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  • Bushfire underinsurance

    Bushfire Underinsurance: Get it right before it's too late

    Amidst ongoing catastrophic bushfires, those who have lost their home may find themselves unable to build due to underinsurance.   Adding to the grief are forecasts of higher-than-average temperatures and predicted longer bush fire seasons. Such extreme weather conditions will have consequences over time, with more people losing their homes to a catastrophic fire event.

    The Insurance Council of Australia has warned that most households are underinsured; perhaps as high as 80% of all insured homeowners.

    Underinsurance occurs when the amount a homeowner insures their property for does not cover the actual rebuilding cost, leaving the homeowner out of pocket for the extra costs of a rebuild to new building standards.

    A new rating standard – known as the Bushfire Attack Level (BAL) – was developed after the 2003 Canberra bushfires and introduced in the wake of the 2009 ‘Black Saturday’ bushfire in Victoria.  The BAL aims to reduce the risks of a home igniting in a fire risk zone.

    Only if your home is in an area prone to bushfires do you need to consider getting a BAL assessment.

    The bushfire zoning of your property, proximity of the home to bushland, and the slope of the land are some of the factors that will determine the construction requirement for homes approved and built (or rebuilt) after 10 September 2009.  The higher a building site’s BAL, the more stringent the construction requirements which cover floors, external walls, doors and windows, roofs, verandas and attached carports.

    If your home was built before 2009 and it burns down, it may – depending on its BAL – have to be rebuilt to a higher building standard than it was originally constructed.  These higher construction standards can significantly increase the cost of rebuilding your home in a bushfire prone area.  If you do not take account of the increase in rebuild costs – which can include the extra demand for builders and building materials after a bushfire disaster in calculating the replacement cost – you risk being underinsured.

    Ensure bushfire underinsurance does not occur

    In estimating your building costs, there are a range of free-independent insurance calculators that can be used to estimate the cost of rebuilding your home in accordance with national building construction standards.  For a more accurate estimate, a builder, architect or quantity surveyor could be engaged for this task.

    Another reason for reviewing your insurance policy and checking whether you are underinsured is that a home lender, probably a bank, will want any existing mortgage to be paid out before a rebuild with the likelihood of a fresh mortgage needed for any rebuild.

    You can upgrade your insurance cover by updating the sum insured of home and contents to reflect the likely replacement cost of rebuilding to current bushfire standards.  This option – often referred to as a sum insured safeguard – can increase the nominated sum insured by up to 25%.  Insurers are only obliged to cover you up to the amount you are insured for.  Payment of an additional premium for this safeguard will provide a buffer to ensure that you are fully covered.  Note that you may not be entitled to an automatic payment of this higher sum as the insurer is only required to pay the amount of your actual loss.

    Commonly, an insurance policy for home and contents will instantly cover bushfires as an insured event:

    • immediately after another policy covering the same risk with the same level of cover ended, without any break in the period of cover; or
    • the same day you bought your home or moved to a new address.

    Otherwise, your cover for loss or damage due to bushfires will start within the first 48 or 72 hours after you buy the property depending on the wording of your particular policy.  Any delay in the operation of a policy is designed to stop people taking out cover immediately before or during a bushfire emergency and then claiming for loss of damage due to a bushfire.

    Sometimes insurers impose a “postcode embargo” on new policies for areas currently affected by bushfires.  The embargo can apply for several days and then be lifted which should permit a homeowner to obtain appropriate insurance cover.   A new policy issued during a period of high bushfire risk may include a no-claim period.  This would prevent a claim for the specific risk until the no-claim period has expired.

    Bear in mind that we are seeing bushfires in more areas and bushfire warning levels being more frequently communicated, it is important that you make your own enquiries or talk to an insurance professional to ensure you understand exactly what your insurance covers.

    When you first take out a policy and at every renewal, it is your obligation to review the amount of cover that the insurer is offering to ensure that it meets your needs and expectations.  If you are not satisfied with the amount of cover you are offered, this should be discussed with your insurer.  The aftermath of a catastrophic fire event should not be compounded by the trauma of underinsurance.  Local communities impacted by the onslaught of a bushfire are often so disrupted that families are forced to move elsewhere as the rebuild costs bear no resemblance to the sum insured on their homes.

    Written by Bill McCarthy.

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  • Rebuilding after bushfires

    Essential Guide to Local Government Law: Rebuilding after the bushfires

    Rebuilding after the Bushfires – what approvals are required?

    Many of our Council clients will soon be faced with inquiries from people who wish to rebuild following the NSW bushfires.  This simple guide is intended to assist Councils in dealing with inquiries about the approvals needed to rebuild.

    Demolition of existing buildings

    In most cases, the demolition of a house that has been damaged or destroyed by bushfire will be complying development that can be carried out by obtaining a complying development certificate[1].

    If, however, the house is situated on land on which complying development may not be carried out[2], such as land within an environmentally sensitive area or that is listed on the State Heritage Register, the demolition of the house will require development consent[3].

    Some other buildings, such as farm buildings[4], may be exempt development. If so, the demolition of the building is also exempt development[5] if it is carried out in accordance with AS 2601—2001, The Demolition of Structures.

    Vegetation clearing

    The protections given to native vegetation in rural areas by the Local Land Services Act 2013 continue to apply even if the vegetation has been damaged or destroyed; however, there are certain types of clearing which are authorised without approval.[6] For example, the clearing of native vegetation is an “allowable activity clearing” under that Act where it is reasonably necessary to remove or reduce an imminent risk of serious personal injury or damage to property. However, the removal of fire damaged native vegetation after the fires may not fall within that exception.

    There is a specific “rural fires” exception in s.60O of the Local Land Services Act and this allows clearing which is:

    • an emergency fire fighting act or emergency bush fire hazard work within the meaning of the Rural Fires Act 1997;
    • bush fire hazard reduction work to which s.100C(4) of the Rural Fires Act applies or vegetation clearing work under s.100R of that Act.

    The vegetation clearing work authorised by s.100R of the Rural Fires Act permits limited clearing of trees and vegetation around residential accommodation on land within a ‘10/50 vegetation clearing entitlement area’ in the circumstances set out in that section.

    For land in non-rural areas, the requirement to obtain a permit to clear vegetation to which Part 3 of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 applies does not apply to the removal of vegetation that the Council or the Native Vegetation Panel is satisfied is dying or dead and is not required as the habitat of native animals[7].

    Unless a specific exemption applies, it will therefore generally be necessary to obtain approval prior to the removal of fire damaged vegetation.

    Rebuilding after the bushfires

    The approval pathway for the rebuilding of a house that has been damaged or destroyed by bushfire will depend on a number of things.  These include whether the owner wishes to rebuild a house of the same design as the house it will replace and also whether the erection of a house is permissible on land within the zone in which the house is situated.

    If development consent was obtained to erect the house that has been damaged or destroyed, the erection of a replacement house of the same design will not require the grant of a further development consent. The original development consent can be relied on in these circumstances, even if there has been a change of zoning in the meantime[8].

    If an owner wishes to build a new house that is substantially the same as the one that has been destroyed, but with some changes, an application can be made to modify the development consent to reflect those changes[9].

    If the replacement house will be a new design, it will require development consent or, if the requirements of the Codes SEPP or applicable local environmental plan are satisfied, a complying development certificate. Some other buildings, such as farm buildings, will be exempt from the need to obtain development consent if certain development standards are met[10].  Fencing on land within most residential and rural zones is also exempt development, subject to complying with prescribed development standards[11].

    If the zoning has changed since the original house was built and the land is now within a zone in which the erection of a  house is prohibited, the circumstances in which the original house was erected will need to be examined to determine whether it is an existing use within the meaning of s.4.65 of the Environmental Planning and Assessment Act 1979. If it is, the house may be rebuilt with development consent in accordance with reg 44 of the Environmental Planning and Assessment Regulation 2000.

    If the original house was built at a time when development consent was not required, its use as a dwelling may have been protected as a lawful continuing use right[12].  However, the erection of a new house to replace the original house is not so protected and will require development consent (or a CDC) in the usual way.

    If relevant bush fire protection measures have changed since the original house was erected, the new standards will apply when the house is rebuilt. Relevantly, if the land is “bush fire prone land”[13], development consent can only be granted if the consent authority is satisfied that the development conforms to the prescribed version of Planning for Bushfire Protection[14].  If the rebuilding is to occur on bushfire prone land by way of complying development, the new house must comply with Planning for Bushfire Protection as well as the other bushfire related standards in cl. 3.4(2) of the Codes SEPP.

    As at the date of this Essential Guide, the prescribed version of Planning for Bushfire Protection remains the version published in December 2006[15].  Current indications are that the new 2019 version will be prescribed as the new reference on 1 March 2020.

    Where the house is being built in accordance with a development consent, it will also be necessary to obtain a construction certificate before construction can commence[16]. A construction certificate is not required for the erection of a building in accordance with a CDC[17].

    A building certifier cannot issue a construction certificate for building work unless the proposed building will comply with the relevant requirements of the Building Code of Australia as in force at the time the application for the construction certificate was made[18].

    Part 2.7.5 of the BCA states that a house, or a shed, garage or deck associated with a house, that is constructed in a designated bushfire prone area must, to the degree necessary, be designed and constructed to reduce the risk of ignition from a bushfire, appropriate to the—

    (a) potential for ignition caused by burning embers, radiant heat or flame generated by a bushfire; and

    (b) intensity of the bushfire attack on the building.

    If it is proposed to rebuild a house as complying development under the Codes SEPP, the development must meet the relevant provisions of the BCA.[19]

    Requiring compliance with the BCA when issuing a complying development certificate or construction certificate ensures that buildings comply with the most up to date construction standards possible and, in particular, with current bush fire safety requirements.

    Conclusion

    Councils will no doubt wish to facilitate the rebuilding process for those affected by the bushfires as much as possible. We hope that this brief guide will assist Councils to do so.

    If you would like advice or assistance with specific issues arising out of this Essential Guide, please contact Alan Bradbury on (02) 62740940, Alice Menyhart on (02) 62740911 or Andrew Brickhill on (02) 62740979.

    [1] State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl. 7.1

    [2] See Codes SEPP, cll. 1.17A, 1.18 and 1.19

    [3] Standard Instrument LEP, cl.2.7

    [4] See Codes SEPP, cll. 2.31 and 2.32

    [5] See Codes SEPP, cl. 2.25 and 2.26

    [6] Local Land Services Act, s.60B(3)

    [7] Cl. 8(2)

    [8] EP&A Act, s.4.70

    [9] EP&A Act, s.4.55

    [10] Codes SEPP, cll. 2.31 and 2.32

    [11] Codes SEPP, cll. 2.33, 2.34, 2.35 and 2.36

    [12] EP&A Act, s.4.68

    [13] “Bush fire prone land” is designated by the Rural Fire Service under s.10.3 of the EP&A Act and reg 273A of the EP&A Reg

    [14] EP&A Act, s. 4.14.

    [15] EP&A Reg, reg 272

    [16] EP&A Act, s.6.7(1)

    [17] EP&A Act, s.6.7(2)(a)

    [18] EP&A Reg, regs 98 and 145

    [19] Codes SEPP, cl.1.18(c)

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  • Health data

    Health Data and it’s Collection, Use, Protection and Disclosure

    They say that ‘an apple a day keeps the doctor away’, but ‘when your apple does fail, a doctor will prevail’.  Okay, maybe people don’t say that last part, but it’s nonetheless true.  Generally, you might take a visit to the doctors for granted (unless you live in a country without universal healthcare), however as commercial lawyers we do sometimes wonder how well our health data and privacy is protected and what our rights are in the event that these are breached.

    For health service providers and practice managers, we recommend that you stay up to date with health data protection legislation and guidelines.  This is the case not only for doctors and private hospitals but also extends to pharmacists, dentists, gyms and childcare centres.

    Health Data Help

    The Office of the Australian Information Commissioners (‘OAIC’) released their Guide to Health Privacy (‘the Guide’) earlier this year.[1]  It sets out a handy explanation for health service providers, including doctors and other health professionals, as to what their obligations under the Privacy Act 1988 (‘the Privacy Act’) are as well as tips to ensure they are able to meet those obligations.  The Guide has been introduced in the wake of high number of both privacy complaints to the OAIC and notifiable data breaches suffered by health service providers.  Since mandatory reporting was introduced in February 2018, the health service provider sector has seen the highest cases of notifiable data breaches.  Often, information that health service providers hold about individuals and families are extremely sensitive and could be misused if it falls into the wrong hands.

    The OAIC Guide

    The type of information that the Guide covers includes information about an individual’s physical or mental health, notes on their symptoms, diagnosis and any treatments given, physical or biological samples and their results, prescriptions and other pharmaceutical purchases, and any other personal information that identifies the individual (e.g. name, address, date of birth, Medicare and private health provider numbers, gender, race, sexuality or religion) that is collected for the purpose of providing a health service.

    The Guide provides an ‘eight-step plan for better privacy practice’, which includes developing and implementing a privacy management plan and a method of accountability for privacy management, creating a privacy policy, implementing a regime of recording and protecting personal information and developing a data breach response plan.  The Guide also recommends holding training sessions for staff in relation to their privacy obligations.

    The Guide covers what the privacy obligations under the Privacy Act are in relation to:

    • Collection of an individual’s personal information;
    • Consent of the patient to how the health service provider will be handling their personal information;
    • Disclosure to another health provider or individual, including de-identification of the information;
    • Use and handling of the personal information, including accessing and reading a patient’s medical file, searching patient records, and passing information from part of the organisation to another; and
    • How health service providers can set up a privacy management framework[2] and prepare a data breach response plan.[3]

    OAIC Powers

    The OAIC has various powers to regulate health service providers and how they collect, store, use and disclose personal information.  The extent to which these powers work does depend on the breach, but includes the ability to:

    1. audit privacy practices of health service providers;
    2. award compensation to individuals who have had their privacy breached by poor privacy practices; and
    3. seek penalties through the Federal Court of up to $2.1 million per privacy breach.

    So, enjoy your apples and rest assured that your personal information will be in good hands if health service providers implement these guidelines.

    If you’re a health practitioner and need help with drafting or re-drafting your privacy policy or perhaps someone who is concerned about how your health data is being protected, contact our business team for more information about your rights and obligations under the Privacy Act.

    Written by Jecinta Neumann

    [1] https://www.oaic.gov.au/privacy/guidance-and-advice/guide-to-health-privacy/

    [2] https://oaic.gov.au/privacy/guidance-and-advice/privacy-management-framework-enabling-compliance-and-encouraging-good-practice/

    [3] https://www.oaic.gov.au/privacy/guidance-and-advice/data-breach-preparation-and-response/part-2-preparing-a-data-breach-response-plan/

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  • Defamation

    The Definition of Defamation

    Defamation is not just a matter for celebrities, it can significantly affect the ‘average’ person or small business.  As the old adage goes: ‘sticks and stones may break my bones, but words will permanently damage my career prospects and affect my wellbeing’.  Okay, admittedly, this is not the precise proverb; however, in a legal context, it is an apt amendment.

    At law, defamation is defined as a loss of reputation by information being published or distributed which is harmful to a person’s reputation in either a personal or professional capacity.

    Defamatory material can take a variety of forms, including written, visual and spoken materials, such as news articles, social media posts, radio programmes and public addresses. Whether questionable material rises to the level of being defamatory, perhaps unsurprisingly, is an issue parties offering have opposing views on.

    Has defamation occurred?

    For a claim for defamation to succeed in the ACT, you or your small business will need to show that:

    • You have been identified as the subject of the statement or defamatory material;
    • The material was published or verbally communicated;
    • The material is not substantiated by facts;
    • The material caused injury or loss to your reputation; and
    • The material is not covered by any of the defences available in the ACT.

    Are there defences to defamation?

    Yes.  Valid defences to what would otherwise be defamatory material may exist, if the following applies:

    1. If the statement is true or substantially true, then a defence is that the comments were justified;
    2. If the material contains statements some of which are true, and others that are untrue but the untruthful statements are not deemed to cause further reputational harm, then the defence of contextual truth may arise;
    3. If the statement is made in court proceedings or parliament, then the statement should be covered by absolute privilege.
    4. If the statement is published by the Court ,or parliament, and is relevant to an open and transparent political and legal system then the statement is considered a publication of public documents;
    5. If the statement was published in a report on public proceedings, and may reveal private information, the statement should be a fair report of proceedings of public concern;
    6. If the statement was published for a particular recipient who had an interest in the matter then an available defence is qualified privilege for provision of certain information;
    7. If the statement is an honest opinion of public interest, rather than a statement of fact, and was based on proper material, then the defence of honest opinion may arise;
    8. If the statement was made by an employee or agent who was not aware the information was untrue, and was not due to negligence, then the defence of innocent dissemination may arise;
    9. If the statement is such that it is unlikely to cause any harm, then the defence of triviality may arise.

    You think you have suffered defamation, what next?

    There is a strict requirement in the ACT to bring any action for defamation within one year.

    You also cannot repeatedly sue.  That is, you will only have ever a single cause of action for defamation against one person or entity. This means even if someone repeatedly publishes or communicates defamatory untruths about you, you can only sue once for the totality of this conduct rather than starting a new claim for each new breach of defamation laws.

    What’s in a word? Don’t be confused over terminology: slander and libel do not have distinct meanings for the purpose of defamation.

    There are different remedies available if you have a claim for defamation. If you have concerns about whether you have been defamed, or about your organisation’s compliance with publication content, please get in touch with our dispute resolution team.

     

    Written by Laura McGee.

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  • Trade marks

    Trade Marks and Tridents: IP in Corporate Groups

    Trade marks are important tools used by businesses to distinguish the origin or provenance of their goods. Successfully registering a trade mark in the name of your business affords protection, which can be enforced against others. However, if you—the registered owner—do not use the trade mark and control the qualities of the goods and services to which it attaches, then you lose it.

    Recently, the Federal Court found that where a parent company uses a trade mark owned by a subsidiary, the use will be a sufficient ‘authorised use’ to defend an application for removal of a trade mark due to non-use. This raises interesting questions for use of trade marks in corporate groups.

    Lessons in trade marks use by parent companies

    In the case of Trident Seafoods v Trident Foods Pty Ltd, Trident Foods owned two trade marks for the word ‘TRIDENT’, the first registered in 1973 and the second in 1983, both for food products. Trident Foods more recently became a wholly owned subsidiary of Manassen Foods Australia Pty Ltd. In 2014, Trident Seafoods applied to have those trade marks removed from the Register on the grounds of non-use after their own application to trade mark the logo of ‘Trident Seafoods’ was blocked.

    Section 92(4)(b) of the Trade Marks Act (the Act) provides that an application may be made to remove a trade mark from the Register if the trade mark has remained registered for a continuous period of 3 years and at no time during that period was the trade mark used by the registered owner in Australia. Here, the delegate of the Registrar was not satisfied that Trident Foods had used the ‘TRIDENT’ trade marks during the relevant 3 year period. This was despite Trident Foods arguing that Manassen as the parent company had used the trade marks before, during and after the relevant period. Neither the delegate nor the primary judge in the first instance was satisfied by this because Manassen’s activities were not ‘under the control’ or ‘actual control’ of Trident Foods. Indeed, as a parent company the opposite was true.

    On appeal, Trident Foods contended that use of the marks by Manassen was authorised by Trident Foods via an unwritten licence and consequently that it had been subject to ongoing use under the control of Trident Foods. Section 8 of the Act provides that this question turns on the meaning of control. The relevant case here is Lodestar Anstalt v Campari America LLC which held that control over the use of a trade mark means ‘actual control in relation to the trade mark from time to time’ and that this was ‘a question of fact and degree’.[1] There could be an unwritten licence where the user’s obedience to the owner was ‘so instinctive and complete that instruction was not necessary’.[2]

    The unity of purpose trade mark test

    The Full Federal Court sided with Trident Foods because at all times the directors of both Manassen and Trident Foods were the same. It was thus inferred that ‘the two companies operated with a unity of purpose’. The idea that Trident Foods acquiesced to Manassen’s use of their trade marks was a fallacy because the directors of both entities being one and the same had an obligation to ‘ensure the maintenance of the value in the marks’.[3]

    This decision may make it easier for corporate groups to establish the existence of requisite control to maintain trade mark registration. As the Full Federal Court held, ‘it is commercially unrealistic…not to infer that the owner of the marks controlled the use of the marks because the common directors’ were required to ensure they retain value.[4]   

    It remains to be seen how this ‘unity of purpose’ test will be further developed and if/how it could apply to commercially at arm’s length operations.

    By Riley Berry

    [1] [97] and [98].

    [2] Ibid.

    [3] Para [45] of the judgment.

    [4] Ibid.

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  • Hairy Contract Terms

    Ashley & Martin Pinged for Hairy Contract Terms

    The Australian Competition and Consumer Commission (ACCC) has successfully brought proceedings against Ashley & Martin for including standard contract terms that were unfair pursuant to provisions under the Australian Consumer Law (ACL). The proceedings against the well-known provider of medical hair regrowth products reflect the ACCC’s ongoing attempts to enforce the unfair contract provisions of the ACL.

    Unfair Contract Terms void under the ACL

    The ACL provides that a term of a consumer contract or small business contract is void if (a) the term is unfair and (b) the contract is a standard form contract. A term is unfair if three conditions are met:

    1. Meeting the term would create a significant imbalance in the parties’ rights and obligations arising under the contract;
    2. The term is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and,
    3. The term would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

    Furthermore, as per the case of Ferme & Ors v Kimberley Discover Cruises Pty unfairness will be judged at the time the contract was formed. In determining unfairness the court will also have regard to the extent to which the term is transparent, whether it was expressed in plain language, was legible, presented clearly and readily available to a party affected by the term.

    Forced growth

    From 2014 to 2017, Ashley & Martin signed up over 25,000 customers to its ‘Personal RealGROWTH Program’ using three different standard form contracts, a take-it-or-leave-it style contract where the terms are set by one of the parties with little to no room for negotiation. Customers typically signed up to a 12-month program, which involved administering a variety of shampoos, conditions, supplements and prescription only medication. Of the unfair contract terms, these included requiring customers to pay for all medical treatment before receiving medical advice and making customers incur a cost if they sought to withdraw from the program after receiving adverse medical advice. Absent receipt of medical advice, the ACCC argued that the terms of Ashley & Martin’s contracts denied customers the ability to give informed consent and were thus unfair.

    In the case of ACCC v Ashley & Martin the Federal Court found that the relevant provisions across the three different standard form contracts were unfair and thus void. Banks-Smith J found that detriment caused included foregoing hundreds and in some cases thousands of dollars for products that were medically ill-suited. They stated the terms impose “on the patient a disadvantageous burden or risk”. As a consequence the Court ordered Ashley & Martin to refund consumers over the unfair contract terms. Relief was given to patients who signed contracts prior to receiving medical advice, received medical advice that the RealGROWTH Program was not suitable, experienced side-effects, within 7 days of signing the contract expressed a desire to terminate or expressed a desire to terminate the contract because they didn’t have an opportunity to receive or consider medical advice.

    The long and short of it

    Previously, the inclusion of unfair contract terms was a low risk strategy for businesses and suppliers. If found to be unfair but not at the heart of the agreement, the term would be void and excluded from the rest of the agreement. The Federal Court’s decision demonstrates that there are additional consequences for businesses who included unfair terms. For Ashley & Martin this was a hairy decision and proved to be a costly one too.

    By Riley Berry

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