Apple's 4G iPad 3 advertising and the ACCC - undertakings filed

In response to the proceeding filed by the ACCC, Apple has filed undertakings in the Federal Court of Australia.

A media release from the ACCC notes that Apple has filed undertakings which provide that until further order or hearing, Apple Pty Limited would as soon as is reasonably practicable and by no later than 5 April 2012:

• display a statement that the “This product supports very fast cellular networks. It is not compatible with current Australian 4G LTE networks and WiMAX Networks” in its promotional materials, on its website and online store
• distribute signage with the same wording to resellers to be displayed at points of sale
• contact by email any persons for whom Apple Pty Limited has an email address and who have purchased the “iPad with WiFI + 4G” between 16 March and 28 March 2012 (including pre-orders prior to 16 March 2012) including statements to the effect that “This product supports very fast cellular networks. It is not compatible with current Australian 4G LTE networks and WiMAX Networks” and that such persons are entitled to return the product and request a refund within a timeframe specified in the email.

The following are the main steps in the proceeding leading to trial:

• A directions hearing has been scheduled for 16 April 2012 at 9:30am. 
• A mediation has been ordered for 18 April 2012. 
• A hearing on liability has been set down commencing 2 May 2012

The ACCC release is here.

Law Council publication - Federal Court of Australia Case Management Handbook

The Law Council of Australia has just released a handbook for case and hearing management in the Federal Court of Australia. The handbook is 79 pages and draws on the experience of the Law Council of Australia, senior practitioners and the judiciary to provide a user friendly guide to running cases in the Federal Jurisdiction.

A link to the media release and the handbook is here.

The foreword is authored by the Honourable Chief Justice Keane, and it reads as follows:

This Handbook is a very important development in the ongoing dialogue between the Federal Court of Australia and the legal profession who practise before it about how best to manage the cases which are commenced in the Court.

The Federal Litigation Section of the Law Council of Australia and the members of that Section who gave so generously of their time to author the individual chapters which make up the Handbook are to be congratulated.

It is a first class product and contains a wealth of information, guidance, ideas and suggestion about the tools and techniques available for use in the Court. It garners the experience of judges and practitioners alike and provides a valuable insight to case management in litigation in the Federal Court.

I commend the Handbook to all practitioners and encourage them to make full use of this outstanding resource.

I suggest my readers download a copy and review it, as the handbook really is a great practical resource for any sort of litigation, particularly in the Federal Court of Australia.

The Centro matter: ASIC v Healey [2011] FCA 717 and breach of director's duties.

The matter of Australian Securities and Investments Commission v Healey [2011] FCA 717 was a hearing in relation to the Centro group in the Federal Court of Australia before Middleton J. It concerned the scope of a director's duty to exercise reasonable care and skill in the context of understanding the financial reports of a company.

The judgment of Middleton J is an excellent read because it commences with a summary of His Honour's findings in relation to the scope of the director's duty to exercise reasonable care and skill. I have included a case summary and extracts of the judgment below.

Opensoft Australia Pty Limited v Miller Street Pty Limited [2011] FCA 653 - service under s459G and 109X

The matter of Opensoft Australia Pty Limited v Miller Street Pty Limited [2011] FCA 653 (Opensoft) was an application involving a jurisdictional question before Jagot J in the Federal Court of Australia. Jagot J was asked to determine if service of an application was in accordance with s459G of the Corporations Act 2001 (Cth), which is a provision which allows a company to apply to set aside a creditor's statutory demand that has been served upon it.

By way of summary, on the last day for service of an application to set aside a demand served on it, the plaintiff company did the following (in chronological order):

• At around 4pm attempted to file the application and affidavit at the Federal Court Registry, which was closed.
• At around 4.05pm served, at the address for service in the demand (being the address of the business of the agent of the defendant) unsealed copies of the application and affidavit by attending at that address and hand delivering them.
• Filed, by way of e-lodgment with the Federal Court, the application and affidavit and obtained a sealed copy of this at around 5.20pm that day.
• Emailed the sealed copies to the email address of the agent listed in the address for service in the demand and CC'd the defendant. The email addresses were not set out in the demand and the plaintiff company obtained these from other sources.

The defendant gave evidence that the email was received by the agent that day, but the defendant never received the email which was alleged to have been CC'd to it. The Court found that service was not effected pursuant to s459G and the Court therefore could not hear the application.

I have included a case summary and discussion below.

Competition glossary

I am often mystified by the language adopted to explain competition conduct. Even when I work out what it means, I still scratch my head when I try to work out how a particular term came to describe a certain kind of conduct.

I have put together a basic glossary of these terms below with the assistance of the Competition and Consumer Act 2010 (Cth) and the summaries set out in the ACCC website. I have restricted my definition of each term to three lines or less (as read on my blog). I have hyperlinked the particular term to the appropriate explanatory webpage from the ACCC website, and I have hyperlinked the section number in brackets to the appropriate section of the consolidated Competition and Consumer Act 2010 (Cth) from AustLII.

Civil Dispute Resolution Bill - federal pre-litigation procedures

The Civil Dispute Resolution Bill (the CDR Bill) was recently passed by both houses of the Commonwealth Parliament. As far as I am aware it has not received Royal Assent, but I will let you know when it does. Generally speaking, the CDR Bill requires the parties to undertake 'genuine steps' to resolve a proceeding before it is commenced, and requires the parties to make a statement about those steps when issuing proceedings. I have included a discussion and summary of the CDR Bill in this post.