For privacy practitioners the problem with transferring data overseas is a real cause for concern. In the Daily Mail’s NHS sends confidential patients’ records to India despite pledges it would not.  The obvious problem is the lax privacy controls in India and the variable conduct of Indian companies.   The purpose for the export is to transcribe notes.  The real problem is matching files to identifiers.  The claims that the firms in India comply with current data protection has a hollow ring to it.  Unless you can enforce the laws of the land there is no point claiming there has been compliance.

In Blackman & Ors v Gant & Anor Vickery J considered a very interesting no case application by the Second Defendant.  This is a case that has drawn considerable press coverage, including in the Australian and the Age.

FACTS (pars 4 – 11)

The Plaintiffs are the artist Charles Blackman and his trustee, Robert Dickerson.  The Second Defendant is Peter Gant, an art dealer.  Gant originally supplied three works of art to a Helen Stewart , another art dealer, together with two valuations of the works.  She was the former First Defendant.  Stewart sold the works to a a Robert Blanche, giving him a copy of the valuations.  The evidence is that Blanche relied upon one of the valuations when purchasing the works and used the other for insurance valuation purposes.  When, later, Blanche was advised that the works were not authentic he returned them to Stewart who refunded his money.  Stewart then returned the works to Gant.   The Second Defendant maintains the works are authentic.  The issue before Vickery J was confined to the Second Defendant’s no case application.

ANALYSIS

The Plaintiffs claim, at [12], that the valuations impliedly represent that the works were authentic and consequently a breach of Read the rest of this entry »

It is a regular feature of the Simpsons to have the good burghers of Springfield transform into a mob is baying for a knee jerk reaction to a complex moral/social issue.  At the moment of truth, when the situation takes its crazy course to high farce, Helen Lovejoy, appears centre stage, panicking and screaming “Will someone please think of the children!” It is wickedly clever satire because the problem, whatever it is, has nothing to do with children or their morals.  Screaming public morals is no new trick Read the rest of this entry »

In a wide ranging and detailed judgment in Equuscorp Pty Ltd & Anor v Acehand Pty Ltd & Ors Hollingworth J considered Anshun principles and abuse of process in the context of an application to amend.

FACTS

The facts are unusual.  The plaintiff, Equuscorp, commenced proceedings against hundreds of defendants who were investors in forestry schemes which collapsed.  Equuscorp was the lessor of properties upon which the forests were located and the defendants were lessees.  Equuscorp sued each defendant individually however it was agreed through case management that there would be a trial against two defendants.  They were not test cases, but clearly their outcome would have an impact on the others.  At trial Equuscorp lost with the court finding that the leases were void for uncertainty and were unenforceable because they contravened the NSW Local Government Act (the land was located in NSW).  An appeal to the Court of Appeal failed.

Later Equuscorp’s solicitors informed a group of the defendants (known as the Mills Oakley Defendants) that they would be amending their statements of claim against the remaining defendants to plead:

1. the agreements in question were not leases but rather licences;
2. a claim of unjust enrichment.

The Mills Oakley Defendants contended that the amendment was an abuse of process, the outcome of the previous trial constituted an Anshun estoppel, the proposed claim was unarguable and they would suffer prejudice not compensible by an order for costs [13].  Daley AsJ dismissed the application to amend.

ANALYSIS

Amendment generally

Aon Risk Services Australia Limited v ANU now dominates decision making on amendment applications.  Hollingworth J considered it in detail providing a very useful synopsis of the guiding principles.  She recounted, at [19] the relevant factors in exercising the discretion to permit amendment are:

(a) The nature and importance of the amendment to the party Read the rest of this entry »

A busy sub set of defamation proceedings isactions involving members of association. In Perry v McIntosh & Ors Kaye J, Justice de jour on matters defamatory, considered an application regarding the adequacy of particulars and an attempt to strike out imputations.

FACTS

The plaintiff and all six defendants were members of the Mustang Owners Club. All bar one defendant were members of the committee with the plaintiff being the treasurer.  It is alleged that after presenting a report to approximately 70 members the President said:

“Does the report which I read out to the meeting from the minutes of the previous meeting make any sense?…I had difficulty following it and the committee had to put up with this treasurer’s rubbish every month.”(“The sixth defendant’s words”). (see [4])

It is also alleged that while the plaintiff was giving his report the defendants interjected with the words “you’re a liar” [5].

PLEADINGS

Regarding the “liar” allegations the Plaintiff alleges the ordinary and natural meaning of those words were that:

(1) The plaintiff was a liar; and

(2) The plaintiff was not a fit and proper person to hold office in the club as Treasurer or otherwise. (see [7])

Regarding the “rubbish” allegatons the Plaintiff alleges the ordinary and natural meaning of those words were that:

“a. The plaintiff was an incompetent treasurer of the club;

b. The plaintiff produced Treasurer’s reports which were inaccurate, worthless and nonsensical;

c. The plaintiff’s methodology for creating financial reports for the committee and the members were so lacking in form and substance that his reports were rubbish;

d. The plaintiff as treasurer prepared his reports for the Club in such manner that the committee and members could make no sense of the same.” (see [21])

THE ARGUMENT

The Liar issue

The Defendant argued that there were inadequate particulars.  The Defendants argued Read the rest of this entry »

Its raining Calderbank offers!  In three separate and unrelated decisions last week  the Supreme Court considered both the body of relaw relating to Calderbank Offers and their application to the facts.

Sanelli v Sanelli & Anor

Mukhtar AsJ in Sanelli considered a very full throated application by the plaintiff for indemnity costs.  At [29] Mukhtar AsJ Read the rest of this entry »

Peter Van Onselen writes well…. on subjects of which he knows something about.  Mainly the ins and of political strategy and tactics.  He isn’t bad at analysing political personalities.  Political theory and history is, however, a real walk on the wild side for him.  There is no stronger example than his mighty attempt at justifying the Abbot parental leave scheme as being consistent with Liberal/conservative/utilitarian philosphy in Abbott’s scheme is perfectly Liberal.

Van Onsolen uses Liberal touchstones to bolster his case – Menzies and the Forgotten People speech.  The former is a Liberal deity, the latter part of the sacred texts of the Party.  Nice touch.  But intellectually sloppy.

First as to Menzies.  The name is not a term and, even if it were, the term is not a philosophy.  As to the Forgotten People speech, it was a good, even great speech used by Menzies just after the United Australia Party collapsed and the Curtin became Prime Minister.  Menzies, the consummate politician, used to as an early step to give form to a new party and in it he identified the natural constituency, the middle class.  It was not an Australian take of “On Liberty”.  He wasn’t trying to out Burke Edmund Burke.  It was an opening stanza in a concert that ended in a conference in Albury where the Liberal Party was formed.

Quoting from the sacred text is just intellectually dishonest.  He says:

The notion that Liberals aren’t supposed to embrace big-picture ideas that promote social policy improvements ignores the words of Menzies when he pointed out that most Australians “see in their children their greatest contribution to the immortality of their race. The home is the foundation of sanity and sobriety; it is the indispensable condition of continuity; its health determines the health of society as a whole.”

Nearly 70 years on, that sounds like a good reason to back a generous parental leave scheme.

What complete and utter twaddle. It presupposes Read the rest of this entry »

In Bernstein v Georgakakis & Anor Beach J analysed an application for removal of a caveat placed in August 2005 over property owned by a sole proprietor but arising out of an agreement between her husband and someone he was in business with.   It is a useful judgment in both restating principles but in dealing with equitable interests in this (unusual) fact situation.

His Honour sets out the principles at [5] & [6] regarding the principles applicable in removing caveats under section 90(3) of the TLA, namely:

• it is broadly analogous to determination of interlocutoryinjunctions – the power is discretionary;
• the caveator has the onus of establishing there is a serious question to be tried that he has an interest in the land; and
  
• the balance of convenience favours maintenance of the caveat until trial;

The evidence

The agreement, reproduced at [7], in this case is exhibit A as an example of what to avoid when seeking to make a claim for an equitable right over property. The agreement seemed to relate to an agreement between the Plaintiff/sole proprietor’s husband and a putative business partner regarding purchase of shares in a pet food business.  His Honour forensically analysed the many deficiencies in the agreement, at [17] – [26].  The first observation made was that it consisted of 5 recitals and no operative clauses. The problems included the agreement:

• requiring the husband to pay $3 million for 15% share in a company that had not been established at the time of the agreement;
• referring to the parties a creditor and debtor respectively.  Hardly consistent with an investment;
• in one part limiting the interest to $3 million, at another recital registering the interest for not less than $3million.

Unusually in such applications the deponents were cross examined and his Honour found that that sole proprietor never knew of this agreement.  In examining the enforceability of the agreement Read the rest of this entry »

An intereting piece in Times Online about a pending settlement in favour of Kate Middleton, bride presumptive of Prince William, for breach of her privacy.  The settlement sum, presumably not a confidental agreement, is 10,000 pounds plus costs as well as withdrawal of the photographs and a public apology.  Interestingly the photographs in question were not even published in England.  That shouldn’t go to liability but I think would be relevant on the question of Read the rest of this entry »

Yep, I fell for it.  The Age’s report,  Pamela’s cheeky ad deemed a touch too much, prompted a quick youtube search and voila there it is:

As usual with banned ads which are in the modern vein of burlesque the complaint is objectification of women.