In today’s Australian, at Private data still online 24 hours after alert, is a further report about records of Medvet being released on line.  Part of the artical provides:

CONFIDENTIAL information relating to the paternity, drug and alcohol tests of hundreds of Australian customers could still be viewed online more than 24 hours after the company responsible was alerted to a major privacy breach.

The company, Medvet, Australia’s largest for drug and alcohol testing in the workplace, did not perform a deletion exercise of its customers’ cached information on Google, despite having pledged on Friday that it was doing everything possible to overcome a serious privacy breach.

Customer information including names, complete home addresses and the type of test kits ordered could still be accessed on Google late on Saturday.

The story is also reported at Paternity and drug test details leak online in privacy breach in the Age.  The PM program Read the rest of this entry »

The Attorney General put out a press release announcing the impending operation of the Civil Dispute Resolution Act 2011.  The Bill’s homepage is here.  It provides:

Attorney-General Robert McClelland today said Read the rest of this entry »

The Office of the Australian Information Commissioner (OAIC) yesterday released its findings into a mailing list error by Telstra  which resulted in approximately 60,300 Telstra customers’ personal information being sent to other customers.  It is found here.

Key issues

The investigation focused on National Privacy Principles 2.1 and 4.1

As to NPP 2.1 the findings were

NPP 2.1 prohibits organisations from disclosing personal information for a purpose other than the primary purpose of collection, unless one of a number of exceptions applies. These exceptions include that an individual:

• reasonably expected the organisation to use or disclose the information for another purpose
• consented to that use or disclosure of their personal information.

 

In this case, Telstra Read the rest of this entry »

In Associated Retailers Limited v Toys Unlimited Pty Ltd & Ors Kyrou J considered the operation of section 51A of the Trade Practices Act, promissory estoppel and undertook a contractual analysis of settlement agreementss.

Facts

Associated Retailers Limited (“ARL”) sued Paul Moore (“Moore”) under a mortgage, in the sum of $150,000, which was given as security for Toys Unlimited (“Toys”). Toys had purchased a business known as Cairns Toyworld (see [14] – [21]).  The terms and conditions of trade required agreement to pay ARL on a monthly basis amounts due for the supply of goods, service charges and interest on overdue amounts ([2]).  Officers of Toys and other parties provided guarantees for the liabilities of Toys.  ARL placed Toys into liquidation claiming indebtedness in the sum of $1,306,034.93.  After the business was sold the deficit was $460,073.11  (see [54] – [56]).  ARL commenced proceedings against the guarantors.  It also sued Moore in the sum of $123,508.44 and interest of $204,607.74.

In a mediation ARL entered into a Settlement Agreement with the guarantors whereby the latter jointly and severally agreed to pay to ARL $25,000 (the “Settlement Sum”) in full and final settlement of its claim [6]. Moore alleged that prior to the execution of the mortgagor ARL represented to him that his liability under the mortgage would be limited to $150,000 and would subsist for 12 months only.  ARL claimed the mortgage was for a period of least 12 months.  Moore also alleged that the Settlement Agreement had the effect of discharging any liability which he may otherwise have had to ARL (see [22] – [52], [58] – [63], [76] – [162]) .  As a consequence of this pleaded defence ALR joined the barrister engaged by ARL at the time of settlement, Mr Evans, as a defendant..

Decision

Kyrou J undertook a very detailed analysis of the evidence a large part of which was oral. In the main he strongly preferred the evidence of the defendant’s witnesses over those of the plaintiff.

Limitation on liability

As to the period of the mortgage Kyrou J found Read the rest of this entry »

The Attorney General introduced the Cybercrime Legislation Amendment Bill today. His press release gives a good precis of its contents stating:

Attorney-General Robert McClelland said the Government’s Cybercrime Legislation Amendment Bill 2011 sets the legislative framework to enable Australia’s accession to the Council of Europe Convention on Cybercrime – the only binding international treaty on cybercrime.

The Convention provides systems to facilitate international co-operation between signatory countries, as well as establishing procedures to make investigations more efficient, including:

• empowering authorities to request the preservation of specific communications (with access subject to a warrant in Australia);
• helping authorities from one country to collect data in another country;
• establishing a 24/7 network to provide immediate help to investigators; and
• facilitating the exchange of information between countries.

To date, over 40 nations have either signed or become a party to the Convention, including the United States, United Kingdom, Canada, Japan and South Africa.  Over 100 nations are also using the Convention as the basis to strengthen their legislation to combat the threat of cybercrime. The Government’s Bill makes three key changes:

1. Preservation – Read the rest of this entry »

Last Friday Gardiner AsJ in White Family No 1 Pty Ltd v Organic Brands Pty Ltd & Anor considered grounds for winding up a company on just and equitable grounds.

Facts

In 2006 Ms Smith and Ms White agreed to establish a new business, through a corporate entity, which would sell organic skin and body products produced by an entity controlled by Ms Smith.  A company was duly incorporated in 2007 with Smith and White each being a director and having five of the ten issued shares.  Over the next 2 years the relationship deteriorated markedly and, as at the application date, the affairs of the company was in disarray. There has been no formal meeting of directors and no tax return filed. The company ceased trading in August/September 2010.

Decision

The Court has a very wide discretion under section 461(1)(k) of the Corporations Act to wind up a company on just and equitable grounds [12].  Gardiner AsJ cited the relevant elements giving rise to jurisdiction, as extracted from the House of Lords decision in Ebrahimi v Westbourne Galleries Limited, as being one or more of the following:

(i) an association formed or continued on the basis of Read the rest of this entry »

On 3 June Hargrave J made an interim ruling as to the further conduct proceedings in Director of Consumer Affairs Victoria v Scully & Ors (No 2) (Scully).  It is an important decision in considering the approach the court should take to civil prosecutions brought by the Director of Consumer affairs under the Fair trading Act.

Facts

The proceedings relate to two schemes promoted by Scully and others designed to allow consumers with financial problems to acquire their own home without a deposit or finance from banks or financial institutions in the short term [8].  The Director brought an action under sections 9, 11 and 12 of the Fair Trading Act in the public interest and representing the interests of certain individuals who participated in the schemes.  There were no pleadings and Associate Justice Daley dismissed an application to order a statement of claim [10 at footnote 1].

On 10 May 2011 the trial was adjourned, part heard, until 26 July 2011. The court called the parties back because of concerns as to the course the trial was taking.  His Honour was concerned that since the proceedings had been issued the nature of the allegations were contained across and originating motion, numbering 50 pages but drawn in broad terms, voluminous affidavit material, running to 11,000 pages over 26 volumes, and written outline of submissions which was at “..a high level of generality” [10]. As a consequence the court was reliant upon the Director and his legal representatives to identify his case, which the did not occur in the first four days of trial [11]. His Honour was quite critical of the assistance provided by the Director (see [15]) saying “..the Court requires significantly greater assistance from the Director than has been provided to date.”

The court was of the view that pleadings were necessary to define the many issues in the case and avoid possible injustice to the defendants ([3] – [4]).

Decision

Pleadings

At [26] the Court cited Mason and Gauldron’s statement in Banque Commerciale SA v Akhil Holdings Ltd that the function of pleadings “..is to Read the rest of this entry »

The common refrain when one talks about the need for privacy rights are “If you have nothing to hide then you have nothing to worry about.”  This of course reverses the onus on a persons/state’s rights to view or access one’s private information.

The Chronicle of Higher Education inWhy Privacy Matters Even if You Have ‘Nothing to Hide’ is an excellent review of the argument and the appropriate rebuttal.

The ALRC has released a report Managing Discovery: Discovery of Documents in Federal Courts.

The press release provides:

Advocating a facilitative approach Read the rest of this entry »