The Commercial Bar Association of Victoria Inc. A0120851O
Trade marks – misleading or deceptive conduct – passing off – whether separate reputation in mark – differences in get up – unjustified threats – delay in bringing infringement action – whether claimant acted with due diligence
Patents – complete specification – best method – “performing the invention” – whether feature omitted from specific part of the best method known to the applicant for performing the invention
The Supreme Court of Victoria’s Arbitration List judge has confirmed that the appropriate standard of review by a court of an arbitral tribunal’s preliminary ruling on jurisdiction is a de novo review.
Mediation in sports disputes is growing in popularity. This article reviews the benefits offered by mediation and considers how sports disputes are different from ordinary commercial disputes. The author also offers some practical suggestions for mediators in sports disputes.
In Longley v Chief Executive, Department of Environment and Heritage Protection [2018] QCA 32, the Queensland Court of Appeal has clarified the ability of liquidators to disclaim onerous property, including obligations that arise in respect of that property under State environmental legislation.
The Court of Appeal dismissed an appeal by ASIC in proceedings brought against Peter Geary, a former officer of the Australian Wheat Board. The proceedings related to payments made by AWB to the Iraqi government in contravention of UN Resolutions.
A contractual provision which had the effect of excluding liability for damages for misleading or deceptive conduct under s 236 of the Australian Consumer Law if the complainant failed to give a notice of the proposed claim within a prescribed time limit was found to be unenforceable. Such a provision was also found to be ineffective in a “no transaction” case.
A “revised” payment claim, for a different sum, served one day after another payment claim had been served was invalid because it was held to be a second payment claim and therefore in contravention of s 14(8) of the Building and Construction Industry Security of Payment Act 2002 (Vic) which prohibits more than one payment claim being served in respect of the same reference date.
Arbitral tribunals have the ‘competence’ to make rulings on their own jurisdiction under s 16 of the CAA (and Model Law). However, within 30 days after the ruling, a party can seek a review of that decision by asking the Court to decide the matter (s 16(9)). The Supreme Court of Victoria has held, by reference to international authorities, that such a review is by way of hearing de novo.
Court upholds VCAT decision to allow builder to recover on quantum meruit basis (after wrongful repudiation by owner), based exclusively on evidence of quantity surveyor; and finds that s 38 of the Domestic Building Contracts Act 1995 (Vic) does not apply to quantum meruit claims.
The Queensland Court of Appeal upholds an arbitrator’s award despite procedural missteps – no “real unfairness” or “practical injustice”.
The Victorian Court of Appeal and a Full Court of the Federal Court have each recently held that the statutory priority regime applies to the winding up of companies that act as trustees of trading trusts, confirming that employee claims and a liquidator’s remuneration and costs are priority debts. Special leave to appeal the Court of Appeal’s decision has been sought.
Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudication determination quashed – failure to give adequate reasons
The High Court has read down a statutory secrecy provision that purported to shield information from production to a court on judicial review. In doing so, it has confirmed that s 75(v) of the Constitution protects more than simply the right to commence proceedings for judicial review.