The Key Differences Between Privacy and Confidentiality

The Key Differences Between Privacy and Confidentiality

Privacy and confidentiality are two separate concepts that protect different types of information. ‘Privacy’ is used in relation to information that is protected under law (normally under the Privacy Act 1988 (Cth)), whereas ‘confidentiality’ refers to different information contained in valid contracts and agreements.

Understanding the differences between these terms is key in helping avoid confusion when seeking legal assistance with contracts, understanding how to rightfully maintain personal information or even in establishing successful lawyer-client relationships. This article will outline how these different types of classified information can be legally disclosed.

What does Privacy mean?

The term privacy traverses multiple contexts, including physical, surveillance and information privacy.

  • Physical privacy refers to an individual’s natural right to sustain their own physical space and/or bodily privacy. This form of privacy may be compromised when individuals are forced into invasive procedures such as genetic tests, drug testing and cavity searches.
  • Surveillance privacy concerns communications made by and between individuals, and protects the security and privacy of mail, telephones, e-mail and other forms of communication.
  • Information privacy relates to the government’s responsibility to regulate and protect individual’s data. The Federal Government is responsible for regulating collections of an individual’s personal data including credit information, and medical and government records.

Who does the Privacy Act apply to?

The purpose of the Act is to regulate and protect the personal, classified information belonging to individuals. The Act allows individuals to:

  • Ask for access to their personal information;
  • Know why their information is being collected, how it will be used and who it will be disclosed to; Have the option not to identify themselves;
  • Ask for personal information that is incorrect to be corrected; and
  • Make a complaint about an organisation or agency the Act covers if they believe personal information has been mishandled.

The Act applies to certain government agencies, organisations and businesses that produce an annual turnover that exceeds $3 million. This imposes obligations on businesses, not-for-profit organisations, clubs associations and employee union organisations in relation to handling personal data.

What does Confidentiality mean?

Confidentiality protects private information that is disclosed in a legal document or relationship. Common types of confidential relationships include between lawyers and clients, and between doctors and patients. Confidential agreements can be made in written or oral form.

Legal obligations to confidentiality

Confidential obligations are often sourced from case law, and can exist without express statements as to their presence. However, an obligation may be enforced through contract and is most commonly expressed in a confidentiality clause that binds parties to keep certain information classified. However, these obligations may vary depending on the nature of contractual terms.

How Etheringtons Solicitors can help 

A solicitor at Etheringtons Solicitors can provide further clarification of the relevant law and its relation to your individual circumstances. If you require assistance with understanding privacy or confidentiality obligations, do not hesitate to get in contact with our experienced team by calling (02) 9963 9800 or via our contact form.

What is the Difference between a Justice of the Peace and a Notary Public?

What is the Difference between a Justice of the Peace and a Notary Public?

A Notary Public and Justice of the Peace are both individuals who offer services in order to verify identity and authenticate true copies of documents. To ensure that you are receiving the most appropriate service, however, it is essential to identify the differences between the two.

What is a Justice of the Peace?

Justices of the Peace (JPs) are volunteers appointed by the Governor of New South Wales and represent all sections of the community. As such, an Australian citizen over the age of 18, who is of good character, nominated by a New South Wales Member of Parliament and meets the other criteria stipulated by Service NSW, is eligible to apply to become a JP. The primary role of a JP involves acting as a witness to the signing of documents such as statutory declarations or affidavits, as well as certifying true copies of documents.

What is a Notary Public?

A Notary Public is a senior solicitor of at least five years, who has been appointed by the relevant Supreme Court of the State or Territory with respect to the Public Notaries Act 1997. A Notary must have completed the Notarial Practice Accreditation program. The role of a Notary Public (sometimes referred to as a Public Notary) has been in existence for approximately 800 years.

A Notary Public can provide a range of services including:

  • Authenticating documents to certify their proper execution so they may be used within Australia or internationally
  • Certifying legal documents such as Contracts, Deeds, Wills and Powers of Attorney which may be used within Australia or internationally
  • Verifying documentation for use in Australia or overseas
  • Administering oaths for the giving of evidence
  • Witnessing statutory declarations
  • Preparing and notarising ship protests.

What is the difference between a JP and a Notary Public?

The main difference between the two is that documents authenticated by a Notary Public may be recognised and accepted overseas. Documents verified by a Justice of the Peace may only be recognised in Australia.

It is also worth noting that JP services are free of charge whereas those of a Notary Public follow a recommended schedule of fees relevant to their State or Territory. Please visit the Society of Notaries of NSW website to learn more about the recommended fees for notary services in NSW.

Who should you go to?

You should go to a JP when you require an authorised person to witness you signing a statutory declaration or affidavit, or when you need to certify copies of original documents for use within Australia. It is important to note that JPs are prohibited from offering legal advice. If a JP provides legal advice and they are not an Australian Legal Practitioner, they will be in breach of the Code of Conduct for JPs in NSW and committing an offence under s14 of the Legal Profession Act 2004 No 112.

If your document needs to be authenticated with legal assistance or for use overseas, you must visit a Notary Public. Whilst Notaries do not always provide legal advice on the document being notarised, they do possess legal expertise which makes them invaluable to guiding clients.

Apostille for use of Notary documents overseas

If your documents need to be recognised and accepted by overseas businesses, governments or courts, you must have your documents legalised by a Notary Public and then apostilled by the Department of Foreign Affairs and Trade (DFAT). Documents certified by a JP will not be accepted by DFAT because JPs are not recognised under overseas law.

Examples of commercial documents that need to be notarised for use outside of Australia include:

  • Overseas trade documents (letters of credit)
  • Contractual arrangements between foreign businesses (transfers of foreign assets, property and land)
  • Matters concerning international trademarks, copyright or patent applications.

Examples of personal documents that require a Notary Public’s action for use overseas may include:

  • The certification of passports
  • Academic transcripts and testamurs
  • Citizenship certificates and consent to travel documentation
  • Probate documents where overseas assets form part of an estate
  • Overseas police checks.

Attending a Notary Public or JP appointment

When attending a Notary Public or JP appointment, the true identity of the person having their documents authenticated must be verified. This means that you will need sufficient identification documents such as your driver’s licence, passport, Medicare card or original birth certificate, to verify your identity.

Additionally, neither a JP nor Notary Public may witness a document that has already been signed. The act of signing must be witnessed by the JP or Notary Public at the time of signature.

A Notary Public must also make an informed decision that the signatory is not legally incapacitated and understands the nature and effect of the document being signed and/or attested. To learn more about Notary Public services, please refer to our website for more information.

How Etheringtons Solicitors can help?

Etheringtons Solicitors provides both Notary Public and Justice of the Peace services in their North Sydney office.

If you require either a Notary Public or JP service, please submit an enquiry using our online contact form or call our office on 02 9963 9800.

Horsing Around: liability for personal injury in a dangerous recreational activity

Horsing Around: liability for personal injury in a dangerous recreational activity

Many people enjoy the adrenaline rush from extreme sports and thrill seeking activities. However it is essential before you take the plunge, metaphorically or literally, that you understand your position and the duties owed to you by providers should you injure yourself in a dangerous recreational activity.

The tort of negligence and personal injury

An action for negligence requires the Defendant’s failure to exercise due care and skill to result in a personal injury or damage to the Plaintiff. To claim an action for negligence under the Civil Liability Act 2002 (NSW), the plaintiff must establish on the balance of probabilities that:

  • The Defendant owed the Plaintiff a duty to take reasonable care;
  • The Defendant breached that duty by failing to take reasonable care;
  • The Defendant’s breach caused the injury or damage suffered by the Plaintiff; and
  • The injury or damage suffered was not too remote a consequence of the breach of duty.

Each element is discussed in further detail in our previous article.

It is important to note that an action for negligence will not succeed if the defendant can establish a defence, such as the dangerous recreational activity defence.

Dangerous recreational activity defence

Under the Civil Liability Act 2002 (NSW), the Defendant cannot be held liable for personal injury or damage suffered where the harm results from the materialisation of an obvious risk of a dangerous recreational activity engaged in by the Plaintiff. This will be true even if the Plaintiff was not aware of the risk when they engaged in the dangerous recreational activity.

1. Dangerous recreational activity

A recreational activity includes any sport, activity pursued for enjoyment, relaxation or leisure, or any activity pursued at a place, such as a beach, park or other public open space. A dangerous recreational activity is one that involves a significant risk of physical harm.

Whether a significant risk of danger is likely to materialise must be determined with consideration of all of the relevant circumstances. For example, riding a bike with training wheels on an even surface may not amount to undertaking a dangerous recreational activity, but an inexperienced rider on difficult mountain trails without proper supervision or safety equipment may meet these requirements. Factors including the time, place, competence, age, sobriety, equipment and weather have all been considered by courts to determine this question of fact.

2. Obvious risk materialisation

An obvious risk to the Plaintiff is one that, in the circumstances, would have been obvious to a reasonable person in the Plaintiff’s position. Obvious risks include those which are matters of common knowledge, and even those which have a low probability of actually occurring. A person need only be aware of the type or kind of risk for it to be considered obvious, not necessarily its precise manifestation in their particular circumstances.

An injured person is presumed to have been aware of obvious risks for engaging in the dangerous recreational activity, and as such there is no proactive duty to warn individuals of these obvious risks except if a relevant exception applies. This presumption exists unless the Plaintiff can establish on the balance of probabilities that they were not aware of the type or kind of obvious risk that caused their damage or personal injury.

Case Study: Lynch v Cavallo [2021] NSWSC 704

The Supreme Court of NSW recently approved a settlement in a personal injury matter in which a jockey (Lynch) was injured when he fell from his race horse and was injured by another jockey (Cavallo) during the Mudgee Cup.

Justice Adamson upheld the proposed settlement, deciding that the settlement in favour of Cavallo with no order as to costs was in Lynch’s best interests. Lynch had previously been involved in the case of Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, in which he had been the Defendant, and the Court had upheld the defence of an obvious risk materialisation in a dangerous recreational activity in similar circumstances. The obvious risk in this previous case was held to be that the conduct of another rider could cause a fall resulting in personal injury or damage in the inherently dangerous recreational activity of horse racing. Relying on this authority, Justice Adamson upheld the proposed settlement as she believed Lynch’s negligence claim would be unsuccessful at trial.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide you with clarification of the relevant law and its relation to your individual circumstances. If you need further advice in relation to a negligence and personal injury matter, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Correcting your credit history for victims of fraudulent activities

Correcting your credit history for victims of fraudulent activities

Fraudulent activities, including identity theft or credit card theft are some of Australia’s most common crimes. As a victim of fraud, you may experience an unexpected dip in credit score as a result of subsequent late payments and high credit utilisation. The repercussions to your financial welfare may be overwhelming. Thankfully, there are various steps which can be taken to both prevent fraudulent activities from occurring and to correct your credit history if you have been a victim.

Fraudulent activities to watch out for

The two most common fraudulent activities are:

  1. Identity theft: when someone illegally obtains and uses your personal information and account details to use existing credit, or to complete fraudulent applications to open new credit in your name. Scammers can do this through electronic viruses or malware which collect your name, birthday, Medicare number or bank details.
  2. Credit card fraud: when someone steals and/or uses your credit card to engage in unauthorised transactions. This can also be done when someone skims your account details to use in card-not-present transactions or to create a duplicate counterfeit credit card, or even when someone intercepts a mailed out card.

Regulations that apply

The relevant laws which regulate the handling of personal information for consumer credit reporting in Australia are the Privacy Act 1988 (Cth) Part IIIA, the Privacy (Credit Reporting) Code 2014 (Version 2.1) and the Privacy Regulation 2013. These form a regulatory framework which aims to create a comprehensive credit reporting system which protects individuals from fraudulent activities. We have discussed the Privacy Act 1988 (Cth) in another article in relation to business obligations.

Protecting your credit history from fraudulent activities

It is important that while it is not your responsibility to pay back any credit used in fraudulent activities, you should act quickly to resolve the issue of fraud with your bank or financier first. There are a number of ways you can actively protect your credit history and minimise the damage caused by fraudulent activities:

  • Monitor your accounts, bank statements and credit reports regularly. If you discover any errors or unauthorised charges, immediately contact your credit providers and establish a fraud alert on your credit report so that other credit agencies are warned about the activity.
  • Apply a security alert on all of your accounts so that you can be quickly notified.
  • Change your online passwords and PINs regularly to protect your personal information. These passwords and personal information should also be kept in a secure location.

Further, if you discover that your credit card has been lost or potentially stolen, immediately notify the credit card issuer so they can put a block on the card. You should also report the crime to the police and document any communications you make with relevant credit providers or authorities regarding the matter.

Responding to fraudulent activities to correct your credit history

Request a ban

Under the National Consumer Credit Protection Act 2009 and Regulations, if you believe you are a victim of fraudulent activities, you may request that each of your credit reporting bodies (Equifax, Illion (formerly Dun and Bradstreet) and Experian) does not disclose your information in your consumer credit report. Each of these bodies will then place a 21 day ban period on your credit report, which may be extended if further investigation is needed.

Requesting and implementing this ban period will incur no charges. During this period, your information will not be disclosed unless you offer written consent or an Australian law, court or tribunal requires it. Credit providers who contact the reporting body seeking your credit history and information, will be informed of the ban and alerted to the potential fraud.

Make a credit report complaint

If you have been the victim of fraud, you may file a complaint about the information in your credit report with the relevant credit provider or credit reporting body. They should respond to the complaint within 30 days but if they don’t respond, or you are not satisfied with their response, then you may take the complaint to the relevant external dispute resolution (EDR) scheme.

If you are still not satisfied, or if you would prefer to complain directly to the regulator, you can lodge a written complaint to the Office of Australian Information Commissioner (OAIC), although, you should be made aware that the OAIC may refuse to investigate a complaint made more than 12 months after you became aware of the act or practice. Dispute mechanisms can be complex, and it is important to seek legal advice to fully understand your options when dealing with EDR schemes or formal complaints.

Contact Etheringtons Solicitors

With advancements in technology, identity theft and instances of fraud are becoming more sophisticated and are often difficult to trace. A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with contacting the relevant credit reporting bodies, your credit providers and assist with court preparations.

If you need further advice or assistance with an instance of fraud or other litigious matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form here.

Is Money From Family a Gift or a Loan When Separating?

Is Money From Family a Gift or a Loan When Separating?

It is becoming increasingly common that couples receive financial assistance from their parents. This can be through transfer of property, the giving of money or both. This assistance is becoming progressively prevalent due to rising prices within the property market which has meant that many couples are unable to enter the market without assistance from their parents. However, this can cause issues if the couple separates, as there can be a dispute as to whether the money provided was provided by way of a gift or a loan.

In a property settlement, the family law court can treat payments made by a parent to their child in two ways:

  • The court may find that the payment was a gift to the child which is not expected to be repaid.
  • The court may find that the payment is a loan from the parents that is to be repayable in full.

How does the family law court treat gifts?

In general, a court treats gifts from a parent as being for the benefit of their child alone. Because of this, when assessing entitlements, the court will apply such gifts  towards that spouse’s side of the ledger, when determining their entitlement. This would result in that spouse receiving an extra contribution as a result of the gift applied towards the relationship. However, if the intention was that the gift was to be provided to both parties to the relationship then it would be open for a spouse to contend that the gift is to be taken as an equal contribution of both parties.

How does the family law court treat loans?

If the money is determined to be a loan from the parents, the court must then determine whether the loan is legally repayable and in doing so, they must consider whether the loan is likely to be repaid in the foreseeable future. If the loan is unsecured, the court has discretion to either deduct the loan from the pool of assets or not. If the terms of the loan are vague or uncertain, the court is less likely to enforce the loan. Evidence about the loan determines how the loan is treated. If there is any oral or written evidence of the loan, and the parties have complied with the terms of the loan through actions such as making repayments, the court may be likely to uphold the existence of a loan. However, if there is little or no evidence that supports the claim that it was a loan, and there were no repayments made, the court would be less likely to uphold the existence of the loan.

Parents considering lending money to children who are married or are in a de facto relationship

If you are considering lending money to your child who is married or in a de facto relationship, it is important that there is documentation which adequately establishes that the money provided is to be treated as a loan.

The documentation can include:

  • A loan agreement that sets out the terms of the loan which is signed by all the parties involved
  • A mortgage over the property that secures the loan

Further to the documentation, it is important that the parties to the loan comply with its terms and obtain any appropriate legal advice. If, under the loan, repayments are to be made, they must be made or if payment of the loan is reliant on an event or after a particular time period which has passed, then a new loan agreement should be entered into.

Contact Us

If you have separated from your partner and your parents have lent you money and you are not sure whether it will be treated as a gift or a loan in court or you are wishing to lend money to your child who is in a relationship and you would like more information on how we can assist you in your matter contact us on 9963 9800 or by email to [email protected].

National Scams Awareness

National Scams Awareness

With technology becoming more accessible, intelligent and widely used, it is becoming increasingly important to ensure that your personal information and data is protected from scams. There has been a growth in the number of people online as a result of COVID-19 pandemic and this has caused a proliferation of scammers targeting personal information. This increase has led to a total financial loss estimated at $91m in 2020 so far.

Top Tips to Avoid Scams

The Australian Competition and Consumer Commission has put together its top five tips to help protect your personal information.

  1. Do not feel pressured to give your personal information away to someone who has contacted you.
  2. When receiving unexpected emails or messages, do not click on any links, even if it seems to have been sent by a legitimate source.
  3. Make sure to use strong passwords for all your accounts and your internet network.
  4. Install antivirus software on your computer and other devices and ensure that it is kept up to date.
  5. Limit the personal information that is shared about yourself online, even on social media.

Phishing Scams

There has been an increase of 44% in phishing scams this year alone. Phishing scams are the most common form of scam and it is where a scammer will pose as a legitimate institution such as government departments, banks, telephone companies and other businesses in order to collect personal details which they can use to access bank accounts, superannuation and apply for loans under the stolen identity.

Common features of phishing emails or messages to look out for are:

  • An offer that is too good to be true
  • A sense of urgency to respond to the message
  • Unusual hyperlinks within the message
  • Unexpected attachments
  • Unfamiliar sender

Get Legal Advice

If you think you have been scammed and need any assistance please don’t hesitate to get in contact with one of our lawyers via our contact form or call us on 02 9963 9800 for a no-obligation discussion.

More information on types of scams and how to protect yourself can be found here.

Scamwatch can also help if you wish to get help or to report a scam.