterised as one of the following:

  • Non-competition: to prevent a former employee from competing against the company.
  • Non-solicitation: to prevent them from approaching the employer’s clients.
  • Non recruitment: to prevent the former employee from recruiting other employees from the company.
  • Confidentiality: to protect confidential information and trade secrets.

What is Reasonable Between the Parties?

If a restraint of trade clause is contentious, a court must determine what is reasonable in the context of the facts of your particular case. If the restraint clause goes beyond protecting the business’ legitimate interests to the former employee’s detriment, then a court will not enforce the clause. However, if the clause is reasonable to both parties, it is likely to be enforced.

What will a Court Consider when resolving a dispute?

In NSW, the Restraints of Trade Act 1976 governs the law surrounding restraints of trade. A court will consider a variety of factors in its determination of whether the restraint of trade clause is reasonable. Some of these factors include the:

  • Negotiation and whether parties were able to negotiate any terms.
  • Respective bargaining position of parties and whether parties were able to obtain legal advice.
  • Nature of the business and the characteristics of the role of the employee.
  • Remuneration and compensation for the restraint of trade.
  • Duration and geographical area of the restraint.

If you are an employer, what can you do to protect your business?

To ensure that your business interests are protected in the event that one of your employees leave, it is vital that the restraint of trade clauses are effective and enforceable. Employment contracts should be reviewed regularly to ensure the changing nature of the employee’s current role and the changing nature of the business. The time period of the restraint, as well as the geographical area, must be reasonable to commensurate with the employee’s position. The clauses must be drafted properly and carefully so that, in the event that certain parts of the clause are found to be unenforceable, then the clause could be severed and the employer can rely on the balance of the clause when enforcing the restraint of trade. If you believe that your employment agreement does not adequately cover your legitimate business interests, you should seek legal advice from a competent employment lawyer.

Contact Us

An employer can only enforce a restraint of trade clause to the extent that it is reasonably necessary to protect their business interests. However, whether a clause is reasonably necessary will depend on the particular facts of the case, and in any dispute, it is best to seek professional legal advice. If you would like to discuss your employment law matter with a legal professional please contact us on (02) 9963 9800 or via our contact form.

Keeping Pets in Strata Schemes

Keeping Pets in Strata Schemes

Keeping Pets in Strata Schemes – Can You Have Pets in an Apartment?

Have you ever been forced to choose between keeping your pet and living in a strata building? You are not alone. Did you know that Australia has one of the highest household rates of pet ownership in the world? Yet more and more Australians are living in apartments and townhouses, where their strata schemes may not allow pets.

In this article, we explore the NSW Strata laws in relation to keeping pets in a strata building. But first, a quick recap of strata schemes.

Strata Laws, By-Laws and Owners Corporation

If you live in an apartment or townhouse, then you are probably living in a strata scheme. The Strata laws (Strata Schemes Management Act 2015 (NSW) regulate an Owners Corporation’s rights and responsibilities. All the owners in a strata scheme make up the Owners Corporation.. Owners Corporations can adopt the model by-laws that are set out in the Act, or they can amend them or write their own.

Can I Keep My Pet in a Strata Scheme?

This depends on the by-laws that apply to your strata scheme.

Previously, the model by-laws excluded pets unless the owner was given permission. The new strata laws amended the model by-law to be more pet-friendly, as it encourages schemes to allow pets rather than ban them altogether.

The new model by-law for pets includes two options for new schemes to choose from:

  1. Option A– An owner or occupier may keep a pet if they give the Owners Corporation written notice.
  2. Option B– An owner or occupier may keep a pet with the written approval of the Owners Corporations. The Owners Corporation cannot unreasonably refuse the owner or occupier permission to keep their pet.

What if I am a tenant living in a strata scheme?

If you are either a prospective tenant or currently a tenant living in a strata scheme, you will still need permission from your landlord to keep a pet in your apartment or townhouse.

Seek Legal Advice

It is important to be fully aware of your obligations under your strata scheme in relation to retention of pet. If you would like further information regarding strata schemes or general strata law advice, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form here.

Child Custody Rights for Fathers in NSW

Child Custody Rights for Fathers in NSW

Understanding Australian Child Custody Laws

Australian Child Custody Laws recognise that fathers have an important role in the caretaking of children by the creation of an equitable agreement between parents that is first and foremost in the best interests of the child. There is a common misconception that the mother would retain primary custody of children because they are traditionally viewed as more suitable for the role of primary carer. On the other hand, fathers were considered less likely to retain custody because they were considered more likely to be employed and have a better overall earning potential.

In Australia, Child Custody Laws provide the equitable foundations for a fair child custody split between parents, however there may be many equitable reasons as to why an even split is unattainable.

Research from the Australian Institute of Family Studies

The Australian Institute of Family Studies has recently found that approximately half of mothers would prefer to see increased paternal involvement in their children’s lives. In the same study, a majority of fathers also expressed a preference for increased involvement. Interestingly, the fathers cite the following most common factors that prevent such involvement:

  • work commitments;
  • belief that the child’s mother would oppose more involvement; and
  • physical distance/travel costs.

Child Custody Laws

Australian Child Custody Laws have been reformed in this area to make it clear that there are no specific parents’ rights and that there are does not make any legal distinction between fathers and mothers. The Court is instead governed by, and legally obliged to consider, the child’s rights and best interests above all else.

The Family Law Act 1975 (Cth) covers such diverse matters as divorce and separation, parenting arrangements, property settlement and financial maintenance of one party by the other.

With respect to parenting matters, the Act states that a “child has a right to be known and cared for by both parents”, without prioritising either the rights of the father or mother. Unless there are allegations of domestic violence or abuse, the Court would adopt a view that it is in the child’s best interests to spend as much time as reasonably and practically possible with both parents.

How the Family Law Act Applies to Child Custody

When considering parenting arrangements following separation, the Court has to determine who the child will live with and spend time with. Both parents have a responsibility for the care of their children, including their financial support. Despite this, the law does not guarantee an equal-shared parenting arrangement in all matters.

If the Court does not decide that an equal-shared-care regime is in the best interests of the child, the Court will consider allocating substantial or significant time to the non-resident parent. The exception is in a case where there is a history of domestic violence or abuse. In the latter case, the Court will prioritise the child’s safety and wellbeing and make appropriate parenting orders.

Further Considerations for Child Custody Rights for Fathers

In determining what is in the best interests of a child, the Court will consider the wishes of the child, as well as the nature and history of the relationship the child has with each parent. There might be practical difficulties of long-distance parenting and specific emotional or intellectual needs to consider, as well. Communication between both parents and availability of either parent will also be taken into account.

Conclusion

The family law legislation does not enable the Court to take into consideration stereotypical gender roles. Rather, the Court’s decisions are strictly governed by the principle of the children’s best interests. If you have any questions with respect to parenting arrangements of your children, please contact Etheringtons Solicitors for advice on (02) 9963 9800 or contact us via our contact form.

Case Study: When Binding Financial Agreements Aren’t Enforceable

Case Study: When Binding Financial Agreements Aren’t Enforceable

A binding financial agreement also commonly referred to as a ‘pre-nuptial agreement’ is an agreement which can allow for certainty, trust, and peace of mind in a relationship.

However, the High Court has made it clear in a recent case that it will not enforce any binding financial agreements as a consequence of unconscionable conduct, particularly when there is a significant power imbalance between the parties. Unconscionable conduct is defined to mean conduct which is so harsh that it goes against good conscience. A common instance is when an innocent party is subject to a special disadvantage which seriously affects the ability of the innocent party to make a judgment as to their own best interests.

What are Binding Financial Agreements?

Binding financial agreements are legally binding agreements that address what happens to a couple’s finances and property in the event that there is a break down in a marriage or de-facto relationship.

The Family Law Act 1975 is the relevant legislation which applies to binding financial agreements. Importantly, a binding financial agreement can protect assets including cash, property, superannuation and inheritances. However, in order for a binding financial agreement to be binding on the parties’, it is prudent that each party obtain independent legal advice, and the binding financial agreement must contain a statement from a legal practitioner.

Recent Case: Thorne v Kennedy

A recent High Court case has demonstrated that if a binding financial agreement is entered into in circumstances of unconscionable conduct, the agreement will not be upheld.

Thorne v Kennedy involved a binding financial agreement between a wealthy Australian property developer and his ex-wife.

The couple met online in 2006 on a website for potential brides. At the time, Ms Thorne was 36 years old, living in the Middle East with no substantial assets. Mr Kennedy was 67 years old and had assets in the vicinity of  $18 million – $24 million.

Ms Thorne moved to Australia. Then, ten days before their wedding Mr Kennedy took Ms Thorne to a solicitor to obtain advice about the terms of a binding financial agreement which was purported to be entered into between them. The lawyer told Ms Thorne it was the worst agreement they had ever seen, and advised Ms Thorne not to sign it. Mr Kennedy told Ms Thorne that if she did not sign the agreement then the wedding would not go ahead. Despite the lawyer’s ‘advice, Ms Thorne signed the agreement and the wedding continued.

The couple separated in 2011 and Ms Thorne was provided with what the High Court described as a ‘piteously small’ lump sum payment based on the terms of the binding financial agreement. After lengthy legal proceedings, the High Court ruled that Mr Kennedy had taken advantage of his ex-wife’s vulnerability to obtain an agreement which was ‘entirely inappropriate and wholly inadequate.’ The agreement was entered into as a result of undue influence, illegitimate pressure and unconscionable conduct. As a result, the binding financial agreement was not enforceable and was subsequently set-aside.

Impact on Binding Financial Agreements in Australia

This ruling has been considered a landmark case in the interpretation of binding financial agreements in Australia. As a consequence of the Binding Financial Agreement being set aside, the Federal Circuit Court allowed Ms Thorne to bring a property settlement application against Mr Thorne.

This case serves to reinforce that binding financial agreements are not cheap documents and therefore appropriate advice and caution must be taken when entering into these agreements.

Contact us

If you would like more information on how we can assist you with your binding financial agreement or any other family law matters, do not hesitate to contact us on 9963 9800 or contact us via the form here.

Separated Under One Roof – How Do I Apply for Divorce?

Separated Under One Roof – How Do I Apply for Divorce?

Can You Apply for a Divorce?

To be eligible to apply for a divorce, you or your spouse must have been separated and living separately for a minimum of twelve (12) months, with no reasonable likelihood of resuming married life.

What If you are separated but Still Living Together?

It is possible to be separated even if you are still living together. This can occur for a variety of reasons, often for the sake of the children. If you live under the same roof during all of or part of the minimum twelve month separation period, you will need to file an Affidavit (a sworn statement) from yourself and at least one witness.

What Should the Affidavit Contain?

Your Affidavit should address changes that have occurred between you and your spouse before and after separation. This is to show that even though you’re living in the same residence, your relationship doesn’t reflect a marriage. You can include the following matters in the Affidavit:

  • Do you have separate sleeping arrangements?
  • Has the sexual relationship ceased?
  • Have you changed the domestic services you perform for each other since separation?
  • Do you have separate financial arrangements such as separate bank accounts?
  • Have you stopped attending social functions and activities together?
  • Why are you still living separated under one roof? For example, financial pressures, stability for children of the marriage.
  • What arrangements are in place for children under the age of 18?
  • Have you informed any government departments such as the Department of Human Services – Child Support of your separation?
  • Do you think there will be a change to the living arrangements? If so, when will this occur?

Filing the Affidavits

The Affidavits are filed with the Divorce Application, Marriage Certificate, documents establishing citizenship (unless a citizen by birth) or for non-citizens an Affidavit establishing that one of the parties is domiciled and/or ordinarily resident in Australia.

After the application for divorce is filed, the other side may file a Response to Divorce within 28 days, if they disagree with any of the facts set out in the Affidavit and Application for Divorce. The court will process the Application and arrange a hearing date thereafter.

Contact us

If you and your partner are going through a separation or divorce we recommend seeking legal advice to ensure the best outcome. We have experienced family law solicitors who can provide advice and draft Affidavits. If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.

Subpoenas in the Family Court

Subpoenas in the Family Court

What is a Subpoena

A subpoena is a legal document issued by the Court, at the request of a party involved in court proceedings which involves requiring the subpoenaed party to either produce documents or give evidence at a hearing.

Subpoenas in the Family Court

In family law matters, proceedings can be held either in the Federal Circuit Court of Australia or the Family Court of Australia. During these proceedings, it may be necessary for a party to issue a subpoena for relevant information to be provided in Court. Ordinarily, it may be necessary to issue more than one subpoena in Court proceedings.

Subpoenas are generally issued when one party fails to provide all of the necessary documents to the court.  Subpoenas are often issued to banks or superannuation funds for purposes of seeking production of financial material related to the other party. In parenting matters, an Independent Children’s Lawyer, a lawyer who acts for the children in parenting matters, will often issue subpoenas. This may be to the children’s schools and doctor if health issues have been raised. They may also issue a subpoena to either parent’s doctor, if necessary.

Filing for a Subpoena

In some proceedings, you must seek the court’s approval before issuing a subpoena. This is especially relevant when there are court orders in place or there are less than seven days before a hearing commences. In the Federal Circuit Court, there is a capping of no more than five subpoenas to be issued by each party, unless permission is granted by the Court. There is no restrictions imposed in the Family Court for subpoenas.

If you gain the court’s approval, the filing of the subpoena can proceed as normal. The original subpoena must be filed at the Federal Circuit Court or Family Court registry (depending which jurisdiction the matter is in). You must also file enough copies for one to be served on each party in the proceeding as well as the person or organisation being asked to produce material.

Importantly, the court can refuse the issuance of a subpoena if it finds that the subpoena amounts to a ‘fishing expedition’. That is, the deliberate attempt by one party to search or investigate with the hope of discovering information on the other party. Therefore it is important that when issuing subpoenas in family law, one must ensure that they are seeking information or documentation relevant to the current court proceedings.

Filing fee

A subpoena will incur a filing fee of $55.00 per subpoena.

Serving a Subpoena

Once the subpoena has been filed, it must be personally delivered (served by hand) to the person it is addressed to.

If you are serving a subpoena to a bank or financial institution, a small amount of money must be provided to the subpoenaed party. This is known as ‘conduct money’ for the production of documents. Some banks will charge a set amount, so it is important to find out what the production of documents may cost where possible. You also need to provide a copy of the court’s brochure with the subpoena.

Objecting to a Subpoena

A party is entitled to raise an objection to the issuance of a subpoena. A number of objections which can be raised involve:

  • The documents requested are irrelevant
  • The documents are privileged
  • The terms of the subpoena are vague or non-specific
  • Insufficient time given to comply with the subpoena
  • Subpoena issued without a ‘legitimate forensic purpose’
  • Insufficient conduct money

In order to do so, you have to file a Notice of Objection and the matter will subsequently be listed before the court for determination.

Contact us

If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.

Parental DNA Testing and Family Law

Parental DNA Testing and Family Law

The two realms of family law and parental testing often cross paths. It is common for parental testing to be sought in order to settle matters such as child support or parenting proceedings. In this blog, we answer some of the most common questions surrounding parental testing and how these relate to the rules and regulations in family law.

What Happens When Both Parties Agree to DNA Testing?

If both parties agree to DNA testing, then they can arrange for DNA testing to be carried out privately without a court order. However, to ensure that the test results are admissible in court, you must select a DNA testing laboratory which is accredited by the National Association of Testing Authorities and that the testing complies with the requirements of Part IIA of the Family Law Regulations 1984.

What if the One Party Does not agree to DNA Testing?

If one party does not agree to DNA Testing, then either party can apply to the Family Court or Federal Circuit Court for an order for parentage testing under  the Family Law Act 1975. This is only possible if you have also sought a Declaration of Parentage.

However, the court only has jurisdiction to make orders relating to parentage if there is a real issue as to the parentage of the child and a substantive issue in relation to the child before the court, such as contact or child support issues.

When is Someone Presumed to be the Father of the Child?

The Family Law Act 1975 provides the relevant basis for circumstances where a person is presumed to be the father of the child:

  • The person was married to the child’s mother
  • The person cohabited with the child’s mother at any time during the period 44 weeks and 20 weeks before the child’s birth
  • The person’s name appears on the child’s birth certificate as the father
  • Another court has made a finding of parentage
  • The person has executed a document under a law of the Commonwealth, a state or territory of the Commonwealth or prescribed overseas jurisdiction acknowledging he is the father of the child

What Do You Need to Prove for the Court to Order DNA Testing?

If a man is presumed to be the father of a child, by reference to the presumptions set out above, it would be necessary to rebut the presumptions and provide evidence to demonstrate that you have an honest and reasonable belief as to why that person is not the father.

If a man is not presumed to be the father, by reference to the presumptions set out above, it would be necessary to put forward evidence to the court to demonstrate that you have an honest and reasonable belief as to why that person is the father, notwithstanding that the presumptions do not apply.

If you find yourself in a situation where you want to prove or disprove parentage, then it is best to contact a lawyer to ensure that you maximise your prospects of resolving the dispute through DNA testing, either by means of an agreement for testing or by an application to the court for testing to be carried out.

Should I seek Legal Advice?

It is vitally important to be aware of the rules and requirements surrounding parental testing if you believe it is relevant to your family law matter. If you would like more information on how we can assist you with your parental testing matter or if you have any general family law enquiries, do not hesitate to contact one of our experienced family law solicitors on 9963 9800 or via our contact form.

What is the Tort of Negligence?

What is the Tort of Negligence?

Negligence occurs when one fails to take reasonable care to avoid causing damage to another person. It applies to both individuals and businesses. There are several factors that need to be satisfied for an individual or a company to successfully sue for negligence. These are:

  • Duty of care;
  • Breach of duty;
  • Causation; and
  • Damage

Establishing a Duty of Care for Negligence.

A duty of care makes a person responsible for taking reasonable care to avoid harm being caused to another. It exists due to the characteristics of the relationship between the parties. It arises due to the nature of the parties’ relationship. For example, if one party has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the party with greater control has a duty to take reasonable care with their actions so that no harm is caused to the reliant party. Examples include a teacher and a student, a legal professional and the client and a doctor and patient relationship. There are other common relationships which give rise a duty of care. These include the duty owed by a driver to other drivers on the road.

Standard of Care and Breach of Duty.

If a person owes a duty of care to another, a court will determine exactly what duties are owed. This is considered to be “the standard of care”. Under the Civil Liability Act 2002 a professional is held to the standard of their fellow professionals. For example, a doctor or an accountant would be held to the standard of doctors or accountants and what is widely accepted as competent professional practice.

In other instances, the standard of care is what a ‘reasonable person’ would do in the circumstances to ensure the possibility of harm is minimised. It helps to balance the rights of the parties by considering the level of care that is appropriate between the parties. If the standard of care is not met, then the person has acted in breach of their duty owed to the other person.

Damages and Causation.

For a person to be able to sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm caused by negligence could be physical and/or mental. The onus is on the plaintiff to prove harm and that the defendant’s breach of duty has caused the harm. Further, there ought not to have been an intervening event. The court will ask: would the person have suffered harm ‘but for’ the actions of the other person.

Recent negligence case – collapsed balcony

The NSW Court of Appeal considered who was to blame for a collapsed balcony (Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196).

In this case Bhides owned a residential property in Collaroy. Bhides appointed Libra Collaroy Pty Limited to manage the property. In 2012, a group of school children, including the daughter of the tenant, were on the balcony when it collapsed. There was a long history of complaints regarding the state and structural integrity of the balcony from the tenant. The tenant sued the landlord and the managing agent in the District Court of NSW. The agent and the landlord then issued cross claims against each other seeking an indemnity from the other and on the defendant for not locking access to the balcony given previous complaints and issues. At first instance, the District Court decided that the agent was 100% liable. The decision was appealed.

The Court of Appeal decided as follows:

  • Judgment for the plaintiffs against the owners.
  • Judgment for the owners against the agent.
  • Any damages recovered by the owners from the agent to be reduced by 30%.
  • Judgment for the agent against the tenant.
  • The tenant is to contribute 20% to the agent’s liability to each of the plaintiffs.
  • The owners and the tenant to pay the agent’s appeal costs.
  • The agent and the owners to each bear their own costs of their cross claims in the District Court.
  • The tenant to pay the agent’s cross claim costs in the District Court.
  • The agent, owners and tenant are to respectively pay 50%, 30% and 20% of the plaintiffs’ costs.

We can gain the following from the Court of Appeal decision:

  1. That delegating to a managing agent will not form a defence to a claim for personal injury damages;
  2. That contractual indemnity may be excused where there is a contribution to the negligence of the other party (contributory negligence); and
  3. That a tenant who is on notice of a risk of harm may be found liable for negligence if the tenant could have taken steps to remove the risk.

Further Information

As you can see from the Court of Appeal decision above, the law of negligence is not so straightforward and it is important that you seek legal advice from a competent litigation lawyer. If you believe someone has been negligent in their actions toward you or you are being sued for negligence, do not hesitate to contact one of our experience lawyers on 02 9963 9800 or at law@etheringtons.com.au.  For more information, check out our blog here.

Are Recipes Protected by Copyright?

Is My Recipe My Intellectual Property?

If you think your chocolate cake recipe is exceptional, or believe you’ve designed the next ‘big thing’ in the culinary world, you might want to protect your recipe. There are different types of protection in intellectual property, for example:

  • Patents
  • Copyright
  • Registered design; and
  • Trade secrets.

Can You Patent a Recipe?

A patent is a legally enforceable right granted for a device, substance, method or process that is novel, inventive and useful.

Australian Legislation

The Patents Act 1990 requires applicants to satisfy the inventiveness test, ie require an inventive step that makes the unique. The Patents Commissioner can refuse to accept a patent request because the substance is either a simple mixture of known ingredients, or is produced merely by adding ingredients together (admixture).

A patent will generally only be applicable to pseudo-scientific recipes.

Can Copyright Apply?

The Copyright Act 1968 protects original expression of ideas, but not purely the idea itself. Once an idea or creative concept is documented, it is automatically protected by copyright in Australia.

In relation to a recipe, copyright can protect a recipe documented in a book in the way it’s written, but not the way it’s made. Therefore copyright does not extend to recipes if they are for the concept of something well known and reproduced (e.g. pasta or blueberry muffins).

If you publish a recipe book you also cannot prevent others making the dish or people writing their own descriptions of how to make it. Nor can you prevent someone publishing their version of your recipe.

Can You Use a Registered Design?

If your product’s appearance is unique, it is possible to register the design. A design is what makes a product look the way it does, e.g. its shape, configuration or a notable pattern. When applied to a product these things give it its unique design. A registered design does not protect how something works.

For instance, the creators of the “stand and stuff” taco registered its unique design. This type of intellectual property is rarely applicable when it comes to recipes.

Can You Protect Your Recipe as a Trade Secret?

If you want Grandma’s secret chocolate cake recipe to stay secret, one available option is protecting it through a trade secret.

A trade secret is intellectual property that it is up to you to protect – that is, it is not registered. This is generally done by ensuring employees or distributors sign confidentiality agreements.

Examples of trade secrets include:

  • the recipe for Coca-Cola
  • the combination of herbs and spices used in Kentucky Fried Chicken.

The Coca-Cola company has used trade secrets to keep its formula from becoming public for decades. It never applied for patent protection, so it was never required to disclose the formula.

Common law provides protection for infringement of trade secrets and breach of confidentiality agreements. A trade secret, however, doesn’t provide legal protection if a competitor has an identical product. It’s also difficult to prevent departing contractors and employees from taking the knowledge with them.

Important Tip: You could include a non-compete clause in all your contractor or employment agreements, as well as asking them to sign a confidentiality agreement.

In Summary

If you want to protect your recipe as intellectual property you may have to get creative. It is best you seek legal advice to see what option will work best for you. To speak with one of our friendly solicitors please get in touch with us on 9963 9800 or email us at law@etheringtons.com.au.

What is Litigation?

Litigation is a way of resolving disputes that uses courts and solicitorsDisputes usually fall into the following classifications: civil or criminal.

Civil Litigation

In civil cases, your  lawyer will represent your interests and fight for an outcome that is most favourable for you. This is regardless of whether you are:

  •  the Plaintiff – you have brought the claim
  • the Defendant” – you are defending the claim

Methods of resolving a dispute between parties include adversarial methods, such as court proceedings, and non-adversarial methods such as negotiations and mediations.

Note: Civil litigation is often referred to as commercial litigation. Commercial litigation encompasses a wide area of law including breaches of contract, employment disputes, debt collection shareholder disputes and disagreements about neighbourhood fences among other issues.

Criminal Litigation

In criminal litigation, a charge is brought against you by the Police, the State or the Commonwealth. If the Prosecution (representing the Crown) is able to prove you are guilty of committing a crime, punishment may include a fine, imprisonment and/or various other penalties. In these matters, you are always the Defendant and it becomes the responsibility of your litigation lawyer to defend your innocence.

Who is a Litigation Lawyer?

Being involved in litigious proceedings can be stressful and uncertain. However, the right lawyer will make this process as smooth as possible, whilst also fighting for an outcome that is in your interests. A litigation lawyer (also called a solicitor) is the individual who will represent, protect and assert your interests in a dispute.

What is the Purpose of a Litigation Lawyer?

The primary role of your litigation lawyer in both civil and criminal matters is to assist you in all facets of your dispute. From filing documents in Court to explaining rules of law, your lawyer is your first point of contact with the legal world. They are also your biggest ally in the resolution of your dispute.

Another key role for your lawyer is to communicate with others involved in your case. This includes to communicate with the other party’s solicitors/the police, arrange for barristers to appear on your behalf in Court and attend mediations and negotiations with intent to pursue a favourable outcome for you.

Documents in Litigation

The preparation of documents is a necessary part of every legal dispute. An essential task for your lawyer is to help you understand both:

  • the purpose of these documents; and
  • the time in which they must be filed in court and served on the other side

Some of these documents include:

  • Statements of Claim
  • Affidavits
  • Defences
  • Further and Better Particulars
  • Discovery
  • Interrogatories

Finding your Litigation Lawyer

When finding the right lawyer for you, the ideal solicitor will have relevant experience and a personality that allows you to work together in fighting for your interests.

Experience

We recommend that you research the amount of relevant experience a lawyer has before you engage them, as this will improve your quality of representation.

Costs

Litigation costs can include filing fees, application fees, valuations and reports by experts and potentially barristers’ fees. These costs are known as ‘disbursements’, and are charged in addition to the ‘fees’ you pay your lawyer to prepare and argue your case.

Etheringtons Solicitors are experienced in all facets of litigation. We can help you manage the uncertainty and stress of your legal matter. Additionally, we understand that strategy and dynamism are vital parts of responding to the challenges faced by clients involved in litigation proceedings.

To discuss your matter with one of our lawyers, please contact us on (02) 9963 9800 or at law@etheringtons.com.au.

Extending the Olive Branch: Dealing with Disputes over Neighbouring Trees

Common Trees Disputes

Disputes with neighbours over dangerous or intrusive trees on their property are very common. A recent case in Queensland involved one neighbour trespassing on the land of the other and poisoning trees that covered the sea views. In this case the views had inspired the neighbours to purchase the property in the first place.

To deal with this conflict in a way that does not incur expensive and burdensome trespass suits, landowners may make applications to the Court to make orders to remove a tree. They can also apply for the neighbour to pay compensation and remedy any damage caused to land by the tree.

Additionally, they may authorise actions to be taken in response to the damage, replace a tree that has been removed without consent and other actions intended to remedy, restrain or prevent damage to property, or to prevent injury to any person. These remedies are only available if the disputed tree has caused, is causing, or is likely in the near future to cause, damage to your property, or injury to a person.

Obstructive Trees

If the issue is in relation to a series of trees forming hedges that are at least 2.5 metres tall, you may apply for an order to remedy, restrain or prevent a severe obstruction. The obstruction can be of sunlight to a window or on views from your property. It must be of such severity that the reason outweighs any other reasons for conserving the trees.

Before Filing for Orders

Before the Court can make either of these orders, any person applying for them must have made a reasonable effort to reach agreement with the owner of the land on which the tree is situated. 21 days’ notice must be given to the landowner about this application before it is filed.

Relevant factors that will be taken into account by the Court in making a decision include any contribution of the tree to:

  • privacy
  • landscaping or garden design
  • heritage values
  • protection from the sun, wind, noise, smells or smoke
  • the amenity of the land on which it is situated
  • whether the tree has any historical, cultural, social or scientific value
  • the local ecosystem and biodiversity
  • the natural landscape and scenic value of the land on which it is situated or the locality concerned

Seek Legal Advice to Navigate the Complexities

Due to uncertainties about which factors the Court will consider most favourably and consequences for parties when conflict escalates, it is recommended that you seek legal advice in regards to tree disputes, rather than retaliating. At Etheringtons Solicitors, we are exceptionally qualified to advise and assist you with your tree concerns. Contact us today on (02) 9963 9800 or law@etheringtons.com.au.