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- 09 March 2010
Focus: Causation in lung cancer and other disease casesThe High Court of Australia decided that the asbestos exposure of a smoker who died of lung cancer was not a cause of his injury. The decision highlights the substantial evidentiary burdens imposed on plaintiffs attempting to prove causation in negligence claims where there is no certain medical or scientific proof of what caused their injuries. Partner Andrew Maher reports
- 02 March 2010
Focus: ICSID arbitrator disqualified for comments in mediaThe Permanent Court of Arbitration at The Hague recently upheld a challenge that a state-respondent had brought against a leading arbitrator, holding that comments the arbitrator had made to the media gave rise to doubts regarding his impartiality or independence. Partner Matt Skinner, Research Assistant James Pearse and Lawyer Dr Sam Luttrell report
- 14 January 2010
Focus: UK report on business and human rightsA major United Kingdom Parliamentary Committee report on business and human rights in the UK recommends that the UK Government develop a clear set of standards that UK businesses would be expected to meet in order to comply with their responsibility to respect human rights. Partner Annette Hughes, Senior Associate Rachel Nicolson and Lawyer Catie Shavin look at the report, which also calls on the UK to provide leadership on international business and human rights issues
- 16 December 2009
Client Update: Legislative amendments to support international arbitration in AustraliaAmendments to clarify the operation of the International Arbitration Act 1974 and support the practice of international arbitration in Australia have been introduced into Federal Parliament. Partner Stephen McComish, Special Counsel Nicola Nygh and Lawyer Dr Sam Luttrell look at the amending legislation
- 14 December 2009
Focus: New commercial arbitration Acts for the statesThe Standing Committee of Attorneys General has released a consultation draft of the Commercial Arbitration Bill 2009. The proposed new State Commercial Arbitration Acts will be based on the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration 1985, with certain additional provisions intended to clarify the operation of the law and support the practice of arbitration in Australia. Special Counsel Nicola Nygh and Lawyer Dr Sam Luttrell report on the Bill.
- 11 December 2009
Focus: When are tax issues capable of settlement by arbitration?It is not unusual for one party to agree to indemnify another party for tax liabilities arising from particular projects or transactions. Partner Andrea Martignoni, Special Counsel Nicola Nygh and Lawyer Mark Hare look at a recent case in the Supreme Court of Victoria that indicated that a dispute arising under such an indemnity may be capable of settlement by arbitration
- 11 December 2009
Focus: New guidance on US shareholder resolutionsThe US Securities and Exchange Commission has just released new guidance on shareholder proposals that relate to ordinary business matters but also focus on significant social policy issues. This guidance indicates that it will no longer be possible to exclude such proposals on the basis that they require a company to engage in an assessment of the risks and liabilities that it may face as a result of its operations. Partner Annette Hughes, Senior Associate Rachel Nicolson and Lawyer Catie Shavin review the guidance, which has been issued in time for the 2010 proxy season
- 04 December 2009
Focus: Abuse of process in investment treaty arbitrationA recent decision of an arbitral Tribunal convened under the auspices of the International Centre for the Settlement of Investment Disputes contributes to the emerging notion of abuse of process in the jurisprudence of investment treaty arbitration. This line of authority has implications for treaty shoppers, insofar as it may limit investors' ability to change or acquire nationality for the purposes of Bilateral Investment Treaty claims by selling or assigning their claims to entities incorporated in other countries. Partner Stephen McComish and Lawyer Dr Sam Luttrell report
- 02 December 2009
Focus: Corporate liability under the US Alien Tort Claims ActA recent decision of the US Court of Appeal for the Second Circuit has made it more difficult for plaintiffs to establish corporate liability under the Alien Tort Claims Act by alleging complicity with state violations of international law. Partner Annette Hughes, Senior Associate Peter Haig and Lawyer Dora Banyasz report
- 02 December 2009
Client Update: Enforcement of contractual rights in DubaiLast week's announcement that a Dubai state trading entity, Dubai World, would suspend debt repayments for six months has raised the possibility of a significant sovereign default. Many foreign investors with exposure in Dubai are now asking how they can enforce their contractual rights in the troubled emirate. Partner Stephen McComish and Lawyer Dr Sam Luttrell report on the options available
- 30 November 2009
Focus: No political bar to US power companies being sued for emitting carbon dioxideTwo recent decisions of Federal Courts of Appeal in different Circuits in the United States have reversed the trend in lower US Courts to allow claims for damages based on climate change to be brought under federal common law nuisance principles. A more recent third decision of a lower federal District Court in a different Circuit, however, is a reminder of the hurdles for any potential climate change plaintiffs. Partners Matthew Skinner and Annette Hughes and Lawyer Julie-Anne Pearce report
- 23 November 2009
Focus: Comment sought for Australian Consumer Law consultation paperHigh-profile product safety recalls and discontent with Australia's fragmented approach to regulation have resulted in the planned introduction of a new product safety regime. The Standing Committee of Officials of Consumer Affairs has released for comment a consultation paper containing draft Regulation Impact Statements for best practice and product safety reform proposals. Partner Annette Hughes, Special Counsel Nicola Nygh and Lawyer Katherine Cooke report
- 11 November 2009
Focus: New guidance on proportionate liability claimsPartner Matthew Skinner and Senior Associate Philip Hopley consider a recent Victorian Court of Appeal decision and its likely impact on claims involving proportionate liability
- 30 October 2009
Client Update: ASX market supervision report releasedThe supervisory arm of the Australian Securities Exchange has this week released its 2009 annual report. Partner Miriam Stiel looks at the activities that were undertaken in the past financial year and at the implications for the year ahead
- 30 October 2009
Focus: Federal Court becomes 'one stop shop' for international arbitrationA Bill passed by the Senate this week will give the Federal Court concurrent jurisdiction with state and territory Supreme Courts in international arbitration matters. Partner Stephen McComish and Lawyer Dr Sam Luttrell report
- 23 October 2009
Focus: Removing REs - what the courts have been sayingIn recent months, several hostile attempts to remove responsible entities have come before the courts. As a result, there has been sharper focus on the statutory regime for changing responsible entities, with many of the relevant provisions of the Corporations Act 2001 (Cth) having now been tested. Partner Susan Burns and Senior Associate Penny Nikoloudis examine the effect of recent case law on the procedures for removing REs
- 22 October 2009
Focus: A cross for litigation fundingThe Full Court of the Federal Court has held that a litigation funding arrangement constitutes a managed investment scheme. Partner Belinda Thompson and Lawyer Nick Buttner report.
- 21 October 2009
Focus: Yet another tick for litigation fundingThe High Court has found that a litigation funding agreement without a cost indemnity provision does not constitute an abuse of process under the Uniform Civil Procedure Rules. Partner Ross Drinnan and Lawyer Hayden Smith report
- 16 October 2009
Focus: New anti-corruption legislationPartner Matthew Skinner and Senior Associate Tim Robinson look at new Commonwealth legislation that means individuals and corporations will face tougher legal sanctions if convicted of bribing foreign or Commonwealth public officials
- 15 October 2009
Focus: National human rights reportThe National Human Rights Consultation Report was released on 8 October 2009. Partner Ross Drinnan, Senior Associate Rachel Nicolson and Lawyer Jess D'Souza summarise the report's recommendations and consider the potential impacts on corporations
- 06 October 2009
Focus: Takeovers Panel proposal to disregard client legal privilegeThe Takeovers Panel has released a consultation paper regarding a proposed rewrite of the Panel's Procedural Rules for Proceedings. One of the proposed rule changes purports to exclude the usual rights of parties to claim privilege over communications with their legal advisers. Partner Richard Harris and Senior Associate Stephanie Wee examine the proposed rule changes
- 01 October 2009
Focus: NSW Supreme Court declines to intervene in arbitral awardsIn two recent decisions, the NSW Supreme Court has declined to intervene in determinations made by arbitrators. In Yang v S & L Consulting, the court enforced a Chinese arbitral award under the International Arbitration Act 1974, despite opposition by the award debtor that to do so would be contrary to public policy. In Goodman Holdings v Hughes, the court refused leave to appeal from a domestic arbitral award on the grounds of manifest error of law or technical misconduct of the arbitrator under the Commercial Arbitration Act 1984. Partner Andrea Martignoni, Special Counsel Nicola Nygh and Lawyer Tom Randall report
- 25 September 2009
Focus: Access to justiceThe Federal Attorney-General has recently released a report by the Access to Justice Taskforce. Its recommendations include a review of the Federal Court class actions regime and a proposal that the civil justice system recover the full public cost of protracted litigation from parties to those proceedings. Partner Peter O'Donahoo and Lawyer John Rainbird report.
- 22 September 2009
Focus: New UK Bill to impose corporate criminal liability for briberyThe UK Parliament is expected to pass a new Bribery Bill, which will impose criminal liability on corporations and senior officers for giving bribes, receiving bribes, or bribing a foreign public official. The Bill will have extraterritorial reach, so corporations with a direct or indirect business presence in the UK may face criminal liability for acts committed in the course of the company's business abroad. Lawyer Tess Fitzgerald, Senior Associate Rachel Nicolson and Partner Annette Hughes examine the Bill's provisions
- 18 September 2009
Focus: ACCC review of the product recall systemHigh profile product safety recalls and discontent with Australia's fragmented approach to regulation have created a drive for change to Australia's product safety regime. Legislation detailing a new product safety regime is intended to be introduced in early 2010, and is planned to be 'fast tracked'. The Australian Competition and Consumer Commission has now also announced a review of Australia's product recall system. Partner Annette Hughes and Lawyer Lily Tsen review the key elements of the proposed review of Australia's product recall system
- 24 August 2009
Focus: The importance of case management principles in civil litigationThe High Court recently sent a clear message that case management principles are important in ensuring that the interests of justice are served by minimising cost and delay for parties involved in litigation. The court's decision endorsed the current trend of increased utilisation of case management tools to improve access to justice, and the importance of the efficient and quick resolution of litigation in the modern era. Partner Irene Trethowan, Senior Associate Matthew McCarthy and Lawyer Eleanor Bishop report.
- 17 August 2009
Focus: New US Bill - foreign manufacturers' legal accountabilityThe Foreign Manufacturers Legal Accountability Bill S. 1606 of 2009 was introduced into the United States Senate recently. If the Bill becomes law, foreign manufacturers will be required to submit to the US's jurisdiction in order to continue selling their products in the US. Partner Annette Hughes and Lawyer Ruth Greenwood look at how this might affect foreign manufacturers' exposure to US product liability suits
- 10 August 2009
Client Update: Choosing the battleground - drafting clear jurisdiction clausesIn any contractual negotiations, particularly those with an international character, it is important the parties choose how and where disputes will be decided, and for this to be reflected clearly in the contract. Failure to do this can have unintended and potentially adverse consequences for one or more of the parties when a dispute arises. A recent case in the NSW Supreme Court has emphasised the importance of clear and precise drafting of jurisdiction clauses. Partner Andrew Maher and Law Graduate Cameron Miles report.
- 07 August 2009
Client Update: Complex corporate collapses and schemes of arrangement - Opes PrimeThe Federal Court of Australia has approved the Opes Prime schemes of arrangement which not only provide for the release of creditors' claims against the Opes companies, but also claims against their financiers. The decision paves the way for schemes to be used as an efficient mechanism to resolve the multitude of litigation that can flow from complex corporate collapses. Partners Belinda Thompson and Anne Ferguson report
- 30 July 2009
Focus: Government seeks comment on consumer rightsThe Federal Government has released an issues paper, Consumer rights: Statutory implied conditions and warranties, to seek comment on the adequacy of the current laws on implied conditions and warranties. Partner Jacqueline Downes, Special Counsel Nicola Nygh and Law Graduate James Kerr report
- 20 July 2009
Focus: Negotiating in good faithA recent New South Wales Court of Appeal decision provides practical guidance on the status of contractual clauses requiring parties to 'negotiate in good faith'. Partner Michael Hollingdale, Law Graduate Stuart Packham and Winter Clerk Peter Sadler report
- 07 July 2009
Focus: Australia to accede to Hague Convention on service abroadPartner Jenny Thornton and Law Graduate Sunili Govinnage report on the significance of the Federal Government's decision to accede to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965. The Convention will make it easier to serve court documents overseas, and this is a welcome step for those engaged in cross-border litigation before Australian courts
- 26 June 2009
Focus: Australian Consumer Law BillThe first step in the establishment of a uniform national consumer law was taken on 24 June 2009 with the introduction into Parliament of the Trade Practices Amendment (Australian Consumer Law) Bill 2009. The Bill will introduce a single national consumer law (to be known as the Australian Consumer Law), which includes provisions regulating unfair contract terms. Partner Jacqueline Downes and Lawyer Alexander Gelis report
- 24 June 2009
Client Update: Civil litigation reforms for the Federal CourtThe Federal Government has just introduced legislation into Parliament that represents the latest in a series of steps taken by Australian governments and courts to enhance access to justice and the efficient resolution of disputes. Partners Paul Meadows and Matthew McLennan and Senior Overseas Practitioner Nona Angharad look at what this means
- 24 June 2009
Client Update: Single national consumer law legislationThe Trade Practices Amendment (Australian Consumer Law) Bill 2009 was introduced into Parliament today. The Bill will introduce a single national consumer law (to be known as the Australian Consumer Law), as well as a national unfair contract terms law. Partners David Brewster and Jacqueline Downes and Lawyer Alexander Gelis report
- 13 May 2009
Focus: Another tick for litigation fundingThe Federal Court has dismissed an argument that litigation funding arrangements in a class action constituted a managed investment scheme. Partner, Ross Drinnan and Lawyer, Talitha Fishburn, report on the case
- 07 May 2009
Focus: New commercial arbitration legislation for the statesThe state and territory Attorneys-General have agreed to draft new uniform state Commercial Arbitration Acts based on the UNCITRAL Model Law on International Commercial Arbitration. Special Counsel Nicola Nygh and Lawyer Sam Luttrell report
- 06 May 2009
Focus: Amending registered scheme constitutionsA recent decision of the NSW Supreme Court provides important guidance on amending constitutions of registered managed investment schemes. Partner Matthew McLennan and Senior Associate Georgina Perry report
- 28 April 2009
Focus: Victorian Charter of Human RightsRecently, the Victorian Civil and Administrative Tribunal handed down a decision setting out in detail how the Charter of Human Rights and Responsibilities Act 2006 (Vic) is to be used to interpret legislation. Further to our Focus in October 2006 covering the general provisions of the legislation, Partner Belinda Thompson, Senior Associate Rachel Nicolson and Lawyer Monique Carroll discuss the impact of the decision and its importance for interpreting legislation in Victoria
- 27 April 2009
Focus: Federal FOI reformThe Federal Government has proposed an overhaul of freedom of information laws to provide greater public access to government information. As a result, companies that provide services to the Federal Government or whose business affairs are detailed in government information may find that their information is more susceptible to disclosure. However, companies seeking Federal Government information concerning administrative decisions or in connection with litigation may benefit from the reforms. Partners Paul Nicols and Alex Cuthbertson and Lawyer William Atkins report
- 21 April 2009
Focus: New Australian consumer lawRecently, the Federal Consumer Affairs Minister announced that the Government will 'fast track' new consumer protection laws. Partner Annette Hughes and Special Counsel Nicola Nygh discuss the key elements of the proposed Australian Consumer Law, which the Minister has said he will introduce into Federal Parliament in June 2009
- 06 April 2009
Focus: Safety at WorkIn our quarterly Focus on safety at work, we look at the second report on harmonisation of occupational health and safety laws in Australia, the dangers for employers even if an occupational health and safety risk is not located on work premises, risk assessment and the Beaconsfield Gold Mine disaster, the s28(a) defence in NSW, and the high penalties attracted by a failure to manage well-known risks to safety at work.
- 23 March 2009
Focus: Losing the right to terminate - election and no waiver clausesPartner Leighton O'Brien and Senior Associate Stephen Sander report on an English Court of Appeal decision and its implications for the effectiveness of 'no waiver' clauses when breach and termination of a commercial agreement are separated by many months of contractual performance
- 23 March 2009
Focus: Government review of statutory warranties and conditionsFederal Consumer Affairs Minister has announced a review of statutory implied conditions and warranties by the Commonwealth Consumer Affairs Advisory Council. Partner Annette Hughes and Special Counsel Nicola Nygh report
- 20 March 2009
Focus: Making whistleblowing easierThe Commonwealth Government recently released a report on whistleblowing. Partners Tim Frost and Matthew McLennan and Senior Associate Jane McCosker review the existing laws in this area, consider the likely impact of the report and offer some suggestions about how to approach the issue of whistleblower protection.
- 17 March 2009
Focus: Shareholder class actions - storm clouds gatherCurrent economic conditions are significantly increasing the risk of listed companies facing a class action claim brought by their shareholders. Against that background, Partner Alex Cuthbertson and Senior Associate Matthew McCarthy look at a number of issues of which listed companies and their directors should be aware
- 06 March 2009
Client Update: Class actions - the Jameson decisionThe NSW Court of Appeal has confirmed that class actions may be brought for alleged misleading and deceptive conduct, notwithstanding that the key issues must be individually established for each group member, provided a substantial common issue can be identified. This recent decision also confirms that representative action under the state's UCPR may be brought on behalf of a group defined by reference to entry into a litigation funding agreement, similarly to the position in the Federal Court
- 05 February 2009
Focus: Tax DisputesRecent court decisions highlight the potential risks of acting on common assumptions concerning the Australian Tax Office's use of confidential taxpayer information and the scope of the protection provided by a private binding ruling. Partner Malcolm Stephens and Senior Associate Chris Peadon from our Tax Dispute Group discuss these risks
- 02 December 2008
Focus: ArbitrationPartner Andrea Martignoni, Special Counsel Nicola Nygh and lawyer Anna Brown comment on the recent announcement made by the Attorney-General regarding the review of the International Arbitration Act 1974 (Cth) and the promising signs of reform in the arena of international arbitration
- 21 November 2008
Focus: Commercial LitigationOrganisations that do not provide websites accessible to disabled persons risk disability discrimination claims. Partner Belinda Thompson and Senior Associate Joanna Musk report on best practice guidelines issued by the Australian Human Rights Commission (formerly the Human Rights and Equal Opportunity Commission) to assist organisations to achieve accessibility
