Simon Dell (00:02)
So welcome to the CMO Fractional CMO podcast. ⁓ As we have recently rebranded and changed our name and all those kinds of things, turn this into a series two. So ⁓ welcome to that. My name is Simon Dell. I'm the CEO of CMO. I'm the host of this podcast. If you want to find anything out about CMO at c-e-m-o-h.com.

⁓ come and find out what we do. We are Australia's largest fractional marketing network. And you can find me on LinkedIn, all those sorts of places, or email me directly at simonatsemo.com. If you watch this and you like what we do and think we're fantastic, please give us a review on Spotify or iTunes or whatever platform channel you're listening to.

⁓ And if you think you would be a excellent guest on the podcast, if you are a fractional CMO or you are connected to the fractional CMO world in some way, again, please drop me a note and we'll see if we can get you on the show. Now, again, full disclosure today, ⁓ my guest today is a ⁓ lovely young lady by the name of Farah Motley, who ⁓ also happens to be my partner.

⁓ and is also sitting in a room somewhere else in this house. ⁓ So welcome to the show Farah.

Farrah Motley (01:29)
Thank you. No nepotism there.

Simon Dell (01:31)
No, none

at all, none whatsoever. ⁓ So we've spoken online before ⁓ because your background is law. So do you want to just give us the sort of two minute FARA history ⁓ and just sort of let everybody know what you do at the moment?

Farrah Motley (01:35)
Ha ha.

Yeah, sure. Sorry. ⁓ Been a lawyer for just over 11 years now. So time is flying. ⁓ I started out in private practice, ⁓ working for a large law firm and I went in house, which means I was ⁓ an employed lawyer acting for whoever my employer was at the time. And I've worked for a very large engineering company, an architecture company, ⁓ one of the ones that's particularly kind of

Simon Dell (01:56)
Mmm.

Farrah Motley (02:20)
with.

relevant to CMOs is a company that's a large international retailer distributor, lots of advertising material, all of that sort of stuff. ⁓ And also worked for a superannuation fund and a bank as in-house counsel, again, reviewing their kind of marketing collateral. And it's quite, quite regulated in that space. So that was interesting. ⁓ I started my own law firm ⁓ just about four and a half years ago now. So I'm the director

We're on lines, we don't have a physical office, we've got staff all around Australia and we help out lots of different types of clients, B2B space across Australia. They're in lots of different industries, so e-bikes, financial services, builders, architects, you name it. And we do some quite obscure areas of law like publishing and entertainment, but a lot in the marketing space as well, looking at

compliance, privacy, all of those sorts of things.

Simon Dell (03:25)
Okay, today we're gonna specifically talk about the implications from a legal perspective of being a fractional CMO. And there's obviously some challenges around that, multiple challenges around that. ⁓ But I think probably the first question I wanted to ask you is, it's more of a statement and just sort of get your opinion on this. When you are a consultant in any way, shape or form, be it financial, it...

be it marketing in this case, whatever, you have a certain legal duty of care to a number of different people, don't you? You can't simply go out there and give advice to people without there being an implication of you giving that advice.

Farrah Motley (04:13)
Yeah, that's right. mean, you know, there's, guess for anyone who's doing and you can correct me from wrong, but for anyone who's doing, you know, fractional CMO, I guess there's a certain level, baseline level of skill and experience that they tend to have, or they might not be a fractional CMO in the first place. so clients are coming to them, relying on them for kind of sound advice. ⁓

in order to achieve a certain objective that they want to achieve. Most clients hopefully would be aware that, you know, a marketing campaign or a particular, you know, strategy that's being developed to hopefully achieve a certain outcome, there's lots of variables that play into that. And so if that's not achieved, it's not necessarily the CMO's fault, but there is a line where

if there was an obvious risk or something that the CMO should have told their client about just as a means of good practice that the client couldn't be expected to know because they're not the CMO, that really you should be upfront and telling them about that. So that's duty of care piece. If there's an obvious risk about something that you should be making sure that you're addressing that with the client. And I'll put my lawyer hat and say, do it in writing.

Simon Dell (05:34)
Yeah. Well, I guess probably the big one would be, again, you know, you know, there isn't a huge amount of legal implications in running a marketing campaign, but I guess one of the challenges that a lot of fractional CMOs would, would face is the fact that they may say to a client, if you spend this money, we expect this kind of result. And I think everyone in marketing has been in one of those positions where.

they haven't had that result or they've had a much worse result than perhaps they predicted. Where does your liability as advisor sit with something like

Farrah Motley (06:06)
Yes.

Yeah, so it's it's really about calling that out to the client and I don't even think this is necessarily you know, yes, it's a legal piece, but it's also that common sense like making sure you're communicating with your client and building a good relationship with them. You know, if you if you make them aware that I can't guarantee this outcome, I think that this is going to achieve this outcome, but it might not. Here's some reasons why it might not.

Are you knowing the risks that you might put in a significant investment into the strategy that I'm recommending and you still might not achieve that outcome, are you still happy to go ahead? So that if things don't go the way that it's planned, it's not even a legal problem. It's, well, you told the client that they shouldn't expect that the outcome's gonna be absolutely certain. There's no guarantees around it.

Simon Dell (07:12)
And I guess from a client perspective, the reason for getting a fractional CMO in is that they've had enough experience to be able to predict a result in a relatively healthy, you know, with a relatively healthy margin of error. ⁓ You know, because that's why they're there, because they've presumably done these kinds of things before. They anticipate what could possibly go wrong and warm their client.

you know, you know, of those problems.

Farrah Motley (07:46)
Yeah, and it definitely does come down and this is this isn't any space, but it definitely comes down to how sophisticated is your client. You know, if it's mom and dad business, they want someone to step in and help. They've never done this stuff before. And then you know, it's kind of a first time for them.

there's a level of, you know, you should expect there's going to be a higher level of hand holding and saying, hey, you know, this is that there's some risk associated with this. This is what that looks like as opposed to working for an ASX listed company that has a big marketing team and you're stepping in and kind of guiding them.

Simon Dell (08:15)
Mm.

I guess in this day and age, and you see this quite often, potentially when a small business, and let's use your example, that mom and dad business, they may do something from a promotional perspective. They could be a cafe, a restaurant or whatever, and they do something. And for some reason or other, it goes insanely viral and causes them, you know, it causes them angst, causes them anxiety, causes them challenges, and maybe even causes...

a huge queue of people outside waiting to spend money with them. So I guess there's an element where you are a little bit of the mercy of fate to a certain degree.

Farrah Motley (09:12)
Yes, yeah. And I can think of, you know, a few controversial marketing campaigns, like as an example, like some controversial social media post or advert or whatever it was that's gone viral for the wrong reasons. And it may or may not have had a really good impact on the business.

Simon Dell (09:28)
Yeah.

Mmm.

Farrah Motley (09:33)
But I think the more towards that controversy or I'm really not sure how this is gonna play out and it's kind of high risk, the more you should be upfront and warning your client that, hey, this could go either way. Because imagine if you make a recommendation on something, it goes terribly and that you basically wipe out their business. It's a...

So that's where as that common sense approach, hey, here's an idea, but it could go really wrong or it could go really right. It just increases the need to be really upfront and transparent and kind of do a bit of a deep dive with the client on all the possibilities that could go right or wrong. And then at the end of the day, the decision still rests with them. And that goes for any recommendations that a CMO is making.

it's always about, know, here's some ideas, but the choice on whether and potentially how to implement it is yours. And you're going to accept these risks that might be associated with that.

Simon Dell (10:46)
You said right at the start that these sort of things should be done in writing, know, so you have that kind of paper trail. And would you sort of recommend, if you're sort of, you're sitting in a strategy session with the client, you're writing shit on a whiteboard and all this kind of, this sort of thing, would be to come out of that strategy session and then detail what's been agreed ⁓ and send that forward to the client to go, hey, here's what we've all agreed.

Farrah Motley (11:08)
Yes.

Yeah. Uh-oh. Yeah.

Simon Dell (11:13)
⁓ in that session and now we have that

all in writing.

Farrah Motley (11:17)
Yeah, or even, here's my account of, you know, just just for record keeping, here's my account of that discussion we've just had. Just let me know if you have any comments. Because the thing about making notes or having something in writing around the time that it occurred is it's really good evidence because people don't write notes thinking, ⁓ in six months, this particular issue is going to arise and and and you know, I should have this ready to go. It's usually quite truthful because you're just recollecting

it without the benefit of foresight knowing what's going to go wrong.

Simon Dell (11:52)
And I

guess probably that's where obviously in this day and age, we can be a lot more reliant on certain AI technology and AI tools to keep a track of things that are said in meetings so that we can accurately, you know, look back on those notes and go, okay, here's what we agreed and here's what everyone was, ⁓ you know, that's probably an important tool in the CMOs, in the CMOs chest these days.

Farrah Motley (12:02)
Yeah.

Yeah, yeah, 100%. Definitely. sorry. And I was going to say as well, know, thinking, thinking through it and depending on the kind of role that the CMO is taking on, you might have a situation where, you know, you're, you're making recommendations and overseeing a team that's implementing it. Maybe you're, you know, approving whatever goes out the door.

What if one of those team members is junior or a little bit incompetent or they're just grabbing images off of Google and putting them out into content. You've got IP infringement, copyright, all of those sorts of things that could potentially go wrong and you're not the one doing it, but you might be endorsing it and saying, this is good to go. That's a bit of a risk as well. Are you saying that

know you're accepting responsibility for that piece of work because you've had the final say on whatever the outcome is.

even though they're not your employee, they work for your client. ⁓ All of those issues, this is where they can really be put out explicitly in the contract. I'm big believer that you can have what you like in the contract, but if you're not raising it at the time and just being transparent in the moment with your client, it's not very helpful to have to bring out the, hopefully you never have to bring out the contract.

but even just from a client relationship perspective where those things are coming up like, hey, I've got a team of 20 people, I'm not sure what tools they're using to locate images and things like that. I assume that you've got protocols in place to make sure they're doing the right thing and I'm not gonna be looking into that.

Simon Dell (14:11)
Yeah, I think when we spoke last time, which was one of the, mean, there was a lot of interesting things, but one of the really interesting things is where you sort of said, if the client is doing something illegal or something questionable, you have a duty of care, that's your responsibility. It's, if they're, and you and I have had a conversation earlier today about pricing in retail and things like that is that,

Certainly, there's certain things if we sort of say, ⁓ you know, if you see your client doing something that you know is wrong, what should you do about it?

Farrah Motley (14:50)
Yeah,

yeah, I mean, I guess it depends on the level of wrong. ⁓ And whether it's said or it's in an email and you can't deny that you didn't get it. ⁓ But.

Simon Dell (14:56)
Okay.

Yeah.

Farrah Motley (15:06)
Yeah, think look, CMOs aren't lawyers, like, you know, that's not what you're supposed to be doing. It's not part of your scope. But if it's pretty obvious to you that this isn't right, put it in writing, say they should go and get some legal advice. And if they're asking you to, you know, because if you've been made aware of it, you should speak up and say, this is wrong, you should go get maybe get some legal advice. But just from my, you know, experience in the past, my understanding this you can't

this and this is why and if they're insistent you know don't endorse what they're doing you know don't just go well I told them that they should get some advice on this and I'm just gonna you know push it ahead anyway because potentially you could get wrapped up in a misleading and deceptive claim

Simon Dell (15:55)
Yeah, okay. So that sort of then sort of brings me to the point around contracts and how important a contract is with your client because I think this goes for a lot of contractors and freelancers, be they CMOs or be they graphic designers and things like that is to sort of say, what length should we be going to get some sort of contractual arrangement with our clients prior to commencing work?

and how detailed should that contract be?

Farrah Motley (16:27)
Yeah, so I think, you know, hopefully you never have to bring out the contract, but at

Simon Dell (16:33)
Yeah.

Farrah Motley (16:35)
a very minimum it should be in writing just so you can say well this is the fee we agreed on and this is what I agreed to do in exchange for the fee like just from a day-to-day I want an invoice and you don't want someone disputing whether they owe you that or not that's like the first you know practical reason why you should have a contract in place but

even going step further, think the level of detail of the contract or the things it needs to address, I think it does depend on the engagement itself. If you're doing something that's just really high level, you're just giving them some ideas, it's low risk, maybe something that's just really short and sweet is fine. ⁓

But if you're dealing with something that you think is high risk and it can go wrong for lots of reasons that might not have anything to do with you, I think that's where it's probably appropriate to have a bit more of an intense contract. And one thing I get consultants misunderstand, not just in this space, but in the consulting space more generally, is they think, ⁓ I've got insurance.

So if something goes wrong, you know, it's my insurance that's on the hook, but your insurance doesn't cover you for everything. And once your insurance is exhausted, it's gone. Like if you've got a million PI and something happens that's more than that, you know, you're still on the hook. again, the risk is somewhat lessened if you've got a company and all that set up, but.

you know, having if you're dealing with high risk ⁓ work, then you know, you might want to limit your liability. So if something goes wrong, you don't have to cough too much out of your own pocket. But I definitely think there's for the high risk stuff, you know, a little bit more attention to the contracts warranted. ⁓

Simon Dell (18:34)
There's

whenever we do a mentoring session or whenever I do a mentoring session for the Queensland government, they always they always used to start off by saying, saying to the person that was getting the the mentoring, the mentee, the mentee. Yes, the mentee. ⁓ They would say what you're about to get in the next 60 minutes is not advice, it's ideas, suggestions, it's guidance. They were very, very wary about using the word advice.

as if that all of a sudden that tips you into a different category of support. Is that the case or is that just the government being overly cautious?

Farrah Motley (19:16)
I think it's the government being really cautious, there's a line, right? Like, you know, I know if something I'm saying to someone is legal advice or not, this is not, you know, it's pretty obvious. But you know, if a CMO is in a position where, you know, they're having to, you know, defend them pushing back on something with a client and they start creating sections of the Australian consumer law or something, you could just, you know,

Simon Dell (19:27)
Yeah.

Farrah Motley (19:46)
You're obviously not a lawyer and you're obviously not giving legal advice, but you could just frame it like this is my view What do you think? Maybe you should go get some legal advice

Simon Dell (19:56)
Yeah, yeah. I think it was even more about just advising people. Because again, in those circumstances, was like, ⁓ one of the pieces of non-advice I've given over the years is that people sometimes shouldn't be in business alone. Some people are better having a partner or, you know, and all those kinds of things. And often I've said, you know, for you to grow this business, it would probably be a good idea for you to have a look at bringing somebody else on.

Farrah Motley (20:10)
Yeah.

Yes.

Simon Dell (20:26)
⁓

You know, my fear is then they go and find somebody and everything goes pear shaped and then they turn around and go, well, that dude in that thing gave me the advice that I should bring someone on. is that an extreme that, you know, perhaps we shouldn't be worrying about? Because I just think sometimes as a CMO, you might make offhand comments and throw out ideas. And all of a sudden these people go,

Farrah Motley (20:31)
and everything goes very well.

Hey, son.

Simon Dell (20:54)
Hey, that's a good idea. And then act on it without your continued guidance.

Farrah Motley (20:59)
No, so I've actually, I've got a kind of parallel to this where I had to draft up a contract for a business, a couple of businesses actually, they did asset advisory or it was similar stuff where they'd look at an old building, might be convention center or something like that and they'd look, okay, how could the client repurpose it? And you know, it almost straddled marketing a little bit in the sense they'd create like

Simon Dell (21:13)
Right.

Farrah Motley (21:29)
these. ⁓

know, examples of the types of people that might want to go there and demographics and things like that. And then they'd look at like the financial business cases to why this repurposing of this building might work and what you could do. But, you know, that's, that's so broad. You can't, whatever they choose to do from there, you can't, you can't be responsible for that. This is just an idea. And so it was just, we had like, you know, half a page about how, you know, this is an idea.

Simon Dell (21:52)
Yeah.

Farrah Motley (22:01)
It's based on limited information. What you choose to do with that information is up to you. We've tried to make sure it's based on relatively reliable information, but when you're coming up with these ideas and concepts that are kind of out of your head and there's no reference point to it, it's not like, I know that this is gonna achieve this because there's another situation over here that's exactly the same and I could control all the variables.

to some you can disclaim that but it's it's just I think it's equally as important to make your client abundantly aware of it in the moment rather than being like refer to page 26 of the contract.

Simon Dell (22:46)
Okay, well, let's talk about also IP and that sort of intellectual property because again, ⁓ not so much from a strategic perspective, but you know, with marketing, there's kind of a hand in hand strategic plus creative. And I often see these things where, you know, clients approach a graphic designer and say to the graphic designer, can you create me a logo and a brand? And the graphic designer goes and creates a logo and a brand. And then,

and then does this thing where they give the client the license to use that brand, but they still own the brand and things like that. And then you find that you go, well, I've put together this campaign. Sometimes there's this blurred line, I feel with consultants and creators where they still feel that they own some of the IP of what they've created. Is that the case or is that how them holding onto something that isn't theirs?

Farrah Motley (23:43)
Yeah, so I'll give you some scenarios. So let's pretend you're my client. I prepare a really terrible logo, because that's not my space, but I prepare a logo for you with the new brand's name. We don't have a contract. You've paid me, and I give it to you. There's an implied license that...

you you have a right to use this. You know, you're almost, it might also almost be akin to joint ownership where you and I both own it. I created it, but you paid me for it. So obviously you have to be able to use it. Let's say, now let's say we do have a contract. Well, the contract should be really explicit about do I own it? Do you own it? Do I have a right to use it? All of those sorts of things can be very black and white in the contract.

Simon Dell (24:31)
Yeah.

Farrah Motley (24:36)
But as well, let's say I create it, I give it to you, and you go and register it as a trademark. And as soon as that trademark's accepted, I have no rights anymore. You have all the rights. Because once you register a trademark and it passes registration, you are the exclusive owner. All bets are off.

Simon Dell (24:59)
Yeah. Okay.

Farrah Motley (25:01)
So, you know, it

sounds great to go, well, I created it and it's mine. But if you're gonna take that position, you're gonna need to, you trademark it and you license it to your client. And then, I don't know, maybe you wanna charge royalties or something like that.

Simon Dell (25:18)
Yeah, yeah. We had a good, I think there was an interesting conversation you and I had a couple of months back about this idea that you can, IP, you can copyright a strategic plan or a process. And I think that, know, again, correct me if I'm wrong, but the point that you made was that, you know, AI is so sophisticated now, there's no, there's nothing that you can really create from a...

a strategic plan perspective that the AI couldn't arguably come up with in about 30 seconds that would be as good if not better than something that you could come up with. You feel that that's the case in terms of trying to IP something that's a process.

Farrah Motley (25:58)
Yeah, so.

Yeah, so...

And they're, they're always whenever I talk to, you know, people in the marketing space, they're, they're often think everything's IP and it's not like, it's just not like the whole point around IP and the kind of rationale for IP law and why we have IP rights is by allowing people to have the exclusive right to commercialize something, whether it's a trademark or

Simon Dell (26:19)
Yeah.

Farrah Motley (26:38)
or a piece of a book, for example, subject to copyright, or a picture, or a painting, or whatever it is. By giving them the exclusive right to do that, you encourage innovation because they're only gonna do that because they're gonna get a benefit from it, which is generally to make money. And so it encourages innovation by allowing people to commercialize something because only they have the right to do that and they can enforce those rights. But...

You know, if I, let's say I've got a drawing of a, like an architect's drawing of a house and they've got a door detail.

that detail about how to build the door or what the door's gonna look like is not IP. It can never be IP because it's not unique. And if you gave someone the exclusive right to use a door detail, no one would be able to draw a door detail on the drawings, which wouldn't make sense. yeah, just stuff like that. Not everything is IP. Now let's go to the chat GPT piece.

Simon Dell (27:38)
Yeah. Yeah. Yeah.

Farrah Motley (27:50)
There has to be a level of human intervention. you can't, let's say I create something from chat GPT. I don't interfere with it at all. I just use it verbatim what the AI produced. And then I get really upset if someone else replicates it. There's been no human intervention in that process. And so there cannot be intellectual property in that. Now I can get.

I've seen this actually before when I've been reviewing manuscripts where people have taken a concept and one of them I think I saw it was like a commonly used like business

you know, a business process kind of strategy. But it and I googled it because I didn't know what it was and it had been used, you know, by thousands of people. It was on every other website. There were lots of books about it. It's not that concept. The idea is not IP anymore. It's it's way it's too commonly used all of that sort of stuff. So there's a difference between something that's had human intervention is new and unique.

Simon Dell (28:44)
Mm.

Farrah Motley (29:01)
versus something that's not.

Simon Dell (29:04)
Let's go to the pointy end of being a consultant, which is the most important part of the getting paid bit. ⁓ You've put a contract in place, let's say you've got a contract and within that contract, I would assume you would suggest mostly that there's terms for payment and things like that. Would you have that in the contract?

Farrah Motley (29:12)
Yes.

Yep, yep, absolutely. And as well, you know, what that looks like, like when you get paid, ⁓ it depends. Like if you're doing a set project and piece of work,

Simon Dell (29:29)
Okay.

Farrah Motley (29:42)
Like maybe if you don't know the client very well and you don't know if they're going to pay you, you have low confidence. Maybe do it at milestones like there's a deposit and then you're going to get the balance of the payment before you give them the actual thing that they're paying for. But you know, what you choose to do that it really depends on the level of trust between you and your client, you know, your own cash flow as well.

But for me, for example, if I don't know the client, can't take a deposit, but I will get...

half payment when I'm halfway through and then the final before I give the thing over just so that you hold the control because you don't want to have to waste your time and spend money trying to recoup a debt after you've done all that hard work and they've got exactly what they wanted or they're raising some petty dispute about your work just so that they can avoid paying you.

Simon Dell (30:41)
I think one of the things we did, which I think has changed the business for the better was look at security deposits. And I would suggest this to any consultant irrespective of whatever space you're in, would be to ⁓ create the idea of having a security deposit, which, and again, you tell me the legality and the benefit of these kinds of things.

but potentially having that security deposit which sits in a separate bank account, which is a holding bank account which is very clear to the customer that they get their security deposit back within 30 days of a job finishing or a contract finishing. ⁓ But also that you can use that security deposit if they fail to pay you. ⁓ If you sit there and go, well, they didn't pay me for the last 30 days, I've terminated the contract, I can now claim that security deposit.

Farrah Motley (31:26)
Yeah.

Simon Dell (31:36)
Are those kind of things? I'm hoping you're gonna say all those things are completely legal because if they're not we're in a lot of trouble, but that's yeah

Farrah Motley (31:36)
Yeah.

No,

as far as I'm aware, yes, there are professions that are regulated like mine. And unless I have a particular trust account with a particular setup, then I can't take money upfront. But I'm not aware that CMOs would have that kind of.

Simon Dell (31:46)
Yeah.

Farrah Motley (31:57)
arrangements. and look, all it comes down to is who holds the leverage to make sure you get paid. You want it to be you. And if you do have a security deposit type arrangement, or you're getting some payment upfront before you've done the work and then drawing down, you know, maybe it's a red flag if the client has an issue with that.

and it's not a valid reason because, do they intend to pay you when you do invoice? They shouldn't have a concern with it, so yeah.

Simon Dell (32:24)
Yeah, yeah, yeah. And if they

haven't, yeah, if they haven't got the cashflow in order to pay you as a pair of security deposit, again, another red flag that perhaps maybe you shouldn't be dealing with them or that they are going to be problems in the future. If you're in that kind of position, somebody does owe you money, what is the status, what is the process in Australian law in order to get that?

Farrah Motley (32:40)
Yeah, yeah, exactly.

Simon Dell (32:53)
Get that money back from people.

Farrah Motley (32:55)
Yeah, so there's a couple of avenues you can go down. So, know, lots of people send a letter of demand and then sometimes they just get ignored. A really good one. And there is a lot of, like, I'm gonna say it as if it's just a really easy thing to do, but if you get it wrong very slightly, you're in a bit of trouble. But you can statutory, if your client's a company, you can issue them a statutory demand.

So it's basically, and this can only be done if there's no dispute that the money's owing. Let's say you've followed up a few times and they just keep saying, yeah, I'll get it back to you next week. You can issue what's called a statutory demand and it's issued under the Corporations Act. And it basically gives your client 21 days to either pay the money

or they'd have to apply to court to try and set aside the statutory demand. And if they don't do that, if they miss that 21 days, legally they're presumed to be insolvent. So whenever I've sent, I've done this quite a number of times with companies that this is basically how they cash flow their business, that they just don't pay for as long as they can and then when someone issues a stock demand, they pay.

Simon Dell (33:45)
Yeah.

Right.

Farrah Motley (34:13)
So this one I've done it against this same company many times and they will jump on it as soon as they get that statutory demand they jump on it because there's going to be a whole world of hurt coming down on them particularly for the directors if they keep trading after that 21 day period when they're presumed insolvent that's a problem. So it's a really good ⁓ stick to use.

Simon Dell (34:31)
Yeah. Yeah. Okay.

Is that, mean, again, my question would be if you're a small trader, you're a small consultant, that a, how much does that cost in order to do, is that something?

Farrah Motley (34:47)
Yeah, sorry.

Look.

If you are really savvy and really confident about your legal skills, you could possibly do it yourself It's literally a form if you Google statutory demand form online It will pull up the form and then you attach like a one-page affidavit and it's basically from you saying here's the invoice It's still overdue. It is owing, you know all of those sorts of things. So it max It's two or three pages, but there are a lot of legal

rules around them and if you don't get them right you can be in a bit of trouble for you know you can't just start issuing statutory demands against people just as you like there are some rules to it so you need to tread a bit carefully so I do recommend getting a lawyer to do that if you're going to but

we do start demands for like $750 so you know depending on the amount of money that's owing to you and the likelihood that they'll jump on it really quickly it's it's worthwhile.

Simon Dell (35:50)
Yeah,

I guess this then sort of lends itself to the question with a lot of small, small consultants and small jobs. You know, if it's a job for $1,000 or $2,000 or $3,000, you know, you're not necessarily going to go down the road of doing a $750 stat, you know, demand. You know, those those are the sort of ones that you're asking for a bit more money.

I guess probably, you your advice for somebody like this. And I think you said it earlier on is that, is that staged, staged payments where, it's very good.

Farrah Motley (36:29)
Yeah, I mean, I've had that

before where it's such a small amount of money. If I start wasting my time trying to chase that, I'm going to be in the hole even more on that. you know, sometimes you just come just going to write it off because it's not worth my time. But you know, maybe on principle, you're just going to go, I'm just going to chase it. Well, you know, you can go to QCAT. It doesn't cost very much to lodge a claim there. It's just it takes a really long time to recover.

Simon Dell (36:57)
It does. It does.

Farrah Motley (36:59)
You can

Simon Dell (36:59)
It does.

Farrah Motley (37:00)
get interest but it just takes forever. You know, if it were me, I'd go down to their office in person and I'd sit there until they paid my bill but that's just me.

Simon Dell (37:03)
Yeah.

Well,

there's a person that we know about that owes us some money. So maybe I ought to do that and wait till they have me ejected from the building. ⁓ So, ⁓ So I guess, and I say this, this is more of a comment, but I say this to those people that are doing those small jobs. I think the staged approach is the best, which I've learned a lot from a lot of web developers. Web developers slightly have a sort of a better...

Farrah Motley (37:34)
It is.

Simon Dell (37:42)
grip on things than most people because they can always take someone else's website down, which is the ultimate kind of, yeah, absolutely, the ultimate punishment. dear, your hosting's failed. what a shame, you know? ⁓ That sort of thing.

Farrah Motley (37:42)
Hmm.

exactly who has control.

Yeah. Or even

another way you could do it and I don't, know, it depends on what you've been asked to do, but you could even give them something in read only format until I get the money in the account. You can't actually download it. You can't do anything with it. You can see what I've done, but

Simon Dell (38:10)
Yeah, I think to me the best has always been the stage payments do something like 50 % upfront. So you pay for half of my work now and then halfway through the job you then pay for the other half. So halfway through the job you've had 100 % of the payment and you've completed 50 % of the job.

And then the client isn't necessarily feeling like they are out of pocket. And that approach, I then think, works really well. And even if the client sort of objects to that, you go, hey, well, why? But why don't we do 25, 25, 25, and 25? This job's gonna take four weeks. You give me 25 % of the money at the start of every one of those four weeks. By the end of the four weeks, I've got fully paid. You've got the work that you want. And if at any point you're not happy with it, you're not.

Farrah Motley (38:47)
Yep.

Simon Dell (39:00)
you know, you can, we can sort of stop and check again. So, ⁓ you know, look, okay. So look, mean, there's a lot of good advice there. I think there's a lot of, there's a lot of challenges from a legal perspective that I don't think ⁓ many ⁓ consultants.

Farrah Motley (39:05)
Yeah, that's it.

Simon Dell (39:23)
actually consider. And I think this is probably the big challenge from when it comes to being a consultant, anyone could sit there and go, hey, I'm a marketing consultant tomorrow ⁓ with no previous experience, which is not quite the same as being a lawyer where you clearly often have to do a lot of work to get to where you get to. But what about, guess my last question today would be about those kinds of misleading claims. I think, you know, we've all...

We've all been in marketing long enough to know that some people in marketing tend to bend the truth every now and again. The challenge is about, you know, saying who you are when you aren't that person.

Farrah Motley (39:57)
Yep. Yep. Yep.

Yeah, so, I mean, look.

I've had this conversation with marketing teams before because I've been negotiating a contract. We sent the proposal out, Hunt says yes, and then we're negotiating the contract. I'm trying to tone the contract down a little bit, not promise so much. They'll go, but that was in the proposal document that your team sent. Why are you backing out on that now? I need to look at the marketing collateral and tone that down as well. ⁓

right if you if you make these wild claims and or not you can't verify best you know best in the world like you can't certain things you just can't verify whether that's true or not

Simon Dell (40:53)
No, of course, of course.

Farrah Motley (40:55)
but there are some, particularly around product pricing and all of that. And I'm not sure that a CMO would have much involved in that way, even, you you've selected or endorsed a picture of a product that is not an accurate depiction of the product and someone thinks they're getting something for $100 that's far better than they're actually getting. It's a different product. You know, are you on the hook for that?

It does depend on a lot of things, but if you've put your name to it and they've relied on you, you've not warned them about it, you've kind of failed in your duty of care, because maybe you should have picked that up, that it's not the product that you've been asked to put a campaign out on. ⁓ It's misleading deceptive conduct. That is such a low bar. If I'm planning on suing someone for promising something that they didn't deliver on.

I can go breach of contract, I can go negligence, but the easiest one by far is misleading and deceptive conduct, because all you have to prove is that whatever was said or done was not true and accurate. So if it's slightly untrue, and it doesn't even have to mislead someone, it just has the possibility of misleading someone. So it's just so easy to prove.

And that's why if you jump on a triple C website, splash all over there. But that's why I say it's about like that risk analysis is what I'm doing or the thing that I'm involved in for this client is at high risk. Cause maybe I should do some things to protect myself and push it back on the client. You even saying, Hey, I've actually not ⁓ reviewed anything to do with it. This is legally compliant or not.

you're gonna have to go and do that. Make sure you do before you turn it live. Just stuff like that can help.

Simon Dell (42:52)
It all boils down to good communication. you're communicating well with your client, if you can communicate in your concerns with your client, that sounds like most of the time that's gonna cover your backside. Is that a fair statement?

Farrah Motley (43:07)
Yes. Yeah.

Yeah. And it is. as well, I, the times where I've seen, or I've had to say to like marketing teams, Hey, this is not quite right. Is where they not. And the reason they've asked me in the first place is because they know they're trying to be a little bit tricky. Like if you're trying to trick the customer into think, you know, having a certain perception or whatever. Why, why are you having to trick them?

Simon Dell (43:28)
Yeah.

Farrah Motley (43:36)
or get into that space where it's turning a little bit grey now. If you're staying customer end user focused, you should just be able to put all the cards on the table and hope, trust that they'll come. But if you're having to try and trick them to do that, that's where you're moving into hot water territory.

Simon Dell (43:50)
Yeah.

Look, there's an argument I think we've all lived under the phrase sometimes, fake it until you make it. And it's interesting, we had an application in for a senior marketing person probably about four or five months ago and I looked at his LinkedIn profile and just the places that he'd worked just seemed to me to be not entirely accurate.

It'd been one of those ones where he'd somehow managed to do a fixed amount of time, two years. Two years at, I think it was five or six of probably the biggest global brands that I've ever seen, all completely not connected in terms of categories or verticals. So like, I can't remember what they were, but it was something like I did two years at Coca-Cola and then two years at Microsoft.

Farrah Motley (44:25)
right.

Okay.

Simon Dell (44:54)
And you're like, that makes no sense. So I guess my final point today, which is more of a statement than a question is that there's times when you can perhaps embellish your own achievements and your own experience and you can portray that in a certain way. But I put, sorry, yeah go on.

Farrah Motley (44:54)
No, unlikely. ⁓

Yep, and I will say on that very

thing, there is a ⁓ provision in the, not the Australian Consumer Laws in this piece of law, but Competition and Consumer Act, it expressly prohibits being misleading and deceptive on the, know, I'm trying to be a candidate, go for a job or whatever it is. ⁓ So if you do lie about that, there's a specific provision that deals with that. Yep.

Simon Dell (45:40)
Right, okay.

Right,

I guess that would be more for candidates for jobs, but I suspect that that could be used in a broader sense. Okay.

Farrah Motley (45:52)
Yeah, it's more broadly than that. Like if you're

a fractional CMO and you're, you know, putting a pitch out to a client and telling them all about your experience and it's not correct, but on the basis of the experience they think you have, they hire you, that's also misleading and deceptive because you're doing it to you know, a benefit money.

Simon Dell (46:06)
Yeah. And then especially if you then...

Yeah,

okay. And then especially if you then fuck up in that role as well when you've lied to get in. Yeah, okay. All right. Well, let's not nobody do that because that sounds like an extreme. That sounds like extremely bad idea. ⁓ So look, thank you very much for your time today. And I think there's some super valuable information there. If a fractional CMO or if somebody on the other side of it is looking to engage a consultant and wants to make sure

Farrah Motley (46:22)
No, I don't that.

Simon Dell (46:42)
the contracts correct and that they are doing that. What's the best way for them to reach out and contact you?

Farrah Motley (46:49)
Yeah, so our website's www.prospellaw.com.au We've got contact form on their phone number and email as well, so there's lots of ways they can get in touch with us. Even if it's just sense checking some marketing collateral, we can do that for free over a short phone call.

Simon Dell (47:06)
And of course, you're on LinkedIn. There's not that many Fara Motley's out there, so it's not hard to find you. So thank you very much. Thank you very much for your wisdom and ⁓ ideas and suggestions. Not advice. We didn't get any advice today. We just got wisdom and ideas. But thank you very much for that. It's ⁓ very much appreciated ⁓ and ⁓ have a good rest of your day.

Farrah Motley (47:14)
correct.

Simon Dell (47:33)
He's saying this with you're in the other room, but have a good rest of your day.

Farrah Motley (47:36)
you soon. ⁓

Thanks for watching everyone, bye!