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

Case Note: Lynch v AAI Limited t/as AAMI [2022] NSW PICMP 6

Important takeaways from the decision in Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6:

  • A diagnosis of an Adjustment Disorder cannot be made if the stress related disturbance meets the criteria for another mental disorder. 
  • A psychiatric diagnosis in remission may be found to be a non-minor injury.
  • The Claimant bears the onus of establishing that their injury is a non-minor injury.

How workers can avoid statutory limits on damages: Employers have real risks of uncapped damages, but SIRA/ICARE policies may still respond (Leggett v Hawkesbury Race Club Limited (No 4) [2022] FCA 622)

The 30 May 2022 decision in Leggett v Hawkesbury Race Club Limited (No 4) [2022] FCA 622, handed down by a single Judge in the Federal Court of Australia, has highlighted numerous issues which give pause for thought – specifically regarding how employers should manage their risk, and how injured workers should bring claims for damages for personal injury.

Where an employer is exposed to damages for breach of provisions of the Fair Work Act 2009 or other Commonwealth legislation (such as anti-discrimination law, as well as in negligence), the Federal Court is not restricted in the way it assesses damages by the limitations in the NSW Workers Compensation Act 1987.

With this in mind, employers within the NSW workers compensation scheme may be entitled to indemnity from Icare and SIRA if the breach of the Fair Work Act 2009 arises from an “injury” to the worker. 

The Court has made it clear though, that a worker cannot double dip - and must account for any state compensation received

Silent Death: Carbon Monoxide Poisoning - A Warning for Occupiers, Landlords, Boaties and Drivers

Carbon monoxide (CO) is an odourless, colourless gas produced by combustion of hydrocarbon fuels. The toxic fume takes the place of oxygen in the blood, leading to headaches, drowsiness, irritability, reduced judgment and motor skills, convulsions, coma and death.

Between 2011 and 2016 there were 15 deaths attributed to gas and solid fuel appliances in Australia, and in the 12 months between 2018-2019 there were 256 hospitalisations due to accidental poisoning from Carbon monoxide.

Concerningly, Carbon monoxide poisoning is becoming increasingly common. A recent study has found that Carbon monoxide contributed to the death of 28 people between 2006-2018, when drivers unintentionally filled their homes with toxic fumes by leaving their keyless cars parked and running in their garages.

Carbon monoxide is particularly deadly in confined spaces such as cars, boats and caravans.

Upcoming CTP Insurance Webinar: Understanding Minor/Non-Minor Injuries and Key Concepts for Disputes
Monday 6 June 2022 posted in Insurance CTP Insurance

We are pleased to invite readers to join Holman Webb's Insurance Group for our upcoming webinar: 'Understanding minor/non-minor injuries and key concepts for disputes'.

Presented by CTP Insurance Partner Stephanie Davis and taking place on Thursday 16 June 2022, this webinar will provide an overview of how the Motor Accident Injuries Act 2017, Motor Accident Injuries Regulation 2017 and the Motor Accidents Guidelines work together to define minor injuries and the procedure for assessment of Minor Injury Disputes.

The webinar will also focus on some of the recent Review Panel Decisions on Minor Injury Disputes. It will provide valuable insight into how the PIC has addressed these Disputes, making it easier to determine whether an injured person has sustained minor or non-minor injuries for the purpose of your liability decisions. 

Strategies to reduce risk with the right contract terms and conditions

As all credit professionals know - credit, cashflow and collections all work together to protect the lifeblood of many businesses.  Without a proper functioning credit team, businesses run the risk of significant impacts on ongoing profitability and viability. 

Unfortunately, risk is an unavoidable part of the credit function. 

With this in mind, this article from Commercial Recovery and Insolvency Partner Chris Hadley and Special Counsel Andrew Tanna highlights how carefully considered credit terms can help to mitigate risk and provide safeguards to your business.

This piece was originally published in the Australian Institute of Credit Management's 2022 Risk Report published 30 May 2022).

Key Stamp Duty Changes for Grant of a Put Option and/or Call Option Have Commenced

Revenue NSW has announced the following:

“From 19 May 2022, section 8(1)(b)(ix) of the Duties Act 1997 introduced duty on certain transactions that result in a change in beneficial ownership.

A put option and/or call option granted over dutiable property in NSW (such as over land or an interest in land) is a ‘change in beneficial ownership’. This means that duty is payable on any grant fee paid for a put and/or call option entered into from this date."

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Unconscionability in Provision of Financial Services

The recent Federal Court of Australia decision in Australia Securities and Investments Commission v Westpac Banking Corporation (Omnibus) [2022] SCA 515, in which Westpac was penalised an amount in excess of $113M, was informative in respect of the way that the Court will proceed in assessing the conduct of financial service providers.

This article is not intended to traverse all the matters considered in that case, but will instead discuss the way the Federal Court approaches issues of unconscionability in the provision of financial services and products, in light of the principles in section 12CC of the Australian Securities and Investments Commissions Act 2001.

Case Note Update: Qantas Airways Limited v Transport Workers’ Union Australia [2022] FCAFC 71

In August 2021, Holman Webb published an article highlighting the decision in Transport Workers Union of Australia v Qantas Airways Limited [2021] FCA 873, in which a single Judge of the Federal Court of Australia found that Qantas had engaged in adverse action in contravention of the Fair Work Act 2009, in deciding to make its ‘below the wing’ staff redundant.

Case Note: Transport Workers Union of Australia v Qantas Airways Limited 2021 FCA 873

The Trial Judge found that Qantas could not prove a negative - that the substantive and operative cause of the airline’s decision to make the staff redundant was not to prevent the workers exercising a workplace right. The workplace right was identified as the ability to negotiate a new Enterprise Bargaining Agreement in the 6 months following the redundancy. 

Qantas appealed that decision, and the appeal has now been determined.  The Full Court of the Federal Court delivered its judgment in the matter of Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 on 4 May 2022, dismissing the Appeal. 

Ignore Cyber Protection – Pay the Price: Australian Securities and Investments Commission v RI Advice Group Pty Ltd [2022] FCA 496

It has happened: a company that failed to implement proper cyber security measures in Australia has been taken to court by the regulators, with the company ordered to pay costs of $750,000.

In the matter of the Australian Securities and Investments Commission v RI Advice Group Pty Ltd [2022] FCA 496, the Court found that a financial services provider had breached its licence obligations, and failed to act efficiently or fairly by not having in place adequate risk management systems to cater for risks arising in relation to cyber security.

Trade Creditors - How to Prepare for an Insolvency Uptick

The pandemic has significantly impacted the way in which a trade creditor will interact with its customers, particularly when it comes to demanding payment from them. In many cases, a credit officer will do his or her job well by working with those customers who have been experiencing financial difficulty and collecting payment, including by way of instalments over time.

Conversely, up until recently, the ATO’s collection activity has been almost non-existent since the pandemic began in 2020. Around early April 2022, the ATO wrote to over 50,000 directors giving them 21 days’ notice to pay their tax liabilities, failing which a Director Penalty Notices may be issued.

This has been seen as a ‘warning letter’ on the part of the ATO.

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