Publications

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Recent developments in dealing with your digital estate after incapacity or death

‘Digital Estate’: We live in a digital age. We access, store, transfer and receive information and valuable documents electronically. During our life our attorneys, and after our death the Executors of our will, need to consider and access our ‘digital assets’ in the course of administering our affairs or a deceased estate respectively. In this … Read more


Jumping the gun – ACCC sues for implementing a merger too soon

The Australian Competition and Consumer Commission (ACCC) has instituted proceedings against Cryosite Limited (Cryosite) for alleged cartel conduct in relation to an asset sale agreement with competitor Cell Care Australia Pty Ltd (Cell Care).1 Prior to entering the agreement, Cryosite and Cell Care were the only private suppliers of storage services for umbilical cord blood … Read more


ACCC successfully enforces the B2B Unfair Contract Terms law against office services provider, Servcorp

In April of this year, the authors of this article published an article discussing how automatic renewal clauses are increasingly vulnerable under the Australian Consumer Law and the recent actions the ACCC had taken against businesses which had automatic renewal clauses in their standard form contracts. To recap, an automatic renewal clause provides for a … Read more


The scope of an employer’s duty of care: the privacy tightrope

The District Court of NSW has denied a claim by a former Police Officer seeking work injury damages for psychological injury arising from her exposure to traumatic incidents over the course of her service with the NSW Police Force (NSWPF). In determining that NSWPF had not breached its duty of care to the plaintiff, the … Read more


Limitations of liability clauses trumped by the Australian Consumer Law

The recent Victorian case of Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246 (Brighton Decision) has cast further doubt on the definitive answer to an important legal question: Do limitations of liability clauses apply to claims made under section 18 of the Australian Consumer Law (ACL)? In other words, can a … Read more


Hello ipso facto…Are you prepared for the new ipso facto regime?

The ipso facto regime came into effect on 1 July 2018. However many franchisors are yet to consider how it may impact on their systems and what steps they should be taking to mitigate potential risks. What is the ipso facto regime? The “ipso facto regime” is the name used to describe a number of … Read more


IP legislation amendments one step closer

Following on from our April alert regarding the introduction of the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018 (Cth) (Bill), the Bill passed the House of Representatives on 27 June 2018. It is presently before the Senate, with a second reading moved. The Bill proposes changes to the following intellectual … Read more


ASX restricts publication of broker and analyst research reports

ASX has recently updated its Guidance Note 8 Continuous Disclosure: Listing Rules 3.1 – 3.1B in relation to the publication of broker and analyst research reports. ASX reports that it has recently experienced a number of issues with listed entities commissioning and publicising broker and analyst research reports which include objectionable material that the entity … Read more


ASIC consults on credit card responsible lending assessments

ASIC has today issued Consultation Paper: Responsible Lending Assessments (CP 303) which proposes for a 3 year period to be used for assessing whether a credit card contract or credit limit increase is unsuitable for responsible lending purposes. Under the recent reforms to the responsible lending obligations for credit card contracts (Treasury Laws Amendment (Banking … Read more


Cheese, butter and potatoes are on the menu as the ACCC focuses on unfair contract terms in the agriculture industry

The transition to the new financial year has been accompanied by a flurry of activity by the ACCC regarding unfair contract terms in the agriculture industry. On 26 June 2018, the ACCC announced that it had instituted proceedings against the largest potato wholesaler in Australia, Mitolo Group Pty Ltd and a related entity (Mitolo) claiming, … Read more


Objectors given more time – changes to planning regulations

Recent changes to the Planning and Environment Regulations have extended the time for objectors to apply for a review of a decision of a responsible authority under section 82 of the Planning and Environment Act 1987. Under the new regulations, objectors now have 28 days to apply for review. This is an increase from the … Read more


ACCC to begin enforcing new food labelling requirements

In July last year, we wrote about the new Country of Origin Food Labelling Information Standard 2016 (Standard) that has from 1 July 2018 replaced former requirements under the Australia New Zealand Food Standards Code. Under the new Standard, many foods are now required to feature new labels that are designed to convey more information about the product’s origin, in … Read more


WAPC policy on renewable energy released

One of the major obstacles facing renewable energy projects in Australia is the length of time it takes to obtain planning approval. Delays in the approvals process add to the cost of a project and impact investment decisions1. The WA Planning Commission (WAPC) has published a draft position statement (policy) to provide guidance to local councils … Read more


Automotive Industry Group Regulatory Update – June 2018

Welcome to the June 2018 HWL Ebsworth Automotive Industry Group Regulatory Update. HWL Ebsworth seeks to keep you updated with the changing automotive industry environment across new legislation, developing policy and pertinent case law developments. This Update provides essential information for those wanting to stay abreast of the challenges and issues facing the automotive industry. Should … Read more


Are you taking “reasonable steps” in the right direction in your franchise network to ensure workplace compliance?

Last week the Fair Work Ombudsman released its “Guide to promoting workplace compliance in your franchise network” (the Guide). The new resource was launched as part of the Fair Work Ombudsman Natalie James’s speech to the Franchise Advisory Centre’s Franchise Management forum, which was held on 13 June 2018 in Brisbane. During her speech Ms James … Read more


VCAT update: call in powers of the Minister for Planning – what constitutes a ‘hearing’

Hudson Yards Pty Ltd v Minister for Planning [2018] VSC 277 The Supreme Court of Victoria recently considered whether the power of the Minister for Planning to call in a proceeding before the Tribunal was valid. In determining the power was valid, the Court held that a compulsory conference (mediation) was a ‘preliminary hearing’, consequently … Read more


HWL Ebsworth advises Hunters Hill Council on successful prosecution and penalty of $45,000 for tree lopping

HWL Ebsworth has advised Hunters Hill Council on a successful criminal prosecution in relation to the lopping of 13 trees. The prosecution was led by Phil Brown and the work involved leading the investigation, settling evidence, preparation of the criminal summons and conducting the advocacy at the sentencing hearing in the Land and Environment Court. … Read more


ASX updates its guidance on continuous disclosure

ASX recently released updates to several of its Guidance Notes, including ASX Guidance Note 8 Continuous Disclosure: Listing Rules 3.1 – 3.1B (ASX Guidance Note 8). ASX Guidance Note 8 was published by ASX to assist listed entities to understand and comply with their continuous disclosure obligations under ASX Listing Rules 3.1, 3.1A and 3.1B. … Read more


Law surrounding the tender process

Private enterprise and government agencies will often procure goods and services through the Tender Process. It is therefore important for those involved in the strategic and operational management of public and private sector organisations throughout Australia, as well as individuals and entities who provide of products and services to understand the law regulating the Tender … Read more


State Taxes Update – VIC, SA, ACT, WA

There have been a number of legislative amendments made or soon coming into effect in Victoria, South Australia, ACT and Western Australia as result of recent budget announcements. Victoria As part of a package of state taxation amendments, the Commissioner will include a new definition of “partnership interest” in the Duties Act so that a … Read more


QLD Budget 2018 – State Tax Changes

The Queensland State Budget was released on 12 June 2018. There are a number of significant changes taking effect from 1 July 2018. If you have contracts for foreign buyers, you should ensure they are signed by 30 June as the AFAD is being increased from 3% to 7% from 1 July. The new AFAD … Read more


Aviation bulletin – June 2018

Welcome to the latest edition of the HWL Ebsworth Aviation Bulletin. We are delighted to bring you content addressing a range of current and emerging issues, trends and cases across the domestic and international aviation industries. We trust you will find this edition of our Aviation Bulletin helpful and informative. Should you wish to discuss any … Read more


Weatherill v Bartett [2017] NSWCA 175 – Damages under Australian Consumer Law not established

The New South Wales Court of Appeal recently refused leave to appeal a lower court decision denying Dr Colin Weatherill damages under Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth))(‘the ACL‘) for misleading and deceptive conduct, after he acted on an estimate of value of transporting an aircraft purchased in … Read more


Wahba v Carroll & O’Dea Lawyers: The damages regime in airline cases – Federal or State?

The recent decision in Wahba v Carroll & O’Dea Lawyers [2018] NSWDC 128 (“Wahba“) has followed the judgment in Arefin v Thai Airways International Public Company Limited (District Court of New South Wales, 21 August 2007, unreported) (“Arefin“) without clarifying the constitutional tension between the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (the “CACL Act“) … Read more


Third country carriers and compensation under EC261

On 15 March 2018, the UK Supreme Court refused Emirates leave to appeal the UK Court of Appeal’s decision in the joint cases of Gahan -v- Emirates and Buckley and Ors -v- Emirates [2017] EWCA Civ 1530 (“Gahan“). The UK Court of Appeal had upheld a previous decision made by the Liverpool County Court. In … Read more


Hevilift Limited v Towers [2018] QCA 89 – “Don’t Push it, Land it” – Employer liable to pilot for a failure to warn of a weather phenomenon

The Queensland Court of Appeal has dismissed an employer’s appeal and held that the employer was liable to its pilot employee for a helicopter crash in the highlands of Papua New Guinea (PNG), because of a failure to warn the pilot of a foreseeable risk of rapid cloud formation. The Incident Mr Towers was the … Read more


South West Helicopters Pty Ltd v Stephenson[2017] NSWCA 312 – The right of non-passengers to bring a nervous shock claim against a carrier is off to the High Court for determination

In December 2017, the NSW Court of Appeal held that non-passenger claims for nervous shock arising from the death of a passenger, cannot be maintained against a carrier due to the exclusive liability provided under the Civil Aviation (Carrier’s Liability) Act 1959 (Cth) (the “CACL Act“). However the High Court has granted leave to hear … Read more


Review of aviation & safety regulation of remotely piloted aircraft systems May 2018 CASA paper

CASA releases its review of aviation and safety regulation of remotely piloted aircraft Current industry estimates put the number of Remotely Piloted Aircraft (RPA) in Australia at around 150,000. In response to the regulatory challenges presented by this burgeoning sector of aviation in Australia, on 11 May 2018 the Australian Civil Aviation Safety Authority (CASA) … Read more


“Consumers should be free to have their say” – the ACCC continues to target non-disparagement clauses in standard form, consumer contracts

On 6 June 2018, the Australian Competition and Consumer Commission (ACCC) announced that it had accepted a court enforceable undertaking (undertaking) from home builder Wisdom Properties Group Pty Ltd (Wisdom) in connection with the non-disparagement clauses included in its standard form home building agreement (Agreement). The non-disparagement clauses had been in Wisdom’s Agreement since at … Read more


Tax Insight – Superannuation Amnesty

On 24 May, the Government announced a Superannuation Guarantee Charge amnesty (Amnesty) to encourage employers to voluntarily disclose non-payment of their employees’ compulsory superannuation contributions (Contributions). The Amnesty commenced on 24 May 2018 and will be available until 23 May 2019. I’m an employer and have missed payments of my employees’ Contributions. How am I currently … Read more


Draft Coorparoo and Districts Neighbourhood Plan released for public comment

In brief In April 2018, the Queensland Government completed a review of the Coorparoo and Districts Draft Neighbourhood Plan (Neighbourhood Plan). The Neighbourhood Plan has been in development by Brisbane City Council (Council) in consultation with residents since October 2015 to amend the Brisbane City Plan 2014 (City Plan). The Logan Road transport corridor forms the centre … Read more


SA to get new minimum expiry date for gift cards

Summary As we discussed in an alert earlier this year, the New South Wales Government introduced new laws on 31 March 2018 to provide greater consumer protections to users of gift cards. The rules provide for a three-year minimum term on gift cards, and prohibit any charges or fees applied after the sale of a gift … Read more


General Data Protection Regulation privacy changes

EU General Data Protection Regulation (GDPR) As per our previous publication, dated 22 January 2018, the European Union GDPR will be in effect from 25 May 2018, and will replace existing data protection rules set out in the 1995 European Directive 95/46/EC. While the GDPR will be law in the European Union (EU), it is … Read more


Common questions concerning GST withholding law

The new GST withholding law commences on 1 July 2018. We are fielding a number of commonly asked questions concerning the operation and application of the new law. Here are some commonly asked client questions and our responses. If you need any assistance, please do not hesitate to contact us. 1. When does the GST … Read more


Tax Insight: Tax compliance certificates and government tenders

Treasurer Scott Morrison recently released the 2018-19 Federal Budget (Budget).  One key Budget measure and recommendation of the Government’s Black Economy Taskforce (Taskforce) will significantly affect businesses tendering for government contracts. The Australian Treasury is currently consulting on this proposed measure with submissions due by 15 June 2018. From 1 July 2019, it has been … Read more


Broad reach of cartel prohibitions confirmed in record-setting case

The Full Federal Court has imposed a record penalty for cartel conduct of $46 million in a case that also confirmed that a broad interpretation is to be given to the cartel prohibitions. The case involved an appeal from an earlier decision in which the ACCC succeeding in proving that Yazaki, a Japanese company that … Read more


ASX Corporate Governance Principles 4th Edition Consultation Paper Released

The ASX Corporate Governance Council (Council) has released its consultation paper for the fourth edition of the ASX Corporate Governance Principles and Recommendations (CG Principles) proposing a range of changes relevant to listed entities’ governance structures and reporting requirements. Whilst the Council acknowledges that Australian corporate governance operates at a high level in comparison to international standards, … Read more


‘Loot boxes’: a new form of gambling?

Microtransactions (payments of real money within a game for items, benefits, downloadable content, etc) first gained popularity as a method of monetising so-called ‘freemium’ mobile app games. They have now become a feature of triple-A games, including Overwatch, Star Wars: Battlefront II (however temporarily), FIFA 2017 and Call of Duty: WWII and account for billions in … Read more


Insurance bulletin – May 2018

Welcome to the latest edition of the HWL Ebsworth Insurance Review. We are delighted to bring you content addressing a range of current and emerging insurance issues, trends and cases from across our offices nationally, across various lines of business. We trust you will find this edition of our Insurance Review helpful and informative. Should you … Read more


Casualty update – obvious risk, dangerous recreational activity & waivers

An “obvious risk” is a risk that would be obvious to a reasonable person in the position of the person who suffers harm. The determination of obvious involves a ‘forward looking enquiry’ as to whether the risk that eventuated would have been obvious to the hypothetical reasonable person. This means that both the factual scenario facing … Read more


Contractual liability exclusions – why insurers and insureds need to be mindful

Most liability policies contain some form of contractual liability exclusion. This commonly in terms that the insurer will not be liable of any loss assumed by the insured under a contract or agreement, save to the extent such liability would have attached to the insured in the absence of such contract or agreement (under the … Read more


Some recent professional indemnity decisions

The first quarter of 2018 has seen some important decisions come out of the highest courts of our land relating to professional indemnity insurance. We highlight the following three cases for you, involving a certifier, a building inspector and an engineer respectively. We trust they are of interest to our readers working in the PI space. High … Read more


Insurers not faring well under new legislation enabling insurers to be joined

The Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (the Act) took effect on 1 June 2017. Since then, two court judgments have been handed down that were adverse to the insurers’ positions1. A third decision in February 2018 however demonstrates that applications will not be granted willy-nilly. As further applications for the joinder … Read more


Update re whistle – blower regime

In our “Regulatory spring clean” article of the December 2017 Edition (available here), we reported the draft whistleblower legislation, being the Treasury Laws Amendment (Whistleblowers) Bill 2017 released on 23 October 2017, was to go before an expert advisory panel to consider the recommendations from the Federal Parliamentary Joint Committee on Corporations and Financial Services … Read more


Use of clean fill on development sites not subject to levy

The WA State government passed legislation on 28 April 2018 that permits clean fill (and other fill material meeting certain thresholds) to be used on development and construction sites without payment of levy under the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (Levy Regulations). These changes will help resolve the legal uncertainty for developers and … Read more


Tax Insight: 2018-19 Federal Budget

Last night, Treasurer Scott Morrison released the 2018-2019 Federal Budget (Budget). In his speech, the Treasurer outlined five key principles which have shaped the development of this Budget: Provide tax relief to encourage and reward working Australians; Back business to invest and create more jobs; Guarantee essential services for all Australians; Keep Australians safe; and … Read more


ACMA bans bookies ads in broadcasts of live sport

Last year, the Turnbull Government announced that it was moving to restrict the promotion of gambling and betting to curb problem gambling and make sport more family friendly. This led to amending the Broadcasting Services Act (Act) and new broadcasting codes of conduct registered with the Australian Communications Media Authority (ACMA). There are also draft rules … Read more


ACCC Recommends Mandatory Data Sharing for Automotive Industry

ACCC Chairman Rod Sims declared last Friday, 4 May 2018 at an automotive industry event that voluntary data sharing arrangements between motor vehicle manufacturers and the aftermarket sector have failed. At the event, run by aftermarket industry group the Australian Automotive Aftermarket Association (AAAA), Mr Sims stated that the ACCC’s recent new car retailing industry … Read more


Consultation on draft rules for gambling ads in online live sport

Last year, the Turnbull Government announced that it was moving to restrict promotional content of gambling and betting in order to curb problem gambling and make sport more family friendly. This led to amendments to the Broadcasting Services Act (the Act), as well as a series of new broadcasting codes of conduct (Codes) registered with the … Read more