Michael Fabbro

From the Principal’s Desk – Fabbro Talks (June 2022)

Since my last Newsletter article at the beginning of May, we’ve witnessed two high profile contests – a five-week Federal Election campaign in Australia and a six-week “celebrity” defamation trial in the US. Both have left a slightly sour taste in the mouth, not so much from their outcomes but more so from the unedifying nature of the contests that unfolded before us.

The new Albanese government faces a plethora of key challenges, from cost-of-living pressures, an increasingly assertive China, natural disasters, to stagnant productivity and wage increases. These factors are merging to cause acute difficulties for many of our clients in the construction sector. We’re seeing a number of high-profile bankruptcies in the sector brought on by a combination of high material costs, labour shortages, and the propensity for high volume, low margin work linked to fixed price contracts, with no right to decline variation directions, and no entitlement to delay costs.

In the current circumstances, it might be wise for construction clients to re-familiarise themselves with the Security for Payments Act. The SOPA contains a framework for facilitating the quick payment of progress claims owing to construction contractors and subcontractors during the term of a construction contract. Under the SOPA, disputed progress claims can be submitted for adjudication with an adjudicator. The adjudicator is empowered to issue an adjudication certificate certifying how much is payable for the progress claim.

The SOPA operates in parallel with construction contracts. This means that when a person elects to rely on the SOPA, that person must follow the steps required by the SOPA and can become liable to pay amounts under the SOPA (SOPA debt). The obligation to pay a SOPA debt is separate to and in addition to any contractual obligations.

My colleague Ashik Ibrahim has produced an introductory guide to SOPA, which you can find here or via the resources page on the Ezra Legal website.

In the defamation trial brought by Johnny Depp against his ex-wife Amber Heard the US inquisitorial system led a jury to conclude that Ms Heard’s accusations of abuse against Mr Depp were “false” and that she had acted with “actual malice”, with Mr Depp being awarded $15 million in damages. This contrasts with a previous defamation trial under the UK adversarial system where Justice Nicol found that 12 of 14 alleged incidents of domestic violence against Heard had occurred.

Perhaps the key take-outs for those attempting to draw any lessons from these proceedings in an Australian context are:

  • Defamation trials can be complex and very expensive (Depp reportedly spent around US$5 million on his US legal team);
  • Best avoid them by not defaming others i.e. don’t publish anything that you cannot prove to be true by independent evidence; and
  • Don’t allow trials to become defacto reality television shows.

In this month’s newsletter we compare testamentary trusts with discretionary trusts, discuss the lessons for business that flow from a recent Federal Court judgement on cyber security and risk management, the obligations placed on employers who pay annualised salaries to eligible employees, and ways land owners should seek to protect themselves if tempted to enter in to a lease arrangement with a wind farm operator.

Remember, if there is anything of a legal nature that is concerning you … “we’re here to help”!

For information on the range of legal advice and services that we provide, head to:

 

Michael Fabbro

Practice Principal

Ezra Legal

Categories: Blog

Leave a Comment

Your email address will not be published.

Scroll to Top