Advising directors of companies in financial distress

With a flood of company insolvencies expected in 2021, lawyers will increasingly be asked to provide advice to directors of companies facing difficult decisions about the future of their businesses. We provide a checklist to assist with advising directors of companies in financial distress. Why do company directors need to act urgently? The temporary insolvency protections relating to insolvent trading liability and...

Alerting subscribers from all walks of life

For 30 years, Capital Monitor™ has alerted subscribers from all walks of life to parliamentary, political, legislative, regulatory and judicial news and information as it happens. When the concept for this service was born in the late 1980’s, and launched as a business in January 1990, photocopiers and faxes were considered new technology. How it all began 1990 - 1994 It was a momentous year for Capital Monitor, but...

A post-COVID economy vision: how will the budget measure up?

With less than a month until Treasurer Josh Frydenberg hands down the Federal Budget, industry bodies have released a flurry of economic reform proposals hoping to help the Government steer Australia towards a quicker post-pandemic recovery. Business advocates such as the Business Council of Australia (BCA), the Australian Industry Group (Ai Group) and Australian Chamber of Commerce and Industry (ACCI) have led the pack...

A Revolution in Dispute Resolution: The impact of COVID-19 on civil litigation in Australia

The COVID-19 pandemic has transformed the administration of justice in Australian courts and tribunals, necessitating a comprehensive overhaul of the protocols, procedures and norms of etiquette on which the courts and the legal profession have relied for decades. These changes have been sudden and challenging, but the profession and the judiciary have adapted quickly and have seized on opportunities to enhance access...

Australian Property Law Bulletin highlights

The NSW government introduced new disclosure requirements for developers entering into off the plan contracts for residential developments from 1 December 2019. A Disclosure Statement is now required to be attached to a contract for sale that includes information such as sunset dates, whether development approval has been obtained and details of any strata scheme, community precinct or neighbourhood scheme the lot may...

Beyond COVID-19: The unresolved epidemic of wage theft and underpayments

Employers are currently focused on crisis-management workplace issues, due to the COVID-19 pandemic. Once this crisis has abated, attention will again be focused on the yet unresolved wage theft epidemic. The article sets out key issues that employers need to consider regarding underpayments. Wage theft — a criminal offence Victoria’s Wage Theft Bill 2020 was given its second reading in the Victorian Legislative Assembly...

Calculating time — distinguishing between “at least x days before” and “x days before” an event

Clauses imposing time limits on the performance of contractual obligations are fertile ground for disputes and non-compliance is often raised by parties seeking to terminate contracts. Common phrases such as “at least x days after” or “x days before” are used to describe time periods. Often the differences in meaning are subtle and depend in each case on a construction of the whole of the contract terms in the context...

COVID-19 challenges and responses A university librarians’ perspective

The pandemic sweeping across the world is a global crisis that has shut down cities, closed borders and has created once-in-a-lifetime challenges and changes for many. Here we talk to Kay Tucker, Law Library Manager at Monash University about the unique challenges faced by Australian University libraries. How prepared was your Library to respond to the current crisis in terms of your “work from home” arrangements...

Dealing with personal information security breaches

There is no single way of responding to a personal information security breach. Each breach must be dealt with on its own merits. This will require the business to assess the breach, the risks involved and the possible consequences that may flow from the breach. That assessment must be used to determine what steps the business must take to stop the breach (or stop it from reoccurring), investigate the reasons why the...

Dealing with the impact of widespread disease on the workplace

Various issues arise for businesses when there are risks of widespread disease affecting the workplace, such as in a pandemic. The overarching requirement for a business is to meet its work health and safety duties, which requires it to ensure the health and safety of workers and other persons in the workplace. In doing so, the business will need to direct and consult with its employees, consider discrimination and...

Black Lives Matter: the legalities and politics of Australia’s racial vilification and defamation laws

This blog covers the three of the four main points of The influence of defamation law on the interpretation of Australia’s racial vilification laws (2020, 26 TLJ 34, LexisNexis), by Bill Swannie of Victoria University. Complete this form for complimentary access to the full article published in the Torts Law Journal. How do you balance public interest in fair comment over ridicule and satire and how does this help...

Australian family property law: ‘Just and equitable’ outcomes?

As the COVID-19 healthcare crisis continues to impact family relationships already brimming with high levels of financial stress , the number of couples applying for divorce in Australia is tipped to rise over the next 12 months. Many family law practitioners would agree that a redraft of the Family Law Act 1975 , as recommended by the Australian Law Reform Commission (ALRC) report , is long overdue. Under the current...

Thorne v Kennedy: High Court of Australia confirms the laws of contract and equity underpin pre-nuptial and post-nuptial financial agreements.

In a recent Australian Bar Review article, Lance Rundle of Central Queensland University explores the context in which equitable intervention, namely duress, undue influence and unconscionable conduct, were considered and applied by the High Court of Australia in the decision of Thorne v Kennedy . Furthermore, he analyses the impact of the decision for legal practitioners and parties when negotiating, drafting and signing...

In Conversation with Felicity Gerry QC

Professor Felicity Gerry, QC has dedicated much of her life to advocating for vulnerable individuals in both Australian and international courts amidst sensitive topics such as genocide, terrorism and modern slavery. Felicity is an international QC, at Carmelite Chambers, London and Crockett Chambers, Melbourne, defending in serious and complex criminal trials and appeals. She’s also Professor of Legal Practice at Deakin...

Forensic Evidence Miscarriage of Justice - Infographic

Freedom of expression vs the employer's right to regulate employee behaviour: why the Folau case wasn't about religion

The question of how far an employer's right to regulate employee behaviour extends is one that is vexed for both employers and employees. This battle of rights: an employee's right to hold and express personal beliefs versus the right of an employer to set boundaries on employee behaviour both for the protection of legitimate business interests and employee wellbeing, played out recently following Rugby Australia's termination...

Insolvency law reform - how the new debt restructuring process will work and its pros and cons

The most significant reforms to Australia’s insolvency laws in 30 years are due to commence on 1 January 2021 subject to the passing of legislation. It is important for practitioners to get across key components of the draft legislation released by Treasury to help clients prepare for the changes that are fast approaching, particularly given demand for legal services in insolvency and restructuring is set to rise in...

Joint Select Committee on Australia’s Family Law System

Interim report of improvements in family law proceedings – an overview This report itself is 300 pages, and with its seven appendices, extends to over 400. Without making a single recommendation, it makes a substantial contribution to the family law literature. Background The Joint Select Committee on Australia's Family Law System, chaired by Hon Kevin Andrews MP, was appointed in September 2019. The terms of reference...

Lessons from the IOOF Case

A recent decision of the Federal Court in Australian Prudential Regulation Authority v Kelaher [2019] FCA 1521 provides some guidance to regulators, trustees of superannuation funds and their advisers on issues related to administering superannuation funds and conducting litigation, explains Noel Davis, Barrister and author of The Law of Superannuation in Australia . In this case APRA sought disqualification orders...

Much Obliged: When could a lawyer mediator be liable for breaching their obligations?

Mediation is an increasingly popular form of dispute resolution in Australia especially in last few decades. While mediators may possess a variety of skills and may come from a range backgrounds, lawyers and barristers are frequently engaged in mediations either in their capacity as legal representatives of the parties, or as mediators. In this article, Queensland barrister Polina Kinchina of Murray Gleeson Chambers...

National Cabinet plays with a newfound unity, but will it last

Prime Minister Scott Morrison and Acting Chief Medical Officer Paul Kelly emerged from the latest National Cabinet meeting on Friday the 10 th of July 2020 to announce the latest in what the nation’s leaders had agreed to. It was the first time National Cabinet convened since the new spike of Covid-19 cases in Victoria, and while the Prime Minister described the outbreak as “concerning”, he also said that Victoria had...

New-found workplace flexibility or economic disaster

After years of relative stability, Coalition Government moves against trade unions, and a recent Federal Court of Australia decision related to casual workers that is currently being appealed at the High Court, have brought conflict and uncertainty to the industrial relations landscape. An economic crunch and spiralling unemployment on the back of COVID-19 have heightened concerns among employers and employees alike....

Not enough to say no: what the changes in modern awards mean for discussing and refusing flexible work requests.

In November 2018, the Full Bench of the Fair Work Commission handed down a decision that expands on an employer’s obligations when considering an employee’s request for “family friendly” working arrangements. The decision inserted a model term into all modern awards (Flexible Work Decision). This model term does not apply to employees covered by an existing enterprise agreement (EA), although it will need to be considered...

Privacy by design

Privacy by design is a practical framework that aims to “embed” privacy into the design and architecture of information systems, business processes and networked infrastructure. It aims to ensure that privacy is considered before, at the start of, and throughout the development and implementation of initiatives, projects and products and services that involve the collection and handling of personal information. What...

Thinking outside the box

Practitioners working in brand protection and trade mark law are very familiar with applications to remove trade mark registrations on the basis of a lack of intention to use or lack of use. Removing disused registered trade marks from the register is in the public interest, according to Andrew Sykes, author of Australian Trade Mark Opposition Law , 2 nd ed, 2019. The register should not be a graveyard of trade marks...