In Prest v Petrodel Resources 2013] UKSC 34 the UK Supreme Court considered when it was appropriate to pierce the corporate veil of companies. It is a very significant decision which may be influential in Australia.

 FACTS

The appeal relates to ancillary relief sought by the respondent following divorce proceedings.  The Appellant, the wife, sought recovery under the Matrimonial Causes Act or orders which would permit the court to pierce the corporate veil of a number of companies which were wholly owned and controlled by the the husband.  At first instance the trial judge found there was no general principle which entitled him to reach the companies assets by piercing the corporate veil [6].  The wife was unsuccessful on appeal to the Court of Appeal.

DECISION

The wife was successful on the basis, the court found, that the husband, and not the companies, had originally provided the funds for the properties in dispute to be bought.  Trust law principles were applied and the court found that the companies held the properties in trust for him.  As he was ‘entitled’ to them the court could transfer them to the wife.

While the Appellant was unsuccessful in her appeal seeking order to pierce the corporate veil  the judgment was most significant in its consideration of the principle as to when the corporate veil may be pierced and the limitations on the doctrine.

LORD SUMPTION

His Lordship commenced his analysis by discussing what piercing the corporate veil actually means and, critically, what it doesn’t mean. As to its meaning he said “..properly speaking, it means disregarding the separate personality of the company…” where “.. a person who owns and controls a company is said in certain circumstances to be identified with it in law by virtue of that ownership and control [16].” he drew a distinction between those circumstances and where the law attributes the acts or property of the company to those who control including:

1. where the controller Read the rest of this entry »

 In a unanimous decision the High Court in Kakavas v Crown Melbourne Limited [2013] HCA 25 rejected an appeal by Harry Kakavas against Crown Casino in equity.  The court undertook a detailed analysis of the principles of unconscionable conduct and special disadvantage.

FACTS

Kakavas submitted, at [6], that the principles of Amadio applied, particularly that “..whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created”. He also submitted that Crown had constructive notice of his special disadvantage [150].

Crown submitted:

1. that Kakavas’ abnormally strong urge to gamble was not a compulsion which deprived him of the ability to make a worthwhile choice whether or not to gamble, or to continue to gamble, with Crown or anyone else [11];
2. Crown’s employees did not knowingly exploit the appellant’s abnormal interest in gambling. Kakavas presented as a successful businessman able to afford to indulge himself in the high stakes gambling in which he chose to engage [11]
3. Kakavas suffered no compensable loss [12]

DECISION

 The court undertook a detailed overview of the principle of equitable fraud.  When the considering the principles of equity enunciated in Amadio their Honours stated:

“..the task of the courts is to determine whether the whole course of dealing between the parties has been such that, as between the parties, responsibility for the plaintiff’s loss should be ascribed to unconscientious conduct on the part of the defendant.”

When seeking equitable intervention their Honours stated the following:

1. the principle which the appellant invokes Read the rest of this entry »

In Canberra company licensed for flying drones the Age reports on a Canberra company being licensed to fly drones commercially.

It provides:

A Canberra company is the first local operation to get approval to fly unmanned aerial vehicles or “drones” commercially.

The Read the rest of this entry »

The Attorney General gave a wide ranging speech at the Privacy Reform and Compliance Forum in Sydney today.

Absent greetings and formalities it provides:

It is very timely that we are having detailed discussions about privacy reform and compliance in Australia. It is a very exciting time for privacy policy in Australia.

 We are fast approaching the commencement of the Government’s new privacy reforms in March 2014.

 And I hope we will also have a new mandatory data breach notification scheme commencing next year. As many of you would know, the bill passed the House of Representatives last week and is now ready for consideration by the Senate.

 It is important that we Read the rest of this entry »

The Attorney General’s Department has released a position paper (found here) on the regulations which are being drafted.

The Position paper provides:.

Table 1—Regulation-making powers relating to Read the rest of this entry »

Today the Attorney General issued a press release announcing a referral to the Australia Law Reform Commision on the protection of privacy.  More accurately, whether to have a statutory right of privacy.

It provides:

PROTECTING PRIVACY IN THE DIGITAL ERA

 The Attorney-General Mark Dreyfus QC has asked the Australian Law Reform Commission to conduct an inquiry into the protection of privacy in the digital era.

 The inquiry will Read the rest of this entry »

The growing controversy in the United States about data mining is again on the front page of the news.  In How the U.S. Uses Technology to Mine More Data More Quickly the New York Times provides a very useful background on how data is mined.

It provides:

WASHINGTON — When American analysts hunting terrorists sought new ways to comb through the troves of phone records, e-mails and other data piling up as digital communications exploded over the past decade, they turned to Silicon Valley computer experts who had developed complex equations to thwart Russian mobsters intent on credit card fraud.

Today, a revolution in software technology that Read the rest of this entry »

Slate shines, another, spotlight on the collection, exchange and aggregation of data in the United States of America in Who’s Watching You? Not Just the NSA.

It provides:

The Hon Micheal Kirby, former High Court Justice, in a recent article, Privacy: An Elusive and Changing Concept, in the Griffith Journal of Law and Human Dignity, and the Hon Justice Peter Applegarth, in a speech in May 2012, Privacy and the media, have provided valuable contributions to a discussion of privacy as a legal construct and its future development, if any, in Australian jurisprudence.

The Kirby article provides a very comprehensive historical background and the influence of overseas developments in the area.  It provides, absent citations:

Daniel Solove is one of leading privacy academics, at Georgetown University,  in the United States.  He is also a prolific author; including Nothing to Hide,  Understanding Privacy and The future of reputation.

In Employers and Schools that Demand Account Passwords and the Future of Cloud Privacy he raises the not unknown phenomana of prospective and actual employers demanding social media passwords so they may access employess/applicants’ social media pages.

The response Read the rest of this entry »