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Our legal experts will keep you up to date on all relevant and current developments.

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Sep 25, 2018 8:43:59 AM / by Tal Williams posted in Business Corporate & Commercial Technology Law

Many damaging cyber incidents occur as a result of employees, or ex-employees seeking unauthorised access to data and systems.  Indeed, more than a third of cyber breach incidents reported to the Office of the Australian Information Commission in the second quarter of 2018 arose as a result of compromised or stolen credentials and consequent unauthorised access.


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Sep 20, 2018 2:13:20 PM / by Tal Williams posted in Business Corporate & Commercial Technology Law

There is a well-known cartoon drawn by John Klossner that depicts a boxing ring. In one corner, ready for the fight, is data security, with firewalls, encryption, antivirus software etc. and in the other corner is your employee – Dave – wearing a t-shirt saying “human error”.


Health Law Alert pic
Sep 18, 2018 3:26:15 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Welcome to the September 2018 edition of the Health Law Alert with a timely article on "The Royal Commission into Aged Care - What it means to Approved Providers, their Boards and Management".


Exec of Yr Finalists 2018-1
Sep 13, 2018 1:02:14 PM / by Holman Webb posted in Holman Webb News

Congratulations to our CFO, Magdalena Kosior-Molloy and CMO, Adriana Giometti who have been selected as finalists in the CEO Magazine 2018 Executive of the Year Awards in their respective categories.


Can you believe it’s the middle of August?!


Aug 3, 2018 4:04:48 PM / by Rachael Sutton posted in Workplace Relations

The model Family and Domestic Violence (FDV) Leave terms are incorporated into all Modern Awards as of 1 August 2018.


When it comes to mitigating cyber security incidents, there is no single step that organisations can take that will guarantee the safety of their data or system performance. The Australian Cyber Security Centre has recommended eight mitigation strategies that organisation should implement as a baseline defence against targeted cyber intrusions, ransomware and malicious insiders. These strategies are known as the ‘Essential Eight’.


Congratulations to Holman Webb’s Workplace Relations team for their nomination as finalists for Workplace Relations and Employment Team of the Year in the Lawyers Weekly Australian Law Awards 2018


We are delighted to announce two promotions in our Brisbane office, effective from 1 July 2018:


Holman Webb is delighted to announce 8 internal promotions, effective 1 July 2018.   These promotions span our corporate and commercial, insurance, and workplace relations practices.


Jun 22, 2018 8:40:17 AM / by Zara Officer posted in Health, Aged Care & Life Sciences Insurance

Published in Health Law Bulletin June 2018 edition.


Published in the Health Law Bulletin June 2018 edition.


Published in the Health Law Bulletin June 2018 edition.


Jun 22, 2018 8:35:47 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Published in the Health Law Bulletin June 2018 edition.


First published in Governance Directions, the official journal of Governance Institute and updated for the Health Law Bulletin June 2018 edition.


Published in the Holman Webb Health Law Bulletin, June 2018 edition.


Jun 22, 2018 8:29:55 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Published in the Holman Webb Health Law Bulletin, June 2018 edition.

Read full article

 


Published in the Holman Webb Health Law Bulletin, June 2018 edition.

Read full article.


Published in the Holman Webb Health Law Bulletin, June 2018 edition.


Published in the Health Law Bulletin June 2018 edition.


Jun 20, 2018 12:11:53 PM / by Rachael Sutton posted in Workplace Relations

Queensland and South Australia have recently introduced laws requiring labour hire firms operating in those States to obtain a license .  Victoria's laws passed the lower house in February 2018 however are yet to pass the Upper House in that State.

Below is a current summary of the laws in each State:


Welcome to the June 2018 edition of the Holman Webb Health Law Bulletin. 

This Health Law Bulletin discusses issues such as:

  • Corporate and Clinical Governance for the health and aged care sectors;
  • Aged care quality reforms;
  • Exclusion zones for reproductive health facilities;
  • Recent cases such as Sparks v Hobson, Gray v Hobson [2018] NSWCA 29; and
  • Updates to the National police check application process.

Please click here to read the June 2018 edition.


On the 25th May 2018 the EU introduced a unified regulation to deal with the protection of data. This regulation is known as the General Data Protection Regulation (“GDPR”).


Holman Webb is proud to announce that John Wakefield was awarded Australian Arbitrator of the Year in the Australasian Law Awards 2018.


Despite concerns raised by liquidators and experts locally and abroad, the Federal court has confirmed its view that a set-off under section 553C of the Corporations Act can be utilised in an unfair preference claim. 


Apr 20, 2018 4:08:17 PM / by Holman Webb posted in Franchising & Retail

Congratulations to Partner, Corinne Attard, who has once again been selected by Who’s Who Legal: Franchising as one of the pre-eminent leading franchise lawyers in Australia.   


The Fair Work Commission (FWC) has handed down a number of recent decisions which may provide increased access to unfair dismissal claims by employees engaged on a casual basis, particularly those employees engaged in the labour hire industry.


Apr 19, 2018 3:32:54 PM / by Robin Young posted in Health, Aged Care & Life Sciences

The Full Bench of the Fair Work Commission (FWC) ruled in January 2017 that the abandonment of employment clauses in six modern awards are not terms which are permitted or required to be included in modern awards under the Fair Work Act 2009 (Cth) (Act) and must be removed.


Apr 19, 2018 3:32:32 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

The Federal Court handed down a decision in Regis Aged Care Pty Limited v Secretary, Department of Health [2018] on 2 March 2018, confirming that the Aged Care Act 1997 (Cth) (Act) disallows approved providers from levying an “Asset Replacement Charge” on aged care residents.


Mandatory data breach notification under the Privacy Act 1988 (Cth), applies to the Commonwealth public sector and the private sector including organisations which hold health information and provide a health service (which is broadly defined). The mandatory breach notification requirements commenced on 22 February 2018.


Apr 19, 2018 3:31:32 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

The Australian Government announced on 13 October 2017 a wide ranging package of reforms to make private health insurance simpler and more affordable for Australians.


On 22 November 2017, the Victorian Government became the first State in Australia to pass voluntary assisted dying legislation which is due to commence in 2019.


On 12 February 2018, the NSW Government released the report of former NSW Supreme Court Judge Patricia Bergin, SC  into the fundraising activities of RSL NSW, RSL Welfare and Benevolent Institution and RSL LifeCare.


The NSW Court of Appeal has recently had occasion to apply the Stealth Enterprises v Calliden decision. 


We are pleased to announce our sector focussed leading lawyers have been recognised in the 2019 Best Lawyers in Australia list as published in the Australian Financial Review.


This Health Law Alert discusses issues such as:


Holman Webb is delighted to announce that the firm has been named as finalists in the Australasian Law Awards 2018 in the following categories:


A little proof-reading goes a long way


The fairly dramatic facts surrounding the termination of a ‘Couriers Please’ franchise in a Victorian case last year shows the operational challenges of managing franchisees[1]. It also illustrated one of the lesser used grounds of immediate termination of a franchise – on the basis that the franchisee is operating the franchised business in a way that endangers public health and safety (Clause 29(1)(f) Franchising Code of Conduct).


Every business needs to have an online presence. Many use a variety of different platforms to promote themselves in new and innovative ways.


If you’re thinking of emulating Jamie Oliver and serving up your food ‘on a board’ you may want to think again!


The cryptocurrency revolution is well under way. The new form of currency has begun to revolutionise financial transactions in ways that society is still starting to grasp. While still being a volatile currency, its value rose from US$1,000 at the beginning of the year to nearly US$16,000 per coin as of December 2017. More and more people are getting on board with this new cryptocurrency and, as recently as November 2017, several Australian home owners have even begun accepting Bitcoin payment for their property. There appears to be no limits to the use and growth of cryptocurrency. But cryptocurrencies still remain outside the scope of the regulated financial system. That is, until now – sort of.


This article was first published in the November 2017 issue of Governance Directions, the official journal of Governance Institute.


Tips for lawyers
  1. Be tech savvy; know what kind of block will be most effective.
  2. Cover all bases; the primary purpose test and the discretionary matters in subsection (5) mean you need evidence about the website, its owner and its functions.
  3. Investigate; no matter how hidden they are, you need to at least make reasonable efforts to determine the website operator’s identity and notify them of the proceedings.
  4. Co-operate with the ISPs; this is a no fault provision- therefore, the proceedings don’t have to be adversarial. The more issues that can be agreed, the easier the application will be.
  5. Think past the orders; have a mechanism in mind for expanding/modifying the initial orders to cover domain shifting etc.

Online copyright infringement has been a problem for content owners since the inception of the internet. The unauthorised downloading (and uploading) of copyright material is especially prevalent in Australia, where a 2015 survey estimated that Australians download movies, songs and television programs in the hundreds of millions each year.1 While content owners have been criticised by some for not making content available in Australia (or making it available at a comparatively inflated price), the unauthorised downloading of copyright material is a clear infringement of content owners’ rights.  


Oct 30, 2017 3:25:50 PM / by Holman Webb posted in

Congratulations to John Chouris, Special Counsel, for being recognised as one of three Leading lawyers in the 2017 Doyles Guide – Leading Dust Diseases Lawyers (Defendant) – South Australia and Caroline Knight, Partner, for being named as a Recommended practitioner in the same category.  Congratulations to Caroline for also being listed as a Recommended lawyer in the 2017 Doyles Guide - Medical Negligence & Malpractice Lawyers (Defendant) – South Australia.


Oct 19, 2017 3:47:50 PM / by Holman Webb posted in

Congratulations to Mark Victorsen for being recognised as the Market Leader in the 2017 Doyles Guide – Leading Dust Diseases Lawyers (Defendant) – Queensland and Matthew Baker for being named one of two leading practitioners in the same category.


On 15 September 2017 the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 took effect. It makes important changes to the Fair Work Act 2009. These changes potentially affect all businesses but in particular those in franchising or licensing or distribution.


On 7 August 2017, the Office of the Australian Information Commissioner (OAIC) released the following investigation reports into the major data breach that occurred on 5 September 2016 through the Australian Red Cross Blood Service’s (Blood Service) website:


Sponsors of therapeutic goods must ensure that they advertise their products in accordance with the indications accepted in relation to inclusion on the Australian Register of Therapeutic Goods (ARTG).


Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; Reckitt Benckiser (Australia) Pty Limited v Australian Competition and Consumer Commission [2017] HCASL 86

In the September 2016 edition of our Health Law Bulletin we reported on Australian Competition and Consumer Commission’s (ACCC) proceedings against Reckitt Benckiser (Australia) Pty Ltd (RB) and the judgment arising from the first substantive hearing. Since that judgment, there has been an appeal to the Full Federal Court and finally in April 2017, the dismissal of an application for special leave to appeal to the High Court of Australia by RB.


Facts

Ms Tinnock initially underwent surgery for repair of an incisional hernia on 7 June 2010, under the care of Dr Justin Gundara, surgical registrar. The surgery was supervised by Dr Michael Payne, specialist general surgeon.


Sep 14, 2017 3:49:34 PM / by Zara Officer posted in Health, Aged Care & Life Sciences Insurance

A recent Court of Appeal decision in a defamation claim has considered the defence of absolute privilege under section 27(2)(d) and Schedule 1, clause 15 of the Defamation Act 2005 (NSW), and the good faith protections for complainants under the Health Care Complaints Act 1993 (NSW) and the former Medical Practice Act 1992 (NSW).


Sep 14, 2017 3:35:49 PM / by Zara Officer posted in Health, Aged Care & Life Sciences Insurance

AAI Limited (t/as Vero Insurance) v GEO Group Australia Pty Limited [2017] NSWCA 110

A recent Court of Appeal decision confirms the need for healthcare providers to understand their medical malpractice and civil liability policy terms and conditions. The primary decision was the subject of our article in the May 2017 edition of the Health Law Bulletin.


Background

The Australian Competition and Consumer Commission (ACCC) has recently announced that it will launch an investigation of the “more serious matters being raised” in the Aveo retirement village scandal.


Introduction - Genome Testing – Genome.One

An Australia-first genomic testing service that combines whole genome sequencing and a comprehensive health assessment can offer individuals an unprecedented glimpse into their future health.2


We all know someone who is addicted to Crossfit. Not surprisingly, with its rise in popularity those behind Crossfit have taken steps to protect the brand. This includes the registration of ‘CROSSFIT’ as a trade mark all over the world. In Australia, the word ‘CROSSFIT’ has three separate registrations in a number of different classes.


Sep 6, 2017 9:49:06 AM / by Corinne Attard posted in Franchising & Retail

If you are looking to buy a franchised business which operates from any premises other than your home, you will need a lease.  For retail businesses location is critical and it is likely your franchisor will control the negotiation process and require that either the lease be in its name with a sublease or licence granted to you, or allow the lease to be in your name but with some conditions attached.  


Sep 4, 2017 2:34:45 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Welcome to the August 2017 edition of the Holman Webb Health Law Bulletin. 


Aug 29, 2017 3:27:57 PM / by Corinne Attard posted in Franchising & Retail Property

If you are buying a retail franchise business, the lease is a critical element. Here are 10 questions to ask about your lease...


Congratulations to our CFO, Magdalena Kosior-Molloy who has been selected as a finalist for the CFO of the Year award in the 2017 Executive of the Year awards. 


Congratulations to Partner, Corinne Attard, who has once again been selected by Who’s Who Legal: Franchising as one of the pre-eminent leading franchise lawyers in Australia.   


Aug 16, 2017 9:23:05 AM / by Holman Webb posted in Property

Greg Malakou, CEO, speaks to Lawyers Weekly regarding our recent merger with Sydney property and construction law firm, Bruce and Stewart.


Aug 10, 2017 3:32:21 PM / by Holman Webb posted in Commercial Recovery & Insolvency

We have an opening for a lawyer to join our Commercial Recovery & Insolvency team. This position is ideally suited to someone around 3 years’ post admission experience in commercial litigation, with some exposure to recovery and insolvency work.


Jul 24, 2017 3:04:36 PM / by Holman Webb posted in Insurance

Holman Webb is delighted to announce we have been named as a finalist in the  Lawyers Weekly Australian Law Awards 2017 – Insurance Team of the Year category.


Jul 12, 2017 2:52:47 PM / by John Wakefield posted in

Congratulations to Partner, Alison Choy Flannigan, who has been listed in Doyles Guide as one of the top 3 preeminent lawyers in Health and Aged Care in NSW. 


Jul 6, 2017 3:02:57 PM / by Alicia Mataere & Jenni Mandel posted in Workplace Relations

The Fair Work Commission has this week handed down its decisions in relation to two major claims sought by the unions: the Casual and Part-time Employment Case and the Family & Domestic Violence Leave Clause.  Both decisions will have a significant impact for employers with award-covered employees so it is essential that you are aware of them.


Holman Webb is delighted to announce 10 internal promotions across our Eastern Sea-Board offices, effective 1 July 2017.   These promotions span our commercial recovery and insolvency, corporate and commercial,  dispute resolution, insurance, property, and workplace relations practices.


Jun 23, 2017 2:46:55 PM / by Mark Sheller posted in Insurance

Introduction

The Federal Court of Australia recently heard argument about whether an insurance policy offering protection against an adverse costs liability could be proffered as sufficient security for costs.


Earlier this week the Fair Work Commission handed down its annual wage review decision increasing the minimum wage for award-reliant employees by 3.3%.


Introduction


Jun 5, 2017 11:30:30 AM / by Robyn Chamberlain posted in Health, Aged Care & Life Sciences Property

Many health care providers own or lease business premises which are the subject of Strata title and currently more than a quarter of NSW’s population lives in, owns or manages Strata property.


Australian Health Practitioner Regulation Agency v Limboro (15 February 2017)

Advertising health services and therapeutic goods is regulated by a number of laws and codes including:


Jun 1, 2017 3:29:20 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

The Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), which amends the Privacy Act 1988 (Cth) (Privacy Act) was passed on 22 February 2017 and will commence on a date to be proclaimed within 12 months.


Greg Malakou, Holman Webb CEO, speaks to Business First magazine about how innovation not only gives Holman Webb a competitive advantage in the market but is also fundamental to the firm’s growth strategy.


May 30, 2017 10:08:38 AM / by Zara Officer posted in Health, Aged Care & Life Sciences

– Mace v Justice and Forensic Health Network; The GEO Group Australia Pty Ltd v AAI Limited t/as Vero Insurance [2016] NSWSC 803

A recent case highlights the need for health care providers to understand their medical malpractice and civil liability policy terms and conditions.


May 29, 2017 4:07:51 PM / by Alison Choy Flannigan & Bill Lo posted in

The hazards of incorrectly redacting a document. What does providing access to personal information “without excess delay or expense” mean? -  AIN v Medical Council of New South Wales [2017] NSWCATAP 21, AIN v Medical Council of New South Wales [2017] NSWCATAP 22, and AIN v Medical Council of New South Wales [2017] NSWCATAP 23


May 26, 2017 10:37:06 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Alison Choy Flannigan, Health, Aged Care & Life Sciences Partner, speaks to Lawyers Weekly about how lawyers in the healthcare and pharmaceutical sectors need to keep abreast of rapid technological developments, regulatory changes and consumer demands.


May 25, 2017 11:52:17 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

The New South Wales Attorney-General has asked the NSW Law Reform Commission to review and report on the desirability of making changes to the Guardianship Act 1987 (NSW) (Act). On 28 February 2017 Question Papers 4, 5 and 6 were released for comment. Submissions close on 12 May 2017.


May 25, 2017 10:52:43 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences
1. Introduction

The Australian Law Reform Commission (ALRC) published a discussion paper on Elder Abuse in December 2016. The ALRC has been asked to consider existing Commonwealth laws and frameworks which seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others, and to examine the interaction and relationship of these laws with state and territory laws. Submissions closed on 27 February 2017.


CCTV, videos and photos in health, aged care and retirement living and disability is becoming more of an issue following the increase in the use of social media and disturbing media reports of a “secret camera” capturing the alleged abuse of an elderly man in an Adelaide nursing home in July 2016.


May 24, 2017 3:04:11 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Recent media attention concerning the privacy breach by the Australian Red Cross Blood Service highlights privacy and cybersecurity risks with health information.


Domino’s Pizza Enterprises Ltd (Domino’s) has recently paid $18,000 to the ACCC in relation to two alleged breaches of the Franchising Code of Conduct (the Code). According to the ACCC, this represents the first ‘penalty’ for an alleged breach of the Code since it was revamped in 2015.


A new version of the Code of Conduct came into effect on 18 April 2017.  Members are reminded to update the links on websites and other electronic communications to remain compliant with Clause 11.4 of the Code.


We are delighted to announce that the Holman Webb Health Law Bulletin May 2017 edition has been published.

“The only thing that is constant is change ” – Heraclitus


May 3, 2017 11:41:27 AM / by Pat O'Shea posted in Insurance

The New South Wales Court of Appeal in Fairall v Hobbs[1] recently overturned a decision of a trial judge in favour of a plaintiff who was thrown from his ‘traffic trained’ horse named Buck, and against the CTP insurer of a motorist who passed the plaintiff riding Buck on the opposite side of the road, which allegedly caused Buck to ‘buck’ causing the plaintiff to dislodge from Buck and fall onto the concrete kerb and gutter, suffering personal injuries. MACA, is the Motor Accidents Compensation Act 1999 (NSW), which the trial judge found was applicable to the plaintiff’s injuries.


If you store personal information of any kind you have strict obligations under the Privacy Act not to disclosure that information to third parties. Systems, however, can be breached.


We are delighted to announce that 7 of our firm’s senior team members have been selected in the Tenth edition of Best Lawyers - Australia.


Mar 24, 2017 4:37:27 PM / by Holman Webb posted in

Holman Webb is delighted to announce our nominations in the 2017 Australasian Law Awards:


Mar 22, 2017 9:21:38 AM / by John Van de Poll posted in Insurance

The NSW Court of Appeal has handed down its decision in Walker Group Constructions v Tzaneros Investments [2017] NSWCA 27. The plaintiff claimed damages from Walker Group Constructions alleging defective concrete paving. Once the pavement was laid, cracks began to develop, and as a result, some concrete slabs had to be repaired.  Sometime later the plaintiff carried out further rectification whereby old slabs were replaced with reinforced concrete slabs. That cost was claimed from the defendant. The defendants argued that the rectification works undertaken by the plaintiff would result in betterment.


Mar 2, 2017 2:43:05 PM / by Rachael Sutton posted in Food Law Workplace Relations

On 23 February 2017 the Full Bench of the Fair Work Commission announced the reduction of a number of penalties in respect to work on Sundays and/or public holidays in modern awards, effective from 1 July, which will be phased in over at least two annual instalments.


Congratulations to Alison Choy Flannigan for being selected as a finalist in the Lawyers Weekly Partner of the Year Awards 2017 in the Health category.


Australian case law tends to show that Australian courts apply general contract law principles to determine whether, and to what extent, a set of terms and conditions on the website are binding on the contractual parties.


Feb 14, 2017 4:30:36 PM / by Pat O'Shea posted in Insurance

The Supreme Court of New South Wales in the matter of Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2016] NSWSC 912 looked at when an admission of liability by an insurer can be withdrawn by the insurer at a later date.


Feb 10, 2017 8:40:24 AM / by Pat O'Shea and Michael Jorgensen posted in Insurance

The Full Court of the Australian Capital Territory in Allianz Australia Insurance Ltd v Smeaton [2016] ACTCA 59 have provided further clarity of the applicability of section 54 of the Insurance Contracts Act 1974 (Cth) (‘ICA’). This decision follows other recent authorities regarding section 54 ICA, all of which have been in the insured’s favour, starting with the High Court in Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33, followed by Pantaenius Australia Pty Ltd v Watkins Syndicate 0457 at Lloyds [2016] FCA.


Jan 17, 2017 3:02:51 PM / by Tal Williams and Maria-Fe Lazarte posted in Technology Law

Late last year, the film industry in Australia won its first legal battle against piracy and unauthorised downloading practices since the amendment of the Copyright Act in June 2015.


Being released in cinemas this week, The Founder is the story of how Ray Kroc built the McDonald’s empire.

Michael Keaton plays Kroc and portrays him as an unlikeable, ruthless character who steals the ideas and even words of others without shame. He takes the brand concept and systems originated by Mac and Dick McDonald and passes them off as his own work. In doing so he grows their small operation to one across the US and internationally.


Nov 18, 2016 11:23:10 AM / by Mark Sheller and Nicholas Maiorana posted in Insurance
Summary

The Full Court of the Federal Court dismissed an appeal concerning a claim for contribution between insurers where the second policy would only respond to the underlying claim if section 54 of the Insurance Contracts Act 1984 (Cth )(‘ICA’) was engaged.


Electronic signatures, also known as eSignatures, are a simple means by which documents can be legally signed. In this era, where rapidly growing technology is having a high impact on the business world, eSignatures have allowed for a faster more efficient way for people to legally complete and exchange a range of contracts, approvals, agreements and transactions.


Holman Webb is proud to be a foundation signatory of the Law Society of NSW Charter for the Advancement of Women in the Legal Profession


Oct 26, 2016 12:35:14 PM / by John Van de Poll and Bahar Turkmener posted in Insurance

The short answer is, when the insurer does or fails to do what is required under the policy, most commonly this will be when the insurer makes a decision on the availability of indemnity.


Oct 21, 2016 11:46:18 AM / by John Wakefield posted in

Holman Webb is delighted to announce our inclusion in Australasian Lawyer’s Fast Firms List for 2016


CCTV, videos and photos in health, aged care and retirement living and disability is becoming more of an issue following the increase in the use of social media and disturbing media reports of a “secret camera” capturing the alleged abuse of an elderly man in an Adelaide nursing home in July 2016.


Oct 10, 2016 11:19:19 AM / by Rachael Sutton posted in Health, Aged Care & Life Sciences

Unfortunately, we live in a world today where terrorist attacks have become far too common. Counter-terrorism strategies and tactics are rightly in the consciousness of governments, employers and the public at large in the wake of attacks in Kenya, Beirut, Paris, Nice and many other locations around the world which experienced massive losses of life by the actions of extremists (not to mention the numerous shootings, bombings, and bio-attacks that continue to take place). In August 2016 there was a terrorist attack on a Pakistan hospital which killed more than 50 people.23  Locally, we have had our own challenges with the loss of life arising from the Martin Place Siege and attack on NSW Police Headquarters in Parramatta.


– Australian Consumer Law – Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015

Unfair Terms of Consumer Contracts

Section 23 of the Australian Consumer Law (ACL), which is contained within Schedule 2 to the Competition and Consumer Act 2010 (Cth) states that a term of a consumer contract will be void if the term is unfair and the contract is a standard form contract.


Oct 4, 2016 12:44:28 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Private hospital operators conduct their business in a competitive environment and competition laws can affect how they interact with their competitors and other organisations such as private health insurers, pharmaceutical companies, medical device companies and medical practitioners.


The Neurofen Case - Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Limited (No 4) [2015] FCA 1408

Most readers of this article would be familiar with the Nurofen specific pain products, each being labelled Nurofen Back Pain, Period Pain, Migraine Pain, or Tension Headache, as these products have been marketed in that manner in Australia since about 2006.


Cannabis, as a narcotic, is currently regulated under a myriad of Commonwealth and State laws, including the following:

  • Therapeutic Goods Act 1989 (Cth);
  • Narcotic Drugs Act 1967 (Cth);
  • State and Territory laws, including the Drug Misuse and Trafficking Act 1985 (NSW);
  • State and Territory laws which deal with poisons and therapeutic goods, such as Poisons and Therapeutic Goods Act 1966 (NSW); and
  • Access to Medicinal Cannabis Act 2016 (Vic).


Oct 4, 2016 11:17:46 AM / by Zara Officer posted in Health, Aged Care & Life Sciences

– Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No.4) [2016] FCA 33

Dr Maiocchi was a trainee psychiatrist on rotation at the Northside Clinic in Greenwich, NSW in the early months of 2010. During her time there, she received an unsatisfactory mid-term evaluation, therefore a remediation plan was prepared and adopted in relation to her performance. Later, a decision was made to terminate her clinical privileges at the Northside Clinic. Dr Maiocchi alleged that these actions were taken unreasonably based upon her race or ethnic origin, and were unlawful under Section 9 of the Racial Discrimination Act 1975 (Cth) (the Act).


In the New South Wales Supreme Court in Application of a Local Health District: Re a Patient Fay [2016] NSWSC 624, Fay, a pregnant 19 year old woman with an intellectual disability with placental haematoma and progressive renal failure, was warned by her doctors that she was at significant risk of permanent cerebral damage and possibly death if her pregnancy continued. The medical advice had recommended that the pregnancy be terminated to allow more effective control of her blood pressure. It was made known that the foetus would not live if intervention occurred. She signed a consent form stating that if specific medical events were to cause impending death, then the baby would be delivered even if the baby’s life was at stake. Her doctors desired to treat her immediately instead of waiting for one of Fay’s nominated treatment-accepted events to occur.


Sep 26, 2016 3:57:26 PM / by Pat O'Shea posted in Insurance Property
Introduction

Jones v Bartlett stands for the basic proposition that an owner of a residential premises does not owe a duty of care to a plaintiff to ensure that premises are updated to comply with ever evolving Australian Standards and Building Codes. At a basic level, if the residential premises complied with the Building Code and Australian Standards when constructed, then even if the defect which caused the accident is, at the time of injury, non-compliant with current Australian Standards and Building Codes, the owner/occupier will still escape liability.


Biggs v George [2016] NSWCA 113; Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107


Sep 23, 2016 11:59:21 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Secretary, Department of Health v DLW Health Services Pty Limited [2016] FCA 108 is an appeal to the Federal Court of Australia against a decision of the Administrative Appeals Tribunal, concerning a decision by delegates of the Commonwealth Department of Health to reduce classification levels of aged care recipients.


Sep 23, 2016 11:38:43 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

including ‘Capital Refurbishment’ Type Fees

The Government published on 2 September 2016 Information for Approved Providers of Residential Aged Care Homes on Charging Fees for Additional Care and Services in Residential Aged Care, including ‘Capital Refurbishment’ Type Fees.15


Sep 23, 2016 11:33:09 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

The Federal Government announced in the 2016/2017 budget10 that it will achieve efficiencies of $1.2 billion over four years through changes to the scoring matrix of the Aged Care Funding Instrument (ACFI) that determines the level of funding paid to aged care providers. The Government will also reduce indexation of the Complex Health Care component of the ACFI by 50 per cent in 2016/17 and establish a $53.3 million transitional assistance fund to support providers.


Until 27 February 2017, CDC funding for home care is provided to places as allocated to Approved Providers via the Aged Care Approval Rounds (ACAR).


What is consumer directed care?


With an increasing aging population and decreasing financial resources, innovation is essential in improving health care delivery and patient outcomes.


Sep 21, 2016 10:13:05 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

for Prostate Specific Antigen (PSA) Testing of Patients by SA Pathology; Bankstown-Lidcombe Hospital Medical Gas Findings Report

Clinical governance is the term used to describe a systematic approach to maintaining and improving the quality of patient care within a clinical care setting, health program or health system. It is about the ability to produce effective change so that high quality care is achieved.  It requires clinicians and administrators to take joint responsibility for making sure this occurs.2


We are delighted to announce the September 2016 edition of the Holman Webb Health Law Bulletin is now published.


Online providers have been warned that advertising the lowest price on a web landing page, then adding admin costs, insurance, booking fees and other expenses as you work through the booking process will be consider unfavourably by the Australian Competition and Consumer Commission (‘ACCC’).


Sep 1, 2016 12:00:13 PM / by Tal Williams posted in Business Corporate & Commercial Technology Law

Readers would be familiar with the contents of the SPAM Act. Essentially, the Act requires that an electronic communication must not be sent without the consent of the recipient, it must contain clear and accurate information about the person or organisation that authorised the sending of the message, and it must contain an “opt out” or “unsubscribe” provision so the recipient can choose not to receive emails in the future.


Aug 23, 2016 4:03:44 PM / by Daniel Jepson posted in Business Corporate & Commercial

There is no doubt that the Olympics are a brilliant example of global co-operation, athletic prowess and human endurance. They also happen to be good for business too, as the recent case of Australian Olympic Committee, Inc. v  Telstra  Corporation Limited [2016] FCA 857 demonstrates.


Aug 10, 2016 4:27:06 PM / by John Van de Poll posted in Insurance

Congratulations to Lucy Kerley, Senior Associate, on her inclusion on the Insurance Business Young Guns 2016 list. 


As new businesses develop and technology advances some principles still remain the same.

Recently a digital advertising agency was prosecuted by the Australian Competition and Consumer Commission in relation to the supply or possible supply of its advertising services. The advertising was to be done by way of digital displays at various shopping centres.


Aug 2, 2016 11:42:28 AM / by Tal Williams posted in Business Corporate & Commercial

From 12 November 2016 unfair terms that appear in standard form contracts involving small business are void and cannot be relied upon. To qualify as a small business contract, one of the parties must have less than 20 employees and the upfront price payable under the contract must not exceed $300,000 or, if the contract is for more than 12 months, $1,000,000.


Jul 18, 2016 3:14:20 PM / by Holman Webb posted in Business Corporate & Commercial Insurance

Holman Webb is delighted to announce we have been selected as a finalist in the 16th Annual Lawyers Weekly Australian Law Awards – Insurance Team of the Year category. Recognizing excellence in law, these prestigious awards celebrate the achievements of the very best the legal profession has to offer across a number of categories of law.  


Jul 6, 2016 10:37:23 AM / by Callun Blurton posted in Insurance

The recent decision of McQuitty provides important guidance to Queensland personal injury practitioners with respect to the impact of hypothetical events, pre-existing injuries or conditions and the assessment of damages.   The probability test applied by His Honour Jackson J may assist defendants to reduce an award of damages in claims for personal injuries where the plaintiff has pre-existing injuries or conditions which had a probability of impacting a head of damage.[1]


Holman Webb is delighted to announce 9 internal promotions across our Sydney and Melbourne office, effective 1 July 2016.   These promotions span across the workplace relations, insurance, property, commercial recovery and insolvency and ctp practices.


Jul 4, 2016 8:50:54 AM / by Ethan Brawn posted in Workplace Relations

The South Australian Industrial Relations Court in the matter of Boland v Trainee and Apprentice Placement Service Inc. [2016] SAIRC 14 has handed down the first conviction under the model work health and safety laws for a failure by a duty holder to consult with another duty holder. 


We are pleased to announce that Holman Webb is co-sponsoring the inaugural International Negotiation and Dispute Resolution Seminar Series. The project is an initiative of the NSW Young Lawyers’ International Law Committee in partnership with the Australian International Disputes Centre and the Australian Centre for International Commercial Arbitration.


Last year Holman Webb Lawyers Brisbane (“HWLB”) successfully obtained orders against a company director and a company officer for contempt of court. The contempt orders were necessary to enforce injunctive orders previously obtained by HWLB on behalf of Beech Ovens Pty Ltd. These proceedings are an exemplar of the personal liability which directors and company officers have for the actions of their company in complying with Court orders.


The Fair Work Commission’s Expert Wage Panel determined to increase the National Minimum Wage and Modern Award rates of pay by 2.4%.  The new rates of pay will come into effect from the first full pay period on or after 1 July 2016.


Apr 29, 2016 10:07:29 AM / by John Wakefield posted in Insurance

I am very pleased to report that at the Lawyers Weekly Partner of the Year Awards held at the Sofitel last evening, John Van de Poll was awarded Law Partner of the Year: Insurance. This is a great credit to John reflecting his strong commitment to the building of the Holman Webb insurance practice over many years including his focus on delivery of services in an innovative way. It is also a very good reflection on his team and the firm generally.


Associations and charities alike understand the need to negotiate their way through changing patterns of contact and response from government, and have seen how the government’s attitude to the ACNC and regulation of charities has changed lately.


Holman Webb is delighted to announce that we have been selected as finalists in the following Australasian Law Awards 2016 categories:


Apr 8, 2016 2:03:59 PM / by Stephen McCarthy and Kristen Hammond posted in Workplace Relations

Recent Fair Work Commission decisions have again confirmed the importance of strict compliance with procedural requirements by employers when seeking the approval of Enterprise Agreements.


Standard form contracts have long been under a cloud and have troubled contract theory because they may arise even though there may have been no ’meeting of minds’ between the parties. Even so, merchants have found them very useful, probably for as long as there have been merchants. In Schroeder Music Publishing Co Ltd v Macaulay [1974] 1 WLR 1308 Lord Diplock noted the ’ancient’ history of standard form contracts and approved those between merchants facilitating terms of trade, but criticised the growth of one-sided contracts between parties of unequal bargaining power.


It`s important to pay attention to the way the personal information of your company is secured. If you mishandle the confidential information of your customers, it can cause them a financial or reputational loss and lead to a decreasing of trust and considerable harm to your good name.


In the context of claims for negligence there are few authorities providing guidance as to conduct that amounts to bullying. The District Court of New South Wales has recently determined a claim by a plaintiff who alleges that he sustained a psychological injury as a result of three instances of workplace bullying that occurred over a 5 year period.[i]


Congratulations to Alison Choy Flannigan and John Van de Poll for being selected as finalists in the Lawyers Weekly Partner of the Year Awards 2016 for the Health and Insurance categories.  


Mar 3, 2016 12:49:00 PM / by John Van de Poll posted in Insurance

The UK Insurance Act 2015 (the UK Act), which comes into force on 12 August 2016, contains some similar provisions to the Australian Insurance Contracts Act 1984 (ICA). Australia, however, has the advantage of more than 30 years of Appeal Court determinations on their provisions. In this article, we examine two Australian cases dealing with provisions equivalent to “Fair Presentation” and “Terms not relevant to the actual loss” – both key provisions that will be introduced by the UK Act.


We are delighted to announce that three of our firm’s senior team members have been selected in the Ninth edition of the oldest and most respected guide to the legal profession, Best Lawyers.


It is well established under Australia law that secondary publishers can be held liable for defamatory material if they had actual or constructive knowledge of the defamatory matter. This was the crux of Dr Janice Duffy’s multi-year legal battle in the Supreme Court of South Australia with internet search giant, Google.


Metadata Retention

On October 13th, the Telecommunications (Interception and Access) Act 1979 (Cth) legislated for the retention of metadata by telecommunications carriers and internet service providers (telcos) for a mandatory period of two years. This data will then be made available to federal, state and territory police, Medicare, Councils in NSW, Worksafe Victoria, the RSPCA, the Tax Office, Australia Post, domestic spy agency ASIO, ASIC and many others when conducting criminal and financial investigations.


Nov 10, 2015 3:11:00 PM / by Holman Webb posted in Workplace Relations

Congratulations to Kristen Hammond, Associate in our Workplace Relations team, on her recent nomination as Young Gun of the Year in The Lawyers Weekly 2015 Women In Law Awards. 


Holman Webb Lawyers has announced a strategic alliance with global US firm Diaz Reus, strengthening the firm’s reach into the Latin American market.

With an existing reach in the Australian and European markets, the alliance will increase the capability of both firms in the Asia Pacific region.

“We have been discussing the possibility of working together for some time,” chairman John Wakefield. “An increasing number of Australian enterprises are operating in Latin America and a number of Latin American businesses have interests in Australia.  We are both commercial firms, similar in size and offering and are multi-cultural.  In that sense it is a natural fit.”  

Diaz Reus is a full-service firm headquartered in Miami, with 14 offices located throughout the US, Latin America, the Middle East, Asia, and Europe.  The firm has eight offices in Latin America.

“Diaz Reus’ multicultural and multilingual lawyers operate seamlessly, worldwide, giving our clients access to boots-on-the-ground global legal counsel,” said Michael Diaz Jr., Diaz Reus’ global managing partner.

“Our alliance with Holman Webb is will consolidate our offering in the region.”

Holman Webb currently has offices in Sydney, Melbourne and Brisbane with specialist expertise in corporate advisory, compliance and dispute resolution work.

It is intended the expanded reach of both firms will attract additional major corporates across the jurisdictions in which the alliance operates to take advantage of the very competitive cost-structures in both firms without compromise on quality of service.


Tips
  • Take the time to develop an understanding of the cyber threats that could affect your business.
  • Work with your clients or board to create a solid cyber-security program that involves the board, management, IT team and employees. A holistic and inclusive approach is required to ensure that proper and functional policies are in place that can and will be complied with.
  • Within this ever changing space, continued vigilance and attention to new and current methods, policies, systems and procedures is fundamental if organisations are to minimise the chance of a cyber-attack.

Oct 8, 2015 5:16:53 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Click here to read the October Health Law Alert which includes the recent High Court Case of D’Arcy v Myriad Genetics Inc. & Anor [2015] HCA 35. 

This case highlighted the debate over balancing the rights of inventors and creators to commercialise and profit from their inventions, and the interests and needs of the wider society to be able to access biological developments for research and the improvement of public health and welfare.


Oct 8, 2015 5:01:18 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

The Commonwealth Department of Social Services published on 29 September 2015 a new Home Care Packages Operational Manual, replacing the Home Care Packages Programme Guidelines 2014. The Operational Manual is a useful guide for providers to support the delivery and management of the Home Care Packages Programme on a consumer directed care basis. The Operational Manual is available at: https://www.dss.gov.au/ageing-and-aged-care-programs-services/home-care-packages-operational-manual


Oct 8, 2015 3:40:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

D’Arcy v Myriad Genetics Inc. [2015] HCA 35 7 October 2015

The recent High Court Case of D’Arcy v Myriad Genetics Inc. & Anor [2015] HCA 35 highlights the debate over balancing:

1. the rights of inventors and creators to commercialise and profit from their inventions;  and

2. the interests and needs of the wider society to be able to access biological developments for research and the improvement of public health and welfare.

Those seeking the protection of intellectual property rights argue that the protection of exclusive rights to the intellectual property enables investment which is necessary for the expensive process of taking research to clinical trials, commercialisation and the market.


Small businesses are becoming increasingly vulnerable to unfair terms in standard form contracts.  The Government has got closer to addressing this vulnerability by extending the unfair contract protection to include small business contracts.  But what is a small business? And what types of clauses are void?


Sep 25, 2015 2:20:35 PM / by Matthew Baker posted in Insurance

The Queensland Parliament passed the Amending Bill on 17 September 2015.  The Amending Act will make some significant changes to the Workers Compensation & Rehabilitation Act 2003 (WCRA).


Holman Webb would like to congratulate Alison Choy Flannigan, Health, Aged Care & Life Sciences Partner, on receiving the 2015 Australasian College of Health Service Management (ACHSM) – NSW Branch President’s Award on Wednesday night.


Sep 17, 2015 9:34:39 AM / by John Van de Poll and Vahini Chetty posted in Insurance

Last week, the New South Wales Supreme Court handed down a decision in the matter of Anderson v Ausgrid [2015] NSWSC 1308 which is likely to be extremely helpful to insurers seeking recovery as a result of fire damage.


The Greens have announced a new bill which potentially means Australian franchisors could be jointly liable for the breaches of employment awards and laws by their franchisees. But is there already potential liability for franchisors if their franchisees don’t pay their staff their proper entitlements?


On the 6th July 2015, Australian Prudential Regulation Authority (APRA) released an Information Paper in relation to Outsourcing. It noted that in recent years there has been a significant change in the way that technology is being employed with shared computing services (SCS) being increasingly utilised by a range of business entities.


If you are a franchisor in Australia you will know that you must update your disclosure document every year to comply with the Franchising Code.


Sep 14, 2015 10:30:00 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Welcome to the September edition of the Holman Webb Health Law Bulletin.

This Health Law Bulletin includes articles on lessons learnt from the Quaker’s Hill Coronial Inquest, palliative care and euthanasia and advance care directives.

Please note that the remaining sections of the Health Practitioner Regulation Legislation Amendment Act 2014 (NSW) have now been proclaimed to commence on 1 November 2015.

We trust that this edition of the Health Law Bulletin brings to you articles of relevance to the sector.


Sep 4, 2015 4:17:00 PM / by Zara Officer posted in Health, Aged Care & Life Sciences

By Zara Officer, Special Counsel and Vahini Chetty, Associate


A critical lesson from the Quakers Hill Nursing Home disaster is to conduct adequate pre-employment screening and check references on new employees.


Sep 4, 2015 11:31:00 AM / by Dr Tim Smyth posted in Health, Aged Care & Life Sciences

The recently released Australian movie, “Last Cab to Darwin”, will generate conversations and recall the Northern Territory’s Rights of the Terminally Ill Act 1995. This Act came into effect on 1 July 1996 and was subsequently overridden by the Commonwealth Parliament. Courts in Australia, Canada, the UK and the USA have all made it clear that there is no legal duty to continue medical treatment that is futile. These courts have also upheld the right of competent adults to decide to cease treatment that is keeping them alive.


Currently information available to consumers having cosmetic medical and surgical procedures (including botox injections) can be of variable accuracy and quality. Patients may be unaware of the various levels of qualifications and training required for different procedures.


Sep 4, 2015 10:50:00 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

On 23 July 2015, the National Health and Medical Research Council (NHMRC), issued a Media Release opening public consultation on proposed draft revisions to the clinical practice section of: Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007 (‘ART Guideline’).11


For practitioners, knowing what is classified as an adverse event, which must be notified to their professional indemnity insurer, is often difficult. Failing to notify of an adverse event could mean that the practitioner is not covered by their insurer for any claim arising out of the adverse event.


The making of appropriate contemporaneous notes in medical records is best practice for clinical care, but also to facilitate the defence of a claim should an adverse event occur.


Sep 4, 2015 9:43:00 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

The law concerning advance care directives in Australia differs from State to State, with some jurisdictions requiring set forms and others relying upon the common law. This article discusses some of the key cases on advance care directives, including a summary of principles. 


The tragic death of 14 aged care residents at the Quakers Hill Nursing Home provides a number of lessons for hospital operators and residential aged care operators, including in relation to:


Another reminder has been sent by the Courts confirming that publication of photos on Twitter on or other web pages does not entitle the world at large to use or republish those photos.


Many properties are either burdened or benefited by easements.

But what is an easement, and what does it mean if your property is the subject of an easement?


Casaclan v Wealthsure Pty Ltd [2015] FCA 761 is the most recent decision involving Wealthsure Pty Ltd and their former authorised representative Mr Colin Oberg following the High Court’s Selig & Another v Wealthsure Pty Ltd (2015) 320 ALR 47 judgement.


Aug 20, 2015 9:30:00 AM / by Tal Williams posted in Business Corporate & Commercial Technology Law
Our quarterly publication will keep you up to date with news and developments in business, corporate and commercial law.
 

Aug 19, 2015 11:15:00 AM / by Rachael Sutton & Alicia Mataere posted in Workplace Relations

The recent blockades of Australia’s waterfront and ports may bring flashbacks to the 1998 Waterfront Dispute and have people questioning where the workplace word of the millennium, “Collaboration” has gone.


Nothing about the internet changes the fact that the owner of the copyright in a book, movie or music is the only party that has the right to exploit that material. They can offer an end user a license to access the material for a fee, they can give an end user the right to download and play a movie for their personal use, or they can license a movie chain to play that movie in the cinema. Those rights belong to the owner of the copyright and no-one else has the right to use or access the material unless they have the permission (and paid the fee if required) of the rights holder.


Are you interested in hearing from experts in the field about dealing with death in the health and aged care industry – including advance care directives, coronial inquests and euthanasia?


The Supreme Court of Queensland has recently been asked to consider whether or not an exchange of emails between a potential purchaser and the agent of a vendor was sufficient to create a legally binding contract. The first question answered by the Court was whether or not the facts of the case supported the finding that a contract existed, and second whether or not that contract could be created on the mere sending of emails. In this case, there was no formal contract for the sale of land.


Jul 30, 2015 10:44:47 AM / by John Van de Poll posted in Insurance

Previous proceedings brought by a credit hire car provider in the name of an insured do not necessarily preclude a later subrogated action.


3D printing has been around in one form or another since 1984, when a process was introduced to transfer digital data into tangible objects. While initially utilised in experimental, technical and scientific endeavours, the technology has advanced to a point where “home printing” and desktop scale printers have been introduced to the market. The technology is now readily available to the consumer.


Congratulations to our Franchise and Retail partner, Corinne Attard who  has again been selected for the second year running by Who’s Who Legal as being among the world’s leading franchise lawyers.  Corinne acts for retailers, franchisors and master franchisees including some of the world’s most recognisable brands.


Jul 17, 2015 3:40:00 PM / by Matthew Baker posted in Insurance Workplace Relations

The Queensland Treasurer, Curtis Pitt, on 15 July 2015 introduced into Queensland Parliament the Workers’ Compensation & Rehabilitation and Other Legislation Amendment Bill 2015 (Qld) (the Bill). The Bill makes a number of amendments to the Workers’ Compensation & Rehabilitation Act 2003 (Qld) (WC&RA), the most significant of which is clause 6 which will see the removal from the WC&RA of the requirement for a worker’s injury to have an assessed degree of permanent impairment (DPI) of more than 5% in order for a worker to be entitled to bring a common law claim against their employer. The amendment is proposed to be back dated to commence on 31 January 2015 (the date the Qld state election was held).


Health information can reflect a person’s medical condition (including HIV status), mental health, lifestyle, sexual preference, personal history (in terms of sexual or other abuse), family and beliefs.  This information can be valuable not only in terms of clinical care but also in relation to medical research, population planning, genetic profiling, personalised medicine, workers compensation, insurance profiles and, in cases dealing with paternity, custody and other disputes.


Jun 29, 2015 3:44:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

And the winner is…


We are pleased to announce that the winner of the Aged & Community Services (NSW & ACT) Volunteer award for 2015 is Jan Wright of St Catherine’s Aged Care, Bathurst, part of Catholic Health Care.


Jun 26, 2015 4:24:26 PM / by John Wakefield posted in Business Corporate & Commercial

Holman Webb is delighted to be included in the list of the nation's fastest growing firms in The Australian Legal Partnership Survey, Friday 26 June 2015.


Jun 18, 2015 4:25:00 PM / by Nicholas Gordon and Vahini Chetty posted in Insurance

Nicholas Gordon, Senior Associate, and Vahini Chetty, Associate recently presented on recent cases which considered the Civil Liability Act and how these decisions may impact future claims.


Jun 11, 2015 11:53:00 AM / by Matthew Baker posted in Insurance

Application pursuant to section 16 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) to join an insurer as a PIPA contributor.


Jun 11, 2015 8:53:00 AM / by John Van de Poll posted in
There have been some recent developments in the Small Claims Division on the issue of credit hire.
 

Welcome to our second edition of the Holman Webb Insurance Law Bulletin.

This edition of the Insurance Law Bulletin highlights, recent decisions concerning recreational activities, doctors off duty obligations, UAV’s, the consequences of being an interested party under an insurance contract and competing interests in employment practices claims and recent workers compensation recovery developments in Queensland.


May 14, 2015 3:52:00 PM / by John Van de Poll and Mark Victorsen posted in Insurance
Article by John Van de Poll, Partner and Mark Victorsen, Partner
May 2015

Yesterday, the High Court delivered judgment in the matter of Selig v. Wealthsure Pty Ltd [2015] HCA 18. 

At a Glance

The significance of this decision is in the orders for costs that were made by the Court.  Of interest to insurers in this particular case, is that the Court determined that the actions of QBE (the insurer of the unsuccessful respondents) in pursuing the appeal, where sufficient to warrant an order that QBE pay the costs.  This is contrary to the usual order that the defendants themselves (rather than their insurer) pay the costs.


Readers may recall a short article that was published in our Corporate and Commercial newsletter on Cyber Security which drew attention to the steps that can be taken in order to assist in the prevention of cyber-attacks (please click here to read this article). Further to that article, ASIC has recently published a report on cyber resilience which is intended to help regulated organisations improve their ability to prepare and respond to cyber-attacks.


Our quarterly publication will keep you up to date with news and developments in business, corporate and commercial law.
 


Mar 24, 2015 2:23:00 PM / by John Wakefield posted in

Holman Webb is delighted to announce that we have been selected as a finalist in the Australasian Law Awards 2015 – Law Firm of the Year (100-249 lawyers) category.  The Australasian Law Awards celebrate excellence in the legal profession in Australia and New Zealand. 


Mar 16, 2015 2:29:00 PM / by Tim Trezise posted in Workplace Relations

The recently decided case of The Fair Work Ombudsman v Crocmedia Pty Ltd provided a hard learned lesson for employers about the importance of correctly classifying and remunerating employees. The case highlights the importance of understanding that employment relationships have a legal definition and employer’s cannot simply dressed up employment as an unpaid internship or work experience in order to escape any obligation to remunerate pursuant to the Fair Work Act 2009 (“FWA”).  


Feb 26, 2015 12:56:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Welcome to the February 2015 edition of the Holman Webb Health Law Bulletin.


Feb 16, 2015 4:30:00 PM / by John Van de Poll posted in Insurance

Holman Webb is delighted to announce the recent appointment of Hamish Cotton, Special Counsel to our Insurance team.


Jan 30, 2015 12:54:00 PM / by John Wakefield posted in Dispute Resolution

This article, recently published in the February 2015 Law Society Journal, considers the extent to which the objectives underpinning the introduction of amending federal and new state legislation have been effective, if they have not, why not, and what further steps can now be taken to engender the necessary culture of arbitration to promote a competitive and sustainable arbitration environment in Australia.


Jan 28, 2015 12:52:00 PM / by Jonathan Casson posted in Business Corporate & Commercial

On January 28, 2015 the High Court ruled that the detention of asylum seekers at sea in what is known as the "contiguous zone" is authorised by the Maritime Powers Act 2013.  157 passengers were on board an Indian flagged vessel.  One of them claimed false imprisonment.  The High Court rejected this.  The vessel had been intercepted by an Australian border protection ship in the Indian Ocean within Australia's contiguous zone.  The vessel was detained, and once it became unseaworthy the passengers were transferred to the Australian vessel. 


Jan 28, 2015 12:50:00 PM / by Jonathan Casson posted in Business Corporate & Commercial

In January 2015 the Office of the Australian Information Commissioner published a guide to "securing personal information" by recommending reasonable steps to protect personal information.


Dec 15, 2014 4:34:00 PM / by Tim Trezise posted in Workplace Relations

In a recent general protections’ case (Heriot v Sayfa Systems), an employee’s dismissal by way of a mutual termination was held to be adverse action against the employee.


Dec 12, 2014 12:47:00 PM / by Robin Young posted in Workplace Relations

Welcome to the first edition of the Holman Webb Workplace Relations Bulletin December 2014.


Nov 21, 2014 4:35:00 PM / by Tal Williams posted in Business Corporate & Commercial

Cloud storage and the protection of personal information is a vexed and difficult issue to deal with.  Under the Australian Privacy legislation a local entity that provides personal information to a storage facility outside Australia may be exposed to liability that arises if the external storage provider breaches the Australian Privacy Principles.


Nov 20, 2014 4:46:00 PM / by Matthew Baker posted in Insurance Workplace Relations

In Byrne v People Resourcing (Qld) Pty Ltd & Anor [2014] QSC (Byrne), Carmody CJ held that WorkCover Queensland (WorkCover) was required to indemnify the plaintiff’s employer, People Resourcing (Qld) Pty Ltd (PRQ) a labour hire company in relation to a contractual indemnity that PRQ had provided to one of its clients/host employers, Thiess John Holland (TJH).


Nov 19, 2014 4:36:00 PM / by Tal Williams posted in Business Corporate & Commercial
Five Things to Know About Electronic Communications - "Click Wrap" agreements; When is an email received; 'Meeting of the minds'; Input errors and Electronic signatures
1. “Click Wrap” agreement

Nov 14, 2014 4:38:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Click here to read the latest cases in Health Law -  The High Court has recently decided that a hospital is not liable for violent acts of a discharged mental health patient.   In addition, another case explains why hospitals should keep health care records relevant to a particular patient.


Nov 11, 2014 4:40:00 PM / by Corinne Attard posted in Franchising & Retail
Oct 27, 2014 4:41:00 PM / by Tal Williams posted in Business Corporate & Commercial

On 23 October 2014 the Federal Court of Australia handed down a decision that dealt with the downloading of software by an employee immediately before his departure from that firm and his taking up employment with a competitor.


Oct 22, 2014 4:45:00 PM / by Colin Hall posted in Insurance

Holman Webb acted for CGU Insurance Limited in what is considered to be the first successful subrogated recovery action against a water authority.  The case involved damage caused to an insured’s property when a water main substantially failed and the property became inundated with water. In the decision of Peter and Cheryle Quigley v Lower Murray Water (W119/2013) the VCAT considered for the first time a water authority’s defence of running an asset to failure and its defence of non-foreseeability.


Oct 3, 2014 12:45:00 PM / by John Van de Poll posted in Insurance

Please find below Holman Webb Schedule of Non-Economic Loss under the Civil Liability Act 2002 (NSW) for 2014/2015.

The maximum amount for non-economic loss damages is $572,200, indexed from 1 October 2014.


Sep 29, 2014 12:41:00 PM / by John Van de Poll posted in Insurance

Welcome to the first edition of the Holman Webb Insurance Law Bulletin.


Sep 24, 2014 4:50:00 PM / by Robin Young posted in Workplace Relations

 

The High Court has unanimously held that there is no implied term of mutual trust and confidence in Australian employment contracts.


Sep 24, 2014 4:49:00 PM / by John Van de Poll posted in Insurance

 

S54 of the Insurance Contracts Act 1984 (Cth) may well be the bane of all insurers as it is really a double-edged sword. In essence, it prevents an Insurer from relying on a breach of a policy condition to deny a claim because the insured has committed a particular act, error or omission (after the policy is entered into) which did not cause or contribute to the loss. However, the insurer may instead, reduce the claim to the extent of the prejudice it has suffered.  If the act, error or omission caused or contributed to the loss, then the insurer can refuse to pay the claim.


Sep 24, 2014 4:47:00 PM / by Rachael Sutton posted in Workplace Relations

Despite what some might call ‘hysteria’ that prevailed at the time of the introduction of the anti-bullying laws and the expectation of the Fair Work Commission (the Commission) that it may receive some 3,500 bullying related applications per month the reality is that far fewer complaints of bullying have been received by the Commission and it has not stopped employees resorting to other avenues of redress such as workers compensation and adverse action. These other avenues are likely to be more attractive as a potential financial remedy is available.


Sep 23, 2014 4:50:00 PM / by Tim Trezise posted in Workplace Relations

A recent SA District Court defamation case has raised some interesting OHS concerns (Tassone v Kirkham). Both Mr Tassone and Mr Kirkham were prison officers. The case concerned a work email that was purportedly sent by Mr Tassone to his workplace colleagues stating: “Hello people, just a note to say that I am homosexual and I am looking for like minded people to share time with. 


Sep 12, 2014 10:14:00 AM / by Corinne Attard posted in Franchising & Retail

Welcome to the August 2014 edition of the Holman Webb Lawyers Franchise Bulletin.

This year we have seen the delays and uncertainty continue to surround the introduction of the changes to the Franchising Code of Conduct including the new good faith obligation and monetary penalties for breaches. Click here to read more.


Aug 28, 2014 4:25:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Two  recent  cases  before  the Australian  Privacy  Commissioner (Commissioner)  serve  as  a  reminder  to  organisations  of  the importance of keeping personal information of clients secure and adequately disposing of information that is no longer in use.


Aug 28, 2014 2:53:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Welcome to the August 2014 edition of the Holman Webb Health Law Bulletin.


Aug 28, 2014 2:51:00 PM / by Dr Tim Smyth posted in Health, Aged Care & Life Sciences

Next year is likely to see some significant steps forward for the national ehealth system following the release of the report of the review of the Personally Controlled Electronic Health Record (PCEHR) by the Commonwealth Minister for Health in May. (1) The  review undertaken over 6 weeks in late 2013, and headed by Richard Royle, Executive Director of UnitingCare Health (Qld), made 38 recommendations.


Aug 28, 2014 2:50:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Big data is a term used to describe the exponential growth and availability of data, both structured and unstructured (1). In terms of health care, big data represents all of the data which has been collected on relevant multiple databases. Click here to read more.

(1) Available at http://www.sas.com/en_us/insights/big-data/what-is-big-data.html (15 August 2014).
Aug 28, 2014 2:48:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

If a researcher, health and medical research institute, pharmaceutical, medical device and/or biotechnology company wishes to become involved in clinical trials and/or health and medical research in Australia, they should be aware of the legislative, regulatory and policy framework, noting that not all health and medical research is a clinical trial.


Aug 28, 2014 2:47:00 PM / by Dr Tim Smyth posted in Health, Aged Care & Life Sciences

Many organisations in the health, aged care and life sciences sector have funding agreements with the Commonwealth. Reduction of funding, non-renewal or termination of the agreement is a risk that needs to be managed. While this article focuses on the Commonwealth’s decision to transition from Medicare Locals to Primary Health Networks, the legal issues remain relevant to all organisations with significant funding from the Commonwealth.


Aug 28, 2014 2:44:00 PM / by Alison Choy Flannigan posted in Media & Communications

The Australian Government announced on 5 August 2014 that it will  introduce a suite of counter-terrorism measures to provide security agencies the resources and legislative powers needed to combat terrorism, whether within Australia or carried out by Australians overseas.


Aug 28, 2014 2:42:00 PM / by Dr Tim Smyth posted in Health, Aged Care & Life Sciences

An Options Paper released by the Department of Social Services last month confirms the government’s intention to abolish the Australian Charities and Not-for-profits Commission (ACNC), returning some of the regulatory functions to the ATO and ASIC and supporting a self-reporting public accountability framework. The submission period for comments on the July Options Paper (1), closed on 20 August 2014.


Aug 28, 2014 11:27:00 AM / by Grant Hansen posted in Intellectual Property Protection

Intellectual property rights include patents, trade marks and copyright. The Copyright Act 1968 (Cth) grants exclusive rights in the copyright owner, including the right to use, reproduce and publish works. Copyright exists in original works, such as computer programs.


Aug 28, 2014 11:20:00 AM / by Robin Young posted in Workplace Relations

Two recent judgments of the Full Federal Court and Federal Circuit Court have resulted in awards of significant damages to employees in cases involving claims of sexual harassment, discrimination and adverse action (Richardson v Oracle Corporation Australia Pty Ltd; Sagona v R & C Piccoli).


Aug 28, 2014 11:18:00 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

 

It is well-established that an individual’s consent is always required before treatment is rendered. In the absence of obtaining the individual’s consent, the treating practitioner may be held liable for trespass to person, assault or battery (1).


Aug 28, 2014 11:10:00 AM / by Zara Officer posted in Insurance

Zara Officer, Special Counsel and Vahini Chetty, Associate - See more at: http://www.holmanwebb.com.au/publications/what-is-your-duty-of-care-with-clinical-trials-of-innovative-techniques-and-therapeutic-goods#sthash.nGUyAzYf.dpuf

Mrs Paul underwent a scan to determine whether she had a berry aneurysm in 2003, which her radiologist, Dr Cooke failed to diagnose at the time. In 2006, Mrs Paul underwent a further scan in which the aneurysm was detected.


Aug 14, 2014 2:53:00 PM / by John Van de Poll posted in Insurance

This year's AICLA-ANZIIF Claims Convention program examined the changing nature of the insurance claims business.  The conference covered a variety of issues including business development, offshoring, cyber security, fraud, professional privilege and how social media will change the claims sector.

John Van de Poll, Insurance Partner at Holman Webb Lawyers presented on Privilege, How do you get it, how do you lose it?

Click here to view the presentation paper. 


Aug 1, 2014 3:40:00 PM / by Tal Williams posted in Business Corporate & Commercial

The Personal Property Securities Act 2009 (PPSA) required a review of the operations of the Act to be undertaken within 3 years of its implementation.  The review recognised that there were various aspects of the legislation that would need time to work their way into the corporate consciousness of Australian businesses and an assessment of industry understanding of the PPSA was an appropriate mechanism to ensure compliance and ongoing protection.


Disclosure documents need to be updated annually and businesses must provide their current information by the end of October 2013. While many franchisors tend to wait until the last minute to finalise the update, in 2013, there are a few issues to be aware of - which could mean you start this job earlier than usual.

In 2010 there were a number of changes made to the format of the franchising disclosure document, including some new sections to be completed, commencing from 1 July 2013.
Jul 8, 2014 2:58:00 PM / by Tal Williams posted in Business Corporate & Commercial

Authors: Tal Williams, Partner and Joann Yap, Solicitor
July 2014

The High Court’s recent decision in Sidhu v Van Dyke means that if you have relied on a promise and the other party has resiled from that promise to your detriment, you will need to prove that you relied on that promise and suffered a loss as a result.


Jul 7, 2014 3:03:00 PM / by Peter Bennett posted in Insurance

Two recent decisions of the Federal Court and the New South Wales Supreme Court can be of assistance to insurers to avoid providing certain documents to opponents. Some correspondence with witnesses, including expert witnesses, and drafts of reports and statements do not have to be produced if legal professional privilege applies to the documents (i.e. if the documents were created for the dominant purpose of a lawyer providing legal advice or for the purpose of litigation).


Jul 7, 2014 3:00:00 PM / by Corinne Attard posted in Franchising & Retail

In the United States, the issue of the competition between ‘bricks and mortar’ retail franchises and the online channel conducted by the franchisor has taken front place as the new form of “encroachment” claim made by franchisees in recent years.  In Australia our mandatory franchise disclosure document under the Franchising Code of Conduct requires prior disclosure to a franchisee of information relating to the franchise “territory”, but it refers to a physical geographic territory only and does not address encroachment through alternative channels of distribution, such as e-commerce.  This has been remedied with the proposed new form of disclosure document due for commencement from 1 January 2015.  (Note the new form is not law yet).


Jun 27, 2014 3:17:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences
Introduction

Advance care directives, also known as living wills or advance care planning, enable a person over the age of 18, who is mentally competent, to express their wishes in relation to future medical care and treatment.


Jun 25, 2014 3:07:00 PM / by Corinne Attard posted in Franchising & Retail

There has been some recent speculation amongst franchise lawyers about the potential impact of the recent Federal Court appeal decision in the case of Spar Licensing Pty Ltd v MIS Qld Pty Ltd (1 May 2014) on the practice of giving disclosure documents to prospective franchisees.  The decision raises some doubts about when to update the disclosure document.


Jun 24, 2014 3:18:00 PM / by Robin Young posted in Workplace Relations
Who is an employee?

An employee performs work under the ‘control’ of another person in exchange for payment for the services he or she provides. A contract of employment may be express or implied, oral or in writing, but preferably in writing.The High Court of Australia in the leading case of Hollis v Vabu Pty Limited (2001) 207 CLR 21 adopted a ‘multi-facet test.Indicators of an employment relationship include:


May 26, 2014 3:48:00 PM / by Alison Choy Flannigan posted in Business Corporate & Commercial

Australian privacy rights are regulated by Commonwealth State and Territory legislation and the laws protecting confidential information under the common law. Australian privacy laws govern the collection, use and disclosure of “personal information”.

Individuals have a right of access and correction of their own personal information. There are also data security, data quality and cross-border transborder data flow requirements.


May 26, 2014 3:20:00 PM / by John Van de Poll posted in Insurance

In the recent case of McKenna v Hunter & New  England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476, the New South Wales Court of Appeal held that a hospital and the health district was liable to the family members of a man who was murdered by one of its patients.


2013 saw the legislative and regulatory environment for charities significantly changed. 2014 looks like being a repeat, but in the opposite direction. The government has confirmed its intention to abolish the Australian Charities and Not-for-profit Commission (ACNC) and to return to the common law definition of charity of the purposes of Commonwealth laws.


May 23, 2014 3:50:00 PM / by Corinne Attard posted in Franchising & Retail

The new Franchising Code changes appear to have hit a Constitutional bump in the road.  Those familiar with the movie ‘The Castle’ will recall that section 51(xxxi) says:


May 16, 2014 4:23:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Welcome to the May 2014 edition of the Holman Webb Health Law Bulletin.


Apr 16, 2014 3:56:00 PM / by Tal Williams posted in Business Corporate & Commercial

If your business or organisation has a turnover greater than 3 million per year the significant changes that were made to the Australian Privacy Act on 12 March 2014 are likely to apply to your organisation. A compliance program should be implemented to ensure any personal information that is used or disclosed by the organisation is appropriately protected.

Apr 14, 2014 3:59:00 PM / by Robin Young posted in Workplace Relations

A decision of the Industrial Court of NSW has reiterated the need for labour hire employers to take a proactive approach to ensuring the safety of workers when lent on assignment to host employers (Inspector McGrath v Edmen Recruitment Pty Ltd [2012] NSWIRComm 108).  

Apr 7, 2014 4:04:00 PM / by Julia Brabant posted in
Click here to read Julia Brabant and Uma Kotecha's overview of the recent changes.
Click here to read Julia Brabant and Uma Kotecha's overview of the recent changes. - See more at: http://www.holmanwebb.com.au/publications/the-insurance-contracts-act-an-overview-of-recent-changes#sthash.GSkz3Q0b.dpuf

Apr 2, 2014 4:01:00 PM / by Corinne Attard posted in Franchising & Retail

The Australian Government has released the draft new Franchising Code of Conduct for review (and yet more feedback).  The Minister for Small Business says the government wants to “promote growth in the sector, reduce red tape and make sure that all participants in the industry follow best practice principles”.  Does it do that?  Let’s look at the major changes:


Mar 16, 2014 2:40:00 PM / by Tim Trezise posted in Workplace Relations
Tim Trezise recently presented a paper at the Employment Law Essentials seminar at the New South Wales Law Society. The paper canvassed the growing issue of the standard of proof required to make defensible findings in workplace investigations. This has become a hot topic following a recent case that significantly broadened the scope of the level of proof required in such endeavours.

Please click here for a copy of the paper.

Mar 12, 2014 3:38:00 PM / by Tal Williams posted in

If your business collects, uses or discloses personal information, maintains a client or customer database or uses a cloud computer system, changes to the laws that commenced on 12 March 2014 are relevant to you.

Ignore them at your peril because the penalties for breaches have been significantly increased up to $1,700,000 for businesses and $340,000 for individuals.


Mar 3, 2014 4:13:00 PM / by Colin Hall posted in Insurance

 

Colin Hall, Partner at Holman Webb Lawyers acted as the instructing solicitor for the respondent at trial and in the appeal.


Jan 28, 2014 4:21:00 PM / by John Van de Poll posted in Insurance

In a recent case (470 St Kilda Road Pty Ltd v Robinson [2013] FCA 1420), the Federal Court ruled against an insurer that sought to rely on a professional services exclusion in a D&O Policy to deny indemnity.


Dec 13, 2013 4:33:00 PM / by Dr Tim Smyth posted in Health, Aged Care & Life Sciences Insurance

FEBRUARY 2015 - UPDATE:Please note that this case has been the subject of a successful appeal by Dr Dekker to the WA Supreme Court. Readers should review a report on this appeal in the February 2015 issue of the Holman Webb Law Bulletin  

A recent finding of the State Administrative Tribunal of Western Australia[1] has sparked debate amongst Australian doctors and brought into focus the wide scope of what might constitute “improper or infamous” conduct by a registered medical practitioner.

The Medical Board of Australia alleged that Dr Leila Dekker was guilty of infamous or improper conduct when she did not stop and try to render assistance following a near miss accident involving her vehicle and another vehicle near Roebourne in North Western Australia. It was night time and Dr Dekker and her passenger were returning from a local tip on a side road and narrowly avoided a collision at a T intersection with the other vehicle travelling on the North West Coastal Highway.


Dec 2, 2013 4:40:00 PM / by Rachael Sutton posted in Food Law Insurance
Late last year the NSW Government implemented its reform of directors' liability creating new offences of executive liability which took effect earlier this year. 

The Miscellaneous Acts Amendment (Directors' Liability) Act 2012, applies to all legislation which contains director and manager liability provisions in NSW (except Work Health and Safety), by reducing the number and severity of provisions which make directors and managers liable for the offences of the corporation.


Nov 8, 2013 4:41:00 PM / by John Van de Poll posted in Insurance


Authors: John Van de Poll, Partner and Uma Kotecha, Lawyer (qualified England and Wales)   - See more at: http://www.holmanwebb.com.au/publications/a-new-era-for-the-insurance-contracts-act#sthash.HrrYPEzn.dpufJohn Van de Poll, Partner and Uma Kotecha, Lawyer (qualified England and Wales)

Oct 21, 2013 4:42:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

 

As part of the 2010/11 Federal budget, the Government announced a $466.7 million investment over two years for a national Personally Controlled Electronic Health Record (PCEHR) system for all Australians who choose to register on-line, from 2012-2013. This initiative has the potential to be a revolutionary step for Australian health care, in terms of both consumer's access to their own health information and improvement in information which will be available to health professionals when they treat a patient.


Oct 21, 2013 4:29:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Like the US, Australia is experiencing the proliferation of mobile medical apps (software applications that can be executed on a mobile platform) which seek to provide a number of functionalities, many of which operate between traditional disease management and health and wellness. Some of these new apps assist consumers with their health and wellness management, whilst others provide healthcare providers with tools to improve and facilitate the delivery of patient care.


Sep 27, 2013 4:45:00 PM / by Peter Bennett posted in Insurance Property

 

The Owners  Strata Plan 61288 v Brookfield Australia Investments (New South Wales Court of Appeal, 25 September 2013)


Sep 25, 2013 4:47:00 PM / by Tal Williams posted in Business Corporate & Commercial

In the 2012-13 financial year, the Compliance Branch of the Office of the Australian Information Commissioner (OAIC) received 1496 privacy complaints, and increase of 10% over the 1357 received in 2011-12. In addition, the OAIC dealt with 13 own motion investigations and 61 voluntary data breach notifications. Here is one case (misuse of a mobile phone number by a bank to direct market a bank related insurance product) that may be of interest…

The case was based on an alleged breach by the bank where it used or disclosed personal information about an individual for a purpose other than the primary purpose of collection.


Sep 25, 2013 4:43:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

 

Australia privacy rights are regulated by Commonwealth and State legislation and the laws protecting confidential information under the common law.


Sep 24, 2013 10:58:00 AM / by John Van de Poll posted in Insurance

The Insurance Contracts Act (ICA) has been described as one of the most significant and comprehensive pieces of consumer protection legislation ever enacted in Australia. Fundamental changes have recently been introduced, but it has also left matters silent on other fronts. The various provisions begin at different times between 28 June 2013 and December 2015, in order to allow insurers some time to amend their internal policies and procedures to take account of the new changes, many of which apply to general commercial policies. The majority of the provisions also only apply if the policy is entered into after the provision has commenced. It is imperative that brokers and underwriters are made aware of these changes.


Sep 23, 2013 11:40:00 AM / by Tal Williams posted in Business Corporate & Commercial

From the start of the new year  there are to be more changes to the Privacy Act 1988 which could be relevant to you and your business. You will need to consider your own privacy compliance arrangements to make sure they don’t leave you at risk.


Sep 23, 2013 11:35:00 AM / by Peter Bennett posted in Insurance Property

The NSW Court of Appeal has decided that a breach of section 62 of the Strata Schemes Management Act 1996 (the mandatory obligation for a strata plan to maintain the common property) does not give rise to an action for damages for breach of its statutory duty.


 

The Privacy Act changes commence in March 2014.  If your credit application, privacy policy or terms and conditions of trade do not property take the new amendments into account you may find yourself in danger of breaching the new Act. The changes imposed new credit reporting provisions and adds enforcement powers to the privacy Commissioner.  The new principles are called the Australian Privacy Principles intended to be harmonised across government and business.  They replace the existing Information Privacy Principles that apply to government and the National Privacy Principles that currently apply to business.


Sep 17, 2013 3:46:00 PM / by Rachael Sutton posted in Workplace Relations

It is no longer certain that an employee injured on a journey between home and work will receive  worker’s compensation benefits.


Quite frequently business owners who have decided to enter into various arrangements for the distribution or licensing of their goods or services discover that the agreement reached is in law a “franchise agreement” and that they have unwittingly become a franchisor subject to additional regulation and obligations. If an agreement is a “franchise agreement” then there are certain legal requirements including mandatory disclosure prior to the grant of the franchise, procedures for transfer and termination and resolution of disputes.


Sep 9, 2013 11:37:00 AM / by Jonathan Casson posted in Business Corporate & Commercial

What must you do when a contract requires you to use “best endeavours”, “reasonable endeavours” or “all reasonable endeavours”?  Are your contractual obligations for “best endeavours” or “best reasonable endeavours” higher than those for “reasonable endeavours”?

This is a vexed question and one that Courts over the world have dealt with.  The Australian position is more flexible than the position in the UK.  The 2012 decision in Australia has watered down the strict distinctions between “best endeavours”, “best reasonable endeavours” and “reasonable endeavours”.  Recommendations on how our clients should deal with these vagaries in order to protect their position are addressed at the end of this article.


Sep 9, 2013 11:36:00 AM / by Tal Williams posted in Business Corporate & Commercial

A US Judge has found that organisations who use images posted on Twitter for commercial purposes will infringe the copyright of the owner of those photographs.


Aug 28, 2013 12:38:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Our health, aged care and life sciences team discuss a range of topical health, life sciences, medico-legal, aged care and retirement living, social media, privacy, franchising and employment issues. To read the latest copy of the Health Law Bulletin, click here.


 

When the word franchising is mentioned, most readers of the Health Law Bulletin think of fast food chains, home maintenance and retailing. What does it have to do with health, aged care and community services? 


Aug 14, 2013 11:32:00 AM / by Rachael Sutton posted in Workplace Relations

Amendments to the Fair Work Act 2009 (Cth) (Fair Work Act) give the Fair Work Commission jurisdiction over complaints of bullying in workplaces covered by the Fair Work Act. Previously, bullying could only be raised as an example of conduct that may breach adverse action provisions of the Fair Work Act or unfair dismissal laws. The amendments commence on 1 January 2014, six months later than originally proposed. Click here to read more.


Aug 14, 2013 11:01:00 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Hospital operators, invest in expensive medical equipment, such as linear accelerators. The recent case of Re Cancer Care Institute of Australia Pty Limited [2013] NSWSC 37 highlights the issue of protecting ownership in medical equipment.


NEWS - Holman Webb appointed to the Commonwealth preapproved Law Firms List

Making further external recognition of Holman Webb’s legal expertise, we are pleased to advise of our recent inclusion in the Commonwealth Government’s Legal Services Multi-User List. All Commonwealth Government departments and agencies (other than Commonwealth companies and government business enterprises) are required to use the law firms included on this list for their external legal services from 1 July 2013.


Jul 19, 2013 11:07:00 AM / by John Van de Poll posted in Insurance

Summary of article by UK legal academic Gerald Swaby entitled “Blurring distinctions: Should innocent insureds be tarred with the same brush as their fraudulent agents? (Insurance Law Journal April 2013 Vol 24 No. 1).

A husband and wife go through an acrimonious separation. One spouse acts violently against the other by burning the house down. Should the victim forfeit his/her insurance claim?

In his recent article, Gerald Swaby argues that the victim should not forfeit her claim in this situation. There have been a number of cases, where the husband and wife hold a joint policy and one party (frequently, the husband) commits a fraudulent act. The wife then makes a claim on the insurance policy. This begs the question – should she be indemnified either in full, or in part, under the policy?


Jul 11, 2013 10:19:00 AM / by John Van de Poll posted in Insurance
Mandatory notification has been in place for three years now, and, if we look beyond the encouraging rhetoric about improving patient safety, the scheme has kicked up some surprises, including last year's 40 per cent surge nationally in the number of reports made, which, the Australian Health Practitioner Regulation Authority (AHPRA) has, so far, been unable to explain.

While the increase might encourage belief in the scheme fulfilling its goals of ensuring patient safety, we should aslo bear in mind that the rise also increases the chances that health practitioners, who take the serious step of making a report, may face legal action when they do so. If we drill down into the 40 per cent increase, we find that the most significant contribution comes from Queensland where the number of reports has almost tripled, rising from 85 to 220.
Jul 2, 2013 4:27:00 PM / by Robin Young posted in Workplace Relations
Levels of Support

The Scheme does not provide income replacement benefits, such as a disability pension or weekly compensation entitlement, but may fund supports, such as:


Jun 21, 2013 4:26:00 PM / by John Van de Poll posted in Insurance
Does a plaintiff’s grandmother owe her grandchild a duty of care? In the case of Hoffman v Boland (2013) NSWCA 158, the NSW Court of Appeal was split as to whether a duty of care arose in the circumstances of a domestic situation involving permanent injury to an infant - but the Court agreed after a lengthy opinion that there had been no breach and overturned the primary Judge's decison.

Reverend Hoffman was staying at her brother’s holiday home with family, including her daughter and infant granddaughter, Molly. On the morning of the incident in 2006, Molly awoke crying at around 5 am. Reverend Hoffman offered to assist her daughter, who agreed, by carrying Molly down the stairs. As Reverend Hoffman descended the stairs, she fell, causing serious and permanent injury to Molly. Molly, by her father as “tutor” in the proceedings, sued Reverend Hoffman for damages for personal injury - and the Reverend was found liable by the primary Judge.


Just one month from the publication of the report of Mr Alan Wein with respect to his review of the Franchising Code of Conduct, the Government’s consultation  paper was released to industry for comment on June 17.

The original report contained 18 recommendations for government with respect to proposed changes to regulation of the franchising industry.

The Government is now seeking industry response with respect to each of the recommendations and whether to implement these recommendations or to select another option, including leaving the Code unchanged.

The Consultation Paper does not provide extensive draft legislation or go much beyond summarising what was stated in Mr Wein’s report.
 
A Template Response Submissions Form is available for anyone interested in lodging a response with respect to each of the recommendations (E.g. keep existing Code provision, implement recommendation or prefer another option).  Provision has been made for any extended comments and a number of discussion questions listed for each recommendation.

Respondents are generally asked to consider whether the identified problem would be best addressed by a change in the Code or further education, what costs may be incurred if an option is implemented, whether there are any specific advantages or disadvantages  to one option or another and if they can see any unintended consequences that would arise from implementing an option. Respondents are also asked to advise if they can suggest another option to achieve the policy intent behind the recommendation.

It would seem therefore that we have some time to wait before we see any changes to the Code. Any draft amendments that arise could be further delayed or even scrapped due to the Federal election which seems, at this stage, likely to lead to a change in Government.

The consultation paper and the template response can be found at: http://www.innovation.gov.au/SmallBusiness/CodesOfConduct/Pages/2013-Review-of-the-Franchising-Code-of-Conduct.aspx

It is possible to send an anonymous submission. The closing date for submissions is Tuesday 9 July 2013.


May 28, 2013 3:59:00 PM / by Tal Williams posted in Business Corporate & Commercial

Late, in 2012, the Supreme Court had to consider how to deal with a company whose shareholders were in dispute.  One of the shareholders had sought orders requiring the resignation of certain directors of the company, made assertions regarding oppression and demanded that a receiver be appointed to the assets of the company.

The company owned land in Holroyd and the two groups of shareholders held equal rights in respect of the company. One of the shareholders had offered to leave on the basis that the others acquired the shares, but those negotiations also broke down. It was apparent to the Court that the company was dysfunctional and in a state of deadlock.

Both parties indicated to the Court that they considered liquidation of the company to be a last resort only. The Court also noted that that it is well recognised that the liquidation of an insolvent company – as a remedy – is a remedy of last resort.


May 28, 2013 3:54:00 PM / by Tal Williams posted in Business Corporate & Commercial

In our previous article ‘Proposed New Developments in Electronic Contracts: Web Page Advertisements and E-mails’  we dealt with a number of updates to Australia’s electronic transaction regime including default rules to determine the time that the law will deem an email to be sent and received.

In addition to these changes, a safeguard providing a right to withdraw an email or online communication (where an input error occurs in a portion of an electronic communication) has been implemented, the recognition as to when an electronic signature will be legally effective has been broadened and the relationship concerning intermediaries such as web hosts has been clarified, along with default rules that have been formally passed into law to determine the place of dispatch and receipt of electronic communications.


May 27, 2013 3:57:00 PM / by Tal Williams posted in Business Corporate & Commercial

London's  Technology and Construction Court has recently found that a company did not own the emails of its former Chief Executive Office, even though they were work related.

The case turned on its own facts, one of which involved the senior executive sending and receiving company emails using private or non corporate accounts and servers.

The physical storage of the emails was what caused the problem.  At a practical level, the emails were not on the employer’s servers.  Some had been sent using the executive’s private account (and therefore held on external third party servers), others had been sent from a work server, but copied to the personal server and, thereafter, deleted from the employer’s server.


In mid-June Alan Wein’s report of the latest Federal Government review of the Franchising Code of Conduct was published containing 18 recommendations for Government with respect to changes to regulation of the franchising industry.

Two major issues, which have been the subject of much debate in the sector, are the calls for a good faith obligation in franchising and the rights and obligations at the end of the franchise term.

The report’s recommendation is to incorporate the common law duty of good faith into the Code, rather than inserting a specific definition of good faith. This reflects the shift in attitude of the Franchise Council of Australia – a key stakeholder – to the concept of the duty of good faith being incorporated into the Code. Such a duty would apply to both parties, but would not prevent a party from acting in its legitimate commercial interests.


May 24, 2013 3:54:00 PM / by John Van de Poll posted in Insurance
Unlike the Bible, when David takes on Goliath in the real world, Goliath almost always wins. Not any more. Enter the new species of litigation – the class action and the litigation funder. As we become more risk averse to litigation, yet continue to live in an age of consumerism where goods and services are mass produced, the idea of an army of Davids is emerging.

Class actions are a species of litigation emanating from the US, where individuals joined together to take legal action against a company or Government. They are becoming more common in Australia, especially following tort reforms in 2002 and are referred to as ‘representative proceedings’ which can be brought by virtue of the Representative Group Proceedings Act 1991.

There are three threshold requirements. Firstly, seven or more persons must claim against the same defendant. Secondly, claims must arise from related circumstances and thirdly, there must be a substantial common issue of law or fact.


May 23, 2013 3:52:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Our health, aged care and life sciences team discuss a range of topical health, life sciences, medico-legal, retirement living and aged care, not-for-profit, social media, privacy and employment issues. To read the latest copy of the Health Law Bulletin, click here.


Apr 10, 2013 3:51:00 PM / by Peter Bennett posted in Insurance
Chand v Zurich Insurance

In a judgment handed down in the NSW Supreme Court, the Court was asked to determine whether an action for recovery of repair costs may be sought by an insurer, under its right of subrogation, after the settlement of recovery of rental car costs had been already finalised by consent judgment.

Adams J determined that there can be no splitting of actions for the recovery of repair costs and the recovery of rental costs, rather judgment for the first claim will preclude the second claim unless the defendant was aware of both claims at the time of the first settlement - as per the ‘Morganite’ principle.


Apr 2, 2013 3:49:00 PM / by Robin Young posted in Workplace Relations

Sexual harassment is an all too common and lamentable act that can damage an employer’s credibility and, to a degree, destabilises an organisation’s commercial goals. A recent case involving a software company and a consulting manager employed there, highlights the absolute importance of giving due attention to detail in policies, as the company was ultimately held responsible for an employee’s conduct because it failed to clearly state that sexual harassment is unlawful.


Apr 2, 2013 3:47:00 PM / by Robin Young posted in Workplace Relations

Finding a competitive edge over rival organisations is essential to any organisation’s success - and the loss of sensitive information used to achieve that advantage can severely damage a business.


Apr 2, 2013 3:41:00 PM / by Tal Williams posted in Business Corporate & Commercial

The introduction of tablets, smart phones and other mobile devices is driving down the use of personal computers and printers and making life tough for businesses who service these peripherals. For two rival distributors of printer cartridges the increased competition in a declining market has made it all the way to the Federal Court in a case involving a copyright breach when one of the distributors made use of material from its competitor’s website.


Feb 7, 2013 2:11:00 PM / by Simon Rigby posted in Dispute Resolution

The ACCC had claimed that sponsored links displayed by Google between 2005 and 2008 had conveyed misleading and deceptive representations.  The case involved searches using keywords such as Harvey World Travel and Honda, which were redirected to competitors websites.


Treasury has announced that implementation of the unrelated commercial activities tax will be further delayed to 1 July 2014.  The tax remains retrospective for those unrelated commercial activities that commenced after 7:30 PM on 10 May 2011, subject to passing the enabling legislation.  This leaves charities with uncertainty regarding the tax status of their commercial activities.


Jan 24, 2013 2:04:00 PM / by Grant Hansen posted in

Cloud computing is already a big part of our lives; though, often, we don’t realise we are using it. Partly, no doubt, that is the intention. The name itself encourages fuzzy thinking and its users are blissfully unaware of what lies behind the image on the screen.

Cloud computing has been around, as an idea, for decades – since the 1950s, in fact – and has been used widely in practical popular services such as Hotmail, Facebook, YouTube, Gmail and Dropbox for many years now. By definition, a cloud computing service is any service that allows you to load information into a cyber locker that is located elsewhere from the computing hardware you operate.


Jan 24, 2013 12:59:00 PM / by Tal Williams posted in Business Corporate & Commercial

A good general manager is an asset to any organisation.  They will keep the Board apprised of any changes, will be proactive and will implement the directions provided by the Board in an efficient and timely manner.  Boards can sometimes, however, place too much reliance upon that person and detailed systems of checks and balances, specific authority limits and close monitoring are essential at all times.


Sep 6, 2012 11:58:00 AM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences

Articles on managing "difficult employees, an update on the Patel case, guidance on causation under the Civil Liability Act, practical transitional issues of the National Health Reform and an update on the Clinical Trial Reform in Australia.


Jun 26, 2012 12:01:00 PM / by Alison Choy Flannigan posted in Health, Aged Care & Life Sciences
Articles on Medico-Legal, regulation of health professionals, the not-for-profit reform, the personally controlled electronic health records, aged care and the proposed new code of practice on workplace bullying.

Articles on Health, Medico-Legal, Life Sciences, Retirement Living and Aged Care plus Workplace Safety law and a Food Safety Update of Hospitals and Aged Care Facilities.


Aug 31, 2011 9:29:00 AM / by Krystiana Conomos posted in Commercial Recovery & Insolvency

Implementation of the Personal Property Securities Act 2009 (PPSA) was set to commence on 31 October 2011. However, there is a degree of uncertainity as to the commencement date due to some difficulties which were encountered during the User Acceptance Testing of the web interface. In the meantime, it is important that businesses consider what steps they need to take to ensure they are ready.


Jan 31, 2011 12:33:00 PM / by Tal Williams posted in Business Corporate & Commercial

A recent matter before the Federal Court has highlighted the difficulties that shareholders may have in accessing the accounts and books of a company in which they hold a material interest. The lesson to be learnt from the following case is that the terms of access to the books and accounts of a company should be made clear in a shareholders agreement. If it is the intention of the parties to allow shareholders access to the relevant material that right should be established as an unfettered right rather than one conditional upon further action, conduct or approval by the Board.


Jan 31, 2011 9:58:00 AM / by Robin Young posted in Business Corporate & Commercial

The Paid Parental Leave Scheme (“PPL”) commenced on 1 January 2011 in accordance with the provisions of the Paid Parental Leave Act 2010. New parents who are primary carers of children born or adopted after this date are eligible to apply for the PPL payments. Such entitlements are available to all categories of employees, including casuals and may apply to contractors in certain circumstances.

The PPL operates in conjunction with any current entitlement that an employer provides to its employees under its employment contracts or policies.


Jan 31, 2011 9:45:00 AM / by Jonathan Casson posted in Business Corporate & Commercial

The James Hardie case stems from proceedings brought by ASIC against former James Hardie Industries Limited Directors in relation to approval of a draft ASX Announcement at a Board meeting. The announcement was found to be misleading in relation to the ability to meet the claims of asbestos victims. Trial judge, Gazell J held that the Directors breached their statutory duty in approving the Announcement. The Directors were ordered to pay $30,000 in pecuniary penalties and were prohibited from managing corporations for five years.


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