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Content: In a recent Supreme Court case, an applicant was successful in having an adjudication determination under the Building and Construction Industry Security of Payment Act 2002.....
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Content: In the matter of Opes Prime Stockbroking Limited FCA 813 (Finkelstein J) Fowler v Lindholm, in the matter of Opes Prime Stockbroking Limited.....
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Content: An unfair dismissal application may proceed despite an employer’s jurisdictional objection that the employee was paid an amount above the high income threshold.....
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Content: The right for new employees to receive the FWI Statement is one of 10 minimum standards in the National Employment Standards (‘NES’) that apply.....
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Content: Judge Allen of the County Court has handed down the first conviction for a breach of s 144 of the Occupational Health and Safety Act 2004 (Vic) ('the Act') following.....
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Content: The publication of the exposure draft National Consumer Credit Protection Bill (exposure draft Bill) on 27 April 2009 created a significant level of angst among retailers.....
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| Defamation 101 |
Content: Defamation is where one person (defendant) damages another person’s reputation by communicating (by words, writing, photos, video etc) material about that other person.....
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| Being a Referee: What are your Obligations | Leneen Forde | Rena Solomonidis |
Content: Do you remember the last employment reference you gave? Do you remember what you claimed to be true about that individual? Were your statements accurate? Now, the crucial question.....
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| Dealing with Tenants in Financial Crisis:How it can affect you as a Landlord |
Content: The current economic climate has caused significant pain for various parts of the economy and no less so for landlords and tenants. It is important for landlords.....
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Content: A Melbourne carwash firm and its owner and sole director have been fined $207,900 for underpaying five staff a total of $4,511. The company admitted to underpaying.....
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Content: Landlords and tenants will need to take exceptional care in drafting leases since the Upper House of the Parliament of Victoria passed the Duties Amendment Bill 2008......
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Content: The Retail Industry Award 2010, which will cover a broad range of retail operations including supermarkets, grocery stores, clothing, soft goods and department stores.......
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Content: An unfair dismissal can take many forms, including issues such as a disingenuous redundancy, a dismissal inconsistent with the Small Business Fair Dismissal Code......
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Content: The Australian Securities and Investments Commission (ASIC) released new measures on 18 June 2009 to enhance market disclosure and efficiency in capital raisings......
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Content: Businesses are now restricted in their use of component pricing. Basically, component pricing is the practice of businesses pricing their goods and service......
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Content: The Federal Government’s changes to Australia’s foreign investment policy and the Foreign Acquisitions and Takeovers Regulations 1989 (Regulations) will ease the burden......
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Building the Education Revolution – Advantages and Pitfalls | Leneen Forde | Peter Macnish | Jennifer Holdstock |
Content: In February 2009, the Commonwealth Government launched a $14.7 billion funding program over three years for the construction of new facilities and refurbishment of existing premises......
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| The Third Sector: In the Spotlight | Leneen Forde | Nicole Stevens-Warton |
Content: The Not-for-Profit and Charities Sector, also known as the Third Sector, recently received a great deal of Government attention - and should now prepare for possible reforms......
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| Fair Work and the National Employment Standards | |
Content: The Federal Government’s Fair Work Act 2009 was passed on 20 March 2009 and this will abolish Work Choices. A significant introduction of the Fair Work Act is the National Employment Standards......
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| Negotiating Your Supply Chain | | Geoff Denton |
Content: For many businesses, an efficient logistics supply chain is a key indicator of its overall profitability and ongoing success. The ability to get the goods to market.....
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| ASEAN-Australia-New Zealand Free Trade Agreement Overview | | |
Content: The ASEAN-Australia-New Zealand Free Trade Agreement (AANZFTA), which will reduce and eliminate tariffs progressively, will provide a significant opportunity.....
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| Changes To The Pharmacy Location Rules Will Have An Impact | | Jessica Huberman |
Content: Recent amendments to the Pharmacy Location Rules (Rules) will have an impact on the industry with new definitions for approved, proposed and redundant premises......
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| Case Summary: Apotex Pty Ltd v Les Laboratoires Servier | | |
Content: Apotex Pty Ltd, formerly known as GenRx Pty Ltd, (GenRx) issued proceedings in the Federal Court for relief against Les Laboratoires Servier and Servier Laboratories.....
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Content: The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act) represents Tranche One of Australia’s anti-money laundering and counter-terrorism.....
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| Faking It?: Importers beware - avoid criminal charges |
Content: It is established law that the parallel importation of original goods is permitted in Australia, subject to certain conditions. Two of those conditions are that the goods.....
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| | Geoff Denton |
Content: Directors’ duties are fiduciary duties. A fiduciary duty means the 'duty to act with fidelity and trust to another'. Directors’ duties may be imposed.....
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Content: The long awaited Fair Work Bill 2008 (Cth) was introduced into Federal Parliament yesterday. The Bill represents a complete re-write of the Workplace Relations Act.....
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Content: Workplace Relations Minister Julia Gillard has released details on the changes the Federal Government proposes for Australia’s workplace relations system, including....
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| Pan Pharmaceuticals Collapse: The Latest Chapter |
Content: The Therapeutic Goods Administration (TGA) suspended the licence of Pan Pharmaceuticals Limited of Sydney (Pan) to manufacture medicines for six months.....
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Content: The Federal Government announced its proposals for a single standard national regulation of all consumer credit for Australia on 2 October 2008. This is largely attributable to the current turbulence.....
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Content: The High Court has now confirmed that if a debtor company fails to obtain an extension of the time for compliance with a statutory demand before that time expires.....
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Content: Insolvent trading is common in a declining economy. Unfortunately, many directors continue to trade although their company is actually insolvent. This exposes them to liability.....
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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 | |
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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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 | |
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 | Nicole Stevens-Warton |
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 |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 | 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 | Nicole Stevens-Warton |
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 |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 |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 | Nicole Stevens-Warton |
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 |
|
McDonald V Deputy Commissioner of Taxation [2005] NSWSC 2
Petitioning Creditors Costs in a Winding Up - When Are They Payable? | Stephen Newman |
The facts of this case are common enough: the Deputy Commissioner of Taxation applied to wind up a company on the ground of insolvency, based on an unsatisfied statutory demand. Before the date for hearing of the application, the company was placed into voluntary administration. Its creditors subsequently resolved that it be wound up...
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| A
Reminder to Trustees in Bankruptcy | Peter
Macnish |
Trustees are reminded that the balance of the provisions of
the Bankruptcy Legislation Amendment Act 2004 came into effect
on 1 December 2004. In particular, schedules 1 to 5 commenced
operation...
Read more
|
| Predatory
Pricing | Maralda
Hibberd | Richard Feely |
What is “predatory pricing”? Put very simply,
it is anti-competitive behaviour that occurs when powerful
companies misuse their market power by drastically reducing
prices to damage or eliminate their competitors. Exactly what
type of behaviour will constitute predatory pricing is open
to debate, however one case involved a producer offering a
product for sale at temporarily reduced price that was below
wholesale price, in one particular marketplace with the suspected
aim of retaliating against one of its competitors for actions
it had taken in a different marketplace...
Read more
|
| Are
You Preventing Workplace Bullying | Paul
Cooley |
The pro-active approach to the prevention of bullying by workplace
safety regulators throughout Australia and the media’s
interest in workplace bullying prosecutions as evidenced by
a recent New South Wales case have highlighted the need for
employers to take steps to prevent bullying at the workplace...
Read more
|
| Home
Medicine Reviews |Wendy Bracciale |
Home Medicine Reviews (HMRs), along with certain other programs
such as Enhanced Primary Care, represent a multidisciplinary
approach to the management of disease state and other conditions...
Read more
|
| Low
Fat Nutrient Claims | Leneen
Forde |
“Low-fat”, “no fat”, “lite” and “fat
free” – what does it all mean? As society becomes
more health conscious, these labels have become powerful marketing
tools. Who can make these claims and in what circumstances?..
Read more
|
| VCAT
Grants Injunction Against Publication of Confidential Terms
of Settlement | Leneen
Forde |
What happens when confidential terms of settlement are erroneously
placed on a tribunal file, and the file is available for inspection
by members of the public for a prescribed fee? Do the confidential
terms of settlement lose their confidential nature as a result
of the inspection? Can the terms of settlement subsequently
be published in a newspaper?..
Read more
|
| Are
There Shades of Dishonesty? A Challenge for the Defamation
Lawyer | Stephen Newman |
Even for the most experienced defamation lawyer, pleading
the imputations properly arising from a defamatory publication
or a defence to such a claim can be a challenging task. To
the outsider, the interlocutory stoushes about these issues
can often appear arcane, if not byzantine. The recent decision
of the New South Wales Court of Appeal in John
Fairfax Publications Pty Ltd and Anor. v. Jones [2004]
NSWCA 205 is likely to reinforce this appearance...
Read more
|
| Cutting
Down on Plastic Bags | Leneen
Forde |
There is little doubt that the issue of bag management has
become critical to the health of the environment, but why should
retailers be concerned?...
Read more
|
| Understanding
Intellectual Property in a Food and Grocery Context | Leneen
Forde |
A quality product with good packaging and labelling is easy
to sell and a pleasure to buy. This article will help you identify
what intellectual property rights (“IP rights”)
might exist for food and grocery items. Generally, IP is a
phrase that traditionally encompasses...
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|
| Use
By Dates | Leneen Forde |
Retailers can face heavy fines for
selling food products that are past their use by dates and
can be liable under the Trade Practices Act (1974) for loss
or damage suffered by consumers...
Read more
|
| Spam
Act 2003 - Are You Prepared? |
On 10 April 2004, the Spam Act 2003 (Cth) ("the Act")
will come into force. The Act regulates how electronic marketing
(commercial messages) must occur in future...
Read more
|
| Changes
to Redundancy Pay Standard | Louise Houlihan |
On 26 March 2004 the Australian Industrial Relations Commission
(the Commission) made the first changes to
the federal redundancy safety net in 20 years...
Read more
|
| Organic
Labelling | Leneen Forde |
Retailers who label their own products
should keep abreast of developments in the increasingly popular
organic and bio-dynamic phenomenon. Are you aware of the
requirements to be satisfied in order to label a product “organic” or “bio-dynamic”?
Could some of your labels be misleading?
Read more
|
| Occupational
Health and Safety Alert | Paul
Cooley |
A recent occupational health and safety prosecution of Boral
Constructions Limited has shown that properly training employees
to minimise risks does not, in itself, discharge an employer's
obligation to ensure their safety. This case also highlighted
inherent safety problems in loading heavy road rollers for
transport between jobs...
Read more
|
| Do
You Consider That You Are Not a Domestic Builder? - You
May Be Wrong! | Peter
Macnish |
On 18 February 2004 the Supreme Court of Victoria dealt with
an appeal from the Victorian Civil and Administrative Tribunal
("VCAT") which had decided that the Domestic Building
Contracts Act 1995 (Vic) ("DBC Act"), applies not
just to house builders, domestic electricians and the like,
but to a much broader range of contractors engaged in residential
development...
Read more
|
| Rivkin
Gets Second Chance Against Fairfax | Stephen
Newman |
Rene Rivkin must wonder where it will all end. These days
it seems he may be running out of fingers to stick in the ever
crumbling dyke – an ongoing ASIC investigation, conviction
for insider trading, weekend detention, serious ill health
and an ASIC enforced short term holiday from participation
in the securities industry...
Read more
|
| Your
Rights As Buyers and Sellers | Leneen
Forde |
What can you do when a customer does not pay? What rights
do you have if you buy goods, but they are not delivered to
you on time or as agreed?..
Read more
|
| Judge
Flags Reduced Role for Juries | Leneen Forde |
Just days after his appointment in October 2003 as Federal
Attorney General, Phillip Ruddock called upon the states and
territories to harmonise their defamation laws. If, and when,
defamation reform takes place, the role of juries has been
flagged as one of the main areas requiring reform...
Read more
|
| High
Court Allows $250,000 Damages for "Sensationalist" Report | Leneen
Forde |
On 11 September 2003 the High Court handed down its judgment
in Rogers v Nationwide News Pty Limited, upholding a $250,000
damages award against media defendant Nationwide News on account
of the “sensationalist and excessive quality” of
a defamatory newspaper report...
Read more
|
| Theft
in the Workplace | Leneen
Forde |
She had her eye on the shirt with the blue stripes all day.
It would be so easy to do, she thought. No one ever checked
her bags when she left the store, particularly when she worked
until closing. Before leaving work that night, she slipped
the shirt off the hanger, stuffed it into her backpack and
casually walked out the door...
Read more
|
| Compensation
for the Loss of a Commercial Opportunity | Leneen
Forde |
The appellant, Mrs Longden entered into a contract with the
respondent to lease premises in a retail precinct in Frankston
(“Frankston store”). The appellant intended to
use the premises for a retail and wholesale furniture business.
Before the appellant took over the tenancy of the premises,
the respondent informed the appellant that the premises were
no longer available to her...
Read more
|
| The
Many Reasons of Product Recalls | Leneen
Forde |
In the past five years, almost 300 food products and over
1200 consumer products have been recalled. There are a number
of reasons for product recalls including problems with product
labelling and product defects...
Read more
|
| Know
Your Olives! Country of Origin Labelling | Stephen
Newman | Sam
Monkivitch |
Producers, distributors, retailers and marketers, to name
but a few, spend countless hours and dollars looking for that “special
magic” that will make sure that consumers want what they
have to sell. Right? The decision to purchase is not just an
intellectual exercise but an emotional one too. Who has not
heard of retail therapy? Why are particular brands so successful?
Imagine if consumers acted clinically when making their purchasing
decisions – is that the best price, the best quality,
the most functional and worst of all, do I really need this?
Read more
|
| Watch
Your Step | Leneen Forde| Caroline
Dew |
Slip and falls, slip and trips, whatever the term used, a
customer falling over in a retail outlet usually spelt doom
and gloom for the occupier. For the customer, a clip on the
heels by a shopping trolley or a slip on a grape on the floor
could in some cases spell easy money. Often it cost less for
a retailer to pay the customer to go away than defend the claim
due to legal fees and the time-consuming nature of litigation...
Read more
|
| The
Confidentiality of Player Contracts in the AFL - Not Quite
As Confidential As First Thought | Levent
Shevki | Wendy
Bracciale | Stephen Newman |
This AFL Football season has probably seen more media speculation
about player payments than most. “Kites” have been
flown about the salaries paid to certain players only to be “shot
down” by the player or his manager. The AFL (not to mention
the ATO) has been ever vigilant to ensure that player payments
do not breach relevant salary cap limits...
Read more
|
| VCAT
Domestic Building Jurisdiction Extended | Peter
Macnish |
On 1 August 2003, Professor Cremean in the Victorian Civil
and Administrative Tribunal, handed down his decision in the
case of Mt. Holden Estates v Lanigan Baldwin Pty Ltd & Winslow
Constructors Pty Ltd VCAT D689/2002. The exclusive jurisdiction
of VCAT with respect to domestic building disputes has been
significantly extended by this decision. The case involved
a dispute between a developer, a supplier of infrastructure
works and a design engineer...
Read more
|
| When
is a Contract a Contract? | Liz
Guerra-Stolfa | Leneen Forde |
When parties who have been in negotiation reach agreement
upon terms of a contractual nature and also agree that the
matter of their negotiation shall be dealt with by a formal
contract, the case may belong to any of three classes...
Read more
|
| Superannuation
- Not Just For Retirement? | Stephen
Newman | Leneen Forde |
Superannuation is an integral part of Government policy designed
to ensure that our greying population is catered for in their
retirement. But does superannuation have a role as an asset
protection device? Can creditors get their hands on superannuation
contributions made prior to or in anticipation of bankruptcy?
The High Court of Australia was recently called upon to rule
on this question in Cook v Benson [2003]
HCA 36...
Read more
|
| Victorian
Land Tax - Exemptions Worth a Second Look | John
Chamberlin |
Victorian land tax is assessed on the total unimproved value
of all land owned by the taxpayer at midnight on the 31st December
of the immediately preceding year to the year in which the
assessment is raised...
Read more
|
| Bag
Searches in Retail Outlets | Leneen
Forde |
Theft is a major problem for retailers today. One method of
attempting to both detect and combat the problem, is to conduct
bag checks. A bag check is the practice of inspecting the bags
of customers as they are leaving a store...
Read more
|
| Contempt
of Court by the Media | Leneen
Forde |
The Plaintiff, Mr MacDonald sued radio station 3AW for defamation
for the following exchange between radio broadcaster, Ross
Stevenson and a talkback caller...
Read more
|
| When
is a Rumour Not a Rumour? | Stephen
Newman |
The Plaintiff, Mr MacDonald sued radio station 3AW for defamation
for the following exchange between radio broadcaster, Ross
Stevenson and a talkback caller...
Read more
|
| Duty
of Care to Employees' Children | Leneen
Forde |
Mr Barry Gifford was employed by
Strang Stevedoring. He was tragically killed on 14 June 1990
when a large forklift reversed over him at Darling Harbour
in Sydney. The driver of the forklift was also employed by
Strang Stevedoring. Negligence on the part of the driver
of the forklift and on the part of Strang Stevedoring was
alleged and was admitted. Mr Gifford had three children then
aged 14, 17 and 19. They did not witness the accident but
were informed of what had happened later on the same day....
Read more
|
| Intellectual
Property - Unlocking Value in Your Business |
Recognising and protecting the IP assets of a business should
be an on-going task. It cannot be left unattended without the
risk that some rights may be lost forever. For example, if
the design of manufactured goods is not protected before mass
producing the goods and offering them for sale, protection
will be lost...
Read more
|
| Trade
Marks & Protecting an Athlete's Personality | Levent
Shevki |
Reform to Australian trademark law in 1995 now allows trademarks
to play a greater role in the legal protection of an athlete’s
personality in Australia. Under the Trademarks Act 1955 (“the
Act”) a potential major problem existed with trademarks
in the context of personality merchandising...
Read more
|
| Phone
Alert |
The law will have to quickly adapt to the problems the new
technology poses. Already the media is reporting unauthorised
photos being taken in change rooms at sporting facilities,
at ATMs and in prisons.
Read more
|
| Victorian
Tort Law Reform Update | Joe Naccarata |
On Tuesday 20 May 2003, the Premier of Victoria, Steve Bracks,
introduced into the Victorian Parliament, a series of proposed
reforms to the personal injuries claims and compensation regime
in response to the so called insurance indemnity crisis.
Read more
|
A
Change to the Swearing of Affidavits
Order 43 Rule 10 | Elizabeth Guerra-Stolfa |
There is about to be a change in the Supreme Court Rules which
will affect, in particular, in-house counsel and practitioners
in rural areas.
Read more
|
| Tort
law reform package | Joe Naccarata |
Tort Law in Victoria is currently undergoing major statutory
change. The reform, collectively know as the Tort Law Reform
Package, is encompassed in three statutes:
Read more
|
| Simplified
tax system - Proposed roll-over relief for partnerships| Barry
Woods |
The Minister for Revenue and Assistant Treasurer, Senator
Helen Coonan recently announced the Federal Government’s
proposed changes to the simplified tax system (“STS”).
The amendments will provide tax relief when a change in the
partners of a small business partnership occurs.
Read more
|
| ASIC
v Rich - The role of a company chairman: Have the stakes been
raised?| Stephen
Newman |
David Knott, Chairman of the ASIC, described it as a landmark
decision. The financial media had a field day devoting many
column inches to the ramifications of the decision for company
chairmen and the so called “directors club”. So
what was all the fuss about?
Read more
|
| Boral
Masonry Limited v ACCC [2003] HCA 5| Stephen
Newman |
The High Court of Australia, in a 6:1 majority judgment, recently
dealt the ACCC another blow in its efforts to rely on section
46 Trade Practices Act 1974 as part of its enforcement armoury...
Read more
|
| Formation
of contracts via e-mail |
Parties Intending to enter into a contract have more ways
than ever before to communicate the "offer" and "acceptance" that
will make a binding contract...
Read more
|
| Does
your scheme apply? Fund raising for property developers| Michael
Gough |
Make no mistake about it: ASIC is on the prowl! Misleading
and deceptive statements and inadequate disclosure of important
information in offer documents, unregistered managed investment
schemes and “unfit” responsible entities are among
its more recent quarry...
Read more
|
Victoria has always had statutory rules setting out how a
person’s assets are dealt with on death if a person dies
without a will. A person dying without a will is said to die
intestate and the rules are the rules of intestacy...
Read more
|
An extraordinary series of unconnected events has led to an
unprecedented re examination of hitherto accepted selection
criteria for service providers...
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