Publications

The Australian Government’s JobKeeper Payment: A Game-changer for Businesses Looking to Cut Costs Without Firing Staff

Legislation providing for the new JobKeeper Payment was passed at an emergency sitting of Federal Parliament on 8 April 2020. In passing the legislation Australia joins a number of countries including the UK, Denmark and New Zealand which have implemented wage subsidies to support businesses during this period of economic ‘hibernation’. Nicola Nygh, Harley Milano, Johnson Man and Victoria Lowe discuss the new JobKeeper Payment.

The Australian wage subsidy scheme, worth $130 billion, is the amongst the most comprehensive in the world. Continue reading…


Out of the Den into the Harbour; safe harbours for companies during and after hibernation

The Coronavirus Economic Response Package Omnibus Act 2020 provides relief for companies and directors that trade while insolvent from
25 March 2020. Nicola Nygh, Ekaterina Zotova and Jack Halim discuss the operation of the new safe harbour on directors’ duties during and after the “hibernation” and the increased threshold and statutory period for issuing statutory demands.

To protect public health during the COVID-19 pandemic, the Australian Government has implemented drastic restrictions on the daily life of all Australians, including quarantines, travel bans, restrictions on gatherings and closure of non-essentials premises. There are more to come. Continue Reading…

 


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…