Legal Herald - World Legal Issues

Employers and recruiters unintentionally inflict a glass ceiling on disabled Australians, largely due to a lack of infrastructure and consideration, and new figures show that disabled people are half as likely to be employed compared to the population in general. John Walsh, author of a new rep...

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The Queensland Court of Appeal has upheld the decision of the Supreme Court in another trip and fall case where the primary judge held that the unfortunate injury was not caused by the negligence of the respondent but rather the plaintiff's own carelessness. ELLIS V UNITING CHURCH IN AUSTRALIA P...

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Economic conditions, court decisions, and a new Federal Government all will generate changes during 2009. The following are the top ten developments according to Clayton Utz Solicitors. 1. Economic downturn triggers a rise in litigation As the economy slowed in 2008, litigation department...

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Do you impliedly waive privilege in your legal advice by putting in issue your state of mind Generally speaking, two distinct approaches emerged, a broad view and a narrower view, but recently the narrower view has prevailed. The NSW Court of Appeal recently signalled however that it might be prepa...

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In Fitzsimmons and Comcare AATA 919, the Administrative Appeals Tribunal (Tribunal) rejected Mr Fitzsimmons's application to reinstate his claim on the basis that it was 'dismissed in error' under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (AAT Act). BACKGROUND Mr Fitzsim...

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In Bain v Military Rehabilitation and Compensation Commission AATA 884, the Administrative Appeals Tribunal (Tribunal) was satisfied that it had jurisdiction to review decisions which the Commission had conceded could be reviewed out of time. BACKGROUND Mr Bain was injured during his Army Ser...

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In Muscat v Comcare AATA 872, the Administrative Appeals Tribunal (AAT) considered whether an employee was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in circumstances where he had settled an action for damages against the Commonwealth in the Dust D...

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From 1 January 2009 all liquor licences in Queensland will be re-categorised into the new streamlined licence types under the amended Liquor Act 1992 (Liquor Act). On 12 December 2008, the Government promulgated the amendments to the Liquor Regulation 2002, which sets out the new annual licence fee ...

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The New South Wales Occupational Health amp Safety Act (Act) permits the prosecutor to appeal to a Full Bench of the Industrial Court of New South Wales, against a verdict of acquittal. This is an exception to the normal principles of criminal law. Recently the New South Wales Court of Appeal was ...

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While the proceedings of Senate Estimates Committees are often reported as just another piece of political theatre, they do represent an important accountability mechanism. Senator the Hon John Faulkner, Special Minister of State and Cabinet Secretary, has described Senate Estimates Committees as...

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The Australian Domain Name Administrator (auDA) recently relaxed its rules on domain name transfers by introducing a new Transfers (Change of Registrant) Policy. Significantly, the policy allows domain name registrants to transfer or "sell" their .com.au domain name licences to any other eligible pe...

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Claims against government for the tort of misfeasance in public office appear to be on the rise. Usually, persons affected by government actions or decision-making will seek public law remedies. For example, where a person's interests are affected by a government decision that is made in excess of a...

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Lack of Opportunities For Disabled People	WIPO Welcomes EU Ratification of Internet Treaties	Alcopops Dispute Fizzes Out In Federal Court
Another Trip And Fall Case Rejected	Ten Major Developments In Commercial Litigation In 2008	State Of Mind And Waiver Of Privelege
Breach Of Confidence Claims And Awards Of Damages	Second Thoughts Do Not Justify Reinstatement	Jurisdiction To Review An Out Of Time Claim
Damages For A Risk Of Injury Where Damages Already Paid	New Queensland Liquor Licence Types And Fees	Court Of Appeal Clarifies Scope Of Appeals Against Acquittal
Senate Estimates And Other Parliamentary Committees	New Australian Domain Names Sale Rules	Misfeasance In Public Office

Lack of Opportunities For Disabled People

December 11th 2011 02:55

Employers and recruiters unintentionally inflict a ‘glass ceiling’ on disabled Australians, largely due to a lack of infrastructure and consideration, and new figures show that disabled people are half as likely to be employed compared to the population in general.

John Walsh, author of a new report, “Disability Expectations: Investing in a better life, a stronger Australia”, said that as a disabled person himself, he has been lucky to have very supportive employers, but that support isn’t always there for others.

Walsh said employers frequently have questions over “’How do we employ someone like this’, ‘how are the other work mates going to deal with it’, ‘what happens if they get an injury - are they covered by workers compensation?’,” and he commented “all of these questions suggest a need for employers to be encouraging in how they even get to square one.”

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Posted By: Craig Hill - Category: Human Rights

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WIPO Welcomes EU Ratification of Internet Treaties

March 29th 2010 00:47

Director General of the World Intellectual Property Organization Francis Gurry has welcomed the ratification by the European Union of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

The treaties establish the basic standards of protection for copyright and related rights in the digital environment.

Mr Gurry said the EU's ratification of the treaties will positively influence the development of creativity within the digital environment in Europe and beyond.

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Posted By: Craig Hill - Category: Intellectual Property

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Alcopops Dispute Fizzes Out In Federal Court

April 22nd 2009 06:17

The Federal Government has been taking a variety of measures intended to reduce "binge drinking". One of those measures has been to increase rates of duty and excise on "ready to drink" mixed drinks known as Alcopops. Many of you have been following the fate of measures intended to raise customs duty on imported products and to raise excise duty on such products distilled here.

The Federal Government raised the rate of duty and excise by "Tariff Proposal" last year without legislation, allegedly as a measure to stop binge drinking by young people using the products. This was effected by the use of "Tariff Proposals" which were introduced into Federal Parliament prescribing increased rates of customs duty (by Customs) and excise duty (by the ATO). These measures are used to quickly introduce the new measures while awaiting the passage of legislation to formally implement the increased tariffs.

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Posted By: Craig Hill - Category: Health

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Another Trip And Fall Case Rejected

January 15th 2009 12:50

The Queensland Court of Appeal [McMurdo P, Fraser JA and Mackenzie AJA] has upheld the decision of the Supreme Court in another trip and fall case where the primary judge held that the unfortunate injury was not caused by the negligence of the respondent but rather the plaintiff's own carelessness.

ELLIS V UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) [2008] QCA 388

FACTS

The plaintiff, Mr Ellis, was walking home late on a rainy evening. He had consumed alcohol in the hours leading up to the incident but not enough to impair his ability to keep a proper lookout. He was in a hurry to get home and out of the rain. The fall occurred on the driveway of the premises run by Lifeline. The area of the fall was poorly illuminated due to the absence of a nearby street light.

The plaintiff was well aware of the protruding paver.

He struck his foot on the raised paver and lost his balance.

The plaintiff was unable to walk after the accident and had to crawl to the shelter of a nearby tree until someone found him which did not happen for many hours.

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Posted By: Craig Hill - Category: Litigation

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Ten Major Developments In Commercial Litigation In 2008

January 11th 2009 12:11

Economic conditions, court decisions, and a new Federal Government all will generate changes during 2009. The following are the top ten developments according to Clayton Utz Solicitors.

Top Ten Development Commercial Litigation

1. Economic downturn triggers a rise in litigation

As the economy slowed in 2008, litigation departments became increasingly busy. Demand for litigation has traditionally been counter-cyclical...

2. The rise and rise of litigation funding

2008 was a bumper year for litigation funders. The Aristocrat class action was settled for a record $145 million ...

3. Last year of the Gleeson-led High Court

August 29 marked the end of the Gleeson era, as the 11th Chief Justice of the High Court reached the constitutional retirement age. The Gleeson court will be fondly remembered by the business community. Gleeson promoted consensus on the bench ...

4. Sub-prime litigation

The fallout from the sub-prime crisis triggered an explosion of litigation in the USA in 2008. We saw a similar spike in litigation after the dot com bust in 2000...

5. Spotlight on the cost of litigation

How to keep litigation costs under control was again a key issue in 2008. In the shadow of the C7 appeal, various proposals were mooted to discourage mega-litigation including abolishing the tax deductibility of legal costs...

6. A new government

Faced with a severe financial crisis in its first full year on the job, the Rudd government resisted the temptation to over regulate. It will however, be interesting to see what flows from the government's review of credit ratings agencies and its survey of company directors...

7. Push for an action for invasion of privacy gathers pace

The debate about personal privacy was brought to a head in 2008, with the Australian Law Reform Commission recommending the introduction of a statutory cause of action for a serious invasion of privacy....

8. Protecting privilege

The protection of client legal privilege was the sleeper issue of 2008. Since the decision in the Federal Court case of Rich v Harrington was handed down at the end of last year, claims for privilege over communications with in-house lawyers are being far more closely scrutinised by the courts....

9. Criminalising cartels

The headline issue in trade practices law in 2008 was the release of draft laws to criminalise serious cartel conduct...

10. An emboldened regulator?

After enduring accusations over the years of being too conservative in its approach to prosecuting corporate misfeasance, the Australian Securities and Investments Commission took the bold move of launching a $200 million action against KPMG over its auditing of various Westpoint entities...

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Posted By: Craig Hill - Category: Litigation

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State Of Mind And Waiver Of Privelege

January 10th 2009 11:49

Do you impliedly waive privilege in your legal advice by putting in issue your state of mind? Generally speaking, two distinct approaches emerged, a broad view and a narrower view, but recently the narrower view has prevailed. The NSW Court of Appeal recently signalled however that it might be prepared to take a broader view of issue waiver when a party has put in issue his or her state of mind.

Key Point

* If the Court of Appeal's comments are followed, framing a case might be enough to inadvertently waive privilege.

Broad vs narrow

An example of the broad view is the decision in Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152. BT claimed that Telstra had engaged in misleading and deceptive conduct which induced it to enter into an agreement. Telstra then sought discovery of legal advice received by BT, on the basis that the advice went to BT's state of mind when it entered into the agreement. Even though BT did not refer to any legal advice, the Court found that privilege had been waived.

Breach Of Confidence Claims And Awards Of Damages

January 9th 2009 11:31

Previously, the Victorian Court of Appeal awarded damages for the distress caused by the unauthorised showing of a private sex tape. It is worth looking at the decision in Giller v Procopets [2008] VSCA 236, and its potential consequences, in more detail.

Key Points

* Damages are now available for pure mental distress for breach of confidence claims, where the essence of the claim is that there has been a misuse of private information. This could have important consequences for the media in Australia.

* In this case, the Victorian Court of Appeal chose to adapt the existing action of breach of confidence rather than recognise a novel action for breach of privacy.

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Posted By: Craig Hill - Category: Litigation

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Second Thoughts Do Not Justify Reinstatement

January 7th 2009 10:08

In Fitzsimmons and Comcare [2008] AATA 919, the Administrative Appeals Tribunal (Tribunal) rejected Mr Fitzsimmons's application to reinstate his claim on the basis that it was 'dismissed in error' under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

BACKGROUND

Mr Fitzsimmons appealed a decision by Comcare that it was not liable to pay compensation for viral hepatitis B, allegedly contracted as a result of his employment with the Australian Customs Service.

In August 2006, Mr Fitzsimmons's lawyer, Mr Stockley, wrote to the Deputy Registrar of the Tribunal seeking withdrawal of his application on the basis that there was insufficient evidence to directly support the claim.

On 25 August 2008, Mr Fitzsimmons wrote to the Tribunal requesting that his application be reinstated.

Mr Fitzsimmons argued that the application should be reinstated on the basis that it had been dismissed in error because Mr Stockley had not investigated all possible causes of hepatitis B.

Mr Fitzsimmons also argued that his withdrawal was also compounded by his depression, which affected his understanding of the withdrawal.

DECISION

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Posted By: Craig Hill - Category: Litigation

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Jurisdiction To Review An Out Of Time Claim

January 5th 2009 09:58

In Bain v Military Rehabilitation and Compensation Commission [2008] AATA 884, the Administrative Appeals Tribunal (Tribunal) was satisfied that it had jurisdiction to review decisions which the Commission had conceded could be reviewed out of time.

BACKGROUND

Mr Bain was injured during his Army Service in October 1969. Claims for compensation and other relevant records were lost, however determinations had been made on 19 April 1971 and 26 November 1975 rejecting the claims for compensation. A request made in 1999 for an extension of time to request a reconsideration of the determinations was subsequently refused.

By a decision given on 27 September 2006 (Bain and Military Rehabilitation and Compensation Commission [2006] AATA 822), the Tribunal made a provisional decision on the following matters:

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Posted By: Craig Hill - Category: Litigation

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Damages For A Risk Of Injury Where Damages Already Paid

January 3rd 2009 09:09

In Muscat v Comcare [2008] AATA 872, the Administrative Appeals Tribunal (AAT) considered whether an employee was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in circumstances where he had settled an action for damages against the Commonwealth in the Dust Diseases Tribunal of NSW (DDT).

In making its decision, the AAT looked at the nature of the settlement of the damages action and considered the concept of 'injury' for the purposes of the SRC Act.

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