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.

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.

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.

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. 

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.

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.

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.