Author Archives: admin0

Holroyd City Council v Zaiter [2014] NSWCA 109 (8 April 2014)

TORTS – negligence – 9 year old child injured when rode bicycle into an unfenced concrete drainage channel – drainage channel and surrounding grassed slope under care and control of appellant – presence of drainage channel not obvious from adjacent cycleway – appellant aware of risk of injury to children from unfenced drainage channel – expert report of engineer admitted without objection – whether trial judge bound to accept expert opinion – extent to which precise sequence of events leading to accident needed to be foreseen – application of sections 5B and 5C of Civil Liability Act 2002 – whether child engaged in a “dangerous recreational activity” at time of injury – s5L Civil Liability Act 2002 – application of s42 Civil Liability Act 2002 – whether resources of appellant sufficient to construct fence – ambiguity of evidence – defence not made out.

Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 5) [2014] FCA 340 (8 April 2014)

CONSUMER LAW – franchising – appointment of Area Managers in relation to supply of claimed weight loss product – whether misleading or deceptive conduct – whether representations made that are false or that are false or misleading in a material particular – whether invitations made to engage in a business activity requiring the performance of work and/or the investment of moneys – whether personal respondents liable as principals or accessories – whether any relevant obligation of disclosure arises independently of the requirements of the Franchising Code.

Australian Competition and Consumer Commission v Startel Communication Co Pty Ltd [2014] FCA 352 (8 April 2014)

CONSUMER LAW – contraventions of Part 3-1 and Part 3-2 of the Australian Consumer Law – Joint Submissions and Statement of Agreed Facts and Admissions provided – respondent telecommunications company entered unsolicited consumer agreements to supply mobile services and bundled mobile services – customers mislead as to cooling off period – statutory termination rights ostensibly modified – agreement documents deficient – agreement documents not provided in time required – goods and services supplied and payment accepted in cooling off period – agreed remedies and punitive penalties proposed – terms of orders made within discretion of Court – agreed position of parties relevant – whether orders sought appropriate in circumstances

Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 (7 April 2014)

ENVIRONMENT AND PLANNING – major infrastructure development – Environmental Planning and Assessment Act 1979, Pt 3A

ENVIRONMENT AND PLANNING – major infrastructure development – public interest – Ecologically Sustainable Development

ADMINISTRATIVE LAW – appeal on a question of law – error of law – procedural fairness

ADMINISTRATIVE LAW – appeal on a question of law – mandatory considerations – ‘focal point’ or ‘fundamental element’

ADMINISTRATIVE LAW – appeal on a question of law – irrelevant considerations

ADMINISTRATIVE LAW – orders in the nature of prerogative relief – Supreme Court Act 1970, s 69

Ralph Lauren 57 Pty Limited v Byron Shire Council [2014] NSWCA 107 (7 April 2014)

COSTS – discontinued proceedings – whether primary judge erred in ordering parties to pay own costs – whether discontinuing plaintiff achieved practical success – whether achieving some practical success sufficient to justify costs in discontinuing plaintiff’s favour – whether defendant had acted unreasonably – primary judge did not err – leave to appeal refused

PROCEDURE – leave to reopen – whether primary judge erred in refusing to grant leave to reopen – whether sufficient justification given to reopen – no sufficient justification given – primary judge’s decision did not involve an error of law – primary judge’s decision did not cause substantial injustice – leave to appeal refused

PROCEDURE – Court of Appeal – review of decision of single judge of appeal – decision that party had not waived privilege by serving written submissions – applicants not demonstrated relevant error in single appeal judge’s decision – application to discharge decision dismissed

EVIDENCE – appeal against costs decision – application to receive evidence on the appeal – whether special grounds justifying receiving the documents into evidence – applicants failed to establish that evidence would have led to a different costs decision by primary judge – notice of motion dismissed

Southage Pty Ltd v Vescovi & Ors [2014] VSC 141 (4 April 2014)

RESTITUTION − Money paid under mistake of fact − Unjust enrichment – Where defendant’s signature was forged on loan documentation – Where money lender lent money mistakenly believing defendant had requested a loan and had given a mortgage security − Loan funds used by defendant’s husband to pay deposit under contract of sale for other land – Proper identification of moment of enrichment – Whether enrichment received by virtue of defendant’s subsequent nomination as purchaser under the contract − Principles of tracing − Whether proceeds of loan could be traced into estate in land − Tracing into a mixed fund at common law − Whether assessment of enrichment by acquiring estate interest in land must take into account liabilities incurred in consequence − Whether enrichment by virtue of occupation of property − Defence of change of position on the faith of the receipt – Whether knowledge of facts entitling defendant to deal with property must be derived from payer − Significance of non-retention of benefit − Unjust to require restitution − David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 − Heperu Pty Ltd v Belle ([2009] NSWCA 252; 2009) 76 NSWLR 230 − Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84; (2009) 76 NSWLR 195 − Hills Industries Pty Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380 − Lipkin Gorman (a firm) v Karpnale [1991] 2 AC 548 – State Bank of NSW v Swiss Bank Corporation (1995) 35 NSWLR 350 – Commissioner of State Revenue v Politis [2004] VSC 126.

C V v DPP [2014] VSCA 58 (4 April 2014)

CRIMINAL LAW – Interlocutory appeal – Coincidence evidence – Obtaining financial advantage by deception – Importance of identifying issue to be proved – State of mind – Whether repeated misstatements as to net income of business in three applications for finance were deliberate and dishonest – Degree of similarity of events and surrounding circumstances required – Relationship between events – Cogency of combined force of coincidence evidence – Innocent hypothesis arising from Crown evidence – Whether hypothesis diminished significant probative value of events – Appeal dismissed.

Dafallah v Fair Work Commission [2014] FCA 328 (4 April 2014)

INDUSTRIAL LAW – Applicant’s employment terminated for poor performance by second respondent – applicant seeks judicial review of decisions of Commissioner at first instance and Full Bench of the Fair Work Commission – whether decision of Full Bench affected by jurisdictional error – whether Full Bench should have found it was in the public interest to grant permission to appeal – whether second respondent contravened warnings provisions of certified agreement – whether breach of implied contractual term of mutual trust and confidence – whether breach of disciplinary procedure incorporated into employment contract – breach of agreement claim only successful – reinstatement not appropriate in circumstances of case – applicant seeks penalties to be paid to her – no penalties imposed – compensation awarded.

Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation) [2014] NSWSC 382 (4 April 2014)

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether settlement deed a “construction contract” – whether payment under that deed a “progress payment” – CONTRACT – implied terms – whether an implied term that parties deal with each other in good faith and cooperate – UNCONSCIONABLE CONDUCT – requirements for conduct to be unconscionable
PROCEDURE – civil – whether the court should permit party to amend its claim – effect of delay – requirement that responding party have sufficient time to respond

Re Estate Pierobon Deceased [2014] NSWSC 387 (3 April 2014)

SUCCESSION – Wills probate and administration – Testamentary instruments – “suspicious circumstances rule” – Evidence – Application to set aside subpoenas – Legitimate forensic purpose – application dismissed

EVIDENCE – Facts excluded from proof – On grounds of privilege – Legal profession – Probate – Statements of witnesses to execution of will not privileged. “Rule in Re Fuld” – Claim to privilege dismissed

Tasmania v Kefalianos [2014] TASSC 17 (2 April 2014)

Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Unfairness – Intoxication, tiredness, unavailability of solicitor.

Evidence Act 2001 (Tas), s90.

R v Ostojic (1978) 18 SASR 188; R v Helmhout [2000] NSWSC 208; (2000) 112 A Crim R 10, referred to.

Aust Dig Criminal Law [2752]

Criminal Law – Evidence – Hearsay – Particular matters – Maker of statement not available – Witness refusing to give evidence – Representations by alleged co-offender in police interview.

Evidence Act 2001 (Tas), ss65(2)(d), 137.

R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182; J v Tasmania (2011) 20 Tas R 425; R v Sood [2007] NSWCCA 214; Festa v R (2001) 208 CLR 593, referred to.

Aust Dig Criminal Law [2802]

Mango Boulevard Pty Ltd v Whitton; In the matter of Spencer (Bankrupt) [2014] FCA 324 (2 April 2014)

PRACTICE AND PROCEDURE – consideration of an application for an order that particular documents the subject of discovery on the part of the applicants in the proceeding be provided to the Court under rule 20.35 of the Federal Court Rules 2011 for the purpose of enabling the Court to determine claims of privilege from production of particular documents

Morony & Ors v Reschke & Ors [2014] NSWSC 359 (28 March 2014)

PROCEDURE – discovery and interrogatories – discovery and inspection of documents – Practice Note SC Eq 11 – disclosure after evidence filed by plaintiffs – whether relevant categories of documents ought to be disclosed – whether disclosure of relevant categories of documents is necessary for resolution of real issues in dispute in proceedings.
PROCEDURE – subpoenas – application for subpoena to be set aside – where subpoena is for reports prepared by expert in interstate proceedings involving relevant defendants – whether production of reports is sufficiently relevant to matters in issue in proceedings.
EVIDENCE – legal professional privilege – where present plaintiffs seeking access to third party reports under subpoena to produce – where reports were filed and served on opposing parties in interstate proceedings under court order – whether question of access to be determined by statute or common law – whether service of reports in accordance with court order amounted to waiver of legal professional privilege – whether plaintiffs in interstate proceedings had an express or implied obligation to preserve confidentiality of relevant reports.
PROCEDURE – application for Registrar to request production of court files in interstate courts under Uniform Civil Procedure Rules 2005 (NSW) r 33.13 – whether direction for request should be made subject to relevant defendants having right of first access to make any potential claim for confidentiality or privilege.

The Queen v F J L [2014] VSCA 57 (28 March 2014)

CRIMINAL LAW – Director’s application – Leave to appeal against permanent stay of 12 counts of indecent assault on children under 16 years of age – Most recent alleged offending occurred 32 years prior to trial – Whether a case of ‘simple’ delay giving rise to mere presumptive prejudice – Whether possible to address prejudice to accused through procedural steps short of a permanent stay – Gross delay giving rise to specific forensic disadvantage – Possible to address some specific disadvantages through procedural steps – Leave to appeal granted – Appeal allowed in part.

HP Mercantile Pty Ltd v Clements [2014] NSWSC 290 (19 March 2014)

EVIDENCE – admissibility and relevancy – hearsay – whether relevant documents are admissible as business records under Evidence Act 1995 (NSW) s 69 – where identity of author of relevant documents is unknown – whether relevant documents contained previous representations made or recorded in the course of, or for the purposes of, relevant business – whether relevant representations were made by a person who had or might reasonably be supposed to have had knowledge of the asserted facts, or on the basis of information directly or indirectly supplied by such a person.
EVIDENCE – admissibility and relevancy – whether relevant documents should be excluded under s 135 on the basis that documents are unfairly prejudicial or misleading.
EVIDENCE – admissibility and relevancy – application to seek direction that relevant evidence is not to be admitted under Evidence Act 1995 (NSW) s 169 – where party had failed to comply with request to call witness – whether plaintiff’s refusal to comply with request made without reasonable cause.

DPP v Hicks (Ruling No 3) [2014] VSC 106 (14 March 2014)

CRIMINAL LAW – Evidence – Murder – Aggravated burglary – Admissibility of boot worn by accused – Prosecution seeking to match imprint at scene with accused’s boots – Prosecution in opening expressly disavowing any such connection – Irreversible forensic decisions by accused’s counsel based on prosecution position – Unfair prejudice to accused – Evidence excluded.

HP Mercantile Pty Ltd v Clements [2014] NSWSC 213 (6 March 2014)

PROCEDURE – pleadings – amendment – where defendant seeks leave to file amended defence – where hearing is due to commence and there have been lengthy delays – whether leave for proposed amendments should be refused on case management grounds – whether plaintiff will suffer prejudice in addressing amendments.
EVIDENCE – request to call witnesses – application for order compelling plaintiff to call a witness under Evidence Act 1995 (NSW) ss 167, 169 – where plaintiff refused to comply with request – whether defendant should have leave to make request outside time limit – whether plaintiff’s refusal to comply with request made without reasonable cause – matters to be considered in exercise of Court’s discretion to order party to comply with request to call a witness.

DPP v Hicks (Ruling No 2) [2014] VSC 153 (24 February 2014)

CRIMINAL LAW – Evidence – Murder, aggravated burglary, and thefts – Murder alleged to have been committed during burglaries and thefts by the accused in same neighbourhood – Admissibility of guilty pleas by accused to those burglaries and thefts – Whether unfair to admit evidence – Evidence Act 2008 (Vic) s 90.

DPP v Hicks (Ruling No 1) [2014] VSC 43 (21 February 2014)

CRIMINAL LAW – Evidence – Murder and aggravated burglary – Admissibility of record of interview – Whether inadmissible pursuant to s 464H of Crimes Act 1958 (Vic) – Whether admissions obtained as result of impropriety – Evidence Act 2008 (Vic) s 138 – Whether unfairness to accused – Evidence Act 2008 (Vic) s 90.

Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 (31 March 2014)

DEFAMATION – statements said to have published by the Maritime Union of Australia (MUA) – Bureau of Meteorology forecasts – severe weather conditions – ship master’s discretion -”Cyclone Response Plan” -existence of “contingency plan” – “Job Hazard Analysis” (JHA) – impact of “storm surge” – expert report on behaviour of tropical cyclones – no expert evidence to support questions regarding Cyclone Response Plan.

DEFAMATION – publication – MUA and Cootamundara Herald online articles – “bilateral” nature of publications – utterance comprehended by reader, listener or observer – publication of someone else’s defamatory statement by use of a hyperlink – responsibility of person approving, adopting or promoting the defamatory statement of another – “shallow” or “deep” hyperlinks – Crookes v Newton [2011] 3 SCR 269 – MUA responsible for publication of Cootamundara Herald article.

DEFAMATION – justification – truth – whether imputations carried by online articles were “substantially true” – particulars of truth – imputations not justified – substantial truth defence fails – absence of expert or similar evidence concerning ship master’s conduct.

DEFAMATION – Hore-Lacy defence -”common string” not established – defence fails.

DEFAMATION – privilege – qualified privilege at common law – reciprocal duty or interest – whether reciprocity of duty and interest between publisher and viewer – unrestricted nature of the publication – qualified privilege defence fails.

DEFAMATION – privilege – statutory qualified privilege – Defamation Act 2005 (NSW) s 30 – whether the conduct of the defendant in publishing defamatory matter was reasonable in the circumstances – threat posed by cyclone significantly overstated – defence of qualified privilege pursuant to statute fails.

DEFAMATION – defence -expression of opinion – Defamation Act 2005 (NSW) s 31 – truth of material not established – opinions not based on proper material – defence under s 31 fails.

DEFAMATION – damages – compensatory damages – damages to bear rational relationship to harm – damages for non-economic loss limited – Defamation Act 2005 (NSW) s 34 and s 35 – imputations conveyed by articles serious – publication of articles damaged reputation – damages for multiple causes of action may be assessed as single sum – separate publications warrants amount of damages to be individually specified.

DEFAMATION – damages – aggravated damages – conduct must be lacking in bona fides, improper or unjustifiable – failure to apologise or remove article from website – conduct of cross examination – unjustifiable conduct established – aggravated damages awarded.

DEFAMATION – damages – mitigation of damages – Defamation Act 2005 (NSW) s 38 – no evidence regarding “Fairfax settlement” and whether it released MUA from liability – basis for reducing damages awarded fails.

CGP (Aust) Pty Ltd v Stevens [2014] VSC 105 (31 March 2014)

CONTRACT – Magistrates’ Court – appeal on questions of law from Magistrates’ Court – claim based on invoice for work performed- identification of issues in proceeding – whether issues in respect of earlier invoice wrongly determined – proof of payment – whether Magistrate required to disclose findings about credibility of witness – whether no evidence to support finding – whether failure to take relevant consideration into account – standard of proof applied- findings as to appropriate payment for work

Cairns v Trowelcoat Pty Ltd [2014] VSC 129 (28 March 2014)

ACCIDENT COMPENSATION – admission sought after receipt of workers compensation – whether acceptance of Workcover claim form founds request by the plaintiff that the defendant admit it has paid and continues to pay the plaintiff’s medical and like expenses – injury arising out of or in the course of employment – Accident Compensation Act 1985 ss 82(1) and 99(1).

Matthews v SPI Electricity Pty Ltd & Ors (No 12) [2014] VSC 131 (28 March 2014)

PRACTICE AND PROCEDURE — Subpoena — Setting aside — Whether legitimate forensic purpose — Whether availability of a Jones v Dunkel inference which may be subject to an explanation to be revealed in the documents is a legitimate forensic purpose — Whether ‘on the cards’ that documents the subject of the subpoena will materially assist the plaintiff meet any explanation proffered for failing to call an expert witness — Whether subpoenas fishing — Legitimate forensic purpose found — Not ‘on the cards’ that documents the subject of the subpoena will materially assist the plaintiff meet any such explanation — Subpoenas fishing.

The Legal Practitioner v Council of The Law Society of The Act [2014] ACTSC 50 (28 March 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal to Appeal Division of ACT Civil and Administrative Tribunal – appeal removed into Supreme Court – nature of appeal in Supreme Court.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – whether permitting Law Society to amend charges deprived appellant of procedural fairness – whether Law Society was a model litigant – whether Law Society misled ACT Civil and Administrative Tribunal about nature and significance of amendments – no breach of procedural fairness – no misleading of Tribunal – appeal dismissed.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – admissibility of credibility evidence arising in cross-examination of appellant about peripheral aspects of separate matter also subject of charges brought by Law Society – admissibility of prejudicial credibility evidence – whether credibility findings should be set aside – whether ACT Civil and Administrative Tribunal misunderstood cross-examination – whether Tribunal misled by Law Society about significance of cross-examination – whether Law Society sought to mislead Supreme Court about significance of cross-examination – appeal dismissed.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – challenge to factual findings of ACT Civil and Administrative Tribunal – whether evidence to support factual findings – whether Tribunal obliged to accept appellant’s evidence of his state of mind at relevant times – whether Tribunal inconsistent in treatment of witnesses cross-examined without access to relevant documents – no error in Tribunal’s conclusions – appeal dismissed.

Caruana v Darouti [2014] NSWCA 85 (28 March 2014)

TORTS – negligence – occupier’s liability – respondent slipped on appellant’s driveway – whether appellant was negligent in resealing driveway – whether slip was reasonably foreseeable in circumstances where no prior accident – whether accident was caused by a positive act – whether reasonable care extended to erecting a handrail – whether trial judge failed to have regard to authorities – application of s 5B of the Civil Liability Act 2005 (NSW) to positive acts

United Voice v Valspar (WPC) Pty Ltd [2014] FCAFC 34 (27 March 2014)

INDUSTRIAL LAW – appeal from the Federal Circuit Court of Australia – contravention of s 50 of the Fair Work Act 2009 (Cth) by an employer – contravention of a term of an enterprise agreement by an employer – direction to employees to take annual leave at specified times – antecedents of an enterprise agreement in construing a provision

Craigcare Group Pty Ltd v Superkite Pty Ltd [2014] NSWSC 326 (26 March 2014)

CONTRACT – whether contract between Plaintiff and first Defendant – Contract established between Plaintiff and first Defendant as to money paid and the terms upon which it was paid to trust account

EQUITY – TRUSTS – whether money paid into firm of solicitors’ trust account was held on trust for Plaintiff as it was only to be used for prescribed purposes – whether trust was breached by payment out for purposes other than prescribed purposes – whether Plaintiff entitled to equitable compensation – whether second Defendant liable as an accessory to breach of express trust or breach of Quistclose trust under the second limb of Barnes v Addy – consideration of Quistclose trust – Express trust in favour of Plaintiff – breach of trust established – Whether Plaintiff entitled to “equitable damages” – Second Defendant is not liable for knowing assistance in breach of trust

COSTS – Whether to cap costs in view of amount of the claim – Plaintiff to recover 65% of its costs, such costs to be calculated on the ordinary basis – Second Defendant to pay his own costs of proceedings

Boral Resources (Vic) Pty Ltd & Ors v CFMEU & Anor [2014] VSC 120 (25 March 2014)

DISCOVERY – Applicability of Chapter I of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and r 29.07 – Proceeding under r 75.06 – Civil contempt – Whether discovery available in proceeding of a criminal and/or quasi-criminal nature to penalise for contempt of Court – Significance of alleged contemnor being a corporation rather than an individual – Privilege against self-incrimination – s 187 Evidence Act 2008 (Vic).

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 (25 March 2014)

INDUSTRIAL LAW – employment – adverse action – respondent employer dismissed applicant employee for redundancy – adverse action taken by respondent against applicant under s 342(1) of the Fair Work Act 2009 (Cth)

INDUSTRIAL LAW – employment – complaints – whether adverse action taken against applicant because applicant exercised workplace rights under s 340 of the Fair Work Act 2009 (Cth) – whether applicant exercised workplace rights by making any of five successive complaints in relation to her employment under s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) – first and second complaint related to allegation of sexual harassment by senior colleague in Hong Kong – third complaint related to allegations of further misconduct by the senior colleague and other employees in the course of the investigation into the Hong Kong incident – fourth complaint related to the alleged deficiencies in the investigation and investigator’s report and included further allegations of misconduct by colleagues, including the respondent’s managing director – fifth complaint related to the managing director’s alleged attempt unlawfully to terminate the applicant’s employment – meaning of complaints that employee is able to make in relation to employment – whether an instrumental basis required for a complaint under s 341(1)(c)(ii) – whether complaint must be made in good faith – whether complaints made by applicant were genuine grievances made in good faith for a proper purpose – relevance of and evidence for the applicant’s allegations of misconduct by colleagues (including the respondent’s managing director) and of corporate culture tolerant of sexual harassment made in the fourth complaint and at trial

INDUSTRIAL LAW – employment – redundancy – whether restructure of the respondent’s business units and the applicant’s dismissal for redundancy were genuine – whether complaints made by the applicant a substantial and operative reason for the decision to terminate her employment for redundancy

Liao v State of New South WalesZhang v State of New South Wales [2014] NSWCA 71 (24 March 2014)

PROCEDURE – pleading – prior adjudication in proceedings in which the present defendant was sued by different plaintiff – application for order striking out parts of the defence said to reflect findings in the earlier proceedings – whether abuse of process to put the plaintiff to proof of such matters – PROCEDURE – admissions – power of court to compel admissions – findings in the earlier proceedings against the defendant said to require admissions by the defendant in present proceedings

Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 (21 March 2014)

PRACTICE AND PROCEDURE – Expert evidence – Joint reports of experts – Admissibility of joint reports – Whether reasons are required for agreement between experts – Whether conclave failed to identify the material it relied upon – Whether consideration of extraneous material by the conclave constituted an irrelevant consideration – Whether experts are required to be provided with a joint statement of assumptions – Whether the questions asked of the conclave were drafted in terms that addressed relevant issues and matters appropriate for consideration by experts – Whether the joint reports are inconsistent with the common law “statement of reasoning” rule – Whether the joint reports are inconsistent with the Makita principle – Application of s 79 of the Evidence Act to joint reports of experts – Whether Court should exercise discretion to exclude the joint reports under s 135 of the Evidence Act

Matthews v SPI Electricity & Ors (Ruling No 38) [2014] VSC 102 (21 March 2014)

EVIDENCE – Expert opinion based on specialised knowledge – Differentiation of primary and secondary facts – Expert as advocate – Admissibility – “Basis rule” – Necessary to distinguish fact and opinion – Evidence Act 2008 (Vic) s 79 – Civil Procedure Act 2010 (Vic) – Supreme Court (General Civil Procedure) Rules 2005 (Vic).

Miller v R [2014] NSWCCA 34 (21 March 2014)

CRIMINAL LAW – conviction appeal – Appellant convicted in 2009 after trial by judge alone – Crown alleged Appellant falsely represented himself to be a solicitor – Appellant deceived a vulnerable victim – convicted of obtain benefit by deception (one count), obtain benefit by making false statement (three counts) and use false instrument (one count) – Appellant acquitted of further count of obtain benefit by deception – whether inconsistent verdicts in relation to obtain benefit by deception counts – whether counts alleging obtain benefit by making false statement charged offences not known to law or were bad for duplicity – whether defect in terms of use false instrument count – ground based upon suggested fresh or new evidence – all conviction grounds rejected – conviction appeal dismissed

CRIMINAL LAW – sentence appeal – whether error in use of evidence of adverse impact of offences upon victim – whether error in use made of Appellant’s pretence to be solicitor – whether error in approach to theoretical prospect of summary disposal – whether error in approach to delay between arrest and sentence – whether error in approach to Appellant’s claimed assistance to authorities – claim of manifest excess – objective gravity of offences – no sentence ground established – sentence appeal dismissed

CRIMINAL LAW – conviction appeal – Appellant convicted in 2007 after jury trial – one count of obtain benefit by deception and four counts of use false instrument – Crown alleged elaborate deception by Appellant pretending to be a solicitor – use of false documents to dishonestly obtain loan advance secured by mortgage over property of innocent victim – claim that Crown case based upon fabricated evidence and incompetent police investigation – whether trial Judge erred in failing to direct acquittal – claim of error in admission of identification evidence – claim that trial defence counsel failed to advance arguments and adduce evidence exculpatory of Appellant – ground based upon suggested fresh or new evidence – claim that verdicts unreasonable – all conviction grounds rejected – conviction appeal dismissed

CRIMINAL LAW – sentence appeal – concurrency and accumulation – special circumstances – claim of manifest excess – objective gravity of offences – substantial moral culpability of Appellant – sentence appeal dismissed

Mutton v Baker & Anor [2014] VSCA 43 (19 March 2014)

PRACTICE AND PROCEDURE – Statement of Claim – Whether pleading discloses a cause of action – Whether claim has no real prospect of success – Claim for malicious prosecution and injurious falsehood – Malicious prosecution – Elements of the tort – Necessary to allege instigation of judicial process – Whether statement of claim alleges that a prosecution had been instigated – Plaintiff alleges arrest by police – Arrest without warrant or other judicial involvement – Dismissal of cause of action – Civil Procedure Act 2010 (Vic) ss 62-64 – County Court Civil Procedure Rules 2008 (Vic) Order 23.

Matthews v SPI Electricity & Ors (Ruling No 39) [2014] VSC 109 (19 March 2014)

EVIDENCE – Expert opinion based on specialised knowledge – Opinion on matters outside of original remit – Admissibility – “Basis rule” – Evidence Act 2008 (Vic) ss 55, 79 – Civil Procedure Act 2010 (Vic) ss 65F, 65H, 65K – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 44.05.

Ubertini v Saeco International Group SpA (No 4) [2014] VSC 47 (18 March 2014)

CORPORATIONS – Oppression – compulsory acquisition of minority shareholdings – parent company majority shareholder in subsidiary – demands for payment by parent company – non-supply of new range of stock to subsidiary – alleged failure or refusal by parent company to fill stock orders of subsidiary – appointment of administrators to subsidiary by parent company’s nominee directors on board of subsidiary – charging of penalty interest by parent company on outstanding debts of subsidiary – whether deliberate course of conduct by parent company to remove minority shareholder of subsidiary from management and acquire minority shareholdings in subsidiary without payment – whether parent company’s nominee directors on board of subsidiary failed to properly assist subsidiary – whether conduct of parent company contrary to the interests of members of subsidiary as a whole, or oppressive to, unfairly prejudicial to or unfairly discriminatory against minority shareholders of subsidiary – applicable legal principles – whether conduct of parent company conduct in the affairs of the subsidiary – prevention of board meetings – whether unauthorised transfer of funds, related party transfers and improper incurring of adviser fees by minority shareholder of subsidiary – whether alleged conduct of minority shareholder oppressive conduct – whether alleged failure by minority shareholder to cause subsidiary to pay debts to parent company oppressive conduct – whether oppressive conduct of minority shareholder should disentitle relief sought – Corporations Act 2001 (Cth), ss 53, 232, 233.

R v Hadchiti (No 3) [2014] NSWSC 257 (18 March 2014)

CRIMINAL LAW – sentence – murder – serious offence – objective seriousness – high moral culpability – planning -aggravating factors – use of weapon – offence committed in company – mitigating factors – no record of prior convictions – prior good character remorse and prospects of rehabilitation and not re-offending not established – deterrence – personal circumstances – no special circumstances – victim impact statement – custodial sentence imposed

KJS v R [2014] NSWCCA 27 (18 March 2014)

CRIMINAL LAW – conviction appeal – historical sexual offences – aggravated indecent assault and aggravated sexual intercourse without consent – admissibility of other uncharged sexual acts as context evidence – whether such evidence “tendency evidence” – whether probative value of evidence outweighed by its unfair prejudice – need for evidence to explain background to what otherwise would appear to be two isolated and unconnected offences – evidence necessary to explain failure of victim to complain at the time of the offending – reasonable assumption that jury would follow judicial directions – evidence of uncharged acts admissible as context evidence.

Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 (17 March 2014)

GUARDIANSHIP – Protected person – Financial management – Appointment of manager – Private manager – Terms of appointment – Remuneration – Regulatory regime – Financial services licence, issued by Australian Securities and Investment Commission, required – Subject to regulation by public authorities (by ASIC as licence holder, by NSW Trustee as financial manager) and supervision by Court (in exercise of Protective jurisdiction) – Public interest considerations
MENTAL HEALTH – Protected person – Appointment of manager of estate – Private manager – Remuneration – Regulatory regime – Public interest considerations
PRACTICE – NSW Trustee & Guardian Act – Protected person – Appointment of manager of estate – Private manager – Terms of appointment – Remuneration – Regulatory regime – Public interest considerations

DW v R [2014] NSWCCA 28 (14 March 2014)

EVIDENCE – admissibility – Surveillance Devices Act 2007 – whether recording of a conversation was reasonably necessary for the protection of the lawful interests of the complainant – whether, if within exception to prohibition in s 7 of the Act, trial judge erred in concluding that it would be admissible under s 138 of the Evidence Act 1995 as probative value of recorded conversation outweighed prejudice to accused

CRIMINAL LAW – appeal and new trial – objections or points not raised in court below – misdirection and non-direction

CRIMINAL LAW – evidence – propensity, tendency and co-incidence – admissibility and relevance – directions to jury

State of New South Wales v Cruse (No. 2) [2014] NSWSC 128 (14 March 2014)

CRIMINAL LAW – Crimes (High Risk Offenders) Act 2006 – serious sex offender – sexual offending commenced when offender was 17 – multiple offences – offending when under the influence of drugs and alcohol – application for extended supervision order – whether offender an unacceptable risk of commission of further serious sex offences – conditions of supervision order – whether offender should be barred from viewing R18+ material – whether offender should be prevented from access to offender’s young sons – whether s 11(g) of the Act inconsistent with Family Law Act – requirement to take prescribed medication – length of order

HRF Nominees Pty Ltd (In Liq) & Ors v Man Civil Constructions Pty Ltd & Ors [2014] VSC 93 (14 March 2014)

PRACTICE AND PROCEDURE — Application that an affidavit and exhibits be taken off the court file — Supreme Court (General Civil Procedure) Rules 2005, r 1.14(2) and r 27.07(b) — Affidavit and exhibits tending to incriminate third defendant or expose him to a civil penalty — Whether affidavit and exhibits filed by plaintiffs which reveal documents that may tend to incriminate a defendant or expose him to a penalty is scandalous.

PRACTICE AND PROCEDURE — Discovery — Privilege against self-incrimination or self-exposure to a penalty —Proceeding against director of first plaintiff for breach of fiduciary duties and directors duties under ss 180, 181 and 182 of the Corporations Act 2001 (Cth) —First plaintiff’s business ‘phoenixed’ into the first defendant — facts pleaded may also constitute offences —Documents obtained from former employee or consultant to first plaintiff — plaintiffs seek discovery and inspection by individual who is first plaintiff’s only director and secretary — Some documents already in possession of first plaintiff — whether individual excused from giving discovery or inspection on ground that giving discovery or inspection would involve individual incriminating himself —No additional jeopardy by reason of an order for inspection of documents already in possession of plaintiffs – Other discovered documents not in possession of plaintiffs are subject to the privileges.

R v Abdallah (No. 5) [2014] NSWSC 233 (13 March 2014)

EVIDENCE – admissibility – credibility or reliability – whether photographic evidence of tattoos admissible for the purposes of bolstering witness’s credibility in terms of what may be observed from certain vantage points; JUDICIAL DISCRETION TO EXCLUDE EVIDENCE – prejudicial nature of evidence – whether probative value outweighs unfair prejudice to the accuse