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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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