Monthly Archives: July 2018

Rozenblit v Vainer & Anor

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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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Amaca Pty Ltd v Latz; Latz v Amaca Pty Ltd

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The High Court has allowed an appeal in part from the Full Court of the Supreme Court of South Australia on the part of the appellant, Amaca Pty Ltd, and dismissed the cross-appeal of the respondent, Mr Latz. The case concerned an entitlement to damages reflecting the loss of an entitlement to a superannuation pension and an age pension as a result of a reduced life span.

Orders were pronounced on 11 May 2018, although reasons were published a month later on 13 June 2018, because of the parlous state of Mr Latz’s health. Mr Latz had contracted malignant mesothelioma at some time in 1976 or 1977 as a result of inhaling asbestos fibre while cutting and installing fencing which had been negligently manufactured by Amaca Pty Ltd. The mesothelioma did not become symptomatic until 2016. In October 2016, Mr Latz’s condition was diagnosed as terminal. He had retired from his job in the public service nine years earlier, and was receiving a superannuation pension under the Superannuation Act 1988 (SA) Part 5, and an age pension under the Social Security Act 1991 (Cth) Part 2.2. It was found that the mesothelioma had cut his life expectancy by 16 years. Mr Latz sought compensation for the reduction to his superannuation pension and age pension, which he would have continued to receive for a further 16 years but for the negligence of Amaca Pty Ltd.

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Trkulja v Google Inc

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Mitch Clarke, ‘Courting Communication Anachronisms: Trkulja v Google [2017] HCATrans’ (30 November 2017).

The High Court has allowed an appeal against a decision of the Victorian Court on Appeal on whether a search engine can be held liable for defamation from the results of a search. The appellant sued the respondent search engine company after results of searches such as ‘Melbourne criminal underworld photos’ showed images of him with various convicted Melbourne criminals, as well as articles and links which imputing he was associated with those criminals. Moreover, typing his name into the search bar led to autocomplete results that associated him with various criminal figures. The defendant sought to summarily dismiss the pleadings on the basis that (i) that it did not publish the images matter or the web matter; (ii) that the matters in issue were not defamatory of Mr Trkulja; and (iii) that Google was entitled to immunity from suit. The trial judge held that the appellant’s defamation proceeding should not be set aside. However, on appeal to the VSCA, it was held that the primary judge should have struck the case out on the second basis that the search results could not be defamatory because the results were produced by algorithm, and because a reasonable internet user would understand that the plaintiffs’ images appeared alongside other, clearly non-criminal, people.

The High Court set aside the VSCA’s findings. In a unanimous judgment, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ dealt with two issues: the question of whether Google was a publisher (and the relevance of defences in that determination), and the question of the test for whether the search results were capable of conveying the defamatory imputations.

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