Wednesday, 29 July 2015

Protecting the little guy: unfair contract terms to apply to small businesses

In April 2015, the Federal Government released draft legislation titled the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 (Bill), which if enacted, will extend the consumer unfair standard contract term protections to small businesses. 

The legislation proposes to amend the Australian Securities and Investment Commission Act 2001 (Cth) (ASIC Act), and the Competition and Consumer Act 2010 (Cth) (CCA) and is anticipated to commence in early 2016. 

The current laws under the ASIC Act and CCA only apply to protect consumers (usually individuals) from unfair contract terms, and are said to fail to address the vulnerability of small businesses engaging in commercial transactions.  The Explanatory Material to the Bill states that small businesses are not entering into contracts due to a lack of confidence in understanding and negotiating contract terms and the costs of obtaining legal advice, often resulting in the businesses missing out on opportunities.

Tuesday, 14 July 2015

Sharing the risk: Proportionate liability clarified by the High Court

The High Court recently handed down their much anticipated decision in Selig v Wealthsure1, providing some well needed clarification on the proportionate liability provisions in the Corporations Act 2001 (Cth) (Act), in light of the inconsistent decisions of the Full Federal Court in Wealthsure2 and ABN AMRO v Bathurst City Council3.

The majority decisions, handed down within a week of each other by a differently constituted bench of the Full Federal Court, took opposing views on the application of Division 2A of the Act.  The decision of the High Court in Wealthsure, while settling this inconsistency, is not good news for financial advisors or their ‘deep pocketed’ insurers, who may find themselves targets in lawsuits brought by disgruntled clients.

Friday, 3 July 2015

In-house counsel: a position of privilege?

An important issue for all in-house legal practitioners is maintaining the privilege in legal advice they provide as legal counsel to their employer company.  The extent to which in-house counsel are protected by the doctrine of legal professional privilege has recently been the subject of a great deal of judicial consideration.

The case of Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 raised the requirement of ‘independence’ of in-house counsel in establishing a claim for legal professional privilege.  The case also dealt with the issue of whether legal professional privilege may attach to the advice given by in-house counsel who are not fully accredited Australian legal practitioners.