PRACTICE AND PROCEDURE – application for leave to appeal from decision to dismiss proceedings as an abuse of process – leave to appeal required – principles relating to appellate review – challenge to factual bases upon which proceedings classified as an abuse of process – whether or not improper collateral purpose for bringing proceeding – adverse inferences drawn by primary judge – whether solicitor has standing to appeal in relation to adverse findings made as to the conduct of a proceeding – whether the Court has duty to act in relation to a perceived abuse of process – inferences to be drawn from a failure of a witness to depose to matters in issue – application of the Ferrcom principle.
TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by widow and three adult children — Widow effectively left a life interest in the estate with the residue left to the adult daughters of the deceased on the death of the widow — Adult son of the deceased left a small legacy — Claim by widow of the deceased — Whether the deceased had a responsibility to make further provision for the widow — Competing claims against the estate of the deceased — Estate assets substantially depleted as a result of litigation resulting from the death of the deceased — Widow’s claim dismissed
BANKRUPTCY — Death of the widow after trial and before judgment — Estate of the widow insolvent — Representative of estate of the widow to make application for administration of plaintiff’s estate pursuant to s 247 of the Bankruptcy Act 1966 (Cth)
HUMAN RIGHTS – discrimination – whether student was discriminated against on the basis of her disability – whether the case proved on the balance of probabilities – whether evidence gives rise to “reasonable and definite” inferences.
PROPERTY – Theft – Stolen money – Remedies at law and in equity – Action for damages in conversion and for moneys had and received – Suit for Constructive Trust in Equity – Need for consistency – Interests of Justice
REMEDY – Remedies based on compensation for Plaintiff’s loss or accounting for wrongdoer’s gain – Consistency of remedy required – Interests of Justice
EQUITY – Trusts and trustees – Constructive trust
TORTS – Trover and Detinue – Action for conversion – Remedies – Waiver of Tort – Damages – Money had and received
CORPORATIONS – Aboriginal and Torres Strait Islander corporation – chief executive officer of corporation contravened multiple provisions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – civil penalty regime – orders for relief – orders for disqualification from managing a corporation, compensation and pecuniary penalty – whether multiple contraventions separate or part of one course of conduct – whether aggregate penalty appropriate in the totality of the circumstances
LEGAL PRACTITIONERS – decision by the Council of the Law Society of NSW to suspend practicing certificate – allegations of dishonesty – whether necessary in the public interest to suspend the practicing certificate – whether allegations made out
WILLS, PROBATE AND ADMINISTRATION – informal testamentary document – no dispute that undated document not executed in accordance with s 6 Succession Act 2006 – No dispute that the undated document purports to state the testamentary intentions of a deceased – Deceased familiar with the formal requirements for the making of a valid will – Whether Court satisfied that the deceased intended the undated document to form a Will – Consideration of circumstances in which the document was made – No dispute that if Court not satisfied should be grant of Letters of Administration with formal 2007 Will annexed to independent solicitor agreed to by the parties
DISCIPLINARY PROCEEDINGS – barrister – professional misconduct – allegation that barrister knowingly gave false evidence in proceedings in which she was a party – whether Tribunal failed to consider relevant evidence
HUMAN RIGHTS – Discrimination – minor with disability – educational services – consideration of direct and indirect discrimination before and after the 2009 amendments to the Disability Discrimination Act 1992 (Cth) – direct discrimination – whether aggrieved person treated less favourably in circumstances that are not materially different – whether failure to provide reasonable adjustments has the effect that person with disability is treated less favourably in circumstances that are not materially different – ground not made out – indirect discrimination – whether aggrieved person required to comply with requirement or condition with which a substantially higher proportion of persons without disability are able to comply – whether requirement or condition imposed upon an aggrieved person are unreasonable – reasonable degree of precision necessary in formulation – requisite precision absent – ground not made out – alleged breach of Disability Standards for Education – no contravention of standards – application dismissed
ADMINISTRATIVE LAW – cancellation of pilot licence – Briginshaw principle – fit and proper person – relevant considerations – adequate reasons
WILLS — Application for a grant of probate — Testamentary capacity — Whether the deceased had capacity to give instructions for a will — Whether the deceased had capacity to execute a will — Medical evidence not sufficient to support a finding of a lack of capacity — Deceased had capacity according to the Banks v Goodfellow test to give instructions — Deceased had capacity according to the Parker v Felgate test to execute the will
WILLS — Application for a grant of probate — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Court satisfied that the deceased read over and understood the provisions of the will
CORPORATIONS – duties of responsible entity of managed investment scheme under s 601FC – duties of officers of responsible entity under s 601FD
STATUTORY DUTY TO ACT IN BEST INTERESTS OF MEMBERS – meaning of “best interests of members” – whether best interests of members is subjective or objective – duty of undivided loyalty to members of scheme – conflict of interests – conflict of interest and duty – duty to give priority to members’ interests –care and caution required where conflicts exist
STATUTORY DUTY TO EXERCISE CARE AND DILIGENCE – standard of care – standard of care for directors of a responsible entity acting as a professional trustee – failure to consider effects of amendment to scheme constitution – failure to consider whether legitimate reasons for amendment – failure to be satisfied as to power to make amendments – reliance on legal advice – reliance on unusual and uncertain legal advice – failure to comply with scheme constitution and Act – failure to properly consider effect of amendments on members’ rights and interests – failure to identify conflict of interests – failure to consider how to appropriately resolve conflicts – duty to prioritise members’ interests – obligation to revisit decisions previously made
STATUTORY DUTY NOT TO MAKE IMPROPER USE OF POSITION TO GAIN ADVANTAGE – meaning of “to gain” and advantage or “to cause” detriment – meaning of improper use
STATUTORY DUTY TO TAKE ALL REASONABLE STEPS TO COMPLY WITH SCHEME CONSTITUTION – scheme constitution contractually binding – scheme constitution not inconsistent with Act – scheme constitution qualifies statutory power to amend
MEMBERS’ RIGHTS – whether right to have scheme administered according to existing constitution is a “members right” under s 601GC – failure to consider members’ right to have scheme administered according to existing constitution – amendment invalid as outside power – whether amendments made outside power become valid once lodged with ASIC
RELATED PARTY TRANSACTION IN MANAGED INVESTMENT SCHEME – breach of s 208 (as modified) of responsible entity – involvement of officers of responsible entity in breach of s 208 – essential elements of the prohibition in s 208 – whether s 208(3) is an exception to the prohibition – officers’ honest belief that constitution contain provision allowing payment
LODGEMENT OF AMENDMENTS TO SCHEME CONSTITUTION – whether lodgement of consolidated scheme constitution is sufficient under s 601GC – whether lodgement of amendments themselves is required
COMPANY PROCEDURE – decision-making by meeting of directors – obligation to clearly express will in meeting of directors – obligation to ensure expression of will is clearly recorded – whether conduct amounts to or conveys assent to a resolution
DEEDS – when does an undated deed come into effect – intention of the parties to the deed – intention by reference to statutory framework
TRADE PRACTICES – anti-competitive arrangements – whether the respondent travel agent attempted to induce specified Airlines to make collusive arrangements lessening or likely to lessen competition in the market – application of s 45 and s 45A of the Trade Practices Act 1974 (Cth), now the Competition and Consumer Act 2010 (Cth) – six alleged contraventions – consideration of the relevant “market” in intermediary services provided by travel agents – whether respondent and airlines truly in competition – consideration of the relevant service being supplied – Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd  HCA 72; (1986) 162 CLR 395 distinguished
Held: six charges proved – respondent and specified airlines competed for the retail or distributive margin attaching to the sale of an airline ticket – respondent sought to have access to the airfares offered by airlines, and, it sought to prevent the specified airlines from undercutting it with respect to such airfares, amounting to an attempt to induce anti-competitive arrangement or understanding
HUMAN RIGHTS – discrimination – sexual harassment – employee alleged she was verbally and physically sexually harassed by a contract worker engaged by her employer – harassment alleged to have occurred at the employer’s office, at other venues and during travel – whether the conduct was by “fellow employee” within the meaning of s 28B(2) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether the conduct occurred at a place that is a workplace of both workplace participants within the meaning of s 28B(6) of the SD Act – meaning of “workplace” – whether “workplace” confined to premises exclusively occupied by workplace participants and not to common areas shared with others – whether the usual workplace of both workplace participants is only a “workplace” during working time – whether and in what circumstances a place other than the usual workplace of both workplace participants may be a “workplace” – whether the conduct alleged could be characterised as a “sexual advance”, “a request for sexual favours” or “conduct of a sexual nature” within the meaning of s 28A of the SD Act – considerations relevant to determining whether the conduct was “unwelcome” – considerations relevant to determining whether a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated – whether the conduct alleged was proved – conduct found to have contravened
s 28B(6) of SD Act.
EVIDENCE – s 140 Evidence Act 1995 (Cth) – considerations to be taken into account in considering whether case proved on balance of probabilities.
DAMAGES – orders under s 46PO(4) Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) – measure of damages – extent to which common law principles have application in the assessment of damages under the AHRC Act – whether aggravated damages may be granted to compensate for matters taken into account in the award of general damages – considerations for the award of exemplary damages where compensatory damages have significant punitive force.
DAMAGES – double recovery – claims settled against both the applicant’s employer and the respondent’s employer – terms of settlement not disclosed to the Court – possibility of double recovery – prior satisfaction of applicant’s loss to be taken into account at time damages awarded – orders made requiring terms of settlement to be disclosed.
INDUSTRIAL LAW – applicant operates mine in central Queensland – second, third, fourth and fifth respondents senior officials of first respondent union – versions of overtime policy of union in service bay crib room and included in information pack to new members – claim by applicant that respondents contravened ss 50, 340, 345, 349 and 417 Fair Work Act 2009 (Cth) – relevance of minor variations in terms of overtime policy – whether respondents displayed or issued overtime policy – whether Lodge on frolic of its own – whether union contravened enterprise agreement – meaning of “contravention” – whether conduct of respondents constituted “industrial action” – hortatory statements in overtime policy – whether individual respondents involved in contravention by union – fifth respondent signed letter accompanying information pack with overtime policy to new members – whether applicant had a workplace right of requiring employees to work unrostered overtime – whether conduct of respondents concerning overtime policy constituted adverse action – evidence of negotiations between applicant and union concerning working of unrostered overtime – whether respondents engaged in false and misleading representations concerning right of the applicant to require employees to work overtime
PRACTICE AND PROCEDURE – respondents submitted no case to answer at conclusion of applicant’s case – respondents elected to call no evidence in proceedings – relevant principles where respondent makes “no case to answer” submission – application of rule in Jones v Dunkel – standard of proof – principles in Briginshaw v Briginshaw (1938) 60 CLR 336 – s 140 Evidence Act 1995 (Cth) – civil penalty provisions in Fair Work Act 2009 (Cth) – approach of Court to real controversy between the parties
APPEAL – misleading and deceptive conduct – dual pricing – Strike Through price and Sale price – Was price and Now price – identification of relevant audience – whether the trial judge erred in finding that the information conveyed in the catalogues and flyer were Savings Representations – whether the trial judge erred in finding that the Savings Representations were or were likely to be false or misleading.
Held: The appeal be dismissed. The appellant pay the respondent’s costs of the appeal.
ADMINISTRATIVE LAW – Application for leave to appeal from the Victorian Civil and Administrative Tribunal – Appeal from interlocutory orders – Orders were further extensions of time in respect of orders made by consent of the parties – Orders were directions commonly made and of a discretionary character – Whether Magistrates’ Court proceeding involving recovery of an amount paid by the fidelity fund should be heard and determined before VCAT proceedings – Matters before the Tribunal of greater public importance – No real or substantial argument that error exists – Application for leave to appeal refused.
ADMINISTRATIVE LAW – powers of Australian Communications and Media Authority (“ACMA”) to regulate commercial radio broadcasting licence holders – preliminary investigation report concludes that applicant contravened Surveillance Devices Act 2007 (NSW) and therefore breached a condition of licence under Schedule 2 of the Broadcasting Services Act 1992 (Cth) – whether ACMA can so conclude before competent Court adjudicates the issue – ACMA’s role to regulate the conduct of licensees including conducting investigations – whether ACMA’s findings interfere with the administration of justice in a criminal proceeding where no criminal proceeding has commenced – ACMA’s finding not determinative on question of criminal guilt.
CONSTITUTIONAL LAW – whether ACMA’s conclusion of breach of licence condition involves exercise of judicial power in conflict with Ch III of the Constitution
FAMILY LAW – Whether transfer of property pursuant to Family Court consent orders liable to be set aside as fraud on creditors – Conveyancing Act 1919 (NSW), s37A
FAMILY LAW – Defendants did not disclose to Family Court existence of plaintiffs’ claim against first defendant – Whether there was a miscarriage of justice – Family Law Act 1975 (Cth), ss79(10), 79A(1)
MORTGAGES – claim for possession of land following alleged mortgage default – defendants are husband and wife – mortgage broker acting for defendants – defendants executed mortgage and loan documentation – split-facility loan (Loans A, B and C) – Loan C remained in an undrawn account – written direction given to lender to disburse Loan C funds – funds paid into account of mortgage broker – defendants deny that direction to disburse Loan C funds executed by them or at their direction – whether husband and/or wife signed direction – whether defendants liable for disbursed Loan C funds – not established that husband or wife signed direction – whether defendants ratified the direction through their later conduct – held defendants did not ratify the direction – whether defendants were required to repay entire sum specified in mortgage (including Loan C funds) as mortgage contained a specific covenant to repay – construction of mortgage – held defendants not required to pay back entire sum – defendants not liable for Loan C funds drawn down without their authority – plaintiff’s claim based upon failure to repay Loan C funds rejected
ADMINISTRATIVE LAW – Application for leave to appeal on question of law against decision of judge of Trial Division affirming decision of Victorian Civil and Administrative Tribunal, which in turn affirmed decision of Racing Appeals and Disciplinary Board – Whether breached rules 64G and 175 of the Australian Rules of Racing by attempting or conspiring to stomach-tube horse prior to race, or engaging in conduct that could have led to stomach-tubing – Whether judge of Trial Division erred in concluding it was open to the Tribunal to find the breaches made out – Rule 64G creates an instrument only offence – Whether judge of Trial Division erred in finding the reasons of the Tribunal adequate in respect of expert veterinary evidence – Application for leave to appeal dismissed.
EVIDENCE LAW – Application of Briginshaw to Victorian Civil and Administrative Tribunal – Victorian Civil and Administrative Tribunal Act 1998 ss 97, 98 – Evidence Act 2008 s 140 – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd  HCA 66; (1992) 67 ALJR 170 – Greyhound Racing Authority v Bragg  NSWCA 388.
WILLS, PROBATE AND ADMINISTRATION – Testamentary instruments – Execution – Circumstantial suspicions raised as to testator’s knowledge and approval – Onus of proof – Explanations insufficient to dispel suspicions
TORTS – negligence – proof of negligence – whether trial judge failed to have regard to relevant evidence – whether affected by delay
TORTS – negligence – proof of negligence – Evidence Act 1995 (NSW), s 140(1) – proof on the balance of probabilities – relevance of alternative possibilities.
WILLS – Informal wills – Whether unexecuted document expresses testamentary intention – Whether the deceased’s wishes are testamentary in nature – Whether the document was intended to be the final will – Meaning of ‘without more’ – Whether conduct and statements subsequent to the making of an informal will is relevant to intention – Where deceased is aware that the declaration is informal and does not wish to take steps to rectify it – Grant of probate refused – Wills Act 1997, ss 7 and 9.
PRACTICE AND PROCEDURE – Permanent stay of proceedings insofar as there was direct or indirect reliance upon a forged document – Rule 23.01 of the County Court (General Civil Procedure) Rules 2008 – Misappropriation of gold – Disputed agreement to return gold – Handwriting experts – No cross-examination – Inadequacy of reasons – Unable to discern whether all relevant considerations taken into account including future conduct of trial in accordance with amended statement of claim.
REAL PROPERTY – possession of land – golf course – receivers appointed – receivers seek possession – whether employee manager of golf course entitled to possession – possession granted to receivers – writs to be issued and executed forthwith
CONTRACT – construction of contract – using surrounding circumstances as an aid to construction – alleged failure to read contract – allegation of undue influence – allegation of unconscionability – no undue influence found – no unconscionability found
PROCEEDS OF CRIME – proceeds assessment order – s 27 Criminal Assets Recovery Act 1990 – whether primary judge erred in finding appellant committed serious crime related activity – held no
TRUSTS AND TRUSTEES – Principles of construction of trust deed and notices under deed – Whether father’s appointment of adult son as appointor and protector effective
TRUSTS AND TRUSTEES – Office of appointor and protector – Whether power to appoint successor fiduciary or personal
EQUITY – General principles – Undue influence – Whether applicable to appointment to an office under a trust deed
FRAUD – Whether documents fraudulently concocted and backdated with a view to prejudicing bankrupt’s creditors – Evidence Act 2008 (Vic) s 140 – Nom v Director of Public Prosecutions & Ors  VSCA 198, - – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd  HCA 66; (1992) 110 ALR 449, 449-50
TORTS – NEGLIGENCE – Plaintiff claims a one half legal interest in a property bought by the fifth defendant and allegedly sold without her knowledge – Plaintiff claims that the first and second defendant were negligent in respect of the handling of the conveyance for the sale of the property in dispute – Plaintiff settled claim as against the first and second defendant on the second day of the trial
REAL PROPERTY – TORRENS SYSTEM – ENTITLEMENT TO STATUTORY INDEMNITY – Whether plaintiff entitled to indemnity by the third defendant for the loss and damage suffered by her as a result of the sale of her interest in the property – Transfer of Land Act 1958 s 110 – Third defendant joined the fifth defendant to the proceeding
EVIDENCE – STANDARD OF PROOF – Plaintiff claims that fifth defendant forged power of attorney – Whether the plaintiff has satisfied the Court that the power of attorney was forged – Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336 – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 – Evidence Act 2008 s 140(2) – Credibility of the lay witnesses – The expert evidence on handwriting – Gawne v Gawne (1979) 2 NSWLR 449
TRUSTS – PRESUMPTIONS – ADVANCEMENT – RESULTING TRUST – Contributions to the Purchase Price – Whether the presumption of advancement rebutted – Charles Marshall Pty Ltd v Grimsley  HCA 28; (1956) 95 CLR 353 – Martin v Martin  HCA 62; (1959) 110 CLR 297 – Pearson v Pearson  VicRp 108;  VR 693 – Cummins v Cummins, (2006) 227 CLR 278 – Relationship between the plaintiff and fifth defendant – Whether fifth defendant intended plaintiff’s legal interest be held on trust for him
LEGAL PRACTITIONERS – suspension of practising certificate – appeal against suspension – where suspension for alleged misappropriation of funds – hearing de novo – whether suspension necessary in the public interest – whether necessary to make findings of dishonesty – Legal Profession Act 2004, ss 548 and 549
INSURANCE – House fire – Fraud – Insurer resisting claim for indemnity on basis of allegation that insured connived in fire – Evidence – Circumstantial case – Insured in straightened economic circumstances – Competing expert opinions as to possibility of forced entry by unrelated third party – Whether judge erred in failing to find insured had powerful financial motive to burn house – Whether judge erred in failing to accept one expert opinion over another – Whether judge erred in deciding on basis of insurer’s failure to exclude reasonable possibility of forced entry by unrelated third party as opposed to proof on the balance of probabilities – Appeal dismissed – Transport Industries Pty Ltd v Longmuir  1 VR 125, considered and explained; Luxton v Vines  HCA 19; (1952) 85 CLR 352, 358; Chamberlain v The Queen (No2 )  HCA 7; (1984) 153 CLR 521; RJE v Secretary, Department of Justice  VSCA 265; (2008) 21 VR 526, referred to.
INSURANCE – Interest on claims – Day from which unreasonable for insurer to withhold payment – Whether period of six months’ unreasonable – Insurer’s delay in obtaining forensic report – Whether delay justified because of insured’s perceived financial difficulties – Costs – Indemnity costs – Calderbank offer – Whether insurer’s rejection of Calderbank offer unreasonable – Costs order varied in consequence of allowance of additional interest – Hazeldene Chicken Farms Pty Ltd v Victorian Workcover Authority No 2  VSCA 298; (2005) 13 VR 435, applied – Insurance Contracts Act 1984 (C’th) s 57.
PRACTICE & PROCEDURE – Discovery – Privilege – Dominant purpose – Burden of establishing purpose – Sufficiency of evidence – Joint privilege.
Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of Court – Further evidence – Power of Court to permit on hearing.
Supreme Court Civil Procedure Act 1932 (Tas), s48.
Aust Dig Appeal and New Trial 
Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of Court – When appeal lies – By leave of Court – Appeal against order for costs.
Supreme Court Civil Procedure Act 1932 (Tas), s44.
Aust Dig Appeal and New Trial 
Highways – Creation and extinction of highways – Dedication – What constitutes dedication – In general – Common law principles – Intention to dedicate – Rebuttal of the presumption of dedication that arises from user.
President of the Shire of Narracan v Leviston  HCA 34; (1906) 3 CLR 846, followed.
Aust Dig Highways 
Highways – Construction, maintenance and repair – Roads – Whether road maintained as shown on municipal map.
Local Government Act 1962 (Tas), s694.
Aust Dig Highways 
WILLS AND ESTATES – Refusal by the plaintiff to comply with Terms of Settlement executed by the parties – Plaintiff alleges that the defendants’ misappropriated certain assets of the deceased’s estate – Application by the defendants’ to enforce the terms – Whether the terms should be enforced by the Court
ADMINISTRATIVE LAW – Appeal from decision of Victorian Civil and Administrative Tribunal affirming decisions of Racing Appeals and Disciplinary Board – Plaintiffs charged with offences of conspiring and attempting to stomach-tube horse contrary to Australian Rules of Racing – Inferences as to plaintiffs’ intentions – Whether Tribunal erred in drawing inferences – Whether Tribunal correctly applied Briginshaw principles – Whether sufficient evidence to justify findings of conspiracy and attempt – Whether Tribunal disregarded relevant uncontradicted evidence without giving adequate reasons.
PUBLIC LAW – Appeal – Supervision orders under the Serious Sex Offenders (Detention and Supervision) Act 2009 – Nature of appeal from finding that offender an unacceptable risk – Appeal by way of rehearing – Whether conclusion of unacceptable risk was plainly wrong – Appeal from discretionary decision to make supervision order and terms of order attracts principles in House v The King (1939) 55 CLR 499 – Sections 96, 84, 88, 100, 101 and 102 of the Serious Sex Offenders (Detention and Supervision) Act 2009 – Dwyer v Calco  HCA 13; (2008) 234 CLR 124; Mobilio v Balliotis  3 VR 833 followed.
CHARTER – Construction of s 9 of the Serious Sex Offenders (Detention and Supervision) Act 2009 – Principle of legality – Whether interpretive obligations under the Charter of Human Rights and Responsibilities Act 2006 applies to finding that offender an ‘unacceptable risk’ – Construction which least infringes human rights – R v Momcilovic  VSCA 50; (2010) 25 VR 436; Momcilovic v The Queen (2011) 245 CLR 1 considered – Whether s 9 Charter compliant – Whether Charter requires a judicial discretion under s 9(7) to be construed as subject to an implied limitation – Implied limitation inconsistent with text and purpose of the Act – Conditions of supervision order – Additional conditions – Whether conditions must constitute minimum interference with human rights – Section 15(6) exempts core conditions.
PUBLIC LAW – Supervision orders – ‘Unacceptable risk’ – Section 9(1) – Test to be applied – Degree of likelihood of risk – Whether real likelihood, though not necessarily more likely than not that offender will commit offence – Section 9(5) – Consequences if risk eventuates – Placement of offence within a continuum of seriousness inappropriate – The Secretary to the Department of Justice v AB  VCC 1132 in part disapproved .
PUBLIC LAW – Standard of proof of unacceptable risk – High degree of probability – Section 9(2) – Evidence Act 2008 , s 140 – Application of Briginshaw principle – Acceptable and cogent evidence – Fardon v Attorney-General (Qld)  HCA 46; (2004) 223 CLR 575 considered – Queensland, Western Australian and New South Wales regimes considered – Means of managing risk – Section 9(4) – Whether ways in which offender might manage risk may be taken into account. Sections 9(1), 9(2), 9(3), 9(4), 9(5), 9(7), s 15(6) Serious Sex Offenders (Detention and Supervision) Act 2009.
SUPERVISION ORDER AND CONDITIONS – Appeal of Lowe – Error in finding of unacceptable risk – Supervision order set aside.
SUPERVISION ORDER AND CONDITIONS – Appeal of Nigro – No error in finding unacceptable risk or in making supervision order – Conditions imposed unreasonable, unacceptably wide or uncertain – Conditions set aside.
SUPERVISION ORDER AND CONDITIONS – Appeal of Ghebrat – No error in finding unacceptable risk or making supervision order – Condition restricting employment unreasonable measure to ameliorate risk of re-offending – Condition set aside.
HUMAN RIGHTS – Discrimination – disability – educational services – direct discrimination – whether failure to provide reasonable adjustments has the effect that person with disability is treated less favourably – ground not made out – indirect discrimination – whether requirements or conditions imposed upon an aggrieved person are unreasonable – requirements or conditions to be construed broadly – reasonable degree of precision necessary in formulation – requisite precision absent – ground not made out – alleged breach of Disability Standards – no contravention of standards – application dismissed
CONSUMER LAW – unconscionability – entry into consumers’ homes by ruse – sale of vacuum cleaners – breaches of State and Commonwealth consumer protection legislation – whether unconscionable
PRACTICE AND PROCEDURE – interlocutory application filed by appellants prior to the hearing to adduce further evidence under s 27 of the Federal Court of Australia Act 1976 (Cth) – where Court decided that it would not receive further evidence.
TAXATION – appeal to Federal Court of Australia pursuant to s 14ZZ of the Taxation Administration Act 1953 (Cth) – where Federal Court upheld respondent’s decision – where respondent disallowed the appellants’ objections – where appellants sold two properties, the Melba shops and the Hume property – whether the profit or gain associated with the sale of the Melba shops and Hume property was income according to ordinary concepts or income of a capital nature – whether the trial judge erred in law in applying the incorrect test for determining what was income according to ordinary concepts – whether the trial judge erred in factual findings he made.
Held: The appeals be dismissed. The appellant in each proceeding pay the respondent’s costs of the appeal.
INDUSTRIAL LAW – sham contracting – accessorial liability – whether threat to dismiss in order to reengage employee as an independent contractor – whether misrepresentation of employment relationship as a contract for services
CONTRACTS – oral agreement – evidence relevant to whether parties entered into an oral agreement – identification of terms of oral agreement.
EVIDENCE – credibility of witnesses – importance of contemporaneous material – Jones v Dunkel inferences.
PARTNERSHIP – formation – whether the parties were in partnership – distinction between partnership and joint venture.
DESIGNS – validity – steel fencing panel – whether design “new or original” – essential features of design to be judged by “instructed eye” – whether design differed in immaterial details or in features commonly used in the relevant trade – whether obvious adaptation of analogous article
DESIGNS – infringement – whether fraudulent or obvious imitation of registered design – where evidence was led that respondent referred to creating a “lookalike” of applicant’s product – principles in determining infringement – whether applicant entitled to the design
343. It seems to me to follow from what was said in Polyaire v K-Aire, and the earlier authorities to which the Court referred, that the claim is a serious one. It must be proved on the balance of probabilities taking into account the matters referred to in s 140(2) of the Evidence Act 1995 (NSW).
CONTRACT – construction – loan agreements – whether loan agreements were intended to be operative in accordance with their terms – whether primary judge made erroneous factual findings or failed to make necessary factual findings.
SUCCESSION – wills, probate and administration – application of Briginshaw standard to alleged destruction of will – whether evidence supports finding that deceased made a new will that has not been found
WILLS, PROBATE AND ADMINISTRATION – informal testamentary document – whether the document purports to state the deceased’s testamentary intentions – no dispute that document not executed in accordance with s 6 Succession Act 2006 – Deceased familiar with the formal requirements for the making of a valid will -whether Court satisfied that the deceased intended document to form an amendment to his duly executed Will – Consideration of circumstances in which the document was executed
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
TAXATION – Taxation Administration Act 1953 (Cth) – Division 290 – Civil penalty regime –Whether entity is a promoter of tax exploitation scheme – Whether entity has implemented a scheme otherwise than in accordance with its product ruling – Time limits on commencement of actions in respect of an entity’s involvement in a tax exploitation scheme
STATUTORY INTERPRETATION – Meaning of ‘markets the scheme or otherwise encourages the growth of the scheme or interest in it’ – Meaning of consideration received ‘in respect of’ marketing or encouragement
TRADE PRACTICES – proceeding by Commission under s 51AB of Trade Practices Act 1974 (Cth) and s 21 of Schedule 2 to Competition and Consumer Act 2010 (Cth) – whether respondent engaged in unconscionable conduct – matters relevant to unconscionability – where respondent a trading corporation supplying vacuum cleaners – where respondent’s representatives sold vacuum cleaners to consumers during home visit – where consumers initially offered free maintenance check of existing vacuum cleaners – where consumers not informed that respondent’s representatives may attempt to sell respondent’s vacuum cleaners during maintenance check – where maintenance checks alleged to be cursory – where respondent’s representatives allegedly untrained to perform maintenance checks – where consumers of advanced age – where certain representatives breached provisions of State fair trading legislation concerning acceptance of consideration prior to expiry of cooling-off period and length of attendance at consumer’s premises – whether respondent engaged in unfair and pressure sales tactics – whether equivalent vacuum cleaners available in retail stores at lower price