Compliance & regulatory advice lawyers Sydney
Staying compliant with the latest laws and regulations can be a challenging task, especially for businesses operating in highly regulated industries. But with Heathfield Grosvenor, you can have peace of mind knowing that you have a team of experts on your side.
Our services include but are not limited to:
- Advising on the latest compliance and regulatory requirements and best practices
- Reviewing and updating company policies and procedures to ensure compliance
- Representing clients in investigations and enforcement actions by regulatory bodies
- Providing training and education on compliance and regulatory matters
- Assisting with the development and implementation of internal controls and compliance programs
At Heathfield Grosvenor, we understand the importance of being proactive when it comes to compliance and regulatory issues. Our team of experts will work closely with you to understand your unique business needs and provide tailored solutions that meet your specific requirements.
Don’t let compliance and regulatory issues slow down your business. Contact us today to schedule a consultation with one of our experienced lawyers. We are here to help you navigate the complexities of this area of law and ensure that your business stays compliant and protected.
Related insights
Minimum Employment Terms and Conditions in Australia
Employers who wish to sponsor skilled employees from overseas are, in summary, required under the subclass 457 scheme to provide terms and conditions which are at least equivalent to those which an Australian citizen or permanent resident would achieve performing the same work at the same location. This is an ongoing requirement not least because it is a 457 sponsorship condition, and severe sanctions can result in non-compliance. Its primary purpose is to prevent the undercutting of the local Australian labour market, protect overseas employees from exploitation, and maintain integrity in the scheme. In Australia, the employment relationship is governed or affected by a number of different parameters, all of which are variable depending upon the circumstances: Applicable Federal, State and/or Territory legislation: These include the Fair Work Act 2009 (Cth). The Fair Work Act establishes the National Employment Standards. Industrial instruments: There are various awards and statutory agreements / enterprise agreements which may impact upon the minimum terms and conditions with which an employee must be provided (for example by amending or adding to the National Employment Standards, and setting minimum wages for particular occupations). Contract of employment: This is agreed between the employer and the employee. Terms are both express and implied into the contract: Express terms: These are usually the written terms and conditions of the employment contract but may include terms and conditions which have been agreed verbally and also provisions of internal employment policies and any other terms (if they have been incorporated into the contract by reference for example). Implied terms: Terms can be implied into the employment relationship through custom, and the common law also implies terms into every employment relationship. Importantly, the contractual terms cannot override or detract from legislation and so the contract needs to provide terms and conditions which are at least equivalent to the terms and conditions required by applicable law (referred to under points 1 and 2 above). It is therefore important to be mindful of the tasks and functions of the occupation in question (and any changes from time to time which may alter the nature of the role), and the minimum requirements which are prescribed by the law for that particular occupation. In addition, the obligation upon 457 visa employer sponsors is broader in the sense that market salary rate conditions (not merely the requirement to pay a minimum wage) are also relevant, and market salary rates may fluctuate from time to time.
Damages for Republication of Defamatory Statement by Third Party
Milne v Ell [2017] NSWSC 555 Home This case serves as a reminder of how liability for defamatory statements can extend to the republication of the statement by third parties, even where the republication has not been expressly authorised (but impliedly authorised). In summary, an original publisher will be liable for the repetition of his or her original defamatory publication, including in altered form where the republication adheres to the sense and substance of the original publication and: he or she expressly or impliedly requested or authorised the repetition of the original publication; he or she intended that the repetition should take place; the repetition is the natural and probable consequence of the original publication; or there is a duty or obligation on the recipient of the original publication to repeat the original publication. The defendant, Mr Ell, originally brought an action for defamation against the plaintiff, Ms Milne and Mr Ell was awarded $15,000 in damages plus costs in 2014. Shortly after the 2014 judgement, Mr Ell was contacted by a journalist to whom Mr Ell said (referring to Ms Milne) “She’s not a fit and proper person to be a councillor…” (Statement). This and other statements were subsequently published by the journalist in a printed article appearing in NSW and QLD as well as online. Ms Milne succeeded in obtaining an award of damages for defamation against Mr Ell arising from the Statement, and its subsequent republication by the journalist. In summary, it was held: Requirement of specificity of pleading imputations: The words “She’s not a fit and proper person to be a councillor…” referring to Ms Milne were sufficient by themselves to give rise to a defamatory imputation (i.e. they constituted an act or condition asserted of or attributed to a person). It was unnecessary for the pleading in the statement of claim to be more specific in the circumstances. Defence of honest opinion / fair comment: The imputation was one which related to a matter of public interest (because it related to whether or not a public officer was a fit and proper person to hold the position). On the question of whether or not the Statement was an expression of opinion rather than fact, the Court is required to examine the context, including whether the imputation is a “bare comment”, denuded of the facts upon which it is based or notorious facts presumed to be known by the reader, or without any of the other elements necessary to substantiate the defence. In the circumstances a reasonable recipient would understand the Statement as a statement of fact and not the offering of an opinion based upon stated facts. Accordingly, because the Statement was not an opinion and was not based upon stated facts, the defence of honest opinion / fair comment did not apply. Republication: The republication of the Statement made to the journalist was the natural and probable result of uttering the words in the Statement to the person (who was known to Mr Ell to be a journalist) and Mr Ell was therefore liable for its republication. In the circumstances of a press conference, or interview by the press, express authority or a request to publish is not necessary. Damages: In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. The purposes of an award of damages have been described as including: the consolation to the personal distress and hurt caused by the publication; reparation for the harm done to the personal and business reputation of the person defamed; and vindication of the reputation of the person defamed. If there had been no republication in this case then the damages would have been nominal (if any). In terms of the republication, the relevant publication issue had sales of approximately 36,000 newspapers and a readership of approximately 135,000. The online publication also caused additional damage and, in some respects, notwithstanding its withdrawal from the website, it may still be causing damage. The judge also accepted the “grapevine” effect of the publication of the article in print and the broadcasting of the website so that the damage was not confined to those that read the article or opened and/or downloaded the website article. Taking into account the fact that a public apology had been published by the publishers of the article (thereby vindicating Ms Milne to an extent), damages of $45,000 were awarded to Ms Milne plus costs. C
Unenforceable Penalty Clauses & Agreed Damages in Contracts
Table of Contents When negotiating a contract the parties commonly think about what should happen in the event that the other party breaches a term of the contract. They may also wish to stipulate what should happen upon the occurrence of a certain event (which may not technically constitute a “breach” of the contract). The other party might be required to pay an amount of money or provide some other non-monetary benefit as a result under the contract. Often it is difficult at the time the contract is made for a party to anticipate or foresee exactly what the damage or loss will be in the future if specified event(s) occur. Nevertheless, many contracts do specify what should happen upon the occurrence of certain events. Breach of contract If the parties agree on what will happen in the event of a breach of the contract, then the clause will either be (1) enforceable because it is a liquidated damages clause or (2) unenforceable because the clause is deemed to be a penalty. Primary contractual stipulations with secondary collateral stipulations Where a technical breach of the contract does not trigger what will happen but rather it is some other contractual stipulation / event which triggers payment, the question is “whether the party is restricted by covenant from doing the particular act [by] … payment”. This might occur for example through the imposition of a collateral contractual stipulation which imposes an additional detriment to the benefit of a party and acts as security for the performance of the primary obligation, or acts as a deterrent to non-performance of the primary obligation. Such a stipulation would be a penalty. Alternatively, the question is “whether according to the true construction of the contract, its meaning is, that the one party shall have the right to do the act, on payment of what is agreed upon as an equivalent[1]” it which case it would be enforceable. Enforceable agreed damages or liquidated damages clauses Generally, the law will enforce a clause which provides for the payment to a party of an amount (or benefit) which is a “genuine covenanted pre-estimate of damage[2]”. Unenforceable penalty clauses In summary, clauses which are in the nature of a punishment for breach of the contract or to deter non-performance of a contractual term can be characterised as penalties and therefore unenforceable. Factors which indicate an unenforceable penalty clause include where[3]: The agreed sum is “extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach”. The sum needs to be out of all proportion to the damage that would normally be awarded by a Court in the absence of the clause (i.e. it is “in terrorem”). This is the most important test and merely because no pre-estimate was made at the time the contract is entered into does not determine that the clause a penalty[4]; or The breach consists only in not paying a sum of money, and the agreed damages are more than what should be paid as a result; or A single lump sum is made payable by way of compensation on the occurrence of one or more events, some of which may occasion serious damage but others insignificant damage. General principles It is important to keep in mind the following: The circumstances and the terms of the contract as at the time the contract was made are relevant, not the circumstances at the time of the breach of contract; The fact that it was difficult or impossible to precisely estimate the likely damage at the time the contract was made does not determine that it is a penalty clause[5]; The substance and effect of the clause must be considered (not merely the way the clause has been described in the contract); and The burden of proving that the clause is a penalty and unenforceable is on the defendant (i.e. the breaching / paying party). Special rules apply where payment is accelerated and damages for loss of bargain are payable (for example which often appear in hire purchase agreements). These are treated differently and specific legal advice should be sought[6]. A party seeking to rely upon an agreed damages clause would be best advised to draft the clause with the above in mind and to keep a note of the basis for the calculation and estimate of the damages. …………………………….. [1] See Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 30 and Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28 (27 July 2016) [2] Clydebank Engineering and Shipbuilding Co. v. Don Jose Ramos Yzquierdo y Castaneda [1905] A C 6. [3] See Amev-Udc Finance Ltd v Austin (1986) 162 CLR 170 and Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 [4] Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28 (27 July 2016) [5] This was the fourth “test” from Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 [6] See Melbourne Linh Son Buddhist Society Inc v Gippsreal Ltd (No 2) [2017] VSCA 198 (4 August 2017) for a recent application of the principles. contact us Contact our contract lawyers for assistance in relation to the above. Our commercial lawyers, business lawyers, and disputes lawyers provide expertise in corporate and commercial advisory services as well as litigation and dispute resolution. HEATHFIELD GROSVENOR Level 21, 133 Castlereagh Street Sydney NSW 2000 Australia T: +61 2 8005 7388 E: contact@hglaw.com.au www.hglaw.com.au The information provided in this article is provided by way of general information only. It does not constitute legal advice, and should not be relied upon as such. Specific independent legal advice should be obtained before deciding to act, or not to act, upon the views expressed or information contained in this article.
FirmChecker 2021 ‘Best Law Firms in Sydney 2021’ Award Winners
Heathfield Grosvenor Lawyers has been recognised as ‘a highly rated firm’ by FirmChecker (don’t know what that is? It is equivalent to Tripadvisor in the tourism industry), Australia’s leading site for professional service reviews. Do we work for the accolades and the recognition? Absolutely not. Thankfully, these recognitions come with the ardent work that we pride ourselves in. But, as a law firm, we are always thankful for the recognition given, and most importantly, knowing that our clients receive the best and just outcome. Survey results, as published by Lawyers Weekly show that ‘NZ lawyers are more trustworthy than Australian Lawyers’ – now that is another point to add onto Australia’s long-standing scoreboard with New Zealand! But, the point being is that we aim to restore the integrity and trust between clients and lawyers through our firm. For us, it is not about competition because we distinguish ourselves with our inherent ability to achieve just outcomes, and a pleasant and professional experience for our clients. Serving justice is a privilege and a duty for us, and nothing else. Just leave it with us. See the full FirmChecker article below: https://www.firmchecker.com.au/news/best-rated-law-firms-in-sydney-cbd Lawyers Weekly Article: https://www.lawyersweekly.com.au/biglaw/25220-nz-lawyers-more-trustworthy-than-australian-research-shows