ADMINISTRATIVE LAW- apprehension of bias- application for disqualification of trial judge- evidentiary rulings- exchanges between bar and bench
EVIDENCE- admissibility of expert report- whether expert can opine as to safety of product without testing- expert can reason as to qualities based on experience- whether reasons sufficient to support conclusions- whether expert biased- opinion based on experience
DEFAMATION- plaintiff’s entitlement to “nail the lie”- use of evidence depends on admissibility- relevant to damages- giving of evidence itself a remedy
EVIDENCE- construction of s 76, s 78 and s 79 Evidence Act 1995 – whether unqualified plaintiff’s evidence of falsity of matter of expert opinion is admissible to prove its falsity or is limited to the plaintiff’s belief
EVIDENCE – whether letter written in connection with an attempt to negotiate a settlement of the dispute – held to be inadmissible – no point of general principle.
COMPETITION LAW – consideration of whether a corporation in entering into a contract for the acquisition of flyash from a power station in South East Queensland contravened s 46 of the Trade Practices Act 1974 (Cth) – consideration of the features and sources of the corporation’s contended market power – consideration of whether uncertainty in the renewal of the corporation’s principal contract, due to public sector tendering processes, had the effect of extinguishing any substantial degree of market power enjoyed by the company prior to the commencement of the tender process – consideration of whether in entering into the contract the corporation took advantage of any subsisting market power or whether its conduct was referable to legitimate business reasons – consideration of the notion of legitimate business reasons – consideration of whether the contended conduct was conduct a corporation in a workably competitive market could have engaged in – consideration of the purposes actuating the conduct of particular individuals – consideration of the relevant markets – consideration of the boundaries of the upstream and downstream markets – consideration of the scope and field of rivalry – consideration of whether the performance of a contractual obligation involved taking advantage of market power – consideration of the features of taking advantage of market power
COMPETITION LAW – consideration of whether particular contracts for the acquisition of flyash from South East Queensland power stations contained provisions included for the subjective purpose of substantially lessening competition in a relevant market – consideration of whether contracts were made including provisions that had the effect of substantially lessening competition or would be likely to have the effect of substantially lessening competition – consideration of the with and without test – consideration of the Jones v Dunkel principles and whether inferences ought to be drawn from the failure of the respondent corporations to call particular witnesses – consideration of the expert evidence – consideration of the relationship between the assumptions upon which expert opinion was based and the relationship between those assumptions and the opinions expressed – consideration of a substantial body of evidence by engaged market participants going to the transactional features of contestability
Procedure – Inferior courts – Tasmania – Local courts – Appeal and new trial – Appeal to Supreme Court – Generally – Whether magistrate erred in law or fact – Action for breach of contract – Duties of magistrate in respect of unrepresented litigant – Issue estoppel – Whether breach causative of damage.
PRACTICE AND PROCEDURE – application to rely on evidence filed out of time – nature and complexity of evidence – expansion of case – amendment of pleadings – imminent commencement of hearing – case management principles
EVIDENCE – application to rely on evidence of negotiations – whether evidence is excluded under s 131(1) – whether evidence is admissible under s 131(2) exceptions
EVIDENCE – exclusion of evidence under s 135 – probative value of evidence outweighed by s 135 factors
ADMINISTRATIVE LAW – judicial review – Industrial Court – decision not to submit question of law – no discretion to decline to submit question of law to Full Bench – whether question put a question of law – whether Supreme Court has jurisdiction – requirement of jurisdictional error – appeal to Full Bench available – discretion to decline relief
CRIMINAL LAW – appeal by submission of question of law – prosecution under Occupational Health and Safety Act 2000 (NSW) – claim of abuse of process by prosecutor – production of documents – claim for client legal privilege rejected – Criminal Appeal Act 1912 (NSW), s 5AE – Industrial Relations Act 1996 (NSW), s 196
EVIDENCE – client legal privilege – imputed waiver by statement of reliance on legal advice – whether substance of legal advice disclosed – Evidence Act 1995 (NSW), s 122
WORDS AND PHRASES – “question of law arising at or in reference to the proceedings” – Criminal Appeal act 1912 (NSW), s 5AE
CRIMINAL LAW – appeal against conviction – two counts of supply in contravention of the Drug Misuse and Trafficking Act 1985.
CONSTITUTIONAL LAW – inconsistency between State and Commonwealth laws – whether s 25 of the Drug Misuse and Trafficking Act 1985 is inconsistent with s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – gravity of impropriety or contravention – evidence gathered pursuant to authority under the Law Enforcement (Controlled Operations) Act 1997 – authority subsequently held to be invalid.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge correctly assessed the overall risk of harm of the controlled operation to the community.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge erred in considering the defence of reasonable excuse in relation to s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – whether desirability of admitting the illegally or improperly obtained evidence outweighed the undesirability.
EVIDENCE – witness – cross-examination on voir dire – privilege – self-incrimination – whether answers would tend to prove an offence against a law of a foreign country – proof of foreign law – whether the interests of justice required that the evidence be given over objection.
CRIMINAL LAW – sentencing – parity principle.
CRIMINAL LAW – sexual offences – validity of indictment – statutory provisions changed during period covered by indictment – not known when during the period the offences were committed – whether appellant charged with offences known to law – whether indictment bad for duplicity
CRIMINAL LAW – sexual offences – judge alone trial – context evidence – whether complainant’s errors and inconsistencies in versions of events should have led to rejection of her evidence
CRIMINAL LAW – sentencing – sexual offences – application of Di Simoni  HCA 31; 147 CLR 383 principle
CRIMINAL LAW – conviction appeal – supply of prohibited drug – credibility evidence – coincidence evidence
CRIMINAL LAW – Crown appeal against ruling excluding coincidence evidence – Crown appeal against interlocutory judgment severing counts on indictment – whether ruling eliminated or substantially weakened the prosecution case – Criminal Appeal Act 1912, 2 5F.
EVIDENCE – admissibility – coincidence evidence – test – relevance – significant probative value – Evidence Act 1995 , ss 55 and 98.
CRIMINAL LAW — Appeal — Conviction — Sexual penetration of child under 16, indecent act with child under 16 — Two complainants — Whether evidence crossadmissible — Whether tendency evidence — Whether probative value substantially outweighed any prejudicial effect it might have — Acquittal on two of four counts relating to first complainant — Whether verdicts inconsistent — Appellant cross-examined about whether complainants were lying — Withdrawal and apology by prosecutor — Directions by judge — Jury discharge application refused — Whether miscarriage of justice — Appeal dismissed — Evidence Act 2008 (Vic) ss 97, 101.
EVIDENCE — Tendency evidence — Sexual offences — Evidence of two complainants — Lapse of time between incidents — Whether evidence of one complainant probative of tendency — Whether probative value substantially outweighed any prejudicial effect — R H B v The Queen  VSCA 295; G B F v The Queen  VSCA 135 applied — Evidence Act 2008 (Vic) ss 97, 101.
APPEAL AND NEW TRIAL – appeal against conviction – where evidence of relationship between complainant and appellant admitted at trial – whether evidence relevant to facts in issue – whether evidence involved tendency reasoning
http://www.austlii.edu.au/au/cases/vic/VSC/2013/601.html [Correct link]
NEGLIGENCE – Duty of care – Breach of duty – Crown – Failure by servants or agents of State government to exercise statutory powers – Position of control over industry – Public duty – Fisheries Act 1995, ss 7, 9, 10, 11A, 28, 34, 42, 49, 51, 53, 142, 148, 150, 151 and 152 – Livestock Disease Control Act 1994, ss 7, 8, 13, 15, 21, 24, 26, 27, 110, 113, 115 and 135 – Wrongs Act 1958, ss 48, 49, 51, 52, 83 and 85.
ADMINISTRATIVE LAW – powers of Australian Communications and Media Authority (“ACMA”) to regulate commercial radio broadcasting licence holders – preliminary investigation report concludes that applicant contravened Surveillance Devices Act 2007 (NSW) and therefore breached a condition of licence under Schedule 2 of the Broadcasting Services Act 1992 (Cth) – whether ACMA can so conclude before competent Court adjudicates the issue – ACMA’s role to regulate the conduct of licensees including conducting investigations – whether ACMA’s findings interfere with the administration of justice in a criminal proceeding where no criminal proceeding has commenced – ACMA’s finding not determinative on question of criminal guilt.
CONSTITUTIONAL LAW – whether ACMA’s conclusion of breach of licence condition involves exercise of judicial power in conflict with Ch III of the Constitution
Practice and procedure – Discovery – Parties to commercial dispute ordered to give general discovery – Documents subject to client legal privilege mistakenly listed as non-privileged in appellants’ Lists of Documents – Privileged documents inadvertently disclosed to respondents’ solicitors – Whether Supreme Court had power to permit amendment of Lists of Documents – Whether Supreme Court had power to order respondents’ solicitors to return documents.
Confidential information – Whether correct basis of jurisdiction for court to order return of inadvertently disclosed documents.
Client legal privilege – Whether privilege had been waived – Whether appellants’ actions inconsistent with maintenance of claim to privilege.
Words and phrases – “case management”, “client legal privilege”, “discovery”, “inadvertent disclosure”, “waiver”.
FAMILY LAW – Whether transfer of property pursuant to Family Court consent orders liable to be set aside as fraud on creditors – Conveyancing Act 1919 (NSW), s37A
FAMILY LAW – Defendants did not disclose to Family Court existence of plaintiffs’ claim against first defendant – Whether there was a miscarriage of justice – Family Law Act 1975 (Cth), ss79(10), 79A(1)
CONTRACT – Collateral Contract – Validity – Tripartite Collateral Contract – Whether consistency between collateral and principal agreements required – Finding of collateral contract requires that a representation made as an inducement to enter the principal contract to be intended as a promise
CONTRACT – Collateral Contract – Contract Collateral to a Lease does not necessarily have to be in, or evidenced by, writing notwithstanding a statutory requirement that the Lease be in, or evidenced by, writing.
CORPORATIONS – statutory demands – application to set aside a statutory demand under ss 459G(1), 459H(1)(a), 459J(1)(b) Corporations Act 2001 (Cth) – whether genuine dispute established – whether sufficient basis for dispute over receivers’ fees to constitute a ‘genuine dispute’ – application of Graywinter principle – whether the court should exercise its discretion to vary the demand – whether the statutory demand should be set aside for some other reason under s 459J Corporations Act 2001 (Cth) – whether Graywinter principle applies to restrict matters that can be relied upon to form the basis of ‘some other reason’ – whether error in supporting affidavit is such that the demand should be set aside for ‘some other reason’.
APPEAL – criminal law – conviction – controlled operation pursuant to Law Enforcement (Controlled Operations) Act 1997 – admissibility of evidence – disclosure of evidence.
CRIMINAL LAW – appeal against conviction – sexual assault – historical sexual assault – husband rapes wife – issue of consent – delay in complaint – whether significant forensic disadvantage – lack of medical records of the complainant in documenting the complaint – admissions of husband to counsellor and the police – effect of delay rather than length important – directions – counsel must apply with details of forensic disadvantage alleged
BANKRUPTCY AND INSOLVENCY – cross-border insolvency – UNCITRAL Model Law on Cross-Border Insolvency (Model Law) – Cross-Border Insolvency Act 2008 (Cth) – application for recognition of proceedings in British Virgin Islands as a “foreign proceeding” under the Model Law given force of law in Australia by section 6 of the Cross-Border Insolvency Act 2008 (Cth) –
application for summons of the examination of a former company director of now insolvent corporation pursuant to Article 21(1)(d) of the Model Law and section 581 and section 596B of the Corporations Act 2001 (Cth), each as applied by section 8 of the Cross-Border Insolvency Act 2008 (Cth)
EVIDENCE – admissibility of witness statement to police – whether evidence about the temperament of the horse known as “Dargo” should be excluded pursuant to s135 Evidence Act 1995 (NSW)
CRIMINAL LAW – evidence – tendency evidence – evidence proposed to be adduced by accused concerning behaviour of deceased child’s mother
INDUSTRIAL LAW – alleged contraventions of Fair Work Act 2009 (Cth) arising from payment of Filipino nationals working on rigs in Australia’s Exclusive Economic Zone – whether s 33(1)(b) Fair Work Act 2009 (Cth) should be read down having regard to international law – whether reg 1.15E Fair Work Regulations 2009 (Cth) should be read down or is ultra vires having regard to international law – whether rigs “fixed platforms” under Fair Work Act 2009 (Cth) – whether rigs “majority Australian-crewed ships” under Fair Work Regulations 2009 (Cth) – whether relevant award covered first respondent – whether, if first respondent contravened Fair Work Act 2009 (Cth), other respondents knowingly involved in contraventions
EVIDENCE – Certificate under s 128(5) of the Evidence Act 1995 (Cth) – Scope of evidence to be included – Whether sworn affidavit is indirect evidence for the purposes of Evidence Act 1995 (Cth) s 128(7)(b)
EVIDENCE – Documentary evidence – Distinction between oral testimony and affidavit evidence
APPEAL FROM LOCAL COURT- Appeal against final order by Magistrate that a non-intimate forensic procedure be performed – whether Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act in the absence of crime scene DNA – whether Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act – whether Magistrate erred by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act
MORTGAGES – claim for possession of land following alleged mortgage default – defendants are husband and wife – mortgage broker acting for defendants – defendants executed mortgage and loan documentation – split-facility loan (Loans A, B and C) – Loan C remained in an undrawn account – written direction given to lender to disburse Loan C funds – funds paid into account of mortgage broker – defendants deny that direction to disburse Loan C funds executed by them or at their direction – whether husband and/or wife signed direction – whether defendants liable for disbursed Loan C funds – not established that husband or wife signed direction – whether defendants ratified the direction through their later conduct – held defendants did not ratify the direction – whether defendants were required to repay entire sum specified in mortgage (including Loan C funds) as mortgage contained a specific covenant to repay – construction of mortgage – held defendants not required to pay back entire sum – defendants not liable for Loan C funds drawn down without their authority – plaintiff’s claim based upon failure to repay Loan C funds rejected
EVIDENCE – Whether evidence was obtained illegally or improperly – Discretion to admit evidence where desirability to admit outweighs undesirability to admit – Evidence obtained for the purpose of defence of litigation – Evidence obtained by improper or illegal conduct – Assessment of probative value of evidence – Probative value high, desirability of admitting outweighs desirability of excluding – Evidence Act 2008 (Vic) ss 135, 137, 138.
PRACTICE AND PROCEDURE – Obligations of parties and their solicitors under Part 2.3 of the Civil Procedure Act 2010 (Vic) – Obligation to act honestly – Obligation to cooperate with the parties and the Court – Obligation not to engage in conduct which is misleading or deceptive – Obligation not to engage in conduct which is likely to mislead or deceive – Obligation to use reasonable endeavours to narrow the issues – Failure of Applicant and Defendant to narrow the issues – Failure of Applicant and Defendant to cooperate – Failure of Defendant not to act in a way that was likely to mislead – Civil Procedure Act 2010 (Vic) ss 16, 17, 20, 21, 23.
STATUTORY INTERPRETATION – Scope of statutory authority of Electricity Corporation to enter private property – Consent of landowners to Electricity Corporation entering private property – Electricity Industry Act 2000 (Vic) ss 1, 20, 21, 85, 88, 93, 95.
EVIDENCE – tender in re-examination of document cross examined upon – no question of principle.
WORKERS COMPENSATION – appeal from decision of Presidential member of the Workers Compensation Commission upon appeal from a decision of the Commission constituted by an arbitrator – appeal to the Court of Appeal is available to a party aggrieved by a decision of the Presidential member in point of law – Presidential member declined to admit further evidence – whether decision that non-admission would not occasion substantial injustice entailed error of law – whether reliance on a particular medical report entailed error of law.
EVIDENCE – expert evidence – early determination – application to reinstate rejected evidence – need to reconsider earlier judgment – power to re-open and re-hear – whether misapprehension of fact or law
PROCEDURE – application to serve further expert reports after trial well advanced – whether a re-casting of the case – case management principles – no explanation for delay in serving reports
DAMAGES – loss of chance – absence of evidence of value of chance – whether court must do its best to assess damages
ADMINISTRATIVE LAW – Application for leave to appeal on question of law against decision of judge of Trial Division affirming decision of Victorian Civil and Administrative Tribunal, which in turn affirmed decision of Racing Appeals and Disciplinary Board – Whether breached rules 64G and 175 of the Australian Rules of Racing by attempting or conspiring to stomach-tube horse prior to race, or engaging in conduct that could have led to stomach-tubing – Whether judge of Trial Division erred in concluding it was open to the Tribunal to find the breaches made out – Rule 64G creates an instrument only offence – Whether judge of Trial Division erred in finding the reasons of the Tribunal adequate in respect of expert veterinary evidence – Application for leave to appeal dismissed.
EVIDENCE LAW – Application of Briginshaw to Victorian Civil and Administrative Tribunal – Victorian Civil and Administrative Tribunal Act 1998 ss 97, 98 – Evidence Act 2008 s 140 – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd  HCA 66; (1992) 67 ALJR 170 – Greyhound Racing Authority v Bragg  NSWCA 388.
EVIDENCE – legal professional privilege – communications involving third parties – communications involving in-house lawyers – waiver
COSTS – offer of compromise – whether offer invalid for uncertainty – indemnity cost consequences – discretion to “order otherwise” – whether court should “order otherwise” – whether to apportion costs – whether to award interest on costs.
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – appeal against convictions – multiple offences of acts of indecency and sexual intercourse with a young person – whether jury adequately directed – impact of DNA evidence – failure to direct about opportunity to commit offences – inadequate redirection on significance of complaint evidence – absence of directions about significance of claim of sexual intercourse while appellant asleep or intoxicated – appeal upheld and new trial ordered.
APPEAL – appeal against refusal to stay prosecution – Human Rights Act 2004 (ACT), s 22(2) – right to be tried without unreasonable delay – identification of point from which delay to be assessed – long delay between alleged offences and charging of appellant – appellant unaware of possible proceedings – information sworn but not acted on for some years – earliest point is when accused person arrested or served with summons – delay before appellant charged irrelevant in assessing unreasonable delay – significance of prejudice in assessing whether delay unreasonable – appeal dismissed.
CORPORATIONS – winding up – statutory demand – application to set aside – Corporations Act 2001, ss 459G, 459H – whether evidence sufficient to establish offsetting claim – whether evidence sufficient to establish quantum of offsetting claim
[This headnote is not to be read as part of the judgment]
The respondent, Analysis & Technology Australia Pty Limited, served a statutory demand on the applicant, Britten-Norman Pty Limited, pursuant to the Corporations Act 2001 (Cth), s 459E. The applicant applied to set aside the statutory demand pursuant to the Corporations Act 2001 (Cth), ss 459H(1)(b), 459J(1)(a) and 459J(1)(b). The primary judge dismissed the application.
The applicant sought leave to appeal from that dismissal. The summons for leave to appeal and the appeal were heard concurrently. The application raised two issues for determination:
Whether the evidence was sufficient to satisfy the Court that there was an offsetting claim pursuant to the Corporations Act, s 459H(1)(b); and
Whether, pursuant to the Corporations Act, s 459H(2)-(3) the evidence was sufficient to satisfy the Court that the amount of the offsetting claim was greater than the amount of the statutory claim less the minimum statutory amount of $2,000.
The Court granted leave to appeal and allowed the appeal.
Held by the Court (Beazley P, Meagher and Gleeson JJA):
In respect of (1):
Pursuant to the Corporations Act 2001, s 459G there must be evidence that satisfies the court that there is “a serious question to be tried”, or “an issue deserving of a hearing” or a “plausible contention requiring investigation” of the existence of either a dispute as to the debt or an offsetting claim under the Corporations Act 2001, s 459H: .
Principal legislation and cases considered: Corporations Act 2001, ss 459G, 459H; Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; Chase Manhattan Bank Australia Limited v Oscty Pty Limited  FCA 1208; 17 ACSR 128; Scanhill Pty Ltd v Century 21 Australasia Pty Ltd  FCA 618; (1993) 47 FCR 451.
Evidence sufficient to satisfy this test need not conclusively prove the claim or otherwise be incontrovertible or substantially non-contestable: . The existence of evidence that casts doubt on the contention that there is a disputed debt or an offsetting claim is not the basis for a rejection of an application under the Corporations Act, s 459H: . The evidence does not have to be supported by contemporaneous documentation: .
Principal legislation and cases considered: Corporations Act 2001, ss 459G, 459H; Evidence Act 1995 , s 55; Corporations Rules, r 2.4(1); Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd  VSCA 70; 66 ACSR 67; Infratel Networks Pty Ltd v Gundry’s Telco & Rigging Pty Ltd  NSWCA 365; 297 ALR 372.
The primary judge erred because when the evidence is considered as a whole, having regard to the absence of challenge to aspects of it, the evidence established a plausible contention requiring investigation: .
In respect of (2):
The evidence before the primary judge was sufficient to establish that the applicant had an offsetting claim for the purpose of the Corporations Act, s 459H(1)(b) for misleading or deceptive conduct (and for that matter in contract) which was greater than the statutory claim less the minimum statutory amount of $2,000.
PRACTICE AND PROCEDURE – Application to set aside subpoena – Application not determined on merits – Whether justification to depart from usual rule as to costs
CRIMINAL LAW – APPEAL – application for extension of time – where delay of more than six years – approach to be taken in determining application for extension of time – necessity for the applicant to adduce evidence which fully explains the delay
CRIMINAL LAW – APPEAL – incompetence of counsel – principles to be applied
CRIMINAL LAW – SENTENCE – where some offences for which appellant convicted had been repealed – approach to be taken in sentencing for such offences – whether sentence manifestly excessive
ACCIDENT COMPENSATION – Evidence – Claim by plaintiff for indemnity for compensation payments to injured worker – Plaintiff alleging that defendant liable for worker’s injury – Admissibility details of settlement by defendant of worker’s common law proceeding – Whether relevant – Whether probative value outweighed by risk of undue waste of court’s fine – Evidence Act 2008 (Vic) s 135(c).
WILLS, PROBATE AND ADMINISTRATION – Testamentary instruments – Execution – Circumstantial suspicions raised as to testator’s knowledge and approval – Onus of proof – Explanations insufficient to dispel suspicions
TORTS – negligence – proof of negligence – whether trial judge failed to have regard to relevant evidence – whether affected by delay
TORTS – negligence – proof of negligence – Evidence Act 1995 (NSW), s 140(1) – proof on the balance of probabilities – relevance of alternative possibilities.
TRADE PRACTICES – contravention of ss 45(2)(a)(ii) and 45(2)(b)(ii) of Trade Practices Act 1974 (Cth), now Competition and Consumer Act 2010 (Cth), and s 45ZZRK of that Act – arrangements or understandings by respondent with certain competitors to increase prices of products – statement of agreed facts and admissions as to contraventions – parties agreed on orders – whether penalty proposed is within “permissible range” – pecuniary penalty imposed is appropriate
TORTS – passing off – retail unit get-up – whether respondent’s services were passed off as being the applicants’ services or associated with the applicants’ services – elements of passing off – relevance of intention in the cause of passing off – whether Jones v Dunkel inference can be drawn – whether applicant established sufficient reputation – difficulty of establishing reputation of foreign currency exchange services – reputation not established by applicant
CONSUMER LAW – misleading or deceptive conduct – ss 52 and 75B of the Trade Practices Act – ss 18 and 75B of the Competition and Consumer Act – get-up of retail units – whether the respondents, by use of external signage, are likely to mislead or deceive persons familiar with the applicants’ services – whether “a not insignificant number” of persons in the Australian community have been misled or are likely to be misled – no misleading or deceptive conduct
CONTRACTS – breach of contract – whether respondents breached duty to “well and faithfully serve” or use “best endeavours to promote the interest and welfare” of applicants’ business – whether causing a company to be incorporated while employed by applicant to carry on competing business after termination of employment constitutes breach – whether respondents breached duty not to use trade secrets and confidential information – strategy comprised of knowledge gleaned whilst working for applicants and from general observation – no breach of employment agreements
EQUITY – breach of fiduciary duty of fidelity – whether regard can be had to the cumulative effect of steps taken by respondents to establish a future competitor during their employment with the applicant – whether respondents used any confidential information – no breach of fiduciary duty of fidelity
ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal —Extension of time for leave to appeal — Discretion — Relevant factors – Inordinate delay (19 months) with knowledge of entitlement to appeal – No real or significant argument on a question of law on appeal – Victorian Civil and Administrative Tribunal Act 1998 s 148 — Transport Accident Act 1998 s 40 — Extension of time refused.
EVIDENCE — without prejudice privilege — whether communications involve an attempt to negotiate a settlement of a dispute — Whether within s 131 of the Evidence Act 2008 (Vic) — Whether exception in s 131 (g) applicable — no privilege applying.
CRIMINAL LAW – Appeal – Conviction – Murder – Co-offender pleaded guilty – Multiple gunshots to victim’s head – Applicant shot and stabbed victim – Whether open to jury to conclude that applicant aided and abetted or acted in concert with co-offender – Whether evidence of victim’s emergency calls admissible to prove applicant’s participation – Consciousness of guilt – Whether evidence of applicant’s lies admissible – Leave to appeal refused – R v Ciantar  VSCA 263; (2006) 16 VR 26 applied – Evidence Act 2008 (Vic) ss 65(2), 137, 192.
PRACTICE AND PROCEDURE – Subpoena to independent expert – Inspection of documents – Client legal privilege – Express waiver of privilege in expert reports by delivery– Documentary communications between solicitor and independent expert – Whether waiver of privilege in consequence of delivery of expert reports – Inconsistency – Whether documents influence or underpin expert reports – ss 119, 122 and 126 of Evidence Act 2008 (Vict) – No waiver.
EVIDENCE – Privilege – Client Legal Privilege – Adequacy of evidence in support of claim.
EVIDENCE – Privilege – Relevance of documents.
EVIDENCE – Privilege – Joint privilege – Evidence Act 2008 (Vic) s 124.
PRACTICE AND PROCEDURE – Discovery – Order for further discovery – Relevance of documents – Sufficiency of discovery – Adequacy of searches – Civil Procedure Act 2010 (Vic) s 55 – Supreme Court (General Civil Procedure) Rules 2005 r 29.01.1, r 29.08, r 29.11.