http://www.austlii.edu.au/au/cases/cth/FCA/2012/242.html

CONTRACTS – employment contract – implied term of mutual trust and confidence and/or good faith discussed – incorporation of employer’s policies and procedures discussed – whether employment of employee via a subsidiary company was a sham

DEFAMATION – qualified privilege – reply to attack

HUMAN RIGHTS – discrimination – allegations of sexual harassment – jurisdiction of the Federal Court – some alleged conduct occurred in New Zealand – whether Sex Discrimination Act 1984 (Cth) has extraterritorial effect – vicarious liability – workplace participant

TORTS – injurious falsehood – whether damage to trade or business of an employee

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/44.html

CRIMINAL LAW – Applications for leave to appeal from interlocutory decision pursuant to s 295 Criminal Procedure Act 2009 – Whether trial judge erred in exercising his discretion under s 138 of the Evidence Act 2008 – Whether motor vehicle seized illegally – Whether order for search of motor vehicle beyond power and in contravention of Australian law – Drugs, Poisons and Controlled Substances Act 1981, ss 81 and 82 – Whether error in finding that failure by police officer properly to swear affidavit in support of the search warrant was not a deliberate or reckless act – Whether error in finding that alteration of Result of Search document by police officer was of little consequence – Whether error in admitting evidence – Effect of Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 – Applications for leave dismissed.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/211.html

CRIMINAL LAW – murder trial – application for warnings under s.165 Evidence Act 1995 – three persons in house: the Accused, the deceased and the principal Crown witness – deceased stabbed – defence case that principal Crown witness must have been the killer – s.165(1)(d) unreliability direction sought – further s.165 unreliability direction sought based upon intoxication of principal Crown witness – whether matters which might adversely affect reliability of evidence of Crown witness would readily be understood and appreciated by jury – whether jury might be misled in making assessment or evaluation of evidence without s.165 warning – s.165 warnings declined

http://www.austlii.edu.au/au/cases/vic/VSC/2012/55.html

RESTRICTIVE COVENANTS ― Section 84(1) Property Law Act 1958 – Application to modify single dwelling covenant ― Applicable legal principles ― Construction of “obsolescence” and “substantial injury” ― Estoppel by reason of conduct of previous registered proprietor of the defendant’s land.

http://www.austlii.edu.au/au/cases/vic/VSC/2012/91.html

ENVIRONMENTAL LAW – Proposed logging at three coupes near Toolangi – Application for permanent injunction restraining logging – Whether proposed coupes contain Leadbeater’s Possum zone 1A habitat – Flora and Fauna Guarantee Act Action Statement – Central Highlands Forest Management Plan – Construction of relevant management prescription – Hollow-bearing tree means mature or senescing tree containing hollows – No evidence that proposed coupes contain sufficient density of hollow-bearing trees to constitute zone 1A – Obligation to comply with precautionary principle – No threat of serious or irreversible damage – Proposed adaptive management measures not proportionate to threat – Application dismissed – Sections 3, 4, and 22 Forests Act 1958; ss 4, 5, 6, 7, 10, and 31 Conservation Forests and Lands Act 1987; ss 1, 4, 5, 6, 13, 14, 15, 16, 17, 18, 19, 37, 38, 39, 40, 43, 44, and 45 Sustainable Forests (Timber) 2004; ss 1, 3, 4, 7, 8, 11, 17, 19, and 20 Flora and Fauna Guarantee Act 1988 – Environment East Gippsland Inc v VicForests [2010] VSC 335 – Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/219.html

TORTS – negligence – medical negligence – whether general practitioner made a wrong diagnosis – a lesion on the foot diagnosed as a plantar wart – whether there was a misdiagnosis of the lesion – whether it was an acral lentiginous melanoma (ALM) – whether there was failure to consider ALM as a differential diagnosis – whether there was failure to refer the plaintiff for specialist investigation – whether there was a failure to perform a punch biopsy of the lesion – plaintiff suffered a plantar wart and also had an ALM – duty of care owed – negligence established – whether there would have been a different outcome if ALM had been earlier treated – causation not established – section 50 of the Civil Liability Act – judgment for defendant – costs

EVIDENCE – admissibility and relevance – opinion evidence – medical evidence – objections to expert evidence

EVIDENCE – witnesses – credit – credibility of evidence – reliability of evidence

http://www.austlii.edu.au/au/cases/vic/VSC/2012/87.html

PROFESSIONAL LIABILITY – solicitors – property proceeding in Family Court of Australia – settled at door of court on terms overly generous to wife – action by husband for damages for lost opportunity – valuation, taxation and other evidence not prepared in time for hearing – instructions taken and acted on from client lacking mental capacity – whether solicitors should have known – whether breach of duty of care – whether breach of fiduciary duty – whether coercion – pre-hearing representations – whether in trade or commerce – whether misleading and deceptive conduct – advocates’ immunity – whether applicable – assessment of damages for lost opportunity – notional trial in Family Court – whether evidence of subsequent facts admissible – apportionment of damages between concurrent wrongdoers – rule in Jones v Dunkel – husband’s senior counsel not called by solicitor – whether senior counsel in camp of solicitor – affidavit of husband’s deceased father – whether admissible hearsay evidence – Fair Trading Act 1985 (Vic), s 9(1) – Wrongs Act 1958 (Vic), pt IVAA – Evidence Act 2005 (Vic), s 135.

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/27.html

MIGRATION – application for review required by s 347(1)(a) of the Migration Act 1958 (Cth) to be made in the approved form – two approved forms, one for persons in immigration detention and one for persons not in immigration detention – whether application valid if wrong approved form used – whether nomination of person made in wrong approved form as applicant’s authorised recipient of documents under s 379G authorised Migration Review Tribunal to give that person invitation to applicant to appear at hearing under s 360A(2)(a) – whether earlier nomination of authorised recipient on wrong approved form superseded by later inconsistent nomination on correct approved from – whether Tribunal committed jurisdictional error

http://www.austlii.edu.au/au/cases/cth/FCA/2012/196.html

TAXATION – notices to furnish information issued by Deputy Commissioner pursuant to s 264(1)(a) of Income Tax Assessment Act 1936 (Cth) – notices directed to Australian bank – information sought in notices provided to bank from subsidiary in Vanuatu – information stored electronically in Australia – whether notices invalid – whether notices require bank to breach common law and statutory confidentiality obligations under Vanuatu law – whether s 264 authorises Commissioner to issue notices that infringe foreign sovereignty – whether notices were issued for a proper purpose – whether notices are uncertain – whether bank “not capable of complying” with notices within meaning of s 8C(1B) of Taxation Administration Act 1953 (Cth) – application dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/36.html

EVIDENCE – appeal – application to adduce evidence to supplement transcript – discussion of Vakauta v Kelly (1988) 13 NSWLR 502 – whether court should receive evidence pursuant to Supreme Court Act 1970 (NSW), s 75A(7) – whether court should exercise discretion to reject admissible evidence tendered for the first time on appeal

PROCEDURE – civil – refusal to disqualify for apprehended bias – whether appellate court or court exercising supervisory jurisdiction should consider judgment of the court below on recusal application – whether exchanges between counsel and judge demonstrate that a fair-minded lay observer might hold the opinion that the judge might not determine issues fairly

WORDS AND PHRASES – “apprehension of bias”

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/34.html

TORTS – negligence – duty of care – roads – failure to install guide posts – public or other authorities – special statutory power under Civil Liability Act 2002, s 43A
TORTS – negligence – duty of care – roads – failure to install guide posts – identification of relevant risk – Civil Liability Act 2002, s 5B
TORTS – negligence – duty of care – roads – failure to install guide posts – public or other authorities – whether Council exercising special statutory power under Roads Act 1993, s 87
CIVIL PROCEDURE – pleadings – whether statutory defence pleaded under Civil Liability Act 2002 – Uniform Civil Procedure Rules 2005, r 14.7 – material facts – necessity to plead
CIVIL PROCEDURE – pleadings – failure to plead – ambush – fairness to opposing party – prejudice – Civil Procedure Act 2005, ss 14, 56, 59 and 60
CIVIL PROCEDURE – defence – matters that must be pleaded – Uniform Civil Procedure Rules 2005, r 14.14

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/18.html

MIGRATION – detention under Migration Act – initial finding that appellant falsely imprisoned for one day of 1203 day period – tortious conduct on part of officials – whether damages incorrectly assessed – whether appellant entitled to damages for entire period of detention – whether misfeasance in public office occurred – whether appellant entitled to general and exemplary damages for misfeasance in public office – competing inferences open as to conduct in public office – appeal allowed in part – proceeding to be remitted to trial judge for assessment of damages for false imprisonment – finding of misfeasance in public office overturned on appeal

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/193.html

The Plaintiffs seek an order that the Defendant, the appointed executor to whom Probate was granted, provide a proper account in respect of his administration of the estate of the deceased, and that he pay to them all monies found to be due to them upon the taking of such an account, together with interest thereon – The Defendant asserts that the deceased’s estate has been fully distributed in accordance with the terms of the deceased’s Will to the beneficiaries named in the Will

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/201.html

EQUITY – Succession – Family Provision – deceased makes provision for intellectually disabled daughter – Whether provision made is adequate for the daughter’s proper maintenance, education and advancement in life.
PROBATE AND ADMINISTRATION – whether estate has been properly administered – delay in selling estate property – whether orders should be made for the sale of the single asset in the estate, a residential property.

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/16.html

COPYRIGHT – literary work – originality – whether copyright subsists in HTML source code of material safety data sheets (MSDSs) rendered by computer program – whether work of joint authorship – where HTML source code is generated by computer program and includes data entered manually – whether copyright subsists in only part of the relevant copyright work

COPYRIGHT – literary work – originality – whether copyright subsists in MSDSs created by a process of transcription of third party MSDSs

COPYRIGHT – infringement – implied licence arising as a matter of law – scope of licence – where manufacturers, importers and suppliers of hazardous substances required to comply with legislative regimes for the provision of MSDSs – where first respondent reproduced appellant’s MSDSs in anticipation of receipt of customer requests for their provision

COPYRIGHT – infringement – whether appellant discharged onus to prove absence of licence in circumstances where primary judge found many MSDSs were the subject of a customer request for their provision and many were not – whether respondents carried an evidentiary burden to show acts falling within the scope of the implied licence found

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/24.html

CRIMINAL LAW – APPEAL AGAINST CONVICTION – money laundering – (s 400.3(1) Criminal Code (Cth)) – dishonestly obtain gain from Commonwealth (s 135.1(1) Criminal Code (Cth)) – money laundering involving creation and misuse of offshore structure – dishonest obtaining offence involving deception of accountants and lodgement of false tax return – failure to declare capital gain – share swap designed to hide capital gain – transfer of legal ownership of shares with retention of the beneficial ownership – whether there was evidence to support the first charge – whether trial judge correctly refused verdict by direction – whether the shares involved in the transaction were intended by the offender to facilitate the commission of an offence – meaning of “used to facilitate” – whether facts capable of constituting money laundering offence – whether trial judge failed to give essential directions – whether a miscarriage of justice occurred – whether verdicts were unreasonable – whether capital gains event occurred in relevant financial year or later.

CRIMINAL LAW – SENTENCE APPEAL – not guilty plea – grossly understated capital gain in false tax return – separate criminality in each of two related offences – loss to revenue of at least $1.9 million in capital gains tax – assessment of overlapping criminality – whether sentencing judge erred in assessment of criminality – whether totality principles correctly applied – whether sentences imposed reflected double punishment – substantial aspects of criminality in each offence – need for substantial sentences for each offence – importance of general and special deterrence in revenue avoidance offences – whether sentences were appropriately accumulated – whether good character overlooked – whether facilitation of the course of justice overlooked – whether sentences were manifestly excessive.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/158.html

CORPORATIONS – Opes Prime Schemes of Arrangement – cl 7.2 of the Schemes – Established Securities Claim – “their Deposited Securities” – “otherwise associated with”

EVIDENCE – whether Panopus’ Scheme Claim inadmissible on grounds of hearsay – whether portfolio statements, correspondence and an Assignment deed admissible as business records – failure to call director of Panopus to give evidence – Jones v Dunkel inference – onus of proving an exception applies

http://www.austlii.edu.au/au/cases/cth/HCA/2012/2.html

Constitutional law (Cth) – Operation and effect of Constitution – Interpretation – Implied freedom of political communication about government or political matters – System of representative and responsible government – Validity of ss 132(1)(a) and 200(2) of Corrective Services Act 2006 (Q) – Whether statute complies with limitations on legislative power of State – Whether the impugned law effectively burdens freedom of communicating about government and political matters – Whether provisions reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance of representative and responsible government.

Administrative law – Relationship between Judicial Review Act 1991 (Q) and determination of issues of legislative validity – Whether validity of particular conditions imposed pursuant to s 200(2) of Corrective Services Act 2006 (Q) question of constitutional law or of compliance by repository of power with statutory limits.

Words and phrases – “constitutionally prescribed system of representative and responsible government”, “effectively burdens freedom of communication”, “impermissibly burdening”, “implied freedoms”, “political communication”.

per Heydon J
44 The Revised Explanatory Statement for the Evidence Bill 2011 (ACT) repeatedly refers to s 16 of the Human Rights Act. It does so in discussing the terms of cl 17(2) of the Evidence Bill 2011 (now s 17(2) of the Evidence Act 2011 (ACT)): “A defendant is not competent to give evidence as a witness for the prosecution.” The Revised Explanatory Statement says[38]:

“The clause engages the right to freedom of expression under section 16 of the Human Rights Act 2004. However, clause 17 of the Bill constitutes a lawful restriction on the freedom of expression under section 16 of the Human Rights Act 2004 as it acts as an important essential safeguard for the defendant to have a fair trial (section 21 Human Rights Act).”

These are strange remarks about a provision which prevents the prosecution from calling defendants as witnesses in the prosecution case, while leaving defendants free to give evidence in the defence case if they wish to do so. The provision does not prevent the defendant from exercising a right to freedom of expression, if that is what testifying in a desperate struggle to preserve one’s liberty involves. The calling by one party of the opposing party as a witness is not well characterised as an exercise in freedom of expression by the first party.

45 Similarly, the Revised Explanatory Statement, on the theory that the s 16(2) right to freedom of expression includes “the right to say nothing or the right not to say certain things”[39], examines cl 12 of the Evidence Bill 2011 (now s 12 of the Evidence Act 2011) in the light of s 16 of the Human Rights Act. Subject to other provisions, s 12 renders all competent witnesses compellable. This is said to be a “restriction on the right to freedom of expression” because “a witness may be compelled to answer certain questions or express certain information to the court.”[40] However, the provision is also said to be a “lawful restriction … as it is essential to ensuring the peaceful and effective functioning of society.”[41] The word “essential” is hard to square with the fact that societies have functioned peacefully and effectively with compellability regimes different from that involved in s 12.
46 The Revised Explanatory Statement engages in similar analysis for cl 41 (now s 41 of the Evidence Act 2011)[42]. Section 41 requires various kinds of improper questions in cross-examination to be disallowed. This is said to restrict the cross-examiner’s freedom of expression. On that basis any exclusionary rule of evidence would limit the freedom of expression of the party asking a question or tendering a document or thing which the rule requires to be rejected. Yet the Revised Explanatory Statement does not analyse every exclusionary rule in that light.
47 The Revised Explanatory Statement raises various questions in relation to the first Lange limb. Does s 17(2) of the Evidence Act 2011 fall within it? Do any of its equivalents in the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW), the Evidence Act 2001 (Tas) and the Evidence Act 2008 (Vic) do so? Indeed, does any provision in those enactments which restricts the capacity of a party to tender evidence fall within the first Lange limb? Are common law rules of evidence which restrict the capacity of a party to tender evidence to be modified after applying the second Lange limb because they fall within the first Lange limb?
…
55 On Callinan J’s approach, the Evidence Acts, for example, offer no “realistic threat” to the relevant freedom and do not burden it within the meaning of the first Lange limb. And on Callinan J’s approach neither of the legislative provisions challenged in this case creates a “burden” within the meaning of the first Lange limb.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/134.html

CORPORATIONS – Winding up – statutory demand – Court lacks jurisdiction to set aside statutory demand where application to set aside and supporting affidavit not filed and served within time – Whether offsetting claim established.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/20.html

Criminal law – sexual assault – inconsistency of verdicts – rule in Browne v Dunn

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/19.html

Evidence – invalid search warrant

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/21.html

CRIMINAL LAW – appeal – conviction – unreasonable verdict – unsupported by the evidence – circumstantial evidence – circumstantial evidence to be considered as a whole -reasonable doubt on independent assessment of the evidence – jury advantage in hearing evidence insufficient to resolve reasonable doubt.
CRIMINAL LAW – appeal – conviction – identification evidence – probative value – “displacement effect” – appropriate directions – whether evidence of similar appearance is identification evidence. CRIMINAL LAW – appeal – conviction – expert evidence – identification and proof of assumptions by admissible evidence – qualification of expert – weight to be given to expert evidence.
CRIMINAL LAW – appeal – conviction – expert evidence – breach of Expert Witness Code of Conduct – whether breach of Expert Witness Code of Conduct goes to admissibility or weight – discretionary exclusion of evidence of expert who breaches Code of Conduct.
CRIMINAL LAW – appeal – conviction – evidence – admissibility – relevance.
CRIMINAL LAW – appeal – conviction – whether a conclusion of fact is an indispensable intermediate fact – need for a Shepherd direction – Shepherd direction not required.
CRIMINAL LAW – appeal – conviction – whether trial miscarried because of prejudice occasioned by the Crown prosecutor – prosecutor’s duty of fairness – whether prosecutor breached trial judge’s ruling – whether prosecutor invited jury to invert the onus of proof – whether prosecutor impermissibly gave personal opinions – whether prosecutor misrepresented evidence – whether prosecutor failed to adhere to case theory.
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – need for evidence of enterprise and participation by the accused.
CRIMINAL LAW – evidence – lack of evidence to support motive – dangers of inviting speculation as to motive – whether unfair prejudice occasioned.
CRIMINAL LAW – new and fresh evidence – evidence not disclosed by prosecution at time of trial.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/137.html

EVIDENCE – admissibility – expert opinion – whether expert report shows conclusions reached were based on specialised knowledge – whether any reasoning process disclosed – whether in any event report should be rejected on discretionary grounds.

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/38.html

CRIMINAL LAW – Director’s appeal – Sentence reduced because of undertaking to co-operate and give evidence – Respondent largely failed to honour undertaking – No reasonable excuse – Appeal allowed – Sentence below quashed – Respondent resentenced to a term of imprisonment of 4 years and 9 months, with a non-parole period of 2 years and 9 months – Crimes Act 1914 (Cth) s 21E

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/9.html

EVIDENCE – admissibility – coincidence evidence – s 98 Evidence Act 1995 (Cth) – significant probative value – whether regard must be had to alternative inferences inconsistent with guilt – whether R v Zhang was correctly decided – distinction between judge and jury functions in a criminal trial.

CRIMINAL LAW – appeal – pre-trial order – insider trading – s 1043A(1) Corporations Act 2001 (Cth)

Evidence Act 1995 (NSW) – ss 55, 56, 97, 98, 101, 135, 137

http://www.austlii.edu.au/au/cases/tas/TASSC/2012/3.html

Procedure – Costs – Departing from the general rule – Conduct of parties – Other conduct – Whether magistrate entitled to take into account an informal offer of settlement made in a mediation conference.

Evidence Act 2001 (Tas), s131.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/12.html

CRIMINAL LAW – appeal – conviction – admissions – s 90 Evidence Ac 1995 – whether the trial judge should have admitted admissions made by an accused to a community support person.

CRIMINAL LAW – appeal – conviction – misdirection in presentation of defence case to jury – whether self-defence should have been put to the jury.

CRIMINAL LAW – appeal – sentence – wrong statutory ratio of parole to non-parole period – s 44 Crimes (Sentencing Procedure) Act 1999.

CRIMINAL LAW – appeal – sentence – whether the sentence was manifestly excessive – whether trial judge considered all mitigating factors – s 21A(3) Crimes (Sentencing Procedure) Act 1999.

Evidence Act 1995 (NSW), ss 90, 118, 126, 127