Jackson McDonald publications


  • 23 July 2013

    Fees and charges do not affect the charitable status of not-for-profit aged care

    The State Administrative Tribunal has delivered another decision in favour of the charitable nature of not-for-profit aged-care and retirement villages, confirming that this applies even where entry fees and ongoing fees are charged thatproduce a surplus of income over expenses, provided the surplus is not utilised by way of private profit.

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  • 11 July 2013

    S6 of the Law Reform (Miscellaneous Provisions) Act 1946

    The long awaited decision of whether there is a charge over Director's & Officer's defence costs was handed down yesterday in Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212.

    Australian claimants cannot use s6 to claim a charge over D&O insurance policy moneys that might be used as defence costs prior to the entry of judgment or settlement. Accordingly insurers may pay defence costs without risk.  

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    Author: Stefan Sudweeks

  • 11 July 2013

    Increase to Minimum Wage Rates and Superannuation Contributions

    On of 1 July 2013 a 2.6% increase in the full time National Minimum Wage came into effect. Employers will need to ensure that wages of employees who fall under this award are increased in order to avoid a fine for non-compliance. Accompanying these minimum wage increases will be an increase to the current prescribed rate for superannuation contributions. The previous prescribed rate for superannuation contributions in Australia was 9% and has now been increased to 9.25%. Employers will be required to inform their employees of their additional superannuation contributions and review their record keeping requirements for all employees.

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  • 9 July 2013

    Are injuries resulting from assaults during an interval or break from work compensable?

    M v RBD Contracting Services Pty Ltd [2013] TASWRCT 12 and Qantas Airways Ltd v Arnott [2013] NSWWCCPD 35[2013] WASC 194. 

    Two recent cases in NSW and Tasmania have provided some further guidance on what circumstances injuries arising from assaults will be held to arise “in the course of” a worker’s employment.

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    Author: Alex Lustig

  • 27 June 2013

    Termination of Retirement Village Schemes (s.22)

    On 31 May 2013, the Western Australia Supreme Court handed down its decision in Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219.

    Although primarily focussed on section 22 of the Retirement Villages Act 1992 (Act), the judgment includes observations as to the underlying purposes and public policy considerations relevant to interpreting the Act. The Court’s observations are relevant to all persons dealing with retirement villages.

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    Authors: Simon Moen, Matthew Reid

  • 13 June 2013

    Politics and Religion don’t mix: Recent developments on local laws restricting freedom of political communication

    The validity of local laws and council policies which directly or indirectly burden the implied freedom of political communication attracted headlines in two high profile cases decided earlier this year. This article was first published in the April-May 2013 edition of The Western Councillor.

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    Author: Lance Hilton-Barber

  • 31 May 2013

    Don’t forget the “or” – An update on contractual interpretation, extrinsic evidence and the gateway test of ambiguity

    On 21 May 2013, the Supreme Court of Western Australia considered recent judgements that have affirmed the ‘narrow’ Australian approach to contractual interpretation.  That approach being that evidence of surrounding circumstances will only be admissible as an aid to determining what the intention of the parties to a contract is where the language of the contract is ambiguous or susceptible to more than one meaning (Mason J’s ‘true rule’ from Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337).

    This article examines the latest Supreme Court decision in the context of those that came before it and concludes that maybe the admission of extrinsic evidence is not as hard to achieve as might have been thought after the High Court considered Codelfa in Jireh in late 2011.

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    Author: Stefan Sudweeks

  • 29 May 2013

    Challenging a Will

    There are two principal ways in which a person might challenge a Will: firstly, on the basis that the Will itself is invalid, and secondly on the basis that the Will does not make proper and adequate provision for a person who has standing to apply for increased provision from an estate under section 7 of the Family Provision Act 1972 (WA).

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  • 24 May 2013

    Proportionate Liability: paying a fair share

    The first High Court decision on proportionate liability endorses a wider interpretation of the proportionate liability provisions than previously adopted.

    In this case, the High Court considered whether independent causes of action (fraud and negligence) were apportionable claims. The High Court held that the different causes of action were founded on the same harm to economic loss and were apportionable.

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  • 17 May 2013

    Changes to rules regarding individual flexibility agreements

    In the recent decision Modern Awards Review 2012 — Award Flexibility [2013] FWCFB 2170 (15 April 2013) (Award Flexibility Decision), the Full Bench of the Fair Work Commission (FWC) decided to alter the model flexibility clause contained in all modern awards. The model flexibility clause allows an employer and an individual employee to enter into an individual flexibility agreement (IFA).

    The proposed changes, which have not yet taken effect, will have a number of practical implications for all employers who have previously, or who may in the future, enter into an IFA with an employee. In particular, employers and employees will not be able to enter into an IFA until the employee has commenced employment, and the notice period to terminate an IFA will be 13 weeks.

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