The High Court sitting in the Queens Bench division recently rejected an application by the defendant, Modi, to order a trial on the extent to which the tweet the subject of  the action was read in jurisdiction.  The Defendant applicant argued that issue was relevant to both liabilityand damages. The  High Court ruled that numbers of readers alone was not decisive.

Facts

An expert giving evidence on behalf of Modi estimated that only 35 people viewed the message.  The Defendant argued that, as in Yousef Jameel and Dow Jones , the damage from any libel case would be so small as to be not warrent proceeding and so any case would be an abuse of the court process.

There was conflicting evidence as to extent of publication (see [19] – [ 22]). Cairns’ expert estimated the audience for the tweet to be around 100, by looking at the number of Modi’s followers in the court’s jurisdiction. While Cairn’s counsel accepted that not all of Modi’s followers would have seen the tweet directly, it was argued that some people would have received a communication of it by other means.

Decision and reasoning

Mr Justice Tugendhat found that the number of people who saw the message was only one of a number of considerations in a defamation case. He found at  [34]:

In any event, the Jameel type of abuse of process does not depend on numbers alone.  [Cairns] has resided in this jurisdiction in the past, and expects to return to live here again. There have been recent cases in which the court has declined to strike out claims based on a direct communication to a single publishee.

Mr Justice Tugendhat said Read the rest of this entry »

In two recent decisions the Victorian Supreme Court considered the issue of what is meant by genuine dispute for the purposes of setting aside a statutory demand under section 459G(1) of the Corporations Act with the Court in  Freestyle Energy Limited v Renewtek Pty Ltd finding there was a genuine dispute while in  Re LPD Corporation Pty Ltd the Court refused to set aside a statutory demand.  In the third decision, Renegade Rigging Pty Ltd v Hanlon Nominees Py Ltd, the Court considered the service of statutory demands.  These decisions which will be of use to practitioners who practice insolvency law.

LPD Corporation

In determining whether there was a genuine dispute Davies J set out the relevant principles:

1. any dispute must be a genuine dispute [3] and one which is bona fide and Read the rest of this entry »

The High Court’s decision in Spencer v Commonwealth of Australia is a useful consideration of the principles related to summary judgment applications.

FACTS

Mr Peter Spencer has conducted a vigorous campaign in the public arena and through Federal Court litigation against land clearing legislation and the attendant regulations.  A very useful summation is found at the ABC Law Report site.   He commenced proceedings against the Commonwealth in the Federal Court alleging that the restrictions imposed upon land clearing by New South Wales legislation constituted an acquisition of property. Because those laws were enacted in furtherance of an agreement with the Commonwealth such acquisition was made for the purpose of obtaining land other than on just terms and, accordingly, in breach of section 51(xxxi) of the Constitution.  The primary judge dismissed Mr Spencer’s claim pursuant to Rule 31A of the Federal Court Rules, the summary judgment provisions (see pars [10] – [13]).  The Full Court  dismissed Mr Spencer’s appeal (see [14] – [16] for more detailed discussion).

ISSUES

The decision, while unanimous, was considered in separate judgments of French CJ and Gummow, that of Hayne, Crennan, Kiefel and Bell JJ and a short judgment of Heydon J.  Rule 31A provides:

“(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Court has apart from this section.”

Per Hayne, Crennan, Kiefel and Bell

Their Honours regarded the starting point of any enquiry is, at [52], whether “..there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.”  The no reasonable prospect test differs from earlier rules of procedure relating to summary judgment applications where the exercise was a determination as to whether a proceeding would necessarily fail ([53]) with the test “requiring certain demonstration of the outcome of litigation, not an assessment of the prospect of its success” [54].

Their Honours in posing the question of how the expression “no reasonable prospect” should be understood Read the rest of this entry »

Two decisions of the Supreme Court last week, provide a very detailed and useful analysis regarding applications to set aside a subpoena and a summonses.  In Burchell & Anor v Hill & Ors a non party sought to set aside a subpoena issued under Rule 42A.01.    In Re Bill Express Limited (in liq) , the applicant, appealing from a decision of Gardiner AsJ,  sought to set aside a liquidator’s summons for production.

Burchell & Anor v Hill & Ors

Facts

The plaintiff issued a subpoena to the National Australia Bank Limited, a non party. The NAB objected to Read the rest of this entry »

In Blackman & Ors v Gant & Anor Vickery J considered a very interesting no case application by the Second Defendant.  This is a case that has drawn considerable press coverage, including in the Australian and the Age.

FACTS (pars 4 – 11)

The Plaintiffs are the artist Charles Blackman and his trustee, Robert Dickerson.  The Second Defendant is Peter Gant, an art dealer.  Gant originally supplied three works of art to a Helen Stewart , another art dealer, together with two valuations of the works.  She was the former First Defendant.  Stewart sold the works to a a Robert Blanche, giving him a copy of the valuations.  The evidence is that Blanche relied upon one of the valuations when purchasing the works and used the other for insurance valuation purposes.  When, later, Blanche was advised that the works were not authentic he returned them to Stewart who refunded his money.  Stewart then returned the works to Gant.   The Second Defendant maintains the works are authentic.  The issue before Vickery J was confined to the Second Defendant’s no case application.

ANALYSIS

The Plaintiffs claim, at [12], that the valuations impliedly represent that the works were authentic and consequently a breach of Read the rest of this entry »

Its raining Calderbank offers!  In three separate and unrelated decisions last week  the Supreme Court considered both the body of relaw relating to Calderbank Offers and their application to the facts.

Sanelli v Sanelli & Anor

Mukhtar AsJ in Sanelli considered a very full throated application by the plaintiff for indemnity costs.  At [29] Mukhtar AsJ Read the rest of this entry »

In Bernstein v Georgakakis & Anor Beach J analysed an application for removal of a caveat placed in August 2005 over property owned by a sole proprietor but arising out of an agreement between her husband and someone he was in business with.   It is a useful judgment in both restating principles but in dealing with equitable interests in this (unusual) fact situation.

His Honour sets out the principles at [5] & [6] regarding the principles applicable in removing caveats under section 90(3) of the TLA, namely:

• it is broadly analogous to determination of interlocutoryinjunctions – the power is discretionary;
• the caveator has the onus of establishing there is a serious question to be tried that he has an interest in the land; and
  
• the balance of convenience favours maintenance of the caveat until trial;

The evidence

The agreement, reproduced at [7], in this case is exhibit A as an example of what to avoid when seeking to make a claim for an equitable right over property. The agreement seemed to relate to an agreement between the Plaintiff/sole proprietor’s husband and a putative business partner regarding purchase of shares in a pet food business.  His Honour forensically analysed the many deficiencies in the agreement, at [17] – [26].  The first observation made was that it consisted of 5 recitals and no operative clauses. The problems included the agreement:

• requiring the husband to pay $3 million for 15% share in a company that had not been established at the time of the agreement;
• referring to the parties a creditor and debtor respectively.  Hardly consistent with an investment;
• in one part limiting the interest to $3 million, at another recital registering the interest for not less than $3million.

Unusually in such applications the deponents were cross examined and his Honour found that that sole proprietor never knew of this agreement.  In examining the enforceability of the agreement Read the rest of this entry »

Abraham Lincoln had good advice about writing a letter when angry. Write the letter, you will have a good time getting your feelings onto paper and feel the better for it. Leave it overnight. Return the next day, burn the letter and writer another. Good advice , bad for defamation lawyers. It should be mandatory for lawyers who put pen to paper in anger.

There can be a fine line between being forthright and acting without fear or favour on behalf of one’s client and being offensive, provocative or, the using the catch all phrase, bringing the profession into disrepute. The Full Bench of the ACT Supreme Court considered this question in DAVID LANDER v COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY, The court reviewed a decision of the Legal Practitioners Disciplinary Tribunal that David Lander, had by statements made in a letter to the Chief Executive of the ACT Department of Education and Training was guilty of unsatisfactory professional conduct.

The letter (republished in full at par 4) leaves very little need for explanation. The following extracts demonstrate why it prompted a complaint Read the rest of this entry »

In Sopov & Ors v Kane Constructions Pty Ltd the Court of Appeal again traverses the well worn path of applications for stay of execution. The applicants sought a stay of a Court of Appeal decision pending a special leave application to the High Court. I most recently analysed the approach to stays by the Court of Appeal in my post on Gangemi v Osborne.

In this proceeding the applicants/appellants sought to distinguish a stay application to the High Court from other stay applications, submitting that the former did not require special or exceptional circumstances (par 45). The other bases for the application, which constituted exceptional circumstances were:

• the applicants did not have the resources to pay the judgment debt and their accountant said they would face bankruptcy if the orders were enforced. This meant they could not prosecute their appeal (par 45);
• there was a substantial prospect that special leave would be granted (par 46);and
• the respondents had already received substantial monies (par 46)

At paragraphs 52 & 53 their Honours restated the well settled proposition that the principles applying to stays pending a High Court special leave applications do not differ from other stay applications, stating: Read the rest of this entry »

Prolonged delay between issue and hearing on a damages/liquidated sum claim often means a significant interest component in a final award for a successful plaintiff. That can be the subject of a significant argument and separate determination, as the Court of Appeal did in Giller v Procopets (No 2) [2009] VSCA 72 and, a case I was and remain involved in, Walker & Anor v Hamm & Ors (No 2) [2009] VSC 290. Both decisions carefully and clearly set out the applicable principles associated with the award of interest and when delay or other factors justify adjusting the period of time over which interest should be calculated and/or varying the rate.

In Kalenik v Apostolidis & Ors (No 2) Hargrave J again considered those principle. The default position is

“..interest ‘must’ be ordered for the whole of the period after the issue of the writ unless ‘good cause Read the rest of this entry »