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).

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).

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.

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.

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.

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.

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.

Mr Pettigrove suffered from a lengthy history of mental illness including depression, psychosis and chronic paranoid schizophrenia. In the early hours of 20 July 2004, Mr Pettigrove’s friend, Mr Rose, became concerned about his mental state and arranged for him to be taken by ambulance to Manning Base Hospital (the Hospital) in New South Wales. The principal cause of Mr Rose’s concern was that his friend was experiencing what he described to be “physical jerks”.

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”.

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:

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

The amendments to the Privacy Act 1988 (Cth) commenced on 12 March 2014, which are applicable to Commonwealth Government agencies and the private health sector. Ignore them at your peril because the penalties for breaches have significantly increased up to $1,700,000 for businesses and $340,000 for individuals.