Levels of Support

The Scheme does not provide income replacement benefits, such as a disability pension or weekly compensation entitlement, but may fund supports, such as:

Does a plaintiff’s grandmother owe her grandchild a duty of care?

In the case of Hoffman v Boland (2013) NSWCA 158, the NSW Court of Appeal was split as to whether a duty of care arose in the circumstances of a domestic situation involving permanent injury to an infant - but the Court agreed after a lengthy opinion that there had been no breach and overturned the primary Judge's decision.

Just one month from the publication of the report of Mr Alan Wein with respect to his review of the Franchising Code of Conduct, the Government’s consultation  paper was released to industry for comment on June 17.

The original report contained 18 recommendations for government with respect to proposed changes to regulation of the franchising industry.

The Government is now seeking industry response with respect to each of the recommendations and whether to implement these recommendations or to select another option, including leaving the Code unchanged.

In our previous article ‘Proposed New Developments in Electronic Contracts: Web Page Advertisements and E-mails’  we dealt with a number of updates to Australia’s electronic transaction regime including default rules to determine the time that the law will deem an email to be sent and received.

In addition to these changes, a safeguard providing a right to withdraw an email or online communication (where an input error occurs in a portion of an electronic communication) has been implemented, the recognition as to when an electronic signature will be legally effective has been broadened and the relationship concerning intermediaries such as web hosts has been clarified, along with default rules that have been formally passed into law to determine the place of dispatch and receipt of electronic communications.

Late, in 2012, the Supreme Court had to consider how to deal with a company whose shareholders were in dispute.  One of the shareholders had sought orders requiring the resignation of certain directors of the company, made assertions regarding oppression and demanded that a receiver be appointed to the assets of the company.

The company owned land in Holroyd and the two groups of shareholders held equal rights in respect of the company. One of the shareholders had offered to leave on the basis that the others acquired the shares, but those negotiations also broke down. It was apparent to the Court that the company was dysfunctional and in a state of deadlock.

London's Technology and Construction Court has recently found that a company did not own the emails of its former Chief Executive Office, even though they were work related.

The case turned on its own facts, one of which involved the senior executive sending and receiving company emails using private or non corporate accounts and servers.

The physical storage of the emails was what caused the problem.  At a practical level, the emails were not on the employer’s servers.  Some had been sent using the executive’s private account (and therefore held on external third party servers), others had been sent from a work server, but copied to the personal server and, thereafter, deleted from the employer’s server.

Access to emails is often an important management tool, which facilitates good and proper administration, in relation to the affairs of a business, but, also, is important in corporate negotiations and, potentially, disciplinary matters.  In those circumstances, it is important to ensure that emails of a work nature are sent and received using company facilities and not by utilising private or non corporate accounts and servers.

Unlike the Bible, when David takes on Goliath in the real world, Goliath almost always wins. Not any more. Enter the new species of litigation – the class action and the litigation funder. As we become more risk averse to litigation, yet continue to live in an age of consumerism where goods and services are mass produced, the idea of an army of Davids is emerging.

Class actions are a species of litigation emanating from the US, where individuals joined together to take legal action against a company or Government. They are becoming more common in Australia, especially following tort reforms in 2002 and are referred to as ‘representative proceedings’ which can be brought by virtue of the Representative Group Proceedings Act 1991.

In mid-June Alan Wein’s report of the latest Federal Government review of the Franchising Code of Conduct was published containing 18 recommendations for Government with respect to changes to regulation of the franchising industry.

Two major issues, which have been the subject of much debate in the sector, are the calls for a good faith obligation in franchising and the rights and obligations at the end of the franchise term.

The report’s recommendation is to incorporate the common law duty of good faith into the Code, rather than inserting a specific definition of good faith. This reflects the shift in attitude of the Franchise Council of Australia – a key stakeholder – to the concept of the duty of good faith being incorporated into the Code. Such a duty would apply to both parties, but would not prevent a party from acting in its legitimate commercial interests.In contrast, the demands by some that franchisees be compensated for their perceived loss of goodwill if a franchise is not renewed at the end of term or for the right of mandatory or automatic extension of franchise agreements have not been met. The report rejects these concepts as interference with the fundamental principles of contract and property law.

Our health, aged care and life sciences team discuss a range of topical health, life sciences, medico-legal, retirement living and aged care, not-for-profit, social media, privacy and employment issues. To read the latest copy of the Health Law Bulletin, click here.

Chand v Zurich Insurance

In a judgment handed down in the NSW Supreme Court, the Court was asked to determine whether an action for recovery of repair costs may be sought by an insurer, under its right of subrogation, after the settlement of recovery of rental car costs had been already finalised by consent judgment.