|  Practical Legal Articles on Australian Law | | |  | | |
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The New Fair Work Act 2009
Author: Anil Herat
Firm: Legal Recovery Solutions
Date: November, 2009
Times viewed:
Remain Vigilant – or Your Rights may be Crushed
p>A recent Federal Court case highlights just how critical it is for parties to be absolutely vigilant about their intellectual property rights.The intellectual property rights in relation to the branding and sale of wine also remains a hot topic. In Rutter v Brookland Valley Estate Pty Ltd, the issue concerned copyright infringement associated with the branding and labelling of wine sold under the "Verse 1" label.
Author: Andrew Nicholson
Firm: Mullins Lawyers
Date: November, 2009
Times viewed: |  | | | | September 2009 | | | |
Warning: Increased Risk of Road Accidents on Long Weekends
If you are a professional driver spending the majority of your time on the road, you would be aware that the risks of being involved in a motor vehicle accident greatly increase during long weekends and other holiday periods like Easter and Christmas. Walker Legal acts for professional drivers who have suffered an injury on the road to ensure that they receive their just entitlements to compensation for their injuries.
Author: Steve Walker
Firm: Walker Legal
Date: September, 2009
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Asbestos: New Warnings for Home Renovation
New warnings have been issued on a potential risk of exposure to asbestos with the breaking news that thousands of Australians who have renovated their homes and ripped up old carpets may have exposed themselves to deadly asbestos fibres. Experts have warned that asbestosis and mesothelioma is now being seen in an ever-increasing number of people whose only exposure to asbestos has occurred in the home during renovations.
Author: Steve Walker
Firm: Walker Legal
Date: September, 2009
Times viewed: | | | | | June 2009 | | | |
Parramatta Local Multi-Court Complex Re-Opens (home)
The Parramatta Local Court multi-court complex will officially re-open on 13 July 2009 and Nyman Gibson Stewart (www.notguilty.com.au) are poised and ready to be the major force in criminal defence work at this busy court precinct.
Author: Phil Stewart
Firm: Nyman Gibson Stewart
Date: June, 2009
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The Where and the Why of Motor Vehicle Accident’s in NSW
Motor vehicle accidents occur everyday and at Walker Legal, our Compensation Claims Lawyers are acutely aware of this. According to official RTA figures motor vehicle accidents in New South Wales resulted in 438 fatalities and 23,895 casualties in the twelve month period ending April 2009.
Author: Steve Walker
Firm: Walker Legal
Date: June, 2009
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Workers Compensation - Current News and Movements
Official figures released by The Australian Safety and Compensation Council have confirmed that going to work can be fraught with danger with 236 fatalities and 132,055 serious workers’ compensation claims in Australia for the period 2006 to 2007. This is one of the biggest areas that our Workers Compensation Claims Lawyers specialise in.
Author: Steve Walker
Firm: Walker Legal
Date: June, 2009
Times viewed: | | | | | May 2009 | | | |
Tips and Tricks to Minimise Stress
The legal profession is demanding. While stress cannot be avoided, it is important to take steps to keep stress at a manageable level.
Author: Susan Waywood
Date: May, 2009
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Getting Arrested - What to do!
At Aston Legal - Criminal Defence Lawyers, we help our clients defend all criminal offences. Whether serious charges such as assault, drug offences, theft or fraud or less serious offences such as common assault or driving or traffic offences.
An important aspect of defending police charges is knowing what to do if you get arrested. We have provided some information which might assist.
Author: Hugo Aston
Firm: Aston Legal
Date: May, 2009
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Making the Interlock Program Work for You
The Alcohol Interlock Program is a court based program that was introduced in New South Wales in 2003. The program enables drivers convicted of certain major alcohol related offences to continue driving after a substantially reduced disqualification period if they obtain an Interlock Device and participate in the Program.
Author: Jonathon Taylor
Firm: Marbury Chambers
Date: May, 2009
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De Facto Property Determinations under the Family Law Act
Amendments which came into effect on 1 March 2009 have been made to the Family Law Act 1975 (“the Act”) to grant power to the Federal Courts to deal with property and spousal maintenance claims upon the breakdown of heterosexual and same sex de facto relationships.
If the breakdown of a de facto relationship occurs after 1 March 2009, a person will only be able to institute proceedings concerning financial matters against their former defacto partner under the new provisions of the Act. In New South Wales the Family Court of Australia and the Federal Magistrates Court of Australia will have jurisdiction to hear such claims.
Author: Carli Kulmar
Firm: Rockliffs Solicitors
Date: May, 2009
Times viewed: | | | | | April 2009 | | | |
Getting Arrested - What to do!
Getting arrested can happen to anyone. It can be scary. This story is about getting arrested. It will help you to know what to do if it ever happens to you.
Author: Hugo Aston, 0
Date: April, 2009
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Law Firm II: The Next Generation
How has your law office addressed succession planning? Does your office have a strategy in place?
Author: Susan Waywood
Firm: FindLaw Australia
Date: April, 2009
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Drink Driving Charges and You
So, you've been charged with a PCA
offence...
This guide explains what to do if you are pleading guilty to
a drink driving offence and have to go to a NSW Local
Court.
Author: Hugo Aston
Firm: Aston Legal
Date: April, 2009
Times viewed:
Going to Court
This guide explains what to do if you have received a Court
Attendance Notice (CAN) for a criminal offence and have to
go to a NSW Local Court.
Author: Hugo Aston
Firm: Aston Legal
Date: April, 2009
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RECENT DEMERIT POINTS CHANGES IN NSW
The demerit points system for traffic offences in NSW has attracted a lot of criticism. Quite simply, it is one of the harshest systems of its type anywhere in the worls. Very few jurisdictions have developed such an onerous, even punitive system that can leave many responsible, law abiding and cautious drivers in grave danger of being put off the road with all the associated implications. As we all know, the loss of one’s driving privileges can have a huge impact on work and family life. Indeed for many types of jobs it can mean that ongoing employment is no longer feasible. At any time, the loss of work is devastating. In times such as these, with the economy moving into recession, where it can be difficult, if not impossible to find an alternative position, the consequences can be truly life changing.
Author: Jonathon Taylor
Firm: Jonathon Taylor - Barrister
Date: April, 2009
Times viewed: | | | | | March 2009 | | | |
It's Not Just a "New Mistress Law": Family Law Act Now Applies to De Facto Marriage and Same-Sex Relationships
On 1 March 2009, new Commonwealth laws for spousal maintenance and the division of property for people in de facto relationships came into force. The Commonwealth Family Law Act 1975 now applies to both married and de facto couples as well as same-sex couples. Previously, de-facto relationships were covered by State Laws and disputes between de-facto couples were determined by State Courts such as the Supreme Court and County Court- Such disputes are now within the jurisdiction of the Family Court of Australia and the Federal Magistrates Court, as are disputes concerning children of all relationships.
Author: Silvio Auditore
Firm: Auditore Specialist Family Lawyers
Date: March, 2009
Times viewed: | | | | | February 2009 | | | |
Legal Aid Lawyers – Yes, We Do Legal Aid Work
Nyman Gibson Stewart, the leading criminal defence firm in Sydney , with 2 Accredited Specialists in Criminal Law and a further 8 solicitors who only do criminal matters, is perfectly placed to do Legal Aid matters such as local court committal hearings, district court trials, supreme court trials, appellate work in the Court of Criminal Appeal, district court sentence matters, district court appeals and any bail application that needs to be made.
Author: Phil Stewart
Firm: Nyman Gibson Stewart
Date: February, 2009
Times viewed: | | | | | November 2008 | | | |
Appeal Court Rules on Lawyers’ Obligations to Provide Timely, Definitive Advice
On 15 October 2008, the NSW Court of Appeal released its decision in Hancock v Arnold, [2008] NSWCA 254. The case concerned the obligations of solicitors and barristers to provide timely and definitive legal advice.
Date: November, 2008
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UNLICENCED DRIVING OFFENCES
Driving with a suspended, cancelled or disqualified licence is an increasingly common offence in NSW, and in fact in other states across Australia. It is occurring more frequently for a number of reasons but the two main reasons are the willingness of the RTA and the Sate Debut Recovery Office to suspend driver’s licences due to the non-payment of fines and also because the police are getting better at detecting at unlicenced driving.
Author: Jonathan Taylor
Firm: Jonathon Taylor - Barrister
Date: November, 2008
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WITHOUT EMPLOYMENT CONTRACTS - EMPLOYERS RISK LOSING IP
Businesses should be nervous if they do not have employment contracts with each of their (key) employees which specifically address who is entitled to any intellectual property created or developed by those employees in the course of their employment.
Author: Andrew Nicholson
Firm: Mullins Lawyers
Date: November, 2008
Times viewed: | | | | | October 2008 | | | |
COMMERCIALISATION OF INTELLECTUAL PROPERTY – LOOK BEFORE YOU LEAP
There are many traps for young players in the identification, protection and commercialisation of intellectual property. One wrong step may cause you to lose the ability to protect what has otherwise taken a great deal of time, cost and energy to develop.
Author: Andrew Nicholson
Firm: Mullins Lawyers
Date: October, 2008
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THE DEMERIT POINTS SCHEME
The Demerit Points Scheme is a national program that allocates penalty points (demerits) for a range of driving offences. The scheme is designed to encourage safe and responsible driving. Along with financial penalties, demerit points provide a strong incentive to drive within the law.
Author: Jonathan Taylor
Firm: Jonathon Taylor - Barrister
Date: October, 2008
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Customer Service
Some law firms excel at bringing in new business and keeping clients, while others struggle to do so. Often the difference is not attributable to legal talent. Instead, some firms excel at providing exceptional customer service. They understand that a client’s opinion about the firm is shaped every single time a client has contact with someone at the firm.
Author: Susan Waywood
Date: October, 2008
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Motor vehicle accidents NSW
The majority of people in New South Wales have been affected by a motor vehicle accident through their own experience or that of family and friends.
Firm:
Date: October, 2008
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Workers Compensation NSW – Workcover
Workers who suffer an injury at work in New South Wales will come into contact with WorkCover NSW when making a claim for workers compensation.
Firm:
Date: October, 2008
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LICENCE APPEALS IN NSW
Many people at some stage in their driving career find themselves in the unenviable position of losing their driver's licence. This can happen in a variety of ways but generally it arises either because too many demerit points are accrued or because a speeding offence of 30 or 45 kilometres per hour over the speed limit has been committed.
Author: Jonathan Taylor
Firm: Jonathon Taylor - Barrister
Date: October, 2008
Times viewed: | | | | | September 2008 | | | |
Paralegals
Paralegals play a vital role in the legal system. There is a slow but definitive trend toward the increased use of paralegals in the delivery of legal services.
Author: Susan Waywood
Date: September, 2008
Times viewed: | | | | | July 2008 | | | |
Compliance in the construction industry made a little easier
People such as directors, engineers, developers and administrators have responsibilities to comply with construction industry-related legislation on a daily basis. In Queensland, for example, such legislation includes the Building and Construction Industry Payments Act 2004, the Queensland Building Services Authority Act 1991 and the Workplace Health and Safety Act 1995.
Date: July, 2008
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Intellectual Property Services
In an increasingly knowledge-driven business environment, intellectual property (IP) is a key consideration in day-to-day business decisions. In particular, IP affects all IT-enabled companies and knowledge-based industries. Issues related to the protection, enforcement and exploitation of IP rights can have a significant impact on a company’s prospects for economic success or failure.
Author: Susan Waywood
Date: July, 2008
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Claiming Compensation as a Victim of a Crime
If you have been the victim of a violent crime including a sexual assault or molestation you may be able to seek compensation in the Victims of Crime Assistance Tribunal. This can include a lump sum payment up to $7500, counselling, loss of wages, medical bills and replacing damaged clothing.
Author: Snodgrass Legal
Firm: Snodgrass Legal
Date: July, 2008
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Claiming Your Rightful Inheritance Under a Will
When a person dies leaving a Will this should set out how all the property of that person (legally known as their Estate) is to be distributed.Many typical Wills leave property to a spouse or a partner, and then to children often in equal shares.
Author: Snodgrass Legal
Firm: Snodgrass Legal
Date: July, 2008
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De facto and Same Sex Couple Property Rights
When couples who have been in a de facto relationship, including same sex couples, decide to end their relationship issues of property division can arise.
Author: Snodgrass Legal
Firm: Snodgrass Legal
Date: July, 2008
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Divorce and Property Rights
When a married couple decides to separate issues of property division may arise. This commonly occurs, for example, when a couple has purchased property together such as a home.
Author: Snodgrass Legal
Firm: Snodgrass Legal
Date: July, 2008
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New legislation set to make law more accessible in Victoria
Law-making in Victoria is set to become more accessible, with new laws designed to modernise the state's Law Foundation.
Author: Azedeh Khalilizadeh
Date: July, 2008
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First waves of reforms commence to tighten Government spend on legal services
The Government's expenditure on lawyers is set for an overhaul, with the commencement of the first tranche of reforms on 1 July 2008.
Author: Azedeh Khalilizadeh
Date: July, 2008
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De Facto Disputes for the Family Court ?
A Bill has finally been put before Parliament that will eventually allow federal Family law courts to determine issues of property settlement and maintenance between de facto and same-sex couples.
Author: Christopher Dimock
Firm: Dimocks Family Lawyers
Date: July, 2008
Times viewed: | | | | | June 2008 | | | |
Networking for Women
Networking has long been essential to the practice of law. However, with more women entering the legal profession, methods of networking have changed. Not all networking techniques are universal and gender differences have resulted in new networking methods.
Author: Susan Waywood
Date: June, 2008
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Statutory Demands – Why time is of the essence
If you are a company director, your company may at sometime be served with a Statutory Demand under Section 459E of the Corporations Act. The purpose of utilising this section of the Corporations Act is to recover monies due and owing by the company.
Author: Anil Herat
Firm: Legal Recovery Solutions
Date: June, 2008
Times viewed: | | | | | May 2008 | | | |
Survey reveals public perception of judges up, lawyers down
A recent survey has revealed State Supreme Court Judges top the legal profession in standards of ethics and honesty.
Author: Azadeh Khalilizadeh
Date: May, 2008
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The Offshoring of Legal Services – Are Australian Lawyers on Board?
Globalisation has brought dramatic changes to the manufacturing, accounting and information technology sectors seeking cost advantages that Australian industries find increasingly difficult to match. In these sectors, offshoring or outsourcing initially attracted interest because of its cost advantages. Service providers are located in different countries where labour costs are substantially lower. It remains an open question whether professional services such as legal services will follow suit and move offshore.
Author: Susan Waywood
Date: May, 2008
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Funding announced for legal services – a “genuine attempt” to address shortfalls?
Federal Attorney General Robert McLelland announced a one-off additional funding of $10 million for the Commonwealth Legal Services Program. But the Law Council hopes the funding marks the beginning of a “genuine attempt” by the Government to address the program’s shortfalls.
Author: Azadeh Khalilizadeh
Date: May, 2008
Times viewed: | | | | | April 2008 | | | |
Beware of bogus roof painters in Western Sydney
NSW Fair Trading Minister, Linda Burney, today warned residents of western Sydney to beware of bogus roof painters who are operating in the area.
Firm: Barclay Churchill Construction Lawyers + Claim Consultants
Date: April, 2008
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Unlicensed builder Akari jailed for fourteen months
NSW Fair Trading Minister, Linda Burney, today announced that Benjamin Nuele Akari, an unlicensed builder, was sentenced to 14 months imprisonment and ordered to pay more than $9,000 for a string of serious offences under the Home Building Act and the Crimes Act.
Firm: Barclay Churchill Construction Lawyers + Claim Consultants
Date: April, 2008
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Owner-builders in the spotlight
NSW Fair Trading Minister, Linda Burney, today announced that owner-builders will be in the spotlight this month as part of a joint compliance program conducted by the Office of Fair Trading and WorkCover NSW.
Firm: Barclay Churchill Construction Lawyers + Claim Consultants
Date: April, 2008
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CTTT invites visitors to Law Week open days
NSW Fair Trading Minister, Linda Burney, today invited the public to attend the Consumer, Trader and Tenancy Tribunal’s (CTTT) open days during Law Week.
Firm: Barclay Churchill Construction Lawyers + Claim Consultants
Date: April, 2008
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Castle Hill builder fined $8,000
NSW Fair Trading Minister, Linda Burney, today welcomed the prosecution of a builder based at Castle Hill for a number of breaches of home building laws.
Firm: Barclay Churchill Construction Lawyers + Claim Consultants
Date: April, 2008
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Security of Payment Act 1999 (NSW) - Relief for Contractors
The Building and Construction Industry Security of Payment Act 1999 (NSW) ("Security of Payment Act") applies to all building and construction work or related services in New South Wales except residential building work carried to which the Home Building Act 1989 applies.
Firm: Barclay Churchill Construction Lawyers + Claim Consultants
Date: April, 2008
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Bikies Bill sparks debate about civil liberties in SA legal community
The Law Society of SA’s attack on the Government’s new “Bikies Bill” as going beyond basic and fundamental freedoms and “a dangerous assault on civil liberties” has been rejected by the state’s Premier. But the Greens were quick to back the Law Society’s efforts to obtain MP’s votes against the Serious and Organised Crime (Control) Bill.
Author: Azadeh Khalilizadeh
Date: April, 2008
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Law Week celebrated 21st year of promoting legal awareness
Law week was celebrated in NSW from March 20 to April 5, marking the 21st year the event has taken place. Once held only in NSW, the annual event is now celebrated across Australia, providing legal professionals an opportunity to participate in programs that help to educate the public about the law.
Author: Azadeh Khalilizadeh
Date: April, 2008
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Voice Recognition Software
Legal practice can be extremely busy and time saving techniques can be invaluable. Traditionally, many lawyers are too busy to do their own typing and have relied upon dictation. However, hiring additional staff to do typing can be costly. Increasingly, improvements to voice recognition software are making this technology a viable alternative.
Author: Susan Waywood
Date: April, 2008
Times viewed: | | | | | March 2008 | | | |
Indigenous Law - Amendments to the New South Wales Aboriginal Land Rights Act
On 1 July 2007 far reaching amendments came into force in relation to the NSW Aboriginal Land Council and all Local Aboriginal Land Councils. This followed a review process which commenced in 2004 focussing on structures, governance and land dealing matters.
Author: Eddy Neumann
Firm: Eddy Neumann Lawyers
Date: March, 2008
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Minimising the Legal Risks of the Employment Relationship
There are many challenges in dealing with employees. If employee relations are not managed appropriately, this can create legal risks for an employer. There are many things an employer can do to minimise these legal risks.
Author: Susan Waywood
Date: March, 2008
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Neighbourhood Justice Centre celebrates first anniversary – AG asks for apology
The Victorian Neighbourhood Justice Centre (NJC) has celebrated its first anniversary. But the State Attorney-General Rob Hulls seized the opportunity to question the Coalition’s support.
Date: March, 2008
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Legal experts call for Fiji to reverse ban on senior jurists visit
The Fiji Government’s decision to ban a visit by high-level legal experts has sparked alarm and disappointment amongst the international legal community.
Author: Azadeh Khalilizadeh
Date: March, 2008
Times viewed: | | | | | February 2008 | | | |
New world of superannuation benefits over 60s
Australians aged 60 or over will be able to access their superannuation benefits tax-free, following major amendments to the rules governing taxation of Australia’s superannuation system.
Author: Eddy Neumann
Firm: Eddy Neumann Lawyers
Date: February, 2008
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Equity and Trusts – Unjust Enrichment
Unjust enrichment is based on the premise that one party should not be unjustly benefitted at the other party's expense. Until 2007 it was believed this was an expanding area of the law and there was speculation that the test was unjust. Enrichment might include a subjective test as well as an objective test.
Author: Eddy Neumann
Firm: Eddy Neumann Lawyers
Date: February, 2008
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Contracts - unfair and harsh contracts
Independent contractors now have access to a new national system for settling disputes over unfair and harsh contracts with the commencement of the Commonwealth Independent Contractors Act 2006 (?the Act?) on the 1 March 2007.
Author: Eddy Neumann
Firm: Eddy Neumann Lawyers
Date: February, 2008
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Federal Magistrates positions open – method of appointment scrutinised
The Federal Attorney-General’s Department is seeking expressions of interest and nominations for Federal Magistrate positions. However the method of appointment is still under scrutiny, with some critics labelling the traditional government method as outdated and a recipe for political bias.
Author: Azadeh Khalilizadeh
Date: February, 2008
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Australian lawyers overseas – will the trend continue?
Australian legal services are in high demand in the international market. But the recently elected Rudd Government has been quiet on future initiatives to keep the overseas paths open for Australian lawyers.
Author: Azadeh Khalilizadeh
Date: February, 2008
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Building the Lawyer-Client Relationship with Candid Advice and Good Communication
Managing lawyer-client relationships can, from time to time, be challenging. There is always the potential for misunderstanding and mistakes when communicating with clients, but lawyers can minimise these risks.
Author: Susan Waywood
Date: February, 2008
Times viewed: | | | | | January 2008 | | | |
Figures count with loss of points, double demerits and licence suspension
Since 2000, the NSW road toll has been steadily dropping. The state ended 2007 with 443 fatalities, down 10% from last year.
Author: Graeme Heckenberg
Firm: Heckenberg Associates Solicitors
Date: January, 2008
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New Year brings new forms and fees for Supreme Court of Appeal
The New Year will mean a new wave of procedural rules for the NSW Supreme Court of Appeal and a staggering doubling of filing costs.
Author: Azadeh Khalilizadeh
Date: January, 2008
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Industrial lawyers beware: Forward with Fairness set to overhaul Work Choices
Industrial lawyers will need to prepare for a new year of workplace relations changes, with the Labor Government’s Forward with Fairness initiative coming into force early this year.
Author: Azadeh Khalilizadeh
Date: January, 2008
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ALRC Recommends Sweeping Changes to Privacy Laws
On 12 September 2007, the Australian Law Reform Commission (ALRC) released an extensive discussion paper, titled a Review of Australian Privacy Law. The report sets out over 300 proposals which, if implemented, would constitute the most sweeping changes to privacy law in Australia since the enactment of the Privacy Act 1988(Cth).
Author: Susan Waywood
Date: January, 2008
Times viewed: | | | | | December 2007 | | | |
Statutory Demands and Winding Up Applications – the risks of ignoring them!!
Experience has shown that most company directors do not understand the significance of Statutory Demands and Winding Up Applications when served on the registered office of the company.
Author: Anil Herat
Date: December, 2007
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WA latest state to support remote witness facilities
Western Australia is the latest state announcing new “remote witness” facilities for more effective litigation in regional communities.
Author: Azadeh Khalilizadeh
Date: December, 2007
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Law Council encourages family lawyers to stay away from court
The Law Council of Australia (LCA) has supported a new project encouraging parties to family law disputes to consider out-of-court means of resolving conflict.
Author: Azadeh Khalilizadeh
Date: December, 2007
Times viewed: | | | | | November 2007 | | | |
New South Wales Crime Commission
The New South Wales Crime Commission and the Australian Crime Commission are organizations authorized by legislation with significant powers to investigate serious criminal offences, to investigate the activities of persons of interest or persons suspected of being involved in criminal activity or having knowledge of criminal activity.
Firm: Nyman Gibson Stewart
Date: November, 2007
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Drug Matters
If you have been arrested for buying drugs, dealing drugs, drug charges, or drug importing then you need a drug defence lawyer.
Firm: Nyman Gibson Stewart
Date: November, 2007
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Contesting a Will in NSW - Undue Influence
Contesting a will is often the only chance a family member, loved one or other person entitled to an inheritance and excluded from a will has of protecting their rights.
Firm: Heckenberg Associates Solicitors
Date: November, 2007
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Disputing a Will & Lack of Testamentary Capacity
Wills are disputed for many different reasons and each case turns on its own particular facts and circumstances. Frequently family members or close friends of the deceased claim that the last will made by the deceased did not reflect their true intentions and should be set aside by the Court because the deceased lacked testamentary capacity to make a valid will at the time the will was made.
Firm: Heckenberg Associates Solicitors
Date: November, 2007
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Contesting a Will & Deceased Estate Litigation
It is feature of modern life that disputes about wills and deceased estates are occurring more frequently. Contested will disputes are often complex and stressful for the parties not only because they raise issues of relationships between family members and the deceased.
Firm: Heckenberg Associates Solicitors
Date: November, 2007
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Big Win in Court of Appeal
We are pleased to announce that the New South Wales Court of Appeal recently overturned a decision of the District Court resulting in a great outcome for one of our clients.
Date: November, 2007
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BPC goes to bat for England
Our partner, Courtenay Poulden, was recently selected to represent the English Rugby Union team as its legal counsel during its tour of Australia.
Date: November, 2007
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BPC Lawyers take on insurer for injured worker
In April this year we were successful in recovering compensation of close to $3,000,000.00 for one of our clients who suffered injuries in a motor vehicle accident that occurred during a break from work.
Date: November, 2007
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Challenges to mental health processes in New South Wales
Beilby Poulden Costello is currently at the forefront of litigation involving failures in the New South Wales health system in the care and treatment of mentally ill persons.
Date: November, 2007
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Hospital battles continue
Beilby Poulden Costello continues to be at the forefront of negligence litigation involving hospitals in New South Wales. There has been a lot of publicity over the last few years concerning problems in hospital care and it is certain to be a hot election issue in 2007.
Date: November, 2007
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When is a motor accident not a motor accident?
It is good to know that sometimes the injured person is the winner even when the insurer is prepared to take the issue all the way to the High Court.
Date: November, 2007
Times viewed: | | | | | September 2007 | | | |
Appointment of Female High Court Judge Welcomed: Process Questioned
The appointment of the third female High Court judge in Australian history has received widespread applaud. But the process of judicial appointment still remains under the spotlight.
Author: Azadeh Khalilizadeh
Date: September, 2007
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Choose Your Name Carefully to Minimise the Risk of Dispute
The recent Live Earth concert series generated both a massive amount of worldwide publicity for the environment and a small amount of litigation. The latter was in the form of an action commenced by Live Earth Resource Management Pty Ltd ("LERM"), a small Western Australian business.
Date: September, 2007
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Lawyer Wins Defamation Case Against Claims of Criminal Record Cover-Up
Lawyers can be assured the court will back them up in the face of defamation, with a New South Wales lawyer recently winning $60,000 in a case involving claims he had covered up a criminal conviction in order to be admitted to the Bar.
Author: Azadeh Khalilizadeh
Date: September, 2007
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Long-Tail Liabilities (Long-Tail Liabilities)
The Corporations and Markets Advisory Committee of the Australian Government released its discussion paper in June 2007 on so-called "long-tail liabilities". Long-tail liabilities are liabilities for personal injury which arise many years after the events that gave rise to them because the injury is not immediately apparent. Long-tail liabilities do not include claims arising from corporate conduct which result in immediate injury as the injured party is entitled to claim immediately against the company and therefore has creditor rights.
Author: Susan Waywood
Date: September, 2007
Times viewed: | | | | | August 2007 | | | |
Insolvency Reforms Pass Senate
The Senate has passed a package of insolvency reforms and the Bill is now awaiting Assent. The Corporations Amendment (Insolvency) Bill 2007 is the outcome of response to community and business concerns, and follows an extended period of consultation between Treasury, ASIC and other stakeholders including the Insolvency Practitioners Association of Australia. The Insolvency Law Advisory Group provided technical and other advice in the drafting of the legislation.
Author: Anita Sibrits
Date: August, 2007
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Silk's Purse Compensated: Barrister Wins Defamation Claim Against Fairfax
A NSW Barrister has triumphed against the media, after a $90,000 damages win for a defamatory article published in The Sydney Morning Herald.
Author: Azadeh Khalilizadeh
Date: August, 2007
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ALRC Launches Think Tank to Tackle “Fragmented” Legal Culture
The legal profession is increasingly "fragmented", according to the Australian Law Reform Commission (ALRC). In an effort to strengthen the "dramatically" changing legal culture in the face of increasing corporate pressures, the ALRC has launched the Australian Academy of Law in Brisbane on 17 July 2007.
Author: Azadeh Khalilizadeh
Date: August, 2007
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Legal Talent – The Ins and Outs
There has always been tough competition among law firms to attract the best and brightest lawyers. Today this competition is even fiercer, not only do law firms have to compete with local firms, corporate employers and other jurisdictions throughout Australia, Australian law firms have to be able to compete in a global market.
Author: Susan Waywood
Date: August, 2007
Times viewed: | | | | | June 2007 | | | |
A Goode thing Cowling is dead?
On 15 December 2006 the Full Court of the Family Court of Australia delivered Judgment in the case of Goode and Goode [1].
Author: Christopher Dimock
Firm: Dimocks Family Lawyers
Date: June, 2007
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Queensland next to implement national model laws for legal profession
Queensland is the latest jursidiction to implement reforms to the legal profession, after the Legal Profession Bill 2007 was passed by the state parliament on 22 May 2007.
Author: Azadeh Khalilizadeh
Date: June, 2007
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Australia and New Zealand set to close the gap on legal process
Australian and New Zealand lawyers will see closer jurisdictional ties when it comes to court proceedings, thanks to a new treaty proposed by a Trans-Tasman working group.
Author: Azadeh Khalilizadeh
Date: June, 2007
Times viewed:
HIGH COURT UPHOLDS THE CONSTITUTIONAL VALIDITY OF ASIC’S DISQUALIFICATION POWER UNDER S 206F OF THE CORPORATIONS ACT
In Visnic v ASIC [2007] HCA 24 Visnic had been the director of fourteen companies that had been wound up. A liquidator had reported under s 533 of the Corporations Act 2001 (Cth) that the corporation of which Visnic was an officer might be unable to pay unsecured creditors more than fifty cents in the dollar.
Author: TOM MIDDLETON
Date: June, 2007
Times viewed:
Listed Law Firms – The Way of the Future?
Not long ago you would have received strange looks if you had suggested that law firms could list on the stock exchange. In the professional services sector, it has largely been financial and advisory firms which have taken such a path. For most of their history, big law firms have been partnerships rather than corporate entities.
Author: Susan Waywood
Date: June, 2007
Times viewed: | | | | | May 2007 | | | |
First Australian law firm ties knot with Singapore under joint law venture
Allens Arthur Robinson (Allens) has become Australia’s first law firm to sign a joint law venture with a Singaporean firm under the Singapore-Australia Free Trade Agreement (SAFTA).
Author: Azadeh Khalilizadeh
Date: May, 2007
Times viewed: 4
Study shows lawyers most depressed – but help available
Lawyers have been found to experience the highest incidence of depressive symptoms amongst the professions, according to a recent study.
Author: Azadeh Khalilizadeh
Date: May, 2007
Times viewed: 5
Design/Copyright update
The sixty-four dollar question that any designer/author/inventor wants answered is "Can I protect my idea?" Unfortunately, the answer is not always as straightforward as you might expect.
Author: Andrew Nicholson
Firm: Mullins Lawyers
Date: May, 2007
Times viewed: 55 | | | | | April 2007 | | | |
Listed Law Firms – The Way of the Future?
Not long ago you would have received strange looks if you had suggested that law firms could list on the stock exchange. In the professional services sector, it has largely been financial and advisory firms which have taken such a path. For most of their history, big law firms have been partnerships rather than corporate entities.
Author: Susan Waywood
Date: April, 2007
Times viewed: 160
Lawyers and the Taxman
The structure of a law practice, and the taxation of that practice can be a huge variable affecting its overall success. Many individual practitioners may be so caught up in the hustle and bustle of practice that they do not take time to consider the big structural issues.
Author: Susan Waywood
Date: April, 2007
Times viewed: 204
How the Law Council of Australia is helping enhance the “business of all lawyers”
The Australian legal profession should be “strong, independent and unflinchingly willing to defend individual rights and the rule of law,” according to Law Council of Australia (LCA) president Tim Bugg.
Author: Azadeh Khalilizadeh
Date: April, 2007
Times viewed: 188
Lawyers can “maximise” contribution to society by improving access to justice, says Spigelman
The legal profession has not sought to articulate with “sufficient force” the scope and significance of its social, economic and political contribution, according to NSW Supreme Court Chief Justice Spigelman.
Author: Azadeh Khalilizadeh
Date: April, 2007
Times viewed: 173 | | | | | March 2007 | | | |
Voluntary Administration-A director’s choice or obligation?
If your company is facing cash flow shortages, unable to pay PAYG, GST and superannuation, unable to pay creditors debts as they fall due, then as a director of a company you have a mandatory obligation to avoid the company continuing to trade insolvent.
Author: Anil Herat
Firm: Legal Recovery Solutions
Date: March, 2007
Times viewed: 361
Shareholders Bolstered in Recent High Court Decision
A recent High Court decision could see shareholders with compensation claims walk away with millions of dollars as they rank alongside creditors after the collapse of a company.
Author: Valentina Misevska
Firm: Harris Wheeler
Date: March, 2007
Times viewed: 250
Directors and Managers Liabble for Company OH&S Breaches
A recent decision of the NSW Industrial Court serves as a serious reminder to directors and managers of the extent of their liability for Company breaches of Occupational Health and Safety laws.
Firm: Harris Wheeler
Date: March, 2007
Times viewed: 279
Facelifts, security and greenies - new age justice coming to a court near you
The latest state supreme court undergoing a nip and tuck is Sydney's King Street Courts, which has finally undergone its $2.5 million upgrade to commemorate the NSW Supreme Court's 180th year in the building.
Author: Azadeh Khalilizadeh
Date: March, 2007
Times viewed: 314
Activist judges will be destructive to public confidence in courts - Gleeson
Judges should not be political activists or they could risk loss of public confidence in the courts, according to High Court Chief Justice Murray Gleeson.
Author: Azadeh Khalilizadeh
Date: March, 2007
Times viewed: 308
Keeping a low profile
You were aware of someone there with a video camera
Author: Paul Brennan
Firm: Brennans Solicitors and Migration Agents
Date: March, 2007
Times viewed: 198 | | | | | February 2007 | | | |
Chief justice calls on Government to rethink judicial commission reform
NSW Chief Justice Jim Spigelman has called on the NSW Government to rethink its plan to reform judicial discipline, which he warns "would be wrong and contrary to constitutional principle."
Author: Azadeh Khalilizadeh
Date: February, 2007
Times viewed: 330
South Australia puts silks in the spotlight
Australia's system of appointing judges has been under the spotlight in the past year, with law councils and reform bodies calling for a less government involvement. But now the method of Queen's Counsel appointments is also under scrutiny, with SA Premier Mike Rann calling for a review of a "somewhat clubby" system late last year.
Author: Azadeh Khalilizadeh
Date: February, 2007
Times viewed: 340
Conflicts of Interest
Although all law graduates complete ethics courses as part of their legal training, some of the learning occasionally gets lost when lawyers enter the frenzied world of the legal profession. The days of firm loyalty have receded and practice of law has, for better or worse, become very business focused.
Author: Susan Waywood
Date: February, 2007
Times viewed: 538
Billable Hours
The Showcase TV network in North America features a television series set in Toronto, Canada called "Billable Hours". The title alone is enough to evoke a strong reaction from members of the legal profession. However, many of those outside the legal profession have equally strong views on billing practices.
Author: Susan Waywood
Date: February, 2007
Times viewed: 351
How far can you go when you are chasing a debtor?
There are some restrictions placed on you when you are chasing debtors. Section 60 of the Trade Practices Act "prohibits the use of physical force, undue harassment or coercion in connection with the supply or payment for goods and services by a consumer." The following would be considered to be "undue harassment"...
Author: Anil Herat
Firm: Legal Recovery Solutions
Date: February, 2007
Times viewed: 359
Protecting your Business Information
Confidential information includes any information that is of value to your business to continue its operation and market advantage. This may include customer lists, procedures, techniques, product processes, marketing information and statistics.
Author: Anil Herat
Firm: Legal Recovery Solutions
Date: February, 2007
Times viewed: 348
Stratas,Common Property and Building Defects
Under a strata scheme, land is subdivided into strata lots and common property. Strata lots are owned exclusively by individual lot owners, whilst common property is collectively owned by all the lot owners.
Author: David Doyle
Firm: The Builders Lawyer - Construction Industry Specialists
Date: February, 2007
Times viewed: 486
Can employees be sued for misleading conduct? High Court says Yes
The Trade Practices Act, and related legislation, prohibits persons from making false and misleading representations. In most cases the "person" making the false and misleading representation will be employees or agents of a corporation. In such circumstances the corporation is liable.
Author: Robert Newton
Firm: Connor Hunter
Date: February, 2007
Times viewed: 341
Crown liable to pay exemplary for Police Officer assault: High Court
New South Wales v Ibbett [2006] HCA 57 examined the extent of employers liability for their employees tortious conduct. The High Court of Australia determined employers vicarious liability extends to covering their employees' exemplary damages.
Author: Paul Harpur
Firm: Connor Hunter
Date: February, 2007
Times viewed: 296 | | | | | January 2007 | | | |
Employees can now be Held Personally Liable for Misleading and Deceptive Conduct
On 13 December 2006, the High Court in a unanimous decision held that two employees of a business were personally liable for misleading and deceptive conduct. They were subsequently found liable for damages incurred by a client who relied upon their incorrect advice.
Author: Valentina Misevska
Firm: Harris Wheeler
Date: January, 2007
Times viewed: 572
Overseas Travel Restrictions for Directors of Insolvent Companies
Section 486A (1) states that on the application of a liquidator the court may make orders:
Author: Leigh Adams
Firm: Leigh Adams Lawyers
Date: January, 2007
Times viewed: 342
Employment Issues on Sale of Business
When is there a transmission of business? Two cases in this area which are relevant are The Minister for Employment and Workplace Relations –v-Gribbles Radiology P/L (2005) 138 IR 252 and PP Consultants P/L –v- Finance Sector Union (2000) 201 CLR 648.
Author: Leigh Adams
Firm: Leigh Adams Lawyers
Date: January, 2007
Times viewed: 547
Building or Renovating
If you are building your dream home or just renovating, here are some tips to ensure that your interests are protected...
Author: Anil Herat
Firm: Legal Recovery Solutions
Date: January, 2007
Times viewed: 439 | | | | | December 2006 | | | |
Best Practice Ideas at Christmas - Whatever happened to the Christmas Bonus
For many years gone by the Christmas bonus was given by employers to all their staff each year, to say thank you to their employees for their hard work and loyalty through-out the year.
Author: Kim Malone-Schultz
Date: December, 2006
Times viewed: 418
Report Calls for Closer Ties in Australasia
On 7 February 2005 the Hon. Philip Ruddock asked the House of Representatives Standing Committee on Legal and Constitutional Affairs to inquire into and report on the harmonisation of legal systems within Australia, and between Australia and New Zealand, with particular reference to differences that have an impact on trade and commerce.
Author: Susan Waywood
Date: December, 2006
Times viewed: 356
CGT Rolls Over for BFAs
With effect from Tuesday, 12 December 2006, we can expect greater use to be made of financial agreements as a means of resolving property disputes between married and de facto partners.
Author: Christopher Dimock
Firm: Dimocks Family Lawyers
Date: December, 2006
Times viewed: 631
Testamentary Promises and the Family Provision Act
Frequently people are promised they will be provided for in a will only to find that promise challenged after the deceased’s death. This often results in the will being disputed.
Author: Graeme Heckenberg
Firm: Heckenberg Associates Solicitors
Date: December, 2006
Times viewed: 709
Protection of Intellectual Property Rights-Beware the Unjustified Threat
Businesses risk winding up in Court in the event that they (incorrectly) assert that they own copyright (or other IP rights) in a work. Many people are unaware that the Copyright Act contains an "unjustified threats" provision...
Author: Andrew Nicholson
Firm: Mullins Lawyers
Date: December, 2006
Times viewed: 508
Judicial Appointments: Is there a Need for Reform?
In recent times there has been a significant debate about the process for appointing judges in Australia. Much of the debate has been triggered by recent changes to the judicial appointment process in England and Wales. Canada has long-since taken steps to change its judicial appointment process and has gone so far as to require the most recent appointee to the Supreme Court of Canada to undergo a publicly televised appearance before an Ad Hoc Committee of Parliamentarians.
Author: Susan Waywood
Date: December, 2006
Times viewed: 718
A national legal profession – who will decide?
The Law Council of Australia (LCA) has attacked Federal Attorney-General Philip Ruddock’s call for a national registration scheme for lawyers. But according to Mr Ruddock, reports he had given the states an “ultimatum” on the legal profession was “an exaggeration.”
Author: Azadeh Khalilizadeh
Date: December, 2006
Times viewed: 423
Victorian Govt backs community legal services – but is it working?
Politicians are not normally known for being charitable, or particularly concerned with legal aid for struggling families. But the Victorian Government has shown it is not afraid to put legal services funding back on the agenda.
Author: Azadeh Khalilizadeh
Date: December, 2006
Times viewed: 439 | | | | | November 2006 | | | |
Prevention Is Cheaper Than The Cure
Do you want your business to go into liquidation? Do you want to lose $millions like some other Companies. Do you want to spend $thousands on litigation costs? If the answer is no to any or all of these questions, then read on...
Firm: Access Legal Pty Ltd
Date: November, 2006
Times viewed: 486
Collaborative Family Lawyers - What Women (and Men) Want!
Marriage is a strange phenomenon that happens to human beings. And the best part is, both the unmarried and the married are unhappy, though for radically opposite reasons, one for not being married, and the other for being married
Author: Silvio Auditore
Firm: Auditore Specialist Family Lawyers
Date: November, 2006
Times viewed: 635
Penalties and Declaratory Relief under the Spam Act 2003 (Cth)
Earlier this year, the Federal Court held in Australian Communications and Media Authority v Clarity1 Pty Ltd [2006] FCA 410 that Clarity1 and its Managing Director, Mr Wayne Mansfield, had breached the Spam Act 2003(Cth).
Author: Peter Black
Date: November, 2006
Times viewed: 472
The Value of Exit Interviews
Failure to retain your experienced staff can cost your firm thousands of dollars as well as loss of knowledge management. It is therefore vital to recognise this and take proactive steps to reduce staff turnover, and determine ways to retain your employees.
Author: Kim Malone-Schultz
Date: November, 2006
Times viewed: 707
Traffic Education Programs
There are many traffic offender programs and driving education programs that operate through the Sydney metropolitan area and the greater west. This article focuses on the Traffic Offenders Education Program at South Sydney Police Citizens Youth Club at Redfern
Author: Lionel Rattenbury
Firm: Armstrong Legal
Date: November, 2006
Times viewed: 1036
ASIC halts first law firm ASX listing
An interim stop order lodged by the Australian Securities and Investments Commission (ASIC), has put on hold the first public listing of a legal group on the Australian Stock Exchange.
Author: Azadeh Khalilizadeh
Date: November, 2006
Times viewed: 834
Out-of-court litigation
Lawyers may find themselves increasingly out of court, with Federal Attorney-General Phillip Ruddock broadening dispute powers so more people can "embrace" the growing trend towards alternative dispute resolution (ADR).
Author: Azadeh Khalilizadeh
Date: November, 2006
Times viewed: 448 | | | | | October 2006 | | | |
Obvious Risks of Dangerous Recreational Activites; What the NSW Court of Appeal has Decided
Great Lakes Shire Council v Dederer & Anor: Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101
Author: Brian Glendenning
Firm: Harris Wheeler
Date: October, 2006
Times viewed: 389
Legal Education and the National Practice of Law
Victoria's Legal Profession Act 2004, based on the National Model Legal Profession Legislation, allows legal practitioners in Australia to practice law throughout the country with one practicing certificate.
Date: October, 2006
Times viewed: 674
The Retail Shop Leases Amendment Act- Landlord's View
The Retail Shop Leases Act 1994 (the"Act")was amended by the passing of
Author: Jim Mullin
Firm: Michael Sing Lawyers - Legal Solutions
Date: October, 2006
Times viewed: 367
What you need to know - enforcing judgment by issuing a STATUTORY DEMAND
What is a Statutory Demand?
Section 9 of the Corporations Law defines a Statutory Demand as:
Author: Anil Herat
Firm: Legal Recovery Solutions
Date: October, 2006
Times viewed: 1265
Lawyers say NSW personal injury laws “unfair” – business groups defend government
Peak legal bodies in New South Wales are on a mission to educate the public on “unfair” personal injury laws. But business groups are concerned the campaign is “misinformed” and will only serve “lawyers’ cash flow”.
Author: Azadeh Khalilizadeh
Date: October, 2006
Times viewed: 607
Victoria to scrap clerkships from 2008 - Report
Victorian Attorney-General Rob Hulls has announced articled clerkships may be abolished as early as July 2008, following a recent review recommending a new “Queensland-style” traineeship model.
Author: Azadeh Khalilizadeh
Date: October, 2006
Times viewed: 709
OPC Fund Management Fees
The Protective Commissioner of NSW (“OPC”)manages the financial affairs of persons whom are
Author: Ian Paul
Firm: Polemic Forensic
Date: October, 2006
Times viewed: 460 | | | | | September 2006 | | | |
Work Choices-are you ready for new record keeping requirements?
From 26 September 2006 all employees covered by WorkChoices (i.e. all corporate employers) must comply with new requirements with regard to keeping time and wage records for their employees.
Author: John Simpson
Firm: Cropper Parkhill Solicitors
Date: September, 2006
Times viewed: 660
Fund Management Fees - damages in personal injury claims
The recent High Court decision in the appeal from the Queensland Court of Appeal in the case of Willett v Futcher [2005] HCA 47 has expounded upon the definition of the head of damages that may be claimed as financial management fees.
Author: Ian Paul
Firm: Polemic Forensic
Date: September, 2006
Times viewed: 441
Thinking of buying a business?
There has been a huge growth in the SME (small business) market in Australia.
Author: Ian Paul
Firm: Polemic Forensic
Date: September, 2006
Times viewed: 404
Family law property settlements and asset tracing
An increasing number of family law litigants either carry on a business and/or have substantial superannuation assets.
Author: Ian Paul
Firm: Polemic Forensic
Date: September, 2006
Times viewed: 723
What do I call you?
Some separated parents face a difficult decision when one or other parent establishes a new and committed relationship: What to call the stepparent?
Author: Gary Direnfeld
Firm: Gary Direnfeld
Date: September, 2006
Times viewed: 414
Parents: Invest in your relationship
Remember the days before having kids? No pressures; do what you want; just you and your partner.
Author: Gary Direnfield
Date: September, 2006
Times viewed: 732
Marriages On The Cusp
There are three general scenarios that bring couples to counselling.
Author: Gary Direnfield
Date: September, 2006
Times viewed: 494
Best Practice – Importance of a Successful Induction / Orientation process
Being able to manage the integration of new personnel into your work environment is probably one of the major investments your firm will make each year.
Author: Kim Malone-Schultz, Managing Director of Kim Malone & Associates Legal HR & Recruitment Spec
Date: September, 2006
Times viewed: 1357
When politics and justice don’t mix: judicial appointments under scrutiny
Australia’s system of appointing judges has been under the spotlight in recent months, with some critics labelling the traditional government method as outdated and a recipe for political bias.
Author: Azadeh Khalilizadeh from FindLaw
Date: September, 2006
Times viewed: 734
Court renovation rescues justice in the 21st century
State Governments are becoming increasingly pre-occupied with giving their courthouses designer makeovers, in the face of development and higher demand.
Author: Azadeh Khalilizadeh from FindLaw
Date: September, 2006
Times viewed: 496 | | | | | August 2006 | | | |
What you need to know when defending Debt Recovery Proceedings
Information procedures towards settlement
Author: Anil Herat
Firm: Legal Recovery Solutions
Date: August, 2006
Times viewed: 867
When should decision makers step aside for apprehended bias? High court
Introduction
The High Court of Australia in Smits v Roach [2006] HCA 36 considered when apprehended
Author: Paul Harpur
Firm: Connor Hunter
Date: August, 2006
Times viewed: 776
If my animal is injured how much can I spend to restore it to good health?
A question that bedevils animal owners is;: if my animal is injured how much can I spend to restore it to good health?
Author: Jonathan D'Arcy
Firm:
Date: August, 2006
Times viewed: 675
Making an offer of Employment – "The Right Decision"
Making that final decision to hire an Employee is so important, not just for the associated recruitment costs but to the future growth of your practice - more particularly to the smaller legal practices.
Author: Kim Malone-Schultz, Managing Director of Kim Malone & Associates Legal HR & Recruitment Spec
Date: August, 2006
Times viewed: 1285
New Media Framework for Australia
Last month, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, announced significant media reform.
Author: Peter Black from Queensland University of Technology
Date: August, 2006
Times viewed: 1350
Understanding Google – Part 1
Many legal web site owners understand the importance of Google and frequently use the search engine but don’t really understand how it works. In this series of articles I will try and educate you on some of the important things you should understand as a web site owner.
Date: August, 2006
Times viewed: 1051
PROTECTING YOUR INTELLECTUAL PROPERTY RIGHTS
Consistency is the key in brand development.
Author: Andrew Nicholson
Firm: Mullins Lawyers
Date: August, 2006
Times viewed: 1119
How long does it take to rebuild trust?
Author: Gary Direnfield
Date: August, 2006
Times viewed: 724
Ever Wondered about Working Overseas?
Australian lawyers are inundated with advertisements for overseas positions in places such as London, Hong Kong, New York and Dubai. The volume of postings raises questions related to inter-jurisdictional practice and how it is that Australian lawyers are able to practice law in a foreign jurisdiction.
Author: Susan Waywood from FindLaw
Date: August, 2006
Times viewed: 2355
Strengthening international ties could give new opportunities for Aussie lawyers
Government and Law Council initiatives to strengthen international ties with the US and China over the past month, may see a new wave of opportunities for Australian lawyers.
Author: Azadeh Khalilizadeh from FindLaw
Date: August, 2006
Times viewed: 926
Nominations now open for the 2006 Justice Awards
The Law and Justice Foundation has announced that nominations are now open for the 2006 Justice Awards.
Author: Azadeh Khalilizadeh from FindLaw
Date: August, 2006
Times viewed: 849 | | | | | July 2006 | | | |
How should a corporation sign a PAMD Form 30c and a residential contract under the Property Agents & Motor Dealers Act 2000 (Qld)?
Author: Annette Greenhow
Firm: Michael Sing Lawyers
Date: July, 2006
Times viewed: 1034
Deceased gives cheque but cashed after death
In a recent case regarding a disputed estate an issue arose as to whether a cheque not cashed before the deceased
Author: Graeme Heckenberg
Firm: Heckenberg Associates Solicitors
Date: July, 2006
Times viewed: 1795
Ethical Duties Owed by Lawyers
Lawyers are bound to follow the minimum standards of professional conduct governing the Legal Profession;
Author: Silvio Auditore
Firm: Auditore Specialist Family Lawyers
Date: July, 2006
Times viewed: 1393
The Family Law Amendment - (Shared Responsibility) Bill 2005
The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (the “Act”) came into effect on 1 July 2006.
Author: Christopher Dimock
Firm: Dimocks Family Lawyers
Date: July, 2006
Times viewed: 2118
Asset Protection and Trusts Under Attack
Finding
On 29 June 2006, French J of the Federal Court found that under s.1323(1)(h) of the
Author: Valentina Misevska
Firm: Harris Wheeler
Date: July, 2006
Times viewed: 2340
Proposed government bill reduces share holder power
Author: Paul Harpur
Firm: Connor Hunter
Date: July, 2006
Times viewed: 930
If you offer employment: you must employ
Justices Gyles, Edmonds and Greenwood have punished Citygroup an estimated 4 million dollars for
Author: Paul Harpur
Firm: Connor Hunter
Date: July, 2006
Times viewed: 1452
What is the Alcohol Interlock Program?
What is the Alcohol Interlock Program?
Author: Lionel Rattenbury
Firm: Armstrong Legal
Date: July, 2006
Times viewed: 1738
High Court rejects vicarious liability claim
The High Court has clarified a principal’s vicarious liability for independent contractors.
Author: Paul Harpur
Firm: Connor Hunter
Date: July, 2006
Times viewed: 1256
Win Lawyer Buy in to Business Development Skills Coaching – Part 2
Last month we examined some of the difficulties law firms face when trying to build buy-in for business development skills coaching. These included lack of incentives and relevance for lawyers, fear of being perceived as "salesy", poor measurement of progress and so on. This month we outline some solutions.
Author: John Gelagin and Kerry Kirton from Influence
Date: July, 2006
Times viewed: 762
Suggested Interview Style & Techniques
The interview process can be somewhat daunting and not just for the Applicants. Often it is very time consuming for the interviewer also, as there are so many scenarios to take into consideration. As a Principal of a law firm or an HR Professional, you must be mindful of what you can ask and what not to ask.
Author: Kim Malone-Schultz, Managing Director of Kim Malone & Associates Legal HR & Recruitment Spec
Date: July, 2006
Times viewed: 1032
The Pre-Marital Toilet Test
Author: Gary Direnfield
Date: July, 2006
Times viewed: 712
Workplace Relations Online – a better choice for understanding Work Choices
Widespread confusion and resistance to the Federal Government's new Work Choices legislation, means legal experts have to work even harder to address the ever-increasing industrial relations concerns.
Author: Azadeh Khalilizadeh from FindLaw
Date: July, 2006
Times viewed: 1308
Award winning web sites
FindLaw announced the start of the 2006 FindLaw Web Site Awards last month. So what makes up an award winning legal web site? I thought it an opportune time to go over the scoring criteria of the awards and look at how your site can work within this criteria, to come out on top.
Author: , FindLaw
Firm: FindLaw Australia
Date: July, 2006
Times viewed: 947
Who Called? An Overview of the Do Not Call Register
All Australians will probably have experienced the annoyance of telemarketing phone calls. A growing sense of dissatisfaction within the community about telemarketing activities (including privacy concerns) prompted the Federal Government to introduce on 25 May 2006 the Do Not Call Register Bill 2006 and the Do Not Call Register (Consequential Amendments) Bill 2006.
Author: Peter Black from Queensland University of Technology
Date: July, 2006
Times viewed: 1022
Law Societies: To be or not to be a member
It used to be compulsory for all lawyers to be a member of their state based law society or institute. While it remains compulsory to take out insurance provided by a law society, lawyers now have a choice as to whether they wish to be a member of their law society.
Author: Susan Waywood from FindLaw
Date: July, 2006
Times viewed: 861 | | | | | June 2006 | | | |
Let Go To Win - Child Custody Disputes
Author: Gary Direnfield
Date: June, 2006
Times viewed: 996
Drinking and Parenting
Author: Gary Direnfield
Date: June, 2006
Times viewed: 608
WILLS AND ESTATES MEETS CYBERSPACE…
Advances in digital technology are posing a new challenge for estate lawyers,
Author: Edward Scott
Firm: Cropper Parkhill Solicitors
Date: June, 2006
Times viewed: 644
WORKCHOICES - THE AUSTRALIAN FAIR PAY AND CONDITIONS STANDARD WHAT DOES IT MEAN FOR YOUR BUSINESS?
The Federal Government's new WorkChoices legislation was implemented on 27 March 2006 and
Author: Frances Anderson
Firm: Moores Legal
Date: June, 2006
Times viewed: 1426
Taxation Law - Appeals to the Federal Court
Firm:
Date: June, 2006
Times viewed: 596
Taxation Law - Taking Action (AAT & STCT)
Firm:
Date: June, 2006
Times viewed: 648
Taxation Law - Changes to Private Rulings
Firm:
Date: June, 2006
Times viewed: 558
Taxation Law - Private Rulings
Firm:
Date: June, 2006
Times viewed: 755
Does The Duty of Utmost Good Faith Apply to Claims
Firm:
Date: June, 2006
Times viewed: 1163
Claim Brokers
Firm:
Date: June, 2006
Times viewed: 452
Why Insurance Claims Are Not Paid
Firm:
Date: June, 2006
Times viewed: 613
Cleardocs & Thomson - A partnership guiding you from knowledge to implementation in one easy step
Author: Thomson Press Release
Date: June, 2006
Times viewed: 464
Employment Law – Unfair Dismissal and the Workplace Relations System
Firm:
Date: June, 2006
Times viewed: 1017
Criminal Law - Drugs: Police Sniffer Dogs: Part 1
Firm:
Date: June, 2006
Times viewed: 526
Criminal Law - Drugs: Police Sniffer Dogs: Part 2
Firm:
Date: June, 2006
Times viewed: 655
Criminal Law - Drugs: The Pitfall of Pills: Part 1
Firm:
Date: June, 2006
Times viewed: 619
Criminal Law - Drugs: Pills and Drug Weight: Part 2
Firm:
Date: June, 2006
Times viewed: 689
Criminal Law - What Do I Do When I Am Arrested?
Firm:
Date: June, 2006
Times viewed: 863
Employment Law - Workplace Bullying
Firm:
Date: June, 2006
Times viewed: 1098
Criminal Law - Serious Traffic and Drink Driving Offences
Firm:
Date: June, 2006
Times viewed: 1915
Immigration Law – Classes of Parent Visa and Application Process Fact Sheet
Firm:
Date: June, 2006
Times viewed: 501
Immigration Law - What To Do With Our Parents?
Firm:
Date: June, 2006
Times viewed: 633
Employment Law - What Type Of Employee Am I?
Date: June, 2006
Times viewed: 714
Consumer Claims - What Do I Need To Know About Them?
Firm:
Date: June, 2006
Times viewed: 332
What Impact Has Civil Liability Act 2002 (NSW) Had On Damages and Personal Responsibility?
Firm:
Date: June, 2006
Times viewed: 854
What Insurance Crisis - Is There Really One Following The Collapse Of HIH and FAI?
Firm:
Date: June, 2006
Times viewed: 624
Difficulties Facing Today's HR Professionals
Like most office/work environments a major issue confronting our HR Professionals in today’s employment market is an uphill battle to find and employ experienced legal personnel.
Author: Kim Malone-Schultz, Managing Director of Kim Malone & Associates Legal HR & Recruitment Specialists
Date: June, 2006
Times viewed: 888
Secrets to producing an effective Law Firm web site
Here are some secrets you should know on how to design a web site that will improve your lawyer marketing results.
Author: FindLaw Australia
Firm: FindLaw Australia
Date: June, 2006
Times viewed: 822
ACMA's Fight Against Spam
The Australian Communications and Media Authority (ACMA) has taken two significant steps forward in the fight against spam in the last few months.
Author: Peter Black from the Queensland University of Technology
Date: June, 2006
Times viewed: 1299
Record-Keeping under WorkChoices: How Law Firms are Affected
Before the Commonwealth Government’s introduction of the WorkChoices amendments, the Workplace Relations Regulations 1996 set out record-keeping and payslip requirements applicable to employees covered by awards, certified agreements and Australian Workplace Agreements.
Author: Susan Waywood
Firm: FindLaw Australia
Date: June, 2006
Times viewed: 1658
Win Lawyer Buy in to Business Development
Partnerships have become acutely aware of the importance of business development and the need to upskill their lawyers in the art and science of building relationships with existing and prospective clients. But do legal staff share in the partnership's interest in business development?
Author: John Gelagin and Kerry Kirton from Influence
Date: June, 2006
Times viewed: 763
Want to be alert to what’s happening in your legal practice? Then you need Alert24
Imagine a product that announces the latest in legal news, tracks legislation across all jurisdictions and leads you to all recent case development - all delivered right to your inbox.
Author: Azadeh Khalilizadeh
Firm: FindLaw Australia
Date: June, 2006
Times viewed: 668
Son Who Was Left Out of Mother’s Will Obtains His Inheritance
In a recent case a son wished to contest the will of his mother’s deceased estate.
Author: Graeme Heckenberg
Firm: Heckenberg Associates Solicitors
Date: June, 2006
Times viewed: 1054 | | | | | May 2006 | | | |
Skilled Migration
The Skilled Migration Scheme has never received such attention and promotion as it now does.
Author: Terence B Ogge
Firm: Michael Sing Lawyers - Legal Solutions
Date: May, 2006
Times viewed: 904
Restrictive new retirement visa
Author: Terence B Ogge
Firm: Michael Sing Lawyers - Legal Solutions
Date: May, 2006
Times viewed: 899
Law Protects the Home Buyer
Home buyers have been specially protected in this State of New South Wales by a succession of Government policy
Author: David Doyle
Date: May, 2006
Times viewed: 754
High Court rejects vicarious liability claim
Author: Robert Newton
Firm: Connor Hunter
Date: May, 2006
Times viewed: 1087
Small Scale Offering Board
Chapter 6D of the Corporations Act (Cth) 2001 deals with fundraising.
Author: Leigh Adams
Firm: Leigh Adams Lawyers
Date: May, 2006
Times viewed: 889 | | | | | April 2006 | | | |
Effects of Exposure to Domestic Violence From Childhood to Adult Life
One of the many problems for children exposed to domestic violence, is that for some, it comes to be included amongst their own interpersonal management strategies.
Author: Gary Direnfield
Date: April, 2006
Times viewed: 779
How Do You Rate Your Separation
When parents separate, they worry about the effect of their separation on the kids. Not only is there data to suggest that adults whose parents separated when they were children are at greater risk of divorce themselves, but also data that suggests the greater the parental conflict during separation, the greater the likelihood of negative outcomes for the children. The challenge for parents is determining their level of conflict and supporting their kids accordingly.
Author: Gary Direnfield
Date: April, 2006
Times viewed: 863
Habitual Traffic Offender Declarations
What is the effect of being declared a habitual traffic offender?
Author: Lionel Rattenbury
Firm: Armstrong Legal
Date: April, 2006
Times viewed: 1583
Separated parents in dispute-Don’t drag in your service providers!
Separated parents in high conflict have a way of dragging others into their child custody and/or access dispute. Not just family friends, and neighbours, but every professional associated with the children.
Author: Gary Direnfield
Date: April, 2006
Times viewed: 802
The Family Law Ammendment - (Shared Responsibility) Bill 2005
The Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) (the “Bill”) is expected to become effective on 1 July 2006 and contains the most radical reforms of our system of Family Law in 30 years.
Author: Christopher Dimock
Firm: Dimocks Family Lawyers
Date: April, 2006
Times viewed: 2131
Children's Cases Re-invented - The Family Court Children's Cases Program
The purpose of the new Family Court Children's Case Program is to "examine a new way of conducting family law litigation … intended to alleviate some of the problems associated with the current adversarial system of determining a dispute".
Author: Silvio Auditore
Firm: Auditore Specialist Family Lawyers
Date: April, 2006
Times viewed: 1437 | | | | | March 2006 | | | |
Bankruptcy and Family Law
The Bankruptcy and Family Law Amendment Act 2005 (“BFLAA”) received Royal Assent on 18 March 2005 and was effective in its entirety, by
Author: Christopher Dimock
Firm: Dimocks Family Lawyers
Date: March, 2006
Times viewed: 1234
An Affair is No Way to End a Marriage
Author: Gary Direnfield
Date: March, 2006
Times viewed: 1213
ENVIRONMENTAL PLANNING AND ASSESSMENT BILL 2006
The above Bill was recently introduced to the NSW Parliament.(“EP&A Act”).
Author: Brian Glendenning
Firm: Harris Wheeler
Date: March, 2006
Times viewed: 604
IT Projects – Contracting for Success
Most businesses in Australia rely on computers to some extent and many rely on software systems specifically tailored to the business by external providers.
Author: Greg Bodulovic
Firm: Cropper Parkhill Solicitors
Date: March, 2006
Times viewed: 481
PROTECTING YOUR INTELLECTUAL PROPERTY RIGHTS
Author: Andrew Nicholson
Firm: Mullins Lawyers
Date: March, 2006
Times viewed: 968 | | | | | February 2006 | | | |
Drink Driving - The Legal Ramifications
Due to extensive education programs by State Governments and local community organisations, most drivers in 2005 are aware of the dangers of drink driving. Since the introduction of drink driving legislation in approximately 1978, statistics indicate that many thousand of lives have been saved due to a reduction in the road toll.
Author: John Cox
Firm: Cox Lawyers
Date: February, 2006
Times viewed: 1512
Building & Construction Industry Payments Act 2004
On 1st October 2004, the Building & Construction Industry Payments Act 2004 (“BCIPA”) came into effect.
Author: Byron Cannon
Firm: Ferguson Cannon Lawyers
Date: February, 2006
Times viewed: 691
Solicitor Trust Accounts - External Examinations
Author: Ian Paul
Date: February, 2006
Times viewed: 220
Brendan’s Law: Changes to Hit & Run Legislation
The New South Wales Parliament recently passed legislation providing for tough new penalties for drivers failing to stop after a Motor Vehicle Accident.
Author: John Cox
Firm: Cox Lawyers
Date: February, 2006
Times viewed: 866
COURT DECLINES TO GRANT RELIEF FROM CIVIL PENALTIES TO COMPANY OFFICER
ASIC –v- Vines [2005] NSSC 1349
The NSW Supreme Court (Austin J) has declined to grant relief under either s.1318 or s.1317JA of the Corporations Act 2001 to the former chief financial officer (Mr Vines) of companies in the GIO group, in respect of earlier findings by the Court that he had failed to discharge his statutory duty of care and diligence in his disclosures to the Board in the context of a takeover bid.
Author: Valentina Misevska
Firm: Harris Wheeler
Date: February, 2006
Times viewed: 412 | | | | | January 2006 | | | |
WORKCHOICES - AWARDS AND AGREEMENT MAKING
WorkChoices is law. The legislation was passed by Parliament early in December 2005 and assented to by the Governor General on 14 December 2005. The provisions relating to the small business severance pay exemption and the establishment of the Fair Pay Commission came into operation on assent while the remainder of the Act is expected to come into operation in March 2006 on a date still to be determined.
Author: Frances Anderson
Firm: Moores Legal
Date: January, 2006
Times viewed: 1198
Sensitive New Age Family Law Settlements
Divorce litigation rarely solves, but often prolongs and perpetuates family conflict.
Author: Silvio Auditore
Firm: Auditore Specialist Family Lawyers
Date: January, 2006
Times viewed: 999
WORKCHOICES – THE CHANGES TO TERMINATION OF EMPLOYMENT
One of the main areas of change under the WorkChoices legislation concerns termination of employment. Many employers are already aware that WorkChoices will exempt employers of less than 100 employees from unfair dismissal claims. However, few employers are aware of the details of these and other relevant provisions. In this article, we review some of the changes to termination of employment under WorkChoices.
Author: Frances Anderson
Firm: Moores Legal
Date: January, 2006
Times viewed: 1511
Benefits of Risk Management Strategies
Author: Ian Paul
Date: January, 2006
Times viewed: 456
Assessing and Managing School-Age Children with Behavioral Problems
Your child is about 7 years old. The teacher reports problems listening in class, sitting still and getting into conflict with peers. First thought always seems to be ADHD (attention deficit hyperactivity disorder). But what if that was not the case?
Author: Gary Direnfeld
Date: January, 2006
Times viewed: 495
Carer inherits to the detriment of children of deceased
In a recent case in the Supreme Court, the deceased, an elderly woman, was survived by a number of adult children.
Author: Graeme Heckenberg
Firm: Heckenberg Associates Solicitors
Date: January, 2006
Times viewed: 937
Family law property settlements and asset tracing
An increasing number of family law litigants either carry on a business and/or have substantial superannuation assets.
Author: Ian Paul
Date: January, 2006
Times viewed: 845
Expert witnesses and the Civil Procedure Act 2005
Practice Note 128 was issued by the Supreme Court of NSW on 18 November 2004 and commenced on 31 January 2005.
Author: Ian Paul
Date: January, 2006
Times viewed: 590 | | | | | November 2005 | | | |
Sibling issues when one has special needs: Am I my brother’s keeper?
Rivalry between siblings is commonplace. Siblings vie for parental attention as well as access to family resources such as the television, computer, telephone and so on. However in families where there is a child with special needs the impact on well siblings can take on added proportions.
Author: Gary Direnfeld
Date: November, 2005
Times viewed: 576
The New Investor Retirement Visa
On 1 July 2005 the popular Retirement Visa Scheme was replaced by a new Subclass 405 Investor Retirement Visa .
Author: Glenn Ferguson
Firm: Ferguson Cannon Lawyers
Date: November, 2005
Times viewed: 650
To Fax or Not to Fax? The Property Agents and Motor Dealers Act 2000 (Qld)
A recent Queensland Court of Appeal decision involving the interpretation of property legislation has lead to much discussion about the commercial convenience of contract formation versus technical compliance with the Property Agents and Motor Dealers Act 2000 (the ‘PAMD Act’). This article considers the Court of Appeal decision in MNM Developments Pty Ltd v. Gerrard and the proposed amendments to the Act.
Author: Annette Greenhow
Firm: Michael Sing Lawyers
Date: November, 2005
Times viewed: 600
MISLEADING AND DECEPTIVE CONDUCT AND PRE-CONTRACTUAL NEGOTIATIONS: AN UPDATE
Author: Valentina Misevska
Firm: Harris Wheeler
Date: November, 2005
Times viewed: 652
Vendor’s obligation to make reasonable efforts to register plan
The recent Supreme Court decision of Actall Pty Limited v Pacific Bay Development Pty Limited [2005] NSWSC 1067 is a useful decision concerning the right to rescind in accordance with clause 28 of the 2000 standard form of contract.
Author: Louise Kirychenko
Firm: Australian elawyers
Date: November, 2005
Times viewed: 515
Parental Guilt and Kids with Special Needs
For the most part pregnancies are met with the anticipation of a good delivery and healthy baby. Upon delivery parents do a quick scan of the child checking for ten fingers, ten toes and if unknown, a check of the genitals to determine gender. A positive check is met with a sense of relief and gracious thanks for such beautiful a child.
Author: Gary Direnfeld
Date: November, 2005
Times viewed: 518
Children and Parents Adjust to Separation
You haven’t separated physically yet, but the ink is dry on your parenting plan agreement and you are ready to go your separate ways. Now reality bites!
Author: Gary Direnfeld
Date: November, 2005
Times viewed: 686
Grant v Commissioner of Patents - Another Piece to the Puzzle of Business Methods
Patent laws throughout the world have always faced the problem of defining what constitutes suitable subject matter for patents. These largely static laws must grapple with the ever changing and growing nature of technology as, inevitably, whole new fields of endeavour come about which could not possibly have been envisaged at the time the laws were created.
Author: Will Monks
Firm: F B Rice & Co
Date: November, 2005
Times viewed: 663
Beware of the Bogus Agencies
We have all heard of the notorious Nigerian scams, and many of us will have been invited to use our bank account as a means of participating in the clandestine transfer of mega dollars from a secret account in Nigeria controlled by someone's uncle, a former Chief-of Staff in the Nigerian army, the nephew of the Secretary of State of Nigeria, or some other fictitious person.
Author: Peter Carter, Doug Carter
Firm: F B Rice & Co
Date: November, 2005
Times viewed: 511
Review of the right of repair or spare parts exclusion under the Designs Act 2003
When the Designs Act 2003 came into force in Australia on 17 June 2004 it introduced, for the first time, "right of repair" provisions into the Australian registered design system. The previous legislation - the Designs Act 1906 contained no such provision.
Author: Jeremy Dobbin
Firm: F B Rice & Co
Date: November, 2005
Times viewed: 503 | | | | | October 2005 | | | |
Fund Management Fees - damages in personal injury claims
The recent High Court decision in the appeal from the Queensland Court of Appeal in the case of Willett v Futcher [2005] HCA 47 has expounded upon the definition of the head of damages that may be claimed as financial management fees.
Author: Ian Paul, of Polemic Forensic Accountants
Date: October, 2005
Times viewed: 318 | | | | | September 2005 | | | |
Becoming an enlightened family lawyer
It's time to break free from the subconsciously entrenched view that court orders are always required to regulate the lives of parents and children after separation, Accredited Specialist family lawyer Silvio Auditore writes.
Author: Silvio Auditore
Firm: Auditore Specialist Family Lawyers
Date: September, 2005
Times viewed: 1090
Fringe Benefits Tax & Salary Packaging – Benefits to both Employers and Employees
Considerable financial benefit can be gained by employees who are either recruited or transferred from areas outside their new location. Employers can also use the benefit as an added enticement when trying to attract staff.
Author: Ian Paul, of Polemic Forensic Accountants
Date: September, 2005
Times viewed: 1043
When can a Grandchild Make a Claim on their Grandparent's Deceased Estate?
The Family Provision Act 1984 (NSW) provides legal remedies for people to claim against deceased estates in situations where they feel they have not received their inheritance or been properly provided for by the deceased.
Author: Graeme Heckenberg
Firm: Heckenberg Associates Solicitors
Date: September, 2005
Times viewed: 1131
Long Service Leave in Victoria – the changes
The Victorian State Government's proposed changes to the Long Service Leave Act 1992 (LSL Act) were passed by Parliament in May 2005. The amendments come into operation on 1 January 2006. In this article, we review some of the key amendments and their implications for employers.
Author: Frances Anderson
Firm: Moores Legal
Date: September, 2005
Times viewed: 6875 | | | | | August 2005 | | | |
Proposed Changes to Retail Leasing Legislation
As expected, the changes proposed by the Retail Shop Leases Amendment Bill 2005 adopt principles and standards in Queensland that are already included in retail legislation in both NSW and Victoria.
Author: Christine Adamson
Firm: Allens Arthur Robinson
Date: August, 2005
Times viewed: 722
Another Way Around Amcor?
The Australian Industrial Relations Commission recently found that employees were not entitled to severance payments on redundancy when they were offered acceptable alternative employment with a new employer.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: August, 2005
Times viewed: 723
Federal Court Restrains CEPU
A recent Federal Court decision provides an example of the interaction between certified agreements, common law contracts and the law of torts.
Author: Nico Burmeister
Firm: Allens Arthur Robinson
Date: August, 2005
Times viewed: 752
Civil penalty and disqualification orders: An overview of the Vizard case
This article considers the implications of the successful proceedings for civil penalties and a disqualification order brought by the Australian Securities & Investments Commission against a former non-executive director of Telstra.
Author: Guy Foster, Kim Reid
Firm: Allens Arthur Robinson
Date: August, 2005
Times viewed: 1256
General Order on termination, change and redundancy introduced to employment in WA
On 1 August 2005 a new General Order of the Western Australian Industrial Relations Commission (Commission) took effect. Importantly for employers in WA, the changes introduced by the General Order may increase their responsibilities and obligations upon termination, redundancy and the introduction of changes that are likely to have significant effects on employees.
Firm: Allens Arthur Robinson
Date: August, 2005
Times viewed: 1074
Lenard’s Case – franchise disclaimers and acknowledgements
The Full Court of the Federal Court has warned that franchisees may be sued if they wrongly complete standard franchise documents.
Author: Andrew Nicholson
Firm: Mullins Lawyers
Date: August, 2005
Times viewed: 1324
“Culture of Contempt” Costs Copyright Infringers a Bundle
In Sony Entertainment (Australia) Limited v Smith [2005] FCA 228 (11 March 2005) the Federal Court of Australia handed down a stern warning for those taking a cavalier approach to copyright infringement.
Author: Chris Wilde
Firm: Clark McNamara Lawyers
Date: August, 2005
Times viewed: 872
The Internet and your Trade Mark: Protecting your business from overseas internet suppliers
The Internet has drastically altered how goods are offered for sale. Consumers can now browse the online catalogues of suppliers located all over the world, and with the click of a button, order goods from London, Istanbul or Hong Kong and have them delivered to their door within 24 hours.
Author:
Firm: Clark McNamara Lawyers
Date: August, 2005
Times viewed: 824
Employer, Labour Hirer and Independent Contractor All Liable for Death
Emoleum (Aust) Pty Ltd v Cecil Henry Bond & Ors [2004] NSWCA 352: The NSW Supreme Court of Appeal has ordered a labour hire company, the company it hired labour to and an independent contractor to pay damages in respect of the death an employee of the labour hire company.
Author: Tony Cardillo, Valentina Misevska
Firm: Harris Wheeler
Date: August, 2005
Times viewed: 614
Guideline Judgment in Relation to High Range Drink Driving Offences
The Attorney General of NSW recently applied for a guideline judgment concerning the offence of high ranged PCA under section 9(4) of the Road Transport (Safety & Traffic Management) Act 1999. Justice Howie gave the leading judgment which was supported by the other four presiding members of the Court.
Author: Tony Cardillo, Daniel Lewis
Firm: Harris Wheeler
Date: August, 2005
Times viewed: 2422
Warning - Signature on Commercial Contracts Binding Even if Signatory did not Read Contract
In a recent High Court case of Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd & Ors, all 5 judges agreed that, subject to any statutory or equitable relief (such as for duress, misrepresentation or mistake), a party who has signed a contract will be bound by that contract even if the person who signed the contract on behalf of that party did not read the terms of the contract.
Author: Valentina Misevska
Firm: Harris Wheeler
Date: August, 2005
Times viewed: 1353
No Right to Appeal Against a Driving License Suspension Due to Demerit Points
The recent case of Roads and Traffic Authority of New South Wales v Ali Salim [2004] NSWSC 1276 has further clarified the position of a driver who has had his or her licence suspended due to the accumulation of demerit points.
Firm: Harris Wheeler
Date: August, 2005
Times viewed: 2334
Planned Changes may Affect Intellectual Property Licensing Agreements
The Treasury Department has foreshadowed amendments to the Trade Practices Act relating to intellectual property licensing and anti competitive conduct.
Author: Katrina Reye and Matthew Smith
Firm: Harris Wheeler
Date: August, 2005
Times viewed: 975
New Case Law on the Civil Liability Act
A recent case highlights the fact that acts committed with intent to cause injury or death do not fall under the provisions of the Civil Liability Act.
Author: Katrina Reye
Firm: Harris Wheeler
Date: August, 2005
Times viewed: 1243
Providing Indirect Access to Files May be an Infringement of Copyright
A recent decision of the Federal Court is illustrative of the consequences for both owners and internet service providers of web sites which provide links to other web sites from which music files can be downloaded by the public.
Author: Valentina Misevska, Matthew Smith
Firm: Harris Wheeler
Date: August, 2005
Times viewed: 616
The Development Contributions Amendments to the Environmental Planning and Assessment Act 1979
The Development Contributions Amendments to the Environment Planning and Assessment Act 1979 and the related amendments to the Environmental Planning and Assessment Regulation 2000 commenced on 8 July 2005. The DCAs are significant and provide local councils with additional ways to manage the burden caused by development.
Author: Brian Glendenning
Firm: Harris Wheeler
Date: August, 2005
Times viewed: 958
Vendor Duty is to be Abolished
Vendor duty will be abolished from 2 August 2005, New South Wales Premier-elect Morris Iemma has announced.
Author: Matthew Stutsel, Richard Giannone, Steve Stevens
Firm: Freehills
Date: August, 2005
Times viewed: 579
Simple Reforms to Remove the Stress of Court Action
The Jackson inquiry into the Medical Research and Compensation Foundation for asbestos victims all comes down to money. Who should pay for the biggest occupational health disaster since the industrial revolution?
Author:
Firm: Toomey Pegg Drevikovsky
Date: August, 2005
Times viewed: 725
New Age Discrimination Laws - employers need to be mindful of their obligations
Age discrimination and compulsory retirement are, in most circumstances, unlawful in Australia. Despite this, age discrimination still makes it extremely difficult for older people to obtain and retain employment.
Author: Victoria Hiley and Peter Wilson
Firm: Toomey Pegg Drevikovsky
Date: August, 2005
Times viewed: 965
Industrial Manslaughter Laws in NSW: Directors and Managers Beware
Workplace deaths are still a major concern within our community as illustrated by the vehement protests following the death of a 16-year-old apprentice from a construction site in October 2003.
Author: , Jennifer Flinn
Firm: Toomey Pegg Drevikovsky
Date: August, 2005
Times viewed: 1237
Guns for Hire - Reforms coming regarding Expert Witnesses
The winds of change are blowing for how expert witnesses are used in our courts: concern an inquiry by the NSW Law Reform Commission into how experts and their evidence should be used in Court.
Author:
Firm: Toomey Pegg Drevikovsky
Date: August, 2005
Times viewed: 878
After the Dust has Settled - Reform of compensation for dust diseases claims in NSW
The Carr Government's review of the costs of administering compensation for dust diseases in NSW has recommended dramatic changes to the way dust claims are resolved. This amounts to a cultural revolution for lawyers who are used to the traditional case management techniques of the Dust Diseases Tribunal and should dramatically reduce the legal cost of claims.
Author:
Firm: Toomey Pegg Drevikovsky
Date: August, 2005
Times viewed: 839
Tort Reform Needs an Injection of Fairness
Recent reforms to personal injury and compensation laws should have helped insurers to lower their costs of personal injury claims and make insurance more affordable.
Author:
Firm: Toomey Pegg Drevikovsky
Date: August, 2005
Times viewed: 1327
Three Strikes and You’re Out!
Getting problem employees dismissed is not just a matter of three warnings.
Author: Victoria Hiley
Firm: Toomey Pegg Drevikovsky
Date: August, 2005
Times viewed: 1267
Fraudulent Imitation Need not be Disguised: Polyaire Pty Ltd v K-Aire Pty Ltd
If you hold a registered design under the old design registration system, a recent Australian High Court decision indicates that you may be entitled to greater protection than previously thought.
Author: Genevieve Wilkinson of Freehills
Date: August, 2005
Times viewed: 599
MP3s at Considerable Cost: ISP infringement by inaction and indifference
On 14 July 2005 the Federal Court of Australia gave judgment in Universal Music Australia v Cooper. The case was a win for the Australian record companies, although not the complete victory copyright owners might have hoped for.
Author: Campbell Thompson
Firm: Freehills
Date: August, 2005
Times viewed: 691
Confidentiality and Copyright: e-mails covered too
Woolworths were able to effectively protect themselves against the misuse of confidential information by a director, in the case of Woolworths Ltd v Olson 63 IPR 258.
Author: Scott Smalley
Firm: Freehills
Date: August, 2005
Times viewed: 1362 | | | | | July 2005 | | | |
Contract or Contrap?
Contracts are negotiated every day. Sometimes we underestimate their importance or are blasé about them. Often we fail to appreciate their commercial benefits, or the adverse consequences, which may flow from them.
Author: Stephen Toomey
Firm: Toomey Pegg Drevikovsky
Date: July, 2005
Times viewed: 1026
After the Dust has Settled - Reform of compensation for dust diseases claims in NSW
The Carr Government's review of the costs of administering compensation for dust diseases in NSW has recommended dramatic changes to the way dust claims are resolved.
Author:
Firm: Toomey Pegg Drevikovsky
Date: July, 2005
Times viewed: 657
A Crystal Ball on the Federal Government's Workplace Reforms
As with most areas of law the devil is in the detail, and workplace relations is no different. While any detailed analysis awaits the Federal Government producing its legislation, it nonetheless has made its intentions with regard to workplace relations known.
Author: Will Ward
Firm: Toomey Pegg Drevikovsky
Date: July, 2005
Times viewed: 838
Workplace Surveillance Act passed in New South Wales
The rights of New South Wales employers to conduct covert surveillance of their workplaces will be severely restricted when the Workplace Surveillance Act 2005 commences.
Author:
Firm: Allens Arthur Robinson
Date: July, 2005
Times viewed: 1565
Workplace Policy Fails to Prevent Employer Liability
The Victorian Civil and Administrative Tribunal has found an employer failed to take reasonable precautions to prevent sexual harassment, despite having developed a sexual harassment policy for the workplace.
Author: Jamie Wells, Alexandra Feros
Firm: Allens Arthur Robinson
Date: July, 2005
Times viewed: 730
Commercial Dealings Complicated by Federal Court Decision
A recent Federal Court decision that it may not be possible to assign or pass on a right to terminate a contract to a purchaser following a business acquisition will have significant commercial impact.
Author: Wendy Rae, Erica Rundle
Firm: Allens Arthur Robinson
Date: July, 2005
Times viewed: 1003
DVT Claims Against Airlines Crash in High Court
This article analyses the implications of the High Court's recent decision in Povey v Qantas, which summarily dismissed the claim of an airline passenger who developed deep vein thrombosis during a series of long-haul flights.
Author: Belinda Thompson, Chris Peadon
Firm: Allens Arthur Robinson
Date: July, 2005
Times viewed: 793
Immigration – only rich retirees welcome
The replacement of the Retirement Visa (Subclass 410) with the Investor Retirement Visa (Subclass 405) on 1 July 2005 shone a light on one of a number of mysteries of Australian Immigration policy and practice.
Author: Terence B Ogge
Firm: Michael Sing Lawyers - Legal Solutions
Date: July, 2005
Times viewed: 931
Leasing Premises
Most businesses operate from leased premises. Unfortunately not all business owners enter into a lease arrangement with a full understanding of all the rights, and more importantly obligations covered in their lease.
Author: Tony Pattinson
Firm: Ferguson Cannon Lawyers
Date: July, 2005
Times viewed: 1358
Body Corporate Disputes
Owners of a lot in a community title scheme automatically become part of the Body Corporate, which must elect a committee to make decisions about financial management of the scheme and management of the common property. This is governed by legislation designed to provide clear guidelines on their rights and obligations.
Author: Byron Cannon
Firm: Ferguson Cannon Lawyers
Date: July, 2005
Times viewed: 1558
Probate
All your questions about probate answered: what is it, do you need it, and who applies for it and how.
Author: Byron Cannon
Firm: Ferguson Cannon Lawyers
Date: July, 2005
Times viewed: 1160
Parking Fines
You have to keep your wits about you when parking your car, as many Councils use "Traffic Areas" to regulate on-street parking in their CBD and inner city suburbs.
Author: Byron Cannon
Firm: Ferguson Cannon Lawyers
Date: July, 2005
Times viewed: 1006
Expert Reports & Investment Advice
In the Federal Court matter of Calder v Commissioner of Taxation [2004] FCA 1769 consideration was given to objections against the affidavit of an accountant who had been engaged as an expert in the subject proceedings.
Author: Ian Paul, of Polemic Forensic Accountants and Business Advisers
Date: July, 2005
Times viewed: 502
Lost Will
We recently had a case involving a lost will. Our client was a cousin of the deceased, who was sure there had been a will. This case demonstrates the importance of sound legal advice - and meticulous searchings!
Author: Graeme Heckenberg
Firm: Heckenberg Associates Solicitors
Date: July, 2005
Times viewed: 1098
No Will - dispute between son and claimed de facto spouse
In a recent case we were retained to advise a son whose father died suddenly leaving no will. The contest in this disputed estate was between the only son and the alleged de facto spouse. If the son could disprove the girlfriend's claim to be a de facto then he would inherit all the estate and the girlfriend would receive nothing.
Author: Graeme Heckenberg
Firm: Heckenberg Associates Solicitors
Date: July, 2005
Times viewed: 1231
Badly drafted wills can cost you your inheritance
Badly drafted wills can cost you your inheritance. Recently we were able to protect our clients' share in a deceased estate where they were provided for by their grandmother. The grandmother provided for her estate to be shared between specified relatives and their children. The deceased prepared notes and saw a local solicitor who drafted the will, which was duly signed and witnessed.
Author: Graeme Heckenberg
Firm: Heckenberg Associates Solicitors
Date: July, 2005
Times viewed: 972
Business Start Up
There are all kinds of things to consider when you are starting up a business, but the most important thing is to get the structure right. Choosing the right structure will depend on the kind of activities you intend to undertake, what kind of assets will be involved and what form of income will be generated.
Author: Geoffrey Bartels
Firm: Geoff Bartels - Business Lawyer
Date: July, 2005
Times viewed: 3186
Business Franchising
The Franchise Code of Conduct has established a complex system of rights and responsibilities. Both the franchisor, facing a range of obligations, and the franchisee, seeking to understand the range of protections offered by the Code as well as their own responsibilities, will shoulder the burden of making an agreement work.
Author: Geoffrey Bartels
Firm: Geoff Bartels - Business Lawyer
Date: July, 2005
Times viewed: 892
Building a Case for Legal Action?
Building Owner - Contractor Disputes
Don't let a disagreement become a bitter building battle that will break your bank. Here are a few ways a dispute can arise between an owner and a builder (or contractor), and the main methods of resolution.
Author: Geoffrey Bartels
Firm: Geoff Bartels - Business Lawyer
Date: July, 2005
Times viewed: 917
Match Your Business Structure to Your Management Strategy
We all want our business to grow. But this won't happen without some forward thinking. There are many issues to consider when planning for growth – even if you are just starting out in business.
Author: Geoffrey Bartels
Firm: Geoff Bartels - Business Lawyer
Date: July, 2005
Times viewed: 1481
How Can I Get a Copy of my Medical Record?
You can gain access to your medical records, but there are exceptions. This article explains how to gain access, what you can expect to pay, and what to do if you are refused access.
Author: Julia Sweeney
Firm: Craddock Murray & Neumann
Date: July, 2005
Times viewed: 987
Landlords, Watch This Space!
Last Tuesday, the Minister for State Development and Innovation, Tony McGrady, introduced into the Queensland Parliament, the Retail Shop Leases Amendment Bill 2005 (the Bill) which, once enacted, will make significant changes to retail leasing laws in Queensland.
Author: Annette Greenhow, Susan Sing, Jim Mullins
Firm: Michael Sing Lawyers
Date: July, 2005
Times viewed: 557
Landlord’s Duties to Ensure Tenancy is in Good Repair
A landlord has been found liable for a tenant's injuries caused by a rotted step on the rented premises.
Author: , Tina Veivers
Firm: Michael Sing Lawyers - Legal Solutions
Date: July, 2005
Times viewed: 974
Is a Queenslander's Home his Castle?
The Supreme Court of Queensland in Brisbane has confirmed that where reasonably necessary, the Court may order a landowner to give up rights to allow construction in an adjoining lot.
Author: , Tina Veivers
Firm: Michael Sing Lawyers - Legal Solutions
Date: July, 2005
Times viewed: 877
Macleans and Colgate Palmolive Do Battle over Trade Marks
In a recent case, Macleans alleged that Colgate's use of the name "MaxClean" was deceptively similar to their trade mark and likely to mislead and cause confusion in the marketplace.
Author: David Kay
Firm: Michael Sing Lawyers - Legal Solutions
Date: July, 2005
Times viewed: 870
Tough on Crime Means Doing More Time
“You do the crime, you do the time.” It’s a phrase often trotted out by politicians trying to boost their tough on crime credentials. But partly due to such law and order auctions, “the time” has been getting longer. Not only are Victorian judges handing down longer sentences, they are also more likely to be ordering custodial sentences.
Author: Gerard Lethbridge
Firm: Lethbridges Barristers & Solicitors
Date: July, 2005
Times viewed: 881
The Corporate Policeman: ASIC’s powers of investigation and prosecution
Australia’s negligent company directors might be quaking at the prospect of the corporate watchdog “knocking on doors in the middle of the night.” Or maybe not. In a speech to the Law Institute of Victoria in 2003, ASIC’s Professor Berna Collier was quick to dispel any notion that her organisation employed such tactics. Read on for a closer examination of ASIC’s powers.
Author: Gerard Lethbridge
Firm: Lethbridges Barristers & Solicitors
Date: July, 2005
Times viewed: 1060
Employers Take Care: OHS Penalties Increased
For over twenty years now, modern occupational, health and safety (OHS) laws have played an important role in the workplace. Recently, however, Victoria has proposed controversial new changes to the legislation.
Author: Gerard Lethbridge
Firm: Lethbridges Barristers & Solicitors
Date: July, 2005
Times viewed: 1187
Cyber Crime – superhighway robbery!
Most computer crimes are like a modern-day version of other property offences, such as trespass, breaking and entering, stealing and vandalism. The only difference is that the damage is done to information – either computer networks themselves or the data contained within them. It’s like superhighway robbery!
Author: Gerard Lethbridge
Firm: Lethbridges Barristers & Solicitors
Date: July, 2005
Times viewed: 929 | | | | | June 2005 | | | |
School’s Supervision System Prevents Negligence Finding
In a decision on 15 June, Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (as St Anthony’s Primary School) v Hadba a majority of the High Court held that the plaintiff had not established a breach of duty by the School based on a failure to supervise children in the playground during a recess.
Author: David Goodman and Paul Evans
Firm: Freehills
Date: June, 2005
Times viewed: 1001
The Rise of Shareholder Class Actions in Australia
The Australian financial sector has undergone a facelift over the last 20 years - close to 55 per cent of adult Australians now own shares. The result is a larger number of institutions and individuals concerned about the performance of their shareholdings, and seeking new or more vigilant processes to enforce their rights. Enter the shareholder class action, a private enforcement mechanism designed to empower individual shareholders to aggregate their common claims and prosecute them as a group.
Author: Jason Betts
Firm: Freehills
Date: June, 2005
Times viewed: 756
Patent Claims - Sometimes they simply mean what they say
Justice Tamberlin reinforced in a patent decision handed down last week that Australian courts should take a common sense approach towards construing patent claims, rejecting the patentee’s arguments that the word ‘concrete’ in the patent claim could mean ‘plastic’.
Author: Craig Smith
Firm: Freehills
Date: June, 2005
Times viewed: 418
Report on Privacy Act Released
The Commonwealth Attorney-General has released a report by the privacy commissioner into the operation of the private sector provisions of the Privacy Act entitled Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988.
Author: Consumer Financial Services and Privacy groups
Firm: Freehills
Date: June, 2005
Times viewed: 424
The High Court’s decision in Rich v ASIC [2004] HCA 42 and its potential impact upon ASIC’s disqualification orders, banning orders and oral examinations
In Rich v ASIC the majority of the High Court held that ASIC’s proceedings for an order under s 206C of the Corporations Act disqualifying a person from managing a corporation are proceedings that expose a person to a penalty. It is argued in this article that the decision in Rich v ASIC means that it is more likely that ASIC’s power to disqualify directors under s 206F of the Corporations Act and ASIC’s power to make banning orders under s 920A of the Corporations Act will, in future litigation, be classified as penal, rather than protective, in nature.
Author: Tom Middleton
Date: June, 2005
Times viewed: 631
Union Representation for Non-Union Agreement
A Full Court of the Federal Court recently accepted the right of the Australian Industrial Relations Commission to direct an employer to allow a union representative to be present during negotiations for a non-union agreement.
Author: Rebecca Davern, Maree Norton
Firm: Allens Arthur Robinson
Date: June, 2005
Times viewed: 585
Indemnity Costs in Unfair Dismissal Jurisdiction
It is rare for the Queensland Industrial Relations Commission to make a costs order against an applicant in an unfair dismissal matter, much less an indemnity costs order. However, in a recent case1 the Commission showed it is willing to do so where the applicant's conduct warrants it.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: June, 2005
Times viewed: 829
Howard Announces Workplace Reforms
On Thursday 26 May, the Prime Minister announced a number of important workplace reforms and as a result, employers will confront a vastly different set of workplace laws if these reforms become legislation.
Author: Peter Arthur, Yaseen Shariff
Firm: Allens Arthur Robinson
Date: June, 2005
Times viewed: 1872
Overcoming Shareholder Inertia in Takeovers
Securing acceptances for a takeover, even if it is uncontested and recommended by target directors, can be a drawn-out process, particularly as institutional investors are often reluctant to accept a bid early. This article examines various analogous methods of addressing this issue and their effectiveness in giving takeovers momentum.
Author: Greg Bosmans
Firm: Allens Arthur Robinson
Date: June, 2005
Times viewed: 652
PhotoCure v Queens University: Implications for Patent Law
A recent Federal Court decision by Justice Merkel, in relation to the validity and alleged infringement of Queens University's patent for the treatment of skin cancer and other skin lesions by photodynamic therapy, has implications for Australian patent law.
Author: Philip Kerr, Clare Cunliffe
Firm: Allens Arthur Robinson
Date: June, 2005
Times viewed: 827
NSW Health records and Privacy
Any organisation in NSW that holds health information should be aware of their obligations under the Health Records and Information Privacy Act 2002 (NSW), which affects the way both public and private sectors deal with health information in NSW.
Author:
Firm: Allens Arthur Robinson
Date: June, 2005
Times viewed: 632 | | | | | May 2005 | | | |
Preparing for more successful pitches
Under pressure to develop new business but never have time? John Gelagin has some suggestions
Author: John Gelagin and James Burkitt* from InfluenceAustralia
Date: May, 2005
Times viewed: 672
Good news – lawyers don’t need to sell used cars to be effective at business development
Many lawyers avoid business development. But lawyers don't need to be pushy, used car salespeople to be effective at business development. Effective business development requires quite different skills; skills that many lawyers already possess. John Gelagin from InfluenceAustralia explains.
Author: John Gelagin* from InfluenceAustralia
Date: May, 2005
Times viewed: 758
Queensland IR Reform
The Queensland Government has taken the opportunity to further reform its Industrial Relations Act 1999 (Qld) and to address some ongoing anomalies.
Author: Jamie Wells, Alexandra Feros
Firm: Allens Arthur Robinson
Date: May, 2005
Times viewed: 675
Psychiatric Illness Claim
The High Court has denied an employee damages for stress caused by overwork. This article examines the impact of the decision.
Author: Kirk Lovric and Erin Hawthorne
Firm: Allens Arthur Robinson
Date: May, 2005
Times viewed: 709
Show Me More than the Money
The High Court has confirmed that reinstatement of an employee means more than just payment of remuneration and requires full restoration of pre-termination duties. This article looks at the impact of the appeal on employment relationships.
Author: Jamie Wells, Dana Wintermantel
Firm: Allens Arthur Robinson
Date: May, 2005
Times viewed: 577
Trade Mark Infringement on the Internet
The Federal Court has ruled that foreign-based websites must specifically target or be directed at Australian customers before the court will find liability or grant relief for claims of trade mark infringement or passing off.
Author: Philip Kerr, John Butt
Firm: Allens Arthur Robinson
Date: May, 2005
Times viewed: 739
Workplace Fatalities in New South Wales
The New South Wales Government has released a revised Bill that will amend the Occupational Health and Safety Act 2000 (NSW) (the OHS Act). The new Bill, currently a consultation draft, addresses many of the problems in the previous proposal that was withdrawn in April following sustained criticism.
Author: Peter Arthur, Ric Morgan
Firm: Allens Arthur Robinson
Date: May, 2005
Times viewed: 687
Forensic Accounting Reports – Sourcing of Information and Independence
The Supreme Court of NSW considered a number of issues pertaining to expert reports including those of independence and sources of information in handing down its decision in the case of ASIC v Rich.
Author: Ian Paul, Polemic Forensic Accountants & Business Advisers
Date: May, 2005
Times viewed: 530 | | | | | April 2005 | | | |
Soliciting Know-how – Can Ex-Employees Be Restrained from Poaching Staff?
The Aussie Home Loans decision (Aussie Home Loans Ltd & Anor v X Inc Services Pty Ltd & Ors [2005] NSWSC 285 (7 April 2005)) examines the enforceability of anti-poaching clauses in employment contracts.
Author: Charles Power
Firm: Holding Redlich
Date: April, 2005
Times viewed: 1294
How to successfully buy or sell a business with IP assets
Want to evaluate the IP of a business before you buy it? Want to sell a business at an increased price for its IP? Here is guidance on how to avoid the obstacles.
Author: Noric Dilanchian, Managing Partner
Firm: Dilanchian Lawyers & Consultants
Date: April, 2005
Times viewed: 1179
New Guidance for eMarketers
On 18 March 2005, the Australian Communications Authority (ACA) announced the registration of a new eMarketing Code of Practice (Code) that will provide guidance for the Australian electronic marketing industry on how to employ commercial email or mobile marketing in accordance with the Spam Act 2003 (Spam Act).
Author: Duncan Giles, Danet Khuth
Firm: Freehills
Date: April, 2005
Times viewed: 558
Copyright Infringement isn’t Ezy
The Federal Court recently awarded a software company almost $600,000 in a case involving the illegal copying of its software, sending a clear message to copyright infringers.
Author: Scott Smalley
Firm: Freehills
Date: April, 2005
Times viewed: 514
Advocates' Immunity: Politicians to Go where Courts Won't?
Australia's High Court has confirmed that barristers and solicitors are immune from liability for negligence in the conduct of a case that leads to a decision affecting the conduct of a case in court. This article considers the implications of this decision and the response of state and territory governments.
Author: Belinda Thompson, Chris Peadon
Firm: Allens Arthur Robinson
Date: April, 2005
Times viewed: 1458
Implied Redundancy Terms Come Back to Life
A Full Bench of the Western Australian Industrial Relations Commission (WAIRC) has revisited the issue of implied terms about redundancy and upheld a claim for severance pay made by a retrenched employee.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: April, 2005
Times viewed: 768
EBA Expiry Date Upheld
A Full Bench of the Australian Industrial Relations Commission (AIRC) has restricted the discretion of the AIRC when considering termination of expired certified agreements. This article examines the decision and its impact on the AIRC's role when reviewing the public interest.
Author: Dr Kirk Lovric
Firm: Allens Arthur Robinson
Date: April, 2005
Times viewed: 761
Liability of Directors for Industrial Manslaughter
In January 2005, a UK managing director was sentenced to 16 months' imprisonment for manslaughter following a workplace fatality. This article examines the case and the potential to use common law manslaughter to prosecute directors in the UK and Australia.
Author: Dr Kirk Lovric
Firm: Allens Arthur Robinson
Date: April, 2005
Times viewed: 1097
Electrolux: and the Full Bench says...
A Full Bench of the Australian Industrial Relations Commission has delivered a much anticipated decision on whether a range of contentious certified agreement clauses involve matters pertaining to the employment relationship.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: April, 2005
Times viewed: 723
Same Sex Parenting
The purpose of this paper is to examine legislation and case law insofar as it relates to parental responsibility in same sex parenting cases. In doing so, it is intended to identify some legal issues and difficulties that will arise in various cases, and hopefully offer some practical suggestions to deal with those issues.
Author: Paul Boers, Senior Associate
Firm: Dimocks Family Lawyers
Date: April, 2005
Times viewed: 2203 | | | | | March 2005 | | | |
The Less Adversarial Approach to Determining Children’s Cases
In March 2004 the Family Court of Australia commenced a trial of the Children’s Cases Programme at both its Sydney and Parramatta Registries.
Author: Paul Boers, Senior Associate
Firm: Dimocks Family Lawyers
Date: March, 2005
Times viewed: 997
Amcor & Gribbles: High Court Rules on Transmission of Business Cases
Employers may heave a collective sigh of relief now the long awaited judgments of the High Court of Australia in the Amcor[1] and Gribbles[2] cases have been delivered. On 9 March 2005 the High Court found in favour of both Amcor and Gribbles and quashed the decisions of the Full Federal Court that had been causing consternation amongst employers for some time.
Author: Kathryn Dalton, Partner
Firm: Herbert Geer
Date: March, 2005
Times viewed: 841
The Problem with IP Holding Companies
It is not unusual for reasons including administrative efficiency, tax planning, or protection against insolvency to establish a company within a group to be the owner of all intellectual property owned by group companies. But IP holding companies can suffer when seeking to recover damages for infringement of intellectual property rights.
Author: , Andrea Fung
Firm: Freehills
Date: March, 2005
Times viewed: 686
Certified Agreements After Electrolux: Latest Developments
Since the High Court handed down its decision in Electrolux in September 2004, there has been constant conjecture about the certification of enterprise agreements at a federal level. This is an update on how the Australian Industrial Relations Commission (AIRC) and the Federal Court have approached the matter of certifying agreements post-Electrolux.
Author: Matthew Follett
Firm: Freehills
Date: March, 2005
Times viewed: 669
Freedom of Association in Tender Bids
The freedom of association provisions of the Workplace Relations Act 1996 (Cth) have application to protect workers who are not union members. In this context a recent Federal Court decision of Justice Branson is of note.
Author: Emily Wong
Firm: Freehills
Date: March, 2005
Times viewed: 630
Are Casual Employees Entitled to Long Service Leave?
In a significant recent decision the Supreme Court of Victoria has denied a casual employee's entitlement to long service leave shortly after the Victorian Government announced a proposal to amend the state legislative provisions providing casuals with such leave.
Author: Matthew Follett
Firm: Freehills
Date: March, 2005
Times viewed: 1207
Corporate Governance and Executive Contracts
One of the most difficult tasks facing any board of directors is the appointment of a new chief executive officer (CEO) and managing director. Apart from the practical issues in finding an appropriate candidate in a tight market, boards must also negotiate the ever increasing corporate governance minefield in determining the remuneration and conditions of a new CEO.
Author: John Colvin, Jane Wright
Firm: Freehills
Date: March, 2005
Times viewed: 768
AWAs Do Not Prevent State Conciliation and Arbitration
A Full Bench of the New South Wales Industrial Relations Commission has concluded that the Commission has power to conciliate and arbitrate an industrial dispute relating to an employee whose terms and conditions are covered by an Australian Workplace Agreement (AWA).
Author:
Firm: Allens Arthur Robinson
Date: March, 2005
Times viewed: 614
Team of Employees Free to Jump Ship
A recent Federal Court decision illustrates the importance of carefully drafted restraints of trade where an employer wants to prevent its employees from leaving to work for a competitor.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: March, 2005
Times viewed: 780
Patents and Experimental Use in Australia
An overview of the Options Paper on Patents and Experimental Use in Australia, released for discussion purposes by the Advisory Council on Intellectual Property.
Author: Caroline Ryan
Firm: Allens Arthur Robinson
Date: March, 2005
Times viewed: 691
The Media World Case in Australia
Comment on the recent Federal Court Media World decision has suggested that it could prejudice the ability of Australian companies to raise debt finance and that damages claims by shareholders may rank equally with unsecured debt claims. However, the case does not alter existing law and the general principle that creditors rank ahead of shareholders in a winding up of a company remains unaffected.
Author: David Clifford, Kenneth Tang
Firm: Allens Arthur Robinson
Date: March, 2005
Times viewed: 917
New Era of Workplace Health and Safety for Victoria
A tough new era for employers was signalled on 15 November 2004 when the Victorian government announced a package of reforms to workplace health and safety. From 1 July 2005, employers can face jail and maximum fines of close to a million dollars if they knowingly expose workers to serious occupational health and safety risks.
Author: Simone Szalmuk- Singer, Consultant and Kathryn Dalton, Partner, Workplace Relations Group
Firm: Herbert Geer
Date: March, 2005
Times viewed: 598
Common Rule Awards in Victoria - Now a Reality
Significant changes affect all Victorian employers as a result of the Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003. The most important areas of change provided improved protection for non-award employees as well as common rule application of Federal awards in Victoria to take effect from 1 January 2005.
Author: Simone Szalmuk- Singer, Consultant and Kathryn Dalton, Partner, Workplace Relations Group
Firm: Herbert Geer
Date: March, 2005
Times viewed: 617
Too Tired to Work
Take a minute to imagine the following scenario. It's Friday morning, at the end of yet another long week at the office. As you enter the reception area, you observe that the receptionist appears to be fast asleep. As she slumbers on, you wonder what disciplinary action you are entitled to take. Is hitting the sack a sackable offence?
Author: Simone Szalmuk- Singer, Consultant and Kathryn Dalton, Partner, Workplace Relations Group
Firm: Herbert Geer
Date: March, 2005
Times viewed: 1324
Book Review - Rest Assured: A Legal Guide to Wills, Estates and Funerals
Like going to the dentist, most people put off writing a will for as long as possible. We don’t want to think about what we have to do when a loved one dies. But sometime these problems have to be faced. This book is a practical, plain-English guide to all these inevitable matters.
Author: FindLaw Book Review
Date: March, 2005
Times viewed: 690
Forensic Accounting Standards
The service provided by expert witnesses has recently been raised as an issue by the judiciary. This article examines the professional standards that are applied to the work prepared by forensic accountants.
Author: Ian Paul, of Polemic Forensic & Certified Practising Accountants
Date: March, 2005
Times viewed: 484
Significant Changes to the Use of Expert Witnesses in the Supreme Court
Supreme Court of NSW Practice Note 128, which commenced on 31 January this year, requires a single expert witness in personal injury proceedings.
Author: Ian Paul, of Polemic Forensic & Certified Practising Accountants
Date: March, 2005
Times viewed: 616 | | | | | February 2005 | | | |
Deadly Trees
It is not surprising that there are occasional reports in Australia of injuries and fatalities caused by falling or fallen trees or branches. Since this article was written two more fatalities from falling trees have occurred involving campers. The risk of injury from those causes is a natural hazard of being in the great Australian outdoors.
Author: Tony Wilson
Firm: Freehills
Date: February, 2005
Times viewed: 795
Record Unfair Contract Award to Independent Contractor
The Queensland Industrial Relations Commission has ordered that a mine owner pay a contractor $414,250 under the state's unfair contract jurisdiction. This is the largest unfair contract payout ordered by the QIRC.
Firm: Freehills
Date: February, 2005
Times viewed: 706
Bonuses and Allowances Do Not Count as Wages
In Lee Haywood v Repco Ltd, the QIRC has found that car allowances and bonuses paid are not wages for the purposes of determining an employee's eligibility to make an unfair contract claim.
Firm: Freehills
Date: February, 2005
Times viewed: 1662
The New Trade Practices Penalty Regime: compliance is not a luxury but an essential ingredient!
Treasurer Peter Costello has announced that the Federal Government will amend the Trade Practices Act to introduce jail terms and very large fines upon conviction for executives and companies who engage in serious cartel conduct.
Author: Bob Baxt, Peter McDonald
Firm: Freehills
Date: February, 2005
Times viewed: 634
NSWIRC to Determine Redundancy Test Case
The NSW Industrial Relations Commission has just finished hearing a test case to determine the entitlement of employees to receive redundancy pay in circumstances where they have retained employment with a purchaser of the business.
Firm: Allens Arthur Robinson
Date: February, 2005
Times viewed: 600
Bite your Tongue During Contract Negotiations
A mine operator has paid a heavy price for statements made by its employees during negotiations with an underground drilling contractor.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: February, 2005
Times viewed: 757
Employers Not Required to Negotiate
The Queensland Industrial Relations Commission has ruled that an employer cannot be forced to negotiate a certified agreement.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: February, 2005
Times viewed: 608
Loss of Pay While on Workers' Compensation Deemed Unfair
The Queensland Industrial Relations Commission has used its power to amend unfair contracts to grant an employee the difference between the amount received while on workers' compensation benefits and his usual remuneration package.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: February, 2005
Times viewed: 624
Federal Court Weighs-In on Electrolux
The Federal Court has had an opportunity to consider the range of matters pertaining to the employment relationship, in a recent decision involving a challenge to the protected status of industrial action.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: February, 2005
Times viewed: 611 | | | | | January 2005 | | | |
New Retail Legislation for NSW
The Retail Leases Amendment Act 2004 (NSW), which has now passed through all stages of parliament, will have an impact for landlords and tenants.
Author: Christine Adamson, Sarah Clarkson
Firm: Allens Arthur Robinson
Date: January, 2005
Times viewed: 1594
Risk Assessment: not a job for the boys
A recent decision of the Industrial Court of Queensland illustrates the strict obligation on employers to conduct proper risk assessments and to use administrative controls for a risk only as a last resort.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: January, 2005
Times viewed: 588
Discrimination against Casual Teachers
The New South Wales Court of Appeal has found that the NSW Department of Education and Training discriminated against female casual teachers by restricting their access to the higher pay rates available for permanent teachers.
Author: Rebecca Davern
Firm: Allens Arthur Robinson
Date: January, 2005
Times viewed: 719
The End of the Unfair Breach of Contract Claim
Conduct in breach of a contract does not, of itself, make the contract unfair or give the Industrial Relations Commission of New South Wales the ability to review it. A recent decision overrules the Commission's previous approach, but may not limit the Commission's powers greatly.
Author: , Peter Beacroft
Firm: Allens Arthur Robinson
Date: January, 2005
Times viewed: 739
Restraint of Trade Clause Enforced
The New South Wales Court of Appeal recently enforced a restraint of trade clause to prevent an executive from working for a competitor.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: January, 2005
Times viewed: 1800
Common Rule Awards
As a result of legislative amendments made at the beginning of 2004, many federal awards have been declared common rules in Victoria and will become binding on affected employers from 1 January 2005
Author: , Luke Gattuso
Firm: Allens Arthur Robinson
Date: January, 2005
Times viewed: 617
The Copyright Legislation Amendment Act 2004: A stealth attack on CSPs
On 15 December 2004, just months after the passage of the US Free Trade Implementation Act 2004 (Cth), the Copyright Legislation Amendment Act 2004 (Cth) received Royal Assent. The Amending Act substantially alters the 'safe harbour' regime for carriage service providers (CSP) introduced by the Implementation Act.
Author: Campbell Thompson
Firm: Freehills
Date: January, 2005
Times viewed: 645
Can ASIC Obtain your Privileged Communications? — Implications of the James Hardie Act
The James Hardie Act abrogates legal professional privilege with respect to investigations and proceedings commenced by the Australian Securities and Investments Commission (ASIC) in relation to the James Hardie group of companies. The implications of the Act for other companies are important.
Author: Geoffrey Healy, Luke Hastings, Andrew Eastwood, Cameron Hanson
Firm: Freehills
Date: January, 2005
Times viewed: 888
Cannon and Magistrates Court of Queensland (2004) QICmr 3
Date: January, 2005
Times viewed: | | | | | December 2004 | | | |
High Court Warns on Disclaimers
The High Court has delivered a warning that business must carefully consider the effect that representations made in advertising material have on the public, to avoid offending Section 52 of the Trade Practices Act 1974 (Cth). In addition, the Court has made it clear that disclaimers may not be relied on with impunity where corporations are otherwise in default of the Act.
Author: Andrew Nicholson
Firm: Mullins Lawyers
Date: December, 2004
Times viewed: 559
Price Information and Trade Practices Compliance
On 7 December 2004 shares in packaging giant Amcor Ltd plunged more than 11%, wiping $677 million from the company's value after Russell Jones, the CEO, resigned amid claims of cartel behaviour in Amcor's corrugated box business. Price-fixing and cartel behaviour grab the headlines. However many other price-related activities can fall foul of trade practices law in Australia and expose businesses of all sizes.
Author: Noric Dilanchian
Firm: Dilanchian Lawyers & Consultants
Date: December, 2004
Times viewed: 801
Lessons from the ALH Takeover Contest
The recent takeover contest for control of Australian Leisure & Hospitality Limited(ALH) between Bruandwo (the Woolworths/Mathieson vehicle) and CMM Hotel & Retail Investments (the Coles Myer/Macquarie Bank vehicle) generated extensive media coverage in Australia as the two bidders competed for control of the company pushing the price well beyond the range assessed by the independent expert.
Author: Rodd Levy
Firm: Freehills
Date: December, 2004
Times viewed: 648
Liability for Authorisation of Copyright Infringements: Metro on George
Under Australian law, the exclusive rights of the copyright owner extend to the right to authorise people to do any of the acts 'comprised in the copyright'—such as reproducing (copying) the work, communicating it and performing it in public. The 'authorisation right' sometimes permits the copyright owner to go behind the actual copyist and pursue people who, on general principles of tort law, might not otherwise be liable.
Author: Campbell Thompson
Firm: Freehills
Date: December, 2004
Times viewed: 559
New Decision on Surnames as Trade Marks
Surnames are sometimes likened to the perfect trade mark, as they often point directly to the source of a product. However, where a surname is common, the law will often prevent registration as otherwise one trader could obtain a monopoly in a surname that many others would like to use.
Author: Bill Ladas
Firm: Freehills
Date: December, 2004
Times viewed: 431
Vicarious Liability for Unauthorised Acts of Employees
Employers may be held vicariously liable for unauthorised acts of an employee, as long as the acts could be regarded as a mode (although an improper one) of performing the normal tasks of the employment.
Author: , Dana Wintermantel
Firm: Allens Arthur Robinson
Date: December, 2004
Times viewed: 2216
Directors Personally Fined over Workplace Bullying
A NSW Industrial Relations Commission decision serves as a clear warning that token fines in workplace bullying cases are not adequate penalties for a director.
Author:
Firm: Allens Arthur Robinson
Date: December, 2004
Times viewed: 1012
Service of Employer's Notice of Lockout
The Federal Court has found that an employer's lockout was protected action, despite notice of the lockout being served on some employees after the lockout started.
Author: Stacey Kelly
Firm: Allens Arthur Robinson
Date: December, 2004
Times viewed: 657
Electrolux Uncertainty Continues
Since the High Court's Electrolux decision (deciding that all clauses in a certified agreement must pertain or be incidental to the employment relationship), differing views are emerging from the Australian Industrial Relations Commission about the proper characterisation of particular clauses.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: December, 2004
Times viewed: 716
ASIC Proposes Changes to Liquidator Registration
A recent ASIC policy proposal paper, if accepted, will significantly overhaul the criteria for liquidator registration.
Author: Margot Clarkson
Firm: Allens Arthur Robinson
Date: December, 2004
Times viewed: 785 | | | | | November 2004 | | | |
High Court Closes Door on 'Fair Basis' Patent Challenge
A patent on a new type of door lock is valid on 'fair basis' grounds, the High Court has found, rejecting a rival's claim that the invention was not adequately described in the patent specification.
Author: Findlaw CaseReport
Date: November, 2004
Times viewed: 437
High Court Looks at Mirror Taxes Act
The States can impose stamp duty and other taxes on Commonwealth land, the High Court of Australia has found, in upholding the validity of the Commonwealth Places (Mirror Taxes) Act.
Author: FindLaw Case Report
Date: November, 2004
Times viewed: 686
New Guideline for Informal Merger Review Process
The ACCC's new Guideline for Informal Merger Review is intended to make the informal merger clearance process more open and informed. Understanding and giving effect to the Guideline's requirements will be critical to gaining the ACCC's informal clearance for a merger in a timely manner.
Author: Emma Marsh, Yvonne Schmaedeke
Firm: Allens Arthur Robinson
Date: November, 2004
Times viewed: 778
Parental Leave and Part-time Work
A recent decision in the NSW Anti-Discrimination Tribunal has highlighted the flexibility required of employers when employees return from maternity leave.
Author: , Louise Keats
Firm: Allens Arthur Robinson
Date: November, 2004
Times viewed: 724
Queensland's Unfair Dismissal Jurisdiction
The Industrial Court of Queensland has ruled that an employee engaged under either a federal award or a federally certified agreement is still entitled to the benefit of Queensland's unfair dismissal laws.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: November, 2004
Times viewed: 1125
To Which Position Does the 'Inherent Requirements' Defence Apply?
A recent Federal Court decision confirms that an employer is entitled to terminate an employee's employment on the grounds of a physical disability, provided that the employee is unable to carry out the inherent requirements of the particular position.
Author: Dana Wintermantel
Firm: Allens Arthur Robinson
Date: November, 2004
Times viewed: 785
Right of Entry Requirements
The Full Bench of the Australian Industrial Relations Commission has prevented the ANZ Bank from imposing conditions on the Finance Sector Union's right of entry, after the bank argued it would be a breach of privacy.
Author: Stacey Kelly
Firm: Allens Arthur Robinson
Date: November, 2004
Times viewed: 821
Federal Court Gives Green Light to Colour Marks
Oil giant BP has won the right to trademark the colour green in relation to petrol sales, after a challenge by retailer Woolworths.
Author: FindLaw Case Report
Date: November, 2004
Times viewed: 547 | | | | | October 2004 | | | |
Are you legally allowed to work in Australia?
The Department of Immigration, Multicultural and Indigenous Affairs has launched a number of initiatives to crack down on people working illegally. These include advertising, information packs and information phone lines.
Author: FindLaw eNewsletter
Date: October, 2004
Times viewed: 851
ASIC gets tough on accounting relief compliance
ASIC has recently taken a strict approach to failures to comply with the conditions of accounting relief commonly relied upon by corporate groups. ASIC's stance may mean that many corporate groups are unwittingly ineligible for the relief.
Author: Greg Bosmans, Kaelene McLennan
Firm: Allens Arthur Robinson
Date: October, 2004
Times viewed: 734
New developments in workplace privacy
The Victorian Law Reform Commission's Workplace Privacy Options Paper proposes two options for reform that are significantly different from the current position.
Author: Rebecca Davern
Firm: Allens Arthur Robinson
Date: October, 2004
Times viewed: 755
A common law right to privacy for Australia?
Recent decisions by overseas courts point to a potential source of privacy obligations, should Australian courts decide to follow their lead. These cases have potential implications for Australian organisations, particularly media organisations.
Author: , Maree Norton, Karin Clark
Firm: Allens Arthur Robinson
Date: October, 2004
Times viewed: 769
Australia's Innovation Patent
The foundation of many businesses lies in the patent protection obtained by them for their technology inventions. While the patent system is critical for some businesses, users frequently complain about the time and cost involved in actually getting a patent granted.
Author: Baldwins
Date: October, 2004
Times viewed: 541
Franchises - an introduction
Franchising is a way of doing business and a marketing concept. It can be used in a number of different ways and even ranges as far as sporting concepts such as the Super 12.
Author: Baldwins
Date: October, 2004
Times viewed: 1330
Searching patent databases
Details of the inventions protected by many patent applications will already be available to the public to read. Therefore, there is a large resource of information available in patent databases.
Author: Baldwins
Date: October, 2004
Times viewed: 425
Legal framework of franchises in Australia
Australia has specific federal legislation, by way of the Franchising Code of Conduct - it applies to all agreements that have been entered into, renewed, or extended after 1 October 1998.
Author: Baldwins
Date: October, 2004
Times viewed: 1110
IP Audit: Useful Tool for Business
In the 'New Economy' those who are aware of the extent and value of their IP portfolio will be in a good position to exploit it for commercial gain. One of the better ways to find out the extent and value of your IP is to conduct an audit of intellectual property assets (an IP audit).
Author: Baldwins
Date: October, 2004
Times viewed: 564
Victory all the way to the Privy Council
The Privy Council in London has given a resounding tick of approval to the New Zealand High Court and Court of Appeal judges in the first New Zealand patent case to reach the Privy Council in many years.
Author: Baldwins
Date: October, 2004
Times viewed: 404
Human embryonic stem cells
In a recent decision involving a controversial patent granted to Edinburgh University and Stem Cell Sciences (the "Edinburgh Patent"), the European Patent Office (EPO) has affirmed that patents may not be granted for inventions which encompass human embryos.
Author: Baldwins
Date: October, 2004
Times viewed: 482
Exporting your brand: managing the risk
As if exporters didn't have enough trouble tailoring their product to an export market - they also have to tackle the nightmare of trying to find a brand that can be used there too.
Author: Baldwins
Date: October, 2004
Times viewed: 387
Designer Brands
In owning a brand you own also a piece of the public mind. Ask Shell, McDonalds, Coke, and a few others about this, as the bigger your brand, the bigger the piece of the public mind you own.
Author: Baldwins
Date: October, 2004
Times viewed: 386
The shape of your world
How important is “shape” to you when you go shopping? Does a particular shape of cosmetic bottle in the sea of bottles at the local pharmacy attract your attention? Maybe shape is important to your own business. Have you found that sales of a product have gone up after you changed the shape of a product or the packaging in which it is supplied?
Author: Baldwins
Date: October, 2004
Times viewed: 394
Brandsquatting in an Expanded Europe
A type of “brandsquatting” plaguing international brand owners will likely attend the expansion of the European Union.
Author: Baldwins
Date: October, 2004
Times viewed: 360
One click lands book vendor in cart
Amazon's controversial "one click" technology could soon be patented in New Zealand.
Author: Baldwins
Date: October, 2004
Times viewed: 401
Your .geek.nz
Geeks have now acquired their own special domain name, with the launch of the .geek.nz on 26 August 2003. There are a number of important consequences of this development, which seem to have been almost entirely ignored.
Author: Baldwins
Date: October, 2004
Times viewed: 294
Implied Right to Redundancy Payments
The Western Australian Industrial Relations Commission has recognised a management level employee's right to a generous redundancy payment based on a formula in the company's enterprise agreement, despite the agreement being restricted to production employees.
Author:
Firm: Allens Arthur Robinson
Date: October, 2004
Times viewed: 650
Your Contract is Not Unfair if You Earn More than $200k
The NSW Industrial Relations Commission has emphatically stated that employees earning more than $200,000 a year are not eligible to bring an unfair contract claim, regardless of when their employment ceased.
Author: , Peter Beacroft
Firm: Allens Arthur Robinson
Date: October, 2004
Times viewed: 598
Vicarious Liability of Employers in Sexual Harassment Claims
The precautions taken by employers to prevent sexual harassment in the workplace need only be reasonable, not ideal.
Author: , Luke Gattuso
Firm: Allens Arthur Robinson
Date: October, 2004
Times viewed: 911
Privilege for In-House Counsel
If your lawyer is also your employee, confidential communications between you may not be subject to legal professional privilege.
Author: Annette Hughes, Duncan Travis
Firm: Allens Arthur Robinson
Date: October, 2004
Times viewed: 796
The Water Wheel Continues to Turn
The Full Federal Court's recent decision in Elliott v Water Wheel Holdings Ltd (Subject to a Deed of Company Arrangement) considered whether compensation payments that John Elliott was ordered to pay were assets that were covered by the Water Wheel Deeds of Company Arrangement.
Author: Clint Hinchen, Anne Ferguson
Firm: Allens Arthur Robinson
Date: October, 2004
Times viewed: 905
The Chinese Newspapers Case: the Courts Might not be Speaking your Language
A recent appeal to the Federal Court of Australia concerning Chinese newspaper mastheads indicates that the use of a name or words that can be distinguished from a registered trade mark might still infringe the registered mark if the commercial context means that consumers aren't likely to so distinguish the respective mastheads.
Author: Colin Oberin, Banjo McLachlan
Firm: Allens Arthur Robinson
Date: October, 2004
Times viewed: 573 | | | | | September 2004 | | | |
Are your Warnings the Ones that the Product Safety Standards Require?
A recent decision concerning an appeal by BMW Australia Ltd (BMW) serves as a powerful reminder there is not much room for deviation where product safety standards are concerned—slight variations to mandated warnings may result in a breach of the Trade Practices Act.
Author: Eleanor Scacco
Firm: Freehills
Date: September, 2004
Times viewed: 582
That's Crazy John
The Full Federal Court in August 2004 gave its appeal decision in the trade mark fight between Crazy John's and Crazy Ron's, two unrelated chains selling mobile phones. Its decision provides a good illustration of the limits to which a particular trade mark registration can be enforced, and why frequently more than one trade mark registration will be needed to properly protect a business's trade insignia.
Author: Craig Smith
Firm: Freehills
Date: September, 2004
Times viewed: 1039
Data Protection Case Study: FB Rice & Co
FB Rice & Co, a patent and trademark firm with offices in Sydney and Melbourne and more than 90 employees, specialises in services for the biotechnology, chemistry, engineering and IT industries. Like many law firms, down-time is costly, so the firm needed a reliable IT system.
Author: Computer Associates
Date: September, 2004
Times viewed: 615
Saying Yep to a Nup
Prenuptial and postnuptial “financial agreements” are now binding under the Family Law Act 1975 [Pt VIIIA-SS90B, C, D]. The changes came into force 27/12/2000. You can enter into a “nup” before marriage, during marriage and even after divorce, without any time limit, and they do not require Court approval or registration to be binding.
Author: Jonathan de Vere Tyndall
Firm: Jonathan de Vere Tyndall
Date: September, 2004
Times viewed: 828
Secret Agents' New Code
Real estate agents are subject to new laws, which came into effect 1 September 2003. [Property, Stock and Business Agents Act NSW] Consumers buying and selling rural and residential property and agents include those affected.
Author: Jonathan de Vere Tyndall
Firm: Jonathan de Vere Tyndall
Date: September, 2004
Times viewed: 739
Patenting Exclusion for Human Beings
A recent Australian Patent Office decision provides an interpretation of what constitutes a 'human being' and 'biological processes for the generation of human beings' with regard to exclusion for patenting purposes.
Author: Trevor Davies, Kathryn Sunn
Firm: Allens Arthur Robinson
Date: September, 2004
Times viewed: 687
Disability Discrimination Act Review
This article examines the recommendations on reasonable adjustment and unjustifiable hardship contained in the Productivity Commission's final report on the Disability Discrimination Act.
Author: Rebecca Davern
Firm: Allens Arthur Robinson
Date: September, 2004
Times viewed: 630
Personal Criminal Liability for OHS Offences
This article examines the recent Gretley decision in NSW and outlines the circumstances where an individual may be personally liable for occupational health and safety breaches.
Author: Ric Morgan, Dr Kirk Lovric
Firm: Allens Arthur Robinson
Date: September, 2004
Times viewed: 876
Court of Appeal's Solution to Direct Dilemma over Unfair Contracts
The NSW Court of Appeal recently prevented the NSW Industrial Relations Commission from hearing an unfair contract claim about a commercial contract – before the Commission even had an opportunity to consider whether it could hear the claim.
Author: Louise Keats
Firm: Allens Arthur Robinson
Date: September, 2004
Times viewed: 665
Where is the Office of Live Theatre Classification?
Notwithstanding the reasonableness of this query, it is a trick question - there is no Office of Live Theatre Classification. Nor is there anything that either resembles it, or performs any of the functions that one would expect it would have assigned to it.
Author:
Firm: Abbott Tout
Date: September, 2004
Times viewed: 443
Pssst…You’re Selected for Redundancy!
Have you ever taken part in a redundancy selection exercise where a manager has suggested that affected employees not be consulted or given notice of impending redundancies? Or where you have been sworn to secrecy in order to protect your employer from the departure of other employees?
Author: Seamus Burke
Firm: Abbott Tout
Date: September, 2004
Times viewed: 765
CFO: Chief Financial ‘Offender’
Chief Financial Officers should enforce all of an employer’s policies and also lead by example, a recent decision of the Industrial Relations Commission of New South Wales has confirmed. Employers, it seems, are entitled to expect that employees, particularly those entrusted with a sponsored credit card should act honestly and responsibly. If they don’t, then the likely result is the termination of employment.
Author: Seamus Burke, Alex Maiden
Firm: Abbott Tout
Date: September, 2004
Times viewed: 533
Google getting Froogle?
According to a report on 23 July 2004 by siliconvalley.com, Google Inc’s right to use the name “Froogle” for its online shopping service came into question very recently when an arbitration panel rejected the company’s challenge of a website name froogles.com.
Author: Kellie Stonier
Firm: Hopgood Ganim Lawyers
Date: September, 2004
Times viewed: 751
Review of the Enforcement of Trademarks in Australia
The Advisory Council on Intellectual Property ("ACIP") released its Review of Trade Mark Enforcement on 25 May 2004. The report considered the mechanisms available to assert or defend an intellectual property right in relation to a trade mark, or to test its validity and whether small businesses are disadvantaged by the current trade mark system.
Author: Kellie Stonier
Firm: Hopgood Ganim Lawyers
Date: September, 2004
Times viewed: 418
ACCC v George Weston Foods Limited - Court Warns of Dangers of Not Having a Compliance Culture
On 25 August 2004, Justice Gyles of the Federal Court found that George Weston Foods Limited (‘George Weston’) contravened section 45A of the Trades Practices Act (‘the Act’), through the actions of Paul Loneregan, a then director and chief executive of the Flour Milling Division, when he tried to fix the price of flour in the Australian market with a competitor.
Author: Alistair Little, Julia Sorbara
Firm: TressCox
Date: September, 2004
Times viewed: 887 | | | | | August 2004 | | | |
NSW Vendor duty & the principal place of residence exemption – a beast of deception …
Of the many exemptions available from vendor duty, the principal place of residence exemption is likely to be the one most commonly used by ordinary vendors. However, its sheer complexity and over-engineering will undoubtedly lead to it being misunderstood. The purpose of this discussion is to shed light on the scope of the exemption and (hopefully) reduce the level of misunderstanding.
Author: Luis Batalha
Firm: batallion legal
Date: August, 2004
Times viewed: 1421
Third Party Created Copyright Works — Who Owns Them?
Who owns copyright in a logo created by a graphic designer — the graphic designer or the company that commissioned the logo?
Author: Kristin Stammer, Orana Catlin
Firm: Freehills
Date: August, 2004
Times viewed: 318
Avoiding an Invalid Australian Patent
During the 1990s Australian courts have focused more closely on the wording of patent specifications when assessing validity. In many cases, granted claims have been held to be novel and inventive but nevertheless invalid due to the failure of the claims to comply with section 40 of the Australian Patents Act 1990.
Author: Ross McFarlane
Firm: Freehills
Date: August, 2004
Times viewed: 307
Tougher penalties for anti-competitive conduct and new search and seizure powers for the ACCC
Legislation to amend the competition law provisions of the Trade Practices Act 1974 was recently introduced into parliament. This article outlines the changes, discusses what these changes will mean for business, and raises some potential issues and concerns with the new process.
Author: Lisa Emanuel, Kristina Barbov
Firm: Freehills
Date: August, 2004
Times viewed: 886
Major Review of Privacy Act Commences
The Attorney-General, Philip Ruddock, has announced the commencement of the review of the Privacy Act promised by his predecessor, Daryl Williams, when the private sector amendments were introduced in 2000.
Author: Duncan Giles
Firm: Freehills
Date: August, 2004
Times viewed: 568
Termination of Employment Not "Industrial Action"
A Full Bench of the Australian Industrial Relations Commission has recently decided that termination of employment is excluded from the definition of ‘industrial action’ for the purposes of section 127 of the Workplace Relations Act 1996 (Cth). The decision is important because it means that dismissal/redundancy decisions by employers cannot be halted by unions under the guise of section 127 proceedings in the AIRC.
Author: Paul Burns, Anthony Oates
Firm: Freehills
Date: August, 2004
Times viewed: 633
Competition Small Business and Collective Bargaining — Will the New Laws Strike the Right Balance?
Legislation to change the competition law provisions of the Trade Practices Act 1974 was recently introduced into Parliament. A key proposal is the introduction of a notification process for 'small business' collective bargaining. This article outlines the changes, discusses what these changes will mean for business, and raises some potential issues and concerns with the new process.
Author: Peter McDonald, Lisa Emanuel
Firm: Freehills
Date: August, 2004
Times viewed: 784
New Health Records Privacy Restrictions to Commence in NSW
New South Wales' Minister for Health, Morris Iemma, recently announced that the New South Wales Health Records and Information Privacy Act 2002 will commence on 1 September 2004. The Act applies to all health service providers, and also to any other public or private sector organisation that deals with any health information.
Author: Duncan Giles
Firm: Freehills
Date: August, 2004
Times viewed: 476
Executives Must Uphold Duties or Face Summary Termination
The New South Wales Supreme Court has recently found that a Chief Executive Officer (CEO) who failed to accurately inform his employer of performance issues of an overseas arm was appropriately terminated for breach of duties as a director, despite the employer providing any notice of termination, or payment in lieu.
Author: Miles Bastick, Lyn Kemmis
Firm: Freehills
Date: August, 2004
Times viewed: 638
Lying Employees Pay the Cost
Two employees who were found to be lying about attending a strip show during work hours have had costs awarded against them in a decision of the Queensland Industrial Relations Commission (QIRC).
Author: Michelle Berry and Jo Glynn
Firm: Freehills
Date: August, 2004
Times viewed: 646
Dismissal Obligations on Employers of Non-Award Covered Employees
The Victorian Supreme Court of Appeal has handed down an unequivocal judgment regarding the rights of an employer to terminate an employee at common law without observing procedural fairness or the rules of natural justice.
Author:
Firm: Freehills
Date: August, 2004
Times viewed: 1131
Sale of a Business
Are you looking to sell your business? To make sure you get a good return on the sale, there are a number of issues you should consider.
Firm: Alexander & Associates Solicitors
Date: August, 2004
Times viewed: 759
Probate
In thinking about organising your affairs, you have probably heard the phrase “wills and probate” at some stage. Most people have a fair understanding about wills – what they are, how you make one, etc. But what about probate? Do you know what it is and how it works? Do you understand the relationship between the will and the probate? If not … read on.
Firm: Alexander & Associates Solicitors
Date: August, 2004
Times viewed: 1958
Buying a Home: Making Your Dream a Reality
This article outlines what happens when you buy a residential property to ensure you understand the rights and responsibilities of those involved. Of course, all property sales will be different, so this information is only a starting point for prospective purchasers. Always seek legal advice.
Firm: Alexander & Associates Solicitors
Date: August, 2004
Times viewed: 564
Debt Recovery – What You Need to Know
Having an effective system for recovering debts is essential to any business's books. Credit control practices should be adopted to ensure that accounts are paid on time, and a procedure in place for promptly instigating debt recovery proceedings if those debts are not paid.
Firm: Alexander & Associates Solicitors
Date: August, 2004
Times viewed: 1184
Existing Use Rights
Existing Use Rights can be quite beneficial to developers, in that a non-conforming use (eg a Service Station in an area zoned residential) may be converted to another non-conforming use provided the original use passes certain tests.
Author: Brian Hones
Firm: Hones La Hood
Date: August, 2004
Times viewed: 1319
A Landmark Decision - Dymocks and Todd
This is an important, recent case on franchising. It involves the well known Australian retail book-selling franchise, Dymocks, and some of its franchisees in New Zealand.
Author: Peter Sanfilippo
Firm: The Franchise Lawyer
Date: August, 2004
Times viewed: 1126
Virtual Assistants – What are the Benefits for YOU?
What do you do if you’re a sole operator or independent professional/executive in need of professional, confidential admin support, but don’t want to go to the expense and hassle involved in hiring your own staff?
Author: Lyn Prowse-Bishop, MVA
Date: August, 2004
Times viewed: 372
SOUNDS DIFFERENT - but not Different Enough
In a battle of broadcasters, the Federal Court has had the rare opportunity to consider the relevance of post-filing use in determining the registrability of a trade mark and appears to have issued a decision that both parties will claim as a win. In a brief additional statement, the Court has also made comment on the difference between the services “production of radio programs” and “radio broadcasting”.
Author: Sean McManis
Firm: Shelston IP
Date: August, 2004
Times viewed: 454
Decision 04/2002 (Decision 04/2002)
FREEDOM OF INFORMATION – refusal of access – matter concerning a grant of financial assistance to the third party under an investment incentive scheme – whether disclosure would disclose information that has a commercial value to the respondent or the third party – whether disclosure could reasonably be expected to destroy or diminish the commercial value of the information – application of s.45(1)(b) of the Freedom of Information Act 1992 Qld.
Author: Office of the Information Commissioner (Qld)
Date: August, 2004
Times viewed:
Decision 05/2004 (Decision 05/2004)
FREEDOM OF INFORMATION – refusal of access – report by a firm of business consultants appointed to investigate allegations of management impropriety and contracting irregularities by the respondent – whether matter excluded from the application of the Freedom of Information Act 1992 Qld by s.11A – whether matter was received or brought into existence by the respondent in carrying out activities conducted on a commercial basis.
Author: Office of the Information Commissioner (Qld)
Date: August, 2004
Times viewed:
Government Abandons Controversial Bankruptcy Legislation
On 23 July 2004, the Federal Government announced that it had decided to withdraw and revise its exposure draft of the Bankruptcy Legislation Amendment (Anti-Avoidance and Other Measures) Bill 2004 (Cth).
Firm: Allens Arthur Robinson
Date: August, 2004
Times viewed: 608
Workplace Harassment Standard
A new workplace health and safety advisory standard has been issued in Queensland, officially acknowledging workplace harassment as a health and safety issue.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: August, 2004
Times viewed: 826
Guidance about $200K Cap Still Some Time Off
The eagerly anticipated Full Bench decision in Aveling, concerning a high-earning executive's unfair contract claim, is still a number of months away.
Author: , Peter Beacroft
Firm: Allens Arthur Robinson
Date: August, 2004
Times viewed: 636
New Age-Discrimination Legislation
New federal legislation outlaws discrimination in employment on the ground of age, where age is the dominant reason for the discrimination.
Author: , Louise Keats
Firm: Allens Arthur Robinson
Date: August, 2004
Times viewed: 753
Psychiatric Harm in the Workplace
The rise in WorkCover claims for stress-related illness has highlighted the duty owed by an employer to take reasonable care to prevent psychiatric harm.
Author: , Tess Hardy
Firm: Allens Arthur Robinson
Date: August, 2004
Times viewed: 833 | | | | | July 2004 | | | |
Important Changes to Trade Practices Law
The Federal Government recently introduced legislation in response to the Dawson Report - the review of the Trade Practices Act undertaken early last year - aimed directly at improving the implementation of the Act as it affects and impacts business.
Author: , David Lieberman
Firm:
Date: July, 2004
Times viewed: 0
Cross defendants and costs in the principal proceedings
In Yang v Hypec Electronics Pty Ltd (in liq) [2003] NSWCA 181 the Court of Appeal considered the question of whether a cross-defendant as a party to the principal proceedings was amenable as such to an order for costs of the principal proceedings.
Author: Michelle Castle and Maurice Polkinghorne
Date: July, 2004
Times viewed: 425
The National Water Initiative
On 25 June 2004, the Council of Australian Governments (COAG) agreed to implement a National Water Initiative that is intended to result in greater compatibility between the state water regulatory regimes and in the adoption of best-practice approaches to water management nationally. Partner Grant Anderson and Senior Associate Robyn Glindemann outline the details of this important initiative.
Author: Grant Anderson, Robyn Glindemann
Firm: Allens Arthur Robinson
Date: July, 2004
Times viewed: 641 | | | | | June 2004 | | | |
Interpretation ‘til your Hart is content …
The difficulty with interpretation is that it is necessarily a subjective, rather than an objective exercise. Nowhere is this more clearly evident than in the varying interpretations given to Part IVA. The author would suggest that it is with this view of language and interpretation in mind that the recent High Court’s decision in Hart’s case should be viewed.
Author: Luis Batalha, Swetha Swamy
Firm: batallion legal
Date: June, 2004
Times viewed: 541
The Commissioner v Hart: A unanimous judgment for a split loan scheme
On 27 May 2004, the High Court delivered judgment in the much anticipated Commissioner of Taxation v Hart & Anor case. The High Court unanimously held in favour of the Commissioner of Taxation.
Author: Geoff McClellan, Hugh Paynter
Firm: Freehills
Date: June, 2004
Times viewed: 766
Two–Nil: RACV wins against Unisys again!
In late 2001 the Supreme Court of Victoria ruled on a claim by RACV against Unisys in respect of a failed IT project for the design, supply and installation of a work flow management system based on the imaging of documents (WMS System). Unisys appealed and on 14 May 2004, the Full Court of the Supreme Court of Victoria unanimously dismissed the appeal.
Author: Irene Zeitler
Firm: Freehills
Date: June, 2004
Times viewed: 496
Good rap for browsewrap in USA: Register.com Inc v Verio Inc
In a landmark decision affirming the enforceability of browsewrap licences, the United States Court of Appeal for the Second Circuit has upheld a preliminary injunction issued against Verio Inc. (Verio), a website developer and hosting firm, for breaching the browsewrap-style terms of use for the services of the plaintiff, Register.com (Register).
Author: Irene Zeitler, Leaellyn Rich
Firm: Freehills
Date: June, 2004
Times viewed: 421
Insurance and Reinsurance
A recent Federal Court decision has provided some guidance for insurers on the interpretation of the exemption for insurance found in section 46 of the Disability Discrimination Act. Partner Dean Carrigan and Lawyer Penny Holloway report.
Author: Dean Carrigan, Penny Holloway
Firm: Allens Arthur Robinson
Date: June, 2004
Times viewed: 641
Depreciation Allowance for Apartment Purchasers
Partner Tony Davies outlines what property developers should consider when selling apartments.
Author: Tony Davies
Firm: Allens Arthur Robinson
Date: June, 2004
Times viewed: 518
Funds Management - Real Estate & Superannuation
We look at rebate clauses in contracts of sale and depreciation allowance for apartment purchasers.
A recent decision by the Supreme Court of Queensland is of significant importance to property developers and investors entering into land sale contracts. Partner Tony Davies and Lawyer Jessica McKinnon report.
Author: Tony Davies, Jessica McKinnon
Firm: Allens Arthur Robinson
Date: June, 2004
Times viewed: 604 | | | | | May 2004 | | | |
Copyright – Additional damages under the Copyright Act - FNH Investments Pty Ltd v Sullivan [2003] FCAFC 246 – 7 November 2003
A recent Full Federal Court decision considered the factors that may influence the award of additional damages under section 115(4) of the Copyright Act 1968 (Cth).
Author: Marina Lloyd Jones
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 516
Practice and procedure – Sony wins anti-piracy case - Sony Computer Entertainment Australia Pty Ltd & Anor v Kasmara [2003] FCA 1496
A recent anti-piracy case in the Federal Court serves as a warning to people or companies who infringe the intellectual property rights of others.
Author: Miriam Stiel
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 570
Domain names – Extension of the .au Dispute Resolution Policy
The .au Dispute Resolution Policy will be extended to all applicable domain names from 1 August 2004.
Author: Prataal Raj
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 572
Trade Marks – Who is the Real Harry Potter? - Time Warner Entertainment Company, LP v Stepsam Investments Pty Ltd [2003] FCA 1502 (December 2003)
The Federal Court recently ruled on a dispute over the trade mark HARRY POTTER between a clothing company and the Time Warner Entertainment Company, which owns the rights to make movies based on the Harry Potter books.
Author: Colin Oberin, Cynthea Reynolds
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 826
Trade Marks – New THORPEDO Trade Mark
Can a high-profile personality create a trade mark that can withstand a challenge from similar names?
Author: David Yates
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 488
Trade Marks – 'What's in a name?' ACIP Considers Interface Between Trade Marks, Business Names, Company Names and Domain Names
The Advisory Council on Intellectual Property has released an issues paper examining the relationship between trade marks and business, company and domain names.
Author: Tim Golder, Marina Lloyd Jones
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 677
Designs - Reform of Australian Designs Law: Implications for Design Right Owners
The long-anticipated Designs Act 2003 will come into force on 17 June this year, radically overhauling designs law in Australia.
Author: Kimberley Lloyd
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 647
Pratt brings clarity — accountants and legal professional privilege
When the Australian Tax Office seeks access to taxpayer related records one of the most vexed issues is whether accountant's documents have to be produced. The recent Full Federal Court decision in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 brings some much needed clarity to this area. It also makes the Australian common law of legal professional privilege more coherent and logically based.
Author:
Firm: Freehills
Date: May, 2004
Times viewed: 593
Federal Court finds picketing might be protected action and certified agreements might have contractual effect
In a recent decision, Justice Finkelstein of the Federal Court reopened the debate surrounding the legal status of 'picketing' and whether certified (or unregistered) agreements can operate and have effect as contracts at common law.
Author: Paul Burns, Steve Bell
Firm: Freehills
Date: May, 2004
Times viewed: 787
Awards as a 'safety net': Undermined by the Federal Court
The Federal Court has recently upheld the insertion of redundancy provisions in a public sector award which reflected the current entitlements of the employees under the relevant certified agreement. In doing so, the Court left open the very real possibility for awards to be varied above what might commonly have previously been understood to be 'a safety net of minimum wages and conditions of employment'.
Author:
Firm: Freehills
Date: May, 2004
Times viewed: 660
Significant win for employers: Court narrows rights of employees with family responsibilities
In a much anticipated decision, on Friday, 30 April 2004 the Supreme Court of Victoria (Court) provided significant guidance on the issue of flexible work practices to employers regarding their treatment of employees with family responsibilities.
Author: Kate Jenkins, Alexis Eddy
Firm: Freehills
Date: May, 2004
Times viewed: 628
Patents – How fair is fair basis? Special leave to appeal granted for patent case - Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2003] FCAFC 29
The High Court will directly consider the issue of fair basis for the first time in many years, following the granting of a special leave application.
Author: Anthony Selleck
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 493
Patents – Federal Court Reaffirms that the Onus is on Revokers to Prove Invalidity
A recent Federal Court decision has held that patentees are not required to respond to particulars of invalidity or to provide particulars of inventive step or persons skilled in the art. The court reaffirmed the principle that the onus is squarely on parties seeking revocation of a patent to prove invalidity.
Author: Philip Kerr, Clare Cunliffe
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 471
Redundancy Pay on Outsourcing? Don't bank on it!
Two major banks have recently experienced success in outsourcing. The ANZ and Commonwealth Banks have successfully defended claims for severance payments by employees who took up jobs on similar terms and conditions with the company providing the outsourced functions. That is, the employees were prevented from receiving both the money and the job.
Author: Kathryn Dalton, Simone Szalmuk-Singer
Firm: Herbert Geer
Date: May, 2004
Times viewed: 908
It's Mine Because I Made It! Who owns employee inventions?
Imagine the scenario. Your star employee is employed to research and develop new products for your company. This employee loves to invent new things. You find out that this employee has, mainly in her own time and partially during work hours, invented a product with huge profit potential. The employee has patented the product and has set up a company to sell the product.
Author: Kathryn Dalton, Simone Szalmuk-Singer
Firm: Herbert Geer
Date: May, 2004
Times viewed: 816
Free Trade Agreement – Impacts on IP
The full text of the Australia-US Free Trade Agreement will have an impact on intellectual property
Author: Jim Dwyer, Raani Costelloe, Senior Associate, and Prataal Raj
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 579
Home building reforms in NSW - Changes to home building contracts
Recent legislative changes in NSW will have a major impact on building and building contracts. Partner Leighton O'Brien and Law Graduate Kristy Owen review the new regulations.
Author: Leighton O'Brien and Law Graduate Kristy Owen
Firm: Allens Arthur Robinson
Date: May, 2004
Times viewed: 868
Search Engine Marketing: Google v Overture
Ok, no time for long-winded and prosaic introductions waxing lyrical about the potential of online advertising. Let’s cut to the chase. We’re talking search engine marketing using pay-for-service operators. And we are talking about 2 services that both claim to lead the field: Overture and Google Adwords. Which is which, what do they do (and how), which is better, and what this all means for Australian lawyers.
Date: May, 2004
Times viewed: 484 | | | | | April 2004 | | | |
Summary of Recommendations: Digital Agenda Reforms
The Commonwealth Attorney-General has released the results of the research and analysis of the Digital Agenda and related copyright reforms undertaken by Phillips Fox. Following is a summary of the firm's recommendations.
Author: Matthew Hall
Firm: Phillips Fox
Date: April, 2004
Times viewed: 568
Trans-Tasman Joint Scheme for Regulation of Therapeutic Products
The Australian and New Zealand governments have formally agreed to establish a single trans-Tasman therapeutic goods agency, using the model of Food Standards Australia New Zealand.1 Partner Annette Hughes and Articled Clerk Susannah Downie look at the new regime and its likely impact.
Author: Annette Hughes, Susannah Downie
Firm: Allens Arthur Robinson
Date: April, 2004
Times viewed: 692
Native Title exists in the Gulf of Carpentaria
The Federal Court has determined that native title rights exist over waters in the Gulf of Carpentaria, off the North West Queensland coast. However, in its judgment delivered last week (23 March 2004), the court ruled that the native title rights are non-exclusive, meaning the impact of the determination on third parties is minimal. Senior Associate Ben Zillmann and Lawyer Rochelle Spedding report.
Author: Ben Zillmann and Rochelle Spedding
Firm: Allens Arthur Robinson
Date: April, 2004
Times viewed: 575
Claiming Patient Records as a Depreciating Asset for Tax Purposes
Intellectual property is a class of specified intangible asset that qualifies as a depreciating asset under the tax legislation and for which a deduction may be available. According to press reports, an Australian pathology company has claimed their patient records as "intellectual property" for the purpose of claiming a tax deduction under the capital allowances provisions. While not privy to the details of the particular claim, this article reviews the relevant law to examine, in general terms, the issues surrounding claiming patient records as intellectual property and so can be a depreciating asset.
Author: , Marc Johnston
Firm: Allens Arthur Robinson
Date: April, 2004
Times viewed: 765
Federal Unfair Dismissal Laws
The Workplace Relations Amendment (Termination of Employment) Bill (the Bill) was designed to create a single national unfair dismissal system. The House of Representatives passed the Bill on 11 February 2004, but the Senate voted against it on 22 March 2004, by 34 votes to 30.
Author: Nico Burmeister
Firm: Allens Arthur Robinson
Date: April, 2004
Times viewed: 2229
Transmission of Business
The Federal Parliament passed the Workplace Relations (Transmission of Business) Bill 2002 on 1 March this year. The Bill gives the Australian Industrial Relations Commission the power to order that a certified agreement that would transmit to a new employer under the current law has no binding effect on the new employer, or only binds to a specified extent or for a limited period.
Author: Peter Arthur, Louise Keats
Firm: Allens Arthur Robinson
Date: April, 2004
Times viewed: 780
Justice Merkel Considers the Apportionment of Costs in the Federal Court
In Telstra Corporation Ltd v Royal & Sun Alliance Insurance Australia Ltd [2003] FCA 979 his Honour considered whether costs should be apportioned on the basis of how issues were determined and ordered that the respondents pay 60% of the applicants’ taxed costs of and incidental to this proceeding.
Author: Michelle Castle and Maurice Polkinghorne
Date: April, 2004
Times viewed: 454
Calderbank Offers
What is the correct approach to reviewing Calderbank offers? This question was considered in the NSW Court of Appeal case of Jones v Bradley (No 2) [2003] NSWCA 258 before Meagher, Beazley and Santow JJA.
Author: Authors: Michelle Castle and Maurice Polkinghorne
Date: April, 2004
Times viewed: 2619
'Made in the USA': US country-of-origin food labelling laws delayed
The United States has passed new legislation to cover gaps in the existing country-of-origin food labelling laws. Lawyer David de Jersey and Partner Andrew Buchanan consider the effect that the new rules are likely to have once they come into force.
Author: Andrew Buchanan, David de Jersey
Firm: Allens Arthur Robinson
Date: April, 2004
Times viewed: 420
The Launch of .pro Domain for Professionals
From 5 April to 14 May 2004 trade mark owners can apply in the .pro domain for defensive registrations corresponding to their marks. The .pro domain is only available to doctors, lawyers and CPAs during this period, known as a “sunrise period”.
Author: Philippe Rodhain
Date: April, 2004
Times viewed: 577
Proposed Workplace Relations Act Amendments
The aggregate effect of proposed legislative changes in the federal workplace relations area will be to strengthen the bargaining scope and position of employers.
Author: Peter Arthur, Alex Danne
Firm: Allens Arthur Robinson
Date: April, 2004
Times viewed: 543
Redundancy Test Case
The Australian Industrial Relations Commission handed down its decision in the Redundancy Test Case on 26 March.
Author: Rosemary Bryant-Smith
Firm: Allens Arthur Robinson
Date: April, 2004
Times viewed: 792
NSW to Regulate 'Cybersnooping' at Work
The NSW Attorney-General is about to release a draft exposure Bill to require employers to make employees aware of any form of workplace surveillance or first obtain a court approval to conduct surveillance.
Author: , Scott Aspinall
Firm: Allens Arthur Robinson
Date: April, 2004
Times viewed: 717
Federal Loophole in Civil Liability Reforms Still Open
Civil liability reform legislation has been implemented in all States and Territories in an attempt to achieve a consistent approach to the reform of negligence laws throughout Australia. However, a loophole at the federal level still allows some plaintiffs to sidestep these reforms by bringing claims under the Trade Practices Act 1974. Partner Tom Yuncken and Lawyer Kathryn Parker examine the Federal Government's attempts to close this loophole.
Author: , Kathryn Parker
Firm: Allens Arthur Robinson
Date: April, 2004
Times viewed: 874
The Walker Inquiry
No punches have been pulled as the HCCC comes in for a serve and Parliament acts to smooth the way for prosecutions of doctors and nurses.
Author: Michael Wade
Firm: TressCox
Date: April, 2004
Times viewed: 746
Case Summary of Re Alex: Treatment for Gender Identity Dysphoria
This is a detailed case summary of Re Alex: Hormonal Treatment For Gender Identity Dysphoria [2004] FamCA 297. This summary has been prepared by the Family Court of Australia to explain the Court's decision.
Author: Family Court of Australia
Date: April, 2004
Times viewed: 772
Spilling the Beans on Cartels: A new recipe for dealing with the ACCC?
The Australian Competition and Consumer Commission (ACCC) has a new tool for fighting cartels—a leniency policy that offers significant incentives for corporations or individuals to 'blow the whistle' and cooperate with the competition watchdog. However, the simplicity of the policy belies the complex decisions confronting a firm trying to prevent or deal with serious competition problems, or which is faced with an ACCC investigation and imminent court action.
Author: Peter McDonald
Firm: Freehills
Date: April, 2004
Times viewed: 1460
Stop Using my Name!
There is a lot of confusion in many businesses about names. The Advisory Council on Intellectual Property (ACIP) is conducting a review into the interplay between trade marks, business names, company names and domain names to try and address this confusion.
Author: Kristin Stammer, Orana Catlin
Firm: Freehills
Date: April, 2004
Times viewed: 660
Duty of Disclosure in Australia
An applicant for a standard patent or an innovation patent has an ongoing duty to provide the Commissioner of Patents with the results of any documentary searches that have been carried out, before grant (for a standard patent) or before the issue of a certificate of examination (for innovation patents) to assess whether the invention is patentable.
Author: Ross McFarlane
Firm: Freehills
Date: April, 2004
Times viewed: 486
Who is a 'Builder' Under the Domestic Building Contracts Act 1995 (Vic)?
In a previous Update (October 2003) we highlighted the decision of the Victorian Civil and Administrative Tribunal ('VCAT') in Mt Holden Estates Pty Ltd v Lanigan Baldwin Pty Ltd [2003] VCAT 937. The appeal of this decision to the Supreme Court has now been heard. The Supreme Court upheld the decision of VCAT.
Author: Jane Hider, Tony Horan, Cate Green
Firm: Phillips Fox
Date: April, 2004
Times viewed: 757
Australian Appeal Court Finds DVT not Caused by an ‘Accident’
The Victorian Court of Appeal has allowed, by a majority verdict, the appeals of British Airways and Qantas against the decision of Bongornio J and found that Povey’s alleged DVT was not caused by an “accident” as required by Article 17 of the Warsaw Convention. The Court struck out Povey’s claim and ordered him to pay the airlines’ costs.
Author: , Jeanette Woollacott
Firm: Ebsworth & Ebsworth
Date: April, 2004
Times viewed: 758
APRA Imposes New ‘Fit and Proper’ Standards
On 3 March 2004 APRA released a 21 point checklist to be used by financial services companies to assess the quality of their boards, executives, auditors and actuaries.
Author: Andrew Goldstein
Firm: Ebsworth & Ebsworth
Date: April, 2004
Times viewed: 696
Shared Households
Not all shared households are considered to be the same. When you share a house or flat with other people, it may be a co-tenancy arrangement where all tenants have equal status, one tenant may be sub-letting from another tenant, or you may have a licence agreement with no tenancy rights at all.
Firm: Tenants Union Of Victoria Ltd
Date: April, 2004
Times viewed: 872
Financial Orders against Tenants
If your landlord has taken you to the Victorian Civil and Administrative Tribunal and obtained an order requiring you to pay them a sum of money the following information may be useful.
Firm: Tenants Union Of Victoria Ltd
Date: April, 2004
Times viewed: 635
Bond Loan Schemes
A discussion of bond loan schemes for tenants that can not afford the bond on a new tenancy - includes reference to eligibility, how to apply and proof of tenancy, identity and icome issues.
Firm: Tenants Union Of Victoria Ltd
Date: April, 2004
Times viewed: 1962
When You Want to Leave
This fact sheet outlines the different requirements for leaving a tenancy, including: When you don't have a fixed-term tenancy agreement, When you do have a fixed-term tenancy agreement, When the landlord is in breach, and Premises unfit for human habitation.
Author: Tenants' Union of Victoria
Date: April, 2004
Times viewed: 4440
Are Your Private Emails Really Private?
Research in the United States has shown that although 92% of employers monitor the email of their employees, not all of them have properly informed their employees about this. Australia is now beginning to legislate to ensure that fair and equitable guidelines are being followed.
Author: IT/IP News
Firm: Hopgood Ganim Lawyers
Date: April, 2004
Times viewed: 546
To P2P or Not to P2P? That is the Question..........
P2P (or "peer-to-peer") file sharing has been around for many years. However, it was only after the infamous debut of Napster in 1998, the "free" music download site (and later Kazaa, Gnutella, Freenet and AIMster) that it took centre stage as a major breakthrough in providing fee-free access to internet users, enabling them to download works from the highly monopolised computer software and music industries.
Author: IT/IP News
Firm: Hopgood Ganim Lawyers
Date: April, 2004
Times viewed: 843
Australia - United States Free Trade Agreement
Australia has taken a landmark step towards improving our trade relationship with the United States, in the form of the Australia United States Free Trade Agreement (AUSFTA).The inclusion of the Intellectual Property Chapter recognises the importance of a strong IP regime to economic growth through trade and investment, and also recognises that IP infiltrates the export (and import) market generally.
Author: IT/IP News
Firm: Hopgood Ganim Lawyers
Date: April, 2004
Times viewed: 370
The NSW Civil Liability Act and Community Participation Events
Following the demise of HIH and the enactment of New South Wales's Civil Liability Act ("CLA") specialist insurance solicitors at Abbott Tout increasingly are being asked about the liability implications of community participation programmes and events.
Author: General Insurance News
Firm: Abbott Tout
Date: April, 2004
Times viewed: 2522
The Spam Act Sets Hurdles for Businesses
Businesses should note that the forthcoming (April 10) Spam Act goes beyond protecting consumers against bulk offensive messages. It will also restrict day-to-day business marketing practices because the concern of the legislation is with unsolicited "commercial electronic messages" in general.
Author: Daniel Cootes
Firm: Abbott Tout
Date: April, 2004
Times viewed: 626
Court Rules on Use of TV Footage
The High Court of Australia has held that Australian television programs have a right to show small excerpts of other programs without infringing copyright, as long as they are fairly used for criticism, review or reporting of news.
Author: Media@AT Alert
Firm: Abbott Tout
Date: April, 2004
Times viewed: 326 | | | | | March 2004 | | | |
The Federal Court Considers the Principles to Award Costs on an Indemnity Basis
This was a matter where the court exercised its discretion to grant costs on an indemnity basis. The respondents had a document in their possession and failed to refer to documents prior to or at a motion hearing and such conduct was therefore culpable. Their explanation was inadequate as the omission conveyed a misleading impression and therefore costs on an indemnity basis was awarded.
Author: Michelle Castle and Maurice Polkinghorne
Date: March, 2004
Times viewed: 974
Third Party Seeking Costs Incurred in Compliance with Subpoenas Issued by Applicants in the Federal Court
Issues: whether legal costs were recoverable in respect of costs of complying with subpoenas. The recovery of such costs sought on the solicitor and client basis.
Author: Michelle Castle and Maurice Polkinghorne
Date: March, 2004
Times viewed: 587
Innovation in legal research
Imagine if it was possible to link a cited case, mentioned in a Word document or judgment you’re reading, to its case history and full text. “I’d like to see that!” I hear you cry.
Date: March, 2004
Times viewed: 561
The Revival of UMP
United Medical Protection, the largest medical defence organisation in the country, recommenced trading after provisional liquidation. Legislative tort reform and the extension of federal assistance significantly lowered UMP's forecast exposure to claims, and the four companies in question were held to be solvent.
Author: Michael Quinlan et al
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 567
The Code of Banking Practice and Unconscionability
On 1 August 2003, the Australian Bankers’ Association released the new Code of Banking Practice (the Code). Adoption of the self-regulatory Code is voluntary; however, in the broader context of untested and relatively recent legislation and court decisions in the area of unconscionability, the Code may have wider implications for creditors and their obligations towards distressed debtors.
Author: Michael Quinlan et al.
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 709
Australian Government Examining Ways to Improve Corporate Insolvency Laws
In May 2003, the Parliamentary Joint Committee on Corporations and Financial Services (the committee) published an issues paper entitled Improving Australia’s Corporate Insolvency Laws (the paper). The paper was produced as a result of public submissions to the committee and, based on these submissions, identifies areas for further public comment. Some of the main issues and questions presented by the paper are as follows.
Author: Michael Quinlan et al.
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 928
What is a Debt and When is One Incurred?
There is no definition of “debt” within the Corporations Act. There is no “quick and fast” rule of what constitutes a debt as its meaning varies according to the type of transaction in question. This article discusses corporate debts and when they are incurred for the purposes of insolvent trading considerations.
Author: Paul Nicols, Allan Topp of Sims Partners and Tim James
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 823
To Whom do Directors' Duties Apply?
The law imposes a wide range of duties and responsibilities on directors and other officers. However, the law on “who can be considered a director” is far from settled.
Author: Paul Nicols, Allan Topp of Sims Partners and Tim James
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 4135
What is Insolvency?
The Corporations Act defines a person which is not solvent as being insolvent. The enquiry which should be made under the section to ascertain whether a company is insolvent is as follows: Is the company able to pay all of its debts as and when they become due and payable?
Author: Paul Nicols, Alan Topp of Sims Partners and Tim James
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 845
Aussie Rules? It's a Girls' Game
In May 2003, a junior Australian Rules football league in the Melbourne suburbs banned a 13-year-old footballer from playing in its competition. Not for punching an opponent, or match-fixing, or testing positive for Nandrolone. But simply because the player, Helen Taylor, is a girl.
Author:
Firm: Freehills
Date: March, 2004
Times viewed: 569
The Subpoena and the Computer: A modern day tale of interrogation and oppression
No one likes to receive a subpoena. If you get one, you know it is going to cost you time and money. It will almost inevitably involve you conducting lengthy searches for documents and having to disclose what might be commercially sensitive material.
Author:
Firm: Freehills
Date: March, 2004
Times viewed: 585
Copyright in Television Broadcasts
The High Court has upheld Ten's appeal regarding what is a 'television broadcast' for the purpose of determining copyright infringement under the Copyright Act. The decision means that a broadcast for copyright infringement purposes is more than a single image.
Author: Kristin Stammer, Michelle Momdjian
Firm: Freehills
Date: March, 2004
Times viewed: 368
Advertising Agency off the Hook for Misleading Advertisements
The Full Court of the Federal Court has unanimously confirmed advertising agency Saatchi & Saatchi was not liable for misleading and deceptive advertisements it made for NRMA Insurance.
Author: Irene Zeitler, Kathrin Boettcher
Firm: Freehills
Date: March, 2004
Times viewed: 522
Changes to Australian Designs Law
Australian designs law is currently governed by the Designs Act 1906 (original Act). The new Designs Act 2003 (new Act) will come into force on 17 June 2004 and will govern all applications filed from that date. The new Act introduces a number of significant changes to Australian designs law.
Author: Paul Savage, Ross McFarlane, Tracey Hendy, Amy Sawyer
Firm: Freehills
Date: March, 2004
Times viewed: 348
Federal Court Confirms Availability of Protected Industrial Action within Life of a Certified Agreement
The Federal Court has confirmed that matters which were not settled by a certified agreement can be the subject of legitimate industrial action during the life of that agreement. The implications of this, including steps employers can take to reduce their exposure, is discussed in greater detail at the end of this article.
Author: , Denise O'Reilly
Firm: Freehills
Date: March, 2004
Times viewed: 569
NSWIRC Unfair Contracts Jurisdiction Limited to Work-related Contracts
In the much awaited 'Mitchforce decision', the NSWIRC, by majority, came into line with the view expressed in the New South Wales Court of Appeal and held that contracts or arrangements will not come within the NSWIRC's unfair contracts jurisdiction unless the relevant contract or arrangement provides directly for the performance of work.
Author: Glenn Fredericks, Amie Fellows
Firm: Freehills
Date: March, 2004
Times viewed: 586
NSWIRC Unfair Contracts Jurisdiction Limited by Federal Awards
In December 2003, a Full Bench of the New South Wales Industrial Relations Commission in Court Session (NSWIRC) handed down a decision regarding the scope of its jurisdiction under section 106 of the Industrial Relations Act 1996 (NSW) (IR Act).
Author: , Penny Thew
Firm: Freehills
Date: March, 2004
Times viewed: 479
Not Everybody Loves Spam: New rules to stop unsolicited emails
The Spam Act, which came into effect on 12 December 2003, is designed to tackle the proliferation of unsolicited emails and other electronic messages, frequently used by marketeers that not only clog-up recipients' inboxes and slow productivity, but often carry offensive and illegal content such as pornography and financial scams. This article outlines some steps for employers.
Author: Glenn Fredericks, Alicia Taranto
Firm: Freehills
Date: March, 2004
Times viewed: 605
Will a Deed Release You from Everything?
A recent case in the Federal Magistrates Court has strengthened the argument that a deed of release in settlement of one claim that intends to discharge an employer from all other claims will be legally enforceable.
Author: , Luke Raffin
Firm: Freehills
Date: March, 2004
Times viewed: 1254
Pregnancy Prohibits Promotion
If you feel like you have read countless cases on flexible working arrangements over the last five years then you are right. If you feel like employers lose most of them, you are right again.
Author: Kate Jenkins, Cai Lin Tan
Firm: Freehills
Date: March, 2004
Times viewed: 357
Discussion Paper 68: Gene Patenting and Human Health
AAR Senior Associate Caroline Ryan provides an overview of Discussion Paper 68: Gene Patenting and Human Health, released by the Australian Law Reform Commission as part of the current Inquiry into the impact of patenting genetic materials and related technologies on research and healthcare.
Author: Caroline Ryan
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 512
Anti-money Laundering Legislation: Proposed Reforms Take up International Recommendations
The Federal Government's decision to reform Australia's anti-money laundering system in line with the revised Forty Recommendations of the Financial Action Task Force on Money Laundering will result in significant changes to Australia's money laundering legislation, including the Financial Transaction Reports Act 1988. Senior Associate Anna Lenahan reports.
Author: Anna Lenahan
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 1573
Uniform Defamation Law?
The Federal Government's proposed uniform defamation law could have important ramifications for free speech and freedom of the press, according to AAR Partners Belinda Thompson and Roy Williams and Lawyer Chris Bacon. Some of the more controversial proposals announced by Federal Attorney-General Philip Ruddock have been criticised by the media, defamation lawyers and Mr Ruddock's State and Territory counterparts.
Author: Belinda Thompson, Roy Williams, Chris Bacon
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 1354
National Approach Towards Uniform Regulation of Architects (National Approach Towards Uniform Regulation of Architects)
The introduction of the Architects Act 2003 (NSW) forms part of a national approach towards the uniform regulation of architects. Lawyer Karin Ragel explains.
Author: Karin Ragel
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 674
Dramatic jump in business Internet income
Australian businesses more than doubled their Internet-related income in 2002-03, according to the latest figures from the Australian Bureau of Statistics (ABS).
Date: March, 2004
Times viewed: 445
Liability Under the Trade Practices Act for Breaching the Franchising Code of Conduct
The Franchising Code of Conduct (Code) is a mandatory code under the Trade Practices Act (TPA) that places obligations on parties to a ‘franchise agreement’. Specifically franchisors are required to disclose specific facts and follow set procedures in their dealings with franchisees or risk breaching the Code and therefore the TPA. The ACCC has begun to aggressively prosecute businesses that deny their franchisor status by using licensing or distribution agreements that specifically state that the arrangement in question is not a franchising arrangement. Two recent cases illustrate how broadly the ACCC is interpreting the term ‘franchise agreement’.
Author: Simon Uthmeyer, Cecily Hollingworth
Firm: Phillips Fox
Date: March, 2004
Times viewed: 947
Establishing your brand in the market for legal services
We’re going to the cricket. Remember the esky and the thermos.
I’ve got a headache. Do you have an aspirin?
I love to listen to music on my walkman while I rollerblade.
Where’s the dictaphone?
Author: Huntly Gordon and Micah Buchdahl
Date: March, 2004
Times viewed: 469
Disaster recovery in the terrorist age
With nearly 14 000 New York lawyers displaced as a result of the events of September 11, 2001, hundreds of thousands of clients, their files and casework are potentially lost. Among the numerous tasks to overcome, is the rebuilding of information and technology. For those that envisioned “disaster recovery and planning” 2002 has been a year to implement; for those that are now planning for potential problems in the future - it is time to learn from the experience.
Author: Micah Buchdahl
Date: March, 2004
Times viewed: 443
How the Web can net clients for you
Larry Bodine with the ‘heads up’ on law firm web sites: what clients look for, web site hot spots and the importance of thinking client centrically.
Author: Larry Bodine
Date: March, 2004
Times viewed: 324
Gutnick and beyond
The most important areas of Internet law are those which govern choice of law, jurisdiction, forum and reciprocal enforcement. The High Court of Australia recently considered these areas of law in the context of defamation. No other ultimate court of appeal in the world has considered them in this context. The High Court’s decision is therefore likely to be particularly influential across the world.
Author: Sophie Dawson
Date: March, 2004
Times viewed: 533
Registering a domain name – some important considerations for lawyers
Domain names have developed into an important part of a company’s marketing and promotional strategy, and are a vital element in developing a company’s online business identity. This article explores some of the strategies companies need to consider in protecting domain names.
Author: Leif Gamertsfelder & Joanne Worrad
Firm: Deacons
Date: March, 2004
Times viewed: 524
Would you like a merger with that sir?
The hottest current trend in North American law firm marketing is sales – the selling of a law firm’s services to existing and potential clients by professional salespeople. What should Australian law firms make of this trend and should they adopt a sales strategy?
Author: Huntly Gordon of FindLaw
Date: March, 2004
Times viewed: 355
The 10 dumbest marketing mistakes law firms will make in 2004
Larry Bodine of The LawMarketing Portal, www.lawmarketing.com, says there are an infinite number of ways that law firms screw up their marketing.
Author: Larry Bodine of the LawMarketing Portal
Date: March, 2004
Times viewed: 405
“From Redundancy to Re-Instatement” - the Journey of Two Injured Workers
Employers were recently given an alarming reminder by the Australian Industrial Relations Commission of the importance of implementing fair and lawful selection procedures when downsizing. In a recent case, an employer was ordered to reinstate two injured employees as well as pay them 18 months’ back pay.
Author: Kris Growcott and Simone Szalmuk-Singer
Firm: Herbert Geer
Date: March, 2004
Times viewed: 641
Attention Victorian employers – recent changes to Victorian legislation affect you!
The Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003 took effect on 1 January 2004. Important areas of change which will affect many Victorian employers include improved protection for non-award employees, and common rule application of Federal awards in Victoria.
Author: Michaela Moroney
Firm: Herbert Geer
Date: March, 2004
Times viewed: 622
Union Recognition Clauses OK
Parties to a certified agreement are free to recognise that a particular union has a role in the workplace without offending freedom of association principles. Partner Jamie Wells reports on the certification of the McDonald's multiple business agreement.
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 434
Major Land Rich Provisions Changes
Recent amendments to stamp duty legislation in several Australian states will have a dramatic impact on how business is done and on the property investment industry, as Special Counsel Anthony Johnston reports.
Author: Anthony Johnston
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 845
Family Responsibilities Balanced Responsibly
An employer's decision to relocate a workplace has been upheld on appeal as being non-discriminatory, even though relocation impacted seriously on an employee's family responsibilities. Partner Jamie Wells reports.
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 552
Lack of Suitable Position No Bar to Reinstatement
Full Bench of the Australian Industrial Relations Commission has found that a lack of suitable positions for employees who are unfairly dismissed is not a bar to reinstatement. Law Graduate Scott Aspinall reports.
Author: Scott Aspinall
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 595
Latham Labor Industrial Relations Policy
With a federal election on the horizon, Lawyer Nico Burmeister considers how the industrial relations landscape may change, should the ALP gain power.
Author: Nico Burmeister
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 634
Core OH&S Obligations in NSW
A number of fatal accidents on construction sites, and the forthcoming proposals to occupational health and safety laws based on the findings of the Cole Royal Commission into the construction industry, are forcing commercial developers and builders to consider their occupational health and safety obligations. In this Focus, we outline the OH&S obligations imposed on various parties and the implications of the non-delegability of the statutory duties.
Author: Leighton O'Brien, Kristy Owen, David Cross
Firm: Allens Arthur Robinson
Date: March, 2004
Times viewed: 1600 | | | | | February 2004 | | | |
Open source software: What is it and how does it work?
Open source software is playing an increasingly important role in the marketplace. It is, however, still subject to misunderstanding at both the lay and legal level. This article will attempt to clarify some of the uncertainty by addressing two fundamental issues—what open source software is, and how it works.
Author: Ben Kremer
Firm: Freehills
Date: February, 2004
Times viewed: 566
Retail Leases Act 1994 (NSW)
The Supreme Court takes a liberal approach to the meaning of 'premises' in deciding that footpath seating licences come within the Retail Leases Act 1994 (NSW).
Author: Elizabeth Hurn and Pip Barnes
Firm: Phillips Fox
Date: February, 2004
Times viewed: 1946
Circulating Pornographic Emails at Work Held to Justify Termination
b>Facts
Mr Williams began working at Centrelink in October 2000. In November 2002 he became a harassment contact officer for the Ballarat office and was provided with information about Centrelink policies and relevant legislation.
During his employment Mr Williams sent 23 inappropriate emails on Centrelink’s email system to internal and external recipients. These emails included pornographic pictures. One email sent by Mr Williams was received by a Centrelink employee in Coffs Harbour. Notification of this email prompted investigation into email use at the Ballarat office.
Author: Nicholas Ruskin
Firm: Phillips Fox
Date: February, 2004
Times viewed: 825
Obvious risk or hidden trap? A not so obvious trap for the unwary Ah Tong v Wingecarribee Shire
The Court of Appeal recently considered the concept of what comprises an obvious risk in the case of Ah Tong v W ingecarribee Shire Council.
Author: Grace Monaco
Firm: Moray & Agnew
Date: February, 2004
Times viewed: 501
Franchise follies: Lessons in licensing from the ACCC
Two recent Australian Competition and Consumer Commission (ACCC) actions have highlighted the need to carefully consider whether the Franchising Code of Conduct (Code) governs commercial agreements such as intellectual property licences and distributorship agreements.
Author:
Firm: Freehills
Date: February, 2004
Times viewed: 600
Who owns employee produced inventions?
The case of Spencer Industries Pty Limited (Spencer Industries) v Collins is a timely reminder of the principles to be applied in Australia in determining an employer's right to the inventions of an employee. It also provides some interesting observations on some other matters relating to the employer/employee relationship in this area.
Author: , Chris Barton
Firm: Freehills
Date: February, 2004
Times viewed: 746
Michael Carmody's letter to 1500 Chairs
The Tax Commissioner wants boards more involved in managing tax risk — but what are the hidden dangers?
Author:
Firm: Freehills
Date: February, 2004
Times viewed: 461
Section 151C Workers Compensation Act 1987 Finally Determined
On 12 December 2003, the High Court of Australia refused the worker’s
application for special leave to appeal from the decision of the NSW Court of Appeal in National Direct Imaging Pty Ltd v Lamy.
Author: Stephen Harris
Firm: Moray & Agnew
Date: February, 2004
Times viewed: 581
Product Disclosure Statements and Socially Responsible Investing
Section 1013DA of the Corporations Act provides for the Australian Securities and Investments Commission (ASIC) to develop guidelines that must be complied with where a PDS "... makes any claim that labour standards or environmental, social or ethical considerations are taken into account in the selection, retention or realisation of the investment."
Author: Phil Logan
Firm: Abbott Tout
Date: February, 2004
Times viewed: 466
No Compensation for Reasonable Dismissal
An employee who claimed workers compensation for psychological injury following constructive dismissal by her employer has lost her case in the NSW Compensation Court, after the judge found the employer's actions were reasonable under the circumstances.
Author: Workers Compensation News
Firm: Abbott Tout
Date: February, 2004
Times viewed: 600
Australia-United States Free Trade Agreement
Partner Bruce Johnston and Lawyer Melanie Cobb summarise some of the key outcomes of the historic Australia-United States Free Trade Agreement.
Author: Bruce Johnston, Melanie Cobb
Firm: Allens Arthur Robinson
Date: February, 2004
Times viewed: 578
WA Property Update Stamp Duty
A number of significant changes to WA’s stamp duty laws came into effect on 1 January 2004. These changes cover a wide range of items. This update addresses those items relevant to the property industry in Western Australia.
Author: Peter Beekink
Firm: DLA Phillips Fox
Date: February, 2004
Times viewed: 1216
Employees in Suits – Approach With Care
Employers in New South Wales must ensure that dealings with employees starting unfair contract actions while still employed do not amount to criminal contempt1. Senior Associate Andrew Cardell-Ree reports.
Author: Andrew Cardell-Ree
Firm: Allens Arthur Robinson
Date: February, 2004
Times viewed: 657
What is the Value of a Good Record in OHS?
A recent New South Wales Industrial Relations Commission decision2 indicates that a good occupational health and safety (OHS) record may do little to minimise the penalty imposed by a tribunal in a prosecution for breach of OHS legislation. Consultant Ric Morgan reports.
Author: Ric Morgan
Firm: Allens Arthur Robinson
Date: February, 2004
Times viewed: 626
Common Rule Awards for Victoria
The Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003 (Cth) came into effect on 1 January 2004 and reintroduces a system of common rule awards in Victoria. Lawyer Rosemary Bryant-Smith reports.
Author: Rosemary Bryant-Smith
Firm: Allens Arthur Robinson
Date: February, 2004
Times viewed: 898
Outsourcing and Restructuring Risks
In 2004, the High Court will review two important employment issues affecting plans to restructure. We look at both special leave applications heard by the High Court in December 2003.
While outsourcing functions such as IT can generate cost savings, there can be unexpected risks in replacing one outsource provider with another. Senior Associate Tony Saunders reports.
Author: Tony Saunders
Firm: Allens Arthur Robinson
Date: February, 2004
Times viewed: 686
Restructuring Risks – Amcor
Employers intending to transfer employees between related corporations as part of a business restructure will be interested in the outcome of Amcor's appeal to the High Court. Partner and the solicitor for Amcor in these proceedings, Julian Riekert, reports.
Author:
Firm: Allens Arthur Robinson
Date: February, 2004
Times viewed: 635 | | | | | January 2004 | | | |
Insurers Win in Wilkie : Company Directors Left to Fund Defence Costs
In November 2003, the New South Wales Supreme Court confirmed that insurers can deny indemnity and refuse to pay defence costs where they seek to rely on an exclusion clause applicable to dishonest and fraudulent conduct. Although different policy wordings may produce different results, the structure and wording of the D&O policy was not uncommon. Lawyer Jacqui Mengler reports on the implications for insurers.
Author: Jacqui Mengler
Firm: Allens Arthur Robinson
Date: January, 2004
Times viewed: 714
Major changes to affect all Victorian employers
As a result of complementary legislation passed by the Victorian and Federal Parliaments, Victorian employees who are currently not covered by federal awards, agreements or Australian Workplace Agreements (AWAs) will be covered by an expanded regime of minimum terms and conditions of employment, many of which commenced from 1 January 2004.
Author:
Firm: Freehills
Date: January, 2004
Times viewed: 342
Part IVA and private rulings: Are private rulings worth the paper they are written on?
A number of aspects of government are currently examining the operation of the private rulings system under the taxation laws. One of the matters which may be addressed by the Inspector-General is the inability of taxpayers to obtain private rulings which bind the ATO as to the operation of Part IVA.
Author: Sarah Dunn, Hugh Paynter
Firm: Freehills
Date: January, 2004
Times viewed: 481
Canning spam
The Spam Act 2003 is expected to come into force in around April 2004. The Act seeks to reduce the amount of junk email and SMS (spam) in Australia. This article is an essential read for anyone who sends marketing emails to help determine to what extent they may continue to do so in the future.
Author: Richard Fleming
Firm: Deacons
Date: January, 2004
Times viewed: 499
Internet auctions, consumer protection and the Trade Practices Act
Internet auctions have in recent years demonstrated themselves to be a popular forum for fraudulent activities. Sellers and Internet auction operators, including overseas based sellers and operators, need to be aware of their potential liability under the provisions of Part V of the Trade Practices Act 1974 (Cth) (“TPA”) and/or equivalent State and Territory Fair Trading legislation (for example, the Fair Trading Act 1987 (NSW)), where they sell or are involved in the sale of products to Australian consumers.
Author: Andrew Sorenson, Mathew Webster
Firm: Deacons
Date: January, 2004
Times viewed: 1826
Employers, have you properly notified employees of their representation rights?
A recent Australian Industrial Relations Commission (AIRC) decision highlights the importance of using appropriate wording in notices to employees of intention to make a non-union certified agreement under the Workplace Relations Act 1996.
Author: Martin Osborne, Monica Taylor
Firm: Deacons
Date: January, 2004
Times viewed: 481
Liquidation – leave not required by employees in AIRC proceedings
Insolvency practitioners should be aware that employees of a company in liquidation can apply or continue proceedings for unfair dismissal in the Australian Industrial Relations Commission (AIRC) without seeking leave of the Court, impacting Section 471B of the Corporations Act.
Author: Martin Osborne
Firm: Deacons
Date: January, 2004
Times viewed: 465
AIRC Moves to Clarify Boundaries of Right of Entry Provisions
In recent times, unions have increasingly utilised the ‘right of entry’ provisions under the Workplace Relations Act 1996 (Cth) (WR Act) as a means of improving their workplace profile, to recruit new members and to attack employer sponsored workplace initiatives. Not surprisingly, this development has resulted in a number of disputes coming before the Australian Industrial Relations Commission (AIRC) in relation to the operation of the right of entry provisions.
Author: Paul Burns
Firm: Freehills
Date: January, 2004
Times viewed: 466
Newspaper Defamation Case Provides Analysis for Three Key Defences
The recent Victorian Court of Appeal decision of The Herald & Weekly Times & Andrew Bolt v Jelena Popovic provides a useful analysis of three important common law defences to an action for defamation: extended qualified privilege, Polly Peck, and fair comment, reports Partner Belinda Thompson and Lawyer David Robson.
Author: Belinda Thompson, David Robson
Firm: Allens Arthur Robinson
Date: January, 2004
Times viewed: 1554
Damaging Publicity is no Reason not to Publish
Media organisations can take some comfort from a recent Full Federal Court decision, which re-affirmed that embarrassing, damaging or even dangerous facts coming to light during a proceeding will not necessarily warrant the issuing of a suppression order. Lawyers Sally Gluyas and Brooke Johnson examine the case of The Herald & Weekly Times Limited and former Carlton football star and Brownlow medallist Greg Williams.
Author: Sally Gluyas and Brooke Johnson
Firm: Allens Arthur Robinson
Date: January, 2004
Times viewed: 801
Beware the Illegal Acts of Third Parties
A recent decision of the NSW Industrial Relations Commission demonstrates that employers may be liable under the NSW Occupational Health and Safety Act, even if the risk to employees stems from the unlawful acts of non-employees10. Law graduate Louise Keats reports.
Author: Louise Keats
Firm: Allens Arthur Robinson
Date: January, 2004
Times viewed: 604
Positive Discrimination Out of Favour
Refusing an employee's request to return to work part-time after maternity leave is not discriminatory, so long as there are reasonable grounds for the refusal, according to a judgment handed down this month in the Federal Magistrates Court13. Law graduate Scott Aspinall reports.
Author: Scott Aspinall
Firm: Allens Arthur Robinson
Date: January, 2004
Times viewed: 656
Directions in OHS – the year in review
This year, New South Wales, Queensland, South Australia, Victoria and the Australian Capital Territory amended or commenced reviews of their occupational health and safety (OHS) legislation. While the reviews and amendments cover many areas, the important issues include inspectors' powers, new and alternative penalties, and specific targeting of workplace deaths through industrial manslaughter offences. Are there any nationally consistent policy and legal directions? Consultants Dr Kirk Lovric and Ric Morgan report.
Author: Dr. Kirk Lovric and Ric Morgan
Firm: Allens Arthur Robinson
Date: January, 2004
Times viewed: 646
Rostered Casuals and Unfair Dismissal
Recent amendments to the Workplace Relations Act 1996 and its Regulations have clarified the definition of 'casual employees' who are excluded from accessing the unfair dismissal provisions. Lawyer Rosemary Bryant-Smith and legal clerk Tanya Josev report.
Author: Rosemary Bryant-Smith and Tanya Josev
Firm: Allens Arthur Robinson
Date: January, 2004
Times viewed: 526
High Court to Decide on Redundancy Payments
The High Court is soon to consider the meaning of redundancy and the right of employees to severance benefits on a sale or transmission of a business. On 12 December 2003, the High Court granted Amcor special leave to appeal the Federal Court's Amcor1 decision. Lawyer Rosemary Bryant-Smith reports.
Author: Rosemary Bryant-Smith
Firm: Allens Arthur Robinson
Date: January, 2004
Times viewed: 536
The Open Source Software Revolution?
The adoption of open source software around the world is ever-increasing, and the Australian Capital Territory has become Australia's first jurisdiction to approve legislation which imposes a responsibility on public bodies to consider the open source option when procuring computer software.
Author: IT Team
Firm: Abbott Tout
Date: January, 2004
Times viewed: 349
Checking Material for Possible Defamation Before Publication or Broadcast
Checking defamatory material before publication or broadcast is one of the most difficult tasks for any journalist or media organisation. There are a number of steps to take to assist in minimising potential defamation liability.
Author: Damian Ward
Firm: Abbott Tout
Date: January, 2004
Times viewed: 368
Can Short-Term Casuals Access Unfair Dismissals in the Australian Industrial Relations Commission?
Employers are warned to be cautious when terminating casuals as the Australian Industrial Relations Commission has ruled that a casual, with less than 12 months service but engaged in regular and systematic work has jurisdiction to make an unfair dismissal claim. This will be superceeded by legislation.
Author: Rick Catanzariti, Tamara Kingsley
Firm: Phillips Fox
Date: January, 2004
Times viewed: 419
Visy Contract Now Scrap Paper: When Commercial Dealings With Competitors Go Awry
Entering into contracts with your competitors has become even more of a minefield with this recent High Court decision on when an exclusive supply agreement can become an anti-competitive market sharing agreement in breach of the Trade Practices Act.
Author:
Firm: Ebsworth & Ebsworth
Date: January, 2004
Times viewed: 752
Email Policy Precautions
Recent case has shown that where an employer has a reasonable internet and email policy in place which has been communicated to employees, a termination for serious breach of the policy is likely to be upheld. This article sets out the guidelines of such a policy.
Author: Joe Ganim, Jill Tudberry and Craig Cameron
Firm: Hopgood Ganim Lawyers
Date: January, 2004
Times viewed: 788
What is the General Employee Entitlements and Redundancy Scheme (GEERS)?
With the recent demise of a number of large corporations you may have heard about a government scheme that pays employee entitlements. This scheme is known as GEERS.
Author: Joe Ganim, Jill Tudberry and Craig Cameron
Firm: Hopgood Ganim Lawyers
Date: January, 2004
Times viewed: 1603
The Risk for Employers when using Labour Hire
Employers have traditionally used labour hire to simplify the issues relative to having a workforce, however this may not always be the case. Like any form of workforce engagement there are risks. This article is a summary of prevalent types of claims that can be made by a labour hire employee that may result in all or part of the liability resting with the host employer.
Author: Joe Ganim, Jill Tudberry and Craig Cameron
Firm: Hopgood Ganim Lawyers
Date: January, 2004
Times viewed: 619
Executive Remuneration - Best Practice Principles and Guidelines
Following recent much publicised issues surrounding executive remuneration, the Business Council of Australia has released the "Executive Remuneration: Best Practice Principles and Guide".
Author: Joe Ganim, Jill Tudberry, and Craig Cameron
Firm: Hopgood Ganim Lawyers
Date: January, 2004
Times viewed: 399
Section 54 review
A formal review of the section 54 of the Insurance Contracts Act has breathed some life back into claims made cover. Legislative change is set to restore a fair balance between insurers' and insureds' rights which will improve the professional indemnity market. It includes cases of insured's contractual compliance and loss, and extension of cover.
Author: Michael Gill
Firm: Phillips Fox
Date: January, 2004
Times viewed: 464
Public rulings deficient — no SAP?
The Commissioner of Taxation will need to reconsider the terms of two public rulings (rulings) after they came under criticism in the recent Federal Court judgment, MLC Investments Ltd v Commissioner of Taxation [2003] FCA 1487.
Author: Geoff McClellan, Chris Tappere
Firm: Freehills
Date: January, 2004
Times viewed: 383
Anti-spam legislation has consequences for Australian business
New anti-spam legislation, passed this month by Federal Parliament, will impose a number of obligations on organisations in the field of e-commerce. The Spam Act 2003 (Act) is designed to tackle the proliferation of unsolicited emails and other messages such as SMS text, used by marketeers that not only clog-up recipients' inboxes and slow productivity, but often carry offensive and illegal content such as pornography and financial scams.
Author: Burt Hill, Kaman Tsoi
Firm: Freehills
Date: January, 2004
Times viewed: 570
Pharmaceutical patent term provisions interpreted more broadly
In undefended proceedings, Merck & Co Inc has succeeded in appealing a decision of the delegate of the Commissioner of Patents who had refused to grant an extension of term of Australian Patent No. 535944 relating to the human pharmaceutical Lovastatin and its beta-hydroxy metabolite. This Federal Court decision, handed down on 25 November 2003, demonstrates some willingness by the courts to interpret the provisions governing pharmaceutical patent term extensions more broadly.
Author: Lea Lewin
Firm: Freehills Carter Smith Beadle
Date: January, 2004
Times viewed: 440
Bank not Obliged to Disclose Property Valuation to Loan Customers
The Federal Court of Australia has recently dismissed a claim by the ACCC that the Commonwealth Bank was obliged to reveal the contents of its valuation of an investment property to certain investment loan customers, or otherwise alert them that they may have paid too much for the property so that they might seek their own advice.
Author: Stuart O'Neill
Firm: Gilshenan & Luton
Date: January, 2004
Times viewed: 1173 | | | | | December 2003 | | | |
Conflict in test for determining if agreements can be certified
One of the prerequisites for the certification of an agreement under the Workplace Relations Act 1996 (Cth) is that the agreement must concern matters pertaining to the relationship between the employer and employees covered by the agreement (see section 170LI). A recent AIRC decision concluded that each clause in the agreement need not pertain to the requisite relationship provided that the agreement 'as a whole' does so.
Author: Paul Burns and Julian Clarke
Firm: Freehills
Date: December, 2003
Times viewed: 252
AIRC confirms freedom of choice in bargaining
In an important decision, the Full Bench of the Australian Industrial Relations Commission (AIRC) has provided some guidance on the AIRC's capacity to make orders about the bargaining process.
Author: Chris Gardner
Firm: Freehills
Date: December, 2003
Times viewed: 310
Security of payment: How secure is it?
In the last few years a number of States have enacted security of payment legislation which is intended to secure prompt recovery of progress payments under a construction contract. It is open to debate whether cash flow in the construction industry has improved since the introduction of the legislation, and a recent NSW decision casts further doubt on the effectiveness of the legislation.
Author: David Opperman and Geoff Hansen
Firm: Freehills
Date: December, 2003
Times viewed: 585
Voluntary industry codes: The way of the future?
The Australian Competition and Consumer Commission (ACCC) is hoping that self regulation, in the form of voluntary codes of practice, will be entered into by participants in a wide range of business activities, and that adherence to such codes will result in the resolution of many business to business and business to customer disputes, which would otherwise have to be dealt with by the ACCC or by the courts.
Author: Brian Kewley
Firm: Freehills
Date: December, 2003
Times viewed: 411
Queensland introduces new security for payment legislation
The Building and Construction Industry Payments Bill 2003, introduced into the Queensland Parliament on 26 November 2003, supplements and amends the existing statutory rights of parties to secure timely payment for construction work in Queensland. This article looks at the major implications of the bill.
Author: Ren Niemann and David de Jersey
Firm: Allens Arthur Robinson
Date: December, 2003
Times viewed: 625
Lessons for administrators and creditors from Pan
A challenge by the owner of Pan Pharmaceuticals to the way creditor voting rights were dealt with by the voluntary administrator was dismissed in the NSW Supreme Court. This article looks at the implications of the Pan decision for creditors and administrators generally.
Author: David Courtness
Firm: Allens Arthur Robinson
Date: December, 2003
Times viewed: 548
The High Court's ruling on the Rural Press decision
The High Court's decision in Rural Press Limited v Australian Competition and Consumer Commission, handed down on 11 December, has important implications for companies entering into market-sharing arrangements. This article examines the ruling, which is the latest in a line of High Court decisions dealing with exclusionary provisions, anti-competitive agreements and misuse of market power.
Author: Jared Cowie
Firm: Allens Arthur Robinson
Date: December, 2003
Times viewed: 556
Location, location, location - a different direction
Recently, an employee sought to use anti-discrimination legislation as a means to challenge her employer’s ability to relocate her primary place of work.
Author: Kathy Dalton and Simone Szalmuk- Singer
Firm: Herbert Geer
Date: December, 2003
Times viewed: 397
Don’t want to pay for the home renovation? - so what is a reasonable medical expense?
A recent Magistrates’ Court decision has clarified what type of expenses would be considered “reasonable” under s 99(1)(a) Accident Compensation Act 1985 (the “Act”) (Colosimo v GIO Workers’ Compensation (Victoria) Ltd and Victorian WorkCover Authority, Lauritsen M, 15 September 2003)
Author: Suzy Hall and Clare Miller
Firm: Herbert Geer
Date: December, 2003
Times viewed: 489
Be mindful of the children
The High Court recently confirmed that employers not only owe a duty to their employees in regard to their safety and well-being at work, but also to those who are in a close and loving relationship with those employees. (Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 77 ALJR 1205)
Author: Kathy Dalton and Kris Growcott
Firm: Herbert Geer
Date: December, 2003
Times viewed: 478
Victoria in Transition
2004 is likely to see many Victorian employers find themselves in unfamiliar territory, confronted with the financial, administrative and legal realities of a unitary industrial relations system which will see approximately 350 000 Victorian employees gain access to the federal award safety net.
Author: Kathy Dalton and Michaela Moloney
Firm: Herbert Geer
Date: December, 2003
Times viewed: 459
Who is “the insured” when the policy covers many?
In National Vulcan Engineering Insurance Group Limited & Ors v Transfield Construction Pty Limited & Ors the NSW Court of Appeal dealt with an issue of this nature in the construction of an exclusion clause in a liability policy.
Author: Colin Purdy
Firm: Moray & Agnew
Date: December, 2003
Times viewed: 568
Obvious risks are obvious to all concerned
On 12 November 2003, the New South Wales Court of Appeal unanimously overturned a decision of the New South Wales District Court (O’Connor DCJ), finding that the obviousness of the risk negated the existence of a duty of care of the nature alleged against each defendant (Waterways Authority & Anor v Mathews (2003) NSWCA 330).
Author: David Parker
Firm: Moray & Agnew
Date: December, 2003
Times viewed: 768
Court of Appeal Dusts Off Old Workers Compensation Policies for Another Look
Employers sued in respect of gradual onset diseases sustained by employees have traditionally obtained the benefit of workers compensation insurance held at the time the disease was caused.
Author: Stephen Taylor-Jones
Firm: Moray & Agnew
Date: December, 2003
Times viewed: 267
Assaulted Employee Beaten by Causation Hurdle
The plaintiff was assaulted in the course of his employment as a cleaner. He commenced proceedings against his employer, Prestige, for failing to ensure that proper security measures were in place.
Author: James McLean
Firm: Moray & Agnew
Date: December, 2003
Times viewed: 563
Australia–United States free trade talks face final hurdles
With the end-of-year deadline for the Australia–United States free trade agreement (Australia–US FTA) fast approaching, the race is on to finalise negotiations and drafts of the text. The fourth round of negotiations were recently completed in Australia and the fifth round is scheduled for early December in Washington. This article provides a background to, and an update on, the development of the Australia–US FTA.
Author: , Elisha Rose
Firm: Freehills
Date: December, 2003
Times viewed: 379
Settling Victorian disputes early: English tactics avoid the ruck and maul
The encouragement of early dispute resolution has been a focus in various jurisdictions for some time and this article considers, in light of reforms of civil procedure in England (known as the Woolf reforms), whether settlement of disputes could be facilitated in Victoria by the exchange of information and documentation before proceedings are even issued.
Author: Bronwyn Lincoln, Joanna Harris
Firm: Freehills
Date: December, 2003
Times viewed: 771
Joint ownership of copyright by collaborators
For collaborators, a tempting and seemingly easy to live with solution appears to be joint ownership. But is it really all that effective? In this article, we briefly look at some difficulties.
Author: Irene Zeitler, Amalia Stone
Firm: Freehills
Date: December, 2003
Times viewed: 551
Review of the Insurance Contracts Act – report into the operation of section 54
Submissions to the Federal Government's review of the Insurance Contracts Act cited section 54 of the Act as an 'active factor' in the availability and affordability of professional indemnity insurance. This articles considers the recommendations of the Review's preliminary report and its consequences.
Author: John Morgan and Mark Lindfield
Firm: Allens Arthur Robinson
Date: December, 2003
Times viewed: 592
Has spam been canned?
On Tuesday, 2 December, the Federal Government passed national anti-spam legislation in the form of the Spam Bill 2003 and the Spam (Consequential Amendments) Bill 2003. Alyssa Caplan reports on the key features of the new anti-spam legislation and important compliance issues for clients.
Author: Alyssa Caplan
Firm: Allens Arthur Robinson
Date: December, 2003
Times viewed: 450
Councils Beware! Brave New World looms for development appeals
The Chief Judge has announced to the Land and Environment Court Users Group the most radical reforms to the procedure for the preparation and hearing of Class 1 appeals since the Court’s inception. The reforms cover a wide range of matters with serious implications for the defence of Class 1 appeals.
Author: Ross Fox
Firm: Deacons
Date: December, 2003
Times viewed: 414
The deal is done – Victorian employers prepare for the imposition of industry award terms
The Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002 (the Bill) was passed through the House of Representatives on 26 November 2003, and looks set to pass the Senate in coming weeks. This article provides a summary of the impending changes.
Author: Stuart Kollmorgen and Dan Feldman
Firm: Deacons
Date: December, 2003
Times viewed: 321
Are you paying your staff correctly?
The WA Government has announced that it is commencing a new campaign to investigate whether the hospitality industry in Western Australia has improved its past poor record in paying correct award wages. Employers need to ensure that they identify and conform to relevant industrial awards (Awards) to avoid prosecution.
Author: Leanne Nickels and Ben Walker
Firm: Deacons
Date: December, 2003
Times viewed: 312
Major security hole identified in corporate web applications
New research by a leading electronic security firm reveals that over 70% of corporate web applications analysed continue to be vulnerable to a well-known form of attack. The fact that such a high percentage of companies are vulnerable is alarming and raises serious doubts about corporate governance in the affected companies.
Author: Lois Ryan and Leif Gamertsfelder
Firm: Deacons
Date: December, 2003
Times viewed: 429
A cost effective way to protect your brand
On 2 November 2003, the United States officially joined the Madrid Protocol, making it one of 60 current member countries. This article covers the Protocol and demonstrates how it can save you valuable time and money if you are registering trade marks in multiple countries.
Author: Michelle Groves
Firm: Deacons
Date: December, 2003
Times viewed: 272
The Madrid Protocol from the perspective of the Australian filer
Australia has become a member of the Madrid Union by virtue of its accession to the Protocol relating to the Madrid Agreement Concerning the International Registration of Marks (the "Madrid Protocol"). This article is intended to give an overview of the Madrid Protocol from the perspective of the Australian filer.
Firm:
Date: December, 2003
Times viewed:
Privilege in the context of mergers and acquisitions: investment bankers beware
This article considers whether communications between lawyers and investment bankers who act for the same client in a transaction are protected by legal professional privilege.
Author: Stuart McCulloch, Kim Reid
Firm: Allens Arthur Robinson
Date: December, 2003
Times viewed: 605
Federal Government continues workplace reform agenda
The Commonwealth Government has recently proposed further amendments to its workplace relations legislation.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: December, 2003
Times viewed: 680
A limit on unfair contracts at last?
A recent decision by the Supreme Court of New South Wales takes a much narrower view of the unfair contracts jurisdiction than the Industrial Relations Commission of New South Wales. The decision may offer employers some assistance in defending an unfair breach of contract claim.
Author: Andrew Cardell-Rees
Firm: Allens Arthur Robinson
Date: December, 2003
Times viewed: 607
If you go down to the park today ...
A recent case that again demonstrates the limits of pleading public and private safety concerns as a defence to discriminatory treatment.
Author:
Firm: Allens Arthur Robinson
Date: December, 2003
Times viewed: 485
Disability discrimination imbalance
The High Court has endorsed a balanced view to discrimination complaints in accepting that a school is entitled to rely on bad behaviour to exclude a difficult but disabled student (Purvis v State of NSW [2003] HCA 62).
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: December, 2003
Times viewed: 522
Report on Section 54 of the Insurance Contracts Act
The review of the Insurance Contracts Act is a two stage process, the first stage being the report into the operation of section 54 which has now been released. This article provides a summary of the issues, recommendations and implications of the report.
Author: General Insurance News
Firm: Abbott Tout
Date: December, 2003
Times viewed: 548 | | | | | November 2003 | | | |
Multi-sourcing – a better way?
There is a growing trend for consumers of technology services to use multiple suppliers to deliver the organisation's technology requirements. This article discusses some of the issues involved in the 'multi-sourcing' approach and how to avoid the major pitfalls.
Author: John Dieckmann
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 951
Reasonable foreseeability and breach of duty
The High Court recently found that a canola seed importer and distributor, which supplied seed containing weed seeds, was not negligent, as the importer's compliance with the relevant regulatory importation regime was sufficient to discharge its duty of care to canola growers. (Dovuro Pty Ltd v Wilkins)
Author: Emily Gerrard
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 1603
No liability for failure to warn cinema patrons about retractable seats
The High Court recently allowed an appeal by Hoyts against a finding that it was negligent for failing to warn patrons of the risks associated with self-retracting cinema seats (Hoyts Pty Ltd v Burns).
Author: Annette Hughes and Tami Dower
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 607
D-day for alcohol industry
The alcohol industry has until 31 March 2004 to implement recommended changes to its system of alcohol advertising self-regulation, or potentially face regulation by government.
Author: Peter O'Donahoo and Tami Dower
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 594
The complications of taking charge
Can the act of granting a charge breach contractual prohibitions on assignment? This article looks at some recent considerations.
Author: Nick Bilinsky
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 669
The Pecuniary Interest Tribunal
The Pecuniary Interest Tribunal deals with breaches of the Local Government Act relating to the disclosure of interests. This article outlines the jurisdiction and procedure of the Tribunal.
Author: Ian Latham
Firm: Denman Chambers
Date: November, 2003
Times viewed: 436
High Court examination of a non-competition agreement with a supplier who is also a competitor: Visy Paper v ACCC
On 8 October 2003 the High Court upheld1 the Full Federal Court's decision2 that Visy Paper (Visy) contravened the Trade Practices Act 1974 (TPA) when it sought to make an agreement containing a non-competition clause with one of its suppliers of waste paper, Northern Pacific Paper (NPP), who was also a competitor of Visy in the collection of waste paper from third parties.
Author: Peter McDonald and Chris Jose
Firm: Freehills
Date: November, 2003
Times viewed: 670
New ASX Exposure Draft on capital raisings released
The ASX's Exposure Draft titled Capital raising mechanisms in a disclosure-based market – ASX proposals for informed choice was released on 20 October 2003. purpose of the Exposure Draft is to release for public comment proposed changes to Chapter 7 of the Listing Rules. The ASX states that the amendments are designed to 'facilitate flexibility in the structuring of capital raising mechanisms to better accommodate the capital raising needs of a diverse range of ASX listed companies'
Author: Philippa Stone, Philip Hart
Firm: Freehills
Date: November, 2003
Times viewed: 782
ARIA launches world first action against ISP
Following an investigation into alleged music piracy relating to the website www.mp3s4free.net, the Australian Recording Industry Association (ARIA) has launched court proceedings against the registrant of the site (Stephen Cooper) and, in what is believed to be a world first, has named internet service provider (ISP), E-Talk Communications (trading as ComCen Internet Services), as the second respondent.
Author: Natalie Ceola
Firm: Freehills
Date: November, 2003
Times viewed: 503
CLERP (Audit Reform and Corporate Disclosure) Bill 2003: Summary of key proposals
The draft CLERP 9 Bill extends the disclosure of remuneration of group directors and executives required of a listed company (to be called a 'remuneration report'); imposes obligations on a listed company to discuss and have a non-binding vote on its remuneration report at the company's annual general meeting; and increases the obligation on a listed company to obtain its members' approval before giving retirement benefits to directors and managerial officers.
Author: Priscilla Bryans
Firm: Freehills
Date: November, 2003
Times viewed: 362
Workers Compensation Recoveries - s151Z(1) revisited
The New South Wales Court of Appeal recently revisited some general principles applicable to recovery actions by employers against negligent third parties under s.151Z(1)(d) of the Workers Compensation Act 1987 (NSW) and rather conveniently highlighted some basic misconceptions about the application of s.151Z(1).
Author: Stephen Harris
Firm: Moray & Agnew
Date: November, 2003
Times viewed: 499
What’s prejudice got to do with it?
A recent High Court decision has determined the relevance of prejudice to an insurer from a late claim. In Russo v Aiello [2003] HCA 53, the High Court upheld the New South Wales District Court’s dismissal of the appellant’s statement of claim pursuant to section 43A(7) of the Motor Accidents Act, 1988 (NSW) (MAA).
Author: Charlie Williams
Firm: Moray & Agnew
Date: November, 2003
Times viewed: 417
Latest changes to the Sex Discrimination Act
Recent legislation passed through Federal Parliament has important implications for employers in relation to discrimination on the grounds of pregnancy.
Author: Damian Sloan and Daniel Miller
Firm: Ebsworth & Ebsworth
Date: November, 2003
Times viewed: 612
Redundancy obligations of employers and employees
A recent decision of the NSW Industrial Relations Commission provides valuable guidance relating to the steps that employers and employees need to take in the event of redundancy.
Author: Damian Sloan and Daniel Miller
Firm: Ebsworth & Ebsworth
Date: November, 2003
Times viewed: 1216
Government Response to HIH Royal Commission Recommendations
On 12 September 2003, the Commonwealth Government released its final response to the findings of the HIH Royal Commission. Some of the 61 policy recommendations fell within the responsibility of various independent governmental bodies such as APRA, the ASX and the Australian Accounting Standards Board and have been referred to them for consideration and response.
Author: Julia Best
Firm: Ebsworth & Ebsworth
Date: November, 2003
Times viewed: 560
Company Reform Momentum Continues with CLERP 9
On 8 October 2003 Treasurer Peter Costello released the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill and accompanying commentary for public consultation – CLERP 9. Comments must be lodged by 10 November.
Author: Andrew Goldstein
Firm: Ebsworth & Ebsworth
Date: November, 2003
Times viewed: 426
Are you liable? Sexual harassment in the workplace
Two recent cases in New South Wales and Queensland have highlighted that employers may be vicariously liable for sexual harassment of their employees if they do not take reasonable steps to prevent such behaviour in the workplace.
Author: Glenn Fredericks, Geraldine Dann and Lauren Sharp
Firm: Freehills
Date: November, 2003
Times viewed: 934
When can an employer terminate an expired certified agreement?
In a recent decision of the Australian Industrial Relations Commission (AIRC), Commissioner Whelan has found that it would be contrary to the public interest to terminate an expired agreement under section 170MH of the Workplace Relations Act 1996 (Cth) (WR Act) where such termination would result in uncertainty about the workers' contingent entitlements.
Author:
Firm: Freehills
Date: November, 2003
Times viewed: 442
Pursuing profit productivity and philanthropy: The legal obligations facing corporate Australia
This paper considers the circumstances in which corporations are entitled to give to charity. As artificial legal persons, companies must conduct business through their officeholders. Officeholders must consider two issues before a company can proceed with any conduct. First, the corporation must have the power to engage in the activity and second, any exercise of that power must be proper in light of any internal or external limitations. These same considerations apply in the context of corporate giving.
Author: Quentin Digby, Leah Watterson
Firm: Freehills
Date: November, 2003
Times viewed: 477
The pendulum swings … back to enforcement
During the past four months, the ATO has been sending the unmistakeable signal that it is back in the enforcement business. The message has been clear and simple—the ATO is moving resources out of the taxpayer education and support functions that were put in place during the implementation of the business tax reforms, and allocating those resources to investigation, enforcement and punishment.
Author: Anthony Watson
Firm: Greenwoods & Freehills Pty Ltd
Date: November, 2003
Times viewed: 413
Keeping track of domain names
When is your domain name (or domain names) up for renewal? Who in your company is in charge of your domain name renewals? Is the person named as the contact with the domain name registrar still with your company or have they left?
Author: Mimi Curran
Firm: Phillips Fox
Date: November, 2003
Times viewed: 415
Government and IT
"Procure-IT" is a set of standard terms and conditions developed in 2003 for Information Technology contracting in NSW government and which replaces GITC2 (the current contractual framework).
Author: Mimi Curran
Firm: Phillips Fox
Date: November, 2003
Times viewed: 492
The music industry fights back!
The music industry in Australia appears to have started a new campaign against illegal file trading activities in Australia by launching a civil action against an Internet service provider (Comm-Cen) and a web site operator (Stephen Cooper).
Author: Mimi Curran
Firm: Phillips Fox
Date: November, 2003
Times viewed: 439
Getting to grips with spam – the Australian government proposes new anti-spam legislation
In order to deal with the growing problem of spam, the Australian Government has introduced the Spam Bill 2003 and the Spam (Consequential Amendments) Bill 2003. This legislation aims to eliminate all emails that are sent without the consent of the recipient, other than those from government bodies, political parties, religious organisations, charities and, subject to certain conditions, from educational institutions.
Author: Mimi Curran
Firm: Phillips Fox
Date: November, 2003
Times viewed: 632
Ownership of Copyright Incorporated into Commissioned Computer Programme
A recent case in the New Zealand Court of Appeal provides a salient reminder of the importance of written agreements that clearly state the rights and obligations of each party involved in a transaction.
Author: Ruth Sullman
Firm: Phillips Fox
Date: November, 2003
Times viewed: 423
Website Users and Developers: Beware!
While the internet is an efficient public relations tool, vigilance is required and people involved in creating commercial websites must ensure that the content is not false, misleading, or otherwise inaccurate. The Federal Court of Australia recently found in favour of the ACCC in an action against Richard Chen, the operator of a website that imitated the Sydney Opera House official website.
Author: Jeremy Szwider
Firm: Phillips Fox
Date: November, 2003
Times viewed: 586
AACo's application to injunct the Stanbroke sale
The sale of Stanbroke Pastoral Company in September of this year and the subsequent application by Australian Agricultural Co to injunct the sale generated wide interest in the market. This article discusses the decision of the Federal Court not to intervene in the sale process.
Author: Melissa Atkins
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 612
TVG bid for PowerTel – Panel decisions
The contest for control of listed telecommunications company PowerTel has resulted in important guidance from the Takeovers Panel in three decisions on the requirements for shareholder-approved transactions, disclosure of prospective financial information, and the approach to be taken to collateral benefits in takeover bids.
Author: Richard Kriedemann
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 551
Review of the Insurance Contracts Act 1984
In September, the Federal Government announced that it would be undertaking a comprehensive review of the Insurance Contracts Act 1984. This article looks at what the government is attempting to achieve with the review.
Author: Luisa Uriarte
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 814
'PD' v Harvey: Doctor – patient confidentiality, privacy and duty of care to third parties
When may a medical practitioner disclose information about HIV-positive patients to persons at risk of the disease? Compliance with privacy laws may reduce the potential for ethical conflict between a doctor's duty of confidentiality to a patient and the risk that a third party may suffer harm. A recent case highlights the importance of appropriately handling sensitive personal information, providing adequate pre- and post-test counselling and following up of patients after initial consultation.
Author: Melissa Foong
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 1987
Good news: A more relaxed search disclosure duty
The stringent requirements of the previous search disclosure duty have placed considerable administrative burdens on both patent attorneys and their clientele. We are therefore pleased to advise that a less stringent disclosure duty has been recently implemented.
Author: Phillip Pluck and Peter Heathcote
Firm: Shelston IP
Date: November, 2003
Times viewed: 351
New Design Registration System in Australia
In response to long-standing concern and criticism, Australia will soon replace its existing system for the registration of industrial designs.
Author: Russell Davies
Firm: Shelston IP
Date: November, 2003
Times viewed: 258
Representations during negotiations
A recent Federal Court decision confirms that rash or vague promises made during employment negotiations can fall foul of the Trade Practices Act 1974. Kirk Lovric outlines some of the legal risks that arise from employment negotiations.
Author: Kirk Lovric
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 500
Part-time work after maternity leave
A recent decision of the Federal Magistrates Court1 adds to the growing body of case law that requires employers to reasonably accommodate requests for part-time work on return from parental leave. Rosemary Bryant-Smith reports.
Author: Rosemary Bryant-Smith
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 535
Not such a super result for casuals
The High Court has weighed into the debate over compulsory superannuation contributions for casuals, deciding that only hours remunerated at the base rate of pay should be taken into account. Jamie Wells reports.
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 584
CLERP 9 and continuous disclosure reforms
The Federal Government's proposal to empower ASIC to issue 'on-the-spot' fines raises practical issues for listed entities. Greg Bosmans and James McConvill also report that the further CLERP 9 proposal to extend disclosure liability for individuals will create uncertainty for officers and advisers.
Author: Greg Bosmans and James McConvill
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 570
The Cole Royal Commission: More security of payment
Leighton O'Brien analyses the recommendations of the Cole Royal Commission Report relating to the building and construction industry, particularly the issue of security of payment.
Author: Leighton O'Brien
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 616
Energy reform and greenhouse gas emissions
One of the recommendations of the Parer Committee was the replacement of the existing disparate Commonwealth and State greenhouse abatement schemes with a national emissions trading scheme. Jim Parker and Grant Anderson look at these schemes and the Parer Committee recommendations as well as the Kyoto Protocol and the emerging prospect of climate change litigation.
Author: Jim Parker and Grant Anderson
Firm: Allens Arthur Robinson
Date: November, 2003
Times viewed: 546 | | | | | October 2003 | | | |
Courts confirm extinguishment of native title by crown actions
When assessing the impact of native title on a proposed new project, an important first step will always be an assessment of whether or not native title has been extinguished over the area in question. Ben Zillmann looks at two recent Federal Court decisions that help give an insight into this issue.
Author: Ben Zillmann
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 542
Investors' Revenge
Loans that allow mums and dads to tap into their home equity have become a popular product over recent years.
Author: Justin Bates
Firm: Gadens Lawyers
Date: October, 2003
Times viewed: 441
Capital Raising: Proposed changes to ASX Listing Rules
The ASX has proposed a number of significant changes to the ASX Listing Rules, which govern the admission of entities to the official list, quotation of securities, suspension of securities from quotation and removal of entities from the official list. The proposed changes are intended to offer wider choices in capital raising and increased flexibility in the structuring of capital raising mechanisms to cater for the needs of an increasingly diverse range of ASX listed companies.
Firm: Phillips Fox
Date: October, 2003
Times viewed: 719
Another nail in the coffin for greenmailers
The practice of “greenmailing” – minority shareholders exploiting their position to extract a greater price for their shares from the majority shareholder – is becoming more difficult, as the pendulum of sentiment swings to favour the rights of the majority.
Author: Tim Woodforde
Firm: Deacons
Date: October, 2003
Times viewed: 487
Time to clean up your act
WorkCover New South Wales has launched two new publications providing guidance to the cleaning industry regarding occupational health and safety and injury management practice.
Author: Michael Tooma
Firm: Deacons
Date: October, 2003
Times viewed: 352
High Court sends new warning on supply agreements
Exclusive supply agreements do not normally contravene the Trade Practices Act. However, on 8 October 2003, the High Court of Australia confirmed that arrangements between competitors restricting their ability to supply or acquire goods will contravene the Act, even if the conduct is tied to otherwise lawful exclusive dealing arrangements.
Author: Michael Wilton and Yi Foong Ng
Firm: Deacons
Date: October, 2003
Times viewed: 474
More from the Court of Appeal on the perils of expert opinion
The Court of Appeal recently made some illuminating comments on the treatment of expert evidence. The judgment is also of interest as a demonstration of how the High Court’s recent decision in Fox v Percy will serve to provide greater freedom to appellate Courts to overturn judgments based on questionable findings of fact.
Author: Caileen Cachia
Firm: Moray & Agnew
Date: October, 2003
Times viewed: 576
Scope of Landlord’s Duty Revisited
On 3 July 2003 the NSW Court of Appeal revisited the principles elucidated in Jones v Bartlett regarding the scope of a landlord’s duty in delivering judgment in favour of a defendant in Ahluwalia & Ors v Robinson [2003]NSWCA 175.
Author: Bianca Samardzic
Firm: Moray & Agnew
Date: October, 2003
Times viewed: 405
High Court revisits Duty of Care in relation to Nervous Shock
On 18 June 2003 the High Court delivered a judgment in three appeals which were heard together arising out of claims for damages for negligently inflicted psychiatric injury brought by the children of a man who was killed in an accident at work.
Author: Jodi Norton
Firm: Moray & Agnew
Date: October, 2003
Times viewed: 858
Damages for wrongful birth ?
In a landmark and controversial decision the High Court has recently decided that parents can sue for the cost of raising and maintaining a child born as a result of negligence of a doctor in relation to a sterilisation procedure.
Author: Tamara Vella
Firm: Moray & Agnew
Date: October, 2003
Times viewed: 1386
A Full and Satisfactory Explanation
On 30 September 2003, the High Court handed down its decision in Russo v Aiello involving an interpretation of ss.40, 40(2), 43, & 43A of the Motor Accidents Act 1988.
Author: Darren King
Firm: Abbott Tout
Date: October, 2003
Times viewed: 173
Transfer of Matters from Court to Commission
As part of the Government's package of workers' compensation reforms, the Compensation Court of NSW will cease to operate as of 31 December 2003.
Author: Shane Koelmeyer
Firm: Abbott Tout
Date: October, 2003
Times viewed: 201
File-sharing groups unite and agree on code of conduct as record industry continues its assault
At roughly the same time that Magistrate John Andrews held that Australian university students Tommy Le, Peter Tran and Charles Ng were in breach of copyright laws, P2P United, the industry trade group organised by some of the most popular commercial file-sharing software developer companies, launched its website and Code of Conduct.
Author: Matthew Handley
Firm: Abbott Tout
Date: October, 2003
Times viewed: 450
Excuse me
If you want to continue to use your ex-partner's name for business reasons, make it very clear that any association between you and your ex-partner has ceased.
Author: Amalia Stone and Irene Zeitler
Firm: Freehills
Date: October, 2003
Times viewed: 427
Enlargement of the European Union: Implications for trade mark owners
Existing European Community Trade Mark (CTM) will automatically be extended to cover the 10 new member states of the EU from 1 May 2004. Filing any new CTM applications before 1 November 2003 may be advantageous.
Author: Celia Cumming
Firm: Freehills
Date: October, 2003
Times viewed: 320
Copyright term extension
A recent report has recommended extending the term of copyright protection in Australia to align it with the longer terms now provided in the US and the EU.
Author: Hilary Davis and Kristin Stammer
Firm: Freehills
Date: October, 2003
Times viewed: 318
Interlocutory Injunctions for Patent Infringement: The Omeprazole Saga Continues
This recent case illustrates the difficulties a patentee faces in convincing a court to grant an interlocutory injunction pending the final hearing.
Author: Helen Macpherson and Kathryn Everett
Firm: Freehills
Date: October, 2003
Times viewed: 629
Short-term 'Casuals' Win the Right to Make an Unfair Dismissal Claim
A Full Bench of the Australian Industrial Relations Commission (AIRC) has departed from previous authority and held that an employee (in this case a waitress) performing regular and systematic work but with less than a year of service was entitled to make an unfair dismissal claim. However, the recent passage of the Workplace Relations (Fair Termination) Bill through both Houses of Parliament may mean this is only a fleeting opportunity for casuals.
Author: Paul Burns
Firm: Freehills
Date: October, 2003
Times viewed: 460
Where has your computer been today?—Users (particularly students) beware
Digital copyright is being enforced rigorously in Australia, particularly in the area of peer-to-peer file swapping services on the internet. The difficulty for the industry now is to develop and maintain a viable fee-based service.
Author: Sue Gilchrist and Sarah Strasser
Firm: Freehills
Date: October, 2003
Times viewed: 767
A motor accident is a motor accident - however described
On 21 August 2003, the NSW Court of Appeal (comprising Meagher, Hodgson and McColl JJA) unanimously allowed an appeal from an interlocutory judgment of Certoma ADCJ. The Court ordered that a Statement of Claim be dismissed for being issued in contravention of s.70 and s.108 of the Motor Accidents Compensation Act 1999 (“the Act”).
Author: Robert McKenna
Firm: Moray & Agnew
Date: October, 2003
Times viewed: 524
New twist in a stair case
The NSW Court of Appeal has confirmed a Trial Judge’s finding against Defendant landlords for their failure to install a mid rail to prevent persons from slipping under the handrail of a stair, falling to the concrete below.
Author: Bianca Samardzic
Firm: Moray & Agnew
Date: October, 2003
Times viewed: 560
Roller skating at your own risk
The plaintiff fell and broke her right wrist whilst roller skating at the defendant’s roller skating rink. Although the plaintiff was an active sportswoman, and had previous experience of ice skating, she had not previously tried roller skating.
Author: Glen O’Neil
Firm: Moray & Agnew
Date: October, 2003
Times viewed: 479
Top Marks for IPRIA Conference
Australian and international experts in trade marks law assembled recently at The University of Melbourne Law School to discuss the future of trade marks at a one-day conference hosted by the Intellectual Property Research Institute of Australia (IPRIA). With over 140 attendees from the legal and trade marks professions, industry, government and academia, and presentation topics ranging from the marketing aspects of branding to the necessity of trade mark protection of national icons, the conference debate was lively and varied.
Author: Emma Caine
Firm:
Date: October, 2003
Times viewed: 0
New hurdle to terminating certified agreements
The Australian Industrial Relations Commission has refused to terminate an expired certified agreement and, in doing so, expanded the applicable test. Employers may now need to consider the impact of termination on the entitlements of employees.1 Jonathan Morley reports.
Author: Jonathan Morley
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 435
Reporting Requirements for Workplace Injuries under the Workplace Injury Management & Workers Compensation Act 1998 and the Occupational Health & Safety Act 2000
Recent amendments to the Workplace Injury Management & Workers Compensation Act 1998 (WIM Act) and the Occupational Health & Safety Act 2000 (OHS Act) which commenced on 1 September 2003 may have significant impacts on the reporting of workplace injuries to WorkCover.
Author: Rachael Sutton and Troy Plummer
Firm: Moray & Agnew
Date: October, 2003
Times viewed: 567
Any excuse will do? Notices of Claim given out of time under the Personal Injuries Proceedings Act 2002 (Qld)
A Notice of Claim must be given under the Personal Injuries Proceedings Act 2002 (“PIPA”) to the alleged tortfeasor within the earlier of:
9 months after the day of the incident; or
1 month after the claimant first consults a lawyer.
Author: Jason Cooksey
Firm: Moray & Agnew
Date: October, 2003
Times viewed: 626
Late claims under s151D of the Workers Compensation Act (NSW) 1987
The NSW Court of Appeal was recently called upon to consider the factors relevant to an application for an extension of time to commence proceedings for damages for personal injury pursuant to Section 151D of the Workers Compensation Act 1987 (NSW) (“the Act”).
Author: Martin Thorne
Firm: Moray & Agnew
Date: October, 2003
Times viewed: 283
Water Wheel serves as a timely reminder
John Cooper and Krista Bowie review the civil penalties imposed on directors in the Water Wheel case, which clearly illustrates the importance of directors upholding their duties and the potential personal liabilities for not doing so.
Author: John Cooper and Krista Bowie
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 540
Visy Paper v ACCC
The recent High Court decision in the Visy case highlights the potential trade practices risks associated with actual or proposed purchase or supply arrangements between companies that are also competitors or potential competitors. Melissa Randall and Dana Wintermantel examine the High Court's decision.
Author: Melissa Randall and Dana Wintermantel
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 722
Expert Determination v Arbitration
The recent Victorian Supreme Court decision in Age Old Builders Pty Limited v Swintons Pty Limited has overruled a VCAT decision that an expert determination was an arbitration and void by reason of breaching the Domestic Building Contracts Act. Leighton O'Brien and Lisa Ziegert review the case.
Author: Leighton O'Brien and Lisa Ziegert
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 860
The essential ingredient: add a pinch of integrity to the mix
Are executives and directors subject to a higher standard of personal behaviour than the balance of society?
Author: Lyn Nicholson
Firm: Ebsworth & Ebsworth
Date: October, 2003
Times viewed: 410
When is a step-child a step-child?
Consider Jane, step-daughter of the recently deceased David. In the claimstaking process, Jane asserts she is entitled to 100% of David’s death benefit from X Superannuation Fund as a “dependent child” of the deceased. Following satisfaction of Jane’s identity as David’s step-daughter and other relevant matters, the trustee accepts this and pays the benefit to Jane.
Author: Scott Charaneka and Emily Nighjoy-Wong
Firm: Ebsworth & Ebsworth
Date: October, 2003
Times viewed: 662
The Super guarantee paper trail
A crucial factor for employers wishing to successfully defend any challenge to the basis on which it makes superannuation contributions will be to have in place appropriate documentary records evidencing satisfaction of its superannuation guarantee obligations (extending over a period commencing from before 21 August 1991 where relevant).
Author: Scott Charaneka and Emily Nighjoy-Wong
Firm: Ebsworth & Ebsworth
Date: October, 2003
Times viewed: 605
Clawing back directors’ bonuses
Shortly before its collapse, One.Tel directors Jodee Rich and Brad Keeling were paid $7 million each in performance bonuses. In late March this year, the Corporations Amendment (Repayment of Directors’ Bonuses) Bill was passed by the Senate, paving the way for company liquidators to reclaim unreasonable payments made to directors prior to liquidation.
Author: Joshua Theunissen
Firm: Ebsworth & Ebsworth
Date: October, 2003
Times viewed: 572
Responsible Officers and liability: consider the implications
If you are a holder of an AFSL, you are required to nominate one or more Responsible Officers who will supervise the financial services that your business provides. We believe there is a distinct risk that persons in positions of middle management (such as those who might ordinarily fill the position of Responsible Officer) may be held liable for corporate governance breaches.
Author: Andrew Goldstein
Firm: Ebsworth & Ebsworth
Date: October, 2003
Times viewed: 739
Can short-term casuals access unfair dismissals in the Australian Industrial Relations Commission?
On 25 September 2003 the Full Bench of the Australian Industrial Relations Commission handed down a decision ruling that an employee classified and paid as a casual, with less than 12 months’ service, but engaged in regular and systematic work, had jurisdiction to make an unfair dismissal claim (Cetin v Ripon Pty Ltd t/as Parkview Hotel [PR938639]) (Cetin).
Author: Rick Catanzariti and Tamara Kingsley
Firm: Phillips Fox
Date: October, 2003
Times viewed: 522
Trilingual Regime of International Registration System of Marks: "Trade Marks, Marques and Marcas"
Following the Thirty-Fifth session of the Assembly of the Madrid Union ("the Assembly"), taking place from 22 September to 1 October 2003, trade mark filers seeking protection in multiple countries through the Madrid Protocol will be able to file their international applications in Spanish as of 1 April 2004. Currently, international trade mark applications under the Madrid System are required to be filed in English or French.
Author: Philippe Rodhain
Firm: F B Rice & Co
Date: October, 2003
Times viewed: 311
Minister moves to consolidate discretion powers
Recently gazetted changes to the Immigration Minister’s power of discretion may significantly change Australia’s protection visa system.
Author: Anne O'Donoghue, Timothy McDonald
Firm: Immigration Solutions
Date: October, 2003
Times viewed: 481
MARA Misses the Point
MARA's written responses to stories about the migration advice industry on the ABC's 7:30 Report and in The Australian focus on minor factual details and ignore the much more significant issues presented by the two pieces.
Author: Anne O'Donoghue
Firm: Immigration Solutions
Date: October, 2003
Times viewed: 493
Immigration: the year in review
It has been an eventful year for Australia’s immigration system, marked by significant court decisions, changes to several migration programs, controversy surrounding the Immigration Minister and continuing concerns over professional standards within the migration advice industry.
Author: Anne O'Donoghue
Firm: Immigration Solutions
Date: October, 2003
Times viewed: 576
When is a policy one of marine insurance?
The answer to this question is clearly not an easy one, as the High Court of Australia were divided 3:2 on the issue in the case of Gibbs v Mercantile Mutual Insurance (Australia) Limited [2003] HCA 39. A narrow majority decided in favour of the insurer, that a policy which provided third party liability cover for a paraflying operation was indeed a marine policy.
Author: Andrew Tulloch
Firm: Phillips Fox
Date: October, 2003
Times viewed: 492
An emerging right of privacy
Australian Courts have tended to shy away from recognising invasion of privacy as a new category of civil claim. But recently the Queensland District Court took the novel step of allowing damages for a breach of privacy in the decision of Grosse v Purvis [2003] QDC 151.
Author: Matthew Pokarier and Kate Bellamy
Firm: Phillips Fox
Date: October, 2003
Times viewed: 773
The latest civil liability reforms
A Ministerial summit held on 6th August continued the dialogue between Australian jurisdictions on civil liability reform. All states and territories are inching closer to fairly consistent core liability reforms recommended in last year’s Ipp Report and there has been a renewed focus on reforms directed at improving the professional indemnity market.
Author: Russell Adams
Firm: Phillips Fox
Date: October, 2003
Times viewed: 849
D&O policies and advancement of defence costs
Recent corporate collapses and an increasingly litigious regulator have intensified the focus on the conduct of directors and officers. This has highlighted the need for directors and officers to fund the protection of their rights in defence of claims.
Author: Timothy Price and Andrew Toland
Firm: Phillips Fox
Date: October, 2003
Times viewed: 437
Food for thought - Franchisor/Franchisee liability
Recent case law has confirmed that franchisors have duties under Victorian Occupational Health and Safety (OHS) legislation to their franchisees and their employees. A current Victorian Government funded survey, covering exploitation and unsafe work practices in the fast food industry may pinpoint franchisors not complying with OHS and Industrial Relations legislation. Now is the time to review your policies and procedures.
Author: Greg Hipwell and Sarah Jones
Firm: Deacons
Date: October, 2003
Times viewed: 608
Highlights of CLERP 9
Draft legislation to implement stage 9 of the Government’s Corporate Law Economic Reform Program was released for public consultation on Wednesday, 8 October 2003. This article provides a brief introduction to the key areas of proposed reform under the draft legislation.
Author: Tim Woodforde
Firm: Deacons
Date: October, 2003
Times viewed: 880
A lesson for liquidators
The NSW Industrial Relations Commission (Commission) recently held that a company in liquidation was liable for employee entitlements, despite the employees being nominally employed by a separate company. This landmark case highlights the need for liquidators to be aware of the potential for employee contracts to be varied by the Commission.
Author: Damien Butler
Firm: Deacons
Date: October, 2003
Times viewed: 498
From junk food to junk lawsuits
Food companies and fast food restaurants in America are preparing themselves to be the next targets of America's obsession with class action litigation. Australian-based companies would be prudent to take note of these developments, report Peter O'Donahoo and Mark Grasso.
Author: Peter O'Donahoo and Mark Grasso
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 684
The ongoing cost of restructuring
Controversy continues to surround restructuring as a means of reducing union influence in the workplace. Jamie Wells reviews a Federal Court decision involving a dispute about freedom of association.
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 543
CLERP 9 and executive remuneration
The recently released draft CLERP 9 Bill sets out the Government's proposed legislative response on audit reform and corporate disclosure, as well as incorporating recommendations made by Justice Owen in the HIH Royal Commission Report. As Richard Alcock and Carl Bicego explain, the amendments will impact on the design of executive remuneration policies and their disclosure to shareholders.
Author: Richard Alcock and Carl Bicego
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 560
Business Migration
On 1 March 2003, two-stage arrangements were introduced in Australia affecting the requirements for business skilled migrants.
Firm: Oakfair Lawyers
Date: October, 2003
Times viewed: 396
General Skilled Migration
The general skilled migration program is an Australian Government initiative, which is aimed at young, highly skilled people who can quickly make a contribution to the Australian economy. The program, by attracting highly skilled migrants, helps to overcome skill shortages in Australia. One of the major benefits of the skilled migration program is that some classes of visa do not require applicants to have an employer or relative sponsor them.
Firm: Oakfair Lawyers
Date: October, 2003
Times viewed: 480
Family Migration (Types of visas and who qualifies)
Once a migrant has settled and been living here for a while, it is quite natural for them to consider helping family members to join them in Australia. The main areas covered under Australia’s family migration program are: Spouse (or Partner), Parents, Child or Other Family.
Firm: Oakfair Lawyers
Date: October, 2003
Times viewed: 447
Studying in Australia
Australia is well recognised internationally in providing high quality education at all levels. It is a popular destination for study, particularly amongst overseas students from Asia probably because of its proximity to Asia. Being close to home is important for the many that choose to travel here for study. In addition, Australia’s currency is relatively inexpensive, when compared to the United States of America or the United Kingdom (both traditional destinations for study). This makes an education in Australia especially affordable.
Firm: Oakfair Lawyers
Date: October, 2003
Times viewed: 456
Wills / deceased estates disputes & litigation
In a recent case the Supreme Court ordered a son who had power of attorney for his elderly father to reconvey the family home and money which the son had transferred to himself to the exclusion of his 3 brothers and sisters. All children were named in the will of the deceased.
Firm: Heckenberg Associates Solicitors
Date: October, 2003
Times viewed: 1169
Divorce
To obtain a divorce, one or both of the parties to a marriage must file an Application for Divorce in the Family Court or Federal Magistrate's Court. The filing fee will be less if the application is filed in the Federal Magistrate’s Court.
Firm: Heckenberg Associates Solicitors
Date: October, 2003
Times viewed: 1371
Property Settlements
Property Settlement is the legal phrase for the end result, in monetary and proprietary terms, of your divorce or separation. Participants in this process are often reported as being overwhelmed by technicalities, or outraged by the outcome. But with the help of Heckenberg & Associates and the proper preparation you can avoid undue legal problems.
Firm: Heckenberg Associates Solicitors
Date: October, 2003
Times viewed: 1079
Intellectual Property
Intellectual property is the area of law that includes ideas such as copyright, trademark and patents. It provides protection for a range of specialised rights. The modern day system is the product of a gradual growth of different rights and values. This process continues today and together with the onset of the information technology (IT) age, the law of intellectual property is of increasing relevance. Intellectual property law is the basis of many rights relating to IT use and the major feature of this area has been the application of trademarks.
Firm: Heckenberg Associates Solicitors
Date: October, 2003
Times viewed: 508
Disputing Wills
There are three main avenues to challenge or dispute a will. But first you need some basic points about wills.
Firm: Heckenberg Associates Solicitors
Date: October, 2003
Times viewed: 920
Commercial Contract Disputes: Getting the Right Advice
Commercial contracts are the basis of doing business. Much of the law covering the sale of goods, agency, negotiable instruments, insurance, partnerships and franchise licenses is based in the law of contract. Those engaged in doing business in Australia are making agreements and contracts with others on a daily basis. But what happens when those you make a contract with don’t do what they agreed? That is when the right kind of legal advice and prompt action is crucial. This article will seek to give an overview of what steps you and your solicitor can take when you find yourself with a non-performing contractual partner.
Firm: Heckenberg Associates Solicitors
Date: October, 2003
Times viewed: 989
Franchising – More to it than McDonalds and LJ Hooker
Franchising is a familiar concept in the business world – we usually think of it terms of Mr Minit, McDonalds or LJ Hooker. But although the general concept is familiar, the legal relationship between those involved and the obligations that follow can be easily misunderstood.
Firm: Lopich Lawyers
Date: October, 2003
Times viewed: 667
Directors' Duties
Over the last two decades Australia has witnessed a number of major corporate failures. Cast your mind back to the collapses of Quintex, Pyramid, the Bank of South Australia, and Bond Corporation; and more recently to HIH, Ansett, and OneTel. ‘Debacle’ is an apt description of each of these failures.
Firm: Lopich Lawyers
Date: October, 2003
Times viewed: 769
'Chi Ming' - well-known trademarks in the PRC
June 2003 has seen the implementation of three new trademark regulations by China's State Administration for Industry and Commerce ("SAIC") designed to meet China's WTO and TRIPS obligations . Of most interest to foreign enterprises dealing with China has been the introduction of the Recognition and Protection of Well-known Trademarks ("the New Regulations") which repeal the 1996 Recognition and Administration of Well-Known Trademarks Tentative Provisions.
Author: David Allison
Firm: Clayton Utz
Date: October, 2003
Times viewed: 328
Powers and duties of the legal personal representative
It is the purpose of this article to examine the powers and duties of the legal personal representative in connection with an area of the law known as Wills, Probate, Estate Planning & Administration. The following is a general summary only. For specific legal advice tailored to your circumstances please contact a legal practitioner.
Firm: Lopich Lawyers
Date: October, 2003
Times viewed: 995
Development under the Environmental Planning and Assessment Act 1979 (NSW)
Prior to any development taking place in New South Wales a formal assessment needs to be made of the proposed work to ensure it complies with relevant planning controls and, according to its nature and scale, confirm that it is environmentally and socially sustainable.
Firm: Lopich Lawyers
Date: October, 2003
Times viewed: 1368
Liability for Environmental Incidents – Are You In Control?
Whilst there are numerous pieces of legislation governing environmental liability, the concept of “control” is a common thread running through them.
Author: Andrew Petersen and Irene Wales
Firm: PricewaterhouseCoopers Legal
Date: October, 2003
Times viewed: 639
“Industry Practice” no shield against OH & S prosecutions
Recent decisions in the Industrial Relations Commission make it clear that employers of workers who are injured on construction sites cannot expect leniency where the work practice complained of was based on “industry practice”. Similarly, it is no excuse to say that there is no practicable method of providing adequate protection in case such an accident should occur again in the future. Further, the Commission has shown that it will take the pro-active approach of strongly urging that Workcover convene discussions within the building industry where particular solutions must be found to widely-occurring safety problems. Contractors should take heed and ensure their current OH&S strategies are genuinely pro-active.
Author: Irene Wales and John Murray
Firm: PricewaterhouseCoopers Legal
Date: October, 2003
Times viewed: 681
Defect In a Vehicle Only a Remote Cause of an Injury
The Plaintiff was employed by GSF Australia. On 12 February 1998, he was directed by his employer to assist another coworker to manually unload containers weighing 1.3 tonnes from the employer’s truck which had attached to it a trailer for transporting the containers. The trailer had a motorised Tbar which effectively performed the task the men were asked to undertake. However, it had broken down on the previous day and was therefore inoperable. Not surprisingly, the Plaintiff injured his back when attempting to unload one of the containers.
Author: Annabelle Duffy and Lesley Moon
Firm: PricewaterhouseCoopers Legal
Date: October, 2003
Times viewed: 513
Look before you leap: pre-purchase building inspections
For the majority, the most expensive purchase we make in a lifetime is our home. A pre-purchase building inspection assists the individual to make a balanced judgment on whether to proceed with the purchase or not. A pre-purchase building Inspection and report is a useful tool obtained prior to the final purchase of a building in that it can access the structural stability and integrity of your proposed purchase.
Firm: Lopich Lawyers
Date: October, 2003
Times viewed: 789
Foreign investment
Foreign investment has always been a topic of public debate in Australia. It seems that not a month goes by without a new controversy regarding, for example, the foreign ownership of media. But, with only a few exceptions, foreign investment is regulated through controls rather than restrictions. The Foreign Investment Review Board (FIRB) overseas proposals for foreign investment, while final responsibility for approval or refusal rests with the Treasurer or Assistant Treasurer. Please note, any person considering an investment in Australia is advised to obtain legal advice before any action to ensure all requirements are met.
Firm: Lopich Lawyers
Date: October, 2003
Times viewed: 664
Migrating to Australia for Business
Australia is a strong destination for international businesses. Ideally located in the Asia-Pacific region, Australia offers a highly educated workforce, with stable business-friendly national and regional governments. With its high standard of living and robust economy, Australia is an excellent growing country in which to do business. Australia sees the benefits in overseas residents migrating to Australia both permanently and temporarily to contribute to the Australian economy.
Firm: Faram Ritchie Davies
Date: October, 2003
Times viewed: 407
Taking Your Skills to Australia
Australia has been the destination for migrants looking for a new way of life for many decades. This is not surprising considering that Australians enjoy one of the highest standards of living in the world. Australia has shown that it is capable of providing stable economy for its residents and citizens. Even in the face of a regional monetary crisis the Australian economy was resilient.
Firm: Faram Ritchie Davies
Date: October, 2003
Times viewed: 418
Partner Migration to Australia
Migration into Australia is dependent upon obtaining a visa. There are many different types of visas available. For example ‘Family Stream Migration’ is the relevant category that enables the reunion of spouses, children and dependents. Family migration is a particularly important area – in the period between 2002-2003 43,200 applications for family related visas were lodged counting for nearly half of the overall number.
Firm: Faram Ritchie Davies
Date: October, 2003
Times viewed: 982
"Off the plan" property purchase - things to consider
Purchasing property “off the plan”, that is, before construction has commenced, has become a popular choice for many Australians.
Firm: Balben Property Transfers
Date: October, 2003
Times viewed: 710
Selling a property: what steps are involved?
Vendors seeking the advice of a conveyancer should consider a number of issues prior to sale. Clear instructions should be provided at all material stages. Even where a point may seem insignificant, a phone call to the conveyancer can clarify misunderstandings and save you time and money in the long run. Additionally, vendors should consider whether any matters relating to subdivision have been attended to or whether there are plans awaiting approval for the property.
Firm: Balben Property Transfers
Date: October, 2003
Times viewed: 1092
Buying a property: What steps are involved?
After you have done all your searching and think you have found a property, the first thing to do is examine the contract and other relevant documents. The principle of buyer beware applies to land contracts. This means that particular caution should be adopted by purchasers and that expert advice should be obtained regarding the range of certificates that may be relevant to a particular property.
Firm: Balben Property Transfers
Date: October, 2003
Times viewed: 615
Conveyancers: Making The Australian Dream Run Smoothly
Buying or selling a property will be an emotional and exciting time in your life. With so much at stake it can also risky if you don’t have the right information or advice. Laying claim to your slice of the ‘Australian Dream’ is becoming harder and will not be always easy or problem free. Your best defence to stopping the dream becoming a nightmare is to arm yourself with knowledge and good advice.
Firm: Balben Property Transfers
Date: October, 2003
Times viewed: 540
The Family Provision Act 1982
The Family Provision Act 1982 (FPA) came into operation on 1 September 1983 and applies to the estates of people dying on or after that date.
Firm: Craddock Murray & Neumann
Date: October, 2003
Times viewed: 1930
Debt Recovery, Bankruptcy, Company Insolvency and Directors' Duties
Your questions answered.
Firm: Craddock Murray & Neumann
Date: October, 2003
Times viewed: 1350
Disputed Wills
If you were left out of the Will or not properly provided for, you may have a claim under the Family Provisions Act 1982 (FPA).
Firm: Craddock Murray & Neumann
Date: October, 2003
Times viewed: 557
To avoid liability, train managers to identify, monitor and prevent harassment early
In the case of Caton v Richmond Club Limited [2003] NSWADT 202, the New South Wales Administrative Decisions Tribunal (‘the Tribunal’) has sent a clear warning to employers that they must act early if they want to avoid been held vicariously liable for harassment. If managers or supervisors have informal knowledge that an employee’s behaviour is potentially unlawful, active steps must be taken to monitor the behaviour and enforce anti-discrimination policies.
Author: Rick Catanzariti and Naomi Miller
Firm: Phillips Fox
Date: October, 2003
Times viewed: 507
Why migrate to Sydney
With a high standard of living, a booming economy, good education and recreational facilities that are second to none, it is not surprising that almost half of the 110,000 immigrants to Australia will settle in Sydney.
Author: Anne O'Donoghue, Timothy McDonald
Firm: Immigration Solutions
Date: October, 2003
Times viewed: 669
Citizenship Applicants should seek advice
Earlier this month, Minister for Citizenship and Multicultural Affairs Gary Hardgrave announced that a ceremony for the third annual Citizenship Day will take place at the Sydney Opera House.
Author: Anne O'Donoghue, Timothy McDonald
Firm: Immigration Solutions
Date: October, 2003
Times viewed: 529
Ethical issues disclosure on investment products
The Australian Securities and Investment Commission recently released draft guidelines for issuers of investment products relating to the disclosure of labour standards, environmental, social and ethical issues when making a decision about an investment. Chris Schulz and Naomi Lindsay examine the guidelines.
Author: Chris Schulz and Naomi Lindsay
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 588
Health claims in relation to therapeutic goods
Following recent changes to the Therapeutic Goods Act which widened the definition of therapeutic goods under the Act, Clare Cunliffe and Guy Foster discuss the regulatory process in relation to therapeutic goods and the claims that can be made in relation to therapeutic goods.
Author: Clare Cunliffe and Guy Foster
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 630
No legal obligation to make redundancy payments
Employers in Western Australia have no obligation to make redundancy payments as a matter of fairness if there is no contractual or award right. Bronwyn Byrnes and Tom Yuncken review recent developments in WA.
Author: Bronwyn Byrnes and Tom Yuncken
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 563
The disabling effects of drug addiction
Discrimination against employees on the basis of drug addiction may support a disability discrimination claim. Cathy Scalzo reports on a decision that considered the 'prohibited drug exception' under the New South Wales law.1
Author: Cathy Scalzo
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 609
Redefining redundancy on transmission of business
The Termination, Change and Redundancy case (1984) 8 IR 34 crystallised the law at that time with respect to redundancy and has been subsequently adapted by countless industrial instruments.
Firm: Hopgood Ganim Lawyers
Date: October, 2003
Times viewed: 360
The Importance of Wage Calculations in Unfair Dismissals
In a recent case that was decided by the Queensland Industrial Relations Commission ("QIRC"), [State of Queensland (representing Queensland Health and the Princess Alexandra Hospital) and Dr Frank Lepre Case No B632 of 2003], the QIRC held that the term "annual wages immediately before the dismissal" means "those earned in the 12 months immediately prior to termination and not some other period of 12 months that the party may seek to rely upon for their own purposes".
Firm: Hopgood Ganim Lawyers
Date: October, 2003
Times viewed: 470
Redundancy entitlements and unfair dismissal cap
The standard policy for redundancy entitlements in Queensland awards has recently been amended.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: October, 2003
Times viewed: 782
Workplace theft - what can you do?
In today's industrial relations climate, employers are often hesitant to terminate an employee's employment for justifiable reasons such as theft.
Firm: Hopgood Ganim Lawyers
Date: October, 2003
Times viewed: 929
Sledgehammer to crack a nut – or appropriate response to problem?
The government has now released for comment the Building and Construction Industry Improvement Bill (Bill), which if passed, will create radical change in the non-domestic building industry.
Author: Jim Feehely and David Jury
Firm: Phillips Fox
Date: October, 2003
Times viewed: 446
Holiday or mortgage? Cashing in long service leave entitlements
A recent decision by the Queensland Industrial Relations Commission (Commission) allowing an employee in financial hardship to cash in his long service leave to use as a deposit for a house could have significant implications for Queensland employers. This update covers what constitutes financial hardship in this situation and how employers may benefit in the future.
Author: Martin Osbourne and Monica Taylor
Firm: Deacons
Date: October, 2003
Times viewed: 559
Construction companies prepare – national reforms to workplace safety on the way
The 18 September 2003 release of the Building and Construction Industry Improvement Bill 2003 exposure draft represents the first step in bringing about sustained reform to the workplace relations laws governing the building and construction industry nationally. This article covers the proposed changes and highlights the importance of reviewing your occupational health and safety (OHS) policies now.
Author: Michael Tooma and Andrew Ang
Firm: Deacons
Date: October, 2003
Times viewed: 553
OHS infringements – Directors held personally liable
Two recent decisions of the Industrial Relations Commission of New South Wales are a sobering reminder of the personal liability of directors and managers for breaches of OHS legislation by their companies.
Author: Michael Tooma and Andrew Ang
Firm: Deacons
Date: October, 2003
Times viewed: 454
Anti-spam legislation has consequences for Australian business
New anti-spam legislation, currently before Federal Parliament, will impose a number of obligations on organisations in the field of e-commerce. While the new Bill is unlikely to have much of an impact on the bulk of spam, which originates overseas, it will have some consequences for organisations and the policing of their employees' emails.
Author: Burt Hill
Firm: Freehills
Date: October, 2003
Times viewed: 378 | | | | | September 2003 | | | |
Tribunal’s findings sound warning bells for hotel industry employers
A recent decision of a NSW Tribunal will have implications for employers in the hotel industry throughout Australia. Policies in relation to sexual harassment and discrimination will need to be reviewed to minimise the possibility of future claims.
Author: Workplace Relations Team
Firm: Ebsworth & Ebsworth
Date: September, 2003
Times viewed: 539
Heartening News
In Medtel Pty Limited v Courtney, the full Federal Court has expanded the concept of “merchantable quality” under section 74D of the Trade Practices Act in its recent decision confirming the compensation awards to recipients of a questionable batch of pacemakers.
Author: Susan Yee-Kong
Firm: Ebsworth & Ebsworth
Date: September, 2003
Times viewed: 939
The Bread and Butter Issues
A majority of the full Federal Court held that Safeway misused its market power in contravention of section 46 of the Trade Practices Act by refusing to purchase bread from manufacturers that were supplying other retailers at lower prices. The full Court also held that Safeway had engaged in price fixing with a bread manufacturer.
Author: Susan Yee-Kong and Ewa Pardey
Firm: Ebsworth & Ebsworth
Date: September, 2003
Times viewed: 790
CD Companies can't skip the beat
The full Federal Court upheld the decision at first instance that Universal Music and Warner Music engaged in exclusive dealing in breach of section 47 of the Trade Practices Act in the supply of recorded music CDs to retailers. The Full Court also ordered an increase in the penalties, which now exceed $2 million.
Author: Susan Yee-Kong
Firm: Ebsworth & Ebsworth
Date: September, 2003
Times viewed: 621
Newsflash - Rabbit Proof Fence not intended
This High Court decision contains the most recent and authoritative statements on what constitutes exclusionary conduct in contravention of the Trade Practices Act. It is significant for anyone proposing to engage in a joint venture or a strategic alliance with a competitor, as well as for those engaging in commercial sporting competitions.
Author: Susan Yee-Kong
Firm: Ebsworth & Ebsworth
Date: September, 2003
Times viewed: 610
Have We Agreed on Everything?
When entering into a contract of employment with an individual employee it is crucial to ensure that all issues are covered by the terms of the contract. A recent appeal decision of the Full Court of the Federal Court
confirms that it is just as important to do so when negotiating certified agreements.
Author: Kathryn Dalton and Simone Szalmuk-Singer
Firm: Herbert Geer
Date: September, 2003
Times viewed: 300
Please Don't Sit Down
Australia Post was recently found to have acted unlawfully when it refused to allow a worker to sit down whilst at work. The Federal Court decision serves as yet another example of the consequences of failing to make reasonable adjustments for workers with disabilities, who require them in order to remain in employment. (see Daghlian v Australian Postal Corporation [2003] FCA 759 (23 July 2003))
Author: Kathryn Dalton and Simone Szalmuk-Singer
Firm: Herbert Geer
Date: September, 2003
Times viewed: 477
Yet More Stress...
Did you know that the way in which you conduct your disciplinary and termination procedure could not only affect your ability to defend an unfair dismissal or discrimination claim, but also a WorkCover claim?
Author: Noel Callcott
Firm: Herbert Geer
Date: September, 2003
Times viewed: 561
Maternity Leave - So She Wants to Return to Work Part-time?
The decision of the Federal Magistrates’ Court confirms an employer’s duty to make all reasonable efforts to accommodate female employees who wish to return to part-time work at the conclusion of their maternity leave (Mayer v Australian Nuclear Science and Technology Organisation [2003] FMCA 209 (6 August 2003)).
Author: Kathryn Dalton and Simone Szalmuk-Singer
Firm: Herbert Geer
Date: September, 2003
Times viewed: 540
Accuracy, security and disclosure of personal information
The following case notes on L v Commonwealth Agency [2003] PrivCmrA 10 have kindly been provided by the Office of the Federal Privacy Commissioner.
Author: Office of the Federal Privacy Commissioner
Date: September, 2003
Times viewed: 484
Corporate liability for environmental performance: Proposal to repeal laws
The spate of corporate failures in Australia and abroad in 2002 has prompted many businesses to re-evaluate the quality and effectiveness of their 'corporate governance' practices. In light of this trend, the Federal Government's proposal to repeal laws requiring corporations to report on their environmental performance appears worthy of reassessment.
Author: John Taberner, Tony van Merwyk, Mark Dwyer, Michael Back and Tim Power
Firm: Freehills
Date: September, 2003
Times viewed: 547
Finally—one for software licensors
There have been a number of recent cases in which software licensors have been held liable for differences between customer expectations and delivered software. Armchair viewers might be forgiven for thinking that now is not a good time (legally speaking, leaving aside downturns in the IT sector) to be a software licensor. However, the tides do seem to be turning.
Author: Amalia Stone
Firm: Freehills
Date: September, 2003
Times viewed: 433
Copyright and patents: When is an exclusive licensee not an exclusive licensee?
Various intellectual property legislation gives specific, commercially advantageous rights to exclusive licensees, such as Section 119 of the Copyright Act and Section 120 of the Patents Act.
Author: Ben Kremer and Adam Liberman
Firm: Freehills
Date: September, 2003
Times viewed: 440
Family Court Judge Unable to Release Children from Immigration Detention: Summary of the Judgment
A summary of the judgment of Justice Richard Chisholm of the Family Court of Australia in AI and AA and The Minister For Immigration & Multicultural & Indigenous [2003] FamCA 943, kindly provided by the Family Court.
Author: Family Court of Australia
Date: September, 2003
Times viewed: 492
ATO releases new compliance program
The Australian Taxation Office (ATO) has just released its compliance program for the current financial year, complementing the detailed large business compliance plan released in June.
Author: Colin Tan
Firm: Freehills
Date: September, 2003
Times viewed: 457
When using other people's advertising themes breaches the Trade Practices Act
The Federal Court has found an insurance company liable to Telstra for misleading and deceptive conduct for running a variant of its Goggomobil advertising campaign from the 1990s.
Author: Ben Kremer
Firm: Freehills
Date: September, 2003
Times viewed: 703
The High Court clarifies exclusionary provisions: News Limited v South Sydney
On 13 August 2003 the High Court handed down its first decision on exclusionary provisions in News Limited & Ors v South Sydney District Rugby League Football Club Limited & Ors [2003] HCA 45 (News v Souths).
Author: Sophie Rigby
Firm: Freehills
Date: September, 2003
Times viewed: 641
A Balancing Act Between Harmonisation and Cultural Interests: New Trade Marks Legislation in New Zealand
The Trade Marks Act, 1953 ("the previous Act") has been repealed and the Trade Marks Act 2002 ("the Act") has come into force as of 20 August 2003, introducing a number of new and, in most cases, welcome changes to trade mark law in New Zealand.
Author: Philippe Rodhain
Firm: F B Rice & Co
Date: September, 2003
Times viewed: 393
Directors’ decisions under scrutiny
Directors should be aware that their decision making processes are now able to be reviewed in more detail than before.
Author: Melessa Tan
Firm: PricewaterhouseCoopers Legal
Date: September, 2003
Times viewed: 570
Nominations of Directors
The ASX Principles of Good Corporate Governance and Best Practice Recommendations (“ASX Principles”) make various recommendations relating to the composition of the Board of Directors of a listed company. In Recommendation 2.4 the ASX Corporate Governance Council recommends the establishment of a nomination committee by listed companies, particularly large listed companies.
Author: Andrew Bristow
Firm: PricewaterhouseCoopers Legal
Date: September, 2003
Times viewed: 512
CLERP 7 – Simplification or Not?
The CLERP 7 reforms took effect on 1 July 2003. The amendments introduced are intended to simplify document lodgment and compliance procedures for companies under the Corporations Act 2001.
Author: Andrew Bristow and George Roins
Firm: PricewaterhouseCoopers Legal
Date: September, 2003
Times viewed: 628
Returning to work after maternity leave
Managing maternity leave is an important feature of good human resources management. The following case illustrates the importance of managing maternity leave appropriately.
Author: Rick Catanazariti and Tamara Kingsley
Firm: Phillips Fox
Date: September, 2003
Times viewed: 629
Age of consent to medical treatment
Kirraley Bowles looks at the current legislative situation in Australia in relation to children and the issues of competency of giving consent to their own medical treatment.
Author: Kirraley Bowles
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 1428
Junk DNA or junk debate?
Jeff Bergmann makes some observations on the GTG 'junk' DNA patent controversy.
Author: Jeff Bergmann
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 622
The ACCC records one win and one loss...
A recent ruling in the long-running anti-competition case against Universal Music Australia can be seen as both a win and a loss for the ACCC. Jeremy Chase looks at the final Federal Court ruling.
Author: Jeremy Chase
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 607
IP protection – Is your IP keeping pace with your business?
Some practical tips on protecting intellectual property for companies looking to update and re-launch key brands.
Author: Samantha Christie
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 499
Pitfalls for a Passive Landlord
Two recent Court decisions1 have highlighted the potential hazards for landlords who do not ensure that their properties are properly maintained and do not pose a threat to tenants and their guests.
Firm: Hopgood Ganim Lawyers
Date: September, 2003
Times viewed: 507
The ‘Super Tribunal’ 2003
On 1 July 2003, the third and final phase of the Government's reform of statutory tribunals commenced.
Firm: Hopgood Ganim Lawyers
Date: September, 2003
Times viewed: 458
Financial Services Reform Amendment Bill 2003
The Financial Services Reform Amendment Bill 2003 (Bill) was introduced into Parliament on 26 June 2003. The Bill is still before Parliament, although the Senate Economics Legislation Committee has recommended that it be passed.
Firm: Abbott Tout
Date: September, 2003
Times viewed: 384
High Court says Federal Court wrong on 'test for obviousness'
A High Court decision provides much-needed guidance on the 'test for obviousness' in patent law. The High Court ruled that the Federal Court had asked the wrong questions on the issue of 'obviousness' and found that if the right question was asked, the invention was not obvious.
Author: Michael Dowling and Cynthia Cochrane
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 502
Use of past performance in promotional material
ASIC has released its final guidelines on the use of past performance information in investment advertisements, in ASIC Guide on the use of past performance in promotional material. This guide is applicable where past performance information is used in the promotion of a financial product or service to potential retail clients (including in PDSs).
Firm: Abbott Tout
Date: September, 2003
Times viewed: 414
Universal Music v ACCC
On 22 August 2003 the Full Federal Court handed down its unanimous decision on the appeal brought by Universal Music Australia (Universal) and Warner Music Australia (Warner) in Universal Music & Ors v Australian Competition and Consumer Commission [2003] FCAFC 193 (Universal v ACCC).
Author: Sophie Rigby
Firm: Freehills
Date: September, 2003
Times viewed: 475
Lock it in Eddie: Avoiding uncertainty and confusion when doing deals in sport
Freehills' litigator, Max Duthie, considers Eddie Jordan's disastrous pursuit of Vodafone's sponsorship dollars in the English High Court, and wonders if lessons can be learned from this and other cases about the way to do business in sport these days, and in particular about the need for clarity in contractual negotiations.
Author:
Firm: Freehills
Date: September, 2003
Times viewed: 752
‘Duty-free’ director-proxies: Whitlam v ASIC
In the case of Whitlam v ASIC, the NSW Court of Appeal considered the duty of a director to vote in accordance with instructions from shareholders appointing him as a proxy.
Author: Michael Neylan, Soraya Mir and Kaye Sato
Firm: Ebsworth & Ebsworth
Date: September, 2003
Times viewed: 825
Data for sale: Does the Privacy Act apply?
With the transitional period for the Financial Services Reform Act 2001 (Cth) coming to an end on 11 March 2004, many financial service providers are looking to restructure their retail businesses to promote cost efficiencies. As part of this process, a common concern is whether the Privacy Act 1988 (Cth) prohibits or restricts the transfer of customer databases, which are often the most significant assets in such transactions.
Author: Scott Charaneka and Juliana Nam
Firm: Ebsworth & Ebsworth
Date: September, 2003
Times viewed: 596
Intellectual Property Problems in Paradise
A recent Federal Court case highlights the importance of having a contract that clearly defines payment obligations and corresponding intellectual property rights.
Author: Ian Reid and Dan Buckley
Firm: Ebsworth & Ebsworth
Date: September, 2003
Times viewed: 539
Digital music crackdown targets equipment owners
A recent Federal Court decision provides a stark warning to owners of computer equipment and networks of the need to have appropriate computer use policies in place with their users.
Author: Ian Reid and Barry Stewart
Firm: Ebsworth & Ebsworth
Date: September, 2003
Times viewed: 572
Accidents in the workplace: A new way to notify
Employers and occupiers need to be aware of important changes to requirements to notify WorkCover about workplace accidents under the Occupational Health & Safety Act 2000 (NSW) (OHS Act) and Occupational Health and Safety Regulation 2001 (NSW) (OHS Regulation).
Author: Andrew Saxton and Daniel Miller
Firm: Ebsworth & Ebsworth
Date: September, 2003
Times viewed: 661
Protected names for wine brands – which name not to choose
Registering wine names as trade marks is not as simple as it seems, as the issue of registered geographic names for wines must also be considered when choosing a wine name.
Author: Samantha Christie
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 927
Copyright – Protection of copyright and the music industry
The issue of music copyright infringement is under the spotlight, with record companies taking action against several universities over alleged copying and distribution of unauthorised copies of copyright sound recordings.
Author: Teresa Ward
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 1770
Perils of drafting a release
Dismissed employees signing deeds of release in exchange for extra termination benefits are unlikely to be allowed to challenge the dismissal. But the release may not prevent other claims, as shown by a recent NSW decision, reports Suzanne Weingott.
Author: Suzanne Weingott
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 578
Labour hire companies and union membership
Employees of labour hire companies can be eligible for union membership, even if not directly employed in the relevant industry. In recognising eligibility, the Australian Industrial Relations Commission has confirmed that it will focus on the activities of the employees.
Author: Jonathan Morley
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 1533
World wide Internet defamation law divided
Decisions of the highest courts in Australia, the UK and the US have resulted in a divergence in the law relating to where online material is 'published' for the purposes of defamation law. In Australia and the UK, Internet publishers may be liable for online material in each jurisdiction in which the material is read. In the US however, Internet publishers will be liable for defamation only in those jurisdictions to which the publication was directed. Belinda Thompson and Damien van der Toorn examine these conflicting legal trends and the implications for Internet publishers world wide.
Author: Belinda Thompson and Damien van der Toorn
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 1522
Commission refuses to certify agreements
The AIRC has recently refused to certify agreements containing provisions relating to the use of contractors and union right of entry. For HR practitioners involved in enterprise bargaining, this legal update explains why the Commission refused to certify these, and the implications for drafting clauses in such agreements made with unions.
Author: David McLaughlin
Firm: Deacons
Date: September, 2003
Times viewed: 367
Emwest revisited – still no rest for employers
The Full Court has now handed down its decision in the Emwest case, rejecting the appeal and upholding the union’s right to take lawful industrial action during the life of a certified agreement. In the wake of this decision, employers will need to ensure all certified agreements expressly state that further claims and industrial action cannot be pursued during the life of an agreement.
Author: Andrew Maher
Firm: Deacons
Date: September, 2003
Times viewed: 335
Regulation of the Australian online pharmacy
Beth Turnbull looks at some of the regulatory issues relating to the online dispensing of pharmaceuticals.
Author: Beth Turnbull
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 685
ISPT Nominees v Commissioner revisited
On 12 August 2003, Barrett J of the Supreme Court of NSW handed down his judgment in ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697. This article focuses primarily on the trust issues considered in that case. The other issues considered in the case are examined briefly only.
Author: Luis Batalha
Firm: Clark McNamara Lawyers
Date: September, 2003
Times viewed: 1182
News Ltd, South Sydney and the High Court: the sports law context
On Wednesday, 13 August 2003, the High Court of Australia handed down its decision in News Ltd v South Sydney District Rugby League Football Club. The High Court's decision has substantially clarified the exclusionary provisions prohibition contained in the Trade Practices Act. It also has implications for high-level sporting competitions generally.
Author: Janey Draper
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 624
Damages awarded for breach of privacy
A Queensland court recently created a new Australian tort of invasion of privacy, after awarding compensation to a woman the court found had been stalked and harassed.
Author: Suzanne Weingott
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 994
Cashing out long-service leave
A decision of the Queensland Industrial Relations Commission reflects the comparative ease when claiming a payment in lieu of an accrued long-service leave entitlement.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 759
Discrimination and sick leave
A recent decision of the Administrative Decisions Tribunal of New South Wales illustrates that over-zealous management of employees with extensive sick leave records may breach anti-discrimination laws.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 974
Copyright of 'thumbnail' images
The United States Court of Appeals for the Ninth Circuit recently held that the unauthorised creation and use of 'thumbnail' images in an Internet search engine was not actionable by the owner of copyright in the images.
Author: Anthony Selleck
Firm: Allens Arthur Robinson
Date: September, 2003
Times viewed: 1008
How to Identify a Misuse of Market Power: ACCC v Australian Safeway Stores
Section 46 of the Australian Trade Practices Act (TPA) and its New Zealand counterpart, s36 of the Commerce Act, are concerned with the use of substantial market power in an anti-competitive way.
Author: Stephen Corones
Firm: Phillips Fox
Date: September, 2003
Times viewed: 851
Developments in claims for psychiatric injury
Over the last twenty years, claims for psychiatric injury in Australia have suffered from a lack of clear authority. Until the High Court's decision in Tame v New South Wales and Annetts v Australian Cattle Stations in September last year, the most recent decision of the High Court had been Jaensch v Coffey in 1984.
Author: David Ruschena
Firm: Phillips Fox
Date: September, 2003
Times viewed: 650
Can Australian industrial awards bind foreign ship owners and foreign crew?
Recently the High Court was asked to determine whether or not the Australian Industrial Relations Commission had jurisdiction to make an industrial award about the terms and conditions of employment in relation to a ship in Australia that was foreign owned and using foreign citizens as its crew.
Author: Rick Catanzariti
Firm: Phillips Fox
Date: September, 2003
Times viewed: 393
Complying with the new code of banking practice: The next chapter
The new Code released by the Australian Bankers Association on 1 August 2003 replaces and extensively revises the existing Code of Banking Practice 1993. Although banks may choose whether to subscribe to the new Code, most banks are expected to publicly adopt the new Code over the coming months.
Author: John McKenna and Sylvia van der Heyden
Firm: Freehills
Date: September, 2003
Times viewed: 532
High Court Allows News Limited to Pull a Rabbitoh Out of its Scrum
On 13 August 2003, the High Court handed down its decision in News Limited v South Sydney District Rugby League Football Club Limited. This is the first of a number of impending decisions on the application of the prohibition on exclusionary provisions (also known as primary boycotts) contained in section 45 of the Trade Practices Act 1974 (“Act”). The decision provides important guidance on the legitimacy of agreements between competitors which involve restrictions on the relationships of those parties with third parties.
Firm: Corrs Chambers Westgarth
Date: September, 2003
Times viewed: 429
Full Bench Upholds Emwest Decision
On 15 August 2003, the Full Bench of the Federal Court upheld the decision of Justice Kenny in Emwest Products v AMWU [2002] FCA 61.
In Australian Industry Group v AMWU [2003] FCAFC 183, the Full Bench determined that section 170MN of the Workplace Relations Act 1996 (Cth) does not prohibit employees taking protected industrial action during the nominal life of a certified agreement in support of claims outside the scope of that agreement.
Author: Kathryn Edghill
Firm: Corrs Chambers Westgarth
Date: September, 2003
Times viewed: 323 | | | | | August 2003 | | | |
Frustrating action
The Takeovers Panel has recently released its final Guidance Note on frustrating action in takeovers. In this article, we look at the points to note in relation to the frustrating action principle.
Author: Guy Alexander
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 506
Transmission of business
An incoming employer may inherit the industrial agreements of an outgoing employer, even where there is no direct relationship or transaction between the incoming and outgoing employers. The decision of the Full Federal Court in Gribbles Radiology Pty Ltd v Health Services Union of Australia has important implications for the due diligence process involved in the transmission of a business.
Author: Peter Liaw
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 702
Queensland's cultural heritage laws overhauled
At a time when cultural heritage issues are occupying the front page of newspapers in the State, the Queensland Government has finally acted to overhaul Queensland's current cultural heritage legislation. Yesterday, two Bills were introduced into Parliament which repeal the existing legislation and replace it with specific legislation applying only to Aboriginal and Torres Strait Islander cultural heritage.
Author: Ben Zillmann
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 586
No automatic defence for non-profit experimental research
Duncan Bucknell considers the recent US decision in Madey v Duke regarding the defence to patent infringement of non-profit experimental research, and the Australian implications of the decision.
Author: Duncan Bucknell
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 688
The importance of a legitimate business reason: ACCC v Safeway
On 30 June 2003 the Full Federal Court handed down its judgment in Australian Competition & Consumer Commission v Australian Safeway Stores Pty Limited.
Author: Michael Gray and Amanda Eggleton
Firm: Freehills
Date: August, 2003
Times viewed: 710
Government agencies and continuous disclosure: Proposed reforms
Under the latest proposal for reform of the continuous disclosure regime, all government agencies will be required to make ASX announcements when they make decisions with price-sensitive effects on listed companies.
Author: Justin Mannolini, Stephen Walmsley, Rebecca Maslen-Stannage, and Quentin Digby
Firm: Freehills
Date: August, 2003
Times viewed: 480
Australian information disclosure requirements amended
Amendments to the Australian patent regulations, which were published on 14 August 2003, have significantly reduced the disclosure requirements for patent applicants in Australia. The regulations will come into force on 26 August 2003.
Author: Paul Savage and Kristian Robinson
Firm: Freehills
Date: August, 2003
Times viewed: 316
Red bananas
Fada Pty Limited has succeeded in obtaining registration of the colour red as a trade mark for bananas sold with red wax tips. Its trade mark is described as consisting “of the colour red as applied to up to one-third of a banana”.
Firm: PricewaterhouseCoopers Legal
Date: August, 2003
Times viewed: 592
Green light for parallel importation
The Copyright Amendment (Parallel Importation) Act 2003 has now been assented to.
Firm: PricewaterhouseCoopers Legal
Date: August, 2003
Times viewed: 494
Tottenham hotspur scores a victory
The English football club, Tottenham Hotspur, recently succeeded under the Uniform Domain Name Dispute Resolution Policy (UDRP) against a cybersquatter’s registration of the domain name, tottenhamhotspur.com.
Firm: PricewaterhouseCoopers Legal
Date: August, 2003
Times viewed: 506
‘CSL Pacific’ – Maritime Unions Fail to Join CSL to Australian Award
In an earlier article, we reported on the win in the High Court of Australia by the maritime unions in their ongoing industrial campaign against CSL Pacific Shipping Incorporated (CSL).
We commented that the case would return to the AIRC for determination of the substantive application and that similar applications were pending against other foreign owners.
The AIRC has now determined, at least in part, the unions’ substantive application in the CSL case.
Author: Drew James, Damian Sloan and Craig Carter
Firm: Ebsworth & Ebsworth
Date: August, 2003
Times viewed: 503
High Court Win for Maritime Unions in ‘CSL Pacific’
In a unanimous judgment delivered on 7 August 2003, the Full Bench of the High Court of Australia rejected an appeal by CSL Pacific Shipping Inc in the long running dispute involving the cement carrier CSL Pacific.
Author: Drew James, Damian Sloan and Craig Carter
Firm: Ebsworth & Ebsworth
Date: August, 2003
Times viewed: 489
Internet domain names as trade marks
In order to regulate the use of the world wide web, domain names must be registered. The terms and conditions on which domain names are registered regulate who can apply, how disputes are resolved and how such domain names can be maintained, terminated or transferred. Registered trade marks are used to designate the origin of goods or services used in trade or business. Registration confers on the owners various procedural and evidentiary advantages over unregistered trade marks.
Author: Cameron Murrell and Felicity Marks
Firm: Phillips Fox
Date: August, 2003
Times viewed: 448
The Intellectual Property Laws Amendment Act 2003
This Act has provided for extension of the specified time limits in the Design Act 1906, Patents Act 1990 and Trade Marks Act 1995 where deadlines are missed due to errors or omissions by employees of or persons providing services to the Designs, Patents or Trade Marks Offices. Thus if documents are not delivered from State offices to Canberra as a result of an error or omission by the courier or the information system provider, then the permitted time for lodging the material will be extended.
Author: Cameron Murrell and Felicity Marks
Firm: Phillips Fox
Date: August, 2003
Times viewed: 345
The house that Mrs Gould built and more – Henley Arch Pty Ltd v Tamawood Pty Ltd [2003] FCA 204
Mrs Gould inspected a Henley Arch Pty Ltd (Henley) ‘Chirnside’ display house. She paid a small deposit to have Henley fix the quoted price of the house (should she proceed to purchase the Chirnside house design within a set period) and conduct soil tests on her block. However, she did not proceed with a ‘Chirnside’ house but subsequently went to Tamawood Pty Ltd (Tamawood) to arrange for the construction of her house (the ‘Gould House’).
Author: Cameron Murrell and Felicity Marks
Firm: Phillips Fox
Date: August, 2003
Times viewed: 671
Where ethics and law collide
Recovery for the damages of rearing a healthy but unplanned or unwanted child poses moral, ethical and legal questions of the most difficult kind. According to what criteria can the cost of a healthy but unwanted life be assessed? Can the dilemma of whether to award damages be resolved on intuition, on logical legal principle, on economic or moral grounds?
All and none of the above, according to views recently articulated by various members of the High Court.
Author: Michael Regos
Firm: Phillips Fox
Date: August, 2003
Times viewed: 578
Terrorism insurance: user pays
Australian insurers have been adding terrorism exclusions to their policies as reinsurance for terrorism events has become either unavailable or prohibitively expensive. This is a result of the events of 11 September 2001, the collapse of HIH and the hardening of the insurance and reinsurance market worldwide, among other things.
Author: Samantha O'Brien
Firm: Phillips Fox
Date: August, 2003
Times viewed: 523
New regulatory regime for ‘medical devices’
In October 2002 most of the substantive provisions of the Therapeutic Goods Amendment (Medical Devices) Act 2002 commenced. We discussed Medical Device Safety Reports in our June Health E-Bulletin. In this Bulletin we provide a short summary of the new regulatory regime for medical devices arising from these amendments.
Firm: Phillips Fox
Date: August, 2003
Times viewed: 450
After Boral – Managing Your Risks in Light of Recent Decisions on Section 46
This paper will summarise the major highlights coming out of recent authority, focus upon take-outs of the Boral decision and explore some areas of difficulty in analysing section 46 risk particularly when considering future proposed conduct.
Author: Nick McHugh
Firm: Deacons
Date: August, 2003
Times viewed: 442
Return to Work Following Maternity Leave - Risks for Employers
Last week, a Federal Magistrates Court awarded $40,000 to a female manager because her employer refused to accommodate her in part-time work following her return from maternity leave. Building on similar recent decisions, this case highlights the need for employers to handle return to work issues appropriately or risk large awards against them (which have been as high as $95,000).
Author: Stuart Kollmorgen and Megan Reeve
Firm: Deacons
Date: August, 2003
Times viewed: 490
High Court Rules Rabbitohs not Illegally Excluded from the Rugby League Competition
The Full Federal Court had held (by majority) that South Sydney Rabbitohs had been illegally excluded from the National Rugby League (NRL) competition. The High Court (4:1) reversed this decision on 13 August.
Author: Warren Pengilley
Firm: Deacons
Date: August, 2003
Times viewed: 487
Jelicic v Salter – a doctor’s duty to advise the risks of treatment
On 29 April 2003 the Supreme Court of Queensland decided upon a claim for damages by Ms Jelicic arising from the allegedly negligent services by Dr Salter in respect of a hysterectomy. The case again highlights the susceptibility of obstetricians to have their services challenged.
Author: Paul Hibberd
Firm: Phillips Fox
Date: August, 2003
Times viewed: 553
Research into Human Genetics
Research into human genetics is moving at a remarkable rate. In the 50 years since James Watson and Francis Crick first proposed a double helix structure for DNA, the entire human genome has been mapped by the Human Genome Project consortium.
Author: Louise Martinovic
Firm: Phillips Fox
Date: August, 2003
Times viewed: 495
Debenture trust structures – changes announced for Victoria
Following in NSW’s footsteps, the Victorian Government has just announced that it will introduce legislation to stop people using debenture trust structures to avoid the payment of mortgage duty.
Author: Luis Batalha
Firm: Clark McNamara Lawyers
Date: August, 2003
Times viewed: 770
DVT is no 'accident' - says UK Court of Appeal
The UK Court of Appeal recently ruled that passengers who developed DVT after travelling on an ordinary commercial flight are not able to recover damages from the airlines under the Warsaw Convention. Belinda Thompson and Chris Peadon examine the different approaches taken by courts in the US, the UK and Australia to this question and look ahead to likely developments.
Author: Belinda Thompson and Chris Peadon
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 590
Punitive damages – some reason at last
The recent decision by the United States Supreme Court in the case of State Farm Mutual Automobile Insurance Co v Campbell has been welcomed by corporate defendants, exposed to US jurisdictions, as signalling a possible end to their exposure to massive punitive damages awards in civil litigation. Peter O'Donahoo and Vida Wongseelashote look at the impact of this case and the domestic ramifications.
Author: Peter O'Donahoo and Vida Wongseelashote
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 628
ACCC v Safeway: Round two to the ACCC
The majority of the Full Court of the Federal Court recently held that Safeway had misused its market power by refusing to stock bread made by manufacturers that were supplying independent retailers at low prices. The Full Court also unanimously held that Safeway had engaged in price-fixing with a bread manufacturer. Beth Griggs and Frances Gordon examine the Full Court's decision.
Author: Beth Griggs and Frances Gordon
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 760
The Dangers of a Mix Tape
If you are thinking about doing a mix tape, there are a number of things you need to consider. Unfortunately, not all of them have to do with your track selection or scratching technique. As those that have been sued will tell you, a mix tape can see you end up in court.
Author: Matthew Handley
Firm: Abbott Tout
Date: August, 2003
Times viewed: 462
The High Court's ruling on the Souths decision
The High Court today has overturned an earlier decision of the Full Federal Court that had the potential to expand significantly the operation of the prohibition on exclusionary provisions, particularly in the area of joint ventures. The High Court decision helps to clarify this important area of the law. AAR's Competition Law Group examine today's ruling.
Author: Competition Law Group
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 619
Untangling Anaconda
This article focuses on the following five issues: the takeovers provisions and the Australian Securities and Investments Commission (ASIC) modification power, shareholder underwritings, so-called 'bear hug' conditions, influencing the market in the takeovers context, and 'associations' between shareholders.
Author: Justin Mannolini, Braddon Jolley, and Rodd Levy
Firm: Freehills
Date: August, 2003
Times viewed: 454
Recommendations of the Dawson Committee
This article outlines the principal recommendations (though not all the recommendations) of the Dawson Committee and briefly discusses the general public and Government response to the Committee's Report.
Author: Chris Jose and Lawrence Baker
Firm: Freehills
Date: August, 2003
Times viewed: 695
Full Federal Court Rules that PlayStation 'Mod-Chipping' Infringes Copyright Law
In a recent decision, the Full Federal Court has overturned a first instance ruling, holding that 'mod-chipping' PlayStation consoles infringes copyright law.
Author: Sue Gilchrist and Sarah Strasser
Firm: Freehills
Date: August, 2003
Times viewed: 392
Corporations Act 2001: Lodgment and Compliance Amendments
A series of amendments to the laws relating to document lodgment and compliance under the Corporations Act and related legislation took effect on 1 July 2003. These reforms are intended to simplify document lodgment and compliance procedures under the Act.
Author: Nicole Ellem
Firm: Hopgood Ganim Lawyers
Date: August, 2003
Times viewed: 587
"If Not, Why Not?" Corporate Governance
Without a doubt, Directors of many listed entities will have been left scratching their head following the recent release by the ASX Corporate Governance Council of the Principles of Good Corporate Governance and Best Practice Recommendations (the Principles).
Author: Nicole Ellem
Firm: Hopgood Ganim Lawyers
Date: August, 2003
Times viewed: 308
Amendments to the Corporations Regulations
Further amendments to the Corporations Regulations were made under Corporations Amendment Regulations 2003 (No. 4) and Corporations Amendment Regulations 2003 (No. 5). Both of these were gazetted on 12 June 2003.
Firm: Abbott Tout
Date: August, 2003
Times viewed: 317
Licensing: Financial product advisers - Conduct and disclosure
ASIC has issued a policy statement which aims to provide guidance for advisers on their conduct and disclosure obligations. This policy statement was developed as a result of the views expressed in the submissions received in response to ASIC's policy proposal paper Licensing: Financial product advisers - conduct and disclosure (PPP) released for public comment in December 2002.
Firm: Abbott Tout
Date: August, 2003
Times viewed: 480
New ATO fact sheet on margin scheme
In a fact sheet released just last week, the ATO sets out its views on a number of issues relating to the application of the margin scheme to sales of real property acquired before 1 July 2000.
Author: Luis Batalha
Firm: Clark McNamara Lawyers
Date: August, 2003
Times viewed: 1600
Digital agenda review – issues papers released
Major amendments to the Commonwealth Copyright Act 1968 (the Act) came into effect in March 2001. They dealt with a number of issues in direct response to rapid technological developments and the use of new technologies and copyright material in the digital environment. These amendments were made by the Copyright Amendment (Digital Agenda) Act 2000 (Digital Agenda Act).
Author: Matthew Hall
Firm: Phillips Fox
Date: August, 2003
Times viewed: 351
Revised guidelines for telecommunications disputes
On 4 June 2003 the ACCC issued revisions to its guidelines on the resolution of telecommunications access disputes. The revisions were prompted by changes to the Trade Practices Act (1974) brought about by the
Telecommunications Competition Act (2002).
Firm: PricewaterhouseCoopers Legal
Date: August, 2003
Times viewed: 451
Keeping spam in the can
Spam is increasingly becoming a nuisance for users of email and mobile phones in Australia. According to some estimates, upwards of 40 percent of all email delivered to end-users is spam.
Firm: PricewaterhouseCoopers Legal
Date: August, 2003
Times viewed: 575
Full Federal Court decision in Asgard
Larissa Macpherson looks at the results of the appeal in the Asgard case, which held that trustees could not properly pay benefits at the direction of members.
Author: Larissa Macpherson
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 648
New common law action for invasion of privacy
In the recent Queensland decision Frosse v Purvis [2003] QDC 151 Justice Skoien held for the first time in the history of privacy law in Australia that there is a common law right to recover damages for invasions of privacy, independant from rights existing under current privacy statutes.
Firm: PricewaterhouseCoopers Legal
Date: August, 2003
Times viewed: 612
Government to introduce new sponsorship arrangements
The Commonwealth Government is preparing to overhaul arrangements for businesses seeking to sponsor migrants.
Author: Anne O'Donoghue, Samantha Stavros, Timothy McDonald
Firm: Immigration Solutions
Date: August, 2003
Times viewed: 417
Your Guide to Australian Health Requirements
Australia has managed to keep itself largely free of many serious global epidemics, but in an age of increasing international travel, this is an uphill battle requiring strict policies. As a result, people who intend to migrate to Australia must undergo medical examinations.
Author: Anne O'Donoghue, Samantha Stavros, Timothy McDonald
Firm: Immigration Solutions
Date: August, 2003
Times viewed: 789
Applicants should seek advice on character
The Immigration Department can use even minor breaches of previous visas to deny visas to applicants on the grounds that they are not of ‘good character’.
Author: Anne O'Donoghue, Samantha Stavros, Timothy McDonald
Firm: Immigration Solutions
Date: August, 2003
Times viewed: 534
Contempt Bill boosts Commission's powers
Orders of the Australian Industrial Relations Commission will have sharper teeth if proposed new legislation before Federal Parliament passes and allows for offenders to be imprisoned for contempt. Sarah Holthusen reports.
Author: Sarah Holthusen
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 468
One-sided commitment unfair
Employers should be wary when seeking a long-term commitment to the business from a prospective employee. As Laura Colavizza reports, a recent New South Wales Industrial Relations Commission decision3 demonstrates that such a request can be an inconvenient promise of job security.
Author: Laura Colavizza
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 520
New APRA requirements
Two licences will now be required as a result of the Government’s response to the Superannuation Working Committee Group’s review of superannuation: one under FSR (unless the fund is employer-sponsored only) and one under the new APRA regime.
Firm: Phillips Fox
Date: August, 2003
Times viewed: 584
New ACCC leniency policy for cartel conduct
The Australian Competition & Consumer Commission is applying a new leniency policy to encourage the reporting of cartel behaviour. The policy has been in effect from 30 June 2003.
Firm: Phillips Fox
Date: August, 2003
Times viewed: 500
Further changes proposed to Family Law Act
The Family Law Amendment Bill 2003 was announced in February of this year, proposing further changes to the Family Law Act.
Firm: Hopgood Ganim Lawyers
Date: August, 2003
Times viewed: 578
Changes proposed to the Registration of Births, Deaths and Marriages Act
The Births, Deaths and Marriages Registration Bill 2003 (Qld) was recently introduced into the Queensland Parliament.
Firm: Hopgood Ganim Lawyers
Date: August, 2003
Times viewed: 516
Superannuation and the Family Court
Significant changes came into effect on 28 December 2002 in relation to the way in which the Family Court of Australia will determine property settlements between married couples.
Firm: Hopgood Ganim Lawyers
Date: August, 2003
Times viewed: 542
Heritage buildings and development on adjoining land
The Planning and Environment Court gave judgment on 23 July 2003 in Urban Properties Pty Ltd v. Brisbane City Council [2003] QPEC 031, in which Hopgood Ganim acted for the Appellant.
Firm: Hopgood Ganim Lawyers
Date: August, 2003
Times viewed: 416
GST Ruling 2003/3 - sale of new residential premises
This article primarily focuses on what constitutes substantial renovations but will also look at the sale of residential premises that have not previously been sold as residential premises.
Author: James Moir, Simon Bennett and Trang Nguyen
Firm: TressCox
Date: August, 2003
Times viewed: 1374
Impact of the New Code of Banking Practice on Project and Structured Finance SPVs – the 'Small Business' Test
Banks with both retail and corporate businesses should be aware that the new Code of Banking Practice will not only affect their retail activities, but may also impinge on corporate business, such as in project and structured financing transactions where the borrower is a special purpose vehicle, as it may be regarded as a 'small business'. This article outlines when the new Code could apply to project and structured financing transactions, and highlights some of the possible implications.
Author: Trudi Lodge
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 630
Workplace Deaths in WA – New Laws and Penalties on the Way
Corporations in Western Australia could be fined a maximum of $500,000 for a first offence and $625,000 for subsequent offences under proposed tough new occupational health and safety laws. Companies employing commercial drivers will also need to watch out for new regulations targeting driver fatigue.
Author: Leanne Nickels and Ben Walker
Firm: Deacons
Date: August, 2003
Times viewed: 437
Employee Entitlements in Receiverships
Judgment for McEvoy v Incat Tasmania and others was handed down in the Federal Court on 1 August 2003 and has clarified the law regarding the application of section 433 of the Corporations Act 2001 (Cth) in a receivership.
Author: Steven Palmer
Firm: Deacons
Date: August, 2003
Times viewed: 496
Road Blocks in Patent Litigation
The recent case of Grant & Anor v Australian Temporary Fencing Pty Ltd illustrates how inattention to detail in the drafting of a patent assignment and a patent licence agreement almost resulted in the patent owners and the exclusive licensee of the patent not being able to sue a third party for infringement of the patent.
Author: Irene Zeitler
Firm: Freehills
Date: August, 2003
Times viewed: 291
Impacts of the ASX's Principles of corporate governance on IP strategy
The Principles of the ASX Corporate Governance Council, issued on 1 March 2003, seek to drive good corporate governance in ASX-listed companies.
Although the Principles are largely motivated by recent episodes of financial mismanagement and unethical conduct, there can be no doubt that they are applicable to the management of all major corporate assets, including intellectual assets such as confidential information and patentable inventions. In this regard, the Principles are particularly relevant to technology based companies, and none more so than Australian listed biotechnology companies (biotechs).
In this article we explore the relevance of certain Principles to management of intellectual property (IP) by an ASX-listed biotech.
Author: James Cherry and Tom Gumley
Firm: Freehills
Date: August, 2003
Times viewed: 441
Is it Time to Indemnify Directors for Civil Penalty Orders for Insolvent Trading?
One could be forgiven for labelling 2003 as the 'year of corporate insolvencies'. Since the start of this year the Australia Securities and Investments Commission (ASIC) has conducted solvency reviews of 169 companies and 56 directors.
Author: Danielle Hauer
Firm: Freehills
Date: August, 2003
Times viewed: 717
Cybercrime Code of Practice for ISPs
Following 18 months of development the Australian Internet Industry Association (IIA) released a draft Cybercrime Code of Practice (Code) in relation to cybercrime on Monday, 21 July 2003.
Author: Elizabeth Levinson and Natalie Ceola
Firm: Freehills
Date: August, 2003
Times viewed: 484
Asgard Case Reversed
Trustees of superannuation funds can now breathe a sigh of relief following the recent decision of the Full Court of the Federal Court to overturn the Asgard decision last October, in which trustees were precluded from accepting payment directions.
Author: Scott Charaneka
Firm: Ebsworth & Ebsworth
Date: August, 2003
Times viewed: 604
ACCC Leniency Policy for Cartel Conduct – a Big Deal for a Big Steal (ACCC Leniency Policy for Cartel Conduct – a Big Deal for a Big Steal)
On 30 June 2003 the Australian Competition and Consumer Commission’s leniency policy came into effect, with the aim of detecting, stopping and deterring covert cartels operating domestically or internationally.
Author: Susan Yee-Kong
Firm: Ebsworth & Ebsworth
Date: August, 2003
Times viewed: 241
Damages Awarded in “Wrongful Birth” Case (Damages Awarded in “Wrongful Birth” Case)
The High Court on 16 July 2003 upheld an award of more than $105,000 compensation for the costs of maintenance to the parents of a child born as a result of negligent gynaecological advice. This is the first time the High Court has made a ruling on this issue and, in doing so, it has overturned the 1995 NSW Court of Appeal case of CES v Superclinics and marked a shift away from the approach adopted in most other common law jurisdictions.
Author: Marianne Nicolle and Phillip Hopley
Firm: Ebsworth & Ebsworth
Date: August, 2003
Times viewed: 241
Parents Recover Child-Rearing Costs in High Court Judgment (Parents Recover Child-Rearing Costs in High Court Judgment)
On 16 July the High Court of Australia handed down judgment relating to the vexed question of whether the parents of an unintended child born as a consequence of medical negligence, can recover the costs of raising and maintaining the child from the negligent doctor.
Author: Michael Regos
Firm: Phillips Fox
Date: August, 2003
Times viewed:
Top 10 Takeover reforms
This submission was sent to Senator Ian Campbell from Freehills on 05/08/2003, featuring suggested reforms in the area of takeovers law and policy that may enhance the efficient, competitive and informed operation of the market for corporate control. For further information, please contact Justin Mannolini on 08 9211 7616 or justin.mannolini@freehills.com
Author: Justin Mannolini
Firm: Freehills
Date: August, 2003
Times viewed: 376
'Nervous Shock': Extended Duty of Care for Employers
A recent High Court decision has further extended the boundaries for 'nervous shock' claims, by finding that an employer has a duty of care to prevent its employee's children suffering psychiatric harm as a result of injuries to the employee at the workplace. This duty can arise even if the children did not witness the event and are only told about the accident.
Author: Miriam Morgan-Hobbs
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 801
Sacked Employee not Allowed to Double-dip
Dismissed employees signing deeds of release in exchange for extra termination benefits are unlikely to be allowed to challenge their dismissal. This is a review of Thomas v Logica Pty Ltd.
Author: Suzanne Weingott
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 638
Dispute Resolution Clauses – an Invitation for Intervention?
The Australian Industrial Relations Commission recently intervened in a dispute brought against Telstra about its planned culling of job numbers. In doing so, the Commission confirmed that it will interpret broadly any power of intervention included in dispute resolution clauses.
Author: Jonathan Morley
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 509
Short-term Variation of Enterprise Agreement
The Australian Industrial Relations Commission has approved an application by a company to vary its certified agreement because of a downturn in business, even though the variation left some employees with a pay cut.
Author: Rosemary Bryant-Smith and Alice Cope
Firm: Allens Arthur Robinson
Date: August, 2003
Times viewed: 453
Win for Councils on Telco Towers
A landmark decision in the Court of Appeal on 8 July 2003 has undermined telecommunications carriers’ powers to enter onto land and install telecommunications facilities.
Author: Angela Brewer
Firm: Deacons
Date: August, 2003
Times viewed: 440
Judge Made Privacy Law Could Render Legislation Obsolete
The decision of a Queensland court recognising a broad right to privacy at common law could be the catalyst for a significant extension to Australian privacy rights.
Author: Leif Gamertsfelder
Firm: Deacons
Date: August, 2003
Times viewed: 495
Court Rules on Misuse of Market Power
The Full Federal Court recently found that Safeway had breached section 46 of the Trade Practices Act when it refused to stock bread from existing suppliers who were supplying independent retailers at discounted prices. Typically section 46 cases involve a corporation acting directly against a competitor. However, this case highlights that a refusal to acquire products from a supplier who is not even a competitor can also be considered as the misuse of market power.
Author: Luke Ryan
Firm: Deacons
Date: August, 2003
Times viewed: 552 | | | | | July 2003 | | | |
Hong Kong Companies (Amendment) Bill 2003
The Companies (Amendment) Bill 2003 is currently before the Hong Kong Legislative Council. This article examines the provisions of the Bill, which seeks to liberalise prospectus requirements, enhance corporate governance and modernise the registration requirements for foreign companies seeking to have a place of business in Hong Kong.
Author: James Chan
Firm: Allens Arthur Robinson
Date: July, 2003
Times viewed: 509
Contractors – Another Hurdle to Obtaining Payment
A successful appeal by a NSW shire council to overturn a summary judgment against it will mean that contractors will need to be especially vigilant to provide to the superintendent information he or she reasonably requires in certifying the amount payable to the contractor. Cases that interpret provisions of the standard contracts are relatively rare. When one comes along, principals, contractors and contract administrators should all take note.
Author: Jim Ritchie and David de Jersey
Firm: Allens Arthur Robinson
Date: July, 2003
Times viewed: 589
Employees v Independent Contractors
A recent decision of the Full Bench of the Australian Industrial Relations Commission (AIRC) in Abdalla, Abraham v Viewdaze Pty Ltd t/as Malta Travel, Unreported, AIRC, Print PR927971, 14 May 2003 has re-iterated the principles to be applied when determining whether a worker is an employee or an independent contractor.
Author: Peta Bissell
Firm: Freehills
Date: July, 2003
Times viewed: 554
The New South Wales Unfair Contracts Jurisdiction: Decisions on Scope of Orders and Mitigation
Section 106 of the Industrial Relations Act 1996 (NSW) (IR Act) provides the Industrial Relations Commission of New South Wales in Court Session (IRC) with the power to vary or render void contracts, arrangements or collateral arrangements pursuant to which work is performed in an industry in New South Wales. Two recent decisions in New South Wales promise to have a significant impact on the way employers are affected by s.106 proceedings.
Author: Penny Thew and Glenn Fredericks
Firm: Freehills
Date: July, 2003
Times viewed: 664
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd and BP Australia Pty Ltd v Nyran Pty Ltd (April and May 2003)
The meaning of contractual terms and the extent to which extrinsic evidence may be relied on to interpret them is frequently an issue in contractual disputes. In two recent decisions, the Supreme Court of NSW and the Federal Court have usefully restated and confirmed the law in this important area.
Author: David Opperman and Geoffrey Hansen
Firm: Freehills
Date: July, 2003
Times viewed: 717
Global Medical Imaging Management Limited (in liquidation) v Australian Mezzanine Investments Pty Limited & Anor [2003]
A recent interlocutory application in the New South Wales Supreme Court demonstrates how careful parties must be in order to protect their legal professional privilege during the course of proceedings.
Author: David Opperman and Geoffrey Hansen
Firm: Freehills
Date: July, 2003
Times viewed: 465
Predatory Pricing: Lessons from Boral
On 7 February 2003 the High Court handed down its first decision on predatory pricing in Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 (7 February 2003) (Boral v ACCC). A 6:1 majority (Justice Kirby dissenting) of the High Court found that BBM did not have a substantial degree of power in the relevant market and that BBM did not, in any case, 'take advantage' of market power.
Author: Sophie Rigby
Firm: Freehills
Date: July, 2003
Times viewed: 748
Employee Share Option Plans Need Careful Consideration
The use of employee share option plans (ESOPs) by listed companies is reasonably common as a means of attracting staff and giving incentives for employees to improve or maintain high levels of performance. In recent years, increasing numbers of unlisted companies, particularly those backed by private equity investment, have also introduced ESOPs to help them offer remuneration packages which enable them to compete with larger companies for talented employees.
Author: Kon Mellos and Peter Dunne
Firm: Freehills
Date: July, 2003
Times viewed: 1183
Does the Court Have Power to Order Interest on Costs Payable from a Date Prior to the Costs Order?
This article considers Woods v Woods [2001] NSWSC 1108, which involved a Court's power to order a losing party to pay interest on the costs eventually taxed, at any rate from a date prior to the date of judgement.
Author: Michelle Castle and Maurice Polkinghorne
Date: July, 2003
Times viewed: 588
Valuation of Business Goodwill for Compensation under the Public Works Act 1981(NZ)
As demands on public transport and other infrastructure increase, there is likely to be increasing use by local authorities and Requiring Authorities of the Public Works Act 1981 (NZ)(“PWA”) to obtain land for necessary public works. While these plans may mostly affect private landowners, more and more businesses will be affected by the need for land.
Author: Brian Joyce and Matthew Ockleston
Firm: Clendon Feeney
Date: July, 2003
Times viewed: 659
Digital Rights Management and Electronic Evidence
Digital Rights Management (DRM) is currently a very controversial subject.
Author: Craig Horrocks and Tony Miller
Firm: Clendon Feeney
Date: July, 2003
Times viewed: 528
Is a Software Licence a Sale?
Most people accept licence agreements with wary cynicism. That is about to change. A new law before New Zealand's Parliament, if passed, will empower the consumer and give new rights to software purchasers.
Author: Craig Horrocks and Daniel Smith
Firm: Clendon Feeney
Date: July, 2003
Times viewed: 505
It’s All There in Black and White
Advice on how to avoid and manage disputes in ongoing business relationships range from the guru type to the practical. Still, the most popular is the old adage that the best place for the contract, once signed, is the bottom drawer.
Author: Craig Horrocks and Bernard Woo
Firm: Clendon Feeney
Date: July, 2003
Times viewed: 466
Product Disclosure Statements - What do You Need to Know?
When the FSR transition period ends on 11 March 2004, issuers of many retail financial products (including some hybrid securities issuers) will need to prepare Product Disclosure Statements for offers to retail investors. Here are some important things to know.
Author: Warwick Painter and Frank Tearle
Firm: Allens Arthur Robinson
Date: July, 2003
Times viewed: 712
Update on Anti-Money Laundering Measures – what FATF's Revised Forty Recommendations Mean for Financial Institutions
The international Financial Action Task Force on Money Laundering has revised its Forty Recommendations, which now include measures to combat terrorist financing as well as money laundering. This article highlights some issues for financial institutions arising from the review.
Author: Sarah Lacey
Firm: Allens Arthur Robinson
Date: July, 2003
Times viewed: 561
Stamp Duty Relief for Corporate Reconstructions
Significant developments in stamp duty legislation across Australia have occurred in recent months. This is an outline of the various corporate reconstruction relief regimes that apply throughout Australia. We also summarise the more important changes resulting from recent legislative amendments and state and territory budget announcements.
Author: Adrian Chek and Heran Kim
Firm: Allens Arthur Robinson
Date: July, 2003
Times viewed: 900
Streamlined Lodgements and Compliance for Companies on the Way
On 1 July 2003 the Corporations Legislation Amendment Act 2003 (CLAA) comes into operation, bringing into effect the changes to company law set out under the seventh part of the Corporate Law Economic Reform Program (CLERP 7). This update covers the key changes and what companies need to do to ensure compliance.
Author: Rachelle Zoccolan
Firm: Deacons
Date: July, 2003
Times viewed: 396
Protecting Film & Television Formats
When it comes to legally protecting film and television formats under Australian copyright law, the devil is in the detail.
Author: Stuart Gibson
Firm: Middletons Lawyers
Date: July, 2003
Times viewed: 892
Takeovers Panel Doesn't Swallow Poison Pill
In a landmark decision, the Takeovers Panel found that pre-emptive rights that could force the sale of key trust properties were unacceptable. The decision demonstrates the wide powers of the Panel and serves as an important warning to listed managed investment schemes and their responsible entities.
Author: Braddon Jolley, Rodd Levy, Justin Mannolini and Rebecca Maslen-Stannage
Firm: Freehills
Date: July, 2003
Times viewed: 628
HIH Royal Commission: Key Findings for Life Insurance Regulation
This article reviews Justice Owen’s recommendations and considers the possible implications for the life insurance industry.
Author: Andrew Goldstein
Firm: Ebsworth & Ebsworth
Date: July, 2003
Times viewed: 620
CLERP 7 Amendments to the Corporations Act (CLERP 7 Amendments to the Corporations Act)
Amendments to the Corporations Act 2001 (CA) have been made recently by the Corporations Legislation Amendment Act 2003 (CLERP 7).
Highlighted in this table are some of the significant changes. There are, of course, numerous others resulting from these changes which impact on reporting times and fees.
Author: Soraya Mir, Amanda Dunbar and Kaye Sato
Firm: Ebsworth & Ebsworth
Date: July, 2003
Times viewed: 261
Can Creditors Lay Claim to Superannuation Contributions Made by a Person in the Lead-up to Bankruptcy?
The High Court has ruled that superannuation contributions made before a person becomes bankrupt are unavailable for claw-back by the trustee in bankruptcy and therefore not recoverable by the bankrupt's creditors.
Author: Dirk Fairweather
Firm: Allens Arthur Robinson
Date: July, 2003
Times viewed: 608
Resignation and Pro Rata Long Service Leave
A recent decision of the Queensland Industrial Relations Commission addresses the issue of whether pro rata long service leave should be paid to an employee who resigns because of a domestic or other pressing necessity.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: July, 2003
Times viewed: 1463
Unfair Contract Claims Survive Amendments
Recent amendments to the Industrial Relations Act 1996 (NSW) were widely regarded as significantly limiting the ability of employees to bring claims under the unfair contracts jurisdiction. However, the reality has proven to be quite different.
Author: Deegan Fitzharris
Firm: Allens Arthur Robinson
Date: July, 2003
Times viewed: 504
New Australian Privacy Right
Australians can now recover significant civil damages for invasions of privacy, according to an important recent Queensland decision which, for the first time, does not rely on existing privacy statutes.
Author: Duncan Giles and Gayle Hill
Firm: Freehills
Date: July, 2003
Times viewed: 616 | | | | | June 2003 | | | |
Trade Practices Amendment (Personal Injuries and Death) Bill 2003
This article considers the Trade Practices Amendment (Personal Injuries and Death) Bill 2003 (Cth), which was introduced into the House of Representatives on 27 March 2003.
Author: Pia Riley
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 646
Damage Control: The Art of Effective Crisis
In the wake of the Pan Pharmaceuticals product recall, it is essential for companies to have a crisis communication plan.
Author: Annette Hughes and Tami Dower
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 579
Data Exclusivity: Further Protection for Pharmaceuticals
Pharmaceutical innovation is stimulated and protected, primarily, by the patent system. However, there are a number of sui generis regimes operating alongside the patent system which provide different forms of protection specific to pharmaceutical products. This article considers the reach and limitations of one of those sui generis regimes: data exclusivity.
Author: Jonathan de Ridder
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 1844
Financial Services Reform: Some FSR Issues Made Clearer (Financial Services Reform: Some FSR Issues Made Clearer)
The implementation of the new financial services regime has resulted in the release of thousands of pages of legislation, regulations and Australian Securities and Investments Commission (ASIC) Policy Statements, Class Orders and Guidance Papers. However, despite all the documentation some practical problems have emerged since the commencement of the new financial services regime on 11 March 2002. This article will identify some of these teething problems and discuss the solutions and guidance provided by the regulator.
Author: Jim Bulling and Ofir Kranz
Firm: Middletons Lawyers
Date: June, 2003
Times viewed:
Small Business - Sell and Save Tax! (Small Business - Sell and Save Tax!)
Amendments to the Income Tax Assessment Act 1997 "ITAA 1997" (ITAA '97) which came into effect on the 21st of September 1999 entitle a small business to capital gains tax ("CGT") exemptions on the disposal of active business assets.
Author: Ian Tindale
Firm: redchip lawyers
Date: June, 2003
Times viewed:
When the Commissioner Comes Casually Calling
The Australian Taxation Office (ATO) will conduct 320 'Income Tax Risk Reviews' in the 2003-04 year.
The ATO often presents tax reviews in terms of information gathering, industry profiling and cooperative compliance. However, the review process cannot be treated lightly. It can easily transform into aggressive audit activity. Proper advice and careful planning is essential from day one, if a review is to be properly managed.
Author: Malcolm Pieterse
Firm: Freehills
Date: June, 2003
Times viewed: 470
The Family Court's Decision on the Indefinite Detention of Children: B and B and Minister for Immigration
This summary has been prepared by the Family Court to help explain the decision in B and B and Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 451. It does not form part of the formal reasons for judgment.
Firm: Family Court Of Australia
Date: June, 2003
Times viewed: 542
Farewell to Receiverships?
Recent reforms of corporate insolvency legislation in the United Kingdom have gone a long way to deprive secured creditors of the principal means of enforcing their security - the appointment of a receiver. The Enterprise Act 2002 which received Royal Assent on 7 November 2002 amended the Insolvency Act 1986 to shift the balance in favour of administration, a collective procedure which takes account of the interests of all creditors, and away from receiverships where the secured creditor's interests are paramount.
Should Australia follow suit?
Author: Philip Hoser
Firm: Freehills
Date: June, 2003
Times viewed: 497
Changes to the Therapeutic Goods Act
Changes to the Therapeutic Goods Act following the Pan Pharmaceuticals product recall increase manufacturers' responsibilities in relation to ensuring the quality and safety of therapeutic goods available in Australia. The Amending Act also brings some foods within the administration of the TGA and rationalises the regulation of the advertising of therapeutic goods.
Author: Clare Cunliffe, Robert Cooper and Richard Hamer
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 1226
Whistleblowing: Get It Right and Everyone Wins
Promoting whistleblowing needs to be done carefully to avoid opening the doors to an institutionalised gossip session. Here is an outline of how to implement an appropriate whistleblowing policy.
Author: Professor Bob Baxt and Cathy Heeley
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 429
Unconscionability and the Berbatis Case
A recent High Court ruling has shown that prosecuting a case of unconscionability outside the auspices of the Trade Practices Act may be more difficult than previously thought. This article reviews the Berbatis case and its implications.
Author: Professor Bob Baxt and Elizabeth Bennett
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 941
Internet Interconnection Services and the Trade Practices Act
This article considers the ACCC's discussion paper on Internet interconnection services and the Trade Practices Act.
Author: AAR telecommunications update service
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 516
Post-Dismissal Conduct Relevant to Remedy
Threats made by an employee after his/her dismissal may be taken into account when determining the type of remedy to award to the employee, according to a recent dismissal case (Galea v Tenix Defence Pty Ltd, 11 March 2003).
Author: Kathryn Dalton and Simone Szalmuk
Firm: Herbert Geer
Date: June, 2003
Times viewed: 377
Workplace Dress Codes: If it's OK for the Girls, it's OK for the Boys
It is not uncommon for employers to set standards of dress for the workplace which are reflective of the company’s culture. However, many employers tend to differentiate between appropriate attire for men and that for women. Employers beware: making such distinctions on the basis of sex will in many instances be seen to be in breach of anti-discrimination legislation.
Author: Kathryn Dalton and Simone Szalmuk
Firm: Herbert Geer
Date: June, 2003
Times viewed: 1100
PANdemonium: A Bitter Pill to Swallow - What Happens to the Employees?
How would your business manage its workforce if a catastrophic drop in demand for your product or service resulted in reduced or no work? Do your current employment arrangements effectively provide for the business’ needs in times of crisis? Here are some suggestions that could bring your business back from the brink.
Author: Kathryn Dalton and Simone Szalmuk
Firm: Herbert Geer
Date: June, 2003
Times viewed: 507
What is a 'Good Reason' Not to Participate in the Management of a Company?
A recent decision of the NSW Court of Appeal emphasised the importance of active participation of directors in the affairs of a company. The Court decided that a total failure to participate, for whatever reason, should not be regarded as a 'good reason' under the statutory defence present in s588FGB(5) of the Corporations Act 2001. This article looks at the case and its implications.
Author: Joanne Little
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 631
Non-Executive Directors – Turning a Blind Eye is Not a Defence
Recently in the Victorian Supreme Court, a non-executive director was found to have breached the Corporations Act, in circumstances where he was said to have turned a blind eye to the company's liquidity crisis. This article analyses this decision and explain some of the lessons that non-executive directors can learn from it.
Author: Paul Meadows and Anne Ferguson
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 671
A costly lesson in IT acquisition
Yet another breach of contract case involving the provision of an alleged faulty computer system has been heard by the courts.
Author: Irene Zeitler
Firm: Freehills
Date: June, 2003
Times viewed: 519
International Organizations Take Aim at Australia's Asylum Policies
The Australian government has again drawn fire from international human rights groups for its Temporary Protection Visa (TPV) regime and its efforts to repatriate Afghan asylum seekers.
Author: Tim McDonald; editor Anne O'Donoghue
Date: June, 2003
Times viewed: 386
New Student Migration Rules Help Some, Hurt Others
New rules for skilled stream migration are scheduled to take effect on July 1, 2003. While the core requirements and the passing score on the points test will remain essentially the same, some details have changed that could significantly affect a number of applicants.
Author: Tim McDonald; editor Anne O'Donoghue
Firm: Immigration Solutions
Date: June, 2003
Times viewed: 497
Why Use a Scheme when a Takeover will Do?
Earlier this month, M.I.M. Holdings Limited applied to the Queensland Supreme Court for orders in relation to its proposed scheme of arrangement for the acquisition of all its shares by Xstrata plc. That application was opposed by local funds manager and 2.5 per cent shareholder, Platinum Asset Management, primarily on the ground that Xstrata's offer to acquire all of the shares in M.I.M. at $1.72 per share should have been undertaken as a takeover under Chapter 6 of the Corporations Act. The Court's decision on that application provides further guidance on the use of schemes to effect mergers.
Author: Guy Alexander
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 616
AWAs Live On
The Australian Industrial Relations Commission recently refused to terminate a series of Australian Workplace Agreements because of uncertainty of default arrangements in the workplace, and the potential risk of industrial disputation.
Author: Laura Colavizza
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 449
Preference Clauses are Out
The Australian Industrial Relations Commission has confirmed that preference clauses will be removed from certified agreements, but encouragement clauses are legitimate, confirming employees' freedom of association.
Author: Leo Whiteley
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 435
Medical Certificates – Can Employers Require More?
Unhelpful medical certificates that simply state an employee is 'sick' or has an 'illness' have long frustrated employers, who feel they cannot ask for more information or challenge the certificate if the genuineness of the claim is in doubt. But a recent Australian Industrial Relations Commission decision shows that it is aware of this problem and is willing to address it, if given the right opportunity.
Author: Suzanne Weingott
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 799
Linking Remuneration to Directors' Performance
Issues about director and executive remuneration have been raised again as a result of the recently passed Corporations Amendment (Repayment of Directors' Bonuses) Act 2003, as Partner Professor Bob Baxt and Lawyer Helen Horsington explain.
Author: Bob Baxt and Helen Horsington
Firm: Allens Arthur Robinson
Date: June, 2003
Times viewed: 552
Victoria’s Second Tranche of Civil Liability Reforms
Victoria’s legislative response to the public liability ‘crisis’ continues with the introduction of a second tranche of reforms. The Wrongs and Limitation of Actions Acts (Insurance Reform) Bill (2003) was introduced on 20 May 2003 amid much controversy.
Author: Joanne Girgenti and Ben Hall
Firm: Phillips Fox
Date: June, 2003
Times viewed: 1127
Does Artificial Feeding Constitute Medical Care? (Does Artificial Feeding Constitute Medical Care?)
In March 2003, the Victorian Civil and Administrative Tribunal’s (“the Tribunal”) decided to appoint the Public Advocate as BWV’s sole guardian. Recognising the broad legal implications in this case, the Public Advocate applied to the Victorian Supreme Court for a declaration as to whether artificial feeding and hydration via a tube is medical treatment or palliative care.
Firm: Phillips Fox
Date: June, 2003
Times viewed:
Evidence Law in Queensland (Evidence Law in Queensland)
This is an extract from Evidence Law in Queensland, by J R S Forbes, recently published by Law Book Co. For more information visitwww.lawbookco.com.au/products
Author: J R S Forbes
Firm: Law Book Co
Date: June, 2003
Times viewed: | | | | | May 2003 | | | |
Changes to Negligence Law in Western Australia
Following the Ipp Report into the law of negligence, most states are attempting major tort reform. This article briefly outlines the recent legislative reforms in Western Australia.
Author: Eugene Elisara and Pia Riley
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 1003
Telecommunications, technology and free trade agreements
The acceleration of cross-border trade has led Australia to engage in more formal trade alliances with its key trading partners. This article examines the telecommunications and technology aspects of some of these alliances.
Author: Ken Shiu
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 494
Professional Liability in Australia (Professional Liability in Australia)
This is an extract from Professional Liability in Australia, by Walmsley, Abadee and Zipser. For more information visitwww.lawbookco.com.au/products
Author: Walmsley, Abadee and Zipser
Firm: Law Book Co
Date: May, 2003
Times viewed:
Tax Treatment of Charterparties - ATO Releases Final Ruling on RWHT
The Australian Taxation Office (ATO) yesterday released Taxation Ruling TR
2003/2 Income Tax: the royalty withholding tax implications of ship chartering arrangements (the final ruling). The final ruling confirms that
Royalty Withholding Tax (RWHT) will only apply to bareboat charterparties (ie a charter by demise) and will not apply to "standard" time or voyage charterparties.
Author: Gavin Vallely
Firm: Middletons Lawyers
Date: May, 2003
Times viewed: 471
The International Ship and Port Facility Code ("ISPS Code")
In the aftermath of the terrorist attacks of 11 September 2001, the potential for ships to be used in terrorist activities has become increasingly apparent. The attack on the Limburg off Yemen in October 2002 only confirmed this threat.
Author: Adam Peppinck
Firm: Middletons Lawyers
Date: May, 2003
Times viewed: 432
ACT Budget Announcement: Stamp Duty Changes
On 6 May 2003, the Australian Capital Territory (ACT) Treasurer, Ted Quinlan, delivered the ACT Budget 2003-2004 (Budget). The Budget proposed a number of changes to the stamp duty regime.
Author: Steven Stevens
Firm:
Date: May, 2003
Times viewed:
Listed Company Acquisitions: To Scheme or Not to Scheme?
Recent M&A activity in Australia shows an increase in the use of schemes of arrangement to effect the acquisition of listed companies. This article looks at the key advantages of schemes and at recent deals where the use of schemes has been questioned.
Author: Rodd Levy, Tony Damian and Neil Pathak
Firm: Freehills
Date: May, 2003
Times viewed: 459
Pan product recall offers lessons for all
The recall of products by Pan Pharmaceuticals once again highlights the need for Australian suppliers and manufacturers to be aware of their consumer protection obligations. They also need to be prepared to handle a potential product recall. Partner Annette Hughes and articled clerk Vida Wongseelashote offer some guidelines.
Author: Annette Hughes and Vida Wongseelashote
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 729
The Cole Royal Commission Delivers its Final Report
In the first of a two-part series examining the final report of the Cole Royal Commission into the building and construction industry, Partner David Cross looks at the main recommendations in terms of industrial relations.
Author: David Cross
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 507
An Insured's Disclosure Obligations
The High Court of Australia decision last week in Permanent Trustee Australia v FAI identifies an important distinction between matters relevant to the risk insured and other 'matters of commerciality'. Special Counsel Nick Longley and Lawyer Chris Peadon look at this decision and identify some important implications.
Author: Nick Longley and Chris Peadon
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 671
The HIH legacy: Corporate governance and shareholder value
The HIH Royal Commission recently provided its answer as to why HIH collapsed and who was responsible.
Author: Michael Mills and Grant Marjoribanks with assistance from Christine Robertson, Philippa Stone and Do
Firm: Freehills
Date: May, 2003
Times viewed: 537
Offensive conduct and language crimes
In Australia, the criminal laws prohibiting offensive conduct and language are not tied to causing harm to others or to property, and consequently can be deployed in a broad range of situations.
Date: May, 2003
Times viewed: 1025
The future of gene patents in Australia?
An insight into the possible future of gene patents in Australia in light of the Australian Law Reform Commission's gene patenting inquiry.
Author: Gavin Recchia
Firm: Spruson & Ferguson
Date: May, 2003
Times viewed: 298
auDA endorses a new Code of Practice
On 31 March 2003, the .au Domain Administration's (auDA) Code of Practice Committee announced that it has finalised the new '.au Domain Name Suppliers' Code of Practice' (Code). The Code applies to registrars and sellers in the .au domain.
Author: E-Commerce Group
Firm: Freehills
Date: May, 2003
Times viewed: 331
Senate passes Copyright Amendment (Parallel Importation) Bill 2002
On 27 March 2003, the Senate passed the Copyright Amendment (Parallel Importation) Bill 2002 (Bill).
Author: E-Commerce Group
Firm: Freehills
Date: May, 2003
Times viewed: 332
An irrevocable authority for securing costs – is it irrecoverable?
The respondent solicitor, Leonard Cornelius Orr, had acted for a former client in Family Court proceedings and was owed an amount of costs by the client.
Author: Michelle Castle. Maurice Polkinghorne
Date: May, 2003
Times viewed: 915
The English Court of Appeal looks at security for costs
In Olatuwura v Abiloye [2002] EWCA Civ 998, the claimant issued proceedings against the defendant alleging non-payment of remuneration for work done for a firm of solicitors of which the defendant was the sole proprietor.
Author: Michelle Castle, Maurice Polkinghorne
Date: May, 2003
Times viewed: 481
Developments in costs in the Workers Compensation Commission
This article discusses two recent developments in costs in the Workers Compensation Commission. The first is the new regulations introduced on 28 February 2003; the second is the on-going challenge to the validity of the costs regulations.
Author: Michelle Castle, Maurice Polkinghorne
Date: May, 2003
Times viewed: 479
Countdown to FSR - The role of the responsible officer
Since the commencement of the FSR reforms the role, responsibility and the potential legal liabilities of responsible officers has been a recurring theme raised by financial service providers preparing to lodge licence applications. It is a question that has concerned directors, insurance underwriters of directors and officer’s liability covers, and the individuals nominated to assume the role of an RO.
Firm: Phillips Fox
Date: May, 2003
Times viewed: 1086
The HIH Report and CLERP 9
The Report of the HIH Royal Commission was tabled in the Federal Parliament in April. Richard Alcock and Carl Bicego explain that the report provides authoritative support for the one-size-does-NOT-fit-all policy foundation of the ASX Corporate Governance Council recommendations on principles of good corporate governance and best practice.
Author: Richard Alcock and Carl Bicego
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 1420
Dawson Review on the competition provisions of the Trade Practices Act 1974 (Cth)
Key Points:
Mergers (s 50): clearance process with three month time period, and direct application to the Tribunal for merger authorisations.
Misuse of Market Power (s 46): retaining existing "purpose" test.
Anti-competitive arrangements (s 45, s45A): notification process allowing "collective bargaining" for small businesses, widening joint venture exemption in respect of "price fixing".
Exclusive Dealings (s 47): "third line forcing" no longer illegal of itself, subject to substantially lessening competition test.
Penalties: greater of $10 million, three times the gain, or 10% of turnover.
ACCC: "trial by media" to be curtailed, require warrant for search and seize powers.
Author: David Syme
Firm: Middletons Lawyers
Date: May, 2003
Times viewed: 535
New notions of personal responsibility in NSW civil liability
Two recent decisions in New South Wales appear to signal the end of generous damages awards for those who suffer injuries in circumstances where the risk is inherent and the dangers are obvious and well-known. Lawyer Stephen Sander examines the decisions in the context of recent changes in community and judicial attitudes and legislative reforms in the area of civil liability.
Author: Stephen Sander
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 1072
Countdown to FSR - Reflections on the past and observations for coping with the future
The implementation of FSR has been a much greater task than first anticipated by many businesses that twelve months ago viewed the FSR reforms as merely the need for a licence and a change of name for an existing licence.
Firm: Phillips Fox
Date: May, 2003
Times viewed: 422
Fraudsters dodge damages
Employers cannot recover exemplary or punitive damages for an employee's breach of duty, according to the NSW Court of Appeal.
Author: Sarah Holthusen
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 586
Implicated by implied terms
Special care is needed when drafting enterprise bargaining agreements now that the Federal Court has accepted it is appropriate to imply terms in some circumstances. Jamie Wells reports.
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 760
Electronic lodgement with ASX - the deadline approaches
From 1 July 2003, all announcements and documents which listed companies are required to lodge with the Australian Stock Exchange ("ASX") must be lodged electronically.
Firm: Hopgood Ganim Lawyers
Date: May, 2003
Times viewed: 300
Impact of SARS in the workplace
The recent epidemic of Severe Acute Respiratory Syndrome (SARS) is a major cause for concern among employers. Employers, especially those with a large expatriate workforce, are faced with the dilemma of having to balance their competing interests of protecting their staff while ensuring they uphold their legal obligations.
Author: Anthony Wood and Jacqui Kaplan
Firm: Freehills
Date: May, 2003
Times viewed: 526
Employers beware - IT Intellectual Property Ownership, Employees and Contractors
Adequate protection of a business' intellectual property is not only valuable for income accrual through successful exploitation, but can also be a key indicator of the business' management performance, can add to the value of the business for the purpose of mergers or acquisitions, and may be used as security for loan or equity finance.
Author: Stuart Gibson and Virginia Wallin
Firm: Middletons Lawyers
Date: May, 2003
Times viewed: 735
Who is a parent?
The once inviolate concept of parentage has recently undergone some major
changes in Australia. Fathers are seeking to access DNA testing on their children and lesbian couples have been self inseminating using donated sperm. Our newsletter discusses the way the Family Court has approached these issues.
Author: Georgette Antonas and Erin Hawthorn
Firm: Middletons Lawyers
Date: May, 2003
Times viewed: 673
Superannuation and de facto relationships
The effect of Justice O’Brien’s decision is that defacto partners in Victoria may only be awarded a percentage of the total value of the weekly contributions made to a superannuation fund.
Author: Georgette Antonas
Firm: Middletons Lawyers
Date: May, 2003
Times viewed: 918
Testamentary Trusts
A testamentary trust is a trust created by a will. It is generally a discretionary trust – one where the Trustee has full discretion about who benefits, and to what extent, under the trust.
Firm: RetireLaw
Date: May, 2003
Times viewed: 5515
Superannuation…who gets it when you die?
When you die the Trustee of your super fund decides on the dependants who receive your super. Many people are blissfully unaware that their entire super, and often their insurance benefits, are up for grabs amongst the dependants they leave behind.
Firm: RetireLaw
Date: May, 2003
Times viewed: 831
Social Security Entitlements - tightened means testing
In recent years the Government has tightened means testing of income and assets for pensions with the aim of limiting entitlement to pensions and related benefits to those in genuine need.
Firm: RetireLaw
Date: May, 2003
Times viewed: 543
Powers Of Attorney
It is often necessary to give to someone else the legal authority to act for us in certain circumstances. This can be done using a power of attorney, a legal document that appoints one person (the attorney) to act on behalf of another (the principal or donor) in relation to their property and financial affairs.
Firm: RetireLaw
Date: May, 2003
Times viewed: 1779
Employers to make more frequent super payments
The Superannuation Guarantee (Administration) Act 1992 (SGAA) was introduced to ensure that employees receive superannuation support from their employer.
Author: Angela Petie and Skiahra Ireland
Firm: Deacons
Date: May, 2003
Times viewed: 539
Enduring Guardianship...Planning Ahead
We all prefer to decide for ourselves where we live and what medical treatment and services we have. Unfortunately this is not always possible. Every day people are involved in accidents or become sick. Sometimes this can lead to them being unable to make decisions for themselves.
Firm: RetireLaw
Date: May, 2003
Times viewed: 972
Buy/sell agreements
A buy/sell agreement is a contract usually entered into between business partners pursuant to which the surviving partners are bound to buy out the other partner's interest in the business should a specific event occur. Specific events which may trigger a buy/sell agreement include death, divorce, long-term disability, retirement or bankruptcy.
Firm: RetireLaw
Date: May, 2003
Times viewed: 2421
Business succession planning
What is business succession planning? This question was posed in a recent report* based on a nationwide survey of Australian Family Businesses? The authors concluded that in addition to a property or business entity being transferred, so is a family occupation, a family heirloom and family values.
Firm: RetireLaw
Date: May, 2003
Times viewed: 549
The Dawson Committee Report on the Trade Practices Act
On 16 April 2003, the Federal Government released the long-awaited Dawson Committee Report. The Report contains a number of recommendations for amendments to the Trade Practices Act to streamline or clarify the operation of the Act or to create some substantive new rights (such as the rights of small businesses to bargain collectively with larger companies). New measures governing the ACCC’s use of its information-gathering powers, the manner in which the ACCC uses the media and the general accountability of the ACCC are also proposed.
Author: Kathryn Edghill
Firm: Corrs Chambers Westgarth
Date: May, 2003
Times viewed: 522
Corporate Governance
The ASX Corporate Governance Council is to be commended for creating a well-articulated and comprehensive corporate governance framework with its corporate governance Best Practice Recommendations. The ASX now faces the challenge of preserving flexibility in the system, as Richard Alcock explains.
Author: Richard Alcock
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 625
A limited time for discrimination in NSW
The Administrative Decisions Tribunal of New South Wales has confirmed that a complainant enduring discriminatory conduct for an extended period may need the consent of the President to proceed with a complaint.1 Andrew Cardell-Ree reports.
Author: Andrew Cardell-Ree
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 513
Remedy after unfair redundancy selection process?
Last year, a Full Bench of the AIRC found that an employer had dismissed employees unfairly by considering their WorkCover history and injury status when implementing redundancies.1 The AIRC has now looked at the best way to deal with the breach.2 Natalie Shaw reports.
Author: Natalie Shaw
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 760
Any excess baggage?
Setting up a new business can have unexpected hurdles, especially if a link can be established with a former business at the same premises. Leo Whiteley reports.
Author: Leo Whiteley
Firm: Allens Arthur Robinson
Date: May, 2003
Times viewed: 491
$7000 ordered for compensation breach
If you thought that the Privacy Commissioner was a toothless tiger, think again.
Author: Karl Scott
Firm: redchip lawyers
Date: May, 2003
Times viewed: 497
Requirement to speak English is not race discrimination
A recent decision of the Equal Opportunity Tribunal of Western Australia (Tribunal) has found that a requirement to speak English in the workplace was not direct or indirect discrimination on the grounds of race.
Author: Scott Ellis and Damian Cronin
Firm: Freehills
Date: May, 2003
Times viewed: 471
Sexual discrimination and personal presentation of employees - What can be unfavourable treatment?
Can an employer have 'personal presentation' rules that prohibit the wearing of earrings by male employees, when the same rules do not apply to female employees? The Administrative Decisions Tribunal, New South Wales (Tribunal), has held that such rules resulted in the unfavourable treatment of male employees and were discriminatory under the Anti-Discrimination Act 1977 (NSW) (Act).
Author: Jenny Casilli and Kate Jenkins
Firm: Freehills
Date: May, 2003
Times viewed: 909
Apprehended bias in unfair dismissal arbitrations
A Full Court of the Federal Court (Court) has recently dismissed an application for prerogative relief against a Full Bench of the Australian Industrial Relations Commission (AIRC), which found that a senior deputy president (SDP) should have disqualified herself on grounds of apprehended bias during the arbitration of an unfair dismissal claim.
Author: Adam Strauss and Darren Perry
Firm: Freehills
Date: May, 2003
Times viewed: 500
Engagement of temporary flight attendants to cover strike not industrial action
In a recent decision, the Australian Industrial Relations Commission (AIRC) refused to issue orders that would have resulted in Qantas Airways Ltd (Qantas) being prevented from using casual or temporary flight attendants to cover services affected by protected industrial action.
Author: Nicholas Ogilvie
Firm: Freehills
Date: May, 2003
Times viewed: 358
The advantages of hiring an immigration lawyer
Immigration lawyers benefit their clients and the public interest by helping to reunite families, delivering economic benefits through skilled and business migration, and protecting those in danger through humanitarian programs.
Author: Tim McDonald and Anne O'Donoghue
Firm: Immigration Solutions
Date: May, 2003
Times viewed: 249
Governments rate poorly, courts rate well on human rights and migration
A group of legal luminaries have raised concerns over the politicisation of migration law internationally at this year's Commonwealth Law conference in Melbourne.
Author: Tim McDonald and Anne O'Donoghue
Firm: Immigration Solutions
Date: May, 2003
Times viewed: 445 | | | | | April 2003 | | | |
Commerce Act: Qantas & Air New Zealand draft determinations
The Commerce Commission and the Australian Competition and Consumer Commission (ACCC) released their draft determinations on the proposed Air NZ and Qantas alliance earlier this month, saying the proposed alliance, as it stood, was anti-competitive and would offer little benefit to consumers.
Author: Stephen Corones
Firm: Phillips Fox
Date: April, 2003
Times viewed: 462
Asset Protection & Tax Planning
In a recent decision of the Full Federal Court of Australia ( Commissioner of Taxation v Mochkin [2002] FCAFC15 it was held that the taxpayer conducted his business via a corporate entity for the dominant purpose of asset protection and limited liability and not the accompanying taxation advantages.
Author: Ian Paul
Firm: GWM Lawyers
Date: April, 2003
Times viewed: 422
Accountants - are you providing legal advice?
Section 48E of the Legal Profession Act 1987 (New South Wales) provides that “a person must not directly or indirectly do any general legal work, or any probate work, for a fee unless the person is a barrister or solicitor or unless the person has an incorporated legal practice and the work is done on its behalf by a barrister or solicitor.
Author: Ian Paul
Firm: GWM Lawyers
Date: April, 2003
Times viewed: 571
Corporate governance in the spotlight
Australian Stock Exchange Ltd (ASX) released on 31 March 2003 its Principles of Good Corporate Governance and Best Practice Recommendations (Principles & Recommendations).
Author: Lyn Nicholson & Naomi Stoneman
Firm: Ebsworth & Ebsworth
Date: April, 2003
Times viewed: 731
Regulators get tough on disclosure & corporate governance
On 31 March 2003 the ASX released measures aimed at the enhancement of corporate accountability and the adoption of a new framework for reporting.
Author: Andrew Goldstein
Firm: Ebsworth & Ebsworth
Date: April, 2003
Times viewed: 564
Record damages for medical negligence reduced on appeal
The full bench of the NSW Court of Appeal has reduced Ms Simpson’s damages by over $3.2 million, from $14.2 to $10,998.692 million. This remains the highest verdict to date in medical negligence proceedings and offers important guidance as to calculation of damages. Diamond v Simpson (by her tutor William Charles Simpson)
Author: Julie Hamblin and Kathryn Tanos
Firm: Ebsworth & Ebsworth
Date: April, 2003
Times viewed: 1067
The state of tort reform and the law of negligence
During 2002, the Federal Assistant Treasurer Senator Helen Coonan held meetings with all State and Territory Ministers with the aim of the producing a consistent approach to the reform of negligence laws throughout the country. Now more than one year since the first of those meetings, Mark Lindfield briefly considers the most recent legislative reforms in each jurisdiction and how they may affect product liability actions.
Author: Mark Lindfield
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 1279
Building & Construction Industry Royal Commission Report
On 26 and 27 March 2003, the Royal Commission into the Building and Construction Industry tabled its 22 volume final report. The report details the Royal Commission’s findings of fact in the states and territories and their recommendations.
Firm: Hopgood Ganim Lawyers
Date: April, 2003
Times viewed: 574
Conflicts of interest for scientific researchers
If you engage a researcher to conduct research and development, you should be wary of conflicts of interest, as Alex Fleming explains.
Author: Alex Fleming
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 464
2002 ISDA Master Agreement
The International Swaps and Derivatives Association, Inc. (ISDA) has recently published the first revision in 10 years of the standard form contract for documenting over-the-counter (OTC) derivatives. Given that the notional amount of outstanding OTC derivatives in 2001 was estimated at US$100 trillion, this is no small change. Tom Highnam queries the need for some of the changes proposed.
Author: Tom Highnam
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 2102
No duty to warn of obvious and inherent dangers of swimming in creek
This case deals with a tragic neck injury suffered by the plaintiff, Garry Mulligan, when swimming and diving in Coffs Creek near Coffs Harbour in early January 1999.
Firm: Abbott Tout
Date: April, 2003
Times viewed: 537
The Higgs Review - a counsel of best practice that can be intelligently applied?
On 20 January 2003, Derek Higgs published his report into the role and effectiveness of non-executive directors in the United Kingdom. The issues covered by the Higgs Review are within the broad range of issues currently being considered by the Working Groups of the ASX Corporate Governance Council. In this article, we consider the key recommendations of the Review.
Author: Tracey Renshaw
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 555
Stamp Duty - Stamp duty aspects of dealings with intellectual property
The amount of stamp duty payable when you deal with intellectual property will depend on the terms of the relevant transaction and instrument.
Author: Peter Allen
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 609
Implied contractual entitlement to redundancy pay - where to from here?
Should an employer worry when a redundant non-award employee – who is not covered by a company policy or a collective or individual employment agreement providing for severance payments – claims that he or she nevertheless has a contractual entitlement to severance payments?
Author: Ian Jordan
Firm: Deacons
Date: April, 2003
Times viewed: 1095
ASIC releases the final word on secondary sales
Companies involved in capital raising or issues of securities since the amendments to the Corporations Act (the Act) in 2001 will know only too well the difficulties associated with secondary sales by the recipient of issued securities.
Firm: Hopgood Ganim Lawyers
Date: April, 2003
Times viewed: 293
Duties of a chairman – the burden increases
Chairmen of public companies have responsibilities beyond that of other Directors.
Firm: Hopgood Ganim Lawyers
Date: April, 2003
Times viewed: 339
Copyright and software protection: is it working in China?
With the 2008 Beijing Olympic Games quickly approaching, intellectual property rights (IPR) protection in China is becoming an ever more important issue. Even though China has acceded to the World Trade Organisation (WTO) in December 2001, and has legislated substantially to reform its IPR protection laws, these reforms have not as yet stemmed all pirated computer software, Video CD's and DVD's from the Chinese market.
Author: Vincent Liu
Firm: Freehills
Date: April, 2003
Times viewed: 465
ASX Corporate Governance Council releases its Principles of Good Corporate Governance and Best Practice Recommendations
This articles explains the implications of the ASX Corporate Council's Principles of Good Corporate Governance and Best Practice Recommendations.
Author: Kathleen Farrell, Don Harding and Stephanie Spilsbury
Firm: Freehills
Date: April, 2003
Times viewed: 597
Privacy and financial institutions
The Privacy Commissioner recently released notes of two cases in which mishandling of consumer financial information resulted in complaints under the Privacy Act 1988 (Cth).
Author: Matthew Stutsel and John Natel
Firm: Freehills
Date: April, 2003
Times viewed: 486
Commercial Tenancy (Retail Shops) Agreements Act Review
The report of the Review Committee on the Commercial Tenancy (Retail Shops) Agreements Act, which has been awaited with some interest by the retail leasing industry, is now published.
Firm: Phillips Fox
Date: April, 2003
Times viewed: 1158
Counterfeit Certificates of Title
Land and Property Information (LPI) has informed us of an increase in fraudulent Certificates of Title (CT). Six counterfeit CTs have been discovered in New South Wales so far and the LPI are concerned that an organised scam has been detected.
Firm: Phillips Fox
Date: April, 2003
Times viewed: 483
Internet - The Gutnick decision and its implications for Australian trade mark law
The Australian High Court decision in Dow Jones & Company Inc v Gutnick provides a much-needed signpost on the way in which Australian courts will treat communication over the Internet for the purposes of trade mark law.
Author: Jim Dwyer and Marina Lloyd Jones
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 520
Independent experts under the spotlight
In a recent case, the Federal Court found an independent expert liable for misleading and deceptive statements in a prospectus. Michael Greig, Peter Tillman and Julian Donnan look at the ramifications of the ruling.
Author: Michael Greig, Peter Tillman and Julian Donnan
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 663
Striking the right balance: business will welcome the Dawson Report
The Government's release of the much awaited report from the Dawson Committee's review of Part IV of the Trade Practices Act will be warmly welcomed by most sections of the business community as a balanced response to the competing interests of the ACCC, large and small business and consumer groups.
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 545
Parallel importing of computer programs approved by government
The Commonwealth Government has just passed the Copyright Amendment (Parallel Importation) Bill 2002 which will allow the parallel importing of computer programs.
Firm: Abbott Tout
Date: April, 2003
Times viewed: 314
The Privacy Act and insurers
At the end of each year, the Commissioner releases anonymous case studies of complaints by individuals that his office has considered during the past year. Recently, the Commissioner released details of four privacy complaints from 2002, two of which were against insurers. The first complaint related to an inadequate privacy statement for a travel insurance product. The second arose out of the mistaken distribution of personal information on a dummy form.
Author: Dean Carrigan, Brigid Keary and Lucas Shipway
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 584
SARS Alert
Sudden Acute Respiratory Syndrome ("SARS") may be a new medical phenomenon that raises some old law. Old law is often worth revisiting.
Firm: Abbott Tout
Date: April, 2003
Times viewed: 330
Overview of civil liability reform in Australia
All States and the Australian Capital Territory have now introduced legislation reforming civil liability law. New South Wales has introduced the most extensive reforms which have been previously summarised (please refer to the links at the end of the Newsletter for details of the NSW reforms). This article looks at the changes in the other States and the ACT.
Firm: PricewaterhouseCoopers Legal
Date: April, 2003
Times viewed: 1450
Rehabilitation a two-way street
A recent decision of the Queensland Industrial Relations Commission emphasises that, while employers need to provide reasonable rehabilitation opportunities for injured employees, employees also need to cooperate. Lawyer John Naughton reports.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 639
US Supreme Court refuses to take the 'mickey' out of copyright
The US Supreme Court recently upheld a statute that increases the duration of copyright protection in the US by 20 years. The statute, the 1998 Copyright Term Extension Act (CTEA), was passed in 1998 by the Clinton Government, with the strong support of the Disney Corporation whose copyright in Mickey Mouse was due to expire.
Author: Mae Gan
Firm: Freehills
Date: April, 2003
Times viewed: 286
The limits of privilege: how to protect yourself when retaining external experts
Andrea Martignoni and Lucas Shipway consider the steps a company can take to ensure the maximum application of legal professional privilege to its communications with non-legal experts.
Author: Andrea Martignoni and Lucas Shipway
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 594
Prospects of remarriage not relevant to calculating financial loss
In August 1990, the Plaintiff’s husband was killed in a farming accident on a property owned by Mr Ingrilli. The Plaintiff brought proceedings against Mr Ingrilli pursuant to the Fatal Accidents Act 1959 (WA) which provides compensation to the relatives of a deceased for the loss of a pecuniary benefit reasonably expected but for the deceased’s wrongful death. At first instance the District Court of Western Australia assessed the Plaintiff’s pecuniary loss but discounted that amount by 5% to reflect the probability of her gaining financial support by remarrying. The Plaintiff appealed arguing that no discount should have been applied.
Firm: PricewaterhouseCoopers Legal
Date: April, 2003
Times viewed: 764
Takeovers Panel releases draft policy on broker handling fees
The Takeovers Panel has released a draft Guidance Note on broker handling fees. The draft note covers a range of issues associated with broker handling fees in takeovers, including the quantum and timing of such fees as well as disclosure issues for bidders. The Panel has requested submissions on its draft policy by 9 May 2003.
Author: Tony Damian, Rodd Levy and Robert Franklyn
Firm: Freehills
Date: April, 2003
Times viewed: 474
Supreme Court upholds Congress's 20-year extension for US copyright holders
In 1998, the US Congress passed the Copyright Term Extension Act (also commonly referred to as the 'Sonny Bono Copyright Extension Act', after the late entertainer Sonny Bono, who had lobbied for extending the duration of copyright).
Author: Prataal Raj
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 503
Special responsibilities of the chairman
John Warde and Andrew Byrne consider a recent case which arguably expands the duties of a company director who is also the company chairman.
Author: John Warde and Andrew Byrne
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 1025
Government starts action to stop 'Internet dumping'
The Federal Government is taking action to stop the practice of 'Internet dumping', which can cost consumers hundreds of dollars. Niranjan Arasaratnam and Tom Reid report on moves to safeguard against the practice.
Author: Niranjan Arasaratnam and Tom Reid
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 418
Can the Gulf War (2) be justified under International Law?
Academic support for war has been thin on the ground. The Howard government’s ‘legal case’ for war has attracted significant criticism from international jurists and members of the legal profession in Australia.
Author: Ben Clarke
Date: April, 2003
Times viewed: 847
Qualifying periods and probationary employment: is there a difference?
Recent Australian Industrial Relations Commission (“Commission”) judgments leave it unclear whether a probationary period of employment agreed between the parties is the same as or different to the qualifying period of employment required by the Federal Workplace Relations Act 1996(“WR Act”).
Author: Alan Grinsell-Jones
Firm: Deacons
Date: April, 2003
Times viewed: 1418
Transparent redundancy selection criteria must be applied
A recent Full Court of the Australian Industrial Relations Commission (“AIRC”) decision awarding compensation to retrenched employees illustrates the importance of employers applying transparent and objective redundancy selection criteria.
Author: Helen Karatasas
Firm: Deacons
Date: April, 2003
Times viewed: 690
Artifical positions for injured employees
The merit of having a clearly defined rehabilitation policy and the need to ensure that alternative or modified duties are always clearly offered as part of a programme to return the injured employee to pre-injury duties has been shown in a recent Full Court of the Federal Court decision. The decision has relevance to disability discrimination claims under equal opportunity legislation and unlawful termination claims under the Workplace Relations Act 1996.
Author: David McLaughlin
Firm: Deacons
Date: April, 2003
Times viewed: 607
Designs - A radical overhaul of Australian designs law is now in sight
The Designs Bill 2002 and the related Designs (Consequential Amendments) Bill 2002 propose significant - and long overdue - changes to law and practice in Australian designs. We look at the background to this reform, the main changes that the Bills set out and, crucially, the implications for design right owners and for industry in general.
Author: Chris Bird
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 553
Garden leave a viable option once more
The Federal Court has confirmed that employers will usually be entitled to direct a terminating employee to take garden leave during the notice period.1 Suzanne Weingott reports.
Author: Suzanne Weingott
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 1067
Employees reinstated after breaching alcohol policy
David Cross looks at a recent decision of the Australian Industrial Relations Commission that illustrates complexities in this area.1
Author: David Cross
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 607
Regulation of mortgage brokers - What will it mean for credit providers?
ASIC has released a report that examines the mortgage and finance broker industry and foreshadows significant regulation of that industry. Catherine Parr and Peter Jones highlight some important points arising from the report.
Author: Catherine Parr and Peter Jones
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 616
Retail leases - the new regime?
Although the new Retail Leases Act for Victoria is supposed to commence on 1 May 2003, there are still key features of the legislation that are uncertain.
Author: Campbell Paine
Firm: Phillips Fox
Date: April, 2003
Times viewed: 919
Fast tracking procedures and orphan drug programs in the USA, EU and Australia
Fast track procedures and orphan drug programs are effective ways for stimulating research into neglected diseases. Drugs with fast-track status help in national health care and the management of life threatening or serious diseases for which there is no effective therapeutic alternative. Orphan drug laws use tax credits and grants to promote research into drugs for diseases that affect comparatively few people and therefore do not generate a market return sufficient to motivate drug investment. Penny Holloway and Dorothy Pawlukowski outline the features of the fast-tracking and orphan drug approval procedures of the USA, EU and the current position in Australia.
Author: Penny Holloway and Dorothy Pawlukowski
Firm: Allens Arthur Robinson
Date: April, 2003
Times viewed: 1869
Rogue advisers and duties of licensees
On an almost weekly basis, ASIC has released news of various “rogue” advisers who have failed to act consistently with their duties and obligations under the law.
Author: Emily Nighjoy-Wong
Firm: Ebsworth & Ebsworth
Date: April, 2003
Times viewed: 569
New landscape for business migrants
Despite the fact that business and skill related migration is widely accepted as having positive economic outcomes for Australia, there is an ongoing tightening of requirements and policy relating to applying for and maintaining temporary and permanent business and skill related visas.
Author: Karl Scott
Firm: redchip lawyers
Date: April, 2003
Times viewed: 422
Gribbles case
The Full Federal Court has handed down another long awaited transmission of business decision in the case of Gribbles Radiology Pty Ltd v Health Services Union of Australia. The Full Court found that there was a transmission of business under section 149(1)(d) of the Workplace Relations Act between two outsource providers of radiology services even though there was no direct link between them.
Author: Rick Catanzariti
Firm: Phillips Fox
Date: April, 2003
Times viewed: 340
Sly copyright pirates slip up
There is an amazing amount of misinformation propagated about copyright infringement - particularly in relation to the infringement of copyright in software and computer programs. This misinformation is one explanation for the relatively poor understanding that most people have of the real ability copyright laws have to protect software.
Author: Karl Scott
Firm: redchip lawyers
Date: April, 2003
Times viewed: 397
Waivers no longer void, but will they have teeth?
Recent amendments to the Trade Practices Act 1974 permit companies supplying recreational services to exclude liability for personal injury.
Author: Michael Fredericks and Andrea Layt
Firm: Ebsworth & Ebsworth
Date: April, 2003
Times viewed: 888
ASX Corporate Governance Council releases best practice principles
The Council was formed in August 2002 as a direct response to recent and public failures of corporate governance. Its role is to establish world’s best practice principles of corporate governance for Australian companies.
Author: Charles Mendell
Firm: Phillips Fox
Date: April, 2003
Times viewed: 760
Domain names – the jurisdictional limits of courts
On 4 March 2003, Judge Moon of the US District Court for the Western Division of Virginia, dismissed a claim by Jerry Falwell to obtain control of the domain name bearing his name in the decision of Jerry Falwell v Gary Cohn and God.info, 2003, U.S. Dist.
Author: Daniel Lovecek
Firm: Freehills
Date: April, 2003
Times viewed: 338
Swatting Cybersquatters
In cyberspace, as in the real world, a good web address is highly sought after. Ideally, your business domain name should be identifiable with your business or trading name. But what happens if you have left it too late to stake your claim on your ideal domain name? Can you take action against a cybersquatter who has registered your business name as an Australian domain name (.com.au)?
Author: Karl Scott
Firm: redchip lawyers
Date: April, 2003
Times viewed: 360
Bye Bye Bonus?
Late last Thursday night Federal Parliament passed amendments to the Corporations Act designed to claw-back ‘unreasonable’ bonuses and other payments made to directors and their close associates. The claw-back provisions will operate as part of the framework of voidable transactions, already enshrined in the Corporations Act, and are designed to apply in the instance where the company which has paid the bonuses has subsequently failed.
Author: Charles Mendell
Firm: Phillips Fox
Date: April, 2003
Times viewed: 400
So you've got a problem? Complaints and grievances in Australian workplaces
Complaints, grievances and disputes are on the rise in Australian workplaces. Many disputes are ending up before quasi-judicial bodies such as anti-discrimination boards, federal and state industrial relations commissions and occupational health and safety tribunals, as well as in the courts themselves.
Author: Kate Jenkins
Firm: Freehills
Date: April, 2003
Times viewed: 526
Privacy invades employee relations
The Cadbury Scheweppes/Mitre 10 certification decision illustrates just how privacy requirements can infringe on HR/IR.
Author: Karl Scott
Firm: redchip lawyers
Date: April, 2003
Times viewed: 530
Get out of gaol free card revoked
There is an increasingly common perception in the community that bankruptcy has become the easy way out for recalcitrant debtors. Amendments to the Bankruptcy Act set to come into force later this year are aimed squarely at this perception and will effectively revoke the “get out of gaol free card” for debtors.
Author: Renee Butterfield
Firm: redchip lawyers
Date: April, 2003
Times viewed: 255
Will Australia follow the US on copyright extension?
The US Supreme Court has recently ruled that a controversial law extending copyright protection from 50 years to 70 years for most works of art, music and literature is constitutional. Whilst the decision is viewed as a major victory by entertainment corporations, online publishers and artists who want their works in the public domain see it as a major setback.
Author: Karl Scott
Firm: redchip lawyers
Date: April, 2003
Times viewed: 361
Gutnick rejected by America
A US Court decision has limited the jurisdiction for internet libel just two days after Australia's highest court ruled that, in defamation cases, an article posted on the internet is considered as published at the point where it is downloaded and read.
Author: Karl Scott
Firm: redchip lawyers
Date: April, 2003
Times viewed: 444
The complexity of executive employment in the spotlight
Hiring and firing senior executives can present employers with a minefield of potentially explosive questions. In order to maintain sanity, it is crucial to consider a number of key issues at every stage of the employment relationship, particularly when creating or interpreting the employment contract.
Author: Nicholas Ruskin
Firm: Phillips Fox
Date: April, 2003
Times viewed: 1101
Updates in Evidence
Recent decisions under s 9 of the NSW Act, s 79 and s 116 of the Commonwealth Act. Extracted from Uniform Evidence Law by Stephen Odgers SC, the definitive guide to New South Wales and Commonwealth evidence law which is now available as a subscription service in looseleaf and online.
Author: Stephen Odgers SC
Date: April, 2003
Times viewed: 568
Visa options for nurses
A growing shortage of nurses in the United States has forced many health care employers to look overseas for the nursing talent needed to care for American patients. But bringing those nurses to the US is challenging. The following is the first of a series of articles discussing how nurses can enter the US in either non-immigrant or immigrant status. This article focuses on the H-1B non-immigrant visa option.
Author: Gregory Siskind, Partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee USA
Date: April, 2003
Times viewed: 1449
United Kingdom - highly skilled migration program
On 28th January 2002, the British Government introduced its Highly Skilled Migrant Programme, a revolutionary scheme under which the UK hopes to attract the cream of the world's highly skilled to live in the United Kingdom.
Author: Graeme Kirk, Gross & Co, Solicitors,Suffolk UK
Date: April, 2003
Times viewed: 875
Metatags – the trademark you can’t see
In a recent UK decision, Reed Executive PLC –v– Reed Business Information Ltd, the complainant was an employment agency and the owner of the registered trademark “REED”. The defendant published magazines providing employment advertisement space, and commenced also publishing such advertisements on its new website.
Firm: Hopgood Ganim Lawyers
Date: April, 2003
Times viewed: 399
It’s not where you put it, it’s where it ends up that counts
In December 2002, the High Court made a potentially far reaching decision in Dow Jones –v– Gutnick. Relevantly, it was held in that case that the place of publication of an article published on the internet, is not where the material is uploaded (New Jersey, USA), but where it is downloaded (Melbourne, Australia).
Firm: Hopgood Ganim Lawyers
Date: April, 2003
Times viewed: 407
To eAgree Or Not To eAagree
If you have a web-based aspect to your business and online contracts or licences form part of your dealings with your customers, you should pay some serious attention to the question of when an online agreement is binding and when it is not.
Author: Scott Coulthard
Firm: Hopgood Ganim Lawyers
Date: April, 2003
Times viewed: 547
The introduction of a new domain name regime in Sweden
Network Information Centre Sweden AB (NIC-SE), which is the organisation that administers .se domain names, will be introducing a new regime for registration of .se domain names.
Author: Philippe Rodhain
Firm: Phillips Ormonde Fitzpatrick
Date: April, 2003
Times viewed: 344
National Arbitration Forum decision overturned
On 27 February 2003, Judge Leonie M. Brinkema delivered her judgment in Retail Services, Inc., et al. v Freebies Publishing, et al., 2003 U.S. Dist. The decision effectively overturns an earlier decision of the National Arbitration Forum (NAF).
Author: Daniel Lovecek
Firm: Freehills
Date: April, 2003
Times viewed: 453
New rules for unsolicited emails and SMS in the UK
On 4 March 2003, the eleventh edition of the Committee of Advertising Practice's Code (CAP Code) came into force.
Author: Daniel Lovecek
Firm: Freehills
Date: April, 2003
Times viewed: 418
HDTV changes become law
On 13 February 2003, the House of Representatives passed the Broadcasting Legislation Amendment (No 3) Bill 2002 (Bill), a week after it was passed by the Senate. The Bill was assented to on 26 February 2003 and came into effect on that date.
Author: Daniel Lovecek
Firm: Freehills
Date: April, 2003
Times viewed: 607
Was: apparently a great marketing ploy. Now: unwanted attention from the ACCC
At sale time, when retailers claim they are practically throwing away their products, it seems some also throw away their concern for the law.
Author: Verity Shepherdson
Firm: Freehills
Date: April, 2003
Times viewed: 460 | | | | | March 2003 | | | |
What is an 'industrial dispute'?
Sarah Holthusen reports on a recent decision of the Australian Industrial Relations Commission that considers the genuineness of a paper dispute.
Author: Sarah Holthusen
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 648
Recent developments in self managed superannuation
There have been some recent developments in self managed superannuation, which should be of interest to both trustees/members and advisers.
Author: Michael Hodgson, Phil Logan & Ellis Varejes
Firm: Abbott Tout
Date: March, 2003
Times viewed: 482
Resignation and constructive dismissal
The concept of 'constructive dismissal' has proven to be particularly vexing in the field of unfair dismissal.
Author: David Cross
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 1110
FSR Disclosure for Superannuation Trustees
Many superannuation trustees are not yet subject to the bulk of the new disclosure regime which commenced from 11 March 2002 under the financial services reforms, as a result of the transitional rules.
Author: Michael Hodgson, Phil Logan & Ellis Varejas
Firm: Abbott Tout
Date: March, 2003
Times viewed: 429
Directors' Responsibilities - Chairmen
The recent decision by Austin J in ASIC v Rich & Ors (NSW Supreme Court) establishes a new level of responsibilities to be carried out by chairmen of public companies. Austin J decided that the responsibilities and duties of chairmen extend beyond those of the other directors and beyond ceremonial and procedural matters such as the chairing of directors' and shareholders' meetings. The Court accepted the submissions of ASIC against John Greaves, former chairman of failed corporation One.Tel.
Author: David Syme and Brooke Troedel
Firm: Middletons Lawyers
Date: March, 2003
Times viewed: 698
Software developers may be liable for modifications and enhancements
SQL Server users might be inadvertently infringing Timeline, Inc patents, exposing them to further licence fees - even when they hold a current Microsoft licence. Ben Lehman and Melissa Foong report.
Author: Ben Lehman and Melissa Foong
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 497
The Architects Act 2002 and the Professional Engineers Act 2002
Both Acts, which took effect on 1 January 2003 endeavour to enforce more stringent registration procedures and professional standards, with transparency and consumer protection as the two key themes of the changes.
Firm: Hopgood Ganim Lawyers
Date: March, 2003
Times viewed: 405
When regretted decisions and poor contract management collide
While the law is generally not concerned with ethics in business, it does concern itself with broken contractual commitments. The distinction between business ethics and contractual breach can, however, become blurred as a decision handed down by Finn J in the Federal Court of Australia demonstrated.
Author: Irene Zeitler
Firm: Freehills
Date: March, 2003
Times viewed: 557
ASX clears the house
On 22 November 2002 ASX announced its decision to restructure its clearing and settlement functions, to create a single Central Counterparty (CCP) providing contract guarantee support for clearing across all ASX markets.
Author: Andrew Logan
Firm: Ebsworth & Ebsworth
Date: March, 2003
Times viewed: 822
The long weekend - reducing absentee rates
Research produced as a part of the recruitment company Hallis’s annual Contact Centre Turnover Report, has shown that employers who require employees to produce a medical certificate for sick days immediately proceeding and subsequent to weekends or public holidays have significantly lower rates of absenteeism than employers who don’t.
Firm: Hopgood Ganim Lawyers
Date: March, 2003
Times viewed: 383
Federal Privacy Commissioner finds privacy notification inadequate
The Federal Privacy Commissioner (FPC) has commenced issuing case notes on complaints that have come before him. These are contributing to the way in which privacy law and practice are evolving.
Author: Gayle Hill and Susan Coleman
Firm: Freehills
Date: March, 2003
Times viewed: 469
Employee considerations when buying a business
In a recent New South Wales Industrial Relations Commission Case – Nurhayat Erduran and The Menzies Group of Companies t/as Allcorp Pty Limited [2003] NSWIRComm11(7 February 2003) it was held to be unfair to place long serving employees who’s employment has only changed in the sense that there is a new employing entity, on a probationary period.
Firm: Hopgood Ganim Lawyers
Date: March, 2003
Times viewed: 463
A new model for biotech investing?
As returns plummet and investors grow skittish, venture capital investors focusing on life sciences are searching for a new model.
Author: Bruce Roberts
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 621
Law of negligence reform in Queensland
The reform of the law of negligence in Queensland has reached an important milestone with the introduction of the Civil Liability Bill 2003 into Parliament. Andrew Buchanan and Terence Walsh review the most important aspects of the legislation.
Author: Andrew Buchanan and Terence Walsh
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 1026
Expert witnesses – the Tyco case
Minnesota Mining & Manufacturing Company v Tyco Electronics Pty Ltd [2002] FCAFC 315 (the ‘Tyco Case’) is a recent decision of the Full Federal Court involving a claim for patent infringement and a cross-claim for revocation of the patent on the ground of obviousness.
Author: Cameron Murrell and Felicity Marks
Firm: Phillips Fox
Date: March, 2003
Times viewed: 433
Settling workers’ compensation claims – Proposed taxation changes
The Australian Taxation Office (‘ATO’) has issued a draft taxation ruling (TR 2002/D13) which will mean that a worker who receives a lump sum payment by way of redemption and/or work commutation of a claim for loss of income will pay tax on that lump sum. Until this draft ruling becomes final, lump sum redemption and/or commutation payments will continue to be ‘tax free’ in accordance with the ATO’s existing tax treatment of these payments.
Author: Michael Bruce
Firm: Phillips Fox
Date: March, 2003
Times viewed: 635
War and capital markets
Capital markets can be profoundly affected by the prospect of war and military action. Recent international events have significantly changed how issuers and underwriters need to approach the uncertainties associated with war and acts of terrorism. Warwick Painter and Mary-Jane Harvey examine the strategies that can be adopted now to cope with an increasingly uncertain future.
Author: Warwick Painter and Mary-Jane Harvey
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 570
Caution to directors of participating organisations
The NSW Court of Appeal has held that a charge against a Participating Organisation is not necessarily a bar towards a charge directly against the Affiliate.
Author: Andrew Goldstein
Firm: Ebsworth & Ebsworth
Date: March, 2003
Times viewed: 582
Do not delete your email ... yet
As spam and other uninvited emails are clotting up our inboxes, there is an increasing tendency to delete any ‘unimportant’ emails. However, deleting of such emails, regardless of the apparent nature of its content, may ultimately have legal consequences.
Author: Alex Claringbould
Firm: Deacons
Date: March, 2003
Times viewed: 398
Multiple memory cards in your laptop
Gateway computers has launched one of the first laptops which supports up to six different memory cards (Compact Flash, Secure Digital Memory, Memory Stick, SmartMedia, IBM Microdrive and Multimedia Card).
Author: Alex Claringbould
Firm: Deacons
Date: March, 2003
Times viewed: 354
Levi’s to keep secrets ... secret
The High Court of Zurich has rejected an appeal against a counterfeiting claim on the basis that the non-disclosure of secret marks by Levi’s violated the defendant’s rights, and upheld a conviction for selling counterfeit Levi’s jeans.
Author: Alex Claringbould
Firm: Deacons
Date: March, 2003
Times viewed: 441
Chairman's duties under the spotlight
Contrary to press commentary about Justice Austin's decision in the ASIC v Rich preliminary proceedings, the court did not hold that chairmen now have a duty to ensure that only financially competent people are appointed finance directors, that all statements to the ASX are accurate, and that a company takes reasonable steps to ensure that it maintains sufficient cash reserves to continue its existing operations. As Richard Alcock and Carl Bicego report, the court's substantive response on directors' duties is yet to be revealed.
Author: Richard Alcock and Carl Bicego
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 2230
Access to medicines and pharmaceutical patents
In 1997, the South African government enacted legislation to override pharmaceutical patent rights where certain medicines were too expensive or not meeting demand. Recently, while recognising the importance of intellectual property protection, the WTO has declared its support of every country’s rights to protect public health and promote access to medicines for all. However, on 20 February 2003, a draft resolution to allow developing countries access to generic pharmaceuticals to address public health problems was rejected. Kate Beattie reports.
Author: Kate Beattie
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 563
Copyright and Contract – your rights
You expend effort; you indulge your creativity; you create an original literary, dramatic, musical or artistic work.
Author: Cameron Murrell and Felicity Marks
Firm: Phillips Fox
Date: March, 2003
Times viewed: 442
Colour as a Trade Mark – The Philmac Case
Colour alone may be registered as a trade mark. This was made explicit by the Trade Marks Act 1995. Phillips Fox, in acting for Philmac Pty Ltd in a successful Federal Court appeal against the Registrar of Trade Marks (Philmac Pty Ltd v The Registrar of Trade Marks [2002] FCA 1551) has played a leading role in this case where the Court has developed further guidelines for those seeking to register colour trade marks.
Author: Cameron Murrell and Felicity Marks
Firm: Phillips Fox
Date: March, 2003
Times viewed: 519
New Designs Bill to be enacted
The new Designs Bill 2002 (the ‘Designs Bill’) is currently before Federal Parliament. Once enacted, it will replace the Designs Act 1906 (the ‘current Designs Act’).
Author: Cameron Murrell and Felicity Marks
Firm: Phillips Fox
Date: March, 2003
Times viewed: 252
Illegal acts of employees - are you liable?
On 6 February 2003, the High Court considered the issue of vicarious liability in the case of New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4 (6 February 2003).
Author: Jill Tudberry
Firm: Hopgood Ganim Lawyers
Date: March, 2003
Times viewed: 680
Three warnings and you're out - debunking the myth
Gone are the days where an employee must be given three written warnings before they can be terminated without repercussion or without regard to the actual severity of the performance, capacity or behavioural issues.
Author: Jill Tudberry
Firm: Hopgood Ganim Lawyers
Date: March, 2003
Times viewed: 465
New California disclosure law of concern for Australian companies doing business in the golden state
A Californian law, which commences operation on 1 July 2003, may have far reaching consequences for Australian organisations doing business in that state. Organisations who ignore these disclosure requirements may face exposure to civil lawsuits in California.
Author: Michael Fernon and Burt Hill
Firm: Freehills
Date: March, 2003
Times viewed: 476
US draft National Strategy to Secure Cyberspace sounds a warning bell
On 18 September 2002, the US president released a draft of the National Strategy to Secure Cyberspace which was developed by Richard Clarke, the Presidential Advisor on cyberspace security. Public submissions were due back to the Administration by 18 November 2002, with the final report expected to be released early this year.
Author: Michael Fernon and Burt Hill
Firm: Freehills
Date: March, 2003
Times viewed: 332
APRA and IT Governance
This article looks at APRA's proposal to include IT governance as part of its prudential audit process. This is reflective of a wider government concern and recent legal developments. Companies should adopt IT governance strategies to ready themselves for an APRA audit.
Author: Michael Fernon
Firm: Freehills
Date: March, 2003
Times viewed: 551
Addictive nature of British American Tobacco v McCabe - the appeal
In the July 2002 edition of the Deacons Insurance Update, we reported on the decision of Eames J against British American Tobacco Australia Services Limited (“BAT”), in which the Court found that, by virtue of BAT’s “document retention policy” in which many relevant documents were destroyed, the plaintiff was unable to obtain a fair or proper trial.
Author: Patrick Montgomery
Firm: Deacons
Date: March, 2003
Times viewed: 630
Federal Court Decision on Tribunal's Role
The Federal Court has upheld a decision of the Superannuation Complaints Tribunal in Cameron v Board of Trustees of the State Public Sector Superannuation Scheme. In so doing, it has given some guidance on the role of the Tribunal.
Firm: Abbott Tout
Date: March, 2003
Times viewed: 490
Further Guidance from the Federal Court
The Federal Court has upheld an application against the decision of the Superannuation Complaints Tribunal in Military Superannuation and Benefits Board of Trustees No.1 v Philip Graham Drake. The trustee argued that the Tribunal had no jurisdiction or power to make the determination it made.
Firm: Abbott Tout
Date: March, 2003
Times viewed: 439
Your security - is the bank guarantee adequate?
Most landlords request security from a tenant – commonly this is provided by a bank guarantee.
Firm: Hopgood Ganim Lawyers
Date: March, 2003
Times viewed: 676
New information security standards for US federal agencies may affect Australian businesses
New legislation, signed into law in December 2002, as part of the E-Government Act 2002, will require US government agencies or organisations contracted to provide government services, to adhere to mandatory information security standards for their information systems. These information security standards are expected to be rolled out sometime over the next 18 months.
Author: Burt Hill, Michael Fernon, Adrian McCullagh and Martin McEniery
Firm: Freehills
Date: March, 2003
Times viewed: 501
OECD Guidelines: a 'Culture of Security'
In July 2002, the OECD published a new set of guidelines in relation to Information security, called, 'Guidelines for the Security of Information Systems and Networks'. They replace the OECDs' existing guidelines on security of information systems, which was published in 1992.
Author: Burt Hill, Michael Fernon, Adrian McCullagh and Martin McEniery
Firm: Freehills
Date: March, 2003
Times viewed: 299
Comparative Advertising (and staying friends with the ACCC)
When advertising your product, differentiating your brand from your competitors is critical.
Author: David Thomas and Chris Nikou
Firm: Middletons Lawyers
Date: March, 2003
Times viewed: 765
Duties of a non-executive chairperson
The New South Wales Supreme Court recently handed down a decision in ASIC v Rich [2003] NSWSC 85 on this topic.
Author: Stephen Walmsley and Stephanie Spilsbury
Firm: Freehills
Date: March, 2003
Times viewed: 519
Not so obvious after all: the Astra Omeprazole Patent
On 12 December 2002, the High Court held that the Aktiebolaget Hassle (Astra) patent was valid.
Author: Sue Gilchrist
Firm: Freehills
Date: March, 2003
Times viewed: 482
Increased responsibilities for company chairmen?
In his judgment in ASIC v. Rich [2003] NSWSC 85 delivered on 24 February, Justice Austin of the New South Wales Supreme Court accepted a claim by ASIC that Mr John Greaves, former nonexecutive chairman of OneTel Pty Ltd, had special responsibilities beyond those of the other non-executive directors of the company by reason of his positions as Chairman of the Board and the Finance and Audit Committee, and also by reason of his high qualifications, experience and expertise relative to the other directors.
Firm: PricewaterhouseCoopers Legal
Date: March, 2003
Times viewed: 669
On-sale of shares issued under employee share and option plans
Peter Jones and Daniel Cunningham explain that employers need to take particular steps to ensure that their employees can sell recently issued shares.
Author: Peter Jones and Daniel Cunningham
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 659
Queensland native title - back to the future
As a result of legislation introduced in the Queensland Parliament on 25 February this year, Queensland's native title 'Alternate State Provisions' for mining tenements will be replaced by the Commonwealth 'right to negotiate' regime. The native title scheme will revert to the Commonwealth Native Title Act 1993 provisions for tenement applications made after 31 March 2003, reports Ben Zillmann.
Author: Ben Zillmann
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 566
Workplace policies: are they binding?
David Cross reviews two recent cases of the Australian Industrial Relations Commission that illustrate the difficulties employers face in arguing that policy handbooks form a part of a contract of employment.
Author: David Cross
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 753
Employer beware - ownership of innovations
Companies without an intellectual property clause in their employment contracts may find that employees retain ownership of any innovation they develop. This may apply even if employees use company equipment and time to develop their ideas.
Author: Bryan Belling
Firm: Abbott Tout
Date: March, 2003
Times viewed: 489
ASIC provides guidance on content of PDSs
ASIC has announced the results of its ongoing surveillance and compliance program under the new product disclosure regime.
Firm: Abbott Tout
Date: March, 2003
Times viewed: 518
When is partial incapacity deemed to be total incapacity?
The current ACT Workers' Compensation Act 1951 (No.2) (the current Act) provides for circumstances in which a partially incapacitated employee is deemed to be totally incapacitated for the purposes of workers' compensation.
Author: Susan Norton and Daniel Heard
Firm: Phillips Fox
Date: March, 2003
Times viewed: 539
Refusal of medical treatment - Clarification of Rights and Responsibilities
The extent of a patient's right to refuse medical treatment has been a vexed question for many years. Similarly, the extent of a health professional's obligation to provide medical treatment to patients under their care has been the subject of numerous complex scenarios confronting health professionals and healthcare organisations. Whilst the issues are relatively clear in the context of a competent patient, as a result of increasing legal recognition being afforded to ethical principles of individual autonomy, this has not been the case where a patient no longer has the capacity to exercise their autonomous rights.
Author: Suzie Linden
Firm: Phillips Fox
Date: March, 2003
Times viewed: 2293
Launch of the .nl Dispute Resolution Policy
On 29 January 2003, a new domain name regime was introduced in the Netherlands.
Author: Philippe Rodhain
Firm: Phillips Ormonde Fitzpatrick
Date: March, 2003
Times viewed: 646
Staying on after your studies: avoiding the pitfalls
One advantage of studying in Australia is that after you finish your degree, you may be eligible to apply for permanent residency through one of several visa categories.
Author: Tim McDonald & Anne O'Donoghue
Firm: Immigration Solutions
Date: March, 2003
Times viewed: 477
Permanent Residency through study: a beginner's guide
Australia is a popular destination for degree-seeking students from abroad because its educational institutions rate very well internationally. A degree from an Australian university can help expand a student's employment opportunities both in Australia and abroad.
Author: Tim McDonald & Anne O'Donoghue
Firm: Immigration Solutions
Date: March, 2003
Times viewed: 519
New era for company chairmen?
This week Mr. Justice Austin in the Supreme Court of New South Wales found that ASIC had a reasonably arguable case against John Greaves, the former non-executive chairman of One Tel. Mr. Greaves, had sought to have ASIC’s claim dismissed but Justice Austin refused that application. ASIC has not sought to take any action against the other non-executive directors at this stage.
Author: Robert Tobias, Charles Mendel and Michele Kramer
Firm: Phillips Fox
Date: March, 2003
Times viewed: 431
Losing your identity ... the hotmail way
A cautionary tale to all webmail users comes from the experience of former Hotmail account holder Andrew Trousdale.
Author: Emma Van Haaster
Firm: Deacons
Date: March, 2003
Times viewed: 553
Discovery from foreign-based parent company
A recent Federal Court decision provides some insight into circumstances whereby an Australian subsidiary company involved in Australian court proceedings was ordered to obtain documents relevant for discovery from its foreign-based parent company.
Author: Geoff Wilson
Firm: Deacons
Date: March, 2003
Times viewed: 486
After-work drinks – an employment issue
Williamson engaged Kortegast to carry out construction work. At 7.00 pm, Kortegast had finished his work for the day and had joined Williamson and his co-worker for a few beers at the site when he fell from the first floor extension onto the concrete floor, 2.8 metres below.
Author: Marnie McConnell
Firm: Deacons
Date: March, 2003
Times viewed: 614
Is your computer hiding information?
Companies (and individuals) disposing of old computer systems should be conscious of the potential for sensitive information to remain long after its apparent deletion.
Author: Alex Claringbould
Firm: Deacons
Date: March, 2003
Times viewed: 284
Licensing exemptions for FFSP
On 19 December ASIC released “Licensing: Discretionary Powers – Foreign Financial Services Providers”. This Policy Proposal Paper (PPP) seeks industry and consumer comment on ASIC’s plans to facilitate entry into the Australian market by foreign financial services providers (FFSPs) who are regulated by overseas authorities. Comments are sought by 28 February and ASIC plans to issue a final policy statement during the second quarter of 2003.
Author: Ann Newbrun and Alisa Kwan
Firm: Ebsworth & Ebsworth
Date: March, 2003
Times viewed: 548
ASIC updates PS 146
Policy Statement 146, which sets out minimum training standards for those providing financial product advice to retail clients, has been updated in response to requests from industry for further clarification.
Author: Andrew Logan
Firm: Ebsworth & Ebsworth
Date: March, 2003
Times viewed: 643
Remedying a defective redundancy
Employers undertaking redundancy programs may find some comfort in the approach of a Full Bench of the Australian Industrial Relations Commission in Smith v Pacific Coal Pty Ltd, when refusing to reinstate redundant employees.
Author: John Naughton
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 538
Who will share the pain of damages?
Section 52 of the TPA prohibits corporations from engaging in commercial conduct that is misleading or deceptive. Damages can be recovered under s 82 if a contravention of s 52 is proven. If you’ve been in the situation where you or your organisation is being sued for damages under s 52, you
might have considered who else might be partially or wholly responsible for the potential damages award.
Author: Brian Thomas and Susan Yee-Kong
Firm: Ebsworth & Ebsworth
Date: March, 2003
Times viewed: 593
Accommodating disabled employees
Natalie Shaw discusses further the decision of the New South Wales Administrative Decisions Tribunal in Perlidis v Brambles Security Service (reported in Julian Riekert's article above). This decision shows that employers must make inquiries about internal services and facilities for accommodating workers with disabilities.
Author: Natalie Shaw
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 599
Land and Environment Court Amendment Act 2002 - changes effective 10 February 2003
The Land and Environment Court Amendment Act 2002 provides that in Class 1 proceedings in the Land and Environment Court the parties may agree, or the Registrar in the absence of any such agreement may at the first or subsequent callovers determine, that the proceedings be held as an on-site hearing under section 35B of the Land and Environment Court Act 1979.
Author: Jane Hewitt
Firm: Abbott Tout
Date: March, 2003
Times viewed: 483
Balancing OHS and discrimination obligations
Three recent decisions of the New South Wales Administrative Decisions Tribunal (NSWADT) have emphasised the often conflicting obligations imposed on employers in relation to their employees and the workplace.
Author: Julian Riekert
Firm: Allens Arthur Robinson
Date: March, 2003
Times viewed: 679
Casenote: EF Cultural Travel Bv -ats- Zefer Corporation and Explorica Inc
A recent case in America highlights the need for adequate terms of use for public website owners and access control mechanisms.
Author: Adrian McCullagh
Firm: Freehills
Date: March, 2003
Times viewed: 319 | | | | | February 2003 | | | |
Compliance programs - are they necessary?
Having an effective compliance program is increasingly important for Australian corporations. Not only is the ACCC eagerly promoting their use, but Courts also acknowledge the importance of having an effective compliance program.
Author: Melissa Lammers and Benjamin Phelps
Firm: Ebsworth & Ebsworth
Date: February, 2003
Times viewed: 687
The latest word on how to lawfully compete in Australia
In this very important and long awaited decision, the High Court has made some significant statements in relation to aggressive market practices in Australia. In this case they relate to allegations of misuse of market power by Boral under s 46 of the Trade Practices Act.
Author: Susan Yee-Kong
Firm: Ebsworth & Ebsworth
Date: February, 2003
Times viewed: 530
The price, the whole price and nothing but the price!
The Federal Court recently rejected the Australian Competition and Consumer Commission’s (ACCC) assertion that a supplier of goods or services must specify a GST inclusive price in its advertising and dealings with customers. In doing so, the Court gave an insight into how it views qualifications to statements as to the price of goods or services.
Author: Brian Thomas
Firm: Ebsworth & Ebsworth
Date: February, 2003
Times viewed: 552
Job applicant receives $7000 compensation for referee's privacy breach
In a case recently reported by the Federal Privacy Commissioner (FPC) a Federal Government employee has received compensation for breach of privacy in respect of the disclosure of health information.
Author: Gayle Hill
Firm: Freehills
Date: February, 2003
Times viewed: 510
Sun–Microsoft litigation takes yet another turn
On 21 January 2003, Judge Motz of the US District Court, Maryland, granted an injunction sought by Sun Microsystems (Sun), compelling Microsoft to carry Sun's Java until the resolution of Sun's antitrust case against Microsoft, which is not expected to be resolved for at least one to two years.
Author: John Natal
Firm: Freehills
Date: February, 2003
Times viewed: 298
Australian ISPs hit with copyright notices
On 15 January 2002, the WA Internet Association (WAIA) warned that cease and desist letters are being served on Australian internet service providers (ISPs) by representatives (such as Media Force) of American recording industry corporations.
Author: John Natal
Firm: Freehills
Date: February, 2003
Times viewed: 356
Health legislation - a round-up
A range of Commonwealth, State and Territory legislation relating to health, public liability and tort reform has recently been passed by parliaments around the country. Many of these new laws commenced operation at the start of 2003. Ben Arnall reports on recent legislative developments in the health field.
Author: Ben Arnall
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 736
Gene patents subject to major ALRC inquiry
Erica Davis and Dr Trevor Davies discuss the terms of reference of the Australian Law Reform Commission's new inquiry into intellectual property rights over genetic materials and genetic-related technologies, announced on 18 December 2002.
Author: Erica Davis and Dr Trevor Davies
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 561
Making disputes procedures work
Even the best industrial relations practitioner cannot draft an enterprise agreement that covers every workplace contingency over the life of the agreement. Most agreements last for two to three years. The workplace is constantly changing with internal and external pressures, many unforseen at the time the agreement is made.
Author: Richard Dalton
Firm: Freehills
Date: February, 2003
Times viewed: 605
Third-generation contraceptives case dismissed
A widely-publicised class action by consumers of the 'third-generation' combined oral contraceptive has failed in the United Kingdom with the High Court rejecting consumer claims that the third-generation contraceptive carries an increased risk of cardiovascular injuries, when compared with second generation contraceptives. Caroline Ryan reviews the ruling
Author: Caroline Ryan
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 583
What price a partner?
Traditional assumptions about marriage and the role of women were examined by the High Court in respect of the basis upon which to assess damages to a surviving spouse and dependants in the wrongful death of a spouse. The essential question was whether, and to what extent, in assessing damages to a surviving spouse under fatal accidents legislation, account should be taken of the chance of the surviving spouse re-marrying and therefore obtaining some financial benefi t that would offset or diminish the claimed loss.
Author: Amanda Underwood
Firm: Deacons
Date: February, 2003
Times viewed: 527
All the way with the TPA
The High Court recently clarified the interaction between sections 82 and 87 of the Trade Practices Act 1974 (Cth) (“TPA”) in allowing an appeal from the Queensland Supreme Court of Appeal. We reported on the Court of Appeal decision in the April 2001 edition of the Deacons Insurance Update.
Author: Paul Telford and Dianna Henry
Firm: Deacons
Date: February, 2003
Times viewed: 467
ACCC issues warning to domain name registrants
In the last edition of the IT & eCommerce e-Bulletin, we alerted you to the activities of a company that had sent misleading letters to registrants in the .com.au domain space.
Author: Sophie Johnson
Firm: Phillips Fox
Date: February, 2003
Times viewed: 263
Australia: New second level domain names for States
The body responsible for the administration of .au domain names, auDA, has announced that it will introduce a new second level domain system, for Australian States and Territories.
Author: Sophie Johnson
Firm: Phillips Fox
Date: February, 2003
Times viewed: 304
US: Court finds clickwrap arbitration clause invalid
A US Federal Court has found that an arbitration clause in a US company’s clickwrap agreement is unfair and invalid.
Author: Sophie Johnson
Firm: Phillips Fox
Date: February, 2003
Times viewed: 335
Bankruptcy Reforms
Legislation has recently been passed to amend the Bankruptcy Act 1966.
Author: Denielle Campey
Firm: Thomson Playford
Date: February, 2003
Times viewed: 579
Directors' duties
In view of recent problems in some large corporations, it is useful to reconsider the legal requirements for directors to avoid situations of possible direct or indirect conflict of interest.
Author: John Martin
Firm: Thomson Playford
Date: February, 2003
Times viewed: 659
Extensions of term of pharmaceutical patents
The system that provides for the extension of term of pharmaceutical patents in Australia is currently being reviewed by the Federal Government. Shyama Jayaswal - a patent attorney and lawyer with a technical background in organic chemistry - looks at the issue and its possible ramifications.
Author: Shyama Jayaswal
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 653
UDRP does not apply to bad faith renewal of a domain name registration
The purpose of the Uniform Dispute Resolution Policy, known as the UDRP (hereafter the Policy), is to determine disputes relating to the registration or acquisition of domain names in bad faith.
Author: Philippe Rodhain
Firm: Phillips Ormonde Fitzpatrick
Date: February, 2003
Times viewed: 457
Nervous shock in the High Court
The High Court recently handed down its eagerly anticipated decisions in two cases heard together – Annetts v Australian Stations Pty Limited (“Annetts”) and Tame v State of New South Wales (“Tame”) – relating to psychiatric injury.
Author: Barry Richardson
Firm: Deacons
Date: February, 2003
Times viewed: 1178
Don't defame Aussies
The High Court of Australia has held that overseas publishers who place defamatory statements about Australian citizens on the internet can be sued in Australia.
Author: Simon Rigby
Firm: Thomson Playford
Date: February, 2003
Times viewed: 429
What's in a name?
A business name is the name under which a business operates. Registration of the name merely identifies the owners of a business, particularly for the purposes of debt or recovery proceedings.
Author: Sara Kerum
Firm: Thomson Playford
Date: February, 2003
Times viewed: 440
Resale Price Maintenance
Colgate-Palmolive recently came under scrutiny from the ACCC over resale price maintenance.
Firm: Hopgood Ganim Lawyers
Date: February, 2003
Times viewed: 665
Superannuation Complaints Tribunal
There has been some publicity in both the general press and the industry about three recent decisions of the Superannuation Complaints Tribunal, and how they may impact on the vexed question of who "owns" a surplus in a defined benefit plan - the employer or the members.
Author: Phil Logan
Firm: Abbott Tout
Date: February, 2003
Times viewed: 466
Employers Give a Sigh of Relief
After a long wait, the High Court has finally affirmed that the limitation period for which injured workers can seek compensation remains at 3 years (Limitations of Actions Act 1974) and has not been altered by the WorkCover Act 1996. Most importantly, time commences from the date of the cause of action arises (usually the date of the accident) not the date that Workcover issue the Notice of Assessment.
Author: Amanda Karpeles
Firm: Abbott Tout
Date: February, 2003
Times viewed: 508
Public Key Technology (PKT) and privacy
PKT is a form of cryptography that underpins ‘digital signatures’. It is used to authenticate, verify the integrity of, and limit opportunities to dispute content and authorship of an electronic communication. It can also be used to can preserve the confidentiality of a message.
Author: Matthew Hall
Firm: Phillips Fox
Date: February, 2003
Times viewed: 482
Access deficit discussion paper released
On 6 February 2003, the Australian Competition and Consumer Commission (ACCC) announced the release of a discussion paper, The Need for an ADC for PSTN Access Service Pricing (Paper), which considers the merits of including an access deficit and other contributions in charges Telstra's levies its competitors for access to its fixed network.
Author: John Natal
Firm: Freehills
Date: February, 2003
Times viewed: 338
ACCC releases telecoms information disclosure report
On 24 January 2003, the Australian Competition and Consumer Commission (ACCC) released the report, Regulatory Principles for Public Disclosure of Record-Keeping Rule Information (Report), which sets out a framework for the further public release of telecommunications information.
Author: John Natal
Firm: Freehills
Date: February, 2003
Times viewed: 354
Provision of domestic assistance for injured workers
In tandem with the removal of common law damages for domestic assistance, the Government introduced Section 60AA of the Workers Compensation Act 1987. The section now provides for the payment of domestic assistance claims as part of the statutory scheme of compensation for injuries.
Author: Andrew Bland
Firm: PricewaterhouseCoopers Legal
Date: February, 2003
Times viewed: 466
New geographic 2LDs
Until recently, domain names that were the same as Australian geographic names could not be registered, for the public policy reason that no individual should own an Australian geographic name on the Internet. However, this has caused difficulty for many entities or individuals whose corporate or trading name is the same as an Australian placename.
Author: Sara Kerum
Firm: Thomson Playford
Date: February, 2003
Times viewed: 471
Meaning of 'control'
It is common in agreements for one party to be given a veto power over decisions. 50/50 joint venture decisions on material matters often require unanimity. An important question arises as to whether control must be positive or whether negative power over decision making, the right to veto, constitutes control.
Author: David Zwi
Firm: Thomson Playford
Date: February, 2003
Times viewed: 573
Is your interest in licensed premises registered?
A number of Deacons’ clients have recently received letters from the Liquor Licensing Division (“LLD”) concerning registration of their financial interest in licensed premises that have ceased trading.
Author: Tom Young
Firm: Deacons
Date: February, 2003
Times viewed: 448
Ms Cole and the alcohol
Queensland’s Chevron Hotel case stretches the duty of care owed by publicans to their drunken patrons so far that publicans must ensure that patrons have a safe journey home.
Author: Tom Young and Michelle Russell
Firm: Deacons
Date: February, 2003
Times viewed: 831
New obligations for beverage labelling in SA
Beverage retailers and manufacturers are probably aware of the recent changes made to the South Australian refund scheme that applies to some beverage containers. But does your business know what its new obligations are? Does it comply yet?
Author: Eleanor Scacco and Verity Shepherdson
Firm: Freehills
Date: February, 2003
Times viewed: 431
Web accessibility for the disabled
Does your web site allow access by disabled people? Do you know that to fail to do so is illegal, unless it will impose an unreasonable burden on the organisation? The Sydney Organising Committee for the Olympic Games (SOCOG) found this out when it was successfully sued (and fined) over disability access to its web site.
Author: Matthew Hall & Mimi Curran
Firm: Phillips Fox
Date: February, 2003
Times viewed: 466
The new superannuation scheme: "step by step"
Amid some fanfare, just over 18 months ago, the long course of reform regarding the treatment of superannuation in family law matters took a dramatic new step with the introduction of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) and the introduction of a new Part VIIIB into the Family Law Act 1975. However, although practitioners and the Court alike have had a long period within which to "come to grips" with the new legislation, it is clear that there are still many uncertainties in the way in which these matters should be approached, the information that both we as lawyers and the Court alike will need and the advice that we should be offering our clients.
Author: Alison Ross
Firm: Hopgood Ganim Lawyers
Date: February, 2003
Times viewed: 654
De facto Relationship Law Update
A decision of the Supreme Court of Queensland has been delivered in Chapmann v. Green, one of the first major decisions under Part 19 of the Property Law Act (Qld), which establishes a regime for property adjustment of de facto partners. Although these provisions came into effect on 21 December 1999, there have been no significant reported decisions under the new laws.
Firm: Hopgood Ganim Lawyers
Date: February, 2003
Times viewed: 1129
Team members expected to pull their weight
Employers are not obliged to alter a roster to make exceptions for employees with disabilities. Suzanne Weingott reviews the decision of the Full Federal Court in Cosma v Qantas Airways Ltd.
Author: Suzanne Weingott
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 612
It's just not cricket - ambushing the ambushers in South Africa
This article looks at new anti-ambush marketing legislation introduced in South Africa ahead of the ICC Cricket World Cup, compares it to the position in Australia, and suggests what practical and other steps official sponsors (and event organisers) can take to combat ambush marketing.
Author: Max Duthie
Firm: Freehills
Date: February, 2003
Times viewed: 562
CLERP 9
As part of its Corporate Law Economic Reform Program (CLERP), the Federal Government has responded to certain accounting and disclosure issues which have arisen out of the collapse in Australia and overseas of a number of prominent companies.
Author: David Zwi
Firm: Thomson Playford
Date: February, 2003
Times viewed: 645
An exercise of discretion
The recent case of BRK (Bris) Pty Ltd v Commissioner of Taxation provides a timely reminder to ensure that trust deeds are drafted correctly and trusts are properly administered.
Author: Andrew Bristow and Angus Davison
Firm: PricewaterhouseCoopers Legal
Date: February, 2003
Times viewed: 748
Hyperlinking – still licence free after BT fails to enforce patent
In March 2002 British Telecommunications (BT) had brought a test case in the US in an attempt to claim that its patent gave it a monopoly to hyperlinking technology.
Author: Sophie Johnson
Firm: Phillips Fox
Date: February, 2003
Times viewed: 427
Non-delegable duty not an absolute for criminal acts
Does a school authority have a non-delegable duty, or alternatively is it vicariously liable, for sexual assaults committed by its employee teachers on students? On considering this question six of the seven Justices of the High Court of Australia concurred that a school authority does not owe an absolute non-delegable duty of care to a student sexually abused by a teacher.
Author: Sophie Pennington
Firm: Ebsworth & Ebsworth
Date: February, 2003
Times viewed: 1391
Ordinary and customary turnover of labour
Simon Dewberry reports on a recent Queensland Industrial Relations Commission decision that is relevant to employers in industries that rely upon periodically rotating contracts.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 615
Financial Services Reform - More guidance for Advisers
In keeping with its commitment to provide industry participants with continued guidance on the financial services regime, the Australian Securities and Investments Commission (ASIC) has released its latest policy proposal paper, Licensing: Financial product advisers – Conduct and disclosure. The paper deals with some of the conduct and disclosure obligations under the Corporations Act 2001 (as amended by the Finance Services Reform Act 2001) that arise in respect of the provision of financial product advice to retail clients. In particular, the proposed guidance covers the law in relation to preparing and providing a Financial Services Guide, suitable personal advice and a Statement of Advice.
Author: Jim Bulling and Ben Plotnik
Firm: Middletons Lawyers
Date: February, 2003
Times viewed: 677
Are you a small business that must comply with the new privacy requirements?
All small businesses are not automatically exempt from obligations under the Privacy Act 1988 (Cth) and in particular the National Privacy Principles (the “Act”). Some small businesses should already be complying with the National Privacy Principles. Others had until 21 December 2002 to comply. Only “small business operators” as defined by the Act are fully exempted from having to comply.
Author: Peta Maloney and Catheirne Dickson
Firm: Price Waterhouse Coopers
Date: February, 2003
Times viewed: 472
Workplace privacy
The Federal Privacy Commissioner has issued an Information Sheet about the privacy obligations of organisations involved in the sale or purchase of a business, and the Victorian Law Reform Commission has published an Issues Paper on Workplace Privacy. Rosemary Bryant-Smith reports.
Author: Rosemary Bryant-Smith
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 566
Causal connection required to invoke indemnity clause
Service providers can take some comfort from the case of Coleiro which supports the view that a temporal connection between the performance of the service and the loss sustained is insufficient to invoke an indemnity clause.
Author: Rosan Santangelo
Firm: Ebsworth & Ebsworth
Date: February, 2003
Times viewed: 767
Petrol discount offers and third line forcing
Third line forcing is unlawful under the Trade Practices Act, irrespective of its effect on competition.
Firm: Hopgood Ganim Lawyers
Date: February, 2003
Times viewed: 707
Property adjustments now easier
A Practice Note has been issued outlining how consent orders may be obtained from the Supreme or District Court in de facto proceedings under the Property Law Act.
Firm: Hopgood Ganim Lawyers
Date: February, 2003
Times viewed: 709
Prohibition of Human Cloning Act 2002 – summary of principal provisions
Kirraley Bowles provides a summary of the principal provisions of the Prohibition of Human Cloning Act 2002.
Author: Kirraley Bowles
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 801
A matter of personal responsibility - not just something for the company to take care of
In late 2002, the Federal Court handed down a decision highlighting that the courts and the regulators consider compliance is something for individuals within a company as well as the companies themselves.
Author: Eleanor Scacco
Firm: Freehills
Date: February, 2003
Times viewed: 361
Broadband strategies for Australia
Our telecoms update service considers the Broadband Advisory Group's (BAG) recent report, Australia's Broadband Connectivity, which collects various strategies and visions for Australia to become a world leader in the availability and effective use of broadband. BAG's new vision and its recommendation to form a broadband strategy implementation group may redress recent criticism of too many reports produced about broadband with too little action.
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 501
Queensland adoption law review
The Queensland Government has announced the first major review of adoption laws since the 1960’s.
Firm: Hopgood Ganim Lawyers
Date: February, 2003
Times viewed: 1212
A compliance program is enough to keep us safe - isn't it?
Compliance is not static. Indeed, at the very core of compliance is the idea that the system should be constantly monitored and continually improved. Processes should be regularly examined to pick up any points of weakness or breach and where necessary, new processes instituted or other improvements made. It must be a system that outsiders will consider effective.
Author: Eleanor Scacco
Firm: Freehills
Date: February, 2003
Times viewed: 397
Food for thought
Julian Riekert reports on a recent case highlighting the dangers that follow the adoption of a generous position or arrangement regarding rehabilitation of injured employees. The case involved the decision by George Weston Foods, concerned about the rising cost of WorkCover premiums and the number of its employees on restricted duties for injury-related reasons, to review its workforce.
Author: Julian Riekert
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 594
ASX Listing Rule 3.1 – Continuous Disclosure, Continuously Evolving
The Australian Stock Exchange (ASX) has announced that effective 1 January 2003, the ASX Listing Rules will be substantially amended to impose additional requirements on listed entities. The amendments, yet to be released in final form, will affect the manner, form and timing of the disclosures that listed companies are required to make to the ASX.
Firm: Hopgood Ganim Lawyers
Date: February, 2003
Times viewed: 1017
Australian broadband report released
On 22 January 2003, the Minister for Communications, Information Technology and the Arts, Senator Alston, announced the release of the Broadband Advisory Group's (BAG) report into broadband in Australia, Australia's Broadband Connectivity (Report).
Author: John Natal
Firm: Freehills
Date: February, 2003
Times viewed: 377
High Court finds that aggressive pricing was competitive and lawful
Boral Masonry Ltd (“Boral”) has won its High Court appeal against a Full Federal Court finding that it had engaged in a misuse of market power during a period of aggressive price-cutting in the early 1990s.
Author: Paul Martin and Alex Sceales
Firm: Corrs Chambers Westgarth
Date: February, 2003
Times viewed: 462
Some FSR Issues Made Clearer
The implementation of the new financial services regime has resulted in the release of thousands of pages of legislation, regulations and Australian Securities and Investments Commission (ASIC) Policy Statements, Class Orders and Guidance Papers. However, despite all the documentation some practical problems have emerged since the commencement of the new financial services regime on 11 March 2002. This article will identify some of these teething problems and discuss the solutions and guidance provided by the regulator.
Author: Jim Bulling and Ofir Kranz
Firm: Middletons Lawyers
Date: February, 2003
Times viewed: 406
AFSL Guidance for Super Fund Trustees
ASIC has issued a guide to assist trustees of superannuation funds in completing their licence applications.
Author: Jim Bulling and Anita Ioannides
Firm: Middletons Lawyers
Date: February, 2003
Times viewed: 610
Renewing your domain name - important lessons
Despite the relative newness of the web, domain names have developed into an important part of any company’s marketing and promotional strategy. Despite this companies are still overlooking some of the important aspects of domain name management, including the all important renewal procedures.
Author: Alex Claringbould and Emma van Haaster
Firm: Deacons
Date: February, 2003
Times viewed: 420
No liability for drug addiction
The Plaintiff was a passenger in a vehicle driven by the Defendant, which was involved in a serious motor vehicle accident. The Plaintiff sustained severe whiplash and significant ongoing neck, back and knee pain.
Firm: PricewaterhouseCoopers Legal
Date: February, 2003
Times viewed: 650
Protected picketing still a possibility
Unions will be encouraged to pursue a strategy of lawful picketing as a species of protected action after a Federal Court ruled that picketing can be industrial action.
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 786
Bold and Beautiful for all the Days of our Lives
Tired of missing your favourite sopa operas because you are at work? Well, thanks to Sony Pictures Digital Entertainment soap fans will be able to tune into soapies from their desktops, as part of an on-demand subscription service on its enthusiast site, Soapcity.com (www.soapcity.com).
Author: Shaul Jontof-Hutter
Firm: Deacons
Date: February, 2003
Times viewed: 895
ASIC crackdown on executive option disclosure
ASIC is taking increasingly high profile action against companies it views as not adequately disclosing the true worth of benefits being given to executives.
Author: Reece Walker
Firm: PricewaterhouseCoopers Legal
Date: February, 2003
Times viewed: 625
Consultation and redundancy
The Australian Industrial Relations Commission has found that the failure to consult with a redundant employee rendered the termination unfair.
The obligation to consult when an employee who is being made redundant requires more than informing an employee of the redundancy.
Author: Tracey Cross
Firm: Freehills
Date: February, 2003
Times viewed: 704
Has the future of pre-employment testing arrived?
In August 2002 the Australian Law Reform Commission published a Discussion Paper on the Protection of Human Genetic Information, which considers issues relating to the collection and use of genetic information in the workplace.
The Discussion Paper sets out concerns regarding the existing anti- discrimination framework and recommends important changes to protect job applicants and employees.
Author: Robyn McIlroy
Firm: Freehills
Date: February, 2003
Times viewed: 579
Colouring in a grey area of trade mark law
A recent decision of Justice Mansfield of the Federal Court has clarified the circumstances in which a single-colour trade mark will be found to be registrable. This is the first decision by an Australian Court relating to single-colour trade marks and it may open the way for applications for single-coloured trade marks to be accepted more readily by the Trade Marks Office.
Author: Bill Ladas and Scott Widmer
Firm: Freehills
Date: February, 2003
Times viewed: 544
Use of Architect’s Drawings
The NSW Court of Appeal considered whether an architect (“TVH”) could succeed in an action for unjust enrichment against a purchaser of land (under a mortgagee sale) (“Mass Constructions”) who completes a development according to the architect’s drawings in circumstances where those drawings were licensed to the defaulting mortgagor (“Citron”).
Author: Peta Maloney and Irene Wales
Firm: PricewaterhouseCoopers Legal
Date: February, 2003
Times viewed: 733
Management buy outs and directors' duties
Management buy out (“MBO”) transactions inherently have a greater potential to cause directors to be placed in conflict of interest situations. Failure of directors to address these issues may stall an MBO transaction unnecessarily.
Author: John Cannings and Megan Lee-Joe
Firm: PricewaterhouseCoopers Legal
Date: February, 2003
Times viewed: 839
Government responds to radiocomms reports
Our telecoms update considers two regulatory reports tabled in Parliament in December 2002 - the Productivity Commission's Radiocommunications Inquiry Report and the Radiocommunications Review Report - and the Government's response. Accepting a majority of the reports' recommendations, the Federal Communications Minister, Senator Richard Alston, said that required amendments to the Radiocommunications Act 1992 would be developed in 2003.
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 515
ATO cannot access privileged documents
The High Court recently ruled to protect the legal professional privilege that exists between lawyers and their clients, preventing the ACCC from gaining access to privileged legal advice. However, the ATO may still be able to compel the production of confidential communications between taxpayers and their accountants in tax investigations, as such communications are not privileged. The key to protecting your advice is to make sure that it's covered by legal professional privilege.
Author: Sue Williamson & Brad Schwarz
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 707
ETPs explained
The Australian Taxation Office has issued a draft tax ruling that clarifies when a payment to an employee is an eligible termination payment attracting concessional tax treatment, reports Suzanne Weingott.
Author: Suzanne Weingott
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 569
Bargaining fee clauses in NSW
A Full Bench of the NSW Industrial Relations Commission has determined that a bargaining agent's fee clause is a legitimate matter, able to be part of a NSW enterprise agreement. Whether such clauses are allowable must be considered on a case by case basis. Paul Moorhouse reviews the decision.
Author: Paul Moorhouse
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 553
ACCC discussion paper on bundling
This considers the ACCC draft information paper Bundling in telecommunications markets released on 13 January 2003.
Firm: Allens Arthur Robinson
Date: February, 2003
Times viewed: 490
Amendments to the Body Corporate & Community Management Act
Amendments to the BCCM Act have been introduced into the Queensland Parliament and it is anticipated that the changes will commence in the early part of 2003.
Firm: Hopgood Ganim Lawyers
Date: February, 2003
Times viewed: 594
Queensland domestic violence laws widened
The scope of Queensland’s domestic violence laws has been extensively widened with changes extending the protection of the Act, retitled the Domestic & Family Violence Protection Act, to persons in non-spousal, domestic relationships.
Firm: Hopgood Ganim Lawyers
Date: February, 2003
Times viewed: 741
Family Court to determine de facto property matters
On 8 November 2002, it was announced that the power to determine de facto property matters would be given to the Commonwealth Government.
Firm: Hopgood Ganim Lawyers
Date: February, 2003
Times viewed: 301
Confidentiality of legal advice
The High Court of Australia recently handed down an important judgment in The Daniels Corporation International v ACCC, which confirms the right not to disclose certain communications passing between lawyers and their clients.
Firm: Thomson Playford
Date: February, 2003
Times viewed: 593
Regulatory schemes in the US and Australia compared
While the US and Australia differ in the way they regulate migration assistance, the lesson to be learned from both systems is essentially the same: lawyers are better regulated and are likely to provide a higher level of service than other kinds of migration consultants.
Author: Tim McDonald & Anne O'Donoghue
Firm: Immigration Solutions
Date: February, 2003
Times viewed: 448 | | | | | January 2003 | | | |
Protection of human genetic information
In August 2002, the Australian Law Reform Commission (ALRC) and the National Health and Medical Research Council (NHRMC) issued Discussion Paper 66: Protection of Human Genetic Information. Submissions in response closed on 29 November 2002.
Author: Melinda Keating
Firm: Ebsworth & Ebsworth
Date: January, 2003
Times viewed: 586
Family Medical History and Third Party Consent
Peter MacKenzie in his recent article for the Insurance Law Journal points out that the NPPs introduced by amendments to the Privacy Act 1988 potentially affect an insurer’s right to underwrite, an example being in relation to genetic testing.
Author: Soraya Mir & Peter MacKenzie
Firm: Ebsworth & Ebsworth
Date: January, 2003
Times viewed: 630
Health Records and Privacy
On 25 September 2002 the NSW Health Records and Information Privacy Act 2002 (the “HRIP Act”) was assented to. However, the HRIP Act has not been proclaimed and the Office of the NSW Minister for Health, Mr Craig Knowles has indicated that commencement might not occur until late 2003 or early 2004.
Author: Soraya Mir
Firm: Ebsworth & Ebsworth
Date: January, 2003
Times viewed: 560
Succession to what? A surprising extension to the definition of transmission of business
It is now well understood that where there is a transmission of a business from the vendor of that business to the purchaser continuity of employment is preserved for all employees who transfer with the business and become employees of the purchaser. Typically, this occurs when a business is acquired as a going concern.
Author: Angela Petie
Firm: Deacons
Date: January, 2003
Times viewed: 943
Unfair contract jurisdiction
Two recent decisions of the NSW Industrial Relations Commission have confirmed that federal award employees can bring unfair contract claims under section 106 of the Industrial Relations Act 1996 (NSW). Paul Moorhouse reports.
Author: Paul Moorhouse
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 667
Bargaining fee stand-off continues
A Full Bench of the Australian Industrial Relations Commission has refused to accept demands for bargaining agent's fees as legitimate matters for enterprise bargaining, further driving a wedge between the approaches of the Commission and the Federal Court. Jamie Wells reports.
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 514
Implications for ASIC after Daniels
The recent High Court decision in Daniels is likely to have significant implications for ASIC investigations.
Author: Tim Bednall
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 723
Takeover relief for investment funds
While ASIC has announced that it will not give broad relief to investment funds, it may give case-by-case relief to index funds, on the basis that an index fund has a limited discretion in the acquisition and disposal of securities. This decision follows its review of submissions made in response to the ASIC discussion paper (Investment funds: takeovers and substantial holding relief) of November 2001.
Author: Jeremy Low
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 553
Misuse of market power - what it means for your business
A corporation could be found to have breached the law if it has misused its market power. This can be the case even when the corporation does not possess a majority share within that market.
Author: David Hing and Simon Florance
Firm: PricewaterhouseCoopers Legal
Date: January, 2003
Times viewed: 704
Checklist for directors' duties
ASIC v Adler is a clear reminder that companies and directors must ensure that an effective corporate governance framework is in place to safeguard a company against any improper actions by directors. The process should have sufficient checks and balances to ensure that the system is not easily bypassed.
Author: Sarah Segalla
Firm: PricewaterhouseCoopers Legal
Date: January, 2003
Times viewed: 1448
To seal or not to seal
Historically, common seals were the standard means by which a company would execute documents and they were required to be affixed to deeds. The Company Law Review Act 1988 abolished the requirement that companies have a seal and also the need for deeds to be executed under seal.
Author: Andrew Bristow and George Roins
Firm: PricewaterhouseCoopers Legal
Date: January, 2003
Times viewed: 1340
Important changes to NSW defamation law - January 2003
The Defamation Amendment Act 2002 (NSW), which will commence operation on a date to be proclaimed, effects a number of potentially important changes to the law of defamation in New South Wales. Roy Williams reviews the key points of the legislation.
Author: Roy Williams
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 668
The limitations of expert evidence in patent proceedings
As a result of a number of recent Australian cases, the scope for expert opinion evidence in patent cases has been strictly limited. There are several requirements that must be met if expert opinion evidence is to be admitted by the Court.
Author: Paul Massey
Firm: Spruson & Ferguson
Date: January, 2003
Times viewed: 470
Can a single colour be registered as a trade mark?
A recent Federal Court decision provides some useful guidance on the registrability of a single colour as a trade mark.
Author: Gerard Skelly
Firm: Spruson & Ferguson
Date: January, 2003
Times viewed: 437
Analysis on onus of proof in trade mark oppositions following Waltzing Matilda dispute
In Lomas v. Winton Shire Council and The Waltzing Matilda Centre Ltd [2002] FCAFC 413 (11 December 2002) the Full Federal Court issued its first decision arising from an appeal in trade mark opposition proceedings under current legislation. The joint judgement contains a useful analysis on the onus of proof in oppositions.
Author: Gerard Skelly
Firm: Spruson & Ferguson
Date: January, 2003
Times viewed: 490
Shopping centre - trading hours and leases
Trading penalty clauses are not widely considered in many tenancy decisions, but nonetheless while many retail leases contain damages clauses there are questions about whether they can be applied.
Author: Dennis Bluth
Firm: Abbott Tout
Date: January, 2003
Times viewed: 597
Internal dispute resolution procedures in sporting organisations
A recent NSW Supreme Court decision has emphasised the importance of sporting organisations having clear and well-drafted rules governing internal appeals avenues and procedures, explain Tim Golder and Sarah Walters.
Author: Tim Golder and Sarah Walters
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 800
Controlling the (un)controllable - negligence in shopping premises
A recent case in Queensland highlights the potential liability of retail operators for negligence arising from the actions of their customers. Michelle Davies reports on a Queensland Court of Appeal ruling which demonstrates how courts are more than willing to make store occupiers responsible when reasonably foreseeable injuries occur on their premises.
Author: Michelle Davies
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 1047
Patents - Is it time to retread your thinking on employee inventions?
The Patent Office holds that an employer will not in every situation have rights of assignment to an invention of an employee.
Author: Robert Cooper and Clare Cunliffe
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 605
Anti-piracy - PlayStation® national anti-piracy campaign
A brief glimpse at what is believed to be the largest anti-piracy campaign undertaken by a single company in Australia, and which has attracted significant media attention over the past three years.
Author: Miriam Stiel
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 670
Golden years in the sun: retiring to Australia
In addition to its good health infrastructure, Australia’s moderate winters have made it an increasingly popular destination for retirees from abroad.
Author: Tim McDonald and Anne O'Donoghue
Firm: Immigration Solutions
Date: January, 2003
Times viewed: 2261
Nurses wanted: immigration rules used to fill nursing shortages
Because Australia faces a serious shortage of qualified nurses, the Immigration Department has formulated its policies to attract people in the profession.
Author: Tim McDonald and Anne O'Donoghue
Firm: Immigration Solutions
Date: January, 2003
Times viewed: 623
Privacy and the sale and purchase of a business
In the year since the Act commenced, big business has some unexpected privacy issues requiring the exercise of care by both buyers and sellers.
Author: Soraya Mir & Damian Sloan
Firm: Ebsworth & Ebsworth
Date: January, 2003
Times viewed: 596
Defining your brand
An overview of what searches need to be done before a trade mark is registered, what to watch out for to ensure you do not lose your trade mark rights, and generally how to get better value from your brand.
Author: Martin Pollock
Firm: Spruson & Ferguson
Date: January, 2003
Times viewed: 380
More small businesses hit by privacy laws
From 21 December 2002 the Privacy Act 1988 (Cth) applies to a broader array of businesses than under the initial regime.
Author: Tanya Richards-Pugh
Firm: Ebsworth & Ebsworth
Date: January, 2003
Times viewed: 608
Invisible trade mark infringement
A recent UK decision highlights the difficulties of applying trade mark law to the various uses of trade marks on the internet, in this case, metatags.
Author: Ian Reid and Juliana Nam
Firm: Ebsworth & Ebsworth
Date: January, 2003
Times viewed: 531
Lease incentives and GST
Draft Goods and Services Tax Ruling 2002/D7 issued by the Australian Taxation Office on 30 October 2002 explains the ATO’s thinking on the GST treatment of inducements provided for a lease of commercial premises.
Author: Penel Snyman
Firm: Abbott Tout
Date: January, 2003
Times viewed: 847
Telling it like it is without fear of being sued
Trading penalty clauses are not widely considered in many tenancy decisions, but nonetheless since the commencement of the Freedom of Information Act (FOI Act) in 1989 there has been a significant increase in the flow of information between all levels of government and members of the community.
Author: Damian Ward
Firm: Abbott Tout
Date: January, 2003
Times viewed: 482
Maternity leave and work/life balance
Employers should be taking little comfort from the Howard Government’s apparent internal wrangling and division over the issue of paid maternity leave. It is one that will ultimately become reality for businesses and as such employers should be taking the opportunity now to consider how they will approach and address it.
Author: Seamus Burke
Firm: Abbott Tout
Date: January, 2003
Times viewed: 611
Optionholders and demergers
The entitlement of optionholders under a demerger or spin-out proposal raises many questions. In this article, we consider possible solutions taking into account the new demerger tax relief and the position taken by ASX.
Author: Colin Smith
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 624
Internet - The new auDA Dispute Resolution Policy
The Australian domain name administrator, auDA, has recently introduced a new Dispute Resolution Policy to apply to .au domain names registered under and governed by its domain name regime, which will have significant implications for Australian businesses with an Internet presence.
Author: Andrew Wiseman and Andrew Byrne
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 623
Copyright - Clicking through copyright exceptions
The Copyright Law Review Committee's report Copyright and Contracts.
Author: Hugh FitzSimons
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 547
Designs - Massaging Australia's design infringement laws
The Federal Court recently handed down a decision that is relatively uncommon in Australian design law by finding that a registered design had been infringed.
Author: Tim Golder and Ben Arnall
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 626
The perils of IT litigation: Memorex v National Databank
It seems that dissatisfied customers of IT products and services are becoming more litigious. In a previous article, we reported on a successful action by RACV against Unisys for alleged contravention of section 52 of the Trade Practices Act, negligent statement and breach of contract.
Author: Irene Zeitler
Firm: Freehills
Date: January, 2003
Times viewed: 384
Yorta Yorta native title case
On 12 December 2002, the High Court handed down its decision in Yorta Yorta Aboriginal Community v Victoria (Yorta Yorta).
Author: Ken Jagger
Firm: Freehills
Date: January, 2003
Times viewed: 2837
Conducting random searches
Employers may have the right to conduct searches of their employees' bags in order to protect company property from theft.
Author: Tracey Cross
Firm: Freehills
Date: January, 2003
Times viewed: 643
Family Law Superannuation Changes
On 28 December 2002 amendments to the Family Law Act made by the Family Law Legislation Amendment (Superannuation) Act 2001 come into effect. The amendments are significant.
Author: Joanne Dwyer and Anne MacNamara
Firm: Corrs Chambers Westgarth
Date: January, 2003
Times viewed: 482
Federal Trade Commission investigates Microsoft: misleading statements in privacy policy
A recent settlement between the United States Federal Trade Commission (FTC) and Microsoft highlights the responsibility of corporations to ensure that their privacy policies are not misleading or deceptive.
Author: Christine Ecob
Firm: Abbott Tout
Date: January, 2003
Times viewed: 486
Contract and copyright - a love/hate relationship?
The concept of copyright has always been a balancing act between on the one hand, the need to foster and reward creativity and innovation, and on the other, ensuring access to information.
Author: Catherine Ekambi
Firm: Abbott Tout
Date: January, 2003
Times viewed: 454
Tougher penalties under new occupational health and safety laws
This newly created obligation requires employers to continually consult with their employees on Occupational Health and Safety matters, and for some to establish OHS committees and representatives.
Author: Heechung Sung
Firm: Abbott Tout
Date: January, 2003
Times viewed: 575
Yorta Yorta - Some further consideration
The Yorta Yorta decision points to the High Court taking a more literal interpretation of native title legislation and as such, may mean future claimants will have to place greater emphasis on proving unbroken custom and traditions that pre-date British sovereignty. Andrew Buchanan provides a more detailed review of the decision.
Author: Andrew Buchanan
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 563
FAQs about superannuation under new Family Law amendments
Amendments to the Family Law Act and related legislation that superannuation be treated as communal property, means that superannuation funds must play a formal part in the process of splitting superannuation benefits on the breakdown of a member's marriage, as Lois Dannecker explains.
Author: Lois Dannecker
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 857
High Court says Federal Court wrong on 'test for obviousness'
The High Court of Australia has just ruled that the Federal Court had asked the wrong questions on the issue of 'obviousness' in relation to patents revocations. The High Court found that if the right question was asked, the invention was not obvious.
Author: Michael Dowling and Cynthia Cochrane
Firm: Allens Arthur Robinson
Date: January, 2003
Times viewed: 565 | | | | | December 2002 | | | |
Queensland's native title mining regime rises from the ashes
On 27 November, the Full Federal Court unanimously held that four determinations made by the Commonwealth Attorney-General under section 43(1) of the Native Title Act 1993 (Cth) – concerning Queensland's native title mining regime – were valid. However, in a surprising development the Queensland Premier has shown his determination to have the final word.
Author: Philip Hunter
Firm: Ebsworth & Ebsworth
Date: December, 2002
Times viewed: 538
ASIC guides the industry
On 25 November 2002 ASIC released eight guidance papers designed to help
industry participants complete their applications for an Australian Financial Services Licence (AFSL).
Author: Scott Charaneka
Firm: Ebsworth & Ebsworth
Date: December, 2002
Times viewed: 842
In-house counsel and legal professional privilege
“It is an imperative that in-house counsel render their advice and otherwise act independently in their capacity as legal advisor”
Author: Ron Nathans
Firm: Deacons
Date: December, 2002
Times viewed: 878
The new rules for corporate criminal responsibility
“Corporations can now be guilty of offences punishable by criminal sanctions such as imprisonment and fines."
Author: Peter Toy
Firm: Deacons
Date: December, 2002
Times viewed: 707
Silencing the Internet or a manageable risk?
Online publishers may be liable for defamation in any jurisdiction where defamatory material is downloaded and damage to reputation is suffered, following a High Court decision that publication of material on the Internet occurs in the place where it is viewed rather than posted.
Author: Belinda Thompson and Damien van der Toorn
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 642
Amendments to the ASX Listing Rules
Effective 1 January 2003, the false market rule is in, the preliminary final report is expanded, and new rules on corporate governance will reduce much of the flexibility that the ASX has previously trumpeted would result from amendments to the Listing Rules.
Author: Carl Bicego
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 618
High Court dismisses Yorta Yorta claim for native title - 12 December 2002
The High Court of Australia has handed down another important ruling on native title. The Yorta Yorta decision, which involved a claim centred around the Murray River region in Victoria and New South Wales, is the first real consideration by the High Court of what must be proved to establish native title.
Author: Native Title specialists
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 666
Damned if you do or if you don't
Julian Riekert reviews the uneasy tension between health and safety obligations and anti-discrimination principles that can leave employers stuck between a rock and a hard place.
Author: Julian Riekert
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 700
Online licensing agreements: are they enforceable?
In a judgment of 1 October 2002, the US Court of Appeals for the Second Circuit found that the plaintiff individuals were not bound by the terms of a software licensing agreement in circumstances where the existence of a contractual agreement was not reasonably conspicuous.
Author: E-Commerce Group
Firm: Freehills
Date: December, 2002
Times viewed: 480
Harrods (UK) v Harrods (Buenos Aires) domain name stoush
In a case between Harrods Limited (Harrods UK) and Harrods (Buenos Aires) Limited (Harrods BA) the US Court of Appeals for the Fourth Circuit addressed the question whether Harrods BA had registered in bad faith multiple variations of Harrods related domain names, where both parties had concurrent intellectual property rights in the Harrods mark.
Author: E-Commerce group
Firm: Freehills
Date: December, 2002
Times viewed: 629
Bush releases draft cybersecurity strategy
On 18 September 2002, the US President's Critical Infrastructure Protection Board released a draft of the National Strategy to Secure Cyberspace (Strategy). The overall strategic goal is to empower all Americans to secure their portions of cyberspace. The Strategy addresses its recommendations at home users and small business, large enterprise, critical sectors and sets out national and global priorities.
Author: E-Commerce Group
Firm: Freehills
Date: December, 2002
Times viewed: 485
Employers tendering for contracts could get more than they bargained for
The Federal Court of Australia has examined the meaning of ‘successor, assignee or transmittee of part of a business’ under the Workplace Relations Act. An employer who was not named as a party to an award was found to be bound by it when it took over new business, despite no direct contract or relationship.
Author: Tracey Cross
Firm: Freehills
Date: December, 2002
Times viewed: 554
Financial Services Reform: Referrals to Financial Services Licensees
Does your business practice involve referring a client to a particular financial product adviser or dealer? If it does, then the changes introduced by the Financial Services Reform Act 2001 (FSRA) and corresponding regulations to the Corporations Act 2001 will have a significant impact on such referral activities. In fact, the changes may mean that unless you are a license holder or authorised representative of a licence holder, you may no longer be able to refer your clients to licensed advisers and dealers.
Author: Jim Bulling and Ben Plotnik
Firm: Middletons Lawyers
Date: December, 2002
Times viewed: 655
Employee consent to restructure
The decision of the Federal Court in McCluskey v Karagiozif provides a reminder that the consent of employees is required before transferring those employees from one company to another.
Author: Peta Nowacki
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 705
The changing health privacy landscape: some tips (and traps)
Since the private sector provisions of the Privacy Act came into force in December 2001, most Australian businesses have begun to adjust to the new climate of privacy consciousness.
Author: Karin Clarke
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 567
Patentability of Methods of Medical Treatment
Australian patent law provides considerable incentives for medical research and development. Australia, along with the United States - in contrast with more conservative jurisdictions such as New Zealand and Europe - recognises that methods of treatment of the human body should be patentable.
Author: Claire Cunliffe
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 502
Trustees and superannuation law
Heather Gray looks at a recent Federal Court decision that considered whether trustees can pay benefits at the direction of members, rather than directly to the members themselves.
Author: Heather Gray
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 676
DOCA termination
What happens if a Deed of Company Arrangement identifies an event, which terminates the DOCA but does not state whether the company is to be wound up? The Supreme Court of New South Wales found that a company in this position was not in administration, not subject to a DOCA and not in the course of being wound up.
Author: Anne Ferguson
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 845
Websites still can't be read
The Australian Government Services website at www.australia.gov.au topped the list of Australian websites that fails to provide all users with accessible information, according to a recent conference run by the US based Nielsen Norman Group (www.nngroup.com).
Author: Tony Cooke
Firm: Deacons
Date: December, 2002
Times viewed: 471
Fairchild v Glenhaven Funeral Services Ltd
The unanimous decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd1 in June this year determined that, in special circumstances, multiple employers who breach their duty to take reasonable care to prevent an employee being exposed to asbestos dust may be liable for damages.
Author: Sophie Chamberlin
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 1050
Lawyers let loose on time limits
The Australian Industrial Relations Commission has confirmed that employees will rarely be held accountable for their representatives' failure to lodge termination claims within the 21-day time limit.
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 505
Reasonable restraints
The Victorian Supreme Court has upheld restraint of trade provisions. The Court found that a three-month restraint was reasonable to protect the employer’s legitimate business interests.
Author: Employee Relations Group
Firm: Freehills
Date: December, 2002
Times viewed: 643
Is playing a DVD considered copying?
The Federal Court in Australian Video Retailers Association Ltd v Warner Home Video Pty Ltd [2001] FCA 1719 (7 December 2001) has determined that mere playing of a DVD and the ephemeral embodiment of tiny fractions of the visual images and sounds that comprise a film in the Random Access Memory (RAM) of a computer or DVD player does not constitute the act of making a copy of a film under s 86a of the Copyright Act 1968 ("the Act").
Author: Natalie Bugalski
Firm: Deacons
Date: December, 2002
Times viewed: 418
Termination for off-site sexual harassment
A report on a decision of the Full Bench of the Australian Industrial Relations Commission, which found that an employee's conduct at an off-site training course justified termination.
Author: Cathy Scalzo
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 591
Foreign web scheme banned
Another recent case further emphasises the willingness of the ACCC to target businesses that breach the Trade Practices Act, whether or not they are located within Australia and regardless of which medium they use.
Author: Peter James and Andrew North
Firm: Allens Arthur Robinson
Date: December, 2002
Times viewed: 593
National Privacy Principles (NPPs) and due diligence
On 29 October 2002, the Federal Privacy Commissioner released an information sheet on the Application of Key NPPs to Due Diligence and Completion when Buying and Selling a Business. Where due diligence processes involve the handling of personal information, organisations subject to the Privacy Act will need to comply with National Privacy Principles (NPP).
Author: Duncan Giles
Firm: Freehills
Date: December, 2002
Times viewed: 468
New privacy guideline addresses due diligence in business sales and acquisitions
On 28 October 2002 the Federal Privacy Commissioner (Commissioner) announced the release of long awaited guidelines aimed at assisting organisations involved in the sale or purchase of a business.
Author: Gayle Hill
Firm: Freehills
Date: December, 2002
Times viewed: 512
ACCC approves Optus – Foxtel proposal
On 13 November 2002, the Australian Competition and Consumer Commission (ACCC) announced that it has accepted the Foxtel-Optus pay TV deal, on the basis that the enforceable undertakings proposed by Foxtel, Optus, Telstra and Austar under section 87B of the Trade Practices Act 1974 (the 87B undertakings) address its concerns about the potential anti-competitive effects of the proposal.
Author: Freehills Corporate Group
Firm: Freehills
Date: December, 2002
Times viewed: 413
Information security and records management concerns
The generally low standards proposed by the Migration Agents Regulation Authority (MARA) for information security and records management are a worry, especially given the vulnerable nature of the clientele.
Author: Author Tim McDonald, Editor Anne O'Donoghue, Legal Researcher Linda Steele
Firm: Immigration Solutions
Date: December, 2002
Times viewed: 508
Introduction agencies and spousal immigration
High numbers of marriages contrived for the purpose of migration have made it harder for those who have met through introduction agencies to get spouse visas. However, it is not an impossible task, as migration case law has developed to accommodate the increasing practice of meeting partners over the internet that has come with the growth in technology and globalisation.
Author: Author Tim McDonald, Editor Anne O'Donoghue, Legal Researcher Linda Steele
Firm: Immigration Solutions
Date: December, 2002
Times viewed: 513
Australia and other countries compared on high net-worth individuals
Australia’s migration mechanisms for wooing high net-worth individuals appear to be working, according to the government. The number of applicants receiving subclass 131 and 844 visas, Australia’s main mechanism for wooing the wealthy, has increased from 146 in 1999 to 251 in 2001.
Author: Tim McDonald & Anne O'Donoghue
Firm: Immigration Solutions
Date: December, 2002
Times viewed: 440
Ministerial review: getting it right
A failed appeal to the Refugee Review Tribunal (RRT) is not always a fatal blow for people trying to invoke Australia’s protection obligations.
Author: Tim McDonald and Anne O’Donoghue
Firm: Immigration Solutions
Date: December, 2002
Times viewed: 372 | | | | | November 2002 | | | |
T&PD decision helps insurers
The Full Court of the WA Court of Appeal has recently handed down a decision which may assist insurers in interpreting the meaning of totally and permanently disabled.
Author: Scott Charaneka and Alisa Kwan
Firm: Ebsworth & Ebsworth
Date: November, 2002
Times viewed: 647
Ad campaign misleads pregnant women
An advertisement stating that pregnant women joining or transferring to MBF would immediately be covered for pregnancy-related medical and hospital expenses was found to be both misleading and deceptive. In reality, a 12-month waiting period applied to this type of cover.
Author: Maria Michael
Firm: Ebsworth & Ebsworth
Date: November, 2002
Times viewed: 673
Australian laws can apply to entities outside national borders
The rapid development of the world wide web, which can, in an instant, electronically connect physically remote parties, has made the application of a nation's laws to entities outside its national borders a particularly controversial issue.
Author: Tim Golder and Chad de Souza
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 517
Leave loading weighs heavily on employers
Employers may need to review leave loading obligations in applicable awards and enterprise agreements to ensure their pay structure is fully compliant.
Author: Julia Greenham
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 2415
Employee entitlements under administration
The Supreme Court of New South Wales recently ruled that the Commonwealth does not have any right in a Deed of Company Arrangement (DOCA) to claim funds to the amount it has already paid to the former employees under the General Employees Entitlement and Redundancy Scheme (GEERS).
Author: Tania Cini
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 688
Improper purpose of examination summonses
The Supreme Court of New South Wales has confirmed in a recent ruling that, when an application is brought to have an examination summons set aside on the basis that a purpose of the summons is objected to, it will look at issues of abuse of process and improper purpose.
Author: Tania Cini and Michael Quinlan
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 603
Hidden traps of the Madrid Protocol
Philip Macken examines the serious potential traps of the Madrid Protocol for overseas trade mark owners who do not specify an Australian address for service.
Author: Philip Macken
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 598
Federal Court rejects benefit payment
Two days ago, in a landmark decision, the Federal Court1 ruled illegal a process which allowed for super fund beneficiaries to direct their benefit payment to be made to a third party. Trustees who have previously accepted payment directions must urgently amend their payment forms and processes.
Firm: Ebsworth & Ebsworth
Date: November, 2002
Times viewed: 544
Tax concessions for super fund "dependants"
The recent Australian Taxation Office interpretive decision, ID 2002/731, considered the meaning of “dependant” under s27A(1) of the Income Tax Assessment Act 1936 (ITAA36) for the purpose of s27AAA(4) of ITAA36.
Author: Emily Nigh-joy Wong
Firm: Ebsworth & Ebsworth
Date: November, 2002
Times viewed: 722
Daniels v ACCC - Implications for the insurance industry
On 7 November this year, the High Court of Australia unanimously held that the ACCC does not have the power to compel production of confidential lawyer-client communications when exercising its investigative powers under section 155 of the Trade Practices Act 1974 (Cth). This ruling has important ramifications for those involved in the insurance industry.
Author: Oscar Shub
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 675
Insider trading proposals paper
CAMAC's review of current insider trading laws suggests changes could be made to improve the consistency and practicality of the regime. This article looks at some of the significant recommendations.
Author: David Wenger
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 626
Scheming a takeover
The slavish application of Chapter 6 Corporations Act concepts to schemes of arrangement has been questioned in a judgment concerning a recent merger in Western Australia. The Re Ranger Minerals Ltd; ex parte Ranger Minerals decision may herald a more flexible and pragmatic approach by the courts to the use of schemes to effect mergers.
Author: Andrew Finch
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 634
High Court decision in Daniels - November 2002
On 7 November 2002, the High Court of Australia unanimously held that the ACCC does not have the power to compel production of confidential lawyer-client communications when exercising its investigative powers under section 155 of the Trade Practices Act 1974 (Cth).
Author: Paul Nicols
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 590
ACTU test case on redundancy
In late August 2002, the Australian Council of Trade Unions (ACTU) made an application to the Australian Industrial Relations Commission for a redundancy test case. The test case is intended to create a new national standard that will increase severance pay entitlements to Australian workers and include entitlements to long term casuals. It will be the first to test the Termination, Change and Redundancy Test Case established in 1984.
Author: Gary Smythe
Firm: Freehills
Date: November, 2002
Times viewed: 552
What is reasonable notice?
In a decision by the Queensland Court of Appeal to decide what is reasonable notice, a senior executive has received nine months notice of termination of employment.
Author: Joanna Glynn
Firm: Freehills
Date: November, 2002
Times viewed: 1078
Indefeasibility of title compromised by development consent
Most people are familiar with and take comfort from the underlying principle of the Torrens land title system namely, indefeasibility: apart from limited exceptions, a person with a registered interest holds that interest subject only to the other interests that are recorded on the title. A recent decision of the New South Wales Court of Appeal1. serves to illustrate that conditions attaching to development consents, although not recorded on title, can affect title and that Torrens title indefeasibility may be less comforting than was previously thought.
Author: John Taberner
Firm: Freehills
Date: November, 2002
Times viewed: 1348
The fine line between inspiration and copyright infringement
It is common practice for designers to look to a variety of sources for inspiration. Frequently the source is foreign and consists of a garment or piece of fabric which has been obtained from an upmarket retailer, a trade fair or an Asian manufacturer's premises.
Author: Irene Zeitler
Firm: Freehills
Date: November, 2002
Times viewed: 489
Superannuation splitting on marriage breakdown
From 28 December this year, superannuation interests will be treated as property, and will be able to be divided by the Family Court, together with all other assets. Trustees of superannuation funds will be bound by court orders dealing with superannuation entitlements.
Author: Heather Gray and Cynthea Reynolds
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 711
Damages and the Trade Practices Act
The High Court recently handed down its decision in an important case that has implications for recovery of damages under the Trade Practices Act where the plaintiff's own conduct contributed to his or her loss.
Author: Eugene Elisara
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 775
Colourblind?
In decisions by delegates of the Australian Trade Marks Office this year, 3M was denied registration of the colour 'canary yellow' in respect of POST-IT adhesive stationery notes and Cadbury was denied registration of the colour purple in respect of chocolate products.
Author: Caroline A. Baker
Firm: Freehills
Date: November, 2002
Times viewed: 342
Affording fairness to an alleged harasser
An employee was reinstated after having his employment contract terminated for allegedly sexually harassing a colleague.
Despite the alleged harassment resulting in criminal charges and the employer issuing prior warnings for similar behaviour, the employee’s length of service, impact of the termination and the nature of the incident rendered the termination unfair.
Author: Penny Thew
Firm: Freehills
Date: November, 2002
Times viewed: 435
Bullying at work
In light of the serious ramifications of workplace bullying, employers should consider introducing anti-bullying policies.
There is increasing governmental recognition of the problem of workplace bullying.
Author: Robyn Mcllroy
Firm: Freehills
Date: November, 2002
Times viewed: 529
When the chips are down: a comparison of the Sony 'chipping' cases
Sony has had mixed success in its recent attempts to prevent the distribution of 'mod chips' which allow imported and copied games to be used with PlayStation 2 consoles (PS2s).
Author: Shaun McVicar & David Jackson
Firm: Freehills
Date: November, 2002
Times viewed: 368
Australia and other countries compared on high net-worth individuals
Australia’s migration mechanisms for wooing high net-worth individuals appear to be working, according to the government. The number of applicants receiving subclass 131 and 844 visas, Australia’s main mechanism for wooing the wealthy, has increased from 146 in 1999 to 251 in 2001.
Author: Tim McDonald and Anne O'Donoghue
Firm: Immigration Solutions
Date: November, 2002
Times viewed: 504
WIPO nominated as the sole dispute-resolution service provider for the .edu domain space
EDUCAUSE, a non-profit corporation which administers the .edu top-level generic domain (hereafter ".edu domain"), has recently signed an agreement with the World Intellectual Property Organization (hereafter "WIPO"). EDUCAUSE was awarded a five-year period for managing the .edu domain by the US Department of Commerce commencing 29 October 2001.
Author: Philippe Rodhain
Firm: Phillips Ormonde Fitzpatrick
Date: November, 2002
Times viewed: 470
Family Law changes force disclosure review
Scott Charaneka has provided presentations to Women In Super and IFSA on the impact of the changes to the Family Law Act (and related measures) on
superannuation fund trustees.
Author: Scott Charaneka
Firm: Ebsworth & Ebsworth
Date: November, 2002
Times viewed: 819
Bright ideas for managing risk
This article provides ideas on designing an effective risk management statement.
Author: Mai Tran
Firm: Ebsworth & Ebsworth
Date: November, 2002
Times viewed: 508
Whole of business telecommunication purchasing arrangements
Many Australian companies are considering placing all of their telecommunications business with the one telecommunications supplier and using their volume of business to drive a better bargain. The market for telecommunication services is now intensely competitive and customers can obtain real savings if they adopt a purchasing process that takes advantage of that competition.
Author: Michael Pattison
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 652
Media ownership bill jumps first hurdle
The Federal Government has been successful in making the first step towards its goal of repealing the cross-media and foreign ownership restrictions, following the passing of a bill to amend the Broadcasting Services Act 1992.
Author: Raani Costelloe
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 498
What are your employees doing outside work hours?
Do employers have the right to investigate and take disciplinary action against employees over conduct outside work hours and away from the employer's premises? This article reviews a recent decision where the WA Court of Appeal held that an employer could investigate an employee's alleged sexual misconduct because there was a connection between the employee's conduct and his employment.
Author: Natalie Shaw and Karen Hasluck-Janes
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 571
Do your employees know their maternity leave rights?
A recent decision of the New South Wales Industrial Relations Commission reminds all employers to inform workers about maternity leave entitlements prior to maternity leave being taken.
Author: Peta Nowacki
Firm: Allens Arthur Robinson
Date: November, 2002
Times viewed: 857
The dangers of online licensing
Terms and conditions for the use of websites, software and other internet or e-commerce related products are commonly provided under one of three forms of licence arrangement: click-wrap licences; shrink-wrap licences; browse-wrap licences.
Author: Breon Gravatt
Firm: Shelston IP
Date: November, 2002
Times viewed: 387
Destruction of documents in an employment context
The need for best practice record keeping has been highlighted in the recent Victorian Supreme Court decision, McCabe v British American Tobacco Australia Services Ltd (“the BATAS case”).
Author: Ashley Winnett & Megan Reeve
Firm: Deacons
Date: November, 2002
Times viewed: 535
Privacy and employees' records in the transfer of business
Employers must take precautions when involved in due diligence related to the transfer of a business where the purchaser seeks to access employee records and staff health and WorkCover claim information.
Author: Stuart Kollmorgen and Karen Palmer
Firm: Deacons
Date: November, 2002
Times viewed: 535
Patent due diligence for technology companies
Many companies have developed innovative technology that is central to their business success. Patents are powerful business tools that add commercial value to such technology companies.
Author: Ross McFarlane
Firm: Freehills
Date: November, 2002
Times viewed: 447
New programs for managers and HR professionals
The Institute of Knowledge Development (IKD) is offering a new series of public and customised equal opportunity programs for managers and human resources professionals.
Author: Jil Toovey, Institute of Knowledge Development
Firm: Freehills
Date: November, 2002
Times viewed: 505
Family responsibilities, flexibility and work: striking the balance
Unilateral reduction by an employer of its employee’s hours can constitute dismissal within the meaning of the Sex Discrimination Act 1984 (Cth), even if the employee works in a new position.
Employers who do not have clear objective reasons for not having a flexible work practice policy can be found to have breached equal employment opportunity legislation.
Author: Geraldine Dann
Firm: Freehills
Date: November, 2002
Times viewed: 653
Maternity leave and return to work: obligations on employers
Two recent Federal Court decisions have emphasised that under State and federal equal opportunity legislation, employers have a two-fold obligation to employees returning from maternity leave.
Author: Peta Bissell
Firm: Freehills
Date: November, 2002
Times viewed: 1914 | | | | | October 2002 | | | |
The ALRC report into the protection of human genetic information: privacy implications
In November 2001, Issues Paper 26, Protection of Human Genetic Information (IP 26) was released, containing the background to the Joint Inquiry of the Australian Law Reform Commission (ALRC) and Australian Health Ethics Committee (AHEC) of the National Health and Medical Research Council (NHMRC). The results of this Inquiry are reported in the recently released Discussion Paper 66 (DP 66), submissions to which must be made by 29 November 2002.
Author: Johanna Gibson
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 609
The ALRC report into the protection of human genetic information: employment
The rapid development of genetic science and technology has resulted in human genetic information becoming easier, quicker and cheaper to obtain. The range of its potential applications has also expanded. The Inquiry observed that employers are likely to be increasingly interested in uncovering and using genetic information in the workplace for a variety of reasons.
Author: Ben Arnall
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 674
The ALRC report into the protection of human genetic information: insurance implications
If you have a gene that predisposes you to heart disease, should you pay higher insurance premiums? Do you have to tell your insurers about your genetic make up? If you don't know your genetic make up, should you have to submit to a genetic test before you are granted insurance? Discussion Papaer 66 raises these issues of use of genetic information by insurers.
Author: Lorien Beazley
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 636
Passive holding of a domain name
The purpose of the Uniform Dispute Resolution Policy, known as the UDRP (hereafter the Policy), is to determine disputes relating to the registration or acquisition of domain names in bad faith.
Author: Philippe Rodhain
Firm: Phillips Ormonde Fitzpatrick
Date: October, 2002
Times viewed: 384
Redundancies stalled
The AIRC has reaffirmed its broad powers to order consultation with interested unions when 15 or more employees are being made redundant.
Author: Peta Nowacki
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 521
Victorian Anti-Cybercrime Bill
The Victorian Government has introduced a bill which proposes seven new offences in an attempt to deter cybercrime activities such as hacking, intentionally spreading computer viruses and web site vandalism.
Author: Timana Hattam
Firm: Corrs Chambers Westgarth
Date: October, 2002
Times viewed: 473
Quick response to industrial action placed at risk
The fast track method of ending industrial disputes by employers going straight to the Supreme Court has been put in doubt by recent Federal Court criticism. Jamie Wells reviews the implications.
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 455
Domain name suppliers code of practice
On 10 September, auDA endorsed a Code of Practice for the Australian domain name industry.
Author: Helen Wills
Firm: Corrs Chambers Westgarth
Date: October, 2002
Times viewed: 298
Recent rulings in insolvency cases
An overview of recnt cases in the area of insolvency
Author: Dirk Fairweather and Sheridan Emerson
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 680
Child abuse and neglect
The abuse and neglect of children is a matter of grave concern to the Family Court
Firm: Hopgood Ganim Lawyers
Date: October, 2002
Times viewed: 519
Parenting Orders - how the court decides
In the making of any parenting orders, including residency orders, contact orders or specific issue orders, the Court must regard the best interests of the child as the paramount consideration
Firm: Hopgood Ganim Lawyers
Date: October, 2002
Times viewed: 536
Government gets tough on directors: The Corporations Amendment (Repayment of Directors’ Bonuses) Bill 2002
“In the wake of the collapse of One.Tel, the Government announced that it intended to pursue an amendment to the Corporations Act to enable the recovery of bonuses paid to the directors of companies that later collapsed. In this Bill, the Government delivers on that commitment.”
Author: Rachel Launders and James Edwards
Firm: Gilbert + Tobin
Date: October, 2002
Times viewed: 682
Resumption of lost Australian citizenship - many former citizens still out in the cold
On 4 April 2002, the Governor-General gave Royal Assent to the Australian Citizenship Legislation Amendment Act 2002. With the stroke of his pen, Australians ceased losing their Australian citizenship on the acquisition of another citizenship. The infamous “Section 17” of the Australian Citizenship Act 1948 was finally repealed.
Author: Anne MacGregor
Date: October, 2002
Times viewed: 700
National access regime - reform proposals unveiled
On 17 September 2002, the Commonwealth Government finally released the Productivity Commission's Report on the national access regime, together with the Government's interim response. Louise Thomson looks at some of the proposed changes to Part IIIA of the Trade Practices Act.
Author: Louise Thomson
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 582
CLERP 9 and the expensing of options - a true and fair pickle
The decision to expense employee options might be a case of one step forward and two back. It is not clear that such an approach is in shareholders' best interests and so may not be the best way to produce the intended corporate governance benefits. What is more, the CLERP 9 proposal that the 'true and fair' test has ascendancy may have the effect of turning the separate CLERP 9 proposal to expense employee options on its head.
Author: David Robb
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 522
Insider trading risks and the National Electricity Market
Insider trading rules have been extended to all forms of financial products, including electricity derivatives, under the Financial Services Reform Act.
Author: Anna Bonollo
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 647
Unions and the thin edge of the IT wedge
Most employers today have a significant IT component to their business whether as a core activity or in a supporting role. In the IT industry’s early stages it was dominated by a few young, highly skilled and motivated individuals who demanded high pay and flexible working conditions – hardly fertile ground for union activity. However, as the industry has matured and become increasingly mainstream, unions have been eyeing it hungrily. The industrial situation was ripe for change.
Author: Jeff Krins
Firm: Deacons
Date: October, 2002
Times viewed: 331
Can employers control what employees say?
It is commonplace for modern employment contracts and policies to include clauses restricting employees’ public comments about their employer or its business and to require employees to act at all times in the best interests of the employer. The common law implies into every employment contract a “duty of good faith” for employees. These matters are part of the “control” that supposedly lies at the heart of every employment relationship.
Author: Neil Napper and Ross Fox
Firm: Deacons
Date: October, 2002
Times viewed: 402
Recent domain name cases
On 8 August 2002, a WIPO panelist decided that the domain name robbiewilliams.info is virtually identical and confusingly similar to the trade mark of the successful popstar Robbie Williams.
Author: Nicola Grant & Lesley Sutton
Firm: Freehills
Date: October, 2002
Times viewed: 348
Solving insurance issues in banking and finance transactions
A real issue for banks and financiers in the troubled world of insurance following the collapse of HIH and tragic events of September 11 is the availability and adequacy of insurance for major projects, operations and transactions.
Author: Michael Mills
Firm: Freehills
Date: October, 2002
Times viewed: 474
ASIC clarifies SFE Associate Participants' status
The Australian Securities and Investments Commission (ASIC) has finally clarified the uncertainty regarding whether existing holders of futures brokers licences could take advantage of the full two-year transitional period under the Financial Services Reform Act 2001 (FSRA).
Author: Luke Gannon
Firm: Freehills
Date: October, 2002
Times viewed: 456
Important changes to stamp duties
Stamp duty reform has featured prominently in this year's State and Territory budgets, which have been delivered in recent months. This article provides a general overview of the key stamp duty changes recently announced, insofar as they may be relevant to business.
Author: Anna Yeung
Firm: Freehills
Date: October, 2002
Times viewed: 547
The Dawson Inquiry into the Trade Practices Act – The debate between the ACCC and Big Business
It would be difficult for any Australian, much less those operating in the world of trade and commerce, to ignore the fact that the Trade Practices Act is currently the subject of a wide ranging inquiry. The Inquiry has resulted in a very public debate between the ACCC and representatives of big business.
Author: Kathryn Edghill
Firm: Corrs Chambers Westgarth
Date: October, 2002
Times viewed: 442
Competitive Strategy Causes Legal Headaches
This recent decision by The Full Court of the Federal Court raises some big issues about market sharing, use of market power and individual liability under the Trade Practices Act (“TPA”). The case concerns allegations of market sharing and misuse of market power in the regional newspaper industry, but it may have far reaching impact for business.
Author: Kathryn Edghill and Bill Keane
Firm: Corrs Chambers Westgarth
Date: October, 2002
Times viewed: 459
WIPO's first decision under the Eligibility Requirements Dispute Resolution Policy: salvador.dali.name
On 3 October 2002, the World Intellectual Property Organization Arbitration and Mediation (WIPO Center) released its first decision relating to the new .name generic top level domain (gTLD) given under the Eligibility Requirements Dispute Resolution Policy (ERDRP).
Author: Philippe Rodhain
Firm: Phillips Ormonde Fitzpatrick
Date: October, 2002
Times viewed: 284
New regulations to help Zimbabwe's farmers enter Australia
Starting November 1, there will be changes to Australia's immigration system that will work to the advantage of Zimbabwe's dispossessed farmers.
Author: Anne O'Donoghue, Tim McDonald
Firm: Immigration Solutions
Date: October, 2002
Times viewed: 430
Making Sense of Buying Microsoft Software Assurance Part 2 - A Manifesto For Action (NZ)
The last Techlaw column attempted to cover what is negotiable with MS Software Assurance, what should be attempted to be negotiated and how to document commitments that are made.
Author: Craig Horrocks of Clendon Feeney
Date: October, 2002
Times viewed: 339
New Microsoft Licensing FAQs (NZ)
This article aims to answer many of the questions that businesses may have and that remain unanswered by Microsoft's website.
Author: Craig Horrocks and Tony Miller of Clendon Feeney
Date: October, 2002
Times viewed: 405
'Discriminatory' rates and charges imposed on telecommunications companies
A recent Federal Court decision found parts of Victorian and NSW local government legislation constitutionally invalid because they authorised councils to impose rates and charges on land occupied by telecommunications cables. As Rosemary Bryant-Smith explains, the decision shows the difficulties that can arise when rates and charges are imposed on utility companies that have changed from government entities to private enterprises.
Author: Rosemary Bryant-Smith
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 513
Nipping competition in the bud
The Full Federal Court recently overturned the decision of Justice Mansfield in ACCC v Rural Press & Ors, a case that extended the boundaries of the misuse of market power provisions in the Trade Practices Act 1974.
Author: Janey Draper
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 564
Trade Practices Act - Third Line Forcing
Australian Competition & Consumer Commission v IMB Group Pty Ltd (ACN 050 411 946) (in liq) [2002] FCA 402)
Opportunity to join future Leagues Club not a service – “packages” not generally third line forcing.
Author: Matthew Brazier assisted by Phillip Cornwell and Diccon Loxton
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 1814
An employer's duty of care - does it extend to termination of employment?
David Cross reviews decisions of the English House of Lords and the New South Wales Court of Appeal, which each considered whether an employer's duty of care extends to the circumstances surrounding termination of employment.
Author: David Cross
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 897
What ASIC looks for in compliance systems
In this article we highlight the key areas that we expect ASIC will focus on when it reviews your compliance system.
Author: Mai Tran and Andrew Goldstein
Firm: Ebsworth & Ebsworth
Date: October, 2002
Times viewed: 486
Overturning agency agreements
Financial services industry participants’ may not be aware that the Industrial Relations Commission can play a significant role in renewing contracts with distribution.
Author: Damian Sloan
Firm: Ebsworth & Ebsworth
Date: October, 2002
Times viewed: 742
Family law changes require software enhancements
This article highlights the key areas it is expected ASIC will focus on when it reviews your compliance system.
Author: Barry Stewart
Firm: Ebsworth & Ebsworth
Date: October, 2002
Times viewed: 598
Interim relief for offshore insurers
ASIC recently announced that it will provide interim relief to foreign wholesale entities from the financial services licensing provisions in Part 7.6 of the Corporations Act 2001.
Author: Matthew Smith
Firm: Ebsworth & Ebsworth
Date: October, 2002
Times viewed: 577
When the wrong decision can still be right!
The role of the Superannuation Complaints Tribunal (SCT) under the microscope.
Author: Scott Charaneka & Alisa Kwan
Firm: Ebsworth & Ebsworth
Date: October, 2002
Times viewed: 575
“Comparison Rate” disclosures for personal loans & home loans
Legislation amending the Consumer Credit Code to introduce mandatory comparison rates has a target start date of 1 July 2003. Draft regulations in respect of the comparison rate provisions have been released for public comment until 27 September 2002.
Author: Maria Polczynski, partner from the Banking and Finance Group
Firm: Henry Davis York
Date: October, 2002
Times viewed: 542
Employee Entitlements to Take Priority Over Secured Creditors?
On 31 July 2002 Federal Treasury released a Discussion Paper proposing that some employee entitlements take priority over secured creditors in a winding up of a company under a “maximum priority” rule to be introduced into the Corporations Act. This would dramatically change the current settled position of secured creditors.
Author: Maria Polczynski and Peter Farthing
Firm: Henry Davis York
Date: October, 2002
Times viewed: 553
Australian Competition and Consumer Commission v Dell Computers Pty Ltd [2002] FCA 847
The applicant sought declaratory, injunctive and consequential relief against the respondent in respect of a number of advertisements published between 1994 and 2002. The ACCC asserted that the majority of these advertisements were misleading or deceptive under s.52 of the Trade Practices Act 1974 (TPA).
Author: Emma Hoeben
Firm: Freehills
Date: October, 2002
Times viewed: 579
Solving insurance issues in banking and finance transactions
A real issue for banks and financiers in the troubled world of insurance following the collapse of HIH and tragic events of September 11 is the availability and adequacy of insurance for major projects, operations and transactions.
Author: Michael Mills
Firm: Freehills
Date: October, 2002
Times viewed: 425
Kyoto Protocol economic modelling released
The Australian Greenhouse Office recently released modelling reports on the economic impacts of the Kyoto Protocol, commissioned by the Federal Government from two separate organisations. In general, the reports have found that in 2010, the economic costs of greenhouse abatement will be slightly lower if Australia ratifies the Protocol. The modelling reports helped the Federal Government to formulate its strategy on climate change (reported in the last issue of Renewable Energy and Greenhouse Update).
Author: Alison Wills
Firm: Freehills
Date: October, 2002
Times viewed: 188
Late notification of claim circumstance – will you be forgiven?
Just when you thought that the law had been settled and that late notifications under ‘claims made’ policies (such as professional indemnity and D&O policies) of either ‘claims’ or ‘circumstances’ potentially giving rise to claim would be forgiven, 2 Supreme Court Justices have distinguished the High Court’s decision in Australian Hospital Care v FAI.
Author: Mark Darwin
Firm: Freehills
Date: October, 2002
Times viewed: 470
Property Rights for Gay Couples’
In July 2001 the Federal Attorney General indicated that the Commonwealth Government intended to extend laws regarding property provisions to defacto couples. The Government sought that the States would refer their powers to deal with defacto property disputes to the Commonwealth in the same way that Victoria, South Australia, Tasmania and New South Wales referred parenting powers regarding ex-nuptial children to the Family Court of Australia.
Author: Jane Tynan
Firm: Middletons Lawyers
Date: October, 2002
Times viewed: 784
The Super of the Future
The Court has recently had the opportunity to consider whether property proceedings under the Family Law Act can be adjourned until after the commencement of the Family Law Legislation Amendment (Superannuation) Act 2001 (‘the Act’) where there is a substantial superannuation component involved.
Author: Kristen Rose
Firm: Middletons Lawyers
Date: October, 2002
Times viewed: 610
Employer rights and responsibilities of human genetic information
Cathy Scalzo reports on the release of an Australian Law Reform Commission discussion paper that considers the rights and responsibilities of employers using genetic information about their employees.
Author: Cathy Scalzo
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 759
Labour hire companies in the firing line
Increased use of outsourced labour has coincided with a number of prosecutions of labour hire companies under workplace health and safety legislation. Joanne Wallis and Del Bobeff outline recent developments.
Author: Joanne Wallis and Del Bobeff
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 800
Patents - common sense and relevance of conference presentations
A recent decision by the High Court of Australia sheds new light on what the limits of inventiveness are, when the alleged invention is merely the application of information disclosed at an important industry conference.
Author: Charissa Mitsikas and Jonathan Gottschall
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 437
Trade marks - 'Meta-tags' and trade marks - a recent UK decision
The UK High Court holds that the use of a trade mark in a website 'meta-tag' can constitute trade mark infringement.
Author: Tim Golder and Jesse Gleeson
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 487
Update on splitting superannuation on marriage breakdown
With the commencement date of 28 December 2002 for the new rules for splitting superannuation on marriage breakdown fast approaching, there is still work to be done by the Government.
Firm: Abbott Tout
Date: October, 2002
Times viewed: 456
ASIC gives takeover relief to index funds
ASIC has announced that it will not give broad relief from the takeover and substantial holding regimes to investment funds (including registered managed investment schemes), but may give case-by-case exemption to index funds. This follows consideration by ASIC of responses to its discussion paper "Investment funds: takeovers and substantial holding relief" issued in November 2001.
Firm: Abbott Tout
Date: October, 2002
Times viewed: 441
ASIC releases final policy on prospective financial information
ASIC has released its final policy statement, PS 170, on the use of prospective financial information, including financial forecasts, in prospectuses, product disclosure statements and other fundraising documents. ASIC released a consultation draft in December 2001.
Firm: Abbott Tout
Date: October, 2002
Times viewed: 480
New disclosure regulations disallowed
Several provisions of the Corporations Regulations 2001, which were introduced earlier this year as part of the financial services reforms, have been disallowed on a motion by Senator Conroy. The disallowance had been foreshadowed by Senator Conroy early in June.
Firm: Abbott Tout
Date: October, 2002
Times viewed: 429
Bringing hackers to justice
The Gutnick case has, for the moment, created a precedent for defamation claims being brought in Australia across jurisdictional boundaries. In Gutnick v Dow Jones & Co Inc, the court held that the claim could be heard in Victoria, rather than in the US, on the basis that the material was available to be downloaded and read in Victoria and that is where Mr Gutnick suffered most harm. (The Victorian Court of Appeal affirmed the decision and it is currently on appeal to the High Court.)
Author: Lucas Sork
Firm: Minter Ellison
Date: October, 2002
Times viewed: 568
Legal liability for on-line security
The heightened threats and risks created by on-line business activities have increased responsibility on directors to ensure that not only is there an appropriate e-security framework in place, but that the mitigation of those risks is a key business driver.
Author: Anne Trimmer
Firm: Minter Ellison
Date: October, 2002
Times viewed: 515
General Insurance Reform Act 2001: A new regulatory framework
The General Insurance Reform Act 2001 (Cth) (Reform Act) on 30 June 2002 makes substantial amendments to the Insurance Act 1973 (Cth) (Act) and introduces new prudential standards for capital adequacy, liability valuation, reinsurance and operational risk.
Author: Michael Herron
Firm: Freehills
Date: October, 2002
Times viewed: 503
Do you know the limit of your insurance?
The court action arising out of the collapse of the World Trade Centre (WTC) has highlighted the need for insureds to assess whether their insurance offers adequate protection from losses arising out of a catastrophe.
Author: Belinda Buschenhofen
Firm: Freehills
Date: October, 2002
Times viewed: 479
Hardgrave releases report on MARA
Citizenship Minister Gary Hardgrave this month released a review of the Migration Agents Registration Authority, the body that oversees the conduct of migration agents.
Author: Tim McDonald and Anne O'Donoghue
Firm: Immigration Solutions
Date: October, 2002
Times viewed: 427
Business migration: a beginner's guide
There is little question that business migration has benefited Australia. Figures from a year 2000 survey of Business Skills migrants who arrived between mid-1996 and 1997, found that after three years 77 percent were engaged in a business, with each employing an average of 4.3 staff.
Author: Tim McDonald and Anne O'Donoghue
Firm: Immigration Solutions
Date: October, 2002
Times viewed: 443
The Selection of the .eu TLD Registry
On 3 September 2002 the European Commission published in the Official Journal of the European Communities a "CALL FOR EXPRESSIONS OF INTEREST FOR THE SELECTION OF THE .eu TLD REGISTRY".
Author: Philippe Rodhain
Firm: Phillips Ormonde Fitzpatrick
Date: October, 2002
Times viewed: 353
Reverse Domain Name Hijacking
The purpose of the Uniform Dispute Resolution Policy, known as the UDRP, is primarily to determine disputes relating to the acquisition of domain names in bad faith. Under the UDRP, the Complainant must prove that (i) the disputed domain name is identical with or confusingly similar to a trade mark or service mark in which it has rights; (ii) the domain name holder has no right or legitimate interest in respect of the domain name; and (iii) the domain name was registered and is being used in bad faith.
Author: Philippe Rodhain
Firm: Phillips Ormonde Fitzpatrick
Date: October, 2002
Times viewed: 498
Restraints can work but careful planning pays
The value of a carefully drafted restraint clause has been highlighted recently, with the Victorian Supreme Court enforcing a clause in an employment contract keeping two stockbrokers out of the market for three months after resignation.
Author: Suzanne Weingott
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 458
More uncertainty on bargaining fees
Uncertainty reigns over enterprise bargaining as the Federal Court and the Australian Industrial Relations Commission continue to disagree about the content of certified agreements. The Commission has chosen not to follow the Federal Court's lead, declining to certify an agreement with a clause that deals with the payment of union bargaining fees.
Author: Deegan Fitzharris
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 470
International arbitration agreements
Australian courts traditionally have looked very closely at arbitration agreement wording in any attempt to stay court proceedings by a party wishing to have a dispute arbitrated. Trudy Steedman looks at a recent Tasmanian case that confirms this approach and highlights the fact that even potentially inconvenient outcomes for the parties have not motivated the courts to change their position.
Author: Trudy Steedman
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 780
Internet - Defamation - cyberspace publication before the High Court of Australia
Where is material published for the purposes of Internet defamation? The High Court of Australia will decide this issue in the context of Joseph Gutnick's defamation proceedings against Dow Jones. The decision will have important implications for the online world.
Author: Damien Van Der Toorn and Kaelene McLennan
Firm: Allens Arthur Robinson
Date: October, 2002
Times viewed: 557 | | | | | September 2002 | | | |
How does your brand shape up?
A recent decision by the Full Federal Court to allow the registration of a three-dimensional, bug-shaped confectionery item has significant implications for existing and future shape trade mark applications in Australia. Colin Oberin and Ben Arnall review Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks and examine the important consequences of the decision for brand owners who wish to protect the unique shape of their goods against imitators.
Author: Colin Oberin and Ben Arnall
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 631
Resource and Infrastructure
An update on the progress of legislation concerning the use of energy and resources in Australia.
Author: Martin Klapper
Firm: Hopgood Ganim Lawyers
Date: September, 2002
Times viewed: 421
New CGT Free Demerger Rules
The Government has finally tabled a bill to implement the tax free demerger proposal flagged in the Ralph Report. The rules are contained in the New Business Tax System (Consolidation, Value Shifting, Demergers and Other Measures) Bill 2002 introduced into Parliament on 27 June 2002.
Author: Philip Diviny
Firm: Middletons Lawyers
Date: September, 2002
Times viewed: 487
Redundancy Payments on Transfer of Business
The recent decision of Construction, Forestry, Mining and Energy Union v Amcor Limited [2002] FCA 610 (Amcor), has seen a turnaround in the way redundancy payments on the transfer of a business will be treated. Employers may be liable for an employee’s redundancy payments to an employee despite the fact that the employee is transmitted to a comparable position with the purchaser.
Author: Mark Howard
Firm: Middletons Lawyers
Date: September, 2002
Times viewed: 641
Consultation draft of cultural heritage legislation released
The Queensland Government has released consultation drafts of proposed Bills to protect Aboriginal and Torres Strait Islander cultural heritage. As Ben Zillmann and Cathy Atkinson explain, the Bills will increase measures to protect Aboriginal cultural heritage.
Author: Ben Zillmann and Cathy Atkinson
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 682
The ALRC report into the protection of genetic information - the implications for genetic testing
Caroline Ryan discusses how the recent Australian Law Reform Commission Discussion Paper on the protection of human genetic information could affect the provision of genetic testing in Australia.
Author: Caroline Ryan
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 616
Business interruption insurance in the wake of September 11
Imagine your business is evacuated as a result of a terrorist threat to a nearby government building or facility. Your business is closed for two days. Will you be able to recover lost revenue under a business interruption insurance policy?
Author: James Mills
Firm: Freehills
Date: September, 2002
Times viewed: 660
Transfer of .au domain name licences
.au Domain Administration Ltd (auDA), the organisation that oversees .au domain names, released the Interim Transfers (Change of Registrant) Policy on 30 June 2002.
Author: Orana Catlin
Firm: Freehills
Date: September, 2002
Times viewed: 283
Liability Update - David Jones Limited v Bates
A decision of the New South Wales Court of Appeal (Heydon JA, Davies AJA, and Young CJ in EQ), dated 20 July 2001, involving a slip and fall in David Jones.
Author: Insurance Law Group
Firm: Henry Davis York
Date: September, 2002
Times viewed: 722
Two recent employment decisions
Two recent employment law decisions are important for insolvency and business sale matters.
Author: Simon Howard - Employment and Industrial Relations and Keiran Breckenridge - Banking Insolvency and
Firm: Henry Davis York
Date: September, 2002
Times viewed: 592
Salary cap - an interesting twist
The Rugby League team, the Bulldogs, have called in security eperts to examine the club and associated canterbury Leagues club systems fearing these may have been breached by a team of hackers.
Author: Alex Claringbould
Firm: Deacons
Date: September, 2002
Times viewed: 563
Balancing the interests of infrastructure owners and users: the Epic Energy decision
On 23 August 2002 the Supreme Court of Western Australia delivered judgement on the draft decision of the Independent Gas Pipelines Regulator (Regulator) in Western Australia under the National Gas Pipelines Access Code (Code). The decision was in relation to Epic's proposed Access Arrangement for the Dampier to Bunbury Natural Gas Pipeline, which Epic argued was not consistent with the Code.
Author: Rohan Madders
Firm: Freehills
Date: September, 2002
Times viewed: 422
Splitting Superannuation Benefits for Better or Worse
Trustees can no longer assume that a member would be entitled to the whole amount of his or her superannuation benefits, as they may need to consider the entitlements of the member’s spouse.
Author: Jim Bulling & Anita Ioannides
Firm: Middletons Lawyers
Date: September, 2002
Times viewed: 865
ACCC incentives for whistleblowers
Disclosure by 'insiders' is one of the best means of uncovering collusive conduct and later proving it in court. The ACCC believes that its draft Leniency Policy will give participants more incentive to disclose cartel behaviour in breach of the Trade Practices Act (such as price fixing, exclusionary provisions, primary boycotts, collusive tendering and market sharing).
Author: Nicole Tyson
Firm: Minter Ellison
Date: September, 2002
Times viewed: 464
Commissioner's victory in Vincent's case
Following the decision in the Budplan case (Howland- Rose v FC of T 2002 ATC 4200), the Commissioner has achieved another victory with the Federal Court (French J) disallowing a taxpayer's deductions pursuant to Part IVA of ITAA 1936 in Vincent v FC of T (see Tax Week ¶343 (2002)).
Author: Janina McMahon
Firm: Middletons Lawyers
Date: September, 2002
Times viewed: 440
Protecting assets from dissipation: will the Court grant restraining orders?
The recent case of Waugh & Waugh which was decided by the Full Court in 2000 has caused parties and their practitioners to consider carefully whether or not to apply for Restraining Orders.
Author: Lara Ruddle
Firm: Middletons Lawyers
Date: September, 2002
Times viewed: 632
Review of Negligence Panel - first report
The first report of the Review of the Law of Negligence was released on 2 September. Mark Lindfield examines the recommendations of the report.
Author: Mark Lindfield
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 596
The duties of acquirer boards
One of the features of the recent turmoil in global equity markets has been increased investor attention on companies struggling to digest overly ambitious or ill-advised acquisitions. France's Vivendi group and US companies such as WorldCom and Global Crossing have been mentioned in this context. Australian examples include the acquisitions of FAI Insurance by HIH, GIO by AMP and Savage Resources by Pasminco.
Author: Tom Story
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 703
'Waltzing Matilda' - registrable as a trade mark or not?
The Federal Court has ruled against an application to register the trade mark 'WALTZING MATILDA' for a variety of foods and associated services. It found that the Winton Shire Council and the Waltzing Matilda Centre Limited (also in Winton, Queensland) had the better rights to ownership of the Australian icon - despite them not having coined the term 'Waltzing Matilda'.
Author: Samantha Christie
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 660
Cybercrime Act: some unforeseen consequences
The Commonwealth Government has attempted to address the increasing problems of IT security for online activities and business by enacting the Cybercrime Act 2001. The intention behind the Act is to criminalise activities such as computer hacking, denial of service attacks, spreading computer viruses and interfering with websites.
Author: Adrian McCullagh & Martin McEniery
Firm: Freehills
Date: September, 2002
Times viewed: 647
Innocent party defending itself against being sued for hacking attack
In June 2001 sportswear company Nike was the victim of a hacking attack when their website was hijacked, resulting in redirection of their web and email traffic to an anti-Nike site via a Scottish internet service provider, FirstNET Online.
Author: Martin McEniery & Nicola Ross
Firm: Freehills
Date: September, 2002
Times viewed: 595
Privacy and IT security alert: contracts with EU residents
In 2001, the European Commission issued two directives outlining standard contractual clauses to be incorporated in transactions involving transfers of personal data to countries outside the EU.
Author: Adrian McCullagh, Martin McEniery & Nicola Ross
Firm: Freehills
Date: September, 2002
Times viewed: 498
Board responsibility for protecting information assets
This article looks at what threats exist, what governments are doing, what new laws have come in and how they impact with existing laws. It concludes with some suggestions on what boards should do to manage the situation.
Author: Martin McEniery, Adrian McCullagh & Michael Fernon
Firm: Freehills
Date: September, 2002
Times viewed: 353
Copyright - 'The Panel' decision - news and satire in television today (Copyright - 'The Panel' decision - news and satire in television today)
The Prime Minister singing 'Happy Birthday' for Sir Donald Bradman is newsworthy, isn't it? A recent decision of the Full Federal Court suggests it may not be, for the purposes of establishing a defence to copyright infringement.
Author: Jackie O'Brien, Sabiene Heindl, and Dana Wintermantel
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 215
Leniency: a top ACCC priority
On 5 July 2002, the ACCC released a draft leniency policy in relation to cartel conduct (which includes price fixing, collusive tendering, market sharing and production or sales quotas).
Author: Deborah Yates and Peter Toy
Firm: Deacons
Date: September, 2002
Times viewed: 480
The Trade Practices Act Review
The Dawson Inquiry into the competition provisions of the Trade Practices Act has received over 100 submissions from a diversity of stakeholders including consumer groups, large and small businesses from a variety of sectors, academics, peak industry bodies and of course the ACCC itself. The Inquiry, chaired by former High Court Justice Sir Daryl Dawson, is now conducting one on one consultation with interested parties prior to a final report being delivered by the end of November 2002.
Author: Stephen Giles and Nick McHugh
Firm: Deacons
Date: September, 2002
Times viewed: 413
Patenting of business systems
The Australian Government is examining the issue of patents for business system inventions, with a view to possible legislative reform. Chris Bird looks at the arguments for and against allowing patenting of business systems.
Author: Chris Bird
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 602
Passing off - sailing close to the wind can tip you over - principles of passing off confirmed
A recent case involving the fastest growing beverage sector in the world - energy drinks - has confirmed some principles of passing off and introduced the concept of 'gestalt' or 'total imagery' of a brand.
Author: Hugh FitzSimons
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 697
Copyright - Telstra Corporation Limited v Desktop Marketing Systems Pty Ltd on appeal in the Federal Court
On 15 May this year, the Full Federal Court upheld a decision at first instance by Justice Finkelstein of the Federal Court in favour of Telstra Corporation Limited (Telstra) supporting its claim to copyright in the White and Yellow Pages.
Author: Chad de Souza
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 982
Banker's Security - a whole new ball game?
Following the Federal Government's proposed change to priorities between creditors of companies in liquidation, the Treasury has issued a discussion paper for consideration by the Law Council of Australia.
Author: Geoff Rankin and Lisa Martin
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 549
Revised Code of Banking Practice
The Australian Bankers Association (ABA) has issued a revised Code of Banking Practice (Code) based on the recommendations of an independent review of the Code. The ABA expects member banks to adopt the revised Code by August 2003. The article outlines the major changes to the Code and their implications for banks.
Author: Andrew Ham and John McKenna
Firm: Freehills
Date: September, 2002
Times viewed: 611
Licensing for wholesale fund managers
The Financial Services Reform Act (FSRA) will require virtually all wholesale fund managers, including managers of private equity and venture capital funds to hold an Australian Financial Services Licence (Licence) issued by the Australian Securities and Investment Commission (ASIC).
Author: Luke Gannon
Firm: Freehills
Date: September, 2002
Times viewed: 577
High Court’s decision in Ward -v- WA The Miriuwung-Gajerrong Peoples claims
The importance of the High Court decision in the case of Ward.
Author: Martin Klapper
Firm: Hopgood Ganim Lawyers
Date: September, 2002
Times viewed: 580
Trademark office fees encourage applicants to use technology
The Australian Trademarks Office, IP Australia, will be charging slightly altered fees for various trademark procedures as at 1 September 2002. How much they charge may depend upon whether or not you use e-mail!!
Author:
Firm: Hopgood Ganim Lawyers
Date: September, 2002
Times viewed: 613
Marion Le featured in new book on Asian and Pacific women
Immigration Solutions consultant Marion Le is the subject of a chapter in "Weaving a Double Cloth," an oral history focusing on the experiences of ten Asian and Pacific migrant women in Australia.
Author: Anne O'Donoghue, Tim McDonald
Firm: Immigration Solutions
Date: September, 2002
Times viewed: 511
Federal Court stops removal order
Case decision, which may be precedent setting by shoring up the rights of review for immigrants.
Author: Anne O'Donoghue, Tim McDonald
Firm: Immigration Solutions
Date: September, 2002
Times viewed: 487
Pregnant players - see your doctor
The Pregnancy in Sport: Guidelines for the Australian Sporting Industry (Guidelines) were released by the Federal Minister for the Arts and Sport on 13 May 2002. The Guidelines are based on the National Forum on pregnancy in Sport held in Sydney on 1 August 2001.
Author: Dan Buckley
Firm: Ebsworth & Ebsworth
Date: September, 2002
Times viewed: 809
Who has the rights in geographical domain names?
The registration of domain names has, as the Internet has grown in importance, become more of a vexed issue. The registration and subsequent holding can be further complicated when the domain name being considered is also a geographical place name, especially in instances where some other body, such as a local government, attempts to assert rights over the domain name.
Author: John Hanna & Philip Hourigan
Firm: Deacons
Date: September, 2002
Times viewed: 527
Deep linking - Danish court decision
“Deep links” are hyperlinks that bypass another site’s homepage, and lead users directly to specific content. Around the world, a growing number of organisations and online publishers are cracking down on deep linking.
Author: Emma Van Haaster
Firm: Deacons
Date: September, 2002
Times viewed: 429
The reasonable hours test case - what does it mean?
On 23 July 2002 the Australian Industrial Relations Commission handed down its decision in relation to the ACTU’s reasonable hours application. The ACTU had claimed that the following three clauses should be inserted in Federal awards, as a test case standard.
Author: Katie Ellinson
Firm: Deacons
Date: September, 2002
Times viewed: 903
Are you ready for the new OHS obligations?
New Occupational Health and Safety (“OHS”) obligations commence in NSW on 1 September 2002 for most employers. The obligations require employers to develop procedures for OHS consultation and undertaking risk assessments.
Author: Wayne Spanner and Michael Tooma
Firm: Deacons
Date: September, 2002
Times viewed: 437
Dispute resolution: training the litigant
Many companies involved in major disputes, particularly where those disputes have been resolved through litigation or arbitration, look back on the process as expensive, time consuming and, above all, frustrating. The frustration often arises because when embarking on litigation or arbitration, the company managers and executives are moving into an area beyond their comfort zone and outside both their area of technical expertise and their personal experience.
Author: Bronwyn Lincoln
Firm: Freehills
Date: September, 2002
Times viewed: 514
How secure are your revenues?
Just days after an embarrassing loss in legal proceedings against the shareholders of failed broadcaster ITV Digital, the Chairman (Keith Harris) and CEO (David Burns) of the English Football League paid the ultimate price, being forced to resign. The collapse earlier this year of ITV Digital and the Football League's inability to recover nearly A$520 million in outstanding rights fees now jeopardises the future of dozens of league clubs and hundreds of players.
Author: Jonathan Forbes
Firm: Freehills
Date: September, 2002
Times viewed: 355
Dangerous throw lands coach in $5.7 million claim
On 6 May 2002, the Victorian Supreme Court handed down its decision in Foscolos v Footscray Youth Club and Parker. Foscolos, an inexperienced wrestler, is a quadriplegic as a result of a “suplex” throw during a training bout.
Author: Lorenzo Crepaldi
Firm: Ebsworth & Ebsworth
Date: September, 2002
Times viewed: 712
Termination and super: good advice matters
A recent ACT Supreme Court decision commented on the duty owed by a Government authority in giving retirement advice to a former naval officer.
Author: Matthew Smith
Firm: Ebsworth & Ebsworth
Date: September, 2002
Times viewed: 644
Obtaining financial services licenses: meeting the challenge
Since 11 March 2002, new financial services businesses have had to seek an Australian Financial Services Licence (“AFSL”).
Author: Andrew Goldstein
Firm: Ebsworth & Ebsworth
Date: September, 2002
Times viewed: 579
Update on NSW Greenhouse-Related Licence Conditions for Retailers, Market Customers and Generators (Update on NSW Greenhouse-Related Licence Conditions for Retailers, Market Customers and Generators)
An overview of the special characteristics of the NSW Government Emissions Reduction Scheme.
Date: September, 2002
Times viewed:
ASIC Issues Interim Stop Orders for Product Disclosure Statements
ASIC announced on 8 August 2002 that it has placed interim stop orders on two product disclosure statements (PDSs).
Author: Phil Logan
Firm: Abbott Tout
Date: September, 2002
Times viewed: 299
COM.AU Domain Names Are Now Easier to Register
Recent changes to the com.au domain name policy by AUDA (.au Domain Administration Ltd) mean that it will now be easier for Australian businesses to register a domain name in the com.au domain space.
Firm: Abbott Tout
Date: September, 2002
Times viewed: 310
What Are Reasonable Hours?
Now that it has been accepted by the Full Bench of the Australian Industrial Relations Commission ("AIRC") that working hours have changed significantly over recent decades, one might ask the question, "What are reasonable hours?" and what do they mean for workplace relations.
Author: Bryan Belling, Gary Punch and Stephanie Vass
Firm: Abbott Tout
Date: September, 2002
Times viewed: 394
Short Message Service (SMS) Issues industry code
By April 2000, a high level of interconnectivity was reached for SMS. Since then, use of SMS technology has grown rapidly. SMS has become increasingly important as a marketing tool and as a revenue stream for telcos. The ACA, in its most recent Telecommunications Performance Report, indicated that at the end of 2001 more than 30% of subscribers used SMS, with carriers experiencing explosive rates of growth. This has mirrored the overseas experience.
Author: Fiona Crosbie and Ian McGill
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 621
No implied right to redundancy payments
Emma Miller reviews a decision of the Western Australian Industrial Appeal Court that rejects the notion of an implied contractual right to severance pay on redundancy.
Author: Emma Miller
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 552
Walking the dismissal tightrope
Simon Dewberry compares two recent decisions contrasting the approaches of tribunals faced with summary dismissal for serious misconduct.
Author: Simon Dewberry
Firm: Allens Arthur Robinson
Date: September, 2002
Times viewed: 563
Guidelines for the security of information systems and networks released
On 8 August 2002, the Federal Attorney Generals office publicised the new OECD 'Guidelines for the security of information systems and networks - Towards a culture of security'. The publication is important because it exhibits not only the Federal Attorney Generals commitment but also Australia's to the issue of IT security.
Author: Adrian McCullagh
Firm: Freehills
Date: September, 2002
Times viewed: 428
Reasonable hours test case decision
A Full Bench of the Australian Industrial Relations Commission handed down its decision on the reasonable hours test case on 23 July 2002. The Full Bench rejected most of the Australian Council of Trade Union’s (ACTU claim, but decided to award a more limited test case provision regarding an employee’s right to refuse overtime.
Author: Graeme Watson
Firm: Freehills
Date: September, 2002
Times viewed: 377
Recent Federal Court decision has implications for outsourcing
Justice Branson of the Federal Court (Court) recently held that the sale of a ship to a related company, and replacing the ship’s Australian crew with a Ukrainian crew on lower pay rates and conditions, was not a breach of the freedom of association provisions of the Workplace Relations Act 1996 (Cth) (WR Act).
Author: Delia Keag and Paul Volich
Firm: Freehills
Date: September, 2002
Times viewed: 476 | | | | | August 2002 | | | |
Avoiding disputes with consultants
Organisations regularly engage consultants to create a wide variety of material for them. This material can include training manuals, information manuals, technical guides, software and so on. A recent Queensland Supreme Court case highlights the care that must be taken by both sides when entering into such an arrangement.
Author: Irene Zeitler
Firm: Freehills
Date: August, 2002
Times viewed: 484
Recruitment discrimination against transsexuals
Two recent decisions of the New South Wales Administrative Decisions Tribunal dealing with transgender discrimination claims brought by one applicant set out important findings for recruitment agencies and employers.
Author: Tony Wood and Sylvia van der Heyden
Firm: Freehills
Date: August, 2002
Times viewed: 683
Redundancy windfall in transfer situation
The Federal Court has held that employees were entitled to redundancy payments in a situation where their employment transferred to a subsidiary company, even though the employees continued working in the same jobs and on the same terms and conditions of employment.
Author: Paul Burns and Shivchand Jhinku
Firm: Freehills
Date: August, 2002
Times viewed: 394
Pitfalls for the unwary: the transferability of intellectual property licences
It is not just the ownership of intellectual property rights that can be important to a company's business, but also the right to use intellectual property rights. The latter is usually evidenced in some form of licence, including a patent licence, trade mark licence, software licence and other forms of copyright licence.
Author: Adam Liberman
Firm: Freehills
Date: August, 2002
Times viewed: 292
Increased Rights for Employees
An outline of the amendments made to Industrial Relations legislation by the Industrial Relations Amendment Act 2001.
Author: Johan Myburgh
Firm: Hopgood Ganim Lawyers
Date: August, 2002
Times viewed: 480
Dow Jones goes another round with Gutnick
Dow Jones’ High Court appeal against the decision of the Victorian Supreme court in the case of Gutnick v Dow Jones and Company Inc began in May 2002. The sole issue which the court is being called upon to decide is where publication on the Internet occurs. Is it where the material is posted or where it is downloaded and comprehended by the reader? The case is unique in that it is the first time that an ultimate appellate Court has been required to determine this issue. For this reason, the case will no doubt be studied with great interest particularly by the courts of other Commonwealth countries.
Author: Catherine Ekambi
Firm: Abbott Tout
Date: August, 2002
Times viewed: 269
Avoiding the high price of debt recovery
When a person or company owes you money, the last thing you will probably consider is that in attempting to recover the cash you may end up paying the debtor’s costs. Issuing a statutory demand to get your money may appear the more efficient way to recover the debt, however, it can often be the opposite.
Author: Penne McKew
Firm: Abbott Tout
Date: August, 2002
Times viewed: 598
Beware the inventive Marketing Manager!
This article discusses issues around automatic ownership of intellectual property generated by employees. Despite a common assumption by employers that they will own staff-generated IP, this is not necessarily the case.
Author: Jeff Bergmann
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 515
Liability, credit card expenses and insolvency
Are directors personally liable for company credit card expenses in the event of insolvency?
Author: Michael Quinlan and Dirk Fairweather
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 711
Mandatory mediation
Jenny Campbell considers the concept of mandatory mediation and the circumstances in which the courts can compel litigants to mediate against their will.
Author: Jenny Campbell and Thomasin Opie
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 980
The High Court speaks on Native Title
The High Court has handed down its decision in two significant native title cases: Western Australia v Ward [2002] HCA 28 and Wilson v Anderson [2002] HCA 29.
Author: Tony Wassaf
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 755
Regulatory developments to improve the quality and reliability of core services
On 16 July this year, Federal Communications Minister Senator Richard Alston unveiled the Telecommunications Network Reliability Framework.
Author: Fiona Crosbie
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 597
ACCC deregulates local call resale services in major capital cities
On 22 July, the ACCC announced the removal of access regulation for wholesale local carriage services in the CBD areas of Sydney, Melbourne, Brisbane, Adelaide, and Perth (the deregulated CBDs).
Author: Fiona Crosbie
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 589
Drug addiction in the workplace
The Anti-Discrimination Amendment (Drug Addiction) Act 2002 (NSW) (Act) received assent and came into force on 15 April 2002.
Author: Robyn Mcllroy
Firm: Freehills
Date: August, 2002
Times viewed: 417
Privacy and commercial transactions
The Privacy Amendment (Private Sector) Act 2000 (Cth) (Act) came into operation in Australia on 21 December 2001. The Act implements 10 National Privacy Principles (NPPs) which regulate the handling of personal information by private sector organisations. This article demonstrates how some of the privacy implications affect the sale or purchase of a business, particularly in relation to employee personal information.
Author: John Cooper , Sue Coleman and Catherine Dixon
Firm: Freehills
Date: August, 2002
Times viewed: 499
Union official or employee: Which role comes first?
A recent Federal Court decision has considered the ‘right’ of an employee to speak to the media. This decision highlights the difficulties employers may face when dealing with conflicts between an employee’s union role and the employee’s duties to his or her employer.
Author: Kerryn Tredwell and John Tuck
Firm: Freehills
Date: August, 2002
Times viewed: 381
Employer and recruitment agent found liable for misleading and deceptive conduct
A recent decision of the Full Court of the Federal Court sends a warning to both employers and recruitment agents that they may be found liable for misleading and deceptive conduct under section 52 of the Trade Practices Act 1974 (Cth) (TPA) for representations made to job applicants or persons whom they seek to ‘head hunt’.
Author: Rebekah Fryer and Paul Burns
Firm: Freehills
Date: August, 2002
Times viewed: 565
Break fees are back in the news
The Australian Securities and Investments Commission brought an application to the Australian Takeovers Panel on 14 June 2002 in which it sought a declaration that the exclusivity and break fee arrangements agreed between Ausdoc and ABN AMRO, which were announced by Ausdoc on 22 May 2002, were 'unacceptable circumstances' under the Corporations Act 2001.
Author: Kon Mellos
Firm: Freehills
Date: August, 2002
Times viewed: 465
The Launch of .au Dispute Resolution Policy
The .au Domain Names Dispute Resolution Policy (auDRP) commenced on 1 August 2002. The auDRP is intended to provide a cheaper and quicker alternative to litigation for resolution of disputes between .au domain name registrants and parties with competing rights in the domain name.
Author: Philippe Rodhain
Firm: Phillips Ormonde Fitzpatrick
Date: August, 2002
Times viewed: 465
ASIC provides guidance on compliance with PS 146
In response to industry queries about how ASIC intends to implement Policy Statement 146 (Training of Financial Product Advisers), ASIC has recently issued Information Release IR02/10, providing some guidance to advisers on compliance with PS 146.
Author: Jane Tran
Firm: Ebsworth & Ebsworth
Date: August, 2002
Times viewed: 583
Federal Court ruling questions conduct of recruitment process
A Federal Court ruling sends a warning to employers and recruitment agencies that they may both be found liable for misleading and deceptive conduct for representations made to job applicants.
Author: Paul Burns and Rebekah Fryer
Firm: Freehills
Date: August, 2002
Times viewed: 524
Federal Court permits 'chipping' of Sony PlayStation to continue unhindered
In a significant decision handed down on Friday 26 July (Kabushiki Kaisha Sony Computer Entertainment v Stevens), the Federal Court of Australia rejected an application by multinational Sony Computer Entertainment to prevent the continued supply to consumers of specialised computer chips which enable imported and copied games to be played on PlayStation consoles sold in Australia.
Author: Rebekah Gay
Firm: Freehills
Date: August, 2002
Times viewed: 341
New legislative changes affect review process
New legislation aimed at streamlining the migration review process is threatening to make it more difficult for applicants to appeal a decision or rectify an error at the department level.
Author: Anne O'Donoghue, Tim McDonald
Firm: Immigration Solutions
Date: August, 2002
Times viewed: 458
Product liability insurance – what does it cover?
Andrew Maher reports on the recent case of James Budgett Sugars Limited v Norwich Union Insurance Limited1. In that case, the English High Court found that a product liability insurance policy did not cover an insured for economic loss which resulted indirectly from the supply of defective products.
Author: Andrew Maher
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 690
NSW leads the way in introducing public liability reform
The Civil Liability Act 2002, containing major reform for product liability actions in New South Wales, received Royal Assent on 18 June 2002. This article outlines the effect of the Act on personal injury claims and other damages claims.
Author: Mark Lindfield
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 806
Protection of corporate reputation
This highlights some common situations in which reputational issues arise for corporations, businesses, and professional service providers.
Author: Roy Williams
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 930
ACCC Draft Leniency Policy
The ACCC's Draft Leniency Policy seeks to adopt a similar approach to that used in the US and UK for the detection of cartels. In developing a focused leniency policy for cartel conduct, the ACCC is seeking to break through the high level of secrecy that usually surrounds cartels.
Author: Simon Writer
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 492
Do's and don'ts in negotiating contracts
Skill in negotiating contracts is one of the most valuable commercial attributes a person can have in business. However, what may be seen as a good negotiation may not necessarily be viewed so positively in the eyes of the law. There is often a temptation to exaggerate the qualities of the product or service you are selling. Whilst this may clinch the deal, it can create legal problems if the purchaser decides that what the product was represented to be is not actually what they got.
Author: Damian Ward
Firm: Abbott Tout
Date: August, 2002
Times viewed: 647
Unconscionability and s 51C of the Trade Practices Act
The Full Federal Court of Australia, in a judgment delivered on 6 February 2002, has now considered the meaning of “unconscionability” in section 51AC of the Trade Practices Act. The Full Court’s decision Australian Competition and Consumer Commission v Samton Holdings Pty Limited (2002) is an important decision regarding the application of unconscionable conduct in respect of retail leases. However, as stated below it has its limitations.
Author: Stephen Pallavicini
Firm: Abbott Tout
Date: August, 2002
Times viewed: 530
Recent ATO ruling on GST
The ATO has recently held that GST may apply to the supply of services in
Australia under an agreement with a nonresident not in Australia: ATO Intepretative Decision 2002/439. This decision may have implications for
Australian financial service providers who, for example, enter into agreements for the supply of services to non-resident entities with resident subsidiaries.
Author: Lorenzo Crepaldi
Firm: Ebsworth & Ebsworth
Date: August, 2002
Times viewed: 438
"Your Honour, it was an accident"
Some insurance policies pay benefits in the event that the insured person dies as the result of an “accident”; for example, death resulting from the accidental malfunction of machinery, a road accident or plane crash. In these types of situations, it is normally clear that death is “accidental”.
Author: Peter MacKenzie and Jane Tran
Firm: Ebsworth & Ebsworth
Date: August, 2002
Times viewed: 574
Ministerial review: getting it right
A failed appeal to the Refugee Review Tribunal (RRT) is not always a fatal blow for people trying to invoke Australia’s protection obligations.
Author: Anne O'Donoghue, Tim McDonald
Firm: Immigration Solutions
Date: August, 2002
Times viewed: 456
Recent Tax Relief Announcements: De-mergers
Impact of the Ralph Review of Business Taxation on companies and trusts.
Author: Alison Chappell
Firm: Corrs Chambers Westgarth
Date: August, 2002
Times viewed: 495
Overturning "Absurdities" in Agreements
When can a clearly stated provision in a legal agreement be rewritten to give it a different meaning?
Author: Colin Windeyer
Firm: Henry Davis York
Date: August, 2002
Times viewed: 617
"Unconscionable Conduct " by Landlords Under Leases
The use of section 51AC of the Trade Practices Act against landlords.
Author: Colin Windeyer
Firm: Henry Davis York
Date: August, 2002
Times viewed: 716
Back door listing - an alternative to an IPO
An alternative approach to listing on the ASX.
Author: Robyn Phillips
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 982
Promises, promises ...
Misleading statements made by an employer, or a recruitment agent acting on behalf of an employer, can expose the employer to claims from employees relying on those statements to their detriment.
Author: Paul Moorhouse
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 477
Federal Court cleans up the Electrolux issue
Employers have lost a valuable strategic edge in enterprise bargaining negotiations since the Federal Court confirmed a negotiating party's right to take protected action over a broad range of issues during enterprise bargaining.
Author: Jamie Wells
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 435
Reformed Takeovers Panel wins plaudits
The Takeovers Panel is becoming increasingly popular with the business community.
Author: Nicole Calleja
Firm: Allens Arthur Robinson
Date: August, 2002
Times viewed: 450
If you license trade marks or have distribution arrangements have you granted a franchise?
What do you think of when you think of a franchise? Following the commencement of the Franchising Code of Conduct in 1998, a wide range of commercial relationships are being regulated. In this article, we identify some warning signs that may help identify whether your arrangement is one that may need to comply with the obligations of the Franchising Code of Conduct.
Author: Amalia Stone
Firm: Freehills
Date: August, 2002
Times viewed: 333
Class heading protection for trade marks: not as broad as you may think
Does a trade mark application or registration covering a 'class heading' cover all goods or services that fall within that class? This is the issue that was considered by a delegate of the Australian Registrar of Trade Marks recently.
Author: Bill Ladas
Firm: Freehills
Date: August, 2002
Times viewed: 338
Changes to Australian Patents Act now in force
The Patents Amendment Act 2001 (Act) brings the requirements of Australia's patent system more into line with those in many other countries, particularly in relation to novelty and inventive step requirements. However, the requirement to disclose all search results may be the most onerous in the world.
Author: Ross McFarlane and Nicole Armanasco
Firm: Freehills
Date: August, 2002
Times viewed: 323
ASIC's guide to the hawking provisions
As a result of industry concerns about the broad scope of the anti-hawking provisions, ASIC has released a paper providing guidance and clarification on issues to consider when complying with the hawking prohibitions.
Author: Emily Nighjoy-Wong
Firm: Ebsworth & Ebsworth
Date: August, 2002
Times viewed: 946
Your super - its now family property
Many super fund trustees and their advisers would be aware of the proposed changes to superannuation interests under the Family Law Act 1975 (“the Act”). In summary, these changes will treat superannuation interests as “property”, which then may be subject to agreements or orders under the Act.
Author: Scott Charaneka
Firm: Ebsworth & Ebsworth
Date: August, 2002
Times viewed: 559 | | | | | July 2002 | | | |
Avoiding the pitfalls of hiring an immigration consultant
New legislation is being introduced to crack down on bad migration agents, this article provides an overview of the new Bill.
Author: Anne O'Donghue & Tim McDonald
Firm: Immigration Solutions
Date: July, 2002
Times viewed: 517
Dual Citizenship Wins Approval of Australians Overseas
A new rule will allow Australians to adopt foreign citizenship without relinquishing their Australian citizenship.
Author: Anne O'Donoghue & Tim McDonald
Firm: Immigration Solutions
Date: July, 2002
Times viewed: 515
Security of Payment - Coming to a State Near You Soon - Part 1
An overview of the the NSW review of the Building and Construction Industry Security of Payment Act 1999.
Author: Sean Bailey
Firm: Corrs Chambers Westgarth
Date: July, 2002
Times viewed: 530
Renewable Energy Legislation Being Amended
An outline of the proposed amendments to the Commonwealth's Renewable Energy legislation.
Author: Graeme Dennis
Firm: Corrs Chambers Westgarth
Date: July, 2002
Times viewed: 453
Privacy and the employment relationship
A discussion of what is and is not exempt from the Federal Privacy Act as part of the employment relationship.
Author: Lisa Matthews
Date: July, 2002
Times viewed: 654
Changes to .com.au registrations
The Australian (.au) domain name space has recently undergone major changes, which were implemented on 1 July 2002.
Author: Sean McManis
Firm: Shelston IP
Date: July, 2002
Times viewed: 517
Don't miss the boat - deadlines for international patents
Recent amendments to examination deadlines under the Australian Patent Law now provide a few “second chances” if a deadline for patent examinations or payment of fees is missed.
Author: Clare Isaac
Firm: Hopgood Ganim Lawyers
Date: July, 2002
Times viewed: 294
The power of confidence
Recent decisions of the High Court and the New South Wales Supreme Court have given confidentiality agreements the tick of approval.
Firm: Hopgood Ganim Lawyers
Date: July, 2002
Times viewed: 461
Humour not a defence
Given the popularity of comic based current affairs programs, the recent decision of the Federal Court in the Panel Case will be of concern to television producers. However, the decision also has ramifications for other forms of media, including the Internet
Firm: Hopgood Ganim Lawyers
Date: July, 2002
Times viewed: 346
New classes for trademark registrations
Until recently, trademark applicants had to select from a list of 42 classes of goods and services those for which they would require trademark protection.
Firm: Hopgood Ganim Lawyers
Date: July, 2002
Times viewed: 367
Shoot the pirate but aim at the messenger!
Software piracy and breach of copyright is alive and well in 2002, now more than ever, and the internet remains the medium of choice for software pirates to advertise their “warez”. It is the same problem that has existed since commercial software was first published, but the pirates have now become more slippery and a little wiser.
Author: Scott Coulthart
Firm: Hopgood Ganim Lawyers
Date: July, 2002
Times viewed: 324
Who Really are the Directors of Your Company?
Directors are faced with strict ethical and legal obligations. It is therefore important that a person conducting similar duties and roles as a director, although not carrying the title of director, realises that they may share the same responsibilities and liabilities as a director.
Author: Sarah Tobin
Firm: Middletons Lawyers
Date: July, 2002
Times viewed: 596
Expanding your workforce
In today’s corporate world it is clear that access to skills, ideas, contacts and technology from overseas can be extremely beneficial to the success of Australian businesses. A number of visa categories recognise this and make provision for the recruitment of foreign workers to conduct or establish businesses in Australia.
Author: Joanne D’Andrea
Firm: Middletons Lawyers
Date: July, 2002
Times viewed: 651
A Win for the Taxpayer – protected equity product interest fully deductible
In a significant win for taxpayers, the Full Federal Court has held that the entire amount of interest expense incurred on a protected equity investment loan (PEIL) was on revenue account and therefore deductible.
Author: Janina McMahon
Firm: Middletons Lawyers
Date: July, 2002
Times viewed: 576
PTSD and Criminal Law
An extract from Expert Evidence: Law, Practice and Procedure looking at the role PTSD has to play in criminal law.
Author: Ian Freckleton and Hugh Selby
Date: July, 2002
Times viewed: 726
Scientific Evidence as Circumstantial Evidence
An extract from the book Expert Evidence: Law, Practice and Procedure looking at the role of scientific evidence.
Author: Ian Freckleton & Hugh Selby
Date: July, 2002
Times viewed: 608
Financial Services Reform: Referrals to Financial Services Licensees
The changes introduced by the Financial Services Reform Act 2001 have far reaching consequences to business practices involved in referring clients to financial product advisers.
Author: Jim Bulling & Ben Plotnik
Firm: Middletons Lawyers
Date: July, 2002
Times viewed: 714
Now that's entertainment!
Recently the Full Federal Court was required to consider the nature of copyright in a television broadcast and whether the copying and re-broadcasting of a few seconds of various television programs resulted in copyright infringement of the original broadcast. The Full Court unanimously held that the relevant subject matter of copyright in a television broadcast is not the transmission of the television broadcast itself but rather it is the content of each and every transmission that is broadcast. Importantly, the Full Court commented that subject to statutory exceptions and fair dealing, the exclusive rights of a copyright owner in a television broadcast are protected to the extent that the photographing, copying and re-broadcasting of a single unaltered image (being still or visual) of a television broadcast could result in copyright infringement.
Author: Shail Singh and Mark Chivers
Firm: Home Wilkinson Lowry
Date: July, 2002
Times viewed: 420
Federal Court finds bargaining fee claims do not compromise protected action
A Full Court of the Federal Court has determined that enterprise bargaining claims by unions for the inclusion of a bargaining agent’s fee in a proposed certified agreement do not render industrial action unprotected. The decision means that unions are free to make such claims against employers and take protected industrial action in support of them. The Federal Minister for Workplace Relations, Hon. Tony Abbott, has already foreshadowed that an appeal or amending legislation will be considered to override the effect of the decision.
Firm: Freehills
Date: July, 2002
Times viewed: 378
Access to Neighbouring Land Act
An outline to the provisions of the Access to Neighbouring Land Act 2000.
Author: Construction Practice Group
Firm: Henry Davis York
Date: July, 2002
Times viewed: 1001
Pilot Project to ban Affidavits in many Interim Applications
An overview of the new Practice Direction 2 of 2002 - Project Mercury.
Author: Peter Szabo
Firm: Marshalls & Dent
Date: July, 2002
Times viewed: 581
The Last Word on Sale and Leaseback?
High Court rejects application by Commissioner of Taxation for leave to appeal decision in Metal Manufactures and Eastern Nitrogen.
Author: Craig Milner
Firm: Corrs Chambers Westgarth
Date: July, 2002
Times viewed: 766
More Effective Use of your Expert Witness in Family Law Proceedings: Conclusion
The conclusion to Peter Szabo's series on expert witnesses in family law proceedings.
Author: Peter Szabo
Firm: Marshalls & Dent
Date: July, 2002
Times viewed: 285
Break fee - when is it an unacceptable circumstance?
A company intending to enter into a break fee involving the issue of shares in itself to a bidder must ensure that the break fee does not give the bidder a substantial interest in the company and unfairly affect the interests of its existing shareholders.
Author: Tricia Lim
Firm: Allens Arthur Robinson
Date: July, 2002
Times viewed: 500
Labour reform or regression in WA?
The Labour Relations Reform Bill 2002 (WA) represents the first real attempt by a Labor government in Australia to roll-back the recent legislative trend towards the primacy of individual agreements in industrial relations. Michelle Barnes reviews the key aspects of the Bill.
Author: Michelle Barnes
Firm: Allens Arthur Robinson
Date: July, 2002
Times viewed: 607
Comparative advertising saga keeps going and going and going
The comparative advertising battles between Duracell and Eveready, and the legal principles applied.
Author: eCommerce
Firm: Henry Davis York
Date: July, 2002
Times viewed: 1002 | | | | | June 2002 | | | |
Co-existing names in different markets
The case of Sydney Markets Limited v Sydney Flower Market Pty Limited decided that similar domain names can co-exist in different markets.
Author: eCommerce
Firm: Henry Davis York
Date: June, 2002
Times viewed: 478
More Effective Use of your Expert Witness in Family Law Proceedings: The Potential Witness
An outline of the potential witnesses who may be called in a family law dispute.
Author: Peter Szabo
Firm: Marshalls & Dent
Date: June, 2002
Times viewed: 651
Insurer's right to avoid a life policy
If an insured exaggerates his or her earnings when applying for income protection insurance, section 29 of the Insurance Contracts Act should work in the insurer’s favour. However, that’s not always the case.
Author: Peter MacKenzie
Firm: Ebsworth & Ebsworth
Date: June, 2002
Times viewed: 666
"Unable" vs "Unlikely": is there a difference for TPD claims?
Several recent cases have highlighted the difference a few words can make
when determining total and permanent disablement (TPD) claims.
Author: Jane Tran
Firm: Ebsworth & Ebsworth
Date: June, 2002
Times viewed: 664
Internet - "Spamming" - unsolicited commercial email: the legal issues
Unsolicited commercial email may be an effective marketing tool, but it can be intrusive, offensive, or misleading.
Author: David Yates
Firm: Allens Arthur Robinson
Date: June, 2002
Times viewed: 632
The IP Question
A discussion of how patenting is just one part of a good asset management strategy.
Author: Jeff Bergmann
Firm: Allens Arthur Robinson
Date: June, 2002
Times viewed: 456
Managing Disputes: It's all about being prepared
One of the risks to all companies engaged in commercial activities is the risk of a dispute. Disputes are costly and time consuming and can divert resources away from the main business objectives of a company for long periods of time. Where the disputing parties are based in different countries, the risks are higher and the disputes generally more complex to resolve.
Author: Bronwyn Lincoln
Firm: Freehills
Date: June, 2002
Times viewed: 452
Choosing an arbitrator
Arbitration is now an accepted means of dispute resolution throughout the world. In theory it is seen as more efficient and enables parties to avoid foreign courts and judiciary. In practice this is not always the case. However, it does have the advantage of facilitating enforcement of awards against foreign parties.
Author: Bronwyn Lincoln
Firm: Freehills
Date: June, 2002
Times viewed: 491
Two caps on one head
There is no inherent conflict between an employee holding a management position and supporting u | | | |
