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? 

Quite a lot it turns out from talking to Corinne Attard, who has recently joined Holman Webb in our Sydney office as a commercial partner specialising in franchising. Click here to read more.

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.

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?

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.The increase is even more troubling because health practitioners making mandatory reports about colleagues are not absolutely protected from defamation. Put simply, doctors reporting colleagues, and members of the public reporting health practitioners, can be sued for defamation.

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:

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 decision.

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.

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.

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.

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.

Access to emails is often an important management tool, which facilitates good and proper administration, in relation to the affairs of a business, but, also, is important in corporate negotiations and, potentially, disciplinary matters.  In those circumstances, it is important to ensure that emails of a work nature are sent and received using company facilities and not by utilising private or non corporate accounts and servers.