In our previous article ‘Proposed New Developments in Electronic Contracts: Web Page Advertisements and E-mails’  we dealt with a number of updates to Australia’s electronic transaction regime including default rules to determine the time that the law will deem an email to be sent and received.

In addition to these changes, a safeguard providing a right to withdraw an email or online communication (where an input error occurs in a portion of an electronic communication) has been implemented, the recognition as to when an electronic signature will be legally effective has been broadened and the relationship concerning intermediaries such as web hosts has been clarified, along with default rules that have been formally passed into law to determine the place of dispatch and receipt of electronic communications.

London's  Technology and Construction Court has recently found that a company did not own the emails of its former Chief Executive Office, even though they were work related.

The case turned on its own facts, one of which involved the senior executive sending and receiving company emails using private or non corporate accounts and servers.

The physical storage of the emails was what caused the problem.  At a practical level, the emails were not on the employer’s servers.  Some had been sent using the executive’s private account (and therefore held on external third party servers), others had been sent from a work server, but copied to the personal server and, thereafter, deleted from the employer’s server.

In mid-June Alan Wein’s report of the latest Federal Government review of the Franchising Code of Conduct was published containing 18 recommendations for Government with respect to changes to regulation of the franchising industry.

Two major issues, which have been the subject of much debate in the sector, are the calls for a good faith obligation in franchising and the rights and obligations at the end of the franchise term.

The report’s recommendation is to incorporate the common law duty of good faith into the Code, rather than inserting a specific definition of good faith. This reflects the shift in attitude of the Franchise Council of Australia – a key stakeholder – to the concept of the duty of good faith being incorporated into the Code. Such a duty would apply to both parties, but would not prevent a party from acting in its legitimate commercial interests.

Class actions are a species of litigation emanating from the US, where individuals joined together to take legal action against a company or Government. They are becoming more common in Australia, especially following tort reforms in 2002 and are referred to as ‘representative proceedings’ which can be brought by virtue of the Representative Group Proceedings Act 1991.

There are three threshold requirements. Firstly, seven or more persons must claim against the same defendant. Secondly, claims must arise from related circumstances and thirdly, there must be a substantial common issue of law or fact.

Our health, aged care and life sciences team discuss a range of topical health, life sciences, medico-legal, retirement living and aged care, not-for-profit, social media, privacy and employment issues. To read the latest copy of the Health Law Bulletin, click here.

Chand v Zurich Insurance

In a judgment handed down in the NSW Supreme Court, the Court was asked to determine whether an action for recovery of repair costs may be sought by an insurer, under its right of subrogation, after the settlement of recovery of rental car costs had been already finalised by consent judgment.

Adams J determined that there can be no splitting of actions for the recovery of repair costs and the recovery of rental costs, rather judgment for the first claim will preclude the second claim unless the defendant was aware of both claims at the time of the first settlement - as per the ‘Morganite’ principle.

Sexual harassment is an all too common and lamentable act that can damage an employer’s credibility and, to a degree, destabilises an organisation’s commercial goals. A recent case involving a software company and a consulting manager employed there, highlights the absolute importance of giving due attention to detail in policies, as the company was ultimately held responsible for an employee’s conduct because it failed to clearly state that sexual harassment is unlawful.

Finding a competitive edge over rival organisations is essential to any organisation’s success - and the loss of sensitive information used to achieve that advantage can severely damage a business.

The introduction of tablets, smart phones and other mobile devices is driving down the use of personal computers and printers and making life tough for businesses who service these peripherals. For two rival distributors of printer cartridges the increased competition in a declining market has made it all the way to the Federal Court in a case involving a copyright breach when one of the distributors made use of material from its competitor’s website.

The ACCC had claimed that sponsored links displayed by Google between 2005 and 2008 had conveyed misleading and deceptive representations.  The case involved searches using keywords such as Harvey World Travel and Honda, which were redirected to competitors websites.