There will be a change to the Rules of the Federal Circuit Court and Family Court (Division 2). New Practice Directions will also take effect being:

• Central Practice Direction: General Federal Law Proceedings
• Central Practice Direction: Migration Proceedings
• General Federal Law Practice Direction: Admiralty and Maritime Proceedings;
• General Federal Law Practice Direction: Intellectual Property Proceedings.

Practice Directions

The Court’s summary of the Practice Directions provides:

Central Practice Direction: General Federal Law Proceedings

• updates to reflect new rule references in the new GFL Rules.
• updates removing child support from the types of proceeding listed as within the Court’s general federal law jurisdiction, to reflect that child support proceedings must now be heard in the family law jurisdiction.
• new item 3.2 on the overarching purpose stating that parties and their lawyers have a duty to co-operate with the Court and amongst practitioners.
• new section 4 stating the procedural requirements for parties seeking to file an urgent application.
• new item 6.3 on case management stating that the Court expects a party to seek consent of all other parties when seeking to adjourn a hearing or vacate a listing date.
• updates to section 8 on ending a proceeding early to reflect that parties can file a notice of discontinuance at any time before the first court date, or, if the proceeding is continued on pleadings, any time before the pleadings have closed. This includes new item 8.2 which states that the notice of discontinuance can be filed at a later date with the leave of the court or the other parties’ consent, if judgment has not been entered.
• new section 10 on parties’ conduct and communication with the Court stating the requirements for parties when communicating with each other, the Court and all Court staff. 

Central Practice Direction: Migration Proceedings

• this is a new Practice Direction, some items in the previous Migration Practice Direction remain and new items have been included.
• updates to reflect new rule references under the new GFL Rules.
• new section 3 including:
  • the assignment of a pseudonym to litigants
  • the requirements for how parties are to be named in migration proceedings
  • the requirement that all Court documents must include the details of the person who prepared the document irrespective of whether that person is a lawyer
  • the obligations under section 486E of the Migration Act 1958 (Cth)
  • the requirements for notifying the other party when filing documents with the Court.
• new section 4 regarding how the Court triages matters before they are allocated to a judicial officer for determination.
• new section 5 stating the requirements for parties seeking to file an urgent application.
• new section 6 regarding the non-removal from Australia of detainees with litigation before the Court.
• new section 7 regarding matters involving a party who is in immigration detention.
• new section 8 regarding the requirement for the solicitor for the Minister to prepare a Court Book and what it must include. This section also includes the Court’s requirements where a party wishes to rely on authorities.
• new section 9 on interview/hearing audio and transcripts.
• new section 10 regarding requests for adjournment.
• new section 12 regarding the requirements for Direct Access Barristers.
• new section 13 on parties’ conduct and communication with the Court stating the requirements for parties when communicating with each other, the Court and all Court staff.

General Federal Law Practice Direction: Admiralty and Maritime Proceedings

• updates to reflect new rule references under the new GFL Rules.
• new item 1.2 reflecting that parties have a duty to act consistently with the overarching purpose, and practitioners must assist parties to comply with the duty.
• removal of section 8 on urgent applications due to new section 4 in the Central Practice Direction – General Federal Law Proceedings.

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Sam and Brittany Groth have issued proceedings in the Federal Magistrates Court against the Herald and Weekly Times alleging a breach of privacy. Or more accurately a breach of the statutory tort of serious invasion of privacy. The Court number is VID1130/2025 and there are 3 respondents; the Herald and Weekly Times, Stephen Drill and Sam Weir. The story is covered by 3AW (with audio) in Deputy opposition leader launches legal action over controversial reporting. The Australian Financial Review also covers it Read the rest of this entry »

The Full bench of the Federal Court in The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2025] FCAFC 104 upheld an appeal of the decision of Snaden J in The Game Meats Company of Australia v Farm Transparency International Ltd [2024] FCA 1455 where his owner held that video images taken by trespassers were not held on trust for the owner of the property. The balance of the primary judge’s decision was unaffected by the appeal. It is a very significant decision and important for those intellectual property and privacy practitioners.

FACTS

The appellant (GMC):

• operates a halal abattoir in Eurobin, Victoria, which slaughters and processes goats for export under a licence [3].
• operates from private premises (the Eurobin Premises) which:
  • was secured by means of a six-foot cyclone metal chain and barbed wire fence located around its perimeter.
  • was accessible  by an electronically-controlled iron gate, which is typically kept closed.
  • had signs outside of the gate displays signs, which relevantly stated “Restricted Area. Do Not Enter, Authorised Personnel Only”, and  “Stop. All Visitors Must Report to the Office” [3].

The respondent (FTI) is an animal protection advocacy operation which aims, among other things, to educate members of the public about matters concerning animal exploitation and suffering at farms, slaughterhouses and other commercial businesses [4].

On seven occasions between 9 January and 13 April 2024, FTI’s employees or agents:

• gained access to the Eurobin Premises for the purposes of installing and later retrieving covert video recording equipment.
• entered the Eurobin Premises at night by crawling under a section of the perimeter fence without the knowledge or authority of GMC.
• were trespassing as agents of FTI and with its authority [5]

The equipment that FTI installed was used to obtain footage of activity within the Eurobin Premises. From that footage, FTI created a video of 13 minutes and 57 seconds in duration (the 14-minute Footage) [5].

On 3 May 2024, an employee of FTI sent the 14-minute Footage by way of complaint to the Department of Agriculture, Fisheries and Forestry (the Department) [6].

On 5 May 2024, an officer of the Department sent a copy of FTI’s complaint to GMC [6].

On 13 or 14 May 2024, FTI sent the 14-minute Footage to a local television news network (Channel Seven), which ran a story about the matters depicted in it on 17 May 2024, although it did not publish the footage itself [6].

On 17 May 2024, FTI uploaded the 14-minute Footage on its website, together with a media release and a number of still images obtained from the 14-minute Footage [6].

On 17 May 2024 GMC commenced the present proceedings [6].

An expedited final hearing was conducted on 5–9 August and 3 September 2024 and the Primary Judgment was delivered on 19 December 2024 [7].

The primary judge:

• awarded GMC damages in the sum of $130,000, comprising:
  • general damages of $30,000 and
  • exemplary damages of $100,000.
• held that GMC:
  • was not entitled to an injunction to restrain FTI from publishing any of the video footage that it obtained at the Eurobin Premises,
  •  was not entitled to the benefit of a constructive trust over the copyright in the 14-minute Footage [7].
• found that by sending the 14-minute Footage to Channel Seven and publishing it on the FTI website:
  • FTI sought to subject GMC to a measure of publicity that could only ever have been harmful to GMC,
  • those publications were made in pursuance of FTI’s objective to end all forms of business that involved causing harm to animals:
• held that the making of those publications was actuated by a desire to harm GMC’s business
• found that FTI’s purpose in seeking to publish the 14-minute Footage was to visit loss upon GMC and harm it commercially,
• described FTI’s intention as being to subject GMC to a “public shaming campaign”:
• found that it was more likely than not that, if it was able to publish the footage that it has obtained, FTI would use (or seek to use) the ensuing publicity to further its objectives, both in terms of its advocacy of “meat-free living” and its ongoing efforts to raise funds in support of its activities [8]
• refused to find that FTI held the video footage on constructive trust for GMC.

The issue of constructive trust was the core of the appeal by GMC.

DECISION

The Full Bench upheld the appeal.

Justices Burley and Horan concurred with Jackman J’s reasons.  

Jackman J reviewed the High Court decision of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 (ABC v Lenah) , specifically the judgments of Hayne and Gummow which stated:

• that where a cinematograph film is made in circumstances involving the invasion of the legal or equitable rights of the plaintiff or a breach of the obligations of the maker to the plaintiff it may then be inequitable and against good conscience for the maker to assert ownership of the copyright against the plaintiff and to broadcast the film.
• in those circumstances:
  • the maker may be regarded as a constructive trustee of an item of personal (albeit intangible) property, namely the copyright conferred by s 98 of the Copyright Act 1968 (Cth) (the Copyright Act). 
  • the plaintiff may obtain:
    • a declaration as to the subsistence of the trust and
    • a mandatory order requiring an assignment by the defendant of the legal (ie statutory) title to the intellectual property rights in question, noting that s 196(3) of the Copyright Act provides that an assignment of copyright does not have effect unless it is in writing signed by or on behalf of the assignor [9].
• there is no objection in legal principle to the imposition of a constructive trust over the relevant copyright which was created by means of unlawful conduct if the circumstances show that it is inequitable and against good conscience for the maker of the film to assert the copyright conferred by statute [10]. Jackman noted that the passage was referred to with apparent approval by Kiefel CJ, Bell and Keane JJ in Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 272 CLR 177 (Smethurst) at [84] [10]
• there are authorities which discussed when copyright, although belonging to an author at law, was held on trust for another person such as  where it would be inequitable for the maker to claim copyright over the intellectual property.  Those cases involve pre-existing relationships between the parties, such as works created by a partnership, a director or employee of a company, or copyright works brought into existence or at the request of or on the instructions of an intended owner who has paid for the making of the work. 
• even when there is no pre-existing relationship it is possible a constructive trust may arise. The remedy was not imposed in that case as no claim was made by Lenah as to copyright over the cinematograph film (at [103]) [11]
• unconscionable behaviour does not operate wholly at large as has been stated by the High Court in:
  •  Garcia v National Australia Bank Limited [1998] HCA 48; (1998) 194 CLR 395 at [34], where Gaudron, McHugh, Gummow and Hayne JJ said that the statement that enforcement of the transaction would be “unconscionable” is to characterise the result rather than to identify the reasoning that leads to the application of that description.
  • Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 at [43], where Gummow and Hayne JJ acknowledged that the uses of the terms “unconscionable” and “unconscientious” in diverse areas may have masked rather than illuminated the underlying principles at stake [16]. 

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Service of court orders are invariably necessary to permit action for contempt for a breach of those orders. In cases of injunctive relief commonly the Court requires service of those orders. It becomes more difficult when the subject of those orders inhabit the dark web, have no representatives to accept service of those orders and can easily disappear. Welcome to the world of service of cyber hackers.Non publication orders against cyber hackers are a relatively recent phenomenon as is the method of service.

Qantas served the non publication orders made by Justice Kunc of the New South Wales Supreme Court via Tox. According to affidavit material filed by Qantas the documents containing the orders were sent last Thursday and a return email was received 3 hours later. What is not clear is how the order has been brought to attention of those who may not be the cyber criminals but come upon this information.  That may be attended to by specific exemptions to the orders.  It is not known. In crafting orders it is important to make them sufficiently focused so as to avoid unwelcome consequences such as a victim of the cyber breach being in contempt because he or she found his or her information on the dark web or elsewhere.

The Australian has covered this story in How Qantas served papers on cyber criminals over hack attack on customer database. What seems to be clear is that cyber hackers are based outside Australia.  That is a perennial problem and one that does not Read the rest of this entry »

The case of Kate Aston being videoed walking out of a bathroom and Nathalie Matthews being concerned about intimate videos she filmed would be made public raises issues of privacy protections in each case and what each could do to protect their privacy. Particularly with the statutory tort of serious invasion of privacy coming into operation on 10 June 2025.

While both factual situations are unique they are not, in broad strokes, all that unusual in privacy law.  The use of videos and cameras used in a setting which should be private and which clearly cause serious distress is not unknown. Many cases, almost invariably resulting in a prosecution, involve the use of a camera/video in a toilet. But there is no hard dividing line taking photos or videos of someone in a toilet and photographing or videoing someone with that same equipment who are leaving a toilet.  The question is whether there is a reasonable expectation of privacy.  In case of someone using the toiletry facilities the answer is clearly yes.  In terms of someone leaving a toilet it is most likely yes.  The distinction is slight.  One can have a reasonable expectation of privacy in a semi public or even public space. In 2008 the UK Court of Appeal in Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 found that a child had a right to privacy in a public space. The Mrs Murray in that case writes under the nome de plume of JK Rowling. While the claim was brought on behalf of the Murray’s child the defendant’s interest was more about capturing an image of Mrs Murray with her family, child especially.  While that case focused on the rights of the child the subsequently developed principles apply to adults. It depends on the circumstances.  And those circumstances do not assist someone who intentionally waits outside a toilet and uses the video to catch another on film leaving the toilet.  And then posts that footage on line.  

According to 7 News Ms Aston has commenced legal action. Whether that is a claim in privacy, equity, defamation or any other cause of action is unknown.  

According to the Australian report of the Matthews case the concern is there are intimate videos would be made public and that motivated her to apply for a domestic violence order.  The abuse of intimate videos, previously made consensualy, have been the subject of two superior court decisions in Australia; the Victorian Court of Appeal decision in  Giller v Procopets [2008] 24 VR 1 and the Western Australian decision of Wilson v Ferguson [2015] WASC 15 which I posted on in 2015.  

Either of these cases could be run without the statutory tort of serious invasion of privacy.  With that tort extant and these fact situations commencing after 10 June 2025 the tort is available to either.  The strength of the case depends on all of the facts, not just the media coverage. 

It is interesting to read Read the rest of this entry »

It is becoming common practice for companies affected by the significant data breaches to seek injunctive relief. The Australian reports in Qantas goes to court over cyber attack in attempt to stop stolen data being released or used. that Qantas has obtained an interim injunction in the New South Wales Supreme Court. A copy of the orders has not been released but it is reported as intending “..to prevent the data being accessed, viewed, released, used, transmitted or published by anyone including by any third parties.” There is no identified respondent to the application.  It is also covered by 9 News and Reuters.  If the process follows the approach taken by the court in the HWL Ebsworth application for injunctive relief in 2024.

Interestingly the National Office of Cyber Security prepared a report on the HWL Ebsworth Cyber Security Incident titled “Lessons Learned Review”.  Under the hearing “What was interesting” the report says the following about the injunction HWL Ebsworth obtained from the Supreme Court of New South Wales.  

The granting of an injunction from the Supreme Court of New South Wales to HWL Ebsworth was a key point of interest during the management of the incident. The injunction was sought by HWL Ebsworth to restrain further access to or publication of information exposed during the incident, in an attempt to protect client data, and minimise ‘online rubbernecking’. Overwhelmingly, government entities viewed this enabled better support to impacted clients (including individuals) through minimising the likelihood that other actors may access and act on the published data, and was overall viewed as a sensible step in the firm’s response.

HWL Ebsworth’s intention when seeking the injunction was never to stop its clients from accessing their own data, as several clients were granted exemptions to ensure access for this purpose could continue. However, the injunction also prevented accidental unauthorised access which would have been inevitable in the circumstances where clients of the firm were seeking their own information but would, in the process, further compromise the privacy of other matters unintentionally.

There is quite a bit of supposition in that assessment.  It is not possible to know whether the injunction performed that role.  There has been no reported contempt of court proceedings for breaching the injunction.  It would also be quite difficult to determine whether there was a reduction in ‘online rubbernecking’ to start with and whether it was reduced.  How to monitor on line rubber necking is another issue.  If the data is stored on the dark web in a particular site removing the data, highly improbable, would be a better solution than working out who viewed it, even more difficult.  That said injunctive relief is now part of the response in large scale data breaches.  

It is clear from the assessment that the orders were almost certainly more involved and complicated than a blanket prohibition.  There is reference to exemptions.  That is an important issue when seeking such orders.  It is important to avoid putting those who are victims who discover their personal information and in viewing it may in a position where they may be in contempt of court.  Clearly not an intended consequence.

The Australian story Read the rest of this entry »

The Chief Justice of the Victorian Supreme Court has published a notice to the profession regarding the conduct of applications to set aside statutory demand. The Notice sets down a very specific timetable which must be followed.  There will be consequences for failing to comply.  The second feature of the Notice is a requirement to keep affidavits concise and exhibits “..limited to those documents which are critical to the grounds relied upon by the plaintiff and the real issues in dispute.”

Some points that practitioners must consider:

1. the court will fix a date for final hearing in the timetabling orders;
2. first, the Notice to the Profession must be served on the defendant (Paragraph 4.1).  That is a new development;
3. “as soon as practicable” after filing (Paragraph 5.2), the Court will make timetabling orders in the form of Annexure A to the Notice which requires:
   • seven days after filing of the Originating Process the plaintiff to file ,the plaintiff file an affidavit of service of the Originating Process, supporting affidavit, and a copy of the Notice to Profession
   • 14 days after filing of the Originating Process] the defendant file and serve:
     • an affidavit of service of the statutory demand; and
     • any affidavit on which it intends to rely in opposition to the application; and
   • 14 days after filing of the Originating Process] the defendant advise chambers that the defendant disputes jurisdiction
   • 21 days after filing the Originating Process] the plaintiff must:
     • file and serve any affidavit on which it intends to rely upon in reply;
     • file and serve an outline of submissions not exceeding 6 pages and a list of authorities identifying pin-point references; and
     • email the Chambers of the judicial officer a bundle of authorities that the plaintiff relies upon in pdf text-searchable format, with cases arranged in alphabetical order and with an electronic bookmark for each case
   • 28 days after filing of the Originating Process the defendant will:
     • file and serve an outline of submissions not exceeding 6 pages and a list of authorities identifying pin-point references; and
     • email the Chambers a bundle of authorities that the defendant relies upon which are not already included in the plaintiff’s bundle.
4. submissions must identify why or why not there is a genuine dispute/offsetting claim/some other matter with reference to the affidavit material;
5. in advance of any non compliance with the timetable/exercise of liberty the parties have to confer regarding the amendments and email the Court to “explain the reason that a variation is sought and provide consent or competing draft minutes of order addressing a revised timetable which maintain the final hearing date and ensures that the last document is filed no later than 72 hours before the final hearing;”
6. evidence or submissions filed out of time will not be considered at the final hearing without a summons for leave supported by an affidavit explaining non-compliance (Paragraph 8.3).
7. in the event of non-compliance the Court may, of its own motion, make a self-executing or ‘unless’ order disposing of the proceeding;
8. the Court will aim to schedule the final hearing to be held within 6 weeks of filing, listed for half a day (Paragraph 8.1); and
9. within 3 days of the hearing the practitioners briefed to appear at the final hearing are to confer with a view to resolving the dispute or narrowing the issues.  The plaintiff must email the Court on behalf of the parties a “joint statement” of  the remaining issues in dispute.

The Notice Read the rest of this entry »

The Australian Securities and Investment Commission announced yesterday that it was suing FIIG Securities for “systemic and prolonged cyber security failures” from March 2019 until 8 June 2023. As a result hackers entered FIIG’s IT system and stole personal information which was released onto the dark web. ASIC specifically referred to the Federal Court decision of Australian Securities and Investments Commission v RI Advice Group Pty Ltd (No 3) [2022] FCA 84. This was the first case where the failure to manage cyber risk was found to be a breach of its financial services obligations. That case was settled with the proposed parties proposing consent orders containing declarations and consequential orders. Given the nature of the repeated breaches RI Advices legal representatives negotiated quite a favourable outcome notwithstanding orders were made against their client. In the United States or the UK the penalties would have been much more severe.

Helpfully ASIC has provided a concise statement of facts and the Orginating Process.  From that ASIC alleges that between 13 March 2019 and 8 June 2023, FIIG did not comply with its AFSL obligations under sections 912A(1) of the Corporations Act 2001 (Cth) to:

1. do all things necessary to ensure that financial services were provided efficiently, honestly and fairly (s 912A(1)(a)), by failing to have in place adequate measures to protect its clients from the risks and consequences of a cyber incident;
2. have available adequate resources (including financial, technological, and human resources) to, amongst other things, ensure that it had in place adequate cyber security measures required by its licence (s 912A(1)(d)); and
3. have in place a risk management system that adequately identified and evaluated the risks faced by FIIG and its clients; adopt controls adequate to manage or mitigate those risks to a reasonable level; and implement those controls (s 912A(1)(h)).

ASIC alleges that FIIG failed to have the following cybersecurity measures:

• Planning and training: here was no cyber incident plan communicated and accessible to employees which is tested at least annually, and mandatory cyber security training (at commencement of employment and annually);
• Access restrictions:
  • there were no proper management of privileged access to accounts, including non required access being revoked, and greater protections for privileged accounts; and
  • configuration of group policies to disable legacy and insecure authentication protocols;
• Technical monitoring, detection, patches and updates: there was a failure to have or inadequate
  
  • vulnerability scanning, involving tools deployed across networks and endpoints, and processes run at least quarterly with results reviewed and actions taken to address vulnerabilities;
  • next-generation firewalls (including rules preventing endpoints from accessing file transfer protocol services);
  • endpoint detection and response software on all endpoints and servers, with automatic updates and daily monitoring by a sufficiently skilled person;
  • patching and software update plans (with critical or high importance patches applied within 1 month of release, and 3 months for all others), and a practice of updating all operating systems, with compensating controls to systems incapable of patching or updates; and
  • security incident event management software configured to collect and consolidate security information across all of FIIG’s systems with appropriate analysis of the same (daily monitoring);
• Testing: there was a lack of
  • processes to review and evaluate efficacy of technical controls at least quarterly; and
  • penetration and vulnerability tests from internal and external points.

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The Australian reports in Class action against Optus after 2022 data breach registers 160,000 members that about 160,000 members have joined in the class action against Optus resulting from the 2022 data breach. This report is based on submissions made at a case management hearing before Justice Beach today. 

The class action is brought in proceeding PETER JULIAN ROBERTSON & ANOR v SINGTEL OPTUS PTY LIMITED ACN 052 833 208 & ORS (number VID256/2023).

The article provides:

Appearing for class action behemoth Slater & Gordon, barrister William Edwards, KC, told the Federal Court on Wednesday the estimated number of members to join the action, which alleges Optus failed to protect the personal information of 9.8 million of its current and former customers whose personal data was leaked online after a cyber attack.

The court was told Optus and Slater & Gordon were still trying to settle the case by mediation, with a hearing possible if that failed.

In court, the parties argued over how much security Slater & Gordon should give Optus since it insisted on a secretive regime to keep documents exchanged in the case away from the public. Read the rest of this entry »

The Victorian Supreme Court in Re Lifestyle Residences Hobsons Bay Pty Ltd (recs & mgrs apptd) [2023] VSC 179 considered a range of issues; whether a director can bring an application when receivers appointed, the operation of section 109X(1)(a) of the Act and the calculation of service. it makes it clear that there is an immutability of filing an application out of time making the application is a nullity.

FACTS

The facts relating to service were:

• on 22 November 2022, Ms Celia Luki, the solicitor with carriage of the matter for the defendant, ascertained the registered office address of the Company from an Australian Securities and Investments Commission (‘ASIC’) company search [35].
• Luki requested the Office Services Clerk in her firm in Redfern, New South Wales, to organise for the documents to be couriered to Melbourne for delivery to the registered office address.
• a Client Services Assistant at McCullough Robertson received Luki’s instructions on the service of the statutory demand in the sum of $213,166.89 in an email forwarded to her by the Office Services Clerk, who also provided the statutory demand and accompanying affidavit.
• the assistant logged into the Toll Priority (Aus) system and inputted those details, recording Luki’s email address as the contact person to receive email updates on the progress of the delivery of the demand. She printed a label from the Toll system, which included all of the recipient’s details which she affixed the label onto a Toll Express Services priority satchel and obtained a tracking number and manifest document.
• in the afternoon of 22 November 2022, a courier from Toll attended the McCullough Robertson office and collected the sealed envelope and two copies of the manifest document [35]
• on 16 December 2022 the tracking log records the documents were delivered to the company at the registered office address on 23 November 2022 at 9:46am. The proof of delivery document clearly records the registered office at which delivery occurred and the signature of Paula accepting delivery of the envelope [36]. Paula was a receptionist an accounting firm engaged by the company, whose business address is the registered office address of the company.
• Paula was unsure who to forward the demand to and sought confirmation from her principal, Mr Sam Cimino. However, because Cimino was extremely busy that day, she was only able to email him and unable to speak to him in person [37].
• on 24 November 2022, Paula had a discussion with Cimino, who instructed her to immediately send the statutory demand to Mr Burgess, Mr Dale Harrison and Mr Peter Van De Steeg, who are nominated contact people at the company. 
• Paula emailed the nominated people at the company, attaching an electronic copy of the statutory demand but erroneously stated the demand had arrived by courier at the registered office address on 24 November 2022 when, in fact, it was delivered by courier the day prior [38]. 

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