Proper discovery is vital in most commercial litigation. It is also one of the most contentious areas in the interlocutory process.  The breadth of discovery is often a matter of significant dispute in big cases.  It can be used as a weapon on occasion, driving up costs and wasting time. A fascinating article in the Economist, Legal language, highlights the complexity generally but the complications that come when discovery has to deal with different cultural and legal norms not to mention translation issues.

It provides:

Milorad Trkulja succeeded in suing Google Inc for defamation and was awarded $200,000.  It has been widely reported (here, here and here) and has been the subject of commentary (here ).  Beach J’s decision in Trkulja v Google Inc LLC & Anor (No 5) [2012] VSC 533 is a valuable addition to the growing jurisprudence of defamation on the internet.

FACTS

During 2009 material identifying the plaintiff was located on the internet, and available for downloading and viewing in Australia.  The material was divided into two groups:

1. four pages of which the first page had pictures of the plaintiff, Tony Mokbel and Denis Tanner and underneath each of these pictures was the name “Michael Trkulja”. The third page included an article headed “Shooting probe urged November 20, 2007” with a larger photograph of the plaintiff with a heading above the article titled “Melbourne crime”. Under this heading there were nine photographs of various people either known to have committed serious criminal offences or against whom serious criminal allegations had been made [2].
2. three pages of which the first page consisted of the first ten results of 185,000 results for the search term “Michael Trkulja” with the third page consisting of the article under the same heading with the same nine photographs and the larger photograph of Mr Trkulja [3].

The plaintiff pleaded following imputations Read the rest of this entry »

David Solove is an academic and  prolific writer on privacy issues.  Amongst his writings are  Nothing to Hide, The false Tradeoff between Privacy and Security and the Future of Reputation. He is an influential commentator on privacy issues in the USA and a strong advocate for improved privacy protections there.  A difficult challenge at the best of times.

His paper Privacy Self-Management and the Consent Paradox will be published in the forthcoming edition of the Harvard Law Review (Volume 126 2013).  In short compass (not easy with a 19 Harvard Review article) it considers Read the rest of this entry »

The Privacy Commissioner wrote to the Attorney General in September regarding the impact of drone technology.

The letter provides:

The Hon Nicola Roxon MP
Attorney-General
Attorney-General’s Department
Central Office
3–5 National Circuit
BARTON ACT 2600

 Dear Attorney-General

There is growing interest in the community and media about the use and implications of aerial drone technology, particularly drones with video recording and streaming capabilities.

While drone technology Read the rest of this entry »

Privacy and social media, especially Facebook in Kill yourself, club owner tells schoolgirls.  It provides:

VICTORIA’S liquor licensing authority is investigating a nightclub promoter who told several schoolgirls via social media to ”kill yourself” after they asked to have provocative images removed from the venue’s Facebook page.

The young women Read the rest of this entry »

The Guardian reports that Mr Justice Vos has issued a temporary injunction against the Sun Newspaper preventing it from publishing any confidential information on the phone of Siobhain McDonagh. It appears to be the start of an action for misuse of private information.

The story provides:

Yesterday PM reported on the acquittal of Costas Vaxevanis for breaches of Greek’s privacy laws.

The transcript of the report relevantly provides:

SHANE MCLEOD: A Greek investigative journalist accused of breaching privacy for publishing the names of more than 2,000 of his compatriots with Swiss bank accounts has been acquitted.

The case has highlighted the role of tax evasion as part of the nation’s debt crisis.

The journalist, Costas Vaxevanis, was facing a possible jail term if Read the rest of this entry »

Re Willmott Forests Limited [2012] VSCA 202 is a very important decision in insolvency jurisprudence. The Victorian Court of Appeal upheld an appeal from a finding of a trial judge that the disclaimer of a lease agreement by the liquidator did not have the effect of extinguishing the leasehold interests in land [19]. In doing so the court undertook a detailed analysis of section 568 of the Corporations Act.

FACTS

The majority defined the question as, at [1]:

whether a leasehold interest in land is extinguished by the disclaimer of the lease agreement by the liquidator of the lessor, pursuant to s 568(1) of the Corporations Act 2001 (Cth) (‘the Act’)

Willmott Forests Ltd (“WFL”) owned leases from third parties freehold properties. It entered into 25 year leases. The liquidators of WFL sought to sell the interest in the properties unencumbered by the leases and seek to disclaim the lease agreement.  They applied to the court for approval of such disclaimers [2]. Sale contracts for the sale of the land contained conditions precedent to their completion of the liquidators obtaining orders and directions from a court authorising the liquidators, at [9]:

a) to exercise the powers to terminate, relinquish or surrender the project documents of the registered MIS and Professional Investor MIS; and

(b) to disclaim the project documents of the contractual and partnership MIS as onerous pursuant to s 568(1) of the Act.

The liquidators made application under section 511 of the Act and 477 (2B) for approval of their entry into contracts.

 DECISION

Warren CJ and Sifris AJA

Regarding the operation of section 568 their honours stated:

1. liquidators have the power to disclaim property of a company in liquidation or contracts entered into by the company [15]
2. it is to enable a liquidator to Read the rest of this entry »

The Personal Liability for Corporate Fault Bill passed the Houe of Representatives today. The bills web page is found here.

The Bill arose from the Council of Australian Governments’ National Partnership Agreement to Deliver a Seamless National Economy whose aim is to remove regulatory burdens on directors and corporate officers that cannot be justified on public policy grounds, and to minimise inconsistency between Australian jurisdictions in the application of personal liability for corporate fault in government laws.

The relevant COAG Principles are

• Where a corporation contravenes a statutory requirement, the corporation should be held liable in the first instance.
• Directors should not be liable for corporate fault as a matter of course or by blanket imposition of liability across an entire Act.
• A ‘designated officer’ approach to liability is not suitable for general application.
• The imposition of personal criminal liability on a director for the misconduct of a corporation should be confined to situations where: Read the rest of this entry »

The Full Bench of the Federal Court in Georges v Seaborn International Pty Ltd (Trustee), in the matter of Sonray Capital Markets Pty Ltd (in liq) [2012] FCAFC 140 considered the right of the liquidator to recover proceeds of shares the purposes of pooling and distribution to creditors.

FACTS

Sonray was the holder of the Australian financial services licence from 4 May 2005 until it went into administration on 22 June 2010 [87]. It provided access to trading platforms made available by third parties. Clients deposited money with Sonray, which was held in accounts and subject to statutory trust under the Corporations Act [88]. It had 18 segregated accounts which were used to receive deposits in respect of margin calls, proposed trades and the return of funds. In these accounts clients’ funds were co-mingled with funds from other clients [90] to the point where the trial judge found that the funds were so thoroughly mixed as to be almost impossible to ascertain entitlements to each of the segregated accounts [93]. Efax, the trustee of a family trust, entered into a written agreement in 2009 with Sonray regarding its trading activities.  In April 2010 Efax instructed Sonray to purchase 78,000 shares in BHP Billiton Ltd (“BHP”) [5] for $3 million [6], which it did through Saxo Bank (“Saxo”), one of its trading platforms. Efax’s funding for the purchase was deposited into a Sonray accounted which was subject to numerous defalcations.  The purchase price for the shares however was not paid out of a tainted account but rather by Saxo using its own money or by way of credit arrangements.  Sonray debited Efax’s ledger account with the purchase price of the BHP shares.

The Liquidators seek a direction to allow them to pool shares purchased on instructions by Efax with proceeds attributable to all other Sonray clients which would then be distributed amongst all of the clients [8].

 The trial judge held that Efax is entitled to resist the claim for pooling on the ground that it is entitled to the BHP shares in specie [9].

DECISION

The Majority upheld the appeal by a 2-1 majority.

THE MAJORITY

Jacobsen J

His Honour commenced his analysis by Read the rest of this entry »