The Attorney General has released a consultation paper on the impending Royal Commission into Sexual abuse.

It is extracted below:

Consultation Paper onthe Establishment of theRoyal Commission into Institutional Responses to Child Sexual Abuse
The purpose of this document is to seek the input of interested individuals and organisations to the arrangements for the establishment of the Royal Commission, including the scope of the Terms of Reference, the form of the Royal Commission, the number and qualifications of Royal Commissioner/s and the reporting timetable for the Royal Commission. These factors will guide the Commissioner/s in their task of examining responses to instances or allegations of child sexual abuse in the context of public and private institutions or organisations in Australia. The explanatory material and questions below are provided as a guide to start discussions.
On 12 November 2012, the Prime Minister announced that she will be recommending to the Governor-General the establishment of a Royal Commission into institutional responses to child sexual abuse in Australia.
Child sexual abuse is a horrific breach of a child’s right to a safe and happy childhood, with immediate and long term impacts on the victims and their families. Child sexual abuse is also a crime that requires the most serious and committed of responses by the whole community. It is important that claims of institutional and systemic failures Read the rest of this entry »

The BBC has another report on the rapid take up of drones for civilian purposes in  Unmanned aircraft project leads push to civilian drones.  The story provides:

The “Pandora’s box” of unmanned aircraft in the UK has been opened, according to the Astraea consortium.

Yet many technology and ethics issues Read the rest of this entry »

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 »

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:

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 »

In Sevior v Morgan [2012] VSC 480 Sifris J terminated a winding up  under section 482(1) of the Corporations Act 2001 (the “Act”). His Honour undertook a detailed a detailed consideration of public interest and commercial morality in the exercise of the court’s discretion.

FACTS

The company was incorporated on 7 September 1994 to operate the electrical business of Mr Sevior (“Sevior”).  It operated until 25 September 2009 after which time it entered into a license deed with two other companies and then ceased trading [5].  The liquidator, Mr Morgan, raised concerns about alleged Phoenix activity. On 11 December 2009 the company was placed into liquidation [6]. More than two years later Sevior proposed a deed of company arrangement [8].  In his report dated 11 April 2012, under section 439(A) of the Act, Morgan stated:

– there is a potential preference claim against the Deputy Commissioner of Taxation in the amount of $191,415;

– there is a potential claim against Mr Sevior in respect of director related transactions in the amount of $115,923;

– there is a possible claim against Mr Sevior for trading whilst insolvent in the amount of $283,153;

– Mr Sevior may have breached his duties as a director of the Company in various respects; and

– Mr Sevior may have engaged in alleged phoenix activity.

While Morgan referred his concerns about breaches of duty in Phoenix activity to ASIC it took no action and did not oppose the application. Sevior swore an affidavit that the creditors of the company had been paid and had accounted for the assets that he is assigned to another company. He also took steps to deal with the breaches of directors duties and alleged Phoenix activity [11].

DECISION

His Honour reviewed the authorities in summarising the principles applicable in terminating a winding up under section 482 (1) of the Act, which are notably:

1. the solvency of the company Read the rest of this entry »

In Drone journalism set for takeoff – once they’re permitted to use our airspace the Guardian reports on the impending use of drones in journalism.

It provides:

It Read the rest of this entry »