Author Archives: admin0

El-Haddad v R [2015] NSWCCA 10 (20 February 2015)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2015/10.html

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

Compass Group Healthcare Hospitality Service Pty Limited v Beaton [2015] ACTSC 18 (18 February 2015)

http://www.austlii.edu.au/au/cases/act/ACTSC/2015/18.html

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.

White v Johnston [2015] NSWCA 18 (18 February 2015)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2015/18.html

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

Chen v The College of Building Ltd [2015] ACTSC 19 (18 February 2015)

http://www.austlii.edu.au/au/cases/act/ACTSC/2015/19.html

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.

R v Gourlay [2015] NSWSC 67 (13 February 2015)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2015/67.html

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

R v Hoang [2015] ACTSC 17 (13 February 2015)

http://www.austlii.edu.au/au/cases/act/ACTSC/2015/17.html

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.

Australian Energy Regulator v Snowy Hydro Limited (No 2) [2015] FCA 58 (12 February 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/58.html

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

Commissioner of the Australian Federal Police v Zhao [2015] HCA 5 (12 February 2015)

http://www.austlii.edu.au/au/cases/cth/HCA/2015/5.html

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).

R v Jensen [2015] ACTSC 11 (9 February 2015)

http://www.austlii.edu.au/au/cases/act/ACTSC/2015/11.html

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.

Buchanan v TAL Life Limited [2015] FCA 42 (6 February 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/42.html

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

Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8 (6 February 2015)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/8.html

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.

In the matter of Waterfront Investments Group Pty Limited (in liquidation) [2015] NSWSC 18 (5 February 2015)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2015/18.html

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.

Ahern v Aon Risk Services Australia Ltd [2015] NSWSC 19 (5 February 2015)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2015/19.html

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.

Agresta v Trustee of the property of F Agresta a Bankrupt [2015] FCA 46 (5 February 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/46.html

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)

De Simone v Legal Services Board & Ors [2015] VSC 9 (30 January 2015)

http://www.austlii.edu.au/au/cases/vic/VSC/2015/9.html

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.

Perpetual Trustees Victoria Ltd v Xiao & Anor [2015] VSC 21 (5 February 2015)

http://www.austlii.edu.au/au/cases/vic/VSC/2015/21.html

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 [2008] NSWCA 131; Perpetual Trustees Victoria Ltd v English & Anor [2010] NSWCA 32; Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328; Westpac v Clark [2009] NZSC 73; [2010] 1 NZLR 82, followed and applied – Solak v Bank of Western Australia Ltd [2009] 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 [1956] HCA 71; (1956) 98 CLR 228, 235-6; Nelson v Nelson (1995) 184 CLR 538, 600-2; Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 247; Damberg v Damberg & Ors [2001] NSWCA 87, [44]-[45], 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 [1968] 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 [1990] HCA 32; (1990) 170 CLR 146, 199-200; Greenwood v Martins Bank Ltd [1932] 1 KB 371 378-9; Rowe v B & R Nominees Ltd [1964] VicRp 59; [1964] VR 477, 482-3, applied – No ratification established on the facts of the case in any event – Leybourne v Permanent Custodians Limited [2010] NSWCA 78, [131]-[134] applied.

Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 (30 January 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/27.html

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

Trusted Cloud Pty Limited v Core Desktop Pty Limited [2015] FCA 33 (3 February 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/33.html

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

R v Himbert [2015] ACTSC 6 (2 February 2015)

http://www.austlii.edu.au/au/cases/act/ACTSC/2015/6.html

CRIMINAL LAW – Particular Offences – drug offences – offence of trafficking in a controlled drug other than cannabis – judge alone trial – offence proved.
JURISDICTION, PRACTICE AND PROCEDURE – Jurisdiction – whether case should be dismissed for want of jurisdiction – whether requisite geographical nexus exists.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – whether standard for admission of voice identification evidence is the same as visual identification evidence under s 135 of the Evidence Act 2011 (ACT) – held voice identification evidence is held to the general provisions of admissibility under the Evidence Act 2011 (ACT) – held that evidence not excluded by s 135 Evidence Act 2011 (ACT)

Australian Competition and Consumer Commission v South East Melbourne Cleaning Pty Ltd (in liq) (formerly known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) [2015] FCA 25 (29 January 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/25.html

TRADE AND COMMERCE – contraventions of Australian Consumer Law – whether conduct unconscionable

TRADE AND COMMERCE – contraventions of Australian Consumer Law – false or misleading representations – false or misleading representations about the profitability, risk or other material aspect of a business – representations as to future matters

TRADE AND COMMERCE – contraventions of Competition and Consumer Act – failure to adhere to applicable industry code – failure to adhere to prescribed disclosure requirements in the Franchising Code

PRACTICE AND PROCEDURE – relief by consent – appropriateness of agreed orders and declarations

Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (29 January 2015)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/5.html

MIGRATION – application for visa – where migration agent fraudulently completed visa application – public interest criterion 4020 – necessity to set aside delegate’s decision

EVIDENCE – where certain facts agreed by the parties and facts supported by evidence – where judge in Court below found that the appellant had failed to prove an undisputed fact

APPEALS – where remedy sought that was not sought in Court below – whether Court has no jurisdiction to entertain suit – utility in granting relief

Hermanus (a pseudonym) v The Queen [2015] VSCA 2 (28 January 2015)

http://www.austlii.edu.au/au/cases/vic/VSCA/2015/2.html

CRIMINAL LAW – Appeal – Interlocutory appeal – Stay – Fair trial – Trial of alleged sexual offences – Delay – Alleged offending occurred nearly 40 years ago – Child complainant – Original complaint to police lost – Whether irremediable prejudice – Whether forensic disadvantage warning sufficient – No error in refusal of stay – Leave to appeal refused.

Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 (27 January 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/15.html

NATIVE TITLE – Whether native title exists in relation to any land or waters of Brisbane and surrounding area – Whether normative system of traditional laws and customs existed in claim area at sovereignty – Extent of society defined by laws then acknowledged and customs then observed – Relevance of lingual divisions – Tribes and claims within broader society – Content of laws and customs with respect to rights and interests in land and waters – Whether laws acknowledged and customs observed without substantial interruption since sovereignty – Whether members of claimant groups were descended from original peoples who possessed relevant rights and interests in relation to land and waters.

Olesen v Early Sunshine Pty Ltd [2015] FCA 12 (23 January 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/12.html

SUPERANNUATION – whether the Court should make declarations and impose civil pecuniary penalties upon the directors of the trustee of a regulated superannuation fund in respect of admitted contraventions of ss 62(1), 84(1) and 109(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) in order to give effect to an agreed resolution of enforcement proceedings brought by the Deputy Commissioner of Taxation (Superannuation) as the relevant regulator

Minister for the Environment v Lucky S Fishing Pty Ltd [2015] FCA 10 (22 January 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/10.html

ENVIRONMENT LAW – consideration of the appropriate penalty to be imposed upon a corporation for an admitted contravention of s 354(1)(f) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) being the carrying out by that corporation’s agent inadvertently of commercial fishing activities in a Commonwealth Marine Reserve in circumstances where the carrying out of any such activities in the relevant Reserve was absolutely prohibited

DPP v Tuite [2014] VSC 662 (19 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/662.html

EVIDENCE – Admissibility – Expert Evidence – DNA evidence – Likelihood ratios – Whether fully-continuous probabilistic statistical methodology for the evaluation of DNA evidence constitutes a new and discrete field of knowledge – Whether admission of DNA evidence would give rise to unfair prejudice to the accused due to its complexity – Evidence Act 2008 (Vic), ss 79(1), s 137.

Comcare v Transpacific Industries Pty Ltd [2014] FCA 1420 (23 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1420.html

INDUSTRIAL LAW – occupational health and safety – inhalation of sodium sulphide – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – pecuniary penalty – liability admitted – seriousness of the breach – foreseeable risk – lack of adequate supervision and training – inadequate risk assessment and management – specific and general deterrence – mitigating factors – contrition – corrective measures taken

McDougall v Johns [2014] ACTSC 351 (18 December 2014)

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/351.html

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appellant’s licence disqualified in Magistrates Court proceedings – leave to appeal out of time granted – appellant claimed to have delivered notice of appeal to court registry – police observed appellant driving during original licence disqualification period – appellant charged with driving while disqualified –whether delivery of notice of appeal would have stayed disqualification – whether reference to “duly instituted” appeal required notice of appeal to have been noted in court records or served on other party – conviction and sentence set aside.
EVIDENCE – General – appellant charged with driving while licence disqualified despite evidence of delivering notice of appeal against Magistrates Court orders effecting disqualification – court registry had no record of receiving notice of appeal – no evidence of court registry systems or searches – whether there was evidence of notice of appeal having been delivered to court registry – absence of challenge to appellant’s evidence that notice of appeal had been delivered – conviction and sentence set aside.

Aynsley v Fitzgerald [2014] ACTSC 357 (4 December 2014)

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/357.html

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appellant found guilty of menacing driving – complainant was a former friend of appellant – finding of guilt depended on Magistrate accepting complainant’s identification evidence – Magistrate assessed complainant as truthful witness – Magistrate accepted complainant’s identification evidence as reliable despite discrepancies between her evidence and that of independent witnesses – reliability of identification evidence not solely dependent on truthfulness of witness – doubts about the reliability of identification evidence were doubts that the Magistrate should also have experienced – verdict set aside and not guilty verdict entered.

CAC v Secretary Department of Family and Community Services [2014] NSWSC 1855 (24 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1855.html

FAMILY AND CHILD WELFARE – Protective (parens patriae) jurisdiction – Welfare of children paramount – Interim care order of Children’s Court challenge – Whether exceptional circumstances warranting intervention – No ground for intervention – Best interests of children favour maintenance of Children’s Court proceedings – Supreme Court proceedings dismissed.

Sze Tu v Lowe [2014] NSWCA 462 (23 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/462.html

EQUITY – Tracing – Onus and standard of proof – Where wrongdoer has mixed stolen moneys with own moneys – Black v Freedman claim attaches immediately to stolen money and its traceable product – Volunteer recipient of stolen funds, or traceable product, in no better position than the wrongdoer – Onus on wrongdoer and/or recipient to prove what contribution was from the wrongdoer’s own moneys – Standard of proof in Briginshaw v Briginshaw and s140 Evidence Act applied
LIMITATION OF ACTIONS – Partnership – Action for an account – Cause of action arises upon dissolution of partnership – Application of s15 Limitation Act directly or by analogy – Laches will not be available as a further defence in circumstances where the claim is subject to a statutory bar
LIMITATION OF ACTIONS – Partnership – Action for an account of profits or to recover trust property — Application of s 15 Limitation Act by analogy to an action for an account of profits in relation to trust assets – Application of s 47 Limitation Act directly or by analogy to an action to recover trust property or profits derived from trust property – When does time begin to run – When did the plaintiff first discover, or could have with reasonable diligence discovered, the facts giving rise to the cause of action and that the cause of action has accrued
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Actions by and against partners – Partnership funds mixed with funds of a partner and used to purchase residential and investment properties – Black v Freedman claim – Institutional constructive trust over the partnership moneys (or their traceable product) – Equitable obligations imposed at the time of theft or, in the case of a volunteer recipient, from the time that they acquire knowledge of the theft – Whether indefeasibility defence under s 42 Real Property Act available for volunteer recipient where acquired registered title prior to being placed on notice of the theft – Fraud exception to s42 not pleaded – Fraud cannot be raised as a new point on appeal – Whether any in personam exception to indefeasibility applicable
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Dissolution – Single adventure or undertaking – Whether a partnership operating two businesses can be considered a single venture – Whether separate termination dates for the businesses precludes the partnership being seen as a “single venture”
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Partnership Property – Application of ss20(1) and 21 Partnership Act – Deeming of property bought with partnership funds to be partnership property “held in trust for the partnership” – Statutory provisions do not create a trust “in the strict sense” nor are they sufficient to make the land “trust property”
TRUSTS – General – Partnership funds mixed with funds of a partner and used to purchase residential and investment properties – Whether the moneys or the properties (as their traceable product) are subject to statutory, express, resulting, or constructive trusts – Whether proprietary and/or accounting relief available

Australian Competition and Consumer Commission v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412 (22 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1412.html

CONSUMER LAW – Whether misleading, deceptive or false representations made on website about the effectiveness of whooping cough vaccine – Means of assessing efficacy and effectiveness of vaccine – Evidence based medicine – Bearing of context on characterisation of representations – Whether representations misleading, deceptive or false when read in context of an epidemic – Whether representation that vaccine was “short-lived” was misleading, deceptive or false given vaccine’s propensity to wane over time.

CONSUMER LAW – Whether misleading, deceptive or false representations made about the effectiveness of homeopathic treatments for the prevention of whooping cough – Whether representations about effectiveness of homeopathic treatments fall to be assessed against a homeopathic epistemological framework or orthodox medical science – Whether representations imply a reasonable basis in medical science.

CONSUMER LAW – Whether disclaimers erase misleading, deceptive and false nature of representations – Where disclaimer did not clearly bring the true position to the public’s attention.

CONSUMER LAW – Whether representations made in trade or commerce – Whether or not carried on for profit –
Where representations said to be contribution to public debate or educational – Whether conduct has requisite commercial or trading character – Where conduct has dual character – Where representations not presented overtly in form of an advertisement.

EVIDENCE – Where expert reports do not comply with s 79 of the Evidence Act 1995 (Cth) – Precondition to admissibility of expert evidence – Failure to provide reasons for opinion and demonstrate connection with specialised knowledge – Whether the manner in which material might be presented in the field of expertise is relevant – Duty of legal representatives to ensure expert reports comply with rules of evidence and court practice directions.

Burge v Burge [2014] NSWSC 1772 (11 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1772.html

WILLS – informal testamentary document – alterations made to draft of existing will – document dated and signed by testator – testator aware of formal requirements for execution of wills – informal document not found with earlier wills – whether testator intended document to form his will – Succession Act 2006 (NSW) s 8(2)

Tukuafu v The Queen [2014] VSCA 345 (22 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/345.html

CRIMINAL LAW – Appeal – Conviction – Incest – Conviction on four charges of incest, acquitted of one charge – Jury unable to reach verdicts on three other charges – Whether verdicts inconsistent with acquittal and jury disagreement on other charges – Whether convictions unsafe and unsatisfactory – Complainant’s memory lapse in cross-examination – Clear account in VARE interview – Jury entitled to act on evidence – Verdicts not unsafe – Reasonable explanation for differential outcomes – R v MacKenzie (1996) 190 CLR 248; Pillay v The Queen [2014] VSCA 249 applied – Appeal dismissed.

CRIMINAL LAW – Trial – Jury directions – Unreliable witnesses – Defence counsel requested warning – Jury directed to assess reliability and weight – No error – Jury Directions Act 2013 ss 11, 14, 15; Evidence Act 2008 s 165.

Landsman v R [2014] NSWCCA 328 (19 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/328.html

CRIMINAL LAW – stated case – Criminal Appeal Act 1912 (NSW), s 5B – whether stated case raises a question of law

CRIMINAL LAW – Appeal in the District Court against conviction in the Local Court by way of rehearing – Fresh evidence – Crimes (Appeal and Review Act) 2001 (NSW), s 18(2) – whether adducing fresh evidence in the “interests of judgment” – post-conviction admission made to Corrective Services Officer during interview to assess applicant’s suitability for intensive correction order – interview conducted pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW) – whether applicant denied common law right of silence

WORDS AND PHRASES – “interests of justice”

Fletcher and anor as liquidators of Octaviar Administration Pty Ltd v Anderson [2014] NSWCA 450 (19 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/450.html

CORPORATIONS – winding up – winding up in insolvency – voidable transactions – time limit for bringing of proceedings by liquidators under Corporations Act 2001 (Cth) s 588FF in respect of voidable transactions – time extended upon liquidators’ ex parte application by a “shelf” order under s 588FF(3)(b) applying to all proceedings against all persons – that “shelf” order later set aside as it relates to proceedings brought against Commissioner of Taxation – finding that directors of the company who would be liable under statutory indemnity to indemnify the Commissioner for loss or damage suffered through voidable transaction order were denied opportunity to be heard on the extension application and that there was a breach of the duty of candour to the court – liquidators challenge the order setting aside the “shelf” order as against the Commissioner – whether the relevant directors were entitled to an opportunity to be heard – nature of the “right”, “interest” or “expectation” giving rise to right to be heard discussed – nature and implications of s 588FGA liability of directors discussed – PROCEDURE – miscellaneous procedural matters – ex parte application – setting aside on application of a person denied an opportunity to be heard