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Content: Substance abuse in the workplace is an ongoing problem. Employers face not only alcohol-affected employees, but the impairment of workers from the use of illicit drugs. Employees under the influence of drugs.....
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Content: The Australian Government has released new National Employment Standards (“NES”) that aim to protect key entitlements of employees. The NES will apply to all employees......
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Content: In our last Transport & Logistics Newsletter, we outlined the proposed changes to the Heavy Vehicle Driver Fatigue Act 2006 and how it might affect your business. The new laws have been developed in several model bills .....
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Content: Predatory pricing occurs when a corporation sets its prices at a low level to damage or force competitors to withdraw from the market so it can then raise its prices and exploit consumers......
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Content: A man employed by the Australian Tax Office (ATO) for approximately two weeks has been awarded $121,762 after the Federal Court of Australia found his employer breached......
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Content: The Rudd Federal Government has now handed down its budget for 2008/9 and the following are the key highlights of most relevance to you and your business......
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Content: Rising interest rates…escalating mortgage stress … an increasing number of defaults and repossession…these are all part of Australia’s present economic climate......
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Content: The County Court of Victoria has ordered a record fine, $400,000, for a single breach of the Occupational Health & Safety Act 2004 (Vic) (OH&S Act) sending a serious message......
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Content: Many pharmacists are wondering where they stand with the notorious pharmacy ownership rules following changes to legislation and some much-publicised cases. Thankfully, the answer is simple......
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| Not-For-Profit Structures |
Content: Not-for-profit organisations, such as sporting clubs, religious organisations and private schools, may operate under a number of different structures. It is important that not-for-profit organisations......
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| Case closed on parallel importing – no joy for copyright owners |
Content: In a blow to copyright owners Australia-wide, Rares J of the Federal Court recently held that local owners of copyright in a mark or logo are unable to prevent unauthorised parallel import......
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| Testing the Act – designs, dresses and copies |
Content: In the past, clothing designers alleging infringement of their designs found recourse under the Copyright Act 1968 and the copyright in their dressmaking patterns. This case shows that designers......
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| High Court decision suggests changes needed to Bankruptcy Act |
Content: High Court decisions on provable debts under the provisions of section 82 of the Bankruptcy Act 1966 (Cth) are infrequent. On 7 December 2007, the High Court handed down its decision......
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| Who really owns your pharmacy? Big win for the Pharmacy Guild – Watch this space! |
Content: The decision of Attorney General for the State of NSW v Now.com.au Pty Ltd [2008] NSWSC 276 has the potential to have a severe impact on the Coles supermarket chain’s plans......
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Content: The decision of the Full Federal Court in Commissioner of Taxation v Word Investments Ltd [2007] FCAFC 171 has added a new dimension to the concept of charity. The main issue in the case was.....
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Content: The Federal Government’s transitional IR laws, which end the making of new AWAs, came into affect on Friday, 28 March 2008.....
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| Alert - Franchisors beware! Recent Changes to the Franchising Code | Damien Wurzel | |
Content: The recent NSW Court of Appeal case of Ketchell v Master Education Services Pty Ltd (“Ketchell”) serves as a warning to all Franchisors that failure to provide proper disclosure.....
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| | Elizabeth Guerra-Stolfa |
Content: Auditors have had much to grapple with in the last few years since the introduction of the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosures) Act 2004....
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Content: Have you considered registering your business or company name or the names of important products or services as a trade mark? Registered trade marks give you a proprietary interest in the name and you have statutory....
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| Workplace Relations & Employment Alert – February 2008 | |
Content: On 13 February 2008 the Federal Minister for Employment and Workplace Relations, Julia Gillard MP, introduced the first of Labor’s amendments to the Workplace Relations Act...
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Content: This case, Australian Securities and Investments Commission v Citrofresh International Limited and Narain [2007] FCA 1873, provides a timely reminder for Australian Stock Exchange (ASX) listed companies and their officers to be vigilant in ensuring that announcements made to the market are accurate, based on reasonable grounds and not misleading.
"The Australian Securities & Investments Commission has lodged an appeal against this decision. The appeal is likely to be heard later this year (2008)"
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| Defending the Insolvency Industry from Journalist Attack |
Content: Cornwall Stodart Corporate Advisory and Insolvency Partner, Stephen Newman, has defended the insolvency industry in a hard-hitting and authoritative letter to The Australian.......to read more about his defence of the industry view the complete Alert attached.
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| The Pharmacy Rules and Shopping Centres |
Content: Pharmacy Location Rules are now more flexible. However, the location or relocation of pharmacies in and around shopping centres can be complicated and applicants should seek professional advice......
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Content: The votes have been counted and Australia has decided to elect the ALP to Government. What changes can we expect to see in relation to industrial relations under this new Government? Below we provide.....
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| Reforming Australia's Privacy Laws | |
Content: Employee records…credit reporting…the invasion of privacy …these are just some of the areas of Australia’s privacy laws the Australian Law Reform Commission (ALRC) has identified.....
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Content: The Victorian Government’s Working with Children Check (WWC Check), introduced in April 2006, is aimed at preventing anybody likely to pose a risk to children working with them.....
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| Cartels are theft –usually by well-dressed thieves | |
Content: Visy and Amcor are exposed in a scathing Federal Court judgment about their involvement in a cartel concerning the supply of corrugated fibreboard packaging (CFP) products......
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Content: A Federal Court of Australia decision on a claim for legal professional privilege in a recent case, Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts......
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| | Marelda Hibberd |
Content: The Aboriginal Heritage Act 2006 (Vic) (Act), is designed to replace and consolidate the previous legislation on the protection and preservation of Aboriginal cultural heritage, including relics.......
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Content: Industrial relations (IR) is one of the central issues in the forthcoming Federal election, but this also means disinformation is rife on the main political parties’ IR intentions. If the Australian Labor Party (ALP) wins.......
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Content: When is it appropriate for a teacher to interfere physically in a student fight? That is the question Peter Moran recently asked the Victorian Civil and Administrative Tribunal (VCAT), and found there really is no answer........
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| Workplace Relations & Employment Update – October 2007 | |
Content: The Australian Labor Party (ALP) released further information in early September on the fine- tuning of its industrial relations policy. We have set out below a summary........
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| New Rules For Pharmacies Focus on Patient Privacy | Damien Wurzel | |
Content: Individual privacy has been at the core of recent administrative and legislative changes in industry and the community.........
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Content: People often believe that to be binding a contract has to be in writing or that a formal document must be prepared and signed. This is not correct. Business contracts, while usually in writing, can be made by word of mouth........
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Content: The New South Wales Supreme Court has awarded damages of around $1 million to Mr Ben Cox, a teenager who was bullied in primary school – possibly the biggest school bullying........
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| New Workplace "Fairness Test" | |
Content: The Federal Government on 4 May announced significant changes to the rules governing workplace agreement-making. A new "fairness test" will be applied to all ........
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Commissioner Loses Appeal on Employee Benefits, and Federal Court Chastises him for his Troubles!| Stephen Newman | Tamara Young |
Content: The Commissioner of Taxation suffers a defeat for his views on the application of fringe benefits tax to employee benefit arrangement cases and is now forced to rethink......
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| Worker Receives Pay-Out From Qantas Over Discriminatory Remarks| |
Content: In a recent case, the Federal Magistrates Court handed down a decision ordering that Qantas pay a former licensed aircraft mechanical engineer $71,692 after accepting that discriminatory remarks......
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| ASIC v Carey: Making Sure Discretionary Trusts Protect Assets Effectively - What Have You Done?| | | Levent Shevki |
Content: ASIC v CAREY (Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 6) FCA 814) challenged traditional thinking about the utility of discretionary trusts in asset protection......
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| Copyright Reforms Pass Amid Storm of Controversy | | |
Content: Changes to copyright law in Australia covering technological protection measures, time and format shifting and enforcement provisions have been introduced amid a storm of controversy.....
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| Workchoices - Maintaining Employee Records | |
Content: It’s now almost 12 months since the Federal Government’s industrial relations legislation known as “WorkChoices” came into effect. WorkChoices has resulted in major changes.....
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| Raising Funds on the AIM Market of the London Stock Exchange | | |
Content: Cornwall Stodart recently acted as the Australian legal advisers to Tasmanian mining, exploration and development company, Zeehan Zinc Limited (and subsidiaries), in its successful application......
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| Independent Schools Breaching The Trade Practices Act | Leneen Forde |
Content: A recent case brought by a disgruntled parent against a private school highlights the need for schools to be cautious about the information contained in their marketing material.....
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| Cashing Out Personal Leave | |
Content: Since the latest round of amendments to the Workplace Relations Act came into effect on 12 December 2006, an employee may cash out personal/carers leave.....
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| Recent PBS Reforms | Damien Wurzel |
Content: On 16 November 2006, the Minister for Health and Ageing, Mr Tony Abbott, announced a massive shake-up of Australia’s pharmaceutical benefits scheme (PBS). The changes, according to.....
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| High Court Upholds Work Choices & Federal Government Announces Further Changes
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Content: By a 5 to 2 majority, the High Court this morning dismissed the States' and unions' challenge to the constitutional validity of the Work Choices amendments to the Workplace Relations Act 1996.....
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| Owner Drivers And Forestry Contractors Act 2005 | Levent Shevki |
Content: The Federal Treasurer recently released draft legislation, the Corporations Amendment (Takeovers) Bill 2006, aimed at clarifying the powers of the Takeovers Panel. The draft Bill, however, may still ....
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| Proposed New Laws To Clarify The Powers Of The Takeovers Panel | Stephen Newman |
Content: The Federal Treasurer recently released draft legislation, the Corporations Amendment (Takeovers) Bill 2006, aimed at clarifying the powers of the Takeovers Panel. The draft Bill, however, may still ....
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| Whose duty is it and who really cares? | Levent Shevki |
Content: There’s been an explosion at your quarry.
A charge was prematurely detonated – 1 person is dead, others are seriously injured. Police are on site, the coroner is in attendance and so ....
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| High Court Gives Green Light to Litigation Funding | Wayne Kelcey | John Hutchings | Stephen Newman |
Content: For many centuries the common law frowned on parties becoming involved in litigation that was of no direct concern to them. To prevent this type of conduct the common law developed the laws of maintenance ....
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| Companies Auditors& Liquidators Disciplinary Board Under Fire | Stephen Newman |
Content: The Companies Auditors & Liquidators Disciplinary Board (CALDB) which is established under the ASIC Act 2001 is responsible for supervising the conduct of Auditors and Liquidators. ASIC and APRA have the power....
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| Corporate Structures for Non Profit Organisations | Damien Wurzel | Justin Evans |
Content: You have been a member of your local tennis club for ten years. The club owns four tennis courts and a clubhouse built in the 1960’s. One Saturday afternoon, the roof of the clubhouse suddenly collapses ....
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| Alert - Employees found guilty of OHS breaches | | |
Content: In the first prosecution of its kind under the new Victorian OHS legislation, four employees have been found guilty of breaching the employee duty of care provisions. The prosecutions arose as a result ....
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| Government doubles GEERS redundancy payment | |
Content: On 22 August 2006 the Federal Government doubled to 16 weeks the level of redundancy pay available to workers under GEERS. This latest change is further to amendments....
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| New Telemarketing Laws | Leneen Forde | Daryl Lim |
Content: On 30 June 2006, the Do Not Call Register Act 2006 became Law. This Act along with the Do Not Call Register (Consequential Amendments) Act 2006 provides the legal framework for a national Do Not Call Register and telemarketing contact standards. The purpose of the Act....
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| Land Tax Alert– Trust Surcharge | John Chamberlin |
Content: Last year we published an article on this website setting out the amendments that were to occur to the Land Tax Act 2005 (Vic) (which came into operation on 1 January 2006). Those amendments incorporated the imposition of a special trust surcharge rate....
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| Casenote: Stemcore (A/SIA) v CV Scheepvaartonderneming Ankergracht [2005] FCA 1808 | Elizabeth Guerra-Stolfa | Kathryn de Bont |
Content: Coils of steel were shipped by sea from Japan to Australia. After arriving in Australia, the coils were discovered to be damaged by corrosion resulting from contact with water either before or during the course of carriage.....
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| CSO Funding Pool Guidelines - Applications Due by 23 June 2006 | Damien Wurzel | Catherine Stribley |
Content: As part of the new arrangements (including mark-ups) for wholesalers under the Fourth Guild/Government Agreement, the Community Service Obligation (CSO) Funding Pool has been established. One of the objectives of the fund....
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| Fuel Tax Credit Reform - 1 July 2006 | Elizabeth Guerra-Stolfa |
Content: The Federal Government has introduced laws into parliament aimed at simplifying the current complex system of fuel tax concessions. The Fuel Tax Bill 2006 and Fuel Tax (Consequential and Transitional Provisions) Bill 2006 will take effect from 1 July 2006, establishing a system of fuel tax credits....
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The Trustees of the Property of John Daniel Cummins, A Bankrupt v Cummins
[2006] HCA 6 (7 March 2006) |
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Content: On 7 March 2006, the High Court overturned the Full Federal Court’s decision concerning the estate of the senior counsel who had not lodged tax returns for 45 years (The Trustees of the Property of John Daniel Cummins, A Bankrupt v Cummins [2006] HCA 6).....
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| The 2006-07 Federal Budget -Pharmaceutical Industry | Damien Wurzel |
Content: The Federal Budget for 2006-07 again addressed various aspects of the Pharmaceutical Benefits Scheme (PBS). Of particular interest are new product listings to the PBS....
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| Duties Act Alert June 2005 - Removal for Capital Reductions and on a Winding Up | | Stephen Newman |
Content: The State Taxation Acts (General Amendment) Bill 2005 was read for a second time on 26 May 2005 in the Lower House of the Victorian State Parliament. If passed, the Bill will amend a number of Victorian Acts. In particular, the Bill will remove the exemptions from duty for transfers consequent on reductions of capital and on the winding up of companies...
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| Harassment and Bullying in the Workplace | | |
Addressing workplace bullying and harassment is becoming increasingly important for employers. Employers are liable for bullying occurring ....
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WorkChoices - New Record Keeping Requirements | | |
New provisions under the Workplace Relations Act 1996 (effective 27 March 2006) impose considerable obligations on employers relative to record keeping. The provisions apply throughout Australia to all corporations and their employees ....
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New Tax Ruling on Service Trusts | Damien Wurzel | Catherine Stribley |
The viability of service trusts is based on the 1978 case of Phillips v FCT. Recently, the Australian Taxation Office (ATO) has signalled its intention to scrutinise service trust arrangements ....
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Financial Reporting Relief for Wholly Owned Entities -
Extension of times fixed by Class Order |
For certain corporate groups, strict compliance with the financial reporting requirements of Chapter 2M Corporations Act (“Act”) can be time consuming and expensive...
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New Defamation Laws |
On 1 January 2006, the Defamation Act 2005 came into operation in Victoria. The purpose of the Act is to enact provisions in Victoria agreed to by all State and Territory attorney-generals to promote uniform laws of defamation in Australia. The uniform defamation legislation operates in all Australian States and will soon operate in the Territories.
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| Land Tax Alert– Trust Surcharge | John Chamberlin |
Content: Amendments to the Land Tax Act 2005 (Vic) come into operation on 1January 2006. The amendments make an owner of Victorian land as a trustee liable for land tax at a special trust Surcharge rate....
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Alert for Audited Entities
Solicitors' Representation Letters
Innocent Audit Tool or Time Bomb for Companies? | Stephen Newman |
In conducting an audit of an entity, the Auditing Standards require an auditor to make various enquiries about litigation and claims that the entity may be facing.
The auditor has to identify all material legal matters, consider the impact they may have on revenue and expenses and assess the adequacy of the accounting treatment of such matters and their disclosure in the financial accounts....
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Can you use the Commonwealth Games logo? - Use of marks associated with high profile events | Leneen Forde | Kathryn de Bont |
Prior to most special events, including the Olympics, Grand Prix and upcoming Commonwealth Games, special legislation is enacted to protect the identity of the event beyond the ordinary law of copyright, trade marks and designs. Most commonly the legislation prohibits unauthorised use of images and indicia such as symbols, logos and official words or references.
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Bait Advertising - What is it and what are the consequences? | Leneen Forde | Kathryn de Bont |
The success of a business is ultimately determined by the ability to attract, and keep, customers.
While savvy advertising can be extremely useful when it comes to attracting customers, retailers should beware the use of bait advertising. Not only does such advertising mislead customers, it is also illegal...
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Liability of Directors of Corporate Trustees
- Proposed Amendments to Section 197(1) of the Corporations Act | Damien Wurzel | John Hutchings |
In our November Reconstruction & Insolvency newsletter we discussed the increased risk of personal liability for directors of corporate trustees under section 197(1) of the Corporations Act (the Act) following the decision of the South Australian Supreme Court in Hanel v O'Neill (Hanel's case)...
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Partnerships and Pharmacy Law
Pham V Doan [2005] NSWSC 201 | Damien Wurzel |
Section 25 of the Pharmacy Act 1964 (NSW), like the previous section 21 of the Pharmacists Act 1974 (Vic), provides that “a person (not being a Pharmacist), a corporation or a body of persons unincorporated shall not carry on, as owner or otherwise, the business of a Pharmacist in a pharmacy or otherwise have a pecuniary interest, direct or indirect, in the business of a Pharmacist carried on in a pharmacy” (the Prohibition). A person contravening the Prohibition is guilty of an offence...
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Family Business Australia
Family Business Disputes - The "F" Factor | Elizabeth Guerra-Stolfa |
Unfortunately, disputes arise in business all the time. They are generally dealt with by dialogue and negotiation between the parties to commence with, followed by the engagement of lawyers if the matter cannot be resolved. Once lawyers are involved, the next step can be going to Court....
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Commissioner of Taxation V Hart - Wide Ramifications for All Taxpayers | Richard Feely |
"Cartels are a cancer on our economy.” (1)
The High Court handed down judgement in the Commissioner Of Taxation v Hart (“Hart’s case”) on 27 May 2004. The judgement has wide ranging implications for tax payers and tax advisers alike, primarily in relation to the anti-avoidance provisions of the Income Tax Assessment Act 1936 (the “1936 Act”). The Tax Commissioner will be no doubt jubilant about the decision, but this judgement will have many rushing to inspect their affairs in the hope of not being put under the microscope by the tax man. Although relevant generally due to the wide application afforded to the anti avoidance provisions of the Act by the High Court, the case specifically addressed the legality of ‘split loans’...
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Proposed Amendments to the Trade Practices Act 1974:
Cracking Down on Cartels | Richard Feely |
"Cartels are a cancer on our economy.” (1)
Mr Graeme Samuel, Chairman of the Australian Competition and Consumer Commission (ACCC), made this provocative statement to open his address at an international conference on cracking cartels held in Australia in late 2004. It clearly illustrates the regulator’s view on the effects of cartels on Australia’s economy in general and on fair competition in particular. Unsurprisingly, the ACCC has lobbied the federal government for some time to make participation in cartel behaviour as unattractive as possible. It has long been perceived by the ACCC that corporations have been willing to engage in this type of anti-competitive behaviour because the potential reward has far outweighed the potential punishment...
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Trade Mark Infringement by Advertising on the Internet | Peter Mack |
What happens when foreign goods featuring an Australian trade mark are sold to Australians over the internet? This issue was considered by the Federal Court in Ward Group Pty Ltd v Brodie & Stone Plc [2005] FCA 471...
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Trade Practices Compliance - Sound Business or Yet Another Regulatory Burden?
SST CONSULTING SERVICES PTY LTD V RIESON [2004] FCA 937 | Stephen Newman |
Section 47 (1) Trade Practices Act 1974 (TPA) prohibits the practice of exclusive dealing. Section 47 (6) TPA deals with one form of exclusive dealing known as third line forcing. Third line forcing, in general terms, involves one party supplying or offering to supply goods or services to another party on condition that they or a related party will acquire goods and service from a third party.
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Superannuation: An Employee's Choice | Paul Cooley |
The introduction of Commonwealth legislation enabling employees to choose their superannuation fund has the potential to bring about significant changes to the way in which Australia’s $650 billion in superannuation savings is managed. The Federal Government has estimated the legislative change will affect over 4.8 million employees...
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Shareholders and Creditors Compete for the Spoils in a Voluntary Administration
Crosbie (as Administrator of Media World Communications Ltd (Administrator Appointed) and Anor. v Naidoo and Anor. [2005 FCA 51] | Stephen Newman |
In a recent article published in The Age, business journalist, Stephen Bartholomeusz opened his commentary on this case with the following; “ A Federal Court Judge handed down a highly technical ruling that is already sending shock waves through the international investment community that could lead to US institutions placing a ban on investment in Australian corporate debt securities”...
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Transmission of Business: Good News for Employers | Paul Cooley | Louise Houlihan |
The High Court handed down two long awaited workplace relations decisions on Wednesday 9 March 2005:
Amcor and |
