The Full Court (Lindgren, Finn and Bennett JJ) have dismissed the University’s appeal against the trial judge’s (the then French J) findings that the University did not own the targeted microsphere technology inventions Professor Gray made (partly) while a professor at the Uni.
The full 380 paragraphs – University of Western Australia v Gray [2009] FCAFC 116
Lid dip @pofip
Telstra and Optus have an interconnect agreement, in part to regulate how callers originating from one network get delivered to the other, charges and the like.
Optus successfully sued Telstra for misusing Optus’ confidential information under the agreement: information about call traffic between the two networks.
(You should look at that judgment as it illustrates the two-edged nature of many definitions of confidential information.)
In this part of the fight, Edmonds J declined to grant relief under the equitable obligation of confidence as the contractual obligations in question were comprehensive.
His Honour also explored the meaning of the prohibition on unconscionable conduct in s 51AA of the TPA, but declined to find a contravention in that context.
Optus Networks Ltd v Telstra Corporation Ltd (No. 3) [2009] FCA 728
The blogosphere ‘lit up’ and Facebookers (?) went on the rampage when it emerged that Facebook was unilaterally changing its terms of use (and not telling anyone) - Facebook: All Your Stuff is Ours, Even if You Quit.
Jonathon Bailey at Plagiarism Today looks at the EFF’s new TOSBack so you can keep up to date with how your service provider is “shifting the goalposts”.
Google, for example, amongst other things insidiously changed “Terms of Service for Blogger.com” to “Blogger Terms of Service”. (Vote of thanks to whichever Supreme Being I’m following today that I don’t use Blogger!)
All joking aside (and remembering the outrage at Facebook – hope Twitter doesn’t own all my tweets?), this could be a very practical tool.
p.s. Facebook did allow its outraged users to set up a community on Facebook to campaign against the change.
Logan J expresses the view, which in the end wasn’t necessary for his decision, that the instantaneous communication rule applies when considering when and where the acceptance of an offer by email occurs. That is, his Honour would employ an analogy to telexes – the place where the message is received; not the postal rule the time and place where the letter was posted.
25. Flottweg’s acceptance was communicated by email to Olivaylle at its olive grove in Victoria. Experience suggests that email is often, but not invariably, a form of near instantaneous communication. The parties seemed content to assume that the place of contract was either Victoria or New South Wales, content because the common law of Australia was the same in either place and so, too, was the only statute law considered material. There was no suggestion in submissions that the place of contract was, for example, Germany. As a result, the ramifications of the adoption by the parties of email for their written pre-contractual communications, particularly the acceptance, were not explored. As it happens, the subject of formation of contracts by email has been explored in depth in an article by a local academic, Christensen S, “Formation of Contracts by Email Is it Just the Same as the Post?” (2001) 1(1) Queensland University of Technology Law and Justice Journal 22. Ms Christensen details there arguments for and against the assimilation of email communications with “the postal rule” or with what one might term “the instantaneous communication rule” and also the local adoption of international convention which touches on the subject. Having regard to the position taken by the parties in this case, it is not necessary to give detailed consideration to the point. It is enough to observe that I consider that there are analogies to be drawn with the way the law developed in relation to telex communications in an earlier era where what I have termed “the instantaneous communication rule” came to be adopted, perhaps at the expense of scientific precision but not so in relation to common commercial understanding. Thus, by analogy with cases concerning the position with what were, or were treated as, other forms of instantaneous communication, I consider that the contract was made where the acceptance was received, ie in Victoria: Entores Ltd v Miles Far East Corporation [1955] 2 QB 327; W A Dewhurst & Co Pty Ltd v Cawrse [1960] VR 278; Express Airways v Port Augusta Air Services [1980] Qd R 543; Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11,106.
Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) [2009] FCA 522
Lid dip Inchoate.
This seems eminently sensible in many situations, but could well prove rather random. Suppose you’re travelling from INTA and you get the email on your Blackberry (or that other phone) at LAX. Contract governed by the laws of California?
