Author Archives: admin0

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

Application by Thomas Hudson Wilson pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1792 (16 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1792.html

CRIMINAL LAW – application for inquiry into conviction under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – photo identification evidence – no special facts or special circumstances raised – identification of seized items – no sense of unease or disquiet required raised – application dismissed

In the matter of Beechworth Land Estates Pty Ltd (admins apptd) and Griffith Estates Pty Ltd (admins apptd) [2014] NSWSC 1743 (1 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1743.html

PROCEDURE – subpoenas – application for subpoena to be set aside – where subpoena issued seeking production of documents to impugn credit of witness – whether subpoena issued for legitimate forensic purpose – whether subpoena should be set aside.

Australian Mortgage & Finance Company Pty Ltd as trustee of the Melnikoff Family Trust & Ors v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust & Ors [2014] NSWSC 1744 (12 November 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1744.html

PROCEDURE – subpoenas – application for subpoena to be set aside – where subpoena issued sought production of all documents maintained by third party in respect of company during relevant period – whether subpoena issued for legitimate forensic purpose – whether subpoena should be set aside.

PROCEDURE – notices to produce – application for notices to produce to be set aside – whether notices to produce issued for legitimate forensic purpose – whether documents sought relevant to issues in proceedings – whether notices to produce are inconsistent with SC Eq Practice Note 11 – whether notices to produce should be set aside

Fernando v Commonwealth of Australia [2014] FCAFC 181 (22 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/181.html

DAMAGES – where primary judge awarded nominal and exemplary damages for false imprisonment in immigration detention – award of nominal damages for false imprisonment – whether primary judge erred in awarding nominal damages – whether appellant could and would have been lawfully detained if the tort had not been committed – award of exemplary damages for false imprisonment – whether primary judge erred in awarding exemplary damages – whether primary judge erred in not awarding aggravated damages.

DAMAGES – where primary judge assessed compensatory damages in the event that he was wrong in awarding only nominal damages – assessment of compensatory damages for false imprisonment – whether amount in compensatory damages manifestly inadequate.

PRACTICE AND PROCEDURE – hearing on remitter – where Full Court remitted assessment of damages to primary judge – where respondents sought to raise contention that appellant only entitled to nominal damages at hearing on remitter – where contention not raised before question remitted by Full Court – test to be applied in determining whether party should be permitted to raise new contention on remitter – whether remitter by Full Court rendered res judicata appellant’s entitlement to award of damages so as to make it beyond power for primary judge to consider the contention – whether primary judge erred in exercising discretion to allow respondents to put the contention.

Held: Appeal dismissed. Cross-appeal allowed, order for exemplary damages set aside.

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 (22 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1405.html

CONSUMER LAW – unconscionable conduct – admitted contraventions of Australian Consumer Law – unconscionable conduct in business transactions – dealings with suppliers – threats of commercial consequences if demands not met – demanding payments – refusing to pay or repay money – enforcement and remedies – s 87B undertaking – orders sought by consent – appropriate relief in the circumstances

Danagher v Child Support Registrar [2014] FCA 1408 (22 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1408.html

PRACTICE AND PROCEDURE – appeal from Administrative Appeals Tribunal (Tribunal) – Tribunal found that appellant’s application was not lodged within the prescribed time – Tribunal dismissed application for extension of time – whether or not Tribunal erred in failing to properly construe the meaning and effect of s 29(1) of the Acts Interpretation Act 1901 (Cth) – whether or not Tribunal erred in failing to give reasons – whether or not Tribunal erred in failing to apply the applicable test for an extension of time application – relevant principles relating to applications for extension of time – whether or not Tribunal erred in having regard to irrelevant considerations and failing to have regard to relevant considerations – whether or not there was a denial of procedural fairness – principles relating to appeals against an exercise of discretion

The Queen v Bright (a pseudonym) [2014] VSCA 341 (19 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/341.html

CRIMINAL LAW – Interlocutory appeal – Cultivating a narcotic plant in a quantity not less than the commercial quantity (2 charges) – Severance of charges – Evidence – Coincidence evidence – Whether evidence cross-admissible – Necessity of determining what evidence is admissible for what purpose on each charge – Prejudice – Evidence Act 2008 , ss 98 and 101 – Criminal Procedure Act 2009, ss 193, 295, 296, 297 and 300.

Timothy John Olsen and Louise Sarah Olsen (as executors of the Estate of the late Valerie Marshall Olsen) v Second East Auction Holdings Pty Ltd t/as Sotheby’s Australia [2014] NSWSC 1840 (19 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1840.html

COSTS – indemnity costs – where application for preliminary discovery in relation to unidentified vendor of painting – where application for interlocutory injunction – where leave sought by plaintiffs to discontinue proceedings – where late enquiries revealed no basis for proceeding with application – whether defendant entitled to indemnity costs

Poole v Chubb Insurance Company of Australia Ltd [2014] NSWSC 1832 (19 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1832.html

INSURANCE – indemnity – directors and officers cover – whether insured entitled to indemnity for legal costs incurred at an ICAC hearing – whether insured knew that submission made to Government Department false or misleading – whether insured knew that public inquiry into grant of mining exploration licence likely – whether insured fraudulently in breach of duty of disclosure – whether insured fraudulently misrepresented the position when answering questions in proposal; EVIDENCE – allegation of fraudulent misrepresentation and non-disclosure – onus – whether clear and cogent proof established – whether Jones v Dunkel inferences to be drawn where case of fraud sought to be established in part from documentary and circumstantial evidence

Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393 (19 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1393.html

COMPETITION – misleading or deceptive conduct – admitted contraventions of the Australian Securities and Investments Commission Act 2001 (Cth) – orders sought by consent – whether declarations, injunctions, non-punitive orders and pecuniary penalties sought appropriate – relevant principles

Ha v The Queen [2014] VSCA 335 (18 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/335.html

CRIMINAL LAW – Conviction – Views and inspections – Judge’s summary– Jury inspected crime scene – Questions asked but not recorded – Judge declined to summarise view – Acquiescence by defence counsel – No miscarriage of justice – Observations about importance of summarising what took place– Evidence Act 2008 , ss 53, 54.

CRIMINAL LAW – Appeal – Conviction – Indecent assault – Whether verdicts unsafe and unsatisfactory – Whether jury entitled to accept complainant’s account – Distress – Prompt complaint – DNA evidence – Application refused.

CRIMINAL LAW – Appeal – Sentence – Indecent assault (eight charges) – Total effective sentence 4 years, non-parole period 2 years – Whether manifestly excessive – Prior offending of similar character – Victim was young employee – Breach of trust – Importance of specific deterrence – Application refused.

CRIMINAL LAW – Appeal – Sentence – Serious sexual offender – Judge did not make required declaration – whether omission able to be corrected on appeal – No power to correct – Sentencing Act 1991, s 6F, s104A, Criminal Procedure Act 2009, ss 312, 325.

Streetworx Pty Ltd v Artcraft Urban Group Pty Ltd [2014] FCA 1366 (18 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1366.html

PATENTS – innovation patents – construction of claims – alleged invalidity – non-compliance with s 18(1A) of Patents Act 1990 (Cth) – lack of novelty – lack of innovative step – whether a manner of manufacture – not useful – non-compliance with s 40(3) – lack of clarity – lack of fair basis

PATENTS – infringement – authorisation – meaning of s 13(1) of the Patents Act 1990 (Cth)

Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 (18 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/447.html

WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 – leave to commence proceedings more than three years after injury – respondent accepted appellant demonstrated prima facie case on liability – respondent did not contend actual prejudice but relied on presumptive prejudice – appellant relied on explanation for delay given by solicitor on basis of information and belief – adequacy of explanation for delay – where primary judge rejected application – whether exercise of discretion miscarried

EVIDENCE – s 75 Evidence Act 1995 – whether sufficient for appellant to rely in interlocutory application seeking extension of time to commence proceedings upon evidence from solicitor on information and belief to explain delay

DPP v Kaba [2014] VSC 52 (18 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/52.html

ADMINSTRATIVE LAW – magistrate’s decision that police had no statutory power of random traffic stop – exercise of discretion to exclude evidence of alleged street offences – whether judicially reviewable error – statutory interpretation – human rights – principle of consistency – principle of legality – principle of Charter-consistent interpretation – whether evidence improperly or unlawfully obtained – evidence, police powers and human rights – ‘liberty’, ‘freedom of movement’, ‘privacy’ – Road Safety Act 1986 (Vic) s 59(1), Evidence Act 2008 (Vic) s 138(1),(3), Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38(1).

Campbell v The Members of Lloyd’s Syndicate QBE Casualty 386 & Ors [2014] VSC 655 (18 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/655.html

APPEAL – Evidence – Discovery – Legal professional privilege – Implied waiver – Issue waiver – Whether primary decision maker erred by finding waiver of privilege – Whether pleaded case inconsistent with maintenance of privilege – Confidential documents not laid open to scrutiny – Insufficient reasons – Associated waiver based on conduct – Appeal allowed – Decision varied.

Harmonious Blend Building Corp v Keene & Anor [2014] VSC 649 (18 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/649.html

PRACTICE AND PROCEDURE – Amendment of pleading – Leave sought to amend statement of claim – Plaintiff claims reputational damage from conduct of defendants that was misleading or deceptive – Statements posted on product review website by defendants – Whether conduct in trade or commerce – Whether adequate cause of loss and damage from conduct pleaded.

PRACTICE AND PROCEDURE – Security for costs – Plaintiff a corporate trustee of a unit trust – Enforcement of any right of indemnity against trust assets uncertain – Risk that plaintiff unable to pay costs on demand – Whether persons standing behind plaintiff taking benefit of proceeding should put up security – No risk of stultification – Merits of claim – Delay – Security ordered for future costs only – s 1335(1) Corporations Act 2001 (Cth), R 62.02 Supreme Court (General Civil Procedure) Rules 2005.

Joseph v The Queen [2014] VSCA 343 (18 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/343.html

CRIMINAL LAW – Conviction – Applicant convicted of multiple offences including aggravated burglary whilst co-offender armed with firearm – Whether necessary for trial judge to give anti-propensity warning in relation to weapon of similar description located at co-offender’s home – No exception taken to failure to give warning at trial – No substantial miscarriage of justice – Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313 distinguished.

CRIMINAL LAW – Sentence – Applicant convicted on basis of joint criminal enterprise – Total effective sentence 14 years and 6 months with non-parole period of 11 years – Co-offender, whose involvement was relevantly indistinguishable, sentenced to 11 years with non-parole period of 7 years 6 months – Co-offender younger and fewer prior convictions – Whether justifiable sense of grievance based upon undue disparity between sentences – Undue disparity between respective non-parole periods – Leave to appeal against sentence granted – Applicant’s non-parole period reduced to 9 years 6 months.

Murrell v The Queen [2014] VSCA 334 (18 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/334.html

CRIMINAL LAW – Appeal – Conviction – Aggravated burglary and armed robbery – Possession of firearms and implements said to have been used in crime – Whether evidence of possession of items admissible – Similarity of items to description given by victims – Whether investigators obliged to show items to victims before trial – Whether prosecutor obliged to ask witnesses at trial whether items were similar – Circumstantial evidence rendering it probable that items were used in crime – Whether probative value of evidence outweighed by prejudicial effect – Whether need of direction as to applicant’s participation in incriminating conversation – Whether verdicts unsafe and unsatisfactory – Leave refused.

CRIMINAL LAW – Appeal – Judge’s summing up – Duties of trial judge – Obligation to identify all evidence whether direct or circumstantial relevant to the issues – Jury Directions Act 2013 ss 17, 18

Lancaster v The Queen [2014] VSCA 333 (17 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/333.html

CRIMINAL LAW – Indecent acts with a child under 16 years, sexual penetrations of a child under 16 years, make threat to kill – Expert opinion evidence based upon representations in business records – Whether exclusion of business records productive of a substantial miscarriage of justice – Complainant exhibiting sexualised behaviour – Whether result of exposure to sexual conduct or sexual abuse – Risk of misattribution or transference – Whether judge erred in refusing leave under s 342 of the Criminal Procedure Act 2009 to cross-examine complainant – Appeal allowed.

CRIMINAL LAW – Tendency evidence – Sexual interest in complainant – Gentry (a Pseudonym) v The Queen [2014] VSCA 211, applied – Whether anti-propensity warning required – Grech v The Queen [1997] 2 VR 609, discussed – Grech directions qualified.

CRIMINAL LAW – Ostensible bias – Whether undue intervention in trial – Whether judge’s refusal to recuse himself gave rise to apparent bias – Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, applied.

EVIDENCE – Business records – Files maintained by Department of Human Services and other cognate organisations – Expert opinion evidence based on facts recorded in files sought to be tendered by defence – Whether files admissible into evidence as business records under s 69 of the Evidence Act 2008 – Whether contents of files rightly excluded as hearsay – Procedure to be followed – Each entry in files relied upon in expert reports reviewed to determine whether that entry satisfies requirements of admissibility in s 69(2) – Whether representations by person who had personal knowledge of facts – Second-hand or more remote hearsay – Sections 62 and 69 of the Evidence Act 2008 .

Nominal Defendant v Ismail [2014] NSWCA 432 (17 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/432.html

APPEAL AND NEW TRIAL – order for new trial – findings based on inadmissible evidence – whether unchallenged findings sufficient to determine liability without need for a retrial – inconsistencies between witnesses’ account of accident – whether inconsistencies can be resolved by appellate court – opportunity at trial to assess reliability of accounts on the basis of witnesses’ oral presentation

DAMAGES – assessment – whether allowance for lost earning capacity inadequate – whether allowance for future domestic assistance inadequate – whether trial judge erred in reduction for vicissitudes

EVIDENCE – admissibility – expert opinion evidence – evidence of traffic engineer that inconsistencies between two witnesses were different perceptions of the same event – whether opinion based wholly or substantially on specialised knowledge of the expert – extent of expert’s specialised knowledge – whether expert had any specialised knowledge in psychology – Evidence Act 1995 (NSW), s 79

TORTS – negligence – motor vehicle accident – unidentified vehicle(s) involved in accident – inconsistent accounts as to nature and actions of the unidentified vehicle – trial judge resolved inconsistency by finding there were two vehicles involved – whether evidence sufficient to determine what caused the accident – whether evidence sufficient to find there were two vehicles – whether evidence sufficient to determine the drivers of either of the unidentified vehicles were negligent

Scannell v The Queen [2014] VSCA 330 (16 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/330.html

CRIMINAL LAW – Conviction – Application for leave to appeal – Sex offence allegedly committed in either 1969 or 1970 – Applicant convicted of buggery of young boy – Whether unreliable witness warning required – Whether penetration proven – Whether verdict unsafe and unsatisfactory – Application refused – Evidence Act 2008 , s 165.

CRIMINAL LAW – Sentence – Application for leave to appeal – Old sex offence – Buggery of child – Applicant, aged 88 years, sentenced to two years’ imprisonment with non-parole period of 12 months – Whether sentence manifestly excessive – Whether sentence should have been suspended in whole or in part – Whether fixing non-parole period appropriate – Application granted and appeal allowed – Appellant resentenced to 15 months’ imprisonment, 10 months suspended.

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) [2014] VSC 400 (15 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/400.html

PRACTICE AND PROCEDURE – Overarching obligation not to make a claim or a response to a claim without a proper basis – Whether breached by solicitor for losing party – Liability of solicitor for wasted costs – Requirement that solicitor’s conduct be unreasonable – Briefing of experts – Preparation of witness statements – Investigation of factual basis for a claim – Discretionary considerations in wasted costs jurisdiction – Discretionary considerations under s 29 Civil Procedure Act – Whether solicitor entitled to benefit of a doubt because claims of client legal privilege not waived – Whether relevant privileged communication established – ss 18, 22, 23, 29, 42 Civil Procedure Act 2010 (Vic) – r 63.23 Supreme Court (General Civil Procedure) Rules 2005.

LEGAL PRACTITIONERS – Overarching obligation not to make a claim or a response to a claim without a proper basis – Whether breached by solicitor for losing party – Liability of solicitor for wasted costs – Requirement that solicitor’s conduct be unreasonable – Briefing of experts – Preparation of witness statements – Investigation of factual basis for a claim – Discretionary considerations in wasted costs jurisdiction – Discretionary considerations under s 29 Civil Procedure Act – Whether solicitor entitled to benefit of a doubt because claims of client legal privilege not waived – Whether relevant privileged communication established – ss 18, 22, 23, 29, 42 Civil Procedure Act 2010 (Vic) – r 63.23 Supreme Court (General Civil Procedure) Rules, 2005.

Crowson v Millar [2014] NTSC 61 (15 December 2014)

http://www.austlii.edu.au/au/cases/nt/NTSC/2014/61.html

Ground 1A: the learned magistrate erred in law by misdirecting herself as to a police officer’s power of arrest.

[4] At the hearing in the Court of Summary Jurisdiction, it was submitted that the arrest of the appellant was unlawful because the arresting officer had arrested the appellant to conduct a breath analysis without first requiring him to submit to a breath test. It was submitted that, because the arrest was unlawful, any evidence obtained subsequent to the arrest should have been excluded through the application of s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) (the Uniform Evidence Act ).
[5] It was argued that her Honour relied upon s 29AAC of the Traffic Act in rejecting the submission and ruling that the arrest was lawful. That section provides:

Murphy v State of Victoria (No 3) [2014] VSC 624 (15 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/624.html

PRACTICE AND PROCEDURE Notices to produce Claim for public interest immunity Production and inspection initially objected to – State election – Change of government – Agreement between the parties – Executive government seeks leave to withdraw its claim for public interest immunity – Evidence Act 2008 (Vic), ss 9, 130 Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 29.10, 35.08.

Pasoski v R [2014] NSWCCA 309 (15 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/309.html

CRIMINAL LAW – application for extension of time to give notice of appeal against conviction and application for leave against sentence – where application for extension of time not opposed – where affidavit supporting extension of time unsatisfactory – discretionary power to extend time limit to be exercised having regard to the interests of justice in the case

CRIMINAL LAW – appeal against conviction – “context” evidence – where evidence admitted of poor relationship between applicant and complainant – where evidence not of prior sexual or other assaults against the complainant – whether trial judge erred in failing to give specific direction as to limited use to which evidence could be put – Evidence Act 1995 (NSW), ss 55, 97, 101, 135, 137

CRIMINAL LAW – appeal against conviction – where jury failed to reach unanimous decision on some charges – where trial judge gave majority verdict direction – where failure to examine juror on oath before giving direction – Jury Act 1977 (NSW), s 55F(2)(b)

CRIMINAL LAW – application for leave to appeal against sentence – whether fact that sexual assault occurred in home aggravating factor when applicant and complainant resided together at the relevant time – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)

CRIMINAL LAW – where aggregate sentence to be reassessed – Court to re-exercise discretion to form its own judgment as to appropriate aggregate sentence – Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2014] FCA 1369 (15 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1369.html

CONSUMER LAW – misleading or deceptive conduct – false or misleading statements – electricity consumers offered energy plans featuring percentage discounts off of energy usage charges – consumers on energy plans with discounts had their rates increased differentially – whether later representations that consumers’ discounts continued to apply were false or misleading – whether omission to disclose certain information about rate increases was misleading or deceptive

Amos v R [2014] NSWCCA 302 (12 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/302.html

CRIMINAL LAW – appeal against conviction – murder – joint trial – whether separate trial should have been ordered – application for separate trial not made – whether miscarriage of justice – cross-examination of appellant about character without leave – factual error made by counsel – whether miscarriage of justice – appeal dismissed

Johnson v Box Hill Institute of TAFE [2014] VSC 626 (12 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/626.html

NEGLIGENCE — Workplace injury — Manual handling – Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic) — Breach of common law and statutory duties — Contributory negligence —Psychiatric injury — Bullying and harassment — Alleged failure by employer to prevent bullying/harassment by supervisor during return to work — Scope of employer’s duty to prevent psychiatric injury — Whether employer’s response to risk of psychiatric injury adequate — Application of Koehler v Cerebos (Aust) Ltd Assessment of damages —Application of Malec v Hutton to assessment of damages — Interaction between physical and psychological injuries.

Beckett v R [2014] NSWCCA 305 (12 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/305.html

CRIMINAL LAW – appeal against interlocutory judgment or order – Criminal Appeal Act 1912, s 5F – appeal from dismissal of application for permanent stay

STAY OF PROCEEDINGS – permanent stay of proceedings – abuse of process – whether proceedings commenced or maintained mala fides – compelled questioning under the Taxation Administration Act 1996, s 72 – whether information or evidence obtained pursuant to s 72 can be used for the purposes of a prosecution under a taxation law only

STAY OF PROCEEDINGS – permanent stay of proceedings – abuse of process – whether proceedings commenced or maintained mala fides – compulsory questioning under the Taxation Administration Act 1996, s 72 – whether officers had intention to trick, deceive or mislead

CRIMINAL LAW – offences – perverting the course of justice – Crimes Act 1900, s 319 – meaning of “course of justice” – conduct prior to invocation of the jurisdiction of a court

CRIMINAL LAW – right to silence – privilege against self-incrimination – whether abrogated by Taxation Administration Act 1996, ss 72, 82, 84 and 85 – implied abrogation – permissible use of information obtained in compelled interview

EVIDENCE – admissions – Evidence Act 1995 , s 90

Primaplas Pty Ltd v Chief Executive Officer of Customs [2014] FCA 1358 (12 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1358.html

TAXATION – decision of a delegate of the Chief Executive Officer of Customs to assess customs duty and GST – importation of polyethylene products – where assessment of the gravity of imported polyethylene products required for customs classification – whether assessment of gravity of polyethylene products includes additives

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 (12 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1365.html

INDUSTRIAL LAW – contravention of modern award – participants in a claimed unpaid training program were in reality employees to whom the Fair Work Act 2009 (Cth) and Manufacturing and Associated Industries and Occupations Award 2010 (“the Award”) applied – whether employer contravened terms of the Award – whether employees were casuals within the definition in the Award – degree of knowledge required to establish individuals’ accessorial liability under s 550

INDUSTRIAL LAW – failure to comply with Notice to Produce Records or Documents issued by Fair Work Inspector under s 712 of the Fair Work Act 2009 (Cth) – Notice assumed status of workers as “employees” – Notice unduly wide and uncertain – reasonable excuse for failure to compl

The Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428 (12 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/428.html

LEGAL PRACTITIONERS – removal from roll of local lawyers – application to have lawyer’s name removed from roll – where lawyer convicted of criminal offences including aggravated sexual assault – where lawyer denied that he committed the offences of which he was convicted, both at trial and at sentencing hearing – whether of good fame and character – whether guilty of professional misconduct – whether presently a fit and proper person – Legal Profession Act 2004 (NSW), s 32

Kyriackou v Law Institute of Victoria Limited [2014] VSCA 322 (11 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/322.html

LEGAL PRACTITIONERS – Lay associate – Appeal against VCAT disqualification order – Findings that actions of lay associate if by an Australian legal practitioner may have resulted in charges – Whether lay associate party to acts – Involvement of lay associate –Deficiency in trust account – Statutory misconduct – Professional misconduct – Penalty – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Legal Profession Act 2004 ss 1.2.4(1)–(2), 2.2.5, 2.2.6(1)(b), (2), (3), (4), (5), 2.2.7, 2.2.8, 3.3.21, 4.4.2.

APPEAL – Appeal on question of law – Defective notice of appeal – Whether VCAT’s decision open on the evidence – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 rr 4.15, 4.17.

EVIDENCE – Standard of proof – VCAT not bound by rules of evidence – Relevance of rule in Briginshaw v Briginshaw to VCAT proceedings – Failure of appellant to give evidence – Victorian Civil and Administrative Tribunal Act 1998 s 98 – Evidence Act 2008 s 140.

Clarke (as trustee of the Clarke Family Trust) & Ors v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) & Ors [2014] VSC 516 (11 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/516.html

PRACTICE AND PROCEDURE – GROUP PROCEEDINGS – Approval of Settlement Application under Supreme Court Act 1986 (Vic), s 33V – Relevant factors to be considered – Opt Out Application – Clarke v Great Southern Finance Pty Ltd (in liquidation) [2014] VSC 569 – Publication of reasons

El-Zayet v The Queen [2014] NSWCCA 298 (10 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/298.html

JURISDICTION – Court of Appeal – Supreme Court Act 1970, s 17 – Whether Court of Appeal has jurisdiction to hear appeal from decision under Costs in Criminal Cases Act – Whether interlocutory order is part of proceedings

JURISDICTION – Court of Criminal Appeal – Criminal Appeal Act 1912, s 5F – Whether Court of Criminal Appeal has jurisdiction to hear appeal from decision under Costs in Criminal Cases Act – Whether decision under Costs in Criminal Cases Act is interlocutory

PRIVILEGE – client legal privilege – applicability of Evidence Act 1995 , ss 118 and 119 – where evidence not adduced

PRIVILEGE – client legal privilege – waiver – imputed waiver – whether conduct was plainly inconsistent with maintenance of confidentiality

AGENCY – implied or apparent authority – whether authority to compromise proceedings carried authority to waive privilege

Cahill v Kenna; Cahill v Ferrier [2014] NSWSC 1763 (10 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1763.html

EVIDENCE – expert evidence – whether to reject whole of evidence of expert witness where prepared on a basis inconsistent with the impugned valuation – whether evidence was unfairly prejudicial – where excluding evidence would effectively determine the issue of substance to which that evidence was directed

EVIDENCE – expert evidence – whether to reject evidence of valuations prepared for non-litigation purposes – where valuations were business records – whether r 31.23 only applies to reports prepared by an “expert witness” – whether court should “otherwise order” – whether evidence would be unfairly prejudicial – where signatories did not acknowledge obligations under schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)- where signatories not to be called as witnesses – where signatories not involved in preparation of joint expert reports

EVIDENCE – expert evidence – expert valuation of land – whether one expert’s evidence to be preferred – where one expert witness briefed with substantially more information – where other expert prepared a “blind” valuation – where expert town planning advice not available to original valuer – where expert town planning advice nevertheless relied upon by one expert witness – where expert town planning advice speculative

NEGLIGENCE – duty of care – whether mediator and valuer owed a common law duty of care to plaintiffs – whether plaintiffs were vulnerable – where valuer did not know the purpose for which the valuation was to be used – whether reliance is sufficient to establish vulnerability – whether plaintiffs could have protected their own interests – whether valuation negligent – whether valued at highest and best use of the site – whether negligent in valuing property without expert town planning advice – whether no valuer acting prudently and reasonably could arrive at the value in the valuation report – whether mediator negligent in instructions to valuer – whether mediator owed parties in dispute a duty of care in instructing valuer – whether mediator breached duty of care – whether mediator acting in capacity as mediator or separate contract entered into for mediator to instruct valuer – whether mediator protected from liability as acting in capacity as mediator

MISLEADING AND DECEPTIVE CONDUCT – expert valuation of property – whether value attributed to property was misleading or deceptive – whether direct or indirect reliance on valuation – whether the valuation causative of loss

Kazas-Rogaris v Gaddam [2014] NSWSC 1465 (9 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1465.html

APPEAL – from Local Court – claim for trespass to land – neighbour cuts down trees on Plaintiff’s land – various procedural errors alleged – whether errors of law – one party calls another party to give evidence – whether an abuse of process – magistrate permits discontinuance against one defendant – whether consent of other defendant needed – apprehended bias -failure of appellant to object at trial to matters now complained of – whether waiver by failing to raise matters

HRF Nominees Pty Ltd (In Liq) & Anor v Man Civil Constructions Pty Ltd & Ors (No 2) [2014] VSC 613 (8 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/613.html

PRACTICE AND PROCEDURE – Subpoena to non-party before trial – Production to Prothonotary under special procedure – Requirement that production be sought ‘For evidence’ – Application to set aside subpoena – Whether legitimate forensic purpose – Order 42A.01.

PRACTICE AND PROCEDURE – Privilege against self-incrimination or self-exposure to a penalty – Proceeding against a director of first plaintiff for breach of fiduciary duties and director’s duties under ss 180, 181 and 182 of the Corporations Act 2001 (Cth) – First plaintiff’s business alleged to have been ‘phoenixed’ into the first defendant – Objection to inspection of subpoenaed documents on grounds of the privileges – Evidence Act 2008 (Vic) s 130.

PRACTICE AND PROCEDURE – Subpoena – Client legal privilege.