In Fiorelli Properties Pty Ltd v Professional Fencemakers Pty Ltd & Anor Kaye J reviewed the law relating to deposits and  raising a legal point on appeal which was not agitated at trial.

Facts

The appellant (Fiorelli) engaged the first respondent (Professional Fence Makers) to build a fence and its property. Under the terms of an agreement the price was $47,300; being a deposit of $17,300, a first instalment of $15,000 and a final instalment of $15,000.  At the time the parties entered into the agreement there was a lack of detail about the the characteristics of the gate, in particular the means by which it would move. This became a significant matter in issue. Fiorelli, through its director, telephoned the second respondent and said that Fiorelli had engaged another company to supply and install the fence and gates and would not require the assistance of Professional Fence Makers. Fiorelli sought repayment of the deposit and return a steel plates it had provided Professional Fence Makers and ultimately it sued Professional Fence Makers for the deposit.  At trial the Magistrate found that there was the wrongful repudiation of the agreement by Fiorelli, that Professional Fence Makers accepted that repudiation and that Professional Fence Makers was entitled to retain the deposit.

Fiorelli appealed but only took issue with the Magistrate’s finding that Professional Fence Makers was not required to repay the deposit. Fiorelli contended that Professional Fence Makers was required to remit the balance of the deposit less  the amount spent by Professional Fence Makers purchasing materials .

Issue

Fiorelli’s counsel submitted Read the rest of this entry »

A recent opinion piece in the SMH, Privacy is about individual choice, online and off,  is quite thoughtful.

It says:

The New York Time’s Read the rest of this entry »

The ABC reports at Brown slams surveillance of green activists that the Federal Government has pushed for surveillance of environmental activists.

The report provides:

Greens leader Bob Brown has accused Federal Resources Minister Martin Ferguson of turning Australia into a police state, after reports he pushed for increased surveillance of environmental activists.

A report in Fairfax newspapers details documents, obtained under Freedom of Information laws, that show Mr Ferguson requested additional monitoring of anti-coal mining groups and other environmental groups.

Senator Brown claims Read the rest of this entry »

Today the Human Rights (Parliamentary Scrutiny) Act 2011 comes into effect.

The press release from the Attorney General provides:

Human rights will be bought into sharper focus in the Parliament this year with all new laws to be checked to see if they stack up against human rights obligations.

“Our focus is on ensuring that key principles of freedom, respect, equality, dignity and a fair go for all Australians are considered in everything the Commonwealth Parliament does,” Attorney-General Nicola Roxon said.

“Ensuring that new laws have considered the protection and promotion of human rights is long overdue.

“Australia has Read the rest of this entry »

Facebook, its founder and its acolytes have had a tenuous understanding of privacy as a concept and no respect for it as a right.  That has put Facbook at odds with the US Federal Government.

In 12 Things You Should Know About Facebook Timeline there is a good description of what Timeline involves.

With Timeline Read the rest of this entry »

In the post Christmas pre new Years media quiet the damning report by Price Waterhouse Coopers highlights operational defects of the PSR.  The Australian ran the story today under the title Bungling medical watchdog on critical list.

The story provides:

THE powerful commonwealth agency tasked with investigating medical rorts needs to be completely rebuilt, having bungled at least 71 cases, breached patient privacy and failed to comply with various financial and legislative controls.

The recommendation is in a government-commissioned review that has found problems so entrenched it calls for the independent statutory authority to be partly subsumed by the Health Department and put on a new financial footing.

That could mean doctors or their professional bodies for the first time being asked to pay a levy to fund the Professional Services Review potentially bringing the new Health Minister, Tanya Plibersek, into conflict with the doctors lobby.

The PSR was established in 1994 to help ensure patient safety and doctors’ proper use of funds Read the rest of this entry »

Every year I give a nod to a non legal subject and repeat one of the most moving ode’s to Santa I have read.

Courtesy of Beebo I have extracted one of the most famous editorials I have read about the Christmas spirit.  It is a fine piece of writing as well.

Yes, Virginia, There is a Santa Claus

By Francis P. Church, first published in The New York Sun in 1897. [See The People’s Almanac, pp. 1358–9.]

We take pleasure in answering thus prominently the communication below, expressing at the same time our great gratification that its faithful author is numbered among the friends of The Sun:

Dear Editor—

I am 8 years old. Some of my little friends say there is no Santa Claus. Papa says, “If you see it in The Sun, it’s so.” Please tell me the truth, is there a Santa Claus?

Virginia O’Hanlon

Virginia, your little friends are wrong. They Read the rest of this entry »

The Privacy Clearing House has set out its list of top/worst data breaches for 2011.  It is an American list so the Telstra breach of privacy is not included.

It’s report is:

The following half dozen are our top picks for the most significant data breaches in 2011:

1. Sony PlayStation (April 27) – Sony discovered an external intrusion Read the rest of this entry »

It is hard to keep up with the mass of testimonials, obituaries and reminiscences of the idiosyncratic, opinionated and outstandingly gifted writer.

An enquiring mind is Read the rest of this entry »

The Privacy Commissioner commenced an own motion investigation report on the Professional Services Review Agency and allegations that there was storage of information from two separate and distinct bodies on the same database.  It found there was a breach of the Act.  The report is found here.

FACTS

The privacy Commissioner received a complaint that the Professional Services Review Agency (“PSR”) was holding medicare benefits program material and pharmaceutical benefits program data on the same database.  This would potentially be a breach of the guidelines issued under section 135AA of the National Health Act 1953.  There was also the question of whether there was a breach of IPP 4.

DECISION

The Commissioner found there was no breach of IPP 4.  The PSR satisfied the Commissioner that it had in place satisfactory measures to safeguard data including:

• retains records in accordance with the National Archives of Australia guidelines, Normal Administrative Practice and existing Records Authorities;
• destroys records in accordance with the timeframes set by the National Archives of Australia Read the rest of this entry »