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 »

In Cohen v State of Victoria Nos 3 (“Cohen”) Forrest J ordered indemnity costs against solicitor for the plaintiff, Oldham Naidoo, arising out of the application by the defendants in Cohen v State of Victoria No 2 which resulted in the proceedng being struck out as an abuse of process (which I reviewed here).

Facts

The relevant conduct upon which the court exercised its discretion is set out at [5]:

(a) the issuing of the proceeding on 24 December 2008 in the name of Dr Cohen without obtaining his instructions or authorisation to do so;

(b) the maintenance of the claim (for nearly two years) in the name of Dr Cohen without any communication to him advising that he was the named representative plaintiff and therefore the subject of a number of obligations including that imposed by s 33ZD of the Supreme Court Act 1986 (Vic);

(c) the incurring of a number of costs orders against Dr Cohen – none of which were brought to his attention;

(d) the making of an allegation in the statement of claim central to Dr Cohen’s “claim” which, upon any reasonable investigation, was demonstrably false.

Decision

Principles

The key issues for consideration was whether there should be an award of costs against a legal practitioner acting without the authority of the client and, if so, whether to grant those costs on an indemnity rather than a party/party basis. In support of the former proposition Forrest J referred to the English  case of Fricker v Van  Glutten where his honour 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 »

The Office of the Australian Information Commissioner has launched Principles on open public sector information at the Meta 2011 conference in Canberra.

The Principles provide a framework for government information management in Australia, setting out the central values of open public sector information – that it be freely available, easily discoverable, understandable, machine-readable and reusable.  The Principles were developed by the Office of the Australian Information Commissioner through a process of public consultation, and draw on considerable work in Australia and overseas into best practice government information management.

The principles are:

Principle 1: Open access to information – Read the rest of this entry »

In three rulings relating to group proceedings issued under Part 4 of the Supreme Court Act Forrest J considered an application to regularise proceedings and an application to dismiss on the basis of an abuse of process in Matthews v SPI Electricity Pty Ltd Ruling Nos 1 and,  Cohen v State of Victoria & Ors (No 2) and in Matthews v SPI Electricity Pty Ltd Ruling Nos 2 an application for summary judgment and to strike out aspects of the statement of claim.

Facts

The claim in Matthews arose out of the Black Saturday bush fires.  The firm Oldham Naidoo (“Naidoo”) issued proceedings in the name of a Mr Keane for damages against SPI amongst others. Naidoo did not have instructions from Mr Keanne to issue the proceedings in his name.  Keane asked Naidoo to remove him as a plaintiff, something that did not happen for another year.  Matthews then replaced Keane as representative plaintiff.  After Maurice Blackburn took over conduct of the proceeding it brought Naidoo’s actions to the attention of the court and applied to regularise the proceedings.  The defendants resisted the application and sought variously to strike out the claim and obtain summary judgment.

In Cohen Naidoo issued a group proceeding in Dr Cohen’s name without his knowledge.  Naidoo sought but failed to find a person to be substituted for Cohen.  There had been a substantial history of amendments to the statement of claim. The court considered the application to strike out the proceeding as an abuse of process.

Ruling nos 1 

Lack of authority in a solicitor issuing a proceeding – does it render it a nullity

In opposing the application to regularise the proceeding SPI submitted Read the rest of this entry »

The Minister for Privacy Awareness, Brendan O’Connor, put out a press release stating:

It’s now Privacy Awareness Week. The year’s theme is Privacy: It’s all about you.

The week aims to increase awareness amongst all Australians of the importance of being aware of possible privacy infringements and what steps you can take to protect your privacy.

“Privacy is becoming a greater concern for the average Australian. That’s largely due to the surge in online activity and the greater possibility for collection of our personal information.”

“While it may Read the rest of this entry »

According to digitallife today (amongst others) the iphone is being used to track people.  The article provides:

Your iPhone has a hidden feature: It tracks and records your location constantly whether you want it to or not. What? You wish it wouldn’t do that without your knowledge or consent? Too bad, because there’s not much you can do about the tracking feature right now.

Alasdair Allan and Pete Warden, a pair of security researchers, recently discovered that iPhones — as well as 3G-enabled iPads — running iOS 4 constantly record and store their users’ locations in unencrypted files. These files are basically very long lists of latitude-longitude coordinates and timestamps, and they can be found on the devices themselves as well as within the software backups saved on users’ computers.

Needless to say this has animated privacy advocates in cyberspace.