March

A system of unconscionable conduct - Lenders will not always be able to use the fact that a borrower took "independent advice" as a shield to an allegation of unconscionable conduct.
ACCC continues to push for merger reform following ex post review of completed mergers - The results of the ACCC's first ex post merger review are out. Closer scrutiny of future predictions and continued drive to implement a mandatory clearance regime flagged.
ACCC Enforcement Update 2022/2023 – exclusive dealing a priority - Outgoing Chair of the ACCC, Rod Sims, has used the CEDA ACCC Annual Enforcement and Compliance Policy Update to signal the ACCC’s intention to focus on exclusive arrangements that have the potential to lessen competition as one of the regulator’s priority factors over the next year.
ACCC proposes to refuse approval of pharma patent settlement - In the first decision of its kind in Australia, the ACCC proposes to deny a request for authorisation for a settlement and licence agreement reached between Celgene, generic pharmaceutical company Juno and its pharmaceutical manufacturer Natco, regarding their patent dispute in the Federal Court of Australia. Without authorisation, the agreement and related conduct is exposed to a possible breach of the Australian Competition and Consumer Act.
ACCC provides renewed guidance on mandatory injury reporting of product safety issues - The ACCC's publication of updated mandatory injury reporting guidance reflects its recently stated intention to strengthen the product safety regime in Australia. The guidance emphasises that the ACCC's interpretation of the mandatory injury reporting requirement under the Australian Consumer Law is very broad and places an onus on virtually all entities in the supply chain to formally notify the ACCC of serious product-related injuries or illnesses.
After 30 years, class action regime still plagued with uncertainty - While the current spotlight on the role of litigation funding in Australia and, in turn, returns to group members is warranted, other aspects of the regimes are ripe for reform to ensure that the class action regimes provides certainty for all parties and that any unnecessary hurdles are removed to allow efficient settlement negotiations.
Are you on the hook for offshore oil and gas decommissioning costs? New guidelines on the "trailing liability" regime - If you're in the offshore oil and gas sector, you should familiarise yourself with the amended legislation and the new Guidelines, and consider whether you could potentially be subject to a trailing liability.
ASIC puts finfluencers on notice - ASIC has published an information sheet to guide the “finfluencers” (financial social media influencers) and AFS licensees who walk the tightrope between content generation about personal finance and providing financial advice to retail clients.
ASIC's key areas of focus for the year ahead: is your corporate governance up to scratch? - The recent speech delivered by the ASIC Chair reminds directors to be actively focused on identifying, assessing and mitigating risk and emphasises that companies need to prioritise their corporate governance in light of current market conditions.
Australian Treasury consults on proposed regulatory framework for crypto asset secondary service providers - In line with the global embrace and expansion of the crypto asset ecosystem, Australia has seen increased levels of exposure to crypto assets by retail consumers. In response to this, and following a multitude of reviews in this space, on 21 March 2022 Treasury released a Consultation Paper outlining the Government's proposed regulatory and licensing framework for crypto asset secondary service providers (CASSPrs) and proposed custody obligations to safeguard private keys
Australia's third judgment for a shareholder class action gives another win to listed entities - Although it is currently three-nil in favour of respondents for shareholder class action judgments, it is important to note that many shareholder class actions (far more than three) have been settled with significant sums paid out by respondents. Given this fact, it is too soon to say that respondents are in the lead.
Boardroom wars, ASX announcements and defamation risk: when things go too far - Directors should ensure company announcements are made for proper purposes and statements that are potentially defamatory are verifiable and distributed only to recipients who may have a duty or interest to receive that information.
Collaboration is key to Infrastructure Australia's roadmap to improve industry productivity, says new Infrastructure Australia report - "Delivering Outcomes" encourages infrastructure owners and delivery agencies to abandon the high-impact risk transfer of their transactional contracting model in favour of long-term, collaborative relationships to ensure the financial sustainability of the industry.
COVID-19 in 2022: the implementation and ongoing effectiveness of mandatory COVID-19 vaccination policies - The FWC is likely to view the employer favourably in the event of challenge by a dismissed employee if the employer can satisfy three conditions.
Digital Apes, Metaverse Land and Crypto-Nike Kicks: Demystifying NFTs and intellectual property challenges - NFTs can be novel and enigmatic creations and, in some circumstances, command outrageous sale prices. But few really understand what NFTs are, and what legal and intellectual property challenges they present.
Drafting resilient transport contracts: will send-or-pay provisions become standard in a resilient supply chain? - Take-or-pay and send-or-pay arrangements – common in energy supply contracts – may become a standard feature of transport contracts as purchasers seek to build contingency into their otherwise volatile supply chains.
Environment and Planning 5 Minute Fix 23: offset assessments, circular economy, EPBC referrals - 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, and environmental protection.
Environment and Planning 5 Minute Fix 24: climate change, waste, energy 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.
European Commission takes huge step towards mandating corporate sustainability due diligence - The European Commission (EC) recently published a proposal for a Directive on Corporate Sustainability Due Diligence which highlights the EC's intention to impose a general duty on the business community to address adverse human rights and environmental impacts, rather than general governance rules. While not yet in effect, multi-national corporations should consider being proactive with their due diligence on supply chains, particularly in the key areas of environmental impacts and human rights.
Examinations under the Corporations Act to assess the merits of a class action: does your D&O insurance cover the cost? - Whether a D&O policy will cover a company officer against the costs of an examination under section 596A will depend on the policy wording.
Failing companies and exclusivity in pre-bids: The Takeover Panel draws the line - The Takeovers Panel has effectively closed the gate on hard exclusivity in pre-bid agreements given to non-distressed enterprises.
Federal Court confirms ATO's broad powers (and duty) to use documents in its possession, even Court documents - Parties required to disclose documents to the ATO should assume that the ATO is able to rely upon documents obtained in litigation as evidence of tax obligations.
Federal Court has Eureka moment with union flag on a worksite and the Building Code - This case is a strong reinforcement of the freedom of association laws contained both in the Building Code and the Fair Work Act.
Federal Court overturns duty of care in children's novel climate change case - Unless overturned on an appeal to the High Court, the iCommonwealth Environment Minister, when exercising her powers under sections 130 and 133 of the EPBC Act, no longer has a duty of care to consider the greenhouse gas emissions and climate change risks to any vulnerable community in determining whether or not to grant an approval under the EPBC Act.
High Court delivers judgment in Lexapro litigation - In the latest instalment to the long-running escitalopram litigation, the High Court yesterday delivered judgment, overturning various findings of the Courts below, in a decision that contains some important lessons for the pharmaceutical industry
How Victoria's Suburban Rail Loop Act provides for easier assembly of underground land under the MTPF Act - Victorian project authorities for declared transport projects under the Major Transport Projects Facilitation Act 2009 (Vic) should be aware that their powers under the MTPFA have changed since the Suburban Rail Loop Act 2021 (Vic) came into operation on 1 December 2021.
Industrial manslaughter update: Person controlling a business or undertaking (PCBU) sentenced to 5 years' jail - It is of critical importance for a PCBU to understand their health and safety duties. Being proactive in acknowledging and fulfilling these duties can contribute to a safe and healthy workplace, with less risk of safety incident occurring.
Land Court of Queensland provides guidance on its approach to its jurisdiction and on-country evidence - Two recent Land Court of Queensland decisions regarding the proposed Waratah Coal Project in the Galilee Basin provide helpful guidance as to when a mine-plan revised after completion of the statutory environmental assessment process may impact on the Court's jurisdiction in a mining lease objections hearing and also the Court's approach and willingness to hear "on-country" evidence from First Nations' witnesses.
Major Projects & Construction 5 Minute Fix 93: security of payment, stays and COVID-19, security of critical infrastructure reforms - Get your 5 Minute Fix of major projects and construction news. This issue: Service of payment claim vital to Adjudicator's jurisdiction under the NSW security of payment act; COVID-19 alone not a sufficient justification for a stay of judgment execution; reminder for parties to clearly document variations to construction contracts; update on part two of the Federal Government's security of critical infrastructure reforms; and the NSW Court of Appeal considers the issue of repudiation.
Major Projects & Construction 5 Minute Fix 94: new contract to pay subcontractors directly, post-contract conduct, "cost plus", delayed Practical Completion and final payment - Get your 5 Minute Fix of major projects and construction news. This issue: site meeting involving principal and subcontractors results in new contract to pay subcontractors directly, but principal avoids liability; using post-contract conduct to identify parties to agreements; contractual rights to progress payments under a "cost plus" contract not sufficient to constitute a condition precedent to payment of entire contract sum; and the impact of delayed Practical Completion on final payment, including reduction to account for delay damages (lost rental income) and valid termination for delay.
Major Projects & Construction 5 Minute Fix 95: Qld trust account rollout; Infrastructure Australia's new roadmap; security of payment - Get your 5 Minute Fix of major projects and construction news. In this issue: Queensland pushes back its trust account roll-out for remaining phases; we look at Infrastructure Australia's new roadmap, ensuring a more productive and resilient future; a case deals with the statutory requirement for a person who "is or may be liable to make" payment under the SOP Act; misleading marketing leads to rescission of an off-the-plan sale contract, and a bank guarantee injunction refresher.
Media Release: Clayton Utz CEP says leadership and culture key as we’re named a WGEA Employer of Choice for Gender Equality 2021-23 - Clayton Utz's continued active commitment to achieving gender equality has seen us awarded a Workplace Gender Equality Agency (WGEA) Employer of Choice for Gender Equality (EOCGE) citation 2021-22 - among 120 organisations recognised this year.
Media Release: Clayton Utz Foundation launches $50,000 Health Justice Partnership award - The Clayton Utz Foundation is proud to announce a new $50,000 award to help advance the capacity of one of Australia's growing number of Health Justice Partnerships (HJPs).
Media Release: Clayton Utz lawyers among Australasian Lawyer's Rising Stars 2022 - Legal industry title Australasian Lawyer has named four Clayton Utz senior lawyers in its Rising Stars 2022 list, which recognises the country's "up-and-coming legal superstars".
Media Release: Clayton Utz recognised for roles on two Deals of the Year at PFI Awards 2021 - Clayton Utz has been recognised for our advisory roles on two transactions named Asia Pacific PPP Deal of the Year and Asia Pacific Transport Deal of the Year respectively at the Project Finance International (PFI) Awards 2021, announced on 1 March.
Morrison Government's middle of the road 2022 election year Budget offers some (but not much) relief for Australian businesses - With a Budget spearheaded by "cost of living" measures including a generous fuel excise relief and a "cost of living" tax offset and payment, it would appear that the Federal Government is looking to reduce inflationary pressures as part of the 2022-23 Budget. The Federal Treasurer stated that these are “temporary, targeted and responsible” measures and as such, are not expected to be inflationary in themselves.
North East Link: Australia's largest PPP - Financial close was recently achieved on the North East Link Program's Central Package PPP which represents the largest investment in a road project in Victoria's history and delivers the much needed missing link in Victoria's transport network.
NSW EPA gets serious about circular economy - The proposed changes recognise a shift towards viewing waste materials as potentially valuable commodities, rather than large volumes of material to be disposed of at the lowest possible cost.
NSW Planning Minister's planning principles shelved - The State-wide Planning Principles which were introduced in early December 2021, and commenced operation on 1 March 2022, have been discontinued.
NSW Supreme Court clarifies the application of the "conditional benefit" principle in Australia - The NSW Supreme Court's decision in Aust-One clarifies the enforceability of positive covenant burdens.
Parent company letters of support: a real or false sense of security? - Letters of support take many forms and are issued for a variety of purposes and can generate a serious tension between the interests of various stakeholders — parents, subsidiaries, boards and auditors.
Permanent reforms to permit the use of technology to hold shareholder meetings - Companies must now ensure that shareholders are given a reasonable opportunity to participate in all meetings by asking questions orally and in writing, and receive documents in their preferred form.
Peters Ice Cream pays a $12 million penalty for exclusive dealing - Exclusive distribution is not unusual in many circumstances; however a recent decision illustrates the legal risks of a challenge from the ACCC when the market is concentrated and there are difficulties for smaller players seeking distribution across Australia.
Pharmaceutical patent term extensions now back to the "earliest first" approach, the Full Federal Court confirms - Patent term extensions must be based on the "earliest first regulatory approval date" of goods containing any of the substances disclosed and claimed in the patent, regardless of whether those goods are "goods of the patentee" or goods of a competitor or third party.
Real estate: 5 Minute Fix 17: COVID-19 measures; exemption approval for foreign Australian-based developers; land tax; off the plan; Property Market Review - Get your 5 Minute Fix of real estate news. In this issue: COVID-19 measures; exemption approval for foreign Australian-based developers; land tax; off the plan; Property Market Review.
Regulators join forces to fight greenwashing in 2022 - The adoption of net zero commitments by companies in Australia has become the new norm and 2022-2023 will see the regulators testing whether the environmental promises made by companies to their stakeholders actually stand up to scrutiny.
Restraints of trade in the employment context 01: What do I need to know? - Restraint of trade clauses can be enforceable if they satisfy two tests.
Review your engagements with multidisciplinary partnerships involving non-lawyer tax advisers to ensure privilege will not be lost - In a long-awaited judgment, the Federal Court has delivered the ATO a partial win in its challenge to privilege claims over tax advice of large multidisciplinary partnerships that involve non-lawyers in giving tax advice.
RIP Odco: the Personnel Contracting decision and the death of the triangular labour hire contract - A recent decision by the High Court may spell the end of triangular "Odco" labour hire relationships, casting doubt on the business operations of labour hire firms nationally.
Rod Sims' curtain call but the show goes on with announcement of ACCC 2022 enforcement priorities - In his eleventh and final speech to the Committee for Economic Development Australia (CEDA) on 3 March 2022, outgoing ACCC Chairman Rod Sims outlined the ACCC's areas of particular focus for the year ahead and also fired a warning shot to repeat offenders in the telecommunications and energy sectors.
Shareholders as interrogators: public examination of former directors by shareholders in pursuit of a class action - Former shareholders of liquidated companies are eligible to obtain a summons to publicly examine the company's directors, even if the purpose is to support a class action for the benefit of only some creditors.
Statutory interpretation and tax law: examples from Shell's Court win in deducting its exploration assets - Tax laws can be ambiguous and complex, so it helps to know the rules to interpret them. The Full Federal Court provides a reminder on how to do just that in its decision allowing Shell to deduct its $2.3b interest in the Browse Project.
Supreme Court of Victoria grants first successful application to secure contingency fee class action funding arrangement - Although more Group Costs Orders applications may be made in Victoria, any move away from more traditional funding practices in Australian class actions (such as third party litigation funding) necessarily involves plaintiff law firms assuming added risks.
The chicken and the egg: using securitisation as part of the financing for an acquisition of a target entity - While securitisation funding in the context of an acquisition presents some logistical and practical considerations, it remains a valid and convenient funding source for any potential acquisition that includes a pool of receivables with a regular and contractual payment source.
The first appeals decision on a judgment in a shareholder class action and a win (of sorts) for plaintiffs - The recent decision in the Iluka shareholder class action said that the continuous disclosure laws apply to an opinion that an officer of a disclosing entity should have reasonably formed based on information that was available to them even if they did not actually form that opinion.
The new Planning Regulation in New South Wales is finally here - Many public and private sector development proponents will need to consider refinements to their planning application and assessment processes, as they and approval authorities adjust to the new Environmental Planning and Assessment Regulation 2021, which commences mostly on 1 March 2022.
Urgent freezing orders a part of the ATO Deputy Commissioner's armoury against foreign entities – and courts will make them - A failure to reach agreement with the ATO on acceptable security arrangements for an imminent or actual tax liability may give rise to the Commissioner urgently seeking freezing orders.
Virgin administrators’ approach upheld in world-first decision on key provision of international aviation convention - The High Court today gave the first decision, globally, of a Court of ultimate appeal on the question of the construction of Article XI(2) of the Cape Town Convention's protocol on Matters Specific to Aircraft Equipment (Aircraft Protocol), which is of seminal importance for financiers and lessors of aircraft property, insolvency administrators globally.
What's the point of the "Save Women's Sport" bill? - A recently introduced private members' bill purports to champion single-sex sport for girls and women – but with the only meaningful change to the sex discrimination framework being to allow blanket bans on transgender participants, is it necessary?

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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.