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…]
Litigation & Disputes
Preliminary discovery in the Federal Court
14 June 2021 by
Preliminary discovery (Discovery) is available to potential applicants (Applicants) in the Federal Court for the purposes of determining whether there is a good cause of action against a prospective respondent (Respondent). It is not as a mechanism for full discovery. Discovery is done before the filing of any claim and occurs at the very start of litigious proceedings. [Read more…]
Tortious interference with contract – what must be proven?
1 June 2021 by
Unlawful interference with contractual relations (Interference) is a tort that allows damages to be claimed against a Defendant who has induced or procured a third party to breach their contractual obligations to the Plaintiff in the proceedings. In essence, a Defendant’s intention to induce or procure an entity to act or refrain from acting whilst being aware that such an action would result in said entity breach its contractual obligations to the Plaintiff gives rise to the Interference.[1] This article outlines the elements needed to be proven in order to establish an Interference. [Read more…]
What is the proposed ‘patent box’ tax incentive?
28 May 2021 by
The Federal Government has announced in its 2021-2022 budget the ‘patent box tax regime’ (Regime). The Regime is in effect a $206 million boost to Australian biotech and medtech innovators (Research Areas) via the implementation of a concessional corporate tax rate. [Read more…]
Are fiduciary duties owed by former directors?
19 May 2021 by
Company directors owe various duties to their company and its shareholders. For example, sections 180, 181, 182, 183 and 184 of the Corporations Act 2001 (Cth)(Act) impose statutory duties to exercise care and diligence, maintain good faith and refrain from using their position or information to gain an advantage for themselves. However, the legislation, barring section 183, does not clearly express the extent to which these duties, as well as similar common law duties, continue to apply after a director has ceased being the director of a company. Addressing this shortfall, the Court in Advanced Fuels Technology Pty Ltd v Blythe & Ors [2018] VSC 286 (Advanced Fuels) found that whether or not these duties endure after the cessation of a directorship depends on the facts and circumstances of each case. [Read more…]
Palmer breaches copyright – liable for $1.5m AUD in damages
13 May 2021 by
On 30 April 2021 Katzmann J delivered the Federal Court’s judgment in the matter of Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434 (UMB). The case of UMB concerns the infringement of musical and literary works (Works) of Daniel “Dee” Snider (Dee) by Clive Palmer’s United Australia Party’s (UAP/Respondent) multi-media advertising campaign. UMB considered a complex and detailed fact matrix. Simply put, the Respondent made use of a short jingle with the lyrics ‘Aussies Not Gonna Cop It’ to the tune of Dee’s ‘We’re Not Gonna Take It’, alongside other similarly reproduced advertisements (Impugned Works), to promote the Respondent’s political objectives. [Read more…]
Costs in unfair dismissal applications – part 1
10 May 2021 by
Being in business is hard work at the best of times; having to juggle the needs of customers, the demands of financiers and earning a dollar at the end of the day. One of the most demanding aspects for many business owners is managing the performance of employees. Given the industrial relations landscape in Australia, employers need to take care if wanting to terminate an employee because of misconduct or ongoing poor performance, lest they risk an unfair dismissal claim. [Read more…]
What is a Case Management Hearing?
30 March 2021 by
In the Federal Court of Australia, a case management hearing is a meeting of the parties and the Court to identify issues at the earliest possible stage (Case Management Hearing).[1] They are the essential element of, and main procedure used in achieving, case management.[2] In Queensland Courts, they are referred to as case management conferences.[3] Case Management Hearings may be referred to by different terms in each State. This article discusses Case Management Hearings in the Federal Court. [Read more…]
The tort of injurious falsehood
15 February 2021 by
Injurious falsehood is a tort which arises when a person makes false representations about the goods and services of a person or company. The representations can be either written or spoken, and must encourage others not to deal with the person or business, in turn resulting in damage. Notably, injurious falsehood offers a remedy when a cause of action for defamation is not available under the Defamation Act 2005 (Cth)(Act). [Read more…]
Review of QBCC decisions – part 3
1 February 2021 by
Under the Queensland Building and Construction Commission Act 1991 (Act) the Queensland Building and Construction Commission (QBCC) is empowered to make a variety of decisions such as but not limited to: [Read more…]
