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.

Access to emails is often an important management tool, which facilitates good and proper administration, in relation to the affairs of a business, but, also, is important in corporate negotiations and, potentially, disciplinary matters.  In those circumstances, it is important to ensure that emails of a work nature are sent and received using company facilities and not by utilising private or non corporate accounts and servers.

Unlike the Bible, when David takes on Goliath in the real world, Goliath almost always wins. Not any more. Enter the new species of litigation – the class action and the litigation funder. As we become more risk averse to litigation, yet continue to live in an age of consumerism where goods and services are mass produced, the idea of an army of Davids is emerging.

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.

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.In contrast, the demands by some that franchisees be compensated for their perceived loss of goodwill if a franchise is not renewed at the end of term or for the right of mandatory or automatic extension of franchise agreements have not been met. The report rejects these concepts as interference with the fundamental principles of contract and property law.

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.

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.

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.

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.

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.

Treasury has announced that implementation of the unrelated commercial activities tax will be further delayed to 1 July 2014.  The tax remains retrospective for those unrelated commercial activities that commenced after 7:30 PM on 10 May 2011, subject to passing the enabling legislation.  This leaves charities with uncertainty regarding the tax status of their commercial activities.