Rozenblit v Vainer & Anor

The High Court has allowed an appeal from the Victorian Court of Appeal with regard to an order for costs arising from litigation between former business partners about a transfer of shares in a tyre recycling company, VR Tek Global Pty Ltd. The case concerned a stay of proceedings where the appellant was impecunious and his action would effectively be terminated by a stay.

Mr Rozenblit brought proceedings in the Supreme Court of Victoria in which he alleged that the first respondent, Michael Vainer, had fraudulently, and without his knowledge or consent, transferred shares owned by him to the second respondent, Alexander Vainer (the first respondent’s father) and that the now-liquidated company’s assets were subject to a trust in his favour. After pleadings had closed, Mr Rozenblit sought leave to amend his statement of claim in three separate summonses. While leave to amend pursuant to the third summons was granted, the judge stayed Mr Rozenblit’s claim pursuant to r 63.03(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) until the interlocutory costs orders with regard to the first and second (unsuccessful) summonses were paid. Rule 63.03(3) provided:

“Where the Court makes an interlocutory order for costs, the Court may then or thereafter order that if the party liable to pay the costs fails to do so—

(a) if that party is the plaintiff, the proceeding shall be stayed or dismissed;

(b) if that party is a defendant, the defendant’s defence shall be struck out.”

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Collins v The Queen

The High Court has allowed an appeal by a man convicted of four counts of sexual offences, including rape, alleged to have been committed in January 2000. The complainant, then aged 19, answered a newspaper ad for a nanny to accompany the accused, then aged 61, his partner and child on a sailing trip, After an initial interview, the complainant returned for a further interview a week later. According to the complainant, at around 11pm on the yacht, she had a shower and was then shaved and raped by the accused. The prosecution case included comments she made the next morning to a friend and her mother the next morning, and the results of a police search warrant on the yacht two weeks later that found a razor with her DNA on it. At the trial, the accused formally admitted that he and the complainant had had sex on the yacht that evening.

At the trial in 2014, the complainant’s mother testified that, on the morning after the alleged rape, the complainant ‘phoned me to tell me that she had been raped’. In cross-examination, she was given a transcript of evidence that she she gave at the accused’s committal in 2007, where she had said that the complainant had told her that morning that ‘I think I have been raped’ and that ‘I had some wine and I felt funny and I don’t remember every – anything after a certain time’. Asked if she agreed that she gave that evidence, she said that she did. This part of the cross-examination concluded:

When you gave evidence back on the 21st of September 2007, was better than it is now? Yes. I would say so, yes.
And when you gave that evidence, that was the best recollection you could give to the court of what she said to you? Yes. I would say so, yes.

The trial judge directed the jury on this exchange as follows:

That inconsistency between what the mother told the committal court seven years ago and what she told today, depending upon your view of it, impacts, potentially upon the mother’s credibility and reliability. But what the mother said to the committal court seven years ago is not evidence of the fact that the complainant said those things to her. It’s not evidence of the truth of the contents of the statement if you can follow that logic. It impacts upon the particular witness’s credibility who’s giving the evidence.

On appeal, the Queensland Court of Appeal accepted that the trial judge’s direction was incorrect, but dismissed the appeal on the ground that the misdirection caused no substantial miscarriage of justice to the accused.

The High Court (Kiefel CJ & Bell, Keane & Gordon JJ, Edelman J concurring) first considered whether or not the trial judge misdirected the jury. Continue reading

Clone Pty Ltd v Players Pty Ltd (in liq, recs and mgrs apptd)

The High Court unanimously allowed an appeal from a decision of the Full Court of the South Australian Supreme Court regarding the power of a court to set aside one of its own perfected judgments on the basis of misconduct falling short of fraud. It was held that for the equitable power to set aside a judgment required actual fraud by the party who succeeded at trial, and such fraud had not been adequately proven or pleaded in this case. However, it was not necessary for the party seeking to set aside the judgment to exercise reasonable diligence to discover the fraud. Continue reading

BRF038 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on when discrimination amounts to persecution and procedural fairness guarantees under Nauruan refugee law. The appellant, a Sunni Muslim, fled Somalia in 2006, then stayed in Yemen, and finally arrived by boat at Christmas Island in September 2013. Australian authorities transferred him to the Republic of Nauru, where he sought refugee status. During his processing, he claimed that he fled Somalia due to war, trouble, hunger and starvation, and later fled Yemen due to racism and a lack of security (see details at [10]–[15]). The Nauruan Secretary refused his application for refugee status on the basis of scepticism about parts of his account (see [16]), and the Nauruan Refugee Status Review Tribunal and Nauruan Supreme Court both upheld that determination. On appeal to the High Court, the appellant contended that the Tribunal failed to accord him procedural fairness in reviewing the Secretary’s determination.

The Court (Keane, Nettle and Edelman JJ) allowed the appeal, ordering that the Tribunal’s decision be quashed and the matter remitted Continue reading