Articles

In this issue, we examine the Federal Court’s landmark $90 million penalty against Qantas for unlawfully terminating 1,820 ground staff during the COVID-19 pandemic, the High Court’s decision in Helensburgh Coal Pty Ltd v Bartley clarifying the Fair Work Commission’s authority to assess the genuineness of redundancies, and the Federal Court’s ruling on the limitations of contractual set-off clauses and the reinforcement of record-keeping obligations for employers.

While insurance coverage for material damage loss on a project is necessarily determined by reference to the particular project policy wording, increasingly contract works policies utilised in major projects (whether written locally or by United Kingdom (UK) underwriters) are incorporating exclusions from one of two sets of clauses derived from UK industry bodies. There is a limited body of jurisprudence in relation to the interpretation of one set of these clauses in the UK (London Market Design (DE) Clauses). These cases are analysed in this newsletter.

In this article, Partner Milton Latta discusses a recent NSW Court of Appeal decision in which an important qualification was applied when assessing whether, in a labour hire context, there had been a transfer of vicarious liability from the actual employer to the host employer. The article examines how, as a result of this qualification, it may now be harder for an employer to transfer vicarious liability to the host.

Two Australian case authorities on the operation of an exclusion for ‘flood’ are the Queensland Supreme Court decisions in LMT Surgical Pty Ltd v Allianz Australia Insurance Ltd and Wiesac Pty Ltd v Insurance Australia Group Ltd. The first of those cases concerned the words ‘water overflowing from the normal confines’ and the second ‘water escaping or released from the normal confines’. The plaintiff was successful in the first-mentioned case but unsuccessful in the second, with the judge noting that there was only one word that was different in the flood exclusion in Wiesac compared to that considered in LMT Surgical. In a later Queensland Supreme Court case, of Landel Pty Ltd v Insurance Australia Ltd, Dalton J was called upon to consider an exclusion for ‘flood’ which was in all respects identical to the exclusion under consideration in LMT Surgical. Carter Newell acted for the insurer in the latter two cases, and all three authorities are considered by Partner Patrick Mead in this issue of Constructive Notes.

Recovery under contract works policies can provide fertile ground for dispute, particularly when property is allegedly damaged in consequence of defective workmanship, material or design. In this article, Partner Patrick Mead discusses the two areas in particular that are, the questions of what constitutes ‘damage’ or ‘physical damage’ under the policy and what portion of that damage can be said to fall within a common proviso to the defective workmanship/design exclusion seeking to limit the exclusion to that part of the works ‘immediately affected’.

In this article, Partner Mark Kenney and Law Graduate Josh Logan discuss the advantages and implications that the new Australian Standard construction template has introduced to the industry.

In this issue, we cover a pivotal Federal Court decision in Lattouf v ABC [2025] FCA 669 ruling on the protection of political expression in the workplace, a significant High Court decision in Ravbar v Commonwealth of Australia [2025] HCA 25 affirming union administration legislation, and new workplace health and safety obligations affecting employers in Queensland and New South Wales. These updates signal evolving expectations around employee conduct, union governance, and safety obligations.

A peril in first-party insurance destroys or diminishes the insured’s person, property or interest or deprives the insured of its use. That an insured should bear a specified part of each loss by way of a deductible or excess provision is a familiar feature of insurance policies which provide cover of this nature. The purpose of an aggregation provision is to avoid serious disadvantage to the insured where several incidents of damage all flow from one underlying cause. The choice of language used to express the necessary unifying factor is of critical importance.

Mediation is one of the most popular forms of alternative dispute resolution and has become firmly embedded in the litigation process. In circumstances where few matters proceed to trial without the parties first attending a mediation, this article, authored by Nationally Accredited Mediator (AMDRAS) and Partner Mark Brookes, takes a fresh look at the ways to get the most out of any mediation.

ASIC’s 2025 insolvency data highlights the increase in companies being wound up, leading to a rise in liquidators pursuing a company’s insolvent transactions. Creditors may have a defence to a liquidator’s demand through evidence of good faith, a running account and no knowledge of the company’s insolvency at the time of the transaction. In this article, our Corporate & Commercial team highlight that knowledge of these defences are crucial amid rising insolvencies in key sectors.

There is a surprising scarcity of judicial authority in Australia in relation to the operation of Contractors Pollution Legal Liability insurance, so it is necessary for the most part to revert to first principles in seeking to ascertain its scope of operation in any particular factual scenario. This issue of Constructive Notes is directed to that exercise. It is hoped that the reader will be left with a greater understanding of the operation of these specialist policies and the risks of gaps in cover arising if great care is not taken in implementing the suite of necessary insurances.

Informal wills are becoming increasingly popular due to their lower cost and accessibility. The common mode of delivery has broadened from traditional paper-based wills to digital formats. The recent judgment in Peek v Wheatley offers a good summary of the legal principles applicable to the evolution in the drafting and execution of wills and highlights the professional and ethical responsibilities of solicitors under the Australian Solicitors’ Conduct Rules 2023. In this article, Partner Mark Brookes and Law Graduate Adam Pottenger highlight how this can impact solicitors.