February 2003
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In this edition:
Note: All hyperlinks below were correct at the time of publication. Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.
APRA has said that the granting of superannuation licences under the new reforms to be introduced in early 2004 will be dependent on a trustee’s ability to effectively demonstrate its capabilities in managing investment risk, operational risk and agency risk. For details, see Media Release 03.20:
http://www.apra.gov.au/media-releases/03_20.cfm
ASIC has released for public comment an update to Interim Policy Statement IPS 159 Takeovers: discretionary powers. Of relevance to inhouse counsel are the proposed relief for companies who enter into an escrow agreement with a holder of shares and permitting employee share scheme securities that are non-transferable to be compulsorily acquired. For a copy of the paper, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/PPP_ps159.pdf/$file/PPP_ps159.pdf
ASIC has released the results of its ongoing surveillance and compliance program under the new FSR product disclosure regime. For details, see Media Release 03-052:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/711CE111CBFF7ABCCA256CCC00073A96?opendocument
ASIC has filed proceedings in the Federal Court against Southcorp alleging a breach of its continuous disclosure obligations in relation to an email sent to selected analysts containing information about the company's forecast earnings. ASIC is seeking a declaration that Southcorp's conduct contravened its market disclosure obligations, together with the imposition of a pecuniary penalty. See Media Release 03-070:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/817334F85B0E883DCA256CD90008C65B?opendocument
The proposed business rule amendments foreshadowed in Participant Circular 023/03 containing transitional provisions for the FSR reforms have now come into effect. See Participant Circular 063/03 and attachments:
ASX has released for comment a second draft of its proposed Guidance Note on recommended practices relating to independence of research, disclosure of conflicts of interest and dealing before release of research recommendations. See Participant Circular 044/03 and attachment:
Subject to regulatory approval, expected in the second quarter of 2003, the ASX will commence trading wheat, barley, sorghum and canola futures contracts. For details, see:
http://www.asx.com.au/markets/l3/GrainFutures_AM3.shtm
As a result of the deletion of ASX Business Rules 5D.1.1 – 4 and the amendment to ASX Business Rule 5D.1.5 which became effective on 18 February 2002, ASX has withdrawn Guidance Notes 2/02 Waivers of ASX Business Rule 5.10: Transactions for Employees of Another Trading Participant and 5/02 Consent under ASX Business Rule 5D.1: Transactions for Prescribed Persons of another Trading Participant. These matters are now simply left to be regulated by section 991F(3) of the Corporations Act. For details, see Participant Circular 076/03:
For a general update on recent developments in banking and finance law, see Clayton Utz, Financial Services Issues - February 2003:
http://www.claytonutz.com/downloads/FinServ_Feb03.pdf
For a general summary of recent developments in employee relations law, see Blake Dawson Waldron, IR Bulletin – February 2003:
http://www.bdw.com.au/publications/ir/ir022003.pdf
For a discussion of a recent landmark case on working from home and its implications for employers, see Minter Ellison, HR & IR Update - 19 February 2003:
http://www.minters.com.au/mintersV2/uploads/files/HR&IR-Update_030217.pdf
Freehills, Job Applicant Receives $7000 Compensation for Referee's Privacy Breach - 21 February 2003 has an interesting discussion of a recent case in which the Federal Privacy Commissioner awarded a Federal Government employee compensation for breach of privacy in respect of the disclosure of health information in an employment reference. See:
For a convenient summary of the High Court decision in New South Wales v Lepore; Samin v Queensland; Rich v Queensland (a link to which appears below), see Minter Ellison, High Court Considers Liability of Employers - 14 February 2003:
Minter Ellison, Lid Kept on Pure Economic Loss Claims - 21 Feb 2003 has an interesting discussion of the recent decision in the Longford class action over damages caused by a major explosion in a gas plant and the cautious approach Australian courts continue to take on pure economic loss claims. See:
http://www.minterellison.com/mintersV2/uploads/files/030224_LidKeptOnPureEconomicLossClaims.pdf
Phillips Fox, Insurance Update - February 2003 has a detailed summary of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) recently passed by the New South Wales Parliament. See:
http://www.phillipsfox.com/vbscript/displaydoc.asp?ndocid=98206
For a convenient summary of the High Court decision in Boral Besser Masonry Limited v ACCC (a link to which appears below), see Blake Dawson Waldron, Competition Law News - February 2003:
http://www.bdw.com.au/publications/competition/competition022003.pdf
In ASIC v Rich [2003] NSWSC 85, Austin J of the NSW Supreme Court refused an application by the former chairman of directors of One.Tel to strike out civil penalty proceedings instituted against him by ASIC alleging that, as chairman, he had "special responsibilities" over and above other directors. The full text of the judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2003/february/2003nswsc85.htm
In The Barclay MIS Group of Companies Pty Ltd v ASIC [2002] FCA 1606, the Federal Court held that certain risk management products aimed at protecting landlords against loss of rent and damage to property caused by tenants were insurance contracts and that the issuer of the products was therefore required to be registered as a general insurer under the Insurance Act 1973 and to have a financial services licence under the Corporations Act. The full text of the judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2002/december/2002fca1606.htm
In Maurici v Chief Commissioner of State Revenue [2003] HCA 8, the High Court held that an assessment of the unimproved value of land for land tax purposes conducted by reference to a small number of sales of unimproved land was invalid because it did not take account of the scarcity of such land in Sydney and it improperly excluded evidence of reasonably contemporaneous sales of comparable improved land. The full text of the judgment is available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2003/8.html
In New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4, the High Court addressed whether a school authority was vicariously liable for the alleged sexual assault of a pupil by teacher or was liable for breach of a non-delegable duty of care. The case is an important exposition of the principles when an employer is vicariously liable for criminal conduct of employees. The full text of the judgment is available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2003/4.html
In Boral Besser Masonry Limited v ACCC [2003] HCA 5, the High Court held that the defendant, with a less than 30% share in the market for concrete masonry products market, did not have a substantial degree of market power and therefore its alleged acts of predatory pricing were not unlawful even though they were directed at eliminating competitors from the market. The full text of the judgment is available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2003/5.html
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