Faris & Bagaric Uniform Evidence

http://www.austlii.edu.au/au/cases/cth/FCA/2010/922.html

PRACTICE AND PROCEDURE – discovery – public interest immunity

Evidence Act 1995 (Cth) s 130

http://www.austlii.edu.au/au/cases/cth/FCA/2010/917.html

TRADE PRACTICES – misleading or deceptive conduct

EVIDENCE – onus of proof – Jones v Dunkel – Browne v Dunn
68. … Mr Adam Reinisch’s attempt to explain why he had never seen a document by reason of it being sent to the “wrong fax number”, only for it to emerge that the number to which the document was sent was a number previously used by Mr Adam Reinisch – and possibly used in 2004 – is not the hallmark of a witness telling “the truth, the whole truth and nothing but the truth”.
69. That, of course, is part of the oath now set forth in the Schedule to the Evidence Act 1995 (Cth) and part of the oath in fact taken by Mr Adam Reinisch. The oath itself has been traced back to at least 1649: Mellinkoff, The Language of the Law (1963) at 172. An oath to “tell the truth”, it has also been pointed out long ago, was not always regarded as an oath to tell “the whole truth”: Silving, ‘The Oath’ (1959) 68 Yale L J 1329 at 1346 and 1527 to 1577. It should constantly be recalled that the requirement that an oath or affirmation be administered, as contemplated by s 44(1) of the Federal Court of Australia Act 1976 (Cth) and by s 21 of the Evidence Act 1995 (Cth), is not merely a procedural step which is but a precursor to a witness thereafter answering such questions as may be asked in such a manner as the witness may see fit. An oath or an affirmation is (in part) a solemn reminder to any witness of the serious obligation imposed to give a truthful account. The evidence given by a witness is central to the administration of justice.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/194.html

MEDICAL TRIBUNAL – disciplinary proceedings – whether s 37 of the Medical Practice Act 1992 in its pre-2008 form, permits the Tribunal to find that examples of unsatisfactory conduct cumulatively justify a finding of “professional misconduct” – whether a finding of impairment necessarily leads the Tribunal to the decision that a medical practitioner is not competent to practice medicine. PROCEDURAL FAIRNESS – whether the Tribunal denied an unrepresented medical practitioner procedural fairness by limiting cross-examination of witnesses and rejecting questions as irrelevant – whether the Tribunal denied procedural fairness by limiting the evidence that the medical practitioner could adduce where the medical practitioner failed to comply with directions – whether Tribunal gave medical practitioner adequate warning that his conduct during the hearing could be taken into account in making findings. NON-PUBLICATION ORDER – whether Court of Appeal should modify the non-publication order made by the Tribunal.

Evidence Act 1995, ss 11, 26

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/179.html

CRIMINAL LAW – Appeal against conviction – Miscarriage of justice – Appellant prohibited from putting his case – Rule in Browne v Dunn – Remedies available in criminal trial where rule breached – Availability of exclusion of evidence in New South Wales where rule breached – Generally a matter of last resort in a criminal trial – need to relate remedy to circumstances of particular case

http://www.austlii.edu.au/au/cases/cth/FCA/2010/865.html

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – review of finding of insider trading – whether Tribunal applied the correct test in determining whether information was ‘inside information’ for the purposes of s 1043A of the Corporations Act 2001 (Cth)

21. The Tribunal then considered the evidence, noting in the course of so doing, at [23], that the Evidence Act 1995 (Cth) does not apply to proceedings before the Tribunal, so that s 128 of that Act, which is designed to protect the evidence given in proceedings to which the Act applies from being used against the person giving the evidence in subsequent criminal proceedings where the person would otherwise be able to invoke the privilege against self-incrimination, does not apply to evidence given in the Tribunal. The Tribunal accepted, however, that in not giving evidence before the Tribunal the applicant had exercised his undoubted right not to say or do anything that might incriminate himself and that no inference adverse to his interests could be drawn as a result of him availing himself of the privilege against self-incrimination.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/174.html
CRIMINAL LAW
leave to appeal against conviction
absence of satisfactory explanation for delay and lack of merit in the appeal
CRIMINAL LAW
leave to appeal against sentence
application lacking in merit

http://www.austlii.edu.au/au/cases/cth/FCA/2010/862.html

INCOME TAX – Exemption – Not-for-profit corporation established to facilitate the provision of face-to-face banking services in a rural town lacking such a service – Whether established for “community service purposes” –s 50-10 Income Tax Assessment Act 1997 (Cth)

EVIDENCE – Judicial notice – Non-local geographical location – Published map

Evidence Act 1995 (Cth) s 144

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/807.html

JUDGMENTS – foreign judgments – registration of – contested application – requirements to be satisfied – requirement to show that if judgment registered the registration would not be liable to be set aside under s 7 Foreign Judgments Act 1991 (Cth) – whether those matters need to be determined on application for registration – appropriate order to be sought.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/173.html

CRIMINAL LAW – offences against the person – sexual offences – aggravated indecent assault – victim under age of 16 years
CRIMINAL LAW – appeal against conviction
EVIDENCE – whether trial judge erred by failing adequately to distinguish between tendency and context evidence – whether trial judge permitted tendency evidence led before the Jury otherwise than in accordance with s 97 and s 101 of the Evidence Act 1995 (NSW) – evidence admitted to establish context and not for tendency purposes – appropriate directions given

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/848.html

DAMAGES – assessment of damages for personal injury – past and future domestic assistance – gratuitous attendant care services – loss of capacity to provide domestic assistance and care

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/883.html

PROCEDURE – discovery and interrogatories – discovery and inspection of documents – orders for further discovery refused – leave to rely on further lay and expert evidence – leave granted in part – leave under section 168 of Evidence Act 1995 refused – orders under section 169 of Evidence Act 1995 refused

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/801.html

CRIMINAL LAW – trial – murder – objection to evidence of a lawfully intercepted telephone conversation between accused whilst in custody and his father – whether capable of constituting an “admission” – whether evidence should be excluded

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/874.html

COSTS – Offer of compromise – Calderbank letter – Not unreasonable to refuse offer – Offer of compromise under UCPR, r 20.26 – Offer not accepted – Whether any basis for Court to “otherwise order” – Whether exceptional circumstances established by offeree – Order for indemnity costs assessed from date of the offer of compromise under UCPR, r 20.26.

Garling J
Calderbank Offer – Legal Principles

11 The making of favourable costs orders where a Calderbank offer has been made is underpinned by public policy considerations, including providing an incentive for the disputants to end their litigation as soon as possible, and discouraging wasteful and unreasonable behaviour by litigants: Leichhardt Municipal Council v Green [2004] NSWCA 341 per Santow JA at [14]; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322; Commonwealth of Australia v Gretton [2008] NSWCA 117 at [41]- [42].

12 The public policy in encouraging settlement also finds statutory encouragement: see Civil Procedure Act 2005, s 56. Section 131 of the Evidence Act 1995 provides a statutory basis for the receipt of Calderbank offers into evidence.

13 The making of a Calderbank offer does not automatically result in a favourable costs order, even if the judgment is more favourable to the party making the offer than the terms of the offer. Rather, it is a question of whether the offeree’s failure to accept the offer, in all of the circumstances, warrants departure from the ordinary rule as to costs, and the mere fact that the offeree ends up worse off, than if the offer had been accepted, does not of itself warrant departure from the ordinary rule: SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37] per Giles JA; Jones v Bradley (No. 2) [2003] NSWCA 258 at [8].

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/877.html

PROCEDURE – costs – whether unsuccessful plaintiff should be ordered to pay costs on the indemnity basis – whether costs order already made and beyond court’s power to vary – held not – defendants seek to rely on offer of compromise – plaintiff says disclosure of offer is breach of contract warranting exclusion under Evidence Act , s 135(a) – held no breach of contract – plaintiff says such disclosure precluded by Civil Procedure Act, s 30(4) – held not as section applies only to court ordered mediation – plaintiff says non-acceptance of offer not unreasonable where defendants’ evidence not served when offer made – but plaintiff actively rejected offer and made counter-offer despite absence of defendants’ evidence – non-acceptance of defendants’ offer by plaintiff unreasonable – indemnity costs ordered

Evidence Act 1995, ss 131, 135(a)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/869.html

CORPORATIONS – winding up – application for winding up order based on alleged insolvency – plaintiff seeks to rely on presumption of insolvency arising from non-compliance with statutory demand – defendant seeks declaration that demand not served – PROCEDURE – service – service by post – need for proof of various acts culminating in depositing of addressed and stamped or franked envelope into the post – only evidence is that identified document “was forwarded by mail to the defendant” – hearsay – no evidence of acts of deponent – no evidence of existence, addressing or stamping of any envelope – no evidence of deposit into post

Evidence Act 1995 , s 59

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/877.html

PROCEDURE – costs – whether unsuccessful plaintiff should be ordered to pay costs on the indemnity basis – whether costs order already made and beyond court’s power to vary – held not – defendants seek to rely on offer of compromise – plaintiff says disclosure of offer is breach of contract warranting exclusion under Evidence Act, s 135(a) – held no breach of contract – plaintiff says such disclosure precluded by Civil Procedure Act, s 30(4) – held not as section applies only to court ordered mediation – plaintiff says non-acceptance of offer not unreasonable where defendants’ evidence not served when offer made – but plaintiff actively rejected offer and made counter-offer despite absence of defendants’ evidence – non-acceptance of defendants’ offer by plaintiff unreasonable – indemnity costs ordered

Evidence Act 1995 , ss 131, 135(a)

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/874.html

COSTS – Offer of compromise – Calderbank letter – Not unreasonable to refuse offer – Offer of compromise under UCPR, r 20.26 – Offer not accepted – Whether any basis for Court to “otherwise order” – Whether exceptional circumstances established by offeree – Order for indemnity costs assessed from date of the offer of compromise under UCPR, r 20.26.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/184.html

APPEAL – civil – credibility – whether failure to pay proper regard to respondent’s unreliability as witness
APPEAL – civil – evidence – whether evidence supports conclusion – whether failure to assess or address evidence – sufficiency of evidence
APPEAL – civil – retrial – severance of issues – whether damages should be subject of new trial
EVIDENCE – proof – standard of proof – civil – application of Briginshaw principle
EVIDENCE – witnesses – unexplained failure to call witnesses – inferences
TORTS – intentional – malicious prosecution – whether charges brought and prosecuted in absence of reasonable and probable cause and with actual malice – whether informant aware that knife was planted by police officer
TORTS – intentional – trespass to person – assault – whether police officer struck respondent on face with baton

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/165.html

CRIMINAL LAW – appeal – necessity for warnings by a trial judge under s 165 of the Evidence Act 1995 – requirement for application to trial judge – unnecessary to warn as to bias of a child – allegation of unreasonable verdict – analysis of evidence – role of fresh evidence – appeal dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/164.html

CRIMINAL LAW
appeal against conviction
armed robbery
detain for advantage
steal motor vehicle
fresh evidence
refusal to discharge jury
s.165 Evidence Act 1995
whether “a dangerous to convict” direction should have been given
directions concerning delay
whether verdicts unreasonable and not supported by evidence
appeal dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/847.html

PRACTICE AND PROCEDURE – forum non conveniens – subject matter of proceedings already subject of proceedings in England where judgment was obtained in plaintiff’s favour – whether proceedings in New South Wales would cause hardship – New South Wales Supreme Court appropriate venue – no hardship to defendant.

Ball J

8 Fourthly, the defendant says that he will be prejudiced because he will not be entitled to rely in the English proceedings on any certificate granted to him under either s 87 of the Civil Procedure Act 2005 or s 128 of the Evidence Act 1995. Those sections permit, or in the case of s 128 in some cases compel, a party to civil proceedings to answer questions that may tend to incriminate him or her. However, if the person does answer the questions, the provisions require the court to give a certificate preventing the answers from being used in criminal proceedings
…
16 Mr Laughton’s point about the privilege against self-incrimination is not easy to follow. The Civil Procedure Act does not prevent the defendant from relying on the privilege. Nor does the Evidence Act, since, under that Act, the court may not require a defendant to give evidence unless it is satisfied that the evidence does not tend to prove that he has committed an offence or is liable to a civil penalty under the law of another country: see s 128(4). It is true that, in circumstances where the defendant may face the possibility of criminal proceedings overseas, the value of a certificate to him may be limited and, for that reason, he may choose not to give the evidence to which it would apply. In that sense, it could be said that the defendant is at a disadvantage. However, that disadvantage arises from the possibility that criminal proceedings will be brought against him in England. It does not arise from the fact that civil proceedings are brought against him here.