The Failure of “Sorry”

By wjmadden Published by Benjamin Michael is a new article entitled The Failure of ‘Sorry’: An Empirical Evaluation of Apology Laws, Health Care, and Medical Malpractice (August 16, 2017). The abstract reads:
As part of the effort to contain the size and frequency of medical malpractice claims, many states have adopted apology laws. These laws make apologies from physicians to patients inadmissible in any subsequent court proceedings. The basic rationale behind apology laws is that meritless malpractice claims are less likely to be filed when a physician can apologize to his or her patient without risking those statements being used in court. Through …read more

Source:: Bill Madden

UK Boards not receiving sufficient information to discuss and consider cyber risk

By Peter Clarke According to a very recent report titled FTSE 350 Cyber Governance Health Check Report 2017, of directors at the top 350 UK firms Directors at the UK’s top 350 businesses are not always given all the information they require to discuss cyber risks posed to their operations. Given those directors are responsible for maintaining proper data security and usually responsible for the internal spend on data protection, usually in the form of IT expenditure, that is a worry.
There is no reason to assume Australian companies are any better advised. The picture is probably worse here given the …read more

Source:: Peter A Clarke

Privacy Commissioner investigates data breach at Flight Centre and Cosmetic Institute

By Peter Clarke On 15 July 2017 I posted on the very serious data breach by Flight Centre. It has been covered fairly widely by the media, on the ABC, MSN Nine and the Sydney Morning Herald to name a few.
A month later the Privacy Commissioner has decided to investigate the data breach. It made its announcement on 18 August 2017. The announcement provides:
On 15 August 2017, the Acting Australian Information Commissioner opened an investigation into Flight Centre, examining an alleged data breach involving the release of the personal information of customers to third-party suppliers.
Flight Centre is cooperating with the …read more

Source:: Peter A Clarke

FF (R & D) Pty Ltd v Australian Securities and Investments Commission [2017] VSC 482 (18 August 2017): Corporations, application to reinstate company, leave to proceed. sections 500(2) & 601AH of the Corporations Act

By Peter Clarke Associate Justice Randall in FF (R & D) Pty Ltd v Australian Securities and Investments Commission [2017] VSC 482 considered the principles in granting leave nunc pro tunc to proceed in a proceeding and the exercise of discretion under section 500 of the Corporations Act.
FACTS
The Plaintiff’s originating process sought :
order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (‘the Corporations Act’) directing Australian Securities and Investments Commission (‘ASIC’) to reinstate the registration of Fuji Fuels Pty Ltd (In Liq).
leave pursuant to s 471B granting leave, nunc pro tunc, to proceed under the generally endorsed writ dated 13 …read more

Source:: Peter A Clarke

‘Frequent flyer’ defendants

By wjmadden Professor David Studdert has written a thoughtful but succinct piece for the US Agency for Healthcare Research and Quality (Patient Safety Network) entitled Doctors with multiple malpractice claims, disciplinary actions and complaints: What do we know?
Professor Studdert concludes:
…a capacity to reliably identify physicians at high risk of medicolegal events would be a marvelous breakthrough: it has the potential to take medicolegal institutions off the sidelines of the quality improvement movement and cast them in a more central role in prevention. But prediction will have limited impact on quality and safety unless it can be linked to effective interventions. With a …read more

Source:: Bill Madden

NDIS full funding / financial sustainability appeal

By wjmadden In March 2017 the Federal Court of Australia published its reasons for judgment in the matter of McGarrigle v National Disability Insurance Agency [2017] FCA 308. The claimant had successfully sought to have an AATA decision overturned on the basis that on its proper construction, the Act requires “reasonable and necessary supports”, once identified, to be fully funded by the Agency. The Federal Court held that there was no doubt that consideration of the financial sustainability of the NDIS is given an express place in the operation of the legislative scheme. However the question did not arise as the AATA …read more

Source:: Bill Madden

Damages for loss of receipt of age pension

By wjmadden Londos v Amaca Pty Limited [2017] NSWDDT 7 saw a claim for economic loss is that because the claimant will die early from his disease, he has lost the receipt of the Commonwealth age pension for his “lost years”. The legal issue in the case was whether or not such a loss is compensable (at [7]).
The trial judge reviewed Australian and English authorities on the point (starting at [129]) and at [139] noted that such a loss has never been awarded in this Tribunal, or in any of the courts of this state, or until recently, in any Australian …read more

Source:: Bill Madden

Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2017

By David Jacobson The Government has introduced the Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2017 into Parliament to increase the powers of the Australian Transactions and Reporting Analysis Centre (AUSTRAC) and to regulate digital currency exchange providers. Background.
If passed, the Bill will:
bring digital currency exchange providers under the regulation of AUSTRAC;
strengthen AUSTRAC’s investigation and enforcement powers;
increase police and customs officers’ search and seizure powers at the border; and
deregulate low-risk industry sectors such as cash-in-transit.
AUSTRAC’s investigation and enforcement powers
AUSTRAC’s powers will be strengthened by:
giving the AUSTRAC CEO the power to issue infringement notices for a greater range of regulatory offences, and
allowing the AUSTRAC …read more

Source:: Bright Law

Open Banking Review Issues Paper

By David Jacobson The Open Banking Review has released an issues paper for public comment explaining the context and background for the Government’s decision to introduce an open banking regime in Australia.
Open Banking refers primarily to giving customers greater access to and control over their own banking data. Open Banking enables the customer to direct that they, or third parties chosen by them, be provided with pre-determined parts of their banking data in a secure environment and in a prescribed way, so that it can be used to offer them new or better services, such as:
• more competitive banking products that better suit …read more

Source:: Bright Law

APRA’s Crisis Management Powers

By David Jacobson Treasury is consulting on the exposure draft of Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Bill 2017 (the draft Bill), which will strengthen APRA’s crisis management powers in relation to prudentially regulated authorised deposit-taking institutions (ADIs), general insurers and life insurance companies (insurers), and certain group entities.
The draft Bill includes amendments to the Banking Act 1959, Insurance Act 1973, Life Insurance Act 1995, Australian Prudential Regulation Authority Act 1998, Payment Systems and Netting Act 1998 and Financial Sector (Business Transfer and Group Restructure) Act 1999.
The first group of amendments deal with APRA’s powers relevant to the resolution …read more

Source:: Bright Law