Author Archives: admin0

B v Director of Public Prosecutions [2014] NSWCA 232 (21 July 2014)

ADMINISTRATIVE LAW – judicial review – appeal from the Local Court to the District Court in respect of a conviction for an offence under the Public Health Act 1991, s 13 dismissed – whether jurisdictional error established

ADMINISTRATIVE LAW – procedural fairness – bias – apprehended bias – whether a bias or apprehended bias – observation not supported by evidence – whether observation matter of judge’s personal opinion – whether observation available as a matter of common experience – whether relief should be granted – matter remitted to the District Court

W v R [2014] NSWCCA 110 (18 July 2014)

CRIMINAL – Subramaniam direction -whether obligation to give direction – Mental Health (Forensic Provisions) Act, s 21

CRIMINAL – Longman warning – judge alone trial – whether obligation to give warning – Evidence Act , s 165B

CRIMINAL – Murray direction – whether direction given was followed – judge alone trial – judgment must adequately expose reasoning process – justice to be seen to be done – mere incantation of warning and directions insufficient

CRIMINAL – conviction – whether verdict unsafe and unsatisfactory – whether open to judge to be satisfied beyond reasonable doubt as to the appellant’s guilt on the evidence – advantage of hearing and seeing evidence at trial

CRIMINAL – sentencing – failure to take into account mental state at time of offences -expressly eschewed by counsel at trial – lack of evidence as to mental state

CRIMINAL – sentencing – whether manifestly excessive

Australian Securities and Investments Commission v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd [2014] FCAFC 85 (18 July 2014)

CORPORATIONS – insolvency – winding up – appeal from decision refusing application to remove liquidators – whether judge erred in statement of test for apprehension of bias – whether apprehension of bias arises in circumstances including liquidators needing to investigate transactions involving a corporate group with whom the liquidators have a referral relationship

CORPORATIONS – insolvency – voluntary administration – appeal from decision refusing application for declarations that administrators contravened s 436DA of the Corporations Act 2001 (Cth)

JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228 (17 July 2014)

ADMINISTRATIVE LAW – judicial review – power to grant costs certificate may be granted after commencement of trial – refusal to consider application for costs certificate on the basis that no trial had commenced – whether failure to exercise jurisdiction – Costs in Criminal Cases Act 1967 (NSW), s 2

CRIMINAL LAW – procedure – application for costs certificate – power to grant costs certificate after commencement of trial – multiple accused arraigned before judge and entered pleas of not guilty – indictment withdrawn before jury empanelled – whether trial had commenced – whether “trial” limited to hearing before a jury – whether trial commences when accused arraigned and enters plea – Costs in Criminal Cases Act 1967 (NSW), s 2

STATUTORY INTERPRETATION – principles – reading provision in context – meaning of “trial” in one Act – reference to another Act regarding the conduct of trials – relationship between Acts for the purposes of interpretation – Criminal Procedure Act 1987 (NSW), s 130 – Costs in Criminal Cases Act 1967 (NSW), s 2

WORDS AND PHRASES – “trial” – ordinary meaning of “trial” – whether meaning of “trial” includes when accused arraigned and enters plea – Costs in Criminal Cases Act 1967 (NSW), s 2

Armstrong World Industries (Australia) Pty Ltd v Parma [2014] FCA 743 (11 July 2014)

CORPORATIONS – application for interlocutory injunction to restrain defendant from using plaintiff’s business records and confidential information for the purpose of prosecuting proceedings under the Fair Work Act 2009 (Cth) and/or the Accident Compensation Act 1985 (Vic) – application for return and destruction of business records in possession of the defendant – suspension and termination of defendant as an employee of the plaintiff – distinction between mandatory orders and prohibitory orders – balance of convenience – injunctive relief granted.

Wilson v Mitchell (No 2) [2014] VSC 332 (8 July 2014)

EVIDENCE – Appeal from Magistrates’ Court decision to release documents – Client legal privilege – Exceptions for documents produced in the furtherance of a fraud – Hearsay – Whether open to conclude that it would result in undue expense or delay to call author of hearsay evidence on bar table assertion that author lived in Malaysia – Admissions – Evidence Act 2008 ss, 64, 75, 118 and 125.

R v Smith (No.3) [2014] NSWSC 771 (3 June 2014)

CRIMINAL LAW – evidence – identification evidence – modes of identification – other visual identification – single photograph – accompanying online news article
CRIMINAL LAW – evidence – identification evidence – admissibility – single photograph – unreliability – displacement effect
CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – Evidence Act 1995; s 137 – prejudicial evidence – probative value – unfairly prejudicial to accused – whether danger of unfair prejudice to the accused outweighs probative value

R v Smith [2014] NSWSC 768 (20 May 2014)

CRIMINAL LAW – procedure – witnesses – cross-examination – CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – Evidence Act 1995; s 103(1) – leave to adduce evidence in cross-examination of criminal convictions; application for – otherwise contrary to Evidence Act 1995; s 102 – credibility rule – five dishonesty offences – reliability and credibility of witness

GM Holden Limited v Commissioner of the Anti-Dumping Commission [2014] FCA 708 (4 July 2014)

ADMINISTRATIVE LAW – Application under Administrative Decisions (Judicial Review) Act 1977 (Cth) and Judiciary Act 1903 (Cth) for review of recommendations and decisions in relation to the issue of dumping and countervailing duty notices against Chinese importers pursuant to Customs Act 1901 (Cth) – construction of phrase “like goods” – whether denials of procedural fairness – construction of the statutory terms “normal value”, “material injury”, “public body” and “adequate remuneration” – construction of “selected” or “residual” exporters – no failure to afford procedural fairness – misconstruction of “investigated” resulted in misunderstanding and misconstruction by CEO and Minister of the terms “selected exporters” and “residual exporters” – reviewable decisions of CEO and Minister affected by jurisdictional error – application allowed in part.

Stanley v Service to Youth Council Incorporated (No 3) [2014] FCA 716 (4 July 2014)

COSTS – applicant had failed in claims under the Sex Discrimination Act 1984 (Cth) and succeeded partially in claims under the Fair Work Act 2009 (Cth) – respondent sought costs of failed discrimination claims – whether s 570 of the Fair Work Act limits the Court’s power with respect to costs of claims under the Sex Discrimination Act – respondent also sought costs under s 570(2)(b) of the Fair Work Act – whether particular applications and other acts were unreasonable

Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215 (3 July 2014)

EVIDENCE – admissibility – opinion evidence – worker exposed to asbestos dust during employment – admissibility of statements of workers alleging exposure to asbestos dust – whether identification of dust as asbestos inadmissible as opinion – whether evidence admissible as perception of a fact – whether evidence admissible as opinion based on specialised knowledge – Evidence Act 1995 (NSW), ss 76(1), 78, 79

TORT – joint tortfeasors – contribution between tortfeasors – worker sued statutory authority in negligence – statutory authority settled without admitting liability – statutory authority sought contribution from worker’s employer – whether statutory authority liable to worker – whether erroneous apportionment of liability – whether failure to consider relative culpability of parties – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2)

TORT – negligence – duty of care – statutory authority regulating stevedoring industry – worker exposed to asbestos dust when employed by a stevedore – worker not a registered waterside worker – whether statutory authority owed a duty of care to persons other than registered waterside workers – functions and powers of the statutory authority- breach of duty – whether evidence established breach – Stevedoring Industry Act 1956 (Cth), ss 7, 8, 17, 18, 28, 29, 33, 39, 41

R v Barker [2014] ACTSC 153 (27 June 2014)

CRIMINAL LAW – PARTICULAR OFFENCES – Property Offences – Cause damage to property – Trial by judge alone – Not guilty because of mental impairment

CRIMINAL LAW – GENERAL MATTERS – General Liability and Capacity – Pleas of not guilty because of mental impairment – Meaning of “cannot reason with a moderate degree of sense and composure” – Meaning of “could not control the conduct” – Criminal Code 2002 (ACT), s 28.

Director of Public Prosecutions (NSW) v Mathews-Hunter [2014] NSWSC 843 (27 June 2014)

APPEAL – appeal from the Local Court – discretion to exclude improperly or illegally obtained evidence – common law restrictions on the power to arrest – whether citizens arrest by a transit officer improper or in contravention of an Australian law – adequacy of magistrate’s reasons – ex tempore reasons

Lydgate (a pseudonym) v The Queen [2014] VSCA 144 (1 July 2014)

CRIMINAL LAW – Sexual offences – Sexual penetration of child ‘under his care, supervision or authority’ – Accused was previously Principal of victim’s school – Sexual acts occurred after accused had resigned as Principal – Whether victim remained under accused’s ‘care, supervision or authority’ – Whether evidence of former Principal–pupil relationship admissible – Whether temporal proximity relevant – Crimes Act 1958 (Vic) ss 48, 49.

Muscat v Haider [2014] ACTSC 152 (27 June 2014)

TRESPASS TO THE PERSON – assault and battery – altercation at restaurant in licensed club – further altercation in club carpark – decision depending upon particular facts – no issue of principle

DAMAGES – personal injury – injury to shoulder resulting from fall to floor with impact to elbow – tears to tendons within shoulder joint – subsequent successful surgery to repair tendons – no issue of principle

Qing Zhao and Xing Jin v The Commissioner of the Australian Federal Police [2014] VSCA 137 (27 June 2014)

PROCEEDS OF CRIME – Practice and procedure – Application for stay of civil forfeiture proceedings under Proceeds of Crime Act 2002 (Cth) (‘POC Act’) pending hearing and determination of related criminal proceedings – Whether stay likely to frustrate intention of POC Act – Whether refusal of stay inimical to applicant’s privilege against self-incrimination – McMahon v Gould (1982) 7 ACLR 202; Reid v Howard [1995] HCA 40; (1995) 184 CLR 1; Yuill v Spedley Securities Ltd (1992) 8 ACSR 272; Baker v Commissioner of Australian Federal Police [2000] FCA 1339; (2000) 104 FCR 359; X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, considered; Re AWB Ltd (No 1) [2008] VSC 473; (2008) 21 VR 252, referred to; Director of Public Prosecutions (Cth) v Jo [2007] QCA 251; (2007) 176 A Crim R 17, followed; Lee v The Queen (2014) 308 ALR 252, applied; Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363, distinguished – Proceeds of Crime Act 2002 (Cth) ss, 25, 26(4), 31, 47, 49, 74 266, 319; Evidence Act 2008 (Vic), s 128; County Court Act 1958 (Vic), s 49.

Rodger v Wojcik [2014] VSC 308 (27 June 2014)

APPEAL FROM MAGISTRATES’ COURT – Charge of exceeding speed limit – Preliminary brief served – Appellant failed to appear at court – Charge heard and determined ex parte by judicial registrar of Magistrates’ Court – Whether appeal from order of judicial registrar competent – Whether evidence in preliminary brief sufficient to prove charge – Evidence insufficient to prove prescribed use of speed detection device, and therefore particular speed alleged, but sufficient to prove charge – Appeal allowed – Appellant to be re-sentenced by Supreme Court on evidence in preliminary brief rather than by Magistrates’ Court on remittal on fresh evidence – Criminal Procedure Act 2009 (Vic), ss 80, 84, 86, 87, 254 & 272 – Magistrates’ Court Act 1989 (Vic), ss 4, 16I & 16K – Magistrates’ Court (Judicial Registrars) Rules 2005 (Vic), rr 4 & 5 – Road Safety Road Rules 2009 (Vic), r 20 – Road Safety Act 1986 (Vic), ss 25, 28 & 79 & Sch. 5 – Road Safety (General) Regulations 2009 (Vic), r 46 & Sch. 7.

Jackson v The Commissioner of the Australian Federal Police [2014] VSCA 136 (27 June 2014)

PROCEEDS OF CRIME – Practice and procedure – Application for stay of civil forfeiture proceedings under Proceeds of Crime Act 2002 (Cth) (‘POC Act’) pending hearing and determination of related criminal proceedings – Whether stay likely to frustrate intention of POC Act – Whether refusal of stay inimical to applicant’s privilege against self-incrimination – McMahon v Gould (1982) 7 ACLR 202; Reid v Howard [1995] HCA 40; (1995) 184 CLR 1; Yuill v Spedley Securities Ltd (1992) 8 ACSR 272; Baker v Commissioner of Australian Federal Police [2000] FCA 1339; (2000) 104 FCR 359; X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, considered; Re AWB Ltd (No 1) [2008] VSC 473; (2008) 21 VR 252, referred to; Director of Public Prosecutions (Cth) v Jo [2007] QCA 251; (2007) 176 A Crim R 17, followed; Lee v The Queen (2014) 308 ALR 252, applied; Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363, distinguished – Proceeds of Crime Act 2002 (Cth) ss, 25, 26(4), 31, 47, 49, 74 266, 319; Evidence Act 2008 (Vic), s 128; County Court Act 1958 (Vic), s 49.

Wong v Sklavos [2014] FCA 679 (26 June 2014)

PRACTICE AND PROCEDURE – appeals – application for leave to appeal from an interlocutory judgment – application by non-party – subpoenas to produce documents issued to non-parties – subpoenas sought tax returns and income information for dermatology practices – application to set aside the subpoenas dismissed – whether “apparent relevance” established – whether primary judge’s decision attended by sufficient doubt – whether substantial injustice

PRACTICE AND PROCEDURE – subpoenas – where information confidential

Lyndon v R [2014] NSWCCA 112 (24 June 2014)

CRIMINAL LAW – appeal – conduct of prosecution – closing address to jury – general comments made about the credibility of children – whether prosecutor improperly suggested having a particular expertise with respect to the testimony of children – whether prosecutor improperly invited the jury to rely on a lie told by accused – prejudicial effect considered – failure by defence to object at trial – whether audio recording of address should be tendered

CRIMINAL LAW – appeal – whether defence counsel incompetent – failure to lead evidence – complainants said accused was kneeling during sexual intercourse – failure to call medical evidence regarding accused’s difficulties kneeling – whether trial miscarried

CRIMINAL LAW – appeal – unreasonableness of verdicts – separate counts of indecent assault against two children – one count of sexual intercourse with a child – accused found guilty of one charge of indecent assault and charge of sexual intercourse with same child – acquittal on other charges – unreasonableness alleged on lack of consistency between verdicts and unreliability of evidence – possibility of concoction

EVIDENCE – tendency – direction to jury – whether judge should have warned against tendency reasoning – use of acts alleged against one child as potential tendency evidence for acts against the other child – prosecution not seeking to rely on tendency – direction that each offence should be considered separately – no objection raised at trial about failure to give warning

EVIDENCE – appeal – ground alleged failure by defence counsel to call medical evidence at trial – test of miscarriage objective – counsel’s reasons for conduct of trial irrelevant – evidence from counsel inadmissible

Ozden and Ozden v Commonwealth Bank of Australia [2014] VSCA 127 (24 June 2014)

LOAN CONTRACT – Mortgage securing appellants’ obligations under three loans – Whether the trial judge erred in admitting a document prepared for the trial as evidence of the amount owing – Whether trial judge erred in authorising the respondent to commence the County Court proceeding with regard to the first loan nunc pro tunc notwithstanding that the notice of default did not comply with the National Credit Code – Whether the respondent’s right to enforcement was limited by a duty to cooperate, act reasonably and act in good faith – Where trial judge considered the totality of evidence in determining the amount owing – Where trial judge correctly exercised discretion in granting leave to commence proceedings nunc pro tunc under s 88(5)(c) of the National Credit Code – Where no breach of duty on the part of the respondent – National Credit Code s 88(5)(c) – Appeal dismissed.

EQUITY – Equitable set-off – Whether the appellant’s cross-claim for damages associated with wrongful retention by the respondent of the title to the marina berth impeaches the respondent’s claim for repayment of the loans – Where the two claims are independent and not sufficiently related – British Anzani (Felixstowe) Limited v International Marina Management (UK) Limited [1980] QB 137 – Eagle Star Nominees Ltd v Merril [1982] VicRp 57; [1982] VR 557 – Appeal dismissed.

DAMAGES – Whether the trial judge erred in assessment of damages for the respondent’s wrongful retention of title to a marina berth – Damages correctly assessed on basis of loss of chance – Where no contract of sale was on foot – Where trial judge did not act on a wrong principle, misapprehend the facts or make an erroneous estimate of damages suffered – CSR Readymix (Australia) Pty Ltd v Payne [1998] VR 505 – Appeal dismissed.

Rajendran v R [2014] NSWCCA 113 (24 June 2014)

CRIMINAL LAW – Appeal – Practice and procedure – Offence of having sexual intercourse without consent – Where matter referred to the Court of Criminal Appeal following an application under the Crimes (Appeal and Review) Act 2001 – Where referral made on single ground of Muldrock error – Where appellant sought to raise additional grounds – Whether appellant required an extension of time and leave of the Court in order to be able to rely upon such grounds – Where unnecessary to determine that question in light of error found in respect of the ground which was the subject of the referral

CRIMINAL LAW – Appeal – Muldrock error – Where sentencing judge engaged in two-stage process of sentencing – Error made out – Necessity to consider the remaining three grounds in determining whether some other sentence was warranted in law and should have been passed

CRIMINAL LAW – Appeal – Where legislation made provision for alternative bases on which jury could be satisfied of the appellant’s knowledge of lack of consent on the part of the victim – Where Crown submitted on sentence that a finding should be made that the appellant knew that the victim was not consenting to sexual intercourse – Where no contrary submission was made by counsel for the appellant on sentence – Whether sentencing judge had an obligation to consider the remaining alternatives

CRIMINAL LAW – Appeal – Where sentencing judge did not specifically refer to low risk of re-offending – Where specific reference to such risk in Pre-sentence report – Where sentencing judge obviously aware of report – Necessity to make allowance for the fact that reasons were delivered ex tempore immediately following sentence proceedings

CRIMINAL LAW – Appeal – Where error found – Where appellant sentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years – Whether some other sentence warranted in law – Nature of offending – Where appellant misrepresented to victim that he was able to assist her career ambitions – Where offending not planned – Where statements made by victim along with her demeanour clearly indicated a lack of consent – Where appellant forced intercourse in any event – No other sentence warranted

Sprayworx Pty Ltd v Homag Pty Ltd [2014] NSWSC 833 (24 June 2014)

PRACTICE AND PROCEDURE – notice to produce – expert’s reports – draft expert reports and communications between the expert and the party retaining them and their solicitors – application to set aside notice to produce

EVIDENCE – client legal privilege – privileged material – whether there is a waiver of client legal privilege for draft expert reports and communications between the expert and the party retaining the expert by the party seeking to rely on the final expert report in the proceedings

Zraika v Walsh [2014] NSWSC 892 (23 June 2014)

EVIDENCE – admissibility – hearsay evidence – exceptions – maker available – where maker no longer has recollection of event but has provided an earlier statement
EVIDENCE – admissibility – judicial discretion to exclude or limit the use of evidence – application to exclude evidence where prejudice outweighs probative value

Stanley v Service to Youth Council Incorporated (No 2) [2014] FCA 644 (20 June 2014)

EVIDENCE – application to adduce tendency evidence – applicant made redundant while on maternity leave – sought to adduce evidence from another employee of the respondent who was made redundant while on maternity leave – whether significant probative value – whether reasonable notice given

Stanley v Service to Youth Council Incorporated [2014] FCA 643 (20 June 2014)

HUMAN RIGHTS – sex discrimination – applicant made redundant while on maternity leave – whether applicant “targeted” for dismissal after announcing her pregnancy – whether termination constituted discrimination on the basis of sex, pregnancy or family responsibilities – whether applicant sexually harassed
INDUSTRIAL LAW – National Employment Standards – whether respondent failed to respond to a request for flexible working arrangements – whether respondent failed to consult employee on parental leave regarding changes affecting status, pay or location of pre-parental leave position – whether return to work guarantee in s 84 of the Fair Work Act 2009 (Cth) contravened

Cripps v Vakras [2014] VSC 279 (20 June 2014)

CONTRACT — Hire of art gallery — Whether implied duty of good faith or cooperation — Whether placing conditions on hirers’ access to gallery constituted breach — Whether collateral contract for sale of catalogue by gallery — Whether display of disclaimer in gallery constituted breach — Late payment of bond and sale proceeds constituted breach — Whether a director whose actions constitute a breach of contract can be liable for the tort of inducing breach of contract — Damages for late payment.

DEFAMATION — Internet — Personal websites — Three articles concerning hire of art gallery — Defamatory imputations — Application of the ‘Polly Peck’ principle — Whether hyperlinked article relevant to assessment of imputations carried by matter complained of.

DEFAMATION — Publication on internet — Judicial notice of use of search engines such as Google and Bing to increase instances of publication.

DEFAMATION — Common law defence of justification — Elements of defence.

DEFAMATION — Common law defence of fair comment — Elements of defence — Whether management of a gallery open to the public is a matter of public interest — Whether opinion must be one that an honest person might reasonably form — Whether defendant must provide particulars of facts on which comment is based — Test of malice.

DEFAMATION — Common law defence of qualified privilege — Elements of defence — Test of common duty or interest — Whether defence available where defamatory material published on generalist website as distinct from specialist website — Whether defence available for defamatory statements concerning management of art gallery open to public — Whether defence available for statements on internet in reply to verbal attack in the presence of attendees at art gallery — Test of malice.

DEFAMATION — Statutory defences of justification and honest opinion — Defamation Act 2005 ss 25, 31.

DEFAMATION — Damages — Common law principles — Application of ‘eggshell skull’ principle — Grapevine effect — Mitigation of damages for prior bad reputation of plaintiff — Mitigation due to provocation — Recovery by companies.

DEFAMATION — Damages — Statutory cap — Effect of statutory cap where there are multiple plaintiffs — Whether statutory cap requires scaling of damages — Mitigation where multiple publication of similar matter — Defamation Act 2005 ss 35, 38.

DEFAMATION — Damages — Aggravated damages — Whether timing of aggravating conduct affects application of statutory damages cap — Conduct of defendant that is improper, unjustified and lacking in bona fides — Further damaging publications by defendant — Unjustified maintenance of defences — Failure to remove defamatory material from internet — Relevance of defendant’s motives — Whether amount awarded for aggravated damages should be separately identified — Defamation Act 2005 ss 35, 36.

In the matter of Metal Storm Ltd (subject to Deed of Company Arrangement) [2014] NSWSC 813 (19 June 2014)

CONTRACT – construction – where trustee and relevant company subject to deed of company arrangement entered into trust deeds in respect of issuing of secured and unsecured notes – where majority secured creditor provided directions to trustee after company entered into voluntary administration – where directions were made in respect of voting for variations to deed of company arrangement and the release of trustee’s charge over assets of company – whether trustee was obliged to comply with relevant directions – whether trustee was justified in not complying with directions under Corporations Act 2001 (Cth) s 283HA – whether trustee is relieved from liability from having proceeded on such a basis under Trustees Act 1925 (NSW) s 85 – whether administration of company is an ‘enforcement’ under relevant clause – whether majority secured creditor is entitled to vote in meeting of creditors.

CORPORATIONS – management and administration – application for appointment of a receiver – whether appointment should be made under Supreme Court Act 1970 (NSW) s 67 or Corporations Act s 283HB – where there exist a deadlock preventing sale of company’s assets – where company’s financial position is deteriorating – whether relevant factors for appointment of receiver have been satisfied – whether current deed administrator should be appointed as receiver – whether appointment of receiver entitles trustee to release relevant charge – whether relevant parties are entitled to exercise an equitable lien over assets of company.

CORPORATIONS – voluntary administration – deed of company arrangement – orders sought for repayment to trustee of monies wrongly paid by deed administrator to majority secured creditor under Corporations Act s 447E – whether deed of company arrangement authorised payment of monies to creditor.

EQUITY – trusts and trustees – powers, duties, rights and liabilities of trustees – where trustee had failed to appoint controller in relevant decision period – where trustee had failed to appoint controller after relevant decision period – where trustee failed to comply with written directions of majority secured creditor – whether such conduct amounted to breach of trust deed or equitable duties – whether defences of waiver and acquiescence, estoppel, delay and laches can be established – whether trustee had acted honestly or reasonably in failing to appoint a controller during the decision period – where trustee had notice of appointment of deed administrators – whether trustee should be relieved from liability under Trustee Act s 85 – whether secured majority creditor suffered damage or loss arising from trustee’s failure to appoint a controller.

R v GJ (No 2) [2014] ACTSC 113 (31 March 2014)

EVIDENCE – Admissibility and Relevancy – father on trial for acts of indecency against daughters – proposal to cross-examine witness on specific contents of family report prepared in Family Court proceedings – no proposal to call author of report – mother’s evidence is that report is inaccurate not unfavourable – mother giving evidence through interpreter – no proposal to tender whole report – whether proposed cross-examination about impact of selected parts of report would cause unfairness – whether contents of report admissible as relevant to mother’s credibility – whether mother’s credibility would be affected by her opinion of impact of family report – probative and prejudicial value of parts of family report selected to be subject of cross-examination because they are said to be unfavourable to mother – directions to limit use of evidence not adequate to address prejudice – cross-examination not permitted about specific contents of family report.

Rich v The Queen [2014] VSCA 126 (20 June 2014)

CRIMINAL LAW – Conviction – Murder – Armed robbery – Application for new trial – Fresh evidence – Whether evidence available at time of trial with reasonable diligence – Whether evidence credible – Whether evidence might have led jury to different verdict – Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, applied; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259; R v Nguyen [1998] 4 VR 394, referred to.

JURY – Empanelment – Whether constitution of jury vitiated by order of judge that members of first, discharged, jury return to panel whence second jury subsequently selected – Whether selection of panel corrupted by informant assisting in handing out of documents – R v Gallagher [1998] 2 VR 671, considered; Juries Act 2000, s 30(4); Juries Regulations 2001, regs 5 and 10.

EVIDENCE – Hearsay – Whether evidence of co-offenders’ out-of-court statements admissible as evidence of acts in furtherance of joint criminal enterprise – Whether evidence ought to have been excluded in exercise of discretion – Tripodi v R [1961] HCA 22; (1961) 104 CLR 1; Ahern v R [1988] HCA 39; (1988) 165 CLR 87, applied; R v Christie [1914] AC 545, referred to.

EVIDENCE – Unreliable witness warnings – Whether judge failed to warn sufficiently of risks of relying on evidence of co-offenders – R v Strawhorn [2008] VSCA 101; (2008) 19 VR 101, applied; DPP (Vic) v Faure [1993] VicRp 87; [1993] 2 VR 497; Jenkins v R [2004] HCA 57; (2004) 79 ALJR 252, referred to.

MURDER – Statutory felony murder – Common purpose – Manslaughter – Whether applicant or co-offender shot deceased – Whether sufficient case of manslaughter to be left to jury – Whether applicant believed his and co-offender’s weapons to be unloaded – Whether applicant foresaw possibility that other weapons could be fired – R v Galas [2007] VSCA 304; (2007) 18 VR 205; Brown v R [2006] NSWCCA 395, applied; R v Vandine [1970] 1 NSWR 252; Johns v R [1980] HCA 3; (1980) 143 CLR 108, considered; Gilbert v R (2000) 201 CLR 414; Gillard v R [2003] HCA 64; (2003) 219 CLR 1; Dupas v R [2010] HCA 20; (2010) 241 CLR, 237, distinguished – Crimes Act 1958 (Vic), s 3A.

CONSTITUTIONAL LAW – Unlawfully obtained evidence – Documentary evidence seized under warrant issued on faith of affidavit not sworn or declared in accordance with ss 100 and 103 of Evidence Act 1958 – Whether evidence admissible – Whether s 5 of Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 inconsistent with Charter right to fair trial – Whether repugnant to Kable principle – Whether requiring court to turn blind eye to police impropriety – Momcilovic v R (2011) 245 CLR 1; Nicholas v R [1998] HCA 9; (1998) 193 CLR 173, applied; Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51; Fardon v AG (Qld) [2004] HCA 46; (2004) 223 CLR 575, distinguished; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19, considered – Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012, s 5; Charter of Human Rights and Responsibilities Act 2006, s 24.

TRIAL – Fair trial – Whether Crown in breach of obligation to call witness in interests of justice – Whether witness so lacking in credibility as to justify prosecutor’s decision not to call him – Diehm & Anor v R [2013] HCA 42; (2013) 303 ALR 42, applied; R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, referred to.

AGGREGATE OF ERRORS – Whether judge’s refusal of multiple applications for discharge of jury productive of miscarriage of justice – R v Boland [1974] VicRp 100; [1974] VR 849; Crofts v R [1996] HCA 22; (1996) 186 CLR 427, applied.

DENIAL OF DUE PROCESS – Whether judge’s refusal to grant applicant access to sections of subpoenaed documents productive of miscarriage of justice – Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 3; Woolworths Ltd v Svajcer [2013] VSCA 270, referred to.

VERDICT – Whether unreasonable – Whether evidence sufficient to sustain finding of guilt beyond reasonable doubt.

SENTENCING – Validity of proceedings – Double punishment – Whether judge made sufficient allowance for criminality common to murder and armed robbery – Whether judge erred in taking into account quashed or spent conviction – Pearce v R [1998] HCA 57; (1998) 194 CLR 610, applied; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, referred to.

Applications for leave to appeal against conviction and sentence dismissed.

Dennis v Chambers Investment Planners Pty Ltd (Administrators Appointed) (No 3) [2014] FCA 648 (20 June 2014)

CORPORATIONS – claim for breach of duties under financial services legislation as it applied at material times – whether respondents had reasonable basis for financial advice given – whether respondents made representations concerning appropriateness of advice or accuracy of finance applications that were misleading or deceptive or likely to mislead or deceive

CONTRACTS – whether respondents breached contractual duty to exercise reasonable care and skill in provision of financial advice – whether respondents owed duty to provide advice “as to the most suitable financial investments”

NEGLIGENCE – whether respondents breached duty to exercise reasonable care and skill in provision of financial advice

EQUITY – whether respondents obtained unauthorised benefit from financial advice relationship – whether respondents breached any contractual, tortious or equitable duty in connection with advice given or involvement in applicant’s purchase of property

EVIDENCE – expert opinion evidence – whether financial planner qualified to give expert evidence concerning duty of care issues and loss – relevance of expert evidence to matters in issue

DAMAGES – whether applicant is entitled to damages – extent to which any claimed loss and damages are attributable to respondents’ conduct – loss of opportunity claim – whether some claimed losses are outside statutory limitation period or otherwise affected by Civil Liability Act 2002 (WA)