X v Twitter Inc [2017] NSWSC 1300 (28 September 2017): equity, injunction regarding tweets, confidential information, Norwich Orders.

October 29, 2017

In X v Twitter Inc [2017] NSWSC 1300 the Supreme Court of New South Wales, per Pembroke J, issued a final injunction regarding a post on Twitter. In doing so the Court considered in detail the scope and operation of injunctions on Twitter, a platform with much of its operations located outside Australia.

FACTS

Between 16 and 19 May the first offending tweets appeared [6] with the author of the tweets used a twitter handle that falsely adopted the name of the plaintiff’s CEO.

On 19 May, the plaintiff’s solicitors wrote to Twitter Inc:

  • drawing attention to the tweets,
  • the offending information contained in them and
  • the user’s impersonation of the plaintiff’s CEO.
  • requesting Twitter Inc to:
    • remove the offending material from the Twitter website;
    • to deactivate the ‘fake’ user’s account;
    • to take all other steps available to it to prevent the user from publishing further confidential information on the Twitter website; and
    • to provide the identity and contact information of the user.

Twitter responded Read the rest of this entry »

Re Convector Grain Pty Ltd (In Liquidation) [2017] VSC 473 (16 August 2017): Corporations Act sections 588F and 1322, power to amend, liquidator’s action, rule 3.02

September 19, 2017

Associate Justice Randall in Re Convector Grain Pty Ltd (In Liquidation) [2017] VSC 473 rejected an application for an extension of time on the service of originating process. In doing so his Honour undertook a very comprehensive review of the interaction of the Civil Procedure Rules with the Corporations Rules and section 1322 of the Corporations Act.

FACTS

The second and third plaintiffs, liquidators of the first plaintiff (‘Convector Grain’), sought relief under s 588FF(1) of the Corporations Act 2001 (Cth) (‘the Act’) that a preference in the sum of $337,928.27 be repaid to Convector Grain [1].

The liquidators were appointed as voluntary administrators in place of those originally appointed on 5 September 2013. By resolution made on 10 February 2014 they became liquidators of Convector Grain [14].

This proceeding is Read the rest of this entry »

Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 (7 July 2017): power to make a substitution order, exercise of discretion, Rule 9.09 of the Civil Procedure Rules

July 23, 2017

The Victorian Court of Appeal in Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 considered the scope and operation of Rules to permit a substitution order being made.

FACTS

The third applicant, Sandra Cerrato, was the executrix of the deceased estate of her father, Rocco Cerrato who . Mr Cerrato died on 14 August 2014 [1]. Prior to and in  2010 Mr Cerrato was a director of the first applicant, Culve Engineering Pty Ltd (‘Culve Engineering’), the second applicant, Tena Denham Nominees Pty Ltd (‘Tena Denham’), and the first respondent, Apollo General Engineering (Aust) Pty Ltd (in liquidation) (‘Apollo’) [2]. Ms Cerrato was joined as a defendant to this proceeding in her capacity as executrix in substitution for her father by an order made by an associate judge on 18 September 2015. She and the other applicants unsuccessfully appealed that decision to a judge in the Trial Division [3].

Prior to 21 April 2010 Apollo carried on Read the rest of this entry »

Golden Taste Investment Pty Ltd v Laurence & Ors [2016] VSC 250 (16 May 2016): Summary judgment application by plaintiff

May 17, 2016

In Golden Taste Investment Pty Ltd v Laurence & Ors [2016] VSC 250 Derham AsJ considered the plaintiff’s application for summary judgment under section 63 of the Civil Procedure Act 2010.

FACTS

The plaintiff is the master franchisee for the Cacao Green and Red Mango franchises for Australia and operates retail stores in Victoria selling frozen yogurt and coffee products [2].

The first defendant (‘Daniel’) was a director and Read the rest of this entry »

Re Manlio (No 2) [2016] VSC 130 (8 April 2016): Overarching obligations, Civil Procedure Act, ss 16, 18, 21 – 23 and 29

April 11, 2016

In Re Manlio (No 2) [2016] VSC 130 Justice MacDonald took quite serious action under powers under the Civil Procedure Act 2010 (the “CPA”) with significant consequences for a counsel involved in the case. This decision relates to the conduct of the legal representatives, not the substantive case itself. That decision was handed down on 21 December 2015 in Re Manlio [2015] VSC 733.

It is a particularly informative decision as to Read the rest of this entry »

Cohen & Ors v Amberley Corporation Australia Pty Ltd [2016] VSC 140 (8 April 2016): trusts, discovery relating to administration of a trust, adequacy of pleadings

In Cohen & Ors v Amberley Corporation Australia Pty Ltd [2016] VSC 140 Derham AsJ considered an application for discovery in relation to the administration by a trustee of a discretionary trust. What started out as a consideration of the plaintiff’s application concluded with part of the statement of claim being struck out. It is a very useful decision in the practical side of pleading breach of trust, which can be quite complicated.

FACTS

The plaintiffs are the children of Harold Campbell-Pretty (‘Harold’) and Kerry Ainley Watkins (‘Kerry’). After 2 divorces he ultimately  married Krystyna Campbell-Pretty (‘Krystyna’) [3].  On 27 March 1975, the Campbell-Pretty Family Trust was established by a deed of settlement (‘Trust’ or ‘Trust Deed’). Under its terms Harold was specified as the Appointor and each of the plaintiffs were specified as Primary Beneficiaries [4].  

There were two variations to the Trust Deed:

  • on 29 December 1987 the defendant was appointed Trustee in place of the previous Trustee. From about December 1986, Krystyna and Harold were the directors of the defendant. On 29 December 1987, Krystyna was appointed as an additional member of the class of General Beneficiaries under the Trust [5];
  • on  8 July 2005, the defendant as Trustee of the Trust purported to exercise a power given by clause 20 of the Trust Deed declaring that the plaintiffs were ‘deleted’ as Primary Beneficiaries under the Trust. Harold, as Appointor, consented to the variation [6].

Harold died on 25 May 2014.  Krystyna was his executrix.  The plaintiffs received nothing.

Breach of trust claim

The plaintiffs pleaded Read the rest of this entry »

B J Bearings Pty Ltd v Whitehead [2016] VSC 44 (11 February 2016): preliminary discovery, Rules 32.05

February 18, 2016

In B J Bearings Pty Ltd v Whitehead [2016] VSC 44 Hargrave J considered an application for preliminary discovery and set out the applicable principles.  It is a useful 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 »

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 »