http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1548.html

APPEAL – Local Court – no question of principle

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1613.html

CLAIM FOR DAMAGES – misfeasance in public office and negligence – Plaintiffs obtain development approval from Defendant to build apartment block at Nelson Bay – lengthy delay by Plaintiffs in commencing work on development – Defendant grants development approval for other apartment blocks in the vicinity in the meantime – Plaintiffs seek to increase height and density of project in light of adjoining developments – Plaintiffs make modification application under s.96 Environmental Planning and Assessment Act 1979 – s.96 application with Defendant for extended period – Plaintiffs at no stage appeal to Land and Environment Court under s.96(6) Environmental Planning and Assessment Act 1979 against deemed refusal – planning officer obtains independent legal advice whether s.96 application or fresh development application appropriate – planning officer follows advice that s.96 application was open – height and density issues – independent legal advice obtained whether Department of Planning concurrence required – Plaintiffs repeatedly provide Defendant with revised plans – Plaintiffs lobbying Councillors as well as dealing with planning officer – Plaintiffs in financial difficulties – mortgagee takes possession of development site – Defendant ultimately refuses s.96 application – Plaintiffs sue Defendant claiming damages by way of loss of chance to make a profit

MISFEASANCE IN PUBLIC OFFICE – elements of tort – claim by Plaintiffs that planning officer acted with intention to harm Plaintiffs – whether planning officer was holder of public office – mental element – whether conscious maladministration demonstrated – planning officer obtained and acted on independent legal advice – substantial cause of delay in determination of s.96 application was frequent amendments of plans by Plaintiffs – prejudgment by planning officer not established- intention to harm Plaintiffs not established – claim for misfeasance in public office fails

NEGLIGENCE – whether duty of care owed by Defendant to Plaintiffs – statutory scheme – availability of appeal under s.96(6) Environmental Planning and Assessment Act 1979 if application not determined within 40 days – whether Plaintiffs vulnerable – whether reliance on Defendant – held duty of care did not arise – no breach of duty in any event – claim in negligence fails

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/458.html

APPEAL FROM LOCAL COURT- Appeal against final order by Magistrate that a non-intimate forensic procedure be performed – whether Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act in the absence of crime scene DNA – whether Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act – whether Magistrate erred by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/920.html

EVIDENCE – Expert evidence – valuation of land – valuer proffers valuation evidence based on differing assumptions as to whether representations made about subject property were or were not true – valuer said not to sufficiently disclose reasoning underlying opinion – reasoning sufficiently exposed to enable testing in cross-examination – valuer provides figure of ten percent as to effect of representations – no underlying reasoning to explain figure – does not necessarily mean not based on specialised training, knowledge, study or experience – evidence admissible.

(NSW) Evidence Act 1995 , s 56, s 76, s 79

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1092.html

EVIDENCE – voir dire – illegal or improperly obtained evidence – where witness sought to be cross-examined on material that was derived from information obtained by an allegedly unlawful act – whether this derived evidence was admissible – where respondent not involved in impropriety – where taxation officers able refer to broad information base when making assessments or where assessments deemed lawful in Full Court proceeding – application of Pearce v Button discretion to admit evidence – cross-examination allowed to continue

Evidence Act 1995 (Cth) ss 26, 43, 138

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1093.html

EVIDENCE – hearsay rule – exceptions – business records – whether documents met requirements in s 69(2) of the Evidence Act 1995 (Cth) – where documents obtained by employee of institution without permission of that institution – where employee had knowledge of record – keeping system – where documents had significant details concerning applicants’ activities and identity – documents met requirements of s 69 of the Evidence Act 1995 (Cth) – documents admissible

EVIDENCE – admissibility – improperly or illegally obtained evidence – whether documents illegally obtained – where manner in which documents obtained was contrary to Liechtenstein but not Australian law – where duty of confidence is not relevant factor – where respondent not party to manner in which documents obtained – documents not illegally obtained by respondent – documents admissible

Evidence Act 1995 (Cth) ss 69, 138,

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/607.html

CONTRACTS – cross-claims – Contracts Review Act 1980 – whether loan and mortgage unjust – no independent legal advice – elderly borrowers with limited command of English and no ability themselves to repay borrowings – experienced borrowers who had previously received legal advice and who understood and consented to increased borrowings – borrowers also appreciated and consented to risks involved in transaction – whether borrowers had the benefit of the money in issue – part of borrowings used to repay another loan – contract not unjust – whether relief would be granted if contract found unjust – relief would be refused – Australian Securities and Investments Commission Act 2001 – whether brokers engaged in misleading or deceptive conduct – passing on false information – implied disclaimer – misleading and deceptive conduct not established – whether brokers engaged in unconscionable conduct – not ensuring borrowers obtained independent legal advice – unconscionable conduct not established – loss claimed not established – cross-claims dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/636.html

EVIDENCE – Admissibility – exceptions to the hearsay rule – exceptions to the credibility rule – proof of prior consistent statement – allegations of fabrication – ability to cross-examine the maker of the statement.

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1502.html

COSTS – security for costs – considerations relevant to the Court’s discretionary power to order payment of security for costs – respondent outside the Court’s jurisdiction – no evidence that the respondent intends to return to Australia – respondent’s cross-claim seeking large amount – where the cross-claim is a claim in itself – whether a cross-claim is purely defensive – apparent strength and bona fides of the cross-claim – quantum – Federal Court of Australia Act 1976 (Cth) s 56 – Federal Court Rules 2011 r 19.01 – jurisdiction to order security – Federal Court of Australia Act 1976 (Cth) s 57 – Federal Court Rules 2011 r 19

Evidence Act 1995 (Cth) s 69

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/204.html

CRIMINAL LAW – trial by judge alone – incest – act of indecency – assault – alternative count of maintaining a sexual relationship with a young person – admissibility of statement of deceased mother of complainant – admissibility of evidence of other sexual activity of complainant – accused guilty on five counts – alternative count not considered.

Evidence Act 1995 (Cth) ss 51(1), 62(1), 65(2), 66(2), 108, 142(1)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/443.html

CRIMINAL LAW – Appeal against conviction – Sexual Offences – Children – Evidence – Coincidence evidence – Whether judge erred in direction on the cross-admissibility of the complainants’ evidence – Whether judge erred in direction on probability reasoning – Appeal allowed – Retrial ordered.

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1454.html

EVIDENCE – question of whether restricted evidence taken for the purposes of determining whether to unrestrict prior restricted evidence should be admitted as evidence in the main proceeding – characterisation as “voir dire” evidence by the parties – Court not called upon to decide a preliminary question – evidence received as evidence in the trial – separate tender not required

EVIDENCE – tender of affidavit evidence – documents included in a notice of documents to be tendered served by applicants on the respondents – whether admission of affidavits into evidence would unfairly prejudice the first respondent – danger of prejudice not so great as to substantially outweigh probative value

Evidence Act 1995 (Cth) s 135, s 136, s 189

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1422.html

INDUSTRIAL LAW – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – liability admitted – question of pecuniary penalty to be imposed – assessment must take into account the particular circumstances of the incident – whether principles should be adopted from criminal law sentencing process – penalty should reflect objective seriousness of breach – assessment must also focus on the practical steps that could be taken to protect the health and safety of employees at the workplace – penalty imposed which differs from assessment offered by the parties

Evidence Act 1995 (Cth) ss 140, 141, 191

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1408.html

INDUSTRIAL LAW – unlawful industrial action by more than 1300 respondents – some represented – some not – breach of Fair Work Act 2009 (Cth) (FW Act) and Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) – purpose of industrial action – motivation of respondents – industrial motivation – liability – liability admitted by represented respondents – agreement on remedy and penalty – appropriate penalty to be determined by the Court – whether it is appropriate to make declarations – analysis of transitional provisions of the FW Act – differences between an agreement-based transitional instructions, Workplace Relations Act instruments and transitional instruments – meaning of industrially-motivated in the BCII Act – definition of ‘industrially-motivated’ in the BCII Act – operation and construction of para (a) of the definition of ‘industrially-motivated’ in the BCII Act – operation and construction of para (d) of the definition of ‘industrially-motivated’ in the BCII Act – meaning of motivation – disruption to the performance of work for the purpose of industrial action

PRACTICE AND PROCEDURE – respondents who have not entered an appearance – former Federal Court Rules O 32 r 2(1)(d) – Court required to consider merits of case and make determination on balance of probabilities – Court entitled to assume correctness of matters upon which the applicant bears the onus – Federal Court Rules 2011 r 1.04 – whether proof of service on absent respondents required before affidavits can be read – where service was not effected personally – leave required to read affidavits without service – where respondents had notice of proceedings and consequences

EVIDENCE – reliance on inference – proof of any fact on the balance of probabilities from which the Court infers a further fact – inferences from primary or intermediate fact – circumstances to be taken into account when drawing an inference – failure to deny or explain facts – admissions made by agents of the unrepresented respondents – establishing liability against unrepresented respondents – unrepresented respondents aware of proceeding and consequences – liability established

Evidence Act 1995 (Cth) ss 81, 87

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1486.html

TORT – negligence – dangerous recreational activity – whether plaintiff engaged in
- Evidence Act 1995 (NSW) – s 67, s 177

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/258.html

CRIMINAL LAW – verdict – appeal against conviction – whether conduct of trial by counsel resulted in miscarriage of justice – trial counsel failed to lead medical evidence of deceased’s mental health – trial counsel failed to cross-examine on material in medical records – trial counsel failed to call witnesses – whether appellant lost an opportunity of acquittal that was fairly open to the jury – no reasonable explanation for trial counsel’s failure to lead medical evidence and cross-examine on medical records – reasonable explanation for failure to call witnesses – no miscarriage of justice – appeal dismissed

CRIMINAL LAW – joint criminal enterprise – whether trial judge erred in leaving a joint criminal enterprise open to the jury as an alternative basis for liability – no evidence to support a joint criminal enterprise – trial judge wrongly put the alternative case on joint criminal enterprise to the jury

CRIMINAL LAW – verdict – appeal against conviction – directions of trial judge – whether trial judge erred in directions on self-defence and defence of another – whether trial judge erred in directing the jury in relation to admission by witness