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How to make contracts more certain and less costly

Stop believing the myth that lawyers can provide legal protection with words alone. In addition to words, protection in contacts requires knowledge and know-how regarding business process, policies, training, standards, and codes of conduct.

The reason is that context has become as important as content. The context of a contractual or other legal relationship between two or more parties has become as important as the words the parties choose to communicate and set the terms between each other.

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Contract Drafting Tips Series: Confidential Information Clause

This article is part of a series on drafting tips for contract clauses.

Under confidential information law a legal right exists for a person who in circumstances of confidence gives (or permits access to) confidential information to another person ("user") who then, without permission, uses it or discloses it to a third party. In those circumstances the first-mentioned person may obtain certain legal remedies against the user.

Confidential information law is a branch of equity law. A contract, preferably written, can bolster protection of confidential information. This is because the aggrieved person can then rely on two legal grounds, contract law as well as equity law. Numerous practical steps can be taken to further enhance enforceability under such laws.

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Contract Drafting Tips Series: Rights Granted Clause

This article is part of a series on drafting tips for contract clauses.

A "rights granted" clause defines the rights granted to a licensee to use or deal with certain property. It can be very broad (eg all rights in a work) or very narrow (eg television broadcast rights in a particular territory for a particular duration).

This article focuses on rights granted clauses for intellectual property ("IP"). The legal rights granted may be in one area of IP law, or in a combination.

The rights granted may be a right of copyright in a work, a registered trade mark right, a right to patented technology, a right over a registered design, a right over a plant variety or consent regarding use of confidential information.

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Contract Drafting Tips Series: Dispute Resolution Clause

This article begins a series on drafting tips for various types of contract clauses.

Good contracts help avoid and resolve disputes. The person who drafts a contract should consider possibilities for dispute resolution and, if need, draft a clause.

Having a dispute resolution clause is useful in appropriate cases. According to a recent dispute resolution survey by the Institute of Arbitrators & Mediators Australia (IAMA), almost half of all technology contracts result in some kind of dispute over factors such as time, cost or performance.

You can draft a contract with no dispute resolution clause, and we often do. There are also instances when it is very useful to have one.

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Australian architects behaving badly

This week I've written articles on two court cases involving copyright, contracts and architects. Both cases involve lengthy disputes over either a unit block or project homes. The project homes case is continuing with an appeal due in 2008.

It got me thinking. What options are available for Australian architects who seek to professionally document their legal relationships with clients and collaborators?

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Architect gave an implied copyright licence

The work of architects exposes them to legal risks. Lack of clarity in documents or arrangements often causes angst for architects. It is sometimes also used by them as a negotiation tactic.

This is illustrated in a leading copyright case for architects decided by the High Court of Australia in December 2006. The decision in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 is about copyright in property development plans.

It's an interesting case worthy of a detailed case report.

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Architecture_blueprint

"Wow factor" snares copyright breach of architectural plans

In September 2007 the Federal Court of Australia ruled on the question of copyright in project homes and plans for them. Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509 was an action between two competing project home developers in the market in Victoria.

The breach of copyright claim was made by Barrett Property Group Pty Ltd trading as Porter Davis Homes. It claimed Metricon Homes Pty Ltd had copied certain project homes and architectural plans for them, commencing with the "Seattle 31" model.

The case is a lesson on the nature and extent of evidence required to win a architectural plan copyright infringement case. If you read to the end you'll see that the numbers in this court case don't talk, they scream. An appeal has been filed and is scheduled for February 2008.

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Architecture_blueprint

"Wow factor" snares copyright breach of architectural plans

In September 2007 the Federal Court of Australia ruled on the question of copyright in project homes and plans for them. Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509 was an action between two competing project home developers in the market in Victoria.

The breach of copyright claim was made by Barrett Property Group Pty Ltd trading as Porter Davis Homes. It claimed Metricon Homes Pty Ltd had copied certain project homes and architectural plans for them, commencing with the "Seattle 31" model.

The case is a lesson on the nature and extent of evidence required to win a architectural plan copyright infringement case. If you read to the end you'll see that the numbers in this court case don't talk, they scream. An appeal has been filed and is scheduled for February 2008.

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Hense_oz

No substitute for experience and skill in immigration law

A former Minister for Citizenship once said that representatives of migration applicants do nothing more than present their clients' facts to the Department.

My response is to quote George Gerswin, "It ain't necessarily so."

Over the years as a solicitor specialising in immigration law, I have had to intervene on literally hundeds of occasions to see that my clients receive a fair (and legal) go from the Department of Immigration.

I'll give you three recent examples from the last two weeks.

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Australian-money

Economic conditions for Australians, November 2008

Here at Lightbulb we are no friend of churnalism. It misleads, rots brains, produces stupidity.

So instead of regurgitating writing by others (ie churnalism), our preference is to include links to good writing while providing analysis or commentary. After all, Lightbulb is a magazine or journal style of publication, not a daily.

This preference flew out the door this morning. It took flight on reading a very timely, succinct and nicely illustrated piece by Jim Belshaw on the economic conditions for Australians today. Belshaw provides a snapshot on a paper delivered by Ric Battellino, the Deputy Governor of Australia's Reserve Bank.

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Hense_oz

Skilled migration to Australia made easier

The skills shortage in Australia is continuing to produce a range of responses, including by governments, private enterprise, and the education sector. Our firm has responded by publishing a Special Collection on recruitment and employment law.

We turn now to migration law. Migration law expert, Paul Hense (pictured), has accepted our invitation to provide a series  of reports. We begin with his overview of key changes.

From 1 September 2007 a new points system has been introduced for those seeking skilled migration to Australia under the General Skilled Migration Program. It applies to a wide range of applicants.

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Domain name scam - made in China?

Two weeks ago I had an email exchange with "Jeff Zhang" of jeff@longyu.org.cn, or so it seemed. His first sentence was: "This is Shanghai Long Yu Information Technology Co. Ltd which is a professional domain name registration and service company in China." I noted the "cn" in the email address, being for China. I checked, www.longyu.org.cn but it led to nothing.

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Hense_oz

Australian migration numbers, visas and leadership

Australia has a new Federal Government, and with it new leadership in the migration portfolio. Before reflecting on this, we answer these two questions:

1.  How many migrants has Australian had annually?

2.  What visa categories have they been accepted in?

In spite of former Prime Minister Howard's ambiguous views on some aspects of the Australian migration programme, Australia has accepted increased numbers of migrants in recent years. This has been caused by an increase in the numbers under the skilled migration programe (with a drop in family reunion migration).

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Record penalties for Trade Practices Act non-compliance

Once more the dire consequences of breach of Part IV of the Trade Practices Act 1974 (Cth) ("Act") have been made clear. This time with record penalties, injunctive orders and compliance orders imposed by the Federal Court of Australia.

Today Australian billionaire, Richard Pratt, his company and two of his senior executives were all found responsible to various degrees for breaches of the Act in the corrugated fibreboard packaging products market in Australia. The penalties require Visy to pay A$36 million, and two executives to respectively pay A$1.5 milion and A$500,000.

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When is a distribution agreement not a franchise?

The regulation of franchise agreements in Australia is vastly more restrictive than for licence or distribution agreements. There are dire consequences if an agreement unintentionally crosses the line to become a franchise in the eyes of the law.

Until now there's been little common law to distinguish franchise agreements from other similar arrangements. We now have a case, the Federal Court decision of ACCC v Kyloe Pty Ltd [2007] FCA 1522 decided on 18 October 2007. It turns on its facts. It's not an extended thesis on the distinction. The takeaway is obtain advice to stay on the right side of the line.

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