October

Administrative law updater: Judicial review of prerogative powers - The decision in R (Miller) v The Prime Minister [2019] UKSC 41 shows courts can invalidate the exercise of prerogative powers, even in highly charged political circumstances such as Brexit.
Administrative law updater: The Palace Letters and you - The Palace Letters case will have a significant bearing on the question of when a person who holds high office does something in an official or personal capacity.
Administrative law updater: Undefended civil penalty proceedings - Despite recent successes by regulators, decision-makers should carefully consider the burden of proof, any available defences, and whether there is a contradictor before bringing undefended proceedings.
Administrative law updater: When is there an implied power to delegate statutory functions? - If there is no express power to delegate a statutory power, Courts will consider whether the language, scope or object of the statute override the principle that the power must be exercised personally.
Media Release: Clayton Utz advises ConocoPhillips on $US1.39 billion sale of Australia-West assets to Santos Limited - Clayton Utz has acted as legal advisers to NYSE-listed ConocoPhillips on its arrangements with Santos Limited to acquire ConocoPhillips' Australia-West and East Timorese assets and operations for $US1.39 billion ($A2.2 billion), announced to the market on 13 October.
Media Release: Clayton Utz advises Liverpool City Council on $400 million urban regeneration project - Clayton Utz is advising Liverpool City Council on a $400 million+ project for the regeneration of a site into a mixed-use development that will anchor and activate the southern end of Liverpool CBD, providing new public spaces, community facilities and job opportunities.
Media Release: Clayton Utz expands health and wellbeing support with dedicated National Mental Health Manager - Clayton Utz has appointed Emma Howard to the newly created role of National Mental Health Manager as part of the firm's continued investment in supporting its people to maintain good mental health.
Commonwealth Workplace Protection Orders Bill could signify next step in protecting public service employees - While this Bill is limited to Commonwealth employees, if it does go ahead it will signify a leap forward in the coverage of Workplace Protection Orders for APS employees across Australia.
Duplication and inefficiency under the microscope in Productivity Commission study into resources sector regulation - The Productivity Commission's Issues Paper for the study into resources sector regulation identifies regulatory design and decision-making efficiency, transparency and accountability as concerns.
ECM by Design: Equities and capital raising under the Design and Distribution Obligations regime - Equity issuers, advisers and underwriters should start thinking about how the DDO regime is going to affect the way that capital raisings are conducted.
Environment protection heating up in the Northern Territory - A new law now requires consideration of the impacts of a changing climate, in a major step to overhaul the environmental protection regulatory regime in the Northern Territory.
For whom the Bell tolls: it tolls for Chorley but not in-house lawyers' litigation costs - In-house lawyers may act as lawyers on the court record, either initially before engaging external lawyers or for the entire court proceeding. Either way, they must keep a few things in mind to preserve their employers' right to claim costs for their work.
Government Services 5 Minute Fix 01 - Get your 5 Minute Fix of government sector news. This issue: the impact of the Palace Letters case; do you need to review your contract management practice; can anonymous tweeting breach the APS Code of Conduct and justify termination; and a review of delegations and VOI requirements.
Less scope, more privacy obligations, for employers relying on the employee records exemption - Unless the Fair Work Commission's decision is not followed, or the Privacy Act is amended, employers may need to make substantial changes to many of the procedures and policies for collecting information from their employees to ensure compliance with the APPs.
Maintaining privilege in expert communications: the Victorian Supreme Court provides practical guidance - Privilege is not waived in communications between lawyer and expert that were considered by the expert but were not relied upon for the expert's opinion.
Major projects & construction 5 Minute Fix 42 - Get your 5 Minute Fix of major projects and construction news: a new direction for public procurement processes in NSW; will silence constitute waiver of contractual rights over non-compliant bank guarantees; factors to injunct enforcement of disputed adjudication determination; use of post-contract conduct when construing construction contracts; and security of payment cases around Australia, including regarding "rough justice" vs natural justice and multiple "reference dates".
Major projects & construction 5 Minute Fix 43 - Get your 5 Minute Fix of major projects and construction news. This issue: the latest High Court decision on quantum meruit; what happens where a principal under a construction contract fails to appoint a superintendent; the NSW SOP Reforms come into effect; the draft NSW Design and Building Practitioners Bill; Victoria moves on cladding rectification; and new Guidance on complying with the Modern Slavery Act.
Marshalling the troops when debtors become insolvent: A refresher on the equitable doctrine of marshalling - The equitable doctrine of marshalling can protect the security interests of subordinate secured creditors when a debtor becomes insolvent.
Media release: Clayton Utz advises Patersons Securities on successful $25 million merger with Canaccord - Clayton Utz has advised Perth-based wealth and stockbroking firm Patersons Securities Limited on its $25 million merger with Canaccord Financial Group (Australia) Pty Ltd via scheme of arrangement.
Media Release: Clayton Utz advises Zone 5 on its successful acquisition of Today's Plan - Clayton Utz has advised US-based sports technology and investment company, Zone 5 Ventures, Inc. (Zone 5), on its acquisition of Today's Plan Pty Ltd (Today's Plan), which operates the world's leading multi-sport training platform.
New South Wales grows its duty base with significant expansion of landholder duty - A slew of duty changes in NSW will impose landholder duty on entities without land in certain circumstances, and alter surcharge purchaser duty and surcharge land tax on discretionary trusts.
New witnessing requirements for Queensland land registry documents - New witnessing requirements will affect signatories and witnesses in Queensland.
NSW developers have one month to get ready for new Disclosure Statement and sale of land contracts - New reforms affecting off-the-plan sales in NSW will commence on 1 December 2019 which will require developers to attach a "Disclosure Statement" to all contracts issued on and from 1 December 2019.
NSW Government excludes scope 3 emissions from mining assessment - If passed, the new Bill will likely ease the approval of mining projects in NSW, although the impacts from GHG emissions are only one of a multitude of environmental and social impacts that will need to be considered by proponents.
NSW Government releases draft Design and Building Practitioners Bill 2019: speak now or forever declare - The NSW Government has invited interested organisations and individuals to provide feedback on the recent draft Design and Building Practitioners Bill 2019 that will affect certain categories of regulated designs and multi-unit and multi-storey residential apartment buildings.
NT Government tackling climate change and a transition to a low-carbon economy - The NT Government's long-term vision for climate change and transitioning the Territory to a low-carbon economy by 2050 has been released for consultation. Submissions can be made until 31 October 2019.
Once a retail lease, always a retail lease? Yes, says the Victorian Supreme Court - While leases cannot jump in or out of the Retail Leases Act 2003 (Vic), caution should be taken in addressing lease renewal.
Quantum meruit and repudiation: not the bonanza it once was - A builder's entitlement to recover on a quantum meruit basis (essentially, "amount deserved") following acceptance of an owner's repudiation of a building contract has survived the High Court's scrutiny, but not unscathed.
Retail lease round-up: repossession, demolition, and execution - Some recent cases give NSW landlords useful guidance on altering and ending their retail leases.
Review all discretionary trusts now following changes to surcharge purchaser duty and surcharge land tax - Review all discretionary trust deeds and amend it to satisfy the no foreign beneficiary requirement and no amendment requirement by midnight on 31 December 2019.
Ultra Tune: Full Federal Court confirms need for franchisors to fine-tune compliance with disclosure obligations - Amidst increasing scrutiny of franchisor behaviour under the Franchising Code, the Full Federal Court affirms Ultra Tune was not transparent in its disclosure of expenses and provides guidance on how to avoid the pitfalls.
What does the future hold for the IPC: Review of the IPC called for by NSW Government - Submissions to the NSW Productivity Commissioner on the role and future of the Independent Planning Commission are due by Friday 15 November.
What must you demonstrate when seeking infrastructure access? The National Competition Council clarifies the principles - It will no longer be enough for an access-seeker to simply demonstrate that the services are provided by means of a bottleneck facility or that the service provider possesses market power.

Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.