Before planning your family’s summer road trip and booking your car in for its pre-holiday service, you should be aware of new road laws that came into effect on 9 November.

Victorian Roads and Ports Minister Tim Pallas announced various changes to the Road Safety Rules “to improve our road network, reduce the road toll and provide important safety benefits for Victorian families”. The changes apply to all road users including motorcyclists, cyclists, skateboarders and roller bladers.
Scooters, skateboards and roller blades are all covered in the Road Safety Rules as “Wheeled Recreational Devices” (WRDs).
WRDs must not be used on the road at night (except for crossing at an intersection) and they must not be towed or be allowed to travel so close to a vehicle as to “slipstream”. Scooter riders are required to wear an approved bicycle helmet.
Included in the Road Safety Rules there are rules that enhance road sharing with trams and cyclists as well as new rules for car drivers changing lanes on divided roads.
The new rules target mobile phone use and visual display units (including GPS and other navigational devices) in vehicles, as well as ensuring safe travel for children by requiring the use of age appropriate child restraints and booster seats.
In relation to child safety, infants under six months of age need to be restrained in an approved, properly fastened and adjusted rear facing child restraint.
Children between six months and under four years need to be similarly restrained or restrained in a forward facing child restraint with in-built harness, and children between four and seven years of age should be similarly restrained or restrained in an approved booster seat that is properly positioned and fastened.
The new rules specify where children should be seated in the car. Notably, children under four years must not travel in the front seat of a vehicle that has two or more rows of seats. Similarly, children between four and six years of age can only travel in the front seat if they are properly restrained and the other seats are all being used by children under seven.
A child under the age of eight is not allowed to be a pillion passenger on a motorbike, but can be a passenger in a side car. Similarly, animals are not permitted to travel between the rider and the handlebars of a motorbike.
The new Road Safety Rules contribute to the Victorian government’s road safety strategy Arrive Alive 2008-2017 that aims to reduce serious road injuries and deaths by 30 per cent by 2017.

Visit the VicRoads website (www.vicroads.vic.gov.au/Home/) to find out more about these new Road Safety Rules.

More information
From the LIV Bookshop, Traffic Offences and Accidents (edn 4), by Douglas Brown, $138.

Carbon footprints and the economics of mitigating climate change are predicted to become as important for business as balance sheets and the bottom line, as world leaders discuss introducing laws to force companies to become more environmentally friendly.

Australian Prime Minister Kevin Rudd said he expected a raft of changes to climate change policy in the short-term, after the upcoming United Nations Climate Change Conference, to be held in Copenhagen in December this year. He said, with this in mind, that companies of every size need to start considering what they can do to improve their carbon footprint.
In September, a medium-sized organisation, the Law Institute of Victoria, launched the Green Practice Guide which outlines steps firms and practitioners can take to improve environmental outcomes. Guide spokesperson Melanie Szydzik said the advice could be applied to any workplace.
Tips include switching computers and lights off when not in use and installing fluorescent and halogen lights, saving water by reducing use of dishwashers, purchasing sustainable office products, reusing paper, printing double-sided, recycling and reducing catering to minimise waste.
Embracing technology is another way to reduce environmental impact. For example, car pooling, cycling to work and using teleconferencing and video-conferencing instead of travelling to meetings all help to reduce the size of our carbon footprint. A recent study by the UK-based Managing Partners’ Forum found travel accounted for 90 per cent of the carbon output of some professional firms, primarily due to air travel. Many companies already offer employees incentives to improve their personal carbon footprint which, in turn, improves the companies’. Larger projects undertaken by some businesses include retrofitting offices to achieve green ratings and installing solar panels and water saving devices. A simple audit of your workplace will identify areas of waste and areas of potential change. Deakin University workplace and company law lecturer Victoria Lambropoulos predicts collective bargaining agreements will soon encourage the inclusion of clauses that require employees to participate in recycling strategies and other green practices in the workplace.

For more information, see www.epa.vic.gov.au/bus or to conduct your own audit, see www.epa.vic.gov.au/ecologicalfootprint/calculators.

More information
From the LIV Bookshop: Guide to Environmental Performance Clauses and Greening Make Good Australia, RICS Oceania, $35 each

The Victorian Government during 2009 introduced a number of changes to the Associations Incorporation Act 1981. A number of the amendments took effect from April 2009 however, a number of other changes are not expected to come into effect until late 2011.

The changes that took effect from April 2009 include the following:-

• All former officeholders or member of an incorporated association are required to return any association documents that they hold to the association's committee within 28 days after they cease to hold office or membership.
• Any notice of a proposed special resolution must set out in the notice all details of the proposed special resolution. Special resolutions certainly still require 21 days notice.
• The registrar of incorporated associations has now been given additional power to determine the validity of any document submitted by an incorporated association if the registrar is suspicious that he document is not validly issued by the association. This will include the registrar not excepting rule changes reportedly passed by a special resolution.
• An incorporated association can only remove its order to now by resolution passed at a general meeting on notice. An auditor in response to the notice can make written representations to the secretary and request that a copy of those representations be circulated to all members eligible to vote at the general meeting.
• A number of matters can now be referred to the Magistrates Court for determination including an application by amender to restrain an association for acting ultra vires. Also, the registrar of associations can make various applications in the Magistrates Court if he is concerned about any of the affairs of the association or its financial position. Members can also seek protection of the Magistrates Court against "oppression" or other forms of discrimination, such applications can be made up to 6 months after a member has ceased to be a member.
• In certain circumstances, an association can now apply to the registrar for voluntary cancellation of its incorporation.

Some of the above implemented changes continue the legislative process of applying more of the rules typical of companies upon incorporated associations. The parts of the Act not due to take effect until December 2011 relate to proposed removal of the office of "Public Officer" and its role to be incorporated in to the role of the "Secretary". In addition, there are amendments to the model rules of incorporated associations which will require an association to keep accurate minutes of General Meetings and committee meetings and allow for members to have access to those minutes.

Three audit partners from the accounting firm KPMG have accepted voluntary suspension from their practices registered auditors as the fall out from the collapse of the Westpoint Group continues.

The ASIC had been investigating three partners of KPMG's Perth Office, Brett Fullarton, Robert Kelly and Jonathan Robinson, who had been involved in auditing the affairs of the Westpoint Group of companies. Following the collapse of Westpoint, the ASIC had concerns in respect to the audits that were performed by the KPMG partners for the financial years ended 30 January 2002, 2003 and 2004. The ASIC formed the view that the audits were inadequate and failed to comply with the necessary prescribed standards. The Westpoint Group collapsed in January 2006 with losses of more than $300 million. In the subsequent liquidation, it has been estimated that investors in Westpoint financial products were owed nearly $400 million when the group collapsed and that only approximately $64 million will be available for distribution to investors. The ASIC's concerns arise from the apparent clean bill of health given to Westpoint by its auditors KPMG.

Among some of ASIC's concerns in relation to the audits were the failure of the auditors to obtain sufficient evidence with respect to cash flow forecasts on particular projects, failing to adequately consider the appropriateness of reported profit and recording of management fee revenue, and failure to report material breaches including late payment of distributions to members, late lodgement of financial statements and auditors reports and the failure of the compliance officer to produce requested necessary information.

Not withstanding ASIC's concerns and the acceptance by the auditors of enforceable undertakings not to practices registered auditors for various periods, the 3 partners of KPMG are reported to have "acknowledged the ASIC's concerns but do not accept them." Certainly, the investigation and concerns of the ASIC in the Westpoint matter continues the pattern of the auditors of companies involved in large corporate collapses being found by investigators not to have acted with sufficient care in completing their audits in giving the company a clean bill of health.

Belgian chocolate manufacturer Guylian recently lost its appeal against the Registrar of Trade Marks to register and protect its seahorse shape in its selection of marine-shaped chocolates.
Guylian’s chocolates are sold in more than 132 countries, including Australia, and its marine-shaped chocolates are its top confectionery brand.
Guylian had already secured an international registration for its seahorse shape and had hoped to extend trade mark protection to Australia. However, in Chocolaterie Guylian NV v Registrar of Trade Marks [2009] FCA 891 (18 August 2009), the Federal Court of Australia confirmed the decision of the Registrar of Trade Marks to refuse registration of Guylian’s seahorse shape as a trade mark on the basis that the shape was not capable of distinguishing Guylian’s goods.
Justice Sundberg of the Federal Court had to determine whether Guylian’s seahorse shape was distinctive enough and able to distinguish its chocolates under the Trade Marks Act 1995 (Cth) (TMA).
Guylian argued that its seahorse shape was a distinctive one with special “fanciful” features and not just an ordinary seahorse shape. As such, it came within s41(3) of the TMA and should be registered.
It relied on a previously successful case where registration of a bug shape by candy manufacturers was upheld on the basis that the shape was a “concocted imaginary shape”.
Justice Sundberg disagreed, deciding that the Guylian seahorse was a relatively ordinary one with no distinctive features and, given that other chocolate manufacturers might want to use the seahorse shape in a marine theme for their chocolates, refused to consider it distinctive enough to warrant registration.
Guylian then tried to argue that its seahorse shape was a distinguishing feature of Guylian’s goods and should be registered under s41(5) of the TMA.
Guylian referred to its seahorse shaped boxes, widespread marketing and advertising of the seahorse shape, including consumer survey results showing shape and brand recognition, and even sponsorship of specific conservation research, Project Seahorse.
Justice Sundberg examined all of this evidence and concluded that, while it showed public recognition of the seahorse shape as part of Guylian’s brand, Guylian had not established that the seahorse shape distinguished its chocolates from its competitors.
The case demonstrates how difficult it is to obtain trade mark registration for shapes, even when there is evidence of substantial use and consumer recognition of them within a particular brand.

Prospective purchasers are often so caught up in the excitement of purchasing their new home that they can fail to properly consider their liability for all hidden costs and adjustments. One of these hidden nasties is land tax.
Land tax is assessed as at 31 December each year. Liability is determined on the basis of who owns the land at the time. Nearly all contracts of sale provide that an adjustment of this liability will be made as at the date of settlement of the sale.
Ideally a land tax clearance certificate is attached to the s32 (vendor’s statement) which shows not only the vendor’s total liability for land tax in a given year but also the land tax liability on the basis of the property being the only property owned by the vendor. This latter assessment is usually the amount that is adjusted.
Quite frequently, however, the s32 does not include a land tax clearance certificate so that liability for land tax remains unclear.
The ability under the Sale of Land Act 1962 to provide a statement to the effect that outgoings do not exceed a certain amount means that the land tax liability may not be specifically disclosed to a prospective purchaser. This can lead to significant problems.
One problem arises when the purchaser is purchasing the property as their principal place of residence. Usually there would be an exemption from land tax if the property is the owner’s principal place of residence. Unless the property is tenanted, a purchaser usually assumes that the property is the vendor’s principal place of residence. Often it is, but it is still prudent to check.
Similarly, there is an adjustment to be made if the owner is holding the property on trust. The State Revenue Office imposes a surcharge for property held in a trust and this surcharge is also adjustable.
Purchasing adjoining or multiple properties from a vendor under one contract can also trap the unwary. The land tax clearance certificate provides for single ownership calculations. The contract of sale (LIV copyright version) provides that for adjustment purposes the land is treated as the only land of which the vendor is owner (as defined in the Land Tax Act 2005) which means that land tax is adjusted on the aggregate value of the total land purchased, not each individual lot, on the single ownership basis.
Timing also affects land tax liability. Contracts that are entered into before 31 December with settlement due in the new year can hide nasties at settlement time.
Quite often a vendor will hold the property as their place of principal residence and therefore it is not liable to land tax. However, after sale but before 31 December the vendor may acquire another property as their principal place of residence, thereby rendering the subject property liable to land tax assessment. If the property is a substantial one, a significant amount of land tax may apply.
Usually settlement will take place in the early part of the year, rendering the unsuspecting purchaser liable for the bulk of this tax.
As a final warning, remember that as purchaser you are not entitled to the benefit of any concessions to which the vendor may be eligible, even if you are also entitled to a concession.
The message is clear – always be aware of the full costs associated with buying your dream home. A lawyer can assist you in identifying any potential hidden costs and liabilities. Getting advice early may prove to be a wise investment.

For a number of years, the authority with respect to late amendments of pleadings in court proceedings was the High Court's decision of JL Holdings. In essence, the High Court in that case had ruled that the needs of justice always out weighed court processes and therefore late amendments in cases should be allowed with any prejudice suffered by the other side able to be compensated through costs orders. However, JL Holdings in recent years has undergone attacks as good authority, as part of the increased emphasis in the court system on "fast track" procedures.

The end for JL Holdings as an authority has probably been finally realised by the High Court's decision in the case of Aon Risk Services vs Australian National University [2009] HCA 27. In that case, the ANU brought proceedings in the ACT Supreme Court claiming indemnity from 3 insurers in relation to property destroyed by 2003 bushfires. Aon was ANU's insurance broker and was joined as a defendant with ANU alleging that Aon had acted negligently in failing to renew insurance over some parts of its property. ANU settled with the three insurers at mediation and after resolving the three original claims, then applied to the trial judge after the trial had commenced for an adjournment on the basis that information received during mediation made it necessary for ANU to amend their statement of claim against Aon. The trial judge granted the adjournment. Aon appealed the adjournment to the court of appeal but failed. Aon then sought a further appeal in the High Court of Australia.

The High Court rejected the approach in JL Holdings and refused ANU being given an adjournment and substantially amending its statement of claim against Aon. In the court's view, adjourning the case and allowing a late amendment of substance by ANU was contrary to the case management objectives set out in the rules of the ACT Supreme Court's rules of court. All 7 High Court judges were critical of JL Holdings and regarded speed and efficiency as essential to the resolution of cases and that limits must be placed on amendments whenever delay and cost were concerned. The judges did not think an order for indemnity costs may undo prejudice caused by a late amendment in all cases. In the ANU case it was difficult to see how an order for penalty costs was sufficient compensation to Aon where it would be required effectively to defend a substantially new claim.

In a separate judgement, Chief Justice French pointed out that JL Holdings was factually a very different case, where an application for amendment was made because a material fact had only recently been discovered, and the application was made before a hearing date was fixed and once it was fixed, the 6 months between application and hearing date meant the hearing date was not in peril. However, in another separate judgement, Justice Heydon thought that in jurisdictions with similar provisions to the ACT court rules, JL Holdings had ceased to be of authority, critisizing the culture and mentality it created. Certainly, judges are increasingly impatient with lawyers who seek to make late changes or ferness pleadings at the commencement of or during a trial. The court's attitude collectively has become more hard nosed in the sense of seeking to enforce rules of procedure designed to make cases flow more quickly. Certainly, this has been complemented by a less pedantic attitude towards the way a case has been pleaded at trial when it suits. However, parties and lawyers involved in litigation know that it is often very difficult to draw consistency from all judicial pronouncements.

The Federal Government's substantial changes to the industrial relations system has included the introduction of a "modern awards system" which came into force on 1 January 2010. Thousands of Federal and State awards have been simplified into approximately 130 new national awards, some of which have begun and others will be phased in during 2010.

The new system of modern awards is based upon the 10 "national employment standards". Under the standards, 38 hours per week remains the standard maximum for full time employees and any further hours are defined as "reasonable additional hours" and an employee becomes entitled to receive overtime payments, penalty rates or other compensation.

Each modern award must also contain an award flexibility clause which specify what terms of employment can be changed by agreement between en employer and an employee. Terms are limited to setting when work is undertaken, overtime and penalty rates, leave loading and other allowances. Any changes must be in writing and cannot disadvantage the employee compared to the basic award conditions. There is a right of employees to request flexible working arrangements where they are parents with children under school age and have a minimum of 12 months continuous service. Any request by an employee must be answered in writing within 21 days and any refusal must specify "reasonable business grounds". This is a term which is expected to be the subject of future guidance by Fair Work Australia.

Where there are differences between States such as public holidays and long service leave, the standards provide for applicable State awards to continue in force until such time as the standards have been nationalised by the Federal Government obtaining the agreement of all of the States. The standards however, continue to apply penalty rates for working on public holidays. Most of the remaining standards carry over the "Australian Fair Pay and Conditions Standard" laid out under the previous government's now much maligned "Work Choices" system.

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