WORKSHOP OBJECTIVES Essential elements in contract law;

1. The Federal Government’s NDIS interstate trials are proving to raise significant issues and challenges for service providers, including the critical need for the client service agreements to specify clearly at least what, how and when services will be performed. With impending launch sites in Queensland to commence in July 2016, it is timely to develop a sound understanding of client service agreements under NDIS. For service providers, a key element in being successful and sustainable in attracting and implementing participants’ NDIS funded support plans is to identify and clearly specify the nature and extent of what is (and what is not) included in the services that clients’ purchase for the NDIA fixed-price. Lessons from the interstate trial sites are shared in this THINK TANK.

2. WORKSHOP OBJECTIVES • Essential elements in contract law; • How to draft terms and conditions of legal Client Service Agreements; • Tips and traps in using standard templates and clauses; and • How parties’ rights and obligations under Client Service Agreements are managed and enforced.

3. WHY ARE CLIENT SERVICE AGREEMENTS IMPORTANT? •  Gives a context to interpreting the contractual relationship •  Protects legal rights/obligations of all parties - fairness •  Documents exactly what services are being provided •  Explicitly records agreement on key conditions such as : •  Timeframes •  Payment for satisfactory delivery of services •  Required level of service quality •  Procedure for resolving disputes •  Protects confidential information •  Process vary the agreement •  When and how the agreement can be terminated •  Any special terms or conditions • Other reasons why important?

4. ARE WRITTEN SERVICE AGREEMENTS ESSENTIAL?  “An oral agreement is a binding contract unless the law requires a written contract. Contracts relating to the purchase of land, credit and insurance, and contracts of guarantee and door-to-door sales are a few examples of where written contracts are required before the agreements are binding.” – Queensland Law Handbook  “You will normally need to make a written agreement with your provider(s) that sets out what supports will be provided and how they will be delivered.” NDIA Guide “Making A Service Agreement With Your Provider(s)”  “A participant who chooses to engage someone to provide supports under an NDIS plan will generally enter into a written agreement with the provider (a Service Agreement).” NDIA Guide “Making A Service Agreement With A Participant”  As a general rule, parties are bound by all terms contained in a document that they sign, regardless of whether they have read them or understood them.

5. CONTRACT: agreement containing promises between 2 or more parties with intention of creating legal rights and obligations that are legally enforceable. Essential elements in contract law • Intention to create legal relationships • Intention that promises will create legally enforceable obligations • Legal capacity to contract • Genuine consent • Offer and Acceptance • Consideration • Something of value passing from one party to the other in return for a promise to do something • Legality of purpose

6. Essential elements in contract law • 1. INTENTION TO CREATE LEGAL RELATIONSHIPS • Unless expressly stated otherwise - • Business and commercial agreements generally presumed to intend legal rights and obligations – onus on plaintiff to prove otherwise • Social and domestic arrangements generally presumed to be private and not intended to create legal rights and obligations – onus on plaintiff to prove otherwise (e.g. consequences of the promise were serious – Riches v Hogben(1986) 1 QdR 315; Wakeling v Ripley (1951) SR(NSW) 183).

7. Essential elements in contract law • 2. LEGAL CAPACITY TO CONTRACT • Under 18 years of age : valid for necessaries of life or beneficial contracts of service; voidable where it can be repudiated before or soon after majority age. (SEPARATE HANDOUT ON CHILDREN AS NDIS PARTICIPANTS) • Persons under legal guardianship: protect the rights and interests of adults who have impaired capacity; Public Guardian or other person with legal rights as substituted decision-maker. • Persons acting through agents/attorneys: valid within terms of Power of Attorney or authority of agent under agency law. • Bankrupts: have limited contractual capacity under Bankruptcy Act • Cognitive impairment, mental unsoundness or intoxication: impaired cognitive impairment; incapable of understanding nature of agreement; other party knew/ought to known; voidable; onus on plaintiff (SEPARATE HANDOUT ON LEGAL CAPACITY OF PERSONS WITH DISABILITY) • Corporate bodies: generally same contracting capacity as natural persons • Crown: generally same capacity as natural persons

8. Essential elements in contract law • 3. GENUINE CONSENT • Unconscionable conduct: conduct which should not be done in good conscience; more than simply unfair or harsh – it must have an element of bad conscience • Duress: use of threats, violence or intimidation • Undue influence: improper use of position, influence or power; onus on plaintiff • Common mistake: involves existence or identity of the subject agreement • Mutual mistake: parties are at cross-purposes • Unilateral mistake: the other party knows or reasonably ought to know mistake and does nothing to correct it • Misrepresentation: statement of fact inducing making of contract: innocent v negligent v fraudulent

9. Essential elements in contract law • OFFER AND ACCEPTANCE • Meeting of the minds: offer by one party and acceptance of that offer by another party • Offer: constituted and communicated by words, writing, actions; offer v invitation to treat; representations that induce person to enter into contract v mere puff; implied terms (e.g. fitness for purpose; reasonable care and skill; custom, usage, statue) • Revocable: at any time up to acceptance • Counter-offers: are not acceptance of the original offer • Acceptance: must be strictly in accordance with the terms of the offer, clear, certain and communicated

10. Essential elements in contract law • 5. CONSIDERATION • Must be definite: something of value passing from one party to the other in return for a promise to do something • Must have value: left to parties to bargain what is adequate • Certain agreements without consideration: Executed as a Deed (Signed, Sealed and Delivered)

11. Essential elements in contract law • 6. LEGALITY OF PURPOSE • Presumption of legality • Illegal by statute law: e.g. agreement to commit a crime • Illegal at common law: e.g. agreement to commit a tort • Against public policy or safety: e.g. tend to promote corruption in public office • Unconscionable conduct(SEPARATE HANDOUT)

12. Client Service Agreement – NDIS approach EXERCISE (separate handout): Review of NDIS model Service Agreement (suggested simplified Service Agreement for use by participants with providers)

13. Tips and Traps: standard template and any additional clauses • Document Title • Date agreement is made (executed) and term (start/end) • Parties (legal names; addresses; short title – Participant and Provider) • Preamble/recitals/background • Terms and Conditions • Offer and acceptance* • Consideration • Termination for cause* • Responsibilities/duties each party • Indemnities and Liabilities* • Non-assignment* • Payment for services (invoicing; direct debit; deposits?) • GST CONTINUED NEXT SLIDE >>>

14. Tips and Traps: standard template and any additional clauses • Amendments to the agreement • Dispute resolution* • Remedies • Obligations that survive termination* • Authorised contacts • Notices and communications • Entire agreement* • Exercise of own judgement on advice* • Force Majeure* • Execute additional documents and perform acts* • Applicable law* • Definitions/Interpretation* • Execution/signature clauses (WHO SIGNING? including execution under a Power of Attorney*) • Schedules and Appendices Other clauses?

15. Managing and enforcing parties’ rights and obligations under Client Service Agreements • Ensure the CSA is clear, concise and written/signed – and known/understood/used by all parties/staff – amend if circumstances change • Contemporaneous notes of meetings - contract performance feedback, complaints addressed and remedial actions documented • Give/receive early warning of potential/escalating disputes – get facts, consider options, make decisions, document considerations/actions • Formal written warning notices of potential/actual breach of contract – facts, causal factors, remedies required to resolve, consequences if not resolved, set timeframe for action to address; provide natural justice to respond • If appropriate seek legal advice – (complex, severe consequences, set precedent ) • Try to avoid legal enforcement in Tribunals or Courts – expensive

16. Final questions? Thank you Ken