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All I can say is – this is the coolest thing I have seen on Youtube perhaps ever! It’s basically an interactive video where you get to the choose the path you take at the end of each “stage”. Do you remember reading those sci-fi books – Choose your Own Adventure – where you get to choose the path you take and the combination of different paths was almost limitless ? Well now imagine a video version that basically takes the same approach.

The beauty of web videos done in this manner is that they are highly engaging to the end user – which means that more eyeballs see them and therefore the opportunities for advertisers are huge. The ROI in producing something like this with a brand sponsor would be massive. Even internal product placements and ’sponsored themes’ would enable advertisers to subtlety introduce their products into the videos without ruining the user experience by having pre-or-post role ads etc.

Really, really cool and well done. Check it out!

The balance between the right to free speech and the protection of a person’s reputation are the fundamental underpinnings on which defamation law is based. The root of this balance ostensibly stems from one person’s right to protect their reputation in light of another person’s right to publish comment on it. The judicial system has long upheld the notion that if a person deliberately or maliciously publishes material which adversely and unfairly affects another’s reputation – a cause of action will exist to the person aggrieved. Such a notion has historically only existed at common law and has been fraught with complexities associated with the interpretation of defences to any defamatory cause of action. The recent the introduction of the Defamation Act 2005 has attempted to uniform defamation litigation across all Australian jurisdictions and endeavoured to ensure that defamation cases are trialled with greater consistency. Unfortunately, such an enactment has still left countless unresolved questions with respect to the manner in which litigating parties interpret defamatory meanings and how such meanings are pleaded.

Continue Reading – Defamation – Polly Peck Defense

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The balance between entrepreneurial risk-taking and a director’s corporate responsibility are inversely correlated under current securities law. The success of any corporate enterprise is entrenched in the ability of its executive management to facilitate and incorporate risk as a function of its operating capability. It is antithetical to contend that shareholder value can be created without undertaking some risk as it is a fundamental component of the corporate profit-return ratio. Of course, these principles must be balanced in light of those directors who embrace risk as an extremity and who carelessly and dishonestly destroy value through overzealous adoption. While Australian corporate law has attempted to balance these conflicting notions with the enactment of risk assessment provisions such as the business judgement rule in s180(2) of the Corporations Act 2001 (Cth) – the degree to which the law fosters and encourages directors to undertake structured entrepreneurial risk still remains questionable. The function of a director is enshrined in Chapter 2D – Part 1 – Division 1 of the Corporations Act 2001 (Cth) and their primary duties are to act in the best interests of the company and for a proper purpose. The extent to which this essential requirement is rationalised with unsystematic risk adoption rests on the judicature’s ability to interpret risk and determine the degree to which a managerial judgement was reasonable in the circumstances. Of course, the inherent nature of a judicial inquiry in relation to corporate risk infers that the risk undertaken was excessive and the complainant is disputing the efficacy of it. The Courts consideration in this regard must then fall to an examination of whether a director failed to exercise a reasonable degree of care and diligence in the discharge of his duties.

Continue Reading – Entrepreneurial Risk in Corporate Law

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The unparalleled advance of the Internet in the modern era has lead to vast new opportunities for marketers in the digital realm. The fusion of information technology and access to the Internet has acted as a catalyst for software based algorithms which purport to closely match online media content to highly targeted advertising. The adoption of cookie-based tracking technologies combined with internet protocol address geotargeting has allowed online advertising to be refined to such a degree that relevant and accurate advertising can be matched to any content that any particular Internet user is viewing at any particular time. Evidently, an important facet of this technology is the critical reliance of text based inputs in order to interpret and decipher the particular content being viewed. The fundamental dependence on text interpretation by advertising algorithms has lead to significant judicial confusion regarding the permitted use and manipulation of such text in the context of trademarked terms. The conflicting legal paradigm is the apparent statutory authority provided by trademark legislation which purports to provide the registered owner of a trademark exclusive rights over a sign for the goods and/or services in which it is registered – against the use of such a mark by advertising systems as a contextual input driver in order to accurately correlate the most appropriate advertising content to the inputted term. To further complicate this paradigm, the usage of trademark terms must be categorised into two distinct and separate groupings – those terms which are driven by direct user-input – entered into search engine interfaces which then render search results correlated with relevant search advertising – and those that are automatically extracted by advertising systems from the web page meta data layer. This latter category usually couples a machine algorithmic approach with human assisted text identification – commonly referred to as meta tagging – for the purposes of enhanced content interpretation which augments the advertising matching process.

Continue Reading – The Use of Trademarks in Meta Tags & Sponsored Links

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In any federal system of government, the constitution must regulate the legal relationships that exist between the central repository of governmental power and the regional or provincial levels of government which co-exist with it. In Australia, the regulation of intergovernmental power was first discussed in D’Emden v. Pedder where it was established that the Commonwealth was impliedly immune from any associated state legislation – the reciprocal position being established in Federated Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees Association. This rationale was subsequently rejected in the Amalgamated Society of Engineers v Adelaide Steamship case and the constitutional interpretation of intergovernmental immunities was redefined by the High Court in the Melbourne Corporation v Commonwealth decision. The scope of immunity after the Melbourne Corporation v Commonwealth decision was poignantly termed the Melbourne Corporation doctrine and it consisted of two distinct limbs – framed by Mason J in Queensland Electricity Commission v Commonwealth. The first limb consisted of a prohibition against State discrimination such that the Commonwealth could not place special burdens or disabilities on the States, while the second limb was a prohibition against the creation or application of laws that ‘[i]mpose restrictions which prevent [the States] from performing functions or impede them from doing so.’ While the first limb of the Melbourne Corporation doctrine was applied by the High Court in the QEC Case, the second limb of the test was not definitively applied until Western Australia v Commonwealth where the High Court rejected Western Australia’s argument as to the validity of the Native Title Act 1993 (Cth) ruling that ‘[t]he Act does not purport to affect the machinery of government of the State’. Additionally, in Re Australian Education Union and Australian Nursing Federation; Ex parte Victoria the High Court again considered the second limb of the Melbourne Corporation doctrine – applying it against the Commonwealth Industrial Relations Commission in upholding the Victoria’s contention that the States should have the power to determine ‘[t]he terms and conditions on which its employees shall be engaged’.

Continue Reading – Constitutional – Austin v Commonwealth

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Importantly, the mortgagee’s registration of your mortgage entitles them to a redeemable interest in your property until such a time as the mortgage debt is discharged. This interest is measured as the difference between the amount of mortgage debt remaining and the value of the mortgaged property, and is termed a ‘mortgage covenant’ which remains affixed to your registered title until such a time as you dispose of the property or the mortgage itself. Typically, the right to enforce this redeemable interest is stipulated by the terms of the mortgage contract and a contravening event which triggers a breach of it. In the current circumstances, you defaulted on your agreed mortgage contract repayments from September 2008 and this has resulted in the mortgagee issuing you with a notice of default. Under s76(1) of the TLA 1958 – the mortgagee must provide you with a notice, in writing, informing you of your default and respective ways in which you can rectify the breach in accordance with s80(3) of the Consumer Credit Code (Vic) .

Continue Reading – Advanced Property – Power of Sale

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A transaction which is encompassed within the details outlined in 2.7 has been explained in detail via a two-trust mechanism in Barclays Bank Ltd v Quistclose Investments Ltd. In this case, the Court stated that a primary trust is formed to carry out a lender’s stipulated instructions as to how the loaned monies are to be used coupled with a secondary trust which would take effect if the primary trust failed. Modern law has since favored a singular trust scenario created through an express or resulting trust in favour of, and protecting the intention of, the settlor. The degree to which an express or resulting trust arises must be determined through intention, and if the intention is to benefit a third party through some contractual arrangement between the settlor and the trustee – Gummow J commented in Re Australian Elizabethan Theatre Trust that the mutual intention of the settlor and the trustee should be examined in combination with ‘the essence’ of their bargain.

Continue Reading – Trusts – Quistclose Trusts

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A fundamental rule of evidence involves determining the admissibility of evidence by balancing the probative value of that evidence and the prejudicial effect of admitting it. In R v Swaffield the High Court addressed this fundamental issue in the context of voluntary confessions and the degree to which they are admissible in respect of voluntariness, unfairness and public policy considerations. Central to the High Court’s ruling in this case, was whether a voluntarily confessional statement – made to a person whom the confessionalist did not know was a police officer or a person acting for the police – could be admitted into evidence in a trial against the confessionalist for an offence relating to the statement. Most importantly, the High Court considered this in light of the confessionalists exercised right to silence. Toohey, Gaudron and Gummow JJ delivered a joint judgment in respect to the facts in this case holding that – following a determination that a confession was voluntary, the judge should firstly consider the discretion to reject such a confession on the grounds of unreliability before balancing this consideration on the principles of unfairness and public policy.

Continue Reading – Evidence – Voluntary Confessions

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The engagement in litigation is synonymous with risk and the inherent probability that the case brought forth against the defendant may fail. The burden of costs imposed on a party who has unreasonably rejected an otherwise reasonable offer of compromise has been a long established rule of judicial engagement. The increasing cost of litigation coupled with the sheer number of claims that are presented to the Courts each year compels the need for adverse sanctions to be enforced against those who do not attempt to reasonably settle a dispute prior to trial. It has been argued that the settlement of such disputes can often lead parties to a cynical view of the judicial system and the inherent belief that justice was not adequately achieved. Such contentions are principally unfounded given that all settlements are at the free will of each litigant and are decided with the guidance of their legal counsel in respect to an assessment of costs if the matters were to proceed to trial. The importance of a pragmatic costs judgment, in addition to a realistic assessment of the strength of each party’s arguments, forms the critical determination of whether an offer of compromise is accepted or rejected. The reliance on legal practitioners in this regard is paramount in balancing the outcome the litigant desires against the probability of success or failure in the trial itself.

Continue Reading – Civil Procedure – Offers of Compromise

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The Basel II framework is a multilateral framework that is built entirely on three cross pollinating pillars that seek to further align the capital requirements of financial institutions on an international level. The existing 1998 Basel Capital Accord, while undoubtedly effective in increasing the standards adopted by institutions in the international market place, has had many criticisms that the Basel Committee on Banking Supervision have attempted to rectify in the new structure. The most virulent criticisms of the existing Basel I framework include the imbalance in the precise amount of capital needed for any particular institution and the failure of operational risks to be reflected in the capital adequacy ratio. Furthermore, it has also been commented that the existing risk classifications and the current 8% capital adequacy ratio, are not indicative of the current banking environment.

Continue Reading – An Explaination of the Basel II Framework in the Australian Market

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