Legal Profession Act 2004 (NSW) : costs agreement between law practice and client - whether binding on non-associated third party payer

The decision in the New South Wales Supreme Court in Boyce v McIntyre [2008] NSWSC 1218 involved determination of a number of issues relating to an assessment of costs under the Legal Profession Act 2004 (NSW). The issue of broad significance was whether a non-associated third party payer must pay the fixed fee that was agreed between the law practice and the client. The court found that the client agreement did not form the basis of assessing costs for the non-associated third party payer.

UCPR r243 - notice of non-party disclosure - obligation to state allegation to which documents sought are directly relevant

In Deppro Pty Ltd v Hannah [2008] QSC 193 one of the matters considered by the court related to the requirement in r 243 of the Uniform Civil Procedure Rules 1999 (Qld) that a notice of non-party disclosure must “state the allegation in issue in the pleadings about which the document sought is directly relevant.”The approach adopted by the issuing party in this case of asserting that documents sought by a notice of non-party disclosure are relevant to allegations in numbered paragraphs in pleadings, and serving copies of the pleadings with the notice, is not uncommon in practice. This decision makes it clear that this practice is fraught with danger. In circumstances where it is not apparent that the non-party has been fully apprised of the relevant issues the decision suggests an applicant for non-party disclosure who has not complied with the requirements of s 243 might be required to issue a fresh, fully compliant notice, and to suffer associated costs consequences.

Judicial intervention in the affairs of unincorporated religious associations in New South Wales

The leading Australian High Court case of Cameron v Hogan (1934) 51 CLR 358 confirmed that associations which are 'social, sporting, political, scientific, religious, artistic or humanitarian in character’, and not formed ‘for private gain or material advantage’, are usually formed on a basis of mutual consent. Unless there is some clear, positive indication that the members wish to relate to each other in a legal fashion, the rules of the association will not be treated as an enforceable contract in contrast to the rules of incorporated bodies. Australian unincorporated associations experiencing internal disputes, like those in most other common law jurisdictions, have found courts reluctant to provide a remedy unless there is a proprietary interest or trust to protect. This is further compounded by the judicial view that an unincorporated association has no legal recognition as a ‘juristic person’. The right to hold property and the ability to sue and be sued are incidences of this recognition. By contrast, the law recognises ‘artificial’ legal persons such as corporations, who are given rights to hold property and to sue and be sued. However, when a number of individuals associate together for a non-commercial, lawful purpose, but not by way of a corporate structure, legal recognition ‘as a group’ is denied. Since 1934, a significant number of cases have distinguished or otherwise declined to follow this precedent of the High Court. A trenchant criticism is found in McKinnon v Grogan [1974] 1 NSWLR 295, 298 where Wootten J said that ‘citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions’. According to Wootten J at 298, if disputes are not settled by the courts, this would create a ‘legal-no-man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, and an arrogant disregard of rights’. Cameron v Hogan was decided in 1934. There is an increasing volume of first instance cases which distinguish or, in the words of Palmer J, ‘just pay lip service’ to this High Court decision. (Coleman v Liberal Party of Australia (2007) 212 FLR 271, 278). The dissenting cases seem to call for a judicial policy initiative. This would require recognition by judges that voluntary associations play a significant role in society and that members have a legitimate, enforceable expectation that the rules of the association will be observed by members and in the last resort, enforced by the courts without the need to prove contractual intention, the existence of a trust or the existence of a right of a proprietary nature. This thesis asks: what legal, as distinct from political, redress does an ordinary member have, when a rule is made or a process followed which is contrary to the underlying doctrines and philosophies embodied in the constitutional documents of an unincorporated religious association? When, if at all, will a court intervene to ensure doctrinal purity or to supervise the daily life of a large unincorporated religious association? My research objective is to examine and analyse leading cases and relevant legislation on the enforceability of the constitutions of large, unincorporated, religious associations with particular reference to the Anglican Church in New South Wales. Given its numerical size, wide geographical spread and presence since the foundation of New South Wales, the Anglican Church in New South Wales, contains a sufficient variety of ‘real life’ situations to be representative of the legal issues posed by Cameron v Hogan which may be faced by other large, unincorporated, religious associations in New South Wales. In contemporary society, large, unincorporated, religious associations play an important community role. The resolution of internal disputes in such associations should not remain captive to legal doctrines of an earlier age.

An analysis of corporate related-party disclosure in the Asia-Pacific region

Related-party (RP) transactions are said to be commonly used opportunistically in business and contribute to corporate failures. While periodic disclosure is widely accepted as an effective means of monitoring such transactions, research is scant, particularly in countries where business dealings may be more susceptible to corruption. This study investigates the nature and extent of corporate RP disclosures across six countries in the Asia-Pacific region. The key finding indicates that companies in countries with stronger regulatory enforcement, shareholders’ protection, and control for corruption, have more transparent RP disclosures. This evidence potentially contributes to reforms aimed at strengthening RP disclosure and compliance.

Improving the ability of guarantors to make a real choice : lenders' practices in taking third party guarantees

This article considers recent cases on guarantees of business loans to identify the lending practices that led the court to set aside the guarantee as against the creditor on the basis that the creditor had engaged in unconscionable conduct. It also explores the role of industry codes of practice in preventing unconscionable conduct, including whether there is a correlation between commitment to an industry code and higher standards of lending practices; whether compliance with an industry code would have produced different outcomes in the cases considered; and whether lenders need to do more than comply with an industry code to ensure their practices are fair and reasonable.

Affective events theory as a framework for understanding third-party consumer complaints

Poor complaint management may result in organizations losing customers and revenue. Consumers exhibit negative emotional responses when dissatisfied and this may lead to a complaint to a third-party organization. Since little information is available on the role of emotion in the consumer complaint process or how to manage complaints effectively, we offer an emotions perspective by applying Affective Events Theory (AET) to complaint behavior. This study presents the first application of AET in a consumption context and advances a theoretical framework supported by qualitative research for emotional responses to complaints. In contrast to commonly held views on gender and emotion, men as well as women use emotion-focused coping to complain.

Multi-party computation with conversion of secret sharing

Classical results in unconditionally secure multi-party computation (MPC) protocols with a passive adversary indicate that every n-variate function can be computed by n participants, such that no set of size t < n/2 participants learns any additional information other than what they could derive from their private inputs and the output of the protocol. We study unconditionally secure MPC protocols in the presence of a passive adversary in the trusted setup (‘semi-ideal’) model, in which the participants are supplied with some auxiliary information (which is random and independent from the participant inputs) ahead of the protocol execution (such information can be purchased as a “commodity” well before a run of the protocol). We present a new MPC protocol in the trusted setup model, which allows the adversary to corrupt an arbitrary number t < n of participants. Our protocol makes use of a novel subprotocol for converting an additive secret sharing over a field to a multiplicative secret sharing, and can be used to securely evaluate any n-variate polynomial G over a field F, with inputs restricted to non-zero elements of F. The communication complexity of our protocol is O(ℓ · n 2) field elements, where ℓ is the number of non-linear monomials in G. Previous protocols in the trusted setup model require communication proportional to the number of multiplications in an arithmetic circuit for G; thus, our protocol may offer savings over previous protocols for functions with a small number of monomials but a large number of multiplications.

Multi-party computation with omnipresent adversary

Secure multi-party computation (MPC) protocols enable a set of n mutually distrusting participants P 1, ..., P n , each with their own private input x i , to compute a function Y = F(x 1, ..., x n ), such that at the end of the protocol, all participants learn the correct value of Y, while secrecy of the private inputs is maintained. Classical results in the unconditionally secure MPC indicate that in the presence of an active adversary, every function can be computed if and only if the number of corrupted participants, t a , is smaller than n/3. Relaxing the requirement of perfect secrecy and utilizing broadcast channels, one can improve this bound to t a  < n/2. All existing MPC protocols assume that uncorrupted participants are truly honest, i.e., they are not even curious in learning other participant secret inputs. Based on this assumption, some MPC protocols are designed in such a way that after elimination of all misbehaving participants, the remaining ones learn all information in the system. This is not consistent with maintaining privacy of the participant inputs. Furthermore, an improvement of the classical results given by Fitzi, Hirt, and Maurer indicates that in addition to t a actively corrupted participants, the adversary may simultaneously corrupt some participants passively. This is in contrast to the assumption that participants who are not corrupted by an active adversary are truly honest. This paper examines the privacy of MPC protocols, and introduces the notion of an omnipresent adversary, which cannot be eliminated from the protocol. The omnipresent adversary can be either a passive, an active or a mixed one. We assume that up to a minority of participants who are not corrupted by an active adversary can be corrupted passively, with the restriction that at any time, the number of corrupted participants does not exceed a predetermined threshold. We will also show that the existence of a t-resilient protocol for a group of n participants, implies the existence of a t’-private protocol for a group of n′ participants. That is, the elimination of misbehaving participants from a t-resilient protocol leads to the decomposition of the protocol. Our adversary model stipulates that a MPC protocol never operates with a set of truly honest participants (which is a more realistic scenario). Therefore, privacy of all participants who properly follow the protocol will be maintained. We present a novel disqualification protocol to avoid a loss of privacy of participants who properly follow the protocol.

Assessment of costs : challenge to validity of client agreement between party entitled to costs and its solicitors

In ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 the Queensland Court of Appeal dismissed an appeal from the decision of Mullins J at first instance in ASIC v Atlantic 3 Financial (Aust) Pty LTd [2006] QSC 152, the majority concluding that the client agreement in issue was not inconsistent with s48 of the Queensland Law Society Act 1952.

Party to litigation insolvent company - costs order against non-party liquidator

In Kimtran Pty Ltd v Downie [2003] QDC 043 the court allowed in part an appeal from the refusal by the Queensland Building Tribunal to order the respondent liquidators pay the appellants' costs of proceedings in the Tribunal. The decision involved an examination of authorities which have considered the circumstances in which it is in the interests of justice to make an order for costs against a non-party.

Should the court direct that costs ordered to be recovered on the indemnity basis be assessed by reference to a costs agreement between the successful party and their solicitors?

The decision in Hook v Boreham & QBE Insurance (Australia) Limited [2006] QDC 304 considered whether the court should go further than order that costs be assessed on the indemnity basis, but should also specify the basis by which those indemnity costs should be determined. The decision makes it clear that under r704(3) of the Uniform Civil Procedure Rules, questions of that nature are ordinarily preserved to the discretion of the Registrar.

Malleability attacks on multi-party key agreement protocols

Multi-party key agreement protocols indirectly assume that each principal equally contributes to the final form of the key. In this paper we consider three malleability attacks on multi-party key agreement protocols. The first attack, called strong key control allows a dishonest principal (or a group of principals) to fix the key to a pre-set value. The second attack is weak key control in which the key is still random, but the set from which the key is drawn is much smaller than expected. The third attack is named selective key control in which a dishonest principal (or a group of dishonest principals) is able to remove a contribution of honest principals to the group key. The paper discusses the above three attacks on several key agreement protocols, including DH (Diffie-Hellman), BD (Burmester-Desmedt) and JV (Just-Vaudenay). We show that dishonest principals in all three protocols can weakly control the key, and the only protocol which does not allow for strong key control is the DH protocol. The BD and JV protocols permit to modify the group key by any pair of neighboring principals. This modification remains undetected by honest principals.

On secure multi-party computation in black-box groups

We study the natural problem of secure n-party computation (in the passive, computationally unbounded attack model) of the n-product function f G (x 1,...,x n ) = x 1 ·x 2 ⋯ x n in an arbitrary finite group (G,·), where the input of party P i is x i  ∈ G for i = 1,...,n. For flexibility, we are interested in protocols for f G which require only black-box access to the group G (i.e. the only computations performed by players in the protocol are a group operation, a group inverse, or sampling a uniformly random group element). Our results are as follows. First, on the negative side, we show that if (G,·) is non-abelian and n ≥ 4, then no ⌈n/2⌉-private protocol for computing f G exists. Second, on the positive side, we initiate an approach for construction of black-box protocols for f G based on k-of-k threshold secret sharing schemes, which are efficiently implementable over any black-box group G. We reduce the problem of constructing such protocols to a combinatorial colouring problem in planar graphs. We then give two constructions for such graph colourings. Our first colouring construction gives a protocol with optimal collusion resistance t < n/2, but has exponential communication complexity O(n*2t+1^2/t) group elements (this construction easily extends to general adversary structures). Our second probabilistic colouring construction gives a protocol with (close to optimal) collusion resistance t < n/μ for a graph-related constant μ ≤ 2.948, and has efficient communication complexity O(n*t^2) group elements. Furthermore, we believe that our results can be improved by further study of the associated combinatorial problems.

Party tricks struggles for votes with a social media audience

With Ten’s new drama Party Tricks set for an October 6 premiere, coverage has focused on the social media campaign to promote the show. In advance of the screening, Ten has created in-character accounts for the lead characters, Kate Ballard (Asher Keddie) and David McLeod (Rodger Corser)...

Wrecking ball: could big tech firms ruin the Spotify party?

YouTube is contemplating the launch of a new music service. But how would such a service fare against established music services like Spotify, Rdio, and Pandora? All these services are referred to as “access-based music services”. They offer music listeners access to millions of songs they can listen to as much as they want for free (with advertising and only basic functionality) or for a monthly subscription fee (without advertising)...