ADMINISTRATIVE LAW – judicial review – appeal to District Court from Local Court conviction – application for leave to adduce fresh evidence pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) – whether District Court erred in declining to make orders in relation to Magistrate’s Bench notes and emails between the applicant and his former solicitor
WILLS AND ESTATES – Charitable trust established by will – Special purpose trust for establishing, equipping and maintaining a hospital to be known by a specific name – Subsequent re-location of hospital established under the will to new hospital buildings – Renaming of hospital buildings – Whether trust moneys able to be applied toward new hospital under the terms of the will – Whether cy pres application necessary.
COSTS — Application by plaintiffs for leave to discontinue Part IV proceedings —Application not opposed by defendants — Defendants seek costs of the proceeding on an indemnity basis — Whether defendants’ costs should be on a standard or indemnity basis — Ugly Tribe Co Pty Ltd v Sikola  VSC 189 — Sidameneo (No 456) Pty Ltd v Ward & Magarey  VSC 559
CALDERBANK OFFER — Rejection by plaintiffs of defendants’ offer to settle proceeding — Whether rejection was unreasonable in the circumstances — Supreme Court (General Civil Procedure) Rules 2005, r 26.08(4)(b) — Hazeldene’s Chicken Farm Pty Ltd (A.C.N 004 381 346) v Victorian Workcover Authority (No. 2)  VSCA 298
EVIDENCE – EXPERT EVIDENCE – MARTIAL ARTS TRAINING – whether the accused proficient in martial arts techniques – whether expert evidence capable of establishing such proficiency – whether the evidence in the Crown case admissible as expert opinion evidence on a state of mind issue on a charge of murder – namely as proof of an intention to cause grievous bodily harm – held that the opinion evidence in question could not be relevant to a fact in issue in the proceedings – the evidence even if admissible should be excluded under s 135 or s 137 Evidence Act 1995
BANKRUPTCY AND INSOLVENCY – application for review of decision to dismiss application to set aside a bankruptcy notice – where primary judge decided not to dismiss creditor’s petition and to make sequestration order – discretion to set aside bankruptcy notice – Bankruptcy Act 1966 (Cth), ss 30(1), 43, 52(2) – appeal dismissed
SUCCESSION, WILLS AND PROBATE — Costs of caveator — Where caveator alleges lack of testamentary capacity, knowledge and approval and undue influence of deceased — Where caveat withdrawn after first directions hearing — Where caveator seeks costs to be paid by the estate of the deceased — Application refused
PROCEDURE – interlocutory issues – whether to grant leave to appeal from order staying proceedings by an insured against his insurer pending provision of security for costs – whether case management principles a relevant consideration in making such an order – whether primary judge failed to consider plaintiff’s prospects of success – whether primary judge failed to give proper consideration to whether proceedings would be stultified by making the order – significance of impecuniosity of a natural person – whether primary judge failed to have regard to burden of proof to be satisfied by defendant alleging the plaintiff’s claim is fraudulent – whether primary judge failed to give adequate reasons – leave to appeal granted – appeal dismissed
INDUSTRIAL LAW – claim by respondent that appellant union contravened ss 50, 340, 345, 349 and 417 of Fair Work Act 2009 (Cth) by promulgating document(s) containing the union’s overtime policy (“the FW Act”) – whether primary judge erroneously characterised manner of alleged contraventions as promulgation of the policy, rather than promulgation of document(s) containing the policy – whether primary judge was required to identify time of contraventions and whether time was so identified – whether Jones v Dunkel inference could have been drawn and whether it was so drawn – whether primary judge erred in finding that the union had organised industrial action – whether primary judge erred in finding that respondent had a workplace right under enterprise agreement – whether an employer may have a workplace right within the meaning of s 361 of the FW Act – whether primary judge erred in finding that reason for union’s industrial action was because of respondent’s workplace right – whether primary judge erred in finding that union had knowingly or recklessly made false or misleading representations
INSURANCE – financial services errors and omissions policy – whether error or omission of the insureds in the performance of professional services, defined relevantly to mean financial planning encompassing advice on approved investment products and life insurance products – whether the products were approved investment products – whether an approved product was required to be on an Approved Products List – whether loss arising out of or in any way connected with any involvement of the insureds in selling as principal for their own account – whether guarantee or warranty given in relation to the performance of any investment – whether variation to the policy – whether consideration given for variation – whether Insurance Contracts Act 1984 (Cth) s 54 operated to prevent insurer from refusing to pay claim
CRIMINAL LAW – conviction appeal – sexual intercourse and attempted sexual intercourse with child under 10 years – appellant convicted of attempt offence but acquitted of sexual intercourse offence – whether jury verdicts were factually inconsistent and unreasonable – whether “unreliable evidence” warning should have been given with respect to the evidence of the complainant – no factual inconsistency between verdicts – no need for warning under s165 of the Evidence Act 1995 – no miscarriage of justice.
CORPORATIONS – basis of obligations to make continuous disclosure – whether first defendant breached obligations of continuous disclosure – whether first defendant obliged to disclose payment of dividends from capital – whether accounts gave a true and fair view – whether first defendant obliged to disclose if accounts did not – whether first defendant insolvent at specified date – whether first defendant obliged to disclose if it was – whether dividend funded from asset revaluation
DAMAGES – whether plaintiffs can recover for overpayment for shares in circumstances – proof of loss – whether plaintiffs can rely on indirect theory of causation
HUMAN RIGHTS – discrimination – whether employee subjected to sexual discrimination or harassment in the workplace
PRACTICE AND PROCEDURE – whether court has jurisdiction to hear claim for victimisation
INDUSTRIAL LAW – where an enterprise agreement provides for payment of accrued but untaken annual leave at the end of employment – where rate of payment of untaken annual leave is referrable to ordinary hours worked rather than amount payable if leave was actually taken – whether s 90(2) of the Fair Work Act 2009 (Cth) requires payment be equivalent to the amount that the employee would have been paid if the employee had taken the annual leave
INDUSTRIAL LAW – where enterprise agreement provides for retrenchment pay if employee retrenched before the age of 60 but not after – whether retrenchment provision in respect of employees aged over 60 is discriminatory on the basis of age and an unlawful term within the meaning of s 194 of the Fair Work Act 2009 (Cth) – whether, if unlawful, entire scheme for retrenchment pay must be severed from the enterprise agreement
MIGRATION – refusal of protection visa – whether risk of serious harm under s 91R of Migration Act 1958 (Cth) – whether apprehended bias –grounds of appeal not made out
COSTS – application for personal costs order against solicitor – whether s 486E of Migration Act 1958 (Cth) contravened – whether appeal had reasonable prospect of success – where one ground had a reasonable prospect of success – where remaining grounds had no reasonable prospect of success – no contravention of s 486E
CRIMINAL LAW – Evidence – Coincidence evidence – Sexual offences committed against multiple complainants – Severance – Whether evidence of one complainant cross-admissible with evidence of other complainants – Judge’s charge on coincidence evidence – Velkoski v The Queen  VSCA 121, applied – Evidence Act 2008 , ss 98 and 101.
TRADE PRACTICES – abuse of market power – definition of market – substantial degree of power – taking advantage of power – purpose
TRADE PRACTICES – exclusive dealing – on condition – purpose
PATENTS – exclusive rights of patentee – right to exploit – right to exclude others – an implied licence to sell – whether a condition falling within trade practices exception to s 47
EVIDENCE – the rule in Browne v Dunn – a rule of procedural fairness – privilege against self-incrimination
PRIVILEGE – privilege against self-incrimination – where cross defendant objects to filing evidence or giving discovery upon basis of the privilege – whether real or appreciable risk of prosecution
EVIDENCE – admissibility – judicial discretion to exclude evidence – probative value
EVIDENCE – admissibility – privilege – client legal privilege over document created by witness – whether privilege has been waived
EVIDENCE – admissibility – privilege – client legal privilege over document created by witness – whether privilege has been waived
EVIDENCE – admissibility – hearsay evidence – exceptions – civil proceedings where maker is available
CRIMINAL LAW – evidence – where police unsuccessful in serving a subpoena on a witness – where Crown sought to tender passages of the statement of the witness in her absence – no prior notice given to accused until the day on which the application was made – where counsel for the accused had instructions to cross-examine the witness as to credit – where opportunity to cross-examine would be lost – evidence excluded
CRIMINAL LAW – evidence – context evidence – where Crown alleged manslaughter by gross criminal negligence – where Crown sought to rely upon other evidence of neglect by the accused towards the deceased – whether evidence admissible
Last Updated: 24 February 2015
This judgment has been temporarily removed.
CRIMINAL LAW – importation of commercial and marketable quantities of border controlled drugs and precursors – indictment containing five charges – whether evidence relevant to counts 1, 2, 3 and 5 properly admitted as tendency or coincidence evidence with respect to count 4 – whether evidence significantly probative – relevance of dissimilarities – whether open to trial judge to deal with coincidence rule and tendency rule together
CRIMINAL LAW – importation of commercial and marketable quantities of border controlled drugs – meaning of “import” in s 300.2 of the Criminal Code 1995 (Cth) – “import” defined to include “deal with the substance in connection with its importation” – commercial quantity of heroin imported in container and held by freight forwarders in Sydney – whether inquiries made by appellant as to fees payable in order to release goods sufficient to amount to dealing – whether inquiries together with assertions of ownership sufficient to amount to dealing
PRACTICE AND PROCEDURE – application to strike out notice of address for service – application refused
APPEAL – Appeals From and Control Over Magistrates –appeal dismissed.
WORKERS’ COMPENSATION – Workers’ Compensation Generally – mental injury arising out of or in the course of employment – whether the respondent is a person of normal fortitude – whether employer’s conduct was reasonable.
ASSAULT AND BATTERY – dental treatment – whether patient’s consent invalid because sole purpose was non-therapeutic – whether onus lay on patient or practitioner – whether absence of consent of the gist of assault and battery
DAMAGES – exemplary damages – whether Civil Liability Act 2002 (NSW), s 3B applied – requirement to determine compensatory damages before considering whether to order exemplary damages – whether other decisions comparable
EVIDENCE – tendency evidence – whether evidence of other malpractice by practitioner wrongly admitted – whether evidence able to be used for purpose different from that for which it was tendered – whether evidence of malpractice significantly probative of performing work with no therapeutic purpose
MEDICAL PRACTITIONERS – consent to treatment – whether consent to dental treatment invalid because of wholly non-therapeutic purpose – onus of proof
APPEAL AND NEW TRIAL – Appeal de novo from orders of registrar setting aside statutory demand and ordering creditor to pay debtor’s costs – admission of further evidence – registrar’s decisions confirmed.
CORPORATIONS – Practice and Procedure – service on corporation by post – presumption of service in ordinary course of post not available in respect of service by post where item not properly addressed to corporation’s registered office – presumption of delivery to specified address by fourth business day not available having regard to evidence of later delivery – corporation’s mail processed through Australia Post box number but delivered to corporation’s office by Australia Post – corporation had no access to “box” – significance of use of post office box – item posted on 13 December – significance of Christmas/New Year “close down” – risks of taking time-critical legal steps around Christmas/New Year period.
CRIMINAL LAW – particular offences – offences against the person – murder – trial by judge alone – consideration of the affirmative defence of mental illness – accused did physical act – accused suffering from disease of the mind that led to a defect of reason – accused did not appreciate the moral wrongfulness of his act – verdict not guilty on the ground of mental illness
CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – application to exclude evidence obtained against accused during cross-border controlled operation conducted under NSW legislation – accused not named in authority to conduct the cross-border controlled operation – whether evidence obtained improperly or in contravention of Australian law or as a consequence of impropriety or contravention of Australian law – effect on authority of failure to vary authority to add suspect identified during operation – whether accused could have been named in authority in respect of alleged offences entirely committed in ACT – authority not invalidated – scope of authority determined by reference to suspects named – whether authority authorised activities in which evidence was obtained against accused – authority did authorise those activities – no impropriety or contravention of Australian law found – application to exclude evidence dismissed.
ELECTRICITY – contraventions of cl 4.9.8(a) of National Electricity Rules – scheduled generator not complying with dispatch instructions of Australian Energy Market Operator – claims for pecuniary penalties – proceedings brought by Australian Energy Regulator under s 44AAG of Competition and Consumer Act 2010 (Cth) – National Electricity (Victoria) Law – National Electricity (NSW) Law
Jurisdiction, practice and procedure – Adjournment, stay of proceedings or order restraining proceedings – Matters connected with conduct of defence – Where respondent charged with offence – Where appellant applied for forfeiture order under s 49 of the Proceeds of Crime Act 2002 (Cth) (“the Act”) against property that is proceeds of crime – Whether forfeiture proceedings should be stayed until criminal proceedings are finalised – Whether refusal to stay forfeiture proceedings creates risk of prejudice in criminal proceedings – Whether respondent must state specific matters of prejudice before stay will be granted.
Statutes – Interpretation – Forfeiture of proceeds of crime – Stay of forfeiture proceedings – Where appellant applied for forfeiture order under s 49 of the Act – Where issues in forfeiture proceedings and criminal proceedings are substantially identical – Whether forfeiture proceedings should ordinarily continue.
Words and phrases – “prejudice”.
Proceeds of Crime Act 2002 (Cth), ss 39A, 49, 80, 266A, 319.
FRENCH CJ, HAYNE, KIEFEL, BELL AND KEANE JJ.
The decision refusing the stay
13. In his Honour’s view, the respondents were not prevented by the existence of parallel criminal proceedings from giving evidence that the Restrained Property was not acquired using the proceeds of crime and they were not compelled to give evidence in the forfeiture proceedings or the exclusion proceedings. If they chose to do so, and the second respondent gave evidence or was cross-examined and asked questions which might incriminate him, he could avail himself of the procedure provided for in s 128 of the Evidence Act 2008 (Vic).
COSTS – costs of a non-party – s 98 Civil Procedure Act 2005 – whether there were exceptional circumstances – whether it was necessary for a non-party to be separately represented
EVIDENCE – admissibility – vicarious admissions –whether statements of police officer the subject of police tort claim are admissible against the State of NSW
CORPORATIONS – Winding up – Insolvency – Proceeds of contract of reinsurance – Application for orders under Corporations Act 2001 (Cth) s 562A(4) – Whether “just and equitable” to make orders sought.
EVIDENCE – admissibility – judicial discretion to exclude or limit the use of evidence – whether only part of the prosecution brief of evidence, the subject of this tort action has probative value
EVIDENCE – admissibility – cross-examination of a previous representation of other persons – whether opinion of witness regarding previous representation is probative
CRIMINAL LAW – Particular Offences – offences against the person – crimes and offences against children – act of indecency on a person under the age of 10 years – act of indecency on a person under the age of 16 years
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Crown is entitled to lead evidence that the accused had a tendency to have a particular state of mind – whether the Crown is entitled to lead evidence that the accused had a tendency to act in particular ways.
PRACTICE AND PROCEDURE – whether leave should be granted to the plaintiff to file amended pleadings – whether defects in the proposed statement of claim that make it inappropriate to grant leave – turns on own facts
PRACTICE AND PROCEDURE – Rule 30.01 Federal Court Rules 2011 – application for particular questions arising in proceeding to be heard separately from any other questions – guiding principles – application of principles to particular circumstances – where hearing of separate questions has capacity to bring proceedings to finality
EVIDENCE – ss 118 and 119 Evidence Act 1995 (Cth) – whether redacted portions of discovered documents privileged under either provision – whether adducing evidence of redacted portions would result in disclosure of confidential communications or contents of confidential documents brought into existence for either of the respective dominant purposes referred to in these provisions
ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal (AAT) banning applicant from providing financial services – whether AAT applied the wrong test in determining sanction – application of Briginshaw standard – whether AAT gave proper weight to evidence or made findings of fact not open on the evidence – whether AAT took into account irrelevant considerations – whether procedural unfairness – whether apprehended bias.
CORPORATIONS – breaches of Corporations Act 2001 (Cth) in applicant’s provision of advice to clients and non-compliance with financial services laws.
PRACTICE AND PROCEDURE – objection to competency – whether AAT erred by denying adjournment requests – duty on ASIC to act as model litigant.
CONTRACT – construction – where second plaintiff, first defendant and third defendant entered into agreements for sale of relevant properties – whether special conditions to agreements stipulated manner of payment of purchase price to be by payment of monetary currency and delivery of commodity – whether failure to deliver commodity gave rise to claim in debt.
CONTRACT – breach – whether first and third defendants breached obligation to make payment of purchase price – defences – whether collateral contract existed between second plaintiff and first defendant – whether obligation of first defendant under relevant agreement to make payment of specified purchase price was a sham – whether plaintiff has established quantum of loss or damage caused by failure to deliver commodity – whether equitable lien established for unpaid portion of purchase price.
CORPORATIONS – winding up – winding up in insolvency – uncommercial transactions – where company was insolvent at relevant times – whether agreements for sale of property were uncommercial transactions – whether a reasonable person in company’s circumstances would not have entered into relevant transactions.
CORPORATIONS – management and administration – duties and liabilities of officers of corporation – directors’ duties – claim for breach of fiduciary duties and breach of directors’ duties at general law – where sixth defendant was director or controlling mind of entities that entered into relevant agreements – diversion of monies – conflict of interest – whether conduct of sixth defendant amounted to breach of fiduciary duties.
CORPORATIONS – management and administration – duties and liabilities of officers of corporation – claim for breach of statutory duties under Corporations Act 2001 (Cth) ss 180, 181 and 182 – duty of care and diligence – duty to act in good faith in the company’s best interests – duty to not improperly use position to gain advantage or cause detriment to company – whether conduct of sixth defendant amounted to breach of statutory duties – accessorial liability – whether established that first to fifth defendants were knowingly concerned and involved in alleged contraventions of general law or statutory duties.
4. Mr McInerney SC for the plaintiffs objected to the cross-examination about this topic, and to the tender of any evidence concerning it, on a number of bases. First, the evidence was late, did not comply with the evidence directions and therefore caused him prejudice. Secondly, the evidence was an attempt by the defendants to establish a tendency on the part of Mr Ahern in circumstances where there had been no attempt to comply with the provisions of s 97 of the Evidence Act 1995 . Thirdly, the evidence was either irrelevant having regard to the fact that it post-dated the fire or fourthly was unfairly prejudicial because its probative value was substantially outweighed by its prejudicial effect.
BANKRUPTCY AND INSOLVENCY – application to review trustee’s decisions to reject proofs of debt – whether alleged debts were provable – whether parties’ conduct evinced intention to create legal relations – whether consideration given for guarantee of loan – trustee’s decisions confirmed – Bankruptcy Act 1966 (Cth), s 104(1), (2)
PRACTICE AND PROCEDURE – Application to examine a non-party before trial under r 40.12 and r 41.01 of the Supreme Court (General Civil Procedure) Rules 2005 – Examination for the purposes of discovery of documents – Application not valid use of the Rules.
SUBPOENA – Objections by defendant and Legal Services Commissioner to plaintiffs inspecting documents produced under subpoena issued pursuant to Order 42A by former inspector authorised under the Legal Practice Act 1996 and Legal Profession Act 2004 – Objections based on public interest immunity, client legal privilege and relevance – Objections upheld.
PUBLIC INTEREST IMMUNITY – Principles applicable to documents relating to or arising out of investigations by an inspector/investigator appointed under the Legal Practice Act 1996 and Legal Profession Act 2004 – Whether a class claim or a contents clam – Contents claim only – Balancing the public interest in the confidentiality of the documents against the relevance of the documents to the issues in the proceeding – Whether the documents contain ‘material evidence’ – Documents insufficiently relevant to warrant disclosure to plaintiffs.
REAL PROPERTY – Torrens system land – Whether registered mortgage secures amount owing under forged loan agreement – Held: on proper construction of the mortgage the amount owing under the forged loan agreement was not secured – Provident Capital Ltd v Printy  NSWCA 131; Perpetual Trustees Victoria Ltd v English & Anor  NSWCA 32; Perpetual Trustees Victoria Ltd v Cox  NSWCA 328; Westpac v Clark  NZSC 73;  1 NZLR 82, followed and applied – Solak v Bank of Western Australia Ltd  VSC 82 not followed.
TRUSTS – Transfer of land by husband to wife for love and affection – Resulting trust – Whether presumption of advancement rebutted – Held: presumption rebutted on the facts – Wirth v Wirth  HCA 71; (1956) 98 CLR 228, 235-6; Nelson v Nelson (1995) 184 CLR 538, 600-2; Calverley v Green  HCA 81; (1984) 155 CLR 242, 247; Damberg v Damberg & Ors  NSWCA 87, -, applied.
AGENCY – Whether husband authorised to sign wife’s name on mortgage and related loan agreements – Agency not established on the facts – Garnac Grain Co Inc v HMF Faure & Fairclough Ltd  AC 1130, 1137 applied.
RATIFICATION – Whether forged loan agreements capable of ratification by person whose signature has been forged – Held: forged loan agreements were nullities and incapable of ratification – Northside Developments Pty Ltd v Registrar-General  HCA 32; (1990) 170 CLR 146, 199-200; Greenwood v Martins Bank Ltd  1 KB 371 378-9; Rowe v B & R Nominees Ltd  VicRp 59;  VR 477, 482-3, applied – No ratification established on the facts of the case in any event – Leybourne v Permanent Custodians Limited  NSWCA 78, - applied.
INDUSTRIAL LAW – Adverse action – whether respondent took adverse action against applicant employee – whether the adverse action was taken for the reason of the applicant’s political opinion – whether respondent breached employment contract with applicant – whether respondent’s conduct contravened Australian Consumer Law – respondent found to have taken adverse action for the prohibited reason of the applicant’s political opinion
CRIMINAL LAW – Defences – Not guilty by reason of mental impairment
PRACTICE AND PROCEDURE – application for summary dismissal under s 31A of Federal Court of Australia Act 1976 (Cth) – whether applicants have no reasonable prospect of successfully prosecuting the proceeding
EVIDENCE – application under s 192A of Evidence Act 1995 (Cth) before close of pleadings for advance ruling on whether evidence should be excluded at trial because it was allegedly obtained illegally or improperly within meaning of s 138 of Evidence Act 1995 (Cth)
PRACTICE AND PROCEDURE – application to set aside orders – whether orders should be set aside for material non-disclosure