Allens

Litigation & Dispute Resolution

Our experienced Litigation & Dispute Resolution legal team regularly publishes articles and updates - the full list of publications appears below. If you'd like to be notified when we add new Litigation & Dispute Resolution 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 Litigation & Dispute Resolution.

Litigation & Dispute Resolution Publications

  • 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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  • Focus: Investigations - ICAC has its wings clipped

    11 December 2014

    By a two to one majority, the NSW Court of Appeal has held that the Independent Commission Against Corruption had no power under the ICAC Act to investigate an allegation to the effect that, as a result of conduct involving an alleged intention to pervert the course of justice, a public official had been diverted from performing an investigation of a suspected crime. The decision has potentially wide ramifications and ICAC is seeking special leave to appeal to the High Court as a matter of urgency. Partner John Warde and Senior Associate Jonathan Light report.

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  • Focus: Productivity Commission - Access to Justice Arrangements report and recommendations

    5 December 2014

    The Access to Justice Arrangements report proposes broad-ranging reforms to our civil justice system, with the aim of improving access to justice. Partner Belinda Thompson and Lawyer Annie Santamaria highlight some recommendations, which also have the potential to impact more broadly on Australia's legal landscape.

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  • Client Update: More limits on lawyer-driven litigation

    1 December 2014

    Following a decision earlier this year preventing a solicitor from acting in a class action in which the solicitor managed and controlled the representative plaintiff, the Victorian Supreme Court has held that a solicitor and senior counsel should be prevented from acting in a class action in which they had a substantial indirect interest in the litigation funder of the action. Partners Duncan Travis and Matthew McLennan and Associate James Campbell report.

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  • Focus: The hotel window closes - no vulnerability where a contract exists

    20 October 2014

    The High Court recently overturned a NSW Court of Appeal decision that stated a building contractor owed a duty of care for pure economic loss for defective work to a successor in title to the developer of commercial premises. Partner Leighton O'Brien and Lawyer William Coote assess the decision and its consequences.

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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: Court takes an expansive view of threshold requirement for class actions against multiple respondents

    8 September 2014

    A representative proceeding can only be commenced where seven or more group members have claims against the same person. In proceedings with multiple respondents, there has been conflicting authority as to whether each group member is required to have a claim against each respondent. Last week, in Cash Converters International Limited v Gray, the Full Federal Court appears to have resolved this uncertainty, by confirming that no such requirement exists. Partners Peter O'Donahoo and Jenny Campbell and Associate Thomas Bagley report.

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  • Focus: Does legal professional privilege apply to communications with third-party commercial advisers?

    14 August 2014

    Parties involved in large-scale commercial transactions with non-lawyer third-party advisers need to be aware that communications with these advisers will rarely be protected by legal professional privilege, following a recent Federal Court decision that confirmed the limits on the extent to which legal professional privilege will apply. Partner Richard Harris and Law Graduate Sibella Matthews report.

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  • Class Action Insights

    8 August 2014

    In recent months, the funding of class actions has been prominent in the legal press. The issues canvassed have included the regulation of third party funders, the case for and against lawyers charging contingency fees, attempts by lawyers to establish third party funding vehicles, the Productivity Commission's draft recommendations in relation to the private funding of litigation, and the Commonwealth Attorney-General's proposed review of the litigation funding sector.

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  • Paper: Class actions in Australia

    4 August 2014

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation.

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  • Paper: Shareholder class actions in Australia

    4 August 2014

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation. This evolution has been facilitated by recent developments in the Australian legal landscape and Federal government support for class actions (and the litigation funding of class actions). This paper outlines some of the key issues and trends in Australian class actions (including litigation funding).

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  • Client Update: The limits of lawyer-driven litigation

    24 July 2014

    In a recent decision the Victorian Supreme Court has examined the limits on entrepreneurship by securities class action lawyers. It has stayed a class action in which the plaintiff's lawyer was also its shareholder and director. The plaintiff had a 'business model' of purchasing small shareholdings in listed companies with the objective of subsequently commencing class actions against some of them for breaches of continuous disclosure obligations. Partners Belinda Thompson and Matthew McLennan and Associate James Campbell report.*

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  • Audio: Shareholder activism on the rise

    24 July 2014

    The past few years have seen a dramatic rise in shareholder activism across Europe and the US, with the trend now becoming increasingly common in Australia. Partner Tim Lester and Managing Associate Matthew Ireland spoke to BRR Media on what directors of listed companies should be doing to prepare for an approach from activist shareholders.

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  • Client Update: Further support for arbitration

    15 July 2014

    In a recent decision, the Victorian Court of Appeal has held that parties to an arbitration agreement cannot avoid arbitration by seeking to bring the claim in a statutory tribunal. Partner Nick Rudge and Lawyer James Waters report on a case that reinforces the trend of Australian courts to give effect to the international UNCITRAL Model Law in domestic disputes.

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  • Focus: Record penalties a reminder of product safety obligations

    3 July 2014

    Record US penalties recently imposed on car manufacturers for failures to deal appropriately with safety defects are a timely reminder to Australian manufacturers of their product safety obligations. Partner Belinda Thompson, Senior Associate Jaime McKenzie and Lawyer Ishwar Singh report.

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  • Focus: SOPA adjudications in Western Australia - only the applicant can win!

    3 July 2014

    The Supreme Court of Western Australia has held that under that state's security of payment legislation, an adjudicator does not have the power to make a determination that requires an applicant to pay the respondent money by reason of any counterclaim raised in the adjudication. An adjudicator may consider the counterclaim, but only in the context of whether any amount is payable to the applicant. A respondent who seeks to recover money by reason of a counterclaim must initiate a separate adjudication. Partner Michael Hollingdale, Managing Associate Jeremy Quan-Sing and Associate Helen Dolling report.

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  • Client Update: 'Fraud on the market' theory survives challenge in the US

    26 June 2014

    Perhaps the most important unanswered question in Australian class action law is how causation may be established in the context of a shareholder class action. In the United States, this issue has been addressed by the 'fraud on the market' theory. This week the US Supreme Court rejected a challenge to the validity of that theory. Partners Ross Drinnan and Jenny Campbell and Senior Associate Mark Hare report.

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  • Focus: Adjudications under WA's SOPA legislation - enforcement by statutory demands clarified

    24 June 2014

    The WA Supreme Court has provided important clarification on the enforcement of adjudication determinations by the use of statutory demands under that State's security of payment legislation. It has confirmed that leave to enforce an adjudication determination as a judgment must be obtained before the issue of a statutory demand, and that failing to do so will mean the statutory demand is liable to be set aside. Partner Michael Hollingdale, Senior Associate Jeremy Quan-Sing and Lawyer Brittney Nash report.

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  • Focus: High Court affirms governments' power to pass 'draconian' seizure laws

    10 June 2014

    The High Court recently handed down its decision in Attorney-General (NT) v Emmerson. Partner Peter O'Donahoo, Senior Associate Tim Maxwell and Lawyer Simone Kaser review the decision with respect to the court's analysis of the limits on Commonwealth and Territory legislative power under the doctrine of separation of powers and the 'just terms' guarantee.

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  • Focus: The Federal Court on information to third parties, legal professional privilege and waiver

    21 May 2014

    A recent Federal Court decision highlights the importance of managing the provision of information and documentation to third parties with caution in order to preserve legal professional privilege. Partner Richard Harris and Senior Associate Elnaz Nikibin report on the case.

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  • Focus: Federal Court - another arbitration-friendly decision

    15 May 2014

    In a recent decision, the Federal Court dismissed an application to set aside an arbitral award rendered in Australia on the basis that it breached the rules of natural justice. In doing so, the court's decision recognised the limited scope of the grounds upon which an award can be set aside under Australia's applicable legislation. Partner Andrea Martignoni, Senior Associate Hilary Birks and Lawyer Anna McMahon report.

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  • Focus: Using 'reasonable endeavours' - the importance of internal contractual standards

    28 April 2014

    The High Court has recently highlighted the significance of internal contractual standards when interpreting an obligation to use 'reasonable endeavours'. Partner Nick Rudge and Lawyers Goran Gelic and Timothy Leschke report on this development and its implications.

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  • Focus: Productivity Commission - third party litigation funding and contingency fees

    17 April 2014

    The Productivity Commission's draft report on its inquiry into Australia's system of civil dispute resolution has now been released. The comprehensive review focuses on ways to constrain costs and promote access to justice. One of the areas the Productivity Commission is examining is Australia's private funding for litigation regime, focusing on third party litigation funding and contingency fees. Partner Peter O'Donahoo, Senior Associate Tim Maxwell and Lawyer Simone Kaser report

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  • Focus: The Japan-Australia Economic Partnership Agreement

    15 April 2014

    Australia and Japan have recently concluded negotiations on an economic agreement which will reduce tariff barriers on the majority of Australian exports to Japan. In contrast to the recently concluded Korea-Australia Free Trade Agreement, it does not include an investor-state dispute settlement mechanism. Partner Peter O'Donahoo, Senior Associate Hilary Birks and Lawyer Anna McMahon report.

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  • Focus: Civil penalties: are negotiated outcomes still negotiable?

    12 March 2014

    A recent decision of the High Court could intensify uncertainty about the legitimacy of resolving civil penalty proceedings by the regulator and the defendant approaching the court with an 'agreed penalty' supported by an agreed statement of facts. Partner Matthew McLennan and Lawyer Megan Sandler report.

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  • Focus: Investor-State dispute settlement under the Korea-Australia Free Trade Agreement

    6 March 2014

    In a shift from the previous Australian Government's position, a free trade agreement between Korea and Australia, which was recently concluded by the new Coalition Government will include investor-state dispute settlement clauses. Partner Peter O'Donahoo, Senior Associate Hilary Birks and Lawyer Anna McMahon report.

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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: More certainty for foreign corporations under Alien Tort Claims Act

    28 January 2014

    Since a landmark decision has narrowed available claims against defendants under the Alien Tort Claims Act for alleged violations of customary international law, US courts have sought to clarify exactly what geographical connection is required to justify a claim against corporate defendants. Partner Rachel Nicolson, Senior Associate Hilary Birks and Lawyer Freya Dinshaw look at a recent US Supreme Court decision that tests the waters of the new framework.

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  • Focus: Sidestepping arbitration clauses - a potentially explosive business!

    28 January 2014

    The Supreme Court of Western Australia has rejected a wide-ranging attack, by a contracting party preferring litigation to arbitration, on the operation of an arbitration clause. Partner Andrew Maher reports.

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  • Contract Law Update 2013

    17 December 2013

    Our Contract Law Update provides an overview of important contract law decisions by Australian appellate courts in the past 12 months and considers their significance for the development of Australian contract law.

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  • Audio: Positive outlook for international arbitration in Australia

    12 December 2013

    Local and international arbitrators gathered in Sydney recently for Arbitration Week. Allens Partner and head of the firm's International Arbitration Group, Andrea Martignoni, spoke to BRR Media about the major issues raised during the week and the outlook for arbitration in Australia.

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  • Focus: Agents, airlines, and ash - the ACCC's 'A'-list bring less than 'A'-grade results

    12 December 2013

    The ACCC has had mixed results with some recent judgments in high profile competition cases. Partner Jacqueline Downes, Lawyer Emma Arbon and Knowledge Management Lawyer Julie Playfair report on the decisions which have important implications for businesses with agency arrangements and substantial market power.

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  • Class Action Insights

    4 December 2013

    Welcome to the first edition of Class Action Insights - Allens' quarterly publication in relation to current class action issues.

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  • Client Update: US Supreme Court to reconsider 'fraud on the market'

    28 November 2013

    Perhaps the most important unanswered question in Australian class action law is how causation may be established in the context of a shareholder class action. In the United States, this issue has been addressed by the 'fraud on the market' theory. The US Supreme Court has, however, recently decided to hear a challenge to the validity of that theory. The outcome in that case is likely to be significant in determining how the causation issue is resolved in Australia. Partners Ross Drinnan and Jenny Campbell and Lawyer Thomas Bagley report.

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  • Audio: Cross-border cooperation among regulators

    25 October 2013

    Regulatory activity in Australia and globally is increasing, with a trend towards a new level of cooperation between overseas regulators. Partner Matthew McLennan, of Allens' Commercial Litigation & Dispute Resolution team, and Linklaters' Global Practice Head for Litigation Marc Harvey speak to BRR Media about the current situation and the trend towards companies commissioning their own internal investigations

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  • Focus: Flooding generates more debate on consequential loss exclusion

    14 October 2013

    A recent decision of the Western Australian Supreme Court arising out of a flooding incident at a remote power station near Lake Argyle, WA has shone a bright light on the law on consequential loss in the wake of the previous authority that had informed this area of law. Partner Michael Hollingdale and Senior Associate Nicholas Gallina report on the case.

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  • Focus: Federal Court confirms pro-enforcement approach to foreign arbitration awards

    3 October 2013

    The Full Court of the Federal Court has dismissed an appeal from a Federal Court decision to enforce an award rendered in London, confirming a pro-enforcement attitude to foreign arbitration awards that gives significant weight to the decisions of courts at the seat of arbitration. The award debtors had already applied, unsuccessfully, to the English High Court of Justice to have the award set aside on procedural grounds. The Federal Court had agreed with the High Court's decision and further held that it would generally be inappropriate for an enforcement court applying the New York Convention to reach a different conclusion from the court at the seat of the arbitration. Partner Andrea Martignoni, Senior Associate James Morrison and Lawyer Theodore Souris report.

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  • Focus: Smooth sailing for arbitration clauses

    30 September 2013

    In a split decision, the Full Court of the Federal Court of Australia has signalled its support for upholding and enforcing arbitration clauses negotiated by sophisticated commercial parties. In this case, the court interpreted legislation that restricted the parties' ability to choose arbitration in 'sea carriage documents' so as to give effect to the parties' choice of arbitration in London as the dispute resolution method in a charter party for shipping goods from Australia. Partner Peter O'Donahoo, Special Counsel Nicola Nygh and Lawyer Laura Johnston report.

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  • Focus: UK the first to release a 'Good Business' plan

    23 September 2013

    In a world first, the UK Government has released a comprehensive national action plan for the implementation of the UN Guiding Principles on Business and Human Rights, which sets a new benchmark for the implementation of the Guiding Principles at the domestic level and is likely to serve as a model for other governments developing similar national plans. The plan makes clear the Government's expectation that UK businesses respect human rights in their operations, both in the UK and abroad, and outlines the measures it is proposing to take to support businesses to meet those expectations. Partner Rachel Nicolson and Lawyers Tessa Meyrick and Freya Dinshaw report.

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  • Focus: Threshold for successful prosecution of promoter penalty claims lowered

    11 September 2013

    In the first appeal court guidance on the proper construction of the promoter penalty provisions, the Full Federal Court has upheld an appeal by the Commissioner of Taxation regarding their application and, in doing so, lowered the threshold for a successful prosecution of a promoter penalty claim. Partner Tony Kuhn, Senior Associate Jonathan Joseph and Lawyer Sarah Gittus report.

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  • Focus: Clear out the dead wood? A 'root and branch' review of competition law

    9 September 2013

    The Coalition has promised a 'root and branch' review of competition law on a scale that has not been undertaken for more than 20 years, but with little guidance on the review's scope and nature. It has indicated it will extend the protections of the unfair contract terms provisions in the Australian Consumer Law to 'small business', and will resource the Australian Competition and Consumer Commission to monitor prices after the repeal of the carbon tax. Partner Jacqueline Downes and Knowledge Management Lawyer Julie Playfair report.

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  • Focus: Tipped off: the stockbroker, the client and their phone conversations

    28 August 2013

    A recently released Supreme Court of Western Australia judgment illustrates the role that recorded telephone conversations can play in the investigation and prosecution of insider trading offences. Changes to telecommunications interception legislation in 2012 increased the scope for the use of recorded conversations in the enforcement of the insider trading law. Partner Matthew McLennan and Lawyer Roslyn Stein look at the case that flags a number of issues for companies that operate recording systems.

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  • Client Update: Acceptance of class action funding reaches new heights

    21 August 2013

    The Full Federal Court signalled a new level of acceptance of class action funding when it recently required that security for costs be provided in a series of related (and unfunded) class actions. Of particular interest is the court's finding that a failure by the representative applicants to provide evidence as to why their claims were not commercially funded was a factor in favour of ordering that they provide security. This is the first time an order for security has been made in a class action that is not commercially funded and is another indication of the growing acceptance of third-party funding by the courts. Partner Jenny Campbell and Lawyer James Ebert report.

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  • Focus: ACCC scores 'clean sweep' against unconscionable vacuum-cleaner sales tactics

    16 August 2013

    The Federal Court has provided guidance on the values that might inform 'unconscionability' in future decisions, having allowed an appeal by the Australian Competition and Consumer Commission. The court declared that the sale of vacuum cleaners to elderly women in their own homes, following appointments for 'free maintenance checks' of their existing vacuum cleaners, was unconscionable. Partner Jacqueline Downes, Senior Associate Rebecca Cope and Knowledge Management Lawyer Julie Playfair report.

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  • Focus: Shifting investor-state arbitration into the public spotlight

    5 August 2013

    In response to public interest concerns, the United Nations Commission on International Trade Law has adopted new transparency rules for treaty-based investor-state arbitrations. By mandating greater disclosure of information and permitting third parties to intervene in proceedings, the new rules represent an important shift away from the privacy and confidentiality that have been traditional hallmarks of investor-state arbitration. Partner Andrea Martignoni, Senior Associate James Morrison and Lawyer Laura Johnston report.

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  • Focus: Dispute resolution clauses: are yours enforceable?

    30 July 2013

    A recent Victorian Supreme Court decision has reinforced the need for dispute resolution clauses to set out the process to be followed to resolve a dispute with sufficient certainty to enable them to be enforceable. Partner Nick Rudge, Senior Associate Nicholas Gallina and Law Graduate Emily Giblin report on the case.

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  • Audio: Human rights obligations for business in Australia

    26 July 2013

    Corporate human rights law obligations are increasing steadily in Australia and overseas. These legal reforms are informed by recent watershed international developments in this area, including global recognition of the corporate responsibility to respect human rights and rigorous standards of expected business conduct. Partner Rachel Nicolson, who leads the firm's International Business Obligations group, speaks to BRR Media about the key issues and risks facing businesses in Australia.

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  • Focus: A different roadmap for investor-state dispute settlement?

    23 July 2013

    The United Nations Conference on Trade and Development has identified key shortcomings of the current system of investor-state dispute settlement, and has outlined five broad paths for reform in a recent report. The negotiation and implementation of these reforms will affect foreign investors and policymakers globally. Partner Rachel Nicolson, Senior Associate Hilary Birks and Lawyer Laura Bellamy report.

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  • Focus: Food

    16 July 2013

    We look at a new voluntary labelling system to give consumers greater information about the nutritional content of food; renewed calls for changes to the country of origin labelling regime; a push to loosen the standard of what can be sold as gluten-free; renewed scrutiny of alcohol advertising; defining the difference between a food and a medicine; and the debate around the safety of GM foods.

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  • Focus: New guidance from ASIC on its intervention in private proceedings and disclosure of documents

    8 July 2013

    The Australian Securities and Investments Commission has released guidance on its approach to involvement in private court proceedings, and on providing information and documents to private litigants. Partner Michael Schoenberg, Senior Associate Joel Phibbs and Lawyer Stuart Packham examine how this recent guidance is likely to impact on companies and individuals that are subject to ASIC investigations and enforcement actions.

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