The High Court sitting in the Queens Bench division recently rejected an application by the defendant, Modi, to order a trial on the extent to which the tweet the subject of  the action was read in jurisdiction.  The Defendant applicant argued that issue was relevant to both liabilityand damages. The  High Court ruled that numbers of readers alone was not decisive.

Facts

An expert giving evidence on behalf of Modi estimated that only 35 people viewed the message.  The Defendant argued that, as in Yousef Jameel and Dow Jones , the damage from any libel case would be so small as to be not warrent proceeding and so any case would be an abuse of the court process.

There was conflicting evidence as to extent of publication (see [19] – [ 22]). Cairns’ expert estimated the audience for the tweet to be around 100, by looking at the number of Modi’s followers in the court’s jurisdiction. While Cairn’s counsel accepted that not all of Modi’s followers would have seen the tweet directly, it was argued that some people would have received a communication of it by other means.

Decision and reasoning

Mr Justice Tugendhat found that the number of people who saw the message was only one of a number of considerations in a defamation case. He found at  [34]:

In any event, the Jameel type of abuse of process does not depend on numbers alone.  [Cairns] has resided in this jurisdiction in the past, and expects to return to live here again. There have been recent cases in which the court has declined to strike out claims based on a direct communication to a single publishee.

Mr Justice Tugendhat said Read the rest of this entry »

In September Croft J found for the Defendant in Auswest Timbers v Secretary to the Department of Sustainability. Last Monday in Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability & Environment (No 2) [2010] VSC 513 Croft J considered the costs issues in this proceeding, specifically the operation of Calderbank offers and the appropriate costs orders where it is alleged that a case was hopeless or there was no chance of success from the outset.

Calderbank offers

Croft J undertook a very thorough analysis Read the rest of this entry »

Dr James Popple has been appointed as Australia’s Freedom of Information Commissioner.  Biographical details regarding Dr Popple are found at  http://www.oaic.gov.au/about/exec.html.

Tthe Minister for Privacy and Freedom of Information’s media release announcing the appointment is at  http://www.ministerhomeaffairs.gov.au/www/ministers/oconnor.nsf/Page/Newsroom.

Let the new era of more open access to documents begin!

The Civil Procedure Act willbe proclaimed on 1 January 2011. It will have a significant impact on litigators, both solicitors and counsel, approach and conduct litigation in Victorian Courts and Tribunals.

I will be  providing occasional posts on the  operation of the Act over the next 6 weeks. I have included the second reading speech in its entirety below.

This post focuses on section 1 of the Act. For practitioners the relevant provisons are section 1(2)  is the most relevant provision.  At least in the early stages of this process these provisions will be important in applying the rules of procedure.

It provides

Chapter 1—Preliminary

1   Purposes

(1)  The main purposes of this Act are—

(a)  to reform and modernise the laws, practice, procedure and processes relating to the resolution of civil disputes which may lead to civil proceedings and to civil proceedings in the Supreme Court, the County Court and the Magistrates’ Court and provide for uniformity;

(b)  to simplify the language relating to civil procedure;

(c)  to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute;

(d)  to amend various Acts in relation to the conduct of civil proceedings to reflect the new procedures.

(2)        Without limiting subsection (1), this Act provides for—

(a) overarching obligations for participants in civil proceedings to improve standards of conduct in litigation;

(b)  the facilitation of the resolution of disputes before civil proceedings are commenced;

(c)  the enhancement of case management powers of the courts, including in relation to discovery;

(d)  further enhancement of appropriate dispute resolution processes;

(e)  reform of the law relating to summary judgment;

(f)  clarifying sanctions available to courts in relation to contravention of discovery obligations.

The explanatory memorandum provides:

CHAPTER 1--PRELIMINARY
This Chapter sets out the purpose of the Bill, when the Bill commences,
definitions for terms used and the application of the Bill.

Clause 1   provides  Read the rest of this entry »

From November 1, the Office of the Australian Information Commissioner will be start operating. The Information Commissioner, supported by the Privacy Commissioner and a new Freedom of Information Commissioner, will be a specialist independent monitor with the ability to review FOI decisions and investigate complaints.

The Federal Govenment announced there would be changes to the fee structure being: Read the rest of this entry »

The Privacy Commissioner and ACMA will be investigating a botched mail out by Telstra.  The release provides:

The Australian Communications and Media Authority and the Office of the Australian Privacy Commissioner are looking into the circumstances of a botched mail out by Telstra to its customers.

The mail out resulted in around 220,000 letters with incorrect addresses being sent to Telstra customers. The letters contained the name, phone number and telephone plan of other customers.

‘The ACMA’s main priority Read the rest of this entry »

The Australian reports that the US Electronic Privacy Information Centre has filed suit to stay the roll out of body scanners.  It also reports on the privacy issues in the Australian context.

Interestingly a pilot in the USA has been stood down because he refused to go through a full body scanner. His reasoning sums up the problem:

However, Michael Roberts said he did not want to be harassed or “molested” without a cause.
Mr Roberts also said he has safety concerns and doesn’t actually believe TSA’s ‘make-work’ programs makes flying safer for travellers.Australia plans to rollout of the scanners next year as part of the Federal Government’s crackdown on airport security.

The BBC reports that the Information Commissioners Office will be investigating what personal information Google has gathered from private wi fi networks. The Spanish Data Protection Agency has filed suit against Google.  The Age today reports that the Privacy Commissioner has claimed that Google had breached the Privacy Act in collecting information from wireless networks while undertaking the street view project.

It is hardly news that the law of privacy is a mish mash of poorly drafted legislation, timid regulation by our various commissioners and an all too slowly developing common law.  In the US, where there are privacy statutes, a well developed tort of privacy and constitutional recognition Electronic Privacy Information Centre has given the Obama Administration a very ordinary report card.

Here is the report card: Read the rest of this entry »

In yesterday’s SMH TICA a tenant database company is taking a tenant check to a new, disturbing level of intrusion.  The service will permit landlords to be notified of when a current tenant is looking for alternate accomodation in New South Wales.

The World Today ran a story on the subject.  The transcript is sobering reading.  If this is permissible it is a walking and talking argument for tightening privacy laws. Read the rest of this entry »