Legal updates

In a new case with strong echoes of Nurofen’s bruising $6 million encounter with the Australian Competition and Consumer Commission (ACCC) in December 2016 over its “pain specific” range, the ACCC has commenced proceedings against the manufacturers of Voltaren Osteo Gel.

In Re Atwell & Co Pty Ltd (in liq) [2017] VSC 683, Justice Kennedy of the Supreme Court of Victoria considered the application of the ‘proportionality’ principle in determining liquidator remuneration. Her Honour dismissed an appeal challenging the remuneration on grounds including that Associate Justice Efthim had erred, at first instance, in applying the 'proportionality' principle by only reducing the liquidators’ remuneration claim by 10%. There was nothing to suggest that the Associate Judge had erred in circumstances where his Honour had merely observed that the ‘proportionality’ principle is difficult to apply where matters outside of the liquidators’ control had created additional work for the liquidators whilst also reducing realisations.

As part of a broader review of all SEPPs, the NSW Government has announced that it is reviewing the current SEPP 55 - Remediation of Land and the associated Contaminated Land Planning Guidelines.

In this edition, we detail our recognition by the Asia Pacific Legal 500, introduce one of our new partners, discuss our case developments including acting for ASIC in the bank bill swap rate rigging proceedings, and provide updates on our class action matters. We also recognise our 25th anniversary as a firm, and celebrate our reign as back-to-back IBA LawRocks! champions.

This Update covers a range of important developments in Australia and overseas in the area of foreign bribery policy, investigations and regulation to 20 December 2017.

There has been a raft of reforms to Australia’s foreign investment framework over the last few years. The Commonwealth Government has introduced legislation which is intended to bolster the integrity of the foreign investment framework. In summary, the reforms have seen the introduction of application fees, increased penalties for non-compliance, increased monitoring by the Australian Taxation Office (ATO) and lower thresholds for agricultural purchases. In addition to Commonwealth Government changes to the foreign investment laws, Queensland, New South Wales, Victoria and South Australia have introduced, and Western Australia has announced that it will introduce, stamp duty and land tax surcharges on foreign owners of Australian residential property. 

On 19 October 2017, the Treasury Laws Amendment (Junior Minerals Exploration Incentive) Bill 2017 (Cth) was introduced to the House of Representatives. If enacted the Income Tax Assessment Act 1997 (Cth) will be amended to repeal the current Exploration Development Incentive scheme, and replace it with a new Junior Minerals Exploration Incentive scheme.

Making sense of the purchase money security interest (PMSI) priority provisions in the Personal Property Securities Act 2009 (Cth) can be challenging for financiers and insolvency practitioners tasked with assessing the merits of competing security interest claims.

In Cherry v Steele-Park [2017] NSWCA 295, the New South Wales Court of Appeal further demonstrated the divergence in Australia regarding the status of the ‘true rule’ of the admissibility of evidence of surrounding circumstances for contractual construction. 

The recent judgment of the Western Australian Court of Appeal in Hughes v Pluton Resources Ltd, concerns the interaction between a deed of company arrangement under Part 5.3A of the Corporations Act 2001 (Cth) and the Personal Property Securities Act 2009 (Cth).

On 16 October 2017, the Broadcasting Legislation Amendment (Broadcasting Reform) Bill 2017 (Cth) was passed by Australia’s House of Representatives and granted Royal assent. Following the Royal assent, the Bill was enacted as the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 (Cth) (Act). The Act includes a number of substantive amendments to the Broadcasting Services Act 1992 (Cth) (BSA) and is a part of the Australian Federal government’s comprehensive broadcast and content reform package announced on 6 May 2017. 

The new section 588GA of the Corporations Act 2001 (Cth) provides a “safe harbour” from insolvent trading claims for directors who, when suspecting a company may be or is insolvent, start developing a course of action that is reasonably likely to lead to a better outcome for the company.