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COVID-19: Will my hearing go ahead? – (Part 1)

By Andrew Hack, Solicitor, and Stephen Mullette, Principal, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.

Due to COVID-19, not only are people encouraged to stay at home and avoid going out in public unnecessarily, you could be committing a crime if you do. But what if you have a court case on foot?

Telephone and audio visual links are now frequently being used to run lists and even hearings, where others are being adjourned or vacated. However the use of technology to run court matters is different depending on the court, the type of matter and even the circumstances of each individual case. In a series of blogs we look at examples of various court applications which give us an idea of how the courts are handling issues arising from COVID-19:

In JKC Australia LNG Pty Ltd -V- CH2M Hill Companies Ltd [2020] WASCA 38 an application to adjourn an appeal hearing based upon “issues said to arise from the COVID-19 pandemic” was refused. The Court of Appeal did not accept submissions that the respondents’ senior counsel “would be at a significant disadvantage if he could not see and ‘read’ the court throughout the appeal hearing” – which was a reference to “the benefit of non-verbal communications”. Effectively this appears to be a submission that Senior Counsel would not be able to ‘read the room’. The WA Court of Appeal would not have a bar of it (pun intended), concluding “it is not the case that an appeal hearing by telephone is manifestly inadequate or that an appeal hearing by video‑link is inadequate.”
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COVID-19, self-isolation, and witnessing documents

By Chloe Howard of Matthews Folbigg Lawyers, a lawyer in our Insolvency, Restructuring and Debt Recovery Group

Whilst there have been leaps and bounds in recent years when it comes to the merging of law and technology, properly executing legal documents has escaped this evolution. Even though NSW and some other states have an Electronic Transactions Act, this does not assist with present difficulties imposed with executing Deeds and other formal documents during self-isolation.  Whilst Zoom, Skype and FaceTime can make it seem like you are in the same room as someone else, ultimately the law is clear – this technology cannot replicate the requirements needed for the valid witnessing of formal documents. These requirements include that a witness must be physically present when the document is signed.

But what if you are locked down in self-isolation?

Until the COVID-19 pandemic, this had not really been a pressing issue. But with the Australian Government advocating for more people to work from home and for people generally to self-isolate, what happens to the requirements for witnesses to be physically present to witness a document being signed?
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Not opening your emails? That is not an excuse to avoid valid service!

By Chloe Howard of Matthews Folbigg Lawyers, a lawyer in our Insolvency, Restructuring and Debt Recovery Group

A recent Supreme Court matter has determined that service of an application to set aside a statutory demand was validly served in time, even though the solicitor in question did not open the email serving the application until the expiration date for service had passed.

In March 2019, the plaintiff’s solicitor and the defendant’s solicitor commenced communicating in an attempt to facilitate a resolution of the dispute between their respective clients. The communications predominantly took place by email.

On 11 September 2019, the defendant issued on the plaintiff a statutory demand. The statutory demand was served on the plaintiff initially by email from the defendant’s solicitor.

On 27 September 2019, the defendant’s solicitor sent an email to the plaintiff’s solicitor enclosing a letter which advised that they held instructions to accept any application to set aside the statutory demand.
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Subpoena or Notice to Produce – how to get the documents you need!

By Hayley Hitch, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

Have you ever wondered about the difference between a subpoena and a notice to produce? These can be confusing and sometimes cause delays in proceedings or result in significant additional legal costs.

Both a subpoena and a notice to produce are court forms used once proceedings have been commenced, to obtain documentation from a specific individual or entity. A subpoena can also be issued to require a witness to attend Court and give evidence at a hearing.

In simple terms, a subpoena is issued by the Court to request documents from someone who is not a party to the proceedings. On the other hand, a notice to produce is issued by a party to the proceedings to request documents from another party.


Most courts have rules about how to obtain a subpoena. Under the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) for instance, the Court will issue a subpoena if requested by a party. However, if that party is not represented by a solicitor, leave of the court is required (Rule 7.3).
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Securing Property Interests on the PPSR is now mainstream

By Jeffrey Brown, a Principal of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group


The latest statistics published by the Australian Financial Security Authority (AFSA) confirms what I am seeing in the business world – that registering on the Personal Property Securities Register (PPSR) has become an accepted part of trading and credit in Australia.

In the March quarter of 2019 there were 462,578 new registrations created on the PPSR.  That brought the total number of registrations on the PPSR to 10,004,438.  Interestingly, there were over 2 million searches conducted on the PPSR during the March quarter, which represented a sharp increase in searches.  Searches conducted by serial number were by far the most common type of search, accounting for over 1.2 million searches.

I predict that this number will only increase as businesses and consumers come to understand how to use the PPSR more effectively.  Many of my clients have been unaware of the types of interests that they can register on the PPS.  For example, landlords can register their interest in a security bond on the PPSR, and if they do so they can enforce that security to the extent that they are owed money at the conclusion of a commercial lease.  This is despite the PPSR not being directly concerned with “real property” (in other words, land).
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Can I transfer the business of my insolvent Company without conducting “illegal phoenix activity”?

By Jeffrey Brown, a Principal of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

Many of you will have seen recent publicity concerning a crackdown by the Australian Taxation Office (ATO) and other Government agencies on Illegal Phoenix Activity.

A “phoenix” company is created when an insolvent company is wound up and, immediately before the liquidation takes place, the business is transferred to another company, which typically conducts the business under a similar or even identical name.  The obvious concern for creditors of the wound up insolvent company is that they have no right to recover their debt from the new company now conducting the business.

Although there have been laws in place for many years which allow the liquidator of a wound up company to pursue a new company and its directors in the above circumstances, recovery of funds has been notoriously difficult.

There has been a recent focus on directing Government resources towards funding actions against illegal phoenix operators.
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Are your Contracts Properly Signed?

Contracts are a part of every day commercial life and it is vital that they be properly signed to reduce challenges about whether they are legally binding.

How do individuals sign?

An individual signing:

  • an agreement needs to sign under their own name
  • a deed needs to sign under their own name and have their signature witnessed by a third party adult who is not a party to the deed and that witness should print their name and address

It is also good practice for an individual’s signature on any contract to be witnessed by a third party as this will be helpful in case there is a subsequent dispute about the authenticity of the individual’s signature. If the document is especially important, the individual’s signature should be witnessed by a solicitor or a justice of the peace.

How do companies sign?

Section 127(1) of the Corporations Act provides that a company may execute an agreement by any of the following methods:
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Personal Leave – Have You Calculated It Correctly?

Two recent rulings have thrown the workplace arrangements of two large-scale employers of shift workers into chaos as they potentially may result in mass underpayment claims being made against hundreds of businesses around the country.

The Issue

Under the National Employment Standards (NES) full-time employees receive 10 days paid personal/carer’s leave per year of service and each work-day day is calculated as being comprised of 7.6 hours.

The Mondelez Decision

In the Mondelez decision a dispute arose in respect of their enterprise agreement:

  • it provided “80 hours per annum” for paid personal/carer’s leave rather than 10 days per annum under the NES
  • the FWC was concerned the provision would deprive Mondelez’s 10 and 12 hour shiftworkers from receiving the full NES entitlement of 10 days per annum
  • the FWC had to decide whether the NES entitlement meant 10 days x 7.6 hours or 10 days x actual hours worked being either 10 or 12 hours for its shift workers
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