April

"Absolute discretion": express words negate the implied good faith obligation and operation of the prevention principle - The NSW Courts have typically grounded the prevention principle in the implied duty to act reasonably and/or in good faith. A recent decision demonstrates the preparedness of NSW Courts to find that parties have contracted out of duties of this kind.
"I'm sorry Mr Arbitrator, you appear to be muted": navigating the virtual world in large-scale complex arbitrations - The success of recent exercises in virtual litigation suggests that, far from being relics of the pandemic, virtual hearing rooms and wholly online court books are here to stay.
AI, space, defence essential secrecy and data – the industry opportunities - As Governments and Corporations become more data-savvy, opportunities and challenges will push the industry to innovate; combined with the substantial investment in Defence capabilities, the next ten years could show more human progress than the last 100.
ASIC's no-action position provides temporary flexibility to hold virtual meetings - Entities should be prudent in ensuring compliance with the conditions enunciated by ASIC's "no-action" announcement and continue to be attentive to further developments.
Bendigo can't bank a monopoly with descriptive "community bank" trade marks - Even where registration has been secured and held for a long period of time there may be substantial difficulty and risk defending or enforcing a monopoly in a trade mark comprising a descriptive term.
Billions to bust: deficiencies in Native Title compensation applications - The Federal Court of Australia recently struck out two applications seeking tens of billions of dollars in Native Title compensation; and, in doing so, offered a warning about how deficiencies in the application itself, in particular a failure to identify compensable acts, can be fatal to claims for Native Title compensation.
Casual employment: new legislation ends double dipping and creates the ability to ask for a permanent job - Employers should introduce new clauses to casual contracts that reflect the recent amendments in the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020.
Distance-based road charging: Victoria introduces new Bill for electric vehicles - Victorian zero and low emission vehicle owners could soon be required to pay a charge based on the total kilometres travelled by the vehicle.
Door shut for declassing motion in Richmond Valley Council v Jardine Lloyd Thompson - The threshold requirements for bringing a class action in Australia are not particularly onerous. Defendants face an uphill battle in persuading courts to "declass" a class action on the basis of insufficient common issues between the representative plaintiff and class members.
Environment and Planning 5 Minute Fix 12: resources, planning and environmental protection - The Environment and Planning 5 Minute Fix gives you a snapshot of what you need to know across a range of environment and planning issues across the country. This edition focuses on the latest in resources, planning and environmental protection.
Exploring new carbon offset conditions for coal mines - The Independent Planning Commission in NSW has approved Tahmoor Mine extension, with conditions regulating Scope 1 and 2 greenhouse gas emissions.
From unvaccinated to unemployed: when will a mandatory vaccination be a reasonable direction? - Any attempt to implement a mandatory vaccination program in the current environment, even an annual flu jab, will likely be subject to a greater scrutiny.
Google judgment: ACCC continues to target misleading representations about data collection practices - Businesses that collect or use consumer's personal data should review their representations about data practices, as they may breach Australia's consumer law provisions if they mislead only a small proportion of reasonable users.
Greener pastures for mining companies paying land ratings - A recent Court of Appeal decision on the categorisation of land surrounding a mining project has significant financial implications for mining companies and local councils.
High Court set to clarify important Part IIIA provisions dealing with access to declared infrastructure - The High Court will decide significant questions about Part IIIA of the Competition and Consumer Act, which will have important implications for regulated infrastructure of national significance.
How do the proposed options for reform to Australia's measurement laws measure up? - The Australian Government is seeking feedback on proposed measurement law reforms contained in a Regulation Impact Statement following consultation conducted between 2017 and 2020.
Major Projects & Construction 5 Minute Fix 72: security of payment and the prevention principle - Get your 5 Minute Fix of major projects and construction news. This issue: owner occupiers now subject to security of payment obligations in NSW, the Victorian Court of Appeal and the NSW Supreme Court consider the juridical basis of the prevention principle, a Bill in Victoria is set to introduce a charging regime for zero and low emission vehicles, and the Victorian Court of Appeal delivers its highly anticipated decision in Lacrosse.
Major Projects & Construction 5 Minute Fix 73: recourse to security, building product safety, and Vic reform - Get your 5 Minute Fix of major projects and construction news. This issue: the WA Supreme Court considers when a principal can have recourse to security; the ABCB releases a discussion paper addressing building product safety; Victoria's Building Reform Expert Panel invites consultation on a paper aimed at reforming the State's building legislative and regulatory system; in NSW the Supreme Court considers the interplay between a force majeure clause and a contractual indemnity; and still in NSW, the Design and Building Practitioners Regulation 2021 is released.
Major Projects & Construction 5 Minute Fix 74: security of payment compliance audit, Project Remediate report, and damages - Get your 5 Minute Fix of major projects and construction news. This issue: ABCC launches security of payment compliance audit; Project Remediate in NSW publishes initial report endorsing safe product categories to replace combustible materials; the importance of adducing the right kinds of evidence when claiming damages for lost profits; property market fluctuations insufficient to justify additional damages for delayed construction; and meeting minutes recording scope changes sufficient to found variation claims.
Media Release: Clayton Utz advises Energy World Corporation Limited on A$65 million capital raising - Clayton Utz has advised ASX-listed Energy World Corporation Limited (ASX: EWC) in connection with a successful A$65m capital raising. The raising was announced on 23 March 2021 and completed yesterday.
Media Release: Clayton Utz named a 2022 Law Firm of the Year in The Best Lawyers in Australia - Legal industry peers have voted Clayton Utz the 2022 Law Firm of the Year for Construction / Infrastructure law in the 14th Edition of The Best Lawyers in Australia peer review survey.
New South Wales Bill makes way for Courts to set aside settlement agreements relating to child sexual abuse - NSW is looking to enact legislation to allow settlement agreements for claims arising from child sexual abuse to be set aside where it is "just and reasonable" to do so, bringing NSW in line with other States and Territories.
No substantive changes for employers in upcoming sexual harassment reforms but work still needed to manage the risk - Although the Federal Government Response to the [email protected] Report brings no substantive changes to employer obligations or responsibilities for workplace sexual harassment, it's a good reminder to take immediate and appropriate action to address allegations.
NSW creates new requirements to disclose unfair consumer terms and any intermediaries' commission arrangements upfront - The scope of the new disclosure laws is quite broad, since many Australian businesses located outside NSW may supply goods or services to consumers in NSW.
NSW Government releases six guidelines to support mine rehabilitation reforms - Mining companies seeking to stay up-to-date with the NSW Government's rehabilitation reforms need to be aware that six guidelines have now been released and are open for public comment.
NSW residential building sector reforms commence on 1 July 2021: Are you ready? - The NSW Government's new legislative framework for the regulation of the residential apartment building sector will commence on 1 July 2021 and will impose extensive obligations on practitioners. We provide a summary of the key obligations and some guidance to assist you in preparing your people and organisation for the reforms.
Product safety 101: Managing a recall to avoid crisis management - When undertaking a product recall, it is important to act fast to maximise consumer safety and notify the ACCC of the action being undertaken within the applicable two-day time limit.
Reforming Australia's litigation funding and class actions 03: continuous disclosure laws - Of all the 31 recommendations made by the Parliamentary Joint Committee on Corporations and Financial Services' report, Litigation funding and the regulation of the class action industry, the first to be tackled by the Federal Government is the recommendation to make temporary changes to the continuous disclosure laws, which were introduced due to COVID-19, permanent.
Reforming Australia's litigation funding and class actions 04: managing conflicts of interest - The recommendations in the"Litigation funding and the regulation of the class action industry" report pertaining to transparency and controlling conflicts of interest could have significant impacts on the way that class actions are pursued in Australia.
Successful environmental class action raises question of whether more will follow - The most important takeaway from the Sanda decision is that it underscores the fact that, in conducting a risk assessment, statutory compliance may not be enough
Take note: Queensland introduces important amendments to defamation laws - The proposed reforms aim to strike a balance through the imposition of further requirements on plaintiffs, and the introduction of new public interest defences.
The ACCC's product safety focus in 2021: bikes, babies and button batteries included - The ACCC will use additional resources from the Australian Federal Government to increase its product safety capabilities as it pursues five priorities for 2021.
Three lessons from the Federal Court on avoiding misleading or deceptive conduct when marketing financial products - ASIC says the Mayfair case is a warning it will take action where misleading or deceptive representations are made about investments, and when search engines are used in a misleading or deceptive way to entice investors to products they are not searching for.
Treasury reveals further details on the new Director Identification Number regime - The Australian Government has released draft exposure materials which provide greater information on the proposed Director Identification Number (DIN) regime, including how to apply for a DIN.
Unfair contract terms 04: Indemnities and limitations of liability - Indemnities and limitation of liability clauses in standard form contracts could fall foul of the unfair contract term laws if certain points aren't noted.
Unfair contract terms 05: Unilateral variation clauses - Unilateral variation clauses should be carefully considered before being used, as they are at risk of being declared unfair.
Victorian Court of Appeal on the prevention principle: co-operation, not good faith - The Victorian Court of Appeal has found the prevention principle is founded on a duty to co-operate, an implied term well established in Australian law.
Workplace investigations refresher part 3: legal professional privilege and workplace investigation reports - Employers may seek to engage external law firms to conduct workplace investigations on their behalf, but can't assume legal professional privilege automatically applies to the investigation.

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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.