Senate Inquiry into ‘non-confirming’ building products is wrapping up

On 23 June 2015, the Senate commenced a wide-ranging an inquiry into the use of ‘non-conforming’ building products (being products and materials that do not meet required standards). The inquiry was launched following a 2014 fire in a Victorian apartment complex involving the use of aluminium composite panelling. The due date for reporting has been extended several times, and the report is now due to be released on 25 May 2017. The long awaited and much anticipated report will address: The economic impact of non-conforming building products on the Australian building and construction industry The impact of non-conforming building products …

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The Victorian Building Authority fires up for further audits

Following the Lacrosse fire in Melbourne’s Docklands in late 2014, the Victorian Building Authority (VBA) conducted an audit of non-compliant wall cladding systems of high rise buildings in inner city Melbourne. By way of background, the Lacrosse building was clad in aluminium composite panelling, and it is alleged that the panelling (with a combustible core) contributed to the fire’s dramatic spread up the exterior façade of the building, causing significant property damage. The VBA’s audit found a 51% rate of non-compliance, albeit only two buildings were required to carry out rectification work. The findings, which were fairly controversial, left building …

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A bird set loose

In Wayland v Bird [2017] NSWCA 26, the NSW Court of Appeal (NSWCA) held a professional indemnity insurer should not be joined under section 6(4) of the Law Reform (Miscellaneous Provision) Act 1946 (NSW) (Act), to a proceeding in which its insured was the defendant, in circumstances where it was entitled to refuse indemnity due to prejudice caused by the insured – notwithstanding there was an arguable case the insurance policy responded to the Claim (as defined below). In July 2013, Mr and Mrs Wayland (Waylands) sued Mr Bird in the District Court of NSW alleging they had suffered loss …

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Bill on conflicted remuneration for life insurance passed

The Corporations Amendment (Life Insurance Remuneration Arrangements) Bill 2016 (Bill) has passed both Houses and will take effect from 1 January 2018. After originally lapsing in April 2016, the Bill was reintroduced late last year with minor changes. The Bill will have a significant impact on life insurance brokers and represents the government’s response to a number of investigations into the life insurance industry. Change to exemption against conflicted remuneration ban The Bill amends the Corporations Act to remove the exemption against the ban on conflicted remuneration for benefits paid in relation to certain life insurance products. Conflicted remuneration is …

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The world catches up to securities class actions

Many (especially European) jurisdictions eschew the term ‘class actions’, preferring the more genteel descriptors ‘collective investor action’ or ‘collective redress’. Despite the different terminology, the statistics show that the globalisation of securities class actions is taking hold and the trend is set to increase. This trend will have wide ranging implications on the future of D&O claims internationally, according to leading US commentator Kevin LaCroix (of the D&O Diary fame), who spoke at DLA Piper’s third annual Insurance Symposium in Sydney last week. The rise of collective investor actions outside of the US is most prominent in the UK, Netherlands …

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Senate Signs off on Financial Adviser Reforms – Changes to Claim Volume/Risk Profile Ahead?

Last Week the Senate passed the Corporations Amendment (Professional Standards of Financial Advisers) Bill 2016 and paved the way for wide ranging reforms (and increased compliance obligations) in the financial advisory industry. The new regime starts on 1 January 2019 and includes the following reforms: – Compulsory education requirements for both new and existing financial advisers. – Supervision requirements for new advisers. – A code of ethics for the industry to apply from 1 January 2020. – An exam that will represent a common benchmark across the industry. – An ongoing professional development component. There is a long transition period …

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ASIC reveals ‘hot spots’ for the insurance industry in 2017

Last week Greg Medcraft, the chairperson of the Australian Securities and Investments Commission (ASIC), delivered a speech to the Insurance Council of Australia Annual Forum on the current insurance environment and ASIC’s priorities for the coming year. Current environment The speech commenced by noting that 2016 was an eventful year for the insurance industry. In particular, Medcraft noted the impact of technology and social media and the impact that technology is having on consumer empowerment. Consumer expectations are changing and the impact of social media means that consumers are able to express themselves regardless of media interest. ASIC confirmed that …

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To cap or not to cap? Tassie finally joins the party

Late last year Tasmania passed changes to its capped liability legislation, finally bringing it into line with the mainland, more than 10 years after the legislation was first introduced in the apple isle. The legislation allows professional groups to register schemes, by which their members can, by statute ‘cap’ or limit their professional liability, to be consistent with their level of professional indemnity insurance. Such schemes are designed to promote the availability and affordability of professional indemnity insurance, particularly for higher risk professional groups. Prior to the change, the Tasmanian legislation contained a singularly unhelpful provision ’27(c)’, which was not …

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Litigation funders and contingency fees under the spotlight in Victoria

On Monday, it was announced that the Victorian Attorney-General, the Hon Martin Pakula MP, has asked the Victorian Law Reform Commission (VLRC) to review the rules covering litigation funders to prevent unfair conduct in civil proceedings, such as class actions. The review by the VLRC will consider issues such as: circumstances where a successful outcome is eroded by fees, leaving plaintiffs with nothing (or next to nothing), despite winning; whether some third parties are unfairly profiting from successful actions; the existing prohibition on law firms charging contingency fees and whether that prohibition should be retained. In announcing the review, the …

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Finding dirt in the cloud?

A recent Supreme Court decision has ‘opened the door’ to litigants seeking discovery of supposedly ‘deleted’ electronic material in the Cloud. The decision concerned a dispute about discovery in a defamation proceeding. It all turned on seeking access to text messages which had been deleted from the plaintiff’s i-Phone. The plaintiff said his i-Phone had been damaged, back-ups deleted, and was therefore unable to discover relevant text messages. As no backed up copies of the text messages were available – on his personal computer or Apple iCloud account – the plaintiff said he could do no more to provide the …

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