A’la Carte Homes Pty Ltd v AAPD CO P/L [2019] VSC 108 (5 March 2019): application to set aside, section 459J Corporations Act

March 13, 2019

In A’la Carte Homes Pty Ltd v AAPD CO P/L [2019] VSC 108 the Supreme Court, per Randall AsJ, set aside a statutory demand. The key issue was the failure of the assignment of a debt being described in the statutory demand or accompanying affidavit.


The application was made under ss 459G, 459H and 459J of the Corporations Act 2001 (Cth). The orders sought were Read the rest of this entry »

More high profile Cyber attacks in Australia

February 27, 2019

Following hot on the heals of the ransomware attach on the Melbourne Heart Group last week the Fairfax Press reports on 3 separate attacks, being the Catholic Archdiocese, TelstraSuper and Toyota with varying degrees of success. 

While the targets are high profile here, which makes for interesting the reality is that ransomware attacks are becoming Read the rest of this entry »

Data breaches and cyber attacks in January 2019 result in 1,769,185,063 records being accessed or compromised…and the deadline to opt out of MyHealth Record expires imminently

January 31, 2019

Itgovernance compiles monthly records of data breaches and works out, often from the victim of the data breaches the number of records leaked. In January 2019 it concluded that 1,769,185,063 records were accessed. That figure is eye wateringly large and even if the Collection#1 breach is not taken into account, which involved 772,904,991 records from historic data breaches it still means just under a billion records were affected.

And into this environment of steadily more effective cyber attacks and generally inadequate protections the Australian My Health Records system will now opt in the records of about 17 million Australians. The legislation has flaws, the system has bigger flaws and the experience overseas is that these centralised digitised health records are failures. Seven Thirty did a very interesting report of the MyHealth Record system.

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Apple’s rush to fix FaceTime Eavesdropping flaw highlights the preference to get the product out over getting right

The biggest difference between consumer goods and apps is that consumer goods generally go through quality control checks, compliance with standards and review by regulators before being sold to the public while apps are focused getting some new or improved feature for whatever system out as quickly as possible without any external review or control. The rationale seems to be that consumer goods that are defective can harm while apps are cool and even when they don’t work what harm do they do.

Apps are often released with design flaws and commonly require patching and all manner of fixes, The recent rush by Apple to fix its Group FaceTime highlights this approach to product development. The defect permitted a person who hadn’t accepted a call through FaceTime nevertheless being heard. The flaw also permitted third party access to iPhone and iPad microcophones and video camera feed.

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Google’s tangles with the regulators continue with French regulator fining it 80 million for breach of GDPR

January 23, 2019

Facebook had a worse 2018 than Google but to a large extent that is merely a matter of degree. Facebook’s travails with its association with Cambridge Analytica and not doing much with the proliferation of false news stories planted by Russia and other actors made 2018 an annus horribilis. Google has had to deal with the phenonama of false news issues as well as years of litigation in the European Union, the UK and Australia.
It might be that Google will have a hotter time of it in 2019 with the French Regulators, the National Data Protection Commission, fining it 50 million euros for not getting valid user consent to gather data for targeted advertising. The regulators claim that Google breached the GDPR, the General Data Protection Regulation.

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US District Court of California rules that police can not force people to unlock a mobile phone with their face or finger

January 17, 2019

Courts generally have found the rapid changes in technology a challenge when applying and sometimes adapting legal principles. That is particularly so regarding privacy protections and when a search warrant is required. Smart phones can, and often, do contain more data than the physical contents of a person’s office, a photo collection and diary. While a search warrant is required to enter and search a house police try and often succeed in forcing a person to open their phone to prying eyes. The principle is the same even if the physical circumstances differ. There have been appalling acts of intrusion with no oversight regarding the actions of Australian Border Force officers.

Police databases and breaches of privacy

January 15, 2019

Police databases are a critically important investigative tool. They enable police to locate suspects, confirm addresses, check car ownership and registration and generally access information about individuals, often provided to the many governmental agencies through compulsion. It is then concerning when police abuse their powers to access data bases. There have been reports of such breaches in Queensland and Victoria.

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Its late but still worth it…yes Virginia there is a Santa Claus

December 26, 2018

It is an annual tradition which strays from legal analysis and commentary on this page; posting the wonderful piece, Yes Virginia there is a Santa Claus to brighten up my invariably grey offerings.  I publish it every year, invariably before Christmas (my bad this year).  I publish it because it is, first, wonderful prose.  Crisp, short sentences that get straight to the theme and avoids mawkish sentimentality.  Second, like all good writing, it speaks a truth.  It proudly and unequivocally rejoices in optimism and speaks out against a cynicism (though the piece describes it as a skepticism) which is an ill that hurts the psyche and harms communities.   Third, it is short.  It says what it wants to say as economically as possible and then stops.  Modern commentators are masters of bloviation and repetition. They should read this prose, as well as offerings of Orwell and Waugh to relearn, or sometimes even learn, how to write.

To write as well as Francis Pharcellus Church, the editorial writer at the New York Sun, would be a wonderful achievement.

It has held up very well over the years.

DEAR EDITOR: I am 8 years old.
Some of my little friends say there is no Santa Claus.
Papa says, ‘If you see it in THE SUN it’s so.’
Please tell me the truth; is there a Santa Claus?


VIRGINIA, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe except they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be men’s or children’s, are little. In this great universe of ours man is a mere insect, an ant, in his intellect, as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, VIRGINIA, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. Alas! how dreary would be the world if there were no Santa Claus. It would be as dreary as if there were no VIRGINIAS. There would be no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.

Not believe in Santa Claus! You might as well not believe in fairies! You might get your papa to hire men to watch in all the chimneys on Christmas Eve to catch Santa Claus, but even if they did not see Santa Claus coming down, what would that prove? Nobody sees Santa Claus, but that is no sign that there is no Santa Claus. The most real things in the world are those that neither children nor men can see. Did you ever see fairies dancing on the lawn? Of course not, but that’s no proof that they are not there. Nobody can conceive or imagine all the wonders there are unseen and unseeable in the world.

You may tear apart the baby’s rattle and see what makes the noise inside, but there is a veil covering the unseen world which not the strongest man, nor even the united strength of all the strongest men that ever lived, could tear apart. Only faith, fancy, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, VIRGINIA, in all this world there is nothing else real and abiding.

No Santa Claus! Thank God! he lives, and he lives forever. A thousand years from now, Virginia, nay, ten times ten thousand years from now, he will continue to make glad the heart of childhood.

For some background the Washington Post’s ‘Is there a Santa Claus?’: How a child’s letter inspired the classic ‘Yes, Virginia’ response.

ACCC releases preliminary report on Google, Facebook and Australian news with significant recommendations on privacy law

December 10, 2018

Nature abhors a vacuum.  That truism tends to apply, eventually, in law as in the natural world.  Gaps in the law that are not filled by regulations are, often with baby steps, attended to by the courts.  Similarly a failure by one regulator to attend to its garden will often find another regulator, with aligned interests, stepping in to carry the weight.  And it is that last circumstance that applies with the ACCC’s preliminary report into Google, Facebook, Australian News and advertising.  Amongst the  11 preliminary recommendations the ACCC proposes at recommendations 8 – 10 increasing privacy protections by amendment to the Privacy Act 1988 to improve notification requirements, strengthening consent requirements, enabling the erasure of personal information, enabling a person to bring an action for breach of the Privacy Act and introducing an action for serious invasion of privacy.  The Information Commissioners’ Office has Read the rest of this entry »

Jolimont Heights Pty Ltd v Ryan [2018] VSC 678 (9 November 2018): section 459 of Corporations Act, application to set aside statutory demand, genuine dispute

November 22, 2018

The Victorian Supreme Court, per Matthews JR, considered an application to set aside a statutory demand in  Jolimont Heights Pty Ltd v Ryan [2018] VSC 678.


Jolimont Heights Pty Ltd (‘JH’), made an application pursuant to s 459G of the Corporations Act 2001 (Cth) (‘Act’) by originating process dated 9 July 2018 to set aside a statutory demand dated 19 June 2018 (‘Statutory Demand’)  [1].

The application was made under s 459H &/or s 459J on the basis:

  • there was a genuine dispute as to the existence of the debt
  • due to some other reason, being that the Statutory Demand was defective  [2].

In support of its application, JH relied on Read the rest of this entry »