| Lau v The King (VSCA) - sentencing judge had erred in stating that breaches of trust by an executor are equal in seriousness to similar breaches by a professional such as a solicitor or an accountant
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| R v McBride (No 4) (ACTSC) - former Army lawyer sentenced for giving defence information to journalists
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Preview: Representations in Advertisements
with Sophie Dawson and Kevin Andronos SC |
| Join Kevin Andronos SC and Sophie Dawson as they discuss the case of RB (Hygiene Home) Australia Pty Ltd v S.C. Johnson & Son Pty Ltd [2020] FCA 1783. The case relates to an application for an injunction to restrain an advertising campaign. Kevin and Sophie will take you through the facts and discuss representations in advertisements, puffery, implicit comparisons and the Australian Consumer Law.
Subscribers can watch the full video at:
Bench TV CPD
If you wish to subscribe to Continuing Professional Development you can do so here: Register here |
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Preview: Unlawful Discrimination
with Geoff Baldwin and Alan Conolly |
| In this edition of BenchTV, Geoff Baldwin (Consultant Lawyer – Stacks Champion) and Alan Conolly (Senior Partner – A R Conolly and Company) discuss an overview of unlawful discrimination touching upon harassment and bullying, and the remedies that are available.
Subscribers can watch the full episode at: Bench TV CPD
If you wish to subscribe you can do so here: Register here |
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| Preview: Film and Education with Phillip Lewis and Alan Conolly |
| BenchTV is the way of the future in legal education for the profession. This is an enjoyable conversation with a pioneer filmmaker, Phillip Lewis. If you wish to better understand what we’re doing with BenchTV watch this discussion.
Subscribers can watch the full episode at: Bench TV CPD
If you wish to subscribe you can do so here: Register here |
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Preview: Arbitration Agreements and the Enforcement of the Award
with Dennis Wilson and Alan Conolly |
| A broad discussion by Dennis Wilson, mainly on international arbitration in the South-East Asian region, but looking briefly of whether it may be a solution in the local jurisdictions including family law and crime.
Subscribers can watch the full episode at: Bench TV CPD
If you wish to subscribe you can do so here: Register here |
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HABEAS CANEM
Man and loyal dog
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Summaries With Link (Five Minute Read)
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Lau v The King [2024] VSCA 94
Court of Appeal of Victoria
Boyce & T Forrest JJA
Executors' duties - a mother died, and her will appointed two executors, her son (and only child), and one of her friends - the son's father and mother had divorced some years before, and the mother had remarried, but the new husband had predeceased the mother - the mother's will left her estate in equal shares to her son's two children and the two children of her second husband - the son told his co-executor, who was overseas, that he had been advised to apply for probate on his own, but then took no steps to obtain probate, and did not notify the second husband's children that they were beneficiaries - he allowed the government to continue to make pension payments to the mother's account for about two years, while repeatedly drawing funds from his mother's mortgage and pension accounts, and applying a large part of those funds to his own personal use - the Supreme Court ultimately granted letters of administration with the will annexed to the two children of the second husband - the son pled guilty to three counts of theft and one charge of making a false document, having obtained a total value of about $177,000 - he was sentenced to nine months' imprisonment and a two-year community correction order with conditions requiring him to be supervised and undergo assessment and treatment in regard to alcohol and his mental health - the sentencing judge stated that a breach by an executor and trustee of a will is of equal seriousness to similar breaches by professionals such as solicitors and accountants - the son appealed against sentence on the basis that this statement was incorrect - held: if the judge's impugned statement were interpreted as nothing more than a rejection of the precise submissions that were made to him about the difference between a lay executor and a professional, then it was difficult to see error - however, if the judge had in mind more than simply rejecting precisely what had been put on the plea then it was difficult not to conclude that material error had occurred - had the appellant been acting as nominated executor in the professional capacity of, for example, a qualified solicitor, then the appellant's offending would thereby have been aggravated - in the end, and despite the fact that, had the appellant offended as a solicitor he might have expected a far greater sentence than he in fact received, the Court was not convinced that the sentencing judge did not take into account the sorts of matters that would apply only in the case of a professional - appeal allowed, and son re-sentenced to an seven months' imprisonment and the same community correction order as before.
Lau |
R v McBride (No 4) [2024] ACTSC 147
Supreme Court of the Australian Capital Territory
Mossop J
Sentencing - McBride, who had been a legal officer in the Australian Army, pled guilty to three offences, (1) one count of theft, contrary to s131.1(1) of the Criminal Code (Cth), in that he dishonestly appropriated property belonging to a Commonwealth entity with the intention of permanently depriving the entity of the property; (2) two counts of unlawfully communicating naval, military or air force information, contrary to s73A(1) of the Defence Act 1903 (Cth), in that, being a member of the Defence Force, he communicated documents relating to naval, military or air force information to journalists, and that communication was not in the course of his official duty - the Court also took into account a charge of contravening s70(1) of the Crimes Act 1914 (Cth) in that McBride, being a Commonwealth officer, published a fact or document on a website that came to his knowledge or into his possession by virtue of him being a Commonwealth officer and which it was his duty not to disclose - the Court now pronounced sentence - held: it was agreed that the public disclosure of information in many of the documents taken by McBride would, or would have been likely to, have prejudiced the defence, national security or international relations of Australia at the time - McBride did not show any remorse in relation to the offending, but minimised the offending, attributing it to a difference in legal interpretation - he justified his decision to offend, claiming he believed the Department of Defence had been acting outside the bounds of the law, due to political interference, in a manner which was dangerous to the community - a reduction of 10% should be allowed due to the late plea of guilty, made after the Court rejected legal argument that McBride had a defence of acting in the public interest - the Court did not accept that it had not been reasonably possible to plead guilty earlier - the unlimited term of imprisonment that may be imposed for offending against s73A had to accommodate circumstances much more extreme than here - it was necessary to consider both specific and general deterrence - the Court did not accept that McBride, either as a lawyer or a soldier, had an obligation or duty to do what he did, and he had clearly breached his duty as both - the Court considered that, notwithstanding the availability of other legitimate means by which he could raise his concerns, he decided that he knew best and that he should disregard his legal obligations in order to pursue his own view of how the Australian Defence Force should be managed - the Court accepted that, during the offending, McBride suffered from a number of mental health conditions - this was not a case where the Court should take into account that the offender's standing in the community was used to aid the commission of the offence - this offending here was a breach of trust, which was a separate consideration - prospects of rehabilitation were difficult to assess where McBride had demonstrated no remorse and had not recognised the wrongfulness of his own conduct - the seriousness of the offending was such that no sentence other than a sentence of imprisonment was appropriate - sentence of imprisonment for 27 months on the theft count and 34 months for each of the s73A counts, made partially concurrent to give an aggregate sentence of five years and eight months, with a non-parole period of 27 months.
R v McBride (No 4) |
| INTERNATIONAL LAW |
Executive Summary and Podcast (One Minute Read)
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| X Corp v Bright Data Ltd (USDCNDCA) - X Corp (Twitter) failed to establish tort and contract claims against data scraping firm as pre-empted by United States copyright law |
| Summaries With Link (Five Minute Read) |
X Corp v Bright Data Ltd, Case No C23-03698
United States District Court for the Northern District of California
Alsup J
X Corp brought suit against Bright Data Ltd on numerous grounds, all of which related to defendant's scraping and sale of data gathered from plaintiff's Twitter internet platform. The Twitter Terms of Service prohibited data scraping. Data scraping consists of extracting data from a website and copying it into a structured format, allowing for data manipulation or analysis. Here, plaintiff contended that Bright Data was unlawfully accessing Twitter and scraping public data for commercial purposes. X Corp asserted numerous claims based on improper access to X's systems and unlawful scraping and sale of data. With respect to improper access to X's systems, the claims included trespass to chattels, unfair competition, tortious interference with contract and breach of contract. However, the Court found that these claims could not be sustained in the absence of actual injury. With respect to claims based on scraping and sale of data, the claims failed because of Federal copyright law pre-emption. The Terms of Service clearly provided that Twitter users owned their own content and only extended a non-exclusive license to Twitter to make the content publicly available. Under established precedent, a non-exclusive license does not give the licensee the right to exclude others from using the licensed material. The Court noted that X Corp avoided ownership of X users' content because to do so would extinguish X Corp's safe harbors from civil liability provided under Section 230 of the Communications Decency Act. Under Section 230, social media companies are immune from claims based on the publication of material on their websites that has been provided by another information content provider. Further, under Section 512(a) of the Digital Millenium Copyright Act, social media companies can avoid liability for copyright infringements when they act only as conduits for the transmission of information. The Court found that X Corp was trying to have it both ways by disclaiming ownership of the content to take advantage of the safe harbours and then trying to exert ownership rights to the content pursuant to Terms of Service that prohibited scraping of website content. To the extent that X Corp was trying to exert control over content while disclaiming copyright ownership, the Court held that X's common law claims were pre-empted by the Copyright Act of the United States. The Court dismissed the complaint but allowed X Corp to seek leave to amend if the amended complaint corrected the deficiencies addressed by the Court. To facilitate further proceedings, plaintiff was ordered to supply a red-lined copy of the proposed amended complaint showing all proposed changes. Failing that, judgment in favour of defendant would be entered.
X Corp |
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Poem for Friday
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From The Tempest, Act 4 Scene 1
By: William Shakespeare (1564-1616)
Our revels now are ended. These our actors, As I foretold you, were all spirits and Are melted into air, into thin air: And, like the baseless fabric of this vision, The cloud-capp'd towers, the gorgeous palaces, The solemn temples, the great globe itself, Yea, all which it inherit, shall dissolve And, like this insubstantial pageant faded, Leave not a rack behind. We are such stuff As dreams are made on, and our little life Is rounded with a sleep.
Recitation by Patricia Conolly. With seven decades experience as a professional actress in three
continents, Patricia Conolly has credits from most of the western world’s leading theatrical centres. She has worked extensively in her native
Australia, in London’s West End, at The Royal Shakespeare Company, on Broadway, off
Broadway, and widely in the USA and Canada.
Her professional life includes noted productions with some of the
greatest names in English speaking theatre, a partial list would include: Sir Peter Hall, Peter Brook, Sir Laurence Olivier, Dame Maggie Smith,
Rex Harrison, Dame Judi Dench, Tennessee Williams, Lauren Bacall, Rosemary
Harris, Tony Randall, Marthe Keller, Wal Cherry, Alan Seymour, and Michael Blakemore.
She has played some 16 Shakespearean leading roles, including both
Merry Wives, both Viola and Olivia, Regan (with Sir Peter Ustinov as Lear), and The Fool (with Hal Holbrook as Lear), a partial list of other classical work includes: various
works of Moliere, Sheridan, Congreve, Farquar, Ibsen, and Shaw, as well as
roles such as, Jocasta in Oedipus, The Princess of France in Love’s Labour’s Lost, and Yelena in Uncle Vanya (directed by Sir Tyrone Guthrie), not to mention three Blanche du Bois and one Stella in A Streetcar
Named Desire.
Patricia has also made a significant contribution as a guest speaker,
teacher and director, she has taught at The Julliard School of the Arts, Boston
University, Florida Atlantic University, The North Carolina School of the Arts,
University of Southern California, University of San Diego, and been a guest
speaker at NIDA, and the Delaware MFA program.
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