Today’s report in the Daily Telegraph and Age highlights a growing trend of serving individuals on line.  A police officer served an intervention order by substituted service upon allegd cyber stalker by placing documents on his Facebook page and a video of the order.

The process as described is fascinating. It provides:

In an Australian first, Senior Constable Stuart Walton made a video of himself reading an interim intervention order to the accused man, as if he was directly speaking to him and serving him the order.

The officer was handling a complaint made by a woman about her former boyfriend, whom she claimed had bullied her using Facebook.

The order, explanation and telephone contact numbers were transcribed and sent in private messages to the man’s Facebook account.

The woman had told police on August 23 that she was being threatened, bullied and harassed via the site.

There had been a history of domestic violence in their relationship and an intervention order had lapsed when the woman was contacted by her former boyfriend via Facebook.

After sending the papers and video, police could not confirm whether or not the message had been read by the man, but they were able to ascertain the video had not been opened.

The order also required him to take down his Facebook profile.

The method of serving the order was upheld indefinitely by a magistrate despite the man not attending court.

Sen-Constable Walton then served the final order, again via Facebook, and later learned that although the video wasn’t opened, the messages had been read when he caught up with the accused man a week later.

There is not much precedent in this exercise. It is highly unlikely that the recipient will appeal.  It doesn’t involve property rights or a significant impact on a person’s liberty. That said the move is on.  It is a matter of time before court process in civil matters will be served on line. The real issue issue is whether this will remain a means of substituted service or a matter of course.

On Wednesday Facebook introduced 3 features which should improve privacy controls for those who seek it.  Acording to the report:

The biggest change for users will be the new groups feature, which allows people to identify small circles of friends on the site, and share specific information and communicate with just those people.

Users can decide whether the groups are public or private, and choose which information they want to share with each group. Previously, Facebook allowed users to create lists of friends, but Mr Zuckerberg said only about 5 per cent of users ever took advantage of the feature.

The problem is, Facebook has form.  It won’t be taken as repenting its evil ways just yet at least as far as Steve Hutchison of the Age is concerned.

The Age today reports that Jan Beer will be taking Melbourne Water to VCAT claiming a breach of her privacy, presumably under the Victorian Information Privacy Act. The complaint appears to focus on data being collected via photographs and recording of Mr Beer’s movements.  If that is correct it is a very circumspect way of enforcing privacy rights.

Taking an action to VCAT for what is, or should be, a tortious or equitable claim is a poor alternative.  Unfortunately until the legislature decides to accept the VLRC report on privacy and creates a statutory right of action this is the only alternative. At the moment it would be very difficult to rely on equitable principles to claim a breach of privacy/breach of confidence.

The problem with bringing an action under the Act and through VCAT is the limited remedies available.

The New York Times ran a story about Tyler Clementi committing suicide three days after his roomates videotaped and streamed online him engaged in a consensual sexual act with a male.  Mr Clementi’s roommate, Dharun Ravi, 18, and another classmate, Molly Wei, 18, had each been charged with two counts of invasion of privacy for using ”the camera to view and transmit a live image” of Mr Clementi.

The most severe charges carry a maximum sentence of five years in jail.   Mr Ravi was charged with two additional counts of invasion of privacy for attempting a similar live feed on the internet on September 21, the day before the suicide. A spokesman for the prosecutor’s office said the investigation was continuing.

In the follow up story there is a significant debate at Rutgers on what if any other protections can be put in place to protect student privacy.

In Victoria the actions are probably a breach of the Surveillance Devices Act 1999 which provides at section 7(1):

” a person must not knowingly … use … an optical surveillance device to record visually or observe a private activity

to which the person is not a party, without the express or implied consent of each party to the activity.”

All of that is predicated on the prosecuting authority pressing charges.  What if someone wanted to bring a civil action.  The facts probably fit within the breach of confidence action under Giller v Procopets. It would be better if the legislature, State or Federal, adopted the ALRC, NSWLRC or the VLRC reports on Privacy and legislate a statutory tort of privacy.

In two recent decisions the Victorian Supreme Court considered the issue of what is meant by genuine dispute for the purposes of setting aside a statutory demand under section 459G(1) of the Corporations Act with the Court in  Freestyle Energy Limited v Renewtek Pty Ltd finding there was a genuine dispute while in  Re LPD Corporation Pty Ltd the Court refused to set aside a statutory demand.  In the third decision, Renegade Rigging Pty Ltd v Hanlon Nominees Py Ltd, the Court considered the service of statutory demands.  These decisions which will be of use to practitioners who practice insolvency law.

LPD Corporation

In determining whether there was a genuine dispute Davies J set out the relevant principles:

1. any dispute must be a genuine dispute [3] and one which is bona fide and Read the rest of this entry »

The High Court’s decision in Spencer v Commonwealth of Australia is a useful consideration of the principles related to summary judgment applications.

FACTS

Mr Peter Spencer has conducted a vigorous campaign in the public arena and through Federal Court litigation against land clearing legislation and the attendant regulations.  A very useful summation is found at the ABC Law Report site.   He commenced proceedings against the Commonwealth in the Federal Court alleging that the restrictions imposed upon land clearing by New South Wales legislation constituted an acquisition of property. Because those laws were enacted in furtherance of an agreement with the Commonwealth such acquisition was made for the purpose of obtaining land other than on just terms and, accordingly, in breach of section 51(xxxi) of the Constitution.  The primary judge dismissed Mr Spencer’s claim pursuant to Rule 31A of the Federal Court Rules, the summary judgment provisions (see pars [10] – [13]).  The Full Court  dismissed Mr Spencer’s appeal (see [14] – [16] for more detailed discussion).

ISSUES

The decision, while unanimous, was considered in separate judgments of French CJ and Gummow, that of Hayne, Crennan, Kiefel and Bell JJ and a short judgment of Heydon J.  Rule 31A provides:

“(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Court has apart from this section.”

Per Hayne, Crennan, Kiefel and Bell

Their Honours regarded the starting point of any enquiry is, at [52], whether “..there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.”  The no reasonable prospect test differs from earlier rules of procedure relating to summary judgment applications where the exercise was a determination as to whether a proceeding would necessarily fail ([53]) with the test “requiring certain demonstration of the outcome of litigation, not an assessment of the prospect of its success” [54].

Their Honours in posing the question of how the expression “no reasonable prospect” should be understood Read the rest of this entry »

A ray of light comes from the UK on a civil liberties issue.  The Identity Documents Bill 2010 – 11, introduced on 26 May 2010 and read a second time on 9 June 2010, considered by Public Bill Commitee will be returned to the House  for a report by the Committee on 15 September 2010.  The main purpose of this Bill is to abolish identity cards and the National Identity Register; it repeals the Identity Cards Act 2006. Curious that a Conservative Liberal Democrat Governent would overturn such a blight on liberties enacted by a Labor Party. The previous government had so seriously trashed any reputation it did have for protecting rights,with ASBOs and reducing jury trials being just two examples, that it isn’t so curious.

Herein lies a salutory lesson.  Australia came very close to having an ID card, first Read the rest of this entry »

The recent report in the Age that two science fiction stories by Stieg Larsson have been discovered. The Swedish National Library will now decide whether they will be made public.

Retrieval of famous author’s earlier burnt offerings are quite common Read the rest of this entry »

I was initially appalled by the media’s intrusion into Matthew Newton’s admission for in patient treatment for substance abuse.  That is one of those matters where privacy should be afforded.  In UK the House of Lords found it so with Naomi Campbell in Campbell v MGN Limited. The media, especially the tabloid press. were all over it. There are similarities in the cases. Both Read the rest of this entry »

Last Friday there was judgment for Bruce Guthrie in Guthrie v News Limited.  It was a very high profile case, at least in Victoria. It is a long and quite complicated decision.

FACTS

After some negotiations, [5] – [6], News Limited (“News”), engaged Bruce Guthrie (“Guthrie”), as editor in chief of the Herald Sun, commencing 19 February 2007.  From March 2007 differences emerged between Peter Blunden (“Blunden”), the managing director (and previous editor) and Guthrie.  In August and October 2008 there were significant arguments between Guthrie and Blunden. On 11 October 2008 John Hartigan, the chairman and CEO of News, came to the view that the working relations between these two senior executives had irretrievably broken down and decided to terminate Guthrie from his position. He did so on 10 November.  Hartigan sought to keep Guthrie within News, suggesting a position in Sydney.  Guthrie declined stating that he had just purchased a house in Melbourne, was selling his Sydney home and his eldest daughter was doing her final year of school.

ISSUES

Kaye J set out, at [18],  the issues for determination as:

(1) Did the contract of service between the plaintiff and the defendant entitle the defendant to terminate the plaintiff’s employment in November 2008, before the expiration of the three year period of service set by the contract?

(2) If the contract of service did contain a provision entitling the defendant to terminate the plaintiff’s contract of service in November 2008 –

(a) was there an implied term of the contract that the defendant would act in good faith in exercising that power under the contract;

(b) if so, did the defendant breach such obligation of good faith in terminating the plaintiff’s employment with it?

(3) If the defendant breached the contract of service by terminating the plaintiff’s employment in November 2008, is the plaintiff entitled to make a claim for damages, arising from such breach, comprising the loss of opportunity by him, in February 2010, to obtain a renewal of that contract of service?

(4) If the plaintiff is entitled to maintain such a claim for loss and damage, did the plaintiff lose such an opportunity of renewal of his contract of service, by reason of the termination of his employment in November 2008, and, if so, what is the value of that lost chance to the plaintiff?

(5) Alternatively, is the plaintiff entitled to claim the additional payment asserted by him as the alternative basis by which he claims loss and damage?

(6) If the plaintiff is entitled to claim the termination payment, what is the amount of that payment?

DECISION

His Honour undertook  a very detailed analysis of the evidence and counsel’s submissions upon it, [75] – [165].  His Honour’s findings with respect to News’ witnesses were, on material issues, quite negative.

LOSS OF OPPORTUNITY

Kaye J found there were conflicting lines of authority regarding Read the rest of this entry »