In Investigation Report 2773 ACMA considered a complaint relating to a breach of Clauses 2.3(d) and 5.5 of the Commercial Radio Australia Codes of Practice 2011.

FACTS

During the Ray Hadley Morning Show  on 25 November 2011 Ray Hadley announced the complainant’s name and address on air.

ACMA investigated the complaint under Sections 148 and 149 of the Broadcasting Services Act 1992 and the licensee’s compliance with clauses 2.3(d) [privacy] Read the rest of this entry »

Yesterday’s Law Report on Radio National covered the mooted statutory right of privacy.  It is found here.

The transcript of the program, with my annotations, provides:

In ACN 079 638 501 Pty Ltd (in liq) (recs & mgrs apptd) v Pattison & Anor [2012] VSC 445 Justice Ferguson considered whether work in progress was covered by a charge given by company.

FACTS

Mr Paul Pattison (“Pattison”),  a qualified chartered accountant and registered liquidator and trustee in bankruptcy established and was sole director and secretary of the Plaintiff. Until April 2010 he conducted his insolvency practice through the Plaintiff [1]. In November 2006 the Plaintiff charged its assets in favour of bank of Western Australia Ltd (“BankWest”). In 2010 BankWest appointed receivers and managers over the assets of the Plaintiff under the charge [2] & [10] – [11].

The issue in the proceeding was whether the work in progress recorded in the books of the Plaintiff, being time spent by Pattison working on insolvency administrations was an asset caught by the charge [3]. Pattison contended that his appointments were personal to him and the Plaintiff provided services to him in connection with those appointments [4]. The receivers contended that all work performed by him pursuant to his appointments as liquidator, deed administrator or trustee in bankruptcy was performed as an employee of the Plaintiff and his work in progress was an asset of the Plaintiff.

DECISION

Her Honour found:

1. the Plaintiff would raise invoices  for fees and disbursements payable [7]. The time spent by Pattison was included in the Plaintiff”s invoice on a separate charge made by him personally;
2. cheques would be paid to Pattison and he would endorse them as payable to the Plaintiff. Payment was made into the company’s bank account [7]; and
3. the Plaintiff’s payslips evidence fortnightly wages payable to Pattison as an employee although this was disputed in part [8].

Ferguson J framed the question as, at [15]:

..the real question is as to the relationship between Mr Pattison and the Company and the effect (if any) that that had on ownership of the work in progress.

The fact that Pattison had certain obligations arising Read the rest of this entry »

In New Twist in Greek Tax Saga the Wall Street Journal reports on a disclosure by a journalist, Costas Vaxevanis, of private financial details of several thousand Greeks with Swiss Bank Accounts and his subsequent arrest.  The story provides:

 ATHENS—Greek authorities arrested a celebrated investigative journalist Sunday after his magazine disclosed the names of several thousand Greeks with Swiss bank accounts, including members of the country’s political and business elite, a development that comes as an embarrassment to the government and will put more pressure on it to crack down on the country’s chronic tax evasion.

The arrest of the publisher of Hot Doc magazine is the latest bizarre twist to a weekslong saga that has gripped the country and concerns over the attempts of the Greek government to track down alleged tax evaders from a list of names French authorities provided to them.

The publisher, Costas Vaxevanis, was later released Read the rest of this entry »

Today’s Sunday Age reports, in Half have HIV status disclosed without giving OK, over half of people with HIV had their status declared without their permission.  The report provides:

JUST over half of people with HIV have had their health status disclosed without their permission, Read the rest of this entry »

Zdnet reports that Stoke-Trent-City Council has been fined heavily for releasing sensitive data in breach of the data protection legislation.  It is found here. The report provides:

ACMA ha obtained enforceable undertaking from Tiger Airways and a fine of $110,000 for breaches of the Spam Act.  The press release provides:

The Australian Communications and Media Authority has accepted an enforceable undertaking from Tiger Airways Holdings Limited—and payment of a $110,000 infringement notice by its subsidiary Tiger Airways Australia Pty Limited—for failing to unsubscribe customers from marketing emails.

An ACMA investigation found this was despite their customers’ repeated requests to be removed from mailing lists—as well as several warnings from the ACMA.

‘This is one of a number of investigations in which the ACMA has found businesses have allowed faulty unsubscribe facilities to continue, in spite of repeated customer complaints,’ said ACMA Deputy Chairman Richard Bean.

‘This action is another reminder to businesses that that they should pay attention to what their customers are saying, test their email unsubscribe facilities regularly, and not Read the rest of this entry »

The Court of Appeal in Lederberger & Anor v Mediterranean Olives Financial Pty Ltd & Ors [2012] VSCA 262 considered issues of partnership, a solicitors duty to a client and the identity of parties to a contract.

FACTS

Hirsch Lederburger established Loaders Traders Pty Ltd  in the late 1950s.  In his will he left the third of his business to each of his son Israel,  Samuel and on trust in the estate with income to go to his wife, Mrs Lederberger. In 2000 Mrs Lederberger retained the third party to advise an act for her in proving the will of her late husband and obtain a grant of probate. In 2003 Samuel bought Israel’s share of the business. The will was proven on September 2003 and Mrs Lederberger became executrix  and sole trustee of her husband’s estate [4]. To minimise exposure to the debts of the business a partnership was established in 2003, Loaders Manufacturers and Traders (“Loaders Manufacturers”). Loaders Traders was a bare trustee for the partners of which Mrs Lederberger was one. The primary business activity was importing wholesaling and selling of camping goods[5]. Through Samuel, Loaders Manufacturers entered into a tax effective scheme, the Blue Gum scheme, [9] and the Mediterranean Olives Project [10]. Partners claimed and received reductions in the taxable income in 2006 and 2007 [11].

DECISION

The Honours identified the issues, at [3], as

1. with whom did the respondents contract
2. could the respondents rely upon post-contractual conduct to determine the identity of the contracting parties?
3. if the members of the partnership were the contracting parties, did Samuel Lederberger have actual or ostensible authority to enter into the contracts?
4. whether the  contracts involved carrying on in the usual way business of the kind carried on by the partnership?
5. whether the partners had provided authority to enter into the contracts pursuant to powers of attorney?
6. if Samuel Lederberger had acted without authority, had Mrs Lederberger ratified or impliedly sanctioned the investments?
7. was the trial judge able to make adverse findings of fact  which were contrary to the facts set out in a witness statement which had  not been the subject of cross examination?
8. was the third party obliged to advise the widow as to the risks associated with becoming the trustee of her husband’s estate?
9.  if the third party was breached its duty, was it causative of her liability to the respondents?

Identity & post contractual conduct

The Appellants contended that the trial judge erred in holding that the partners or Mrs Lederberger had entered into the contracts.  While their Honours rejected this ground they undertook a review of the law as to the methodology in determining the identity of a party to a contract and the admissibility of evidence, stating:

1. Identification of the parties to a contract must be in accordance with the objective theory of contract;  the conclusion of a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances; [19]
2. there needs Read the rest of this entry »

The Phillipines Data Privacy Act takes effect today.  It was signed into law on 24 August (see articles here and here).

The Act’s homepage is found here.

A useful general article on the subject is found in the Phillipine examiner on 31 August 2012 which provided:

With the advances in information technology, privacy in personal data has become illusory. For the right price or with good connections, private information disclosed in confidence to companies or government offices can be made available to or accessed by interested parties.

This is the problem that is sought to be minimized, if not eliminated, by Read the rest of this entry »

The BBC reports in Draft Communications Data Bill: Powers may uncover ‘wrong targets’.  The bill was introduced to Parliament in June 2012.  It is found here.

It provides:

 Civil liberties campaigners describe the proposals as a “snooper’s charter”

Plans to monitor all Britons’ online activity risk uncovering “incompetent criminals and accidental anarchists” rather than serious offenders, the information commissioner has warned.

Ministers want to strengthen the law on internet data retention to help the police tackle security threats.

Christopher Graham said the “really scary people” could simply avoid detection by changing their behaviour.

But another leading watchdog said the proposed new powers were “essential”.

Under the government’s plans, currently being scrutinised by Parliament, service providers will have to store details of internet use in the UK for a year to allow police and intelligence services to access it.

Records will include people’s activity on social network sites, webmail, internet phone calls and online gaming.

Ministers argue Read the rest of this entry »