Author name: QLG

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When to use a derivative action to protect the family company

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When you’re navigating a separation or divorce, it is not uncommon for a situation to arise where a company run by co-directors also becomes involved in a family law dispute over the operation of a company and or the monies received. In this article Dane Thornburgh, Senior Associate at Quinn Law Group, explains what a derivative action is, when it may be suitable, and other important factors. Many directors, shareholders and other company officers, whether involved in a family law dispute or not, are often unaware that when a dispute arises between directors and/or shareholders of the same company, they have legal standing to do something about it on behalf of the company, by way of commencing a derivative action.  What is a derivative action? A derivative action may be required in family law proceedings when a spouse or third party (as a shareholder/director) needs to protect corporate assets from being depleted by the other spouse, and the company itself will not take action against that wrongdoing.  A derivative action is generally an action brought by the company against a director for a breach of duty, but where a company cannot or does not bring that action, the court allows the members to bring the action on behalf of the company.  This type of action is common when a company/business is part of the matrimonial assets but is controlled by one party who refuses to act in the best interests of the company.  A derivative action enables a person, typically a shareholder or officer, to bring legal proceedings in the name of the company. This action is unique as it allows a person to litigate on behalf of the corporation, even though the right to initiate such proceedings ordinarily resides with the board of directors. Notably, any benefit arising from the litigation accrues to the corporation, not the individual bringing the action.  The right to bring a derivative action is open firstly, to a director of a company who may choose to pursue a derivative action by establishing certain factors giving rise to the right to act on behalf of the company.  Alternatively, where shareholders have been oppressed by the conduct of the directors, they also have a right to bring an action against the directors on behalf of the company.   Both of the above avenues are common in family law situations, where one of the parties is also a director or shareholder of the former family company.  What are some scenarios where a derivative action may be suitable?  Some scenarios that may indicate the need to bring a derivative action include: What key factors are considered by the Court?  When seeking a derivative action, courts primarily consider whether the lawsuit is in the company’s best interests, if the applicant is acting in good faith, and if there is a serious question to be tried.  The party seeking the derivative action must usually also demonstrate that the company itself is unlikely to bring the proceedings. Some other relevant factors the Court may consider are: These actions are typically governed by statutory provisions (e.g., s 237 of the Corporations Act 2001 in Australia), which exist to prevent frivolous or purely personal lawsuits.  How Quinn Law Group help?  If you’re having a dispute with a business partner or shareholder and require assistance, contact us and ask to speak to Dane Thornburgh to see if we can help. Dane Thornburgh is a Senior Associate at Quinn Law Group, contributing over 23 years of substantial legal expertise as a Solicitor and previously as a Barrister. His distinguished career spans family law and commercial litigation, complemented by a strong background in several related practice areas.  This blending of advocacy and legal knowledge provides clients with significantly lower legal costs, effectively combining a seasoned advocate and an experienced Solicitor in the one practitioner. Read more on Dane’s experience by visiting our About page. 

Criminal Law, Traffic Offences

Will I go to jail for mid-range drink driving?

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If you’re facing a mid-range drink driving charge, it’s often a stressful and daunting time. You might feel nervous about the long-term effects of your penalty, unsure of how severe it will be, and trying to figure out the best next steps. Below we explain the times when you may be more likely to face prison time, as well as other penalties such as fines and licence disqualification.  What is mid-range drink driving? In Queensland, mid-range drink driving is when your blood alcohol concentration (BAC) is between 0.10% and 0.149%. This is roughly equivalent to 4–5 standard drinks in the first 2 hours.   Mid-range drink driving is treated more seriously than low-range drink driving (blood alcohol of over 0.0 and under 0.10 BAC), however it often does not require jail time. This is particularly true for first-time offenders.   The reason for harsher penalties is that drink driving is one of the leading causes of car accidents in Australia. In Queensland, 11% admit to driving when they’re over the alcohol limit and 21% admit to driving the next day when they could still be drink driving. The best advice is not to drive when you’ve been drinking, but if you have been caught driving under the influence below are some important considerations.  What are the penalties for mid-range drink driving? If you’re caught drink driving, you’ll need to attend court where your penalty will be decided. For those charged with mid-range drink driving, the penalties depend on a range of factors. The key things a court will consider include:  The most common penalties for mid-range drink driving include fines, alcohol ignition interlock requirements, a criminal record, and licence disqualification. In rare cases the driver may also face prison time which is usually due to aggravating factors mentioned above such as other convictions and factors such as dangerous driving and injury.  First-time offenders  For first-time mid-range drink driving offenders, the licence disqualification penalty is currently 3–12 months, the fine is $3,338, and the maximum prison sentence is 6 months. However, courts generally take the rehabilitation approach for these cases, and a prison sentence is very unlikely in Queensland. If you show remorse, plead guilty early, and follow any programs or counselling as directed by the magistrate, the likely outcome is a fine and licence disqualification.  You are also less likely to face a prison sentence as a first-time drink driver if your BAC is closer to 0.10 and you cooperated with police. Every action you take after being caught can contribute to the overall outcome of your case, so it’s important to carefully consider each step.  When am I more likely to face jail time for mid-range drink driving?  Each case will be assessed individually based off the evidence presented. Courts put a lot of focus on how intoxicated you were and how much risk you posed to other road users. Prison becomes more likely if you have had another mid-range drink driving conviction in the past 5 years. If your alcohol level is in the higher range of 0.14–0.149, the chances of facing a sentence also increase.  Even if you are a first offender, aggravating circumstances such as causing an accident or driving dangerously may result in prison time. However, the length of the sentence will likely be shorter if it’s your first offence. If you refuse to complete a breathalyser or blood test, you may also face a harsher penalty for not complying with the law. Other aggravating factors include driving while suspended or disqualified, driving with children in the vehicle, and if you’re already facing other charges at the time you’re caught drink driving.  If any of these factors are involved in your case, it’s important to speak to a lawyer. A lawyer may be able to minimise the penalties and make sure you’re on the right path to a better outcome.  What is an alcohol interlock device?  An interlock is a device connected to your vehicle ignition and can be installed once your disqualification period has ended. The engine won’t start until you have provided a clear breath sample and no alcohol is present. This is a common penalty for drink driving and will record data such as photos, breath sample results (both positive and negative), and when the vehicle is used. Other people can use the vehicle but will also have to provide a clear breath sample.   When should I get legal advice? Your first court appearance matters more than you might realise. What you do before and during this appearance can impact whether you serve jail time, how long your licence is disqualified for, and whether the conviction is put on your criminal record. Due to the risks involved, we recommend speaking to a lawyer early on to minimise your penalties.   A lawyer will assess how likely it is that you’ll face prison time, as well as preparing mitigating evidence and negotiating alternatives to having a criminal record or facing a sentence. To get free initial advice, get in touch with our drink driving lawyers.  

Family Law

What does spousal maintenance include? 

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When a relationship breaks down it’s often a complex and difficult time. As you and your ex-partner adjust to a new way of life, spousal maintenance is designed to alleviate financial struggles. It’s paid by one ex-partner to another if they’re unable to support themselves for a period of time.   Is it the same as child support?  No, spousal maintenance is a different order to child support. That means both may be paid at the same time. Child support is for expenses related to raising a child such as school costs, food, clothing, and housing. Spousal maintenance covers an ex-partner’s expenses, where reasonable, that are not child related.  What is covered?  Depending on the circumstances, spousal maintenance may include:   This may be paid after a divorce, or a de facto relationship breakdown if it meets legal requirements.  Who is eligible for spousal maintenance?  As outlined in the Family Law Act 1975, financial assistance is paid to a former partner if they are unable to support themselves. There must be a reasonable need, and both ex partners are responsible for supporting each other if they are in the position to do so.   When the court is determining spousal maintenance, both sides will be considered. Both the needs of the recipient is determined as well as the capacity of the respondent to pay.   Factors that are considered when determining eligibility include:  If the recipient marries another person, they won’t be eligible for spousal maintenance unless ordered by the court. The same may apply to a de facto relationship depending on the financial arrangements.  How do I apply for spousal maintenance?  Before you apply for spousal maintenance, you will need to prepare comprehensive documentation. This is critical for presenting a strong case and meeting all eligibility requirements. Examples of documents you may need to prepare include income statements, asset details, bank statements, and relevant legal documents.   To give yourself the best chance at a successful application, seek legal advice. An experienced lawyer will clearly explain your rights and navigate the complicated process for you.   The times you can apply for spousal maintenance include:  For urgent financial assistance, you can request that your matter is treated with urgency. This is done when you apply for financial or property orders, or you can do so after the application has been started. An urgent application must include other key documents such as an affidavit and a cover letter.   Will it change over time?  As personal circumstances change, so does spousal maintenance orders. The main factor is when the financial position of either partner changes. If the recipient begins earning a higher income or has support from a new partner, spousal maintenance may be reduced or stopped. There can also be times where the respondent is no longer in a financial position to support an ex-partner. This may be due to job loss or childcare expenses.  There are strict legal procedures to request a change to spousal maintenance orders. An application will need to be submitted, and the court will decide whether to update or stop these orders.   So, what if a period of time is specified in spousal maintenance orders? In this case, once the time comes to an end the recipient will need to submit an application to extend the financial support.   Whether you’re the respondent or recipient, legal advice is always recommended if you wish to change court orders.  What happens if spousal maintenance orders are breached?  Breaching court orders are taken seriously by the Family Court of Australia. All parties must comply, and any breaches without an acceptable reason may result in costs or other penalties.  If there’s a breach, options are to seek legal advice, attend dispute resolution, or apply to the court. A common misconception is that the courts will enforce family law orders. However, the recipient will need to follow a legal process to alert the court. This is complicated and it’s not just a matter of pointing out that the order has been breached.  If you’re navigating spousal maintenance and would like legal advice or support, get in touch with our team. 

Criminal Law

Police banning notices explained

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A police banning notice (PBN) stops someone from entering a specific area if they have behaved in a way that is disorderly, threatening, offensive, or violent. It may stop entry in and around places where alcohol is served, whether that’s a public or private event. In this article we answer frequently asked questions about police banning notices in Queensland. Who can receive a police banning notice?  Anyone over the age of 17 years old can receive a police banning notice in Queensland. This is different to being banned by the venue as it is enforced under the Police Powers and Responsibilities Act 2000, not the venue licensee.  Is my personal information shared if I get a banning notice? Yes, police can give licensees information about your banning notice for identification purposes. This may include your photograph, to prevent you from entering the premises. The most common way this information is distributed is through ID scanners. If this is the case, you will be stopped at the door and denied entry.  What places does it apply to? Police may put a banning notice in place to stop you from entering or remaining in:  It may also apply to an area that is nearby (500 metres) these places.   A police banning notice can’t stop you from entering your residence, workplace, or place of education. However, there are other police orders that may restrict you from these areas, such as a Domestic Violence Order, if it is near someone who has taken out an order against you.  What if I enter a place I’m banned from? Disobeying police orders is an offence and can result in being fined, arrested, and charged with a criminal offence. As mentioned above, venues often have the information of people who are banned and this will be flagged with police. A police officer will then investigate to see if an offence has been committed and commence Court proceeding depending on the circumstances.  Can I appeal a police banning notice? You can apply to amend or cancel a police banning notice through the Commissioner of Police. You must apply for it to be cancelled within 15 days of receiving the initial banning notice. For extended notices, you can apply for cancellation at any time.   Reasons for amendment or cancellation may include that it prevents you from attending your home, workplace, or place of education, or it is causing hardship. To give yourself the best chance of a successful police banning notice amendment, seek legal advice.  How long is it in place for? Under the Police Powers and Responsibilities Act 2000, a banning notice can be given on the spot and be in place for a month. If it is for a particular event, it may only be in place until the event finishes. The notice will detail the restrictions and it’s important to follow this to avoid committing an offence.  Police may extend a banning notice by up to 3 months and can apply it to specific days or times. They may also update the order to include additional public places if relevant. You will be given an initial police banning notice first, then an extended police banning notice if additional time is put in place. 

Traffic Offences

How to get your licence back after suspension (QLD)

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Losing your licence can have a ripple effect on your life; particularly if you rely on it for work. The most common reasons for licence suspension in Queensland include driving under the influence of drugs and alcohol (DUI), dangerous driving, or accumulated demerit points. In this article we’ll explore how to get your licence back after suspension (QLD), including applying for a work licence and minimising the time your licence is disqualified for.  What is the difference between a licence suspension and disqualification? When your licence is suspended, you’re not allowed to drive for a temporary amount of time. The police or another government body such as Transport and Main Roads or State Penalties Enforcement Registry (SPER) may impose this suspension. Licence disqualification on the other hand, is when your licence is removed for a longer period of time. A court will disqualify a licence, and the driver will need to re-apply for a licence once the disqualification period ends.  Can I drive before going to court for a DUI? No, your licence is immediately suspended for all drink driving offences for at least 24 hours. If your drink driving offence is 0.10% or more, your licence is suspended straight away until you attend court.   You may be able to apply for a Section 79E order Application (form F4395) which needs to be lodged within 21 clear days after the suspension starts at the Magistrates Court. This lifts an immediate suspension until your court case is heard but has strict requirements. You must be able to prove that losing your licence will have an extreme effect on you or your family, you must have had an open licence at the time of suspension, and you must not have lost your licence due to demerit points. It’s important to note that you can’t drive until you receive your replacement licence otherwise you are driving illegally.  Am I eligible for a restricted/work driver’s licence after a DUI? When it comes to how to get your licence back after suspension in QLD, a work licence may be your best option. If you’ve been caught drink driving under 0.15% or driving with a relevant drug in your saliva, you may be able to apply for a work driver’s licence (also known as a restricted licence). Your eligibility will depend on a range of factors including the amount of alcohol you had in your system and repeat offences.  To be eligible it must be a low or mid-range drink driving offence (blood alcohol content of up to 0.149 for open licence holders). You must also hold an “Open” Qld driver’s licence and not have been caught drink driving directly connected with your mean of earning a living. If you had 0.15 or over in your system at the time you were caught, you’re not eligible for a work licence. High risk drivers are also not eligible for a restricted licence. This includes those who have multiple drink or drug offences.  Timing is important and you must apply for a work licence before your licence is disqualified by the court. You will also need to prove that without your licence you would face extreme hardship related to work.  Getting a lawyer for this process is highly recommended due to the complexity of the process. If you make a single mistake when addressing the eligibility criteria, your application will be denied, and you usually don’t get a second chance at it. Our lawyers walk you through the process and make sure your application properly addresses all criteria to give you the best chance of success.   Restrictions and rules while on a work licence A work licence doesn’t function in the same way as a regular licence. If has strict requirements that you will need to follow to make sure you don’t break the law. You must not have any alcohol in your system while driving on a work licence.   You’ll also need to complete a short online drink driving course if you are convicted of a drink driving offence and you’re granted a restricted licence. Those who are convicted of a mid-level drink driving offence (between 0.10 and 0.149%) will also need to use an Alcohol Ignition Interlock Program. This is a device with a breath tester that you will need to use to start your car.  How to get a work licence?  Before your court hearing, you will need to complete the Application for an Order (Restricted Licence (s87) (Form F3181)). This must then be given to the Magistrate immediately after you’re found guilty but before your licence is disqualified. As we mentioned above, it’s crucial to address all criteria correctly as the smallest mistake can lead to your request being rejected.   How can I minimise the period my licence is lost?  First and foremost, it’s important to get the right legal advice so you can navigate the court process properly. There are steps and information that can help give you a better chance of reducing the amount of time you’re not allowed to drive. This can include missing legal deadlines, talking to police and making casual statements, and underestimating how serious your charge is.   Once your matter is resolved in court, you must follow any orders or risk extending your licence disqualification. Pay any fines on time and never drive during the period your licence is suspended or disqualified. Driving during your disqualification period can add a further 2 to 5 years to your charge. It can also result in a fine or imprisonment of up to 18 months depending on the circumstances.   For further advice about a licence suspension or disqualification, get in touch with our lawyers for a free consultation. 

Lawyer holding legal documents.
Criminal Law, Traffic Offences

Guide: Strict liability offences

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For strict liability crimes, prosecutors don’t need to prove fault such as intention, recklessness, or negligence. They only need to establish that a crime was committed.  Most traffic offences fall under strict liability as you’re charged for committing the offence even if you didn’t intend to. Other examples include police evasion and drug possession.   There are a range of rules in place to make sure that strict liability is used fairly. This includes only imposing it after carefully considering other options and where it has public support and acceptance. This prevents strict liability from being used where cases may be complex or where the penalty includes imprisonment.  Examples of strict liability offences Strict liability crimes in Australia can include areas such as corporate regulation, environmental protection, work health and safety laws, customs and border protection, national security, and copyright.   Some common examples include:  Strict liability and traffic offences It’s widely understood that if you commit a traffic offence, you’re charged without the requirement to prove fault. It’s up to you or your lawyer to build a defence to prove innocence or reduce the severity of the punishment. Examples of strict liability offences in traffic include speeding, using your mobile phone illegally while driving, or driving under the influence.   Strict liability and corporate law  In corporate law, strict liability often comes into play for regulatory offences. Common examples include breaching corporate governance, such as audit compliance, and failure to provide accurate information to the general public or the regulator. If it can be proved that the offence was due to reasonable mistake of fact, the corporation or individual may avoid liability.   Strict liability and drug possession (even when it’s not yours)  Being in possession of drugs is different to ownership. You can be in possession of drugs even if you didn’t buy it or haven’t used it. For example, if you live in a share house and the police find drugs that belong to someone else, you can still be charged with possession. This is an example of strict liability where you need to prove you weren’t aware the drugs were in the house.   Strict liability and police evasion  In Queensland, police can stop drivers for questioning, a breath or swab test, or vehicle search in certain circumstances (Police Powers and Responsibilities Act 2000). If a police officer directs you to stop your vehicle and you fail to do so as soon as reasonable or practical, you can be charged with evasion. Punishment for this offence can include fines or even imprisonment.  What defence is there for a strict liability crime?  Depending on the type of strict liability, the accused may be able to prove the crime was the result of an honest mistake (“honest and reasonable mistake of fact”). This type of defence requires a strong case and evidence that shows you are not guilty because you were either misled or genuinely believed certain facts relating to the situation were true. It’s important to note that pleading ignorance to laws is not a valid defence.   Other common defences for police evasion include unclear police direction, or that you stopped as soon as you deemed possible. Police evasion is a serious offence in Queensland, therefore building a defence should be done by a legal professional.   If you are facing a strict liability offence and need further information or advice, get in touch. Our lawyers are experienced in traffic offences, commercial litigation, and criminal law such as drug offences.  

Criminal Law

What is an indictable offence (QLD)? 

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When someone is charged with a criminal offence, it is categorised as either an indictable or simple (summary) offence. Indictable offences are more serious than simple offences and are generally brought before a judge and jury. In certain cases, upon an application by defence or prosecutions the matter may only be tried before a judge.   What are common types of indictable offences? In Queensland, indictable offences include serious crimes such as:  What is the difference between indictable and simple offences? Simple offences (or summary offences) include disorderly behaviour, driving offences, minor drug offences, and trespassing. These, as well as minor indictable offences (see 58A Criminal Code Act 1899) are usually resolved in Magistrates Court. More serious offences may be referred to the Supreme or District Court.  When is an indictable offence heard in Magistrates Court? All indictable offences begin in Magistrates Court with more serious crimes then taken to a higher court. So, what is an indictable offence that may be resolved in Magistrates Court? Some examples include those related to escaping custody, coercive control, and minor assault charges. This is not an exhaustive list, and it is up to the court to decide whether an offence will be tried by a judge and jury.  When is a case taken to higher court? There are a few reasons why an indictable offence may be taken to District or Supreme Court. More serious crimes such as armed robbery and murder will be referred to a higher court if the Magistrates Court determines there’s enough evidence. A case may also be taken to higher court if both parties don’t agree to have it heard summarily (this applies to escaping lawful custody and serious assaults).   On the first day in court, which must not be missed, there are two main processes that will happen. If someone pleads guilty to a minor offence, the magistrate will either determine the penalty or set a sentencing date. For certain offences, particularly if they are more serious in nature, the matter must go to the Supreme or District Court for trial or sentence. As mentioned above, this will depend on whether there is enough evidence to go down this path.  Is drink driving an indictable offence? Drink driving may be considered indictable if it is a serious case. For example, high-range drink driving (blood alcohol concentration of .15% or higher) and repeat drink driving may be charged as an indictable offence. If it has caused injury or death, the matter may also be taken to higher court.  What are the penalties for indictable cases? The outcome of being charged with an indictable offence will depend on the severity of the case and a range of other factors (see the Penalties and Sentences Act 1992). The more serious cases such as armed robbery and murder often result in a prison sentence while less serious offences may be punishable by a fine. Other details that may impact the severity of the punishment include a history of previous crimes, cooperation with the authorities, and harm caused to a person.   The most recent data from Queensland (2023-24 financial year) shows that most defendants (97%) with charges that had a court judgement received a guilty outcome. While 56% of these received a fine and 13% were sentenced to a median sentence of 10 months in a correctional institution. In cases taken to the higher courts, imprisonment is the most common penalty, which has recently increased 5.9% in Queensland. While 10.3% of adult cases in the Magistrates Court were sentenced to imprisonment.  Due to the severity and complexity of indictable cases, legal representation plays a key role in getting a fair outcome.