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 in the Federal Court of Australia is known as discovery. The Rules are to be read in conjunction with the relevant Federal Court practice notes, particularly 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 by categories in a matter before the Federal Court. [Read more…]
Litigation
Emojis used online can be defamatory – watch out!
In the recent New South Wales case of Burrows v Houda [2020] NSWDC 485 , the Court was faced with the difficult question of whether an emoji is capable of having a defamatory meaning. As the case was a first for Australia, the Court relied upon UK case law, as well as the ordinary definition of ‘emoji’, in considering the meaning behind the emoji used. [Read more…]
Preliminary discovery granted in patent proceedings
The Federal Court of Australia has allowed an application for preliminary discovery of documents related to the components of a ‘sealing composition’ and methods of using it to seal passages. In the case of Sovereign Hydroseal Pty Ltd v Steynberg [2020] FCA 1084, the Federal Court considered whether preliminary discovery can be used by a patentee to inform its decision-making in relation to whether to commence a proceeding in respect of potential patent infringement. [Read more…]
Website blocking orders – what has to be proven?
Section 115A of the Copyright Act 1968 (Cth) came into effect on 27 June 2015 and was amended on 11 December 2018 by the Copyright Amendment (Online Infringement) Act 2018 (no. 157, 2018) (Online Infringement Act). The amendments were considered in the case of Australasian Performing Right Association Ltd v Telstra Corporation Ltd [2019] FCA 751 (APRA) which was the first case heard after the 2018 amendments where Justice Perram revisited the factors relevant in determining whether to not to make the orders pursuant to the amended section 115A of the Copyright Act 1968 (Cth) (Act). [Read more…]
When to complain about defective domestic building work
The Queensland Building and Construction Commission Act 1991 (Qld) (Act) provides key requirements and time limitations for dealing with or rectifying defective domestic building work. The recent decision of MacFarlane v Queensland Building and Construction Commission [2019] QCAT 408 (MacFarlane) illustrates the impact of failing to comply with the time frames as they apply to defective building work. [Read more…]
Interpreting release clauses in settlement agreements
Using a settlement agreement to extinguish a legal claim is common practice among most lawyers involved in litigation. These agreements have the benefit of providing certainty to parties and avoiding the costs and risks associated with litigation. However, the decision in IBM Australia Ltd v State of Queensland [2015] QSC 342 (IBM v Queensland) is a reminder that lawyers need to exercise caution when drafting settlement agreements, and in particular compromise terms such as release clauses. [Read more…]
QBCC Home Warranty Insurance Claims – part 3
Part 5 of the Queensland Building and Construction Commission Act 1991 (Act) establishes a statutory insurance scheme, the purpose of which is in certain situations to provide basic assistance to consumers of residential construction work for loss associated with work that is defective or incomplete.
As part of the building process, the builder pays a premium to the Queensland Building and Construction Commission (QBCC) to insure the residential construction work, the amount of the premium being included as part of the contract price and paid to the QBCC before the residential construction work commences. However, many consumers of residential construction work are uncertain about the exclusions under the QBCC Home Warranty Insurance scheme. [Read more…]
Terminating a domestic building contract
Entering into a domestic building work contract is like getting married – if both parties do not act in good faith the ensuing divorce can be very messy. While Part 5 of the Queensland Building and Construction Commission Act 1991 (Act) establishes a statutory insurance scheme, the purpose of which is in certain situations to provide assistance to consumers of domestic building work, earlier articles by Dundas Lawyers have illustrated the pitfalls associated with trying to get out of a domestic building work marriage. [Read more…]
Claiming delay due to COVID-19? Think again.
In the current pandemic parties to legal proceedings may be tempted to apply for an adjournment or further time, citing COVID-19 as the reason for the delay. Certainly the Federal Court of Australia has been quick to respond to the pandemic by changing its procedures and has even conducted entire trials using Microsoft Teams. This article discusses the circumstances where COVID-19 has been used as justification for a delay in proceeding and the Court’s view on granting stays for this reason. [Read more…]
Evidence from the Wayback Machine
The utility of evidence relating to the existence of websites on the internet and their contents sourced from the Wayback Machine is increasingly being considered by Australian Courts. The question is whether or not the Courts will accept reports from the Wayback Machine in practice and if so what will they allow? [Read more…]
