Last Friday the Australian Competition & Consumer Commission (“ACCC”) announced that it has commenced proceedings against Google LLC alleging misleading and deceptive conduct in failing to inform consumers and obtain their informed consent  from 2016 that it was combining their personal information in Google accounts with information gleaned from their activities in non Google sites which use Google technology.  The ACCC also alleges that Google misled consumers about changes to its privacy policy.

The ACCC has not released the concise statement and the case has not appeared on the Federal Court website as yet.  It is interesting, and something of a relief, that the ACCC is stepping up and taking on privacy related cases instead of the Australian Information Commissioner.  Unfortunately the Commissioner has a lamentable track record in enforcing privacy breaches, particularly in the Federal Court.

The nature of the case as described by the ACCC seems to follow a tried and true approach used by the Federal Trade Commission in the United States, attacking privacy and data breaches through breaches of contractual terms or misleading and deceptive conduct.  It is also an approach that the Federal Court is more comfortable with.  To date the Federal Court has produced judgments that betray a bewildering befuddlement regarding privacy principles; namely Read the rest of this entry »

In HQ Insurance Pty Limited v Stonehatch Risk Solutions Limited (No 2) [2020] FCA 1010 the Federal Court per Thawley dismissed an application for preliminary discovery on the grounds that the applicant failed to establish that reasonable inquiries were made.

FACTS

The dramatis personae are:

• HQ,  an Australian bloodstock and livestock insurance broker specialising in equine insurance. It holds an AFSL which authorises it to advise and deal in general insurance [17].
• Stonehatch,  a United Kingdom (UK) based insurance broker specialising in bloodstock insurance. It does not hold an AFS [17]]
• Ausure (Upper Hunter) Pty Ltd trading as Ausure Insurance Solutions (NSW),  an insurance broker which brokered equine thoroughbred insurance through Stonehatch as its wholesale broker in the UK where the equine risks were underwritten by various Lloyd’s syndicates [18].

On 25 September 2018, HQ completed its purchase of Ausure’s client book of insurance policies. HQ transferred the insurance files to their own wholesale broker, Integro Brokers Limited, in the UK, on 18 October 2018 [19].

Under the agreement between Read the rest of this entry »

In Lewis (liquidator), in the matter of Concrete Supply Pty Ltd (in liq) [2020] FCA 841 White considered the relevant principles in considering an application under section 477(2B) of the Corporations Act 2001.

FACTS

Between August 2009 and November 2017, ABCL had supplied concrete to Concrete Supply [5].

In October 2017, ABCL discovered that it had been underpaid about $12 million by Concrete Supply.  The underpayment was disguised by false entries made by one of its employees.  ABCL sought payment of the shortfall from Concrete Supply. On 14 November 2017, the directors of Concrete Supply resolved that it was, or was likely to become, insolvent and appointed Messrs Cooper and Cantone at Worrells as administrators. On 19 December 2017, the creditors of Concrete Supply resolved that it enter into a Deed of Company Arrangement (” DOCA”) [5].

ABCL opposed the Read the rest of this entry »

In Yeo, in the matter of Ready Kit Cabinets Pty Ltd (in liq) v Deputy Commissioner of Taxation [2020] FCA 632 Middleton J considered the operation of the sub sectin 588FE(2B) involving the voidable transactions and whether payments were made under the administrator of a deed of company arrangement.

FACTS

On 29 October 2013, Mr Yeo and Mr Rambaldi were appointed as joint and several administrators of Ready Kit Cabinets Pty Ltd (in liq) (” the Company”) [8].

The DCT  commenced proceedings seeking to wind up the Company before the appointment of  Yeo and Rambaldi as voluntary administrators [9].  The first meeting of the Company’s creditors was convened and held on 7 November 2013 [10].  On 14 November 2013,  Yeo and Rambaldi issued a circular to creditors in which they advised that the second meeting of the Company’s creditors would be held on 22 November 2013. Yeo and Rambaldi provided creditors with a copy of a s 439A report with the circular [11].  At the second meeting of creditors  a resolution was passed that the Company should execute a deed of company arrangement [12].

On or about 11 December 2013, the DOCA was executed by:

• each of the Company (by its then administrators,  Yeo and Rambaldi),
•  Yeo and Rambaldi as deed administrators, and
• the Director [13].

His Honour identified key provisions of the DOCA as:

• Recital H. [14], that:

This Deed binds all Creditors of [the Company] pursuant to Section 444D of the Corporations Act and [the Company], all officers and members of [the Company], and the Administrators pursuant to Section 444G of the Corporations Act.

•  management and control of the Company’s day-to-day business affairs were returned to the Director;
• a fund was established and controlled by the Deed Administrators which constituted the whole of the property available for distribution to participating creditors [15];
• the Company and Director made certain covenants and undertakings, including in respect of the Company’s compliance with its taxation obligations [15]; and
•  upon default of the DOCA by the Company or the Director, the Deed Administrators were to convene a meeting of creditors to determine whether to terminate the DOCA and wind up the Company [15].

Between 11 December 2013 and 5 July 2017, the Company was returned to the management and control of the Director and continued to trade [16]. During this time the Company incurred fresh liabilities Read the rest of this entry »

Yesterday, 9 March 2020, the Australian Information Commissioner commenced proceedings against Facebook in the Federal Court.  The actual citation is Australian Information Commissioner v Facebook Inc & Facbook Ireland Limited (court number NSD 246/2020).

It has taken 2 years for the Information Commissioner to conclude her investigations regarding Facebook’s actions in permitting personal information to be misused through the This is Your Digital Life app which was disclosed to Cambridge Analytica. The UK Information Commissioner resolved its investigation and issued a monetary penalty notice of 500,000 pounds in October 2018.  The US Federal Trade Commission imposed $5 billion penalty for its breach of the previous order in July 2019.

This litigation will be significant as it is the first consideration of the operation of section 13G of the Privacy Act, a civil penalty proceeding for serious or repeated interference with privacy.  Unfortunately the Information Commissioner has not proven to be an adept litigator to date though Facebook’s egregious conduct in permitting its users personal information to be misused is well documented.  What is less clear is how the Commissioner will convince the Court that the statutory limit of $1.7million for an infraction is a limit on each breach.  That will be a significant Read the rest of this entry »

The Federal Court announced today that forms used in proceedings under the Federal Court criminal Proceedings Rules are now accessible and can be lodged by external users.  The Rules can be found Read the rest of this entry »

Properly determining the interest component in an award is an important calculation.  And one that is done poorly more often than Read the rest of this entry »

The Federal Court (Bankruptcy) Amendment (Insolvency and Other Measures) Rules 2017  comes  into effect on 1 September 2017.  That will Read the rest of this entry »

In Gucce Holdings Pty Ltd v Bank of Queensland Limited [2017] FCA 12  the Federal Court considered whether a sale for undervalue, or at least a claim as such, was a basis for an offsetting claim (and what is required) as well as whether a special leave application was sufficient to set aside a statutory demand.

FACTS

Gucce Holdings Pty Ltd (ACN 099 191 714) filed an application, [1], with an  affidavit of  Tina Michelle Bazzo, director of Gucce,[2], on 29 December 2015 pursuant to s 459G of the Corporations Act 2001to set aside a statutory demand made by the Bank of Queensland Limited.

Bazzo stated that Read the rest of this entry »

The Federal Court per Murphy J in Furnari v Ziegert [2016] FCA 1080 considered the unusual application for injunctive relief arising out of a defamation action.  The decision is notable for its consideration of section 7 of the Telecommunications (Interception and Access) Act 1979 (“TIA Act”).

FACTS

The applicant purchased a pedigree bobtail Doberman pup from the respondents for $3,500 in December 2015. He said that Ms Ziegert represented that the pup could breed, was a natural bobtail, had been checked by a veterinarian, didn’t have Von Willebrand disease and weighed between 9 and 10 kg.  Upon taking delivery of the pub he said it had been sterilised, was diseased, weighed only 4.5 kg, was unhealthy and, as if that wasn’t enough, was not a natural bobtail.  Not surprisingly the applicant alleged misrepresentations by the respondents [7] which is the subject of a proceeding in the Victorian Civil and Administrative Tribunal  [8].

The dispute escalated into a defamation proceeding. His Honour summarised the circumstances  as: Read the rest of this entry »