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R v Holliday [2014] ACTSC 265 (16 September 2014)

EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – whether hearsay rule applies – whether maker of representations unavailable – whether representation was made shortly after the asserted fact happened and in circumstances that make it highly unlikely that the representation is a fabrication – whether representation was made in circumstances that make it highly probable that the representation is reliable – whether evidence of prison informant is unreliable

Commonwealth Bank of Australia v Iinvest Pty Ltd (In Liq) [2014] NSWSC 1257 (15 September 2014)

PROPERTY LAW – application to set aside default judgment for possession – whether triable issue – whether bank can rely on default alleged to have arisen from bank’s misconduct
EQUITY AND TRUSTS – whether property and choses in action associated held on trust – whether beneficiary has standing to bring claim where trustee insolvent

Legal Services Commissioner v Telehus [2014] VSC 462 (15 September 2014)

LEGAL PRACTITIONERS — Roll of practitioners — Removal of name — Defendant misappropriated trust funds, represented that he held a practising certificate when he did not, failed to lodge tax and GST returns and breached court order that he file tax returns, made false declarations in support of application for renewal of practising certificate — No involvement by Defendant in disciplinary process or hearing to remove name from roll — No suggestion that Defendant had taken steps towards rehabilitation — Defendant not fit and proper person to practise law.

JR Consulting & Drafting Pty Ltd & Anor v Cummings & Ors [2014] NSWSC 1252 (12 September 2014)

CONTRACTS – construction – where parties entered into contract for sale of non-exclusive “interest” in software – nature of “interest” acquired by first plaintiff – whether interest was limited to software which existed at relevant date – whether first defendant owned copyright in software to exclusion of second defendant – whether first plaintiff was limited to licensing software to particular customer – whether first defendant had express or implied obligation to provide first plaintiff with source code and updates for, and modifications and developments to, software – whether initial contract was abandoned by parties.

CONTRACTS – construction – where relevant parties entered into subsequent contract in respect of software – scope of licence granted under contract – whether licence was limited to specified period – whether second plaintiff was permitted to grant licences to new customers after that period – effectiveness of assignment – whether second defendant required to provide updates to second plaintiff to ensure software compatibility with other software.

CONTRACTS – breach – whether parties had breached obligation to deposit source code with escrow agent – whether conditions of agreement for release of software from escrow were satisfied – whether second defendant breached obligations to provide development services, information and assistance – confidentiality – whether second defendant had received and disclosed confidential information – good faith and cooperation – whether there was a breach of obligation of good faith.

CONTRACTS – termination – whether second defendant had properly terminated agreement – whether established that second plaintiff breached contract by non-payment of licence fees – whether second defendant had abandoned rights to termination – whether notice of termination of agreement was effectively served – whether there was a failure by second defendant to comply with dispute resolution clauses – whether termination was invalidated by non-compliance with dispute resolution clauses.

CONTRACTS – existence of contract – whether established that entity was granting licences under previous agreement – where person is director of two associated companies – whether sub-licence was created by decision of common director.

TORTS – tort of conspiracy – harm by unlawful means – where second and third defendants had entered into purchase agreement – where defendants had terminated earlier agreement – whether established that conduct constituted a tort of conspiracy – whether conduct was unlawful – whether established that a purpose of conduct was to harm second plaintiff – whether established that second plaintiff has suffered loss or damage caused by conduct.

TORTS – tort of inducing breach of contract – whether conduct constituted breach of earlier agreement – whether third defendant induced or procured second defendant to engage in conduct – whether third defendant had sufficient knowledge of terms of previous agreement – whether third defendant had requisite intention for second defendant to breach the previous agreement.

TRADE PRACTICES – misleading or deceptive conduct – where representations were made on website registered to company not party to proceedings – whether third defendant engaged in trade or commerce between Australia and another country – whether third defendant engaged in conduct involving the use of telegraphic or telephonic services – whether established that representations were made by third defendant – whether representations were misleading or deceptive or likely to mislead or deceive.

TRADE PRACTICES – unconscionable conduct – whether second and third defendants are corporations engaged in trade or commerce – whether plaintiffs were under a special disadvantage known to second and third defendants – whether second and third defendants unconscientiously took advantage of plaintiffs’ special disadvantage – whether second and third defendants were engaged in conduct in connection with supply or possible supply of goods or services – whether second and third defendants engaged in unconscionable conduct under Australian Consumer Law ss 20 and 21.

INTELLECTUAL PROPERTY – copyright – groundless threats of legal proceedings – whether third defendant made threats in respect of infringement of copyright – whether statements constituted groundless threats of copyright infringement.

WORDS AND PHRASES – “interest”, “customer”.

INTELLECTUAL PROPERTY – copyright – original works in which copyright subsists – whether copyright subsists in each update or new release of software and user documentation – whether first cross-claimant owned copyright in software releases in relevant periods.

INTELLECTUAL PROPERTY – copyright – infringement – whether third cross-defendant infringed copyright in software – whether first, second and fourth cross-defendants had authorised alleged copyright infringement – liability of director of cross-defendants – whether cross-claimants are estopped from bringing an action for infringement of copyright – whether additional damages should be awarded under Copyright Act 1968 (Cth) s 115(4).

TRADE PRACTICES – misleading or deceptive conduct – whether established that alleged representations were made by first, second and third cross-defendants – whether representations were misleading or deceptive or likely to mislead or deceive – whether cross-claimants had relied on alleged representations – whether established that loss and damage suffered by cross-claimants was caused by representations – accessorial liability – application of Australian Consumer Law ss 18 and 29.

EQUITY – breach of confidentiality – whether information in licence key generator is property – whether information is confidential – whether second and third cross-defendants owed an obligation of confidentiality to cross-claimants – whether second and third cross-defendants breached obligation of confidence.

INTELLECTUAL PROPERTY – trade marks – infringement – where third cross-defendant had used phrase on website – whether first cross-claimant has standing to bring claim – whether cross-claimant is entitled to be registered as owner of registered trade mark – whether conduct of cross-defendants constituted trade mark infringement – whether cross-defendants are liable for additional damages.

Lau v R [2014] NSWCCA 179 (12 September 2014)

CRIMINAL LAW – CONVICTION APPEAL – attempting to possess a commercial quantity of an unlawfully imported border control drug – 102 kilograms of pure heroin – whether a miscarriage of justice because of lack of qualifications of expert interpreter called in Crown case – whether verdict of jury unreasonable or could not be supported by the evidence – whether evidence as to flight properly admitted – evidence of Crown expert not misleading – differences in interpretation between Crown and defence experts not of significance in conduct of trial – differences in interpretation adequately explained by differences in audio equipment – strong circumstantial Crown case – on whole of the evidence open to the jury to be satisfied beyond reasonable doubt as to guilt – evidence of flight properly admitted – no breach of s137 of the Evidence Act 1995 in admitting evidence of flight – conviction appeal dismissed – APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE – whether principle of parity properly taken into account – no significant difference in level of criminality between applicant and co-offender – differences in subjective case of applicant and co-offender – sentence of co-offender manifestly inadequate – parity principle not properly applied – need for applicant to be re-sentenced.

Fato v Regione Calabria Pty Ltd [2014] VSC 435 (11 September 2014)

APPEAL — Question of law — Magistrates’ Court Act 1989 s 109 — Test applicable where it is alleged the Magistrate’s decision is not open on the evidence.

ADMINISTRATIVE LAW — Natural justice — Magistrate made comments in running indicating adverse view of credit of appellant and respondent’s key witness — Comments more adverse to respondent’s key witness — Neither party complained during the trial — Appellant not denied natural justice — Waiver of right to rely on any breach of rules of natural justice.

ADMINISTRATION OF JUSTICE — Fair trial according to law — Undue interference by Magistrate in the conduct of the hearing — Magistrate took initiative to telephone a new witness during the hearing — No miscarriage of justice when trial considered as a whole.

CONTRACT — Loan agreement — Non-payment of principal and interest — Whether action statute barred — Limitation of Actions Act 1958 s 5.

Cook v Taing [2014] VSC 428 (11 September 2014)

CONTRACT – Settlement – previous mediation – mediation agreement – subsequent negotiations between parties – whether mediation agreement continued to apply – meaning of “mediation” – mediator reporting to court – parties’ representation to court that proceeding settled – correspondence between parties purporting to settle proceeding – whether settlement subject to written contract – binding agreement reached – Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 applied – compliance with court orders – Civil Procedure Act 2010 (Vic), ss 7, 16, 19, 22, 24 and 25 – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 50.07(4).

Rapson v The Queen [2014] VSCA 216 (11 September 2014)

CRIMINAL LAW – Appeal – Conviction – Rape and indecent assault – Tendency evidence – Eight complainants – Whether evidence of individual complainants cross-admissible – Whether sufficient similarity or commonality in sexual acts or surrounding circumstances – Crown concession that evidence of two complainants not cross-admissible – Evidence of other complainants cross-admissible – Appeal allowed, retrial ordered – Velkoski v The Queen [2014] VSCA 121 applied – Evidence Act 2008 ss 97, 101.

Cook v The Queen [2014] VSCA 220 (11 September 2014)

CRIMINAL LAW – Appeal – Conviction – Appellant convicted of one charge of committing an indecent act with a child under 16 and acquitted of seven other sexual offences –Credibility of complainant’s evidence – Whether conviction is unsafe and unsatisfactory – Appeal allowed – Conviction quashed and judgment and verdict of acquittal entered.

Munro v The Queen [2014] HCASL 178 (11 September 2014)

1. On 15 March 2013, the applicant was convicted upon the verdict of a jury in the Supreme Court of the Australian Capital Territory of one count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) and one count of intentionally inflicting grievous bodily harm contrary to s 19 of the Crimes Act 1900 (ACT). He was sentenced to a total period of imprisonment of 18 years with a non-parole period of 13 years.
2. The applicant appealed to the Court of Appeal of the Supreme Court of the Australian Capital Territory (Refshauge ACJ, Penfold and Burns JJ) against conviction and sentence. His appeal against conviction was dismissed. His appeal against sentence was allowed, and he was re-sentenced to a total sentence of 15 years’ imprisonment with a non-parole period of 10 years.
3. The applicant seeks special leave to appeal against the dismissal of his appeal against conviction.
4. The first contention said to warrant the grant of special leave to appeal is that there is a need for this Court to resolve a difference of judicial opinion as to the application of s 65(2)(c) of the Evidence Act 2011 (ACT). That contention cannot be supported. The approach to the application of s 65(2)(c), as explained in R v Ambrosoli[1], was not materially different from the approach taken in Conway v The Queen[2] and Williams v The Queen[3].
5. The second contention said to support the grant of special leave is whether a direction of the kind referred to in Shepherd v The Queen[4] should have been given by the trial judge in relation to evidence by a witness that he had recruited the applicant for the purpose of the robbery. The circumstances of the case were not such as to call for a Shepherd direction.
6. Accordingly, this application raises no question of principle which would warrant the grant of special leave. Special leave should be refused.
7. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.
S.M. Kiefel
11 September 2014
P.A. Keane

Curtis v Harden Shire Council [2014] NSWCA 314 (10 September 2014)

TORTS – negligence – duty of care – breach of duty – whether Civil Liability Act 2002 (NSW), s 43A applied – whether placing certain traffic control signs and omitting other signage involved the exercise of a “special statutory power” – prohibition on any person installing prescribed traffic control devices combined with requirement for statutory authority to undertake such activity

WORDS AND PHRASES – “special statutory power” – Civil Liability Act 2002 (NSW), s 43A

TORTS – negligence – duty of care – breach of duty – standard of liability – Civil Liability Act 2002 (NSW), s 43A – motor vehicle accident – whether omission of signs on road was an act no authority could properly consider a reasonable exercise of its power – expert evidence – evidence of council officer – omission of “slippery road” sign despite direction in Traffic Control Plan – common sense

TORTS – negligence – causation – onus – balance of probabilities – whether primary judge erred in comparison of probabilities with possibilities

TORTS – negligence – causation – motor vehicle accident – whether absence of signage caused driver to lose control on first resurfaced section – balance of probabilities – no direct proof – whether circumstances give rise to a reasonable and definite inference – consideration of state of the road, circumstances of accident, expert evidence and competing hypotheses

Green v ESTA [2014] VSCA 207 (10 September 2014)

ACCIDENT COMPENSATION – Workplace injury – Negligence and breach of statutory duty – Jury trial – Verdict for defendant – Recent invention – Legal practitioners – Counsel’s duties – Attack on plaintiff – Unjustified allegation of concoction and collusion between plaintiff and solicitor – Duty of counsel to ensure that evidence exists justifying allegation – Appeal allowed – New trial ordered.

Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 5) [2014] FCA 976 (9 September 2014)

ARBITRATION – international arbitration – whether the Court should appoint receivers in respect of shares in a private company incorporated in Australia being the only known asset in Australia belonging to an Indian corporation which is an award debtor under a foreign arbitral award – whether a purported sale of the said shares to another Indian corporation was a sham.

Herrick v Knowles [2014] NSWSC 1223 (5 September 2014)

EVIDENCE LAW – document sought under subpoena – protected confidence claimed over document – social worker and client relationship – court discretion to prohibit document access – question of harm suffered if access granted – probative value of document – public interest in the confidentiality of protected confidences

R v Zahab [2014] NSWSC 1197 (5 September 2014)

CRIMINAL LAW – murder; one count – trial by judge alone – Criminal Procedure Act 1986; s 132, s 133

CRIMINAL LAW – murder; one count – defence of mental illness – Mental Health (Forensic Provisions) Act 1900; s 38 – whether accused mentally ill at time of offences under M’Naughten Rules – facts agreed by Crown and Accused – expert opinion evidence – psychiatric diagnosis of paranoid schizophrenia – whether accused knew what he was doing was wrong – defence established – no point of general principle

In the matter of an application for bail by Eiginson [2014] ACTSC 234 (5 September 2014)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Jurisdiction of Supreme Court to hear application – Applicant charged with stalking and unauthorised divulging of prescribed information – Whether accused a “flight risk” – Whether accused likely to commit further offences if granted bail – Accused has ties to the jurisdiction – Accused has no criminal history – Conditional bail granted

Nominex Pty Ltd & Anor v Wieland & Ors [2014] VSCA 199 (5 September 2014)

TRADE PRACTICES – Misleading or deceptive conduct – Representations – Whether representation that funds in capitalised interest facility could be drawn down to fund repayment of the loan made – Alleged oral representations – Construction of funding document – Reliance – Causation – Trade Practices Act 1974 (Cth), s 52 – Fair Trading Act 1999 (Vic), s 9.

TRADE PRACTICES – Misleading or deceptive conduct – Accessorial liability – Trade Practices Act 1974 (Cth), s 75B – Fair Trading Act 1999 (Vic), s 159.

CORPORATIONS – Directors’ duties – Whether directors breached duties – No breach of duty.

AGENCY – Joint venture – Whether nominee company merely agent for joint venture parties.

DAMAGES – Pleadings – Case not run at trial – Octavo Investments Pty Ltd v Knight [1979] HCA 61; (1979) 144 CLR 360.

APPORTIONMENT – Apportionable claim – Concurrent wrongdoers – Trade Practices Act 1974 (Cth), ss 87CB and 87CC.

Kheir v The Queen [2014] VSCA 200 (5 September 2014)

CRIMINAL LAW – Conviction – Evidence – Opinion evidence – Lay opinion – Expert evidence – Ad hoc expert – Specialised knowledge based on training, study or experience – Basis rule – Identification – Identification evidence – Voice identification – Jury directions – Conduct of trial – Application for leave to appeal against conviction refused – Evidence Act 2008 , ss 76, 78 and 79.

CRIMINAL LAW – Sentence – Blackmail – Aggravated burglary – Armed robbery – Recklessly causing injury – Whether sentences manifestly excessive – Totality – Whether orders for cumulation excessive – Application for leave to appeal against sentence refused.

Gentry (A Pseudonym) v DPP [2014] VSCA 211 (2 September 2014)

CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Sexual offences against child under age of 16 – Single complainant – Evidence of sexual interest in complainant and willingness to act on that interest – Velkoski v The Queen [2014] VSCA 121, considered – Use of evidence of charged acts as tendency evidence – Versi v The Queen [2013] NSWCCA 206, applied.

Papazoglou v The Queen [2014] VSCA 194 (2 September 2014)

CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child, gross indecency and indecent assault – Adequacy of judge’s charge – Trial judge’s responsibility to identify real issues and summarise relevant evidence – Whether defence case and evidence adequately summarised – Central issue was reliability of complainants – Jury charge sufficient – R v AJS [2005] VSCA 288; (2005) 12 VR 563 applied – Whether verdict unsafe and unsatisfactory – Reasonable jury not bound to have doubt – R v Klamo [2008] VSCA 75; (2008) 18 VR 644, Greensill v The Queen (2012) 37 VR 257 applied – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child, gross indecency and indecent assault – Limits on cross-examination – Judge’s obligation to manage proceeding – Collateral evidence rule – Issues going to complainant’s credibility – Whether defence unfairly constrained – Limits appropriate – No unfairness – Papazoglou v The Queen (2010) 28 VR 644 applied.

CRIMINAL LAW – Appeal – Conviction – Trial – Witnesses – Prosecutor’s obligation to call – Applicant’s sons said to have been present when offences committed – Substantial time between offending and trial – Younger son had no recollection – Elder son had given evidence at earlier trial – No relevant recollection – Prosecution elected not to call either son – Both witnesses called by defence – Whether prosecution’s decision led to miscarriage of justice – No misuse by prosecution of opportunity to cross-examine – No miscarriage of justice.

CRIMINAL LAW – Appeal – Conviction – Evidence – Tendency evidence – Two complainants – Whether evidence cross-admissible – Whether significant probative value – Whether collusion reasonably possible – No evidence of collusion – No miscarriage of justice – Evidence Act 2008 ss 97, 101.

CRIMINAL LAW – Appeal – Conviction – Jury – Requirements of jury trial – Juror’s oath – Sufficiency of jury deliberations – Majority verdicts – Perseverance direction – Scope of ‘exclusionary rule’ – Note from jury to judge – One juror said not to be participating in deliberations – Whether individual juror required to participate in collective deliberation – Jury resumed deliberation after direction – No miscarriage of justice – Smith v Western Australia (2014) 250 CLR 473, Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 applied – Juries Act 2000 s 46(2) and sch 3.

Campbell v R [2014] NSWCCA 175 (2 September 2014)

CRIMINAL – appeal – conviction – whether misdirection in presentation of crown case to jury – no misdirection on factual possibility of push followed by a trip – consistent with an intention to kill – direction consented to – no tactical disadvantage – no miscarriage of justice – misdirection on availability of mental element of reckless indifference to human life – not Crown case – whether miscarriage of justice – significance of the appellant’s case that he was not involved in death at all – possibility of jury speculating remote – no objection by counsel

CRIMINAL – appeal – evidence – admission of evidence – expert opinion – whether evidence wholly or substantially based on specialised knowledge – process of reasoning involved matters of common knowledge

CRIMINAL – appeal – evidence – admission of evidence – expert opinion – whether expert had relevant expertise – whether expertise from study and experience – no details of how investigations conducted equipped expert to give evidence in present case – publications not tendered – titles of publications insufficient evidence of expertise from study and experience

APPEAL – criminal – whether notwithstanding appellant’s success appeal should be dismissed – application of proviso – 6(1) Criminal Appeal Act 1912 (NSW) – whether no substantial miscarriage of justice – consideration of importance of expert evidence – Court satisfied beyond reasonable doubt that evidence properly admitted at trial proved the guilt of the appellant

APPEAL – criminal – fresh evidence – whether Court of Criminal Appeal decision concerning expert and book published by expert before trial is fresh evidence – could have been discovered by reasonable due diligence – no miscarriage of justice – previous decision of Court of Criminal Appeal irrelevant to admissibility of expert evidence

CRIMINAL – appeal – conviction – no error in direction on use of evidence as both tendency evidence and for motive – reserve consideration of whether tendency evidence must be proved beyond reasonable doubt reserved

His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Kotevich [2014] NSWSC 1215 (2 September 2014)

EQUITY – estoppel -whether defendant and Represented Persons are bound by decisions in earlier proceedings – whether previous declarations and orders are in rem – whether a privity of interest exists between the defendant (and the Represented Persons) and the Association (a defendant in the earlier proceedings) – whether order should be made under s 70 of the Civil Procedure Act 2005; TRUSTS AND TRUSTEES – terms of the trust – charitable trusts – proper construction of the Constitution and Diocesan Statute of the Macedonian Orthodox Church – whether it is a term of the trust declared in the 1997 proceedings that membership of the Parish Assembly, and thus the Association, depends on nomination in the parish register – whether parish register purportedly maintained by second defendant compliant with Constitution; EQUITY – whether relief should be denied on a discretionary basis – whether plaintiffs have clean hands – whether false evidence given in these proceedings and in earlier proceedings – whether false evidence directly and immediately related to equity sought

Kyriazis v The Magistrates’ Court of Victoria at Heidelberg & Anor [2014] VSC 411 (1 September 2014)

ADMINSTRATIVE LAW – Judicial review – Order 56 Supreme Court (General Civil Procedure) Rules 2005 – Decision of Judicial Registrar in Magistrates’ Court – Decision set aside – Order in nature of certiorari inutile – Re-hearing of charges – Order in the nature of mandamus unavailable – Adjournment application refused.

Polley v Johnson and anor [2014] NSWSC 1191 (29 August 2014)

SEARCH WARRANTS – Validity – Where search warrant granted to search premises in relation to an offence of threatening injury or detriment to a person believing that such person will be or may be called as a witness in judicial proceedings – Whether judicial proceedings are required to be on foot in order for such offence to be made out – Whether search warrant invalid

SEARCH WARRANTS – Validity – Whether reasons stated in the application for a search warrant were truthful – Where Court was invited to conclude that the stated reasons were a “cover” for another undisclosed reason – Where no such proposition was put to the applicant for the search warrant when cross examined – Breach of the rule in Browne v Dunn – Where evidence did not support the proposition that the warrant was issued for a reason other than that stated in the application

STATUTORY INTERPRETATION – general principles to be applied

TS v R [2014] NSWCCA 174 (29 August 2014)

CRIMINAL LAW – Appeal – Application for a permanent stay of prosecution for multiple counts of sexual assault – Where applicant found unfit to stand trial – Where Director of Public Prosecutions had determined to proceed to special hearing in any event – Where offending conduct occurred more than 40 years ago – Where the making of allegations arose as the result of recovered memory – Where only expert evidence supported the conclusion that such process was unreliable – Where material evidence no longer available due to lapse of time – Where primary judge dismissed application for a stay – Where error in exercise of discretion made out – Where discretion re-exercised – Stay of proceedings granted

R v Dacey Ian; R v Dacey Lee [2014] NSWSC 1201 (29 August 2014)

CRIMINAL LAW – murder – grievous bodily harm with intent – previous trial but no verdicts reached – trial by judge alone – causation – reasonable possibility that stab wounds inflicted by Ian Dacey did not substantially or significantly contribute to death of deceased – common ground that grievous bodily harm was caused – satisfied beyond reasonable doubt that grievous bodily harm was intentionally caused – satisfied beyond reasonable doubt that Ian Dacey did not believe it was necessary in order to defend brother – joint criminal enterprise to assault but no foresight of grievous bodily harm

Williams v Katis [2014] VSC 405 (29 August 2014)

DEFAMATION – Action for defamation by one candidate against opponent in municipal election – Four separate publications – News broadcast – News interview – Court document – Provision of court document to journalist – Statement to lawyer – Meaning of defamatory imputations – Defences to defamation – Justification – Fair comment – Honest opinion – Malice – Defamation Act (Vic) 2005, ss 25, 30, 31.

Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936 (28 August 2014)

EVIDENCE – legal professional privilege – advice privilege – dominant purpose of giving or obtaining legal advice or the provision of legal services – whether legal advice provided to individual in personal capacity or in capacity as director of company – onus of proving claim for privilege – whether onus of proving privilege discharged

Boral Resources (NSW) Pty Ltd v Gangi [2014] NSWCA 287 (28 August 2014)

COSTS – challenge to special order that successful plaintiff be paid only a percentage of his costs – not unreasonable for defendant to refuse Calderbank offer – no error in rejecting submission that defence was improperly maintained – power to reduce costs even where a plaintiff obtained a substantial verdict in his favour – costs discretion re-exercised in light of other errors disclosed in reasons

TORTS – negligence – owner and operator of concrete batching plant failed to inspect and maintain all structural elements – plant collapsed on truck driver – challenge to findings of liability and breach based on impermissible use of hindsight – challenge to drawing of inference from owner’s failure to adduce evidence of results of forensic investigation into collapse – primary judge expressly found owner liable without needing to rely on inferences – damages – factual challenges to heads of economic and non-economic loss

OXS Pty Ltd v Sydney Harbour Foreshore Authority and Minister for Planning and Environment [2014] NSWSC 1174 (26 August 2014)

CONTRACTS – existence of contract – where relevant premises leased to plaintiff by relevant defendant – where current lease has expired – whether relevant correspondence between parties purporting gave rise to binding contract to grant a new lease – whether relevant correspondence had sufficient certainty to give rise to an enforceable contract – whether lease on “commercial terms” is sufficiently certain – whether conditions of contract needed to be satisfied by relevant date – whether ministerial consent was provided for entry into contract under Sydney Harbour Foreshore Authority Act 1998 (NSW) s 19 – whether entry into contract was valid absent ministerial consent – whether relevant defendant is bound by implied term to seek ministerial consent.

EQUITY – equitable remedies – specific performance – where plaintiff seeks order for specific performance of contract under subsequent and not original terms – where contract is too uncertain to have contractual effect – defence of delay – whether specific performance should be granted.

TRADE PRACTICES – misleading or deceptive conduct – whether alleged representations were made by relevant defendant – whether relevant representations were misleading or deceptive or likely to mislead or deceive – whether plaintiff had relied on alleged representations – whether it can be established that loss and damage suffered by plaintiff was caused by alleged representations – application of Australian Consumer Law s 18 and Retail Leases Act 1994 (NSW) s 62D.

TRADE PRACTICES – unconscionable conduct – whether relevant defendant engaged in unconscionable conduct under Australian Consumer Law ss 20 and 22 and Retail Leases Act s 62B.

ESTOPPEL – representational – whether relevant defendant has departed from relevant representation – whether relevant defendant should be estopped from denying existence of contract or granting lease.

ADMINISTRATIVE LAW – prerogative writs and orders – application for orders in the nature of certiorari, mandamus and declaration in respect of “decision” by relevant defendant – where no decision was made by relevant defendant – whether orders for relief should be granted under Supreme Court Act 1970 (NSW) s 69.

WORDS AND PHRASES – “commercial terms”

The Greek Orthodox Parish Community of St Marys and District Limited v Denis Stanley Merrick [2014] NSWSC 1196 (26 August 2014)

CONTRACT LAW – contract for the sale of land – notice to complete – settlement location in dispute – termination of contract – termination invalid – recovery of deposit under s 55(2A) conveyancing act 1919

EVIDENCE LAW – affidavit not properly sworn – definition of public document – evidentiary value of statements made by solicitors

“A” v Independent Commission Against Corruption [2014] NSWSC 1167 (27 August 2014)

ADMINISTRATIVE LAW – judicial review – decision of Independent Commission Against Corruption not to disclose basis upon which a summons to produce documents was issued to plaintiff – notice to produce served by plaintiff – application by Commission to set aside notice to produce – ICAC Act s 111(3) – whether s 111(3) applies to the Commission as a separate legal personality – whether s 111(3) applies to documents created by the Commission

ADMINISTRATIVE LAW – judicial review -summons to produce documents issued by Commission to plaintiff – ICAC Act s 35(1) – plaintiff’s application to set aside summons – whether summons authorised by s 35 – whether Commission took into account relevant considerations in issuing the summons – whether decision to issue summons reasonable – whether decision to issue summons illogical, irrational or not based on findings or inferences of fact – whether Commission failed to accord procedural fairness to plaintiff

CONSTITUTIONAL LAW – judicial review – whether s 111(3) inconsistent with power of Supreme Court to grant relief in relation to jurisdictional error – whether Court has effective supervision of decisions made by the Commission under s 111(3)

CONSTITUTIONAL LAW – implied freedom of communication on governmental and political matters – whether s 35(1) inconsistent with the implied freedom – whether s 35 effectively burdens freedom of communication on government or political matters in its terms, operation or effect – whether a legitimate statutory purpose can be identified – whether s 35 reasonably appropriate and adapted or proportionate to an identified legitimate statutory purpose

International Relief and Development Inc v Ladu [2014] FCA 887 (20 August 2014)

ARBITRATION – Foreign arbitral award – Application to enforce foreign award – Opposition to enforcement on the basis of no proper notice – Whether absence of proper notice of appointment of the arbitrator or of the arbitration proceedings – Whether breach of the rules of natural justice – Whether no notice of the arbitration hearing – Consideration of grounds for refusing to enforce foreign award under ss 8(5)(c), (7) and (7A) of the International Arbitration Act 1974 (Cth) – Respondent failed to establish alleged absence of notice – Order for enforcement made.

Bailey v Director General Department of Natural Resources (formerly known as Department of Land and Water Conservation) [2014] NSWSC 1012 (25 July 2014)

MALICIOUS PROSECUTION – whether institution and maintenance of criminal proceedings for illegal clearing of native vegetation in the Land and Environment Court and by a case stated to the Court of Criminal Appeal was malicious and without reasonable and probable cause – misfeasance in public office – negligent misrepresentation – interference in trade or business – principle in Jones v Dunkel – claim of client legal privilege – whether plaintiffs exempt from the need to obtain development consent prior to clearing native vegetation – whether clearing part of “designated development” under s 12(f) Native Vegetation Conservation Act 1997 – whether plaintiffs entitled to rely on “rural structures” or “farm dam exemption” – whether any valid or conforming application under Part 8 of the Water Act 1912

Hamilton v Pickering [2014] VSC 399 (26 August 2014)

CRIMINAL LAW — Appeal to County Court against conviction and sentence imposed by Magistrates’ Court — Whether appellant required to attend the hearing of appeal — Whether appearance by counsel sufficient — Personal attendance not required — Criminal Procedure Act 2009 ss 254, 255, 256, 267, 268, 328, 329, 330 and definitions of ‘appear’ and ‘attend’ in s 3 — County Court Criminal Procedure Rules 2009 r 3.02, Form 3A.

ADMINISTRATIVE LAW — Application for judicial review — Order of judge of County Court striking out appeal against conviction and sentence imposed by Magistrates’ Court — Absence of power to make order — No discretionary considerations warrant dismissal of application — Application granted.

Hanna v The Queen; Mohamed v The Queen; Mohamed v The Queen [2014] VSCA 187 (26 August 2014)

CRIMINAL LAW – Appeal – Conviction – Kidnapping, false imprisonment and intentionally causing injury – Jury directions – Whether directions about ‘background’ or ‘context’ invited propensity or tendency reasoning by jurors – No substantial miscarriage of justice – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Leave to appeal – Jury – Apprehended bias – Whether juror overheard accused at café – Whether judge investigated adequately – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Kidnapping, false imprisonment and intentionally causing injury –Total effective sentence nine years and six months’ imprisonment, non-parole period seven years – Whether manifestly excessive – Parity – Whether identical sentences adequately reflected youth and rehabilitation of younger applicants – Procedural fairness – Psychologist’s report – Judge’s assessment of applicant more favourable than report – Whether finding reasonably anticipated – Younger applicants re-sentenced – Eight years’ imprisonment, non-parole period five years and six months.

McGavin v R [2014] NSWCCA 171 (25 August 2014)

CRIMINAL LAW – direction to jury – multiple break and enters in company – co-offender received reduced sentence on undertaking to provide evidence against applicant – neither prosecution or defence proffered information as to effect of percentage of discount received by co-offender – co-offender not cross-examined as to whether motivated by possible resentencing for failure to fulfil undertaking – no warning sought that evidence of co-offender may be unreliable – judge warned about unreliability of co-offender’s evidence with reference to percentage of discount afforded – whether warning on unreliability by the trial judge sufficient – whether the trial judge should have referred to the reduction of time the discount reflected – whether the trial judge should have warned the jury that co-offender would lose benefit of reduced sentence if he failed to fulfil undertaking – Criminal Appeal Rules (NSW), r 4 – Evidence Act 1995 (NSW), s 165

EVIDENCE – warning as to unreliability – witness gave statement to police – discount on sentence for assistance to law enforcement authorities – witness faced resentencing if he departed from undertaking to give evidence implicating his father – whether warning need to quantify effect of discount at risk – whether warning needed to explain liability to be resentenced if he departed from undertaking – Evidence Act 1995 (NSW), s 165

Baxter v Baxter [2014] VSC 377 (22 August 2014)

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by three adult sons, three grandchildren and one stepgrandchild — Claim by adult son of the deceased — Whether the deceased had a responsibility to make further provision for the son — Further provision ordered

Gemmell & Anor v Le Roi Homestyle Cookies Pty Ltd & Ors [2014] VSCA 182 (22 August 2014)

PRACTICE AND PROCEDURE – Pleadings – Discovery – Appeal from order for delivery of defence and for giving discovery in insolvent trading claim – Appellants were directors of company in liquidation – Appellants did not claim useimmunity against self-incrimination or exposure to penalty during public examinations by liquidator – Statement of Claim based on answers given during public examinations – Whether appellants relieved from delivering substantive defences and making discovery – Whether common law privileges abrogated in present proceeding – Effect of answers given in public examination upon common law privileges – Appellants not relieved from delivering defences and making discovery to extent of answers previously given – No waiver of privileges, but no increased jeopardy – Appellants not disentitled from claiming privileges with respect to potential selfincrimination or exposure to penalty travelling beyond that resulting from answers given (and incorporated documents) at public examination – Corporations Act 2001 (Cth), ss 597(12), (12A) and (14) – Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3; (2002) 116 FCR 372 applied.

Edith White v Judith Liane Wills [2014] NSWSC 1160 (22 August 2014)

EQUITY – undue influence – where plaintiff executed a deed not to revoke her will – whether presumption of undue influence arises – whether presumption rebutted – whether improvident transaction – whether plaintiff received independent advice – whether unjust under Contracts Review Act – whether doctrine of suspicious circumstances applies

Wallace on behalf of the Boonthamurra People v State of Queensland [2014] FCA 901 (22 August 2014)

NATIVE TITLE – whether the apical ancestors of the respondent groups were also apical ancestors of the native title claim group – traditional area associated with the apical ancestors of the respondent groups were not part of the geographical area of the claim group – apical ancestors of the respondent groups did not acquire native title rights or interests in the claim area – strong anthropological evidence that the apical ancestors were unlikely to come from the claim area