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 -

Australian Business Law Review, Vol 47, Part 6

The Special Personal Property Security Act (PPSA) edition of the ABLR has just come out with Guest Editor The Hon Emeritus Professor Ralph Simmonds.

We are celebrating the 10th Anniversary of the enactment of the PPSA with four articles from specialists in the area:

* Function, Form, Fixed, Floating and Forge: Filtering Out Pre-PPSA Concepts in a Post-PPSA World – Linda Widdup

* The Floating Charge under the PPSA: The Current State of Play – Sheelagh McCracken

* Registration Errors under the PPSA: A Case Law Inventory and Analysis – Martin Lovell and Oliver Radan

* The Use of Overseas Case Law in the Australian PPSA – David Brown

Special Children's Christmas Party

Happy to be supporting the Special Children's Christmas Party for the ninth year.

The impact of COVID-19 on the ACCC's 2020 Enforcement and Compliance Priorities

Learn about the Australian Competition and Consumer Commission (ACCC) 2020 compliance and enforcement priorities, and how Australia’s consumer watchdog plans to navigate the economic disruption caused by COVID-19.

Hear from ACCC Commissioner, Sarah Court and Competition and Consumer legal expert, Michael Terceiro on the impact of COVID-19 on the ACCC's 2020 priorities.

Join our complimentary webinar on 12 May from 1.30-2.30pm AEST. Register here

text and logo along with a picture of people

Australian Business Law Review vol 47, Part 5

ABLR Vol 47, Part 5 is out.

Four excellent articles and one timely Section Note:

* Finding the Balance between Profit and Purpose: Should Australia Create a Legal Structure for Social Enterprise? by Alice Klettner

* Sponsor Pressure to Discipline Employees Who Have Expressed Unwelcome Views and Reform of the Business Torts in Australia by Anthony Gray

* Proof of Collusion: The Evidentiary Options When There Is No “Smoking Gun” by Genevieve Rahman and Tina Sun

* “Fair in All the Circumstances”: AFCA’s Discretion to Resolve Disputes by Nick Beaumont SC

* Australia’s Franchising Code of Conduct Review – a Continuation Down the Path of Jamming a Square Peg into a Round Hole? by Jenny Buchan.

I hope you enjoy the articles.

Enhancements to Unfair Contract Term Protections

Attended the Sydney consultation in relation to the proposed enhancements to Unfair Control Term Protections run by Treasury today representing the SME Committee of the Law Council of Australia.

ACCC will not appeal Federal Court’s decision to allow TPG-Vodafone merger

I was wrong about this one - I thought the ACCC would appeal the decision.

Apparently the ACCC could not identify any errors of law in Middleton's judgment which would have changed the outcome. I guess the fact that Middleton based the key aspects of his decision on evidence from the ACCC's expert witness, Mike Wright made it pretty difficult for the ACCC to appeal.

I really can't understand the ACCC putting forward an expert witness who does not support its case theory. If your expert does not support your case theory you shouldn't be taking the case to court in the first place.

Coles to pay Norco dairy farmers around $5.25 million following ACCC investigation

How does Coles avoid getting taken to court by the ACCC for this conduct? It is a disgrace when repeat offenders, who engage in a egregious breaches of the ACL (the ACCC's words) in relation to struggling dairy farmers can avoid any enforcement action whatsoever whilst first time offenders go straight to the top of the enforcement pyramid and get sued.

The ACCC's Enforcement Committee has to pick up its game or it will lose all credibility.

JPMorgan helped identify 'cartel bankers', witness reveals

All very disturbing! Giving witnesses copies of tapes and transcripts prior to taking a witness statement from them, allowing the witness's employer's (JP Morgan) legal advisers to be present at the meetings with the ACCC where he is providing a witness statement, and everyone merrily taking their own separate notes of what he says.

This case is not looking good for the ACCC!

Westpac's 23m breaches could be the tip of the iceberg

It all makes sense now. I had to transfer some money to a Spanish law firm which is doing some work for me. Westpac immediately cancelled the transaction and I had to spend over an hour on the phone explaining to them that it was a legitimate transaction and that I was not being scammed. They finally agreed to put the transaction through.

I was also advised by Westpac that Spain is on the red list and that apparently Spanish lawyers are not to be trusted, which sounded a bit rich coming from an Australian bank!

Westpac chairman Lindsay Maxsted has promised an independent review.

Australian Business Law Review Vol 47 Pt 4

Volume 47, Part 4 of the ABLR has just come out. Four excellent articles, two Section Notes and a Book Review:

* “Why Not Litigate?” – The Royal Commission, ASIC and the Future of the Enforcement Pyramid – Michael Legg and Stephen Speirs

* The Lawfulness of the Dismissal/Termination of an Employee Who Has Expressed “Unwelcome” Religious Views – Anthony Gray

* Online Auctions and Consumer Protection in the United Kingdom and Australia: The Value of Transparency – Jodi Gardner and Kanchana Kariyawasam

* The Legal Implications of E-commerce for the Australian Franchise Sector – Zhanna Kremez, Kanchana Kariyawasam and Lorelle Frazer

* Penalising the Inclusion of Unfair Terms in Standard Form Small Business Contracts – A Critical Analysis – Mark Lewis

* Small Business and Unfair Dismissal: A Review of the Australian Small Business and Family Enterprise Ombudsman’s Proposed Reforms – Victoria Lambropoulos

* The Legitimacy and Responsiveness of Industry Rule-making, by Karen Lee – Reviewed by Rob Nicholls

Plenty of fascinating reading on a wide variety of legal issues. Hope you enjoy reading this edition as much as I enjoyed putting it together.

Judge warns that VW fine will be 'multiples' of $75m imposed by ACCC

It seems to me, reading between the lines, that unless VW admit their contraventions Judge Foster is going to ramp the fine up well beyond $75 million.

I think Foster is saying that $75 million is the appropriate penalty if VW demonstrates contrition and it can only demonstrate contrition by making admissions.

I also agree that the ACCC should not be accepting a no admission settlement. It seems pretty clear VW is trying to buy its way out of having to say sorry to Australian consumers.

Interestingly, as VW has not made any admissions (yet) it is not a case of them saying that they will withdraw their admissions if the judge does not agree to signing off on the $75 million penalty.

Volkswagen's record fine could get even bigger.

New Energy Tech Consumer Code

I lodged a submission to the ACCC on behalf two clients in relation to the New Energy Tech Consumer Code. The Clean Energy Council (CEC) didn't seem to like my submission very much describing it variously (and quite repetitively) as:

* generalised (twice)
* unsubstantiated (three times)
* argumentative (twice)
* anonymous (three times)
* making insinuations
* very serious
* potentially vexatious and scandalous
* vague

I am glad to see that, despite the invective, the CEC appears to have agreed with two of my proposals ie to introduce an appeal mechanism for membership applications and to include a requirement that the Administrator observe the rules of natural justice when making decisions.

I wonder if the ACCC will pick up a few more of my other recommendations in the final decision?

Franchising Taskforce Issues Paper

Helped prepare the SME Committee of the Law Council of Australia's submission in response to the Franchising Taskforce Issues Paper.

Unfortunately, the submission is not publicly available as the Taskforce has somewhat surprisingly decided not to publish the submissions received.

Record $26.5m penalty and $56m repayment ordered against training college Empower Institute

While this is a good outcome (admittedly against a company which won't pay a cent of the penalty due to it being in liquidation), I still wonder why the ACCC did not take action against the companies providing the agency services to these VET providers - ie the companies which sent out the sales persons who actually engaged in the misleading and deceptive conduct.

Many of these agents made vast sums of commissions on these sales but have not been held to account for their conduct. Unfortunately, it make be too late for the ACCC to pursue these companies now.

Charges dropped against executives in corporate kickback scandal

R v Carter and R v Georgiou - talk about a disaster of a case!

The Crown no billed a 13 week criminal trial in the first week after it came out in evidence from one of the lead detectives that the Police:

(1) had not disclosed the existence of a registered informant to the defence;
(2) had thrown away an original, signed witness statement that differed from the final witness statement filed with the brief of evidence; and
(3) relied on Orix's lawyers, Clayton Utz, to review and forward relevant evidence to them.

While I can kind of understand (2) and (3) happening, I just can't understand why you would not disclose the existence of registered informant to the defence.

Former Orix executive George Georgiou leaving the NSW District Court after charges against him were dropped.