Litigation and disputes

What is tracing in civil litigation?

Tracing is a mechanism by which civil litigants which may be able to show how certain property has ‘travelled’ over time.  This means, that it can be shown by a claimant that certain property, such as money, has moved from one point to another.  This can be useful as money or other property the subject of a cause of action can be ‘traced’ to an original place in time to combat any efforts undertaken to hide it or escape culpability by an original wrongdoer.  An example of this principle arose in the case of Toksoz v Westpac Banking Corporation [2012] NSWCA 199 (3 July 2012) (Toksoz). [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…]

Government surveillance bill passed by Parliament

On 25 August 2021 Federal Parliament passed the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021 (Bill).  The Bill modifies various acts, including the Surveillance Devices Act 2004 (Cth) (SDA) and the Crimes Act 1914 (Cth) (CA), to enhance the law enforcement powers of the Australian Federal Police and the Australian Criminal Intelligence Commission in respect of serious online crime.[1]  The Bill introduces three (3) new warrants:

  • data disruption warrants;
  • network activity warrants; and
  • account takeover warrants.

[Read more…]

International companies can be bound by Australian privacy laws

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…]

Costs in unfair dismissal applications – part 4

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…]

Shareholder oppression in equal ownership situations

When a company with two (2) or more directors who are equal shareholders with equal voting rights have a dispute, it often leaves the company in a deadlock.  It is common in these situations for one (1) director to attempt to assert that the other director has engaged in oppressive conduct under section 232 of the Corporations Act 2001 (Cth) (Act).  This article discusses shareholder oppression when both directors own equal share portions. [Read more…]

Tortious interference with contract – what must be proven?

Unlawful interference with contractual relations (Interference) is a tort that allows  damages to be claimed against a Defendant who has induced or procured a third party to breach their contractual obligations to the Plaintiff in the proceedings.  In essence, a Defendant’s intention to induce or procure an entity to act or refrain from acting whilst being aware that such an action would result in said entity breach its contractual obligations to the Plaintiff gives rise to the Interference.[1]  This article outlines the elements needed to be proven in order to establish an Interference. [Read more…]

Accessory liability for copyright infringement

An accessory is a person or corporation involved in another’s wrong or unlawful act.  The tort of accessory liability is an important area of law allowing claims to be brought against “accessories” who participate in wrongdoings.  This is desirable in circumstances where, for example, the primary wrongdoer is insolvent, lacks capacity, or for some other reason cannot be pursued through regular legal channels.  In such circumstances, it may be just or equitable for a claimant to pursue a third party, the accessory, if they were sufficiently involved in any wrongdoing.  Even in circumstances where the primary wrongdoer can be pursued, accessory liability provides a mechanism for enhancing the protection afforded to holders of legal rights against interference by accessories. [Read more…]

Are fiduciary duties owed by former directors?

Company directors owe various duties to their company and its shareholders.  For example, sections 180, 181, 182, 183 and 184 of the Corporations Act 2001 (Cth)(Act) impose statutory duties to exercise care and diligence, maintain good faith and refrain from using their position or information to gain an advantage for themselves.  However, the legislation, barring section 183, does not clearly express the extent to which these duties, as well as similar common law duties, continue to apply after a director has ceased being the director of a company.  Addressing this shortfall, the Court in Advanced Fuels Technology Pty Ltd v Blythe & Ors [2018] VSC 286 (Advanced Fuels) found that whether or not these duties endure after the cessation of a directorship depends on the facts and circumstances of each case. [Read more…]

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