Monday, 21 August 2017

Updated: Internationalising the International Arbitration Act

This article has been updated following Australia becoming a signatory to the Mauritius Convention on 18 July 2017, discussed below.

Last week the Civil Law and Justice Legislation Amendment Bill 2017 (Cth) (Bill) was introduced into the Senate and received its second reading speech.  The object of the Bill is to ‘make minor and technical amendments to civil justice legislation’ and it proposes amendments to various Commonwealth legislation including the International Arbitration Act 1974 (Cth) (IAA).  A closer inspection of the proposed amendments to the IAA reveals that the relevant amendments to the IAA are anything but ‘minor and technical’.

Monday, 6 February 2017

Native Title - individual 'power of veto' jeopardises ILUAs

WHO SHOULD READ THIS
  • All proponents and Traditional Owners who are a party to an existing Indigenous Land Use Agreement (ILUA) or intend to enter into an ILUA.
THINGS YOU NEED TO KNOW
  • There has been a change in law - McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade). All applicants who comprise a ‘registered native title claimant’ must execute an ILUA for that ILUA to be effectively registered.
  • Until and unless this decision is overturned by appeal or legislative change, the impact is far reaching in respect of:
    • registered ILUAs and the validity of future acts done under them; and
    • the registration of future ILUAs. 
WHAT YOU NEED TO DO
  • For those in the process of obtaining or registering an ILUA  – ensure that all named applicants execute the ILUA.
  • For those who are party to an existing ILUA – review your agreements and consider your position.  Importantly, did all of the applicants execute the agreement?
Background
In 2010, the Federal Court in QGC Pty Ltd v Bygrave (No.2) [2010] FCA 1019 held that an ILUA could proceed to registration with the National Native Title Tribunal (NNTT) without the signatures of all named applicants.
Since then, it has been common practice of the NNTT to accept ILUAs for registration where some, but not all, of the applicants have executed the agreement (and, of course, the balance of the registration requirements have been met).
The Full Federal Court in McGlade has now reversed this position.  An ILUA now cannot be registered unless it is signed by each and every named applicant.
This decision has potentially far reaching impacts on parties operating under ILUAs without the signature of all applicants and, critically, on parties seeking the registration of ILUAs that have been executed by some but not all of the named applicants.
The decision
The Court declared that four ILUAs lodged for registration with the NNTT were not valid ILUAs for the purposes of the Native Title Act 1993 (NT Act), because some of the named applicants who comprise the ‘registered native title claimant’ had not executed the agreement (even as a result of death).
The Court found that:
  • for the agreement to be validly registered as an ILUA, all individuals comprising the ‘registered native title claimant’ must sign it;
  • resolutions of the community do not have the effect of overriding that fundamental principle;
  • if an applicant unreasonably refuses to execute an ILUA against the wishes of the claim group, that applicant can only be removed by application of the claim group under section 66B of the NT Act; and
  • deceased applicants must also be removed and replaced under section 66B prior to the making of the ILUA.
Final thoughts
While this may mean that any one of the persons who jointly comprise a registered native title claimant can effectively veto the implementation of a negotiated area agreement by withholding their signature to the agreement, that is what the NTA recognises as possible. Whether the NTA should provide for some mechanism, apart from s 66B or in addition thereto, for responding to the types of agreement making issues raised in these proceedings, is a policy issue for the Parliament to consider, not this Court.
-The Honourable North and Barker JJ (at para 265)
(our emphasis)
We expect this decision will be appealed.  The unanswered questions raised threaten the validity of persisting future acts.  Legislative amendments to overcome these issues have been on the table for some time.  No doubt McGlade will act as a catalyst in that debate.

For more enquiries, please contact:

Dominic McGann
Peter Stokes
Tim Hanmore
Liam  Davis


Thursday, 6 October 2016

Masters of their own destiny - Court upholds arbitration agreement between Woolworths and Lowe's

The recent decision of the Federal Court in WDR Delaware Corporation v Hydrox Holdings Pty Ltd1 affirms the courts’ willingness to uphold arbitration agreements, consistent with Australia’s international convention obligations, judicial recognition of the efficiency of arbitration, and Australia’s reputation as a sophisticated jurisdiction in which to conduct arbitration.

Wednesday, 17 August 2016

Santos Ltd v Fluor Australia Pty Ltd [2016] QSC 129

Case note

In the recent Supreme Court of Queensland decision of Santos Ltd v Fluor Australia Pty Ltd [1], Justice Douglas endorsed the courts’ positive approach to giving effect to alternative dispute resolution (ADR) clauses even where one party seeks a litigated outcome.

In this case, Santos contracted Fluor to perform work on its GLNG Project near Gladstone.  Santos became concerned about the amount claimed by Fluor under the contract, which exceeded the budget estimate by over $1.85 billion. 

Thursday, 8 October 2015

Recognition and enforcement of foreign judgments in Australia - Part 3

Enforcement of the foreign judgment


In our previous posts we examined the two ways to have a foreign judgment recognised in Australia: under the Foreign Judgments Act 1991 (Cth) and under the common law.  Once the foreign judgment is recognised, the next step is to get the money owing under the judgment.

In this post we will explore the steps the judgment creditor may take to enforce the judgment.

Wednesday, 16 September 2015

Recognition and enforcement of foreign judgments in Australia - Part 2

Recognition under the common law


In our previous post, we examined the process for recognising foreign judgments in Australia under the Foreign Judgments Act 1991 (Cth) (Act).  While this is the easiest way to get a foreign judgment registered in Australia, it is only available for certain judgments. 

For judgments that are not registrable under the Act, a judgment creditor must have the judgment recognised under the common law.  In this post, we examine that process and the positions of the judgment creditor (the person enforcing the judgment) and the judgment debtor (the person against whom the judgment is being enforced).

Thursday, 27 August 2015

Recognition and enforcement of foreign judgments in Australia

Registration of foreign judgments


For a plaintiff seeking to enforce a judgment, it is not uncommon for a defendant’s assets to be spread across the globe, creating both opportunities and problems.  The opportunity lies in accessing potential sources of assets to satisfy the judgment.  The problem is that a company or person might have no assets in the plaintiff’s home jurisdiction, requiring the judgment to be enforced overseas.

The steps involved in accessing a defendant’s Australian assets to satisfy the judgment are recognition and enforcement.  We will explore these steps further in a series of upcoming posts.

In this first post we look at one method of recognition: registration of the foreign judgment under the Foreign Judgments Act 1991 (Cth) (Act). 

Monday, 10 August 2015

Impacts of a sluggish court system

Greece is in trouble.  It is being pressured to implement a number of reforms as part of negotiations for various forms of debt relief.

One of those reforms is an overhaul of its courts system, which is viewed as being slow, inefficient, and a handbrake on commerce.  For example, the World Bank reported this year that it took on average over four years to enforce a contract in Greece (compared to an OECD average of 1.5 years).

Does Australia have anything to worry about?

Wednesday, 29 July 2015

Protecting the little guy: unfair contract terms to apply to small businesses

In April 2015, the Federal Government released draft legislation titled the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 (Bill), which if enacted, will extend the consumer unfair standard contract term protections to small businesses. 

The legislation proposes to amend the Australian Securities and Investment Commission Act 2001 (Cth) (ASIC Act), and the Competition and Consumer Act 2010 (Cth) (CCA) and is anticipated to commence in early 2016. 

The current laws under the ASIC Act and CCA only apply to protect consumers (usually individuals) from unfair contract terms, and are said to fail to address the vulnerability of small businesses engaging in commercial transactions.  The Explanatory Material to the Bill states that small businesses are not entering into contracts due to a lack of confidence in understanding and negotiating contract terms and the costs of obtaining legal advice, often resulting in the businesses missing out on opportunities.

Tuesday, 14 July 2015

Sharing the risk: Proportionate liability clarified by the High Court

The High Court recently handed down their much anticipated decision in Selig v Wealthsure1, providing some well needed clarification on the proportionate liability provisions in the Corporations Act 2001 (Cth) (Act), in light of the inconsistent decisions of the Full Federal Court in Wealthsure2 and ABN AMRO v Bathurst City Council3.

The majority decisions, handed down within a week of each other by a differently constituted bench of the Full Federal Court, took opposing views on the application of Division 2A of the Act.  The decision of the High Court in Wealthsure, while settling this inconsistency, is not good news for financial advisors or their ‘deep pocketed’ insurers, who may find themselves targets in lawsuits brought by disgruntled clients.

Friday, 3 July 2015

In-house counsel: a position of privilege?

An important issue for all in-house legal practitioners is maintaining the privilege in legal advice they provide as legal counsel to their employer company.  The extent to which in-house counsel are protected by the doctrine of legal professional privilege has recently been the subject of a great deal of judicial consideration.

The case of Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 raised the requirement of ‘independence’ of in-house counsel in establishing a claim for legal professional privilege.  The case also dealt with the issue of whether legal professional privilege may attach to the advice given by in-house counsel who are not fully accredited Australian legal practitioners.

Thursday, 25 June 2015

Waiving goodbye to privilege

In the second post of our legal professional privilege series, we examine instances when such a privilege may be lost by waiver.  Waiver of legal professional privilege may be express or implied and, as stated by Justice Kirby in Goldberg v Ng (1994) 33 NSWLR 639, ‘It is simple to destroy the privilege’

Broadly speaking, waiver of privilege occurs when the party entitled to claim the privilege performs an act which is inconsistent with the maintenance of such privilege.  It is the client alone who may waive legal professional privilege.  The doctrine of waiver is fairly settled in Australian law however ambiguity can arise when an attempt is made to accurately categorise whether a waiver of legal professional privilege is express or implied. 

Thursday, 4 June 2015

Give me that document! An overview of legal professional privilege

All information that a lawyer receives from a client is considered to be ‘confidential’.  Some of that information is also considered ‘privileged’.  Legal professional privilege is an important area of the law and one that frequently surfaces in practice.  Over the coming weeks, we will take a closer look at the doctrine of legal professional privilege.

Legal professional privilege covers confidential communications between the lawyer and the client made for the dominant purpose of advice or for use in anticipated or existing litigation.  For documents, the privilege only exists in circumstances where they are brought into existence for the dominant purpose of giving advice or for litigation.  For example the privilege does not encompass documents that are used to evidence transactions, but does extend to material gathered by the lawyer or client in preparation for litigation, even if that material does not constitute ‘communication’ in the strict sense.  The only body that has power to inspect documents for which legal professional privilege is claimed is a court, unless legislation expressly and unambiguously provides otherwise.

Friday, 15 May 2015

Social media: a breach of confidence?

Wilson v Ferguson [2015] WASC 15


The Supreme Court of Western Australia has found that individuals in a close relationship may owe one another equitable obligations of confidence, particularly in circumstances where intimate and private information is exchanged in a social media context.  A breach of that obligation may bring about liability for substantial damages awards. 

In Wilson v Ferguson [2015] WASC 15, the Western Australia Supreme Court awarded damages of $50,000 for humiliation, anxiety and stress suffered by the Plaintiff after a jilted ex-lover posted confidential (and explicit) photographs and videos on Facebook.  The Court also made orders restraining the Defendant from publishing further photos and videos.

Wednesday, 6 May 2015

Continuous disclosure and market based causation

The recent case of Grant-Taylor v Babcock & Brown Ltd [2015] FCA 149 ended years of litigation which followed the high-profile collapse of Babcock & Brown (BBL).  The judgment in the class action brought by 72 different plaintiffs offers some useful insight into whether Australia will follow the US in accepting market-based causation in the context of shareholder actions.

Background

The proceeding was commenced by those plaintiffs who purchased shares in BBL during its final year of trading on the ASX.  At the beginning of February 2008 (when the first of the plaintiffs purchased their shares) the trading price was $16.76.   When the shares were last traded on 7 January 2009 the price had dropped to $0.33.  Following a trading halt, BBL was placed into administration and then subsequently liquidation.

Friday, 12 September 2014

Supreme Court of Victoria derails future of entrepreneurial class actions

The number of shareholder class actions in Australia continues to grow at an impressive rate.  However, a recent decision of the Supreme Court of Victoria has examined the limits of entrepreneurship by securities class action lawyers, and has reiterated concerns foreshadowed by the High Court regarding the funding of legal actions by lawyers.

Background

In Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No. 3) [2014] VSC 340, the lead plaintiff, Melbourne City Investments Pty Ltd (MCI) was controlled by solicitor, Mark Elliott, the company’s sole director and shareholder.  In 2013, MCI commenced separate securities class action proceedings against Treasury Wine Estates Limited (Treasury), WorleyParsons Limited (WorleyParsons) and Leighton Holdings Limited (Leighton), alleging misleading and deceptive conduct, and a failure by each company to satisfy its continuous disclosure obligations, contrary to various provisions of the Corporations Act 2001 (Cth).

Wednesday, 3 September 2014

Heads of Agreement – when are they binding?

A recent judgment in New South Wales has clarified that a Heads of Agreement is generally considered binding if, at the time of entering into the agreement, the parties intended to be immediately bound by it.  This holds true even if the parties intended, and the Heads of Agreement between the parties records, that additional matters are to be agreed and a formal contract executed at a later time.  Further, any dispute about the subject matter of a Heads of Agreement will not affect the binding nature of that agreement.

The case highlights that parties contracting on a preliminary basis should take great care when considering the use of a Heads of Agreement.

Wednesday, 20 August 2014

Protecting your business from damaging blog posts

The Federal Court of Australia has handed down a valuable decision for business owners concerned their business reputation is being damaged by a competitor’s misleading online blog posts.

The decision of Nextra Australia Pty Limited v Fletcher [2014] FCA 399 establishes that, in certain circumstances, the posting of a misleading online blog article regarding a business competitor can amount to conduct which is prohibited under the Australian Consumer Law. With recent reports indicating there are now more than 150 million blogs in existence, the decision is a timely reminder for those operating a blog for commercial reasons.