Insurance & Reinsurance

Our experienced Insurance & Reinsurance legal team regularly publishes articles and updates - the full list of publications appears below. Our insurance publications provide regular commentary on issues affecting the industry. We also give detailed updates on cases before the courts both in Australia and overseas. If you'd like to be notified when we add new insurance & reinsurance publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

Read about our track record in insurance law.

For an overview of the most important cases and developments in this area, see our series of Annual Review archive.

Insurance & Reinsurance Publications

  • Focus: Timing is everything: Major shareholders exclusions in D&O insurance policies

    15 May 2015

    A recent Victorian Supreme Court decision has resolved a disputed construction of a major shareholder exclusion in a D&O policy in the insurer's favour after considering the broad commercial purpose of these provisions. Partner Andrew Maher and Law Graduate Shelley Drenth report.

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  • Focus: High Court limits proportionate liability regime and expands insurers' liability for costs

    14 May 2015

    The High Court yesterday overturned a decision of the Full Court of the Federal Court and held that if the same loss is caused by both apportionable and non-apportionable claims, proportionate liability does not apply to the non-apportionable claims. The High Court also ordered that the defendant's insurer pay the costs of the appeal, resulting in its total liability being greater than the limit of indemnity under the policy. Partners Malcolm Stephens and Jenny Campbell and Senior Associate Mark Hare examine the decision and its implications.

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  • Client Update: Significant 'blow' for penalties claims

    8 April 2015

    Today the Full Federal Court clarified the law of penalties as it applies to fees. The key development is that, in considering whether the amount of a fee is 'extravagant and exorbitant' compared to the potential costs incurred in dealing with a failure to perform an obligation, the court held that indirect costs could be taken into account. Subject to a likely attempt to appeal to the High Court, this development imposes a substantial hurdle for current and future penalties class actions. Partner Jenny Campbell and Lawyer Alicia Lyons report.

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  • Unravelled: Nudge, nudge, think, think - ASIC and behavioural economics

    1 April 2015

    In 2014, ASIC started promoting the use of behavioural economics in its regulatory activities. Two reports recently released by ASIC provide clues as to how ASIC may try to counteract behavioural biases in the future.

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  • Unravelled: ASIC's enforcement powers may receive a boost

    5 February 2015

    In preparing its Final Report, the FSI has clearly paid close attention to the report of the Senate Economics References Committee's Report into ASIC's performance and its recommendations designed to strengthen ASIC through a combination of better funding, an enhanced regulatory toolkit and higher penalties, with a view to enabling it to be the 'respected and feared' leader desired by the Senate Committee. The impact of the FSI's recommendations is now likely to be the subject of further submissions to the Government before any decisions are taken.

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  • Focus: Public authorities - reduced protection against negligence

    19 December 2014

    In coming to a recent decision, the Queensland Supreme Court has taken a narrow view of a section of that state's civil liability legislation that was designed to limit the liability of public authorities in Queensland. Partner Nicholas Ng and Senior Associate Goran Gelic report on this decision and its implication of greater liability exposure.

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  • Unravelled: Bold and sometimes radical - the final Murray report

    7 December 2014

    The Financial System Inquiry's final report has been released. We haven't tested this with 'Word Cloud', but we think the report can best be encapsulated in the word 'however'. The financial system has held up well, 'however, ....'. And what follows the 'however' is often bold and sometimes radical. There are five chapters and just 44 recommendations - compare this with the Cooper Review's 177 recommendations. But this helps - the messages are clear and the recommendations plain, although much of the implementation is left to the imagination.

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  • Client Update: ASIC seeking feedback on electronic disclosure proposals

    17 November 2014

    The Australian Securities and Investments Commission is seeking feedback on proposals to help facilitate the increased use of electronic means of providing disclosure for financial products and services. The proposals include new class order relief to facilitate the increased use of multimedia product disclosure statements, and revised guidance in Regulatory Guide 221. Partner Marc Kemp and Associate Simun Soljo report.

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  • Unravelled: Risk management - what, if anything, does the 'three lines of defence' model do?

    5 November 2014

    From 1 January 2015, a new 'common' risk management prudential standard will apply to banks, general insurers and life companies and, in many cases, to other companies in the corporate groups in which those institutions sit. Michael Mathieson looks at the 'three lines of defence' model that APRA proposes to adopt in its associated risk management guidance materials.

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  • Unravelled: Should APRA's prudential standard-making powers extend to directors' duties?

    5 November 2014

    In recent times, APRA has been active in prescribing duties for directors of the institutions it regulates. In light of what has happened, it is worth asking: should the question of directors' duties be excluded from APRA's prudential standard-making powers?

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  • Unravelled: Big Data v 'personal advice' - an unequal contest?

    5 November 2014

    There is a contest underway between two heavyweights. In one corner of the ring we have Big Data. In the other corner we have the definition of 'personal advice' in section 766B(3) of the Corporations Act.

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  • Unravelled: The 'Internet of Things' meets financial advice

    5 November 2014

    With financial services providers already taking advantage of the possibilities created by a new tide of internet meta data, we need regulators and a regulatory regime that see the opportunities implicit in the change, and not only the risks.

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  • Client Update: Clues for industry in ASIC'S Strategic Outlook

    24 October 2014

    ASIC's recently published Strategic Outlook outlines its priorities for responding to the key risks it believes will affect investors, and gives some interesting clues into what industry participants can expect from ASIC over the next 12 months, such as more surveillance of insider trading, breaches of continuous disclosure obligations and governance practices. It also provides a warning to the six largest financial institutions that it will be targeting them by focusing on their compliance with high-risk areas of the law. Partners Marc Kemp and Michelle Levy and Overseas Practitioner James Kanabar report.

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  • Focus: Section 54 of the Insurance Contracts Act: Putting insureds in the driver's seat

    16 September 2014

    A recent High Court decision highlights the substantial scope of s54(1) of the Insurance Contracts Act 1984 (Cth) to prevent an insurer from denying cover following an insured's non-compliance with certain terms of an insurance policy. The court confirmed that, in certain circumstances, the section can relieve an insured from the consequences of an act or omission which triggers coverage exclusions and limitations. Partner Andrew Maher, Senior Associate Jonathan Light and Lawyer Brydon Wang report.

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  • Client Update: Another step towards prudentially regulating conglomerate groups

    18 August 2014

    The Australian Prudential Regulation Authority has taken another step towards implementing its prudential framework for the supervision of conglomerate groups. While it has made some new prudential standards that are specific to conglomerate groups and extended some of its existing standards to such groups, it has delayed the commencement of these changes pending the final report of the Financial System Inquiry and the Government's response to it. The Allens Financial Services Regulation team reports.

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  • Unravelled: Retirement phase of superannuation

    8 August 2014

    The Financial System Inquiry's interim report has identified the retirement phase of superannuation as a priority issue that requires change. If the Federal Government decides to implement various policy options to encourage the development of more suitable products, it could result in significant changes to the retirement phase of superannuation.

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  • Unravelled: Increasing ASIC's enforcement powers

    8 July 2014

    In its submission to the Financial System Inquiry, the Australian Securities and Investment Commission has again raised the issue of the penalties that are available to it to punish and deter corporate wrongdoing. ASIC's submission recommends that a 'holistic review' be conducted into the availability and adequacy of penalties available under ASIC-administered legislation.

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  • Client Update: Federal Government announces FOFA changes

    20 June 2014

    The Federal Government announced today that it will press ahead with changes to the future of financial advice provisions, initially by regulation and then by legislation (when it has a more sympathetic Senate). The announcement includes some key changes, including narrowing the proposed general advice exception from the bans on conflicted remuneration for employees of financial services licensees (such as banks). Employees who provide general advice in relation to products issued or sold by the licensee will be able to receive conflicted remuneration, provided that it is not commission. While the announcement will provide some comfort to the industry, it does little to alleviate uncertainty. Partner Michelle Levy and Senior Associate Simun Soljo report.

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  • Unravelled: Disclosure: current complexity, future clarity?

    4 June 2014

    Since the 1996 Wallis Inquiry, disclosure has been at the heart of the regulatory philosophy for the retail financial services sector in Australia. Under the Financial System Inquiry's terms of reference, the Inquiry 'will refresh the philosophy, principles and objectives underpinning the development of a well-functioning financial system' and it is likely this will include a rethink of the role of disclosure. With this in mind, we take a look at the current disclosure regime and consider its likely future.

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  • Unravelled: Will ASIC shift its regulatory focus from disclosure to suitability?

    4 June 2014

    The Financial System Inquiry (inevitably, the 'Murray Inquiry') is the successor of the Campbell Inquiry (1979-1981) and the Wallis Inquiry (1996-1997). Both the Campbell and Wallis reports considered that investors were best protected through disclosure and market integrity rules. Both reports assumed that adequate disclosure would result in efficient markets and efficient capital allocation: caveat emptor ('let the buyer beware').

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  • Unravelled: Superannuation retirement phase - lessons from recent UK annuity changes.

    4 June 2014

    A key risk faced by self-funded retirees is the possibility that their superannuation savings will not last as long as they will. While lifetime pensions and annuities issued by life companies can assist in addressing this risk, there has traditionally been a relatively low uptake of these products by retirees in Australia.

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  • Focus: Proposed reforms to create a consistent proportionate liability regime

    31 January 2014

    In response to concerns about inconsistencies across various state-based jurisdictions, and following a public consultation process, the Standing Council on Law and Justice has released revised draft model legislation to reform Australia's proportionate liability laws. Partner Andrea Martignoni and Senior Associate Andrew Lazzaro report on the proposals.

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  • Focus: The importance of being ... 'businesslike'

    24 July 2013

    The Queensland Court of Appeal has decided that an insured's professional indemnity policy does not cover legal costs incurred in defending an excluded claim. This seemingly obvious and 'businesslike' conclusion was not so clear-cut on the express language of the policy. Partner Andrew Maher reports.

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  • Focus: Post-Bridgecorp decision offers road map to section 6

    12 July 2013

    In a unanimous decision in the first Australian case to deal with the issues raised by Bridgecorp, the New South Wales Court of Appeal has provided important guidance on the operation and scope of section 6 of the Law Reform (Miscellaneous Provisions) Act, including that the statutory charge it creates does not prevent an insurer from advancing defence costs to an insured. Partner Andrea Martignoni, Senior Associate Jonathan Light and Lawyer Theodore Souris report on this significant development.

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  • Linklaters Insights: UK Corporate Update

    5 July 2013

    In the latest UK Corporate Update, our Linklaters alliance partners look at: the European Council to examine proposals to widen non-financial disclosure requirements of large companies and groups to include country-by-country reporting; the EU Commission reaches agreement on Transparency Directive amendments; dematerialisation of shares; and an AGM mid-season review.

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  • Linklaters Insights: Insurance Update

    2 July 2013

    In the latest Insurance Update, our Linklaters alliance partners look at: the FCA launches thematic review of insurers' claims processes; developments in China, Solvency II update and long-term investments; 8th Annual World Takaful Conference, and recent deals.

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  • Client Update: ASIC guidance on litigation funders' obligation to manage conflicts

    26 April 2013

    The Federal Government has recently limited the regulation of litigation funding to an obligation to have adequate arrangements in place to manage conflicts of interest. In the latest chapter in this continuing story, ASIC has released a Regulatory Guide that 'fleshes out' what it considers funders must do to comply with that obligation. Partner Jenny Campbell and Senior Associate Mark Hare report.

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  • Focus: High Court broadens the reach of proportionate liability defences

    5 April 2013

    In its first decision addressing proportionate liability in detail, the High Court has suggested a relatively broad approach to identifying 'concurrent wrongdoers'. This will be welcomed by professional advisers and their liability insurers. Partner Andrea Martignoni, Senior Associate Andrew Byrne and Lawyer Sally Keenan report. 

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  • Focus: Bridgecorp overturned

    21 December 2012

    In a decision that is good news for insurers, directors and other professionals in Australia, the New Zealand Court of Appeal has overturned the first instance decision in Bridgecorp, finding the directors were not prevented from having recourse to their D&O policy for cover for their defence costs. Partner Malcolm Stephens, Senior Associate Jonathan Light and Lawyer David Rountree report on this important development.

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  • Client Update: Significant changes to insurance contracts law proposed

    30 November 2012

    Significant changes to insurance contracts law are proposed in exposure draft legislation released by Treasury. Previously proposed legislation lapsed due to the last federal election and this new Bill retains many of its amending measures, with some refinements. Partner John Morgan and Senior Associate Amanda Taylor explain.

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  • Focus: Court confirms limitation on joinder of insurers

    16 November 2012

    The NSW Supreme Court recently declined to grant leave to join an insurer to proceedings under section 6 of the Law Reform (Miscellaneous Provisions) Act where the 'wrongful act' occurred before the inception of policy. Partner Malcolm Stephens, Senior Associate Jonathan Light and Law Graduate David Rountree report on the court's interpretation of this important section.

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  • Focus: Insurers being joined to proceedings

    5 November 2012

    An insurer declined to indemnify an insured under a professional indemnity policy. The insured was bankrupt and incapable of contesting the insurer's decision. A third party subsequently commenced proceedings against the insured and sought to join the insurer so as to enable it to dispute that insurer's decision not to indemnify the insured. Partner Michael Quinlan, Senior Associate Jonathan Light and Law Graduate David Rountree look at a WA Supreme Court of Appeal case that recently considered the questions that arise in these circumstances.

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  • Focus: Insurance broker's advice half-baked

    17 May 2012

    The Supreme Court of Queensland recently considered the scope of an insurance broker's duty to its client and found that it extends to the exercise of reasonable care and skill. This, however, is to be judged with reference to the terms of the relevant broker's services contract and the circumstances of the case. Partner Michael Quinlan, Senior Associate Gareth Horne and Law Graduate David Rountree report

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  • Focus: ASIC crackdown on use of the terms 'independent', 'impartial' and 'unbiased'

    7 May 2012

    The Australian Securities and Investments Commission has issued a warning to all financial services licensees, after a surveillance operation identified a number of insurance brokers and financial planners who were unlawfully using certain terms. Partner Dean Carrigan, Senior Associate Rhiannon Eagles and Lawyers Tanvir Ahmed and Stephen Lloyd report.

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  • Client Update: Landmark changes to discovery in the NSW Supreme Court

    1 May 2012

    In March of this year, the Supreme Court of New South Wales announced major changes to its approach to discovery that are likely to profoundly alter the conduct of commercial disputes in that court. On 30 April 2012, the Chief Justice and key judges of the court's Equity Division addressed practitioners to further explain and clarify aspects of the new appraoch. Partner Richard Harris and Lawyer Elnaz Nikibin report on the changes, some of the matters being emphasised by the court and some similar themes emerging in the Federal Court

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  • Focus: Are you on the job while 'on the job'?

    24 April 2012

    A recent decision that has confirmed that compensation is available to an employee (injured while having sex in a hotel room during a work trip) highlights the broad scope under the current law as to when injuries will be regarded as having taken place during the course of employment. Partner John Edmond, Senior Associate Jonathan Light and Lawyer Stephen Lloyd report on the decision that has particular implications for employers and worker's compensation insurers

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  • Focus: Long-running UK mesothelioma litigation resolved

    2 April 2012

    The UK Supreme Court has handed down its decision in the 'EL Trigger Litigation' concerning a long-running dispute about insurers' liability to compensate mesothelioma victims, making it clear their obligation to indemnify employers will be triggered when an employee is negligently exposed to asbestos fibres. Partner Dean Carrigan, Senior Associate Philip Hopley and Lawyer Stephen Lloyd report

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  • Client Update: Securities class actions - where are we up to?

    29 February 2012

    The trial of the securities class actions against the Centro Group - the last of a cluster of high-profile securities class actions commenced in the Federal Court between 2006 and 2008 - is scheduled to commence next week. The commencement of the trial brings with it the possibility of the first judgment in an Australian securities class action and, importantly, the possibility of the first decision to deal with causation in a securities class action. As Centro is only the third securities class action to reach trial, it is a good time to reflect on the current state of the Australian securities class action landscape. Partner Ross Drinnan and Senior Associate Jenny Campbell report

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  • Focus: ASIC issues guidance for the promotion and advertising of financial products and services

    27 February 2012

    ASIC has released guidance to assist promoters of financial products and services, as well as publishers of advertising for such promotions, in complying with their legal obligations to avoid making false or misleading statements or engaging in misleading or deceptive conduct. Partner Dean Carrigan, Senior Associate Simon Lewis and Lawyer Andrew Murn report

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  • Focus: Insurance issues arising from the Thai floods

    23 November 2011

    It seems inevitable that the floods currently affecting much of Thailand will give rise to a range of legal issues for both insurers, reinsurers and insureds. Drawing on our experiences following the recent floods in Queensland, Partner Matthew Skinner and Lawyers John Rainbird and Ainsley Reid consider some of the policy issues that can arise in these situations, including the definition of 'flood', underinsurance, and the importance of effective communication between insurers and policyholders

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  • Focus: Major changes to flood insurance proposed

    22 November 2011

    Flood cover may become mandatory in home building and home contents insurance policies, among other significant changes proposed in the Natural Disaster Insurance Review Panel's final report on its inquiry into flood insurance and related matters. Partners Dean Carrigan and John Morgan, Senior Associate Katherine Hayes and Lawyer Andrew Lazzaro report

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  • Focus: High Court untangles the Gordian knot

    10 October 2011

    A recent High Court decision is significant for all parties involved in arbitrations or whose contracts contain arbitration clauses, and for reinsurers whose contracts are subject to New South Wales law. Partner Michael Quinlan, Lawyer Mitch Riley and Paralegal Ashleigh Shand explain

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  • Focus: Detailed proposals announced for Hong Kong's new insurance regulator

    3 October 2011

    Detailed proposals have been announced for Hong Kong's independent Insurance Authority, which will have comprehensive powers regarding insurers and insurance intermediaries. Partner Simon McConnell, Senior Associate Kieran Humphrey and Trainee Solicitor Alice Mok consider its key features and potential impact on the market.

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  • Focus: The Timbercorp class action cut down

    29 September 2011

    In a landmark decision, the Victorian Supreme Court recently dismissed a class action by Timbercorp investors following the collapse of the Timbercorp Group in April 2009. Partner Irene Trethowan and Lawyers Kate Austin and Brenton Pollard look at the decision, which further clarifies the disclosure obligations of companies when issuing product disclosure statements for financial products and is likely to have implications for investors involved in other managed investment scheme class actions

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  • Focus: Draft model proportionate liability legislation to reform system

    21 September 2011

    Multiple defendants will find it easier to attract proportionate liability to claims made against them under draft model legislation to reform Australia's proportionate liability laws. Partner Paul Nicols and Senior Associate Philip Hopley report on the proposals, which have been released for public consultation

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  • Focus: Enforcement of foreign arbitral awards in Australia

    15 September 2011

    The Victorian Court of Appeal has clarified a number of important issues regarding the enforcement of foreign arbitral awards in Australia. Partner Peter O'Donahoo, Senior Associate Andrew Barraclough and Lawyer Tim Maxwell report

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  • Focus: High Court confirms insurer is not liable in contribution for HIH scheme payouts

    31 August 2011

    Dismissing an appeal against a decision of the Victorian Court of Appeal, the High Court has determined that the doctrine of equitable contribution should not be extended to allow contribution claims to be made against an insurer by the administrator of the federally funded HIH policyholder relief scheme. The High Court held that the administrator's obligations were not coordinate with an insurer's liability to pay a claim under an insurance policy it had issued in respect of the liability giving rise to a payment the scheme made. Partner Dean Carrigan, Senior Associate Andrew Byrne and Lawyer Alice Dillon report on the High Court's decision

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  • Focus: Fiduciary duties of superannuation fund trustees

    10 August 2011

    The New South Wales Court of Appeal has recently confirmed that the fiduciary duties owed by the trustee of a superannuation fund under section 52(2)(b) and (c) of the Superannuation Industry Supervision Act 1993 (Cth) do not materially extend beyond the general law fiduciary duty to act in the best interests of fund members. Partner John Morgan, Senior Associate Simon Lewis and Lawyer Patricia Abordo report on a case where a member of a superannuation fund alleged that the fund's trustee breached its fiduciary duties by entering into an insurance policy that allegedly provided less advantageous disability benefits to him than those under the fund's previous policy

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  • Focus: Fight for your right (to be a party) - limits on claims for contribution

    13 July 2011

    A recent decision of the Supreme Court of New South Wales highlights the importance of assessing the limits on rights of contribution when issuing insurance policies. Partner Dean Carrigan, Senior Associate Philip Hopley and Lawyer Patricia Abordo report

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  • Focus: Securency arrests and the UK Bribery Act

    8 July 2011

    The recent arrests of former executives of Securency on foreign bribery charges on 1 July 2011, coinciding with the commencement of the tough new UK Bribery Act, have implications for Australian companies and their management. Partner Matthew Skinner and Senior Associate Tim Robinson report

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