Karam v The Queen [2015] VSCA 50 (31 March 2015)


CRIMINAL LAW – Conviction – Conspiracy to possess 4.4 tonnes or more than 15 million tablets containing MDMA (ecstasy) imported from Europe in 2007 but seized before the conspirators could take possession of them – Wholesale value of tablets about $122 million – Applicant’s role to facilitate removal of container within which drugs concealed from docks – Interception by AFP of telephone conversation between co-conspirator and third party – Conversation not in furtherance of conspiracy and accordingly not admissible against applicant – Applicant sought to rely upon isolated passages in intercepted communication as supposedly exculpatory – Issue as to whether statements made were in fact exculpatory – Ruling by trial judge that evidence hearsay and inadmissible – Whether trial judge erred – No error established.

CRIMINAL LAW – Conviction – Trial judge permitted Crown to adduce evidence concerning applicant’s daily participation in legal proceedings throughout major part of the alleged conspiracy period – Whether evidence should have been excluded under s 137 of Evidence Act 2008 – Probative value of evidence not outweighed by any unfair prejudice to applicant.

CRIMINAL LAW – Conviction – Whether misdirection as to elements of conspiracy – No error established.

CRIMINAL LAW – Sentence – Applicant sentenced to 19 years’ imprisonment with non-parole period of 15 years – Whether trial judge erred in failing to afford mitigatory weight to applicant’s admissions and contribution to efficient conduct of trial – Whether sentence manifestly excessive – Whether undue disparity between applicant’s sentence and sentence imposed upon co-accused – No error established.

Censori v Chairman, Adult Parole Board & Ors [2015] VSC 106 (30 March 2015)


ADMINISTRATIVE LAW — Habeas corpus —Plaintiff sentenced to death by Supreme Court of Western Australia — Commuted to life imprisonment — Transferred to Victoria under Prisoners (Interstate Transfer) Act 1985 — Released on parole by exercise of Victorian Governor of royal prerogative of mercy under s 107(1) of Sentencing Act 1991 — Whether plaintiff subject to life sentence on transfer to Victoria — Whether parole order affected life sentence — Whether plaintiff still subject to life sentence — Whether conditions of parole order effective — Whether Parole Board has power to impose further conditions on plaintiff — Prisoners (Interstate Transfer) Act 1983 ss 4, 27, 28 – Corrections Act 1986 s 74 — Sentencing Act 1991 s 107.

Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 (27 March 2015)


APPEAL – challenge to findings of fact – findings based on testimonial evidence and demeanour of witnesses – whether trial judge grappled with conflicting documentary evidence – whether material errors in description of evidence – whether necessary to determine why employee had given different histories

CHOICE OF LAW – statutory contribution between tortfeasors – workplace accident in Perth – proceedings between employee and third party compromised in District Court of New South Wales – third party seeks statutory contribution from employer – absence of federal jurisdiction – characterisation of apportionment legislation – applicable choice of law rule for statutory claim for contribution

TORTS – statutory contribution – workplace accident – challenge to equal apportionment of liability between third party and employer – relevance of employer being a company whose sole director and shareholder was the employee – relevance of Workers Compensation Act 1987 (NSW), s 151Z – relevance of compromised proceedings resulting in a judgment for the employee with the parties bearing their own costs

R v Ebrahimi [2015] NSWSC 335 (26 March 2015)


BAIL – show cause offence, whether detention is justified – alleged importation of precursors – serious offence – assessment of strength of Crown case – false identification found on accused – strong subjective case for bail – proposal for electronic monitoring – health condition of applicant – separation from children – bail concerns – unacceptable risk of absconding – detention not shown to be unjustified – bail refused.

Smythe v Burgman (No 2) [2015] NSWSC 298 (25 March 2015)


TORTS – alleged medical negligence resulting in amputation of leg – whether general practitioner ought to have diagnosed arterial ischaemia notwithstanding atypical presentation – relevance of subsequent detection of abnormal pulses to determination whether defendant checked pulses and found them to be normal at first examination – whether amputation would or could have been avoided if ischaemia diagnosed at first examination – insufficient evidence to assess the value of chance of avoiding amputation if earlier diagnosis made
CREDIBILITY OF WITNESSES – evidence of usual practice – inferences from clinical notes – importance of timing of versions given by plaintiff compared with contemporaneous business records

Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304 (25 March 2015)


EVIDENCE – whether unlawfully obtained evidence was properly admitted under s 138 of the Evidence Act 1995 (NSW) – vehicle stopped by police on grounds that were found not to be reasonable – before search of vehicle or occupants commenced passenger dropped prohibited drugs on ground – whether dropping of drugs irrelevant consideration in determining whether illegally obtained evidence ought be admitted
JUSTICES – latitude to be given to reasons given ex tempore – no opportunity to remove infelicities of expression – whether phrase “benefit of the doubt” indicated that Magistrate applied criminal standard of proof to determination whether contravention was deliberate or reckless

Jarrold v Registrar of Titles & Anor [2015] VSCA 45 (24 March 2015)


REAL PROPERTY – Entitlement to indemnity – Transfer of Land Act 1958, s 110 – Property jointly owned by husband and wife – Husband signed transfer of land document pursuant to power of attorney – Whether power of attorney forged – Whether wife held interest in the land and so sustained loss or damage – Issues remitted for new trial.

APPEALS – New trial – Erroneous findings of fact – Whether Court to decide matter for itself or remit for new trial – Credit issues central to case – Trial judge had advantage of seeing witnesses in witness box and seeing trial develop – New trial ordered.

Caltex Australia Petroleum Pty Ltd v Troost [2015] NSWCA 64 (23 March 2015)


GUARANTEE AND INDEMNITY – construction of indemnities – whether a section of a loan application form entitled “Guarantee and Indemnity by Directors”, which was divided into two columns with two signature blocks, gave rise to both a guarantee and an indemnity where only one signature block was signed – whether, therefore, the appellant was bound by the indemnity

GUARANTEE AND INDEMNITY – discharge from indemnities – whether a material variation of the terms of the principal obligations discharged the appellant in circumstances where the principal contract contemplated amendment – whether the creditor’s failure to perfect security for the debtor’s indebtedness discharged the appellant – whether the creditor’s unilateral increase of the credit limit and its granting of extensions of time to the debtor discharged the appellant

GUARANTEE AND INDEMNITY – discharge from indemnities – whether the appellant’s liability was limited by reference to his time as a director, in circumstances where the appellant signed the indemnity in his capacity as a director

Denney v Lusted [2015] TASSC 10 (23 March 2015)


Magistrates – Hearing – Conduct of magistrates – Participation – Questioning by magistrate using internet images of scene not in evidence.

R v Esposito (1998) 105 A Crim R 27, referred to.

Aust Dig Magistrates [1119]

Criminal Law – Evidence – Credibility – Failure to put matter to witness – Unfairly drawing adverse inference from failure of the accused to dispute prosecution evidence.

MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329, applied.

Aust Dig Criminal Law [2875]

Re Gunns Plantations Limited (In Liq) (Receivers & Managers Appointed) [2015] VSC 102 (20 March 2015)


CORPORATIONS – Application by liquidators managed investment schemes for directions pursuant to s 511 of the Corporations Act 2001 (Cth) – Liquidators remuneration, costs and expenses – Directions sought under s 50 of the Evidence Act 2008 – Whether remuneration, costs and expenses reasonable and proportionate to services undertaken.

Wormleaton v Thomas & Coffey Limited (No 4) [2015] NSWSC 260 (20 March 2015)


TORTS – negligence – liability for severe crush injury at work – duty of care owed by an employer to its employee – whether breach of duty of care was within the scope of the employer/employee relationship

TORTS – negligence – liability of entrepreneur – liability of head contractor – injury in area of sub-contractors shared responsibility – obligation to implement safe system of work – casual negligence of employees of major sub-contractor

DAMAGES – torts – negligence – workers compensation – impact of substantial diminution of earning capacity in determining past and future economic loss

DAMAGES – torts – negligence – workers compensation – application of compensatory principle in circumstances where different types of prosthetics available

National Australia Bank Ltd v C & O Voukidis Pty Ltd (No. 2) [2015] NSWSC 258 (20 March 2015)


EVIDENCE – documents – confidential documents client legal privilege – defendant swears affidavit concerning advice by former solicitor – affidavit served for purpose of interlocutory motion to amend pleadings – affidavit not relied on at interlocutory hearing – plaintiff issues subpoena to obtain documents associated with advice – claim for privilege – refusal to allow defendant to litigate issues on which advice given – whether privilege waived – whether documents can be relied on for matters of credit only – privilege not waived

RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 (18 March 2015)


APPEAL – new trial – denial of procedural fairness – second trial of respondents’ proceedings seeking to set aside deed of loan and mortgage as unjust and unconscionable – court takes into account material not in evidence without notice to parties – whether substantial wrong or miscarriage of justice requiring new trial –

EVIDENCE – failure to call respondents’ son for whose benefit monies advanced – whether appellant established conditions necessary for application of rule in Jones v Dunkel – determination of which party bore onus of calling missing witness –

APPEAL – new trial – scope – what conditions court should impose for purposes of retrial –

PROCEDURE – judgments and orders – power to reopen – error in material matter in determination of case – neither party at fault

In the matter of Lime Gourmet Pizza Bar (Charlestown) Pty Ltd (formerly under administration); Lime Gourmet Pizza Bar (Darby Street) Pty Ltd (formerly under administration) (in liq); Lime Gourmet Pizza Bar (Hamilton) Pty Ltd (formerly under administration) [2015] NSWSC 244 (18 March 2015)


CORPORATIONS – voluntary administration – administrator – where administrators seek remuneration following administration – whether director sought to appoint administrators for improper purpose – whether administrators appointed in good faith

CORPORATIONS – voluntary administration – administrator – where the companies were no longer in administration – whether s 449E of the Corporations Act 2001 (Cth) extends to former administrators

In the matter of IPM Group Pty Ltd [2015] NSWSC 240 (18 March 2015)


PROFESSIONS AND TRADES – lawyers – duties and liabilities – duty of loyalty – duty of confidentiality – whether duty of loyalty extended beyond termination of the retainer – whether risk of a breach of the duty of confidentiality.

PROFESSIONS AND TRADES – lawyers – application under Court’s inherent jurisdiction to restrain solicitors from acting – where proceedings progressed significantly prior to application for restraint was brought – whether interests of justice now influenced by progression of proceedings – warranted declining to make order restraining solicitors from acting.

Donoghue v Commissioner of Taxation (includes Corrigendum dated 2 April 2015) [2015] FCA 235 (17 March 2015)


INCOME TAX – notices of assessment issued to applicant pursuant to audit conducted by respondent – application under s 39B of the Judiciary Act 1903 (Cth) for orders declaring assessments invalid and quashing them – injunction – source of information – where audit performed and assessments made with the benefit of material provided by third party individual without applicant’s permission – whether third party material subject to legal professional privilege – state of knowledge of respondent – whether there was conscious misuse of privileged material

Held: third party worked to or for law firm with which the applicant had a retainer – alternatively third party acted as applicant’s agent for the purposes of applicant’s dealing with law firm – communications and documents made for dominant purpose of obtaining legal advice or for use in litigation and were therefore subject to legal professional privilege – respondent held apprehension that this was the case – material assisted respondent’s train of inquiry and in process of making assessments – no right given by s 166 or s 263 of the Income Tax Assessment Act 1936 (Cth) to Commissioner to use material which is subject to legal professional privilege – element of recklessness in process of assessment sufficient to amount to conscious maladministration as described in Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 – assessment quashed – respondent restrained from using third party material

Hebei Jikai Industrial Group Co Ltd v Martin [2015] FCA 228 (17 March 2015)


ARBITRATION – international commercial arbitration – where arbitrator decided jurisdiction as a threshold issue – where applicant challenges award – applicant challenges award on basis that it was unable to present its case – article 34(2)(a)(ii) of the Model Law – where award challenged on basis that arbitrator failed to conduct the arbitral procedure in accordance with the agreement of the parties- article 34(2)(a)(iv) of the Model Law – where award challenged on basis of denial of procedural fairness – article 34(2)(b)(ii) of the Model Law – where respondent contends that a negative jurisdiction finding by the arbitrator is final by reason of s 16(3) of the Model Law – judicial restraint in international commercial arbitration

CONTRACTS – circumstances in which a report of an expert appointed under contract may be challenged – where applicant claims that expert report by auditor was not in accordance with contract, or expert asked himself the wrong question or misconceived his jurisdiction

EQUITY – declaratory relief – discretionary considerations – where declaration sought will produce no foreseeable consequences for the parties – where the declaratory relief sought would be inconsistent with the upholding of the arbitral award – whether a collateral attack on the arbitral award

Ure v Commonwealth of Australia [2015] FCA 241 (17 March 2015)


PUBLIC INTERNATIONAL LAW – act of State doctrine – whether question of acquisition or claim of jurisdiction or sovereignty over land justiciable – whether allegations of State acts made in pleadings sufficient to render matter non-justiciable – Court not precluded from inquiring into whether pleaded acts were acts of State

PUBLIC INTERNATIONAL LAW – whether customary international law rule exists by which private parties can obtain proprietary interests in land – whether customary international law rule exists by which States obliged to recognise and give legal effect to private property rights – neither State practice nor opinio juris established

PRACTICE AND PROCEDURE – special case – questions reserved

Verrocchi v Direct Chemist Outlet Pty Ltd [2015] FCA 234 (17 March 2015)


TRADE AND COMMERCE — Trade Practices — misleading or deceptive conduct — passing off — secondary reputation in colour or colour palette and other trade indicia — date for assessing reputation — overall impression — whether respondents’ use of primary colour palette in branding was misleading or deceptive — identification of the class of consumers — intention to deceive — evidence of copying — relevance of use of common trade indicia — sufficiency of differentiation

TRADE MARKS — validity — whether mark inherently adapted to distinguish — infringement — use as a trade mark — descriptive words

PRACTICE AND PROCEDURE — jury — misleading or deceptive conduct — quintessential question of fact to be determined — usual mode of trial is by judge without a jury — no departure from usual mode of trial

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 (17 March 2015)


INDUSTRIAL LAW – whether respondents contravened ss 346, 348 and 355 of the Fair Work Act 2009 (Cth) – whether blockading at two construction sites taken with intent to coerce persons into complying with industrial demands made by the respondents

PRACTICE AND PROCEDURE – application of s 553 of the Fair Work Act 2009 (Cth) – where first respondent the subject of contempt proceedings in Supreme Court of Victoria

Citigroup Pty Limited v Middling (No. 4) [2015] NSWSC 221 (17 March 2015)


CONTRACT – agency – no relationship of agency between lender or manager and mortgage originator – originator acting on its own behalf when filling out loan application for borrower and including false statements of borrower’s income and employment – borrower authorised lender to pay funds to originator’s sole director – lender not liable for alleged misappropriation
CONTRACT – Contracts Review Act 1980 (NSW) – no basis for relief made out in pleading – importance of pleadings and particulars to inform lender of case it has to meet – cross-claim statute-barred in any event – relief under Act intended to be used as a shield not a sword – subs 16(c) of the Contracts Review Act
UNCONSCIONABLE CONDUCT – requirement of moral obloquy not present – lender unaware of dishonest conduct by mortgage originator

Samsung Electronics Australia Pty Limited v LG Electronics Australia Pty Limited [2015] FCA 227 (16 March 2015)


CONSUMER LAW – television commercials (TVCs) advertising 3D TVs – whether TVCs misleading or deceptive or likely to mislead or deceive – whether false or misleading representations conveyed – where TVCs parody comparative tests in comparing new 3D technology with conventional 3D technology – use of humour and exaggeration – whether scenes depicted in TVCs likely to be taken literally – whether consumers likely to be led into error – whether representations made with respect to any “future matter”

CONSUMER LAW – point of sale advertising representing 3D TV is “Full HD” and “1080P” – meaning of “Full HD” and “1080P” when used in relation to 3D TVs – whether “Full HD” or “1080P” convey representations as to “viewable image” when TV operating in 3D mode and viewed through 3D glasses – whether point of sale material likely to convey representation that viewable image in 3D mode is equivalent to resolution of 1920 x 1080p – significance of absence of recognised standard against which to assess such claims – whether such representations false or misleading in case of respondent’s 3D TVs having a display resolution of 1920 x 1080p

EVIDENCE – admissibility of survey evidence – whether if survey otherwise admissible it should not be given weight – questionnaire design – whether responses elicited from respondents likely to be accurate and reliable – whether coding of responses likely to be accurate and reliable – pilot study – significance of failure to make pilot study available to other party prior to embarking on survey where suitability of questionnaire is disputed – significance of failure to test questionnaire – whether survey methodology and data analysis otherwise appropriate

TORTS – tort of injurious falsehood – elements of tort – whether false representation conveyed – whether applicant established that it suffered actual loss as a result of broadcast of TVC alleged to convey false representation

Singh v Minister for Immigration and Border Protection [2015] FCA 220 (16 March 2015)


MIGRATION – Practice and procedure – Where Minister seeks to uphold decision of Court below on a different ground – Where no notice of contention filed before hearing – Where appellant unrepresented, not fluent in English and relevant provisions complex – Where error by Court below not material

MIGRATION – Practice and procedure – Where question on judicial review is compliance with objective precondition, compliance with rules of evidence is required – Where Minister relies on computer print-out as evidence of transmission of email and attachments under ss 71 and 161 of the Evidence Act 1995 (Cth) – Whether computer print-out of email is sufficient proof that attachments were sent – Observations on approach to proof of such matters in cases involving unrepresented litigants

MIGRATION – Where objective precondition to Tribunal’s jurisdiction to entertain review – Where appellant had 21 days to lodge application for review – Where time does not commence to run until Minister has complied with obligation to notify of delegate’s decision – Where appellant alleges no notification was received – Whether notification of decision was “received” for the purposes of reg 4.10(1)(a) despite no actual receipt

Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) [2015] FCA 211 (13 March 2015)


CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – misleading or deceptive conduct – contravention of Trade Practices Act 1974 (Cth) s 52 and Australian Consumer Law s 18 – false or misleading representation concerning need for goods – contravention of TPA s 53(f) and ACL s 29(1)(l)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation that company was the relevant workplace health and safety agency – contravention of TPA s 52 and ACL s 18 – false or misleading representation that goods were of a particular standard or quality – contravention of TPA s 53(a) and ACL s 29(1)(a)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation of affiliation with the relevant workplace health and safety agency – misleading or deceptive conduct – contravention of TPA s 52 and ACL s 18 – false or misleading representation that company had sponsorship, approval or affiliation – contravention of TPA s 53(d) and ACL s 29(1)(h)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation that consumer had already agreed to acquire products– misleading or deceptive conduct – contravention of ACL s 18 – false or misleading representation as to agreement to acquire – contravention of ACL s 29(1)(d)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – threat of inspections or fines for non-compliance – no immediate demand for payment – follow up calls –debt recovery letters – need to consider manner and circumstances of a demand or communication – whether conduct amounts to coercion

CONSUMER LAW – accessorial liability – persons who owned or managed company

CONSUMER LAW – remedies – declarations

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 (13 March 2015)


INDUSTRIAL LAW – whether officials of union engaged in unlawful coercive conduct contrary to s 348 of the Fair Work Act 2009 (Cth) (FW Act) – whether officials of union engaged in improper conduct whilst exercising rights of entry under FW Act contrary to s 500 of the FW Act – findings of fact – allegations of Director established

BHP Billiton Ltd v Dunning [2015] NSWCA 55 (11 March 2015)


WORKERS COMPENSATION – dust diseases – the respondent successfully brought a claim against the appellant relating to injury resulting from exposure to asbestos during his employment with the appellant – whether the primary judge erred in finding that the appellant breached its duty of care to the respondent – whether the primary judge erroneously assumed that a finding of breach should follow automatically from a finding of foreseeability

EVIDENCE – opinion evidence – whether non-expert witness able to give evidence that material was or contained asbestos – admissible as evidence of objectively observed fact in the particular circumstances of the case – resort to ss 78 and 79 of the Evidence Act 1995 concerning opinion evidence unnecessary to support its admission

EVIDENCE – evidence of practice – estimates by supervisor of periods and intensity of exposures of workers to asbestos – generality of the evidence no barrier to its admission

R v Simmons; R v Moore (No 3) [2015] NSWSC 189 (10 March 2015)


CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – use of listening device – where device deployed in psychiatric hospital – accused recovering from acute psychosis – whether police failed to disclose relevant information in application for surveillance device warrant – discretion to exclude admissions that are unfair – whether witness an agent of the state – whether witness “elicited” admissions – where accused had not previously been interviewed or advised of his right to silence
CRIMINAL LAW – admissions – whether admission induced by offer of “off the record” conversation – whether reliability adversely affected – fairness discretion

R v Djenadija (No 2) [2015] ACTSC 59 (6 March 2015)


CRIMINAL LAW AND PROCEDURE – Particular Offences – offences against the person – crimes and offences against children – act of indecency on a person under the age of 16.
EVIDENCE – Tendency Evidence – whether the accused had a tendency to have a sexual attraction to young girls – whether the accused had a tendency to act on his sexual attraction to young girls – whether the accused had a tendency to rub his groin against young girls – whether the accused had a tendency to touch the sexual areas of young girls – whether the accused had a tendency to show young girls pornography – whether the accused had a tendency to groom young girls by talking about sexual activity or talking sexually to them – application to adduce tendency evidence allowed in part.

Charles Hinton (A Pseudonym) v The Queen [2015] VSCA 40 (6 March 2015)


CRIMINAL LAW – Admissions obtained – Record of Interview and covert recording – Breach of ss 464A(2)(2a), 464A(3), 464C of the Crimes Act 1958 – Improprieties of police officers – Trial judge refused application to exclude pursuant to ss 90 and 138 of the Evidence Act 2008 – EM v The Queen [2007] HCA 46; (2007) 232 CLR 67, DPP v BCR [2010] VSCA 299, applied – Appeal dismissed.

Craven v Ready Flowers Pty Ltd [2015] FCA 297 (5 March 2015)


BANKRUPTCY AND INSOLVENCY – where applicant applied for an extension of time to seek leave to appeal from an interlocutory judgment of the Federal Magistrates Court of Australia – application for leave to appeal dismissed with costs – order for costs as taxed forms basis for bankruptcy notice – whether the circumstances warrant the exercise of the Court’s discretion under s 52(2) of the Bankruptcy Act 1966 (Cth) to not accept the Federal Court’s costs order as proof of the debt concerned and therefore not make a sequestration order against applicant’s estate – whether director of the respondent gave false evidence before the Federal Magistrates Court and perpetuated a fraud on the Federal Court such as to amount to a perversion of the course of justice – alleged deliberate omission of evidence as to payment arrangements between respondent and entity to whom the respondent’s business was sold – whether leave application before this Court determined on a premise known by the respondent to be false – whether fraud proved on the balance of probabilities

Held: fraud and perversion of justice not proved – costs judgments was evidence of debt in reality – sequestration order made

CONSTITUTIONAL LAW – parliamentary privilege – evidence on which applicant sought to rely included right of reply statement given by director’s wife to the Australian Senate subject to parliamentary privilege under s 16 of the Parliamentary Privileges Act 1987 (Cth) – statement inadmissible as its use would impeach a question of proceeding in Parliament

R v Kelsall (No 3) [2015] NSWSC 253 (4 March 2015)


CRIMINAL LAW – evidence – s 126B Evidence Act – admissibility of statements made to two medical practitioners – where statements amount to protected confidences – where evidence is highly probative – limitations of doctor/patient confidentiality where statements concern harm to others – public interest concerns mitigated – evidence admissible

R v Simmons; R v Moore (No 2) [2015] NSWSC 143 (4 March 2015)


CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – covert investigation using “scenario technique” – [REDACTED] – accused makes voluntary admissions – discretion to exclude admissions that are unfair – relevance of reliability of confessions – where parts of admission implausible and not supported by other evidence – whether police “elicited” admissions – whether accused spoke freely – where accused had not exercised his right to silence when approached by police – warrants authorising use of listening devices expired or invalid – evidence obtained unlawfully – officers sailing close to the wind – [REDACTED] – discretion to admit evidence unlawfully or improperly obtained – highly prejudicial material – discretion to exclude – whether prejudicial material severable – belated indication of application for trial by judge alone

Ralph v Repatriation Commission [2015] FCA 165 (4 March 2015)


DEFENCE AND WAR – Veterans’ entitlements — application for special rate of pension under the Veterans’ Entitlements Act 1986 (Cth) – date of lodgement – whether application lodged prior to applicant turning 65 – application of s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1995 (Cth) to lodgement at an approved place under s 5T(2) of the Act

DEFENCE AND WAR – Veterans’ entitlements – application for special rate of pension under s 24(2A) of the Act – whether the applicant was engaged in “remunerative work” – whether the Tribunal misconstrued “working…for a continuous period of at least 10 years” under s 24(2A)(g) of the Act – whether the Tribunal misconstrued “suffering a loss” in s 24(2A)(g) of the Act

The Queen v Kerr & anor (Ruling No 1) [2015] VSC 64 (27 February 2015)


EVIDENCE – Criminal Trial – Murder – Applications to exclude admissions made during course of VROIs and covertly recorded conversation with police – impropriety – whether desirability of admitting the evidence outweighs undesirability of admitting evidence improperly obtained – whether mere impropriety or illegality can provide basis for exclusion under unfairness discretion – Crimes Act 1958, ss 464, 464A, 464C – Evidence Act 2008 , ss 90, 137, 138, 139 – Em v The Queen [2007] HCA 46; (2007) 232 CLR 67.

GZ v The Queen [2015] ACTCA 11 (23 February 2015)


CRIMINAL LAW AND PROCEDURE – Particular Offences – offences against children – sexual intercourse with a child under the age of 10 – found guilty at trial.
APPEAL – Appeal from the ACT Supreme Court – whether verdicts were unsafe and unsatisfactory – whether trial miscarried because of the failure of counsel to adduce “good character” evidence – whether the trial miscarried because of the admission of “bad character” evidence contained in the complainant’s record of interview with police – held it was open to the jury to conclude that the accused was guilty of the two offences with which he was charged beyond reasonable doubt – held that verdicts were not unsafe and unsatisfactory – held that trial miscarried because of the failure of counsel to adduce available “good character” evidence and the admission of “bad character” evidence – appeal upheld and matter remitted for retrial.

DPP v Warren [2015] ACTSC 111 (20 February 2015


PRACTICE AND PROCEDURE – Subpoenas – Application to set aside a subpoena in part – whether documents sought to be produced are relevant – principles to be applied whether documents sought to be produced are subject to legal professional privilege

26. This leaves the issue of legal professional privilege. The approach to be taken in an application such as this is usefully summarised by Johnson J in R (Cth) v Petroulias (No 22) [2007] NSWSC 692; (2007) 213 FLR 293 at [36]- [39]. At that point, his Honour said:

36. The onus of establishing a claim of client legal privilege falls on the party asserting or claiming the privilege: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689. The onus is on the party claiming privilege even though it is the other party that has applied for relief by way of an order for production of the documents for inspection: Mitsubishi Electric Australia Pty Limited v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332 at 337 [11]; Australian Securities and Investment Commission v Rich [2004] NSWSC 1089 at [2].
37 What is required is exposure of facts from which an informed decision can be made as to whether the claim for privilege is supportable: National Crime Authority v S (1991) 29 FCR 203 at 211-212; AWB Limited v Cole (No. 5) [2006] FCA 1234; (2006) 155 FCR 30 at 44-45 [44]. A party claiming privilege may succeed by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. The character of the documents the subject of the claim may illuminate the purpose for which they were brought into existence: Grant v Downs at 689.
38. The Court has the power to inspect documents itself to determine a claim for privilege and should not hesitate to exercise that power: Re Southland Coal Pty Limited [2006] NSWSC 899 at [14](k).

39. The provisions of the Evidence Act 1995 apply only to the adducing of evidence and have no derivative application, at common law, to interlocutory processes including the production of documents on subpoena: Esso Australia Resources Limited v Commissioner of Taxation [1999] 201 CLR 49 at 59-64; Mann v Carnell at 9-12. Accordingly, the Evidence Act 1995 has no application to the present situation unless the provisions of that Act concerning client legal privilege are applicable by operation of other statutory provisions.

Dimarti v Dimarti [2015] NSWSC 97 (20 February 2015)


CONTRACT – General contractual principles – Compromise agreement – Consent orders – Application to set aside – Neither agreement nor orders attended by irregularity, illegality or bad faith – No unconscionable conduct – No unjust contract – Fully informed consent given to agreement and orders – Application dismissed.

JUDGMENTS AND ORDERS – Consent orders – Application to set aside – Orders not attended by irregularity, illegality or bad faith – Application dismissed.

PRACTICE – Procedure – Judgments and orders – Amending, varying and setting aside – Consent orders – Compromise agreement – Civil Procedure Act 2005 NSW, s 73 – Uniform Civil Procedure Rules 2005 NSW, r 36.15(1).

R v Djenadija [2015] ACTSC 29 (26 February 2015)


CRIMINAL LAW – Particular Offences – offences against children – indecent assault on a person under the age of 16 years
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Evidence Act 2011 (ACT) applies to an application to lead tendency evidence in relation to offences allegedly committed prior to the commencement of that Act

Jardine v Vaughan; Clarkson Williams Partners Pty Ltd (Third Party) (No 3) [2015] ACTSC 33 (26 February 2015)


PROCEDURE – Supreme Court procedure – Third party proceeding – independent of original proceeding – proceeding able to proceed in absence of plaintiff
EVIDENCE – witnesses credibility and reliability – delay in commencing proceedings against the third party – absent witness – application of the principles in Jones v Dunkel – evidence may be more readily accepted if left uncontradicted
TRADE AND COMMERCE – Trade Practices and Related Matters – Misleading and deceptive conduct – silence – refraining from doing an act – reasonable expectation of disclosure – failure to provide relevant information
TRADE AND COMMERCE – Trade Practices and Related Matters – Misleading and deceptive conduct – Reasonable care – protection of own interests – causative link between misleading and deceptive conduct and damages – dealings between friends – seek professional advice – reliance
TORTS – Negligence – Negligent Misinterpretation – Duty of care – Salient features
TRADE AND COMMERCE – Trade Practices and Related Matters – Loss and damage – s 46(f) of the Fair Trading Act 1992 (ACT) – loss or damage caused by contravening conduct – rule in Potts v Miller – difference between price paid and actual value at time of purchase – subsequent diminution – consequential losses – interest

Swindells v State of Victoria & Anor [2015] VSC 19 (3 February 2015)


MISLEADING AND DECEPTIVE CONDUCT – appointment of plaintiff to office of mining warden by defendants – whether defendants engaged in conduct liable to mislead as to term and nature of employment – alleged misleading conduct comprising written and oral representations and silence – Fair Trading Act 1999 (Vic) s 13.

EMPLOYMENT LAW – whether terms of trust and confidence, duty to accord procedural fairness and good faith implied in contract of employment – wide scope of statutory power and contractual right to terminate employment – whether defendants breached and/or repudiated contract by manner of and grounds for termination of employment – whether failure to give adequate notice of proposed reasons for termination and opportunity to respond – whether apprehended bias by defendants when terminating plaintiff’s appointment – no breach or repudiation of contract by defendants – Mineral Resources (Sustainable Development) Act 1990 (Vic), s 96 – Public Administration Act 2004 (Vic) – Barratt v Howard & Ors [2000] FCA 190; (2000) 96 FCR 428 – Commonwealth Bank of Australia v Barker [2014] HCA 32 – Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44.