September 18, 2016
The Federal Court per Murphy J in Furnari v Ziegert  FCA 1080 considered the unusual application for injunctive relief arising out of a defamation action. The decision is notable for its consideration of section 7 of the Telecommunications (Interception and Access) Act 1979 (“TIA Act”).
The applicant purchased a pedigree bobtail Doberman pup from the respondents for $3,500 in December 2015. He said that Ms Ziegert represented that the pup could breed, was a natural bobtail, had been checked by a veterinarian, didn’t have Von Willebrand disease and weighed between 9 and 10 kg. Upon taking delivery of the pub he said it had been sterilised, was diseased, weighed only 4.5 kg, was unhealthy and, as if that wasn’t enough, was not a natural bobtail. Not surprisingly the applicant alleged misrepresentations by the respondents  which is the subject of a proceeding in the Victorian Civil and Administrative Tribunal .
The dispute escalated into a defamation proceeding. His Honour summarised the circumstances as: Read the rest of this entry »
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.
The Applicant (“Dallas”) is making application for preliminary discovery from the Respondent (“iiNet”) under Rule 7.22 of the Federal Court Rules. Dallas obtained  and identified the IP addresses of persons it claims have been involved in file sharing of the film, The Dallas Buyers Club . The IP address identifies Read the rest of this entry »
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
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).
The key aims of the project are to:
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 »
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 »
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 »
October 15, 2013
In Fisher v Houston  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.
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  Fisher never Read the rest of this entry »
September 26, 2013
Gordon J in Chan v Four C Realty Pty Ltd (in liq), in the matter of Four C Realty Pty Ltd (in liq)  FCA 928 and then in Chan v Four C Realty Pty Ltd (in liq), in the matter of Four C Realty Pty Ltd (in liq) (No 2)  FCA 959 made orders regarding the enforcement of a contract and then approval for the Liquidator to enter into that contract. The facts are common to both hearings
The Applicant, (“Chan”) applied under sections 471B, 477(2B) and 477(6) of the Corporations Act 2001 (Cth) (the Act) for a series of orders including a declaration that, on 13 August 2013, she and the First Respondent (“Four C Realty”) entered into a binding and enforceable contract for her to purchase its business assets of Four C Realty. The Respondents submitted that no binding contract existed on 13 August 2013 and, alternatively, if a binding contract did exist, then Chan was required to provide security for what has been described as “the indemnity” .
Four C Realty carries on business as an estate agent, conducting Read the rest of this entry »
December 19, 2012
Griffiths J in Platinum Communications Pty Ltd v Computer Networks Pty Limited  FCA 1260 considered an amendment to application to set aside a statutory demand.
The plaintiff, a retailer, and the defendant, a software provider, entered into an agreement whereby the plaintiff would use the defendant’s software under licence and receive related services for payment . When the software was switched on the plaintiff suffered difficulties in many of its stores . The plaintiff claimed Read the rest of this entry »
December 14, 2011
In recent decisions of Sportsco Pty Ltd v Singh Group Pty Ltd (No 2)  VSC 576 (per Ferguson J) and BKW Investments Pty Ltd v Training Connect Limited  FCA 1314 (per Cowdroy J) the courts considered applications to set aside statutory demands. In Sportsco the court, hearing an appeal from an Associate Justice, refused to set aside the application. In BKW the court set aside the application.
Sportsco Pty Ltd v Singh Group Pty Ltd (No 2)
The underlying dispute related to the purchase of a franchise business. Singh, the purchaser, submitted that the statutory demand on Sportsco for $70,500 was a refundable deposit under the franchise agreement. Sportsco, the vendor, applied to set aside the demand claiming there was a genuine dispute concerning the debt and that it had an offsetting claim. Singh alleged there was an agreement that the money was refundable if it was unable to obtain finance for the franchise business. Singh did not obtain finance. While Singh was provided with an an offer to lease premises from which the franchise would operate it was never executed by Singh. Sportsco claimed there was a dispute as to what constituted the agreement and whether the agreement was subject to finance. It also claimed Singh was liable to pay a franchise royalty fee of five years as a consequence of the breach and was liable for damages of approximately $300,000.
Ferguson J referred to TR administration proprietor Ltd V Frank marketing and Sales Brochure Ltd as support forthe proposition that Read the rest of this entry »