October

"Context is all": Court confirms test and principles for false, misleading or deceptive conduct - A recent decision of the Federal Court confirms the "ordinary and reasonable" consumer test under the Australian Consumer Law; rejects the test of-whether a "not insignificant number" of reasonable consumers would be misled.
"Uh, I don't know how the money came to be in my account": Security for costs order made against "impecunious" defendant - It can be difficult to get security for costs against a natural person, but it is not impossible, and can be worth attempting.
ASIC continues with its enforcement agenda but is conscious of COVID-19's impact on the Australian financial system - ASIC continues to progress its enforcement agenda and remains committed to its enforcement work despite the delays and challenges caused by the COVID-19 Pandemic.
ASIC's hard-line regulatory approach receives further endorsement - ASIC is prepared to seek the Court's assistance in ensuring robust compliance with notices that it issues.
Australian “permanent establishment” tax issues related to ongoing disruption of construction projects from COVID-19 - Any entity who has a Construction Project in Australia or abroad which has been impacted by COVID-19 should seek Australian and/or foreign tax advice as applicable.
Australia's Federal Budget 2020: solid and unsurprising stimulus measures, and some opportunities for business - The 2020 budget continues with a familiar stimulus response and the expected economic benefits can be reasonably assumed to be achievable, provided the economy appears to on an upward trajectory so households continue to spend rather than merely increasing their savings rates, but the business measures are more problematic.
Beyond dispute: the FWC cannot resolve a dispute under an inoperative enterprise agreement - Where the Fair Work Commission is dealing with a dispute raised by a party under an enterprise agreement, the dispute cannot be heard or determined after the agreement has ceased operation
Clutching for life – new State Environmental Planning Policy to improve protections for koala habitat - The new Koala Habitat Protection SEPP commenced on 1 March 2020 with the final SEPP to be released on 16 October 2020; here is what we know about the changes so far.
Conjecture or inference: winning your case through inferences in the absence of direct evidence - Design engineers may be liable for misleading conduct if they certify designs that are non-compliant with relevant standards, including for loss caused to parties with whom they do not have a contractual relationship.
Conspiracy theories can be expensive: "disgraceful" and "inexplicable" Facebook posts lead to $875,000 in damages - The Courts will not shy away from awarding significant damages for defamatory posts and comments on social media platforms which are baseless, repetitive and of a serious kind that have the potential to damage another person's reputation.
COVID-19 relief for landlords and tenants – what's happening? - COVID-19 relief was created for an initial six-month period, but as we settle into for the long haul, State Governments are revisiting their emergency legislation. Keep up-to-date with the current position in your State with our COVID-19 Response which tracks all the important changes you need to know.
Crowley v Worley Limited: The second shareholder class action judgment - Crowley v Worley has some useful things to say about "materiality" for the purposes of earnings guidance and misleading representations about future matters.
Environmental claims again under the spotlight in the Full Federal Court - Products said to be "biodegradable and compostable" do not need to be able to biodegrade or compost within a reasonable time; and a representation about the nature, quality, character or capability of a product is not a representation "with respect to a future matter".
Government services 5 Minute Fix 06 - Get your 5 Minute Fix of government sector news. This issue: more administrative law news; COVID-19 triggers law reform in the west; procurement is on many people's minds, but are they doing it correctly; the Queensland caretaker period; making sure you're not on a road to nowhere; environmental approvals get bilateral; building resilience in dealing with bushfires; and the intriguing Tales from the Bar.
High Court confirms the validity of Indigenous land use agreements certified through representative body CEOs - Public and sector proponents who are likely to become parties to ILUAs, as well as representative bodies themselves, should consider the Quall decision carefully to ensure they are adequately equipped to be able to lawfully execute any future ILUA certification processes.
IPC grants Santos' Narrabri Gas Project "phased approval" - The Independent Planning Commission has approved Santos' Narrabri Gas Project, subject to stringent conditions on matters including groundwater and greenhouse gas emissions.
Jurisdictional objections not to be dismissed when dealing with general protections applications - A recent decision of the Full Federal Court has given the green light for employers to fully raise jurisdictional challenges in the Fair Work Commission when dealing with general protections applications involving dismissal.
Major projects & construction 5 Minute Fix 62 - Get your 5 Minute Fix of major projects and construction news. This issue: an attempt to restrain recourse to performance security fails despite alleged agreements relating to underlying contractual entitlements; the reach of "no contracting out" provisions in security of payment legislation; who must show a force majeure clause applies; lost opportunity damages for misleading or deceptive certification of design; termination of construction contract creates a final "reference date" in Queensland; and abuse of process in security of payment.
Major projects & construction 5 Minute Fix 63 - Get your 5 Minute Fix of major projects and construction news. In this issue, we take a look at three cases dealing with security of payment adjudications. The NSW Court of Appeal explores the remedies available for in the construction context for misleading deceptive conduct under the Australian Consumer Law, and the NSW Supreme Court summarises the relevant principles relating to the interpretation of contracts. Finally, we outline the key features of the draft revision to the arbitration rules issued by the Australian Centre for International Commercial Arbitration.
Major projects & construction 5 Minute Fix 64 - Get your 5 Minute Fix of major projects and construction news. This issue: Victorian Court of Appeal stays enforcement of adjudication decision because of Claimant's financial position; adjudicator's misunderstanding of submissions doesn’t amount to jurisdictional error; and a case study involving concurrent liability.
Major shake-up of restructuring laws for small business: great in theory, but more information please - The new debtor-in-possession model for small business restructuring is aimed at allowing viable small businesses to seize the initiative to quickly restructure to survive the economic impact of COVID-19, but we need greater clarity on key elements of the proposed insolvency framework.
Media Release: Clayton Utz advises Tattarang on its purchase of R.M. Williams - Clayton Utz has advised Tattarang, one of Australia's largest private investment groups owned by Andrew and Nicola Forrest, on its purchase of iconic Australian company R.M. Williams from L Catterton, the largest consumer focused private equity firm in the world.
Media Release: Clayton Utz among Australia's Top 40 Best Workplaces to Give Back - Clayton Utz is proud to have earned a place on Australia's Top 40 Best Workplaces to Give Back in 2020.
Media Release: Clayton Utz is a proud founding member of the Corporate Mental Health Alliance Australia - Clayton Utz today joined leading Australian employers in marking the formal launch of the Corporate Mental Health Alliance Australia (CMHAA)
Media Release: Disruption to "creative destruction" a chance for companies to transform From Red to [a new] Black - The current economic environment presents an opportunity for Australian businesses to transform their operations through strategic restructures and emerge even stronger, say Clayton Utz Restructuring and Insolvency (R&I) specialists in the fresh-look 2020 edition of the firm's market-leading From Red to Black publication.
Media Release: Hiding Place 2 wins $20,000 Clayton Utz Art Award 2020 - Henri Van Noordenburg is the winner of the $20,000 Clayton Utz Art Award 2020, for his work of hand carved photographs on Hahnemulhe titled, Hiding Place 2.
Negotiating the new "class exemption" for collective bargaining - The ACCC's class exemption is likely to encourage collective bargaining across all industries where small business operators face difficult negotiations with large suppliers or large customers, but could possibly also be used by members of large corporate groups.
New VPS Enterprise Agreement commences operation today, so time to understand what changes you need to make - From today, the new Victorian Public Service Enterprise Agreement 2020 is in operation, with a nominal expiry date of 20 March 2024. It will cover most non-executive VPS employees.
No smoother path for setting aside settlement agreements in New South Wales… yet - NSW's removal of the limitation period for child abuse claims alone does not permit earlier settlements of statute-barred claims to be revived through the courts.
Not so Nice Cream – Directors' duties and "successor" director appointments - Joint venturers should take an active interest in the corporate governance of their businesses, not just the operations. Where issues are identified, concerns should be raised as soon as possible, even if there may be greater commercial benefit in waiting to raise issues at a later time.
NSW EPA Prosecution Guidelines to focus on human health and principles of environmental justice - Changes to the EPA prosecution guidelines seek to ensure considerations of human health impacts and environmental justice inform decisions to prosecute offences under environmental legislation.
NSW proposing to get rid of Mining Operations Plans - The NSW Government has released amendments to the Mining Regulation 2016 intended to provide greater clarity around mining lease conditions to achieve rehabilitation outcomes.
Once a retail lease, always a retail lease? Yes, Victorian Court of Appeal confirms - The Court of Appeal's decision in Verraty confirms the status of a retail lease, but uncertainty remains on whether the Retail Leases Act 2003 applies to many warehouse operations.
Passing like ships in the night? Making sure your expert witnesses truly confer - There's a difficult balancing act between the benefits of a conferral process and the associated dangers, so you need strategic advice at an early stage.
Q&A: From the Court room to the lounge room: Advocacy in the virtual world - Four experienced barristers join us to share some tips and tricks for court work in a time of COVID-19.
Q&A: What clients wish they had known before entering the court room - Two experienced barristers join us to share some tips and tricks for the next time you get involved in commercial litigation.
Spending the Federal Government's $27b investment incentive wisely by getting procurement in order - In considering whether to take advantage of the Federal Government's investment incentive, infrastructure owners should ensure they have robust procurement processes in place.
TEQSA regulatory implications for overseas higher education providers - Overseas institutions wishing to establish an Australian branch must demonstrate legal, compliance and quality assurance measures in order for TEQSA to allow the institution to enter Australia’s higher education sector.
The COVID-19 tenancy regulations extended in Queensland: check if the extensions apply to your leases - It is time for Queensland tenants and landlords to communicate and share information to determine whether a lease remains an "affected lease" for the purposes of the extension period according to the updated eligibility requirements.
The Federal Court confirms some important points for directors and companies' continuous disclosure obligations - ASIC v Big Star provides some comfort in relation to the risk of director's accessorial liability for a company's breach of the continuous disclosure provisions, but not for the risk of the director breaching the duty to act with care and diligence.
The future of seabed mining in the Northern Territory to be decided - With the moratorium on seabed mining due to expire in March 2021, the NT EPA will finalise its review for the NT Government, with public submissions due by 9 November 2020.
The implications of introducing contingency fees to Victorian class actions - It's clear there are many unanswered questions about the new section 33ZDA of the Victorian class actions legislation. Its full implications are still unknown and might remain that way for a while.
The legal ramifications of a falsely applied electronic signature - For those seeking to rely on an electronic signature to enforce a document, it may be dangerous to assume it was applied with authority without making any inquiries.
The public interest in liquor licensing: the Leisure Inn redevelopment - A recent court decision suggests a need to broaden the Liquor Control Act 1988's remit, as it never contemplated the unique challenges of a post-pandemic economic recovery.
The right to reputation: natural justice and human rights issues in administrative and regulatory investigations - Agencies and investigators should implement processes such as checklists and decision-making guides to ensure that administrative and regulatory investigations comply with any human rights legislation.
Using a QR code for COVID-safe check-in to your business premises? Five tips for staying privacy safe, too - The Privacy Act continues to control how, when and why you can collect personal information, even in a pandemic.
Victorian COVID-19 tenancy relief continues – new Regulations and requirements - The Amended Regulations mean that commercial tenants will continue to be entitled to claim rent relief for the period through to 31 December 2020 if they come within the requirements of the Regulations.
WA allows witnessing of affidavits and statutory declarations remotely during the COVID-19 pandemic - The Western Australian Government has provided flexibility to the requirements for witnessing affidavits and statutory declarations for the duration of the COVID-19 pandemic.
Western Australian State Budget Revenue Measures 2020 - The Western Australia State budget was delivered on 8 October 2020 and despite the pandemic, the Government was able to forecast a budget surplus for the 2020-21 financial year.
When an employee's representations may be taken as admissions of the employer - Representations made by a corporation's employees may be taken as admissions of the corporation, and a corporation cannot lawfully prevent a current or former employee from being compelled to appear as a witness in a compulsory examination.
WHS overhaul as Western Australia set to adopt the harmonised WHS laws - Western Australia will soon join the other States and Territories in adopting the national model work health and safety laws following the passage of the Work Health and Safety Bill 2019.
Year of change ahead for Therapeutic Goods Advertising Framework, following Review - The review's recommendations call for clear industry communication on the Therapeutic Goods Administration's priorities for compliance with laws governing the advertising of therapeutic goods.

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.