Dealing with Daily Weakly

The High Court will shortly decide on how long a client has before they can no longer sue their lawyer for an earlier stuff up. 

In October 2024, the Federal Circuit and Family Court of Australia handed down a decision that every contracts lawyer — including those in the IP and tech law trenches — should pay attention to. Daily & Daily (No 4) [2024] FedCFamC1A 185 isn’t just a family law dispute — it’s a cautionary tale about negligence, professional responsibility, and the limits of liability when legal drafting goes sideways.

The facts were messy, as most long-running family property cases are. But at the heart of it lay this: a Binding Financial Agreement (BFA) that was meant to protect a husband’s property interests in case of divorce turned out to be void — thanks in part to inadequate legal advice when the agreement was first inked. The husband sued his former lawyers. They argued the claim was out of time and that their advice wasn’t negligent. The Court disagreed on both counts, upholding the finding of negligence and ruling that the claim was not out of time (although the damages award was to be reassessed at a new hearing).

Most significantly, the High Court has now granted special leave to appeal that part of the decision — signalling this issue is far from settled.

The current judgment underscores the point that lawyers — especially those drafting complex commercial or technology agreements — cannot rely on generic advice or boilerplate disclaimers.  In Daily & Daily, the solicitor didn’t draft the agreement originally, but did advise on and amend it.  The Court found that the advice given was cursory, failing to warn of the risk the agreement might be void for uncertainty or vulnerable under s 90K of the Family Law Act 1975 if the couple later had children.

Think of how many SaaS agreements, licensing terms, or IP assignments rely on template structures — or gloss over jurisdiction-specific requirements for enforceability. This case is a reminder of at least two things: First, when a client pays for certainty, delivering ambiguity is actionable. Second, but just as importantly, if you are asked to advise on and touch up an agreement you didn’t draft, you are taking responsibility for all of it, not just the bits you tweak.

One of the most interesting parts of the appeal will be about timing. The lawyers tried to argue that any negligence claim was statute-barred — that is, out of time. But the Court said no: in cases involving contingency-based loss (like a BFA only becoming relevant on separation), damage doesn’t “crystallise” until the adverse event happens. That’s a powerful precedent for all kinds of delayed-impact contract failures — including option agreements, royalties, or licensing deals that collapse years later.

The appeal will now head to the High Court, which could reshape how limitation periods apply to negligent drafting in complex personal and commercial transactions.

Specifically, when does damage occur after negligent drafting? At the time the agreement is entered into, or at the time there are financial consequences down the track?

The High Court’s answer may redefine professional liability timelines — and not just in family law.

Fortescue vs Element Zero: When Iron Meets IP

In a drama more suited to Silicon Valley than the Pilbara, Fortescue Metals Group is facing off in court against Element Zero, a green-tech startup founded by two of its former senior executives.

The heart of the dispute? Allegations that the ex-Fortescue pair took proprietary technology and confidential know-how with them when they walked out the door — and used it to launch a direct competitor in the decarbonised iron ore space. Fortescue’s claim includes serious accusations of IP theft, misuse of confidential information, and a familiar subplot of boardroom ambition turned courtroom battle.

So far, so standard — but here’s where it gets interesting. Fortescue has been accused of using its size and resources to play the long game, including deploying delay tactics and procedural complexity to push the trial all the way to May 2026. Element Zero has cried foul, claiming it’s a classic case of litigation-as-strategy: slow down the underdog until their innovation pipeline or funding dries up. Whether or not that narrative sticks, it’s a reminder that in IP litigation — particularly in high-stakes tech or science-based fields — process can become a weapon as potent as any cause of action.

The technology at the centre of the case involves so-called “Electra” chemical processes that promise zero-emission iron production — IP that, if proven proprietary to Fortescue, could be worth billions. But this raises a fundamental legal question: what is proprietary in a technical process? And when can it be said to be owned by a company rather than the individuals who helped develop it — especially if no patent has (yet) been granted, and the invention is shrouded in secrecy? In Australia, trade secret protection requires not just that the information be confidential, but that reasonable steps were taken to maintain that confidentiality — and that’s often where cases fall down.

From a broader perspective, this case underscores a key lesson for companies working at the bleeding edge of tech or resource innovation: if your value is in your know-how, then lock it down. IP ownership clauses in employment contracts, internal controls on access, documentation of invention history, and even early patent filing (or defensive publication) can all tip the scales in your favour later. And for founders or executives planning to launch a spinoff? It pays to get early legal advice — because “we came up with it ourselves” won’t hold water if the tech smells a lot like your old job.

Whether this one ends with a licensing deal, an injunction, or just a big legal bill and a few scorched reputations, it’s a timely reminder that the path from lab bench to market often runs straight through the courtroom. In the IP space, fortune favours not just the bold — but the prepared.