The Honourable Geoffrey Nettle appointed to the High Court today

December 4, 2014

The Attorney General has announced the welcome appointment of Justice Nettle to the High Court  today.

The release provides Read the rest of this entry »

Dallas Buyers Club, LLC v iiNet Limited (No 1) [2014] FCA 1232: Non parties seeking access to restricted documents on the court file & privacy

November 21, 2014

The Federal Court, per Perram J, recently considered an application by non parties to affidavit material filed with the court in Dallas Buyers Club, LLC v iiNet Limited (No 1).  It is a useful, and well written, exposition on the principles of open justice and, interestingly, the competing issues in non parties seeking access to affidavit material.   His Honour specifically foreshadowed that there will need to be consideration of the Australian Privacy Principles (the APPs) as privacy concerns have been raised by the Respondent.

FACTS

The Applicant (“Dallas”) is making application for preliminary discovery from the Respondent (“iiNet”) under Rule 7.22 of the Federal Court Rules.  Dallas obtained [4] and identified the IP addresses of persons it claims have been involved in file sharing of the film, The Dallas Buyers Club [3].  The IP address identifies Read the rest of this entry »

Rescom Asia Pacific Pty Ltd v Reapfield Property Consultants Pty Ltd [2014] VSCA 92 & Foxhat Employment Service Pty Ltd v Deputy Commissioner of Taxation [2014] VSC 218: application to set aside statutory demands

July 6, 2014

In Rescom Asia Pacific Pty Ltd v Reapfield Property Consultants Pty Ltd and Foxhat Employment Service Pty Ltd v Deputy Commissioner of Taxation the Victorian Court of Appeal and the Supreme Court considered applications to set aside statutory demands in very different circumstances.

Rescom Asia Pacific Pty Ltd v Reapfield Property Consultants Pty Ltd

The applicant sought leave to appeal a decision of Randall AsJ dismissing an application to set aside a statutory demand.  The grounds of appeal included a failure to find there was a genuine dispute or offsetting claim [2].

FACTS

The statutory demand relates to a claim for commission on the sale of various apartments in Carlton. The vendor retained Rescom as the underwriter for the sale of the apartments.  It was a term of the retainer that in the event that the total sale price of the apartments did not reach a pre-determined level, Rescom would pay the difference to the vendor [6]. If the total proceeds exceeded the predetermined level the vendor would pay the excess amount to Rescom. If the total proceeds exceeded a pre-determined level by a certain amount, then the excess would be shared between Rescom and the vendor [7].

Rescom engaged Reapfield as its sole marketing agent in Singapore on terms which included a 5% commission on the transacted price of all sales within Singapore[8].  The Agreement referred to a price schedule in an Annexure A of the agreement.

There was, and is, a dispute between the parties as to contents of Annexure A to the agreement with there being two schedules, one referring to lower prices than the other. That said Randall AsJ found he did not need to determine which schedule was incorporated into the agreement for the purpose of determining the application. Focusing on the terms of the marketing agreement and on contemporaneous conduct [9] he found that the agreement did not impose an obligation on Reapfield other than to use all due care, skill and diligence.  There were no consequences for failure by Reapfield to achieve a particular price [10].

Regarding the contemporaneous conduct the Randall AsJ found [16]:

  • the vendor accepted offers made by purchasers procured by Reapfield and booking forms that set out the purchase price and were signed on behalf of Rescom [over the caption] “accepted by underwriter”
  • email correspondence to the effect that Rescom “appreciated the good job” and that Rescom was in the “midst of arranging payment as promised”.
  • text messages passing between Rescom and Reapfield accepting the invoice for the commissions claimed without complaint and advising that payment would be made when Rescom received draw downs “from equity partners.”
  • there were over 20 text messages where Reapfield sought payment and Rescom repeatedly promised to make payment.
  • No complaint was made about the invoice that set out the prices obtained for each of the apartments or the liability to pay the commission [17].

DECISION

The Court referred to and liberally quoted from the latest Court of Appeal authority on statutory demands, Troutfarms Australia Pty Ltd v Perpetual Nominees Ltd, handed down last year [3].  The key principles can be reduced to the following:

Federal Court makes announcement about Electronic Court File project

December 9, 2013

Today the Federal Court announced the transition to complete electronic filing and storage by the end of 2014.  Many in the profession have known for some time of the Federal Court’s preference for moving in this direction.

Details of the process are as follows (and found here):

Federal Court of Australia’s Electronic Court File

Project overview

The Federal Court of Australia is an early adopter of the use of information technology to increase the effectiveness, efficiency and accessibility of the Court. Technology has, and will continue to change court operations, similar to the ways in which technology has affected business practices across the globe.

The Court is currently undertaking an important change in its internal operations – it will transition from paper based information management to digital files. This transition is called the Electronic Court File (ECF) project.

This change will primarily affect the internal functions of the Court but will also provide opportunities for Court users to expand how they interact with the Court.

The ECF project is a further step towards the creation of a single web-based interface, which will effectively integrate the electronic provision and management of information and services. We use the term my files to describe the service. Registered court users will be able to see immediately a list of their files or more precisely, the information or documents they are authorised to access on the Court’s files. They will be able to undertake electronic interaction with the Court and other court users, in respect of my files (ie. your files).

Project aims

The key aims of the project are to:

Federal Court Amendment (Electronic Court File Measures No. 1) Rules 2013 comes into effect tomorrow, 26 November 2013

November 25, 2013

The Federal Court Rules 2011 have been amended to support the first stage of the implementation in the Federal Court of an electronic court file.

The amendments will make relatively minor changes to such things as the use of stamps and seals; preparation and lodging of documents; redacting, amending and removing documents; and producing documents for inspection or in compliance with a subpoena.

According to the notification from the Fedeal Court the the Amendment Rules will:

1. amend subrules 2.01(2) and (3) and paragraph 39.35(1)(b) and Schedule 1 to clarify that either the seal of the Court (for convenient processing electronically) or the stamp of a District Registry (for convenient processing in paper) can be used;

2. insert new rules Read the rest of this entry »

Federal Court amends Practice Note Corp 2 – CROSS-BORDER INSOLVENCY COOPERATION WITH FOREIGN COURTS OR FOREIGN REPRESENTATIVES

This practice note deals with cross-border insolvency co-operation with foreign courts. It is found here.

The amendment is the inserttion of paragraph 6 Read the rest of this entry »

New Practice note from the Federal Court on the content of Appeal Books and preparation for hearing.

The Federal Court has issued a new Practice Note APP 2, dealing with the Court’s requirements for Appeal Books and preparation for hearing. It is found here.

The amendments include Read the rest of this entry »

Wolfe v Permanent Custodians [2013] VSCA 331 (22 November 2013): CONSUMER CREDIT, unjust terms, unconscionability & duty to cooperate

November 24, 2013

The Court of Appeal in Wolfe v Permanent Custodians [2013] VSCA 331  considered issues of duty to co operate in the context of a contractual relationship and unconscionability by a creditor in recovery proceedings against a defaulting mortgagor.

FACTS

Permanent Custodians Ltd (“Permanent”) holds a first mortgage over a property in Pascoe Vale which secured a loan to Mr Wolfe and his former partner [1]. In 2008 there was default on the loan. In August 2009 Permanent obtained default judgment against Wolfe, a default judgment for the loan and for possession of the Property against his former partner and issued a warrant of possession. Eviction by the Sheriff was scheduled for the week commencing 4 December 2009 [4]. Wolfe  entered into an arrangement, on terms set out in a letter from Permanent’s solicitors on 1 December 2009 (the “1 December 2009 arrangement”)[5].

Those terms were, at [6],relevantly:

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 (6 November 2013): Practice and procedure, Discovery, documents subject to client legal privilege mistakenly listed as non-privileged in appellants’ Lists of Documents, privileged documents inadvertently disclosed to respondents’ solicitors

November 21, 2013

In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 the High Court, in a unanimous decision, considered a dispute that arose in the discovery process, namely whether the inadvertent disclosure of documents for which privilege should have been claimed gave rise to a waiver.  The court however went much further and set its stamp on how it regarded such disputes should be handled.

FACTS

The appellants were represented by Norton Rose Australia (Norton Rose).  The respondents were represented by Marque Lawyers (Marque). On 22 July 2011 parties to litigation Read the rest of this entry »

Fisher v Houston [2013] FCA 1026 (11 October 2013): Privacy Act 1988, preliminary discovery, costs

October 15, 2013

In Fisher v Houston [2013] FCA 1026 Tracey J made orders regarding the award of costs associated with an application for preliminary discovery.  The context of the preliminary discovery application relating to a potential claim under the Privacy Act 1988. I was junior counsel for the Applicant in this proceeding.

FACTS

The prospective applicant (“Fisher”) has a mobile telephone but only provided the number to a limited group of persons. In March 2012 he received a call on his mobile telephone from a journalist, the prospective respondent (“Houston”).  Houston asked Fisher for a comment about a legal proceeding in which a business associate of Fisher’s was involved [1] Fisher never Read the rest of this entry »