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R v Djenadija [2015] ACTSC 29 (26 February 2015)

http://www.austlii.edu.au/au/cases/act/ACTSC/2015/29.html

CRIMINAL LAW – Particular Offences – offences against children – indecent assault on a person under the age of 16 years
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Evidence Act 2011 (ACT) applies to an application to lead tendency evidence in relation to offences allegedly committed prior to the commencement of that Act

Jardine v Vaughan; Clarkson Williams Partners Pty Ltd (Third Party) (No 3) [2015] ACTSC 33 (26 February 2015)

http://www.austlii.edu.au/au/cases/act/ACTSC/2015/33.html

PROCEDURE – Supreme Court procedure – Third party proceeding – independent of original proceeding – proceeding able to proceed in absence of plaintiff
EVIDENCE – witnesses credibility and reliability – delay in commencing proceedings against the third party – absent witness – application of the principles in Jones v Dunkel – evidence may be more readily accepted if left uncontradicted
TRADE AND COMMERCE – Trade Practices and Related Matters – Misleading and deceptive conduct – silence – refraining from doing an act – reasonable expectation of disclosure – failure to provide relevant information
TRADE AND COMMERCE – Trade Practices and Related Matters – Misleading and deceptive conduct – Reasonable care – protection of own interests – causative link between misleading and deceptive conduct and damages – dealings between friends – seek professional advice – reliance
TORTS – Negligence – Negligent Misinterpretation – Duty of care – Salient features
TRADE AND COMMERCE – Trade Practices and Related Matters – Loss and damage – s 46(f) of the Fair Trading Act 1992 (ACT) – loss or damage caused by contravening conduct – rule in Potts v Miller – difference between price paid and actual value at time of purchase – subsequent diminution – consequential losses – interest

Swindells v State of Victoria & Anor [2015] VSC 19 (3 February 2015)

http://www.austlii.edu.au/au/cases/vic/VSC/2015/19.html

MISLEADING AND DECEPTIVE CONDUCT – appointment of plaintiff to office of mining warden by defendants – whether defendants engaged in conduct liable to mislead as to term and nature of employment – alleged misleading conduct comprising written and oral representations and silence – Fair Trading Act 1999 (Vic) s 13.

EMPLOYMENT LAW – whether terms of trust and confidence, duty to accord procedural fairness and good faith implied in contract of employment – wide scope of statutory power and contractual right to terminate employment – whether defendants breached and/or repudiated contract by manner of and grounds for termination of employment – whether failure to give adequate notice of proposed reasons for termination and opportunity to respond – whether apprehended bias by defendants when terminating plaintiff’s appointment – no breach or repudiation of contract by defendants – Mineral Resources (Sustainable Development) Act 1990 (Vic), s 96 – Public Administration Act 2004 (Vic) – Barratt v Howard & Ors [2000] FCA 190; (2000) 96 FCR 428 – Commonwealth Bank of Australia v Barker [2014] HCA 32 – Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44.

Tasmania v Stebbings [2015] TASSC 9 (29 January 2015)

http://www.austlii.edu.au/au/cases/tas/TASSC/2015/9.html

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Evidence of admissions made during official questioning not admissible in certain proceedings unless there is an audio-visual record – Admissions made about drug possession during search of vehicle commenced for other purposes – Whether official questioning – Whether evidence of admissions admissible.

Evidence Act 2001 (Tas), s 85A.

R v NAA [2009] NSWSC 851; (2009) 76 NSWLR 271, applied.

Aust Dig Criminal Law [2687]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Propriety of police questioning and other conduct by police – Administering caution – Admissions made about drug possession during search of vehicle commenced for other purposes – Need for caution – Effect of failure to caution – Whether evidence should be excluded as improperly obtained.

Evidence Act 2001 (Tas), ss 138, 139.

R v NAA [2009] NSWSC 851; (2009) 76 NSWLR 271, applied.

Aust Dig Criminal Law [2693]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Propriety of police questioning and other conduct by police – Administering caution – Accused interviewed as a witness about death of a person in his car – General caution at commencement of interview – Accused answered questions about the death but refused to answer later questions about possession of drugs found in car – Accused understood that what he said about the death would not be used in relation to drug possession – Whether unfair to use in drug trial evidence of statements made when speaking about the death.

Evidence Act 2001 (Tas), s 90.

Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, followed.

Aust Dig Criminal Law [2693]

Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9 (22 January 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/9.html

NATIVE TITLE – application for determination of native title – whether applicant on behalf of claim group had established matters required by s 223 of Native Title Act 1993 (Cth) over eastern portion of Eyre Peninsula – where State contended that there had been substantial interruption and then attempted renewal of traditional laws and customs – whether applicant established native title claim group at sovereignty had rights and interests in section of claim area south of Port Lincoln either solely or conjunctively or had established succession to that part of claim area under traditional laws and customs – whether applicant established native title claim group at sovereignty had rights and interests in areas of sea beyond areas accessible from low water mark without sea vessels – decision to recognise Barngarla people as holders of native title rights and interests but not including area south of Port Lincoln or sea areas not accessible without sea going vessels beyond low water mark – whether applicant established that native title rights and interests included right to trade in traditional resources found in proposed determination area

Ryan v Primesafe [2015] FCA 8 (21 January 2015)

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

PRACTICE AND PROCEDURE – Costs – application for costs in proceeding instituted under the Fair Work Act 2009 (Cth) pursuant to s 570(2), where applicant has discontinued proceedings against all respondents – relationship between discretion conferred on Court by s 43 of the Federal Court of Australia Act 1976 (Cth) and s 570(2) – whether costs should be awarded against applicant’s solicitor – whether indemnity costs should be awarded – applicant’s solicitor to bear costs personally on party–party basis

Woodhouse v Director of Public Prosecutions [2015] NSWCA 40 (10 March 2015)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2015/40.html

ADMINISTRATIVE LAW – judicial review – appeal to District Court from Local Court conviction – application for leave to adduce fresh evidence pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) – whether District Court erred in declining to make orders in relation to Magistrate’s Bench notes and emails between the applicant and his former solicitor

Equity Trustees Ltd v Jewish Care (Victoria) Inc & Anor [2015] VSC 73 (10 March 2015)

http://www.austlii.edu.au/au/cases/vic/VSC/2015/73.html

WILLS AND ESTATES – Charitable trust established by will – Special purpose trust for establishing, equipping and maintaining a hospital to be known by a specific name – Subsequent re-location of hospital established under the will to new hospital buildings – Renaming of hospital buildings – Whether trust moneys able to be applied toward new hospital under the terms of the will – Whether cy pres application necessary.

Re Mandie; Mandie v Danos [2015] VSC 55 (10 March 2015)

http://www.austlii.edu.au/au/cases/vic/VSC/2015/55.html

COSTS — Application by plaintiffs for leave to discontinue Part IV proceedings —Application not opposed by defendants — Defendants seek costs of the proceeding on an indemnity basis — Whether defendants’ costs should be on a standard or indemnity basis — Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 — Sidameneo (No 456) Pty Ltd v Ward & Magarey [2011] VSC 559

CALDERBANK OFFER — Rejection by plaintiffs of defendants’ offer to settle proceeding — Whether rejection was unreasonable in the circumstances — Supreme Court (General Civil Procedure) Rules 2005, r 26.08(4)(b) — Hazeldene’s Chicken Farm Pty Ltd (A.C.N 004 381 346) v Victorian Workcover Authority (No. 2) [2005] VSCA 298

R v Lambaditis [2015] NSWSC 182 (9 March 2015)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2015/182.html

EVIDENCE – EXPERT EVIDENCE – MARTIAL ARTS TRAINING – whether the accused proficient in martial arts techniques – whether expert evidence capable of establishing such proficiency – whether the evidence in the Crown case admissible as expert opinion evidence on a state of mind issue on a charge of murder – namely as proof of an intention to cause grievous bodily harm – held that the opinion evidence in question could not be relevant to a fact in issue in the proceedings – the evidence even if admissible should be excluded under s 135 or s 137 Evidence Act 1995

Barton v Malcolm Johns Legal Pty Ltd (No 2) [2015] FCA 166 (6 March 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/166.html

BANKRUPTCY AND INSOLVENCY – application for review of decision to dismiss application to set aside a bankruptcy notice – where primary judge decided not to dismiss creditor’s petition and to make sequestration order – discretion to set aside bankruptcy notice – Bankruptcy Act 1966 (Cth), ss 30(1), 43, 52(2) – appeal dismissed

Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 33 (6 March 2015)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2015/33.html

PROCEDURE – interlocutory issues – whether to grant leave to appeal from order staying proceedings by an insured against his insurer pending provision of security for costs – whether case management principles a relevant consideration in making such an order – whether primary judge failed to consider plaintiff’s prospects of success – whether primary judge failed to give proper consideration to whether proceedings would be stultified by making the order – significance of impecuniosity of a natural person – whether primary judge failed to have regard to burden of proof to be satisfied by defendant alleging the plaintiff’s claim is fraudulent – whether primary judge failed to give adequate reasons – leave to appeal granted – appeal dismissed

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 (6 March 2015)

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

INDUSTRIAL LAW – claim by respondent that appellant union contravened ss 50, 340, 345, 349 and 417 of Fair Work Act 2009 (Cth) by promulgating document(s) containing the union’s overtime policy (“the FW Act”) – whether primary judge erroneously characterised manner of alleged contraventions as promulgation of the policy, rather than promulgation of document(s) containing the policy – whether primary judge was required to identify time of contraventions and whether time was so identified – whether Jones v Dunkel inference could have been drawn and whether it was so drawn – whether primary judge erred in finding that the union had organised industrial action – whether primary judge erred in finding that respondent had a workplace right under enterprise agreement – whether an employer may have a workplace right within the meaning of s 361 of the FW Act – whether primary judge erred in finding that reason for union’s industrial action was because of respondent’s workplace right – whether primary judge erred in finding that union had knowingly or recklessly made false or misleading representations

Sienkiewicz (As Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Limited (in Liquidation) (No 2) [2015] FCA 147 (6 March 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/147.html

INSURANCE – financial services errors and omissions policy – whether error or omission of the insureds in the performance of professional services, defined relevantly to mean financial planning encompassing advice on approved investment products and life insurance products – whether the products were approved investment products – whether an approved product was required to be on an Approved Products List – whether loss arising out of or in any way connected with any involvement of the insureds in selling as principal for their own account – whether guarantee or warranty given in relation to the performance of any investment – whether variation to the policy – whether consideration given for variation – whether Insurance Contracts Act 1984 (Cth) s 54 operated to prevent insurer from refusing to pay claim

ML v R [2015] NSWCCA 27 (5 March 2015)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2015/27.html

CRIMINAL LAW – conviction appeal – sexual intercourse and attempted sexual intercourse with child under 10 years – appellant convicted of attempt offence but acquitted of sexual intercourse offence – whether jury verdicts were factually inconsistent and unreasonable – whether “unreliable evidence” warning should have been given with respect to the evidence of the complainant – no factual inconsistency between verdicts – no need for warning under s165 of the Evidence Act 1995 – no miscarriage of justice.

Grant-Taylor v Babcock & Brown Limited (In Liquidation) [2015] FCA 149 (4 March 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/149.html

CORPORATIONS – basis of obligations to make continuous disclosure – whether first defendant breached obligations of continuous disclosure – whether first defendant obliged to disclose payment of dividends from capital – whether accounts gave a true and fair view – whether first defendant obliged to disclose if accounts did not – whether first defendant insolvent at specified date – whether first defendant obliged to disclose if it was – whether dividend funded from asset revaluation

DAMAGES – whether plaintiffs can recover for overpayment for shares in circumstances – proof of loss – whether plaintiffs can rely on indirect theory of causation

Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 136 (27 February 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/136.html

INDUSTRIAL LAW – where an enterprise agreement provides for payment of accrued but untaken annual leave at the end of employment – where rate of payment of untaken annual leave is referrable to ordinary hours worked rather than amount payable if leave was actually taken – whether s 90(2) of the Fair Work Act 2009 (Cth) requires payment be equivalent to the amount that the employee would have been paid if the employee had taken the annual leave

INDUSTRIAL LAW – where enterprise agreement provides for retrenchment pay if employee retrenched before the age of 60 but not after – whether retrenchment provision in respect of employees aged over 60 is discriminatory on the basis of age and an unlawful term within the meaning of s 194 of the Fair Work Act 2009 (Cth) – whether, if unlawful, entire scheme for retrenchment pay must be severed from the enterprise agreement

SZTMH v Minister for Immigration & Border Protection [2015] FCA 124 (27 February 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/124.html

MIGRATION – refusal of protection visa – whether risk of serious harm under s 91R of Migration Act 1958 (Cth) – whether apprehended bias –grounds of appeal not made out

COSTS – application for personal costs order against solicitor – whether s 486E of Migration Act 1958 (Cth) contravened – whether appeal had reasonable prospect of success – where one ground had a reasonable prospect of success – where remaining grounds had no reasonable prospect of success – no contravention of s 486E

Cox v The Queen [2015] VSCA 28 (26 February 2015)

http://www.austlii.edu.au/au/cases/vic/VSCA/2015/28.html

CRIMINAL LAW – Evidence – Coincidence evidence – Sexual offences committed against multiple complainants – Severance – Whether evidence of one complainant cross-admissible with evidence of other complainants – Judge’s charge on coincidence evidence – Velkoski v The Queen [2014] VSCA 121, applied – Evidence Act 2008 , ss 98 and 101.

Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2015] FCA 113 (25 February 2015)

http://www.austlii.edu.au/au/cases/cth/FCA/2015/113.html

TRADE PRACTICES – abuse of market power – definition of market – substantial degree of power – taking advantage of power – purpose

TRADE PRACTICES – exclusive dealing – on condition – purpose

PATENTS – exclusive rights of patentee – right to exploit – right to exclude others – an implied licence to sell – whether a condition falling within trade practices exception to s 47

EVIDENCE – the rule in Browne v Dunn – a rule of procedural fairness – privilege against self-incrimination

R v A (No 3) [2015] NSWSC 79 (17 February 2015)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2015/79.html

CRIMINAL LAW – evidence – where police unsuccessful in serving a subpoena on a witness – where Crown sought to tender passages of the statement of the witness in her absence – no prior notice given to accused until the day on which the application was made – where counsel for the accused had instructions to cross-examine the witness as to credit – where opportunity to cross-examine would be lost – evidence excluded

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

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

CRIMINAL LAW – importation of commercial and marketable quantities of border controlled drugs and precursors – indictment containing five charges – whether evidence relevant to counts 1, 2, 3 and 5 properly admitted as tendency or coincidence evidence with respect to count 4 – whether evidence significantly probative – relevance of dissimilarities – whether open to trial judge to deal with coincidence rule and tendency rule together

CRIMINAL LAW – importation of commercial and marketable quantities of border controlled drugs – meaning of “import” in s 300.2 of the Criminal Code 1995 (Cth) – “import” defined to include “deal with the substance in connection with its importation” – commercial quantity of heroin imported in container and held by freight forwarders in Sydney – whether inquiries made by appellant as to fees payable in order to release goods sufficient to amount to dealing – whether inquiries together with assertions of ownership sufficient to amount to dealing

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

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

APPEAL – Appeals From and Control Over Magistrates –appeal dismissed.
WORKERS’ COMPENSATION – Workers’ Compensation Generally – mental injury arising out of or in the course of employment – whether the respondent is a person of normal fortitude – whether employer’s conduct was reasonable.

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

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

ASSAULT AND BATTERY – dental treatment – whether patient’s consent invalid because sole purpose was non-therapeutic – whether onus lay on patient or practitioner – whether absence of consent of the gist of assault and battery

DAMAGES – exemplary damages – whether Civil Liability Act 2002 (NSW), s 3B applied – requirement to determine compensatory damages before considering whether to order exemplary damages – whether other decisions comparable

EVIDENCE – tendency evidence – whether evidence of other malpractice by practitioner wrongly admitted – whether evidence able to be used for purpose different from that for which it was tendered – whether evidence of malpractice significantly probative of performing work with no therapeutic purpose

MEDICAL PRACTITIONERS – consent to treatment – whether consent to dental treatment invalid because of wholly non-therapeutic purpose – onus of proof

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

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

APPEAL AND NEW TRIAL – Appeal de novo from orders of registrar setting aside statutory demand and ordering creditor to pay debtor’s costs – admission of further evidence – registrar’s decisions confirmed.
CORPORATIONS – Practice and Procedure – service on corporation by post – presumption of service in ordinary course of post not available in respect of service by post where item not properly addressed to corporation’s registered office – presumption of delivery to specified address by fourth business day not available having regard to evidence of later delivery – corporation’s mail processed through Australia Post box number but delivered to corporation’s office by Australia Post – corporation had no access to “box” – significance of use of post office box – item posted on 13 December – significance of Christmas/New Year “close down” – risks of taking time-critical legal steps around Christmas/New Year period.

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

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

CRIMINAL LAW – particular offences – offences against the person – murder – trial by judge alone – consideration of the affirmative defence of mental illness – accused did physical act – accused suffering from disease of the mind that led to a defect of reason – accused did not appreciate the moral wrongfulness of his act – verdict not guilty on the ground of mental illness

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

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

CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – application to exclude evidence obtained against accused during cross-border controlled operation conducted under NSW legislation – accused not named in authority to conduct the cross-border controlled operation – whether evidence obtained improperly or in contravention of Australian law or as a consequence of impropriety or contravention of Australian law – effect on authority of failure to vary authority to add suspect identified during operation – whether accused could have been named in authority in respect of alleged offences entirely committed in ACT – authority not invalidated – scope of authority determined by reference to suspects named – whether authority authorised activities in which evidence was obtained against accused – authority did authorise those activities – no impropriety or contravention of Australian law found – application to exclude evidence dismissed.

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

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

ELECTRICITY – contraventions of cl 4.9.8(a) of National Electricity Rules – scheduled generator not complying with dispatch instructions of Australian Energy Market Operator – claims for pecuniary penalties – proceedings brought by Australian Energy Regulator under s 44AAG of Competition and Consumer Act 2010 (Cth) – National Electricity (Victoria) Law – National Electricity (NSW) Law

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

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

Jurisdiction, practice and procedure – Adjournment, stay of proceedings or order restraining proceedings – Matters connected with conduct of defence – Where respondent charged with offence – Where appellant applied for forfeiture order under s 49 of the Proceeds of Crime Act 2002 (Cth) (“the Act”) against property that is proceeds of crime – Whether forfeiture proceedings should be stayed until criminal proceedings are finalised – Whether refusal to stay forfeiture proceedings creates risk of prejudice in criminal proceedings – Whether respondent must state specific matters of prejudice before stay will be granted.

Statutes – Interpretation – Forfeiture of proceeds of crime – Stay of forfeiture proceedings – Where appellant applied for forfeiture order under s 49 of the Act – Where issues in forfeiture proceedings and criminal proceedings are substantially identical – Whether forfeiture proceedings should ordinarily continue.

Words and phrases – “prejudice”.

Proceeds of Crime Act 2002 (Cth), ss 39A, 49, 80, 266A, 319.

FRENCH CJ, HAYNE, KIEFEL, BELL AND KEANE JJ.

The decision refusing the stay
13. In his Honour’s view, the respondents were not prevented by the existence of parallel criminal proceedings from giving evidence that the Restrained Property was not acquired using the proceeds of crime and they were not compelled to give evidence in the forfeiture proceedings or the exclusion proceedings. If they chose to do so, and the second respondent gave evidence or was cross-examined and asked questions which might incriminate him, he could avail himself of the procedure provided for in s 128 of the Evidence Act 2008 (Vic).

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

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

CRIMINAL LAW – Particular Offences – offences against the person – crimes and offences against children – act of indecency on a person under the age of 10 years – act of indecency on a person under the age of 16 years
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Crown is entitled to lead evidence that the accused had a tendency to have a particular state of mind – whether the Crown is entitled to lead evidence that the accused had a tendency to act in particular ways.

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

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

PRACTICE AND PROCEDURE – Rule 30.01 Federal Court Rules 2011 – application for particular questions arising in proceeding to be heard separately from any other questions – guiding principles – application of principles to particular circumstances – where hearing of separate questions has capacity to bring proceedings to finality

EVIDENCE – ss 118 and 119 Evidence Act 1995 (Cth) – whether redacted portions of discovered documents privileged under either provision – whether adducing evidence of redacted portions would result in disclosure of confidential communications or contents of confidential documents brought into existence for either of the respective dominant purposes referred to in these provisions