Report on Cyber Resilience, highlights the need for proper cyber security, this time from ASIC

April 6, 2015

As if it were necessary to say that data security was a matter of proper corporate governance the Australian Security and Investment Commission (“ASIC”) has made that abundantly clear with its Report 429 Cyber Resilience: Health Check.  As far as ASIC is concerned it has a role to ensure that companies maintain proper cyber security standards. This is a very important development because Read the rest of this entry »

WILSON -v- FERGUSON [2015] WASC 15 (16 January 2015): Breach of confidence, privacy, injunctive relief

January 27, 2015

In Wilson v Ferguson[2015] WASC 15 the West Australian Supreme Court, per Mitchell J, issued an injunction and awarded damages by way of equitable compensation against the Defendant in a claim brought in equity for the misuse of private information.


The plaintiff met the defendant in May 2011. Both were employed at Cloudbreak and worked in the same crew [19].  They began to date as boyfriend and girlfriend in November 2012 and after a few weeks the plaintiff moved into the defendant’s home [20]. During their relationship they would send each other photographs of a sexual nature depicting each other naked or partly naked [22] with the defendant initiating the exchange. The defendant also took explicit photographs of the plaintiff with her knowledge and consent [22]  and she also used her mobile phone to take videos of herself nude and, on at least one occasion, engaging in sexual activity [23].

Some time after the videos were taken, the plaintiff Read the rest of this entry »

Corporations Legislation Amendment (Deregulatory and Other Measures Bill 2014 passes the House of Representatives

November 28, 2014

For those solicitors and barristers practising in Corporations and insolvency law it is worth noting the passage of the Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014 through the House of Representatives yesterday. While anything can happen in the Senate it is hardly a contentious piece of legislation. Its passage is assured.

The Bill, as the summary on the Parliamentary Business page on the bill states, will:

provide that a general meeting of a company must only be arranged if members with at least five per cent of voting shares make the request; reduce the remuneration reporting requirements; clarify the circumstances in which a financial year may be determined to be less than 12 months; and exempt certain companies limited by guarantee from the need to appoint or retain an auditor; and Australian Securities and Investments Commission Act 2001 to: enable members of the Takeovers Panel to perform duties while in Australia and overseas; and provide that the Remuneration Tribunal is responsible for setting the terms and conditions of Chairs and members of the Financial Reporting Council, the Australian Accounting Standards Board and the Auditing and Assurance Standards Board

The effect of the BIll include 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].


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].


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:

50th anniversary of New York Times v Sullivan

March 10, 2014

One of the modern myths of American jurisprudence is the primary the Constitution has always given to the First Amendment.  In that context the media has a significant, almost unassailable, defence when facing a claim of defamation from a public figure. It was not always thus.  In fact pre 1964 US defamation law was not much different to that of its cousins across the lake in the UK.

It was the US Supreme Court decision of New York Times v Sullivan, 50 years ago on 9 March 1964, which elevated the First Amendment protections to its current position of primacy. That position has not been reduced, as some of the decisions of the Warren Court have been (such as the Miranda decision).  If anything it has been bolstered.

The Atlantic covers the story of New York Times v Sullivan in Today Is the 50th Anniversary of the (Re-)Birth of the First Amendment. As usual a thoughtful and engrossing account of how the decision came about.

It provides:

On March 9, 1964, a unanimous Supreme Court reversed a libel verdict against The New York Times in a case brought by Alabama officials who complained about a civil rights advertisement in the paper. The First Amendment, thankfully, hasn’t been the same since.

Attorney General announces Australian Law Reform Commission inquiry to review legislation that unreasonably encroach on traditional rights, freedoms and privileges

December 11, 2013

The Attorney General announced an Australian Law Reform Commission enquiry into traditional rights and freedoms in the context of Commonwealth Legislation that might restrict them.  Given the commentary in the last 18 months this should hardly come as a surprise.

The press release provides:


The Attorney-General, Senator the Hon George Brandis QC, has asked the Australian Law Reform Commission (ALRC) to review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges.

Senator Brandis said Read the rest of this entry »

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:

The High Court to hand down judgment in Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers Appointed) (In Liquidation)

December 2, 2013

The High Court will hand down its decision in Willmott Growers Group Inc v. Willmott Forests Ltd (Receivers and Managers Appointed) (In Liquidation) In its capacity as manager of the unregistered managed investment schemes listed in Schedule 2 and Ors this Wednesday 5 December 2013.

For those, like myself, who practice in the corporations and insolvency area it is a long awaited decision with significant ramifications.

The High Court transcript provides:

MR G.T. BIGMORE, QC: May it please the Court, I appear Read the rest of this entry »

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 »


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 »