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 »

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 »

Kakavas v Crown Melbourne Limited [2013] HCA 25 (5 June 2013): High court reviews the principle of unconscionable conduct, the operation of equity and the nature of special disadvantage

June 13, 2013

 In a unanimous decision the High Court in Kakavas v Crown Melbourne Limited [2013] HCA 25 rejected an appeal by Harry Kakavas against Crown Casino in equity.  The court undertook a detailed analysis of the principles of unconscionable conduct and special disadvantage.

FACTS

Kakavas submitted, at [6], that the principles of Amadio applied, particularly that “..whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created”. He also submitted that Crown had constructive notice of his special disadvantage [150].

Crown submitted:

  1. that Kakavas’ abnormally strong urge to gamble was not a compulsion which deprived him of the ability to make a worthwhile choice whether or not to gamble, or to continue to gamble, with Crown or anyone else [11];
  2. Crown’s employees did not knowingly exploit the appellant’s abnormal interest in gambling. Kakavas presented as a successful businessman able to afford to indulge himself in the high stakes gambling in which he chose to engage [11]
  3. Kakavas suffered no compensable loss [12]

DECISION

 The court undertook a detailed overview of the principle of equitable fraud.  When the considering the principles of equity enunciated in Amadio their Honours stated:

“..the task of the courts is to determine whether the whole course of dealing between the parties has been such that, as between the parties, responsibility for the plaintiff’s loss should be ascribed to unconscientious conduct on the part of the defendant.”

When seeking equitable intervention their Honours stated the following:

  1. the principle which the appellant invokes Read the rest of this entry »

Speech by UK Supreme Court Justice on privacy in the 21st Century

December 11, 2012

Lord Neuberger gave a speech to the UK Association of Jewish Lawyers on 28 November titled Privacy in the 21st Century.

It is an excellent consideration of the history of privacy protections in the UK and a thoughtful analysis of future challenges.  It should be required reading for those with an interest in privacy and privacy related jurisprudence.

It provides, absent citations:

(1) Introduction1
1. Good evening. It is a pleasure to have been asked to give tonight’s lecture. Privacy is a subject which seems to be forever topical. It excites (in both senses of the word) public discussion, while demanding considered reflection. And it raises many difficult and, often, controversial questions. Is privacy a value which society should protect? If so, to what extent? Is protection of privacy a fetter on freedom of expression? If so, can and should a balance be struck between them? And if so, what type of balance? Should, for instance, freedom of expression always trump privacy, as it is sometimes suggested is the position in the United States? A suggestion, I may add, which ignores a variety of US statutes and constitutional provisions which protect certain aspects of privacy to varying degrees, subject to the First Amendment protection of freedom of speech and expression.
2. And is privacy a value which is, on deeper analysis, not inimical to or a fetter on freedom of expression: is it actually a necessary and vital aspect of freedom of expression? Or should we maintain the straightforward and generally held view that the two are wholly distinct, indeed often in conflict?
3. These are all difficult questions. They go to the heart of issues concerning Read the rest of this entry »