Compilations from the public domain – confidential or not?

In the case of Ezystay Systems Pty Ltd v Link 2 Pty Ltd [2014] NSWSC 180 (Ezystay) it was held that the plaintiff’s business manuals were confidential despite having been compiled from the documents in “public domain”.  On Appeal, the Court had to re-visit the test for confidential information to determine whether or not the respondents’ software, business manuals and other documents collated from the public domain were in fact capable of being protected as confidential information.

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Shareholder oppression – valuation issues

Shareholder oppression or minority shareholder oppression can occur when the majority (shareholder(s)) in an entity misuse their majority to oppress or control the minority shareholders.  There are is not a limited number or combination of activities which the majority may engage in to oppress the minority, sometimes referred to as “sharp practice” or “board room tactics”, the possibilities are almost infinite. [Read more…]

Tort of conspiracy & confidential information

The tort of conspiracy has been well established in Australia by the High Court, however it is a fairly uncommon cause of action.  The High Court has endorsed some early UK decisions with respect to damage, including the cases of Mogul Steamship Co v McGregor Gow & Co [1892] and Sorrel v Smith [1925] AC 700.  [Read more…]

Risks of making financial forecasts

When a business is seeking to raise capital or advertise as being for sale financial forecasts are often made in a way so as to appeal to the target audience – investors or potential buyers.  In some cases however, the forecasts made do not translate into reality giving rise to potential legal consequences.  As forecasts are indicators often relied used by investors to make decisions on whether or not to invest, statements that are incorrect may amount to misleading and deceptive conduct under the Australian Consumer Law (ACL) (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)) and have potentially serious legal consequences. [Read more…]

The end of the innovation patent in Australia

The innovation patent system was originally introduced in 2001 to provide a cheaper, more efficient way for small to medium businesses to protect innovations through the introduction of the ‘innovative step’ test.  Innovation patents provide protection for inventions that do not meet the inventive step threshold required for standard patents.  However, the recent Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Bill 2019 (Bill) will see the complete abolition of the innovation patent system in Australia. [Read more…]

IP contracts now subject to restrictive trade practice provisions

Agreements providing for the conditional licensing or assignment of intellectual property (IP) rights are now subject to the restrictive trade practice provisions of the Competition and Consumer Act 2010 (Cth) (CCA).  On 13 September 2019 section 51(3) of the CCA was been repealed removing the exception which applied to the licensing and assignment of IP.   This means commercial transactions involving the assignment of IP rights will be subject to the anti-competitive prohibitions, as are other transactions involving property. [Read more…]

Has my software been copied? – the legal test

There is an urban myth that something can be copied and changed by 20% or so and then there is no copyright infringement.   Rightly or wrongly this is simply untrue.  In the case of IPC Global Pty Ltd v Pavetest Pty Ltd (No 3) [2017] FCA 82 (IPC Global), a former employee of the applicant copied source code and passed it to a developer.  It was subsequently alleged that in doing so, the respondent had breached a contractual obligation of confidence and had also breached the applicant’s copyright. [Read more…]

Company money is for company purposes

In order to properly discharge their obligations to a company which they are appointed, directors must be satisfied that they are using company money for ‘proper purposes’.  By treating the company interests as their own interests they may be in breach of their fiduciary duties and engaging in conduct that would be oppressive to the rights of shareholders.  This article will explore the principles that underpin when it is appropriate for company funds to be used.  In short, company money must only be used for company purposes. [Read more…]

What is a risk management framework?

A risk management framework is a key component of an overall governance framework.   As the name suggests it focuses on risks faced by the business.  Typically, a governance framework will document the approach an organisation takes to managing risks and include details of:

  • Risk appetite – being a measure of the level of risk an organisation is willing to assume;
  • Risk tolerance – being a measure of the amount of risk an organisation is capable of absorbing; and
  • Risks – being details of the types of risk which the organisation faces and seeks to avoid, mitigate or accept.

In developing a risk management framework an organisation should refer to AS ISO 31000:2018 Risk Management Guidelines which sets out the process principles and framework for risk management.

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Implied contracts formed post term

It is not uncommon, where good business relationships exist, for the parties to continue to work together after the expiry of a fixed term contract (Expired Contract).  This typically occurs where there is a fixed term for the agreement and that termination date comes and passes.  While it is great to form such good business relationships, contracts are there for a purpose and there are no guarantees that good business relationships will persist.

So what is the nature of the contractual relationship between the parties in such circumstances?

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