Friday, 4 September 2020

Australian Business Law Review, Vol 48, Part 4

 ABLR Vol 48, Part 4 has just come out. This time five excellent articles on a wide range of legal issues - the duties of superannuation trustees, tax reform, goodwill restraints of trade, copyright site-blocking and national security and foreign investment regulation. I really enjoyed putting this edition together.

* Might Superannuation Trustees Owe a Duty to Merge? – Scott Donald

* The Challenges of Industrial Revolutions: Luddism and Tax Reform – Kerrie Sadiq and Bronwyn McCredie

* The Frontiers of Restraint of Trade Litigation Protecting Goodwill: Policy, Principles and Practice – Michael Tamvakologos

* From Little Things Big Things Grow: Australia’s Evolving Copyright Site-Blocking Regime – Cheryl Foong and Joanne (Jo) Gray

* The Australian and United States Approaches to National Security and Foreign Investment Regulation – Nicholas Felstead

I am also pleased to announce a new ABLR Section to be entitled “Taxation Law and Practice” to be headed up by Prashanth Kainthaje, Tax Partner with John Winter & Slattery. I look forward to working with Prashanth in making the new Taxation Law and Practice Section a success.

Australian Business Law Review, Vol 48, Part 3

 Part 3 has just come out. Again, lots of excellent articles and Section Notes. The legal areas covered in this edition include the proposed mandatory repair scheme, franchising law, fair work bargaining, corporations law, and competition law.

* The Mandatory Repair Scheme for Motor Vehicles 2019: Australia’s First Response to the International Right to Repair Movement? – Leanne Wiseman, Kanchana Kariyawasam and Lucas Davey

* Working for the Brand: The Regulation of Employment in Franchise Systems in Australia – Tess Hardy

* Fair Work Bargaining for Police: A Proposal for Reform – Giuseppe Carabetta

* Are the “Efficiently, Honestly and Fairly” and Unconscionable Conduct Civil Penalty Provisions Equally as Effective in Combating Unfair Practices By Licensees? – Jessica Zarkovic

* Natural Meaning Equals Natural Monopoly: New Declaration Criteria for Access to Services under the Competition and Consumer Act – Michael Gvozdenovic

* ASIC v King – The High Court Clarifies Who Is an “Officer” of a Corporation Jennifer Chambers, Michael Legg and Lindsay Stankovic

Thanks to all the authors and referees for their hard work in getting this edition together pretty much on time.

Marketing fund statements: three things to get right

I was bit frustrated to get this email from the ACCC about the importance of franchisors making sure that they send out their marketing statements to franchisees on time, given my recent experiences with the ACCC.

I wrote to the ACCC on behalf of a whilstleblower in late 2018 to advise that a well known national franchisor had failed to send out any marketing statements to any franchisees for approximately 10 years. I provided the ACCC with some fairly compelling internal company documents to support the allegations.

After a 18 month investigation, the ACCC advised us that it had decided not to take any action against the franchisor in relation to approximately 10 years of contraventions because the franchisor had decided to start complying with the law from 2017.

I have to say that there is an appalling lack of consistency in some of the ACCC's enforcement decision making.

Thursday, 9 July 2020

Australian Business Law Review, Vol 48, Part 2

Very excited about the upcoming Special ABLR COVID-19 Edition. Thanks to Dr Victoria Lambropoulos for suggesting the idea of a Special Edition and for agreeing to be the Guest Editor. Also, thanks to all the authors for their exceptional articles:

* COVID-19, JobKeeper & Stand Down under the Fair Work Act 2009 (Cth): A Review of the Law – Victoria Lambropoulos

* The Contractual Impact of COVID-19 on Corporate & Financial Transactions – Andrew Godwin

* The Challenges of Navigating the COVID-19 Pandemic for Australia’s Franchise Sector – Jenny Buchan & Rob Nicholls

* Courts, Mediation & COVID-19 – Tania Sourdin & John Zeleznikow

* Commercial Litigation and COVID-19 – the Role and Limits of Technology – Michael Legg & Anthony Song

* Frustratingly Unclear? The Interplay Between Common Law, Statute and the ACL in Assessing Consumer Rights in a Time of Crisis – Alex Jane & Jeannie Marie Paterson

* Prepayments, the ACL & the ASIC Act – Philip H Clarke

* COVID Collaboration & Competition Policy: Authorisation vs Forbearance as Crisis Responses – David Howarth & Harriet Alexander

* Transport, Drones and Regulatory Challenges: Risk Accountability Meets COVID Fast Tracking of a Critical Industry – J Tarr, A Tarr & K Paynter


Quantum Housing decision appealed over unconscionable conduct

The ACCC was right to appeal this decision. I think Justice Colvin has misinterpreted Kobelt. While a couple of the High Court judges in Kobelt seem to have endorsed special disadvantage, this was clearly not the decision of the court.

Rather the test identified by the High Court in Kobelt seems to be that conduct which is seen as well outside the bounds of moral, right or acceptable commercial behaviour according to prevailing norms and standards will be found to be unconscionable.

The other significant issue coming out of Kobelt is the long overdue rejection of "moral obloquy" as being in any way relevant to a finding that conduct is unconscionable.

Monday, 29 June 2020

Australian Business Law Review, Vol 48, Part 1

ABLR Vol 48, Part 1 has just come out. Plenty of excellent reading in relation to insolvent trading liability, class actions, whistleblowing laws, unfair contract terms, intellectual property and legal professional privilege.

* The “Safe Harbour” Reform of Directors’ Insolvent Trading Liability in Australia: Insolvency Professionals’ Views – Ian Ramsay and Stacey Steele

* To Bar Order, or Not to Bar Order: Facilitating Settlement in Australian Anti-Cartel Class Actions – Bethany Moore

* Reforming Private Whistleblower Protections – What Next in Australia? – David A Chaikin

* Financial Reporting and Disclosure of Intangible and Intellectual Property Assets by Australian Listed Entities Between 2004 and 2018 – Tony Ciro and B├╝lend Terzioglu

* Making Liars of Us All! – Ian Tonking SC

* In-house Counsel, the Requirement of Independence and Legal Professional Privilege – Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96 – Michael Legg

I hope you enjoy the edition!

ACCC applies to the High Court for special leave to appeal Pacific National merger decision

It is a good idea for the ACCC to seek Special Leave to appeal this decision to the High Court. Although I think the ACCC are unlikely to win in the High Court, we really need some guidance from the High Court on the appropriate tests to apply to merger evaluation. The mess created by Emmett J in the "Messcash" case (as I like to call it) really needs to be sorted out.

See also my article on the Metcash case -