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The Commercial Bar Civil Procedure Section is pleased to present a panel discussion on the vexed issue of making applications to judicial officers to recuse themselves on the grounds of apprehended bias. The panel will review recent decisions in this area and will provide an overview as to how best to (or how best not to) approach such an application.
THE IMPLICATIONS OF TECH MAHINDRA LIMITED v CoT and
SATYAM COMPUTER SERVICES LIMITED v CoT
It is commonly stated that a double tax agreement is a shield to protect taxpayers from double taxation and cannot of itself give rise to taxation liabilities. However, the October 2018 decisions of the Full Federal Court in Tech Mahindra Limited and Satyam Computer Services Limited mean that the “source of income provisions” found in many of Australia’s double tax agreements have “what amounts to some ‘sword-like effect in practice”. The decisions have immediate implications for Indian-resident taxpayers in receipt of payments for ‘technical services’ from Australian customers, but the possible implications are much broader.
The Bar and the County Court, working together, have designed a new pilot scheme for pro bono referrals which commenced on 1 October in the County Court’s Commercial and Common Law Divisions.
The protocol provides clear written guidance as to eligibility and the operation of the scheme. Referrals are to occur by Court Order, which will provide clarity as to the scope of requests. The new procedures are aimed at improving the quality of experience for members in providing pro bono legal assistance, in turn improving the outcome for clients and the courts.
A panel of speakers from the County Court and Victorian Bar will discuss the practical operation of the new referral scheme.
This year marks the tenth anniversary of the enactment of the Cross-Border Insolvency Act 2008 (Cth), which adopted the UNCITRAL Model Law on Cross-Border Insolvency. In the decade since its adoption, the Model Law has provided a clear and consistent basis for the courts in Australia to grant recognition and assistance to foreign insolvency proceedings.
This seminar explores the conceptual framework behind the Model Law, the extent to which it has been adopted and adapted by jurisdictions in the Asia Pacific region and the experience of the Model Law in Australia. The Model Law is an interesting example of legal convergence (and divergence), particularly in view of the increasingly global nature of business activities and operations, and the benefits that accrue to debtors, creditors and other stakeholders in dealing with cross-border insolvency issues on a uniform basis.
When brutality is alleged against police, impartial investigation is essential – to ensure accountability for misconduct, to vindicate the human rights of victims, and to embed a culture of respect for rights within our police force. In March 2018 IBAC found ‘concerning deficiencies’ in the manner in which Victoria Police reviews serious incidents, including those that result in the serious injury or death of members of the public. The IBAC findings raise significant legal and human rights concerns.
Recent changes in the Common Law Division of the Supreme Court include e-filing, new powers for judicial registrars (including in relation to transfers between courts and hearing of stay applications), update to the Supreme Court (Miscellaneous Civil Proceedings) Rules (Chapter II rules).
The Annual Industrial Law Update CPD took place on 15 October 2018 discussed:
This seminar provided an update on principles of loss and damage in particular the time for assessment, and when loss and damage first arises. An understanding of these issues is critical for trial.
Developments in the Commercial Court continue apace. During this seminar, members of the Court speak about management for the Corporations List, formalisation of the oppression proceeding program, judicial mediations, new powers for judicial registrars, and e-filing.
This seminar examined the boundaries of remedies available under the Australian Consumer Law by reference to gain-based measures of relief as a means both of providing recompense to the plaintiff and deterring misleading conduct.
The High Court handed down its decision in the case of the Federal Commissioner of Taxation v Thomas  HCA 31 on 8 August 2018. This seminar covers the key aspects of the case and their implications, including declaratory relief and the limits of the Executor Trustee case.
This seminar examined the first decided case in which the Commissioner of Taxation disqualified a trustee of a self-managed superannuation fund for not being a fit and proper person and for various breaches of the Superannuation Industry (Supervision) Act 1993.
Directors of companies that trade overseas, and those of subsidiaries of overseas companies, may have duties imposed upon them by foreign law and be subject to the jurisdiction of foreign courts, especially where entities or their holding companies are approaching insolvency. Legal advisers have to be aware of the potential for that to occur. This presentation discusses the potential liability and provides examples of it. It also looks at and discusses the need to develop an understanding of how different legal systems impose duties on directors. This seminar is open to barristers, solicitors, in-house counsel and insolvency practitioners.
The Commissioner has broad powers to compulsorily obtain information under s 353-10 of Sch 1 to the Taxation Administration Act 1953. In this practical seminar, a panel of experts discuss issues including:
The Australian Building and Construction Commissioner and the Registered Organisations Commissioner and the Chief Counsel of the Fair Work Ombudsman each present updates as to regulatory and legal priorities and relevant recent decisions. Barrister Catherine Symons also presents in relation to the treatment of multiple and overlapping contraventions when imposing civil penalties.
What is a question of law, and does it need to be in the leave application?
In this CPD, Emrys explores two specific and current topics affecting applications for leave to appeal from an order of the VCAT under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
Aboriginal and Torres Strait Islander peoples make up 2% of the Australian population, yet they make up 27% of the prison population. 34% of the female prison population are indigenous. The problem of over-representation is getting worse. The Australian Law Reform Commission (ALRC) final report into this ‘national tragedy’ was tabled in Parliament on 28 March 2018, by the Attorney General, The Hon. George Brandis QC. The report makes 34 recommendations. This timely seminar will discuss the issue and ALRC’s suggested reforms.
This seminar will look at the formal requirements for drafting guarantees, pleadings, and outline the scope of guarantor liability and discharge, guarantor rights and defences, and legislation affecting guarantors.
The seminar will update practitioners on the recent Corporate Insolvency Reforms:
(i) the Safe Harbour exclusion to directors’ insolvent trading liability, and
(ii) the moratorium on Ipso Facto clauses in voluntary administration
The Full Federal Court recently handed down a 2-1 decision in Ellison v Sandini Pty Ltd  FCAFC 44 overturning the Federal Court below. An application for special leave to the High Court has been filed. The case may have substantial consequences for family law practitioners and more general implications for capital gains tax rollover relief. The presentation will explain the Full Federal Court decision, its technical basis and ramifications and identify practical steps practitioners can take to best protect their clients’ interests.
In this Q&A session Fiona Cameron, Michael Bearman and Sarah Fregon discuss the tax implications of judgments and settlements, including income tax on judgment sums and interest, Capital Gains Tax events, and GST. This session is designed to provide non-tax lawyers with an essential understanding of the tax consequences that may flow from a judgment or settlement, based on important factors including the type of claim, the structure of any settlement agreement, and possible exemptions from income tax or CGT.
With over 33 years’ experience between them, Fiona and Michael are highly experienced specialists in taxation, commercial and administrative law.
In a number of recent decisions courts have made adverse comments about the behaviour of government litigants. Parliament is also considering legislation designed to make the model litigant rules legally enforceable.
In this seminar the speakers review the model litigant guidelines and the recent decisions in FCT v Donoghue  FCAFC 183; (2015) 237 FCR 316; Gould v DCT  FCAFC 1, North West Melbourne Recycling Pty Ltd v Commr of SR (Vic) (No 2)  VSC 726, Shord v FCT  FCAFC 167, and Shord v FCT (No 2)  FCAFC 27.
William Wainwright is a forensic psychologist with 18 years’ experience working with many government and non-government organizations. William has worked in-depth in the sexual offending field with adults, juveniles and clients with intellectual disabilities. He has acted as an expert in court on numerous occasions and consulted and trained with a variety of audiences, including the police, judges, lawyers, DHHS workers, child protection workers corrections workers and prison officers.
In this session William discusses:
1 CPD POINT
In this seminar chaired by Dr Suzanne McNicol QC, our speaker Jason Harkess presents an explanation as to what qualifies as hearsay evidence under the Evidence Act 2008 and considers some more difficult hypothetical examples of hearsay evidence.
His Honour Magistrate Brian Wright speaks to his paper regarding the most important principles, legislation and case law in the area of workers compensation.
In this seminar, Guy Gilbert, Georgina Costello and Julia Lucas speak on the issue of procedural fairness, and the provision of adverse information under the Migration Act 1958 (Cth).
Holding a person criminally responsible for acts they didn’t do themselves pushes the boundaries of just punishment. The landmark case of R v Jogee saw the UK Supreme Court overturn 30 years of precedent on extended criminal liability.
Join Felicity Gerry QC, who led the defence team in Jogee, as she discusses the consequences of this judgment in Australia, Hong Kong, the European Court of Human Rights and the International Criminal Tribunal for Yugoslavia.
This seminar provides insight into dealing with self -represented litigants in commercial cases with a perspective from the bench and the bar and also look at the role of the Victorian Bar Pro Bono Scheme.
In this CPD, the panel will provide an update on global Artificial Intelligence trends, implications for the law, and impacts on legal practice and litigation
His Honour Judge Anthony Kelly of the Federal Circuit Court of Australia chairs a discussion with speakers Michael Galvin QC and Daniel Snyder hosted by the Victorian Bar and the Insolvency Section of the Commercial Bar Association.
In this CPD seminar introduced by Dr Matt Collins QC and chaired by Patrick O’Shannessy, the Honourable Chief Judge William Alstergren, Judge Grant Riethmuller, Judge Stewart and Judge Harland discuss the new Practice Direction and other Developments in the Federal Circuit Court.
Practice direction No. 2 of 2017 of the Federal Circuit Court of Australia, published on 7 December 2017, came into effect as of 1 January 2018.
In this Q&A Session Michael Rivette and Sarah Fregon discuss the amendments to the Privacy Act 1988 and Mandatory Data Breach Laws including Giller v Procopets (2008) 24 VR, governance and risk taking, mandatory data breach law changes effective 22nd February 2018, assessing risk, remedial action, categorisation of data breaches, practical management and social and legal responsibilities.
Albert Monichino QC: “Stay of Court Proceedings: Tales of the Chicken and the Egg”
Discussion of proper approach to be taken by a national court entertaining an application to stay a proceeding brought by a party that denies being bound by an arbitration agreement.
Martin Scott QC: “Arbitration: Be Alert but not Alarmed”
Is expert evidence required to prove that foreign law is the same as domestic law in an application to enforce an arbitral award? Removal of arbitrators and partial setting aside of arbitral awards.
Adam Rollnik and Daniel Briggs discuss the requirements for admission of evidence of surrounding circumstances in contractual interpretation, and the development of the requirements from Codelfa and Mount Bruce through recent cases.