Commercial Law

Do I have an implied software license?

A licence to use software usually authorises the terms of use of the products by an end user.   These types of licences are usually entered into by express agreement and the passing of consideration (Dundas Lawyers previously discussed software licence agreements here).  However, there are circumstances where a licence to use software may be implied from the surrounding circumstances.  This article discusses the recent Federal Court case of QAD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615 which considers factors which might give rise to an ‘implied licence’.

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Employsure’s Google ads found to have mislead businesses

The Full Federal Court, in the case of Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142, unanimously upheld the appeal by the ACCC regarding a number of Google Ads, posted by Employsure Pty Ltd (Employsure) – a workplace relations advisory company) between August 2016 and August 2018.

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Can email trackers be submitted as evidence?

Whether email trackers, read receipts and similar indicators that show an email has been received and, ostensibly, read can be submitted as evidence has not been substantially considered in standing jurisprudence.  This article briefly considers whether, in light of existing case law, email trackers can be submitted as evidence. [Read more…]

International companies can be bound by Australian privacy laws

The recent determination by the Australian Information Commissioner and Privacy Commissioner, Angele Falk, (Commissioner) in Commissioner Initiated Investigation into Uber Technologies, Inc. & Uber B.V. (Privacy) [2021] AICmr 34 (Uber) provides further guidance on the extraterritorial connection of the Privacy Act 1988 (Cth) (Act) though the ‘Australian link’ set out in subsections 5B(2)-(3) (Australian Link).  This article discusses how the Office of the Australian Information Commissioner (OIAC) will assess whether an entity has an Australian Link to legally bind international entities to the Act. [Read more…]

COVID imposed document e-signing to remain

Temporary measures were introduced under the Corporations (Coronavirus Economic Response) Determination (No 3) (Determination) to exempt certain persons from the operation of provisions interfering with their ability to manage their business through the impacts of COVID-19.  Section 6(3) of the Determination did away with standard requirements for signing requirements.  The measures expired as of 21 March 2021.  In light of continued impact of the pandemic both Houses of Parliament have passed the Treasury Laws Amendment (2021 Measures No. 1) Bill 2021 (Bill) on 10 August 2021, which provides for electronic:

  • document execution;
  • notice of meetings;
  • electronic keeping of minutes; and
  • virtually held meetings.

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Interlocutory injunctions and undertakings as to damages

An interlocutory injunction is an order made by the Court prior to trial either preventing or requiring some undertaking to be taken by one or more parties.  The Courts acknowledge that the imposition of such an interlocutory injunction on a party is not necessarily final and is subject to change.  As such, an undertaking as to damages is usually required by the party seeking an interlocutory injunction (Applicant).  This article discusses the established principles the Court will use to discern whether an Applicant has an adequate case for granting an interlocutory injunction. [Read more…]

Costs in unfair dismissal applications – part 4

Previous articles by Dundas Lawyers have looked at the difficulties confronted in obtaining a costs order against an unsuccessful party in an unfair dismissal application (Application).  To recap, section 611(1) of the Fair Work Act 2009 (Cth) (FWA) holds that a party to an Application, be it the complainant employee or the respondent employer, must bear its own costs in relation to a matter before the Fair Work Commission (FWC).  However, there are circumstances when the other side’s costs can be imposed on a party to an Application.  This article outlines these circumstances. [Read more…]

What is the Modern Slavery Act 2018 (Cth)?

The Australian Modern Slavery Act 2018(Cth) (Act) entered into force on 1 January 2019, which established a national Modern Slavery Reporting Requirement (Reporting Requirement) throughout the country.  The Reporting Requirement applies to businesses and entities with annual consolidated revenue of AUD$100 million or more.  The purpose of the Reporting Requirement is to support the Australian business community in addressing and identifying modern slavery risks, as well as maintaining transparent and responsible supply chains. [Read more…]

What is an exclusive supply contract?

An exclusive supply contract (Exclusive Supply Contract), also known as Exclusive Dealing, occurs when one party trading with another imposes some form of restriction on the other’s freedom to choose with whom, in what, or where they deal.  Some examples of Exclusive Dealing may include:

  • the supplier being restricted to supplying the goods in a specific geographical area, or through a particular channel; or
  • restricting a purchaser from buying the same or similar goods from other suppliers.

This article outlines what an Exclusive Supply Contract or Exclusive Dealing is and when it may not be legal. [Read more…]

Software royalties and income tax

The Australian Taxation Office (ATO) recently released a draft Taxation Ruling (TR) 2021/D4 (Draft Ruling) which considers whether certain software related royalties may be taxable.  In short, the Draft Ruling provides a much needed, and quite broad, scope for when consideration of computer software will be a royalty for income tax purposes.  This article discusses this broadened scope. [Read more…]

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