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 »

Bensons Property Group Pty Ltd v Commonwealth Bank of Australia Ltd & Anor [2018] VSC 666 (9 November 2018): preliminary discovery, Harman obligations

December 9, 2018

The Supreme Court in Bensons Property Group Pty Ltd v Commonwealth Bank of Australia Ltd & Anor [2018] VSC 666 granted an order for preliminary discovery.  In considering the application the court considered the issues relating to Harman undertakings.


Bensons,  a property developer,  engaged the Marcus Group Pty Ltd  “Marcus” as its builder on projects. On 19 April 2018, Bensons received an email, purportedly from the Marcus Group, directing that a payment due to it be made to a Commonwealth Bank of Australia account  (the CBA Account) [5]. On 19 April 2018, Bensons electronically transferred $917,900 to the Relevant CBA Account. As this was not an account maintained by Marcus Bensons was defrauded by person(s) unknown [6].

Bensons reported the fraud to Victoria Police and Read the rest of this entry »

Marriott suffers data breach involving personal information of 500 million guests

December 2, 2018

The size of data breaches are moving to levels where the numbers begin to be detached from easy comprehension.  According to IT Governance as at 27 November 2018 the total of known leaked records in November was 251,286,753.  That however was prior to Read the rest of this entry »

Print Mail Logistics Limited v Warratah Investments Pty Ltd [2018] FCA 1618 (29 October 2018): section 459E, H and J of the Corporations Act, application to set aside a statutory demand

December 1, 2018

The Federal Court, per Markovic, set aside a statutory demand in Print Mail Logistics Limited v Warratah Investments Pty Ltd [2018] FCA 1618.  It was a very hard fought fight which involved a complex factual situation and difficult legal issues.  Unusually it involved a cross examination of a deponent.  The demand was set aside because of a technical error by the respondent.


The parties  were:

  • Nigel Benjamin Elias (“Elias”),  director of Print Mail and the sole director of Print Mail Logistics (International) Pty Ltd (PMLI).
  • Jennifer Joan Hutson (“Hutson”),  director and secretary of Warratah and sole director of Wellington Capital Pty Ltd (now called Southland Stokers Pty Ltd) (Wellington);
  • Mark John Halle (“Halle”), director of Warratah and the chief financial officer of Wellington; and
  • Wellcap Holdings Pty Ltd the ultimate holding company of Warratah and  sole shareholder of Wellington [4].

On 5 February 2013 PMLI and MMB entered into a commercial facilities agreement with  MMB makiung a facility of $312,000 available to PMLI to assist with the purchase of a property in 11 McRorie Court, Cambridge, Tasmania (Property) [5].  On 28 October 2013  PMLI and MMB entered into a commercial facilities agreement pursuant to Read the rest of this entry »

A timely article on political parties and the Privacy Act

November 27, 2018

The ABC in Political parties may know a lot more about you than you think has undertaken a neat, informative though hardly ground breaking piece on how political parties hoover up masses of personal information without any need to comply with the Privacy Act 1988.  Because they are exempt from the operations of the Privacy Act.  It is a topic that has been covered from time to time in the past, recently in Australia should strengthen its privacy laws and remove exemptions for politicians.

This exemption has been a longstanding flaw, among the many other flaws, of the Act.  It has been a flaw that both major political parties have 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 »

Guy Fawkes Day – Remember remember the fifth of November

November 5, 2018

The whole Guy Fawkes story and its consequences is so compelling that it often inspires me to break policy and write on a non legal subject.

For starters there is the wonderful ditty/ poem or piece of doggerel:

Remember, remember!
The fifth of November,
The Gunpowder treason and plot;
I know of no reason
Why the Gunpowder treason
Should ever be forgot!
Guy Fawkes and his companions
Did the scheme contrive,
To blow the King and Parliament
All up alive.
Threescore barrels, laid below,
To prove old England’s overthrow.
But, by God’s providence, him they catch,
With a dark lantern, lighting a match!
A stick and a stake
For King James’s sake!
If you won’t give me one,
I’ll take two,
The better for me,
And the worse for you.
A rope, a rope, to hang the Pope,
A penn’orth of cheese to choke him,
A pint of beer to wash it down,
And a jolly good fire to burn him.
Holloa, boys! holloa, boys! make the bells ring!
Holloa, boys! holloa boys! God save the King!
Hip, hip, hooor-r-r-ray! Read the rest of this entry »

Australian Defence Contractor Austel suffers data breach

November 3, 2018

Austel, one of Australia’s main defence contractors has suffered a data breach.  It notified the Australian Securities Exchange last Thursday night.  The notice to the ASX is found here.  Unlike US notices it’s focus is on being vague on critical details and expansive on the impact, it says not much, and what it is doing in response, it says plenty.

The Notice states:

Austal Limited (ASX:ASB) advised that its Australian business has detected and responded to a breach of the company’s data management systems by an unknown offender.
Austal referred this matter to the Australian Cyber Security Centre (ACSC) and the Australian Federal Police who have provided ongoing assistance and advice. Austal Australia’s Information Systems and Technology (IS&T) team have restored the security and integrity of the company’s data systems and have implemented, and continues to implement, additional security measures to prevent further breaches. A small number of stakeholders who were potentially directly impacted have been informed.
The data breach has had no impact on Austal’s ongoing operations. Austal’s business in the United States is unaffected by this issue as the computer systems are not linked.
No company wants to lose control of its information, but there is no evidence to date to suggest that information affecting national security nor the commercial operations of the company have been stolen: ship design drawings which may be distributed to customers and fabrication sub – contractors or suppliers are neither sensitive nor classified.
Some staff email addresses and mobile phone numbers were accessed and these staff members have been informed accordingly. The Office of the Australian Information Co
mmissioner will be involved as required.
Following the breach the offender purported to offer certain materials for sale on the internet and engage in extortion. The company has not and will not respond to the extortion attempts.
Austal cannot provide any additional information at this time

The statement, anodyne as any I have seen, confirms that the hacker attempted an extortion attempt.  What the report does not state but the Australian does is that the attack took place two weeks ago and involved the loss of 100 gigabytes of data. There is another report that the material was accessed over a month ago.  The Australian’s reports that Read the rest of this entry »

Re Ad Astra Institute Pty Ltd [2018] VSC 563 (25 September 2018) and : Section 359G Corporations Act, application to set aside statutory demand, 21 day affidavit required to ‘raise’ or ‘identify’ a particular ground expressly, genuine dispute, offsetting claim.

The Victorian Supreme Court in Re Ad Astra Institute Pty Ltd [2018] VSC 563 considered an application to set aside a statutory demand.  In dismissing the application the court undertook a useful analysis of both genuine dispute but more particularly the approach to be taken in preparing an offsetting claim.


The defendant was engaged to develop QMS and other documentation (‘Training Documentation’) to meet the requirements of being a Registered Training Organisation (‘RTO’) and on the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’) [4].

In July of 2016, the plaintiff offered the defendant a contract for services, [4], with consultancy fees at:

    • an hourly rate (minimum of 3 hours) $575 per hour + GST
  • daily rate (maximum of 8 hours) $2,800 per day + GST [5].

The note at the bottom of the consultancy fees provides:

Please note:The terms of all invoices are 14 days and all invoices will be charged according to the hourly rate plus GST (Goods and Services Tax). These rates are reviewed from time to time and may change. We will tell you of any changes as soon as practicable after a change occurs [6].

with a further stipulation :

As negotiated:It is agreed that IRM [the Defendant] will cap its fees payable for initial registration and CRICOS registration at AUD$100,000 inclusive of required ASQA fees.

The Agreement was set out to have been made on 25 July 2016 and executed by James Sackl on behalf of the plaintiff. At all material times Read the rest of this entry »

Report of drone used to invade privacy coincides with New Zealand Government review of regulation of drones

October 31, 2018

There is no dilema or delay in the technical development of drones, the common term for remotely piloted aircraft systems or unmanned aerial vehicles (UAVs).  There is however huge delays and significant dilemas by legislatures on how to respond to the legal challenges with the misuse of drones and what regulation is required.  In October 2016 the Senate’s Rural and Regional Affairs Transport References Committee conducted an enquiry on Regulatory requirements that impact on the safe use of Remotely Piloted Aircraft Systems, Unmanned Aerial Systems and associated systems.  The Committee tabled its report on 31 July 2018 with almost no fanfare.  And deservedly so.  It is a narrowly focused, quite technical and limited report focused on the use of drones and rather than the broader issues which affect not only the use of the drones but the impact they have on others.

In New Zealand there is a report of a drone being used to interfere with a persons’ privacy and as a means to scope out a home before burglaring it.  Coincidentally the New Zealand government is Read the rest of this entry »