Frequently

Asked Questions
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Working with us

What is the best way to get your help?

We prefer email, or for you to complete our website contact form. This helps us to best manage our time.

When we have a written request from you for help, we can plan how best to assist you and book time for a phone or Zoom conference if we need to talk something through and make time for those conversations.

How much can I expect to spend in legal fees?

It depends! It really depends on the work you want to get done. Wherever possible, we try and work out what it is you want to achieve first, then provide you with a fixed fee investment for providing that solution. So, before you work with us, you know how much you are going to spend.

It is difficult to work out what kind of money will be involved if there is a dispute, mainly because we simply don’t know how the other party will respond, and often the work we need to do will change based upon how they respond. If that is the case, we aim to give you a clear idea of the costs, and your options, before we get started.

Responding to Legal Threats

Do I need to worry about a cease and desist letter?

You might receive a letter that says you must stop using someone else’s trade mark or copyright. Usually they ask you to remove writing or an image or video from your website, and sometimes it includes a demand for money.

If the letter is from a company based in the same country as you, or a lawyer in the same country, you should probably take it seriously and ask for legal advice. We can help you.

Don’t panic if you have short time frames. You can respond and let them know you have received their notice, make no admissions, are getting advice and will get back to them on a specified date, usually 7 – 14 days.

What do I do with a demand to hand over my website?

First, we need to understand what the demand is really about.

Website content is very different from a domain name. The two are not necessarily linked even though the website content can only be found via the domain name. If you get a demand to hand over your website, you have to be clear on what that means. It could be just the domain name (in the case of a trade mark dispute) or it could be just the content (in the case of a copyright dispute) and it could be both. We can help you.

What if I get a notice from the Fair Work Commission?

If you receive a notice from the Fair Work Commission, you will usually have a very limited period to respond (sometimes only 7 days). Take the matter seriously and get professional HR or legal advice if there is anything you don’t understand.

Are emails from Fair Trading legitimate?

Each state and territory has a different Department of Fair Trading or Consumer Affairs. If that department receives a complaint about your business, someone from the Department will usually call you first to discuss it, then send a follow up email. If you didn’t receive a phone call first, you should look up the number of the department and give them a call to verify their email before responding.

Social Media and the Law

Am I responsible for what people say on my business Facebook page?

There have been some recent cases in Australia which do suggest that if you control a page or group, you may be responsible for the behaviour of people in that group to the extent that behaviour could be seen to be defamatory or breach other laws, particularly if you receive a complaint and do nothing about it.

To best manage Facebook business pages and groups you should have ‘rules’ or ‘terms and conditions for participation’. When you let people know what is expected of them when interacting on your pages, it will be easier for you to remove people or their comments when they break the rules. We can help you create rules that suit your page or group and educate your team, or provide some guidelines or procedures in managing behaviour on your groups or pages.

How good is the legal advice I find in groups on Facebook?

We’ve seen people who have no legal qualifications give advice on Facebook and other pages online. Often it is wrong and reflects their understanding of an experience they had, or an experience they heard about. I did see an article someone posted that was a completely wrong interpretation of defamation law, based on their understanding of what they read online.

If you want legal advice suited to your situation, you should seek specific advice and not rely upon crowd sourced online advice.

Terms and conditions

Do I need terms and conditions on my website?

Terms and conditions on your website can help you manage your risk. For example, if you include copyright provisions in your terms and conditions, you can let visitors to your site know what they can and cannot do with your content.

You can use terms and conditions and disclaimers to manage the expectations of your customers and limit your liability to being sued. We will look at your website and the different relationships created through your website and address all those different relationships when preparing terms and conditions for you.

What terms and conditions do I need on my website?

For credibility, you should properly identify your business details on your website, usually on the contact page.

We will look at your website and the different relationships created through your website and address all those different relationships when preparing terms and conditions for you. If your website is a brochure site so that people can see that you exist as a legitimate business, then simple terms of use and a privacy policy may be all you need. If you have a store and advertising or membership, we will prepare more detailed terms and conditions to fit those services.

If you are part of a regulated industry, like finance or health, there are other terms and disclaimers that we will recommend you include.

Do I have to have a privacy policy on my website?

If you are a small business (annual turnover less than $3m) you may not be covered by Australian Privacy laws, but you might still need to have a privacy policy so that you can use social media advertising and ensure your website search rankings aren’t negatively affected. For example, you will not be able to use Facebook advertising if you don’t have a privacy policy.

Even if you have a small business, you will be required to comply with privacy laws if you collect personal information associated with health services (including life coaching) or to on-sell as leads to another company.

What a lawyer can do for you

What does a commercial lawyer do?

Commercial lawyers can help you understand and manage risk in all aspects of your business. At Onyx, our lawyers all have backgrounds working inside businesses, not just inside law firms, so they have a better understanding of the worries, concerns and practical needs of small business owners.

As commercial lawyers we can help you set up a business, managing the shareholding or other ownership interests in the business, prepare contracts that help you with business transactions such and buying services, or selling products and services.

As commercial lawyers, we don’t get involved in personal matters like family law, criminal law or personal injuries law.

Do I need a lawyer?

If you become involved in any sort of legal or regulatory process that you don’t understand, or don’t feel confident in, then yes, you need a lawyer.

If you have a business that brings in an income you can’t afford to lose and you’ve been running it in an ad hoc fashion without really looking at how you could better protect it, then it might be a good idea to work with a lawyer to help limit your risks and improve the value in your business through better processes and forms.

As commercial lawyers with a background in business, we can help you assess your business and identify things that you must have, would be nice to have, or don’t need, so that you are confident in building your business.

How do I choose a lawyer that is right for me?

Talk to the lawyer you’d like to work with. If the lawyer is dismissive or won’t explain things for you because its too technical, or you find them hard to get on with, then they are not the right lawyer for you. Lawyers are people too, find someone who respects you, and who you can get along with.

Tell the lawyer about what you want to achieve and ask what experience they have with other similar matters in the past.

Do I have to have contracts with my employees?

We do recommend you have employment contracts so that you and your employee can manage each other’s expectations.

Enforcement and other options

I don’t have a written contract, so can it be enforced?

Only a limited number of types of contracts need to be in writing to be enforceable. You may have a verbal contract, or a contract which is part verbal and part in writing, or a contract that is made up completely of text messages or emails. Just because it is not in writing, does not mean it can’t be enforced.

Why are they chasing me for money for something that happened years ago?

If you are chasing someone for money, or they are chasing you, there is a six-year time period available in which to take action. This also applies to disputes about contracts. This time frame may be different depending upon when the person complaining discovered they had a legitimate complaint, or if a person involved was under 18 years of age, but generally speaking, you have six years to make a claim, and three years to make a claim about a personal injury.

I thought we resolved this. How come they are suing me now?

If you have a dispute with someone, or they make demands of you, unless you get something in writing with them that says the matter is complete, and the document can be used as a ‘bar to legal action’, then you can’t stop someone trying to sue you.

What is mediation?

Mediation is a process where a person who is independent of the parties in a dispute can meet with the parties together and then separately with an aim to talking through and reaching a solution to the dispute. Mediation works well when all of the parties involved are interested in resolving the matter. Mediation does not work well if one or more parties insists that they are right.

Mediation can allow the parties to come up with a creative solution that would not be available in a court, and it allows the circumstances of the dispute, and how it was resolved, to remain private and confidential.

What do I need to do to sue someone?

You can’t just sue someone because you are angry with them. You have to have what is called ‘a cause of action’. This means that we need to discuss with you the circumstances you are not happy about and work out whether you have a claim under legislation, as part of a contract, because of a relationship which involves a duty of care, or some other interest.

Just because you believe someone has done something wrong, it doesn’t mean you can sue them.

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