Court

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GUEST OBSERVATION
In the past, the courts were ideal breeding grounds for spreading disease. In what became known as the “Black Assize”, a deadly fever that swept through prisons and courts in England in 1586, 11 of 12 jurors in one trial died. So did a number of judges and constables.
In the current coronavirus pandemic, Australian courts are taking no chances, with <a href="http://www.supremecourt.justice.nsw.gov.au/Documents/Home%20Page/Announcements/Covid-19,%20Jury%20Trials,%2015%20March%202020.pdf">NSW</a>, <a href="https://www.urban.com.au/property-observer">Victoria</a> and other states announcing there will be no new jury trials until further notice.
But many courts are rapidly <a href="https://www.theage.com.au/national/victoria/courts-look-to-remote-technology-amid-virus-20200320-p54c85">increasing</a> the use of video for other essential hearings. States and territories are also developing <a href="https://www.courts.act.gov.au/about-the-courts/news/response-to-the-covid-19-virus">new protocols</a> for how to use video in their courtrooms.
In a sense, the courts have been preparing for an outbreak like this for some time. Witnesses and defendants routinely appear in court via video link, as do judicial officers in Northern Territory and South Australia courts. Tribunals have been using video for even longer.
Our research, however, suggests that attempts to translate courtroom interactions to a video-mediated process do not always work. Introducing monitors into the courtroom requires a reimagining of courtroom spaces, social cues, symbols and performances.
Does appearing remotely hurt defendants?
In the case of vulnerable witnesses like sexual assault victims and children, there is little to no evidence that testimony via video (from a special room located in the court building) impacts a jury’s verdict, though users themselves report challenges with such a set-up.
In one of our studies, we <a href="https://researchdirect.westernsydney.edu.au/islandora/object/uws:51755/">simulated</a> a criminal trial in which mock jurors were randomly assigned to different configurations, including:
<ul>
<li>
a defendant sitting in the dock in the courtroom,
</li>
<li>
a defendant sitting beside their lawyer in the courtroom,
</li>
<li>
a defendant appearing remotely on their own (as they would in most standard remote hearings),
</li>
<li>
or a defendant appearing with their lawyer in a video hearing, with the prosecutor also appearing on video.
</li>
</ul>
We found defendants appearing via video were no more likely to be found guilty than if they were sitting beside their lawyers in court.
However, if the defendant was isolated in a dock – the normal situation in most courts – he was significantly more likely to be considered guilty. It seems that <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/jols.12033">isolation in the dock</a> is worse for defendants than isolation on a screen.
Other research, however, points to different issues with video hearings. In criminal matters, defendants who appear remotely from police custody or jail are more likely to have a <a href="https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7365&amp;context=jclc">higher bail set</a>, <a href="https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/virtual-courts.pdf">plead guilty and receive longer sentences</a> than those who appear in person.
Similarly, asylum seekers appearing remotely from detention are less likely to <a href="https://bailobs.files.wordpress.com/2019/10/systematic-failure-1.pdf">actively participate</a> in their tribunal hearing and more likely to be <a href="https://www.researchgate.net/profile/Ingrid_Eagly/publication/283711668_Remote_Adjudication_in_Immigration/links/5643c27608ae54697fb3e885/Remote-Adjudication-in-Immigration.pdf">deported</a>.
Some defendants have <a href="https://www.propertyobserver.com.au/https://www.bookdepository.com/Pixelated-Prisoner-Carolyn-McKay/9781138085107">reported</a> feeling disorientated, not being able to hear or understand the proceedings and lacking confidence in the fairness of the hearing.
One reason is the design of a remote criminal hearing is inherently imbalanced. The judge, prosecutor and often defence counsel, as well as court staff and members of the public, are all grouped together in the actual courtroom, while the defendant is alone on a screen.
In this lopsided configuration, it may be hard for the defendant to feel as if they are a part of the proceedings or for those in the courtroom to feel the defendant’s presence.
How different designs and protocols can help
In a <a href="https://researchdirect.westernsydney.edu.au/islandora/object/uws:15505">2013</a> study on remote participation in court, we produced a set of guidelines to help address some of the shortcomings of video technology.
These included putting the remote participant in a room with a window or piece of artwork, which helps to reduce their stress levels. Additionally, making introductions at the start of the hearing and ensuring everyone can see and hear can also make people feel more at ease.
Now, with coronavirus making it impossible for physical gatherings of any kind, we need to reimagine courtrooms as a completely virtual space where all parties meet on the same plane.
This has already been piloted in some instances. In 2018, the UK Ministry of Justice trialled the country’s first-ever “video hearings” in the <a href="https://insidehmcts.blog.gov.uk/2018/09/13/video-hearings-put-to-the-test/">tax tribunal</a>, where appellants and representatives from the tax office attended remotely from their home or office.
As an <a href="https://www.gov.uk/government/publications/implementing-video-hearings-party-to-state-a-process-evaluation">independent evaluator</a> of this pilot, we found participants were able to access their hearings easily, understood the proceedings and considered the format to be appropriately formal. This was despite the fact they experienced frequent technical disruptions.
In particular, participants benefited from a “dry run” before the hearing to iron out issues with sound or video, and by the judge making introductions and getting the parties ready at the start.
There were also important design elements that improved the experience for participants, including the introduction of a virtual “waiting room” where they were kept informed about the timing of their case.
The immersive virtual courtroom
In the future, technology will allow us to create an immersive courtroom experience.
Working with a range of justice partners, we developed a <a href="https://courtofthefuture.org/publications/virtual-court-study/">proof of concept</a> of such a virtual courtroom at the Queensland Supreme Court in 2016, showing judges and other stakeholders how could work.
In this set-up, all the participants – the judge, defendant, lawyers, witnesses and jurors – were seated in pods or video suites surrounded by screens with the other participants around them.
Of course, once the world returns to a semblance of normalcy after the pandemic, courts will go back to places where people meet together in a room. But the lessons learned from this time are vital.
We can reimagine courts in a virtual space. Paying attention to key design principles and modifying the way we conduct court rituals on video will allow for effective participation in the courts of the future.<img src="https://counter.theconversation.com/content/134386/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important; text-shadow: none !important;">
<a href="https://theconversation.com/profiles/meredith-rossner-1002103">Meredith Rossner</a>, Professor of Criminology, <a href="https://theconversation.com/institutions/australian-national-university-877">Australian National University</a> and <a href="https://theconversation.com/profiles/david-tait-704895">David Tait</a>, Professor of Justice Research, <a href="https://theconversation.com/institutions/western-sydney-university-1092">Western Sydney University</a>
This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/courts-are-moving-to-video-during-coronavirus-but-research-shows-its-hard-to-get-a-fair-trial-remotely-134386">original article</a>.
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j.ballantyne1990-6AQqhLzZaK

Courts moving to video during COVID-19 but its hard to get a fair trial

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GUEST OBSERVATION 
This week, the Seven Network was <a href="https://www.theguardian.com/media/2019/oct/22/house-rules-channel-seven-ordered-to-pay-compensation-to-reality-show-contestant" target="_blank">found liable</a> to pay a workers’ compensation claim brought by Nicole Prince, one of the contestants on its renovation reality television show, <a href="https://www.imdb.com/title/tt2931524/?ref_=ttep_ep_tt" target="_blank">House Rules</a>.
Prince suffered a major depressive episode, and symptoms consistent with post traumatic stress disorder after she and her partner were cast as the “mean girls” in the 2017 season of the series.
She provided convincing evidence program directors manipulated series content to ensure the pair appeared to be hypercritical of other contestants, drawing not only their hostility, but also an avalanche of hateful social media comment. (Channel Seven <a href="https://www.urban.com.au/property-observer" target="_blank">refused</a> to remove the offensive and often violent posts.)
The case before the <a href="https://www.urban.com.au/property-observer" target="_blank">New South Wales Compensation Commission</a> concerned a statutory claim under the <a href="https://www.legislation.nsw.gov.au/#/view/act/1987/70/whole" target="_blank">Workers Compensation Act 1987 (NSW)</a> for medical expenses.
However it raises the prospect of potential common law claims by other reality TV “stars” who have been treated badly. In the wake of the ruling, fellow reality TV contestants including <a href="https://www.news.com.au/entertainment/tv/reality-tv/mafs-stars-are-considering-legal-action-following-landmark-seven-ruling/news-story/4c547bacaf2195a45ebafb6118da15b9" target="_blank">Tracey Jewel</a> from Married at First Sight have floated the possibility of legal action.
On the books
Prince’s success depended upon a finding she was an employee according to the <a href="https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/independent-contractors-and-employees" target="_blank">common law test</a> that defines employment. The difference between an employee and independent contractor is based on multiple factors and has developed with court decisions over time. To make a determination, courts look at each case and the overall “vibe” of the relationship between the parties.
<a href="https://images.theconversation.com/files/298456/original/file-20191024-119423-u7eksu.png?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=1000&amp;fit=clip"><img src="https://images.theconversation.com/files/298456/original/file-20191024-119423-u7eksu.png?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=237&amp;fit=clip" alt=""></a>
Contestants Fiona Taylor and Nicole Prince (above) were portrayed as villains on the renovation reality show. Channel 7
Employees are also owed duties of care under <a href="https://en.wikipedia.org/wiki/Tort">tort law</a> (which determines civil liability) and <a href="https://en.wikipedia.org/wiki/Contract">contract</a> law (which governs agreements).
An employer who exposes an employee to unnecessary risk of foreseeable harm can also be held liable at common law for damages that can extend to lost earnings. In this case, Prince gave evidence she had been unable to find employment following her disastrous experience on the show.
The prospect for these kinds of claims has long been <a href="https://scholarship.shu.edu/sports_entertainment/vol23/iss1/5/">recognised</a> in the United States, where claims by contestants (or their surviving family members) have been brought against television production companies, although rarely successfully.
In 2017, the US reality dating show Bachelor in Paradise was <a href="https://www.vulture.com/2017/07/bachelor-in-paradise-timeline-of-allegations">suspended</a> for nine days pending allegations of sexual misconduct (later dismissed). Two contestants on the show had engaged in sexual activity under the influence of alcohol.
The scandal <a href="http://www.cardozoaelj.com/2019/02/10/corporate-responsibility-reality-show-participants/">raised the question</a> of when reality TV producers should intervene to protect contestants.
The sticking point in the US cases has been the ability of networks to disclaim employer status in their written contracts with contestants. In Australia, however, employment status cannot be avoided by contractual disclaimers if the court decides the relationship bears the hallmarks of employment, established in a number of <a href="https://www.propertyobserver.com.au/http://eresources.hcourt.gov.au/showCase/2001/HCA/44">High Court cases</a>.
House Rules
The Workers Compensation Commission found Prince was engaged for remuneration ($500 a week plus $500 in allowances) to serve Seven’s business. Seven exerted control over when she worked, what she wore, and which tools she used.
As a featured personality, Prince was an integral part of their business. She was required to provide exclusive service, and give up her normal occupation, during filming.
Finally, Prince bore none of the entrepreneurial risks that would be involved were she engaged in her own business.
These factors were said to “overwhelmingly” indicate she was employed by Seven.
<a href="https://images.theconversation.com/files/298457/original/file-20191024-119405-1h3nnal.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=1000&amp;fit=clip"><img src="https://images.theconversation.com/files/298457/original/file-20191024-119405-1h3nnal.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;fit=clip" alt=""></a>
The original House Rules cast. IMDB
Once it was established she was an employee it was a straightforward matter to find her psychiatric illness was a consequence of her employment. While the Commission made no findings as to fault (statutory Workers Compensation claims are not fault-based), certain observations made in the reasons suggest Prince may well be able to demonstrate the harm she suffered was foreseeable.
The commission <a href="https://www.urban.com.au/property-observer">concluded</a> Seven deliberately manipulated her on-screen portrayal as a nasty person, and was made aware of the torrent of abuse she was receiving as a consequence. It refused to take any steps to ameliorate the harm, no doubt because this kind of conflict and outrage is a calculated part of such shows’ audience appeal.
A legal landmark
This appears to be the first successful claim of this nature in Australia.
It’s possible claims brought by contestants who are physically harmed could be settled by the insurers.
This one, involving the infliction of psychological harm, opens a wide door to more potential claims from contestants who naively expect to be able to present themselves as their usual loveable selves on the television, and end up as social pariahs.
The amount Prince is to be compensated has not yet been determined. But in 2011, a NSW woman who suffered psychiatric illness and was unable work after she had been subjected to workplace bullying and harassment was <a href="https://www.smh.com.au/national/nsw/theres-more-to-reveal-says-orkopoulos-whistleblower-20110602-1fizc">awarded $438,000</a>.
This case also raises some very interesting questions about whether reality TV contestants might bring other claims related to employment. Minimum wages, perhaps? Or superannuation entitlements?
Prior to the Prince decision, the Law Society of NSW published a <a href="https://lsj.com.au/articles/the-legal-implications-of-reality-television/">tongue-in-cheek piece</a> that flagged a shopping list of potential legal claims reality stars might pursue.
Those claims may be far-fetched, but the <a href="https://www.urban.com.au/property-observer">refusal</a> of Seven’s insurer to pay Prince’s compensation claim – which set this legal precedent in motion – has opened up a proverbial can of worms for reality television producers.<img src="https://counter.theconversation.com/content/125801/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important; text-shadow: none !important;">
Joellen Riley Munton, Professor of Law, University of Technology Sydney.
This article is republished from <a href="http://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/new-house-rules-landmark-ruling-could-trigger-other-workers-compensation-claims-from-reality-tv-stars-125801">original article</a>.
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New house rules: landmark ruling could trigger other workers’ compensation claims from reality TV stars

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NSW local councils are being encouraged to work with property owners who have unpaid rates to get on payment plans instead of taking ratepayers to court.
The State’s 128 councils collect more than $4 billion in rates each year which fund roads, footpaths, libraries, parks and swimming pools. 
Council actions to recover debts for unpaid rates make up 30 per cent of Local Court civil matters.
"More than 80 per cent of these claims involved amounts less than $2,000 and a high proportion were settled, paid or written off by councils before judgement,” Attorney General Mark Speakman said.
Local Government Minister Gabrielle Upton and Attorney General Mark Speakman released new Debt Management and Hardship Guidelines and called on all councils in NSW to review their policies and procedures to treat ratepayers more fairly.
The guidelines promote a range of strategies and actions councils can use to help ratepayers pay on time including:
<ul>
<li>·         a ‘stop the clock’ approach to suspend debt recovery, legal action and interest accrual while a ratepayer’s hardship application is awaiting determination or while they are complying with a payment plan;</li>
<li>·         tailored plans and flexible payment options including weekly, fortnightly and monthly instalments;</li>
<li>·         promoting Centrepay as a voluntary way for people to pay their rates directly from their Centrelink payments;</li>
<li>·         discounts to provide incentives for prompt payment in full;</li>
<li>·         greater discounts for pensioners facing hardship;</li>
<li>·         options for ratepayers to receive their rates and pay their rates electronically; and simplified rates notices including information in relevant languages.</li>
</ul>
<a href="https://www.olg.nsw.gov.au/content/debt-management-and-hardship-guidelines-0" target="_blank">The guidelines</a> have been issued by the Office of Local Government under the Local Government Act.
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New debt collection measures as council rate debt recovery make up 30 per cent of NSW Local Court civil matters

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Former LJ Hooker agent Judy Nguyen, charged with misappropriating more than $2 million of customers’ money, is working as an agent in Melbourne.
According to a report in Domain, an advertisement in a local suburban paper advertisement featured Judy Nguyen is an agent at OZ Capital Real Estate in Springvale, due to open next week.
Consumer Affairs Victoria charged her in January with 216 offences. 
Ms Nguyen was originally charged with 216 breaches of the Estate Agents Act. The Office of Public Prosecutions was granted approval to 113 charges, with the case returning to court 19 May for a committal mention.
According to the Domain report, a Consumer Affairs Victoria spokesman said the watchdog was aware of the advertisement regarding Ms Nguyen and “is assessing all options available under existing legislation”, with Oz Capital Real Estate officer Dixon Lim saying he was in discussion with Consumer Affairs Victoria and could not comment further.&gt;
<img src="https://www.urban.com.au/images/2017/04/6/Screen%20Shot%202017-04-07%20at%209.45.26%20AM.png" alt="">
"Last month, Ms Nguyen and her husband Tri Duc (Jospeh) Ngo appeared in the Melbourne Magistrates Court for a committal mention following the collapse of six Melbourne LJ Hooker offices last April," Domain noted.
"Mr Ngo’s lawyer, Erol Cinar, told the court that Mr Ngo was the only one with access to the trust accounts and he was the one who committed the offending. Ms Nguyen would plead not guilty to all charges."
Picture courtesy of Domain.
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jonathanchancellor-7SQnKwU6yx

Court-bound estate agent Judy Nguyen joins new Melbourne agency

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The 1860s home of colonial architect Edmund Blacket will not be overshadowed by a tower block after the NSW Land and Environment Court agreed with the City of Sydney that Vision Land should not get permission.
They proposed a complex including a seven-storey tower on the grounds about 10 metres behind the historic building.
The court found that while Vision Land's plan formally satisfied height and other numerical guidelines, it involved "unacceptable impacts on existing views" of the residence, the Australian Financial Review reported.
The court said the "height and bulk" of the proposed tower would "dominate the existing building and adversely impact on its setting".
It said the development had failed to fit "within the view shadow of the [Bidura House] group so that it does not challenge the legibility of the Bidura House group" when seen from the front.
Blacket, the architect for the University of Sydney and St Andrews Cathedral in Sydney, designed, built and lived in Bidura.
Vision Land's plan to demolish a prison building in brutalist 1980s architectural style in Bidura's backyard were approved.
The court found that there was no heritage reason not to knock down the remand centre behind Bidura because its "late-brutalist" architecture was only of "local significance". 
A spokesman for the City of Sydney said that the Lord Mayor had asked the NSW Heritage Minister Mark Speakman to protect the remand centre. 
It was <a href="/news/nsw/34387-glebe-s-bidura-listed-by-nsw-state-government" target="_blank">listed by the NSW state government in 2014</a>.
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jchancellor-FAypfDUnLy

Bidura House, Glebe court decision

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GUEST OBSERVER 
Until now, residential occupiers have generally been able to take comfort that they were not under an obligation to take remediating action against risks of which they were not, and ought not reasonably have been, aware.  
Two recent decisions of Schultz v McCormack [2015] NSWCA 330 and Chandler v Silwood<a href="https://archive.sclqld.org.au/qjudgment/2016/QSC16-090.pdf"> </a>[2016] QSC 90 arguably elevate the burden upon residential occupiers, and call into question what a residential occupier ought to know, and do.  
In each case the Court was persuaded by expert evidence as to the measureable slip resistance values of steps, and was prepared the find that those results were compelling evidence of the slipperiness of the steps when wet, despite the occupiers’ own evidence that they had not found the steps to be slippery, that no concerns or complaints had been brought to their attention by others, and in the absence of knowledge of prior like incidents.
This article follows on from a publication by Barry.Nilsson.’s Nick Robson entitled <a href="https://www.bnlaw.com.au/page/Events__Publications/Insurance__Health_publications/Insurance__Health_publications__alerts/Insurance_Alerts/Public_Product_Liability/Residential_Occupiers_Found_Liable_Has_the_castle_been_breached/">‘</a>Residential Occupiers: Has the Castle Been Breached?’ published 11 November 2015, regarding the Schultz decision. Since then the occupiers, the McCormacks, have sought and been refused special leave to appeal to the High Court, on a narrow point of statutory construction pertaining to obvious risks.
 
In the intervening period judgment was recently handed down in the factually similar matter of Chandler, a Queensland Supreme Court decision in which Mr Silwood, a residential occupier, was found liable for injuries sustained as a result of a slip and fall by an entrant to his premises.
 
The claim arose out of an accident at Mr Silwood’s home on the night of 9 September 2008.
 
Mrs Chandler and Mr Silwood were the parents of a newborn child, but had separated prior to the date of the incident, and had never resided together. Mrs Chandler had been to Mr Silwood’s house on many occasions, and had arranged to bring the child to Mr Silwood’s premises on the night of the incident.
Upon arriving at Mr Silwood’s residence Mrs Chandler had left her child in her vehicle and walked from the driveway, along a concrete path and toward the house, intending to bring her arrival to Mr Silwood’s attention and summon his assistance to bring in the child, and her belongings. 
As she approached the house she slipped on one of two tiled steps in an alcove outside the front door, and fell, with her right arm extending through a glass panel in the front door, sustaining significant and disabling injuries to her dominant arm. 
Mrs Chandler had consumed some alcohol before attending at Mr Silwood’s residence on the evening of the incident, the amount and effect of which was in dispute. The trial judge ultimately concluded that the plaintiff’s blood alcohol concentration was unlikely to have had any deleterious effect on her capacity. 
Mr Silwood’s evidence was that he had hosed bat droppings from walls above and adjacent to the tiled alcove some five hours earlier, on the afternoon of the incident. He was not able to say whether the tiled steps in the alcove were wet or damp at the time of the incident, as a result of his earlier hosing. He conceded both after the incident and at trial that they may have been, but that he did not know. 
At trial the Court made findings of fact that residual moisture remained on the tiled steps. 
Mr Silwood’s evidence was otherwise that the tiled steps had been in situ when he bought the premises in 2000, that there had been no previous similar incidents or complaints by guests of them being slippery, and that he himself had never found them to be slippery in either wet or dry conditions.
A good Samaritan neighbour came to the assistance of Mrs Chandler after hearing the incident take place, and gave evidence at trial that she did not find the tiles or the steps slippery and could not recall seeing any water on them when she attended only moments after the incident.
Mrs Chandler tendered expert liability evidence comprising a report of Intersafe, which made certain assumptions about the angle of the plaintiff’s approach towards the steps, was critical of the slipperiness of the steps when wet and which indicated that water was unable to drain freely from the steps and was unlikely to have completely evaporated by the time of the plaintiff’s arrival.
There was one external light at the premises which was not illuminated at the time. 
Mrs Chandler alleged that Mr Silwood had breached his duty of care by failing to take steps in circumstances where he knew Mrs Chandler would be attending at his premises on the night of the incident, and where Mr Silwood had created a hazard by earlier hosing the walls adjacent to the tiled alcove and the step.
Her Honour Chief Justice Holmes found that, as a residential occupier, Mr Silwood owed Mrs Chandler a duty to take reasonable care to avoid a foreseeable risk of injury to her, on the premise that she was exercising reasonable care for her own safety. 
In the present situation, the duty included an obligation to take such precautions as a reasonable person in the circumstances would have taken by way of response to the risk of injury posed by the wet and slippery steps.
Despite unchallenged evidence that Mr Silwood had never found the steps to be slippery when wet, nor encountered any problem with them, the Court found that the effect of the moisture on the steps was to produce a significant risk of slipping, and that Mr Silwood had breached his duty of care. 
Her Honour found that a reasonable person in his position was required to take precautions and ought to have “made sure the stairs were dry or at least warned Ms Chandler…that they might be wet and should be taken with care, and would certainly have made sure that the light was on”. 
An appeal has been commenced in the Queensland Court of Appeal on behalf of Mr Silwood challenging a number of the findings at first instance. No date for the hearing of the appeal has been set. It remains to be seen whether the Court of Appeal will overturn the findings at first instance such that residential occupiers in Queensland are still ‘safe as houses’, with respect to defects at their premises of which they were not reasonably on notice, or whether the Castle has again been breached.
<div>
<div id="news-author">Melanie Quixley is partner and Hannah Savins senior associate, Barry. Nilsson Lawyers and can be contacted <a href="https://www.bnlaw.com.au" target="_blank">here</a>.</div>
</div>
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Property 101: The legal burden on residential renters on remediating property risks

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The fraud case against a former South Australian young BRW rich-lister, Cathy Jayne Pearce, has been thrown out by a Queensland Magistrate Court judge because prosecutors weren't ready to start her trial.
Cathy Pearce was there for what was expected to be a three-day trial over an alleged car insurance fraud.
The charge against the 43-year-old, valued at $30,000 or more, dated to 2008.
Judge Julie Ryrie refused a request by the prosecution to adjourn the case because it did not have all of the information required to proceed.
"There is an obligation upon the Crown to prosecute in a timely way," she said.
The former Adelaide real estate identity mentions on her LinkedIn page that she was "considered as the South Australian property princess during the 1990s.
She hit headlines when she was a buyer at The Block series in Manly.
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 Cathy Pearce fraud case thrown out by Queensland judge

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The NSW Fair Trading department will not be appealing the judgement by the magistrate of Blacktown Local Court that dismissed all charges against BresicWhitney Estate Agents Pty Ltd for falsely understating the estimated selling prices when marketing properties in 2014.
After a considerably delayed trial, the dismissal came on a technicality concerning the term ‘employee’ in the Property Stock and Business Agents Act 2002 (the Act).
In this case the ‘operating’ arm of the business was the licence holder and undertook the business of a real estate agent.
A subsidiary company ‘employed’ the employees.
As a result the court found the ‘employees’ who made the statements about price, which were less than the estimated selling price in the agency agreement, were not technically employed by the licensed agent.
"This is not the policy intent of the provisions and in his findings the Magistrate acknowledged the likelihood that the business was structured in a way that would insulate it to some degree against liability in the event of such matters," a department spokesperson advised.
While the prosecution was taken under the old laws, the Government is now committed to legislative repair.
"Consumers can be assured any legal loopholes will be closed," the spokesperson advised.
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No appeal in BresicWhitney underquoting case

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The magistrate of Blacktown Local Court has handed down judgement dismissing all charges against BresicWhitney Estate Agents Pty Ltd for falsely understating the estimated selling prices when marketing properties in 2014.
After a considerably delayed trial, the dismissal came on a technicality concerning the term ‘employee’ in the Property Stock and Business Agents Act 2002 (the Act).
In this case the ‘operating’ arm of the business was the licence holder and undertook the business of a real estate agent.
A subsidiary company ‘employed’ the employees.
As a result the court found the ‘employees’ who made the statements about price, which were less than the estimated selling price in the agency agreement, were not technically employed by the licensed agent.
"This is not the policy intent of the provisions and in his findings the Magistrate acknowledged the likelihood that the business was structured in a way that would insulate it to some degree against liability in the event of such matters," a department spokesperson advised.
While the prosecution was taken under the old laws, the Government is now seeking urgent legal advice.
"Consumers can be assured any legal loopholes will be closed," the spokesperson advised.
No legislative timetable has been yet offered on the prospect of a BresicWhitney amendment.
Fair Trading is also still considering its position in relation to any appeal.
The consumer watchdog advised the more serious price discrepancy alleged was at Double Bay, where the publicly published price guidance reputedly did not match the private agency agreement documentation in the office paperwork.
The Murilla apartment at <a href="https://www.bresicwhitney.com.au/buy/543-545-new-south-head-road-double-bay-9956" target="_blank">62/543-545 New South Head Road</a> had a reported price guide of over $1.5 million last November, but Fair Trading investigations revealed the selling price estimate in the agency agreement at the low end of $1.6 million.
The late 1950s, A.M. Bolot-designed, company title apartment (below) was reported in the Wentworth Courier as sold for $1.79 million (and at $1.76 million by the Sunday Telegraph) through agent Walter Burfitt-Williams. The three bedroom sub-penthouse had 176 square metres space in the eight storey block above Redleaf Pool at the corner of New South Head and Victoria roads. The previous time it was marketed for sale was in 1989.
<img src="/images/2015/03/16/oduble-bay-march-16-one.jpg" alt="" width="764" height="450">
When contacted by The Sunday Telegraph cost of living editor, John Rolfe, before its front page splash, Walter Burfitt-Williams said: “The owner gave us instructions.”
At Surry Hills an 1890s terrace house at <a href="https://www.realestate.com.au/property-house-nsw-surry+hills-118276043" target="_blank">14 Collins Street</a> was advertised last November with a price guide of over $1.05 million, but the estimate in the agency agreement was $1.1 to $1.2 million. The guidance was lifted from $1,025,000 during the marketing campaign.
The two bedroom terrace (below) actually sold for $1.07 million through Nic Krasnostein, so it appears, with benefit of hindsight, he may have been overly ambitious in his pitch to the vendor. It sold to an investor who sought to rent it out at $850 a week. It had previously sold at $610,000 in 2005.
<img src="/images/2015/03/16/surry%20hills%20mar%2016%20one.jpg" alt="">
The prosecutions were only the third in a decade.
“We believe we’ve found evidence to prove the agent has under quoted,” Commissioner Rod Stowe told The Sunday Telegraph who published a Warren cartoon too.
<img src="/images/2015/03/16/cartoon%20march%2016.jpg" alt="">
Source: Sunday Telegraph
Property Observer had previously <a href="/news/38521-sydney-agency-under-fair-trading-investigation-for-underquoting" target="_blank">reported p</a><a href="/news/38521-sydney-agency-under-fair-trading-investigation-for-underquoting" target="_blank">ossible underquoting activity</a> from an undisclosed agency was under investigation.
Operation Balaya, an investigation specifically developed to look at real estate compliance, was launched on agencies operating in the inner-city.
Officers were also checking licences, certificates, current continuing professional development, professional indemnity insurance and current and past financial year qualified audits.
“During its inspections, NSW Fair Trading identified certain information that requires further investigation to establish whether or not representations made by a real estate agency in relation to a number of recent sales were misleading,” the then Minister for Fair Trading Matthew Mason-Cox said.
“Agents who engaged in this illegal practice could face a maximum penalty of $22,000 or depending on the severity of the breaches an agency could have its licence cancelled.”
The NSW Premier Mike Baird elevated the issue into an election policy.
The department has until June 3 to make a decision on any appeal.
“While the prosecution was taken under the old laws, the government is seeking urgent legal advice and consumers can be assured any legal loopholes will be closed,” it said.
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BresicWhitney underquoting loophole let-off to trigger legislative amendment review

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Four landowners in the NSW hamlet of Sutton Forest have taken the South Korean owned Hume Coal to the Land and Environment Court claiming that Hume cannot get onto their properties due to "significant improvements”. 
Under section 31(5) of the Mining Act, significant improvements provide the only ability for landowners in preventing mining companies accessing their properties. 
The court will look at the significant improvements issue that can include items such as stock-proof fences, formed roads and tracks, cropped or improved paddocks, within a 200 metre radius of dwellings and 50 metres around gardens.  One of the Southern Highlands property is an equestrian eventing course of Olympic standard owned by Kathy and John Roche, that has been developed over the past 20 years. 
Kathy and John were recently named the NSW Eventing Volunteers of the Year. 
Kathy was a pharmacist in Moss Vale for many years and John the local doctor, now in his late 80s. The five day hearing is set to start on September 14 with a site visited scheduled for the Golden Vale Road. “This case is precedent setting” said Peter Martin, from <a href="https://www.shcag.com.au/home" target="_blank">SHCAG</a>, who has been accredited as the Roche's representative given their ill-health.
“It is the first time that a group of property owners have got together in NSW to challenge a mining company’s ability to access all of their properties for exploration because of the significant improvements. 
"These properties are all highly developed and we contend that Hume Coal has no right under s31 to come on and drill holes given the inconvenience for landowners, disruption to day-to-day operations and potential significant damage to the properties concerned.” The case follows the recent court action where SHCAG P/L took the Minister for Resources and Energy and Hume Coal to the Land and Environment Court challenging Hume’s latest approval to drill 25 more exploration holes in Sutton Forest. The result of that case is not yet known but the judgement is expected within 4 to 6 weeks. Many of the 25 holes were proposed to be drilled on the properties involved in the second legal case. "This case came about because Hume is forcing all these landowners into arbitration against their will and then refuses to recognise significant improvements on these properties. 
"Hume says that it can have its trucks, drill rigs and utes travelling back and forward through the properties at will as long as they don’t drill their holes in these locations. "They also refuse to test this in court but challenge the landowners to do so which is a form of legal intimidation in our view. 
"We think this is nonsense and is not the intent of the legislation." Peter Martin said.
POSCO aka HUME Coal have been accused by 2GB broadcaster Alan Jones of playing dirty with the community after they demanded inspection access this week to the Roche property despite formal advisory of its inconvenience to the "poor elderly family."
Undergoing treatment for cancer, Kathy Roche, who with husband John have lived at Sutton Forest for 40 years, says the arbitrator's demands have impacted on her health as well as her husband's. 
Alan Jones queried the fairness of the access arbitration process - which he noted ought be suspended pending the court hearing - given emails were being sent at 2am demanding next day access.
 
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