Expert Insights

The admissibility of print-outs from the “Wayback Machine – Internet Archive” website is increasingly being considered by the Federal Court of Australia. The decision of Justice Burley in Dyno Nobel Inc v Orica Explosives Technology Pty Ltd on September 17 provides clear insight to the court’s approach to Wayback evidence and the circumstances in which it might be admissible, writes Bird & Bird’s Lynne Lewis and Angelica Sorn.

This month’s decision by the Queensland Supreme Court confirming the validity of the class action funding business model in jurisdictions whose legislatures have not abolished the tort of maintenance and champerty is a landmark one, writes Piper Alderman partners Greg Whyte and Lillian Rizio.

The ACCC has issued final guidelines on how Australia’s competition laws will apply to intellectual property assignments and licences following the repeal of the ‘IP exemption’ from prohibitions on anti-competitive conduct which was contained in subsection 51(3) of the Competition and Consumer Act. As of September 13 the IP exemption no longer applies, however, certain worked examples remain undeveloped or unrealistic, such that uncertainties remain as to the ACCC’s likely approach in particular matters, writes Patrick Gay and Amalia Stone of Herbert Smith Freehills.

The ACCC’s recommendation in its digital inquiry report for a statutory cause of action for serious invasions of privacy has merit as a mechanism to safeguard individual’s privacy where it is not protected by the Privacy Act or the patchwork of surveillance and related legislation. But it remains to be seen whether there will be any greater governmental impetus than on previous occasions to make the legislative changes required, writes Gilbert + Tobin partner Melissa Fai and lawyer Stephanie Essey.

From October 1, the Australian Competition and Consumer Commission will apply an updated cartel immunity and cooperation policy, with the changes said to reflect the ACCC’s experiences from key criminal investigations undertaken to date. The ACCC is also launching an online portal to allow whistleblowers to anonymously report alleged cartel conduct directly to the ACCC. Here, King & Wood Mallesons partner Peta Stevenson and senior associate Jacqueline Ibrahim tells you what you need to know about these significant developments.

In a recent decision, Federal Court Justice Jonathan Beach approved the settlement of the securities class action against Sirtex Medical. The approval included the judge making a common fund order and allowing funder IMF Bentham’s commission in the amount of $10 million, namely 25% of the gross settlement sum of $40 million. In approving the commission, Justice Beach noted that the rate should properly provide a reward for the risks undertaken by the funder, writes IMF Bentham’s Gavin Beardsell and Kate Hurford.

A recent Federal Court decision means cooperation between courts in different international jurisdictions, which would once have been regarded as entirely novel, may now be a welcome option for liquidators to achieve a more efficient liquidation of insolvent corporate groups, writes K&L Gates’ Jason Opperman, Katherine Smith and Catherine Crawford.

A party to a contract may be precluded from enforcing a contractual right if it has acted in a way that is clearly inconsistent with that right under the doctrine of election. Recently, the NSW Court of Appeal applied the principles of election to a complex factual scenario and the lesson from the decision is this — if you have a right to terminate a contract, you should expressly communicate your intentions to the other party as soon as possible after the right to terminate enlivens, says McCabe Curwood managing principal Andrew Lacey.

The Australian federal government’s proposed legislation to abolish the innovation patent system, Australia’s second tier patent system, was introduced into parliament on July 25. Here, Griffith Hack’s Dr Malcolm Lyons and Dr Justin Sweetman tell you what you need to know about the Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Bill 2019.

Notwithstanding a recent increase in competing shareholder class actions, on the whole, competing class actions have remained unusual, and courts have demonstrated that they are well equipped to apply appropriate considerations and principles on a case by case basis, employing a range of case management tools to ensure justice is done without the need for legislative intervention, writes Slater & Gordon class action associate Victoria Sparks.