Latest updates

No requirement to provide evidence or documents in foreign-seated arbitration
Clifford Chance LLP
  • Arbitration & ADR
  • Australia
  • November 09 2017

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.

Nothing to get wound up about: Federal Court refers Masters case to arbitration
Clifford Chance LLP
  • Arbitration & ADR
  • Australia
  • October 12 2017

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.

Let's get physical? Software patentability in Australia
  • Intellectual Property
  • Australia
  • March 28 2016

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.

Stating the obvious: textual approach to obviousness
  • Healthcare & Life Sciences
  • Australia
  • September 23 2015

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.

Gene patents in Australian context
  • Healthcare & Life Sciences
  • Australia
  • July 15 2015

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.

Organic exports to China – breaking down barriers
  • Product Regulation & Liability
  • Australia
  • March 26 2015

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.

Ministers agree to implement front-of-pack star rating system
  • Product Regulation & Liability
  • Australia
  • October 16 2014

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.

Health, nutrition and credence claims – food marketing and labelling
  • Product Regulation & Liability
  • Australia
  • June 19 2014

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.

ACCC initiates court proceedings in attempt to tone down Reebok's claim
  • Litigation
  • Australia
  • May 06 2014

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).

High Court grants doctor relief despite successful self-help sperm acquisition
  • Litigation
  • Australia
  • April 22 2014

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.

Misuse of confidential information: group therapy gone wrong?
  • Litigation
  • Australia
  • April 15 2014

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.

Court joins ACCC in taking action on fake testimonials
  • Litigation
  • Australia
  • April 08 2014

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.

Unilever hangs Colgate and Cussons out to dry in Federal Court proceedings
  • Litigation
  • Australia
  • April 01 2014

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.

Referral relationships with liquidator – when is this a conflict?
  • Litigation
  • Australia
  • March 25 2014

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.

Phoenix rising: lessons for insolvency practitioners and directors
  • Litigation
  • Australia
  • February 04 2014

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.

Exercise caution when dragging along shareholders
  • Litigation
  • Australia
  • January 28 2014

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.

Helping hand? ACCC seeks to intervene in competition case
  • Litigation
  • Australia
  • January 21 2014

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.

Victoria in state of victory: court dismisses abalone court action
  • Environment & Climate Change
  • Australia
  • January 20 2014

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.

Looking for common ground: court considers definition of 'construction work'
  • Litigation
  • Australia
  • January 14 2014

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'.

Right to silence: court considers privilege against self-incrimination
  • Litigation
  • Australia
  • January 07 2014

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.