Jackson McDonald publications


  • 17 May 2013

    Are injuries resulting from “hijinks” compensable?

    The Federal Court held on 19 April 2012 that injuries suffered by an employee whilst engaging in sexual activity in a motel room paid for by her employer on a business trip occurred “in the course of employment”.

    After an unsuccessful appeal to the Full Court of the Federal Court in December 2012 the employer’s insurer, Comcare, has now been granted special leave to appeal to the High Court against this decision. Comcare seeks a ruling on whether the circumstances surrounding an injury may be relevant to an assessment of whether an injury occurs “in the course of employment”. 

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    Author: Zaneta Witherington

  • 29 April 2013

    The get out of jail free card: When is a dismissal not a dismissal

    The Court of Appeal held on 9 April that the purpose of the standard case management timetable prescribed by Rule 30 of the District Court Rules (WA) (“DCR”) was simply to provide a guide to the timetable to be fixed in an action. Therefore, in cases which the standard case management timetable applies, that is where the entry for trial milestone is not set by Court order, a failure to enter the action by the date “suggested” by the standard timetable will no longer result in actions being automatically placed on the Inactive Cases List (“ICL”).

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    Authors: Alex Lustig, Zaneta Witherington

  • 25 March 2013

    Proportionate Liability - The inadvertent ‘contracting out’ of the regime

    This is another example of a party unintentionally 'contracting out' of the proportionate liability regime, but this time the contract predated the commencement of the proportionate liability legislation.

    In this case, the NSW Court of Appeal found that a deed (which was entered into before the commencement of the relevant proportionate liability legislation) altering the rights and liabilities of the parties, had the effect that the parties 'contracted out' of proportionate liability.

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    Author: JC van der Walt

  • 22 March 2013

    General Requirements for Verifying Identify for Landgate

    In an effort to reduce the risk of fraud in real property transactions in Western Australia. The Western Australian Register and Commissioner of Titles recently issued their Joint Practice: Verification of Identity (The 'Practice'). The Practice commenced transitionally on 1 July 2012, with full compliance required by 2 January 2013.

    Download PDF 320 KB


  • 20 March 2013

    Taxing the Commercial Activities of Not-for-Profit Organisations

    In the 2011/12 Federal Budget, the Federal Government announced a number of reforms in relation to the not-for-profit (“NFP”) sector. These reforms include changes to the taxation of NFP’s commercial activities.

    On 27 May 2011 the Assistant Treasurer released a consultation paper, ‘Better targeting of not-for-profit tax concessions’ which outlines the Federal Government’s preliminary views as to the proposed reforms. A summary of the proposed NFP tax concession reforms is set out in this publication.

    Download PDF 443kb

    Authors: Adam Levin, Elizabeth Tylich

  • 12 March 2013

    A warning to solicitors on their penumbral duty to clients – the more you know, the more you owe

    The NSW Court of Appeal recently held that a solicitor providing legal advice to a client in respect of a mortgage transaction had a penumbral duty to the client that went beyond the scope of the solicitor’s retainer. The unanimous finding was that the solicitor had a duty to advise its client to seek independent financial advice given the circumstances of the transaction and the knowledge held by the solicitor.

    Download PDF 453kb

    Author: Stefan Sudweeks

  • 28 February 2013

    Are you dealing with “waste”?

    Do you deal with matter in any state or form, whether useful or useless, that is sent forth or removed from one place to another? If so, you may be dealing with “waste” for the purposes of the Environmental Protection Act and the Waste Avoidance and Resource Recovery Act.

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  • 21 February 2013

    How Should Claims for ‘Delay’ be Assessed?

    Delay in construction projects leads to costs for both the Principal and Contractor; and claims between contracting parties eventuating from delay can be complex and difficult to resolve (particularly if the parties cannot agree on the process for assessing the delay). The recent decision of Alstom Ltd v Yokogawa Australia Pty Ltd & Anor (No 7) [2012] SASC 49 (“Alstom v Yokogawa”) is a timely reminder to all parties involved in construction projects of the importance of establishing delay based upon one of the accepted delay analysis methodologies.

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    Author: Thomas Jacobs

  • 17 February 2013

    Biotechnology breathes a sigh of relief: Isolated gene sequences are patentable subject matter.

    This case creates an important precedent that the act of isolating a gene sequence is sufficient to create a sufficient artificial state of affairs to satisfy the first limb of the manner of manufacture test of patentability.

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  • 15 February 2013

    Receiving submissions by Email - Beware the E-mail Filter

    Do you accept submissions and comments on draft planning instruments, development proposals and proposed community programs by e-mail? If so, make sure that your e-mail filters are set up properly. A South Australian Court has recently held that an objection to a development sent by e-mail was received by a Council even though the e-mail was blocked and deleted by the Council’s e-mail filter: William Close Pty Ltd v City of Salisbury and McDonalds Australia Ltd [2012] SAERDC 26 (No 2).

    Download PDF 400kb

    Author: Lance Hilton-Barber