Litigation

Class actions in the Federal Court – what’s required?

Class actions, (Class Actions) as the name suggests, allow a group of people in their capacity as members of a certain class of persons to commence legal proceedings as joint claimants against a respondent.  In the Federal Court of Australia, Class Actions are also referred to as Representative Proceedings.  Not all members of the class need participate in the proceedings, but they may benefit from the outcome of the proceeding. [Read more…]

Using documents received during discovery for another purpose

As a general rule, documents which are received during discovery phase of civil litigation (also known as disclosure in some Courts) cannot be used as evidence in another proceeding.  This is known as the “Harman undertaking”, named after the case where this this precedent was set.[1] [Read more…]

Worldwide asset freezing order by Federal Court – are they possible?

The recent High Court case of Deputy Commissioner v Huang [2021] HCA 43 (Huang) considered the power of the Federal Court of Australia (Federal Court) to make worldwide freezing orders pursuant to rule 7.32 of the Federal Court Rules 2011 (Cth) (Rules).  The decision confirms that worldwide asset freezing orders are open to be made by the Federal Court.   In this case the assets were allegedly in the People’s Republic of China and Hong Kong. [Read more…]

Contemporaneous file notes: why have one and what are the requirements?

Contemporaneous file notes are documentary evidence of direct oral contact pertaining to the facts of a conversation, noted as soon as practicable after a conversation has taken place.  Where there is a conflicting claim regarding an oral instruction or conversation, contemporaneous file notes may provide evidence to the Court beyond that of mere hearsay and may protect the interests of the person who made the note if later relied upon in legal proceedings. [Read more…]

Federal Court – issuing subpoenas internationally

In the Federal Court of Australia, strict rules apply in relation to the issuing of subpoenas.  Additional rules regarding service apply if the party who is to be issued the subpoena (Addressee) is based overseas.  These rules are set out in the Federal Court Rules 2011 (Cth) (Rules). [Read more…]

Ex-employees and IP protection

The importance of protecting your intellectual property cannot be overstated.  Various threats are posed to the confidentiality and exclusive use a company enjoys with their intellectual property.  One (1) such threat is when an employee, informed of the company’s intellectual property, ceases to be an employee of the company.  How can you protect your company’s intellectual property from this ex-employee? [Read more…]

Use of confidential information – the springboard injunction

The “springboard doctrine” is entwined with the concepts of misuse of trade secrets and confidential information and reflects one party’s misuse of another’s confidential information to produce a service or product in a timeframe or manner that would otherwise not have been achievable.  In the recent UK decision in Forse & Ors v Secarma Ltd & Ors [2019] EWCA Civ 215, the Court of Appeal of England and Wales upheld the High Court’s decision to grant an interim springboard injunction and held that injunctive relief in springboard cases “must be no greater in scope or duration than is reasonable to remove a defendant’s unfair competitive advantage”.  This article discusses the legal concept of a springboard injunction as well as the finding in the Forse case and the Australian position. [Read more…]

Is social media chat log a document in Federal Court?

As a general rule, a party to a proceeding in the Federal Court cannot prove the existence of a fact by producing evidence of a statement which they made out of the Court.  This is known as the hearsay rule and is found at section 59 of the Evidence Act 1995 (Cth) (Act).   One (1) of the exceptions to the hearsay rule is in relation to electronic communications.  This allows a person to rely on the communication to prove it was sent to or from one (1) person at a particular time.  To prove a fact of the statement itself is a bit more complicated. [Read more…]

Admissibility of evidence from the Wayback Machine

In a previous article we discussed whether results from the Wayback Machine could be admissible as evidence and the issues surrounding this in relation to the hearsay rule.  A recent decision of the Federal Circuit Court has gone on to consider the authenticity of the screenshots obtained from the Wayback Machine and the relevance of those screenshots. [Read more…]

Business promotion online – liability for comments by others

The recent High Court case of Australian New Channel Pty Ltd v Voller [2021] HCA 27 (Fairfax) found a business which published ‘posts’ on their Facebook page was liable for defamatory comments made by third parties to that post.  Liability may be found irrespective of the publisher’s intent and the relevance of the comment to the original post. [Read more…]

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