The Attorney General Robert McClelland announced appointments to the National Alternative Dispute Resolution Advisory Council (NADRAC). The announcment provides:

“It’s with great pleasure I announce the appointment of Mr Jeremy Gormly SC as NADRAC’s Chair,” Mr McClelland said.

“Mr Gormly has extensive experience in Government disputes and inquiries, as well as in the practice of mediation generally.

“In 2009, Mr Gormly successfully mediated in the resolution of claims arising from the 1964 Melbourne-Voyager collision, which had a number of cases outstanding for many years.

“I am confident Mr Gormly will Read the rest of this entry »

The weekend coverage of the Privacy debate followed a predicted predictable line, with a few rays of hope and sunshine.  As Insiders host Barry Cassidy said yesterday, you will not find too many journalists supporting a tort of privacy.  And how!

In the Australian Chris Merritt slipped into his traditional bellicose stride when dealing with the whiff of any new rights in the offing. He warmed up with Undoing free speech a sop to placate Bob on Friday.  It is more assertion than argument.

THE federal government seems intent on allowing the Greens to destroy Labor’s credentials on free speech.

After permitting the Greens to vandalise the federal shield law for journalists’ sources, the government has decided to embrace the thinking of the Greens on privacy law.

A wild simplification. The interest in greater protections of privacy goes well beyond a political party.  And the interest in this area has been longstanding.

This will have the effect of reversing privacy law reforms that were enacted by Labor state governments just six years ago.

Which ones?

It will also leave federal Labor even further removed from the grand plans for transparency and accountability that were contained in the party’s 2007 election platform.

Pure and utter assertion and just plain wrong.  Having a statutory tort of privacy is Read the rest of this entry »

There is a certain predictability in the reportage when there is genuine agitation of a reform to Privacy laws. Or more accurately giving individuals a cause of action for breach of privacy.  I have been interested in this field since the 1990s.

A tried and true starting point is to claim, via a media expert not a journalist, that the laws are adequate at the moment so why do we need to have yet another form of regulation (which it is not) imposed from above.  And the Age obliges in its piece by Sandip Mukerjea a senior associate at Minter Ellison, in Little evidence Australia needs a new privacy law.  He says, amongst other things

The News of the World saga presents the best and most topical example of this. Were Australian journalists to engage in the type of conduct that is the subject of the British police investigations – and there is not a skerrick of evidence to suggest they have, underscoring doubts over the need for privacy reform – they would almost certainly be guilty of offences under the Telecommunications (Interception and Access) Act and the Commonwealth Criminal Code. The former makes it illegal to access stored communications such as voicemail and email without consent; the latter makes it illegal to pretend to be someone else for the purpose of committing an offence.

As well as criminal liability, the offender is liable under the legislation to be sued for damages by the aggrieved person in relation to any unauthorised accessing of voicemail or email. No tort of privacy required.

As far as it goes that is a fair comment. But so what! The News of the World scandal might have been a prompt for the Government to get the ALRC recommendations out of the bottom draw and do something about it but that does not mean there is a need to provide some form of protection.  And yes hacking a phone in Australia would be a criminal offence. But the suit for damages under legislation is limited and would it afford the victim a chance to commence an action and get some measure of justice for the use of that information for other purposes in a civil court.  Doubtful as the law currently stands.  So yes, the tort of privacy is required.  As a matter of logic why can not a tort of privacy exist concurrently and give the victim the option to exercise a right under one or the other.

Outside the phone hacking context, recent UK cases involving public figures such as Naomi Campbell, Max Mosley and Ryan Giggs have led many to question whether UK privacy law, armed with the right to privacy in the European Convention on Human Rights, has leapt ahead of Australia’s comparatively bland ”breach of confidence” laws. But before our MPs race to deliver second-reading speeches for an Australian privacy provision, consideration ought be given to whether the results of those cases would be any different in Australia.

The High Court has said information pertaining to health and personal and sexual relationships is the sort of information Australia’s existing breach-of-confidence laws should protect. Thus, in recent Victorian cases, the media have been prohibited from publishing confidential drug test results of footballers, and a husband was ordered to pay damages to his ex-wife for distributing a video depicting them engaged in consensual sex. Again, no privacy provision required.

The problem with a breach of confidence action is that it Read the rest of this entry »

In today’s Age, Australian and on AM Justice Minister Brendan O’Connor foreshadowed having a serious discussion about introducing a law of privacy.  It is a very tentative first step, the release of a discussion paper later this year.  The Age provides:

The Gillard government will today move towards new laws that would allow Australians to sue for damages in the event of a serious invasion of their privacy.

Ahead of today’s announcement, federal Privacy Minister Brendan O’Connor told The Age the government was ”very serious about having this discussion” following the UK scandal. He said he was confident any change would preserve reasonable media freedom. ”There are two ideals we uphold as a government – freedom of speech, and people’s right to have a private life,” Mr O’Connor said.

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 »

In Australian Securities and Investments Commission v Healey Middleton J found against the directors of Centro Properties Limited.  It is a very long and detailed decision which provides an excellent summary of the obligations of directors.

Facts

ASIC alleged that the approval of the consolidated financial accounts of Centro Property Limited. Centro Property Trust and Centro Retail Trust for the financial year ending 30 June 2007 contravened sections 180(1), 344(1) and 601FD(3) of the Corporations Act 2001. Those contraventions included failing to disclose $1.5billion of short term liabilities of Centro Property and $500 million of Centro Retail by classifying them as non current liabilities and failing to disclose guarantees of short term liabilities of an associated company of about US $1.75 billion that had been given after the balance date (see [24] for a detailed summary of the issues).  Middleton J found that those matters were well known to the directors or, if not well known to them, should have been [11] & [23].

Middleton J found, at [8], the directors failed “..to take all reasonable steps required of them, and acted in the performance of their duties as directors without exercising the degree of care and diligence the law requires of them.”  His consideration of the facts with respect to each director is found at ([289] – [532]).  It is too extensive to comment upon here.  The focus of this post is on the legal principles enunciated by Middleton J.

Decision

Middleton J highlighted the consequences of the breaches and why they are significant when he said, at [10]:

This proceeding is not about a mere technical oversight. The information not disclosed was a matter of significance to the assessment of the risks facing CNP and CER. Giving that information to shareholders and, for a listed company, the market, is one of the fundamental purposes of the requirements of the Act that financial statements and reports must be prepared and published. The importance of the financial statements is one of the fundamental reasons why the directors are required to approve them and resolve that they give a true and fair view.

Principles

Middleton j restated the obligations and responsibilities of a director as: Read the rest of this entry »