{"id":4166,"date":"2012-09-21T17:18:23","date_gmt":"2012-09-21T07:18:23","guid":{"rendered":"http:\/\/sites.thomsonreuters.com.au\/journals\/?p=4166"},"modified":"2012-09-21T17:18:23","modified_gmt":"2012-09-21T07:18:23","slug":"australian-law-journal-update-october-2012","status":"publish","type":"post","link":"https:\/\/sites.thomsonreuters.com.au\/journals\/2012\/09\/21\/australian-law-journal-update-october-2012\/","title":{"rendered":"Australian Law Journal update: October 2012"},"content":{"rendered":"

The latest issue of the\u00c2\u00a0Australian Law Journal<\/em> (Volume\u00c2\u00a086 Part 10) contains the following material:<\/p>\n

Articles<\/h3>\n

GST: How broad is \u00e2\u20ac\u0153supply\u00e2\u20ac\u009d \u00e2\u20ac\u201c A perspective on Qantas<\/em><\/strong><\/a> \u00e2\u20ac\u201c <\/strong>Eugen Trombitas <\/strong><\/p>\n

This article explores the Qantas GST case concerning forfeited deposits and offers a NZ practitioner\u00e2\u20ac\u2122s perspective. The NZ GST legislation defines supply widely to include all forms of supply. New Zealand courts have traditionally given supply a practical meaning. The Australian GST legislation also contains a broad definition of supply which, amongst other matters, refers to the creation of rights and the entry into of an obligation. The GST concepts in both countries\u00e2\u20ac\u2122 GST legislation are broad. The main issue in Qantas is how broad the concept of supply should extend in situations where a customer pays for the ability to travel but does not show up for the flight. Does the definition of supply extend only to those rights which are the main object of the supply contract, or can it include less significant or incidental rights? The concept of supply is ever evolving and Qantas is an illustration of this. In brief, the Administrative Appeals Tribunal was prepared to read the concept of supply with reference to \u00e2\u20ac\u0153rights\u00e2\u20ac\u009d broadly whereas the Federal Court was prepared to interpret the ambit of \u00e2\u20ac\u0153rights\u00e2\u20ac\u009d and therefore \u00e2\u20ac\u0153supply\u00e2\u20ac\u009d in a more narrow way. The main GST first principles issue in Qantas is the \u00e2\u20ac\u0153what\u00e2\u20ac\u009d question: \u00e2\u20ac\u0153What is supplied?\u00e2\u20ac\u009d In the author\u00e2\u20ac\u2122s respectful submission, no supply in the relevant Australian GST sense takes place in situations when the traveller is a \u00e2\u20ac\u0153no show\u00e2\u20ac\u009d. The main reason for this is the benefit bargained for (flight) is absent. The traveller is not paying for any rights separately from the flight, and there seems to be no market or value for such rights in any event. The author\u00e2\u20ac\u2122s submission is that the GST concept of supply can extend to certain rights but only if they are the main or dominant object of the transaction, so that they can exist on a stand alone basis. The Qantas case is without doubt the most significant GST case in Australia since the introduction of GST in 2000, and it will affect many businesses.<\/p>\n

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Mind the gap: The potentially incapable patient who objects to assessment<\/em><\/strong><\/a> \u00e2\u20ac\u201c <\/strong>Kerri Eagle and Christopher Ryan <\/strong><\/p>\n

The issues surrounding the patient who objects to necessary and possibly urgent treatment are contentious and often confusing for health care practitioners, particularly in the hospital setting. This article focuses on the situation in which a patient\u00e2\u20ac\u2122s circumstances would lead a reasonable person to conclude that he or she might lack capacity or be suffering from a mental illness and where treatment refusal would place the patient at risk of serious harm. We consider the current law and some of the underlying legal concepts impacting on the powers and duties of health care practitioners in the management of such objecting patients and conclude that in such circumstances the common law may provide a limited justification to detain the person for further assessment.<\/p>\n

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Guarding against foreign insolvency proceedings: The importance of the centre of main interests in transaction planning<\/em><\/strong><\/a> \u00c2\u00a0\u00e2\u20ac\u201c <\/strong>Stewart Maiden <\/strong><\/p>\n

The concept of the centre of main interests (COMI) is familiar to lawyers who deal with cross-border insolvency. But to those whose work is primarily transactional, the term may still be alien, or at least arcane. That should not be so. To a significant degree, COMI determines the jurisdiction and effect of insolvency proceedings that can be opened in respect of a debtor. It is an important concept that can affect the rights of all of a company\u00e2\u20ac\u2122s stakeholders, including its contractual counterparties. An understanding of the meaning and effect of COMI, the means available to alter a COMI, and the availability and efficacy of means by which a counterparty\u00e2\u20ac\u2122s COMI might be controlled, is essential to those responsible for negotiating and implementing commercial transactions with companies that have the capacity and potential incentive to manipulate their COMIs. This article describes the COMI concept, the reasons why COMIs are manipulated, and the means by which such manipulation can occur. It describes the issues that can arise when steps are taken to manipulate COMI, and some means by which counterparties might mitigate against the risk of a shift in COMI undermining negotiated contractual rights. It then explores some of the complexities that might be raised by those mechanisms, and concludes that while it is uncertain that contractual prohibitions against COMI migration might be directly enforceable, they provide at least a deterrent to debtors and their advisers migrating COMI against the wishes of a counterparty in whose favour they have been drafted.<\/p>\n

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Sections<\/h3>\n

CURRENT ISSUES<\/a> \u00e2\u20ac\u201c Editor: Acting Justice Peter W Young AO <\/strong><\/p>\n