Coronavirus (COVID-19) and contracts: an act of God?

Nicola Nygh, Harley Milano and Johnson Man discuss how businesses can be relieved of their contractual obligations – in circumstances where they are no longer able to perform a contract due to the coronavirus – through “force majeure” clauses and the common law doctrine of frustration.

The coronavirus pandemic is having an unprecedented impact on trade and commerce. Governments, both in Australia and worldwide, are rapidly imposing drastic public health measures in a desperate bid to stem the spread of the disease – such as quarantines, travel bans, restrictions on gatherings and school and work closures. Continue reading…

Creditor defeating dispositions: combating illegal phoenixing or just making insolvency law more complex (28 February 2020)

Michael Daniel and Nicola Nygh discuss the Australian Government’s newly introduced illegal phoenixing reforms.

On 17 February 2020, the Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 (Cth) (the Act) received Royal Assent. The Act expands the powers of ASIC and liquidators in order to combat phoenixing, being the stripping and transferring of assets from one company to another in order to defeat creditors’ interests. However, we are concerned that the provisions relating to creditor defeating dispositions are not the best way of addressing the serious problem of illegal phoenixing and will only add an extra layer of complexity to Australian insolvency law. Continue reading…

Independent Advice to Directors in Insolvency

Nicola Nygh recently delivered a presentation at the College of Law on directors’ duties in insolvency.

You can view the slides to her presentation here.

The Future of Re Queensland Co-Operative Milling Association Ltd in the Digital Economy

Michael Daniel and Ekaterina Zotova trace the approach to the foundational concepts of ‘Competition’ and ‘Market’ adopted by the court since its landmark decision in Re Queensland Co-Operative Milling Association Ltd and discuss the future of the principles established by that decision in modern times of the digital economy

The facts in QCMA concerned applications made to the Trade Practices Commission by the Queensland Co-operative Milling Association and Defiance Holdings Ltd seeking clearance to merge with Barnes Milling Ltd. Following a refusal by the Commission to grant authorisation to the two companies, they appealed to the Trade Practices Tribunal (the Tribunal) for review of the Commission’s decision. The Tribunal upheld the decision of the Commission.  Continue reading…

Gun-jumping in Australia

Michael Daniel and Ekaterina Zotova recently delivered a presentation at the Competition Law Discussion Group on the Federal Court decision of ACCC v Cryosite and the phenomenon of ‘gun-jumping’ more broadly.

You can view the slides to their presentation here.

Defamation in the #MeToo Age

In the controversial decision of Rush v Nationwide News, Justice Wigney of the Federal Court of Australia found that the Daily Telegraph‘s reporting of the Geoffrey Rush scandal was defamatory and awarded Mr Rush a substantial damages payout. Michael Daniel, Nicola Nygh, Claudia Dela Cruz and Aaron Irving discuss the implications of the decision for the law of defamation in Australia.

Over the past 18 months, defamation proceedings brought by Rebel Wilson and Geoffrey Rush have dominated Australian news headlines. The famous plaintiffs both sought to use the law of defamation to obtain compensation for the harm to their reputations caused by sensational allegations published by news organisations.

The Rush case was seen as especially controversial given the serious sexual assault allegations made against powerful men in the entertainment industry (the ‘Me Too’ movement) just prior to the Rush allegations. It inspired significant debate in the media as to the appropriateness of using the law of defamation to silence sexual assault allegations. Continue reading…

The Banking Royal Commission: Simplification to meet the intent of the law (8 February 2019)

The Banking Royal Commission Final Report is out, but what does it mean? In this article, Nicola Nygh and Sam Wheeler examine the proposal that Financial Services Legislation be simplified to ensure that the intent of the law is met.

On 4 February 2019, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Commission) released its highly anticipated Final Report.

Contrary to the frenzied media speculation prior to its release, the Final Report has not been as earth-shattering as expected. Indeed, Commissioner Hayne has not recommended structural changes such as the dismantling of vertically integrated financial services businesses and nor will there be any significant dismantling and restructure of the regulators. Continue reading…

Unions NSW v NSW: The High Court’s consideration of the proportionality test (5 February 2019)

The High Court of Australia upheld the implied freedom of political communication in its first decision of 2019. Nicola Nygh and Sam Wheeler discuss the jurisprudence underpinning this decision.

Sections 7 and 24 of the Commonwealth Constitution provide that Parliament will be “composed of members directly chosen by the people”.

Those deceptively simple words lay the foundation of Australia’s representative democracy. The implication of those words, however, is far from simple. From those words, the High Court has implied a limited Constitutional guarantee of freedom of communication on governmental and political matters. Continue reading…

Foodora’s Delivery Riders — Contractors or Employees? Implications for Employee-Creditor Prioritisation

Nicola Nygh, Sam Wheeler and Callum Davis analyse the Fair Work Commission’s recent decision that delivery riders for Foodora are employees, rather than contractors.

The Fair Work Commission recently determined an unfair dismissal claim by a former delivery rider for Foodora, an app-based meal delivery company. It held that, despite the presence of contractual terms which sought to forestall the emergence of an employee/employer relationship between Foodora and delivery riders, those riders were actually employees. While an unfair dismissal case, this decision holds broader implications which warrant close attention by participants in the gig economy. Continue reading…

New law brings to an end the jurisdictional crisis in the District Court of New South Wales

Nicola Nygh, Claudia Dela Cruz and Ekaterina Zotova explore the evolution and the resolution of the jurisdictional crisis which afflicted the District Court this year.

On 28 November 2018, the Governor of New South Wales gave his assent to the Justice Legislation Amendment Act (No 3) 2018 (the Act), which clarifies the jurisdiction of the District Court of New South Wales over actions arising out of commercial transactions. The Act inserts section 44(1)(c1) to the District Court Act 1973 (NSW) (the DCA), which finally resolves the jurisdictional crisis which afflicted the District Court this year. Continue reading…