July

ACCC pivots to enforcement after grace period for the Horticulture Code - The ACCC has sent a clear signal of its intention to begin enforcing the Horticulture Code of Conduct after issuing a second infringement notice in as many months.
ACCC publishes new greenwashing guidance, seeks submissions - The ACCC guidance will undoubtedly be welcomed by many businesses as they face increasing consumer and stakeholder pressures to disclose climate-related and other sustainability risks.
ASIC sets the benchmark for effective scam management - As technology continues to advance, the frequency and complexity of scams are increasing, posing substantial risks to Australian consumers. The startling increase in scam volumes has prompted greater regulatory scrutiny, with ASIC and the ACCC working together to lead the first fusion cell to disrupt investment scams.
Australia and Germany: Closer than ever following work on our strategic alliance - Despite Australia and the European Union's Free Trade Agreement halting, again, until August 2023, the Strategic Alliance between Australia and Germany signals that Australia has its foot in the door for ongoing co-operation on future initiatives and deals.
Beware "agitators": when security for costs can be awarded against "natural persons" - Defendants should not assume that they will not obtain security for their costs simply because the plaintiff is a natural person, but they need to move promptly.
Canadian Court gives thumbs up to emoji in contract case – would an Australian court? - Processes followed should be sufficiently formal to mitigate the risk that a counterparty could later rely on, and a court could construe, patterns of conduct to find a valid contract exists where one was not intended.
Dark patterns trigger regulator concerns over consumer safety and fairness - Digital platforms which are designing user interfaces to take advantage of certain psychological or behavioural biases of consumers are on the ACCC’s regulatory agenda.
Determining "current market rent" under the Retail Leases Act 1994 (NSW): what standards must a valuer meet? - The Supreme Court has provided the first guidance on the standard of review required of a valuer under the Retail Leases Act 1994 (NSW), particularly the matters to which the valuer must have regard. The decision is significant for all retail landlords and tenants in NSW that have market rent review provisions in their leases.
Energy & Resources joint ventures – making sure you're ready to deal with a failure to fund - It's crucial for joint venture participants to agree upfront on clear processes for dealing with a venturer's failure to meet its funding obligations – and that those processes can withstand court scrutiny.
Environment and Sustainable Development 5 Minute Fix 40: carbon credits, critical minerals, offsets - The Environment and Sustainable Development 5 Minute Fix is a snapshot of need-to-know news on a range of ESD issues nationally. This edition focuses on the latest in climate change, energy, planning and environmental protection.
Federal Government kicks off consultation on design of Hydrogen Headstart Competitive Tender process - Consultation on the design of the Federal Government's competitive EOI process for up to $2B investment in Australia's hydrogen industry closes 3 August 2023.
Four out of five – is less more? Exploring the four-day work week in Australia - While the thought of a change to the five-day grind is exciting, and some employers are looking to trial and adopt this new industrial model, there are a number of factors to consider and address to ensure you start from a base of legislative and contractual compliance.
IR reforms 2.0: new protections and entitlements in Protecting Worker Entitlements Bill passed by Federal Parliament - Following the passage of the second tranche of industrial relations reforms, employers must be aware of their new legal obligations and review their workplace operations to minimise business disruption and to ensure compliance with the reforms.
Key takeaways from the Bonn climate conference - The "Bonn battles" saw developed and developing countries debating over familiar issues. Further consensus will be necessary to ensure COP28 delivers meaningful progress on climate change.
Litigation 101: Expert witnesses in a civil proceedings: practical tips - Expert evidence can make or break a party’s case. Avoid the common traps around admissibility issues, independence and privilege when briefing to get the most out of your expert’s report and avoid headaches down the line.
Major Projects & Construction 5 Minute Fix 117: combustible cladding, price escalation clauses, security of payment - Get your 5 Minute Fix of legal trends in Major Projects and Construction. In this edition: a recent NSW Court of Appeal decision involving the reinstatement of non-compliant combustible cladding; price escalation clauses in home building contract found void; misleading and deceptive conduct claim as a defence to a summary judgment application under the NSW SOP Act; and the ACT Court of Appeal considers whether a payment claim has been validly served if issued to an email address not used for previous payment claims.
Mandatory climate reporting – second consultation period underway to shape the final regime - A proposed mandatory regime will fundamentally redefine the climate-related financial disclosure obligations of reporting entities in Australia, so reporting entities will need to consider carefully their capacity to meet the expected obligations and prepare accordingly.
Media release: Clayton Utz advises Wyloo Consolidated on its successful $760 million takeover of Mincor Resources - Clayton Utz has advised Wyloo Consolidated, a wholly-owned portfolio company of Tattarang, on its successful $760 million on-market takeover offer for Mincor Resources NL (ASX: MCR). The takeover offer closed yesterday with Wyloo holding 92.71% in Mincor.
Media release: Clayton Utz announces 1 July 2023 senior promotions - We're pleased to announce the following senior promotions, effective 1 July 2023.
Media release: Clayton Utz announces three new partner promotions - Leading law firm Clayton Utz has made three promotions to our partnership, effective 1 July 2023: Tim Donisi, Greg Midgley and Katy Warner.
Media Release: Clayton Utz names Ross McInnes as next Board Chair - Clayton Utz has appointed Ross McInnes as Board Chair effective 1 July 2023, following the retirement of Karen O'Flynn.
Media Release: Clayton Utz partner Dr Ashley Tsacalos named Government Partner of the Year - Clayton Utz partner Dr Ashley Tsacalos was recognised as Australia's Government Partner of the Year at the 2023 Lawyers Weekly Partner of the Year awards.
Media Release: Clayton Utz takes out top awards at 2023 Managing IP Asia Pacific Awards - Clayton Utz has taken out two awards at the 2023 Managing Intellectual Property Asia Pacific Awards: Trademark Law Firm of the Year and Intellectual Property Transactions & Advisory Firm of the Year.
Media Release: Clayton Utz acts for Collins Foods on sale of Sizzler Asia - A Clayton Utz team has acted for Collins Foods Limited (ASX: CKF) on the sale of Sizzler Asia to MFG International Holding (Singapore) Pte Ltd (Minor) for SGD$20.2 million (approx. AUD$22.46 million). The transaction was completed yesterday.
New global Sustainability and Climate-related Disclosure Standards: how they will affect Australian businesses - Two new International Financial Reporting Standards create a new, global, consistent, and comprehensive baseline for sustainability and climate-related disclosure, and will likely be adopted for Australia's proposed mandatory reporting laws.
New WA Government Intellectual Property Policy focuses on responsible management and exploitation of IP assets - WA Public sector agencies and organisations must review their existing policies, procedures and contract documents to ensure they align with the State Government's new Intellectual Property Policy. If you contract with agencies, identify the new expectations and opportunities it creates.
Opportunity to consult with the Regulators on FAR - APRA and ASIC (the Regulators) are inviting industry consultation by 17 August 2023 on proposed Regulator rules and Transitional rules which will support the implementation of the Financial Accountability Regime once the Federal Government enact the Financial Accountability Regime Bill 2023 (FAR Bill).
Peeking behind the screen: ASIC's second greenwashing proceeding should prompt action by financial product issuers - Product issuers relying on ESG research performed by external providers as part of the product issuer's exclusionary screens should be on alert, following ASIC's second greenwashing case against Vanguard, almost five months after its first against Mercer.
Price flexibility in construction contracts: the importance of drafting in price adjustment clauses - Abnormal inflationary impacts on construction materials have created unsustainable differences between agreed fixed contract prices and actual delivery costs, making enforceable pricing flexibility more important.
Reminder: Deadline for deletion of COVID-19 vaccination information in Victoria - Businesses operating in Victoria should make sure they have arranged for the destruction of any COVID-19 vaccination information recorded or held under the Occupational Health and Safety Amendment (COVID-19 Vaccination Information) Regulations 2022 by 11 August 2023.
Responding to fraud: a practical checklist for general counsel - Every fraud generates unique issues and challenges which a general counsel will need to navigate, but some matters typically require immediate attention.
Sandoz secures a stay in the long-running escitalopram litigation - The Federal Court has granted Sandoz's application for a stay of proceedings remitted by the High Court, in the long-running Lexapro/escitalopram patent dispute. This will allow for the Administrative Appeals Tribunal to hear and determine Lundbeck's application for review of the decision of the Commissioner of Patents to grant Sandoz a licence under section 223(9) of the Australian Patents Act 1990 (Cth), and any successive appeals therefrom, before the remitted proceeding may continue.
Test case for legal unreasonableness decision fails in climate-based Court challenge - In the first domestic climate mitigation judicial decision of 2023, the NSW Land and Environment Court has held that sustainability and climate change considerations do not make it legally unreasonable to approve a coal mine extension.
The ACCC's product safety focus for 2023-24: consumers online, sustainability and infant safety - The new financial year brings the Australian Competition and Consumer Commission's (ACCC) product safety priorities for 2023-24.
The ACT's new Planning Act 2023 and new Territory Plan: understanding the move to an outcomes-based approach - ACT's new planning system is intended to give greater flexibility and a more streamlined process, and the new Territory Plan will play an important role in achieving these aims.
The resurgence of enterprise bargaining 04: starting the bargaining process - With all the preparatory steps taken, it's time to put hard work into practice with the commencement of bargaining.
What is Technology Assisted Review and how should it be used in modern discovery? - Technology Assisted Review is an innovative AI tool which can be used to assist with e-discovery, but it should be treated with caution.
Widening the net: ACCC's ambitious merger clearance threshold proposal - The ACCC has concerns about the current merger clearance process, and proposed changes, but it's unclear which (if any) will be acted upon by the Government.

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.