Author Archives: admin0

Amos v R [2014] NSWCCA 302 (12 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/302.html

CRIMINAL LAW – appeal against conviction – murder – joint trial – whether separate trial should have been ordered – application for separate trial not made – whether miscarriage of justice – cross-examination of appellant about character without leave – factual error made by counsel – whether miscarriage of justice – appeal dismissed

Johnson v Box Hill Institute of TAFE [2014] VSC 626 (12 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/626.html

NEGLIGENCE — Workplace injury — Manual handling – Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic) — Breach of common law and statutory duties — Contributory negligence —Psychiatric injury — Bullying and harassment — Alleged failure by employer to prevent bullying/harassment by supervisor during return to work — Scope of employer’s duty to prevent psychiatric injury — Whether employer’s response to risk of psychiatric injury adequate — Application of Koehler v Cerebos (Aust) Ltd Assessment of damages —Application of Malec v Hutton to assessment of damages — Interaction between physical and psychological injuries.

Beckett v R [2014] NSWCCA 305 (12 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/305.html

CRIMINAL LAW – appeal against interlocutory judgment or order – Criminal Appeal Act 1912, s 5F – appeal from dismissal of application for permanent stay

STAY OF PROCEEDINGS – permanent stay of proceedings – abuse of process – whether proceedings commenced or maintained mala fides – compelled questioning under the Taxation Administration Act 1996, s 72 – whether information or evidence obtained pursuant to s 72 can be used for the purposes of a prosecution under a taxation law only

STAY OF PROCEEDINGS – permanent stay of proceedings – abuse of process – whether proceedings commenced or maintained mala fides – compulsory questioning under the Taxation Administration Act 1996, s 72 – whether officers had intention to trick, deceive or mislead

CRIMINAL LAW – offences – perverting the course of justice – Crimes Act 1900, s 319 – meaning of “course of justice” – conduct prior to invocation of the jurisdiction of a court

CRIMINAL LAW – right to silence – privilege against self-incrimination – whether abrogated by Taxation Administration Act 1996, ss 72, 82, 84 and 85 – implied abrogation – permissible use of information obtained in compelled interview

EVIDENCE – admissions – Evidence Act 1995 , s 90

Primaplas Pty Ltd v Chief Executive Officer of Customs [2014] FCA 1358 (12 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1358.html

TAXATION – decision of a delegate of the Chief Executive Officer of Customs to assess customs duty and GST – importation of polyethylene products – where assessment of the gravity of imported polyethylene products required for customs classification – whether assessment of gravity of polyethylene products includes additives

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 (12 December 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1365.html

INDUSTRIAL LAW – contravention of modern award – participants in a claimed unpaid training program were in reality employees to whom the Fair Work Act 2009 (Cth) and Manufacturing and Associated Industries and Occupations Award 2010 (“the Award”) applied – whether employer contravened terms of the Award – whether employees were casuals within the definition in the Award – degree of knowledge required to establish individuals’ accessorial liability under s 550

INDUSTRIAL LAW – failure to comply with Notice to Produce Records or Documents issued by Fair Work Inspector under s 712 of the Fair Work Act 2009 (Cth) – Notice assumed status of workers as “employees” – Notice unduly wide and uncertain – reasonable excuse for failure to compl

The Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428 (12 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/428.html

LEGAL PRACTITIONERS – removal from roll of local lawyers – application to have lawyer’s name removed from roll – where lawyer convicted of criminal offences including aggravated sexual assault – where lawyer denied that he committed the offences of which he was convicted, both at trial and at sentencing hearing – whether of good fame and character – whether guilty of professional misconduct – whether presently a fit and proper person – Legal Profession Act 2004 (NSW), s 32

Kyriackou v Law Institute of Victoria Limited [2014] VSCA 322 (11 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/322.html

LEGAL PRACTITIONERS – Lay associate – Appeal against VCAT disqualification order – Findings that actions of lay associate if by an Australian legal practitioner may have resulted in charges – Whether lay associate party to acts – Involvement of lay associate –Deficiency in trust account – Statutory misconduct – Professional misconduct – Penalty – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Legal Profession Act 2004 ss 1.2.4(1)–(2), 2.2.5, 2.2.6(1)(b), (2), (3), (4), (5), 2.2.7, 2.2.8, 3.3.21, 4.4.2.

APPEAL – Appeal on question of law – Defective notice of appeal – Whether VCAT’s decision open on the evidence – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 rr 4.15, 4.17.

EVIDENCE – Standard of proof – VCAT not bound by rules of evidence – Relevance of rule in Briginshaw v Briginshaw to VCAT proceedings – Failure of appellant to give evidence – Victorian Civil and Administrative Tribunal Act 1998 s 98 – Evidence Act 2008 s 140.

Clarke (as trustee of the Clarke Family Trust) & Ors v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) & Ors [2014] VSC 516 (11 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/516.html

PRACTICE AND PROCEDURE – GROUP PROCEEDINGS – Approval of Settlement Application under Supreme Court Act 1986 (Vic), s 33V – Relevant factors to be considered – Opt Out Application – Clarke v Great Southern Finance Pty Ltd (in liquidation) [2014] VSC 569 – Publication of reasons

El-Zayet v The Queen [2014] NSWCCA 298 (10 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/298.html

JURISDICTION – Court of Appeal – Supreme Court Act 1970, s 17 – Whether Court of Appeal has jurisdiction to hear appeal from decision under Costs in Criminal Cases Act – Whether interlocutory order is part of proceedings

JURISDICTION – Court of Criminal Appeal – Criminal Appeal Act 1912, s 5F – Whether Court of Criminal Appeal has jurisdiction to hear appeal from decision under Costs in Criminal Cases Act – Whether decision under Costs in Criminal Cases Act is interlocutory

PRIVILEGE – client legal privilege – applicability of Evidence Act 1995 , ss 118 and 119 – where evidence not adduced

PRIVILEGE – client legal privilege – waiver – imputed waiver – whether conduct was plainly inconsistent with maintenance of confidentiality

AGENCY – implied or apparent authority – whether authority to compromise proceedings carried authority to waive privilege

Cahill v Kenna; Cahill v Ferrier [2014] NSWSC 1763 (10 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1763.html

EVIDENCE – expert evidence – whether to reject whole of evidence of expert witness where prepared on a basis inconsistent with the impugned valuation – whether evidence was unfairly prejudicial – where excluding evidence would effectively determine the issue of substance to which that evidence was directed

EVIDENCE – expert evidence – whether to reject evidence of valuations prepared for non-litigation purposes – where valuations were business records – whether r 31.23 only applies to reports prepared by an “expert witness” – whether court should “otherwise order” – whether evidence would be unfairly prejudicial – where signatories did not acknowledge obligations under schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)- where signatories not to be called as witnesses – where signatories not involved in preparation of joint expert reports

EVIDENCE – expert evidence – expert valuation of land – whether one expert’s evidence to be preferred – where one expert witness briefed with substantially more information – where other expert prepared a “blind” valuation – where expert town planning advice not available to original valuer – where expert town planning advice nevertheless relied upon by one expert witness – where expert town planning advice speculative

NEGLIGENCE – duty of care – whether mediator and valuer owed a common law duty of care to plaintiffs – whether plaintiffs were vulnerable – where valuer did not know the purpose for which the valuation was to be used – whether reliance is sufficient to establish vulnerability – whether plaintiffs could have protected their own interests – whether valuation negligent – whether valued at highest and best use of the site – whether negligent in valuing property without expert town planning advice – whether no valuer acting prudently and reasonably could arrive at the value in the valuation report – whether mediator negligent in instructions to valuer – whether mediator owed parties in dispute a duty of care in instructing valuer – whether mediator breached duty of care – whether mediator acting in capacity as mediator or separate contract entered into for mediator to instruct valuer – whether mediator protected from liability as acting in capacity as mediator

MISLEADING AND DECEPTIVE CONDUCT – expert valuation of property – whether value attributed to property was misleading or deceptive – whether direct or indirect reliance on valuation – whether the valuation causative of loss

Kazas-Rogaris v Gaddam [2014] NSWSC 1465 (9 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1465.html

APPEAL – from Local Court – claim for trespass to land – neighbour cuts down trees on Plaintiff’s land – various procedural errors alleged – whether errors of law – one party calls another party to give evidence – whether an abuse of process – magistrate permits discontinuance against one defendant – whether consent of other defendant needed – apprehended bias -failure of appellant to object at trial to matters now complained of – whether waiver by failing to raise matters

HRF Nominees Pty Ltd (In Liq) & Anor v Man Civil Constructions Pty Ltd & Ors (No 2) [2014] VSC 613 (8 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/613.html

PRACTICE AND PROCEDURE – Subpoena to non-party before trial – Production to Prothonotary under special procedure – Requirement that production be sought ‘For evidence’ – Application to set aside subpoena – Whether legitimate forensic purpose – Order 42A.01.

PRACTICE AND PROCEDURE – Privilege against self-incrimination or self-exposure to a penalty – Proceeding against a director of first plaintiff for breach of fiduciary duties and director’s duties under ss 180, 181 and 182 of the Corporations Act 2001 (Cth) – First plaintiff’s business alleged to have been ‘phoenixed’ into the first defendant – Objection to inspection of subpoenaed documents on grounds of the privileges – Evidence Act 2008 (Vic) s 130.

PRACTICE AND PROCEDURE – Subpoena – Client legal privilege.

Audsley v The Queen [2014] VSCA 321 (8 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/321.html

CRIMINAL LAW – Appeal – Conviction – Aggravated burglary, armed robbery, recklessly causing serious injury and assault – Evidence – Credibility of witness – Expert evidence – Evidence of neuropsychologist as to effect of drug use on reliability of memory – Whether wrongly excluded – Crown concession of error – Appeal allowed – Evidence Act 2008 , ss 101A, 108C, 192.

EVIDENCE – Credibility rule – Exception – Expert evidence concerning credibility of witness – Effect of drug use on reliability of memory – Whether admissible – Discretion to exclude – Whether wrongly excluded – Evidence Act 2008 ss 101A, 108C, 192.

In the matter of Futre Developments Pty Ltd [2014] NSWSC 1712 (5 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1712.html

CORPORATIONS – Winding up – Statutory demand – Application to set aside a creditor’s statutory demand – preliminary question – identification of the date of service of the statutory demand – timing of service crucial to outcome of proceedings – registered office on first floor – mailbox on ground floor

Pace (a pseudonym) and Collins (a pseudonym) v The Queen [2014] VSCA 317 (5 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/317.html

1 Pursuant to certification of the trial judge under s 293(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), the applicants seek leave to appeal an interlocutory decision made on 25 November 2014 in which his Honour refused to exclude certain ‘picture identification evidence’.

LB v R [2014] NSWCCA 295 (5 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/295.html

APPEAL – appeal against conviction – applicant convicted of attempted sexual intercourse without consent with a person under the age of 10 years – whether verdict unreasonable or insupportable having regard to evidence – Whitehorn v The Queen [1983] HCA 42 – Douglass v The Queen [2012] HCA 34 – complainant’s evidence given by video – recordings of interview with police – whether manner of giving evidence undermined the principles of fair trial – whether probative value of the evidence outweighed by prejudicial effect – Evidence Act 1995 (NSW), s 137

CRIMINAL LAW – appeal – admissibility of evidence – whether probative value of evidence outweighed by danger of unfair prejudice – credibility of witness

Tringrove v Tasmania [2014] TASCCA 7 (5 December 2014)

http://www.austlii.edu.au/au/cases/tas/TASCCA/2014/7.html

Criminal Law – Particular offences – Property offences – Other frauds and impositions – Fraudulently or deceptively obtaining money, valuable, financial benefit or advantage – Generally – Crown contending itemised invoices all wholly dishonest – Whether accused guilty if invoice partly dishonest.

Criminal Code (Tas), s 252A.

Machent v Quinn [1970] 2 All ER 255; R v Lindsay [1963] Qd R 386; Williams v The Queen [2002] TASSC 71; (2002) 11 Tas R 258; R v Cook [2006] SASC 231; (2006) 95 SASR 201; R v Naidu [2008] QCA 130, referred to.

Aust Dig Criminal Law [2384]

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to evidence – Other matters – Crown alleging more than it needed to prove or could prove – Misdirection as to what the Crown needed to prove – Possibility of different result without misdirection – Miscarriage of justice due to sentencing on erroneous basis.

Gipp v The Queen (1998) 194 CLR 106; Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182, referred to.

Aust Dig Criminal Law [3477]

A v Independent Commission Against Corruption [2014] NSWCA 414 (5 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/414.html

ADMINISTRATIVE LAW – judicial review – summons to produce documents issued by ICAC – ICAC Act s 35(1) – whether primary judge erred in finding summons authorised by s 35 – whether decision to issue summons was for a purpose other than an investigation – whether decision to issue summons illogical, irrational or unreasonable – whether ICAC failed to accord procedural fairness to appellant

ADMINISTRATIVE LAW – judicial review – notice to produce served on ICAC by appellant – whether primary judge erred in setting aside notice to produce – whether primary judge erred in finding ICAC Act, s 111(3) applies to ICAC as a separate legal personality – whether primary judge erred in concluding s 111(3) applies to documents created internally by ICAC

CONSTITUTIONAL LAW – implied freedom of communication on governmental and political matters – whether primary judge erred in finding s 35 reasonably appropriate and adapted or proportionate to an identified legitimate statutory purpose and therefore consistent with the implied freedom

CONSTITUTIONAL LAW – judicial review – whether primary judge erred in finding s 111(3) consistent with power of Supreme Court to grant relief in relation to jurisdictional error

Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd (No 2) [2014] VSC 598 (4 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/598.html

CONTRACT – interpretation – whether contract wholly written or partly written, partly oral and partly implied – material surrounding circumstances – implied terms – commercial contract to raise funding – whether implied term that funds be raised within a reasonable time – whether implied term of good faith.

CONTRACT – termination– whether agreement validly terminated – whether agreement abandoned – both parties acting inconsistently with agreement – whether agreement repudiated – breach – whether defendant’s breach prevented other party from performing contract.

CONTRACT – breach – whether plaintiff ready, willing and able to perform – loss.

EQUITY – fiduciary duties – whether joint venture existed giving rise to fiduciary duties – parties acting in own interests – whether shareholders owed fiduciary duties to each other.

CONSUMER LAW – misleading or deceptive conduct – representation that party had necessary skills and contacts – representation of ability to perform contract within reasonable period of time – Australian Consumer Law – Competition and Consumer Act 2010 (Cth), Schedule 2, ss 4, 18; Australian Securities and Investments Commission Act 2001 (Cth) ss 12BB, 12DA; Corporations Act 2001 (Cth) s 1041H.

REMEDIES – failure to establish loss – no proper basis for awarding damages.

Matsoukatidou v Commonwealth Bank of Australia [2014] VSCA 307 (3 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/307.html

PRACTICE AND PROCEDURE — Appeal against order granting summary judgment — Appellants did not plead or depose to any substantive defence — Hearing of application for summary judgment delayed for two years due to appellants lodging disputes with Financial Ombudsman Service Ltd (‘FOS’) — Judge refused application for adjournment based on alleged English language difficulties — No error of law or miscarriage of discretion — Overarching purpose in s 7(1) of Civil Procedure Act 2010.

ADMINISTRATIVE LAW — Natural justice — Judge did not reconvene hearing to allow appellants to respond to material filed by respondent — Material comprised two emails from FOS to the effect that FOS was not currently dealing with any disputes lodged by appellants — Judge relied on emails in granting summary judgment — In light of procedural history, absence of substantive defence, the specific and objective factual contents of emails from FOS, hearing rule of natural justice not breached — Even if there had been a breach, setting aside impugned order would be futile because the ultimate decision would inevitably have been the same — Effect of FOS’s Terms of Reference — Appeal dismissed.

Stewart v State of Victoria & Ors [2014] VSC 601 (2 December 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/601.html

PRACTICE AND PROCEDURE – Further and better discovery – claim for indemnity under policy of insurance that has not been located – previous similar claims accepted – relevance of documents evidencing acceptance of indemnity in the earlier claims –common interest privilege – whether instructions given by one party to a person likely to be a witness and notes of interview of that person are discoverable even if not admissible– whether the instructions and notes are the subject of litigation or advice privilege – ss 118 and 119 Evidence Act 2008 .

Insurance Australia Ltd t/as NRMA Insurance v El Kabbout [2014] NSWCA 426 (1 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/426.html

APPEAL – leave to appeal – applicant insurer held liable to pay claim in respect of motor vehicle written off after collision with tree – whether trial judge reversed the onus of proof – where expert evidence that accident could not have occurred as respondent contended – where trial judge misstated one aspect of expert’s evidence – where applicant sought to avoid policy in reliance on claim respondent failed to be truthful and frank in relation to claim – whether applicant had established arguable error requiring correction to avoid injustice warranting appellate intervention – leave refused

KH v R [2014] NSWCCA 294 (1 December 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/294.html

EVIDENCE – application by Crown to cross-examine unfavourable witnesses – advance ruling – Evidence Act 1995 (NSW), ss 38 and 192A – witnesses included persons named on indictment but not charged – whether appellable error in grant of leave to cross-examine – whether appellable error in judge inquiring, in presence of jury, whether witness aware of right to object to giving self-incriminating evidence

Coca Cola Company v PepsiCo Inc (No 2) [2014] FCA 1287 (28 November 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1287.html

CONSUMER LAW – misleading or deceptive conduct, or conduct likely to mislead or deceive – whether sale of respondents’ glass cola bottle misleading or deceptive, or likely to mislead or deceive – meaning of “likely to mislead or deceive” – how test differs to claim for passing off – Competition and Consumer Act 2010 (Cth) Sch 2, ss 52 and 53.

TORT – passing off – whether sale of respondents’ glass cola bottle amounted to passing off – relevant date for determining applicant’s reputation where respondents’ impugned products removed from and later reintroduced into the marketplace – whether applicant’s had established reputation in shape, or outline or silhouette, of its glass cola bottle at the relevant date – whether consumers would make purchasing decision based on shape, or outline or silhouette, of glass cola bottle – whether respondents’ made representations to consumers through sales of its glass cola bottle that respondents’ business is associated with applicant’s business.

TRADE MARKS – shape marks – use as a trade mark – whether respondents using shape of their glass cola bottle, or outline or silhouette of glass cola bottle, as an indicator of trade origin – whether consumers educated to view shape of bottles of non-alcoholic beverages as indicator of trade origin generally – relevance of respondents’ intention in designing glass cola bottle to whether shape being used as indicator of trade origin – relevance of context of sale – where respondents also using word and device marks on glass cola bottle – deceptive similarity – whether signs used by respondents deceptively similar to applicant’s registered trade marks – alleged infringement of two dimensional marks by three dimensional objects – whether outline or silhouette of registered marks an essential feature or the dominant feature or the main idea of the marks – whether the outline or silhouette of the respondents’ glass cola bottle the “overall impression” given to consumers – relevance of respondents’ intention in designing glass cola bottle to deceptive similarity – Trade Marks Act 1995 (Cth) s 120.

Held: Application dismissed.

JCS v Tasmania [2014] TASCCA 6 (28 November 2014)

http://www.austlii.edu.au/au/cases/tas/TASCCA/2014/6.html

Criminal Law – Evidence – Complaints – Other matters – Warnings – Possible unreliability of hearsay evidence.

Evidence Act 2001 (Tas), s 165.

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Singh v Director of Public Prosecutions [2006] NSWCCA 333; (2006) 164 A Crim R 284, referred to.

Aust Dig Criminal Law [2770]

Criminal Law – Evidence – Credibility – Other matters – Warnings – Sexual offences against children – Evidence of adult of event in childhood.

Evidence Act 2001 (Tas), s 165(1)(c).

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187; FGC v Western Australia [2008] WASCA 47; (2007) 183 A Crim R 313; Anderson v Western Australia (2014) 46 WAR 363, referred to.

Aust Dig Criminal Law [2877]

Criminal Law – Sentence – Sentencing procedure – Factual basis for sentence – Evidence – Burden and standard of proof.

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, followed.

Aust Dig Criminal Law [3312]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Indecent assault on partner’s child – Sentence of four months’ imprisonment not manifestly excessive.

Aust Dig Criminal Law [3521]

Ahern v Aon Risk Services Australia Ltd [2014] NSWSC 1697 (28 November 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1697.html

EVIDENCE – pre-trial application for exclusion of expert evidence – whether admissibility should be dealt with on an interlocutory basis by judge who may not be the trial judge – whether evidence complies with test for admissibility of expert opinion evidence – whether general discretion to exclude evidence should be exercised – pre-trial application for directions with regard to expert evidence – consideration of the role a judge should play in determining what evidence is presented

Oakley v Hyslop [2014] ACTSC 314 (28 November 2014)

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/314.html

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Points and Objections not Taken Below – evidence admitted in Magistrates Court was coincidence evidence as defined in Evidence Act – no compliance with Evidence Act notice requirements – no consideration by Magistrate of whether evidence had significant probative value – no consideration by Magistrate whether probative value of evidence substantially outweighed any prejudicial effect on defendant – no objection taken by defence counsel by reference to Evidence Act – failure to object not a waiver – evidence inadmissible because of Magistrate’s failure to consider probative value of evidence – appellant deprived of fair trial – evidence not necessarily inadmissible if Evidence Act provisions properly complied with – no finding that verdict unsafe and unsatisfactory – appeal upheld – matter remitted to Magistrates Court for further hearing and decision by different Magistrate.
EVIDENCE – Admissibility and Relevancy – whether evidence is coincidence evidence – admissibility of coincidence evidence under Evidence Act – effect of failure to comply with statutory requirements for court to consider probative value of coincidence evidence and weigh probative value and prejudicial effect – evidence inadmissible because of lack of compliance with statutory requirements – evidence not necessarily inadmissible if statutory requirements complied with – matter remitted to Magistrates Court for further hearing and decision by different Magistrate.

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 (27 November 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1674.html

DEFAMATION – defences – offer to make amends – requirements of a valid offer – whether offer reasonable in all the circumstances

DEFAMATION – damages – prominent article in major newspaper – imputations attributed to female teacher of sexual impropriety with boys – case of wrongful identification – plaintiff not named in matter complained of but identified by the inclusion of incorrect detail – proper approach for assessing extent of harm – factors aggravating damages

R v Lin [2014] NSWSC 1752 (27 November 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1752.html

CRIMINAL LAW – EVIDENCE – expert evidence – whether opinion as to usual causes of fires in “meth labs” unfairly prejudicial – evidence allowed – hearsay evidence – evidence that gas burner “on” – expert who examined premises overseas – whether “unavailable to give evidence” – no notice given – no evidence of steps taken to secure attendance – unclear whether evidence based on personal observation – unclear whether evidence a conclusion – no evidence of basis of conclusion – danger of unfair prejudice – evidence rejected

MK v R [2014] NSWCCA 274 (26 November 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/274.html

CRIMINAL LAW – conviction appeal – take without consent and indecent assault – evidence – competence of child to take oath – unsworn evidence by child – fundamental defect in giving of unsworn evidence – appeal allowed – whether verdict unreasonable and not open on the evidence – identification by child witnesses – discrepancies in their descriptions – both child witnesses identify very distinctive feature of assailant – whether open to jury to be satisfied beyond reasonable doubt as to identification of assailant – this ground of appeal dismissed – whether submissions by Crown gave rise to a miscarriage of justice – whether the trial judge gave appropriate directions to jury – no miscarriage of justice – this ground of appeal dismissed – matter remitted to District Court for new trial.

Kaur v Victorian WorkCover Authority [2014] VSCA 300 (26 November 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/300.html

ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) s 134AB(16)(b) – Common law damages – Discogenic injury to lower back – Whether appellant had suffered a ‘serious injury’ within the statutory definition – Whether judge breached the requirements of natural justice – Whether judge should have taken judicial notice that possible future pregnancy may exacerbate back pain – Failure of appellant to adduce medical evidence of effect of future pregnancy – Appeal dismissed – Steen v WorkSafe Victoria [2014] VSCA 299; Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8; Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436; Re Refuge Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.

Nabole v The Queen [2014] VSCA 297 (21 November 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/297.html

CRIMINAL LAW – Importing marketable quantity of a border controlled drug (cocaine) – Whether evidence of false statements made to Customs officer during baggage examination should have been excluded pursuant to s 23V of the Crimes Act 1914 (Cth) – Whether implied admission in making false statements constituted ‘confession or admission’ for the purpose of that section – Whether appellant was being questioned ‘as a suspect’ – Raso v The Queen (1993) 68 A Crim R 495, applied – Whether evidence of false statements should have been excluded pursuant to ss 85, 90 or 137 of the Evidence Act 2008 – Appeal dismissed.

Reid v The Queen [2014] VSCA 295 (21 November 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/295.html

CRIMINAL LAW – Armed robbery and recklessly causing serious injury – Description of offenders by victim inconsistent with victim’s photo board identification of the applicant – Whether photo board identification ‘recognition’ of offender seen prior to the offence – Whether evidence of photo board identification should have been excluded pursuant to s 137 of the Evidence Act 2008 – Whether verdicts unsafe and unsatisfactory – Leave to appeal against conviction refused.

In the matter of Aquaqueen International Pty Ltd [2014] NSWSC 1645 (20 November 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1645.html

CORPORATIONS – winding up – winding up in insolvency on application of substituted creditors – where there has been non-compliance by company with creditor’s statutory demand – presumption of insolvency – whether company has rebutted presumption of insolvency – whether company should be wound up.

Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (Ruling No 8) [2014] VSC 567 (20 November 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/567.html

PRACTICE AND PROCEDURE – Overarching obligations – Duties of experts to court– Expert Code of Conduct – Duties of legal practitioners to court – Overarching obligation to disclose existence of documents – Overarching obligation not to mislead or deceive – Whether breach of overarching obligations by expert witness and by legal practitioners instructing that expert in preparation of report and giving evidence – Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic).

LEGAL PRACTITIONERS – Overarching obligations – Duties of legal practitioners to court – Whether breach of overarching obligations by legal practitioners instructing an expert and leading evidence from that expert – Overarching obligation to disclose existence of documents – Overarching obligation not to mislead or deceive – Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic).

EXPERT WITNESS – Overarching obligations – Duties of experts to court– Expert Code of Conduct – Whether breach of overarching obligations by expert witness when preparing report giving evidence – Overarching obligation not to mislead or deceive – Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic).

Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241 (19 November 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1241.html

PRACTICE AND PROCEDURE – Application for interim suppression order pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) – Whether proceeding is an abuse of process – Whether order is necessary to prevent prejudice to the administration of justice

PRACTICE AND PROCEDURE – Relevance of s 8(1) and s 16(9) of the Commercial Arbitration Act 2012 (WA) in considering application for suppression in this Court

PRACTICE AND PROCEDURE – Whether news articles published after the hearing date are of sufficient probative value to warrant reopening the proceeding so that they may be tendered

PRACTICE AND PROCEDURE – Whether an injunction pursuant to s 17J of the Commercial Arbitration Act 2012 (WA), or s 23 of the Federal Court of Australia Act 1976 (Cth) is appropriate

In the matter of Bestcare Foods Ltd (subject to a Deed of Company Arrangement) [2014] NSWSC 1630 (19 November 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1630.html

CORPORATIONS – voluntary administration – deeds of company arrangement – remuneration of administrators and deed administrators – application for review of remuneration under Corporations Act 2001 (Cth) s 449E(2) – whether it is just for review of remuneration to proceed – discretionary considerations – delay and acquiescence – informed consent of creditors to relevant resolutions approving remuneration.

Beckett v State of New South Wales [2014] NSWSC 1625 (18 November 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1625.html

EVIDENCE – malicious prosecution – whether evidence of witness relevant to an absence of reasonable and probable cause – whether evidence impermissibly concerned only with plaintiff’s guilt – where witness possibly unreliable – whether probative value of evidence outweighed by danger of unfair prejudice pursuant to s 135 Evidence Act 1995

The Queen v JRW [2014] NTSC 52 (12 November 2014)

http://www.austlii.edu.au/au/cases/nt/NTSC/2014/52.html

[1] JRW has been charged on the one indictment with four counts of indecent assault upon three different victims each of whom is his stepdaughter. The offences are alleged to have taken place in the 1970s and early 1980s. The trial is due to commence before a jury this week.
[2] A number of preliminary issues have been raised for determination before the trial commences. These issues are as follows:
(a) an application by the defendant to sever the indictment in relation to each complainant;
(b) the prosecution has delivered a notice that it intends to adduce “tendency evidence” pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act (“the Uniform Evidence Act ”) and the defendant opposes this course;
(c) the defendant seeks the exclusion of the evidence of four identified witnesses; and
(d) the defendant seeks exclusion of part of the evidence of two other witnesses.

DC Payments Australasia v Vic Hotel Pty Ltd and Ors [2014] VSC 535 (24 October 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/535.html

PRACTICE AND PROCEDURE – Trial of Preliminary Question pursuant to O 47 of the Supreme Court (General Civil Procedure) Rules 2005.

DISCOVERY – Legal professional privilege over legal advice – Whether waived by a pleading – Test for waiver by a pleading considered – Section 122 Evidence Act 2010 – Waiver not established.

Swan v The Queen [2013] VSCA 226 (30 August 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/226.html

CRIMINAL LAW — Appeal — Conviction — Culpable driving causing death — Appellant pleaded guilty to alternative charge of dangerous driving causing death — Crown led evidence of appellant using heroin prior to offending and history of appellant’s heroin addiction — No evidence led to show causal link between taking heroin and offending — No tendency notice filed or application to dispense with filing of notice to lead evidence of appellant’s history of heroin addiction — Evidence irrelevant and highly prejudicial — Substantial miscarriage of justice — Appeal allowed – Retrial ordered – Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954 applied

15 It follows from the above that not only was AS’s evidence of the appellant’s taking heroin before the accident irrelevant, but the evidence as to his longstanding drug addition was likewise irrelevant. It was, accordingly, inadmissible. But irrelevance was not the only problem associated with the Crown evidence as to the appellant’s drug addiction. Evidence that a person engages in a particular habit (scil. acts in a particular way), tendered to prove that he pursued that habit (scil. acted in a particular way) on a particular occasion, is tendency evidence, the admissibility of which is governed by s 97(1) of the Evidence Act 2008 . As such it is inadmissible unless the conditions precedent to its admissibility set out in ss 97(1)(a) and (b) and 101(2) are satisfied. It was required to be the subject of a notice to the appellant that the Crown would seek to rely upon it, it must have had significant probative value and that probative value must have substantially outweighed any prejudicial effect it may have had on the appellant.

16 The evidence as to the appellant’s drug habit was never the subject of a tendency evidence notice, nor was it the subject of any application by the Crown under s 100(1) of the Act for dispensation from that requirement. It was, on that score alone, inadmissible. This would have been so even if Dr O’Dell had proffered an opinion, concerning the effect upon the appellant’s driving of heroin use shortly before the accident, which supported the Crown case. In the circumstances the evidence of the appellant’s drug habit should not have been admitted to prove the likelihood of the appellant having taken heroin in the period immediately before the accident.

SLS v The Queen [2014] VSCA 31 (6 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/31.html

CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay refused – Long delay, but not simply presumptive prejudice – Destruction of evidence – Loss of evidence – Greatly limited ability to adduce alibi evidence – Whether judge erred by confining evidence of complainants on voir dire – Attack upon findings made and inferential reasoning of judge below – Appeal allowed – Decision refusing stay set aside – Matter remitted for re-hearing and determination by another judge.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling by judge that evidence of complainants cross-admissible – Whether reasonable possibility of collusion or contamination – Whether judge wrongly approached matter by treating applicant as carrying burden of proof – Whether judge erred by making findings upon matters of disputed fact – Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded – Appeal allowed – Ruling set aside – In lieu, ruling that evidence not cross-admissible – Question whether indictment should be severed remitted for re-hearing and determination by another judge – Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with ‘grooming’ by sex offenders – Concession by Crown on appeal that evidence inadmissible – Concession rightly made – s 79 Evidence Act 2008 – Whether witness had relevant expertise – Whether evidence had any probative value – Circularity – Whether, in any event, evidence should have been excluded under s 135 Evidence Act – Whether evidence was about a matter upon which expert evidence was receivable – Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act – Whether, if so, evidence should have been excluded under s 101 – Whether unacceptable risk that evidence would trespass into propensity evidence – Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act – Whether evidence admissible under s 108C Evidence Act.

CRIMINAL LAW – Appeal – Interlocutory Appeal – Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication – No reasons given – Note made by counsellor of statement attributed to complainant – Note contained in confidential communications earlier released for inspection by accused’s legal advisers – Later ruling by judge that counsel for accused not be permitted to cross-examine complainant upon the note at trial – ss 32C and 32D Evidence (Miscellaneous Provisions) Act 1958 – Whether peremptory refusal complied with statutory obligations imposed upon judge – Whether peremptory refusal and later ruling supportable – Appeal allowed – Ruling set aside – In lieu, ruling that accused have leave to cross-examine complainant on further hearing of stay application and in any later trial.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that prosecution might adduce evidence of accused’s pleas of guilty, in 2008, to sexual offences committed between 2003-2005 and of agreed summary of circumstances read to Magistrates’ Court in, ‘rebuttal’ if credibility of victims of those offences was challenged in cross-examination – Evidence only admissible if viva voce evidence of witnesses receivable as tendency evidence – Crown statement that evidence of some witnesses would not be relied upon at a trial – Whether any basis revealed for prosecution being permitted to split its case – Consideration of possible juridical bases upon which evidence might be admissible – Appeal allowed – Ruling set aside – In lieu, question whether evidence admissible remitted for re-hearing and determination by another judge.