What is a Mareva Order?

A Mareva order (Mareva Order), also known as a freezing order or asset protection order, is a special type of interlocutory injunction which restrains a defendant from dealing with the whole or part of their assets pending the outcome of legal proceedings.  In preventing a defendant from disposing of their assets in a way which may deprive the plaintiff of an effective remedy, Mareva Orders are a tool to prevent an abuse of court processes and protect the proper administration of justice.  In Queensland, Mareva Orders are dealt with in Chapter 8 Part 2 Division 2 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). [Read more…]

Discovery in the Federal Court of Australia

On 1 August 2011 the Federal Court of Australia (Federal Court) adopted the Federal Court Rules 2011 (Cth) (Rules) and its revised regime for discovery.  The Federal Court does not require parties to provide disclosure as a matter of course.  Instead, if a party wishes to receive documents from another party (or a third party), they must seek the Court’s permission.  This process is known as discovery.  The Rules are to be read in conjunction with the associated Federal Court practice notes, relevantly Central Practice Note: National Court Framework and Case Management (CPN-1) and Intellectual Property Practice Note (IP-1).  In this article, we consider the process of seeking discovery of documents in a matter before the Federal Court. [Read more…]

The importance of evidence and its ubiquity

A fundamental step when preparing for any litigious matter is to gather evidence to support your legal position.  In Queensland, the rules of evidence are located in a number of pieces of legislation, together with a large body of case law.  The focus of this article is to provide a brief overview of evidence and why it is crucial for a party to any civil litigation matter to devote adequate resources to locating it. [Read more…]

What is your duty of disclosure?

In a litigious matter, once all the parties in the proceedings have filed their pleadings (documents such as a Statement of Claim, Defence and Reply), pleadings are said to have ‘closed’.  Once pleadings have closed, parties to legal proceedings in State based courts are usually obliged to provide disclosure.  Note that this article does not discuss the disclosure obligations in the Federal Court where the obligations regarding disclosure are different.  To many, this process may seem daunting and confusing, so in this article we consider the key elements of disclosure in Queensland under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). [Read more…]

Do you need to disclose a computer database?

In a litigious matter in the Queensland Courts, once all the parties in the proceedings have filed their pleadings (documents such as a Statement of Claim, Defence and Reply), pleadings are said to have ‘closed’.  Once pleadings have closed, parties are then under an obligation to provide disclosure.  A critical element of providing disclosure is determining what documents each party has a duty to disclose.  In this article, we consider whether or not a computer database is capable of being disclosed. [Read more…]

What if neither party to proceedings takes a step?

It is common for legal proceedings to go for extended periods without any steps being taken by either party.  Each Court has its own rules limiting the actions that parties may take after extended periods of inaction.  In the Queensland Courts, these rules are contained in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). [Read more…]

Vesting of unperfected security interests on liquidation – register or perish!

Under section 267(2) of the Personal Property Securities Act 2009 (Cth) (PPSA), a security interest granted by a company or individual (Grantor) in favour of another (Secured Party), may, if it is not previously perfected, upon insolvency or bankruptcy of the Grantor (as the case requires), vest with the Grantor and not the Secured Party.   In other words you may lose the property which is subject of the unperfected security interest! [Read more…]

Satisfying the evidentiary burden for a search order

An Anton Piller Order is usually made without the presence of the respondent (ex parte) and consequently the Courts require the satisfaction of a high evidential threshold before granting orders of this nature. They are usually made in intellectual property cases but their utility extends to employment matters involving breach of confidence, both equitable and contractual, as well as other breaches of contract.[1] [Read more…]

Revenge porn – legal options

Revenge porn (Revenge Porn) refers to sexually explicit media that is distributed without the consent of the individual(s) involved.[1]  An act of Revenge Porn therefore involves the recording of video or still images of a person that is usually engaged in sexual acts (Revenge Content) and publishing or threatening to publish it.  A persons participation may be  consensual or non-consensual with the photographer subsequently uploading the Revenge Content to revenge porn websites with links to social media websites with the intent of humiliating the person depicted.

The ubiquity of devices with picture and video capability coupled with social media that has created numerous opportunities for the recording and distribution of Revenge Content.  [Read more…]

Anton Piller orders – preventing evidence destruction

By Malcolm Burrows

What is an Anton Piller order?

An Anton Piller order, also known as a search order, is an order of a Court requiring one party (Respondent) to allow the other party (Applicant) to enter the Respondent’s premises to inspect, remove or make copies of documents or other items which might form evidence in an action or proposed action against the Respondent.

Anton Piller orders take their name from the seminal case of Anton Piller KG v Manufacturing Processes Ltd.[1]  They are primarily sought in intellectual property related cases, but also commonly used in employment and other matters involving an equitable or contractual breach of confidence or breach of contract.  They may also be used in family law proceedings. [Read more…]

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