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1 - 9 of 9
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(2008)Conference PaperDishonesty is fast becoming entrenched in commercial law in Australia as the defining characteristic distinguishing criminal conduct from conduct which only has civil or civil penalty consequences. Many of the serious offence provisions under the Corporations Act 2001 (Cth) require the prosecution to prove dishonesty and dishonesty has been adopted as a key element of the new cartel offence provision which is proposed for inclusion in the Trade Practices Act 1974 (Cth). Whilst deciding whether conduct is dishonest may be straightforward in most cases, situations can arise where a lawyer may be asked to advise a client as to whether a proposed course of conduct is dishonest and the answer may not be clear cut. Advising a client in such a situation may be difficult because current tests of dishonesty tend to reflect standards of ethics and morality generally accepted by the community which may not accord with the client’s and/or the lawyer’s personal standards. This article will examine the concept of dishonesty in the context of commercial crime, attempt to add some clarity to this particularly fluid concept and scrutinize the lawyers’ role in ensuring clients’ actions accord with community values.
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(2008)Journal ArticleSection 50 of the Australian Securities and Investments Commission Act 2001 (Cth) confers a wide power on the Australian Securities and Investment Commission (ASIC) to bring civil action in the name of the company or a class action for shareholders or investors for the recovery of damages for corporate misconduct. Despite its broad scope, this power has been little used by ASIC. Until the recent Westpoint litigation it appeared that this trend seemed set to continue due to the recent growth in ASIC’s arsenal of enforcement powers, in particular the ability to bring proceedings seeking civil penalties, together with what promises to be a new age of private enforcement of shareholders rights through class actions funded by litigation funding corporations. In the context of this likely expansion of private enforcement action and the current legislative framework of ASIC’s enforcement powers, this article will examine when ASIC should bring civil action under this provision.
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(2008)Journal ArticleThe conventional view of corporate regulation is that corporations are to be managed for the benefit of their shareholders. The general law and statutory duties of directors and officers reflect this “shareholder primacy norm”, with duties formulated to prevent directors acting otherwise than in the interests of shareholders. However, the general law and statutory duties are not identical. The remedies and enforcement mechanisms differ considerably, which raises the question as to whether the public enforcement of statutory duties carries with it a public interest mandate that general law duties do not. This article considers what role the public interest should have in enforcing statutory duties and whether such a role represents a challenge to the dominant shareholder primacy norm of corporate law. This issue is highly topical as recent decisions have suggested that the statutory duties of directors and officers are limited in their scope to protecting the interests of shareholders, even to the detriment of the public interest. We contest that viewpoint and argue that, at least in relation to statutory duties, directors and officers have obligations that extend beyond the narrow conception of the protection of shareholder wealth.
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(2008)Conference PaperThis paper examines ownership and control of registered trade marks in franchise networks in Australia. It draws on a sample of franchisors that have franchsiees trading from premises that are regulated by the Retail Leases Act 1994 (NSW). It examines problems surrounding the current valuation of trade marks, their use and their potential to be used as a source of development equity for franchisors. It asks whether policy objectives of the TMA are being met in the context of franchising. It also identifies challenges that confront a researcher of legal issues concerning intellectual property assets in franchising in Australia.
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(2006)Conference PaperThis paper presents the current Australian courts’ definitions of employee and independent contractor. It highlights where the franchisee fits, being indistinguishable at times from an employee and at other times from an independent contractor. The paper examines the policy behind insolvency legislation in Australia and queries whether it would be appropriate to accord franchisees specific status in the franchisor’s insolvency; like that enjoyed by employees. In most situations, the definition is relatively unimportant. The Franchise Agreement, ancillary contracts and the Trade Practices Act 1974 (Cth) regulate the franchisor/ franchisee relationship. If the franchisor becomes insolvent, the failure of the law to keep pace with the franchise business model is bought into sharp focus. Whereas the employee and the independent contractor have clearly understood rights, enshrined in statute, the franchisee has no specific rights. Unless the franchisee is a creditor of the franchisor, it does not have a right to attend creditors meetings. At its most vulnerable, the franchisee is categorized as an asset or a liability in the insolvent estate. The franchisor – franchisee relationship, however, has many features that make the franchisee more vulnerable than an employer whose employer becomes insolvent. If the franchisor becomes insolvent, the franchisee may loose the value of sunk investments, the right to occupy premises, and may not be able to free itself from onerous contracts that were only entered into because of its position as a franchisee.
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(2006)ReportA report on an exploratory study into the legal outcomes for franchisees in Australia if their franchisor becomes insolvent. Research funded by CPA Australia.
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(2008)ThesisThis paper examines franchising regulation in Australia as a case study for the analysis of regulation based on established regulatory theory. A literature review is conducted to establish and critique the theory of regulation based on the four main areas of established theory; regulatory purpose, regulatory strategies, rulemaking and enforcement. Case study data is drawn from primary source material and academic commentary on franchising regulation and presented according to the eras of franchising regulation in Australia, moving from the first proposals for legislation in the 1970s to the prescribed mandatory Franchising Code of Conduct model adopted in 1998 and refinements made to that scheme up to 2006. An analysis is then conducted on each major aspect of Australian franchising regulation using the established theoretical principles and analytical constructs available in the literature. The study concludes that the Franchising Code of Conduct regime, as a culmination of the experience gained and study undertaken in the preceding eras, is characterised by the availability of a broad range of enforcement options from harsh deterrence-oriented measures to more gentle and cooperative compliance-oriented options constituting an effective regulatory pyramid. The effectiveness of the regime is further bolstered by the presence of a credible regulatory strategy pyramid which emphasises the real possibility of escalated intervention, coupled with skilful deployment by the Australian Competition and Consumer Commission as enforcement agency. The principal weakness of the scheme is identified as unnecessarily ambiguous drafting in some areas, which compromises the quality of the otherwise highly transparent ruleset. It is suggested that the choice of regulatory strategy, often a focus of superficial examinations of regulation, is largely irrelevant to the nature of the regulation, with other features such as enforcement strategy, legitimacy, and availability of credible sanctions proving much more important. A proposal for an analytical framework based on the established theory is developed based on the experience of applying that theory to the case study. While this outlined framework assists in broadening focus across the entire regulatory regime to encourage assessment of the component parts, a lack of cohesion and linkage amongst the components highlights a shortcoming in the development of regulatory theory and an opportunity for further research.
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(2009)ThesisSince the Open Door reforms adopted by China in 1978 ended 30 years of isolation, introduced massive economic and legal reforms, encouraged foreign investment and resurrected private enterprise, China has become the world's third largest and fastest growing economy. Under the influence of China's WTO accession commitments, China's markets are increasingly open for foreign investment. These developments, and China's 1.3 billion population and stable political environment, have led to China becoming an increasingly attractive market for foreign franchise systems. In China, as in other countries, the law has played a significant role in improving the environment for franchising. But in China, a country where franchising as a business concept was virtually unknown until the 1990s, the law has had a more fundamental role through creating the environment in which franchising was possible. Until the 1997 Interim Franchise Measures recognised franchising as a legitimate method of domestic business operation, franchising was not possible. Until WTO accession commitments led to market liberalisation reforms in 2004 the development of a franchise network by a foreign franchisor was of doubtful validity. Until the 2007 Franchise Regulation provided a unified regulatory regime for domestic and foreign franchisors under which contractual and proprietary rights arc recognised and protected the franchising option has been seriously curtailed. This thesis examines the impact of the law, and law reform primarily WTO induced, on the development of franchising in China from the perspective of the foreign franchisor. It concludes that foreign franchisors' entry and expansion strategies in China reflect not only cultural, commercial and other environmental considerations which influence any international franchising decision, but also a regulatory regime which has both created and constrained opportunities. The thesis traces the development of the regulatory regime for foreign franchisors and makes recommendations for its further refinement including legislative clarity as to the validity of cross border franchising into China through master franchising and area development agreements.
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(2009)ThesisAt the crossroads of insolvency and securities law lies the question as to whether defrauded shareholders should rank equally with unsecured creditors in cases involving fraudulent or misleading behaviour. Important questions arise at this juncture concerning the efficiency, certainty, transparency and fairness of the treatment of such claims in insolvency situations. In Sons of Gwalia Ltd (admin apptd) v Margaretic [2007] HCA 1, the High Court chose not to apply a rule said to be germane to insolvency cases involving fraudulent or misleading conduct inducing share purchase known as the rule in Houldsworth’s Case. The “rule” said to have been developed in Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317 had up until the High Court’s decision been used to interpret legislative provisions concerning shareholder claims, resulting in problematic determinations in the context of modern developed markets. While it is submitted the High Court was justified in choosing not to apply the rule in Houldsworth’s Case and thus allowing shareholders to claim as unsecured creditors, the rule may still prove good law in certain cases. Indeed, the referral of the High Court’s decision to the Corporations and Markets Advisory Committee for review may result in legislative change which reverts to the traditional treatment of shareholders in such circumstances. Accordingly this dissertation engages in a doctrinal analysis of historical precedent on defrauded shareholder claims in the UK and Australia to demonstrate that the decision in Houldsworth and subsequent interpretation and application of the “rule” therein suffer from deep flaws, and have been productive of relative injustice. It is argued that it is necessary to put the current uncertainty surrounding the applicability of Houldsworth in Australia beyond doubt through legislative abrogation of the rule in Houldsworth’s Case. As the result of such abrogation would represent a significant policy shift in Australian corporate law, the merits and difficulties of the resulting position will be addressed by this dissertation. It will be argued that a policy of shareholder parity with unsecured creditors best meets the goals of insolvency and securities law regimes while contributing to the sustainability of a fair and efficient market, and investor participation in it.