Last Friday the Australian Competition & Consumer Commission (“ACCC”) announced that it has commenced proceedings against Google LLC alleging misleading and deceptive conduct in failing to inform consumers and obtain their informed consent  from 2016 that it was combining their personal information in Google accounts with information gleaned from their activities in non Google sites which use Google technology.  The ACCC also alleges that Google misled consumers about changes to its privacy policy.

The ACCC has not released the concise statement and the case has not appeared on the Federal Court website as yet.  It is interesting, and something of a relief, that the ACCC is stepping up and taking on privacy related cases instead of the Australian Information Commissioner.  Unfortunately the Commissioner has a lamentable track record in enforcing privacy breaches, particularly in the Federal Court.

The nature of the case as described by the ACCC seems to follow a tried and true approach used by the Federal Trade Commission in the United States, attacking privacy and data breaches through breaches of contractual terms or misleading and deceptive conduct.  It is also an approach that the Federal Court is more comfortable with.  To date the Federal Court has produced judgments that betray a bewildering befuddlement regarding privacy principles; namely Read the rest of this entry »

In HQ Insurance Pty Limited v Stonehatch Risk Solutions Limited (No 2) [2020] FCA 1010 the Federal Court per Thawley dismissed an application for preliminary discovery on the grounds that the applicant failed to establish that reasonable inquiries were made.

FACTS

The dramatis personae are:

• HQ,  an Australian bloodstock and livestock insurance broker specialising in equine insurance. It holds an AFSL which authorises it to advise and deal in general insurance [17].
• Stonehatch,  a United Kingdom (UK) based insurance broker specialising in bloodstock insurance. It does not hold an AFS [17]]
• Ausure (Upper Hunter) Pty Ltd trading as Ausure Insurance Solutions (NSW),  an insurance broker which brokered equine thoroughbred insurance through Stonehatch as its wholesale broker in the UK where the equine risks were underwritten by various Lloyd’s syndicates [18].

On 25 September 2018, HQ completed its purchase of Ausure’s client book of insurance policies. HQ transferred the insurance files to their own wholesale broker, Integro Brokers Limited, in the UK, on 18 October 2018 [19].

Under the agreement between Read the rest of this entry »

In Lewis (liquidator), in the matter of Concrete Supply Pty Ltd (in liq) [2020] FCA 841 White considered the relevant principles in considering an application under section 477(2B) of the Corporations Act 2001.

FACTS

Between August 2009 and November 2017, ABCL had supplied concrete to Concrete Supply [5].

In October 2017, ABCL discovered that it had been underpaid about $12 million by Concrete Supply.  The underpayment was disguised by false entries made by one of its employees.  ABCL sought payment of the shortfall from Concrete Supply. On 14 November 2017, the directors of Concrete Supply resolved that it was, or was likely to become, insolvent and appointed Messrs Cooper and Cantone at Worrells as administrators. On 19 December 2017, the creditors of Concrete Supply resolved that it enter into a Deed of Company Arrangement (” DOCA”) [5].

ABCL opposed the Read the rest of this entry »

The 1st July 2020 is the commencement of the Consumer Data Right.  Under the legislation consumers an request their banks to share data for deposit and transaction accounts as well as credit and debit cards.  As of today there are two accredited data recipients however a further 39 providers have started the process.  Data from home, personal and investment loans and joint accounts will commence on 1 November.

The regulatory structure is interesting.  There are two regulators who will be responsible for regulation, the ACCC and the OAIC.  They come from two ends of the spectrum.  The ACCC is a good regulator by Australian standards while the OAIC is a dreadful regulator by any standards.  The ACCC is run by a thoughtful and insightful chairman, I can’t recall who runs the OAIC.  The Compliance and Enforcement Policy is Read the rest of this entry »

In Yeo, in the matter of Ready Kit Cabinets Pty Ltd (in liq) v Deputy Commissioner of Taxation [2020] FCA 632 Middleton J considered the operation of the sub sectin 588FE(2B) involving the voidable transactions and whether payments were made under the administrator of a deed of company arrangement.

FACTS

On 29 October 2013, Mr Yeo and Mr Rambaldi were appointed as joint and several administrators of Ready Kit Cabinets Pty Ltd (in liq) (” the Company”) [8].

The DCT  commenced proceedings seeking to wind up the Company before the appointment of  Yeo and Rambaldi as voluntary administrators [9].  The first meeting of the Company’s creditors was convened and held on 7 November 2013 [10].  On 14 November 2013,  Yeo and Rambaldi issued a circular to creditors in which they advised that the second meeting of the Company’s creditors would be held on 22 November 2013. Yeo and Rambaldi provided creditors with a copy of a s 439A report with the circular [11].  At the second meeting of creditors  a resolution was passed that the Company should execute a deed of company arrangement [12].

On or about 11 December 2013, the DOCA was executed by:

• each of the Company (by its then administrators,  Yeo and Rambaldi),
•  Yeo and Rambaldi as deed administrators, and
• the Director [13].

His Honour identified key provisions of the DOCA as:

• Recital H. [14], that:

This Deed binds all Creditors of [the Company] pursuant to Section 444D of the Corporations Act and [the Company], all officers and members of [the Company], and the Administrators pursuant to Section 444G of the Corporations Act.

•  management and control of the Company’s day-to-day business affairs were returned to the Director;
• a fund was established and controlled by the Deed Administrators which constituted the whole of the property available for distribution to participating creditors [15];
• the Company and Director made certain covenants and undertakings, including in respect of the Company’s compliance with its taxation obligations [15]; and
•  upon default of the DOCA by the Company or the Director, the Deed Administrators were to convene a meeting of creditors to determine whether to terminate the DOCA and wind up the Company [15].

Between 11 December 2013 and 5 July 2017, the Company was returned to the management and control of the Director and continued to trade [16]. During this time the Company incurred fresh liabilities Read the rest of this entry »

This year has seen some major cyber attacks which have crippled businesses.  On 31 January 2020 Toll Transport’s systems were infected with Ransomware, a variant of the Mailto or Netwalker ransomware.  It operates by encrypting all the common file types outside the operating system.  the files are rendered unusable. That meant it couldn’t perform its core service, delivery.

Mailto is usually spread through a compromised email attachment but it can also be done through a combination of user credential theft or a brute force attack on passwords in combination with usernames.   Attacks by  email involves the Mailto activating an infected payload through what appears to be a legitimate file. Attacks are commonly sent from a domain with a high reputation.  Sometimes they are sent from compromised email accounts.  These forms of attack easily Read the rest of this entry »

The Privacy Amendment (Public Health Contact Information) Bill 2020 passed the Senate yesterday without any amendment to the Bill passed by the House of Representatives.  The amendments proposed by Senator McKim and Senator Patrick were not accepted. 

The bill, soon to be Act, can be found here.  The explanatory memorandum can be found here. 

The passage of the bill is covered by itnews in Read the rest of this entry »

With not much in the way of fanfare the House of Representatives passed the Privacy Amendment (Public Health Contact Information) Bill 2020 yesterday.  The Bill was introduced into the Senate yesterday and has passed the Second Reading.  It has been referred to a Committee.

The Bill passed in the House of Representatives relevantly provides Read the rest of this entry »

The angles newspapers take to kick a story along can be astonishing.  In today’s Age the story Police could be sued over Laidley photo leak, lawyer warns reports that Victoria Police could be sued in relation to the leak of photographs of Dean Laidley.  Really! That is the story? The “talking head” that is the hook for the story, is Jeremy King providing ex tempore observations, that there was a breach of confidential information and  misfeasance in public office.  They were reasonable general comments overall. But hardly extraordinary and definitely not in the “breaking news” category.

All in all it is pretty thin gruel for a story in a large newspaper.  It does however provide an opportunity to have a (very) brief look at how inadequate the law is in this area.

Until all the facts are known it is impossible to properly assess and determine what causes of action are available.  But even at this preliminary stage there appear to be some available.  Unfortunately with no statutory tort of interference with privacy (recommended by the Australian Law Reform Commission twice, the Victorian and New South Wales Law Reform Commissions, the ACCC in its recent Digital Platforms Report, multiple Federal and State Parliamentary Committees and recommendations by learned academics over the last 40 years) when dealing with privacy breaches it is necessary to rely on a range of torts, claims in equity and, on occasion, common law to bring a case.

There are two distinct issues in a case of this nature, the Read the rest of this entry »

The extent to which the unauthorised photographs of Dean Laidley have spread through texts and via social media is not publicly known but the reporting suggests it has been, and probably continues to be widespread.  The immediate impact has been on the Victoria Police with a second policeman, a senior constable, stood down and under investigation and likely to be charged.  The story is reported by the Age in Second police officer suspended over leaked images of Dean Laidley and by the ABC with Victoria Police suspends second police officer over unauthorised sharing of Dean Laidley photo.  Both Senior Constables will be fortunate if the extent of their troubles is limited to damaging their careers within Victoria Police.  If convicted of a criminal offence they face the real prospect of losing that career.  In those circumstances officers more often than not resign before being removed from the Force. 

To the extent that action has been taken is laudable, but the episode also highlights that in Australia it is for the authorities to take action.  The law in this area is lamentably paternalistic.  The ability of Australians to take action, or at least consider it, for breaches of their privacy is so circumscribed as to be near worthless.  There is no Read the rest of this entry »