Jackson McDonald publications


  • 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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  • 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.

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  • 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.

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    Authors: Adam Levin, Elizabeth Tylich