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Mainline Corporate Holdings Ltd v Fexco Merchant Services [2014] FCA 265 (11 March 2014)

1. At the commencement of the hearing on 10 March 2014, the second applicant sought leave to file the affidavit of Anthony John Gilfedder, affirmed 9 March 2014. In that affidavit Mr Gilfedder deposes to extracting certain data from a database identified as the Fintrax database. Mr Gilfedder is the Group Payments Manager of Fintrax Treasury Services Limited (Fintrax), a company within the same group of companies as the second applicant.
2. The purpose of the affidavit is to introduce the extracted data into evidence. The extracted data is annexure AG 1 to the affidavit. I marked a copy of the affidavit for identification: MFI 1.
3. The respondents object to the affidavit being filed. They submit that the second applicant has not explained how, if the affidavit were to be read, it would overcome the hearsay rule. They also raise objections to filing based on other matters to which I will refer.
4. The second applicant says that the extracted data is admissible as a business record pursuant to s 69 of the Evidence Act 1995 (Cth) (the Act). …

Ell v Milne (No 8) [2014] NSWSC 175 (7 March 2014)

DEFAMATION – defences – defence of qualified privilege at common law – email headed “letter to the editor” concerning conduct of developer sent to about 70 email addresses including newspapers, politicians and environmental groups – whether to be inferred that recipients opened and read email – whether email published on an occasion of qualified privilege – defence of contextual truth – whether defendant’s contextual imputation concerning political donations proved substantially true

DEFAMATION – damages – where plaintiff did not give evidence or attend any part of hearing – whether entitled to any award for hurt to feelings or any aggravated damages

Australian Competition and Consumer Commission v Avitalb Pty Ltd [2014] FCA 222 (7 March 2014)

CONSUMER LAW – misleading or deceptive conduct –consumer guarantee provisions – representations about the existence, exclusion or effect of a guarantee, right or remedy – admitted contraventions – agreed orders –whether proposed orders appropriate – whether proposed penalty within appropriate range – relevance of errors in statement of agreed facts

State of New South Wales v Hunt [2014] NSWCA 47 (13 March 2014)

APPEAL AND NEW TRIAL – findings of fabrication of evidence by police officer – fabrication of key findings not put in cross-examination – submission of fabrication not made – agreement not to take Browne v Dunn points did not prevent substantial miscarriage of justice – retrial ordered

APPEAL AND NEW TRIAL – failure to address substantial component of defence case – failure to grapple with competing testimonial evidence in light of independent evidence – failure to address separate heads of damages

POLICE – rights, powers and duties – actions for malicious arrest, assault and battery and misfeasance in public office – whether lawful arrest – nature of tort of “malicious arrest” considered

R v Iacuone; R v Duffy; R v JR [2014] ACTSC 43 (13 March 2014)

EVIDENCE – Expert Evidence – criminal trial – conspiracy to murder – specialised knowledge – no evidence opinions based on specialised knowledge

EVIDENCE – Relevance – criminal trial – conspiracy to murder – whether opinion of psychiatrist as to whether accused would have carried out conspiracy relevant – not relevant to express an opinion on question of guilt based on evidence before jury which jury is competent to answer

Australian Mud Company Pty Ltd v Coretell Pty Ltd [2014] FCA 200 (13 March 2014)

PRIVILEGE – admissibility of evidence – patent attorney/client privilege – relationship to legal advice privilege – scope of advice privilege – waiver – admissibility of evidence of communications between patent attorney and client – where discovery and inspection given of documents recording such communications – where no claim for patent attorney/client privilege made in respect of such documents – whether such documents privileged from production – whether production of such documents voluntary – whether other evidence of communications between patent attorney and client privileged and therefore inadmissible by reason of s 200 of the Patents Act 1990 (Cth) and s 118 of the Evidence Act 1995 (Cth) – whether such privilege waived by voluntary disclosure of related documents – scope of waiver

PATENTS – patent attorney/client privilege – relationship to legal advice privilege – scope of advice privilege

GIALLOMBARDO Peter v R [2014] NSWCCA 25 (12 March 2014)

CRIMINAL LAW – appeal against conviction – three counts of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900 – one count of aggravated sexual assault pursuant to s 61J(1) of the Crimes Act 1900 – convicted of four counts of aggravated indecent assault – alleged that the jury verdicts are unreasonable and could not be supported by the evidence – all relevant matters were left open to the jury – upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged – alleged failure by the trial judge to adequately warn the jury that the prosecution case relied wholly on the evidence of the complainant – failure by trial counsel to seek directions – application of Rule 4 of the Criminal Appeal Rules – trial judge gave strong and clear directions as to the importance of not returning a guilty verdict unless the jury was satisfied beyond reasonable doubt of the evidence given by the complainant – jury accepted the complainant as a truthful and reliable witness – benefit of the jury seeing the complainant give evidence – no miscarriage of justice arising from the absence of good character evidence and directions on good character – failure by trial counsel to seek directions on good character – application of Rule 4 of the Criminal Appeal Rules – proper consideration was given by trial counsel to the question of calling good character evidence and a tactical decision was made – appeal dismissed

Northern Inland Council for the Environment Inc v Minister for the Environment [2014] FCA 216 (12 March 2014)

COSTS – circumstances where the applicant was unsuccessful on the substantive application in the proceeding – whether the proceeding constitutes public interest litigation – whether the special circumstances of the proceeding justifies either no order as to costs in the proceeding or an apportionment of such costs

Matthews v SPI Electricity & Ors (Ruling No 36) [2014] VSC 82 (11 March 2014)

EVIDENCE – Recall of second defendant’s witness for cross-examination by plaintiff – Expert evidence – Admissibility – Limitations to cross-examination – Restriction on leading questions – Expertise – Evidence Act 2008 (Vic) ss 42, 79 – Civil Procedure Act 2010 (Vic) s 65H – Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 44.

Love v Roads Corporation [2014] VSCA 30 (6 March 2014)

LAND VALUATION AND COMPENSATION – Compulsory acquisition – Proposal for bypass road – Land used for agricultural purposes – Valuation according to highest and best use of land – Whether market value of land decreased because of bypass proposal – Whether land would otherwise have been used for quarrying and landfill – Planning panel recommended permit restrictions – Whether restrictions arose from bypass proposal – Pointe Gourde principle discussed – Land Acquisition and Compensation Act 1986 (Vic) s 43(1)(a).

APPEAL – Appeal limited to questions of law – Grounds of appeal in substance challenged findings of fact – Whether open to trial judge to make findings in question – Whether judge bound to make different findings – No error of law – Appeal dismissed – Land Acquisition and Compensation Act 1986 (Vic) s 89(2).

PRACTICE AND PROCEDURE – Trial – Final addresses – Directions to parties to file submissions in form of draft judgment – Plaintiff unrepresented – Whether procedurally unfair – No breach of natural justice – Procedure undesirable and not to be followed.

EVIDENCE – Opinion – Planning panel – What recommendations likely to have been made by panel if circumstances different – Proposed evidence from Planning Minister about likely outcome – No specialised knowledge – Opinion evidence inadmissible – Evidence Act 2008 (Vic) ss 76, 79.

Bibby Financial Services Australia Pty Limited v Sharma [2014] NSWCA 37 (5 March 2014)

CONTRACT – Whether employment contract terminated without cause or terminated for cause for serious misconduct – Whether election was made between available grounds for termination – Whether subsequent conduct amounted to a withdrawal of termination – Whether compliance with process for termination for serious misconduct – Whether non-compliance rendered the asserted termination for cause invalid and of no effect – Whether proper grounds available on the facts for termination for serious misconduct – Whether employee had an accrued right which remained even if terminated for cause
EVIDENCE – Standard of Proof – Briginshaw Standard – clear and cogent proof of serious allegations
EVIDENCE – Standard of Proof – s140(2) Evidence Act – gravity of the matters alleged – clear and cogent proof of serious allegations
HUMAN RIGHTS – Discrimination – Sex Discrimination – Sexual Harassment – s28A Sex Discrimination Act – Whether incidents relied upon constituted sexual harassment

Moss v Eagleston [2014] NSWSC 6 (4 March 2014)

TORTS – professional negligence – legal profession – where employed solicitor privately agreed to draft statement of claim after his employer’s retainer had been terminated – advocate’s immunity – whether available where not expressly raised as a defence – scope of solicitor’s duty of care in drafting statement of claim – whether informed by agreement to provide services on a pro bono basis – whether causes of action in defamation and unconscionable or misleading or deceptive conduct ought to have been included in the pleading – whether solicitor undertook to represent plaintiff at the hearing of the pleaded claim – whether plaintiff lost chance of succeeding on pleaded claim – whether plaintiff lost chance of succeeding on causes of action omitted from pleading – value of any lost chance

Matthews v SPI Electricity Pty Ltd & Ors (No. 11) [2014] VSC 65 (4 March 2014)

EVIDENCE – Disclosure of documents — Public interest immunity — Claim of immunity over Cabinet documents — What constitutes Cabinet documents — Relevance and importance to issues in the proceeding — Documents not relevant, or sufficiently relevant, and do not have important bearing on issues in the case — Balancing exercise between interest in non-disclosure and interest in access for litigation — Relevant factors — Evidence Act 2008 (Vic) s 130.

Azar v DPP [2014] NSWSC 132 (28 February 2014)

POLICE – legitimate exercise of powers – searches and detention of persons – whether suspicion was reasonably formed – presence of hire car in area known to police to be connected with drug use and supply, in circumstances where a person got into the passenger seat of a motor vehicle and then got out again within a short period of time – whether Parliament intended power to detain to amount to an arrest

Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118 (25 February 2014)

PROCEDURE – application for vexatious proceedings order under s 8 Vexatious Proceedings Act – 31 proceedings relied upon by Attorney General – whether all vexatious – whether defendant has frequently instituted or conducted vexatious proceedings – whether Vexatious Proceedings Act applies to a person governed by the Felons (Civil Proceedings) Act – discretion to make orders sought – where defendant has appeal against conviction for serious indictable offence pending in the Court of Criminal Appeal – whether appropriate to make an order prohibiting the institution of interlocutory applications in that appeal.

Wade (a pseudonym) v The Queen [2014] VSCA 13 (14 February 2014)

CRIMINAL LAW – Conviction – Armed robbery and attempted armed robbery – Applicant sentenced to a 25 years Supervision Order pursuant to Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) – Indictment – Severance – Prejudice – Whether charges should have been severed – Verdict – Whether verdict unreasonable – Evidence – Whether secondary evidence of contents of lost CCTV recordings should have been excluded under s 137 of Evidence Act 2008 – Pitkin v R [1995] HCA 30; (1995) 130 ALR 35; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; Festa v The Queen (2001) 208 CLR 593, referred to – Evidence Act 2008 s 137.

WORDS AND PHRASES – ‘Document’ – Whether judge erred in treating CCTV footage as document within the meaning of s 48 of Evidence Act 2008 –Taylor v Chief Constable [1986] 1 WLR 1480; R v Sitek [1988] 2 Qd R 284; Smith v The Queen [2001] HCA 50; (2006) 206 CLR 650 referred to.

Borcherdt v Commissioner of Taxation [2014] FCA 56 (11 February 2014)

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – respondents purchased fuel for use in sawmilling and farming businesses – respondents claimed diesel fuel credits and diesel tax credits under Energy Grants (Credits) Scheme 2003 (Cth) and Fuel Tax Act 2006 (Cth) – question as to whether fuel supplier existed – no reliable record kept by respondents of fuel use – Commissioner of Taxation disallowed claims for diesel fuel credits and diesel tax credits – s 14ZZK(b) Taxation Administration Act 1953 (Cth) – Tribunal affirmed decision of Commissioner of Taxation – whether Tribunal bound to take into account conduct of Commissioner of Taxation in regard to obligation to act as a model litigant – whether Tribunal failed to take into account relevant considerations – whether Tribunal took into account considerations it was bound not to take into account – whether Tribunal improperly adopted approach and standard of proof applicable to civil litigation – whether Tribunal required to accept evidence in absence of evidence to the contrary – whether Tribunal erred in application of an administrative penalty – distinction between error of law and error of fact – absence of specific reference to material by Tribunal not conclusive of a failure to take material into account or inadequacy of reasons – reasons of Tribunal to be considered as a whole to ascertain whether relevant issues addressed – Tribunal not required to accept evidence in absence of evidence to contrary – Tribunal not required to consider evidence on standard other than balance of probabilities – Tribunal did not err in respect of administrative penalties

Feldman v Frontlink Pty Ltd [2014] VSCA 27 (3 March 2014)

PRACTICE AND PROCEDURE – Application for leave to amend Notice of Appeal – Application for leave to rely on new evidence – Where proposed amendments do not raise new argument – Where unnecessary to deal with application for leave to rely on new evidence – Leave granted.

PRACTICE AND PROCEDURE – Appeal against Summary Judgment – Whether the defence has a ‘real prospect of success’ – Whether cause of action verified – Whether in the interests of justice to refer the matter to trial – Where unusual features of the transaction – Where additional claims on foot in the proceeding – Appeal allowed – Civil Procedure Act 2010 (Vic) ss 63(1) and 64 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) Order 22 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158.

38 It is neither necessary nor desirable for us to say what evidence would constitute sufficient verification of the quantum of the claim. However, it is in our view clear that the simple verification of the sheet of paper called Schedule 1 is in the circumstances referred to inadequate. There is no supporting documentation. The schedule is dated 1 March 2011 and is clearly derived from other documents, presumably business records, that are not referred to or exhibited. In fact Schedule 1 is not even a business record that may be admissible under the Evidence Act 2008 (Vic). It is more of an aide memoire or note prepared by Mr Mondous. By itself it is of little evidential value. Even business records, more often than not constituting documentary hearsay, are only admissible if certain conditions are met.[8]
[8] Section 69 of the Evidence Act 2008 (Vic).

Video Ezy International Pty Ltd v Sedema Pty Ltd [2014] NSWSC 143 (27 February 2014)

APPEAL FROM LOCAL COURT – whether Magistrate erred in finding a franchise agreement had come to an end – whether the franchisor breached the restrictive covenant not to compete with the franchisee in the exclusive territory – whether competing “within” the territory of the franchise is the physical territory or includes products purchased over the internet – whether the franchisor had an obligation to act in good faith to the franchisee – whether the conduct of the franchisor was unconscionable within the meaning of the Trade Practices Act 1975 (Cth) and the Competition and Consumer Act 2010 (Cth) – whether related entities of the franchisor were liable as accessories to the unconscionable conduct of the franchisor;
EVIDENCE – admissibility of evidence on the ground that the evidence was opinion – evidence properly admitted

Ashby v Slipper [2014] FCAFC 15 (27 February 2014)

PRACTICE AND PROCEDURE – application for leave to appeal from decision to dismiss proceedings as an abuse of process – leave to appeal required – principles relating to appellate review – challenge to factual bases upon which proceedings classified as an abuse of process – whether or not improper collateral purpose for bringing proceeding – adverse inferences drawn by primary judge – whether solicitor has standing to appeal in relation to adverse findings made as to the conduct of a proceeding – whether the Court has duty to act in relation to a perceived abuse of process – inferences to be drawn from a failure of a witness to depose to matters in issue – application of the Ferrcom principle.

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 59 (27 February 2014)

EVIDENCE – Admissibility – Tender of documents produced in response to subpoena – Relevance – Authenticity of a document – Hearsay exception – Whether business records – Discretionary exclusion rule – Whether unfair prejudice substantially outweighs probative value – Evidence Act 2008 (Vic) ss 48(1)(e), 55, 56, 58, 59, 69, 135.

Wang v Farkas [2014] NSWCA 29 (26 February 2014)

ADMINISTRATIVE LAW – judicial review – jurisdictional error – power of magistrate to award costs for time spent by litigant in person in prosecuting proceedings for apprehended violence order – power to award costs against defendants jointly and severally

COSTS – criminal – power to award – whether power to order costs for time of litigant in person – definition of “professional costs” in Criminal Procedure Act 1986 (NSW) – legal practitioner appearing for himself – application of Chorley – relevance of Chorley in applying Criminal Procedure Act 1986 (NSW)

PROCEDURE – criminal – costs – whether power to make defendants jointly and severally liable for costs of proceedings

WORDS AND PHRASES – “professional costs” – Criminal Procedure Act 1986 (NSW), s 211

Wingfoot Australia Partner Pty Ltd & Anor v Jovevski [2014] VSCA 21 (26 February 2014)

ACCIDENT COMPENSATION – Appeal – Serious injury application – Claimed psychiatric injury arising out of aggravation of shoulder pain – Causation of psychiatric injury where physical consequences of aggravation not permanent – Factual basis of expert evidence disputed on appeal – Adequacy of reasons – New case advanced on appeal – Civil Procedure Act 2010.

[22] Evidence Act 2008 s 55(1) and definition of ‘probative value’ of evidence in the Dictionary to the Evidence Act 2008 .

Gillett v Nelson [2014] NSWSC 115 (25 February 2014)

EVIDENCE – client legal privilege – loss of privilege – whether for purposes of s121(1) Evidence Act 1995 deceased person is “a client or party who has died”

EVIDENCE – client legal privilege – loss of privilege – whether for purposes of s122(2) Evidence Act 1995 client or party acted inconsistently with objecting to disclosure of draft legal advice – advice referred to in evidence – whether for the purposes of s122(3) Evidence Act 1995 client or party knowingly and voluntarily disclosed the substance of draft legal advice – content of advice not referred to

Matthews v SPI Electricity Pty Ltd & Ors (No 10) [2014] VSC 44 (21 February 2014)

PRACTICE AND PROCEDURE — Subpoenas to independent experts — Inspection of documents — Client legal privilege — Express waiver of privilege in expert reports by delivery — Documentary communications between solicitor and independent experts — Draft expert reports submitted to plaintiff’s solicitors for the provision of professional legal services relating to the current group proceeding — Whether waiver of privilege in consequence of delivery of expert’s final reports — Inconsistency — Whether documents influence or underpin expert reports — ss 119, 122 and 131A of the Evidence Act 2008 (Vic) — Whether resultant waiver of privilege — No waiver — Maintenance of the privilege not inconsistent with deployment of the final report in the proceeding.

Legal Practitioner v Council of The Law Society of The Australian Capital Territory [2014] ACTSC 13 (21 February 2014)

APPEAL AND NEW TRIAL – In General and Right of Appeal – Appeal from the ACT Civil and Administrative Tribunal – Appeal referred to Supreme Court from the ACT Civil and Administrative Tribunal

APPEAL AND NEW TRIAL – In General and Right of Appeal – Legal Practitioner – Misleading and deceptive conduct constituting professional misconduct – Appeal against finding of professional misconduct – The fact that the Court was misled only for a short period is not an answer to a complaint of misleading the Court – Practitioner attempted to knowingly mislead the Court into thinking he had been instructed in a matter where he would have known he did not have instructions – Appeal dismissed

APPEAL AND NEW TRIAL – Excessive or Inadequate Penalty – Whether removal from the Roll is a harsh and excessive penalty – Whether the ACT Civil and Administrative Tribunal should have imposed a separate penalty for each finding of professional misconduct – No requirement for the ACT Civil and Administrative Tribunal should impose a separate penalty on each ground of the complaint that it upholds – There was one complaint with multiple particulars – One penalty can be imposed where there are particulars – Removal from Roll required.

APPEAL AND NEW TRIAL – Excessive or Inadequate Penalty – Whether removal from the Roll is a harsh and excessive penalty – Whether mitigating circumstances were sufficiently taken into account – Inexperience does not ameliorate the seriousness of a practitioner’s lack of understanding about a lawyer’s duties – Dishonesty is not a defect related to inexperience – In this instance the lapse showed a pattern of behaviour in that the practitioner attempted to cover his behaviour by lying to the Law Society

EVIDENCE – Generally – Disciplinary proceedings – Burden of Proof – Civil burden of proof to apply to the proceedings

EVIDENCE – Civil and Administrative Tribunal entitled to draw Jones v Dunkel inference from Practitioner not giving evidence in proceedings against him

PROFESSIONS AND TRADES – Lawyers – Disciplinary proceedings – Duties of participation by lawyer

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

O’Shane v Harbour Radio Pty Ltd [2014] NSWSC 93 (20 February 2014)

DEFAMATION- application to set aside subpoena addressed to Judicial Commission of NSW – documents regarding complaints against judicial officer – Judicial Officers Act 1986 (NSW) – no blanket exemption from production of documents concerning judicial officers – hearsay material indicating complaints against plaintiff – defence of substantial truth – pleading of aggravated damages by reference to falsity of imputations – whether subpoenaed documents have legitimate forensic purpose – “fishing expedition” – “on the cards” test – Alister v R (1984) 154 CLR 404 – class of documents sought by subpoena too wide – subpoena set aside in part

Helenic Pty Ltd as trustee of the Mastrantonis Family Trust v Retail Adventures Pty Ltd (Administrators Appointed) [2013] NSWSC 1973 (23 December 2013)

DEED OF COMPANY ARRANGEMENT – whether resolution of creditors executing deed of company arrangement be set aside – whether the proposed resolution of creditors unreasonably prejudices the interests of creditors – whether company should be wound up – matters relevant to the making of a winding up order.

97. After Ms Moss was given a certificate under s 128 of the Evidence Act , 1995, she gave evidence in cross-examination that in my opinion was a clear acceptance that RAPL was unable to pay its debts as and when they fell due over the whole of the period following 1 July 2011.

Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd [No. 1] [2014] ACTSC 11 (18 February 2014)

EVIDENCE – Judicial Discretion to admit or exclude evidence – parol evidence rule – where an affidavit contained statements about conversations between parties prior to entering into a lease – party sought to admit evidence as showing the aim and object of a particular clause – whether evidence of negotiations admissible under any of the Codelfa exceptions – challenged material reflective of intentions and expectations – ruled inadmissible.

Forty Two International Pty Limited v Barnes [2014] FCA 85 (18 February 2014)

CONTRACT – whether respondents breached implied terms in contract – implied terms attaching to express terms – implied term to disclose matters relevant to express term – loss of opportunity – interpretation and application of release and entire agreement clauses where cause of action concealed by party seeking to rely on them

TRADE PRACTICES – whether respondents engaged in misleading or deceptive conduct through non-disclosure – misleading or deceptive conduct by silence – application of s 42 of the Fair Trading Act 1987 (NSW) – loss of opportunity

DUTY TO DISCLOSE – whether there is a duty under the general law requiring directors to disclose material personal interests relating to the interests of the company – whether there is a duty under the general law requiring directors not to place their own personal interests in actual or potential conflict with interests of company – whether respondents breached these general law duties

CORPORATIONS – whether duties under ss 182 and 191 of Corporations Act 2001 (Cth) were breached by non-disclosure of personal interest in a transaction by directors of company

DAMAGES – assessment of damages for loss of opportunity – quantifying damages

EVIDENCE – discussion of principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 – application of ss 69, 135, 183 of the Evidence Act 1995 (Cth)

CROSS CLAIM – whether the applicants made misleading or deceptive representations – application of s 52 of the Trade Practices Act 1974 (Cth)

Kovarfi v BMT & Associates Pty Ltd [2014] NSWSC 89 (14 February 2014)

I therefore think that the material objected to is admissible, first because s 75 of the Evidence Act 1995 (NSW) provides an exception to the hearsay rule in interlocutory proceedings; and secondly, evidence relied upon by Mrs Kovarfi is relevant because it tends to prove, if I accept it, that there is a triable issue in relation to the argument Mrs Kovarfi makes based upon s 52 Limitation Act 1969.

Kong v Kang & Ors [2014] VSC 28 (14 February 2014)

PRACTICE & PROCEDURE — Summary Judgment — Test for – ss 61, 63 Civil Procedure Act 2010 — No real prospect of success — Discretion under s 64 Civil Procedure Act 2010 —

Rule 22.02 Supreme Court (General Civil Procedure) Rules 2005.

EVIDENCE — Without prejudice privilege — Whether letter written by solicitor subject to privilege — Whether parties in dispute at time of letter — Evidence Act 2008 (Vic), s 131.

Milne v The Queen [2014] HCA 4 (14 February 2014)

Criminal law – Money laundering – Criminal offence under s 400.3(1) of Criminal Code (Cth) to deal with property intending it will become “instrument of crime” – Appellant dealt with shares intending not to declare resulting capital gain – Whether shares “instrument of crime”.

Words and phrases – “instrument of crime”, “money laundering”, “used in the commission”, “used to facilitate”.

Criminal Code (Cth), ss 134.2, 400.1(1), 400.2(1), 400.3(1).

Saw Wah v The Queen [2014] VSCA 7 (14 February 2014)

CRIMINAL LAW — Conviction — Sexual offending against child under 16 — Applicant in position to lead evidence of good character — No prior convictions — Applicant had, however, been convicted of traffic offences subsequent to alleged sexual offending — Traffic offences included careless driving, driving whilst under the influence of alcohol and leaving scene of collision — Traffic offences completely irrelevant — Prosecutor foreshadowed that if evidence of good character led details of traffic offending would be brought out — Trial judge ruled that such evidence could be led in rebuttal of evidence of good character — Ruling erroneous — s 110 Evidence Act 2008 (Vic) discussed — Leave granted — Appeal allowed.

Morris v Smoel [2014] VSC 31 (14 February 2014)

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by widow and three adult children — Widow effectively left a life interest in the estate with the residue left to the adult daughters of the deceased on the death of the widow — Adult son of the deceased left a small legacy — Claim by widow of the deceased — Whether the deceased had a responsibility to make further provision for the widow — Competing claims against the estate of the deceased — Estate assets substantially depleted as a result of litigation resulting from the death of the deceased — Widow’s claim dismissed

BANKRUPTCY — Death of the widow after trial and before judgment — Estate of the widow insolvent — Representative of estate of the widow to make application for administration of plaintiff’s estate pursuant to s 247 of the Bankruptcy Act 1966 (Cth)

Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 17) and 13 related matters [2014] NSWSC 55 (13 February 2014)

TRADE PRACTICES – misleading or deceptive conduct – the operation of the Trade Practices Act 1974 (Cth) (TPA) ss 51A, 52 and 59(2) – the operation of the Fair Trading Act 1987 (NSW) (FTA) ss 41, 42 and s 54(2) – the relevance of a disclaimer in determining whether conduct was misleading or deceptive – the circumstances in which silence can be misleading or deceptive – the making of implied representations of fact – whether, on the facts of this case, the alleged implied representations were drawn by the plaintiffs – what constitutes a future matter within the meaning of the TPA s 51A and the FTA s 41 – the burden of proof under the TPA s 51A and the FTA s 41 – whether the defendant had reasonable grounds for the representations concerning a future matter within the meaning of the TPA s 51A and the FTA s 41 – the limitation period on a claim for personal injury for misleading or deceptive conduct – the application of the TPA ss 82(2) and 87E
TRADE PRACTICES – unconscionability – the operation of the TPA ss 51AC – the effect of the TPA s 51AA(2) on a claim under s 51AA in circumstances where a claim is made under s 51AC – what constitutes unconscionable conduct within the meaning of the TPA s 51AC – the operation of the Franchising Code of Conduct cl 16(1) – the limitation period on a claim for unconscionable conduct – the application of the TPA s 87F
TORTS – negligent misstatement – whether the defendant had a duty to take reasonable care in making representations to potential franchisees – whether the defendant had a duty of care not to express opinions unless it had reasonable grounds for doing so – whether the defendant breached that duty of care
TORTS – negligent infliction of psychiatric injury – whether the defendant owed a duty of care to prevent mental illness flowing from economic loss in circumstances where the parties were in a commercial relationship – whether, in the circumstances of the case, the defendant ought to have reasonably foreseen that a person of normal fortitude would suffer a recognised psychiatric illness – whether the defendant breached that duty of care – whether the relevant plaintiffs suffered a psychiatric illness – whether that illness was caused by the defendant’s conduct
LIMITATION OF ACTIONS – whether the claims for personal injuries are statute barred by operation of the Limitation Act 1969 (NSW) s 50C – whether an order should be made under the Civil Procedure Act 2005 (NSW) s 65(3)
EMPLOYMENT LAW – the operation of the Industrial Relations Act 1996 s 106 (IR Act) – whether the relevant plaintiffs performed work in an industry – whether the contracts or arrangements between the parties were ones whereby that work was performed – whether the contracts or arrangements were “unfair, harsh or unconscionable” within the meaning of the IR Act s 106 – whether there was a “services contract”, within the meaning of the Independent Contractors Act 2006 (Cth) s 5 between the relevant plaintiffs and the defendant – whether the relevant plaintiffs entered into a contract for services as independent contractors by which they performed work
CONTRACTS – the operation of the Contracts Review Act 1980 (NSW) s 7
PRACTICE AND PROCEDURE – the pleading of multiple express and implied representations – the conduct of complex litigation generally
EVIDENCE – the difficulties of proof encountered in a case based on oral representations – the preparation of affidavits and pleadings – whether evidence from one plaintiff can corroborate evidence given by other plaintiffs – the operation of the rule from Browne v Dunn (1893) 6 R 67 (HL) in complex proceedings – the credit of witnesses generally

R v Gittany (No 5) [2014] NSWSC 49 (11 February 2014)

CRIME – sentence – murder – intention to kill formed quickly and in a state of rage – no planning or premeditation – no remorse – impossibility of assessing likelihood of re-offending or prospects of rehabilitation in light of offender’s refusal to accept responsibility for his offending – evidence of good character – whether of any weight where referees blind to or ignorant of any wrongdoing by offender – whether high level of media attention a relevant mitigating factor