Author Archives: admin0

Nield v Mathieson [2014] FCAFC 74 (19 June 2014)

INDUSTRIAL LAW – appeal from the Federal Circuit Court – whether employment relationship existed – whether proper classification under relevant award – whether natural justice denied

EVIDENCE – whether trial judge erred by placing “too much” weight on demeanour and credit of witnesses – whether s 140 of the Evidence Act was correctly applied

EQUITY – quantum meruit claim

Shearer v Gilmore [2014] ACTSC 148 (19 June 2014)

APPEAL – GENERAL PRINCIPLES – Appeal against conviction – Whether appellant convicted – Magistrate accepted verdict so as to constitute relevantly a conviction

APPEAL – GENERAL PRINCIPLES – Appeal against conviction – Whether Magistrate erred in relying on evidence of complainant – Magistrate followed evidence closely and assessed demeanour of witnesses – Magistrate’s finding neither glaringly improbable nor contrary to compelling influences – Magistrate’s finding well supported by the evidence and assessment of credibility of witnesses – Appeal dismissed

Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [2014] FCAFC 73 (19 June 2014)

PATENTS – lack of inventive step – whether the invention would be obvious to the hypothetical skilled addressee of the patent at the priority date – whether the hypothetical skilled addressee of the patent would have undertaken the steps in the patent as a matter of routine to lead, as a matter of course, to the invention – whether expectation of hypothetical skilled addressee of the patent in undertaking the steps in the patent is a necessary element of the test of obviousness – whether hypothetical skilled addressee of the patent must have expectation of successful production of the invention or “some other useful result” – whether the reformulated Cripps question is a test of universal application – lack of fair basis – lack of novelty.

PRACTICE AND PROCEDURE – application for leave to appeal against interlocutory decision on admissibility of evidence pursuant to r 34.50 of the Federal Court Rules 2011 (Cth) – whether application made out of time – where application for leave to appeal filed within time to apply for leave to appeal from orders – whether interlocutory decision sufficiently connected with orders such that time began to run on date of orders.

EVIDENCE – admissibility of experimental proof of facts – Federal Court Rules 2011 (Cth) r 34.50 – whether manufacture of tablets to be used in dissolution test experiments the subject of directions pursuant to r 34.50 forms part of the experimental proof of fact – whether manufacture of tablets akin to manufacture of standard products used in the course of an experiment.

Held: Appeal dismissed

Steel Contracts Pty Limited v Simons t/as Little Lifter, Poiner and Adjudicate Today Pty Limited [2014] ACTSC 146 (19 June 2014)

APPEAL – GENERAL PRINCIPLES – Application for leave to appeal – Consideration of availability of leave under Building and Construction (Security of Payment) Act 2009 (ACT) – Act sets high bar for leave application – Application dismissed

APPEAL – GENERAL PRINCIPLES – Extension of time for seeking leave to appeal – Relevant factors to be considered when deciding application – Delay in commencing appeal proceedings not reasonable – Application dismissed

APPEAL – GENERAL PRINCIPLES – Review by prerogative relief – Court can grant prerogative relief despite Building and Construction (Security of Payment) Act 2009 (ACT) – Special circumstances must exist for extension of time to be granted – Extension of time should not ordinarily be granted where there are no or few prospects of success – Application dismissed

In the application of Roderick Mackay Sutherland and Sule Arnautovic [2014] NSWSC 821 (19 June 2014)

EQUITY – Priority and notice – Competition between equitable interests in land – Whether failure to lodge caveat results in loss of priority
ESTOPPEL – Estoppel by deed
EVIDENCE – Alleged forged signature – Onus of proof – Role of expert opinion as to handwriting – Proof of handwriting generally

McCarthy v NSW Racing Appeals Tribunal [2014] NSWSC 798 (18 June 2014)

ADMINISTRATIVE LAW – Racing Appeals Tribunal – Supreme Court’s supervisory jurisdiction – Supreme Court Act 1970 (NSW) s 69 – error of law on the face of the record – jurisdictional error – order made under Evidence Act 1995 (NSW) s 136 regarding submissions and material before Tribunal

ADMINISTRATIVE LAW – Racing Appeals Tribunal – successful overturning of adverse disciplinary finding – whether costs “follow the event” – application for costs by applicant rejected by Tribunal – just and “reasonable expectation” – Latoudis v Casey [1990] HCA 59; 170 CLR 534 – natural justice – right to oral hearing on costs – Wednesbury unreasonableness – reasonableness review.

Workers Compensation Nominal Insurer v Australian Coin and Bullion Exchange [2014] FCA 646 (18 June 2014)

PRACTICE AND PROCEDURE – application for review of a decision of a Registrar pursuant to s 35A(5) of the Federal Court of Australia Act 1976 – application for winding up dismissed – costs order made in favour of plaintiff – whether service effected upon defendant – change of address – whether plaintiff had notice of change of address – obligations on defendant regarding change of address

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634 (18 June 2014)

CONSUMER LAW – Australian Consumer Law ss 18(1), 29(1)(a), 33 – Misleading or deceptive conduct or conduct likely to mislead or deceive, false or misleading representations, conduct liable to mislead the public – Whether the use of the phrases “baked today, sold today”, “freshly baked”, “baked fresh” and “freshly baked in-store” is misleading where the complete baking process is not undertaken in-store on the day – Whether the relevant context for assessing misleading or deceptive conduct includes a cynical consumer culture

PRACTICE AND PROCEDURE – Admissibility of evidence – relevance – whether evidence of third party conduct is relevant – hearsay – whether statements made by third parties serve a non-hearsay purpose

Taleb v DPP [2014] VSC 285 (18 June 2014)

CONFISCATION – Application for exclusion of interest from operation of restraining order – Applicant advanced $150,000 to brother-in-law (AT) acting on behalf of his company for purposes of completing development of four units owned by company – Unbeknown to applicant, AT involved in drug-trafficking – AT charged and units restrained – Restraining order varied to allow sale of units – Net proceeds of sale held by Assets Confiscation Office – Rudimentary hand-written agreements drawn by non-lawyer – Unchallenged affidavit evidence as to terms of agreements – Whether funds to be returned upon sale of units or from proceeds of sale or both – Whether Court entitled to have regard to affidavit evidence – Parol evidence rule – Whether agreements wholly written or partly written and partly oral – Whether applicant has an equitable interest in units or proceeds of sale – Whether applicant has a right over or in connection with units or proceeds of sale – Meaning of “right, power or privilege over, or in connection, with property” – Whether applicant entitled to order for payment from net proceeds of sale on basis that it would be “just” – Confiscation Act 1997 (Vic), ss 3, 18, 20, 22, 26.

FN 2
[2] The parol evidence rule is regarded as a rule of substantive law, and not a rule of evidence; and it is not affected by the enactment of the Evidence Act 1995 (Cth): Owens v Lofthouse [2007] FCA 1968 at [62] per Weinberg J. The same must be true in Victoria despite the passage of the Evidence Act 2008 (Vic).

Velkoski v The Queen [2014] VSCA 121 (18 June 2014)

EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292; R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375; R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700; W v The Queen [2001] FCA 1648; (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic) [2010] VSCA 26; (2010) 24 VR 486; AE v The Queen [2008] NSWCCA 52; PNJ v Director of Public Prosecutions (Vic) [2005] NSWCCA 338; (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen [2010] VSCA 95; GBF v The Queen [2010] VSCA 135; R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229; PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552; RHB v The Queen [2011] VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen [2011] VSCA 442; DR v The Queen [2011] VSCA 440; CEG v The Queen [2012] VSCA 55; Reeves v The Queen [2013] VSCA 311; R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75; BSJ v The Queen [2012] VSCA 93; (2012) 35 VR 475; Semaan v The Queen [2013] VSCA 134; Murdoch v The Queen [2013] VSCA 272; SLS v The Queen [2014] VSCA 31R; CV v Director of Public Prosecutions (Vic) [2014] VSCA 58; Doyle v The Queen [2014] NSWCCA 4; Sokolowskyj v The Queen [2014] NSWCCA 55; DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568; RH v The Queen [2014] NSWCCA 55, considered – Cross-admissibility of three complainants’ evidence – Evidence Act 2008 (Vic) s 97.

CRIMINAL LAW – Trial – Failure to object to evidence – Whether tendency evidence – Whether words ‘is not admissible’ in Evidence Act 2008 (Vic) s 97 should be construed as ‘is not admissible over objection’ – R v Reid [1999] NSWCCA 258; Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232; FDP v The Queen [2008] NSWCCA 317; (2008) 74 NSWLR 645, considered – Deliberate decision for forensic reasons not to object – R v Radford (1993) 66 A Crim R 210; Shaw v The Queen (Unreported, Court of Criminal Appeal (NSW), Gleeson CJ, Dowd and Hidden JJ, 3 April 1996); R v Gay [[1976] VR 577, followed – Waiver – R v Clarke [2005] VSCA 294; (2005) 13 VR 75; R v McCosker [2010] QCA 52; [2011] 2 Qd R 138, followed – Whether trial judge under duty to intervene.

CRIMINAL LAW – Trial – Directions to jury – Inadequate directions as to tendency reasoning – Identification of features of tendency evidence necessary – Explanation necessary as to why tendency evidence makes fact in issue more probable – RR v The Queen [2011] VSCA 442; RJP v The Queen (2011) 215 A Crim R 315, considered – Inappropriate direction as to sexual interest in complainants as evidence of ‘state of mind’ – Appeal allowed – Retrial ordered.

EVIDENCE – Criminal Procedure Act 2009 (Vic) s 377(3) – Exception to hearsay rule – Whether fact asserted in previous representation must be subject of evidence by person who makes assertion – Complainant recants previous assertion – Evidence should therefore have been excluded.

CRIMINAL LAW – Conviction – Appeal – Whether verdicts unsafe or unsatisfactory – Verdict of acquittal entered on Charges 3 and 11.

Aravanis (Trustee), in the matter of Gillespie (Bankrupt) v Gillespie [2014] FCA 630 (17 June 2014)

TRUSTS AND TRUSTEES – constructive trusts – resulting trusts – presumption of advancement – whether common intention that respondent’s brother purchase property on trust for respondent’s mother – mortgage in name of respondent’s brother – respondent’s mother contributed substantial sum towards purchase price

BANKRUPTCY – whether transfer of property void pursuant to Bankruptcy Act 1966 (Cth) ss 120 and 121 or Conveyancing Act 1919 (NSW) s 37A – whether bankrupt solvent at time of transfer – whether transfer for purpose of defeating creditors

PROPERTY – equitable lien – purchaser paid less than sale price provided for in contract for sale of land – whether agreement between parties was for price in contract for sale or consideration actually paid by purchaser

In the matter of Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 (16 June 2014)

TRADE PRACTICES – misleading or deceptive conduct – whether alleged representations were made by relevant defendant – representations as to future matters – whether relevant representations were misleading or deceptive or likely to mislead or deceive – whether defendant had reasonable grounds in making alleged representations – whether plaintiffs had relied on alleged representations – whether it can be established that loss and damage suffered by plaintiffs was caused by alleged representations – application of Corporations Act ss 1041, 1041E and 1041H, Fair Trading Act 1987 (NSW) ss 41, 42, 68 and Trade Practices Act 1974 (Cth).

CONTRACTS – construction – where parties relevantly entered into share sale deed and shareholders agreement – where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information – whether relevant defendant had breached provisions under relevant agreements – post-contractual conduct – whether post-contractual conduct admissible to prove existence of relevant setoff agreement.

CONTRACTS – restraint of trade – where relevant clauses contained in share sale deed and shareholders agreement prohibited parties from being involved in business which is the same or similar type of business conducted by relevant company – whether relevant clause is void for uncertainty – requirement to offer participation to company before taking up opportunity – whether relevant clause can be characterised as a restraint of trade clause – whether relevant clauses were reasonable as between parties – whether relevant clauses protected a legitimate interest – whether relevant clauses are contrary to public policy under Restraint of Trades Act 1976 (NSW) – whether relevant defendant had breached restraint of trade provisions.

CORPORATIONS – assignment of choses in actions – where provisional liquidator had assigned equitable and statutory causes of action of company to relevant plaintiffs under Corporations Act s 477(2)(c) – whether assignment by provisional liquidator was effective – whether causes of action constituted ‘property’ so as to be capable of assignment by liquidator.

CORPORATIONS – management and administration – duties and liabilities of officers of corporation – directors’ duties – claim for breach of fiduciary duties and breach of directors’ duties at general law – where relevant defendant was non-executive director of relevant company and director of other competing companies – conflict of interest – whether informed consent can be established – whether existing management structure narrowed scope of relevant defendant’s fiduciary duties – where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information – whether relevant defendant’s conduct amounted to breach of fiduciary duties.

CORPORATIONS – management and administration – duties and liabilities of officers of corporation – claim for breach of Corporations Act 2001 (Cth) ss 180, 181, 182, 183 and 191 – duty of care and diligence – duty to act in good faith in the company’s best interests – duty to not improperly use position to gain advantage or cause detriment to company – duty of disclosure – where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information – whether conduct of relevant defendants amounted to breach of statutory duties – accessorial liability – whether it can be established that relevant parties were knowingly concerned and involved in alleged contraventions of statutory duties under Corporations Act s 79.

LANDLORD AND TENANT – agreement for lease – rent – claim for outstanding rent – whether claim for rent can be established – whether entry into lease was induced by misleading or deceptive conduct or breach of fiduciary or statutory duties – whether landlord is estopped from claiming rent – public policy considerations – whether lease was wrongfully terminated.

REMEDIES – where relevant plaintiffs have been assigned causes of action in respect of breach of statutory duties by provisional liquidator of relevant company – whether relevant plaintiffs have standing to obtain compensatory relief under Corporations Act 2001 (Cth) s 1317H – whether plaintiffs are entitled to damages in respect of contravention of civil liability provisions under Corporations Act s 1324(10) – whether jurisdiction for granting injunction sufficiently enlivened for award of damages under s 1324(10).

REMEDIES – equitable compensation – account of profits – whether plaintiffs entitled to await judgment before proceeding with election of remedies – whether plaintiffs or relevant company suffered loss and damage as result of any established breach – loss of business and opportunity – whether there was a diminution in value of company’s business in respect of diversion of sales.

Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625 (16 June 2014)

EVIDENCE – whether previous representations made in certain printouts of emails should be admitted into evidence as business records pursuant to s 69 of the Evidence Act 1995 (Cth) – whether those emails should be excluded in the exercise of the Court’s discretion pursuant to s 135 or s 169 of the Evidence Act – whether the Court should compel the plaintiff to call the authors of the emails pursuant to s 169 of the Evidence Act – whether the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) prohibit the tender of transcripts of recordings of intercepted telephone calls and whether, if not, those transcripts are admissible as business records – whether transcripts of evidence given at a public inquiry conducted by the NSW Independent Commission Against Corruption are admissible as business records – whether a previous statement in writing made by a potential witness out of Court which was created for the purpose of being provided to a television journalist is admissible

Mathis (A Pseudonym) v The Queen [2014] VSCA 118 (16 June 2014)

CRIMINAL LAW – Appeal – Conviction – Incest, indecent act with child under 16 – Applicant was stepfather of victim – Victim’s mother gave evidence for prosecution – Evidence led of statement by applicant that he needed to protect himself against false allegations – Evidence not objected to by defence – Defence case alleged fabrication of allegations – Rational forensic decision not to object – No miscarriage of justice.

CRIMINAL LAW – Appeal – Conviction – Incest, indecent act with child under 16 – Character evidence called by defence – Good character direction – Conventional ‘balancing direction’ that persons of good character can commit crimes — Judge referred to ‘scoutmasters [and] priests’ as examples – Whether comment diluted benefit of direction – Redirection sought and given – No miscarriage of justice.

CRIMINAL LAW – Trial – Evidence – Proof beyond reasonable doubt – Complainant said ‘I think’ penetration occurred – Whether capable of proving offence – Whether open to jury to be satisfied beyond reasonable doubt – Importance of context – Witness’s evidence to be assessed as a whole – Open to jury to be satisfied – Leave to appeal refused.

PRACTICE AND PROCEEDURE – Inspection of documents held on court file – application for confidentiality order – whether appellant would be seriously compromised or adversely affected if intervener not prevented from inspecting and/or copying the relevant documents – application for confidentiality order refused – Supreme Court (General Civil Procedure Rules) 2005, r 28.05.

Telfer v Telfer [2014] NSWCA 186 (13 June 2014)

APPEAL – application to adduce further evidence – evidence could have been obtained through reasonable diligence for use at trial – evidence not likely to have led to a different result at trial

APPEAL – Leave to appeal against costs orders only – whether costs orders based on findings not justified by evidence – primary judge made findings of very serious misconduct based on the credibility of witnesses and adverse inferences drawn from evidence – failure to take into account the gravity of the allegations or matters bearing on the inherent probability that such misconduct occurred – whether appellate intervention is justified in the circumstances

APPEAL – application of Supreme Court Act 1970 (NSW) s 75A – not in the interests of justice to order a new trial in circumstances where the appellant no longer sought to disturb the substantive orders

Galafassi v Kelly [2014] NSWCA 190 (13 June 2014)

CONTRACTS – general contractual principles – repudiation and non-performance – renunciation – where purchasers evinced an intention no longer to be bound by the contract and where purchasers declared that they were unwilling and unable to perform their contractual obligations – continuing representation of financial incapacity – whether purchasers wholly and finally disabled from performing the essential terms of the contract altogether – continuing repudiation by the purchasers – vendor entitled to terminate
CONTRACTS – general contractual principles – repudiation and non-performance – election – whether by commencing proceedings for specific performance and later filing a statement of claim the vendor elected to affirm the contract – whether vendor therefore precluded from terminating based on prior repudiation by the purchasers – vendor not precluded where after the commencement of proceedings the purchaser commits a breach of an essential term or otherwise evinces an intention to no longer be bound by the contract – purchasers’ unretracted declarations of inability and unwillingness to perform remained as a fact in the history of the matter and gave an unmistakeable colour to their continued inactivity and entitled the vendor to terminate
CONTRACTS – general contractual principles – remedies for breach – loss on resale – measure of damages – claim made under cl 9.3.1 of standard contract is one for liquidated damages – availability of special condition interest and land tax for late completion when completion does not occur – damages to be assessed based on the price of the first contract if it had been completed according to its terms – payments contingent upon completion unable to be included as part of the price of the first contract – whether land tax otherwise able to be included as a reasonable expense arising out of the purchaser’s non-compliance with the contract
CONVEYANCING – breach of contract for sale and remedies – vendor’s remedies – whether notice to complete required before vendor can terminate if purchaser has indicated it is unwilling and unable to complete – notice to complete not required where the conduct of the purchaser amounts to repudiation
CONVEYANCING – breach of contract for sale and remedies – vendor’s remedies – resale – duty of vendor – mitigation – extent of vendor’s obligation to act reasonably so as to mitigate loss on resale – whether trial judge erred in his approach to the question of mitigation
EVIDENCE – facts excluded from proof – on grounds of public policy – settlement negotiations and offers – Evidence Act 1995 s 131 – whether communications in emails were made in connection with an attempt to negotiate the settlement of the dispute – whether communications were permissible within the exceptions in Evidence Act 1995 s131(2)(g) or 131(2)(i)

Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624 (13 June 2014)

PRACTICE AND PROCEDURE – application for leave to amend notice of appeal – where proposed grounds not raised in Court below – whether adequate explanation for why grounds not raised below

PRACTICE AND PROCEDURE – application to set aside notice to produce – whether documents sought go to any issue relevant to the appeal

Honeysett v The Queen [2014] HCAASP 23 (12 June 2014)

On 5 June 2013 the Court of Criminal Appeal (“CCA”) (Macfarlan JA, Campbell J & Barr AJ) unanimously dismissed Mr Honeysett’s appeal. Their Honours held that the evidence of Professor Henneberg was admissible, as it was an opinion based on specialised knowledge in accordance with s 79(1) of the Evidence Act 1995 (NSW) (“the Act”). The CCA found that that evidence identified physical characteristics that Mr Honeysett had in common with the Offender, without stating any conclusions that might be drawn from those characteristics. It was not to the effect that the Offender and Mr Honeysett were similar in appearance. Their Honours also found that Professor Henneberg’s detailed examination of the CCTV footage had rendered him an “ad hoc” expert such that his evidence went beyond obvious matters that the jury would have discerned for itself.

The grounds of appeal include:

The Court of Criminal Appeal erred in the application of s 79 of the Act in holding that the evidence of Professor Hennenberg involved an area of specialised knowledge based on training, study or experience, and that his opinion was wholly or substantially based on that area of specialized knowledge.
The Court of Criminal Appeal erred in holding that the evidence of Professor Hennenberg’s consideration of the CCTV footage rendered him an “ad hoc” expert.

Walsh v Walgett Shire Council [2014] NSWSC 812 (11 June 2014)

EVIDENCE – documentary evidence – statutory provisions relating to business records – whether document of WorkCover a ‘business record’ – whether representations in document are made in connection with an investigation – whether investigation must in fact lead to proceedings for exception to apply – application of s 69(3)(b) of the Evidence Act 1995 (NSW)
EVIDENCE – admissibility – whether discretionary reasons for refusing to admit evidence – where evidence in the form of answers to specific questions – where witness not called – application of s 135 Evidence Act 1995 (NSW)

Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 18) and 13 related matters [2014] NSWSC 733 (6 June 2014)

PROCEDURE – civil – interlocutory issues – application to reopen – whether party at fault by failing to address issues in submissions
PROCEDURE – civil – judgments and orders – stay pending appeal
COSTS – agreements – construction – whether contractual provisions provide for costs on indemnity basis
COSTS – exception to the general rule that costs follow the event – multiple issues – whether defences raised dominant or severable

R v Hunt [2014] NTSC 19 (2 June 2014)

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Whether failure to involve Indonesian Police is unlawful or improper – Mutual Assistance in Criminal Matters Act 1987 (Cth)

- Evidence (National Uniform Legislation) Act 2011 (NT) s138
CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Accused not cautioned or informed of rights prior to questioning – Evidence (National Uniform Legislation) Act 2011 (NT) ss138 & 139

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Misleading conduct of police in obtaining consent to search – Evidence (National Uniform Legislation) Act 2011 (NT) s 138

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Whether subsequent conduct of police affects admissibility of evidence – Evidence (National Uniform Legislation) Act 2011 (NT) s 138

Dafallah v Fair Work Commission (No 2) [2014] FCA 600 (6 June 2014)


By failing to follow the process set out in cl 38 of the Health Services Union of Australia — Health and Allied Services, Administrative Officers — Victorian Public Sector — Multi Employer Certified Agreement 2006-2009 in respect of the sequence of verbal and written warnings to be given to the applicant prior to any decision to terminate the applicant’s employment, the second respondent has contravened that Agreement.

Peterson (a Pseudonym) v The Queen [2014] VSCA 111 (6 June 2014)

CRIMINAL LAW – Appeal – Interlocutory appeal – Review of the trial judge’s refusal to certify with respect to interlocutory decision – Identification evidence – Applicant arraigned and pleaded not guilty to an indictment containing a charge of intentionally causing serious injury – Complainant identified the applicant from a photograph on Facebook – Whether probative value of identification evidence outweighed by the danger of unfair prejudice – Trial judge refused to exclude the identification evidence – Application was made for certification – Certification refused – Application to review certification decision refused – Interlocutory decision plainly correct – Whether reasons for granting leave ‘clearly outweigh any disruption to trial’ – Application for review – Criminal Procedure Act 2009 (Vic) ss 295 (2)–(3), 296, 297 (2).

ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65 (6 June 2014)

CONTRACT – breach of contract – contract for provision of financial services – implied warranties in s 12ED of Australian Securities and Investments Commission Act 2001 (Cth) – damages for breach of contract

CORPORATIONS – financial products – breach of Australian financial services licence under s 912A of Corporations Act 2001 (Cth) – meaning of derivative in s 761D(1) of Corporations Act 2001 (Cth) – meaning of debenture in s 9 of Corporations Act 2001 (Cth)

CORPORATIONS – misleading and deceptive statements – whether statements based on reasonable grounds and result of exercise of reasonable care and skill – effect of disclaimers – proportionate liability provisions

CORPORATIONS – rescission – requirements of s 924A of Corporations Act 2001 (Cth) – notice under s 925A of Corporations Act 2001 (Cth) – whether notice given within a “reasonable period”

DAMAGES – causation – remoteness – “rule” in Potts v Miller [1940] HCA 43; (1940) 64 CLR 282 – contributory negligence – statutory damages – measure for damages – apportionment – proportionate liability

EQUITY – fiduciary obligations – informal advisory relationship arising from conduct – whether breach of fiduciary duty – equitable compensation – equitable contribution

INSURANCE – whether insured entity a party to contract of insurance – effect of s 48 of Insurance Contracts Act 1984 (Cth) – duty of disclosure – construction of terms

PRACTICE AND PROCEDURE – entitlement to raise new matters on appeal

STATUTORY INTERPRETATION – whether investment permissible under s 625 of Local Government Act 1993 (NSW) – whether product a security within the meaning of relevant Ministerial order

TORT – whether duty of care owed – negligent misstatement – indeterminate liability – vulnerability – causation – unlawful conduct – effect of disclaimers – contributory negligence

TRADE PRACTICES – misleading and deceptive conduct – whether conduct engaged in “in this jurisdiction” – whether conduct in relation to financial product or financial services – “mere conduit”

Poniris v R [2014] NSWCCA 100 (5 June 2014)

CRIMINAL LAW – appeal against conviction – whether defence counsel implicitly relied upon s 137 Evidence Act at trial – whether trial judge obliged to consider application of s 137 in the absence of reliance on that section – whether leave required pursuant to r 4 Criminal Appeal Rules where objection to admission of evidence is taken on one basis at trial and on a different basis on appeal – leave under r 4 refused – whether trial judge failed to advise jury of limitations on use of the evidence and to properly direct jury on motive to lie

Ulutui v The Queen [2014] VSCA 110 (4 June 2014)

CRIMINAL LAW – Whether admission of evidence of appellant’s participation in a prior assault should have been excluded under s 137 of the Evidence Act 2008 (Vic) – Prior assault provided motive for and inextricably linked to offences charged – Appellant bound by rational forensic decision of counsel not to object to admission of evidence – Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614; Suresh v The Queen [1998] HCA 23; (1998) 102 A Crim R 18; and James v The Queen [2013] VSCA 55, followed – Appeal dismissed.

CRIMINAL LAW – Whether admission of evidence of appellant’s participation in a prior assault controverted the appellant’s acquittal for that assault – Fact of acquittal not placed in evidence – No manifest inconsistency between evidence adduced and the fact of the appellant’s acquittal – Whether trial judge erred in failing to direct the jury that it could not reach a conclusion that the appellant was guilty of the prior assault – Storey v The Queen [1978] HCA 39; (1978) 140 CLR 364; R v Carroll (2002) 213 CLR 635; Gilham v The Queen (2012) 224 A Crim R 22; R v VN [2006] VSCA 111; (2006) 15 VR 113; and Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492, followed.

CRIMINAL LAW – Whether trial judge erred in failing to give an anti-propensity warning in relation to the evidence of appellant’s participation in the prior assault – No requirement to give an anti-propensity warning where there is minimal or non-existent risk of evidence being used for propensity reasoning – R v Georgiev [2001] VSCA 18; (2001) 119 A Crim R 363; Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204; and FDP v The Queen [2008] NSWCCA 317; (2008) 74 NSWLR 645, followed.

CRIMINAL LAW – Kidnapping – Whether directions to jury impermissibly expanded Crown case – Whether kidnapping is a continuing offence – Davis v The Queen [2006] NSWCCA 392 and R v Vu [2011] BCCA 112, followed – Leave to appeal refused.

Telstra Corporation Limited v Phone Directories Company Pty Ltd [2014] FCA 568 (30 May 2014)

TRADE AND COMMERCE – Trade Practices – misleading or deceptive conduct – misleading or deceptive conduct in the taking of a competitor’s trade indicia – passing off – secondary reputation in the colour yellow on covers of telephone directories – date for assessing reputation in yellow – relevance of international use of colour yellow – whether respondents’ use of yellow covers on telephone directories was misleading or deceptive – identification of the class of consumers – erroneous assumption as to trade source – intention to deceive – failed intention to deceive – relevance of strength of reputation – relevance of use of common trade indicia – sufficiency of differentiation between similar products – whether respondents have done enough to differentiate their directories – conduct not misleading or deceptive
TRADE AND COMMERCE – Trade Practices – misleading or deceptive conduct – advertisements in telephone directories – misleading advertisement regarding comparative consumer usage
COPYRIGHT – unjustifiable threats of copyright infringement – relevance of bona fides – whether threat is groundless or unjustifiable

Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 (23 May 2014)

NATIVE TITLE – Application for determination – rights to country said to pass by descent – application specifies apical ancestors – claim group comprises three peoples said to form one society – substantial agreement from respondents that determination in form sought is appropriate – one respondent disputes contention that Wangkayujuru people are part of same society as Bularnu and Waluwarra – one respondent contends for inclusion of another apical ancestor on any determination – evidence establishes that Bularnu, Waluwarra and Wangkayujuru form one society – insufficient evidence to find additional apical ancestor should be included – applicant entitled to determination in the form sought

Stone v The Owners – Units Plan 1214 and Ors [2014] ACTCA 14 (19 May 2014)

PERSONAL INJURY – serious head injury – precise cause of injury unknown – appellant intoxicated at time and without recollection of events – appellant pleaded injuries occasioned by fall from respondents’ wall – whether error in primary judge finding appellant’s injuries occasioned by assault rather than fall – where experts differed as to cause of injuries – where primary judge had benefit of view – unnecessary, but not erroneous to have been satisfied of alternate cause of injuries – plaintiff must prove their case to requisite standard

EVIDENCE – whether primary judge erred in limiting the evidence the appellant could give at trial – where the appellant sought at trial to give evidence of new recollections which departed from case previously pleaded – where appellant did not replead their case – no error to limit evidence to that consistent with pleadings – new evidence highly unreliable

Brown v Guss [2014] VSC 251 (2 June 2014)

WILLS — Testamentary capacity — Whether the deceased had capacity to give instructions for a will — Whether the deceased had capacity to execute a will —Court satisfied that the deceased had capacity.

WILLS — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Court satisfied that the deceased read over and understood the provisions of the will.

WILLS — Undue influence — Standard of proof — Boyse v Rossborough (1857) 6 HL Cas 1 — Nicholson v Knaggs [2009] VSC 64 (27 February 2009) — Will not affected by undue influence.

Haddara v The Queen [2014] VSCA 100 (27 May 2014)

CRIMINAL LAW – Admission – Evidence Act 2008 – Voice identification – Taped record of interview with police used for the purposes of voice comparison – Whether ‘admission’ for the purposes of s 90 of the Evidence Act 2008 – Whether a record of interview with police used for the purposes of voice comparison should have been excluded under s 137 of the Evidence Act 2008 – Whether any other power to exclude exists – Application for leave to appeal against conviction granted – Appeal dismissed.

EVIDENCE – Whether Ch 3 of the Evidence Act 2008 as to exclusion of admissible evidence is a ‘code’ – Existence of overarching common law discretion to exclude evidence the admission of which would be unfair to the accused – Whether common law discretion survives the Evidence Act 2008 – Effect of s 56 of the Evidence Act 2008 – Sections 90, 136, 137 and 138 considered – Whether s 464J of the Crimes Act 1958 has been impliedly repealed – McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198, Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 and Butcher v Lachlan Elder Realty [2002] NSWCA 237; (2002) 55 NSWLR 558, not followed.

R v Bui [2014] ACTSC 64 (31 March 2014)

EVIDENCE – application to exclude DNA evidence – judge alone trial – drug trafficking charges – whether evidence relevant – whether probative value outweighed by danger of unfair prejudice – where potential for contamination – virtually no risk of judge or magistrate giving evidence more weight than entitled – strength of circumstantial case found in examining all of evidence together

Criminal Code 2002 (ACT), s 603(7)

Evidence Act (ACT), ss 55(1), 56(1), 135, 137

Zomojo Pty Ltd v Hurd (No 5) [2014] FCA 537 (28 May 2014)

CONTEMPT OF COURT – failure to comply with court orders – whether charges of contempt proven beyond reasonable doubt – contravention of inter parte undertakings – aiding and abetting – whether breach enforceable in the proceeding

EVIDENCE – admissibility of affidavit material – dispensation of Rule 42.12(b) of the Rules – whether affidavit material contained admissions – whether deponents protected by privilege against selfincrimination

Shaw v Yarranova Pty Ltd [2014] FCA 557 (28 May 2014)

BANKRUPTCY – appeal of dismissal of application to set aside a bankruptcy notice – whether appellant denied procedural fairness because his application for an adjournment was refused – whether the appellant was denied an opportunity to cross-examine and whether any such denial resulted in a denial of procedural fairness – whether discretion to extend the time for compliance with a bankruptcy notice conferred by s 41(6A) of the Bankruptcy Act 1966 (Cth) miscarried – whether bankruptcy notice was invalid because it was capable of reasonably misleading the debtor – appeal dismissed.

Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 (26 May 2014)

TORTS – negligence – slip and fall at retail premises – floor recently mopped – mopping not conducted so as to leave dry passageway – no findings by primary judge concerning duty of care and standard of care – such findings essential – appeal court able to make the findings – whether breach of duty of care – if breach, whether it was causative of the damage suffered – contributory negligence – assessment of damages – respective responsibilities of occupier, cleaning contractor and the contractor’s insurer – construction of cleaning contract and insurance contract

Zraika v Walsh (No 2) [2014] NSWSC 655 (23 May 2014)

PROCEDURE – notice of motion – order sought under s 82(1) of the Civil Procedure Act 2005 (NSW) against the first and second defendants for interim payment of part of the damages and which plaintiff claims to be entitled – whether such an order should be entertained – medical causation in issue – no expert advice obtained from first and second defendants as yet – whether judgment for substantial damages would be obtained if proceedings go to trial – orders made

Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241 (23 May 2014)

SUMMARY RECOVERY OF LAND — Application under Order 53 — Plaintiff an Aboriginal Trust established under the Aboriginal Land Act 1970 — Conflict within the Aboriginal community — Related oppression proceedings commenced against members of the Trust in control of the committee of management — Defendants occupying property without the licence, consent or permission of the committee of management of the Trust — Whether committee of management of the plaintiff authorised the commencement of proceedings — Whether Aboriginal customs lying behind the decisions of committee of management arguably give rise to a licence or consent of the plaintiff pending a decision of the committee of management —Whether any decision of the committee of management to commence proceedings may have been made in bad faith — Whether the existence of oppression proceedings that might change the constitution of the committee might affect the right of the defendants to occupy the land— Whether a clear case where there is no question to try — Whether possible to resolve factual dispute readily and fairly.

PRACTICE AND PROCEDURE — Order 53 of the Supreme Court (General Civil Procedure) Rules 2005 — Applicable principles.

[27] The evidence may be admissible under s 72 of the Evidence Act 2008 (Vic). In any event, it was tendered without objection.

Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518 (23 May 2014)

NEGLIGENCE – damages arising from death – damages for nervous shock – son of two plaintiffs killed on school excursion – whether parents suffered mental harm – pre-existing psychiatric conditions – costs of coronial inquest – whether plaintiff entitled to such costs – two plaintiffs sole directors and shareholders of two plaintiff companies – companies make per quod amisit sevitium claim – whether claim falls within exception in Barclay v Penberthy – failure to mitigate

Petrovic v Brett Grimley Sales Pty Ltd [2014] VSCA 99 (22 May 2014)

PROPERTY LAW – Appeal against an order that a transfer was a voidable transaction under s 172(1) of the Property Law Act 1958 (Vic) – Appellant received a transfer from his mother in excess of an amount she paid him pursuant to a constructive trust in favour of the appellant’s father – Whether transfer was an alienation with an intent to defraud creditors – No error in the trial judge’s finding that the mother intended to defeat creditors – Appeal dismissed – Briginshaw v Briginshaw (1938) 60 CLR 336 – Property Law Act 1958 (Vic) s 172.

Fulton v Fulton [2014] NSWSC 619 (22 May 2014)

ADMINISTRATION OF ESTATE OF DECEASED – Amounts claimed by the Plaintiffs, who are named executors of the Will of the deceased to whom Probate granted, as moneys alleged to have been wrongfully withdrawn, by their brother and sister-in-law during the lifetime of the deceased, out of bank accounts conducted by him – Agreement reached at the hearing as to quantum of the amounts withdrawn but not liability of the Defendants, or any of them, to repay any part of, those amounts – Defendants assert authority, oral or in writing, given by the deceased, or otherwise that they were gifts by the deceased to them or alternatively “an advance on inheritance” – Amount that should be repaid to the estate – Whether interest on the amounts withdrawn and to be repaid should be paid, and if so, from what date and at what rate

SUCCESSION – CONSTRUCTION OF WILL – Whether the deceased intended to make dispositive provision in Will in favour of his son and daughter-in-law or whether the terms of the Clause explain reasons for making no provision for his son or otherwise

SUCCESSION – FAMILY PROVISION – Two of the Defendants make a claim for a family provision order – No dispute as to one Defendant’s eligibility as a child of the deceased – Dispute as to eligibility of other Defendant who is the daughter-in-law of the deceased – Also dispute whether there are factors warranting the making of her application – Plaintiffs are the other children of the deceased and the sole residuary beneficiaries named in the Will – No provision made in the Will of the deceased for either Defendant – Estate distributed – Only actual estate may be amount ordered to be repaid – Extension of time required for making of applications – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made