http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/760.html

EVIDENCE – client legal privilege – internal document handed up in court to confirm decision of no further proceedings (s 7(2)(b) Director of Public Prosecutions Act 1986 (NSW)) – whether document privileged under s 118 and s 119 of Evidence Act 1995 (NSW) – whether Director of Public Prosecutions is “client” and Deputy Director is “Australian lawyer” – whether client legal privilege waived by act of Crown Prosecutor handing document up in court to be filed with the court file – whether consent imputed to client – whether court functus officio at time of handing up of document

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/171.html

ENVIRONMENT AND PLANNING – characterisation of development in development application – construction of local environment plan – whether fly-in-fly-out temporary accommodation for migratory workers is classifiable as “residential buildings (other than dwelling-houses and units for aged persons)”

http://www.austlii.edu.au/au/cases/cth/FCA/2013/582.html

INDUSTRIAL LAW – sham contracting – accessorial liability – whether threat to dismiss in order to reengage employee as an independent contractor – whether misrepresentation of employment relationship as a contract for services

http://www.austlii.edu.au/au/cases/cth/FCA/2013/579.html

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – judicial review –Administrative Appeals Tribunal granted non-publication order – application by Commissioner to quash order – whether discretion to grant order should be exercised when pending criminal proceedings related to the same subject matter – whether failed to take into account relevant considerations or took into account irrelevant considerations – whether Tribunal failed to take into account the applicants’ rights to invoke the privilege against self-incrimination – whether Tribunal required to consider whether order would prevent or hinder the Commissioner and officers of the ATO from performing their statutory obligations and if so, whether Tribunal failed to do so – whether no evidence to justify findings that applicants intended to adduce evidence which would tend to incriminate them, that the right to remain silent and the privilege against self incrimination would be effectively removed and that the defence in the criminal proceedings would be compromised – whether Tribunal exceeded its jurisdiction by making non-disclosure order – consideration of prejudice to applicant – jurisdictional error – no evidence – findings of fact not supported by the evidence.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/571.html

PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment – application for stay pending determination of application for leave to appeal or appeal – recovery of tax – challenge to decision of primary judge to refuse to stay the execution of a tax judgment while Part IVC appeal pending – whether sufficient prospects of success in appeal against the refusal of the stay to justify reconsideration by a Full Court – whether primary judge erred in holding that he could not determine the merits of the pending Part IVC appeal without speculating – whether there was evidence to support the finding – whether evidence called by the Commissioner should have been admitted and, if so, whether it was sufficient to support the decision – whether primary judge applied the wrong test for considering the merits – whether substantial prejudice would result if leave were refused

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/115.html

23. I accept, as does the Crown, that the search warrant was not legally issued; that police entry into and the search of the premises in Groom Street pursuant to the warrant was illegal; and that the evidence obtained during the execution of the warrant was illegally obtained. I see this as a fundamental and serious breach of the law. I agree with Mr Lawton that, putting aside section 138 of the Evidence Act , the evidence obtained during the search should not be admitted during the trial of the accused.

24. Once it is found that evidence was illegally obtained, it is for the Crown to persuade me to exercise my discretion under section 138 of the Evidence Act to admit the evidence notwithstanding the illegality by which it was obtained.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/564.html

BANKRUPTCY – application to annul – whether sequestration order “ought not to have been made” – whether first respondent a creditor of the applicant – whether creditor’s petition based on a final order – solvency – discretion not to annul – relevant considerations – annulment refused.

EVIDENCE – leave granted for first respondent to re-open its case to admit further evidence located after judgment reserved – use of evidence limited.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/164.html

CONTRACT – agreement to supply land fill – whether appellants proved that fill supplied by respondents was contaminated with asbestos

EVIDENCE – tendency evidence – s 97 Evidence Act 1995 – whether respondents supplied contaminated land fill to appellants’ property – relevance of evidence of deliveries of contaminated land fill by the respondents to two other properties

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/727.html

NEGLIGENCE – BREACH OF IMPLIED TERM – accident boarding chairlift – Jones v Dunkel – failure to call doctor – lift ticket – purported contractual exclusion of implied term and liability – s 5N(1) Civil Liability Act – s 68, s 68A, s 68B and s 74 Trade Practices Act – whether Civil Liability Act applies to causes of action for breach of term implied by s 74(1) arising prior to 13 July 2004 – s 109 of the Constitution – duty of care – breach – whether lift operator inattentive – risk of harm from chair arriving in defective state – precaution of lift operator observing state of chair from location near loading point – causation – s 5D – inherent risk – s 5I – dangerous recreational activity – s 5L – risk warning – s 5M – contributory negligence – breach of implied term – damages – pre-accident afflictions – post-accident restrictions – failure to provide records – whether adverse interest should be drawn – economic loss – Sections 12 and 13 of Civil Liability Act – whether rental income and management fees earnings – gratuitous attendant services – lost fees from days absent from work.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/135.html

EVIDENCE – robbery of hotel – opinion evidence – s 79 Evidence Act 1995 – expert evidence of comparisons of CCTV images of offender and images of appellant – common anatomical features identified – evidence not given that there was “a high level of anatomical similarity” between offender and appellant – Morgan v R 215 A Crim R 33 distinguished – whether admissible as expert opinion evidence – whether based on specialised knowledge – whether witness qualified as an ad hoc expert

CRIMINAL LAW – appeal – whether verdict unreasonable or insupportable having regard to evidence – appeal dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/157.html

DAMAGES – accident at workplace – damages for past economic loss – quantification of lost earning capacity – where appellant’s lost earning capacity not reflected by income disclosed in tax returns – whether falsity of tax returns must be admitted before allowance could be made on that basis

DAMAGES – damages for future economic loss – award of superannuation – whether appellant was employee or independent contractor – whether appellant qualified for superannuation under Superannuation Guarantee (Administration) Act 1992 (Cth)

PROCEDURE – responsibility of legal advisers to ensure best evidence of lost earning capacity is adduced at trial

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/681.html

PRACTICE AND PROCEDURE – application by defendant corporation to set aside default judgment – where defendant properly served with originating process – where proceedings brought to the attention of the director of the defendant corporation prior to judgment being entered – whether default adequately explained – whether bona fide defence made out – application to set aside judgment dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/687.html

CONTRACTS – oral agreement – evidence relevant to whether parties entered into an oral agreement – identification of terms of oral agreement.

EVIDENCE – credibility of witnesses – importance of contemporaneous material – Jones v Dunkel inferences.

PARTNERSHIP – formation – whether the parties were in partnership – distinction between partnership and joint venture.

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/102.html

CRIMINAL LAW – EVIDENCE – application to exclude evidence – whether evidence should be excluded under s 138 Evidence Act 2011 (ACT) – whether evidence obtained improperly or in consequence of impropriety – conduct did not go beyond providing accused with opportunity to act as he did – application to exclude evidence refused

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/685.html

ADMINISTRATIVE LAW-procedural fairness-opportunity given to make submissions

CRIMINAL LAW-return of seized property-nature of application

CRIMINAL LAW-search warrants-legality unaffected by non-service of seizure notice

EVIDENCE-public interest immunity- applies to evidence regarding current police investigations

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/145.html

INTERPRETATION – Births, Deaths and Marriages Registration Act 1995, s 32DC – whether the Registrar’s power under s 32DC to register change of a person’s “sex” is limited to registering a change from male to female or female to male.

ADMINISTRATIVE LAW – jurisdiction, Administrative Decisions Tribunal Act 1997, s 119(1) – whether question of law.

INTERPRETATION – extrinsic material – whether regard could be had to second reading speeches, dictionary definitions, academic material and other Acts.

EVIDENCE – proof – judicial notice – whether regard could be had to extrinsic material in the interpretation of the statute.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/508.html

DESIGNS – validity – steel fencing panel – whether design “new or original” – essential features of design to be judged by “instructed eye” – whether design differed in immaterial details or in features commonly used in the relevant trade – whether obvious adaptation of analogous article

DESIGNS – infringement – whether fraudulent or obvious imitation of registered design – where evidence was led that respondent referred to creating a “lookalike” of applicant’s product – principles in determining infringement – whether applicant entitled to the design

343. It seems to me to follow from what was said in Polyaire v K-Aire, and the earlier authorities to which the Court referred, that the claim is a serious one. It must be proved on the balance of probabilities taking into account the matters referred to in s 140(2) of the Evidence Act 1995 (NSW).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/674.html

MOTOR ACCIDENT COMPENSATION – Motor Accidents Compensation Act 1998, s 118 – false and misleading conduct for purpose of obtaining a financial benefit

STATUTES – principles of construction – Motor Accidents Compensation Act 1999, ss 118(1) and (2) – “financial benefit” – application of the provisions of s 118(2) in determining the issue of “financial benefit” obtained under a lump sum settlement – approach in determining financial benefit attained – factors in the quantification of the relief to which the defendant insurer is entitled to relief under s 118(2) of the above Act – adverse findings against the plaintiff in terms of s 118(1) of the above Act – impact of such findings in determining plaintiff’s credibility – extent to which medical and other evidence provides independent corroboration of plaintiff’s impairment and incapacity – basis for assessing true settlement value of the plaintiff’s claim – discounting factors to be considered – settlement amount to be reduced – determination of the quantum of the relief to which the defendant insurer is entitled under s 118(2) of the above Act

151. As discussed below, the plaintiff in the cross-examination contended that both in his employment with Jet Café and in earlier employments he had received remuneration by way of cash earnings and that these were not reflected in the tax returns he lodged with the ATO. In answering questions relating to such non-disclosure he had the protection of a certificate under s 128 of the Evidence Act 1995 .

http://www.austlii.edu.au/au/cases/cth/FCA/2013/526.html

PRACTICE AND PROCEDURE – application for summary judgment – decision of United States Bankruptcy Court – doctrine of res judicata

PRACTICE AND PROCEDURE – abuse of process

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/621.html

CIVIL LAW – examination orders pursuant to Proceeds of Crime Act (Cth) – whether examination order should be stayed because of pending criminal charges – whether principle in Hammond v Commonwealth applicable – whether there is any basis upon which to order stay – stay refused

http://www.austlii.edu.au/au/cases/cth/FCA/2013/513.html

EVIDENCE – Federal Court Rule 2011 (Cth) 24.20(6) – documents produced under subpoena – objection to inspection by a party – section 131(1) and 131(2)(h) Evidence Act 1995 (Cth) – whether document constitutes a communication in connection with negotiating a settlement – whether document prepared in connection with attempt to negotiate settlement

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/633.html

EVIDENCE – production of documents – application to be excused from producing documents – client legal privilege – police seeking advice from internal Operational Legal Advice Unit – whether advice provided by lawyer – whether pending or anticipated proceeding – Commissioner excused from production

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2013/3.html

DEFENCE – Convictions relating to receipt of rental and other allowances – whether Judge Advocate erred in direction to panel about whether appellant and his wife “normally lived together” for purposes of relevant Defence Determination – whether verdicts entered against appellant inconsistent with other verdicts of acquittal – whether Judge Advocate erred by failing to hold that certain email evidence should have been excluded – whether Judge Advocate erred in rejecting proposed tender of Defence Force Pay and Conditions Manual – whether Judge Advocate erred in failing to hold that appellant was entitled to trial by jury – whether Judge Advocate erred in directing that panel should reach determination on each charge by majority vote.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/124.html

CRIMINAL LAW -Crown appeal-order for trial by judge alone- whether discretion miscarried;
CROWN APPEAL- order for trial by judge alone- racial prejudice- order made without evidence- jury prejudice- procedures available to identify and excuse prejudiced jurors- directions to jurors to promote impartial decisions;
APPLICATION FOR ORDER FOR TRIAL BY JUDGE ALONE – apprehension of prejudice from facts of case- whether order justified- whether expert evidence complex- whether complexity of evidence justified order.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/632.html

ARBITRATION – award – enforcement of an arbitral award – arbitral award made by Beth Din in Zablo – summons seeking leave to enforce award – cross-summons seeking to set aside the award – failure to give reasons – credibility and reliability of witnesses – Beth Din of Zablo – whether Beth Din decision complied with the requirements of s 29(1)(c) – allegation of fraud – allegation of misconduct – whether plaintiff established that he was a party to Beth Din proceedings – problems with record keeping at Beth Din proceedings – notice and opportunity to be heard – Beth Din not conducted in accordance with written arbitration agreement – requirement of impartiality not met – bias established – use of Yiddish – proper attention not paid to defendant’s case – orders sought under s 43 of Commercial Arbitration Act 1984 cannot be made – orders – costs

EVIDENCE – leave sought by Mr Thaler to give evidence in reply – leave refused – ruling under s 136 of the Evidence Act in relation to Mr Koncepolski’s evidence sought – ruling refused

PROCEDURE – notice of motion – order seeking to set aside subpoena – motion dismissed

PROCEDURE – pleadings – leave to amend further amended cross-summons – leave granted

http://www.austlii.edu.au/au/cases/cth/FCA/2013/473.html

BANKRUPTCY AND INSOLVENCY – appeal from Federal Circuit Court – sequestration order made on creditor’s petition – District Court judgment for unpaid tax – effect of s 177 of Income Tax Assessment Act 1936 (Cth) – whether denial of procedural fairness by primary judge – claim of conscious maladministration on the part of the respondent – proposed proceedings by appellant under s 39B of the Judiciary Act 1903 (Cth) – proposed proceedings against respondent for damages – whether primary judge erred in not being satisfied by debtor that for other sufficient cause under s 52(2) of the Bankruptcy Act 1966 (Cth) a sequestration order ought not to be made

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/121.html

APPEAL – criminal – Director’s right of appeal against ruling on admissibility of evidence – whether exclusion of evidence substantially weakened prosecution case – how appellate court to determine whether ruling substantially weakens prosecution case – whether permissible to consider how evidence strengthens probative value of other evidence s 5F(3A) – Criminal Appeal Act 1912 (NSW)

EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether permissible for court to consider credibility and reliability of evidence in determining probative value – where restrictive approach previously adopted by same court in R v Shamouil [2006] NSWCCA 112 – restrictive approach rejected by other intermediate appellate court in Dupas v The Queen [2012] VSCA 328 – whether material difference between approaches

EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether failure to identify particular unfair prejudice – failure to consider how proper direction could overcome risk of unfair prejudice – whether trial judge erred in excluding evidence

EVIDENCE – criminal proceedings – respondent charged with sexual offences – evidence of telephone conversations between complainant and respondent nine years after alleged incident – transcripts included responses to allegations – whether vagueness of allegations created risk of unfair prejudice – whether danger that jury would use evidence for impermissible tendency inference – whether risk could be overcome by proper direction – s 137 Evidence Act 1995 (NSW)

EVIDENCE – criminal proceedings – discretion to exclude evidence that would be unfair to defendant – transcript of telephone conversations in which accused responded to allegations of sexual offences made by complainant – whether unfair to admit evidence requiring accused to explain to jury – whether infringement of right to silence – s 90 Evidence Act 1995 (NSW)

STATUTORY INTERPRETATION – construction of statute – precedent – resolving conflicting authorities – whether Court of Criminal Appeal entitled to follow its own earlier authority – where intermediate appellate court in another Australian jurisdiction found that authority plainly wrong – whether Court of Criminal Appeal required to find later authority plainly wrong – course conducive to orderly administration of justice – where courts interpreting uniform state legislation not national in operation – uniform Evidence Acts

http://www.austlii.edu.au/au/cases/vic/VSC/2013/269.html

EVIDENCE – Expert opinion evidence based on specialised knowledge – Admissibility – Status of the “Basis rule” – Dasreef Pty Ltd v Hawchar – Evidence Act 2008 (Vic), ss 79, 56.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/594.html

ADMINISTRATIVE LAW – jurisdiction of the Supreme Court under s 39B of the Judiciary Act – discussion of motion in arrest of judgment – jurisdiction to declare void or quash income tax assessment – application for mandamus and prohibition against Commonwealth officers in collateral attack on criminal proceedings in the Court – discretion where broader rights on appeal are available – whether determination of financial advantage in criminal proceedings was reliant upon tax assessment and as a consequence impermissible non-judicial act inconsistent with the Constitution

http://www.austlii.edu.au/au/cases/act/ACTCA/2013/23.html

EVIDENCE – similar facts – sexual offences –tendency and coincidence evidence – whether relevant to the issue of abuse of position of authority or trust

CRIMINAL LAW – engaging in sexual intercourse without consent – committing acts of indecency without consent – consent alleged to have been negated by abuse of position of authority or trust – abuse in the context of s 92P(1)(h) (now 67(1)(h)) of the Crimes Act 1900

APPEAL – appeal from order for separate trials following ruling against the admission of tendency and coincidence evidence

WORDS AND PHRASES – “abuse of position of authority … or … trust”

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/125.html

CONTRACT – construction – loan agreements – whether loan agreements were intended to be operative in accordance with their terms – whether primary judge made erroneous factual findings or failed to make necessary factual findings.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/118.html

CRIMINAL LAW – appeal – sentencing – severity – plea of guilty – import marketable quantity of border controlled drug (heroin) – whether applicant was denied procedural fairness in that the sentencing judge failed to warn that he did not accept the uncontested evidence of duress – whether sentencing judge erred in failing to find that the applicant had acted under duress when he committed the offence for which he stood for sentence – Ground 1 made out – appeal allowed – matter remitted for further hearing in District Court

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/114.html

CRIMINAL LAW – environmental offences – s 118A(2) – Expert witness code – admissibility of expert reports – chain of possession – assumptions – construction of Final Determination of Scientific Committee – beyond reasonable doubt – reasonable certainty – s 194(1)(d) – foreseeability of harm

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/569.html

TORTS – negligence – concrete batching plant – plant collapse onto truck – bin collapse – scope of duty of care – whether risk of harm arising from collapse was foreseeable – exposure to significant risk – constructive knowledge of risk – whether risk ought to have been known – systems of work at the plant – how the plant was maintained – deficiencies in systems – bin support structure required maintenance before collapse – bin support system – expert evidence – s 5B Civil Liability Act 2002 – causation – s 5D Civil Liability Act 2002 – reasonable care was required – plaintiff’s injuries – credibility – medical records – expert evidence – damages – physical and psychological injuries – economic losses – orders

EVIDENCE – privilege – experts not given access to relevant information – inferences drawn against defendant

http://www.austlii.edu.au/au/cases/cth/FCA/2013/467.html

INDUSTRIAL LAW – whether the employee was dismissed or resigned voluntarily – whether the respondents took adverse action against the employee by dismissing him – whether breach of the National Employment Standards

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/91.html

ASSOCIATIONS AND CLUBS – Incorporated Associations – meetings – whether to hold a meeting at a particular venue – injunction sought – application dismissed

ASSOCIATIONS AND CLUBS – Incorporated Associations – jurisdiction of the Court to intervene in internal affairs of association – principles for court intervention

ASSOCIATIONS AND CLUBS – Incorporated Associations – meetings – power to call meeting – provisions in constitution

ASSOCIATIONS AND CLUBS – Incorporated Associations – membership – inadequate records – renewal of membership

http://www.austlii.edu.au/au/cases/cth/FCA/2013/442.html

PRACTICE AND PROCEDURE – application for leave to appeal, and appeal, from interlocutory order of Federal Magistrate (now a Federal Circuit Court Judge) for discovery – whether order for discovery made upon declaration that such an order was “appropriate, in the interests of the administration of justice” pursuant to s 45 of the Federal Magistrates Act 1999 (Cth) – whether order for discovery fair in circumstances where costs of making discovery not recoverable – discussion of discovery in proceedings generally – whether application for leave to appeal, and appeal, within no-costs Fair Work Division

PRIVILEGE – application of privilege from self-incrimination in proceeding for civil penalty – whether “proper officer” available to swear affidavit of documents pursuant to discovery order

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/543.html

PUBLIC INTEREST IMMUNITY – where principal proceedings challenge validity of search warrants and crime scene warrant – where notice to produce issued seeking documents relevant to the issue of warrants – where claim for public interest immunity made over part of the material – need to establish legitimate forensic purpose – whether stated purpose amounted to “fishing” – no legitimate forensic purpose established – where balancing exercise would have favoured the claim being upheld in any event – claim upheld.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/348.html

CORPORATIONS – investment advice given by Australian Financial Services Licensee and authorised representative thereof – whether investment scheme advised “Ponzi scheme” – actions under Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth) for loss or damage arising from misleading and deceptive conduct – whether disclosure document or statement defective – whether reasonable basis for investment advice given – whether obligation to warn client if investment advice based on incomplete or inaccurate information – whether representations as to future matters misleading – whether false or misleading statements made – whether statements made to induce dealings in financial products where maker knows or is reckless to whether statement is misleading, false or deceptive – whether false representations made in relation to standard of financial services – whether investment advice acted upon

CONTRACTS – whether investment advice given pursuant to express terms – whether advice appropriate for plaintiffs’ needs, objectives and circumstances – whether term of reasonable care implied by law, and implied by fact, breached – whether breach of warranty implied by s 12ED of Australian Securities and Investments Commission Act 2001 (Cth) – whether financial services rendered with due care and skill

NEGLIGENCE – whether duty and content thereof established – whether breach of duty established

PARTNERSHIP – whether conduct of partner within ordinary course of business of, or with authority of, partnership

DAMAGES – loss of initial investment, interest on compounding basis, and consequential loss upon collapse of dependent investments sought – whether plaintiffs’ damages to be reduced on account of plaintiffs’ failure to take reasonable care – first and second defendants cross-claim brought against other defendants seeking apportionment, indemnity and contribution – whether concurrent wrongdoers – application of statutory contributory negligence and proportionate liability provisions within Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth) – discussion of principles of apportionment – whether plaintiffs “consumers” for purposes of Civil Liability Act 2003 (Qld)