In Re Australian Property Holdings Limited (in liq) (recs & mgrs apptd) (No 2) [2012] VSC 576  Robson J considered applications by the defendants to stay the proceedings, which was refused, and to file limited defences, which was granted.

FACTS

Australian Property Custodian Holdings (“APCH”) commenced proceedings in the Supreme Court against seven of its former directors to recover $30 million that was paid out of its assets it held on trust as a fee to companies controlled by Mr Lewski [1].  ASIC  commenced action in the Federal Court against APCH and 5 of its directors who are also defendants in this proceeding alleging breaches of the Corporations Act (“the Act”).

APCH is the responsible entity of the Prime Retirement and Aged Care Property Trust, a managed investment scheme under the Act [5].  In 2006 the constitution of the Prime Trust was amended by the board of APCH to provide for a payment of a listing fee to APCH if units of the Prime Trust were listed on the ASX [7], which they were in August 2007[8] and APCH received $33m out of the assets of the trust. The Supreme Court proceedings were commenced by the liquidator on 5 March 2012 in the name of APCH [13] and a statement of claim was filed and served against all defendants for compensation under sections 1317H and HA or 1325 of the Act as well as a claim for equitable compensation[14]. ASIC commenced proceedings in the Federal Court on 21 August 2012 [15].

Both proceedings allege that APCH breached its statutory duties under the Act in amending the trust to the detriment of the unit holders [10] and both rely upon section 601FD [11].

DECISION

STAY OF PROCEEDINGS

The Supreme Court has an inherent power to stay proceedings in the interests of justice [19] (which is the overriding consideration [24]).  His Honour set out, at [21], the relevant principles regarding a stay found in McMahon v Gould as follows (absent citations):

(a) Prima facie a plaintiff is entitled to have his action Read the rest of this entry »

On Friday the Government published both the names of the Commissioners of the Royal Commission and the Letters Patent (containing the terms of reference). The homepage is found here.

The Commissioners are, together with their descriptions:

Private litigation under the Privacy Act is quite uncommon.  Part of that is no doubt due to the limited scope for a person to bring such an action under the Act.  It is essentially limited to section 98.   The other reason may be a lack of knowledge of the operation of the Act.  Many think of the Privacy Act as being essentially a means to regulate the retention and use of personal information.  And to a large extent tht is its function.  But not exclusively.

In a very interesting speech titled Privacy Litigation: Substantive lessons and tactical trends – Smallbone v New South Wales Bar Association, delivered to the 2nd National Information Law Conference in Canberra on 15 November 2012 Justice Griffiths considered the use of the Privacy Act by a barrister, Smallbone, to obtain procedural fairness in his application for silk..

The speech highlights the impact of the Privacy Act on the activities of private organsiations and how how it can be used as a vehicle of proecdural rights, in particlar the requirement to afford an individual procedural fairness, that would not otherwise be available to a member of such an organisation as well as a right to access and correct personal information.  In an era of big data and its collection by private organisations this is an important right.

The speech warrants detailed consideration by those interested in privayc issues generally but those who practice in the area of privacy law.  It provides (less numbering and citations):

Introduction

Hollywood has its Oscars; the AFL has its Brownlow Medal night; the NRL has its Dally M awards; and the NSW Bar has a day in October when Read the rest of this entry »

The Age and the Guardian report that Ned RocknRoll has obtained an interlocutory injunction in the High Court in the UK restraining the Sun newspaper from publishing embarrassing photographs of him at a fancy dress party.

The Guardian article provides:

 Kate Winslet‘s husband, Ned Rocknroll, has won his high court bid to prevent the Sun from publishing “embarrassing” pictures of him partly naked at a fancy dress party.

Lawyers for Rocknroll argued that his privacy would be grossly invaded if pictures Read the rest of this entry »

The Civil Procedure Amendment Act 2012 will come into effect on 1 May 2013.

The key amendments relate to orders the court may make on costs, the conduct of experts and expert reports and amendments to the certification process.  Those provisions as well as the explanatory memoranda are extracted below. The transitional provisions are not extracted below.

 The material amendments are:

Part 4.5 of Chapter 4 (Costs)

65A Order to legal practitioner as to length and costs of trial 

(1)     A court may Read the rest of this entry »

Every Christmas I can’t resist posting one of the most famous and moving editorial pieces about the spirit of Christmas.  The Yes Viriginia there is a Santa Claus” response to an innocent enquiry of an eight year old.  It is found here (as well as many other places including here).

It is worth setting out the entire exchange

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 have been affected by the skepticism of a skeptical age. They do not believe except they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be men’s or children’s, are little. In this great universe of ours, man is a mere insect, an ant, in his intellect as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, Virginia, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. Alas! how dreary would be the world if there were no Santa Claus! It would be as dreary as if there were no Virginias. There would be no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.

Not believe in Santa Claus! You might as well not believe in fairies. You might get your papa to hire men to watch in all the chimneys on Christmas eve to catch Santa Claus, but even if you did not see Santa Claus coming down, what would that prove? Nobody sees Santa Claus, but that is no sign that there is no Santa Claus. The most real things in the world are those that neither children nor men can see. Did you ever see fairies dancing on the lawn? Of course not, but that’s no proof that they are not there. Nobody can conceive or imagine all the wonders there are unseen and unseeable in the world.

You tear apart the baby’s rattle and see what makes the noise inside, but there is a veil covering the unseen world which not the strongest man, nor even the united strength of all the strongest men that ever lived could tear apart. Only faith, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, Virginia, in all this world there is nothing else real and abiding.

No Santa Claus! Thank God! he lives and lives forever. A thousand years from now, Virginia, nay 10 times 10,000 years from now, he will continue to make glad the heart of childhood.

The meaning of Christmas goes well beyond the beautiful words written over a hundred years ago but these sentiments, if followed, are often enough.

Griffiths J in Platinum Communications Pty Ltd v Computer Networks Pty Limited [2012] FCA 1260 considered an amendment to application to set aside a statutory demand.

FACTS

The plaintiff, a retailer, and the defendant, a software provider, entered into an agreement whereby the plaintiff would use the defendant’s software under licence and receive related services for payment [1].  When the software was switched on the plaintiff suffered difficulties in many of its stores [7].  The plaintiff claimed Read the rest of this entry »

The Economist in Know thyself, undertakes a brief review of the data locker phenomena (including as a privacy protection device).

It provides:

On 12 December Lord Justice Leveson gave his second speech in a week, titled Hold the Front Page – News gathering in a time of change.  It is a broad ranging consideration of the law and the internet.

It provides:

Introduction
1. It is a real privilege to have been asked to give this public lecture and, echoing the Vice Chancellor, I am pleased to acknowledge that we are standing on the land of the Wurundjeri people and to pay respect to their Elders and families past and present. I would also like to thank the Centre for Advanced Journalism at the University of Melbourne for the invitation. I am delighted to be here.
2. I hope you will forgive me for providing some context to what I am about to say. As you are aware, I have spent the last 17 months engaged in an Inquiry into the culture, practices and ethics of the press. The Report was published nearly a fortnight ago, on 29 November 2012, and, as I have said before, it may be that some of you are hoping that I will elaborate. If you Read the rest of this entry »