Publications Archive:
Newsletters
| 29 April 2010 |
| s 439A report leads to removal of liquidators |
| Authors: David Proudman |
In Independent Cement and Lime Pty Ltd v Brick and Block Company Ltd (in liquidation) (receivers & managers appointed) [2010] FCA 352, Justice Finkelstein considered the duty of voluntary administrators to investigate and report on potential litigation recoveries in section 439A reports.
This updates touches on some of the key points of the decision and what it means for administrators. |
| 22 March 2010 |
| Aftershocks of High Court OHS Decision |
| Authors: Ruveni Kelleher |
| The High Court of Australia’s decision in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales will have a significant impact on the way in which prosecutors commence prosecutions against employers under occupational health and safety legislation. |
| 12 March 2010 |
| Overview of the Short Term Trading Market |
| Authors: Fiona Melville |
| This article provides an overview of the STTM; including, the entities participating in the market, determination of the market price and other market charges and concluding with a list of actions entities involved in the STTM may wish to consider taking. |
| 23 February 2010 |
| The Corporate Adviser |
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| An update for Company Secretaries, General Counsel and Remuneration Executives. |
| 10 December 2009 |
| Octaviar Ltd (No. 7) – crisis averted? |
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| The widely publicised Queensland Supreme Court decision of Re Octaviar Ltd created shockwaves in legal and financial circles by calling into question well established market practice as to when a charger must notify ASIC of variations to a registered charge. Overnight, many secured lenders found themselves at risk of existing charges being void in an insolvency situation to the extent that any increase in the underlying debt or liabilities secured by the charge had not been duly notified to the Australian Securities and Investments Commission (ASIC). |
| 10 December 2009 |
| Amendments to FAT Act and Regulations |
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| On 12 February 2009, the Federal Treasurer, Wayne Swan MP, announced proposed changes to Australia’s foreign investment regime by introducing the Foreign Acquisitions and Takeovers Amendment Bill 2009 (the Bill). |
| 10 December 2009 |
| ASIC v Rich - the business judgment rule |
| Authors: John Keeves |
| Much ink has already been spilt as a result of ASIC’s case against Jodee Rich, resulting in a 3000+ page judgment. In this update we consider Justice Austin’s important observations in Chapter 23 on the duty of care and diligence and the business judgment rule (BJR). |
| 10 December 2009 |
| GST-free treatment of supplies of going concerns |
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| Following the Commonwealth Budget 2009/10 in May of this year, the Treasury in conjunction with the Board of Taxation has been working on a range of reforms to the administration and legal framework of the GST. While some of the recommendations are now contained in a Bill currently before the Commonwealth Parliament, the recommendation in respect of the supply of a going concern exemption which, while accepted by the Government, awaits introduction to the Parliament. |
| 10 December 2009 |
| Under the radar - new powers for ACCC and ASIC |
| Authors: Aldo Nicotra, John Kench, Michele Laidlaw, Peter Rose |
| The Government is poised to overhaul Australia’s consumer protection laws including introducing a new prohibition on ‘unfair’ contract terms. Whilst many businesses are preparing for the new ‘unfair’ contract terms provisions, what has flown under the radar (but is even more important) is the significantly enhanced powers and remedies for the ACCC and ASIC in enforcing the consumer laws. The new enforcement powers will transform the landscape in which businesses advertise and market products and services to customers. The consequences for businesses may include swifter regulatory intervention, increased costs and more public shaming. |
| 10 December 2009 |
| When is a dividend included for CGT purposes? |
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| JWS's tax team examines Draft Taxation Ruling TR 2009/D5 which sets out the Commissioner of Taxation's view on when a dividend is included in the capital proceeds in respect of a disposal of shares under a contract or scheme of arrangement. |
| 19 October 2009 |
| The Corporate Adviser |
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| Updates for Company Secretaries, General Counsel and Remuneration Executives. |
| 07 September 2009 |
| University IP: A New Playing Field |
| Authors: Ruveni Kelleher |
| On 3 September 2009 the Full Court of the Federal Court of Australia handed down its decision regarding the appeal from the decision in the University of Western Australia v Gray (2008) 246 ALR 603. |
| 20 August 2009 |
| Before You Sign That Lease |
| Authors: Ivor Kaplan |
| Making the effort to negotiate a fair lease before taking occupation of leased premises can save a tenant much cost and inconvenience during the term of the tenancy and at the end of the tenancy. |
| 19 August 2009 |
| New Criminal Cartel Laws Commenced 24 July 2009 |
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| On 24 July 2009, Australia's new criminal cartel laws came into effect. These laws apply to all businesses regardless of size and target conduct that is at the heart of day to day business operations. |
| 18 August 2009 |
| Reliquefication Bills: Risks for Unwary Borrowers |
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| Australian dollar loan agreements commonly permit a lender to draw reliquefication bills of exchange in the borrower’s name. This article discusses the risks that reliquefication bills present for unwary borrowers, and outlines how these risks can best be managed. |
| 14 August 2009 |
| The Corporate Adviser |
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| Updates for Company Secretaries, General Counsel and Remuneration Executives. |
| 22 May 2009 |
| Capping Creeping Acquisitions |
| Authors: John Kench |
| The Government has reaffirmed its election commitment to deal with creeping acquisitions and in its latest discussion paper; Treasury has outlined two proposals as potential solutions. |
| 21 May 2009 |
| New Restrictions on Golden Handshakes |
| Authors: Ruveni Kelleher |
| Restrictions on termination payments and benefits provided to outgoing directors and other senior executives of companies will increase dramatically, if the amendments to the Corporations Act 2001 (Act), released on 5 May 2009, are enacted. |
| 03 May 2009 |
| Rough seas in the safe-harbour ACCC v Channel 7 |
| Authors: Paul Reidy |
| The High Court decision in Australian Competition and Consumer Commission (ACCC) v Channel Seven Brisbane Pty Limited & Ors [2009] HCA 19 indicates that broadcasters and publishers of news and current affair material may need to change the way they cover stories if they involve commercial agreements with the subjects of the story. |
| 27 April 2009 |
| The decision against James Hardie directors |
| Authors: Damian Reichel |
| Media commentary on the Supreme Court of NSW decision in the case against the former directors of James Hardie suggests that this is a hard case which has made bad law for non-executive directors generally. |
| 25 April 2009 |
| Octaviar Ltd: Unsettling Implications |
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| The recent Queensland Supreme Court decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd suggests that any variation which increases the underlying debt or liabilities secured by a registered charge (other than an ‘all moneys’ charge) must be notified to the Australian Securities and Investments Commission (ASIC) under s 268(2) of the Corporations Act 2001 (Cth), irrespective of whether the charge instrument itself is amended. |
| 06 April 2009 |
| Workplace Relations - Transition to Fair Work Act |
| Authors: Ruveni Kelleher |
| The Fair Work Bill 2008 was passed by the Senate on 20 March 2009 paving the way for the Fair Work Act 2009 to come into effect on 1 July 2009, as planned by the Government. This new legislation will ultimately repeal and replace the majority of the current Workplace Relations Act 1996 (WR Act) and completely overhaul the industrial relations system that currently operates in Australia. |
| 12 March 2009 |
| Carbon Pollution Reduction Scheme |
| Authors: Fiona Melville |
The Exposure draft Carbon Pollution Reduction Scheme Bill 2009 (CPRS Bill), released on 10 March, calls for comments by 14th April 2009.
There are three particularly significant issues on which liable parties may wish to comment. |
| 08 March 2009 |
| Raising Capital in Challenging Times |
| Authors: John Keeves |
Current market conditions have forced many Australian listed companies to consider raising equity funding. Activity in this area is expected to continue throughout this calendar year.
This guide provides information about some of the more common methods that Australian listed companies may consider using when raising equity in the current market.
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| 03 March 2009 |
| How Not To Get Spun Out By Your Spin |
| Authors: Aldo Nicotra |
| What happened? In February 2009, the Federal Court declared Harris Scarfe guilty of misleading or deceptive conduct under section 52 of the Trade Practices Act (TPA) and making false or misleading representations with respect to the price of goods under section 53(e) of the TPA in relation to its promotion of a clearance sale through a sale catalogue. |
| 20 January 2009 |
| Expanded Renewable Energy Targets |
| Authors: Fiona Melville |
| A draft bill to increase the renewable energy target from 5% to 20% by 2020 was released on 19 December 2008. This will increase industry wide renewable energy certificate costs (which are incorporated into electricity charges) from $532 million in 2010 to $2.83 billion in 2020. The Department of Climate Change are seeking comments by 13 February 2009. |
| 17 September 2008 |
| Carbon trading or carbon levy? |
| Authors: Fiona Melville |
This update summarises the key findings in the Garnaut supplementary report.
These are that Garnaut has changed his mind (from the June report) and now supports a fixed carbon levy of $20 in place of a trading scheme, until the earlier of 2020 or an internationally binding agreement replaces Kyoto. This is a huge change and one on which organisations who have made submissions to the Department of Climate Change may wish to make a supplementary submission. Garnaut's previously preferred position was a trading scheme with a price cap to 2012. |
| 24 August 2008 |
| Overview - Carbon Pollution Reduction Scheme |
| Authors: Fiona Melville |
The Carbon Pollution Reduction Scheme (Scheme) is due to commence in Australia in 2010. The Scheme will assist Australia meet its internationally binding Kyoto target of 108% of 1990 levels and the government’s emission reduction target of 60% on 2000 levels by 2050.
This update summarises the main characteristics of the Scheme as currently outlined in the Green Paper.
An overview of this Scheme is further explored in this update.
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| 24 August 2008 |
| Update - Getting ready for Carbon Trading |
| Authors: Fiona Melville |
| The Carbon Pollution Reduction Scheme (Scheme) will impose an obligation on approximately 1000 entities whose direct or attributable emissions of greenhouse gases exceeds 25,000 tonnes of carbon dioxide equivalent gases per year. This update outlines what these entities need to do now to minimise the cost impact and to prepare for carbon trading. |
| 13 July 2008 |
| Update - Mandatory Environmental Trading Schemes |
| Authors: Fiona Melville |
| There are currently five Environmental Trading Schemes operating in Australia, one National scheme, (MRET) and four State-based schemes, (VRET, NSW GGAS, ACT GGAS and 13% Gas Scheme). The VEET scheme will commence in Victoria on 1 January 2009 and NSW and SA have announced plans to introduce their own versions of this scheme called NEET and REET also from 1 January 2009. On the horizon is the Australian Carbon Pollution Reduction Scheme due to start in 2010. Details of these schemes are further explored in this update. |
| 21 February 2008 |
| Workplace Relations Update |
| Authors: , Ruveni Kelleher |
On 13 February 2008, the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 was tabled in Parliament. This update provides a snapshot of Labor's Industrial Relations Reforms and the key points about the reforms and their implications in preparing business strategies for 2008.
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| 24 September 2007 |
| Trade Practices Update |
| Authors: Aldo Nicotra |
In ACCC v Baxter Healthcare Pty Ltd, the High Court held that Trade Practices Act 1974 (TPA) applies to corporations when they enter into negotiations or contracts, or perform a contract, with a government authority even if the government authority is not carrying on a business. The full range of TPA remedies, including pecuniary penalties, was found to be available to the ACCC.
Prior to this decision, the common law shielded corporations from the TPA when dealing with a government authority that was not carrying on a business. |
| 21 August 2007 |
| Greenhouse Emissions and Energy Reporting |
| Authors: |
The Federal Government has this month introduced legislation requiring greenhouse emitters and consumers or producers of energy to report annually on their activities. In this Energy & Natural Resources Update we look at the requirement to register and report greenhouse emissions and energy production and consumption as from 1 July 2008.
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| 05 March 2007 |
| Intellectual Property - 257 |
| Authors: Christine Ecob |
In this IP Update Newsletter, our lawyers consider the various legal issues surrounding Internet defamation and provide commentary on some recent cases, looking at the legislative hurdles in attaching liability to an Internet Service Provider (ISP) or Internet Content Host (ICH).
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| 29 January 2007 |
| Board Brief - January 2007 |
| Authors: John Keeves, Robert Wyld |
| On 27 November 2006, the Commonwealth Attorney General tabled a report issued by Commissioner Terrance Cole into the activities and wheat sales of AWB Limited to the former Iraq Government of Saddam Hussein, under the United Nations Oil-For-Food Program. In our first Board Brief for 2007, we look at the important commercial and legal issues from the Cole Report and outline the lessons for corporate Australia. |
| 29 November 2006 |
| Energy & Natural Resources - 256 (230 Kb PDF) |
| Authors: Anthony Groom, Fiona Melville |
The multiplicity of Environmental Trading Schemes operating in Australia has resulted in reduced liquidity, uncertainty of future pricing and significant transaction and compliance costs for scheme participants. In this end-of-year Energy & Natural Resources Update, we have outlined the different schemes that are anticipated to be operating in Australia in 2007 and also provide a detailed table which summarises the key features that will impact on scheme participants.
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| 20 November 2006 |
| Board Brief - November 2006 (117 Kb PDF) |
| Authors: , Tony Johnson |
| In our final Board Brief for 2006 we discuss continuous disclosure, and consider the decision handed down by the Supreme Court of Western Australia on Riley v Jubilee Mines NL . We also look at the dilemmas facing a dissenting company director under the Corporations Act and finally review the ASIC v Chemeq decision which offers some interesting observations by the Federal Court on continuous disclosure obligations. |
| 20 November 2006 |
| Environmental Law - 255 (100 Kb PDF) |
| Authors: Paul Turner, |
| In this end-of-year environmental and planning legislation update, we look at the changes to the Development Act (SA), the Environment Protection Act (SA) and comment on some proposed changes to the related legislation. |
| 10 October 2006 |
| Dispute Resolution - 254 (122 Kb PDF) |
| Authors: , Peter van den Dungen |
Variations between the procedures in different courts are a fact of life in Australia. In this Dispute Resolution Update, we take a look at legal professional privilege and disclosure, and note that it is important to be clear on the particular rules that are applicable in the jurisdiction where an action has been brought. Using the example of draft expert reports we conclude that whether a draft report has to be produced or not depends, in part, on the particular court (and/or State), in which the action has been brought.
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| 04 October 2006 |
| Intellectual Property - 253 (124 Kb PDF) |
| Authors: Christine Ecob, Philip Laity |
Legislation affecting the rights of Australian trade mark owners was passed in Parliament on 14 September 2006. In this Intellectual Property Update, we highlight the most significant amendments to the Trade Marks Act and consider the impacts. We also discuss the value of your trade mark and ask whether minor changes to a company logo, made over time, may dilute its value? We examine the legal implications and reflect on some preventative measures that may help protect your investment.
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| 02 October 2006 |
| Dispute Resolution - 252 (123 Kb PDF) |
| Authors: , Peter van den Dungen, Robert Wyld, Toni Vozzo |
With some media interest in "class actions" being generated by the High Court's decision in Campbell's Cash and Carry Pty Ltd v Fostif Pty Ltd, in this Dispute Resolution Update, we examine the Court's ruling and note that litigation funders are now walking on much firmer ground. We also comment on the impact for representative actions and question whether the media comment about class actions might have been premature.
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| 13 July 2006 |
| Dispute Resolution - 251 (125 Kb PDF) |
| Authors: , Peter van den Dungen |
| Our first piece examines the improper use of documents obtained in litigation: clients, and those advising them, frequently overlook or ignore the principle that documents obtained from other parties as a result of a court proceeding are not to be used for any improper or collateral purpose. Next we consider Experts' Reports and note that when draft reports are circulated between the expert, the lawyer and the client, it is likely they will have to be disclosed to other parties to a dispute. The decision in 'Harris Scarfe' may encourage a greater degree of oral advice from an expert prior to completion of the final report. |
| 05 July 2006 |
| M&A Law and Strategy (150 Kb PDF) |
| Authors: Damian Reichel, John Keeves, John Kench, Peter Rose |
In this inaugural issue of M&A Law and Strategy, we discuss the dynamics of takeover bids in their intersection with the approval processes of the Australian Competition and Consumer Commission (ACCC), and the willingness of the ACCC to accept behavioural undertakings and not just structural solutions (ie, divestitures) as a condition of approving mergers - bidders, targets and market competitors will benefit from this analysis of a number of recent takeovers. We also include a brief note on the Takeover Panel's approval of the use of institutional acceptance facilities in bids.
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| 14 June 2006 |
| Corporate Advice - 249 (133 Kb PDF) |
| Authors: Damian Reichel, John Keeves |
| The federal Treasury's consultation paper on simplification of corporate and financial services regulation examines many areas of "red tape". FINSIA believes that aspects of Australia's takeover laws impede a free market, and compare levels of takeover activity in the US, UK and Australia in their proposals for reform. Removing the "100 member rule" for meeting requisition is one of the amendments in a Bill that has been released for comment. And JWS corporate partner, John Keeves, has been appointed to the Takeovers Panel. |
| 12 June 2006 |
| Board Brief - June 2006 (117 Kb PDF) |
| Authors: , Chris Connor |
As the end of the financial year approaches and the annual round of signoffs gets closer, we're pleased to offer four brief notes about issues that may face boards in carrying out their duties: first, an unexpected outcome from the Cole Oil-For-Food inquiry relating to legal professional privilege; next, a brief summary from the Treasury's consultation paper on corporate and financial services reform; the third item examines ASIC's "tougher" approach to continuous disclosure; and Victoria's new Document Destruction legislation may pose significant additional requirements on corporations.
Finally, one of Johnson Winter & Slattery's partners, John Keeves, has been appointed to the Takeovers Panel. |
| 04 May 2006 |
| Dispute Resolution - 248 (122 Kb PDF) |
| Authors: Chris Connor |
| Document destruction legislation has been introduced in Victoria, making it a criminal offence to destroy documents that may be required in legal proceedings. The legislation highlights the need for corporations to implement properly managed and enforced document retention systems, whose parameters are communicated throughout the corporation. |
| 08 April 2006 |
| Energy & Resources - 247 (111 Kb PDF) |
| Authors: |
| Update on the Australia-China Uranium Agreement. Australia and China recently signed off on two Agreements which are set to allow for the exportation of uranium from Australia to China. |
| 07 April 2006 |
| Energy & Resources - 246 (111 Kb PDF) |
| Authors: Fiona Melville, |
| Update on the Renewable Energy (Electricity) Amendment Bill 2006. The Bill must pass both houses of Federal Parliament and have a date of commencement proclaimed before it becomes effective law. |
| 16 March 2006 |
| Energy & Resources - 244 (194 Kb PDF) |
| Authors: Fiona Melville, |
| The MCE is seeking comments on a discussion paper on the Impediments to the Uptake of Renewable and Distributed Generation and a draft Code of Practice for Embedded Generation, by 22 March 2006. The attached update summarises the main issues. |
| 15 March 2006 |
| Corporate Advice - 243 (191 Kb PDF) |
| Authors: Damian Reichel, John Keeves |
| This Corporate Advice update reports on ASIC's desire for shorter and simpler prospectuses; next we examine the Takeover Panel's guidance on unacceptable circumstances in rights issues - please note tht there is no "safe harbour"; and finally we look at collateral benefits in takeovers and the 20% threshold rule. |
| 13 December 2005 |
| Energy & Resources - 242 (191 Kb PDF) |
| Authors: Fiona Melville, |
| This newsletter is to alert you to the fact that the Ministerial Council on Energy (MCE) has released a Regulatory Impact Statement for Public Consultation on the appropriate review mechanism for regulatory decisions in the gas and electricity markets. |
| 08 November 2005 |
| Corporate Advice - 241 (192 Kb PDF) |
| Authors: |
| This newsletter details a clarification of the impact of AIFRS on payment of dividends, amendments to ASX Listing Rules, proposed insolvency reforms as well as a summary of the Takeovers Panel's draft guidance note on bidders statements on the use of cash settled equity swaps in takeover bids. |
| 03 November 2005 |
| Energy & Resources - 240 (191 Kb PDF) |
| Authors: Fiona Melville, James Marshall |
| This newsletter covers mandatory energy and water savings action plans for New South Wales and the lifting of the ban on the issue of new wind farm licences in South Australia. |
| 05 October 2005 |
| National Emissions Trading Scheme - 238 (252 Kb PDF) |
| Authors: Fiona Melville |
| Update on the National Emissions Trading Scheme which summarises the isues set out in the background paper issues by the interjurisdictional working group in September 2005. |
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