http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/346.html

CRIMINAL LAW – Appeal by DPP pursuant to Part 5 of the Crimes (Appeal and Review) Act 2001 – matter dismissed pursuant to s 32 of Mental Health (Forensic Provisions) Act 1990 – insufficient reasons contained in judgment – appeal allowed – matter remitted to Local Court

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/64.html

CRIMINAL LAW – EVIDENCE – coincidence evidence – application to adduce –

ss 98, 101 Evidence Act 2011 (ACT) – general principles examined – the evidence sought to be adduced has significant probative value that substantially outweighs prejudice to accused – application allowed

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/73.html

CRIMINAL LAW – appeal against conviction – conspiracy to import commercial quantity of cocaine – extension of time – whether trial miscarried because of conduct of Crown prosecutor – application of the proviso in s 6(1) of the Criminal Appeal Act

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/65.html

CRIMINAL LAW – EVIDENCE – tendency evidence – application to adduce –

s 97 Evidence Act 2011 (ACT) – whether evidence can prove proposed tendency – evidence lacks significant probative value – application refused

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2013/323.html

EVIDENCE – Opinion evidence – Expert evidence – Whether expert on international transportation law qualified to give evidence on competition law – Whether expert on international transportation law qualified to give evidence on treaty construction

EVIDENCE – Opinion evidence – Expert evidence – Proof of international law – Whether international law to be proved as a matter of law – Whether question of international law arising as part of foreign law to be proved as a fact or whether it should be excluded – Interaction between foreign, domestic and international law in evidence

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/70.html

APPEAL – error in process of fact finding – failure to examine all material relevant to central issue – new trial required

CONTRACT – whether transaction loan to appellant or investment in third party company – whether respondents’ case contrary to compelling inference

CONTRACT – post-contractual conduct – letter from respondents’ solicitor to third party – whether letter contained admissions adverse to respondents’ interests

EVIDENCE – whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness – client legal privilege – where respondents gave evidence at trial about solicitor’s advice – whether respondents waived privilege by acting inconsistently with maintenance of privilege

http://www.austlii.edu.au/au/cases/cth/FCA/2013/294.html

TRADE PRACTICES – agreed antitrust contraventions – agreed injunction, pecuniary penalty, and order for costs – principles appropriate to order for pecuniary penalty

http://www.austlii.edu.au/au/cases/cth/FCA/2013/293.html

PRACTICE AND PROCEDURE – injunction sought to stay inspection of documents seized under search warrant – applicant claimed irremediable prejudice – assessment of strength of case on appeal – balance of convenience

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/283.html

PRACTICE AND PROCEDURE – inherent jurisdiction of the Court – application for stay of disciplinary proceedings pending possible criminal proceedings – whether jurisdiction ousted by s 9 of Administrative Decisions (Judicial Review) Act 1977 (Cth) – public interest in disciplinary proceedings – any unfair prejudice capable of being protected otherwise – summons dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/68.html

CRIMINAL LAW – appeal – applicants questioned at a hearing before the New South Wales Crime Commission – non-publication direction under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) – transcripts of interview and compelled documents provided to Director of Public Prosecutions in breach of non-publication direction – concession that provision of material unlawful – whether provision of materials to the Director denied the applicants’ right to a fair trial or otherwise created a miscarriage of justice

ADMINISTRATIVE LAW – functions of the New South Wales Crime Commission – obligation to furnish admissible evidence on the Director – whether obligation limits the power of the Commission to furnish other material to the Director

CRIMINAL LAW – appeal – failure to warn the jury about particular matters relevant to the reliability of a witness – whether the trial judge misdirected the jury

CRIMINAL LAW – appeal – whether verdicts were unreasonable and unsupported by the evidence – approach of appellate court in determining this ground – evidence in support of the case circumstantial – evidence of key witness consistent with this evidence – reliability and adequacy of witness’s evidence in question – where the jury had the advantage of assessing the witness

CRIMINAL LAW – appeal – where applicant alone charged with possession – where trial judge gave directions allowing the applicant to be convicted on the basis of joint possession – whether the trial judge misdirected the jury

CRIMINAL LAW – appeal – applicants charged with supply of prohibited drugs – one applicant charged in the alternative with knowingly taking part in supply – trial judge gave directions allowing conviction on the basis of joint possession with others, or individually – whether trial judge misdirected the jury

CRIMINAL LAW – appeal – evidence – nature of “consciousness of guilt” reasoning

http://www.austlii.edu.au/au/cases/cth/FCA/2013/276.html

PRACTICE AND PROCEDURE: application for leave to amend notice of appeal – amendments sought not argued by the appellant in the court below – whether it is in the interests of justice to allow the amendments – whether allowing the amendments would cause prejudice to the respondent – whether the proposed grounds of appeal are reasonably arguable

http://www.austlii.edu.au/au/cases/cth/FCA/2013/277.html

CORPORATIONS LAW – winding up – statutory demands – application to set aside – whether genuine dispute about existence or amount of debt

CORPORATIONS LAW – winding up – statutory demands – application to set aside – affidavit in support – need for affidavit in support to be filed within 21 days of statutory demand – admissibility of affidavits filed outside that time – proper characterisation of affidavits filed late – Corporations Act 2001 (Cth) s 459G

EVIDENCE – types of evidence – company books and accounts – admissible without proof – meaning of “prima facie” – rebuttability of presumption – Corporations Act 2001 (Cth) s 1305

EVIDENCE – statutory presumptions – time for receiving prepaid post – absence of evidence to contrary – Evidence Act 1995 (Cth) s 160

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/228.html

PROCEDURE – case management – preliminary rulings on expert evidence – whether expert reports admissible.
EVIDENCE – expert evidence – whether reports comply with r 31.27 UCPR – use of photographs – whether expertise needed to interpret.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/289.html

EVIDENCE – admissibility – hearsay – business records exception – email from a supplier to a former customer indicating the final date a particular chemical was supplied – evidence constituted a previous representation made in the course of business – the content of the representation and the time gap between the email exchange and the commencement of proceedings do not indicate proceedings were contemplated at the relevant time.

EVIDENCE – admissibility – court’s general discretion to exclude evidence – inappropriate to exercise discretion where evidence carries significant probative value and is unlikely to mislead, confuse, waste time or cause unfair prejudice.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/260.html

ADMINISTRATIVE LAW – Application for extension of time to appeal –decision to cancel disability support pension under the Social Security Act 1991 (Cth) – appeal from Administrative Appeals Tribunal – Administrative Appeals Tribunal Act 1975 (Cth), s 44 – discretion to extend time to appeal – matters to be taken into account – explanation for delay – whether there is a question of law – whether any merit in proposed appeal – procedural fairness – whether AAT decision infected by actual or apprehended bias.

PRACTICE AND PROCEDURE – Application for extension of time to appeal – reasons for delay – whether appeal disclosed question of law – Legal Aid Commission Act 1979 (NSW), ss 56, 57.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/224.html

SUCCESSION – wills, probate and administration – construction and effect of will

http://www.austlii.edu.au/au/cases/cth/FCA/2013/235.html

TRADE PRACTICES – cartel conduct – bid rigging – requirement of a request for bids – requirement of a provision with the purpose of ensuring that one party bids but another party does not – requirement of a contract, arrangement of understanding – requirement that parties to bid rigging arrangement be in competition with one another – exception where arrangement concerns the acquisition of shares in a body corporate – conduct engaged in outside of Australia – accessorial liability – Competition and Consumer Act 2010 (Cth), Pt IV, Div 4

TRADE PRACTICES – misleading or deceptive conduct – misleading or deceptive conduct by silence – whether necessary to adduce evidence of reliance upon representations – conduct engaged in outside of Australia – accessorial liability – proportionate liability – Competition and Consumer Act 2010 (Cth), Sch 2, Pt 2-1

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/59.html

CRIMINAL LAW – EVIDENCE – tendency evidence – application to adduce – s 97 Evidence Act 2011 (ACT) – acts do not establish a tendency – application refused

Evidence Act 2011 (ACT), s 97

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/48.html

CRIMINAL LAW – “coincidence evidence” – effect of s 98 and s 101 Evidence Act – exclusion of evidence – effect of s 137 Evidence Act

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/212.html

PROFESSIONS AND TRADES – lawyers – client legal privilege – waiver of – inconsistency between claims made and maintenance of the privilege – claim for mental harm – incapacity to conduct business or litigation alleged – documents seeking and providing instructions to solicitors in other litigation – privilege waived

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2013/1.html

DEFENCE – Convictions relating to claims for reunion travel – whether Defence Force Magistrate incorrectly found that witness not confronted with certain allegation directly in cross examination – whether inadequate reasons given for accepting evidence-in-chief in preference to evidence given in cross examination – whether Defence Force Magistrate rejected evidence of witness on the basis of ill-founded assumption – whether inadequate reasons given for adverse credit finding and finding of dishonesty – whether conviction unreasonable, unsafe or unsatisfactory

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/55.html

DAMAGES – claims under the Compensation to Relatives Act 1897 (NSW) – limit on the “claimant’s” income to which a court may have regard when calculating future loss of economic support – whether limit applies to claims under the Compensation to Relatives Act – whether deceased person is a “claimant” – whether appropriate for court to insert words not used by the Parliament – Civil Liability Act 2002 (NSW), s 12

STATUTORY INTERPRETATION – principles – whether words may be read into a provision to qualify the literal meaning – proper scope of a purposive construction

WORDS & PHRASES – “claimant” – “relate to”

http://www.austlii.edu.au/au/cases/cth/FCA/2013/168.html

EVIDENCE – Discretion to limit use of evidence – Evidence Act 1995 (Cth) s 136 – Whether expert evidence testimony outside the pleaded case – Whether expert qualified to assert factual claims

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/56.html

EVIDENCE – indecent assault of person under the age of 16 – context evidence to assist in evaluation of complainant’s evidence of alleged offences – previous conduct of the appellant of a sexual nature involving the complainant – requirements for use as propensity evidence not satisfied – appropriate directions to the jury

EVIDENCE – indecent assault of person under the age of 16 – tender by accused of alleged prior inconsistent statement of complainant erroneously rejected under s 135 Evidence Act as unfair to Crown – whether substantial miscarriage of justice – proviso to s 6 Criminal Appeal Act 1912

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/45.html

CRIMINAL LAW – Inquiry subsequent to conviction – applicant convicted of sexual assault offences – whether doubt or question as to guilt – reliability of evidence – where evidence based on dreams or flash backs – whether direction about unreliability of evidence required – whether breach of Prosecution’s duty of disclosure – Crimes (Appeal and Review) Act 2001, s 78.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/28.html

APPEAL – only ground that further evidence available justifying new trial – exercise of discretionary power under s 75A(7) of Supreme Court Act 1970 – most of further evidence as to matters occurring before trial – importance of principle of finality – whether “special grounds” – whether appellant could have led evidence as to those matters at trial by exercise of reasonable diligence – whether probable that further evidence would have resulted in a different outcome at trial – further evidence considered separately and together not justify conclusion that outcome would have been different – interests of justice not require order for new trial on basis that a “substantial wrong or miscarriage” has been occasioned

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/90.html

EVIDENCE – admissibility of an expert report – whether report relevant – whether expert opinion based wholly or substantially on an expert’s training, study or expertise -whether an expert has provided adequate explanations for opinions

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/61.html

CORPORATIONS – Voidable transactions – Application for orders under Corporations Act 2001 (Cth) s 588FF – Whether transactions are unfair preferences – Whether transactions are uncommercial transactions – Whether transactions are voidable as insolvent transactions – Whether defence under s 588FG(1)(a) Corporations Act 2001 (Cth) is applicable.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/200.html

NATIVE TITLE – summary dismissal – authorisation of applicants – claimant group

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/42.html

CRIMINAL LAW – grant of stay – Australian Crime Commission (ACC) examination transcripts disseminated to Commonwealth Director of Public Prosecutions (CDPP) – scope of s 25A of the Australian Crime Commission Act 2002 (Cth) – whether dissemination might prejudice a fair trial.

CRIMINAL LAW – grant of stay – ACC examination transcripts disseminated to CDPP – whether dissemination of transcripts resulted in a fundamental defect in the trial process – exercise of discretion – whether a permanent stay justified.

CRIMINAL LAW – grant of stay – ACC examination transcripts disseminated to CDPP – whether dissemination resulted in a fundamental defect in the trial process – inference as to use of transcripts by CDPP – whether material justified inference.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/117.html

CONTRACTS – breach of contract – breach of essential term, or alternatively, serious breach of a non-essential term – termination

CONTRACTS – repudiation – acceptance of repudiation

CONTRACTS – repudiation – where both parties partially misconstrue a term of the contract – where defendant failed to comply with demands purportedly made pursuant to the terms of the contract – no repudiation if the relevant demand was not wholly a requirement of the contract

TRADE & COMMERCE – misleading or deceptive conduct – representations – no reliance

ESTOPPEL – equitable estoppel – whether plaintiff estopped from resiling from assumption that all files referred to the defendant were appropriately classified – no reliance
DAMAGES – damages for loss of benefit of the contract and likely renewals – no loss proved

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/46.html

APPEAL – failure by trail judge to give reasons in support of conclusions – factfinding miscarried – new trial
EVIDENCE – where no objection to medical and other reports containing history given by plaintiff – admissibility of histories in reports – s 60 Evidence Act 1995 (NSW) – no limitation sought under s 136 of the Evidence Act on use of histories in reports