TRAFFIC OFFENCES
Speeding is an issue about which we regularly provide advice. Speeding offences are covered by the Queensland Road Rules and a good source for reading them on the web is www.austlii.edu.au. Navigate to Queensland Consolidated Regulations and then look for "Transport Operations (Road Use Management - Road Rules) Regulation 2009 under "T".
Section 20 is the section that spells out that speeding is an offence!
If you wish to challenge a speeding infringement on the basis of the image taken by a detection device or you allege that it was not functioning properly or not being appropriately used, in addition to returning that part of the infringement notice indicating you are appealing, you will also have to complete a Form QF4563 that is available on the Queensland Transport website www.transport.qld.gov.au. This form requires you to give notice of the grounds on which you are challenging the speeding fine. The form provides clear instructions as to what you must do, including the relevant time limits in which you must act.
Another common issue with which we deal on a regular basis is red light camera offences, specifically those where clients say that they stopped and didn't go through the red light. The law is very specific on this and states that you must stop at a red light "as near as practicable to, but before reaching the stop line" (section 56 of the Road Rules). If you stop before the line and then allow your vehicle to creep into the intersection whilst you are facing a red light, you are considered to have entered the intersection and if there is a red light camera, you will trigger it and be issued with an infringement notice as technically you are considered to have gone through the red light! Our experience is that Magistrates do not exercise leniency if these offences are appealed.
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL (QCAT)
On 1st December 2009 the Queensland Civil and Administrative Tribunal commenced operation and has replaced various tribunals that have now ceased to exist, including the Small Claims Tribunal and the Commercial and Consumer Tribunal. QCAT has also taken over the debt dispute function that previously was handled by the Queensland Magistrates Court under its minor debt division, with there now being a substantial increase in the debt amount able to be determined from $7500 to the new limit of $25,000.
Please see the website www.qcat.qld.gov.au for further information, including all application forms. Whilst the new system is still in its early days, the assistance we have provided to several clients demonstrates that the forms are much easier to complete and understand than previous forms, particularly Magistrates Courts forms, which were very confusing for anybody without any legal training. Our service is able to provide clients with advice on the new tribunal and we may also be able to help with the completion of the appropriate application forms if appropriate.
THE FITNESS INDUSTRY AND GYM MEMBERSHIPS
Our service gets many complaints regarding the practices engaged in by operators of gymnasiums, particularly the fact that clients are often pressured into signing lengthy membership contracts and membership fees to be deducted on a regular basis from a nominated bank account or credit card by way of a direct debit.
It is important to know that consumers are protected by the Fair Trading (Code of Practice-Fitness Industry) Regulation 2003. If you are about to join a gym, fitness centre or to engage the services of a personal trainer, the code includes a 48 hour cooling off period for new agreements, a limit on the amount of upfront fees (one year maximum), requirements for all contracts to be in writing and signed by both the client and supplier, full fee disclosure in all fitness agreements, a ban on the collection of fees by new fitness centres before they open for business, and the right of a consumer to terminate an agreement due to permanent sickness or incapacity.
In addition to the Regulation, it is important to note that as the agreement is a consumer contract, there may also be a remedy available in the event of a dispute by applying to the Small Claims Tribunal.
If you need advice on any of these issues, please contact our service to make an appointment for advice from one of our solicitors (prepared
CREDIT OMBUDSMAN SERVICE
Consumers in many parts of Australia are experiencing severe mortgage stress with the recent hikes in interest rates and food and petrol prices. More and more borrowers are finding it difficult to juggle their mortgage repayments and household bills. Others have fallen on hard times. losing their jobs or falling ill. Many consumers are facing financial ruin and risk losing their homes. Frequently they don't know what their options are. Most cannot afford to defend legal proceedings to evict them and take possession of their homes.
The Credit Ombudsman Service (COSL) is an independent ASIC-approved external dispute resolution scheme providing consumers with an alternative to legal proceedings. COSL operates exclusively in the non-bank sector and most non-bank lenders and mortgage brokers are members of COSL. Anybody experiencing any problems with their non-bank lender should read the COSL website at www. cosl.com.au or alternatively, make an appointment to see one of our solicitors or financial counsellor for further advice.
NEW DEFACTO PROPERTY SETTLEMENT LAWS
New laws have been introduced by the Commonwealth Government which bring separating defacto couples, either male/female or same sex, on the division of property and spouse maintenance, within the federal family law regime under the Family Law Act 1975. The new laws enable defacto couples to access, in the same manner as married couples are able to do, the Family Court of Australia and the Federal Magistrates Court ("the family courts") for property and spousal matters. Prior to this, defacto couples who separated had to apply to the state courts (generally the District or Supreme Court of Queensland) to have their property settlement disputes resolved. Property settlement litigation in the state courts is generally much more complex and potentially much more costly than in the federal courts system, which have a reputation for being much more "user friendly" to unrepresented litigants than do the state courts.
What do the new laws do?
The new laws provide for defacto couples to obtain property settlements on the same principles that apply under the Family Law Act to married couples. The new laws commenced on 1st March 2009. Essentially what this means is that couples who separate after this date will automatically be covered under the new laws and will have no choice but to go into the federal court system to have their dispute resolved. For couples who separated before the date of commencement of the new laws, if they both agree to go into the federal courts to have the matter resolved, then the jurisdiction wil apply (ie. they can "opt in"). In all other cases, the state courts will continue to have coverage.
The new laws enable the family courts to order a division of any property that the couple own, either separately or jointly with each other. Superannuation that each partner has can also be split (married couples have been able to do this since 2002). A quite radical change for defacto couples is that spouse maintenance can now be ordered. This is a very significant step as this was the main difference in rights between married and defacto couples. Up until now it had not been possible for separating defacto couples to claim spousal maintenance.
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NEW GOLD COAST CITY COUNCIL LOCAL LAW
The Gold Coast City Council has recently introduced two new local laws, those being Local Law No. 8 and No. 8.1 that both deal with matters of public health, safety and amenity. The word "nuisance" does not form part of the title of the legislation but a closer reading of the laws clearly indicates that these laws are designed to empower the council to deal with matters of nuisance which would have previously have had to be dealt with by way of a civil action in the courts. What the laws appear to do is give the council wide-ranging powers to compel people to act, rather than people having to take court action.
Section 5 of Law 8 specifically provides "A person must not do any act or omit to do any act which causes a nuisance". Section 6 then goes on to provide all of the matters that are able to be dealt with and they include things such as trees that can cause a nuisance or danger and even extends to plants that are "unsightly" or "have a negative impact on the surrounding area". The legislation also controls such things as high pressure hosing, spray painting, sand blasting, throwing of stones or bottles and many other things!
Therefore, given the new laws, if there is any element of nuisance about which you may be concerned, our advice would be to approach the Gold Coast City Council in the first instance and see if it is able to be regulated by the new laws. If it is, then the council should be able to act under the new laws. The council will generally issue a compliance notice and if this is not complied with, then penalties may be imposed. The compliance notice may include a stop order, requiring the cessation of offending activities. If you need any help with dealing with the council, you should make an appointment with our service to get further advice as to how to deal with the issues.
