Personal Privacy Rights in the Application Generation

Personal Privacy Rights in the Application Generation

In the age of third party Application Programming Interfaces (“APIs”) such as internet banking applications, Facebook and Google Maps, the collection and distribution of personal data is shrouded in mystery. Unless of course you take the time to read the masses of information included in privacy policies. With recent media surrounding the issue it is clear that a large portion of the public may not be educated about the applications and the businesses behind them can collect and/or disclose their information.

What are the privacy rights under the law?

The Privacy Act 1988 (Cth) (“the Privacy Act”), and the 13 Australian Privacy Principles (“APP”) contained within it, are the relevant guidelines for privacy in Australia.

Definition of an APP Entity

These 13 principles are applicable to “APP entities”. An APP entity encompasses:

  • a Commonwealth Government agency; or
  • an organisation (including an individual, body corporate, partnership, unincorporated association,
    or trust).[i]

An APP entity does not include:

  • a State or Territory authority
  • small business operators, which are business with an annual turnover of $3 million or less. Unless the following exceptions apply:
    – The business provides a health service to another individual and holds any health information except in an employee record;
    – The business discloses personal information about another individual for a benefit, service or advantage, or provides a benefit, service or advantage to collect personal information;
    – The business is a contracted service provider for a Commonwealth contract; or
    – The business is a credit reporting body.[ii]

The Privacy Principles[iii]

The Principles as a whole are wide-ranging and cover a whole array of issues. However, the Principles specifically relevant to how your information may be collected and distributed and include:

APP 3:  Collection of solicited personal information

An APP entity must not collect personal information (other than sensitive information) unless the information is reasonably necessary for, or directly related to, one or more of the APP sentity’s functions or activities. Sensitive information must not be collected unless there is consent or the information is reasonably necessary for the APP entity’s functions. Sensitive information can include, but is not limited to:

  • racial or ethnic origin;
  • religious beliefs;
  • membership of a union;
  • criminal record; and
  • health information.

APP 6: Use or disclosure of personal information

An APP entity cannot disclose the information for a purpose (other than the purpose it was collected for), unless there is consent or one of the following applies:

  • there is a reasonable expectation that the APP entity would use or disclose the information; or
  • the use or disclosure is required or authorised by or under an Australian law or a court/tribunal; or
  • a permitted general situation exists. Examples of this include:
    – Lessening or preventing a serious threat to the life health or safety of an individual;
    – The establishment, exercise or defence of a legal or equitable claim; or
    – The purposes of a confidential alternative dispute resolution.
  • a permitted health situation exists. Examples of this include:
    – Providing a health service
    – Research relevant to public health or safety
    – Preventing a serious threat to the life, health or safety of the individual or an individual who is a genetic relative.

APP 7: Direct marketing

An organisation must not use or disclose personal information for the purpose of direct marketing. Exceptions to this include:

  • a reasonable expectation that the organisation would use or disclose the information for direct marketing; or
  • a simple means by which the individual may easily request not to receive direct marketing communications is provided; or
  • consent has been provided.

Sensitive information has more stringent requirements allowing for consent to be the only exception to the disclosure of sensitive information for the purposes of direct marketing.

What amounts to a breach of privacy?

If the business or organisation you are dealing with falls into the category of an APP entity, and collects, uses or discloses your information in a way that is conflicting with the Principles (and no relevant exception applies), this may amount to a breach.[iv]

Taking applications for example, you will commonly find the privacy policies and relevant information being grouped together. This is referred to as bundled consent, or a “click-wrap”. It is a common practice amongst software licenses and online transactions. The potential issue of a “click-wrap” is the effect it has on consent.

There is an argument that being unable to use a service until a “click-wrap” is accepted, or an inability to withhold consent on specific terms may have an influence on whether informed consent was provided.

The penalties for breaching the Privacy Act can amount to $1.8 million for corporate bodies or $360,000 for non-corporate bodies (including government departments/agencies, sole-traders, partnerships, trusts, unincorporated associations).

What can I do if I believe my privacy has been compromised?

If you believe that your privacy has been breached under the Act, you are an APP entity that might be in breach of the Principles, or would like further information, please contact your local JHK Legal office.

The above article is not intended to be a substitute for legal advice.

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[i] Section 6 of the Privacy Act 1988 (Cth).

[ii] Ibid.

[iii] Schedule 1 of the Privacy Act 1988 (Cth).

[iv] Section 6A of the Privacy Act 1988 (Cth).

How to ensure your Calderbank offer is valid

In December last year, my colleague Dylan Trickey published an article on the “Elements and Benefits of the Offer of Compromise.” In his article, Dylan compared the Offer of Compromise and the Calderbank offer and provided a number of reasons as to why the Offer of Compromise can be more favourable.

However, there are often instances where Offers of Compromise may not be available or appropriate and a Calderbank offer is more suitable. For this reason, it is vital that legal practitioners are aware of the elements which constitute a valid Calderbank offer.

Litigation is more often than not costly and timely, and awarding costs is at the discretion of the courts. For this reason, (where appropriate), legal practitioners encourage their clients to explore settlement options with the opposing party in order to avoid an expensive, uncertain and perilous litigation process.

Calderbank offers are often looked at as a more flexible way to reach a settlement in situations where Offers of Compromise are not a viable option.

Please note that this article provides an overview only. Proceedings can be complex, and advice needs to be tailored to individual circumstances.  This article is not intended as a substitute for independent legal advice. 

If you have any questions or concerns we suggest that you contact JHK Legal for further information.

What is a Calderbank offer?

The Calderbank offer derived from the case of Calderbank v Calderbank [1975] 3 All ER 333 (“Calderbank v Calderbank”) and is an offer from one party to the other in order to attempt to resolve a dispute.[1]

A Calderbank offer must be a “genuine” offer, and open for a period of time that is reasonable. If the party receiving the Calderbank offers unreasonably rejects the offer, this may result in the rejecting party incurring adverse costs. A Calderbank offer can provide protection for parties who have incurred costs unnecessarily but can only do so if the offer complies with the requirements as set out below.

What are the elements of a Calderbank offer?

A Calderbank letter can be oral or written, and requires the following elements.

1. The offer must be marked “without prejudice save as to costs”:

Meaning the contents of the letter can only be used in Court with respect to the question of costs.

2. The offer is clear, precise and certain:

In the matter of Kemp v Ryan [2012] ACTCA 12, the Court of Appeal commented that the offer needs to be “sufficiently clear” to create a binding contract if the offer was accepted. It was noted that any terms which were open to multiple interpretations would not be classified as clear, precise and certain[2].

3. The offer must state the time in which the offer must be accepted and the offer must give a reasonable time for acceptance:

What is a “reasonable” time for acceptance will depend on a number of factors, including the complexity of the case. In Meldov Pty Ltd v Bank of Queensland [2015] NSWSC 2015 (No. 2)[3], it was found that an offer left open for acceptance for 12 days was “plenty” of time for the party receiving the offer to consider and accept the offer.

Despite this, it is recommended that an offer remain open for acceptance for at least 14 days.

4. The offer must make reference to being in accordance with the principles in the decision of Calderbank v Calderbank and that the offeror reserves its right to tender the offer on an application for costs if the offer is rejected:

Words to the following effect provide an example as to what should be included in the offer:

“This formal offer of settlement is made pursuant to the principles of Calderbank v Calderbank [1975] 3 W.L.R 586.This offer will remain open for a period of 28 days from the date of this letter at which time it will lapse and the matter will proceed to hearing. In the event that this offer is not accepted we will rely on this letter in any application for indemnity costs.”

5. The offer should include reasons as to why the offer should be accepted:

Although not required, it is recommended that the offer outlines reasons as to why the opposing party should accept the offer. A level of particularity will arguably improve the reasonableness of the offer, and this was supported by Lindgren J in NMFM Properties Pty Ltd v Citibank Ltd [2001] 109 FCR 77 (No 2):

“…No doubt where a party puts with sufficient particularity to the opposing party the reasons why the latter must fail, yet the latter does not recognise the inevitable, this will be a factor pointing to an award of indemnity costs…”[4]

Conversely, in Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd, Cole J noted that:

“…there is no obligation upon a party making an offer of settlement in a Calderbank letter to specify with precision the reasons why the opposing party will fail or should accept the offer….”[5]

It is also important to note that if a party makes an application for indemnity costs, they bear the onus of proving that rejecting the Calderbank offer was unreasonable.[6]

The Takeaway

Calderbank offers are an important tool in the litigation process and encourage compromise and settlement between parties where a formal offer is undesirable.

Calderbank offers need to be carefully drafted to ensure they constitute a reasonable offer of compromise. For the parties receiving the offer, a Calderbank offer should be considered seriously, and if the offer is reasonable, the opposing party should take careful consideration as to whether or not the offer should be accepted. This is because an offer that is unreasonably rejected will ultimately benefit the offering party when costs are ordered.

 

At JHK Legal, we can provide you with expert advice in commercial dispute resolution as well as a number of other areas of law.  If you require any legal assistance or advice, please contact JHK Legal on (02) 8239 9600.

[1] Calderbank v Calderbank [1975] 3 All ER 333

[2] Kemp v Ryan [2012] ACTCA 12.

[3] Meldov Pty Ltd v Bank of Queensland [2015] NSWSC 2015

[4] NMFM Properties Pty Ltd v Citibank Ltd [2001] 109 FCR 77.

[5] (Unreported, Supreme Court of New South Wales, 27 July 1994), 4. Cited in Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425, 440 (Rolfe J).

[6] MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236, 240 (Lingren J); Sural Spa v Downer EDI Rail Pty Ltd [2007] NSWSC 1292, [8] (Einstein J).

 

Written by Anna Hendrick, Lawyer

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How to sign a deed, and why it’s important

Deeds are regularly signed incorrectly by individuals, companies and powers of attorney on behalf of parties. A failure to sign a deed correctly can, as its worst consequence, result in the deed being unenforceable. It can also result in things like:

a) lenders refusing to fund;
b) further documentation being required;
c) tax consequences;
d) difficulty in opening things like bank accounts; and
e) litigation.

I am sure we would all agree that the above is all best avoided where possible. It is time consuming, stressful, and costly: potentially extremely so.

  1. Signing a deed as an individual

When signing a deed as an individual, you will usually see the words “signed, sealed and delivered” next to where you are required to sign.[1] This is really an old fashioned statement which means the document has been executed (signed), in front of a witness (sealed) and there is another party to the deed to whom you are producing it (delivered).

It is important, though, that these matters are complied with.

When executing a deed, you must sign in front of an independent adult person who also then executes as your witness. An independent person can be anyone independent of the deed, unlike some other documents which require authorised witnesses such as lawyers or justices of the peace.

It is very important that said person is definitely independent: otherwise their execution as a witness, and the enforceability of the deed itself, can be called into question.

These rules apply when you are signing as an individual partner on behalf of a partnership as well.

  1. Signing a deed as a company

A company does not require a witness when signing: the property law legislation in each state requires that companies sign deeds in accordance with section 127 of the Corporations Act 2001 (Cth).

Here, it is important to be aware of who can sign on behalf of your company.

a) If there is a sole director and no company secretary: the sole director must sign as sole director and confirm there is no company secretary;[2] 
b) If there is a sole director who is also the company secretary: that person must sign and note that they are the sole director who is also the sole company secretary;
c) If there is more than one director and/or company secretary: two of those people must sign to bind the company.

Regularly, clients of ours are not aware that when their company was set up, their husband/wife was added as a director/company secretary and attempt to sign deeds as sole directors. It is very important that you know who is a director and a company secretary of your company: for executing deeds and more generally for running your company.

The above rules apply when you are signing as a company partner on behalf of a partnership as well.

  1. Signing a deed as directed

Finally, companies may, by resolution of the board of directors, direct that someone to sign for the company,[3] or, a party may sign a deed appointing a power of attorney. There is some question as to whether a deed is enforceable where signed pursuant to a resolution only, so we recommend you seek advice about that direction prior to executing a deed.

There are several important factors around signing on behalf of an individual or a company when you are a power of attorney. This includes, where signing as a power of attorney for an individual, such execution being in the best interest of that individual.

We recommend you simply seek advice about your appointment prior to execution of any documentation as an attorney.

If you are unsure how to sign a deed or whether your deed has been signed correctly, please contact JHK Legal on 07 3859 4500.  The above article is not intended to be a substitute for legal advice.

[1] This varies from state to state, but broadly this applies.

[2] Importantly: this is not covered by section 127 of the Corporations Act 2001 (Cth), and therefore it is always best practice to have a company secretary to your company in Australia.

[3] A resolution of the board in and of itself may not be enough to appoint a power of attorney: it is important that you speak to a solicitor to assist you with any appointment.

Written by JHK Legal Director Sarah Jones

 

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