CRIMINAL LAW – Appeal against conviction – Appellant found guilty on five counts of sexual penetration of child under 16 – Jury question about how to treat appellant’s record of interview – Misdirection – Undermining evidential value of record of interview – Whether trial judge erred in failing to give Azzopardi direction – Whether trial judge in compliance with s 61 of the Crimes Act 1958 adequately directed jury on effect of delay in terms of complainant’s credibility – Failure to distinguish between directions of law and comments upon facts – Aggregation of defects – Crimes Act 1958 s 61 – Azzopardi v The Queen (2001) 205 CLR 50 and Weissensteiner v The Queen  HCA 65; (1993) 178 CLR 217 discussed – Appeal allowed – Convictions quashed – New trial ordered.
TRADE PRACTICES – anti-competitive arrangements – whether the respondent travel agent attempted to induce specified Airlines to make collusive arrangements lessening or likely to lessen competition in the market – application of s 45 and s 45A of the Trade Practices Act 1974 (Cth), now the Competition and Consumer Act 2010 (Cth) – six alleged contraventions – consideration of the relevant “market” in intermediary services provided by travel agents – whether respondent and airlines truly in competition – consideration of the relevant service being supplied – Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd  HCA 72; (1986) 162 CLR 395 distinguished
Held: six charges proved – respondent and specified airlines competed for the retail or distributive margin attaching to the sale of an airline ticket – respondent sought to have access to the airfares offered by airlines, and, it sought to prevent the specified airlines from undercutting it with respect to such airfares, amounting to an attempt to induce anti-competitive arrangement or understanding
APPEAL – challenge to findings of fact – challenge to contingent finding of contributory negligence – retrial required
EVIDENCE – client legal privilege – whether statement of defendant obtained by investigator for use by insurer is privileged – whether trial judge correctly assessed dominant purpose of statement – whether document a confidential communication – Evidence Act 1995 (NSW), ss 117, 118
NEGLIGENCE – motorcycle accident – damages agreed – whether question of liability was correctly determined – trial judge reasons do not record process of resolving disputed facts – erroneous fact-finding process
HUMAN RIGHTS – discrimination – sexual harassment – employee alleged she was verbally and physically sexually harassed by a contract worker engaged by her employer – harassment alleged to have occurred at the employer’s office, at other venues and during travel – whether the conduct was by “fellow employee” within the meaning of s 28B(2) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether the conduct occurred at a place that is a workplace of both workplace participants within the meaning of s 28B(6) of the SD Act – meaning of “workplace” – whether “workplace” confined to premises exclusively occupied by workplace participants and not to common areas shared with others – whether the usual workplace of both workplace participants is only a “workplace” during working time – whether and in what circumstances a place other than the usual workplace of both workplace participants may be a “workplace” – whether the conduct alleged could be characterised as a “sexual advance”, “a request for sexual favours” or “conduct of a sexual nature” within the meaning of s 28A of the SD Act – considerations relevant to determining whether the conduct was “unwelcome” – considerations relevant to determining whether a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated – whether the conduct alleged was proved – conduct found to have contravened
s 28B(6) of SD Act.
EVIDENCE – s 140 Evidence Act 1995 (Cth) – considerations to be taken into account in considering whether case proved on balance of probabilities.
DAMAGES – orders under s 46PO(4) Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) – measure of damages – extent to which common law principles have application in the assessment of damages under the AHRC Act – whether aggravated damages may be granted to compensate for matters taken into account in the award of general damages – considerations for the award of exemplary damages where compensatory damages have significant punitive force.
DAMAGES – double recovery – claims settled against both the applicant’s employer and the respondent’s employer – terms of settlement not disclosed to the Court – possibility of double recovery – prior satisfaction of applicant’s loss to be taken into account at time damages awarded – orders made requiring terms of settlement to be disclosed.
CRIMINAL LAW – appeal against conviction – offence of causing grievous bodily harm with intent to cause grievous bodily harm – appellant threw methylated spirits onto bed where victim lay and ignited bedclothes – victim retracted earlier statement to police – whether trial judge erred in admitting into evidence complainant’s statement to police – whether use of victim’s statement to police resulted in miscarriage of justice – whether use of evidence disclosing consciousness of guilt resulted in miscarriage of justice – whether Zoneff direction was required – whether verdict is unreasonable or cannot be supported having regard to evidence – appeal dismissed
EVIDENCE – whether evidence of a witness for the plaintiffs about what was said between himself and the first defendant in the presence of the third defendant is admissible against the third defendant given the fact that the plaintiffs did not intend to call the first defendant in their case
CRIMINAL LAW – Evidence – Tendency – Accused charged with accessory after fact to murder – Co-accused charged with murder – Accused relying on defence of duress by co-accused – Whether evidence proposed to be adduced by accused concerning previous behaviour of co-accused admissible – Evidence Act 2008 (Vic) s 97.
TORTS – negligence – plaintiff suffered catastrophic injury while participating in sport of wakeskating – determination of liability as separate question- whether defendant tow boat driver was in breach of his duty to exercise reasonable care for the safety of the plaintiff in the conduct of the activity – whether wakeskating dangerous recreational activity
INDUSTRIAL LAW – applicant operates mine in central Queensland – second, third, fourth and fifth respondents senior officials of first respondent union – versions of overtime policy of union in service bay crib room and included in information pack to new members – claim by applicant that respondents contravened ss 50, 340, 345, 349 and 417 Fair Work Act 2009 (Cth) – relevance of minor variations in terms of overtime policy – whether respondents displayed or issued overtime policy – whether Lodge on frolic of its own – whether union contravened enterprise agreement – meaning of “contravention” – whether conduct of respondents constituted “industrial action” – hortatory statements in overtime policy – whether individual respondents involved in contravention by union – fifth respondent signed letter accompanying information pack with overtime policy to new members – whether applicant had a workplace right of requiring employees to work unrostered overtime – whether conduct of respondents concerning overtime policy constituted adverse action – evidence of negotiations between applicant and union concerning working of unrostered overtime – whether respondents engaged in false and misleading representations concerning right of the applicant to require employees to work overtime
PRACTICE AND PROCEDURE – respondents submitted no case to answer at conclusion of applicant’s case – respondents elected to call no evidence in proceedings – relevant principles where respondent makes “no case to answer” submission – application of rule in Jones v Dunkel – standard of proof – principles in Briginshaw v Briginshaw (1938) 60 CLR 336 – s 140 Evidence Act 1995 (Cth) – civil penalty provisions in Fair Work Act 2009 (Cth) – approach of Court to real controversy between the parties
FINANCIAL SERVICES – ss 12CA and 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) – whether bank misleadingly or deceptively represented that it would not regard appointment of voluntary administrators as an Event of Default under a loan facility – whether bank unconscionably procured and relies on releases and bars in a Deed of Forbearance – whether loss suffered by appointment of receivers to properties which were security under the facility and guarantees – whether quantum is established – CONTRACTS – s 7(1) of the Contracts Review Act 1980 (NSW) – whether personal guarantees were unjust in the circumstances relating to them at the time they were made – whether it is unconscionable under the general law to enforce them
DEFENCE FORCE – appeal from Restricted Court Martial against convictions for committing an act of indecency – circumstantial evidence – whether Judge Advocate erred in failing to give proper direction – admissibility of evidence based on inference drawn by witness from observed facts – whether substantial miscarriage of justice – meaning of “indecency” – appeal allowed – conviction quashed – retrial ordered
EVIDENCE – accused was playing violent computer game before confrontation leading to death of deceased – whether evidence of nature of the computer game admissible – whether probative of state of mind of accused – whether probative value outweighed by prejudicial effect.
EVIDENCE – whether probative value of photos outweighed by their prejudicial effect – no question of principle.
PRACTICE AND PROCEDURE – business insurance – brothel – motorcycle club – membership – duty to disclose material facts to insurer – non-disclosure of material facts – refusal to honour insurance policy – interrogatories – request for disclosure of information about association with motorcycle club – interrogatories opposed – scope of relevance – consideration of necessity and purpose of interrogatories – costs – orders made
APPEAL – misleading and deceptive conduct – dual pricing – Strike Through price and Sale price – Was price and Now price – identification of relevant audience – whether the trial judge erred in finding that the information conveyed in the catalogues and flyer were Savings Representations – whether the trial judge erred in finding that the Savings Representations were or were likely to be false or misleading.
Held: The appeal be dismissed. The appellant pay the respondent’s costs of the appeal.
CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against two natural daughters – Whether appellant led evidence of good character – Whether the trial judge erred in allowing the Crown to adduce evidence of bad character through cross-examination and in rebuttal – Appeal allowed – Convictions quashed and retrial ordered.
CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against a child under the age of 16 years – Whether trial miscarried because of counsel’s failure to adduce evidence of the appellant’s good character – Whether trial miscarried because of counsel’s failure to object to evidence of an expert – Crown concession – Appeal allowed – Convictions quashed and retrial ordered.
CRIME – murder – trial by judge alone – whether accused guilty or not guilty – defences – provocation – where not raised on case for accused
PATENTS – threatened infringement of pharmaceutical patent for raloxifene – claim to raloxifene in particulate form with specified mean particle size – whether interlocutory injunction should be granted – whether prima facie case for final relief – strength of infringement and invalidity cases – whether mandatory interlocutory injunction should be granted requiring respondent to withdraw application for listing of its generic raloxifene products on the Schedule of Pharmaceutical Benefits – consideration of balance of convenience – significance of mandatory price reduction under Pharmaceutical Benefits Scheme – difficulties in quantifying and apportioning applicants’ losses in circumstances where mandatory price reduction triggered and generic suppliers enter market for raloxifene products.
Held: Interlocutory injunctions granted.
CRIMINAL LAW – Conviction – Application for leave to appeal – Attempted murder – Crown case of concert and alternatively that applicant counselled and procured co-offender to kill victim – Plea by co-offender to charge of intentionally causing serious injury accepted by Crown – Co-offender called by Crown at trial of applicant – Crown submission that jury should disbelieve parts of cooffender’s evidence which could have assisted applicant – Whether judge erred in leaving counselling and procuring basis of guilt to jury – Likiardopoulos v The Queen (2012) 247 CLR 265.
CRIMINAL LAW – Conviction – Confession – Whether judge erred in finding that Crown had satisfied requirement for admissibility of confession under s 85(2), Evidence Act 2008 .
CRIMINAL LAW – Conviction – Whether conviction for attempted murder unsafe and unsatisfactory.
Application for leave to appeal against conviction refused.
CRIMINAL LAW – Sentence – Extension of time application – Long and unexplained delay- Sole proposed Ground near hopeless- Application refused.
PRACTICE AND PROCEDURE – application for leave to appeal – interlocutory decision refusing permission to rely upon further evidence – application dismissed
SENTENCE – special hearing – found unfit to be tried – determined that accused will not become fit during twelve months after finding of unfitness – murder – alternative offence of robbery in company with the infliction of grievous bodily harm – Crown case depends upon accused’s admissions – reliability of accused’s admissions – reliability affected by accused’s mental illness, drug abuse and delay between commission of offence and date of admissions – direction according to terms of s 165, Evidence Act – not satisfied beyond reasonable doubt as to reliability of accused’s admissions
JUDICIAL REVIEW – appeal from judgments of Local Court – leave to appeal from an interlocutory order of the Local Court – whether plaintiff was denied procedural fairness – plaintiff was unrepresented and had language difficulties – whether Magistrate erred in finding no triable issue – costs.
CRIMINAL LAW – evidence – tendency – tendency notice – evidence in relation to victim’s character, reputation and conduct – tendency to engage in violent conduct towards females, use of weapons and to carry knife on person – evidence sought to be relied on in relation to whether accused was acting in self defence when fatal wound was inflicted – whether evidence has significant probative value – whether evidence admissible
COSTS – motion by Plaintiffs to re-admit evidence rejected in earlier judgment – fresh arguments not previously raised – Plaintiffs partly successful – Plaintiffs to pay costs
PROCEDURE – notice of motion – legal professional privilege – documents – s 118, s 119 Evidence Act – whether documents disclosed – some documents not confidential – whether solicitor’ and counsel independent – dominant purpose – waiver – waiver established – s 122 Evidence Act does not apply – orders
EVIDENCE – privilege – legal professional privilege – privileged claimed under s 118 and s 119 of Evidence Act
CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16, indecent act with child under 16 – Convicted on four charges, acquitted of two – Whether verdicts inconsistent – Whether verdicts otherwise unsafe and unsatisfactory – Alleged admissions by appellant – Whether admissible – Whether judge’s directions adequate – Crown concession of error – Verdicts not unsafe – Retrial ordered – Evidence Act 2009 (Vic) s 137.
PROCEDURE AND EVIDENCE – claim inadequately pleaded – reasonable request to inspect documents – failure to comply with request – application for requested documents not to be admitted into evidence – right to test authenticity of evidence – failure to comply with court order – overseas travel no excuse for failure to comply – plaintiff claim dismissed – costs awarded
EVIDENCE – admissibility – Part 3.4 Evidence Act 1995 (NSW) – s87 – whether statement of witness contains admissions – whether statement contains representations to which it is reasonably necessary to refer in order to understand admissions – whether witnesses representations related to a matter within the scope of her employment
EVIDENCE – admissibility of question
EVIDENCE – client legal privilege – waiver – whether party acted inconsistently with objecting to evidence of instructions given to lawyers – Evidence Act 1995 , s 122(2)
EVIDENCE – client legal privilege – waiver – loss of privilege in legal advice due to voluntary disclosure of substance of advice – whether party acted inconsistently with objecting to evidence of instructions and other documents relating to advice – Evidence Act 1995 , s 122(2)
PRACTICE AND PROCEDURE – Subpoenas to independent experts – Inspection of documents – Client legal privilege – Express waiver of privilege in expert reports by delivery– Documentary communications between solicitor and independent experts – Draft expert reports submitted to first defendant’s solicitors for the provision of professional legal services relating to the current group proceeding – Whether waiver of privilege in consequence of delivery of expert’s final reports – Inconsistency – Whether documents influence or underpin expert reports – ss 119, 122 and 126 of Evidence Act 2008 (Vic).
EVIDENCE – legal professional privilege – whether implied waiver
EVIDENCE – whether paragraph of affidavit admissible -whether probative value of evidence substantially outweighed by danger that it might be unfairly prejudicial to a party
CRIME – evidence – where accused served notice of intention to call evidence that deceased had a tendency to act in a particular way – call by Crown for production of any statements taken by solicitor for accused from persons identified in notice – whether client legal privilege lost upon service of notice – whether client legal privilege lost upon calling witnesses to give evidence in the case for the accused
EVIDENCE – expert evidence – opinion based upon assumptions and documents – documents not in evidence – assumptions not otherwise proved – report rejected
EVIDENCE – s 138 and s 139 Evidence Act 1995 – improperly obtained evidence- failure to caution the accused- interview conducted notwithstanding initial refusal to answer questions- s 90 Evidence Act 1995 – unfair deprivation of right to silence- advantage taken of vulnerable person- 15-year-old girl
CRIMINAL LAW – right to silence- requirement for caution- provisions relating to juveniles
ADMINISTRATIVE LAW – Application for leave to appeal from the Victorian Civil and Administrative Tribunal – Appeal from interlocutory orders – Orders were further extensions of time in respect of orders made by consent of the parties – Orders were directions commonly made and of a discretionary character – Whether Magistrates’ Court proceeding involving recovery of an amount paid by the fidelity fund should be heard and determined before VCAT proceedings – Matters before the Tribunal of greater public importance – No real or substantial argument that error exists – Application for leave to appeal refused.
AGENCY – where mortgage broker misappropriated loan monies – whether mortgage broker acting with actual or apparent authority of mortgagee – actual or apparent authority – principles to be applied
CONTRACTS – unjust – where mortgage broker misappropriated loan monies – whether Contracts Review Act 1980 (NSW) excluded – whether contract entered into in the course of “trade, business or profession” – meaning of “business” – question of fact – principles to be applied
CORPORATIONS – unregistered managed investment scheme – no prospectus – information memorandum offering investment only to limited classes of investors – representations made by investor – funds loaned to invest in scheme – whether defendant a “professional investor” – meaning of “control” – Corporations Act 2001 (Cth), ss 9, 708(11) (as enacted in the Financial Services Reform Act 2001 (Cth)).
EVIDENCE – offence of aggravated people smuggling – evidence of admission made to officer of Royal Australian Navy boarding party – use of translation cards – objection taken at trial on ss 85, 90, and 139 – evidence admitted – asserted unfairness, unreliability and failure to adequately caution – findings of fact open with regard to s 85 that circumstances did not adversely affect truth of admissions – no House v The King error regarding reliance upon caution administered with translation cards as bearing against rejection of the admission for the purposes of ss 90 and 139 – decisions below not erroneous
CRIMINAL LAW – offences – people smuggling – s 233C Migration Act – appellant crew on boat found near Christmas Island with fifty-seven passengers – made admissions in response to translation card that indicated awareness of being in Australian waters – conversations with passengers on voyage to similar effect – trial judge directed that the necessary intention was awareness of passengers intended destination of Australia – proper directions about unreliability of conversations and admission – Crown case not reliant on proving that appellant aware Christmas Island was part of Australia – defence case simply that appellant going to entirely different destination in Indonesia – no misdirection on elements established
CRIMINAL LAW – appeals generally – practice and procedure – objection to admissions taken below on specific grounds – objection not upheld – further grounds raised in support of objection in appeal against ruling – application of Rule 4 where objection taken below but new grounds raised on appeal – consideration of general requirement that counsel make clear at trial the grounds on which particular rulings are sought – Rule 4 applies – common law practice generally contrary to reliance upon new grounds, subject to question of miscarriage of justice
CRIMINAL LAW – appeal against conviction – historical child sexual assault – verdict not unreasonable – errors in trial transcript – corrected by substantial agreement – appellate court not required to listen to transcript
EVIDENCE – tendency and coincidence evidence – confusing directions – coincidental “events” – appropriate coincidental reasoning
CRIMINAL LAW – appeal against sentence – manifestly excessive – whether sentence practices at the time of the offences should be applied
DEFAMATION- cause of action- corporate plaintiff not established excluded – imputations- whether carried- identity of natural plaintiffs irrelevant to Broadcast- whether defamatory- no injury to plaintiffs’ reputation as distinct from goods- defences- justification- truth- evidence of all contextual imputations to be weighed against imputations not proved true- qualified privilege- when available to mass media- damages- special damages- whether attributable to matter complained of
EVIDENCE- findings as to credit- witness advocate for own cause
TORTS- injurious falsehood- relevant counterfactual to assess damages
WORDS AND PHRASES- meaning of ‘falsely’- synonymous with ‘incorrectly’
EVIDENCE – client legal privilege – waiver – whether for purposes of s 122(2) Evidence Act 1995 party acted inconsistently with objecting to evidence of counsel’s advice – counsel’s advice formed part of basis for matters deposed to in affidavit but not mentioned in affidavit.
EVIDENCE – client legal privilege – waiver – whether for purposes of s 122(3) of Evidence Act 1995 party knowingly and voluntarily disclosed the substance of counsel’s advice – disclosure that counsel had recommended a course of action – no disclosure of counsel’s reasoning.
EVIDENCE – client legal privilege – wavier – where privilege in relation to other documents waived by voluntary disclosure – whether privilege waived pursuant to s 126 Evidence Act 1995 in relation to an advice of counsel because adducing evidence of it is reasonably necessary to enable a proper understanding of other documents.
PROPERTY – fixtures to land – intention of parties – degree of annexation – where uncertainty over who owned disputed items prior to transfer of title – where uncertainty over whether party held rights of ownership or rights of a secured creditor over the disputed items – where certain items partly welded in place and structures built around them which would have to be demolished, in part, to remove them – where certain items are part of an integrated processing and bagging facility – whether removal would destroy the items – whether the cost of removal would exceed the value of the items – whether removal would damage the property – whether terms of a lease assists with determining the intention of parties.
EVIDENCE – admissibility – whether evidence admissible under s79 Evidence Act 1995 (NSW) – whether evidence complies with Uniform Civil Procedure Rules 2005 (NSW) r 31.23, r31.24, r31.27.
EVIDENCE – relationship evidence – whether relevant – operation of exclusionary provisions
CORPORATIONS — Forestry managed investment scheme — Application by liquidators for directions in relation to costs, expenses and remuneration — Directions also sought in relation to proceeds of settlement with receivers in relation to funds derived from bank guarantees — Corporations Act 2001 (Cth) s 511 — Supreme Court (General Civil Procedure Rules) 2005 (Vic), r 54.02.
EVIDENCE – admissibility – cross examination under s43 Evidence Act 1995 (NSW) – objection taken – whether document on which the witness is being cross examined under s43 need be shown to be admissible for cross examination to occur
EVIDENCE – admissibility – whether purported admission by second defendant to witness should be excluded under s135 Evidence Act 1995 (NSW)