Last Friday, the New South Wales Court of Appeal in Roberts v Investwell Pty Ltd (In liq) [2012] NSWCA 134 considered the operation of equitable charges and mortgages in the context of unfair preferences.

FACTS

In June 2001 the Respondent (“Investwell”) purchased land in Marourabra to develop home units using its own funds, monies advanced from prospective purchasers and a loan from a credit union.  The Appellant (“Roberts”) was a director and shareholder of Investwell [3].  In April 2002 it became apparent that there was a shortfall in funding to complete the project. Roberts entered into an agreement whereby he agreed to use his best endeavours to provide further funds and security for the project [4].  On the sale of units the debt with the credit union was discharged leaving a balance of $164,306.83 which was paid to Roberts on the basis that he was a creditor ( not in issue) of the company in that amount.  It was not in issue that when the payment was made Investwell was insolvent  [6].

An order for the winding up of Investwell was made on 12 March 2007.  Investwell and the liquidator brought proceedings against Roberts claiming money he received was a voidable transaction [7].

The relevant provisions of the agreement are set out at  [9], the most relevant of which was Read the rest of this entry »

In today’s Australian the Attorney General, Nicola Roxan, wrote an opinion piece on the amendments to the Privacy Act.

It provides:

These days Read the rest of this entry »

Today the Attorney General has introduced into the Federal Parliament the Privacy Amendment (Enhancing Privacy Protection) Bill 2012. It is the legislative implementation of the Government’s response to the Australian Law Reform Commission’s recommendations to the Privacy Act.

It is a substantial piece of legislation (text is found here on Parliament House web site, running to 236 pages on the Word Format (although it should be added there are many amendments to existing legislation).  The explanatory memorandum is also a significant document which will require careful study.

The Attorney General’s press release provides:

Changes to the Privacy Act that better protect people’s personal information, simplify credit reporting arrangements and give new enforcement powers to the Privacy Commissioner have been introduced into the Australian Parliament today.

Attorney-General Nicola Roxon said the changes represent the most significant developments in privacy reform since Labor introduced the Privacy Act in 1988.

“In an online world, we are sharing our personal information Read the rest of this entry »

In an interesting story on PM last night Heather Brooke was interviewed on PM regarding the hacking scandal in the UK.  Her take was far from sympathetic of what News Limited (as well as other media outlets) did in hacking emails and phones but she did make the point that there is a mass of relevant information which should not be hidden behind secrecy as is the case in the UK.  She is the author of The Revolution will be Digitised: Dispatches from the Information War.

The transcript of the piece is found here.  It provides:

MARK COLVIN: The former editor of Rupert Murdoch’s News of the World Rebekah Brooks was one of six people charged last night in relation to Britain’s Operation Elveden. That’s the operation that’s looking into the bribery and suborning of public servants like police and tax officers. Many more charges are expected over time from Operation Weeting – that’s the one that’s looking into the hacking scandal more generally.

So it might seem a bad time to be arguing for journalists to get more access to public information. But that is exactly the argument of Heather Brooke, author of The Revolution Will be Digitised: Dispatches from the Information War.

British-born but American educated, she thinks that radical transparency is actually a way of preventing press abuse. Heather Brooke’s here for the Sydney Writers’ Festival: I put it to her that some would be sceptical of her argument when sections of the media – in Britain especially – had been shown to be so corrupt.

HEATHER BROOKE: (laughs) Well, I always thought that the press in Britain were so sensationalistic mostly because they couldn’t access information legitimately and so the only way they could get information was they either had to get it through favouritism or a kind of collusion with the powers that be, or illegitimately.

MARK COLVIN: By bribery as we now know.

HEATHER BROOKE: Well, and I always wondered, like how do journalists do their jobs in Britain? Because when I worked as a – I used to work as a crime reporter amongst my different jobs in America – and the way you could cover crime there is it was all through public records. You know you could get all the crime reports, you could get all the jail arrests, you could see all the fire reports, everything – you just went in and you looked at them.

In Britain all that stuff is secret. Even to this day Read the rest of this entry »

The Office of the Australian Information Commissioner has released a guide to handling personal information security breaches. It is found here.

It is a tome but a welcome one.

I have extracted it here (without footnotes and page numbering):

Key terms ALRC means the Australian Law Reform Commission
Agency has the meaning set out in s 6 of the Privacy Act and includes, amongst other things, a Minister, an Australian Government department, an ACT Government department, and a Norfolk Island agency.
Privacy Act means the Privacy Act 1988 (Cth).1 Personal information has the meaning as set out in s 6 of the Privacy Act:
… personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Data breach means Read the rest of this entry »

Yesterday in Zhou v Kousal & Ors [2012] VSC 187 Vickery J considered the equitable principles relating to people with disabilities arising out of the Amadio cases and the responsibilities of the Sheriff in conducting distress sales. It has received some media coverage (here).

FACTS

The facts are quite extraordinary. The Plaintiff, Zhou, the registered proprietor of a property in Braybrook [2],owed the fifth defendant, Mr Wu, a judgement debt of over $100,000. The property was subject to a mortgage in favour of Suncorp and a charge of Council rates. Pursuant to a warrant of seizure and sale the Sheriff undertook two auctions of the property.  Prior to the first auction (see generally [23] – [31])  the Valuer General valued the property at $630,000 following a kerbside valuation and provided a copy of the valuation to the Sheriff.  At the time of this auction Zhou had putative equity in the sum of $171,615.76.  This sum became the Sheriff’s reserve at auction [26]. No bids were received at the first auction and the property was passed in [27]. The Sheriff then applied to the the Supreme Court where, per Muckhtar AsJ , it permitted the Sheriff to sell the property without a reserve [28] , save for the the following orders [29]:

1. Subject to paragraph 3 there be leave to the Sheriff to conduct a sale of the property known as 2 Wirraway Avenue, Braybrook (in exercise of powers under a warrant of seizure and sale filed 9 November 2009) without a reserve price provided that such leave does not thereby derogate from, or relieve the Sheriff of a duty at law to the owner of the land when exercising a power of sale.

…………..

3.There be leave to the owner of the property to notify the Plaintiff of an intention to discharge the order in paragraph 1, and apply to this Court for a discharge of that order. Unless such an application is filed and served within 10 days after the date of the service of this order, the order will take effect upon the Plaintiff’s solicitor giving to the Sheriff evidence of service of this order and the absence of any application to discharge it.

(Emphasis added)

At the time of the second auction Read the rest of this entry »

The Privacy Commissioner gave a speech at Exploring the Changing Privacy Landscape and Impending Regulations iappANZ breakfast event, Sydney last Friday.

It relevantly provides:

It’s great to be here on the last day of Privacy Awareness Week (or PAW), a joint initiative of the Asia Pacific Privacy Authorities forum.

Before I say a few words about the week, I’ll cut to the chase and give you an update on the most recent privacy law reform announcement made by the Attorney-General this week.

Attorney’s announcement

As many here today would know, the Attorney has just Read the rest of this entry »

In Richard Ackland’s Grotesque cases show failure of regulation the theme is the failure of the press to regulate itself.  True.  The Press Council barely functions in giving those wronged a venue to make a complaint.  Whether the recommendations from Finkelstein review provide a cure or are an overreaction creating an intolerable intrusion on freedom of speech is a matter of conjecture. What Ackland does however highlight is the legal protections available to what Ackland described as grotesque intrusions into the privacy of others where there is no discernible public interest.  The first example was a media ambush by Read the rest of this entry »

The Attorney General today announced amendments to the Privacy Act.  The changes are long expected, effectively implementing the accepted recommendations of the Australian Law Reform Commission Report on Privacy.

The announcement provides:

Australia’s privacy laws will be reformed to better protect people’s personal information, simplify credit reporting arrangements and give new enforcement powers to the Privacy Commissioner.

“It is fitting to announce major legislative reforms to the Privacy Act during Privacy Awareness Week,” Attorney-General Nicola Roxon said.

“In an increasingly digital world, both consumers and governments have a role to play to protect privacy. In introducing these changes, the Gillard Government is doing its bit to protect the privacy of Australian families.”

The Attorney explained that key changes to benefit consumers are:

·         clearer and tighter regulation of the use of personal information for direct marketing

·         extending privacy Read the rest of this entry »

The Economist is an excellent current affairs journal.  Brilliant and thoughtful coverage.  Of late it has been covering privacy related issues, whether from a technology related perspective or that of politics or the law.  Or a bit of all three (as is often the case).

Its most recent offering, I spy, with my big eye, is typically thoughtful and insightful review of developments with surveillance technology.

It provides:

WELCOME to China, the land of video surveillance. Guangdong province boasts over 1m cameras. In 2010 the city of Chongqing, governed by the now-disgraced Bo Xilai, ordered 500,000. Other provinces have hundreds of thousands, according to Human Rights in China, an NGO. Video surveillance constitutes over half the country’s huge security industry, and is expected to reach 500 billion yuan ($79 billion) in 2015. China will soon overtake Britain, with around 3m cameras, as the capital of video surveillance.

Yet China is far from alone. In many democracies surveillance cameras are multiplying, too. And face-recognition technology is proving a wonder tool for both governments and marketers.

A jail in Alabama uses it to check those Read the rest of this entry »