Contempt of Court for the Advanced Medical Institute: When a Court Order is Ignored

Sarah Dennis

Sarah Dennis, Lawyer

I am sure we can all recall, in recent years, the advertisements plastered over billboards for the Advanced Medical Institute (AMI), promoting treatments for premature ejaculation and erectile dysfunction: a nasal spray promising the dream of ‘long lasting, longer sex’ awaited.

About six months ago, the Australian Competition and Consumer Commission (ACCC) was successful in an action against the AMI for breaches of the Trade Practices Act and the Australian Consumer Law.  AMI was slammed by the Federal Court for its sales techniques, which were aimed at exploiting the anxieties of its target market.  In particular, the Court found AMI failed to provide any scientific basis for its treatments, nor did it diagnose the medical cause of the erectile dysfunction of its patients.

In his judgment, Justice Tony North found that by using high-pressure selling techniques, including telling potential patients they would suffer “psychological impotence” if they did not agree to treatment, the AMI failed to meet the standards of proper practice established by the medical profession.

Among the additional relief sought by the ACCC, the Court ordered an injunction against AMI to stop its advertising.

So, what’s happened since?

Well, whether it has been a matter of being uncertain of its legal obligations, or alternatively, flagrantly disregarding the law, AMI has recently been taken back to the Federal Court by the ACCC, this time for contempt of Court.  The ACCC alleges AMI, by continuing to make statements and/or representations through their website, television and radio advertising, has breached the previous Court Order.

One wonders what it may take for AMI to learn its lesson, in circumstances where the Court has previously found it consistently elevated its own commercial self-interests above the welfare of its patients.

The matter will be dealt with by the Federal Court over the coming months.  Watch this space.

Sarah Dennis,
Lawyer
STO Law, part of the Slater and Gordon Group
Ph: (07) 5413 8936
Fax: (07) 5413 8955
Email:  sdennis@slatergordon.com.au

Domestic violence – the real ‘emergency’ facing Australia

Leisa ToomeyThis week has tipped the scales further for serious and immediate intervention for people in domestically violent situations and even as I write this another domestic incident has taken place in Victoria.

Whilst I understand the need for the Government to concentrate on drug related issues such as the ice epidemic, the real emergency is in our homes and those toxic relationships that are tearing apart families and placing untold strain on the resources available to assist people in crisis.

There are many reasons people don’t leave their very, very difficult home circumstances from a misplaced sense of loyalty to fear of the unknown which of course is understandable.  Now more than ever its imperative focus on offering a safe haven without the red tape that currently exists for emergency accommodation.

Domestic violence has become our national emergency, not the budget, and until we as a nation concentrate on supporting families in crisis we will continue to see the tragic types of incidences from this week alone.

As lawyers we are conscious of assessing people in crisis and learn to pick up on what is not being said rather than what is being told to us by our clients who are considering separation or are separating.

It can become abundantly clear that some clients don’t realise they are in the middle of something that can lead to tragic consequences.  We as lawyers can only guide our clients but what would make our role easier in providing advice to clients in these circumstances is a proper government frame work that can offer real hope to break free.

If you need help you can contact DV Connect via 1800 811 811 or if you are in danger now call 000.

Leisa Toomey is a Practice group leader of Schultz Toomey O’Brien Lawyers – part of the Slater & Gordon Group. She is an Accredited Family Law Specialist with the Queensland Law Society

Fake Windows 10 Update Leading to Ransomware Attacks on Small Business

Windows 10 Ransomware

Click on image for a video showing the consequences of running the ransomware program

The Australian Government Department of Communication has put a warning out to small businesses recently that ransomware disguised as an installer of the new Microsoft Windows 10 operating system is encrypting Australian user and business computers costing thousands of dollars to the owner of the infected computer to rectify.

Ransomware is a type of malicious software that blocks or limits access to your computer or files, and demands a ransom be paid to the scammer before they will unlock your computer.  Obviously such ransomware can have a devastating effect to a small business owner who cannot access their business records.

In the recent Microsoft Windows 10 scam the ransomware is downloaded into the user’s computer when they receive an email that claims to be from Microsoft and offers a free upgrade to Windows 10.  If the file attached to this email is run, it will encrypt any important files, including Word documents and photos on the user’s computer.

Unfortunately, it is very common for scammers to attack small business operators with such ransomware because they are acutely aware that small business operators are busy and have fewer resources than larger companies to take advantage of and as such, they take advantage of this weakness.

Business owners should protect themselves by ensuring that they and their staff do not open attachments or click on emails or social media messages from strangers.  The appropriate response is just to simply delete the email to avoid malicious software to be installed onto the computer.  If business owners can afford it, they should check any upgrades with relevant IT professionals rather than attempt to perform IT updates themselves.  If it is not possible for the small business owner to afford the costs associated with an IT professional, it is worthwhile to always keep business computers up to date with anti-virus and anti-spyware software and a good firewall.  It is also worthwhile to only buy computers and anti-virus software from reputable sources and to sign up to the Scam Watch website which is a website developed by the Australian Competition & Consumer Commission for free email alerts on new scams targeting small businesses and consumers.  It is also important to report if it is the case that your computers have been compromised to the Australian Cyber Crime online reporting network and to the ACCC who will actively investigate the report.  From January 2015 to the present the ACCC have been made aware of 437 ransomware attacks.

Peta Yujnovich
Principal Lawyer
STOLaw, part of the Slater and Gordon Group
07 5413 8900

Are you taking adequate steps to protect your customers’ privacy?

In June this year the Australian Privacy Commissioner, Timothy Pilgrim, found that Computer systems software company Adobe had breached the Australian Privacy Act following a cyber attack which compromised the personal information held on a backup system by the company.  The system included the companies customers’ information such as email addresses, encrypted passwords, plain text password hints and encrypted payment card numbers and payment card expiration dates.  The company was penalised heavily for the breach.

With more and more businesses adopting cloud based software to store their clients’ personal information, this case demonstrates the importance of applying sufficiently robust security measures to ensure that customers’ personal information is kept safe.

Generally speaking, most small businesses do  not have an obligation to comply with the Australian Privacy Act 1988 (the Act), however, there are exceptions that small businesses need to be aware of.

All Australian government agencies and businesses with an annual turnover of over $3,000,000.00 will have to comply with the Act.  All other businesses will not have an obligation to comply with the Act unless:

  1. They are a health service provider;
  2. They are trading in personal information, ie; buying or selling a mailing list;
  3. A contractor that provides services under a Commonwealth contract;
  4. A reporting entity for the purposes of the Anti-Money Laundering and Counter Terrorist Act;
  5. An operator of a residential tenancy database;
  6. A credit reporting body;
  7. Businesses that have opted to be covered by the Act.

Those who run businesses that are covered by the Act will have to comply with the Australian Privacy Principles.

The Act protects personal information about individuals handled by the organisation and an organisation governed by the Act will have to follow the National Privacy Principles which set minimum standards for handling customers’ personal information.

The National Privacy Principles cover keeping information secure (in particular using cloud software), paying attention to data quality and accuracy, being open about collection and information handling practices, providing anonymity where possible and protection when transferring personal information overseas.

There are particular rules about handling sensitive information including health information, as well as tax records, Medicare details and the like.  Businesses that are likely to need to comply with the Act should start by reviewing the Australian Government website for the Office of the Australian Information Commissioner.  This website provides a clear starting point regarding the guide to privacy for small business and their requirements they need to comply with the legislation and also outlines the potential penalties for failing to comply, which as the software company Adobe can attest to, can result in hefty fines and penalties.

Peta Yujnovich, Principal Lawyer,
STOLaw part of the Slater and Gordon Group

Neighbours, Friend or Foe?

Peta Yujnovich

Neighbours, right?  Love them or hate them they’re right next door and they’re not going away.

Neighbourhood disputes can erupt over somewhat trivial matters but can cause significant anxiety for those involved especially when the cause of their anxiety lives right next door.

In 2011 the Queensland government amended legislation relating to neighbourhood disputes and created the Neighbourhood Dispute (Dividing Fences and Trees) Act.  This legislation covers disputes between neighbours that relate to dividing fences, trees and boundary issues.

The legislation was recently used by a woman in far north Queensland who made an application to the local Court to have her neighbour remove a tree from their backyard that was causing her significant allergy problems during the 10 weeks per year that the tree flowered.

The woman would suffer allergies so severe that she would lie in a bath full of cold water each night trying to get relief from the symptoms.  She resorted to trying to stay away from her house as much as possible during the 10 weeks that the tree flowered.

Her neighbours were sympathetic to her plight but requested that the Court order that rather than having to remove the tree, which was part of the aesthetics of their backyard, that they simply trim the tree annually to avoid it flowering so heavily.

The Court wasn’t satisfied that this was an appropriate response and considered it would only be a bandaid solution.

The Court was reluctant to make a decision for the removal of the tree but given the severity of her symptoms, the fact that it was affecting her quiet enjoyment of her property and that she was also suffering significant psychological symptoms due to the condition, the Court ordered that her neighbours remove the tree from their property and that they pay the costs associated with doing so.

Courts often face tough decisions when trying to determine an outcome in cases like these as they are often forced to make a decision about which neighbour’s quiet enjoyment of their property should be given greater weight.  In this case, her medical condition brought on by the tree trumped any aesthetic pleasure that was created by it.

Watson and Harloe v Leonardi [2015] QCAT 238 Member Johnston 21/06/2015.

Peta Yujnovich
Senior Associate
Schultz Toomey O’Brien Lawyers, Part of the Slater and Gordon Group
Ph: (07) 5413 8900
Fax: (07) 5413 8958

ADAPTING TO THE CHANGING WORKFORCE IN AUSTRALIA

CommunicationRecently I have been involved in two common law legal cases relating to migrant workers being injured in their workplace while working in Australia.

Relevant in both of these cases was the fact that both injured workers did not speak English and despite this the workers had only been provided general workplace policies and procedures and OHS material from their employer in booklets written in English only.

Since 1945 the Department of Immigration and Border Protection in Australia has facilitated the permanent migration of more than 7 million people from overseas to live in Australia.  Statistics from the Department also show that today, approximately one in four of Australia’s population of more than 22 million people were born overseas.  The percentage of workers in Australia that either cannot speak English or have limited English speaking skills is likely to increase in the future.

Recent studies conducted in the United Kingdom  by the Trades Union Congress show that migrant workers – mostly employed in the agricultural, cleaning, construction, health care, IT and manufacturing sectors, received only basic training, such as short induction sessions, while about a third received no training at all.

The same study found that workers from overseas were likely to work when ill, often more than 60 hours a week, were likely to hide any differences they have with English for fear of losing work and were often harassed or racially vilified by supervisors or co-workers.

Employers have a unique opportunity hiring workers from non-English speaking countries who are often extremely talented, have great work ethics and can be a valuable addition to any workplace.

In doing so, employers have a duty to be aware of any language and related cultural barriers that might impact on workplace communications and take adequate steps to address them to avoid problems in the workplace and, importantly, workplace injuries.

Employers must ensure that they take into consideration the need to ensure that such a worker is appropriately inducted into the workplace.  Employers need to consider ways of ensuring employees are informed and trained, responding to the specific needs of migrant workers to ensure that they are trained in ways that are not a simple tick and flick process but the adoption of non-verbal methods of training such as demonstrations, picture guides and pictorial signs.

Employers should also consider having documents translated into the relevant languages in their workplace, and also think about offering cultural training to make certain their existing managers and staff are equipped to manage multi-cultural teams.

Taking the time to consider the workplace health and safety of migrant workers to ensure that appropriate protocols are put in place to protect their interests will make the workplace safer, make employees safer and put employers in much stronger positions in cases where there are accidents and investigations and or legal actions are undertaken.

Peta Yujnovich
Senior Associate
Schultz Toomey O’Brien Lawyers, Part of the Slater & Gordon Group
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Woolworths Avoids $50,000 Fine For ANZAC Campaign

One of Australia’s supermarket giants, Woolworths, has avoided a fine of $50,000 for using the word ‘Anzac’ without permission. The recent launch of their “fresh in our memories” website was also pulled down as a result of an intervention with Minister for Veteran Affairs Michael Ronaldson.

Social media was flooded with consumer comments, saying that the “company exploited Anzac Day for commercial gain.”

The website allowed people to pay tribute to the Anzacs by using a photo generating program where users could upload a photo of someone who had been affected by war. The Woolworth’s logo and text saying, “Lest We Forget Anzac 1915-2015 Fresh in our memories” was then attached to the photo.

However, according to the Financial Review (afr.com.au), the program was violated with users posting photos of “Adolf Hitler, Tony Abbott, Kevin Rudd and cats” and uploading to Facebook and Twitter, which was not the intention Woolworths had.

“When you’re looking at running bold campaigns like this that involve user-generated content it’s important to research the market and get a feel for what the response is likely to be,” one social media expert, who declined to be named, said.

“With this one we would have spotted potential issues quickly. You’re dealing with highly emotional areas where a commercial body could be perceived as trying to exploit a national day of remembrance.”

The below statement was released on the Woolworth’s Facebook page:

“We regret that our branding on the picture generator has caused offence. This was clearly never our intention,” the statement said. “Like many heritage Australian companies, we were marking our respect for Anzac and our veterans.”

Warning To Insurance Companies To Keep Up With Technology

Car InsuranceInsurance companies need to ensure they are keeping up to date with the latest in technology due to the ever evolving car industry. Those insurance companies who specialise in motor vehicle insurance have been told to look at the future of their policies with the possibility of driverless motor vehicles (DMVs) being the way of the future.

With most motor vehicle policies only covering the individual driver, we could potentially see a shift in liability with the blame put on the manufacturer or software developers due to the driver being separated from the actual vehicle.

Insurance companies could therefore look at amending their policies to a more ‘product’ specific cover.

Russia Bans Memes

MemeRussia has banned memes after the court ruled one of the country’s singers, Valeri Syutkin, had his privacy violated by a particular meme.

The new policy now makes it illegal for a celebrity to be used in a meme if there is no actual association to that celebrity.

According to news.com.au Russia has also outlawed cussing in all forms of media and has banned films that threaten national unity.

Parents Assisting with First Home Buyers Loans

Home LoanThe National Australia Bank has found that first home buyers applying for home loans with the backing of either a family member or friend has increase by 1.9%, lifted from 4.8% in 2010 to 6.7% in 2015.

Family members and friends are assisting first home buyers enter the housing market, due to the competitive market and price growth.

The risk associated with family members or friends assisting with loans, is that they are putting their own assets on the line, for the portion of the loan that have guaranteed.

Angus Gilfillan, NAB’s executive general manager for consumer lending has said “rising house prices and fierce competition from investors had made this option more popular with first home buyer customers.

“It’s getting a lot tougher for first home buyers to enter the market. The rise in house prices has been pretty well-documented, particularly in Melbourne and Sydney, where prices have increased by circa 50 per cent since 2008,” he said.

The Australian Securities and Investments Commission’s MoneySmart website has asked parents and friends to think carefully before guaranteeing a loan, especially in the instance where the child/friend may not be able to make their repayments. Can you afford to make the repayments on their behalf?

“The risk associated with providing a guarantee is something that we talk to guarantors about and suggest that they get external advice first,” Mr Gilfillan said.