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DPP v Warren [2015] ACTSC 111 (20 February 2015

PRACTICE AND PROCEDURE – Subpoenas – Application to set aside a subpoena in part – whether documents sought to be produced are relevant – principles to be applied whether documents sought to be produced are subject to legal professional privilege

26. This leaves the issue of legal professional privilege. The approach to be taken in an application such as this is usefully summarised by Johnson J in R (Cth) v Petroulias (No 22) [2007] NSWSC 692; (2007) 213 FLR 293 at [36]- [39]. At that point, his Honour said:

36. The onus of establishing a claim of client legal privilege falls on the party asserting or claiming the privilege: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689. The onus is on the party claiming privilege even though it is the other party that has applied for relief by way of an order for production of the documents for inspection: Mitsubishi Electric Australia Pty Limited v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332 at 337 [11]; Australian Securities and Investment Commission v Rich [2004] NSWSC 1089 at [2].
37 What is required is exposure of facts from which an informed decision can be made as to whether the claim for privilege is supportable: National Crime Authority v S (1991) 29 FCR 203 at 211-212; AWB Limited v Cole (No. 5) [2006] FCA 1234; (2006) 155 FCR 30 at 44-45 [44]. A party claiming privilege may succeed by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. The character of the documents the subject of the claim may illuminate the purpose for which they were brought into existence: Grant v Downs at 689.
38. The Court has the power to inspect documents itself to determine a claim for privilege and should not hesitate to exercise that power: Re Southland Coal Pty Limited [2006] NSWSC 899 at [14](k).

39. The provisions of the Evidence Act 1995 apply only to the adducing of evidence and have no derivative application, at common law, to interlocutory processes including the production of documents on subpoena: Esso Australia Resources Limited v Commissioner of Taxation [1999] 201 CLR 49 at 59-64; Mann v Carnell at 9-12. Accordingly, the Evidence Act 1995 has no application to the present situation unless the provisions of that Act concerning client legal privilege are applicable by operation of other statutory provisions.

CAC v Secretary Department of Family and Community Services [2014] NSWSC 1855 (24 December 2014)

FAMILY AND CHILD WELFARE – Protective (parens patriae) jurisdiction – Welfare of children paramount – Interim care order of Children’s Court challenge – Whether exceptional circumstances warranting intervention – No ground for intervention – Best interests of children favour maintenance of Children’s Court proceedings – Supreme Court proceedings dismissed.

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

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.

JWM v R [2014] NSWCCA 248 (31 October 2014)

CRIMINAL LAW – appeal against conviction – appellant found guilty of four counts of indecent assault on a child under the age of 16 years and four counts of aggravated sexual assault with a child between the ages of 10 and 16 years – complainant made a statement after the offences took place to the effect that she was a virgin – defence counsel intended to use that statement to demonstrate a prior inconsistent statement – whether trial judge erred in refusing to admit the evidence in accordance with s 293 of the Criminal Procedure Act 1986 – whether trial judge erred in not granting leave to the defence to cross-examine the complainant in relation to counselling consultations – whether trial judge erred in failing to warn the jury that the evidence of pretext relied upon by the complainant as a basis for initiating a recorded conversation with the accused could not be used by the jury as tendency evidence – whether the trial judge erred in linking all but one sexual reference in the recorded pretext conversation to context evidence – whether the pretext evidence was open to the jury to be used in an impermissible way, namely, as tendency evidence – whether the verdicts of guilty in respect of Counts 10 and 11 should be set aside because of an inaccurate description by the learned trial judge of the facts and circumstances relating to those offences – application of rule 4 of the Criminal Appeal Rules – appeal dismissed

Munday v Commonwealth of Australia (No 2) [2014] FCA 1123 (21 October 2014)

HUMAN RIGHTS – Discrimination – disability – discrimination alleged in conduct of Commonwealth program regarding early release of superannuation on compassionate grounds – early release of superannuation sought by second applicant to pay for in-vitro fertilisation (IVF) treatment overseas on the basis that it was necessary to alleviate acute or chronic depression – IVF treatment would involve paying for ova – first application rejected because decision-maker was not satisfied that IVF was necessary to alleviate second applicant’s depression or that she lacked the financial capacity to meet the expense arising from the proposed treatment by other means – second application rejected because decision-maker was not satisfied that IVF was necessary to alleviate second applicant’s depression and also because superannuation funds would be used for a purpose that was not permitted under Australian law – requirement of lawful purpose not specified in Superannuation Industry (Supervision) Act 1993 (Cth) or Superannuation Industry (Supervision) Regulations 1994 (Cth) – whether imposition of this requirement involved unlawful discrimination on the basis of second applicant’s disability (infertility) – whether failure to obtain independent legal advice before imposing this requirement involved a failure to make a reasonable adjustment – Disability Discrimination Act 1992 (Cth), ss 5 and 6

WORDS AND PHRASES – “person aggrieved” – “reasonable adjustment”

A.V. Jennings Properties Limited v Kam Civil Pty Ltd [2013] NSWSC 1900 (18 December 2013)

JUDICIAL REVIEW – Local Court appeal – respondent undertook earthmoving work for appellant – whether reasons of Magistrate inadequate – scope of obligation to provide reasons supporting finding of fact – whether Magistrate erred in rejecting tender of surveyor’s report – interest.

Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 (18 December 2013)

APPEAL – erroneous fact-finding – whether appeal court can substitute its own findings – whether substantial miscarriage warranting retrial

DAMAGES – torts – negligence – motor vehicle accidence – future economic loss – past domestic care – future domestic care – challenges to assessment at trial

EVIDENCE – admissibility – opinion; expert report – assumptions – opinions based on measurements and calculations

EVIDENCE – witnesses – cross-examination – objection – rejection of cross-examination – whether topic of cross-examination covered by particulars in pleading

PROCEDURE – inadequacy of pleading – failure to particularise – no request for particulars – no notice before trial of objection to pleading – objection by ambush at trial procedurally unfair – refusal to grant adjournment to address amendment

TORTS – negligence – contributory negligence – challenge to findings of fact at trial – failure to address key elements of the comparison of responsibility of plaintiff and defendant

Dong v The Queen [2013] VSCA 354 (5 December 2013)

CRIMINAL LAW – Appeal against conviction of attempted murder – Whether jury verdict unreasonable – Recognition evidence – Intention to kill – Jury verdict supported by the evidence – Whether substantial miscarriage of justice by late production of evidence – Whether substantial miscarriage of justice by failure to identify and properly direct on prior inconsistent statements – Whether substantial miscarriage of justice by failure to give post-offence conduct direction – No substantial miscarriage of justice – Appeal dismissed.

Tabcorp Holdings Limited v State of Victoria (No 2) [2013] VSC 541 (18 October 2013)

EVIDENCE – Privilege – Client Legal Privilege – Adequacy of evidence in support of claim.

EVIDENCE – Privilege – Relevance of documents.

EVIDENCE – Privilege – Joint privilege – Evidence Act 2008 (Vic) s 124.

PRACTICE AND PROCEDURE – Discovery – Order for further discovery – Relevance of documents – Sufficiency of discovery – Adequacy of searches – Civil Procedure Act 2010 (Vic) s 55 – Supreme Court (General Civil Procedure) Rules 2005 r 29.01.1, r 29.08, r 29.11.

Bateman and Idameneo (No 123) Pty Limited v Fairfax Media Publications Pty Limited and Ors [2013] ACTSC 72 (26 April 2013)

COURTS AND JUDICIAL SYSTEM – jurisdiction – cross-vesting legislation – action for damages for defamation – application to transfer proceedings to Supreme Court of New South Wales – transfers in the interests of justice – factors to be considered – place of the tort, the applicable law, location of the parties, procedural matters such as trial by jury, convenience and expense, place of vindication – transfer ordered

COURTS AND JUDICIAL SYSTEM – jurisdiction – cross-vesting legislation – action for damages for defamation – application to transfer proceedings to Supreme Court of New South Wales – transfers in the interests of justice – factors to be considered – existence of an onus on the applicant – onus not relevant

Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 (9 October 2012)

LEGAL PRACTITIONERS – removal from the Roll of local lawyers – application to have legal practitioner struck off the Roll – legal practitioner convicted of defrauding the Commonwealth and obtaining financial advantage by deception – whether guilty of professional misconduct – whether fit and proper person – whether of good fame and character – Legal Profession Act 2004

In the matter of an application for bail by Luke Marsh [2013] ACTSC 16 (16 January 2013)

CRIMINAL LAW – application for bail – review of a decision of the Magistrates Court refusing bail – jurisdiction of the Supreme Court under Bail Act s 43A – requirement for a decision to have been made under Bail Act s 42A – Court not satisfied jurisdiction enlivened under s 43A – Bail Act s 9D – requirement for fresh evidence or change in circumstances – interpretation in light of the Human Rights Act 2004 (ACT) – no fresh evidence or changed circumstances relevant to the grant of bail – where, if other hurdles surmounted, Court not satisfied bail would have been justified in the circumstances – application refused.

Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411 (12 December 2012)

PRACTICE AND PROCEDURE – dismissal or stay – application for proceedings to be dismissed or stayed as an abuse of process pursuant to r 26.01(1) of the Federal Court Rules 2011 (Cth) – categories of abuse of process not closed – where allegations allegedly made in pleading for predominant purpose of a political attack to advance maker’s own interests – where some allegations made that were irrelevant, scandalous or calculated to injure – where applicant’s lawyer responsible for impugned allegations – where applicant and lawyer intended or aware that media would obtain a copy of pleading and publish allegations made in it

COSTS – where Court’s power to order a party to pay costs limited by s 570(1) of the Fair Work Act 2009 (Cth) – to cases where Court satisfied that applicant instituted proceedings vexatiously or without reasonable cause, or that applicant’s unreasonable act or omission caused respondent to incur costs

Held: proceedings an abuse of process – applicant to pay costs

Estate of Stanley William Church [2012] NSWSC 1489 (6 December 2012)

WILLS, PROBATE AND ADMINISTRATION – testamentary capacity – whether deceased had testamentary capacity to make will that left entire estate to his sister and excluded his brother – deceased had good relationship with both siblings but closer to sister
WILLS, PROBATE AND ADMINISTRATION – suspicious circumstances – whether deceased knew of and approved contents of will – interrelationship between requirements of testamentary capacity and requirement to establish knowledge and approval of will in suspicious circumstances

L M D v The Queen [2012] VSCA 164 (20 July 2012)

CRIMINAL LAW – Conviction – Indecent assault on a child under 16 and indecent act with a child under 16 – Whether trial judge erred in allowing evidence of complaints to go to the jury – Evidence Act 2008 , s 66(2A) – Whether inconsistent verdicts led to a substantial miscarriage of justice – Whether jury speculated about the timing of one of the offences leading to a substantial miscarriage of justice − Whether jury verdict unreasonable or cannot be supported having regard to the evidence – Leave granted but appeal dismissed.

Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 (22 March 2012)

LOCAL GOVERNMENT – building control – development application – principles – whether application in respect of “designated development” – Environmental Planning and Assessment Act 1979 (NSW), s 77A – identification of “existing or approved development” – Environmental Planning and Assessment Regulation 2000 (NSW) Sch 3, Pt 2, cl 35

APPEAL – appeal from Land and Environment Court – whether order or decision on question of law – where decision required formation of opinion appeal available if decision maker asked the wrong question – Land and Environment Court Act 1979 (NSW), s 57

EVIDENCE – presumption of regularity – whether applicable to issue of whether original development consent given – whether original consent can be inferred from subsequent development consents

PROCEDURE – adequacy of reasons – burden of proof – whether establishing existing use rights a principal contested issue between parties in merits hearing to determine development application

McMAHON v R [2011] NSWCCA 147 (22 June 2011)

CRIMINAL LAW – sentence appeal – 39 counts of tax fraud and 42 counts of identity fraud – pleas of guilty – sentencing judge grouped offences for sentencing purposes – whether principle in Pearce v The Queen observed – whether proper weight given to applicant’s co-operation when orders made under Proceeds of Crime Act 2002 (Cth) – was it appropriate for sentencing judge to have regard to findings of ICAC when assessing applicant’s character – whether error in setting non-parole period.

Aksentijevic v Victoria Racing Club Limited [2011] VSC 538 (27 October 2011)

TORT – Employer and employee – Alleged acts of bullying by supervisor – Psychiatric injury – Whether acts of bullying established.

125 … Those considerations are relevant to my assessment of the evidence upon which the plaintiff relies to establish, on the balance of probabilities, that Mr Goodie indulged in the conduct alleged by him.[7]


Sonnet v The Queen [2010] VSCA 315 (1 December 2010)

CRIMINAL LAW – Conviction – Conspiracy to murder – Courts and judges – Bias – Whether apprehended bias by reason of trial judge sentencing co-accused before accused’s trial – R v Kearns [2003] NSWCCA 367, followed.

Evidence – Deposition of deceased witness – Tendered pursuant to s 55AB of Evidence Act 1958 – Whether accused had ‘full opportunity of cross-examining’ witness at committal hearing – Quaere whether failure of Crown to provide accused with transcript of interview of witness deprived accused of full opportunity of cross-examining witness – R v Stackelforth (1996) 86 A Crim R 438; R v Cheprakov [1997] 2 NZLR 169; Gorman v Fitzpatrick (1987) 32 A Crim R 330, considered – Evidence Act 1958 , s 55AB.

Fair trial – Whether failure of Crown to provide accused with transcript of interview of witness rendered trial unfair – Whether transcript would have significantly damaged Crown case or advanced accused’s defence – R v Grey [2001] HCA 65; (2001) 184 ALR 593, applied.

Jury – Challenge – Peremptory – Whether valid when made in absence of accused – The Queen v Johns [1979] HCA 33; (1979) 141 CLR 409, considered; Eastman v The Queen (1997) 76 FCR 9, referred to – Secrecy – Judge declining in part counsel’s request for access to full text of jury question – Whether productive of miscarriage of justice – R v Black [2007] VSCA 61; (2007) 15 VR 551, distinguished.

Appeal allowed – New trial ordered.

Bevillesta Pty Limited v Perpetual Nominees Ltd & Ors [2010] NSWSC 1198 (2 September 2010)

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Evidence – Other matters – Subpoenas for production – to third parties – seeking documents which defendant obliged to discover – whether documents sought are relevant – whether subpoenas are abuse of process on grounds that being used to obtain discovery, or otherwise.

Khamis v Regina [2010] NSWCCA 179 (19 August 2010)

CRIMINAL LAW – Appeal against conviction – Miscarriage of justice – Appellant prohibited from putting his case – Rule in Browne v Dunn – Remedies available in criminal trial where rule breached – Availability of exclusion of evidence in New South Wales where rule breached – Generally a matter of last resort in a criminal trial – need to relate remedy to circumstances of particular case

Papazoglou v The Queen [2010] VSCA 201 (13 August 2010)

CRIMINAL LAW – Appeal – Conviction – Jury directions – Consciousness of guilt – Post-offence conduct – Prosecutor invited jury to view accused’s post-offence conduct as implied admission – Trial turned on jury’s assessment of credibility of complainants and accused – No direction given to jury about how to use evidence of implied admission – Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 applied – Convictions quashed – Whether Court should order retrial or direct verdicts of acquittal – Retrial ordered.

CRIMINAL LAW – Appeal – Conviction – Indecent assault – Evidence incapable of establishing assault – Convictions quashed – Verdicts of acquittal on indecent assault counts – Whether Court should order retrial on same allegations – Whether double jeopardy – AJS v The Queen [2007] HCA 27; (2007) 235 CLR 505, Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 applied – Retrial ordered.

EVIDENCE – Collateral evidence rule – Cross-examination of complainant as to credit – Whether defence should have been permitted to lead evidence going only to credit – Complainant’s credit not a fact in issue – Evidence should have been excluded – Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 applied.

10 At the commencement of the trial, defence counsel told the judge about the 1998 incident. This occurred as counsel was developing his submission in support of an application for an order under s 32C of the Evidence Act 1958 (Vic) (‘ Evidence Act ’) and the difficulty of the judgments which those provisions require judges to make. Counsel was seeking production of documents in the possession of sexual assault counsellors, recording interviews they had conducted with complainant L (‘the counselling notes’). (We note in passing that pre-trial argument on this application alone extended over some six sitting days. This would appear to reflect the complexity of the provisions of Division 2A of Part II of the Evidence Act . We also note that, in ruling that the counselling notes should be produced to the defence, and could be used in the trial, his Honour held that the ‘fact in issue’ to which the evidence was relevant was the credit of complainant L.[4])

Watson v The Queen [2010] VSCA 189 (26 July 2010)

CRIMINAL LAW – Conviction – Sexual offences with a child under 16 years – Child under care, supervision or control – Directions to jury – Several grounds of appeal relating to admission of evidence – Whether judge erred in directions regarding relevance and use of evidence of uncharged acts – Complaint made by complainant to relative – s 41D(2) Evidence Act 1958 – Relevance of lapse of time between offence and complaint – Appeal allowed – Re-trial ordered.

Employment Services Australia Pty Ltd v Poniatowska [ 2010] FCAFC 92 (27 July 2010)

HUMAN RIGHTS – sex discrimination found at first instance – female employee complained about sexual harassment in robust work environment – complaints dealt with inadequately – employment terminated ostensibly for unsatisfactory work performance – the primary Judge found employment terminated because of employee’s complaints and inferred that male complainant would have been treated differently – factual findings challenged on appeal – whether findings supported by the evidence or involved the creation of a new case not advanced at trial – whether findings properly put to witness in cross-examination – whether finding of sex discrimination rose above conjecture – where no male employee had in fact complained of sexual harassment

EVIDENCE – application to adduce new evidence of conviction of employee for fraud – whether likely to affect compensation for future loss of earning capacity

Commonwealth of Australia v Anti Discrimination Tribunal (Tasmania) (Corrigendum 19 June 2008) [2008] FCAFC 104 (13 June 2008)

[2008] FCAFC 104

CONSTITUTIONAL LAW – complaint of discrimination on the basis of disability brought against Centrelink in the Tasmanian Anti-Discrimination Tribunal – whether the Tribunal has jurisdiction to hear the complaint – whether Centrelink as a manifestation of the Commonwealth and immune from any suit that invokes State judicial power – whether Tribunal is a “court of a state” in which the judicial power of the Commonwealth can be invested.

Held (per Kenny J, Goldberg and Weinberg JJ not deciding): Tribunal exercises judicial power, but not Commonwealth judicial power; the Anti-Discrimination Tribunal is not a “court of a state” and cannot receive federal jurisdiction; the Anti-Discrimination Tribunal has no jurisdiction to hear or determine the complaint.

STATUTES – interpretation – whether Anti-Discrimination Act 1998 (Tas) binds the Crown in right of the Commonwealth – whether Centrelink is a ‘person’ under the Anti-Discrimination Act and can be made the subject of a complaint.

Held (per Weinberg and Kenny JJ, Goldberg J dissenting): Anti-Discrimination Act 1998 (Tas) does not bind the Crown in right of the Commonwealth; Centrelink is not a ‘person’ under the Anti-Discrimination Act.

ADMINISTRATIVE LAW – whether existence of Tribunal established.

Held (per Goldberg, Weinberg and Kenny JJ): Existence of Tribunal established – doctrine of presumption of regularity applies.

Doran Constructions Pty Limited (in Liquidation) [2002] NSWSC 215 (27 March 2002)

[2002] NSWSC 215

CORPORATIONS – winding up – liquidator’s examination – circumstances in which liquidator entitled to ask questions relating to legal advice given to company in liquidation – EVIDENCE – liquidator’s examinations – whether evidence given at is governed by Evidence Act 1995 (NSW) – EVIDENCE – legal professional privilege – circumstances in which joint retainer of solicitor exists – EVIDENCE – procedure to adopt when deciding whether legal professional privilege does not exist – EVIDENCE – waiver of client legal privilege – disclosure of substance of advice – disclosure made knowingly and voluntarily – disclosure by agent or employee authorised to make it – disclosure made under compulsion of law