February

"Artistic licence" in concerns notice destroys settlement in defamation claim - Plaintiffs should ensure that they have a genuine and reasonable basis for believing that they have suffered serious reputational harm before issuing a "concerns notice", and the representations in it are accurate.
Advertisers beware! New changes set to shake up Australian therapeutic goods advertising - From 1 July 2022, advertisers must ensure that therapeutic goods advertising complies with the new requirements created by the Therapeutic Goods Advertising Code 2021.
Australia's extensive sanctions response to Russia's invasion of Ukraine: consequences for Australian entities - Australian entities Companies operating in Russia, Ukraine or Belarus, or with business dealings linked to those regions, must immediately reassess their operations to ensure that they will not violate the strict and extensive financial sanctions imposed in response to Russia's invasion of Ukraine.
Blurring fact and opinion – the complexities of the honest opinion defence to defamation claims - To justify a publication as an expression of "opinion", publishers must ensure the "facts" and "opinions" are clearly delineated and identifiable to their readership. If publishers wish to rely upon apparent facts to form a separate opinion, those facts must be properly based on facts stated in what is written or be otherwise evident and substantially true, or otherwise provable.
Contracting better to avoid the rule against fettering - While compensation regimes may provide some protection to parties contracting with the government, the government's freedom to govern remains the ultimate trump card.
Copyright and common sense: draft Copyright Act reforms to keep up with an increasingly digital age - Stakeholders have until 25 February 2022 to comment on proposed changes to the Copyright Act 1968 (Cth).
COVID-19 vaccination: booster shot advice may affect employer vaccination policies, but no one-size-fits-all solution - For employers who have also relied on the ATAGI guidance for guidance on control measures (in the absence of public health direction or mandate that requires vaccination) it is a timely reminder to consider whether your policies are still fit-for-purpose.
Draft National E-Waste Stewardship Strategy: too good to waste - Electrical and electronic products in the telecommunication industry, particularly modems and routers, are the focus of a new discussion paper on e-waste.
Environment and Planning 5 Minute Fix 22: ERF, renewables, circular economy, planning - 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 climate change, waste, energy and planning.
FAR Bill receives endorsement to proceed - The Senate Economics Legislation Committee has endorsed the Financial Accountability Regime (FAR) Bill 2021 in a report issued 15 February 2022. Here are some highlights from the report, which included welcome guidance from the Regulators' submissions on some of the less certain aspects of the proposed regime.
Federal Court resolves "legitimate uncertainty" in uncontested trade mark appeals - When an appeal from a decision of the Registrar of Trade Marks is settled by the parties, the Court may still need to deliver a judgment if the appeal is not merely withdrawn. In allowing the appeal, the Court may need to decide a range of issues, including whether the mark under appeal meets the statutory threshold of distinctiveness.
Federal Parliament passes permanent Corporations Act reforms allowing electronic execution of documents - In a move that will bring much needed certainty and relief to businesses ahead of an election, the Federal Parliament has passed a Bill making the electronic signing by companies of documents permanent.
Foreign investment threshold reduced to 10% for expanded list of Australian businesses deemed to be "critical" - Foreign investors looking to acquire businesses in sectors now considered "critical" will need to carefully evaluate (and factor into their transaction processes and timelines) whether they will need to obtain FIRB approval (including engagement with the sellers / target) and, if so, when to approach FIRB.
How much is your privacy worth? Assessing compensation for breaches of the Privacy Act - A year on from "WP" and Secretary, Department of Home Affairs, the categories of non-economic loss it sets out remain a helpful guide to assessing compensation under the Privacy Act.
Illegal boycott agreements between companies and unions under close scrutiny - Companies need to be extremely wary about any agreements with unions that prevent or hinder choice about which businesses they are able to hire.
Major changes to NSW land rezoning process proposed - The NSW Government has released a discussion paper proposing a new approach to land rezonings, which would simplify the process and provide merit appeal rights to proponents.
Major Projects & Construction 5 Minute Fix 92: electronic document execution, top 5 construction law issues, payment claims - Get your 5 Minute Fix of major projects and construction news. In this issue: We recognise Matthew Bell's law essay prize success; acknowledge Federal Parliament's permanent reforms regarding electronic document execution; recap the "Top 5" construction law issues that caught our attention in 2021 and we analyse Panel Concepts Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2021] QDC 322 which looks at the objective test applied when considering payment claims.
Media Release: Clayton Utz advises Kirkland Lake Gold Ltd on successful merger of equals with Agnico Eagle Mines Limited - Clayton Utz has advised ASX, TSX and NSYE listed Kirkland Lake Gold Ltd (Kirkland Lake) on its successful merger of equals transaction with Agnico Eagle Mines Limited (TSX: AEM, NSYE:AEM) (Agnico Eagle) by way of Canadian law governed plan of arrangement. The transaction completed on 8 February 2022.
Media Release: Clayton Utz advises Wyloo Metals on its downstream nickel processing opportunities strategic partnership with IGO Limited - Clayton Utz has advised Wyloo Metals, a company of Tattarang, one of Australia’s largest private companies, on its entry into an agreement with IGO Limited (ASX: IGO) to jointly evaluate opportunities for nickel downstream processing in Australia. The agreement was announced to the market today.
Media Release: Clayton Utz advising Japan's Suntory Beverage & Food on A$229m sale of fresh coffee business - A Clayton Utz team is advising Japan based Suntory Beverage & Food Limited (SBF) on the sale of its fresh coffee business in Australia, New Zealand and Singapore to the Japan-headquartered global coffee business UCC Holdings Co., Ltd (UCC). The transaction was announced on 10 February, and is expected to complete in the first half of 2022.
Media Release: Clayton Utz announces 1 January 2022 senior promotions - Clayton Utz has made the following senior lawyer and manager promotions, effective 1 January 2022.
Mining company Kepco fails to convince High Court to hear Scope 3 test case - The High Court has rejected Kepco Bylong Australia's application for leave to appeal over the 2019 decision by the NSW Independent Planning Commission (IPC) to refuse the mine project in the Bylong Valley.
No dice: high roller fails to quash parallel proceedings - In Wong v Star Entertainment Qld Limited [2021] QCA 277 the Queensland Court of Appeal provides a helpful reminder on the test for ending Australian proceedings where similar proceedings are commenced abroad.
NSW Strata renewals: process and opportunities - The process for renewing strata schemes in NSW was simplified in 2016, however adhering to the procedural intricacies presents challenges for owners corporations hoping to easily see through the redevelopment of their aging schemes.
Omnichannel retail: continuing challenges for anti-trust authorities - Omnichannel retail continues to challenge competition authorities' conventional approach to defining retail markets.
Proposed Regulation clarifies energy from waste opportunities in NSW - A draft pollution control regulation in NSW, which has been released for public comment, confirms many of the restrictions on energy from waste projects announced last year, but also clarifies some opportunities for these projects.
Queensland Government requires ICT suppliers to meet new ethical, environmental and social standards - The Queensland Government has updated its standard ICT contracts to require suppliers to meet new ethical, environmental and social standards.
The terms of the contract are decisive of the employee/contractor issue – with some provisos, says High Court - Businesses should ensure that any independent contracting arrangements are based on formal and comprehensive written contracts, following two decisions yesterday in the High Court (Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2).
Too little too late to challenge findings of misleading conduct over financial products - Failing to engage in proceedings filed by regulators can have serious consequences.
Triviality vs serious harm: two very different approaches to skinning the defamation cat - While the "serious harm" test has replaced the triviality defence publications made from 1 July 2021, there will still be many claims and proceedings to which the triviality defence may yet be relevant.

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.