Using images without permission

Illegal use of imagesIf you are thinking about creating a new advertising campaign or rebranding, then you may want to consider the types of images and who you use in your campaigns.

Recently an aged care facility decided to use an image of Ita Buttrose to promote their facilities however, they unfortunately did not seek permission from Ita Buttrose or pay the normal endorsement fee of $75,000 to use her face on their promotional material and therefore the matter ended up in court.

In order to settle the case, Ita’s lawyers demanded that $25,000 be paid. They didn’t hear from the company in four months, so issued a second letter demanding payment of $50,000. The Court found that the company was in breach of section 36 of the Copyright Act 1968 and sections 18 and 19 of Schedule 2 of the Competition and Consumer Act. They were ordered to pay damages, legal costs and say that Ita Buttrose had never endorsed their product.

Next time you consider using an image for advertising, ensure you have the right to do so.If you are unsure, why not subscribe to companies like Shutterstock, or Istock and use images you know you are legally allowed to.

Bar Raised on Sexual Harassment Claims

Sexual HarassmentIn the past, claims for damages for sexual harassment have generally seen only relatively modest awards of damages made for the offence and insult caused by the conduct, but some recent Federal Court decisions appear to have raised the bar in terms of the award of damages in these types of cases.

In Vagara v Ewin [2014] FCAFC 100, an employee had been sexually harassed on four occasions by a contractor who was working for the same employer.  Her complaints to her boss were not taken seriously and ultimately she felt that she had no option but to resign.  She was recently awarded almost $500,000.00 in compensation including a significant allowance for economic loss that she suffered as a result of leaving the employer.

Subsequently, in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, an employee had been repeatedly sexually harassed over an eight month period.  After she made a complaint regarding the conduct, the Plaintiff found herself being put in another lower paying position by the employer instead of removing the sexual harasser from the workplace.  Ultimately, the Plaintiff left the employer and she was awarded, on appeal, $100,000.00 for pain and suffering and $30,000.00 for economic loss that she had suffered.

Some might argue that awards of that magnitude are difficult to reconcile with the award for pain and suffering in physical injury cases but for now, at least, the message is clear, sexual harassment is being taken seriously by the Courts and from an employer’s perspective, carefully crafted policies and systems to enforce them are an important risk management tool to stamp out sexual harassment in the workplace.

Travis Schultz
Managing Partner
Schultz Toomey O’Brien Lawyers
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Is Facebook Stalking You?

Facebook LikeWhen Facebook recently announced their new advertising platform called “Atlas”, it confirmed to me what I have always suspected:  that big brother is not a Government agency but a multinational corporation!

While Facebook calls it “people based marketing”, the process of gathering personal details and information on all of us and then selling their knowledge about you and your personal preferences to commercial advertisers is to my way of thinking, legalised stalking.

Facebook already have an enormous amount of our personal information including our name, age, email addresses, things we like, our interests, photographs and friends.  Now, they are also studying and recording how we behave, including the types of stories that we like to read, websites we visit and the things that we “like”.

Now, it seems that where we log on from a mobile device, Facebook has been able to link our phones and their unique identification number to our Facebook accounts so that whenever we use that device, Facebook know what we are looking at online and therefore, what interests us.  They are now storing that information so as to allow third parties to buy that knowledge and specifically target their advertising through the website based on Facebook’s data.

Whilst the economics of it make perfect sense, is it just me who is uncomfortable with the fact that every time I use my computer, phone or ipad, someone out there is gathering information on me, my interests and what I like to read?  If you or I gathered this type of data on others, I’m sure we’d be accused of stalking!

Travis Schultz
Managing Partner
Schultz Toomey O’Brien Lawyers
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Tree Disputes Require Body Corporate Sanction

Neighbourhood DisputesThe introduction of the Neighbourhood Disputes (Dividing Fences and Trees) Act a few short years ago has resulted in an explosion in claims being brought in the Queensland Civil and Administrative Tribunal (QCAT) as a result of property owners seeking orders requiring their neighbour to reduce the height, or remove trees entirely, so as to restore a view that once existed.

The legislation allows the “registered owner” or “occupier” of “land” to make an application for orders regarding trees, but until now it has been uncertain whether the owner of a unit is entitled to make an application to QCAT to obtain orders requiring a neighbouring property to remove trees.  Recently, however, in Brown & Anor v Wallace [2014] QCAT 461, Member Hughes of QCAT ruled that owners of a unit in a block of apartments did not have standing to make an application because they were not the “owner” of adjoining land.  In refusing to deal with the application, Member Hughes found that it would be only the Body Corporate who had the legal standing to bring such an application and accordingly, the merits of the claim were not even considered.  As a result, the applicants never had their complaints regarding a clump of bamboo on the neighbour’s property heard!

So if you’re an owner or occupier of a unit in a strata titled property, any concerns regarding a neighbour’s trees are something that need to be taken up with the Body Corporate, rather than your neighbour directly.

Travis Schultz
Managing Partner
Schultz Toomey O’Brien Lawyers
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Developers Liable for Agents Misrepresentation

DevelopmentDisputes between developers and purchasers of “off the plan” units are relatively common but with carefully crafted contractual provisions in lengthy and complicated contracts, the odds are generally stacked well and truly in favour of the developer.

So, it was somewhat of a rare success for an off the plan purchaser, when the Brisbane District Court recently found in favour of a New Zealand couple who had signed up to buy a two bedroom Hilton Surfers Paradise apartment for $930,000.00 “off the plan”.

The New Zealand couple had been holidaying on the Gold Coast when a sales agent convinced them to put down a $5,000.00 deposit to secure what was said to be the “last two bedroom apartment available at that price” in the particular tower.  The agent represented that the property would be worth $1.1 million once the building had been completed and that it would be able to achieve rental returns of about $1,000.00 per night at 80% occupancy.

As it turned out, however, when the New Zealand couple did an inspection of the unit after construction but prior to settlement, they realised that the property was never going to be worth what the agent had represented and similarly, that it would never be able to achieve the rental returns promised.

The purchasers refused to settle and were duly sued by the developer who, by that point in time, had re-sold the unit for only $620,000.00 a year later and had achieved about $3,900.00 in rental income over that period.

In handing down his decision, Judge McGill in the Brisbane District Court found that there had been misleading and deceptive conduct on the part of the agent and that this was something for which the developer was liable.  His Honour thought that despite the contractual terms, they could not take the benefit of the misconduct as that would be contrary to the intention of the consumer protection legislation.

For builders, developers and project managers, the decision highlights how important it is to ensure that anyone selling your product sticks strictly to the script!

Travis Schultz
Managing Partner
Schultz Toomey O’Brien
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Parents charged after death of baby

The parent’s of a nine-month old baby, who died after being left in her cot for 16 hours, have been charged with neglect. The 21 year old parents, who also have a two year old daughter, put their baby Avarice to bed at 8.30pm on Saturday night and didn’t check on her until 12.30pm on Sunday when they found her dead. They also neglected to take Avarice to the doctor for seven months, even though they knew she had breathing problems. You can read more about this on


Dividing property

shutterstock_150556397If your relationship breaks down, you may need to divide your property which includes yours assets (being things you own), liabilities (money you owe) and consider who gets what property.

Coming to an agreement about property is great, however seeking legal and financial advice is also recommended to ensure everything is settled. Most cases the law says it is favourable to resolve a dispute before having to go to court. If a decision cannot be made and the dispute cannot be resolved then you should seek assistance from family services.

We are here to help if you need assistance. Call our family lawyers today on 1300 STOLAW or visit our website

Why do I need CTP insurance?

CTP InsuranceCompulsory Third Party (CTP) Insurance is required in Queensland by law, and will assist you in the event that you may be involved in a car accident. You can choose whoever you want your CTP provider to be and can change at any time. CTP insurance will cover you for compensation claims that could be made by another party involved in the accident.  It is important to seek legal assistance if:

  • there is a dispute about damage to property cause by a car accident
  • about who was at fault
  • going to court because you cannot reach an agreement with the others involved
  • you are disputing your claim with your insurer

Tips for driving – all road conditions

FiresDriving around bushfires

  • If there is a bushfire, avoid travelling where they are burning and only drive if it is a last resort.
  • If possible, always u-turn and drive to safety.
  • Turn on your headlights and hazard lights.
  • To prevent smoke coming into contact with yourself and passengers close all air vents and windows.

Driving in wet conditions

  • Check that you have good tyre trend.
  • Slow down to the weather conditions.
  • Allow plenty of distance between you and the car in front. It is recommended that you double your distance. This allows for greater reaction and braking time.
  • Take alternative roads if they are unsealed or postpone your trip.
  • Check road conditions on the 13 19 40 website, with local Police or RACQ.
  • Turn your lights on so others can see you on the road.

Driving in sandy conditions

  • Use a 4WD that is built to handle off road conditions.
  • Deflate the tyres.
  • Carry an air pump, jack and shovel.

Driving in dusty conditions

  • Don’t take any risks, so stop and wait for dust to settle.
  • Turn on your lights to warn others you are on the road.


What is Bankruptcy?

BankruptcyBankruptcy is a legal process when a person cannot repay their debts to creditors. A bankruptcy case may be heard in a Federal Court or Federal Circuit Court but most are heard in the Federal Circuit Court.

The court will declare someone bankrupt if the creditor can prove that that person has committed an act of bankruptcy under the Bankruptcy Act.

Failing to follow the instructions set out in a bankruptcy notice is the most common act of bankruptcy. The main instruction in a bankruptcy notice is that the person pays an amount of a judgement debt in the time specified in the notice.

If you disagree to being made bankrupt then you must complete some forms and file them with the court three days before the hearing.

In an article published on states that “the number of bankruptcies in Australia has risen in the September quarter by about 13 per cent to 4390”.

For further information about bankruptcy, please contact our lawyers today. 1300 STOLAW or visit our website