Sydney Capitol Hotels Pty Ltd v Bandelle Pty Ltd [2019] NSWSC 1825
Summary 
The NSW Supreme Court has recently found that the 10-year long-stop period for building actions imposed by s6.20 of the Environmental Planning and Assessment Act 1979 NSW (EPA) will not necessarily apply to an action for loss or damage arising in connection with defective building work if the defective work only caused the loss or damage in an “accidental, incidental or indirect sense".
Background 
The plaintiff was the occupier of a building at which a fire broke out on 2 January 2017. The fire was alleged to have been caused by defective building work performed by the defendant builder on the exhaust duct system. In 2019 the plaintiff sued the defendant, alleging that it breached the duty of care it owed the plaintiff in carrying out the building work. 
The plaintiff had occupied Level 5 of the building since 1997, the same year in which the building work was completed. 
Limitation defence 
The defendant pleaded that the plaintiff’s claim was statute-barred by reason of s6.20 of the EPA, which provides that "a civil action for loss or damage arising out of or in connection with defective building work … cannot be brought more than 10 years after the date of completion of the work". The Court was asked to determine whether this defence was available.
Hammerschlag J acknowledged that on the plain and grammatical meaning of the section, the long-stop limitation period would apply, as the damage suffered by the plaintiff arises out of or is in connection with the defective building work, which caused the fire and in turn the damage. 
Decision based on parliamentary intention of EPA
However, His Honour turned to the parliamentary intention of the EPA, which the Court of Appeal1 had previously confirmed was to regulate liability between building owners and building practitioners, rather than to change the general law of tortious liability. The relevant section of the EPA was said not to be concerned with cases where claimants have no interest in the building work and no interest in the building itself. 
His Honour therefore found that the 10-year long-stop period would not apply to the plaintiff’s claim because the loss and damage suffered by the plaintiff, who was "merely an occupier of part of the building", was caused by the building work "in only an accidental, incidental or indirect sense". The relevant part of the defendant’s defence was struck out. 
Implications 
This is a potentially significant decision for building professionals, particularly in the context of the claims arising from combustible cladding by building owners and the imminent inception of the Design and Building Practitioners Bill 2019, which introduces a statutory duty of care as between owners and building consultants. It potentially provides a mechanism for current owners to overcome the "absolute" time bar imposed by s6.20 of the EPA from any legal liability in damages for defective building work by framing their claim as being incidental to the building work/design. 

1 in Dinov v Allianz Australia Insurance Limited (2017) 96 NSWLR 98 at [107].
 

Background
The fire occurred on 30 August 2018 and was the subject of investigations by the Coroner, the Victoria Police Arson and Explosives Unit, the Environment Protection Authority, WorkSafe, Maribyrnong City Council and the Metropolitan Fire Brigade.
The Plaintiff, the owner of the warehouse, claimed indemnity under a property insurance policy for losses caused by the fire. The warehouse was a total loss.
The policy was dated to expire on 24 August 2018, six days prior to the fire. The Plaintiff relied on emails exchanged on 24 August 2018 and one email on 29 August 2018 to argue that there was an agreed extension of 14 days from 24 August 2018 to 7 September 2018.
The Plaintiff submitted that this was either due to an implied acceptance of an offer to extend the cover for 14 days, or the formation of a unilateral contract which was accepted by conduct on behalf of the Plaintiff, being the consideration of the terms for renewal in the new policy.
By way of background, on 18 July 2018, the defendants’ representative advised the Plaintiff’s insurance broker that the policy was due to expire on 24 August 2018. In early August emails were exchanged about particular terms to be amended in the renewed policy regarding the occupancy of the property.
On 24 August 2018, the defendants’ representative declined to renew the insurance policy due to concerns about what was being stored in the warehouse. However, given the policy expired that day, they offered a 14-day extension with a net premium of $3,506.06. The plaintiff’s broker replied providing additional information and asked the defendants’ representative to review the decision to decline the renewal of the policy but did not refer to the 14-day extension.
On 27 August 2018, emails were exchanged providing further information on the proposed terms of the renewal policy. On 29 August 2018, the defendants’ representative sent the plaintiff’s broker the renewal quotation and repeated the offer of the 14-day extension in exchange for an extra premium.
The fire started at 5.00am on 30 August 2018. The plaintiff’s broker responded accepting the terms of the renewal policy at 8.44am on 30 August 2018. On 2 October 2018, the plaintiff’s broker remitted the premium to the defendants’ representative, which was returned by cheque dated 4 October 2018.
Decision
Riordan J held that at no time after the offer to extend the policy for 14 days was sent by the defendants’ representative on 24 August 2018 did the plaintiff provide acceptance. For this to occur, reference to the 14-day extension and acknowledgement of the promise to pay the premium of $3,506.06 was required.
The plaintiff’s request for the defendants to reconsider their refusal to renew the original policy was consistent with an intention not to accept a mere extension.
Riordan J considered the case of Canberra Pools Pty Ltd v MMI General Insurance Ltd (2000) 98 FCR 296 in outlining the principles regarding contracts to renew or extend insurance policies. His Honour distinguished that case as the parties had agreed the insured was being ‘held covered’ after the expiration of the original policy and therefore, there was an implied term that the cover would continue for a reasonable time in the absence of termination by either party. Here, the email on 9 August 2018 stated that ‘no automatic hold covered provisions apply’ and therefore Riordan J refused to accept that there was an implied term that cover continue for a reasonable time.
Riordan J also outlined the principles regarding unilateral contracts as considered by Australian Woollen Millsand Gippsreal Ltd v Registrar of Titles and Kurek Investments Pty Ltd (2007) 20 VR 157. His Honour found that a reasonable business person would read the offer of extension in the 29 August 2018 email as a repeat of the earlier offer of extension made on 14 August 2018, which no doubt required acceptance. This was the only interpretation that made commercial sense as the plaintiff was required to commit to payment of an extra premium. The defendants could not unilaterally impose a legal obligation on the plaintiff to pay an extra premium if they did not accept the renewal within the 14-day period.
His Honour suggested that a unilateral contract as referred to in Australian Woollen Mills could arise if the insurer promised to hold the insured covered for a period of 14 days in exchange for the insured considering a proposed renewal of the policy, but this was not the case on the facts. The quid pro quo for the extension was not consideration of the terms of the renewed policy but the promise to pay an extra premium — which did not occur.
Comment
This case illustrates the importance of expressly accepting offers which are intended to be relied upon as it is difficult to prove implied acceptance in the absence of clear language.
Insurers should be wary of creating unilateral contracts, such as that referred to in Australian Woollen Mills in circumstances, where an extension of an insurance policy is offered in exchange for considering the new terms of a renewal policy. However, as in this case, insurers can avoid this by ensuring their offer of extension requires agreement to pay an additional premium. 
In addition, insurers should remain vigilant about the consequences of granting ‘held cover’ to insureds, in that those with ‘held cover’ will have their cover extended by an implied term, for a reasonable period, in the absence of termination by either party.
The court decision is available here.
 
 
 

The recent Full Court decision in Bant & Clayton (No. 2) [2019] FamCAFC 200 highlights the need to obtain timely expert legal advice in international family law matters — particularly where parties have a choice of jurisdictions in which to resolve their dispute.
Background
In this matter, the parties met and began living together in Dubai, United Arab Emirates (the UAE) in mid-2006, were married in the UAE, according to sharia law, in 2007 and had a child in 2009.  The wife is an Australian citizen and the husband is a citizen of the UAE.  The parties separated in July 2013, while in Australia.  After separation, the wife and the child continued to live in Australia.
On 15 July 2014, the husband commenced divorce proceedings in Dubai.  Those proceedings also sought a waiver of the matrimonial rights of the wife — in effect, to finalise all financial aspects of the breakdown of their marriage.  At the time, there were no property proceedings then on foot in Australia.
The wife was notified of the UAE proceedings and had lawyers act as agents for her in Dubai, though she did not appear in those proceedings. In late February 2015, orders were made in accordance with the husband’s application.  The orders granted the husband a divorce and ended the wife’s rights to seek property orders under the law of Dubai.  No appeal was brought within the relevant appeal period and no provision exists for that period to be extended.
On 18 September 2018, the Family Court of Australia dismissed the husband’s application for a permanent stay of the wife’s property and spousal maintenance proceedings, which the husband sought on the basis that the UAE proceedings had, in effect, determined the same cause of action.
The Appeal
The Full Court confirmed that the doctrine of res judicata estoppel applied in this matter — that is, that the Court was satisfied that “in prior proceedings, a court or tribunal of competent jurisdiction over the same subject matter and the same parties, has by decree, order or judgment, finally and conclusively determined the same cause of action."
The Full Court confirmed that "the fact that different law will be applied in the two jurisdictions does not detract from the identity of the cause of action", noting that the trial judge had confused the cause of action, with the outcome.  The Full Court explicitly recognised that “the fact that a party in local proceedings may receive more or less than the foreign proceedings does not prevent a cause of action in estoppel arising.”
The Full Court then went on to confirm that the wife’s failure to seek spousal maintenance (alimony) in the UAE proceedings (where she had the opportunity to do so) was a bar to her now seeking that the Family Court of Australia make orders for maintenance.
Following the success of the husband’s appeal, the Full Court then permanently stayed the wife’s property and spousal maintenance applications.
Key Takeaways
With the ever-increasing number of international families, many of whom have property in more than one country, Bant & Clayton highlights the need to obtain early advice in all legal jurisdictions in which there may be a dispute, ensuring parties are able to make informed decisions about the conduct of their matter.
This decision also highlights the risky nature of failing to participate in proceedings brought in a foreign jurisdiction by a former spouse — whether your client objects to that jurisdiction or otherwise, failure to engage could be extremely costly for your client.  
Lander & Rogers has extensive experience in international relationship and family law matters, including international maintenance and child support.  Our memberships of the International Academy of Family Lawyers and international referral network, TerraLex, enable us to support the interests of our clients in every overseas jurisdiction.
 

Lander & Rogers has advised ASX-listed Uniti Group Limited (ASX:UWL) (Uniti) on its acquisition of 1300 Holdings Pty Ltd and its related bodies corporate (1300 Holdings) for $78 million.  Simultaneously with the acquisition, Lander & Rogers advised on the fully underwritten placement and accelerated non-renounceable entitlement offer of $85 million to fund the acquisition.
1300 Holdings is the owner of smartnumbers or “phonewords" (1300, 1800 and 13 numbers that use letters e.g. 1300 UNITI) which it licences to customers.
This transaction is aligned with Uniti’s "three pillars" strategic growth agenda of becoming a leading provider of niche telecommunications services, via both organic growth and inorganic mergers and acquisitions, focussed on wholesale and infrastructure, specialty services and consumer and business enablement – in this case, the transaction falls within Uniti’s specialist services pillar.
Lander & Rogers provided Uniti legal advice on all aspects of the acquisition, including due diligence of the target entities, negotiation of all transaction documents and inclusion of warranty and indemnity insurance. Additionally acting as lead counsel for the capital raising, Lander & Rogers provided a full suite of ECM services, including liaising with the ASX regarding technical submissions under listing rules, coordinating the due diligence process, drafting the offer materials, negotiating the underwriting agreement and liaising with the lead manager/underwriter and other advisors. 
Lander & Rogers Lead Partner Jackie Solakovski said, "We are delighted to have worked with Uniti on its acquisition of 1300 Holdings and its $85 million equity raising.  The acquisition of 1300 Holdings is another great milestone for Uniti and follows our recent work with Uniti in its acquisition of OpenNetworks, LBNCo, Fone Dynamics and Call Dynamics and its earlier underwritten equity raising of $100 million.  We are proud to continue our support and to partner with Uniti in achieving its growth strategy." 
Ashurst were the legal advisors to the shareholders of 1300 Holdings.

Lander & Rogers has advised ASX-listed out-of-home media business QMS Media Limited (QMS) on its acquisition by entities associated with Quadrant Private Equity (Quadrant).
On 29 October 2019, QMS announced it had entered into scheme implementation documentation with Quadrant, under which Quadrant agreed to acquire 100% of the issued share capital of QMS via a scheme of arrangement (Scheme) in an all cash offer of $1.22 per share. The deal valued QMS’ equity at approximately $420 million and implied an enterprise value exceeding $570 million.
On 6 February 2020, the shareholders of QMS overwhelmingly voted to approve the scheme, which was then approved by the Federal Court on 10 February and has now become effective.
QMS is a leading outdoor media company in Australia and New Zealand, specialising in premium landmark digital and static billboards, street furniture, sport and transmit media. QMS manages over 3,000 individual global sporting events annually and has the #1 in stadium presence in Australia. QMS has stated a vision of developing QMS as a global integrated sports platform with a unique multi-channel strategy across technology, infrastructure, media rights, events, talent management and merchandise.
Lander & Rogers advised QMS on all aspects of the scheme.  This included advising the board of QMS on various matters, including director recommendations in the context of additional benefits accruing to certain directors, treatment of performance rights and declaring a final dividend.  Lander & Rogers also negotiated the scheme documents with Gilbert + Tobin, advising Quadrant, and prepared and verified the scheme booklet sent to QMS shareholders and settled with ASIC.  Further, advice was given to QMS regarding the preparation for the court hearings, including drafting the requisite affidavits, and the conduct of the scheme meetings themselves. 
Lander & Rogers Lead Partner Peter Monk said, “It has been an amazing journey supporting QMS’ executive team, board and shareholders through the company’s entire lifecycle as an ASX listed entity.  Over more than five years, members of our team have supported QMS moving from strength to strength in a rapidly evolving advertising and media landscape.
"From QMS’ creation via an 8-way M&A roll up and listing on the ASX, through its four-fold expansion across Australia and overseas in as many years, and now to its public-to-private move through a scheme of arrangement with Quadrant Private Equity, life as QMS’ legal adviser is always busy, hugely rewarding and never ever dull.  The team at Landers looks forward to continuing to support the business as this next chapter unfolds."
 

As we have seen in recent weeks, the breakdown of an expat relationship requires a careful approach to parenting arrangements, coupled with an understanding of the laws that apply in different overseas jurisdictions.
The Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) is an agreement between 82 countries which seeks to protect children from international abduction and arrange the prompt return of children who are wrongfully removed from their home country.  
Australia has been a signatory to the Hague Convention since 1973 and has ratified its obligations under the Convention through the Family Law (Child Abduction Convention) Regulations1986 (Cth).
Example from Papua New Guinea
International relocation or abduction matters can be particularly complicated where one or both countries is not a signatory to the Hague Convention.  Charmaine Backhouse’s efforts to retrieve her son from Papua New Guinea highlight the difficulties for parents who find themselves in these circumstances.
Ms Backhouse and her former partner, Dr Duncan Dobunaba, were in a relationship for seven years before they separated in 2015.  According to Ms Backhouse, they agreed for their now 9-year-old son, Isaiah, to travel to Port Moresby with Dr Dobunaba and remain there temporarily while she relocated from Brisbane to Broome.  However, Dr Dobunaba never returned Isaiah.  Isaiah holds an Australian passport and entered Papua New Guinea on a temporary Visa, which had expired in 2016. 
For five years, Ms Backhouse attempted to have her son brought back to Australia.  Papua New Guinea is not a signatory to the Hague Convention so Australian authorities could provide little assistance to her.  Ms Backhouse relentlessly campaigned, undertaking her own research on local Papua New Guinean laws and ultimately relied on the Lukautim Pikinini Act; a law to promote and protect the welfare of children, to bring Isaiah back to Australia in December 2019.  Ms Backhouse was the first foreign parent to seek recovery of a child under that legislation.
The rules that apply to families in one jurisdiction may not be the case in another.  This is apparent when comparing the laws that apply to parents in Australia and Japan.
Example from Japan
Australian man Scott McIntyre had been living in Tokyo with his Japanese wife and their two children since 2015.  In May 2019, Mr McIntyre’s wife disappeared with the children, removing them from school and changing their contact details.  He has not seen or spoken with his children since.
Mr McIntyre made numerous requests through police and lawyers seeking details about the location and safety of his children but did not receive a response. Unfortunately for Mr McIntyre, Japan does not recognise shared custody arrangements for separated parents; an issue which has caused significant media attention in recent years, particularly for foreign parents living in Japan.
Mr McIntyre suspected that his children and wife were residing with the mother’s parents and manged to gain entry to the common area of their apartment building.  He was arrested for trespass and imprisoned for 45 days in challenging conditions. Mr McIntyre received a six-month suspended sentence and is no closer to seeing his children.
Despite a recent recommendation from the United Nations’ Committee on the Rights of a Child (a treaty of which Japan is a signatory), that the country “revise the legislation regulating parent-child relations after divorce in order to allow for shared custody of children when it is in the child’s best interests, including for foreign parents, and ensure that the right of the child to maintain personal relations and direct contact with his or her non-resident parent can be exercised on a regular basis" Japan has not adopted the recommendation.  Japan is also a signatory of the Hague Convention. The country’s position on parental rights and care arrangements for children of separated parents is vastly different to that in Australia, where one of the two primary considerations when determining custody arrangements is the benefit to the child of having a meaningful relationship with both parents.
Matters involving international parenting disputes are technically difficult and require specialist knowledge and experience to navigate.  If you are involved in a relationship breakdown that crosses international jurisdictions, it is important that you secure appropriate legal advice from an organisation with alliances in other countries.
Lander & Rogers has extensive experience in international relationship and family law matters, including international maintenance and child support.  Our memberships of the International Academy of Family Lawyers and international referral network, TerraLex, enable us to support the interests of our clients in every overseas jurisdiction.
 

Family law is a constantly evolving area, and in recent times has been the subject of intense interest and attention from politicians and the media.  As we embark on another year, now is an opportune time to consider what may and may not be on the family law agenda in 2020.
More Inquiries
Family lawyers have been inundated with recommendations of inquiries, commissions and reviews, in recent years.  Following on from the comprehensive Australian Law Reform Commission Report Inquiry into the Family Law System in 2019, a further Committee has now been established by Federal Parliament to report on Australia’s Family Law System.  Although there were several calls for a Royal Commission to be conducted into the family law system (largely from One Nation Senator Pauline Hansen) the Government instead elected to appoint a Joint Select Committee in September 2019 with Ms Hansen as the Deputy Chair.
The Committee has now received submissions from the public, and has been tasked with inquiring and reporting on various aspects of the family law system, including reforms that may be needed to the current structure of the Family Court and the Federal Circuit Court as well as mechanisms to improve the timely, efficient and effective resolution of property disputes in family law.
The Committee will shortly hold public hearings with its report expected to be made available throughout 2020.  The recommendations for reform will be keenly awaited by family law professionals, however whether any of the reforms are then actually implemented by the Government is to be seen. Given that none of the recommendations from the comprehensive Australian Law Reform Commission Report have been implemented to date, the potential for wide-scale reform of the system may be remote.
Harmonisation of Rules
Presently, there are two Federal Courts in Australia that deal with family law matters, the Family Court (that addresses the more complex and lengthy parenting and property cases) and the Federal Circuit Court.  Although both Courts operate under the same legislative jurisdiction of the Family Law Act, they each have separate rules, forms and procedures. This duplication of often disparate rules causes confusion, uncertainty and inefficiencies.
Acknowledging the criticisms of the separate processes, a working group has recently been established to develop a consistent approach to case management in both Courts.  The harmonisation of rules, processes and procedures between the two Courts will be a welcome reform with hopefully the first draft set of Rules received from the working group throughout 2020.
Implementation of Pilot Projects
A number of pilot projects will continue to be trialled at various registries throughout Australia in 2020.  These include the Small Claims Property Project, which it is hoped will be a  simpler and more cost-effective process to help separating couples divide their property assets.
The Small Claims Property Pilot will run for two years in Brisbane, Parramatta, Adelaide and Melbourne and will provide a streamlined court service to couples with property pools under $500,000.
The project is funded under the Women’s Economic Security Package and aims to ensure families do not exhaust their limited assets on legal expenses. The imperative for women to access property settlements in an affordable and timely manner was a key recommendation of the “Small Pools Large Battles" Report undertaken by the Women’s Legal Service Victoria with the assistance of Lander & Rogers Lawyers.  The Pilot project will allocate matters to Judges who will be able to adjudicate the matter using a short form process which may include dealing with the matter without a hearing.
It is a present shortcoming of the system that all property matters are dealt with in the same manner and using the same processes irrespective of whether the asset pool is $100,000 or $1,000,000. This one size fits all approach adds to the heavy burden of the Courts and exacerbates the current significant delays faced by litigants.
In addition, a financial applications pilot program has been continued in the Newcastle Registry to better case manage and progress property applications and will now be extended to the Sydney registry. The program enables files seeking property applications only to be pro-actively managed by a Registrar from the time of filing.  By removing judicial intervention, unless absolutely necessary, the pilot has allowed Judges to hear only the most intractable of disputes with over 69% of cases in the pilot programme resolving without the need for judicial involvement.
Superannuation Splitting Reforms
The present legislation and rules regarding the splitting of superannuation are complex and present particular challenges to self-represented litigants.  In addition, each superannuation fund has its own requirements in relation to the wording and phrasing of orders, and the steps to be undertaken before a superannuation split can be ordered. Acknowledging this complexity, the need for reform to better enable self-represented litigants, and litigants with small asset pools is evident. In cases where the parties only own superannuation, it is not uncommon for a party to walk away from a share of superannuation due to the challenges of navigating and understanding the process.
A number of superannuation funds have announced that they are developing a streamlined and simplified process through the development of a consistent form for court orders that can be widely used. It is hoped that over time this simplification extends to all funds to enable more parties, and in particular women, to claim a fair share of superannuation following the breakdown of a relationship
Two Courts or one?
The need for structural reform of the family law system to reduce delays for separating families is well accepted. The Governments’ present response is an intention to amalgamate the Federal Circuit Court and the Family Court to be brought together as the new Federal Circuit and Family Court of Australia (FCFC).  In December 2019, the Government introduced legislation to amalgamate the Courts with the aim of streamlining processes and procedures and ensuring one entry point to the family law system for separating families.  The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee which is due to report on or before the 20th November 2020.
It is not yet known whether or not the intended amalgamation will proceed and whether the Bill has the necessary political support required. 
Significant Cases
There is only one current family law case pending before the High Court, specifically Hsiao v Fazarri — being a case in which the Court will consider the nature and impact of a Deed of Gift made between the parties during the relationship.
Key Trends
Moving forward, some of the key trends that we anticipate in 2020 include the following:

A continued emphasis on mediation and alternate dispute resolution processes to resolve disputes at the earliest opportunity for clients;
An expansion in the use of arbitration as an alternative to mediation and litigation;
The offering of judicial mediations (being mediations conducted by Judges) as an alternate to private mediations and arbitration.
Greater case management and triaging of both parenting and property cases by Registrars, at first instance, to alleviate the workload of Judges.

Conclusion
Family law has been a fast evolving and ever-changing area of law in recent years and that trend is certainly expected to continue in 2020. Family lawyers can continue to expect significant media commentary and analysis of the family law system, particularly once the public hearings for the Joint Select Committee commence. It will be fascinating to learn of the key recommendations and areas of reform that arise from the Committee’s work.
 

Introduction
The term ‘smart contract’ has emerged as a popular buzzword, mingling technology and law, and the ideals of trust, immutability, transparency and security. But what does all that mean in real terms? How are smart contracts actually used? And in what ways might they disrupt our businesses, clients and communities?
Recently, members of our Blockchain and Digital Assets group sat down with smart contract experts, Dr Philippa Ryan and Professor Volker Skwarek, the lead authors of the international standards for legally binding smart contracts, currently being developed by the International Organization for Standardization (ISO). We asked them to break down the tech-speak and get to the practical: what are smart legal contracts and where can we expect to see them used in the near future? 
What’s in a name?
Professor Skwarek reminds us that a smart contract is basically ‘just a computer program,’ so users shouldn’t be put off by the terminology or understanding why it’s called a smart ‘contract’. What matters to users, says Professor Skwarek, is not the name, or how the software works, but what it actually does. This is one of the great tech truths. Few users of the Internet are interested in the names of the underlying protocols that power the world wide web or how they operate.
To adopt Dr Ryan’s definition: ‘smart contracts enabled by blockchain technology are programmable applications that manage exchanges conducted online’.[1] The relationship between blockchain and smart contracts is analogous to any computer program – blockchain is the firmware, smart contracts are the software. Like apps on a smart phone, smart contracts are a tool capable of facilitating a wide range of functions.
Contracts are low-hanging fruit
Because of the ubiquity of standard-form contracts, which are often only altered to include ‘the particulars of the parties involved, when you want the thing to happen, [and] what it’s going to cost’ – some areas of contract law are particularly ripe for automation. Dr Ryan predicts that, before long, standard-form contracts for things like phone, insurance and energy supply contracts will be recorded in code. These coded ‘smart’ contracts will likely incorporate international laws and regulations, which is necessary for businesses looking to grow. As Dr Ryan says, ‘you’re not going to operate at scale if you’re not thinking globally’. 
So where are smart contracts actually heading and what are the hurdles?
Realising the potential of smart contracts relies on finding applications that are scalable. ‘The problem at the moment’, says Dr Ryan, is ironing out what she terms ‘very particular little legal issues’ like intellectual property, privacy, and anti-money laundering considerations. One of the more exciting possibilities of smart contracts is the idea that regulations addressing these issues can actually be coded into the smart contract itself. For example, a smart contract that automates know-your-customer requirements for each party in accordance with law. 
Boldly, Dr Ryan makes two predictions for where we’ll soon be seeing smart legal contracts in use: 
‘First, in relation to registered assets, such as shares or interests in land, to assist in making them more readily transferable; and second, in government, within its own departments or agencies, where, at scale, smart contracts can solve a problem, for example monitoring the distribution of welfare.’
As for the timeframe in which we can expect to see these kinds of changes, she says, ‘let’s go 2022 or 2023.’
Meet the experts
Dr Philippa Ryan is a barrister and a senior lecturer in the College of Law at ANU, where she is Director of the ANU LLM program. She is a member of the Treasury Audit Committee and chairs Standards Australia’s Smart Contracts Working Group. Dr Ryan is an editor of the Stanford Journal of Blockchain Law & Policy and is an independent member of the Lander & Rogers Board.
Professor Volker Skwarek is Head of the Blockchain Research Group at Hamburg University of Applied Sciences, and convenes the Smart Contracts Working Group. As an electrical engineer with an academic background that extends to law, economics and computer science, Professor Skwarek says ‘[b]its and bytes are nothing abstract for me. I can feel, touch and see them, which makes me a little bit different to other computer scientists.’
Author’s Bio
Madeleine Maslin is a lawyer at Lander & Rogers in the Commercial Disputes team and is a member of Lander & Rogers’ Blockchain & Digital Assets Group. Madeleine is also a member of Standards Australia’s Smart Contracts Working Group (TC-307/IT-041 Blockchain and Distributed Ledger Technologies).

[1] Philippa Ryan, ‘Smart Contract Relations in e-Commerce: Legal Implications of Exchanges Conducted on the Blockchain’ (2017) 7(10) Technology Innovation Management Review 10.

Introduction
The Australian Competition and Consumer Commission (ACCC) has recommended reforms to Australia’s privacy legislative framework which include the introduction of an erasure right, analogous to the GDPR’s ‘right to be forgotten’. The ACCC’s final report[1] from the Digital Platforms Inquiry includes sweeping recommendations for the regulation of digital content platforms, including search engines and social media networks. The report recommends the introduction of an ‘erasure right’; which would give individuals a right to obtain erasure of personal data upon request.[2]
Blockchain and distributed ledger technologies (DLT), meanwhile, are gaining traction with methods of storing data which are supposedly immutable — where information appended to the ledger cannot be amended or erased. 
There is an opportunity for Australia to establish a framework which allows these concepts to coexist, but to do so will require a regulatory approach that is innovative and informed.
So, in a world where consumers must have the ability to obtain changes and erasure of their personal data, is there a place for technologies which prevent those very actions by design?
The right to be forgotten
The Digital Platforms Inquiry examined the effect of digital content aggregation platforms (including search engines and social media networks) on competition in media and advertising markets. The final report includes 23 recommendations covering a number of areas of law, including competition, consumer protection and media regulation. The ACCC made recommendations for broad reform of the Australian privacy law regime and the Privacy Act,[3], which was only recently reformed in 2014.[4] The recommendation of an erasure right follows the introduction of analogous rights in other jurisdictions, most notably Article 17 of the GDPR, which gives data subjects the right to obtain the erasure of personal data in some circumstances.[5] These laws reflect a global trend towards enhanced protection of the rights of the individual with respect to their personal data.
Immutability
Blockchain boasts a number of characteristics not found in a traditional database. Greater transparency, enhanced security and improved traceability are the properties that turn heads in financial services and supply chain management, where complex value chains are riddled by issues of trust, data synchronisation and human error. Underpinning these properties is the claimed immutability of the blockchain.[6] Once a transaction is appended to a public blockchain, it cannot be tampered with or erased. This begs the question, if data being stored on-chain includes personal data, can these systems be compliant with ‘right to be forgotten’ laws such as that proposed by the ACCC?
Solutions in the tech
The first thing to consider is that private, permissioned blockchains do not share the same immutability as public, permissionless networks. If a network is centralised and run by one or a small number of nodes, amending or erasing past data is technically achievable (though whether or not it is operationally viable to be constantly re-writing or modifying past blocks is another story). More interesting are the challenges posed by public, permissionless networks, where in theory no one has the ability to remove or re-write data.
One solution to the potential conflict between ‘the right to be forgotten’ and immutable systems is to encrypt all personal data which is stored on-chain. That way, if a request is made to erase the data, the encryption key can be destroyed, rendering the on-chain data inaccessible. This effectively achieves the same outcome as erasing the data, right? While this solution appears logical, it is not clear whether making data inaccessible complies with the ‘right to be forgotten’ under the GDPR. The GDPR does not expressly contemplate decentralised networks in its drafting, which leaves up to the courts the question of whether data becoming inaccessible is the same as data being erased.
Australia’s opportunity
Herein lies the opportunity for Australian law makers. If the ACCC’s recommendations are to be followed, and we are to introduce rights of erasure, legislators should consider ways to harmonise the apparent conflict between these laws and immutable systems, rather than rendering these innovations non-compliant. One solution could be to include in the reforms, the concept of “effective erasure” which would expressly confirm that methods of rendering immutable data inaccessible (through cryptography or otherwise) are enough to achieve compliance with the erasure right.
The explanatory memorandum to the Privacy Act reforms in 2014 noted that the reforms were intended to be technology neutral, to ensure that the Privacy Act remained flexible and stayed relevant in times of technological change.[7] In this author’s opinion, future reforms should remain principles-based and technology neutral where possible, however they must also be informed by new and developing technologies, and deal with concepts such as immutability and decentralisation directly.
Conclusion
If a new data privacy regime is to be developed, the drafters would do well to take into consideration immutable systems of data storage. It would seem from its text that the GDPR regime was not drafted with decentralised, immutable systems in mind. Australia now has the opportunity to take a more informed approach. As we follow the global trend towards increased individual sovereignty over personal data and enhanced protections of the individual, we would be wise to understand and accommodate emerging technologies so as to avoid squandering the opportunities they present.
Author’s Bio
Joshua Butler is a lawyer at Lander & Rogers in the Corporate team and Chair of Lander & Rogers’ Blockchain Working Group. Josh is also a member of the LIV’s Refugee Law Reform Committee.

[1] Digital Platforms Inquiry – Final Report, June 2019 available at: https://www.accc.gov.au/publications/digital-platforms-inquiry-final-report.

[2] Digital Platforms Inquiry – Final Report, June 2019, Chapter 7, Recommendation 16(d).

[3]Privacy Act 1988 (Cth).

[4]Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth).

[5] EU General Data Protection Regulation, Article 17; commonly known as ‘the right to be forgotten’.

[6] Blockchains do not achieve true immutability. Rather, once a certain depth of validation is achieved, the economics of the system render tampering a practical impossibility, and practical immutability is achieved.

[7] Further Supplementary Explanatory Memorandum, Privacy Amendment (Private Sector) Bill 2000 (Cth), 9.

Yet another family law review has been announced.  In support of the review, Senator Pauline Hanson has condemned the “family court system" on the basis that "fathers get a raw deal from the family court".  Leaving aside Hanson’s further comments in relation to accusations about family violence, where does the truth lie?  Do fathers get a "raw deal" from the family court?
The Current Law
The Family Law Act 1975 (Cth) (the Act)does not make assumptions about parenting roles and is gender neutral.  In determining any order relating to a child, the Act provides that the court must regard the best interests of the child as the paramount consideration.
In determining what are the best interests of a child, the court must consider a long list of "primary" and "secondary" considerations which are outlined in the Act.  The primary considerations are:

The benefit to the child of having a meaningful relationship with both parents; and
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to abuse, neglect or family violence.

The latter consideration holds greater weight than the former. 
The secondary considerations consider a range of factors, including but not limited to a child’s views, the child’s relationship with its parents, a history of participation in decisions, time spent with the children and maintaining the child and the maturity, sex, lifestyle and background of the child and its parents.
Equal Shared Parental Responsibility
The Act provides an initial presumption that both parents should share in the role to make long term decisions which will impact a child. These decisions may include, where a child attends school, what medical procedures a child should undergo and what religion a child will adhere to.  This is known as equal shared parental responsibility.
More often than not, an order for equal shared parental responsibility is made.
Spend Time Arrangements
If a court finds that both parents should share parental responsibility, then a court must consider:

Whether it is in the best interests of the child for them to spend equal time with both parents; and
Whether equal time is reasonably practicable.

If the court is satisfied of the above factors, then an order for equal time must be made. If the court is not satisfied of the above factors, the Act provides that the court must consider whether it is in the best interest of the child to spend "significant and substantial time" with each parent and whether that is reasonably practicable.
More often than not, the Court will look for consistency and stability for children and try to ensure that the primary care giver for the children throughout the relationship (regardless of gender) is able to continue in that role post-separation.
Conclusion
So, do father’s get a "raw deal" in the family court?  The Act does not stipulate that this should be the case.  The Act clearly outlines the way in which orders affecting children and parents should be made and it is certainly gender neutral.  Ultimately, the facts and history of every family will be considered by the court and orders will be made on that basis.  
If you have any questions in relation to your parenting arrangements, please do not hesitate to contact Lander & Rogers Lawyers for specific advice.  
 

Introduction
Allegations of drug and alcohol abuse have become increasingly prevalent in parenting matters before the Family Court and Federal Circuit Court.
The Family Law Act emphasises the importance of a child maintaining a meaningful relationship with both parents provided there is no unacceptable risk to the child in maintaining such a relationship.
In parenting matters, allegations of substance abuse are dealt with by way of a risk assessment insofar as such abuse may impact upon a parent’s capacity to appropriately and adequately care for a child.
The challenge for a legal practitioner (and indeed the Court) is to assess the extent of the risk and determine what parenting arrangements ought to be implemented to facilitate a child having a meaningful relationship with the parent who is the subject of such allegations, while avoiding any unacceptable risk.
Reducing Risk
At the interim stages of a matter, if the Court is unable to satisfy itself as to risk, steps to reduce risk may involve:

the child spending limited time with the parent in question;
the parent’s time with the child being supervised by a professional supervision service or agreed third party;
an agreed third party, such as a grandparent or other family member being in substantial attendance during the child’s time with that parent;
seeking an order for the installation of an alcohol monitoring system in a motor vehicle which requires the driver to pass a breathalyser test before driving; or
in serious cases, suspending time with that parent.

A Court may, in some circumstances, make orders for a parent to attend specialist detoxification and rehabilitation programs at interim stages of parenting proceedings if there are serious allegations of abuse — usually supported by evidence in the form of medical or police records produced on subpoena.
Specialist drug and alcohol counselling can also help identify underlying issues that need to be addressed. Reports and/or assessments from such professionals can be produced to the Court as evidence of a parent’s treatment, prognosis and/or recovery to alleviate any concerns about risk.
Types of Tests
If an allegation of drug and/or alcohol abuse is made in parenting proceedings, then orders for testing need to be sought at the earliest opportunity to substantiate those allegations and/or to demonstrate what steps have been taken to reduce or eliminate any risk to a child.
Urine testing or urinalysis
This test involves a person producing a urine sample into a sterile tamper-proof container.  Random urine screens are the most common method of testing within the Family Court system.  The advantage of using a urine test is that a wide range of substances are detectable, however the detention time for these drugs is relatively limited.  Given many of the classes of drugs are no longer detectable after less than five days, testing for longer term use is generally in effectual via this method.
Costs for urine tests vary between $10 to $20 per drug for onsite testing and $25 to $50 per drug for laboratory testing.
Hair toxicology testing
This testing involves cutting a small quantity of hair as close as possible to the scalp or body and placing the sample in a secure collection envelope.  Approximately three centimetres of hair is required in order to measure consumption for the previous three months.  Hair from anywhere on the human body can be used.
This method of testing has become more common in family law matters.  The advantage of hair testing is that there is a longer window of detection and can provide information as to a person’s pattern of alcohol or drug use as opposed to one off or occasional use which assists the Court in determining risk. A limitation of this method of testing is that recent or single drug use may not be detected.
Hair testing is more expensive than urine testing and the costs can range from approximately $300 to in excess of $1,000 and can be used to detect as many drugs of abuse as urine testing. 
Liver function test (LFT) and/or carbohydrate deficient transferrin (CDT)
If there is a test for alcohol, then LFT or CDT tests are usually also sought.  Urine testing will show recent alcohol use where as LFT and CDT tests will assess excessive alcohol use.
The costs of these tests range from $30 to $150 and in many cases are Medicare subsidised.
Saliva testing
This requires a person to provide a sample by placing an absorbent collector in the mouth or touching it on their tongue.  These tests inform if an “active" ingredient in a drug is present, indicating recent use.  The advantages of a saliva test include that it is less invasive than urine testing however the major disadvantages include analysis of the drug concentration is limited to a ‘yes’ or ‘no’ category of identification and the window of detection is much smaller than hair testing and some urine tests.
The cost for onsite testing ranges widely in price however tests may be purchased for $40 to $50 to screen three to four drug classes.  Laboratory screening costs are around $50 per screening.
Conclusion
Where there are allegations of risk associated with substance abuse, the Court will proceed cautiously and set up safeguards on an interim and/or final basis to protect a child until there is an opportunity to test the allegations.
The Court will give greater weight to the need to protect a child from harm than the consideration of a child having a meaningful relationship with both parents, however the ultimate goal is to strike a balance between those competing factors to ensure the end result is in the best interest of the child.
 

The holy grail for most scale-ups is a reputable venture capital firm making a key investment — both financially and strategically. US investors are keen on Australian startups and scaleups, but they don’t always like holding shares in Australian domiciled companies over the long-term.There are two key reasons for this: firstly, they want senior management situated close to them to more efficiently coach and network them in the US to drive growth, and, secondly, Australian corporate law and regulation is not familiar to them and — in their eyes — adds to regulatory risk and transaction costs. Whilst this process can seem complicated, it is becoming a well-worn path provided you have experienced advisers to help navigate you through to completion.Increasingly, we are seeing significant US investments tied to the condition of bringing the holding company or ‘holdco’ closer to the US investors. The jurisdiction of choice is Delaware…
Why Delaware?
The State of Delaware has the most comprehensive and flexible set of facilitating corporate law for venture capital. More than 50% of publicly-traded companies are incorporated in Delaware. You don’t have to have your principal place of business there, meaning you can set up anywhere in the US.We recently helped enboarder, a fast-growing Human Resources ‘Software as a service’ platform business, to redomicile (colloquially known as a ‘flip’) to Delaware. Below we share some insights for other investee companies who may be considering a similar path.
What is a flip?
Whether you call it a ‘flip’ (US) or a ‘top-hat’ (UK), in essence it involves incorporating a new entity in the foreign jurisdiction, moving all your Australian shareholders and optionholders (“stakeholders") to that new holdco, then leaving the Australian entity as a wholly owned subsidiary of the new holdco. This process is primarily underpinned by tax advice and structuring to ensure that you can ‘roll’ the exiting holdings into the new holdco without triggering a taxable event, executed by a carefully constructed legal documentation framework.Moving your shareholders to the US involves a share-for-share exchange between the existing Australian entity and the new US holdco that is authorised by your shareholders. Moving your optionholders requires an offer being made by the new US holdco for new options on the same terms as their old options, and then the cancellation of their old options. The US investor will either invest just prior to the flip (i.e. subscribe for shares in the Australian company but with a condition that the flip happens) or invest immediately following the flip. Their investment commitment obviously needs to be watertight ahead of time as you don’t want to bother with the flip if the money will not follow.This process is a corporate flip and it looks like this:

 
Other ways to flip
Another option is a resource flip, which may satisfy a major investor without needing to complete a full (and costly) corporate flip. This is where key senior management are required to spend much of the year working in the US so that the US investor can have more direct access and influence), working more closely with them to accelerate the business such as making introductions and encouraging networking in the US.You could also make a full flip, which starts with the corporate flip but also requires the transfer of all of the assets and the operating business to the holdco or a new subsidiary in the foreign jurisdiction. This would reflect a full pivot to the foreign jurisdiction where justified on a market basis or for tax reasons.
Our top tips
1. Offset the cost with a tangible upside
Having both legal and tax advice, in both jurisdictions, is essential to get this done. Consequently, it is better justified in the scale-up or late start-up phase of a company. To justify the cost of this, you need to see and extract the value-add that the investor will deliver to your business and market growth by being in the new country, whether by access to their market network, customer distribution lines, or in-house development team.
2. Get advisers with experience
This is a legally complex transaction but has been well-road tested, so experienced legal advisers can efficiently manage the flip within 4-6 weeks. Lawyers are needed in both jurisdictions, and a tax adviser with offices in both countries would be preferable. If some of your shareholders or optionholders reside in other jurisdictions, you may also want to consider getting tax advice to help them to determine the tax impact of the flip on their own position (otherwise they will need to get their own advice).One of the advisers or someone in your own team needs to take the lead to set the timetable and coordinate all the inputs, of which there are many including ensuring compliance with Australian offer laws, incorporation of the new holdco and new shareholder agreements, the flip documents themselves, a new option plan and stock option agreements for your optionholders, the appointment of new board members, and a myriad of formal transfer paperwork that needs to be executed to finalise the flip.Given how much there is to do, you need a team around you that are easy to work with and responsive to your timeframe.
3. Get your tax advice early
The tax implications are complex, and this complexity rises if you have foreign shareholders on your share register and employee options outstanding. You need a tax adviser who has experience in flipping companies to eliminate the risk of triggering an Australian tax event for your Stakeholders, and to make the process easier for you to navigate and explain to your shareholders and employees.
4. Your major shareholders need to be on board early
Before you commit the time and adviser costs to executing the flip, you should canvas your major shareholders to ensure that they are on board. The flip can only happen if every shareholder agrees to exchange their shares for shares in the new holdco. You may have the contractual right in your shareholder agreement to forcibly drag all your shareholders into the flip, but winning their approval is always a better way to go. Those shareholders will, after all, continue to be your shareholders after the flip.
5. A large shareholder body can be tricky
Apart from the practical difficulties in trying to get a large shareholder body to each agree to exchange their Ausco shares for shares in the new US holdco, there are also restrictions on making offers to your Ausco shareholders without a disclosure document (like a prospectus) unless all your offers qualify for an exclusion under law. The lesson here — if you are going to make a flip, go before your capital table becomes too complicated.
6. Shareholder agreement mis-match
Australian-style shareholder agreements (even one already amended to accommodate usual Venture Capitalist-required terms) are very different from the US-style, standard investor and governance agreements. For Australian domiciled shareholders, the flip only works to avoid Capital Gains Tax if they retain the ‘same rights’ after the flip as they did before — this can’t be achieved if you simply move from an Australian shareholder agreement to a VC-standard shareholder agreement. There are a few ways to accomplish this, but we suggest that you tackle this early in your planning with advisers.
7. Dealing with employee options
Similar CGT rollover relief issues arise when trying to rollover your employee optionholders into options to be granted by the new US holdco. Standard US stock option plans contain concepts and restrictions that won’t result in the ‘same rights’ for optionholders. You also need to ensure that the favourable start-up tax concessions for optionholders are maintained so that your employees are no worse off from a tax perspective after the flip — this is obviously important to secure their buy-in.
8. Communication is key
Your employees will be concerned about the flip and may have many questions about how it will impact them. While a formal communications document will need to accompany the final package of legal documents you send to all Stakeholders, you don’t want to ‘flip out’ your employees by keeping them in the dark about what is going on. The story is a really positive one. A flip is usually a sign that the company is growing and the move to the US is transformational in terms of customers, markets, and scale — all very exciting stuff!
 
Need help making the flip?
We can put you in touch with advisers here in Australia and overseas to help you to take this big step… without flipping out!
 
Deanna Constable is an experienced M&A, corporate, and commercial partner at Lander & Rogers. She provides legal advice to foreign investors and supports startups and scaleups from establishment through to exit. Get in touch with Deanna below.
 

In an ironic turn of events, a poorly implemented and followed performance improvement plan (PIP) has resulted in an employer having to pay $205,342 to an employee who brought a successful adverse action claim in the Federal Circuit Court of Australia.
What happened in this case?
For over 10 years, Mr Pezzimenti was an office manager of Rotary International (Rotary). He was dismissed in June 2017 for alleged poor performance and subsequently commenced adverse action proceedings against Rotary. 
It all started in October 2016, when Mr Pezzimenti was placed on a PIP, for a period of 4 months.  During the PIP, Mr Pezzimenti made a formal bullying and harassment complaint against his supervisor, who had placed him on the PIP.  The complaint alleged that the PIP was not being properly implemented and it was a sham to terminate his employment.
After a series of discussions regarding the PIP, including one where Mr Pezzimenti’s supervisor said to him “Frank you didn’t need to go to the extent of putting in a bullying complaint against me”, Mr Pezzimenti was told, on 15 March 2017, that one item of the PIP was still outstanding.
On 27 March 2017, Mr Pezzimenti completed the final requirement of the PIP and later provided his supervisor a document identifying the achievements against each of the four deliverables of the PIP. 
However, Mr Pezzimenti’s supervisor ultimately found that he failed to meet the deliverables of the PIP and he was suspended.
On 11 April 2017, Mr Pezzimenti commenced proceedings seeking to restrain Rotary from dismissing him.  Following the commencement of proceedings, Mr Pezzimenti’s supervisor, and Rotary’s HR director reviewed his leave records and email account and issued him with a show cause letter. Rotary asked Mr Pezzimenti to show cause why his employment shouldn’t be terminated for reasons including;

inaccuracy in his leave records,
breaching confidence in an email, and
failing to meet the standards expected in the PIP.

When Mr Pezzimenti failed to attend the show cause meeting, his employment was terminated.
The Decision
Mr Pezzimenti filed an adverse action claim, seeking relief against Rotary. While Mr Pezzimenti originally sought relief to restrain Rotary from dismissing him, he did not move on this relief. The claim alleged, among other things, that Rotary took adverse action against Mr Pezzimenti because he made a bullying complaint against his supervisor.
Unsurprisingly, Rotary argued that while Mr Pezzimenti was threatened with dismissal, it was not because he had made the complaint, but rather because of his unsatisfactory progress under the PIP, breaches of confidence and failure to comply with the show cause letter.
In his decision, Judge Driver  observed that:

while Rotary’s issues with Mr Pezzimenti had some substance, and the PIP was justified, at least in the form it was originally conceived, "the goalposts of the PIP themselves changed… It was as if Mr Pezzimenti was from that point, set up to fail";
after the initial process of the PIP, Rotary went looking for additional reasons to dismiss Mr Pezzimenti, including, reviewing his leave records to find out if he was absent from work without proper authorisation.  Judge Driver held that this had an "air of artificiality to it"; and
it was of significance that there were three individuals who were responsible for the dismissal and not all of them were called to give evidence.

Judge Driver held that Rotary had contravened the general  provisions under the Fair Work Act 2009. Rotary was ordered to pay $205,342 in compensation, being equivalent to his annual salary.
Practical Tips:  How do you ensure a PIP doesn’t result in an adverse action claim?

Arrange a face-to-face meeting with the employee that you propose to put on a PIP and offer them the assistance of a support person.
Explain, where appropriate, the issues that you have with the employee’s performance or conduct.
Formulate a set of definite objectives that the employee needs to achieve over a set period of time. An "assessment period"  will make it realistic for the employee to achieve.  Ask for the employee’s input on the objective.  Make sure to only set objectives for the employee that are achievable within the assessment period of the PIP. 
Finalise the PIP.  Ensure the parties sign a copy of the minutes/a summary of the meeting and keep a copy on file for your records.
Regularly monitor the employee’s progress over the assessment period.
Provide the employee with support, as required, throughout the assessment period.
Meet again with the employee at the end of the assessment period and determine whether the performance or conduct objectives have been achieved.  If this is coupled with an adequate organisational support structure, you will ensure the employee has the best chance of improving their performance and conduct.
If any decision is made with respect to the employee and the PIP, limit the number of individuals making that decision as it could mean all decision makers will be required to give evidence in possible legal proceedings.

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A recent Supreme Court of Victoria decision has dismissed an appeal by the Medical Board of Australia to overturn Victorian Civil and Administrative Tribunal’s (VCAT) decision to not suspend a doctor charged with serious criminal offences.1
Background
In September 2018, Dr Liang Joo Leow (the respondent) was charged with one count of rape, and alternatively, one count of sexual assault. The respondent denied the allegations.
The allegations relate to an incident which occurred in 2017. The respondent and complainant were both single homosexual men who were doctors working at different hospitals. In mid-2017, they went out for dinner and later decided to have sex at the complainant’s home. The complainant alleges that the respondent removed a condom during intercourse after assuring the complainant that he would use one.
Suspension of respondent’s registration
The Medical Board of Australia (Board), acting pursuant to section 156(1)(e) of the Health Practitioner Regulation National Law (National Law), took immediate action and suspended the respondent’s registration when charges were laid. Section 156 of the National Law allows the Board to take ‘immediate action’ in relation to a registered health practitioner in certain circumstances. Relevantly, these include where the Board ‘reasonably believes the action is otherwise in the public interest’. An example provided in the National Law is where a ‘health practitioner is charged with a serious criminal offence, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.’
The respondent appealed to the VCAT. VCAT overturned the decision of the Board, with the majority of two to one determining that the immediate action was not in the public interest. The respondent’s suspension was therefore set aside.
The Board appealed to the Supreme Court of Victoria, with Justice Niall presiding over the appeal.
The decision
Grounds of Appeal
The Board appealed VCAT’s decision on four bases:

VCAT failed to give adequate reasons.
VCAT’s decision was irrational or unreasonable.
VCAT considered irrelevant matters, including that:

the public would know the allegations are only against one medical practitioner;
an allegation of this nature is rare;
the public would not judge the whole profession based on one medical practitioner’s alleged conduct; and
the public would understand that until a finding of guilt, the medical practitioner could continue working.

4. Is the Board (and VCAT) required to determine whether it has formed the reasonable belief that immediate action is required to be taken to maintain public confidence in the provision of service by health practitioners?
The Court’s findings and conclusions
Justice Niall granted leave to appeal but ultimately dismissed the appeal.
The Court found that VCAT did give adequate reasons and that the decision was not irrational or unreasonable.
Justice Niall opined that for the Court to be satisfied that irrelevant considerations were taken into account, the Court would have to find that the matters listed at number 3 above were those matters that the Board and VCAT was expressly precluded from considering by section 156 of the National Law. The Court found that the matters considered by the Tribunal were not irrelevant and could be taken into account in assessing the impact of the alleged conduct on the reputation of the medical profession as a whole.
When considering the test that must be applied under section 156(1)(e), Justice Niall found that the ‘issue of public confidence was squarely raised and considered by the Tribunal.’ The Court found there was no substantive difference in VCAT’s finding that public confidence will not be lost by allowing the respondent to continue practising and a finding that immediate action is not required to maintain public confidence in the provision of service by health practitioners. The Court confirmed that VCAT considered whether immediate action was required to maintain public confidence in health practitioners as it was required to do.
Key learnings from the case
The case found that immediate action will not necessarily be required to maintain public confidence in the health profession where a practitioner has been charged with serious criminal offences, including rape and sexual assault.
The Court also found that there is no general rule for evaluating the loss of public confidence in the health profession. The Board and VCAT will be able to consider a wide number of factors in assessing the impact on public confidence in reaching a determination as to whether immediate action is required.
The judgement provides an important precedent for insurers and lawyers assisting practitioners in the immediate action process.
 
Authors Rob Muir, PartnerAbbey Clark, GraduateRose Smith, Graduate
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Does an employee have to be consulted, in accordance with an applicable industrial instrument, about their impending termination? According to a recent decision1 by the Fair Work Commission (FWC), not necessarily.
But what about the obligation under the industrial instrument to consult with an employee before terminating their employment? Deputy President Binet (DP Binet) said that a failure to comply with such a requirement will not necessarily render the dismissal harsh, unjust or unreasonable, particularly in circumstances where “consultation is highly unlikely to negate the operational reasons for the dismissal or lead to any other substantive change".
Background
A small real estate agency, Oxford Property Group (Oxford), was struggling as a result of an industry downturn in Western Australia and changes to the Real Estate Industry Award (Award). This resulted in the need to downsize its operations. Oxford told one of its employees, Mr Arnold (the Employee) that because he had only sold three properties in the first quarter of the year and presented a "financial risk" to Oxford, his employment would be terminated in two days’ time.
The Employee filed an application in the FWC alleging that he had been unfairly dismissed.
Employer’s Argument
Oxford argued that it did not dismiss the Employee, rather that it made him redundant.
It said that the Employee’s redundancy was genuine, and that in the months leading up to his retrenchment, it had moved the business to smaller premises, retrenched a receptionist and bought out a Director in an attempt to improve the viability of the business.
Further, a change in the Award meant that Oxford would no longer be able to employ sales representatives, such as the Employee, on a "commission-only" basis and would be required to pay the Employee a salary if his employment was to continue with Oxford.  As a consequence of this change, Oxford decided to restructure the business, decrease the number of sales representatives and focus on property management.
The Commission’s Approach
DP Binet was of the view that the Employee’s position was no longer needed to be performed by anyone because of the changes in Oxford’s operational requirements.  However, because Oxford had failed to comply with the consultation obligations in the Award, DP Binet found that the redundancy was not genuine.
DP Binet then considered whether the Employee’s dismissal was harsh, unjust or unreasonable. 
Interestingly, although DP Binet held that this was not a case of genuine redundancy, she was nevertheless satisfied that the reason for dismissal was the overall performance of the business and the need to reduce costs.  As the dismissal was not related to the Employee’s capacity or conduct, DP Binet held that the matters of whether or not there was a valid reason for dismissal, and whether the Employee was notified of that reason and given an opportunity to respond, were all "neutral factors".
When considering "other matters" as required by s387(h) of the Fair Work Act 2009, DP Binet gave significant weight to the following.

That there was a sound, defensible and well-founded reason for the termination of the Employee’s employment because of changes in operational requirements.
That there were no redeployment opportunities within Oxford or any related entity.
The small size of the business and absence of any human resources expertise.
That a failure to consult in accordance with the relevant industrial instrument does not necessarily mean a retrenchment was harsh, unjust or unreasonable.

Finding
DP Binet noted that the usual rule is "that consultation must not be perfunctory advice about what is about to happen (and this is what occurred in the present matter)" and commented that Oxford "should have more fully consulted" with the Employee.
However, DP Binet formed the view that in this case, compliance with the consultation requirements would not have negated the operational reasons for the dismissal nor led to a different outcome. This failure therefore did not render the dismissal harsh, unjust or unreasonable.
What does the decision mean for employers at large?
The decision highlights that there are certain circumstances where an employer may be "safe" from an unfair dismissal claim if it proceeds  to termination without consulting with an employee. However, these situations are highly exceptional and should be approached with caution.
Where an industrial instrument imposes a consultation obligation, the best approach is for employers to consult with employees before terminating their employment for reason of redundancy.
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AuthorsAmie Frydenberg, Special CounselAli Redfern, Lawyer Sam Rowling, Graduate

It’s easier than ever to make a high-quality audio and video recording. If you’re a party to family law proceedings, you might be tempted to record your former partner for use in your case.
Is it legal?
The laws about recording private conversations differ between States and Territories. Recordings of private conversations in some jurisdictions can carry a hefty fine, or even result in imprisonment.
What will the Court do?
Every matter is different, and there is no guarantee that parties to family law proceedings will be permitted to use recordings that they have made without the other person’s knowledge.
In the recent case of Coulter & Coulter, the parties were embroiled in parenting proceedings concerning their two children. The mother was also seeking an intervention order against the father as a result of his abusive behaviour.
When the father was due to collect the children from the mother’s house, the mother placed a video recording device in the hallway, which faced the front door. The device filmed the conversation that took place between the parties at changeover without the father’s knowledge.
The Court decided that the video was not illegal because the mother was protecting her lawful interests. She was a victim of family violence and was attempting to demonstrate this in the context of the proceedings for an intervention order.
The mother also recorded private telephone discussions between the father and the children which were, however, found to be illegal.
Although the mother believed that the father was using those telephone conversations to alienate one of the children, this was not enough to demonstrate that she was protecting her lawful interests. By recording these conversations, the mother was found to be invading the father’s privacy and seriously compromising the children’s right to a meaningful relationship with their father.
Before you take the risk, obtain legal advice.
With the real risk that making such a recording might break the law, it is important that you obtain legal advice from a family lawyer before you decide to take matters into your own hands.
In navigating the legalities of making recordings, you might discover that there are other courses of action available to you.
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Aside from the typical real properties held in individual names, interests held in corporations, in partnership, business interests, superannuation, and trusts may all be included when dealing with property settlements and financial issues in family law matters. The list is endless.
The Court’s approach to property settlements
The Family Court of Australia1 approaches property settlements utilising five (5) steps:

Is the property settlement actually necessary;
What are the assets, liabilities, superannuation and financial resources of the parties and what is the value of each interest;
What did each party contribute to the relationship at cohabitation, throughout the relationship and following separation;
Are either of the parties entitled to more of the asset pool due to their future needs; and
Whether the overall property settlement outcome, after going through the above steps, is just and equitable (or fair) in all the circumstances.

The impact of the broad definition of property and duty of disclosure
The Court has wide discretion and extensive powers over the types of orders it can make. At step 2 of the above 5 steps approach, all property interests are included in the Balance Sheet for division.
What is not commonly known is that the definition of property in family law is broad. It includes the traditional forms of property such as real estate, shares, and funds in bank accounts. However, the definition also extends the Court’s reach to business interests, shares in an employee share scheme or other employee entitlements, unsecured loans with family members or business partners, and assets which a party may have otherwise thought were protected in a trust. In addition, the Court has the power to include assets both within Australia, and overseas.
To be able to identify such interests, all parties have an ongoing duty of full and frank disclosure. As a result, there is potential for an individual who is not a party to a relationship breakdown to become joined, or in some way connected to, family law property proceedings.
Examples
By way of example, the duty of disclosure and the Court’s power can result in the following scenarios:

Where a parent or business partner has loaned funds to a person who becomes a party to family law proceedings, loan documents and the arrangements surrounding the loan will need to be disclosed. Sometimes, if the lenders calls on the repayment of the loan, the lenders may be joined to the proceedings;
Where a party to family law proceedings (party 1) holds an interest in a business, company or partnership with other third parties, party 1 will need to disclose financial accounts and other documents which may be confidential for business purposes. Such documents extend to management accounts, forecasted budgets, any future projections for the entity, and minutes;
Where a party does hold an interest in an entity, an expert may be appointed to conduct a formal valuation of the business/company. The party’s interest in the entity is included within the asset pool for division;
Where a party holds a controlling interest in a trust which holds substantial assets, those assets are likely to be included within the asset pool for division; and
Even where a party (party 1) only receives (or has historically received) distributions from a trust and has no controlling interest in that trust, the other party may join the trustee to the proceedings. Distributions received by party 1 may be considered as a financial resource and reduce any entitlement party 1 may have otherwise had for a future needs adjustment at step 4.

The above examples are the tip of the iceberg — there are a myriad of risks when family law issues are involved. It is becoming more common for clients to seek advice from a Family Law Accredited Specialist prior to the commencement of a relationship to understand their rights and the risks involved. A good legal advisor will consider whether protective measures, such as a Financial Agreement, need to be in place to exert some control over the outcome in the event of a relationship breakdown.
This article was first published by Legalwise on 23 September 2019, and is available here. 
 

Lander & Rogers has advised QMS Sports Holdings — a subsidiary of leading digital sports marketing business QMS Media Limited (ASX:QMS) — on its $32.7 million purchase of the TLA Worldwide and Stride Sports Management businesses.
TLA and Stride are leading talent representation and sports marketing groups with a diverse client base of sporting talent across AFL, cricket, netball, Olympic sports and media talent throughout Australia and the UK. TLA represents over 30% of AFL athletes, coaches and talent, 25% of professional Australian and UK cricket talent contracts and a growing roster of UK Olympians.
These acquisitions provide QMS Sport with an enhanced service offering that together creates a unique vertically integrated sports advertising platform; leveraging the strength of their respective strategic relationships with both domestic and international clubs, agencies and rights holders to broaden client service offerings and grow collective revenue streams.
Lander & Rogers provided legal advice on all aspects of the transactions, including conducting due diligence on the target entities, negotiations in relation to warranty and indemnity insurance, drafting and negotiation of all transaction documents and escrow arrangements. The Stride acquisition also included a pre-completion restructure of the Stride business.
Corporate partner Peter Monk said,”It has been terrific working again with QMS’ transactions team on TLA and Stride. With these acquisitions taking the next step in developing QMS Sport as a global integrated sports platform, we are proud to be supporting QMS’ strategic growth".

Background
Dalby Bio-Refinery Ltd (Dalby) was insured under an ISR Mark IV Policy issued by Allianz Australia Insurance Limited, ACE Insurance Limited (now Chubb Insurance) and Zurich Australian Insurance Limited (together, Insurers) for the period 30 June 2015 to 30 June 2016 (Policy).
On 2 March 2016, an employee of Dalby attended a storage facility in Dalby, Queensland (Facility), and observed the smouldering of stockpiles of dry distiller’s grain and solubles (DDGS) (Incident). As a result of the Incident, a large quantity of DDGS stored in the Facility was declared a write-off and discarded.
Dalby sought indemnity under the Policy for its alleged losses arising from the Incident (Claim). 
Position on indemnity and proceedings
Insurers declined to cover the Claim based on the Perils Exclusion. Dalby did not accept that the Perils Exclusion applied to exclude cover for the Claim. On 30 October 2017, Dalby commenced proceedings against Insurers seeking indemnity for the Claim.              
Case progression
The Federal Court, in first instance, found in favour of Insurers, concluding the declinature was valid, Dalby Bio-Refinery Ltd v Allianz Australia Limited [2018] FCA 1806 (Federal Court Judgment).
Dalby’s appeal of the Federal Court Judgment was heard on 14 May 2019.  Judgment was delivered on 24 May 2019, with the Federal Court of Appeal dismissing Dalby’s appeal with costs, Dalby Bio-Refinery Ltd v Allianz Australia Limited [2019] FCAFC 85 (Federal Court of Appeal Judgment).  
On 21 June 2019, Dalby filed an application for special leave to appeal the Federal Court of Appeal’s decision.  In a judgment delivered on 16 September 2019, Dalby’s application for special leave to the High Court was refused with costs.
Key Implications for the insurance industry
The High Court confirmed the Federal Court of Appeal’s judgment, which establishes four key points regarding the Perils Exclusion:

the word “heating" is to be qualified by “spontaneous” to read “spontaneous heating”;
the proper meaning be given to Perils Exclusion 6(c)(ii) is a businesslike construction, by reference to what a reasonable businessperson would have understood the words in their commercial context to mean;
the definition of "spontaneous" is broader than the notion of an event of some suddenness, as shown by the directory definition; and
in respect of physical loss, destruction or damage occasioned by or happened through self-heating, there is no reason to search for antecedent events to identify the anterior cause(s) of the self-heating.  

Conclusion
This is a significant decision not only for Insurers but the commercial property and ISR industry more broadly.
It confirms that cover under an ISR Mark IV policy does not extend to physical loss, destruction or damage occasioned by or happening through spontaneous combustion, fermentation or heating.
This is a risk that insurers are not willing to accept, as it is a well-known risk that is within the control of insureds dealing with bulk store of organic material.
 

Quick Links

Key developments
The Mondelez case
Mondelez’s argument
The AMWU and the shift workers’ argument
The Full Court’s decision
Key actions for employers

Key developments
The Fair Work Ombudsman has released advice that all permanent employees are entitled to 10 days of paid personal/carer’s leave for each year of employment.
This is a major departure from calculating personal/carer’s leave entitlements in hours, which is the approach currently taken by most employers and employees.
This is likely to cause differences in payments to and between employees, particularly part-time employees and shift workers or those with non-standard work patterns. Employers may need to rectify underpayments and alter their current systems. It may also require employers to review budgeting and workforce planning.
Having said this, the Ombudsman’s advice is based on Mondelez v AMWU [2019] FCAFC 138 (Mondelez), however this ruling may not stand. The Commonwealth Government has now announced it will support the applicant (Mondelez) in seeking special leave to appeal the decision to the High Court of Australia. If leave is granted, the case may be overturned. The Government may also seek to amend the Fair Work Act 2009 (Cth) to prevent the operation of the decision – but in the meantime it remains the current law employers must comply with.
The Ombudsman has also updated its Fair Work Information Statement, which employers are required to provide to all new employees on commencement.T
The Mondelez case
Mondelez initiated this case and sought a declaration from the Court that entitlements to personal/carer’s leave under its enterprise agreement were more beneficial than under the Fair Work Act.1
Mondelez employs permanent full-time staff in a “standard pattern" of 7.2 hours a day, five days per week and a "shift work pattern" of 12 hours a day, three shifts per week.
Under the enterprise agreement, the ‘standard pattern’ employees are entitled to 72 hours of personal/carer’s leave per year, while shift workers are entitled to 96 hours. Each time a shift worker took paid personal/carer’s leave for a single shift, Mondelez deducted 12 hours from their leave balance. Over the course of a year, shift workers accrued personal/carer’s leave for absences for eight shifts of 12 hours. In contrast, the standard pattern employees would accrue personal/carer’s leave for absences for ten shifts of 7.2 hours.
The Australian Manufacturing Workers’ Union (AMWU) argued this was wrong and that shift workers should accrue ten shifts of 12 hours of paid personal/carer’s leave per year in order to meet the minimum NES entitlement of 10 days’ paid personal/carer’s leave,
Mondelez’s argument
Mondelez argued that the entitlement to “10 days of paid personal/carer’s leave” in the relevant section of the NES must be understood according to the “industrial meaning” of the word “day”. That meaning was said to be a “notional day”. In other words: average weekly ordinary hours divided by five (for an ordinary working week).
For example, an employee who works 36 ordinary hours per week, regardless of when they work the hours, works an average of 7.2 hours per day in a five-day week. The “notional day” is 7.2 hours and the employee is entitled to 10 such days, or 72 hours, of paid personal/carer’s leave for each year of service. If the employee takes a day of leave, they are paid 7.2 hours’ wages, and 7.2 hours is deducted from their accrued leave balance.
The AMWU and the shift workers’ argument
The AMWU and the shift workers argued that “day” in the relevant section of the NES has its ordinary meaning of a “calendar day”, which is “a 24-hour period”. They argued that the relevant section entitles each employee to be absent from work without loss of pay on ten calendar days per year when ill or caring for a member of their immediate family or household. They argued that an entitlement to be paid for a “day” is an entitlement to be paid for the hours that would have been worked by the employee on that day were it not for their illness or responsibility as a carer.
The Full Court’s decision
The Court did not accept either party’s interpretation of the word "day". It preferred the concept of a working day. The Court found that in the relevant section of the Fair Work Act, “day” is used in the specific context of an authorised absence from work.
The Court held that in that context, the natural and ordinary meaning of "day" is not a 24-hour period, but the portion of a 24-hour period that would otherwise be allotted to working, which the Court called this a "working day". It concluded that the natural and ordinary meaning of “10 days of paid personal/carer’s leave” under the relevant section means absence from work for ten such “working days”.
The Court reasoned that personal/carer’s leave is a form of income protection – it provides income when an employee is absent from work due to illness, injury or the need to care for a member of their immediate family or household. Therefore, the Court held that the section should protect against loss of earnings for a "working day".
The Court confirmed that:

personal/carer’s leave is a form of income protection for 10 working days per year;
each employee accrues an entitlement to the same number of working days of paid personal/carer’s leave for each year of service, which means each employee will be equally protected against his or her loss of earnings should the need to take leave arise;
all employees taking personal/carer’s leave, whatever their pattern of shifts, are entitled to payments reflecting the income they would have earned had they been able to work; and
for every day of paid personal/carer’s leave taken, a day is deducted from the employee’s accrued leave balance.

The effect of the Court’s finding is that an employee can access up to ten working days of personal/carer’s leave for each year of service, regardless of the number of ordinary hours the employee ordinarily works on those days or their pattern of work.
For example, employees working three shifts of 12 hours per week should accrue entitlements to 10 working days per year and be paid the equivalent of an ordinary shift on days they are absent from work due to illness or caring responsibilities.
Key actions for employers
Employers should use the Ombudsman’s advice as a starting point to review how their business currently accrues and deducts personal/carer’s leave. Many employers will need to change their approach to personal/carer’s leave.
If an enterprise agreement applies to your workforce and includes entitlements for personal/carer’s leave that are purportedly more beneficial than the NES in the Fair Work Act 2009 (Cth), review whether those entitlements are actually more beneficial.
Consider auditing personal leave accruals and deductions for at least the last six years. Accruing, paying and deducting leave based on an employee’s ordinary hours (e.g. 7.6 hours), irrespective of the employee’s shift length (which might be 12 hours) or part-time employment (which might be 8 hours per week), is inconsistent with the Mondelez decision and the Ombudsman’s update.
The Mondelez decision is complex and raises several legal and practical questions about accruing and deducting leave. Employers should consider seeking further advice on the impact of the decision, especially if you employ part-time employees or shift workers.
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