Category Archives: s. 088

Suzlon Energy Ltd v Bangad [2014] FCA 1105 (15 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1105.html

ADMIRALTY – maritime fraud – breach of employee’s fiduciary obligation to not put himself in a position of conflict or to obtain a benefit without employer’s fully informed consent – fraudulent and dishonest conduct of employees and companies they controlled – use of interposed companies controlled by employees to carry employer’s or principal’s cargo at undisclosed inflated prices – employee without any disclosure of true position procuring related company of employer to guarantee charterparty obligations of employee’s company – employee causing secret commissions and profits to be paid into Swiss bank accounts in names of companies he controlled – whether transactions gave rise to equitable debt, resulting trust or justified imposition of constructive trust – where employee’s secret commissions and profits held by company he controlled as volunteer

Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086 (22 September 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1086.html

TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where provider of internet search engine published advertisements in the form of “sponsored links” displayed on search results page in response to search queries – whether provider of internet search engine engaged in conduct that was misleading or deceptive or likely to mislead or deceive by failing to adequately distinguish between advertisements and organic search results – consideration of expression “sponsored link” – whether provider of internet search engine made implied representations that sponsored links were not advertisements – whether provider of internet search engine made implied representations that sponsored links were organic search results – whether provider of internet search engine made implied representations that position of sponsored links on search results page was the result of their relative relevance to search queries as determined by the search engine – consideration of layout of search results page – consideration of relevant class of consumer – consideration of impact on ordinary and reasonable members of relevant class of consumer

TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where advertisers sought to promote their goods or services by means of sponsored links on search results pages – where headline of sponsored link replicated third party’s business name, trade mark or website address – whether advertiser made implied representations of association or affiliation – consideration of relevant class of consumer – consideration of impact of sponsored links on ordinary and reasonable members of relevant class of consumer – whether representations conveyed were misleading or deceptive or likely to mislead or deceive – whether search engine provider also made implied representations of association or affiliation by publishing sponsored links or by adopting or endorsing representations conveyed – significance of “keyword insertion” when used to generate headline which replicated terms of search query

TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where provider of internet search engine published advertisements in the form of “sponsored links” displayed on search results pages in response to search queries – where sponsored links conveyed misleading and deceptive representations – whether search engine provider had a defence under s 85(3) of the Trade Practices Act 1974 (Cth) (the Act) – whether advertisements in the form of sponsored links were advertisements received by the search engine provider in the ordinary course of business – whether search engine provider knew or had reason to suspect that publication of advertisement would amount to contravention of s 52 of the Act – whether search engine provider could discharge onus of proof without showing that it took reasonable precautions or exercised reasonable diligence to avoid such contravention

Evidence Act 1995 (Cth) ss 81, 88 and 135

R v Bormann [2010] ACTSC 145 (17 November 2010)

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/145.html

ADMISSIBILITY OF EVIDENCE – admissions made by accused’s partner – whether representations made by accused’s partner can be considered to be the admissions of the accused.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence improperly obtained by interviewing officer – section 85(2) of the Evidence Act 1995 (Cth) application to exclude admissions made unless the circumstances of making the admissions are such that it is unlikely that the truth is adversely affected – application dismissed.

Evidence Act 1995 (Cth), ss 85, 87, 88, 135, 137, 138, 138(2), 139(2), 142

Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369 (26 February 2008)

[2008] FCA 369

EVIDENCE – admissibility of evidence – affidavit sworn by solicitor of party and read by it as evidence in earlier interlocutory proceeding – subsequently at trial, affidavit sought to be adduced as evidence of admission by solicitor’s client – whether, for the purposes of s 87(1)(a) of Evidence Act 1995 (Cth), solicitor had authority to make admission on client’s behalf – whether representations in solicitor’s affidavit constituted an ‘admission’ – whether hearsay rule did not apply pursuant to s 81(1) of Evidence Act – whether, for purposes of definition of ‘previous representation’ in Evidence Act, earlier interlocutory proceedings were same proceedings as the trial within meaning of ‘the proceeding in which evidence of the representation is sought to be adduced’

Held: Each representation was made with client’s authority and constituted an ‘admission’ – ‘the proceeding’ in Evidence Act definition of ‘previous representation’ is the particular hearing before the particular judge and does not extend to other hearings or phases in the conduct of a matter, including any interlocutory proceeding, in which the parties have been engaged prior to that hearing

WORDS AND PHRASES – ‘admission’, ‘previous representation’, ‘in the proceeding in which evidence of the representation is sought to be adduced’, ‘judge’

Evidence Act 1995 (Cth), ss 3 (and Dictionary), 4, 81(1), 82(b), 87(1)(a), 88

Australian Competition and Consumer Commission v Pratt (No 2) [ 2008] FCA 1833 (2 December 2008)

[2008] FCA 1833

A. Pursuant to s 189 of the Evidence Act 1995 (Cth) (“the Evidence Act”) and O 29 of the Rules of this Court the following questions be decided after a hearing to commence on 8 December 2008 separately from any other question and before any trial in the proceedings herein;

(1) Are any and which of the Revised Form of Proposed Order, the Penalty Statement, the relevant paragraphs of the Agreed Statement of Facts and the relevant paragraphs of the Further Amended Defence admissible as evidence in these proceedings pursuant to any of ss 81, 82(b), 87 or 88 of the Evidence Act?

(2) If yes to (1), in respect of any of the Revised Form of Proposed Order, the Penalty Statement, the relevant paragraphs of the Agreed Statement of Facts and the relevant paragraphs of the Further Amended Defence (which are hereinafter collectively called “the prima facie admissible documents”) are any and which of the prima facie admissible documents inadmissible in these proceedings by reason of;

(a) s 85(2) of the Evidence Act; or

(b) s 137 of the Evidence Act?

(3) If (2) be answered no in respect of any of the prima facie admissible documents;

(a) will the Court refuse to admit such document as evidence in these proceedings in the exercise of the discretion conferred by;

(i) s 90 of the Evidence Act;

(ii) s 135 of the Evidence Act?

(b) is such prima facie admissible document by reason of s 138 of the Evidence Act not to be admitted as evidence in these proceedings?

B. The costs of both parties of the hearing on 10 November 2008 be reserved.