News & Events

  • The Drone Wars

    Google’s drone delivery service, “Wing” [1], has been rolled out in the north of Canberra after successful trial runs in Bonython and Royalla. Wing is apparently the world’s first permanent delivery drone service,[2] now serving eligible homes in Crace, Palmerston and Franklin. No longer in a galaxy far, far, away, the introduction of drone delivery has pushed the ACT to the forefront of the Drone Wars, with residents divided on whether the noise and the risks to safety and privacy are worth the convenience.

    In July 2018 when the drone trial first began in Bonython, opponents of the program had concerns regarding privacy, noise, and the danger of having someone’s hot coffee (or the drone itself) dropped on them from above.

    So who regulates the drones?

    The ACT Government has very limited scope to regulate drones as most incidents of “fly machines” falls to the Federal Government. The Civil Aviation Safety Authority (CASA) has oversight of drones and approves certified operators, but does not regulate noise or privacy. Airservices Australia can also regulate drone operators where engaged in certain commercial operations within controlled aerodromes, but their primary responsibility at this stage is to monitor aircraft (including drones’) noise. Privacy issues must be raised with the drone operator first, then may be referred to the Office of the Australian Information Commissioner (assuming the drone operator is bound by the Privacy Act). Yet finding out who is the owner of a particular pesky drone is a problem of its own. As a result of this multi-agency regulation, drone delivery currently operates in a regulatory grey area in Australia.

    So what are some of the legal issues associated with drones?

    Injuries

    The issues surrounding liability for injury are largely the same issues that arise in other methods of delivery. For a delivery driver that causes injury or damage, the company they work for is still liable through “vicarious liability”. For injury or damage caused by a drone, the drone company would be vicariously liable for the actions of the drone pilot, which would include the operator of the drone’s base computer. However if a person (in accepting a delivery) violated the terms of the agreement and was injured, say, by trying to take the delivered item prior to it being released by the drone or getting too close to the drone, then there may be contributory negligence and the drone company’s liability for damages may be reduced or possibly eliminated.

    Noise

    While Airservices Australia regulates the noise levels of drones, it was originally stated by an Airservices Australia spokesperson that drones of the size and weight used by Wing are currently exempt from the Airservices noise restrictions. Airservices Australia has since retracted this position and will now conduct a review to create noise regulations for drones.  When approving Wing, CASA advised that they considered the possible environmental impacts (including noise pollution) and imposed limited hours of operation and the requirement to use “quieter” drones. The drones that Wing uses are measured at 55 decibels at 25 meters which in terms of noise is somewhere between a washing machine (50dB) and a vacuum cleaner (60dB). Despite no current drone specific noise restrictions, the rules of nuisance still apply, yet noting few drones are likely to reach the noise of a lawnmower (70 dB), food blender (90 dB) or diesel truck (100dB) which can be used daily from 7 am to 10 pm.

    Privacy

    The other main issue is the cameras that the drones use to navigate while they fly. There is currently no ‘detect and avoid’ technology which means that the drones must be piloted remotely by video. According to Wings’ Privacy Policy[3] the aircraft use cameras to assist in the delivery process and that the cameras may capture images of the user during the delivery process. The user consents for these images to be kept and associated with the users Wing account as part of the Terms and Conditions of Service. However someone living close to the delivery may not have consented to these photos and may also be viewed in the images. There would be little more than company policy preventing a pilot from viewing through nearby windows or into a “private” backyard during delivery, even if the images were not captured. It will come down to each individual drone operator as to how they manage privacy. ACT legislation does not restrict photos being taken from a public area, and several cases confirm that taking photographs of people on private property from public property (which includes form the air) is permissible.[4]

    Are drones the future?

    Research has predicted that delivery drones could inject up to $40 million to the ACT economy by 2030 so we suspect they are here to stay.

    If you need advice on personal injuries or breaches of privacy, in relation to drones or generally, contact our Litigation or Business teams.

    [1] Wing Aviation Pty Ltd has been approved by CASA as a ‘licensed and certified drone operator’.

    [2] https://www.canberratimes.com.au/story/6018894/how-canberra-became-the-drone-capital/

    [3] https://wing.com/intl/en_au/privacy-au/

    [4] See, e.g. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor  (1937) 58 CLR 479.

     Original Article published by Riley Berry on The RiotACT.

    Read more
  • Australia Starts to Move on Modern Slavery

    Modern slavery, human trafficking,  forced labour, child labour, and slavery-like practices are not typically associated with the likes of first world countries such as Australia.  However, modern slavery is rampant in global supply chains, with the International Labour Organisation having estimated that there are over 40 million people trapped in slave-like conditions, with as many as 30 million or so of those being held in slavery and slave-like conditions across the Asia-Pacific region.[1]

    In light of this phenomenon, the Parliament of Australia passed the Modern Slavery Act 2018 (Cth) (MS Act) in November last year. The Act, which came into effect 1 January 2019, imposes requirements on entities based, or operating, in Australia, which have an annual consolidated revenue of more than $100 million. Essentially, these entities are required to report annually on the risks of modern slavery in their operations and supply chains, and on actions taken to address those risks. The report will be made to the Minister for Home Affairs and will be listed on the Modern Slavery Statements Register, which will be publicly available. It is envisaged that those who fail to report will be subjected to a ‘name and shame’ regime.

    What is modern slavery?

    Although there is no universally agreed definition of ‘modern slavery’, under the MS Act, modern slavery means conduct which would constitute an offence under Division 270 or 271 of the Criminal Code (including debt bondage, forced labour, servitude, deceptive recruiting for labour or services, and forced marriage), trafficking in persons,[2] or the worst forms of child labour.[3]

    Who has to comply with the requirements in the Modern Slavery Act?

    The following are deemed ‘reporting entities’ under the MS Act:

    • Entities (both based and operating in Australia) with at least an ‘annual consolidated revenue of more than $100 million’ for the 12 month reporting period of each financial year;
    • The Commonwealth (reporting on behalf of non-corporate Commonwealth entities);
    • Commonwealth corporate entities with at least an ‘annual consolidated revenue of more than $100 million’ for the reporting period; and
    • An entity which has volunteered to comply with the requirements of the Act for that period.

    What has to be reported?

    There are slightly different requirements for single reporting entities, joint statements and Commonwealth statements, but all ‘modern slavery statements’ must:

    • identify the reporting entity;
    • describe the structure, operations and supply chains of the reporting entity;
    • describe the risks of modern slavery practices in the operations and supply chains of the reporting entity, and any entities that the reporting entity owns or controls;
    • describe the actions taken by the reporting entity and any entity that the reporting entity owns or controls, to assess and address those risks, including due diligence and remediation processes;
    • describe how the reporting entity assesses the effectiveness of such actions;
    • describe the process of consultation with any entities that the reporting entity owns or controls; (and in the case of a reporting entity covered by a joint modern slavery statement, the entity jointly giving the statement); and
    • include any other information that the reporting entity, or the entity giving the statement, considers relevant.

    What are the consequences of non-compliance?

    The MS Act does not impose monetary penalties for non-compliance. However, if a reporting entity fails to lodge a modern slavery statement, the entity may be requested to provide an explanation for the failure to comply; and/or

    • undertake specific remedial action in accordance with the above request;
    • the entity may face ‘public shaming’ by having its name and failure to comply publicised.

    These mechanisms rely on ‘reputation risk’ to incentivise compliance and drive self-enforcement.  While the MS Act has faced criticism for being “toothless” in the absence of penalties for non-compliance, such a regime is not dissimilar to the approach taken by the Commonwealth for gender equity reporting in the Workplace Gender Equality Act 2012 (Cth) (and the antecedent Affirmative Action (EEO for Women) Act 1986 (Cth).   

    Reporting modern slavery: who, when, how?

    Who do you report to?

    Reporting is done through a ‘Modern Slavery Statement,’ basically a document that identifies the reporting entity and gives an overview of their structure, operations and supply chain/s, and most crucially describes the risks of modern slavery within the operations and supply chain/s and actions taken to ‘assess and address’ the risks.

    This must be submitted to the Minister for Home Affairs, who keeps these statements in the modern Slavery Statements Register.

    When is the report due?

    The statements cover a reporting period, defined as a financial year. As this section of the Act only came into force 1 January 2019, the reporting period will cover the financial year of 2019/2020.

    The statement must be given to the Minister within 6 months after the reporting period has ended. This means entities have until 31st December of that year to lodge their statements (as the financial year ends 30th June). So, for this year (which is the first reporting period for any entity), the reporting entity will have until 31st December 2020 to submit their statement.

    How do you lodge a statement?

    Before the statement can be submitted to the Minister, it must be approved by the entity’s principal governing body and signed by ‘responsible member of the entity,’ such as the CEO, a director, a trustee (if the entity is a trust administered by a sole trustee) or the administrator if the company is under administration.

    Once executed, the statement must be provided to the Department of Home Affairs for publication in the Statements Register (an online central register). However, the Department of Home Affairs has confirmed that they have not yet created this online register, so stay tuned for more information about how to submit the slavery statement.

    Are there any developments in other states?

    In June 2018, the NSW Government passed the Modern Slavery Act 2018 (NSW) which has received assent but has not yet commenced. The NSW MS Act seeks to go further than the Commonwealth MS Act by extending its application to ‘businesses with $50 million in turnover (though only if they have employees in NSW)’, imposing penalties for non-compliance and establishing an Anti-slavery Commissioner who will, among other things, provide assistance and support for victims of modern slavery and make recommendations to prevent and prosecute offences of modern slavery.

    Since being passed, the NSW MS Act has been sent to the NSW Legislative Council’s standing committee on social issues, “to determine whether the Commonwealth’s comparable legislation renders part or possibly all of the New South Wales Act unnecessary”.

    Who can I get assistance from?

    The Department of Home Affairs has published guidelines, entitled Modern Slavery Act 2018: Draft Guidance for Reporting Entities. This draft guidance contains detailed explanations of the Act’s requirements and provides useful examples.

    For anyone who needs help with drafting a modern slavery statement, is aiming to improve supply chain practices, or suspects their business or a business they deal with is non-compliant with the Act, BAL lawyers offers commercially sound advice,  and can work with you to resolve these concerns.  Contact us today.

    This article was written by Gabrielle Sullivan with grateful acknowledgement of the preparatory work of Maxine Viertmann and Sarah-Graham Higgs.

    [1] https://uploads.guim.co.uk/2017/05/31/Sub_91.pdf

    [2] As defined in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, done at New York on 15 November 2000 ([2005] ATS 27)

    [3] As defined in Article 3 of the ILO Convention (No. 182) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour,  Geneva on 17 June 1999 ([2007] ATS 38)

    Read more
  • hughes v sangster

    Supreme Court avails “Unavailable” Plaintiff

    If you tell the truth, you don’t have to remember anything.

    – Mark Twain

    It is common in popular TV culture for court room dramas to include terrified witnesses facing a barrage of questions from unrelenting counsel donning robes and wigs. In keeping with this popular conception, evidence in court hearings is typically given in person (albeit the case that how this plays out in practice is often less dramatic). In some instances, witnesses can give evidence by written affidavits, though even then a witness is often required to be available in person to have the fullness of their evidence tested in the witness box.  The basis for requiring witnesses to give evidence in person is founded in hearsay rules within (almost) uniform evidence legislation across Australia – here, being our Evidence Act 2011 (ACT).  Put simply, in the absence of a primary witness giving first hand evidence of what they saw or heard, the hearsay rule prevent another person, or document, giving evidence of what the primary witness would say, if they were available and present in court (“the hearsay rule”).

    Of course, like all good laws, there are exceptions to this general starting point.   For instance, in civil proceedings, the hearsay rule does not prevent evidence being adduced of earlier representations made by the primary witness, or documents containing the primary witness’ representations, if the primary witness is “not available to give evidence about an asserted fact”.

    But what then constitutes the unavailability of a witness?  Certainly death is an obvious black and white example, though anything short of that can fall into a grey area.  For example, is a witness that is physically “available” to attend a court hearing, but mentally incapable of assisting the court, captured by the hearsay exception?

    Justice Mossop of the ACT Supreme Court recently considered the issue in Hughes v Sangster [2019] ACTSC 178.   His Honour was asked to consider whether an Alzheimer’s sufferer, who was:

    1. physically available to attend the hearing;
    2. capable of understanding questions;  but 
    3. incapable of repeating the questions or remembering their context;

    was truly unavailable for the purposes of the hearsay exception.  In the unique circumstances in the Hughes case, His Honour ruled that that the particular witness (“Mrs Hughes”), being the plaintiff in the case, was unavailable.  That had the effect of allowing a number of documents – in the form of notes and legal instructions – containing previous representations of Mrs Hughes into evidence, notwithstanding she could not be cross-examined on them.  

    What were the facts? 

    Mrs Hughes and the defendant, are mother and daughter; sadly with a difficult history. In 1999, Mrs Hughes and the defendant purchased a block of land in Nicholls as joint tenants (”the Property”).  Mrs Hughes financed the land purchase and construction costs, totalling $380,000.  It was Mrs Hughes’ position that the agreement with the defendant required the defendant’s 50% contribution (that is, $190,000) to be paid over time in consideration for her respective interest in the Property.  

    The defendant did not disagree with this starting position.  However, she held that, when calculating the $190,000, Mrs Hughes had also agreed to “take into account” an amount of $125,000 which was previously offered to the defendant by Mrs Hughes but never paid. The defendant also maintained that she had paid for a number of household contributions over the years she resided with Mrs Hughes, which should be applied as contributions towards discharging the $190,000 owed by her.  Beyond these contributions, it was common ground that the defendant also made various payments totalling $20,000, prior to moving out of the Property in 2007.

    The alleged $125,000 contribution came about from a letter written by Mrs Hughes to the defendant in 1997, two years prior to the Property being purchased.  In her 1997 letter, Mrs Hughes expressed a desire to discharge the defendant’s mortgage to the tune of $125,000, “should [she] be able to”. As events transpired, Mrs Hughes did not settle the defendant’s mortgage.  Equally, a liability of Mrs Hughes to the defendant in the sum of $125,000 was not documented in any way in relation to the purchase of the Property when that transaction took place in 1999.  To the contrary, as the defendant made her various payments towards the purchase, Mrs Hughes wrote receipts which noted the running tally of what was left owing on the defendant’s $190,000 contribution.  On one occasion, these receipts were confirmed by a counter-note of the defendant which read “$183,000 owing”.

    Despite this, a dispute ensued between Mrs Hughes and the defendant from 2007 onwards, when the defendant moved out of the Property and refused to make any further contribution towards it or its upkeep.  Mrs Hughes instructed solicitors to negotiate a buy out of the defendant’s share, though the negotiations were unsuccessful. Due to a combination of financial and health reasons, Mrs Hughes was then unable to pursue the matter.

    Eventually, in December 2016, Mrs Hughes was diagnosed with moderate to severe Alzheimer’s dementia.  In January 2017, her husband, Mr Hughes, was appointed by the ACT Civil and Administrative Tribunal as guardian and manager of Mrs Hughes’ finances and property.  Upon his appointment, Mr Hughes sought to downsize Mrs Hughes to a smaller, more maintainable home, in the south coast. However, the unresolved title issue at the Property meant that he could not do so without the defendant’s consent, which was only given conditional upon her 50% interest on the title being recognised.

    Left with little alternative, Mr Hughes commenced proceedings in the ACT Supreme Court seeking the Property be sold, with the beneficial interests of Mrs Hughes and the defendant to be adjusted to reflect their respective contributions to the Property’s purchase.  As Mr Hughes was not privy to any of the discussions between Mrs Hughes and the defendant which led to the Property being purchased, Mr Hughes relied almost solely on handwritten and typed instructions of Mrs Hughes to her former lawyers, prior to her losing capacity – arguing that the documents were admissible evidence as Mrs Hughes was otherwise not “not available” for the purposes of the hearsay rule.  

    What was the issue?  

    Evidence was taken at the hearing from Mrs Hughes’ treating geriatrician, Dr Selvadurai, who confirmed the nature of Mrs Hughes’ Alzheimer’s condition.  Relevantly, Dr Selvadurai gave evidence that Mrs Hughes’ condition, despite being in a quite advanced form, did not prevent her from understanding a question.  Rather, the difficulty lay in Mrs Hughes inability to retain the question in her mind for long enough to answer it in a reliable way. This medical evidence was relevant in the face of the following nuances to the hearsay rule in the Evidence Act 2011.

    Firstly, section 63 of the Evidence Act provides an exception to the hearsay rule, if a person who made a previous representation (here, Mrs Hughes) is not available to give evidence about an asserted fact (here, being what happened in 1999 when the Property was purchased).

    Secondly, section 4 to the Dictionary to the Evidence Act defines the ‘Unavailability’ of a person to include, amongst other reasons, if:

    (b) the person is…  not competent to give evidence; or

    (c) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that difficulty.

    Section 13 of the Evidence Act provides guidance as to when a witness may be not competent (for the purposes of the section 4(b) definition above).  In the face of section 13, the distinction between the section 4(1)(b) and 4(1)(c) definitions in the Dictionary may often be one with little difference, as section 13 says:

    1. A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability); 
    2. the person does not have the capacity to understand a question about the fact; or
    3. the person does not have the capacity to give an answer that can be understood to a question about the fact; 

    and that incapacity cannot be overcome.

    In the context of the evidence given by Mrs Hughes’ geriatrician, the first limb of the section 13 test of competency did not excuse Mrs Hughes from having to give her evidence first hand.  If asked a question, her doctor’s evidence was that Mrs Hughes could understand it. However, the argument the followed was whether Mrs Hughes had “the capacity to give an answer that [could] be understood to a question about the fact”.  Relevant to that question, the defendant’s submission was that Mrs Hughes’ inability to give a cogent or reliable answer is a distinct issue to whether her answers could be understood.  After all, to answer “I don’t remember”, is a response to a question which makes sense.  Ultimately though, this is where the broader exclusion at the definition at section 4(1)(c) of the Dictionary was applied by Justice Mossop to find that Mrs Hughes’ Alzheimer’s condition was a mental condition which rendered it ‘not reasonably practicable’ for her to give evidence in person.  This permitted her previous instructions to her former lawyers being admitted into evidence, notwithstanding Mrs Hughes was not able to be cross-examined on them.

    Of course, just because Mrs Hughes’ notes were capable of being taken into evidence, the question of what weight should be applied to them was a further issue to be considered.  In this respect, even in the absence of Mrs Hughes being available to be cross-examined, Justice Mossop considered Mrs Hughes’ notes to be more reliable than the evidence of the defendant, whose evidence on central issues His Honour found to have involved ‘forensically targeted reconstruction’.  In particular, His Honour rejected answers provided by the defendant which attempted to avoid the probative value of the receipt signed by the defendant which acknowledged “$183,000 owing”

    What was the outcome?

    Notwithstanding Mrs Hughes was not available at the hearing to give evidence (either to advance her case, or to rebut the defendant’s counter argument), Justice Mossop rejected the defendant’s contention that the amount of $125,000 was to be deducted from the defendant’s contribution.  His Honour also rejected the defendant’s ancillary arguments that other day-to-day household contributions were “taken into account”

    The Property was thus ordered to be sold, with the defendant’s interests in the Property adjusted to reflect her contributions towards its purchase.  As the evidence showed the defendant contributed $20,000 towards the $380,000 purchase price, the defendant’s interest was, in effect, reduced to only 5.26%. 

    The lesson

    Exceptions to the hearsay rule can be technical.  Whilst the breadth of documentary hearsay evidence admitted in the Hughes case may have been an exception to the norm, it equally is true that a party should not assume that their first-hand evidence will be preferred by the court solely on the basis that their opponent is unavailable to give their evidence in the usual way.  

    Whilst Mrs Hughes is still alive, many elements of her case were analogous to litigation involving a deceased estate where family members have conflicting evidence as to what promises have been made by a deceased (that is, ‘unavailable’) person.  In such situations, the courts have held that:

    … in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution.

    In the case of Hughes, the court applied such caution in rejecting the evidence of the defendant that went to the critical issues of the case.  In doing so, Justice Mossop was left finding in favour of Mrs Hughes, notwithstanding she was unavailable for the entirety of the proceeding.  Whilst Mrs Hughes may never fully comprehend the ramifications of the outcome in her favour, she may at least now downsize with her husband, as she had sought to do for several years prior to the court proceedings becoming necessary.

    To speak with a lawyer from our Estates or Litigation team, contact us today.

    Read more
  • ASIC v Vocation - Advances in stepping stone liability

    On 31 May 2019 the Federal Court of Australia handed down its judgment in the case of ASIC v Vocation Limited (in liquidation) [2019] FCA 807, providing important insights into the expanded ambit of stepping stone liability. Stepping stone liability refers to the process of finding a director liable for permitting a primary breach of the law (usually the Corporations Act) by the company. More information on stepping stone liability can be found in our previous article here.

    Facts:

    Vocation Ltd (Vocation) was a listed entity which provided vocational education, training and assessment services and operated under a series of contracts with the Victorian Department of Education and Early Childhood Development (the Department).

    In July 2014 the Department notified Vocation of various concerns regarding the way Vocation was managing its contracts with the Department. The Department subsequently withheld payments to Vocation pursuant to the contracts. Vocation made an announcement in August 2014 stating that the contracts with the Department had not been suspended and that any actions taken by the Department would not have a material impact on the company.

    In 2016 ASIC commenced proceedings against Vocation as well as Vocation’s former Chief Executive Officer, former Chair, and former Chief Financial Officer (and Secretary), alleging that Vocation had breached its continuous disclosure obligations under s674(2) of the Corporations Act 2001 (Cth) (the Corporations Act). Specifically, that Vocation had failed to make full and proper disclosure of the nature and extent of the Department’s concerns and the withholding of payments, as this information could materially impact the company’s share price. Hence, the announcement made by Vocation in August 2014 was allegedly misleading.

    Finding:

    Justice Nicholas found that:

    1. Vocation contravened its continuous disclosure obligations under s674 of the Corporations Act; and
    2. Vocation engaged in misleading or deceptive conduct in contravention of s1041H of the Corporations Act through its August announcement, in which the company stated that actions by the Department would not have a material impact on the company, when it would (in fact) have a considerable impact on the company’s share price.

    His Honour also found that:

    1. the former CEO and Chair of Vocation contravened s180 of the Corporations Act which obliges directors to act with due care and diligence as they caused or permitted Vocation’s contravention of its continuous disclosure obligation; and
    2. the former CEO and CFO contravened s180 of the Corporations Act by causing Vocation’s contravention through its misleading announcement.

    Key Takeaways:

    1. Vocation’s contraventions of the Corporations Act were used as the stepping stones to draw liability back to the company directors, for ‘causing or permitting’ Vocation to breach these provisions.
    2. Decisions relating to continuous disclosure are not business judgements and so the business judgement rule is not a defence to a failure to comply with continuous disclosure obligations.
    3. Directors will not be permitted to rely on the advice of management and advisers when the directors know or should know any facts that would deny reliance.
    4. Directors must adequately inform themselves as to the nature and scope of the relevant business issues, and boards must analyse information that is provided to them, in a critical manner.

    If you have any questions about stepping stone liability or director duties more generally, contact our Business and Corporate Team.

    Written by Lauren Babic and Maxine Viertmann.

    Read more
  • Remuneration reprimand: Liquidator remuneration under scrutiny

    In February 2019 the Federal Court delivered its decision in Lock, in the matter of Cedenco JV Australia Pty Ltd (in liq) (No 2).[1] The proceedings were commenced by the liquidators of three companies, SK Foods Australia Pty Ltd (in liquidation), Cedenco JV Australia Pty Ltd (in liquidation) and SS Farms Australia Pty Ltd (in liquidation). The liquidators were seeking an order from the Court[2] to validate the defects in the liquidators’ remuneration reports and hence get an order approving their remuneration. Orders can be granted if:

    • the defect is of a procedural nature;
    • the liquidators acted honestly; or
    • it is just and equitable to make such an order.

    ASIC intervened in the proceedings alleging that the liquidators had failed to comply with their duties under the then sections 449E and 499(7) of the Corporations Act 2001, on the basis that the remuneration reports were inadequate and insufficient.

    The Result

    The Federal Court rejected the liquidators’ application to validate the creditors’ resolutions which purported to support the liquidators’ charge of $5m in remuneration fees.  Justice Besanko took issue with the liquidators’ charge out rates of $700 per hour, finding that the hourly charges were “excessive,”[3] and beyond the realm of reasonable remuneration. His Honour also found that the remuneration reports provided to the creditors were inadequate as they described the work done with such a ‘high level of generality’ such that it could not be said that the creditors were given sufficient information to make an informed assessment about the reasonableness of the proposed remuneration. This, he reasoned, would have caused, or would likely cause, substantial injustice to the creditors of the liquidated companies. Ultimately, Justice Besanko held that these failures amounted to contraventions of the then sections 449E and 499(7) of the Corporations Act 2001.

    The Federal Court dealt its final blow to the liquidators in June this year, when it ordered that the liquidators repay approximately $1.9 million (or 30% of the remuneration they were paid) as administrators of the three companies.[4] Justice Besanko ordered that the liquidators also pay interest on the repayment sum, in addition to paying ASIC’s costs as intervener.

    Key Takeaways

    The outcome of this case yields important lessons for liquidators, including that:

    • Courts are likely to take issue with overly general and scantily detailed remuneration reports, as it may lead to substantial injustice for creditors;
    • Liquidators should be able to justify their hourly rates and should take care not to charge excessive remuneration fees, as the rendering of excessive hourly fees is unlikely to go unchecked by Courts;
    • Courts have wide powers to make orders in relation to liquidator conduct. As in this case, Courts may undertake, what is in effect, an inquiry into a liquidators’ conduct without the parties having made an application for such an inquiry to be conducted; and
    • Practitioners should note that ASIC is taking an increasingly active role in investigating and intervening in financial misconduct proceedings.

    If you are a liquidator seeking advice on remuneration, or a creditor who is concerned about the remuneration being claimed by a liquidator, contact our Business Team.

    [1] [2019] FCA 93

    [2] Pursuant to section 1322 of the Corporations Act 2001 (Cth)

    [3] [313].

    [4] Lock, in the matter of Cedenco JV Australia Pty Ltd (in liq) (No 3) [2019] FCA 879

    Written by Kaite Innes and Maxine Viertmann.

    Read more
  • Whistleblowing and Grievance Handling: July Business Breakfast Club Summary

    This month at Business Breakfast Club, BAL Lawyers Senior Associate, Anca Costin spoke on the topic of Whistleblowing and Grievance Handling.

    Widespread changes to Australia’s whistleblower protection regime have now come into force. On 19 February 2019, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill was passed by Parliament. This bill amended the Corporations Act, with these reforms operative from 1 July 2019.

    These amendments are set to create a much more expansive and strengthened whistleblower protection framework.

    Anca’s presentation focused on the key changes to the whistleblowing regime that all employers and HR managers need to be aware of, namely that:

    • The categories of people who can qualify as a protected whistleblower have been expanded. It is no longer the case that active employees, officers and contractors are the only groups of people covered by whistleblower protections, with former employees, officers and contractors as well as associates of the company now being offered protection.
    • The topics that a person may “blow the whistle” about have been broadened. Formerly, a whistleblower was only protected from disclosing conduct in contravention of the Corporations Act. However, whistleblowers will now receive protection for disclosing information relating to misconduct and general “improper” circumstances.
    • Whistleblowers can now elect to remain anonymous.

    A key emphasis of the presentation was that after these changes take effect, there is a real need for businesses to consider having a whistleblower policy in place.

    The following video on Whistleblowing was also shown:

     

    After 1 January 2020, all public and private companies will be required to implement a compliant whistleblower policy (with it being highly unlikely that any existing whistleblower policies will be compliant).

    If you require any assistance with drafting a compliant policy, please contact BAL Lawyers Employment Law & Investigations Group, or purchase our Whistleblower Policy.

    Our next Business Breakfast Club will be held on Friday 9 August 2019. Riley Berry of BAL Lawyers will be presenting on ‘Directors’ duties and the Director Identification Number’.

    Read more
  • GIPA Act and ‘out of scope’ information

    In a decision handed down on 10 July 2019, the NSW Civil and Administrative Tribunal has ruled that decisions about whether documents are outside the scope of a GIPA application are not reviewable by the Tribunal: Miskelly v Roads and Maritime Services [2019] NSWCATAD 133.

    This issue has not been squarely addressed in previous decisions of the Tribunal. By excluding review of a decision as to whether a document is within or outside the scope of a request altogether, the decision in Miskelly goes further than previous decisions, which have simply acknowledged that an agency has no obligation to provide material that has not been requested by an applicant[1].

    Background

    Mr Miskelly sought review of a decision by RMS to refuse him access to specified information concerning the costs and budget estimates for the Sydney Gateway Project.  He argued that there was a ‘manifestly overwhelming public interest’ in the disclosure of the information so that members of the public could know the estimated cost of this major infrastructure project.

    Many of the documents for which the RMS refused to allow access were Cabinet documents and much of the decision deals with whether RMS had reasonable grounds for not releasing those documents.  (In dealing with a Cabinet information claim under the GIPA Act, the Tribunal is limited to reviewing whether ‘reasonable grounds’ for the claim exist rather than, as is usually the case, deciding for itself what is the correct and preferable decision in relation to the request for access.)

    Out of scope documents

    Of more interest to local government, the Tribunal also dealt with a request by Mr Miskelly to review the decision by RMS that a number of documents initially identified during its search for the information requested by the applicant were not within the scope of his request.

    In coming to its decision, the Tribunal observed that every Government agency today has some form of computerised records management system (eg TRIM) that captures and manages both paper and electronic information held by the agency.

    The GIPA Act requires an agency to undertake reasonable searches to find any Government information held by the agency when the application was received[2] and this obligation expressly extends to carrying out searches using any available electronic information management system[3].  The Tribunal noted that it is not unusual, when conducting an initial search for relevant documents using a computerised document management system, that the search will locate documents which, on closer examination, are found not to contain information relevant to the access request. These records are commonly described as being ‘out of scope’.

    This is what happened when the RMS responded to the applicant’s GIPA request. A search was carried out using its computerised document management system and this identified a number of documents as being relevant which, on further review, were determined not to fall within the scope of the applicant’s request. The applicant asked the Tribunal to review that determination. The RMS argued that the Tribunal had no jurisdiction to do so.

    The Tribunal’s decision

    The Tribunal agreed with the contention made by the RMS that the Tribunal had no jurisdiction to review a decision that a document is ‘out of scope’. The Tribunal’s reasoning was as follows:

    • Under the Administrative Decisions Review Act 1997, the Tribunal is given jurisdiction to review a decision when the enabling legislation (i.e. legislation other than that Act) provides for applications to be made to the Tribunal for review of decisions of that kind[4].
    • The GIPA Act provides for the review by the Tribunal of a ‘reviewable decision’ by an agency.
    • Section 80 of the GIPA Act lists the decisions that are ‘reviewable decisions’. Some thirteen different kinds of decision are the listed in that section including, for example, a decision to refuse to provide access to information, a decision that the information is not held by the agency and a decision that information is already available to the applicant.
    • The list of reviewable decisions in s.80, which is quite specific and detailed, does not include a decision that the information requested is ‘out of scope’.
    • Hence the Tribunal does not have jurisdiction to review a decision that information requested by an applicant is ‘out of scope’.

    Implications for local councils

    The effect of the Tribunal’s decision Miskelly is that decisions made by councils as to whether documents are outside the scope of a GIPA application are not reviewable by the Tribunal.

    In drafting decisions under the GIPA Act, councils should therefore take care to distinguish any information which is determined to be out of scope from the information to which a council decides to refuse access under s.58(1) of the Act.

    For more information about this decision or its implications please contact Alan Bradbury.

    [1] See, for example, Ormonde v NSW National Parks and Wildlife Service (No.2) [2004] NSWADT 253 (at [58] to [66]

    [2] GIPA Act, s.53(2)

    [3] GIPA Act, s.53(3)

    [4] Administrative Decisions Review Act 1997, s.9

    Read more
  • WHEN FACEBOOK IS NO LONGER YOUR BUSINESS’ FRIEND

    In June this year, the New South Wales Supreme Court handed down an important judgment of Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian New Channel Pty Ltd [2019] NSWSC 766. This case may have significant implications for organisations using public social media pages particularly around their liability for posts made by third parties.

    Mr Voller brought proceedings against three media organisations for defamation, alleging that the media organisations were liable for the defamatory comments made by members of the public on news stories or links that were published about Mr Voller on the media organisations’ public Facebook pages. The Court was required to consider whether the defense of innocent dissemination would apply to protect the media organisations (the defendants) from liability. Innocent dissemination is intended to protect people such as newsagents, booksellers, and internet service providers who unwittingly publish defamatory material without any negligence on their part.

    Ultimately, the Court found that organisations with public Facebook pages can be the “primary publishers” of the material and therefore liable for the defamatory posts made by the public.

    In coming to his decision, Judge Rothman drew a significant distinction between a public Facebook page and the operation of a public website. His Honour reasoned that on a public Facebook page, the administrator has the ability to prevent and vet comments made by others. By way of contrast the administrator of a public website has no capacity to prevent the publication of negative comments by members of the public, but is only able to remove the comments once made. This comparison led His Honour to find that the media organisations were primary publishers of the third party comments on their public Facebook pages, and the defense of innocent dissemination did not apply.

    Key Takeaways

    This case serves as an important warning to organisations that have public Facebook pages. Owners and administrators of these pages should be warned of their potential liability for the comments posted by the public on these pages. In light of the above decision, public Facebook page users should note the following:

    1. Courts are more likely to hold owners of social media accounts liable for the posts made by third parties, particularly so if the owner/administrator has the ability to prevent the publication of defamatory material – such as by pre-approval, comment hiding or vetting processes;
    2. The Court in this case clarified that organisations who utilise public Facebook pages for commercial purposes, assume the risks that certain comments may render them liable;
    3. If you have a public Facebook page to promote your business, consider:
      • hiding comments made by members of the public until you have pre-approved or checked them;
      • utilising the Facebook list of banned words, which will hide or delete public comments which contain such words; and
      • blocking users who may make unacceptable, threatening or defamatory comments.

    If you have any questions or would like to discuss please feel free to get in touch with our Business team at BAL Lawyers.

    Written by Lauren Babic and Maxine Viertmann.

    Read more