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.

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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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