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…]
Litigation
Can email trackers be submitted as evidence?
31 August 2021 by
Whether email trackers, read receipts and similar indicators that show an email has been received and, ostensibly, read can be submitted as evidence has not been substantially considered in standing jurisprudence. This article briefly considers whether, in light of existing case law, email trackers can be submitted as evidence. [Read more…]
International companies can be bound by Australian privacy laws
31 August 2021 by
The recent determination by the Australian Information Commissioner and Privacy Commissioner, Angele Falk, (Commissioner) in Commissioner Initiated Investigation into Uber Technologies, Inc. & Uber B.V. (Privacy) [2021] AICmr 34 (Uber) provides further guidance on the extraterritorial connection of the Privacy Act 1988 (Cth) (Act) though the ‘Australian link’ set out in subsections 5B(2)-(3) (Australian Link). This article discusses how the Office of the Australian Information Commissioner (OIAC) will assess whether an entity has an Australian Link to legally bind international entities to the Act. [Read more…]
High Court clarifies meaning of casual employment
16 August 2021 by
In WorkPac Pty Ltd v Rossato [2021] HCA 23 (WorkPac) the High Court has overturned the decision of the Full Federal Court and confirmed that a casual employee is an employee who does not have a firm advance to continuing and indefinite work. Such employment has to be assessed with respect to written contractual obligations of the parties, rather than the entirety of the relationship based on the conduct of the parties. [Read more…]
Can an AI be an inventor under the Patents Act 1990 (Cth)
4 August 2021 by
In the recent decision of Thaler v Commissioner of Patents [2021] FCA 879, Beach J rejected the Deputy Commissioner of Patents’ (DCP) determination that, due to the inventor being named as an artificial intelligence system (AI) rather than a human, a patent application did not comply with the Patents Regulations 1991 (Cth) (Regulations). [Read more…]
What is a Norwich Pharmacal order?
2 August 2021 by
In situations where an innocent third party has information about conduct which may assist a litigant, an applicant apply to the Court to have that third party disclose such information. For example, a bank which has knowledge of a transaction or conduct that would assist a litigant it may be obliged to hand over the information sought. Orders such as this are known as Norwich Pharmacal orders and evolved from the case of Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (Norwich Pharmacal). [Read more…]
Interlocutory injunctions and undertakings as to damages
29 July 2021 by
An interlocutory injunction is an order made by the Court prior to trial either preventing or requiring some undertaking to be taken by one or more parties. The Courts acknowledge that the imposition of such an interlocutory injunction on a party is not necessarily final and is subject to change. As such, an undertaking as to damages is usually required by the party seeking an interlocutory injunction (Applicant). This article discusses the established principles the Court will use to discern whether an Applicant has an adequate case for granting an interlocutory injunction. [Read more…]
Costs in unfair dismissal applications – part 4
28 July 2021 by
Previous articles by Dundas Lawyers have looked at the difficulties confronted in obtaining a costs order against an unsuccessful party in an unfair dismissal application (Application). To recap, section 611(1) of the Fair Work Act 2009 (Cth) (FWA) holds that a party to an Application, be it the complainant employee or the respondent employer, must bear its own costs in relation to a matter before the Fair Work Commission (FWC). However, there are circumstances when the other side’s costs can be imposed on a party to an Application. This article outlines these circumstances. [Read more…]
Calculating account of profits for trade mark infringement
28 July 2021 by
Where a Court has determined that a trade mark has been infringed, the plaintiff (Plaintiff) must elect between receiving an account of profits or damages as a remedy. This article discusses how the Courts have determined the total to be awarded to the Plaintiff where an account of profits is chosen . In short, an account of profits requires the infringer to give up their ill-gotten gains to the party whose rights have been infringed.[1] [Read more…]
Unjustified threats of trademark infringement
16 July 2021 by
Where a party threatens another with legal proceedings for trademark infringement the recipient of the threats may have grounds to commence proceedings for making unjust threats. In other words where the threats are unjustified the recipient may apply to the Court for relief from the unjust threats. [Read more…]
