Jun 3, 2022 | General Advice, Litigation and Court
What Is the Difference Between a Barrister and a Solicitor?
Barristers and solicitors are legal professionals who may assist you with 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. By contrast, a solicitor often does the preparation work before your court appearance and liaises with your barrister to prepare your case. 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 typically 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:
- Your financial circumstances;
- The type of matter; and
- 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.
May 31, 2022 | General Advice
Every year scams cost Australians millions of dollars. It is crucial that you remain alert so that you are not the target of a scam. In 2019 alone, there were over 353,000 reports of scams. In this blog, recent trends in scam activity and methods to protect yourself from being scammed are outlined.
Business Scams
Business email scams accounted for the highest financial losses in 2019, costing businesses $132 million according to the ACCC’s Targeting Scams report. A common technique scammers use is to intercept legitimate invoices and change the payment details so that the recipient will not realise that they have been scammed.
Scammers may also impersonate staff to request the transfer of funds for purchasing gifts for other colleagues or for other business related expenses.
It is essential for businesses and staff to remain alert and to familiarise themselves with common scams they may encounter. Some businesses may wish to encourage payment confirmations, where consumers speak to someone from the business to confirm that the bank account details they have are correct before making any payments.
Consumer Scams
Consumer scams succeed because they mimic genuine deals and catch consumers off-guard. By taking advantage of new technology, new products or services and major events to create believable stories, it is simpler for scammers to target their audience and capture their money or personal details. Scamwatch has received over 2,000 reports about COVID-19 scams and reported losses of more than $700,000.
Scammers set up fake websites, ads on trusted platforms and false social media accounts in the guise of selling real products. They often ask for upfront payments or an initial deposit, plus additional costs such as administration or transportation. Consumers should not click on any foreign links, make any upfront payments if they have not verified the business, and should be wary of any deals that look ‘too good to be true’.
How to Protect Yourself from Being Scammed
Scams target people of all backgrounds, ages and income levels.
The best way to combat online fraud is to stay one step ahead of scammers by learning how to protect yourself. Here are some tips from Scamwatch to help you remain alert:
- Be alert to the fact that scams exist. Know with who you are dealing.
- Do not open suspicious tests, pop-up windows or click on links or attachments in emails.
- Keep your personal details secure.
- Choose your passwords carefully.
- Requests for personal details or money should be red flags.
- In particular, be alert to law enforcement scams.
Unfortunately, scams are becoming more sophisticated and are often very difficult to trace, so in most cases, the money can never be retrieved. For further assistance on any matter relating to scams or competition and consumer law, please contact one of our experienced solicitors on 02 9963 9800 or via our contact form here.
May 27, 2022 | General Advice
Lawyers are often stereotyped as being interested in prolonging an expensive court action, however often the opposite is true, due to the availability of alternate dispute resolution avenues such as mediation.
Lawyers know that court cases are expensive and that clients are fearful that legal costs could escalate to an intolerable level. Lawyers interested in preserving long standing relationships with their clients will often recommend alternative dispute resolution options. Mediation is one of those options.
There are various types of mediation
- Pre-litigation informed settlement, or a round table conference
- Informed settlement conference after the court proceedings have commenced without a mediator
- Court ordered mediation with a mediator
What exactly is mediation?
In essence, mediation is an informal conflict resolution process brought before an independent, neutral third party. Mediation gives the parties the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement. The mediator will guide discussions, ask questions, and help facilitate agreements. Typically, however, they will have no authority to make a binding decision unless both parties agree to give the mediator that power. This is dealt with in advance of the mediation commencing. Mediators are accredited under the National Mediator Accreditation System.
Mediations are typically conducted on a ‘without prejudice’ basis which means that whatever is said during the conference is confidential and cannot be used as evidence. It rules out the uncertainty and risk of court litigation and allows the parties to make certain compromises to achieve a commercial outcome.
When parties should consider mediation
In practical terms mediation is likely to be quicker and more cost-effective than the more formal processes of arbitration or litigation (in court). Mediation should be considered as early as possible after a dispute has arisen. It is particularly appropriate where a dispute involves complex issues and/or multiple parties.
In addition, mediation can be implemented prior to, or in conjunction with, other forms of dispute resolution such as arbitration or court proceedings.
In circumstances where privacy and confidentiality are important, mediation enables parties to preserve these rights without public disclosure. This often leads to more satisfactory outcomes for both parties.
Advantages of mediation
There are many advantages. In summary these can be described as:
1. You get to decide
The responsibility and authority for coming to an agreement remain with the people who have the conflict. The dispute is viewed as a problem to be solved. The mediator does not make the decisions, and you do not need to “take your chances” in the courtroom.
In doing this however, you need to understand your legal rights so that you can make decisions that are in your own best interests. It is very important to seek legal advice from a competent litigation lawyer so that you do not agree to an offer that is much less than you are entitled to.
2. The focus is on needs and interests
Mediation examines the underlying causes of the problem and looks at what solutions best suit your unique needs and satisfy your interests.
3. It helps to maintain a continuing relationship
Colleagues, business partners, and family members have to continue to deal with each other cooperatively. Going to court can divide people and increase hostility. Mediation looks to the future. It helps end the problem, not the relationship.
4. It deals with feelings
Each person is encouraged to tell their own story in their own way. Discussing both legal and personal issues can help you develop a new understanding of yourself and the other person. You are encouraged to see things from the other person’s perspective.
5. It has higher satisfaction
Participants in mediation report higher satisfaction rates than people who go to court. Because of their active involvement, they have a higher commitment to upholding the settlement than people who have a judge decide for them. Mediation ends in agreement about 80% of the time and has high rates of compliance.
6. It is informal
Informal settlement conferences are less intimidating than going to court. Since there are no strict rules of procedure, this flexibility allows the people involved to find the best path to agreement. Although it is normal for any dispute resolution to be taxing emotionally, mediation is a process that is much less confronting and is conducted in a much more comfortable environment than formal court proceedings.
7. It is faster than going to court
Years may pass before a case comes to trial, while a mediated agreement may be obtained in a couple of hours or in sessions over a few weeks.
8. It is lower cost than going to court
The court process is expensive and costs can exceed the benefits. It may be more important to apply that money to solving the problem, repairing damages, or paying someone back. Mediation services are available at low cost for some types of cases. If you can’t agree, other legal options are still possible. Even a partial settlement can lessen later litigation fees.
9. There is privacy
Unlike most court cases, which are matters of public record, most mediations are confidential.
Where mediation is not the solution
With mediation, a resolution is not guaranteed. There is the potential that parties may invest time and money in trying to resolve a dispute out of court and still end up having to go to court. Ultimately, it is a call that should be made in consultation with an experienced lawyer.
Fundamentally, mediation rarely produces a satisfactory resolution unless all parties to a dispute are committed to a resolution.
Navigating the court system can be a financially and emotionally costly and time-consuming process. Mediation is an alternative. It is suitable for people who are willing to communicate with the other party and attempt to better understand and settle their dispute with the help of a trained third party.
To find out more call us on (02) 9963 9800 or contact us here.
May 24, 2022 | General Advice
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.
May 20, 2022 | General Advice
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 using online services 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.
Top Tips to Avoid Scams
The Australian Competition and Consumer Commission has put together five tips to help protect your personal information.
- Do not feel pressured to give your personal information away to someone who has contacted
- When receiving unexpected emails or messages, do not click on any links, even if it seems to have been sent by a legitimate source.
- Make sure to use strong passwords for all your accounts and your internet
- Install antivirus software on your computer and other devices and ensure that it is kept up to
- 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 in Australia, where a scammer will pose as a legitimate institution such as a government department, bank, telephone company or other business 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.
May 2, 2022 | General Advice
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.
