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Category: Articles

A Section 10 – What is it and how do I get one?

Posted on by dev_hornet

If you have been charged with an offence, you might have the option of seeking a section 10 dismissal. Whether this is an option for you will depend on factors like the seriousness of the charge, whether you have a criminal history and the circumstances surrounding the offending.

A ‘section 10’ refers to section 10 of the Crimes (Sentencing Procedure) Act 1999, which allows for the dismissal of charges if you plead guilty or are found guilty of an offence. There are 3 categories of section 10 dismissals available.

Section 10(1)(a)

Under section 10(1)(a), the Court has the ability to order that your charge be dismissed and that a criminal conviction is not recorded against you. This is a ‘no strings attached’ outcome and you do not have to comply with any conditions.

Section 10(1)(b)

This section allows the Court to dismiss your charge based on certain conditions that you must comply with for a specified period of time or risk having the section 10 revoked. It works effectively as a good behaviour bond, and the time imposed by the Court cannot exceed 2 years.

Section 10(1)(c)

Under this section, the Court can order that your charge is dismissed on the condition that you enter into an agreement to participate in an intervention program and comply with the intervention plan developed from the program.

It may seem daunting to have to plead guilty in order to absolve your criminal charge, and you may be worried that there will still be a record of the offence in your criminal history. This is where sections 8 and 12 of the Criminal Records Act 1991 (‘the Act’) come in.

Will a Section 10 show up on my criminal record?

Section 8 provides that upon a Court finding you guilty of an offence, but not proceeding to sentence you, the conviction is spent, meaning that the offence is void. This operates differently depending on which category of section 10 you are given.

If the Court grants you a section 10(1)(a), the offence is void immediately upon the Court making the order. If you are granted either a section 10(1)(b) or 10(1)(c), then your offence becomes void upon the completion of the bond period or completion of the intervention program.

Once your conviction is spent, it will not be visible on your criminal record.

There are exceptions to section 8 for certain offences, including sexual offences and offences against corporate bodies. If you are worried that section 8 may not apply to you, contact us and we can assess your case and provide you with the best advice to move forward.

Do I have to disclose a Section 10?

Section 12 of the Act, then provides that you are not required to disclose to any person any details about the spent conviction. It also means that if there is ever a question of your criminal history, the spent conviction is not relevant.

However, there are certain circumstances in which section 12 does not apply. Those include if you are applying for employment or appointment as a judge, magistrate, police officer, staff member of Corrective Services NSW, or the Office of the Sheriff, Department of Communities and Justice, teacher, or teacher’s aide. It also does not apply if you are applying for clearance to work with children or people covered by the National Disability Insurance Scheme. If the offence related to arson, and you are applying for a position to fight fires, section 12 will not apply.

Additionally, if you are applying for admission as a lawyer, section 12 does not apply to you. Similarly it does not apply if you are seeking employment as a Department of Public Prosecutions officer, or Crown Prosecutor. There may be other exceptions contained in the legislation. Contact us for more information.

If you find yourself before a court again, the Court will be able to consider the spent conviction. However, the Court is required to take reasonable steps to ensure that evidence of the spent conviction is not made public.

So how do I get a Section 10?

Obtaining a section 10 is not an easy feat. It often requires an experienced solicitor to know how to present your case to the Court in the best possible light. At Auslex Law Group, our experienced solicitors and barristers have been successful in obtaining section 10 orders on multiple occasions, even when the odds have been stacked against us. If you would like to find out if a section 10 is an option for you, contact us.

We Are Here to Help

This article is informational only and not legal advice. The information may not be tailored to you, and you should not rely on it as a substitute for legal advice. Contact us for tailored advice for your specific situation. If you need assistance, please contact our firm to book a free (without obligation) 30-minute phone consultation on 1300 999 099. Or email us at clerk@auslex.com.au

What to do after someone passes away? – A Guideline for Executors

Posted on by dev_hornet

The loss of a loved one is a difficult and emotional time for any person. As an Executor, you have an important role in administering the deceased person’s Estate, but it is a role we are here to help you with.

How to Pay for Your Loved One’s Funeral?

It is important to check if your loved one held a funeral plan, funeral insurance or a life insurance policy. If not, then there are two main options available to pay for your loved one’s funeral.

The first option is to take the tax invoice from the funeral parlour to the deceased person’s bank and organise payment from their account. The bank may also request a copy of the death certificate or Will. The second option is to pay the funeral account with your own money, before taking the tax receipt to the deceased person’s bank for reimbursement.

It is not a formal role of an Executor to organise the payment of a loved one’s funeral expenses, but it is likely to be a further personal responsibility.

Where to Locate Your Loved One’s Will?

When made Executor, you may have been told where the deceased person’s original Will was to be kept, or you may hold a copy stating where the original is. It is likely that the Will is held at a solicitor’s office or even their bank.

If the deceased person’s original Will is not held by us, you can organise for the holder to send us the original so we may assist you in your role as Executor.

How to begin Administering your Loved One’s Estate?

Following the funeral, it will now be time to begin your Executor duties. As an Executor it is your legal responsibility to administer the deceased person’s Estate, which includes; preserving and collecting assets, paying any debts and then distributing assets as per your loved one’s wishes.

Firstly, make a list and collect all documents related to the assets or liabilities of the deceased. Common assets and liabilities will include real estate, bank accounts, shares, aged care deposits, motor vehicles , loans or mortgages.

At your first appointment, bring in this information to allow us to begin helping you to administer the Estate. We will write to all assetholders on your behalf to notify them of your loved one’s passing and asking for the requirements to release their assets.

What Happens Next? Collecting Assets of the Estate.

It is likely that a Grant of Probate will be required to collect your loved one’s assets. A Grant of Probate is a legal document that gives authority to you as an Executor to manage the Estate in accordance with the Will. It is our role as solicitor of the Estate to organise the Probate application on your behalf.

When the Grant of Probate is received, we will write to the asset holders and direct them to release the deceased person’s assets to be held in Trust and organise the payment of any liabilities.

Distributing and Finalising the Estate.

Around the time of the Probate application, you may wish to communicate to the beneficiaries in a Will that their bequest will be upcoming. Once all Estate assets are collected, then the distribution in accordance with the Will may be organised. At this point, your responsibilities as an Executor will now have been fulfilled and the Estate will be finalised.

We Are Here to Help

This article is informational only and not legal advice. The information may not be tailored to you, and you should not rely on it as a substitute for legal advice. Contact us for tailored advice for your specific situation. If you need assistance, please contact our firm to book a free (without obligation) 30-minute phone consultation on 1300 999 099. Or email us at clerk@auslex.com.au

How to appeal a Council (Development Application) Decision

Posted on by dev_hornet

Lodging a Development Application (DA) with council (and dealing with their requests and delays once it is lodged) is an already emotional and stressful endeavor.

Having a DA refused (or having it just take so long that you are no longer prepared to wait) and considering appealing, can be daunting.

Appealing a council decision takes a significant amount of expertise, but it is a task that we are here to help you with.

When is my DA refused?

This question sounds silly. But, as you’ll see, it’s not quite as silly as it seems.

Generally, after submitting a DA, applicants go through the lengthy, costly and, sometimes, traumatizing process of dealing with the council.

This can involve numerous requests for information, amendments to plans (and providing more information) and, sometimes after all of this, council still refuses the application.

If you’re at this stage, you have likely received a Notice of Determination (refusal). This is an ‘actual refusal’ and you know, for certain, that your DA has been refused.

If you are the applicant and if you have received an actual refusal, you are generally entitled to appeal that refusal to the Land and Environment Court of New South Wales.

Even if, however, council hasn’t yet actually refused your DA but it is just taking too long, it is important to understand that you may still have the right to appeal (now… without waiting for an actual refusal).

If council does not determine your DA within a certain period of time (as little as 42DAYS), for the purpose of appealing the decision to Court, you can treat the council’s delay as a deemed refusal.

Many of our clients just do this anyway (deem refuse it that is). This is because, currently, many councils are significantly behind (and take many months or even years) and because the Court’s procedures can hurry the process up and get a quicker result.

How (where) do I appeal?

Whether it is because council has actually refused your application (at which time your only real choices are to appeal or walk away and abandon your project) or you are just not willing to wait a day longer, the process to appeal council’s refusal of your DA is to take it to Land and Environment Court.

How does the appeal run?

The Court has Commissioners (and Judges) that have expertise generally in planning (often architectural and engineering too) and are either also lawyers or are otherwise trained in the legal process as it relates to these appeals.

They are experienced in dealing with DAs at an appeal level and the process can often help to take the emotion that comes with the DA process out of the equation (or at least deal with it in a level and appropriate way).

The Court’s processes (particularly in the early ‘conciliation’ stages) are entirely designed around finding outcomes.

If your DA can’t be resolved by approval at conciliation, it will go to a hearing where a Commissioner will decide it de novo (from the beginning or afresh and, effectively, sitting in the council’s shoes).

Are there time limits to appeal?

Whilst this can be (depending on the facts) an inherently complicated question, the broad answer is yes.

Generally, you only have six months from the time that your DA is refused (on deemed to be refused) to appeal.

This time limit (particularly the six months from the deemed refusal date) can mean that council’s own delays can (if you are not careful) mean that you as applicant can lose your right to appeal the very decision that they are delaying making.

This is why it is important to seek expert advice without further delay. If there is any chance that time limits are an issue, the last thing that you want to do is be seen to knowingly continue to accept the delay.

How can the lawyers at Auslex help?

The Land and Environment Court is a jurisdiction that requires a very specific level of expertise to appear successfully.

Not all lawyers know how to do it (and do it well) and most suburban law firms don’t practice in the area at all.

Even when law firms do practice in the area, they often decide to go onto government panels and do work local councils meaning that they often may not be able to take on your case.

At Auslex, we have lawyers with significant expertise in the area, the Land and Environment Court and the way that local councils operate.

We Are Here to Help

This article is informational only and not legal advice. The information may not be tailored to you, and you should not rely on it as a substitute for legal advice. Contact us for tailored advice for your specific situation. If you need assistance, please contact our firm to book a free (without obligation) 30-minute phone consultation on 1300 999 099. Or email us at clerk@auslex.com.au

Do you know your Duties as a Company Director?

Posted on by dev_hornet

If you are the director of a company, understanding your legal obligations is not only important but integral to the sound, legal and ethical governance of your organisation.

A director holds a position of high authority and is entrusted to accurately determine the affairs of company and make informed decisions about its future. To achieve this, directors are legally required to abide by a set of duties and responsibilities as outlined in the Corporations Act 2001.

Therefore, one of the key responsibilities of directors is to be fully informed and aware of what their duties and liabilities are to ensure the lawful and successful operation of their company.

So, what are the main duties owed by a director of a company?

1. Duty to Act in Good Faith and for Proper Purpose

As a director you must act in the best interests of the organisation which requires a director to act honestly, ethically and fairly with a view to benefiting the interests of the company. In accordance with section 180 of the Corporations Act, a director, when making decisions, must place the interests of the organisation above their own and importantly for ‘proper purposes’.

2. Duty to Act with Reasonable Care, Skill and Diligence

This duty requires a director to act with a degree of care, skill and diligence that a reasonable person might be expected to show in the role. This means that a director must discharge their duties and exercise their powers with the same care and skill that a reasonable person would exercise if they were a director of a company in the same circumstances with the same responsibilities and expertise.

3. Duty Not to Improperly Use Information or Position

Under section 183 of the Corporations Act, directors must not use the information they gain in their role as director or use their position of power to benefit themselves or gain a personal advantage. Additionally, if a director uses information or their position to cause detriment to the company then a director may be liable for breaching their duties under the corporation legislation.

4. Duty to Avoid Insolvent Trading

This is a key duty of directors who must ensure that the company does not trade while insolvent. Under s588G of the Corporations Act, a director will be deemed to have breached their duty if either the company is or becomes insolvent because of a debt and at the time of the debt, a reasonable person would have known or ought to have known that insolvency was likely. The consequences for breaching this duty are significant and include both civil and criminal penalties.

5. Duty to Avoid Conflicts of Interest

Situations which involve a conflict of interest is not an uncommon occurrence in the day-to-day experiences of a director. Simply, a conflict of interest occurs when a director’s personal interests collide with the best interests of the organisation. To avoid such a conflict, it is a director’s duty to place the interests of the company above their own. To ensure a director fulfills this obligation, section 191 of the Corporations Act requires all directors to disclose their personal interest.

Getting the right advice from an expert at Auslex Law Group

As the consequences of breaching director’s duties are significant it is important that directors are informed about both the affairs of the company and the legislation which reflects good corporate governance. Continual compliance with all director responsibilities is essential to avoiding breaching the numerous obligations imposed.

If you need assistance in understanding the role of directors, our experienced commercial litigation team are here to help.

Furthermore, in the event you are accused of breaching your duties as a director, seeking expert advice is essential to ensure your personal rights are protected.

We Are Here to Help

This article is informational only and not legal advice. The information may not be tailored to you, and you should not rely on it as a substitute for legal advice. Contact us for tailored advice for your specific situation. If you need assistance, please contact our firm to book a free (without obligation) 30-minute phone consultation on 1300 999 099. Or email us at clerk@auslex.com.au

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