Litigation

Can legal privilege be waived by using cloud based document hosting?

It is very common nowadays for businesses to store documents online using document hosting applications such as Dropbox or Google Documents that allow multiple parties to read, open and modify documents from any location in the world.  While using these cloud storage facilities is very convenient, it may pose a problem where a person wants to claim legal professional privilege over the documents they contain. [Read more…]

Subpoenas to produce documents – Federal Court

In litigious matters, it is often the case that a third party has documents which may go towards proving (or disproving) a fact in issue in the proceedings.  When this arises, the question becomes whether you can subpoena the documents, what form should the subpoena take and at what stage in the proceedings this is best done. [Read more…]

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…]

Consolidating related proceedings in the Federal Court

In civil litigation it is surprisingly common for the parties to have more than one matter before the Court with overlapping fact matrices.  Rule 30.11 of the Federal Court Rules 2011 (Cth) (Rules) provides a mechanism by which the Federal Court, at the request of one or more of the parties to separate proceedings, can consolidate two or more separate but related proceedings. [Read more…]

Indirect patent infringement – lessons from Quaker Chemical

In the recent decision of Quaker Chemical (Australasia) Pty ltd v Fuchs Lubricants (Australasia) Pty Ltd (No 2) [2020] FCA 306 (Quaker Chemical) the Federal Court of Australia decided that a company had indirectly infringed two (2) patents by supplying its customers with a product, because its use by customers would have infringed the methods of the patents. [Read more…]

Aristocrat hits the jackpot in Federal Court ruling

In the recent decision in Aristocrat Technologies Australia Pty Limited v Commissioner of Patents [2020] FCA 778 (Aristocrat Case), the Federal Court had to consider whether a claim in four (4) innovation patents directed to an electronic gaming machine (EGM), having a combination of physical parts and computer software for gameplay, was a manner of manufacture.  The Federal Court ultimately found that the delegate of the Commissioner of Patents (Delegate) had erred in deciding that the claims were not a manner of manufacture. [Read more…]

QBCC Home Warranty Insurance claim exclusions

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. [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…]

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…]

Building disputes and arbitration clauses

Building dispute litigation before a Court or tribunal, like any other form of commercial litigation, can be a stressful, time-consuming and costly process.  Commercial building contracts commonly include alternative dispute resolution mechanisms, such as arbitration, as an option to formal litigation in anticipation it will more efficiently resolve any dispute. [Read more…]

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