Category Archives: s. 078

BHP Billiton Ltd v Dunning [2015] NSWCA 55 (11 March 2015)

WORKERS COMPENSATION – dust diseases – the respondent successfully brought a claim against the appellant relating to injury resulting from exposure to asbestos during his employment with the appellant – whether the primary judge erred in finding that the appellant breached its duty of care to the respondent – whether the primary judge erroneously assumed that a finding of breach should follow automatically from a finding of foreseeability

EVIDENCE – opinion evidence – whether non-expert witness able to give evidence that material was or contained asbestos – admissible as evidence of objectively observed fact in the particular circumstances of the case – resort to ss 78 and 79 of the Evidence Act 1995 concerning opinion evidence unnecessary to support its admission

EVIDENCE – evidence of practice – estimates by supervisor of periods and intensity of exposures of workers to asbestos – generality of the evidence no barrier to its admission

Equity Trustees Ltd v Jewish Care (Victoria) Inc & Anor [2015] VSC 73 (10 March 2015)

WILLS AND ESTATES – Charitable trust established by will – Special purpose trust for establishing, equipping and maintaining a hospital to be known by a specific name – Subsequent re-location of hospital established under the will to new hospital buildings – Renaming of hospital buildings – Whether trust moneys able to be applied toward new hospital under the terms of the will – Whether cy pres application necessary.

Hodder v Hamilton & Fitzpatrick [2014] VSCA 279 (6 November 2014)

ACCIDENT COMPENSATION – Occupiers’ liability – Jury trial – Application to discharge jury – Evidence – Cross-examination – Re-examination – Whether cross-examination impermissible – Whether re-examination arose out of cross-examination – DVD purporting to be a re-enactment of the accident – Whether DVD admissible- Whether DVD admissible in re-examination – Whether probative value of evidence substantially outweighed by the danger that the evidence might be confusing – No substantial wrong or miscarriage occasioned in the trial by the rejection of the tender – Evidence Act 2008 , ss 55, 78 and 135(b) – Supreme Court (General Civil Procedure) Rules 2005, r 64.23(2) – Appeal dismissed.

Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 (30 October 2014)

APPEAL – grounds – apprehended bias – application to trial judge to recuse herself because ruling on admissibility suggested acceptance of the evidence – whether a reasonable fair-minded observer would apprehend bias

DEFAMATION – imputations – broadcast as to risks identified with infant sleep positioners overseas – infant sleep positioner manufactured and sold by applicants featured on broadcast without being named – alleged defamatory imputations that the applicants sold and offered for sale a product subject to recall and unsafe – whether defamatory imputations conveyed – whether imputations would diminish the applicants’ standing in the eyes of the ordinary reasonable person

DEFAMATION – defences – substantial truth – whether defamatory imputations as to the safety of infant sleep positioners were substantially true – reliance on expert evidence on the risks associated with infant sleep positioners to establish substantial truth – Defamation Act 2005 (NSW), s 25

DEFAMATION – defences – justification – contextual truth – imputation not substantially true – whether broadcast carried contextual imputations that were substantially true – whether defamatory imputation could do no further harm to reputation because of contextual imputations – Defamation Act 2005 (NSW), s 26

DEFAMATION – cause of action – whether corporate plaintiff an excluded corporation – corporation is an “excluded corporation” if it employs fewer than 10 persons – whether persons confined to employees – Defamation Act 2005 (NSW), s 9(2)(b)

EVIDENCE – relevance – admissibility – applicants sought to give evidence as to whether dangers in other sleep positioners applied to their products – whether non-expert opinion evidence admissible to prove falsity of a defamatory imputation

EVIDENCE – expert opinion – whether expert qualified to give opinion on the specific characteristics of the applicants’ infant sleep positioner – whether expert had a preconceived opposition to infant sleep positioners – Evidence Act 1995 (NSW), s 79

TORT – injurious falsehood – malice – whether failure to obtain comment from supplier was so reckless as to warrant inference of malice

WORDS AND PHRASES – “employs” – “persons” – Defamation Act 2005 (NSW), s 9

AusNet Electricity Services Pty Ltd v Liesfield [2014] VSC 474 (23 September 2014)

PRACTICE AND PROCEDURE – Class action proceedings against the appellant arising out one of the Black Saturday bushfires (‘the Murrindindi fire’) – Appellant claimed legal professional privilege in relation to a bundle of reports it had prepared (‘the technical analysis documents’) – Documents produced shortly after the appellant was advised by the Victoria Police that the police were investigating whether the appellant was responsible for the start of the fire – Associate Judge ruled that the technical analysis documents were not privileged – Appeal against the decision of the Associate Judge – Instruction for production of the documents given by a sub-committee of the board of directors – Member of the sub-committee giving the instruction not called to explain purpose in seeking production of the technical analysis documents – Consideration of the dominant purpose of the sub-committee – Consideration of possible purposes of the sub-committee other than privileged purposes – Consideration of inferences that could be drawn from the appellant’s failure to call evidence that was available to be called – Blatch v Archer considered – Appeal dismissed.

PRACTICE AND PROCEDURE – Appeal from a decision of an Associate Judge on findings of fact – nature of appeal – test to be applied on appeal to findings of fact.

Nominex Pty Ltd & Anor v Wieland & Ors [2014] VSCA 199 (5 September 2014)

TRADE PRACTICES – Misleading or deceptive conduct – Representations – Whether representation that funds in capitalised interest facility could be drawn down to fund repayment of the loan made – Alleged oral representations – Construction of funding document – Reliance – Causation – Trade Practices Act 1974 (Cth), s 52 – Fair Trading Act 1999 (Vic), s 9.

TRADE PRACTICES – Misleading or deceptive conduct – Accessorial liability – Trade Practices Act 1974 (Cth), s 75B – Fair Trading Act 1999 (Vic), s 159.

CORPORATIONS – Directors’ duties – Whether directors breached duties – No breach of duty.

AGENCY – Joint venture – Whether nominee company merely agent for joint venture parties.

DAMAGES – Pleadings – Case not run at trial – Octavo Investments Pty Ltd v Knight [1979] HCA 61; (1979) 144 CLR 360.

APPORTIONMENT – Apportionable claim – Concurrent wrongdoers – Trade Practices Act 1974 (Cth), ss 87CB and 87CC.

Kheir v The Queen [2014] VSCA 200 (5 September 2014)

CRIMINAL LAW – Conviction – Evidence – Opinion evidence – Lay opinion – Expert evidence – Ad hoc expert – Specialised knowledge based on training, study or experience – Basis rule – Identification – Identification evidence – Voice identification – Jury directions – Conduct of trial – Application for leave to appeal against conviction refused – Evidence Act 2008 , ss 76, 78 and 79.

CRIMINAL LAW – Sentence – Blackmail – Aggravated burglary – Armed robbery – Recklessly causing injury – Whether sentences manifestly excessive – Totality – Whether orders for cumulation excessive – Application for leave to appeal against sentence refused.

Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215 (3 July 2014)

EVIDENCE – admissibility – opinion evidence – worker exposed to asbestos dust during employment – admissibility of statements of workers alleging exposure to asbestos dust – whether identification of dust as asbestos inadmissible as opinion – whether evidence admissible as perception of a fact – whether evidence admissible as opinion based on specialised knowledge – Evidence Act 1995 (NSW), ss 76(1), 78, 79

TORT – joint tortfeasors – contribution between tortfeasors – worker sued statutory authority in negligence – statutory authority settled without admitting liability – statutory authority sought contribution from worker’s employer – whether statutory authority liable to worker – whether erroneous apportionment of liability – whether failure to consider relative culpability of parties – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2)

TORT – negligence – duty of care – statutory authority regulating stevedoring industry – worker exposed to asbestos dust when employed by a stevedore – worker not a registered waterside worker – whether statutory authority owed a duty of care to persons other than registered waterside workers – functions and powers of the statutory authority- breach of duty – whether evidence established breach – Stevedoring Industry Act 1956 (Cth), ss 7, 8, 17, 18, 28, 29, 33, 39, 41

Rodger v Wojcik [2014] VSC 308 (27 June 2014)

APPEAL FROM MAGISTRATES’ COURT – Charge of exceeding speed limit – Preliminary brief served – Appellant failed to appear at court – Charge heard and determined ex parte by judicial registrar of Magistrates’ Court – Whether appeal from order of judicial registrar competent – Whether evidence in preliminary brief sufficient to prove charge – Evidence insufficient to prove prescribed use of speed detection device, and therefore particular speed alleged, but sufficient to prove charge – Appeal allowed – Appellant to be re-sentenced by Supreme Court on evidence in preliminary brief rather than by Magistrates’ Court on remittal on fresh evidence – Criminal Procedure Act 2009 (Vic), ss 80, 84, 86, 87, 254 & 272 – Magistrates’ Court Act 1989 (Vic), ss 4, 16I & 16K – Magistrates’ Court (Judicial Registrars) Rules 2005 (Vic), rr 4 & 5 – Road Safety Road Rules 2009 (Vic), r 20 – Road Safety Act 1986 (Vic), ss 25, 28 & 79 & Sch. 5 – Road Safety (General) Regulations 2009 (Vic), r 46 & Sch. 7.

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634 (18 June 2014)

CONSUMER LAW – Australian Consumer Law ss 18(1), 29(1)(a), 33 – Misleading or deceptive conduct or conduct likely to mislead or deceive, false or misleading representations, conduct liable to mislead the public – Whether the use of the phrases “baked today, sold today”, “freshly baked”, “baked fresh” and “freshly baked in-store” is misleading where the complete baking process is not undertaken in-store on the day – Whether the relevant context for assessing misleading or deceptive conduct includes a cynical consumer culture

PRACTICE AND PROCEDURE – Admissibility of evidence – relevance – whether evidence of third party conduct is relevant – hearsay – whether statements made by third parties serve a non-hearsay purpose

Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625 (16 June 2014)

EVIDENCE – whether previous representations made in certain printouts of emails should be admitted into evidence as business records pursuant to s 69 of the Evidence Act 1995 (Cth) – whether those emails should be excluded in the exercise of the Court’s discretion pursuant to s 135 or s 169 of the Evidence Act – whether the Court should compel the plaintiff to call the authors of the emails pursuant to s 169 of the Evidence Act – whether the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) prohibit the tender of transcripts of recordings of intercepted telephone calls and whether, if not, those transcripts are admissible as business records – whether transcripts of evidence given at a public inquiry conducted by the NSW Independent Commission Against Corruption are admissible as business records – whether a previous statement in writing made by a potential witness out of Court which was created for the purpose of being provided to a television journalist is admissible

Patrick v The Queen [2014] VSCA 89 (14 May 2014)

EVIDENCE – Appeal against conviction – Six charges of indecent assault and one charge of gross indecency – Appellant sentenced to six years and three months imprisonment with a nonparole period of four years – Accused apologised to complainant ‘for the things I have done’ – Whether the complainant’s perception of what the accused was referring to when he made that apology could be characterised as opinion evidence – Trial judge erred in admitting evidence as to the complainant’s perception of what the accused meant when apologising because her perception added no more to the evidence than the words of the apology itself – No miscarriage of justice because the trial judge directed the jury that they could only rely on the admission if they were satisfied that it was an admission of sexual abuse – Appeal dismissed – Evidence Act 2008 (Vic) s 66A, 78 – Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650.

Video Ezy International Pty Ltd v Sedema Pty Ltd [2014] NSWSC 143 (27 February 2014)

APPEAL FROM LOCAL COURT – whether Magistrate erred in finding a franchise agreement had come to an end – whether the franchisor breached the restrictive covenant not to compete with the franchisee in the exclusive territory – whether competing “within” the territory of the franchise is the physical territory or includes products purchased over the internet – whether the franchisor had an obligation to act in good faith to the franchisee – whether the conduct of the franchisor was unconscionable within the meaning of the Trade Practices Act 1975 (Cth) and the Competition and Consumer Act 2010 (Cth) – whether related entities of the franchisor were liable as accessories to the unconscionable conduct of the franchisor;
EVIDENCE – admissibility of evidence on the ground that the evidence was opinion – evidence properly admitted

McLaren v Chief of Navy [2013] ADFDAT 5 (29 November 2013)

DEFENCE FORCE – appeal from Restricted Court Martial against convictions for committing an act of indecency – circumstantial evidence – whether Judge Advocate erred in failing to give proper direction – admissibility of evidence based on inference drawn by witness from observed facts – whether substantial miscarriage of justice – meaning of “indecency” – appeal allowed – conviction quashed – retrial ordered

Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 4) [2013] NSWSC 1649 (21 October 2013)

DEFAMATION- plaintiff’s entitlement to “nail the lie”- use of evidence depends on admissibility- relevant to damages- giving of evidence itself a remedy

EVIDENCE- construction of s 76, s 78 and s 79 Evidence Act 1995 – whether unqualified plaintiff’s evidence of falsity of matter of expert opinion is admissible to prove its falsity or is limited to the plaintiff’s belief

ICM Investments Pty Ltd v San Miguel Corporation & Anor [Ruling No. 1] [2013] VSC 463 (27 August 2013)

EVIDENCE – Admissibility – Hearsay evidence – Business record exemption under s 69 of the Evidence Act 2008 (Vic) (“Act”) – Representation was hearsay evidence in business record – Whether representation must also comply with s 78 to be admitted – Opinion evidence – Section 78 of the Act provides that rule excluding evidence of opinion does not apply to certain “non-expert opinions” – Basten JA in Jackson v Lithgow City Council [2010] NSWCA 136 [60]-[76] referred to and applied – Representation and “asserted fact” relied upon not defined – Precise authorship of business record not established – Inability of Court to apply statutory exceptions to hearsay and determine admissibility in such circumstances – Business record not admitted into evidence even though potentially relevant – Witnesses meeting notes contained opinion – Lithgow City Council v Jackson [2011] HCA 36 referred to and applied – Meeting notes admitted for a limited purpose.

R v Klobucar [2013] ACTSC 118 (18 June 2013)

CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – judge-alone trial – procuring drug trafficking – intention to procure – conduct effective to procure – trafficking offence actually committed – verdict of guilty to be entered.

CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – procuring drug trafficking – presumption of required intention or belief for trafficking offence arising from transporting of traffickable quantity not available against accused who procured the transporting – Criminal Code 2002 (ACT), s 604.

CRIMINAL LAW – PARTICULAR OFFENCES – drug trafficking – whether a person who transports drugs on behalf of another person expecting payment for the delivery “sells” the drugs to the other person – whether if a person who transports drugs on behalf of another person “sells” the drugs to the other person, the other person is protected from liability for an offence arising from procuring the transporting of the drugs by reason of an intention to “buy” the drugs – Criminal Code 2002 (ACT), ss 600, 602, 605.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Courses of Evidence, Statements and Addresses – whether prosecution should be permitted to open on one analysis of the facts and close on another analysis – whether defence prejudiced in cross-examination.

CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – evidence of co-offender’s conviction for offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), ss 91, 178.

CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – opinion of person about legal significance of actions not evidence based on what person saw, heard or otherwise perceived about a matter or event – evidence of co-offender’s opinion whether he committed offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), s 78.

Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013)

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

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

Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355 (30 November 2012)

EVIDENCE – Admissibility – relevance – whether documents relevant to case as pleaded

EVIDENCE – Admissibility – relevance – whether documents concerning alleged conspirators not at trial are relevant to the allegations made against those who are – whether use of such documents is coincidence reasoning – discussion of the matters that such documents might be used to prove

EVIDENCE – Admissibility – business records – whether minutes of meetings of an organisation that represents businesses are business records of the businesses or, alternatively, the organisation – whether representations made therein are made ‘in the course of, or for the purposes of, the business’ of each member business or, alternatively, of the organisation – whether document must belong to the entity to whose business the document relates – whether minutes discovered on the computer networks of a business are ‘belonging to or kept by’ the business

EVIDENCE – Admissibility – business records – whether statements of opinion in business records are admissible

EVIDENCE – Admissibility – relevance – authenticity – whether document’s authenticity must be proved for the document to be admissible – whether inferences as to authenticity may be drawn from the document itself – whether National Australia Bank v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309 should be followed

Gigi Entertainment Pty Limited v Schmidt [2012] NSWSC 1423 (23 November 2012)

DAMAGES – leases and tenancies – whether there was a breach of contract – lock out by lessor – hotel – claim for damages for outstanding rent; repair and replacement of plant and equipment; repair and maintenance of hotel; and rent to end of term – defendant in default of various obligations including rent – plaintiff re-entered, occupied and took possession of the hotel – claim that defendant failed to maintain, replace, repair hotel – loss of bargain claim dismissed – referee claims – evidentiary difficulties – nature of lease obligations – was the defendant liable for any prior breach of the lease – observed items – claim for painting-head contractor – claim for costs of re-entry – cross-claim – repayment of security deposit – conversion – claim in respect of mini bus – interest – costs

PROCEDURE – various notice of motions – leave sought to rely on further affidavits – refusal of pleading amendment – refusal of the adjournment application – rejection of the tender

EVIDENCE – admissibility – expert evidence

Howroyd v Howroyd [2011] TASSC 73 (22 December 2011)

Succession – Wills, probate and administration – The making of a will – Testamentary instruments – Knowledge and approval of contents – Generally – Circumstances raising suspicion – Will prepared by person taking benefit.
Vernon v Watson [2002] NSWSC 600; Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, referred to.
Aust Dig Succession [12]

Succession – Wills, probate and administration – The making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Evidence – Onus of proof and weight of evidence – Will executed day before death.
Banks v Goodfellow (1870) LR 5 QB 549, Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, referred to.
Wills Act 1992 (Tas), s10.
Aust Dig Succession [8]

Tasmania v Martin (No 2) [2011] TASSC 36 (23 June 2011

Criminal Law – Procedure – Information, indictment or presentment – Joinder – By statute – Same facts or series of offences of same or similar character – Sexual offences against a young person – Joinder of count of possession of child exploitation material – Whether offences of same or similar character.
R v Carr [2003] TASSC 123; R v May [2007] QCA 333, applied.

Aust Dig Criminal Law [3075]

Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency under uniform evidence law – Other cases – Sexual offences against a young person – Admissibility of evidence of possession of child pornography – Whether evidence of significant probative value – Whether evidence should be excluded.
R v PWD (2010) 205 A Crim R 75; CGL v DPP [2010] VSCA 26; (2010) 24 VR 486, applied.

Aust Dig Criminal Law [2782]

Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under uniform evidence law – For particular purpose – Rebuttal of possible defence – Particular cases – Sexual offences against young person – Out of court statements by accused of abhorrence of sexual intercourse with young persons – Evidence of possession of child pornography admissible for purposes of context and credibility.

Aust Dig Criminal Law [2784]

Criminal Law – Evidence – Relevance – Particular cases – Sexual offences – Statutory prohibition except with leave on evidence of the sexual experience of the complainant – Leave not to be granted unless Court satisfied the evidence has direct and substantial relevance to a fact or matter in issue – Meaning of “direct and substantial relevance.”

Evidence Act 2001 , s194M(2).
Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374; VOT v Western Australia [2008] WASCA 102; (2008) 184 A Crim R 284, applied.

Aust Dig Criminal Law [2675]

Criminal Law – Evidence – Relevance – Particular cases – Sexual offences against young person – Belief of accused as to age of complainant relevant to all counts – Offences committed in the course of complainant’s work as a prostitute – Relevance of evidence of other clients of complainant as to observations and belief about age.
Simmons (1931) 23 Cr App R 25; USA v Yazzie 976 F 2d (9th Cir 1992), considered.
Aust Dig Criminal Law [2675]

Lithgow City Council v Jackson [2011] HCA 36 (28 September 2011)

Evidence – Admissibility – Opinion evidence – Section 78 of Evidence Act 1995 (NSW) (“Act”) provided that rule excluding evidence of opinion does not apply where “opinion is based on what the person saw, heard or otherwise perceived about a matter or event” and evidence “is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event” – Respondent found unconscious and injured in drain – Respondent conceded appellant only liable if respondent fell from vertical retaining wall – Ambulance record contained representation “? Fall from 1.5 metres onto concrete” – Whether representation was admissible under s 78 of Act as opinion that respondent fell from vertical retaining wall.

Evidence – Admissibility – Hearsay evidence – Business records exception under s 69 of Act – Representation was hearsay evidence in business record – Whether representation must also comply with s 78.

Negligence – Causation – Whether circumstantial inferences sufficient to establish causation.

Evidence Act 1995 (NSW), ss 69, 78.

ASIC v Vines [2003] NSWSC 1237

EVIDENCE — character evidence in civil proceedings — whether evidence relevant — whether evidence admissible as opinion evidence — whether evidence admissible under tendency rule — whether evidence should be excluded on discretionary grounds

(CTH) Evidence Act 1995 (NSW & Cth) ss 55, 56, 76, 78, 79, 97, 135

Tyneside Property Management Pty Ltd& ors v Hammersmith Management Pty Ltd& ors [2011] NSWSC 395 (17 February 2011)

EVIDENCE – hearsay – whether report by consultant engineer falls within business records exception – where document part of records of one of the defendant companies and copy kept by consultant – held: admissible under business records exception.
EVIDENCE – opinion – documents admissible under business records exception to hearsay rule contain opinions – admissibility of opinions dependent also on satisfying an exception to the opinion rule – non-compliance with expert witness code does not impact on admissibility as expert opinion – held: admissible under specialised knowledge exception.

(NSW) Evidence Act 1995 , s 69, s 78, s 79

La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4 (19 January 2011)

DAMAGES – measure of damages – respondent negligently valued land for purposes of a loan – if properly advised the appellant would have sought to make an alternative loan – causation – loss of a chance – standard of proof – calculation of loss – whether capital loss and income loss should be segregated

EVIDENCE – opinion evidence – what constitutes opinion evidence

Evidence Act 1995 (Cth) ss 56(2), 76, 78, 135

Tasmania v Martin [2010] TASSC 51 (11 November 2010)

Criminal Law – Procedure – Prosecution – Other matters – Preliminary proceedings orders – Whether order should be made – Question arising whether evidence admissible – Desirability of non-publication of evidence before trial – Whether more convenient and desirable to hear evidence of witnesses on voir dire and not in preliminary proceedings before justices.
Aust Dig Criminal Law [3037]

Jackson v Lithgow City Council [2010] NSWCA 136 (11 June 2010)

APPEAL – remitter from High Court for rehearing of appeal – first hearing of the appeal proceeded on an inaccurate record of evidence – question mark symbol cut off in original appeal papers – effect of question mark on probative force of evidence
EVIDENCE – admissibility and relevancy – notes of ambulance officers – inference of fact as to cause of injury and surrounding circumstances – business records under Evidence Act 1995 (NSW), s 69(1) – hearsay rule did not apply – representation made by maker of the document on the basis of information indirectly supplied by someone who had or might be reasonably supposed to have had personal knowledge of the asserted fact
EVIDENCE – admissibility and relevancy – opinion evidence under Evidence Act 1995 (NSW), s 78 – opinion of underlying matter or event includes perceptions of the aftermath of an incident – meaning of the word “necessary” in s 78(b) – the section does not require absolute necessity
NEGLIGENCE – causation – evidence – whether on the balance of probabilities the appellant suffered his injuries as described in the ambulance officers’ notes

Evidence Act 1995 (NSW), s 60, 69(1), 76, 78, 135, 136, 137, 183

Nokia Corporation v Truong [2005] FCA 1141 (19 August 2005)

[2005] FCA 1141
EVIDENCE – admissibility of opinion – evidence of counterfeit goods.

TRADEMARKS – infringement of trademarks – whether accessories or spare parts covered by specification – whether adding material is, or altering, at trade mark avoids infringement – whether the respondents had an arguable defence.

PRACTICE AND PROCEDURE – application for summary judgment – trade mark infringement – no real or arguable defence or triable issue.

Evidence Act 1995 (Cth) ss 76, 78, 79

AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (with Corrigendum dated 25 October 2006) [2006] FCA 1234 (18 September 2006)

[2006] FCA 1234

EVIDENCE – legal professional privilege – documents required to be produced by notice under Royal Commissions Act 1902 (Cth) – whether documents brought into existence for the dominant purpose of giving or obtaining legal advice – whether documents brought into existence in furtherance of fraud or improper purpose – waiver of privilege – imputed waiver – associated material waiver – whether privilege has been waived by disclosures made by applicant to Independent Inquiry Committee into the United Nations Oil-For-Food Program, Australian Government and royal commission

Evidence Act 1995 (Cth) ss 69, 78, 79, 135

Idoport Pty Limited and Anor v National Australia Bank Limited and 8 Ors; Idoport Pty Ltd and Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited “JMG” v National Australia Bank Limited [28] [2001] NSWSC 529 (27 June 2001)

[2001] NSWSC 529

Practice and Procedure
Lay statements of opinion
S.78 Evidence Act
If a witness’s “perception of a matter or event” is relevant, evidence of that perception is admissible; and if evidence of that person’s opinion is necessary to obtain an adequate account or understanding of his or her perception, then an opinion based on what that person saw, heard or otherwise perceived about the matter or event is admissible as exception to the opinion rule
There is a clear difference between on the one hand, experts called who were not in earlier years, in any way involved as contemporaneous witnesses and on the other hand, persons not qualified as S.79 experts, but who can give S.78 evidence of a contemporaneous nature as to their then perceptions.
S.135 discretions

Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 (27 May 2002)

[2002] NSWSC 485

EVIDENCE – admissibility and relevancy – whether expert evidence not admissible through risk of bias – CORPORATIONS – winding up – setting aside statutory demand – re-writing statutory demand under section 459H Corporations Act 2001 (Cth) – relationship between debt claimed in notice of demand, and re-written notice of demand

Craig William JACKSON v LITHGOW CITY COUNCIL [2008] NSWCA 312 (24 November 2008)

[2008] NSWCA 312

NEGLIGENCE – causation – evidence
EVIDENCE – evidence in negligence action – inference of fact from occurrence of damage and all the surrounding circumstances – note of ambulance officers –opinion evidence under Evidence Act 1995 (NSW), s 78
MEASURE OF DAMAGES (TORT) – damages for personal injuries – assessment – quantum recoverable – future economic loss – non-economic loss – loss of earnings and earning capacity – future care – past care
INTOXICATION – relationship between Civil Liability Act 2002 (NSW), s 50(2) and (3) – contributory negligenc

REGINA v Bilal SKAF, REGINA v Mohammed SKAF [2004] NSWCCA 37 (6 May 2004)

[2004] NSWCCA 37

Criminal law – sexual offences – identification issues – Evidence Act, s116 – rule 4 – directions as to meaning of “beyond reasonable doubt” – impact of media publicity upon fair trial – directions about suspect’s refusal to answer questions in ERISP – directions about lies – consciousness of guilt directions – complainant’s evidence as to belief of accused’s guilt in matter involving inference – juror misconduct – unauthorised view and experiment – admissibility of evidence of same – appropriate directions to juries prohibiting independent enquiries (D)

Evidence Act, ss53, 76, 78, 89, 95, 97, 101, 116

R v Fernando & Anor [1999] NSWCCA 66 (14 April 1999)

[1999] NSWCCA 66

CRIMINAL LAW – murder – confessions and admissions – voluntariness – hostile witness – unreliability of witness – hearsay evidence – failure to call witness – reopening of Crown case – common purpose – comment of accused not giving evidence – separate trials – cross examination by co-accused – unsafe and unsatisfactory verdict – sentencing – life sentence – worst type of case.

Evidence Act 1995; ss 20; 38; 59; 60; 76 and 78; 84; 85; 90; 104; 135; 137; 138; 165