Litigation and Dispute Resolution
27th March 2013
By Andrew Floro, Catherine Ellis
In TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia  HCA 5 (13 March 2013), the High Court has confirmed that arbitral awards are final, and can be enforced in the Federal Court of Australia.
6th February 2013
By Colleen Platford, Andrew Floro
The High Court of Australia has found that Google is not responsible for the content of third party ads displayed on its search results pages.
17th January 2013
By Crispian Lynch, Ashley Walker
In a judgment that will be welcomed by both insurers and insureds, the New Zealand Court of Appeal has confirmed that, contrary to the first instance decision of the High Court of New Zealand in Bridgecorp, directors can access their Directors and Officers (D&O) insurance policies to cover defence costs in respect of claims which exceed the coverage under those policies.
23rd November 2012
By Andrew Floro, Matt Mackenzie, Joshua Ehrenfeld
The Federal Parliament passed new laws earlier this week to increase the monetary value of a “penalty unit” from $110 to $170. Penalty units are used as a standard measure to determine the financial penalties payable for a range of Commonwealth offences, including those contained in the Corporations Act 2001, the Competition and Consumer Act 2010 (CCA) and the Fair Work Act 2009. The CCA also contains offences which incur fixed pecuniary penalties, rather than a penalty calculated by reference to penalty units.
15th November 2012
By Rachel Launders, Andrew Floro, Gail Spark, Joshua Ehrenfeld
On 12 November, 2012, the New South Wales Court of Appeal handed down its decision on penalties for the non-executive directors and company secretary/general counsel of James Hardie Industries Ltd (JHIL) in the latest decision in this long running litigation.
8th November 2012
By Colleen Platford
In the wake of Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq)  FCA 1028, which found investment bank Lehman Bros liable for losses arising out of synthetic collateralised debt obligations, the Federal Court has handed down another decision on the sale of the synthetic collateralised debt instruments widely credited with playing a critical role in causing the global financial crisis.
3rd October 2012
By Rani John, Charles Bogle, Lena Vanmali
On 2 October 2012, the High Court delivered the much anticipated final chapter in the litigation between Fortescue Metals Group Ltd (Fortescue) and ASIC. It unanimously held that Fortescue and Fortescue CEO Andrew Forrest did not contravene the Corporations Act (the Act) in connection with public statements that Fortescue had entered into “binding agreements” with several Chinese entities to build, finance and transfer railway, port and mine infrastructure in the Pilbara region.
26th September 2012
By Colleen Platford
In one of the first cases in the world to hold an investment bank liable for its conduct in the lead up to the global financial crisis, the Federal Court of Australia found last Friday that the Australian branch of Lehman Brothers, formerly Grange Securities, breached its fiduciary duty and engaged in misleading and deceptive conduct in its financial and investment advice to local Councils.
20th September 2012
By Andrew Floro, Matt Mackenzie
Jewellery Group, operator of retail jewellery store Zamel’s, was recently held to have engaged in misleading and deceptive conduct in relation to its use of “dual pricing” in a number of catalogues and flyers published between November 2008 and May 2010. The Court is yet to determine what relief it will grant, however the ACCC is seeking declarations and civil penalties against Jewellery Group.
10th September 2012
By Rani John
Partner Rani John discusses the outcome of the ANZ High Court decision.
8th August 2012
By Rani John, Elizabeth Avery, Peter Feros, Justine Cameron, Peter Giurissevich, Kaushalya Mataraaratchi
The Australian Chapter of the Second Edition of International Investigations Review outlines significant changes in enforcement matters in Australia. Reproduced with permission from Law Business Research Ltd.
2nd August 2012
By Steven Glass
Steven Glass discusses the risks in deregulating litigation funding with Clive Bowman, Executive Director of Australia’s largest litigation funder, IMF Australia.
24th July 2012
By Airlie Goodman, Steven Glass
The Australian chapter of Dispute Resolution 2012 was published as part of the Getting the Deal Through series. Accreditation: Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Dispute Resolution 2012, (published in June 2012; contributing editor: Simon Bushell, Herbert Smith LLP). For further information please visit www.GettingTheDealThrough.com.
18th May 2012
By Steven Glass
With last week’s reported $200 million settlement of the long running Centro case, another opportunity for the courts to decide on the methodology for assessing damages in shareholder class actions has slipped away.
7th May 2012
By Andrew Floro, Rachel Launders, Gail Spark, Kate Meikle
The High Court handed down two decisions on the James Hardie case last Thursday, which raise some interesting issues for companies and senior management, on how ASIC can be expected to conduct civil penalty proceedings, and potential exposure for senior management who may, without realising it, have liability as an “officer”, because of the role they carry out.
27th March 2012
By Andrew Floro, Stuart Brady, Paul McDonald
From Monday 26 March 2012 the Equity Division of the Supreme Court of New South Wales will not make orders for the discovery of documents in Court proceedings until the parties have served their evidence, unless there are exceptional circumstances necessitating such disclosure.
16th December 2011
By Rani John
Click here to listen to partner Rani John discuss the Federal Court’s preliminary decision on 5 December 2011, regarding the bank fee class action against ANZ.
12th December 2011
By Andrew Floro, Matt Mackenzie
On 8 December 2011, the Federal Court has ordered that Harvey Norman pay a pecuniary penalty of $1.25 million for contraventions of the Trade Practices Act (TPA) and the Australian Consumer Law (ACL).
8th December 2011
By Rani John, Crispian Lynch, Peter Giurissevich
The Federal Court has delivered its much anticipated first decision in the class action commenced by a number of customers against ANZ. In the case, the customers claim a number of bank fees are unenforceable “penalties” which ANZ should repay.
6th December 2011
By Lauren Eade, Lisa Lennon
Most attempts to rely on actions under the misleading and deceptive conduct provisions of the Trade Practices Act or Australian Consumer Law or the tort of passing off to prevent copying of product designs have been unsuccessful, at least where the knockoff products bore differentiating brands from the original. The recent Full Federal Court case of Bodum v DKSH Australia Pty Limitedi (Bodum), which found that copying a plunger design was misleading and deceptive conduct, has been hailed by many as indicating that the tide is turning in favour of designers.
2nd December 2011
By Andrew Floro, Colleen Platford
On 30 November 2011, the Full Federal Court discharged the injunctions granted by the primary judge on 14 October 2011 which prevented Samsung from launching its Galaxy Tab 10.1 tablet computer in Australia. The injunction prevented Samsung from launching its products in the crucial Christmas trading period and was likely to effectively prevent the particular current version of the product being launched in Australia.
29th November 2011
By Rani John, Julie Athanasoff
In the recent Federal Court decision of Stratford Sun Limited v OM Holdings Limited  FCA 1275, a shareholder of OM Holdings Limited (OMH), Stratford Sun Limited (SSL), unsuccessfully claimed that meeting materials provided by OMH in relation to a global offering of OMH shares and proposed dual listing of OMH on the Hong Kong Stock Exchange (HKSE) were misleading and in breach of the ASX Listing Rules.
10th October 2011
By Kaushalya Mataraaratchi, Rani John, Peter Giurissevich, Peter Feros, Justine Cameron, Elizabeth Avery
The past year has seen important decisions and developments in a number of areas affecting investigations and enforcement action taken by Australian regulators. The Australian Chapter of the inaugural International Investigations Review outlines significant changes in enforcement matters in Australia. Reproduced with permission from Law Business Research Ltd.
27th September 2011
By Matt Mackenzie, Andrew Floro
The Australian Competition and Consumer Commission (ACCC), brought a case against Google Inc and Trading Post alleging that they had engaged in misleading or deceptive conduct in connection with the publication of sponsored links on Google’s search results pages in contravention of s 52 of the Trade Practices Act 1974 (Cth) (TPA). An equivalent provision to s 52 of the TPA is now found in s 18 of the Australian Consumer Law (ACL).
21st September 2011
By Lena Vanmali, Airlie Goodman, Steven Glass, Amy Annan
The Australian chapter of Dispute Resolution 2011 was published as part of the Getting the Deal Through series. Accreditation: Reproduced with permission from Law Business Research Limited. This article was first published in Getting the Deal Through – Dispute Resolution (published in June 2011; contributing editor: Simon Bushell). For further information please visit www.GettingTheDealThrough.com.
12th July 2011
By Andrew Floro
On 7 July 2011, Justice Perram of the Federal Court of Australia ordered Singtel Optus to pay $5.26 million in civil pecuniary penalties for breaches of consumer protection provisions of the Trade Practices Act 1974 (TPA) (equivalent provisions are now found in the Australian Consumer Law which forms a schedule to the Competition and Consumer Act 2010). This is the biggest civil penalty imposed since the Federal Court was granted powers to order civil pecuniary penalties for breaches of consumer protection laws.
6th July 2011
By Rachel Launders
The decision of the Federal Court in Australian Securities & Investments Commission v Healey & Ors  FCA 717 has no doubt raised anxiety levels for a number of non-executive directors, concerned that they must now become experts in accounting standards.
1st June 2011
By Simon Majteles
The level of disclosure required in the context of negotiations for the purchase or leasing of property, assets or businesses is often vexing to both parties to the negotiations and the courts required to adjudicate on alleged misleading or deceptive conduct.
1st April 2011
By Mark Gerus
The mining industry in Western Australia contributes billions of dollars to the State’s consolidated revenue. Iron ore royalties alone amounted to approximately $1.7 billion in 2009. The Mining Warden is central to the system of grant of mining titles and resolving disputes between competing miners and other stakeholders.
2nd March 2010
By Leanne Meyer, Steven Glass
Click here to read more information on the rise of shareholder class actions in Australia.
8th April 2008
By Steven Glass, Rani John, Colleen Platford, Alexandra Cameron, Amy Annan
There has been a significant change in ASIC`s approach when compelling companies or individuals to produce their books or records, and when conducting compulsory examinations of witnesses. (These coercive powers are amongst ASIC`s most potent tools in investigating suspected contraventions of the Corporations Act or ASIC Act.)
18th February 2008
By Dianne Banks, Kim McGuren, James Pomeroy
On 13 February 2008, the Federal Government introduced its first round of workplace relations changes into the Parliament. The centrepiece of the proposed legislation is the removal of the ability to make new Australian Workplace Agreements (AWAs) under the Workplace Relations Act 1996 (WorkChoices). @Work examines the proposed new legislation and identifies key aspects of WorkChoices which will continue at least until the transition to the Government`s new workplace system is complete. The commencement date of the new legislation will depend on the Federal Opposition, which has the numbers to block the legislation in the Senate until 30 June 2008. Once passed by Parliament, the Government will likely want the legislation to commence at the earliest opportunity.