The Federal Court recently declined an application for leave to issue subpoenas pursuant to Section 23 of the International Arbitration Act 1974 on the basis that Section 23 of the act did not give the court jurisdiction to do so in aid of an arbitration seated outside Australia. While some practitioners will agree with the court's strict interpretation of the act, others – particularly those engaged in international arbitration in Asia-Pacific – may find the decision less satisfactory.
In a recent case, the Federal Court stayed the proceedings brought before it and referred the dispute to arbitration, save for the ultimate question of whether a winding-up order against the first defendant should be made. Among other things, the decision illustrates the policy of minimal curial intervention that the Australian courts follow where arbitration is concerned. It also confirms the arbitrability of certain claims under the Corporations Act 2001.
In the last few years three subject matters have been lurking on the fringes of patentability: methods of treatment, genes and software. The High Court recently considered methods of treatment (which are generally patentable) and isolated naturally occurring genes (which are not). Now the High Court may have the opportunity to consider the extent to which software is properly the subject of patent protection.
The High Court recently held that an AstraZeneca patent was invalid because it was obvious and therefore lacked the requisite inventive step within the Patents Act. While the court's interpretation of the act was straightforward, it provides useful guidance on obviousness – in particular, that where multiple pieces of information are available and relevant, each must be considered independently alongside the common general knowledge.
The High Court is in the process of hearing an appeal from the Full Federal Court concerning the patentability of isolated genetic materials – in particular, three patent claims for BRCA1, which help to identify women with an increased risk of developing breast and ovarian cancer. If the High Court upholds the inferior courts' judgments, there will be an anomalous position between Australia and the United States regarding the patentability of genetic material.
The process for exporting organic produce into China has been made much easier following the March 2014 signing of the Australia-China Organic Trade Access Agreement. The agreement is predicted to boost Australia's organic and biodynamic industry by up to A$100 million per year, significantly improve the organic export process and help Australian food producers to meet demand for these premium products.
Following years of passionate public debate and some recent controversy, the Australian and New Zealand food regulation ministers have agreed to the formal implementation of the front-of-pack health star rating (HSR) system. The decision arose out of a legislative and governance forum on food regulation. While a decision to proceed with the HSR system roll-out has been agreed, changes have been made to the original plans.
In the battle over consumer spending, product differentiation through labelling and marketing can make a significant difference in sales. However, food labelling and marketing is a minefield of regulation. Therefore, food businesses must take care when making food claims to ensure that they meet any prescriptive compositional and disclosure requirements, are accurate and can be substantiated if ever challenged.
The Australian Competition and Consumer Commission (ACCC) recently commenced proceedings against Reebok for representations made in relation to its EasyTone shoes, alleging false, misleading or deceptive representations. Among other things, the ACCC is seeking non-party consumer redress (refunds for consumers who purchased the shoes).
A recent High Court decision confirms the proper method for formulating damages for breach of contract: how to determine how much is to be paid by the party in breach of its obligations. The decision acts as a reminder that parties should return to basic principles of common law when assessing damages and stick to those principles even when they lead to unexpected results.
The Victoria Supreme Court recently restrained a plaintiff in a group proceeding from reliance on a document in its statement of claim that contained "highly sensitive legal advice" and was confidential to Leighton Holdings. The decision demonstrates the importance given to confidential information in circumstances where there is actual or threatened use of such information.
The Federal Court recently handed down its judgment in proceedings involving fake testimonials and false and misleading comments about the country of origin of solar panels supplied by Euro Solar and Australian Solar Panel. The court ordered Euro Solar and Australian Solar Panel to pay combined penalties of A$125,000 and their sole director to pay a penalty of A$20,000 for his involvement in the conduct.
The Australian Competition and Consumer Commission has commenced proceedings in the Federal Court against PZ Cussons Australia Pty Ltd and Colgate Palmolive Pty Ltd, alleging that they had made and gave effect to a cartel and engaged in anti-competitive conduct relating to their ultra-concentrate products. Unilever Australia Limited was also alleged to be a participant, but it has applied for immunity.
It is common for liquidators to work with a few firms or individuals, and for referrals to be predominantly distributed among those parties. The Federal Court recently considered when that relationship might amount to a conflict. The case serves as a reminder to all insolvency practitioners to ensure that all relevant relationships are properly disclosed upon consenting to being appointed as administrator or liquidator to a company.
Insolvency practitioners are increasingly aware of the potential for incurring personal liability under civil penalty provisions for contraventions of the Fair Work Act and how they can protect themselves from claims when accepting appointments. The Federal Court of Australia recently issued its decision considering the liability of company directors and receivers for unpaid employee entitlements in one such case.
The New South Wales Supreme Court recently held that a forced sale of shares to a consortium of existing shareholders under a drag-along clause in a shareholders' agreement amounted to a breach of the agreement. The court awarded damages in favour of the ousted shareholders. The decision highlights the importance of giving careful consideration to pre-emptive rights and exit mechanisms in such an agreement.
The Australian Competition and Consumer Commission (ACCC) has sought to intervene in the appeal relating to Norcast v Bradken. While it is clear that the ACCC is seeking to make submissions on the interpretation of the new cartel laws (which extend cartel provisions under the Competition and Consumer Act to conduct outside of a formal market), it is not entirely clear why it should intervene in this particular matter.
The court recently found in favour of the defendant state tortfeasors in an ongoing class action involving infected abalone (edible sea snails). The judge concluded that the plaintiff had failed to establish that the state tortfeasors owed the plaintiff a duty to take reasonable care to protect the plaintiff from economic losses caused by an escape of the virus and the disease from an abalone farm.
The Queensland Supreme Court recently found that the Building and Construction Industry Payments Act (Qld) did not apply to a claim arising from a contract for the dismantling of plant on land that was the subject of a mining lease. The decision was based not on the mining exclusion within the act, but on the act's definition of 'construction work'.
The Australian High Court recently considered the right to silence and the privilege against self-incrimination. A number of Australian statutes have sought, in certain circumstances, to remove individuals' right to silence by conferring on courts and investigative bodies the power to compel individuals to answer questions about whether they have engaged in criminal conduct.