Annual Report 2004 – 2005 - pilch

CASE SUMMARIES
Trade Practices
Herbert Geer & Rundle together with Jim Delany SC and Matthew Barrett of counsel
accepted a referral to represent an animal liberation group in relation to Federal Court
proceedings brought against it alleging that it engaged in conduct contrary to section
45DB of the Trade Practices Act 1974 (Cth) (‘TPA’). The matter was referred to PILCH
by Justice Gray of the Federal Court who considered that the group required expert
legal representation, as the proceedings represent a test case regarding the application
of section 45DB of the TPA (the ‘boycott’ provisions) to environmental protests. The
same proceedings have been issued against an individual who requires separate
representation. Maddocks, together with Charles Scerri QC and Matt Connock
of counsel, accepted a referral to act for the individual on a pro bono basis.
Taxation Law
Arnold Bloch Leibler accepted a referral to assist a peak legal not-for-profit
organisation, to prepare submissions for the Australian Taxation Office in relation to a
recent draft ruling which deals with the definition of charitable status. The organisation
is concerned that the proposed draft would severely restrict its constituents’ ability to
engage in law reform and advocacy and to lobby for changes in government policy.
Superannuation Law
Sparke Helmore accepted a referral, and gave prompt advice, to a not-for-profit
organisation regarding the operation of superannuation contributions to disabled and
supported employees who receive less than 80% of full award wages. The organisation, a
peak body concerned about the rights and needs of people with intellectual disabilities, had
previously received conflicting advice about the requirements for the payment of super
annuation contributions to supported employees under the Australian Liquor, Hospitality
and Miscellaneous Workers Union Supported Employment (Business Enterprises ) Award
2001 and the Superannuation Guarantee (Administration) Act 1992 (Cth).
Defamation, Privacy and Duty of Care
Ebsworth & Ebsworth accepted a referral to assist a not-for-profit organisation whose
primary function is to provide training throughout Australia on issues arising out of
child abuse and building child safe organisations. Specifically, the organisation sought
advice as to the relevant laws regarding the duty of care owed by organisations with
respect to child abuse and defamation and privacy issues regarding reference checks
and screening of employees and volunteers. The organisation wanted expert advice so
they could provide accurate information to participants at training sessions. Ebsworth
& Ebsworth gave timely and thorough advice in the form of a short presentation to staff
members regarding the current state of the law in the areas of privacy, defamation and
negligence. The presentation and advice was well-received by staff members.
We were so lucky to find PILCH.
Their support and assistance
provided us with an outstanding
Tenancy Law
legal team for our case.
Not-for-profit organisation assisted
by PILCH in 2004-2005
In January 2005, Alexandra Richards QC together with Samuel Hopper as junior
counsel, were successful in the Supreme Court of Victoria in challenging the decision
of the Victorian Civil and Administrative Tribunal (‘VCAT’), to evict an 80 year old war
widow and public housing tenant.
Counsel and the Tenants Union of Victoria, who acted on her behalf as instructing
solicitors, argued that VCAT had erred in law. The client has lived in her Lakes Entrance
public housing unit for almost ten years and was a good tenant. However, in October
2004, while she was unwell and receiving medical treatment, her grandson, who was
visiting but had never lived at the property, engaged in conversation with two housing
support workers from the Office of Public Housing who were visiting the property. During
that exchange, her grandson physically threatened the workers and told them to leave
the premises. Following this event, the Director of Housing sought to evict her under
section 244 of the Residential Tenancies Act 1997 (Vic) on the grounds of danger to
occupiers of neighbouring premises. The Director sought an order from VCAT to enforce
the notice to vacate. The Supreme Court found in the tenant’s favour, ruling that the
order by VCAT to enforce the notice to vacate was unlawful. The case turned on the lack
of jurisdiction that VCAT had to hear the matter given that the notice was defective, as
it lacked particulars. This decision has become an important precedent and has been
used successfully to the benefit of tenants in at least 10 cases, including for notices
other than danger, by the Tenants Union of Victoria. The case also raised PILCH’s
awareness of the need to increase the list of barristers able to respond to such matters
at short notice, and as a result, PILCH, VB LAS and the Tenants Union of Victoria
co-hosted a training seminar on this case and the applicable law.
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