News: Three private law matters granted special leave

My co-editor Katy Barnett has lately lamented the lack of special leave grants in private law matters. She will be happy about the three grants last Friday. In my view, a particular pleasure of private law matters is how hard-fought they can be over minutiae. An example is one of the three matters granted, which was described as follows in the lower court by the dissenting judge:

This is yet another appeal in what has been a long and bitterly contested series of actions and appeals between Clone Pty Ltd (“Clone”) and Players Pty Ltd (“Players”). There have already been two sets of proceedings that have been the subject of appeals to the Full Court and unsuccessful applications for leave to appeal to the High Court.

For added interest, one side of the dispute – who lost two High Court special leave applications but succeeded in their most recent state appeal – includes three well-known sports stars. Their opponent – a company owned by a wealthy family including a high profile investment banker – obtained leave to appeal the reopening of their victory 11 years ago. Astonishingly, the core dispute is about whether the word ‘NIL’ in a 1994 lease agreement was crossed out with a blue pen, to be resolved by examining four surviving photocopies of the lease because the original was lost. (For a taste of the factual subtleties of that process, see the dissenting judgment at [673]-[694].) And yet, the case raises some very major issues indeed concerning civil discovery, the obligations of civil litigants and the finality of civil rulings.

The three matters where leave have been granted are:

  • Clone Pty Ltd v Players Pty Ltd (in liquidation) [2016] SASCFC 134, which involves a dispute about the transfer of liquor and gambling licences pursuant to a lease agreement. In 2005, Vanstone J rejected a claim by the transferor that a clause providing for the transfer ‘for NIL consideration’ was amended by a drawing a blue line through ‘NIL’, instead finding that marks on two photocopies discovered by the parties were artefacts, a ruling the full court upheld the next year. However, a decade later, a majority of same court upheld an application to re-open Vanstone J’s ruling, after finding that the transferee’s lawyers should have informed the transferor of two further copies of the lease held by the licensing and gambling authorities and misled the court about those copies (one of which may have rendered the ‘artefact’ argument less compelling.)
  • Google Inc v Trkulja [2016] VSCA 333, which involves whether or not the world’s leading search engine can be sued for defamation over the results of a search. The plaintiffs sued Google for the results of searches such as ‘Melbourne criminal underworld photos’ (which yielded their images in thumbnails and search results mentioning them) and because typing their names yielded autocomplete results that linked them to Melbourne’s underworld. Victoria’s Court of Appeal held that the trial judge should have upheld an application for the case to be struck out (without hearing evidence) on the basis that the search results could not be defamatory, as a reasonable internet user would appreciate that the plaintiffs’ images were alongside others who were clearly not criminal (such as Marlon Brando and Senator Derryn Hynch) and that search engine results are produced algorithmically. The Court also suggested that the case should have been struck out because the plaintiffs wrongly argued that Google was a primary publisher, but rejected Google’s arguments that all search engines should have an automatic defence to defamation suits.
  • Tighe & Anor v Pike & Ors [2016] QCA 353, which concerns whether a local council can enforce planning conditions agreed by a past land owner when the land was subdivided.  In 2009, Townsville City Council approved a subdivision on the condition that the owner register an easement allowing utilities access to the rear lot, but the owner only never did so. After the subdivision was registered and both lots were sold, the new back lot owner was granted an ‘enforcement order’ to prevent the new front lot owner from committing a ‘development offence‘ by not registering the utilities easement. Queensland’s Court of Appeal unanimously quashed the order, on the ground that the Council’s subdivision conditions no longer attached to the land once it was subdivided.

As often happens, the third case is not just a private law matter, but involves elements of public law and criminal law too.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

7 thoughts on “News: Three private law matters granted special leave

  1. The special leave results page says that in Clone Pty Lt special leave was granted on limited grounds-any idea on what they are?

      • Transcript out now: http://www.austlii.edu.au/au/cases/cth/HCATrans/2017/130.html. Nettle J says that leave is limited to ‘ground 1’ AND some sort of new ground formulated by the Attorney-General of South Australia (!) intervening. Cripes.

        But, skimming the transcript, it appears that all that’s actually going on is that Clone raised a bunch of subsidiary issues (custody of documents, mens rea, and some other stuff – photocopier law? blue vs black ink?) and the Court only wants to look at the headline issue (when should the 2005 judgment have been re-opened on the ground of fraud/malpractice – and what counts as malpractice?) and not dig into the ‘morass’ of photocopies and the like. It also sounds like the SA AG wants to raise a bigger question of whether any judgment can be reopened outside of an appeal. So, not really limited grounds at all, but rather expanded grounds.

  2. I suspect Gordon J will be keen to comment on the Trkulja litigation, her Honour has some good prior decisions on digital content. I can’t see Mr Trkulja getting up but it would be good to have the High Court comment on the issues of the liability of a search engine.

    • “I can’t see Mr Trkulja getting up..”
      Having read the transcript,
      http://www.austlii.edu.au/au/cases/cth/HCATrans/2017/129.htm I am not so sure.
      First there is the issue of whether Trkulja should have been shut out without a full hearing.Second there is this question from Gordon J “It seemed to me that they may have asked the wrong question, that is, it is not whether an ordinary reasonable user would think that the entire search results reflected the meaning of the input of words but whether they were capable of conveying imputations on this question of defamatory meaning”

      • Thanks Malcolm, I hadn’t read the transcript previously. On the merits I don’t think Mr Trkulja has a good case but I see the court is concerned about the novelty of the issues and the way that the Court of Appeal approached them, so referral back for a full trial might be possible.

  3. A few interesting things about the transcripts published so far: (a) There was no respondent at the High Court in Tighe v Pike, the planning matter: http://www.austlii.edu.au/au/cases/cth/HCATrans/2017/127.html. (b) Nettle J deviated from the usual brief refusal of special leave in Lindsay (who won a new murder trial in his earlier High Court appeal), instead indicating that Vanstone J erred in Lindsay’s retrial, but that it didn’t much matter: http://www.austlii.edu.au/au/cases/cth/HCATrans/2017/131.html.

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