Category Archives: s. 087

Fair Work Ombudsman v Valuair Limited [2014] FCA 404 (29 April 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/404.html

EVIDENCE – out of court statements contained in transcript of interview – applicant sought to admit parts of transcript into evidence as admission – mixed statement containing inculpating and exculpating representations – whether entirety of the record of interview should be admitted into evidence at the same time – entirety of transcripts admitted into evidence

Wright v Optus Administration & Anor (No 5) [2013] NSWSC 1717 (12 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1717.html

EVIDENCE – admissibility – Part 3.4 Evidence Act 1995 (NSW) – s87 – whether statement of witness contains admissions – whether statement contains representations to which it is reasonably necessary to refer in order to understand admissions – whether witnesses representations related to a matter within the scope of her employment

Lewis v Chief Executive Department of Justice and Community Safety and Sentence Administration Board of the Australian Capital Territory [2013] ACTSC 198 (1 October 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/198.html

ADMINISTRATIVE LAW – delegation – whether retrospective delegation is invalid – whether statements suggesting invalid delegation are binding upon a party – whether delegation was invalid as unauthorised subdelegation – whether invalid delegation is validated by s 242(1) of the Legislation Act – whether officer may act without delegation under the Carltona principle – whether the Sentence Administration Board could act regardless of the validity of the delegation – delegation valid

ADMINISTRATIVE LAW – validity of meetings – effect of the invalidity of the meeting of the Sentence Administration Board – whether resolutions at that meeting were valid regardless of the meeting’s invalidity – resolutions valid and binding

ADMINISTRATIVE LAW – particular tribunals or bodies – the Sentence Administration Board (ACT) – requirement to comply with the rules of natural justice – exercise of power under the Crimes (Sentence Administration) Act 2005 (ACT) not judicial power

ADMINISTRATIVE LAW – natural justice – content of the natural justice requirement on the Sentence Administration Board – requirement to give notice – whether personal service of notice is required – not required — whether the presence of the accused at an inquiry of the Sentence Administration Board is required – turns on the circumstances – presence of the accused not always required – right of an accused to be present at an inquiry of the Sentence Administration Board – not a necessity for the accused to be present

CONSTITUTIONAL LAW – judicial power – characteristics of judicial power – sentencing as judicial power – powers of the Sentence Administration Board not sentencing – distinction between imposing sentence and the way a sentence is to be served

CONSTITUTIONAL LAW – territories – particular territories – the Australian Capital Territory – establishment of the ACT Legislative Assembly under the Australian Capital Territory (Self-Government) Act 1988 (Cth) was not a delegation of the Commonwealth nor does the Legislative Assembly exercise Commonwealth legislative power – complication of s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth)

CONSTITUTIONAL LAW – territories – particular territories – the Australian Capital Territory – no requirement for separation of powers in the ACT under the Commonwealth Constitution – judicial power of the ACT courts not the judicial power of the Commonwealth – establishment of ACT courts was under s 122 not s 71 of the Commonwealth Constitution – laws of the ACT do not ‘arise under’ a law of the Commonwealth

CONSTITUTIONAL LAW – territories – particular territories – the Australian Capital Territory – interference with or impairment of the institutional integrity of the ACT Supreme Court – no interference or impairment

CRIMINAL LAW – sentencing – options for imprisonment – periodic detention – approach to in the ACT – purpose for and operation of the legislative scheme – whether periodic detention is consensual – it is – distinction between the setting of a sentence and setting a period of periodic detention

CRIMINAL LAW – jurisdiction, practice and procedure – requirement for the presence of an accused during trial or sentence – accused required subject to exception

STATUTES – acts of parliament – validity of legislation – Crimes (Sentence Administration) Act 2005 (ACT) – validity of ss 68(2)(f), 69, 79 and 82 of the Crimes (Sentence

Texxcon Pty Ltd & Anor v Austexx Corporation Pty Ltd & Ors [2013] VSC 327 (20 June 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/327.html

TRADE PRACTICES – Misleading or deceptive conduct – Representations as to present fact and future matters – Loan agreement – Representation that a loan could be “called up” at any time – Representation that funds in alternative facility could be drawn down to fund repayment of the loan – Whether a reasonable person would have understood representations as conveying that loan would be repaid immediately upon demand – Whether representations implied a capacity to repay – Failure to repay loan – Whether defendants had a reasonable basis for making representations – Whether representations misleading or deceptive – Whether plaintiffs induced to approve loan in reliance on the representations – Trade Practices Act 1974 (Cth), ss 51A, 52, and 82 – Fair Trading Act 1999 (Vic), ss 4, 9, and 159 – Krakowski v Eurolynx Properties (1995) 183 CLR 563 applied – Award of damages.

TRADE PRACTICES – Misleading or deceptive conduct – Accessorial liability – Involvement in contraventions – Knowledge – Trade Practices Act 1974 (Cth), s 75B – Fair Trading Act 1999 (Vic), s 145 – Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 applied.

CORPORATIONS – Director’s Duties – Non-executive directors – Care and diligence – Good faith – Proper purpose – Corporations Act 2001 (Cth), ss 180 and 181 – No breach of duty because company acting as agent not principal.

AGENCY – Joint venture – Whether nominee company merely agent for joint venture parties – Express denial of agency relationship in joint venture agreement and management agreement – Whether relationship was in truth one of principal and agent – Consideration of relevant principles – Relevance of control – Implied agency – Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (2013) 296 ALR 465.

EVIDENCE – Relevance of pleading in prior proceeding to assessment of credit – Court entitled to assume that the pleading reflects instructions given by the defendants to their legal practitioners – Requirement to put one’s name to a pleading reflects duty imposed on practitioners to be satisfied pleading has a proper basis – Unnecessary to consider whether pleading amounted to an admission – Evidence Act 2008 (Vic), ss 81 and 87 – Civil Procedure Act 2010 (Vic), s 18.

R v Abdollahi (No 4) [2013] NSWSC 477 (5 February 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/477.html

EVIDENCE – admissibility – hearsay evidence – exceptions – admissions made with authority – furtherance of common purpose – common purpose to hold protest was sufficiently demonstrated
EVIDENCE – admissibility – risk of unfair prejudice – statements made through allegedly incompetent interpreter – insufficient evidence that interpreter was not accurately translating what she conveyed – evidence admissible

Cooper v Hobbs [2013] NSWCA 70 (9 April 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/70.html

APPEAL – error in process of fact finding – failure to examine all material relevant to central issue – new trial required

CONTRACT – whether transaction loan to appellant or investment in third party company – whether respondents’ case contrary to compelling inference

CONTRACT – post-contractual conduct – letter from respondents’ solicitor to third party – whether letter contained admissions adverse to respondents’ interests

EVIDENCE – whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness – client legal privilege – where respondents gave evidence at trial about solicitor’s advice – whether respondents waived privilege by acting inconsistently with maintenance of privilege

The Age Company Ltd & Ors v Liu [2013] NSWCA 26 (21 February 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/26.html

CONSTITUTIONAL LAW – implied freedom of communication on matters of government and politics – Uniform Civil Procedure Rules 2005 r 5.2 – power to order disclosure of confidential source – relevance of court’s discretion to order disclosure – whether rule effectively burdens freedom – whether rule reasonably appropriate and adapted to legitimate end in manner consistent with maintenance constitutionally prescribed system of government

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 r 5.2 – discretion to order preliminary discovery – whether discretion enlivened – whether reasonable inquiries made – whether unable to sufficiently ascertain the identity or whereabouts of person notwithstanding inquiries

PRACTICE AND PROCEDURE – admissibility of evidence – Evidence Act 1995 s 87 – admission by a party – whether representation made by person with authority to make statements on behalf of party – whether statements constitute admission

APPEAL – principles for grant of leave to appeal – decision not to admit evidence – whether decision attended by error

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

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1355.html

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

Aged Care Services v Macedonian Aged Care [2012] NSWSC 531 (4 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/531.html

[EQUITY] – interest – priorities – whether acknowledgement is effective to prove that a debt was owing – whether acknowledgment created an enforceable promise to give security over the land in the event that the debt was not paid by the specified date – whether first cross-defendant is entitled to be subrogated to the rights of the mortgagee bank – whether cross-claimant’s equitable interest should be postponed to the equitable interest of the first cross-defendant.

[PROCEDURE] – whether orders made on 3 and 21 June 2011 be set aside pursuant to UCPR r 36.15.

Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94 (20 March 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/94.html

NOTE: This version has been amended pursuant to the ‘Slip Rule’ by Order made 1 May 2012 and reasons: James George Hodgson v Amcor (No. 8) [2012] VSC 162 http://www.austlii.edu.au/au/cases/vic/VSC/2012/162.html

COMPANIES – “Officer” of a corporation – Duties arising under ss 180, 181, 182 and 183 Corporations Act 2001 – Persons who constitute the directing mind of a corporation –Alleged sale of company assets on uncommercial terms – concept of an ‘uncommercial transaction’ – Whether breach of fiduciary duty for employee to participate in a sale of company assets on uncommercial terms – Noting business opportunities – Whether breach of fiduciary duty to employer – Making preparations for new business following termination of employment – Whether breach of fiduciary duty to employer – Concealing useful commercial intelligence from employer – Whether breach of fiduciary duty to employer – Failing to disclose own breaches of fiduciary duty – Whether in itself a breach of fiduciary duty to employer – Compensation under Corporations Act 2001 s 1317H – Claims by shareholders for losses suffered by a company – Claims by shareholder for damages reflective of company losses

EMPLOYER and EMPLOYEE – Redundancy at common law – Whether employee made redundant – Contractual termination by notice – Purported summary dismissal post termination – Whether purported ground of summary dismissal made out – Burden on employer to establish serious misconduct – Whether grounds of termination may change by reason of after acquired information – Application of principle in Shepherd v Felt and Textiles of Australia [1931] HCA 21; (1931) 45 CLR 359 – Entitlement to bonus – Quantum of bonus – Long service leave calculation – Annual leave calculation – Whether accrued entitlements survive termination – Sale of employers’ businesses to employees – Fiduciary duties of employees

EQUITY – Fiduciary duties of employees – Equitable remedies – Election as to relief – Equitable compensation – Taking of accounts – Causation and equitable relief – Barnes v Addy liability – Knowledge of fiduciary breach – Equitable defence of laches in relation to fiduciary claims

EVIDENCE – Admissions made by a party in computer stored information- ss 59(1), 81(1), 87(1)(a) Evidence Act 2008 – Admissions admissible against parties other than the maker – s 87(1)(a) Evidence Act 2008 – Proof of requirements under s 87(1)(a) Evidence Act 2008

PRACTICE and PROCEDURE – Application at trial to amend defence to withdraw an admission – Principles to be applied – Anshun estoppel – Principles to be applied

United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408 (8 December 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1408.html

INDUSTRIAL LAW – unlawful industrial action by more than 1300 respondents – some represented – some not – breach of Fair Work Act 2009 (Cth) (FW Act) and Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) – purpose of industrial action – motivation of respondents – industrial motivation – liability – liability admitted by represented respondents – agreement on remedy and penalty – appropriate penalty to be determined by the Court – whether it is appropriate to make declarations – analysis of transitional provisions of the FW Act – differences between an agreement-based transitional instructions, Workplace Relations Act instruments and transitional instruments – meaning of industrially-motivated in the BCII Act – definition of ‘industrially-motivated’ in the BCII Act – operation and construction of para (a) of the definition of ‘industrially-motivated’ in the BCII Act – operation and construction of para (d) of the definition of ‘industrially-motivated’ in the BCII Act – meaning of motivation – disruption to the performance of work for the purpose of industrial action

PRACTICE AND PROCEDURE – respondents who have not entered an appearance – former Federal Court Rules O 32 r 2(1)(d) – Court required to consider merits of case and make determination on balance of probabilities – Court entitled to assume correctness of matters upon which the applicant bears the onus – Federal Court Rules 2011 r 1.04 – whether proof of service on absent respondents required before affidavits can be read – where service was not effected personally – leave required to read affidavits without service – where respondents had notice of proceedings and consequences

EVIDENCE – reliance on inference – proof of any fact on the balance of probabilities from which the Court infers a further fact – inferences from primary or intermediate fact – circumstances to be taken into account when drawing an inference – failure to deny or explain facts – admissions made by agents of the unrepresented respondents – establishing liability against unrepresented respondents – unrepresented respondents aware of proceeding and consequences – liability established

Evidence Act 1995 (Cth) ss 81, 87

R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2011] NSWSC 1388 (21 November 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1388.html

CRIMINAL LAW – interlocutory proceedings – s 192A Evidence Act 1995 – advanced rulings and findings – admissibility and use of evidence
CRIMINAL LAW – particular offences – offences against the government – conspiracy to defraud the Commonwealth – s 29D and s 86(1) Crimes Act 1914 – s 135.4(5) Criminal Code Act 1995

Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 (22 September 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/303.html

BUILDING AND CONSTRUCTION – s 177 Conveyancing Act 1919 – “duty of care not to do anything on or in relation to land…” – whether developer’s decision to use particular support system was “doing something” in relation to land – whether developer’s decision to use particular support system was something that “removed the support provided by the supporting land” – whether developer’s decision to use particular support system was made without exercising reasonable care – relevance of departure from construction certificate

BUILDING AND CONSTRUCTION – s 109ZJ Environment Planning and Assessment Act 1979 – whether party was a “contributing party” – effect of agreement of all parties that it would not be alleged that, had a person been a party to the action, that person would have been a contributing party

NEGLIGENCE – causation – s 5D Civil Liability Act 2002 – whether failure to warn or advise can only be causative of loss if a warning or notification, if given, would have been acted upon in a way that prevented the loss – whether it is appropriate to attribute liability to someone who puts in place the preconditions that enable another person’s negligence to become effective – discussion of the principles governing causation under s 5D

AGENCY – whether one party contracted with another as agent for a third party, or whether that party separately contracted with the other in performance of contractual obligations to the third party

APPEAL – interference with judge’s finding of fact – Jones v Dunkel inference – enables tribunal of fact to infer that the evidence of an absent witness, if called, would not have assisted the party who failed to call that witness – missing witness must have been expected to have been called by one party rather than other – inference not available where disputed issue is whether missing witness was agent for the party and no other reason to believe missing witness was in camp of that party

CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – discussion of for what proposition County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 is authority – majority reasons do not have as their ratio any proposition about the availability of post-contractual conduct for the purpose of finding the terms of an agreement that is wholly or partly oral

CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – post-contractual conduct can be used for the purpose of finding the terms of an agreement that is wholly or partly oral when that conduct is an admission – Tomko v Palasty [2007] NSWCA 258 – circumstances in which being an admission would not permit post-contractual conduct to be used to find terms of a wholly or partly oral contract

CONTRACTS – construction and interpretation – that a particular person is party to a contract is a matter of mixed fact and law – whether a party to litigation can make an admission concerning a matter of mixed fact and law – whether admission made by person other than party to the litigation can be admitted against that party – effect of the introduction of the Evidence Act 1995 to the pre-existing common law principles concerning admissibility of admissions for post-contractual conduct

CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – post-contractual conduct can be used for the purpose of ascertaining the terms or the subject matter of an agreement that is wholly or partly oral regardless of whether the post-contractual conduct is an admission.

151. The trial judge cannot have been using the word “admission” in the sense it has in the Evidence Act . This is for three reasons.

152. First, the Dictionary to the Evidence Act provides:

” admission means a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person’s interest in the outcome of the proceeding.

previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.”

Because Mr Browne’s answers to questions in cross-examination were given in the proceedings, they were not “previous representations” and therefore cannot be “admissions” for the purposes of the Evidence Act .

Liu v The Age Company Ltd [2011] NSWSC 53 (11 February 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/53.html

NOTICE TO PRODUCE – whether amounting to an abuse of process where seeking documents also sought in substantive proceeding for preliminary discovery – admissibility of evidence – whether representations by solicitor amount to admissions by client – call for documents under r 21.10 UCPR – whether entitlement spent where affidavit not read

DJZ Constructions Pty Ltd v Paul Pritchard trading as Pritchard Law Group and Ors [2010] NSWSC 1024 (10 September 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1024.html

PROFESSIONS AND TRADES – lawyers – duties and liabilities – whether negligence in advising client in relation to guarantee in deed under which interest in real estate business acquired – in relation to terms of second deed settling certain disputes – in relation to agreement selling interest in business – nature of duty of care – duty of care owed – negligence established in part – questions of credit – advocate’s immunity – section 5O of the Civil Liability Act 2002 – causal connection – inherent risk and contributory negligence – s 5I and s 5R of the Civil Liability Act 2002 – contributory negligence established – cross claim – concurrent wrongdoers – negligence established – were damages established – claimed damages established in part

TORTS – negligence – general matters – lawyers negligence – damages

EVIDENCE – admissibility and relevancy – witness not available for cross examination – s 135 of the Evidence Act 1995 – statements received – admissions – s 87 of the Evidence Act 1995 – admissions not established

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

DJZ Constructions Pty Ltd v Paul Pritchard trading as Pritchard Law Group and Ors [2010] NSWSC 1024 (10 September 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1024.html

PROFESSIONS AND TRADES – lawyers – duties and liabilities – whether negligence in advising client in relation to guarantee in deed under which interest in real estate business acquired – in relation to terms of second deed settling certain disputes – in relation to agreement selling interest in business – nature of duty of care – duty of care owed – negligence established in part – questions of credit – advocate’s immunity – section 5O of the Civil Liability Act 2002 – causal connection – inherent risk and contributory negligence – s 5I and s 5R of the Civil Liability Act 2002 – contributory negligence established – cross claim – concurrent wrongdoers – negligence established – were damages established – claimed damages established in part
TORTS – negligence – general matters – lawyers negligence – damages
EVIDENCE – admissibility and relevancy – witness not available for cross examination – s 135 of the Evidence Act 1995 – statements received – admissions – s 87 of the Evidence Act 1995 – admissions not established

Flynn v Chief of Army [2010] ADFDAT 1 (11 June 2010)

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2010/1.html

DEFENCE AND WAR – appeal against service conviction by General Court Martial on ground that conviction unsafe or unsatisfactory – defences of involuntary intoxication and honest and reasonable mistake pursuant to Criminal Code 1995 (Cth) clearly raised by the evidence – only defence of honest and reasonable mistake raised at trial – submissions invited on question of involuntary intoxication on appeal – prosecution did not discharge onus of proof beyond reasonable doubt – whether appellant was conformably charged with offence under the Defence Force Discipline Act 1982 (Cth) (“the Act”) – proper construction of procedural steps pursuant to s 87 of the Act to be taken in charging person with service offence – powers of Director under the Act to be widely construed – intention of Act to grant independent statutory discretion to Director in prosecuting service offences – appellant charged conformably with the Act

Evidence Act 1995 (Cth) ss 87, 184

Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 (26 June 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2009/167.html

LIMITATION OF ACTIONS – interpretation of the Limitations Act 1969, s 50C and s 50D – date when a cause of action is “discoverable” – whether a person has to know the facts necessary to establish the fault of the defendant or has to know that the defendant is, as a matter of law, liable to pay damages
EVIDENCE – admissibility – evidence given by a manager – whether manager can give evidence of the tasks required to be performed as part of her/his employment
EVIDENCE – admissibility – evidence sought to be adduced from manager as to her/his employer’s legal liability – objection by employer – whether manager’s ostensible authority extends to making an admission as to her/his employer’s legal liability
TORTS – negligence – duty of care – labour hire like arrangement between defendant and employer – whether defendant owes a hired labourer a duty of care – whether defendant breached its duty
TORTS – negligence – duty of care – whether occupier liable for injury to employee of independent contractor – degree of control over or co-ordination of employee’s activities – whether existence of obligation to ensure safe system of work
TORTS – negligence – breach of duty – whether any steps required to render system of work safe – whether steps to ensure safety would have ameliorated risk of injury
TORTS – negligence – duty of care – labour hire like arrangement between defendant and employer – breach of respective duties by defendant and employer – apportionment of liability

Australian Securities & Investments Commission v Fortescue Metals Group Ltd [No 5] [2009] FCA 1586 (23 December 2009)

http://www.austlii.edu.au/au/cases/cth/FCA/2009/1586.html

CORPORATIONS – continuous disclosure – obligation to disclose information to ASX under Chapter 6CA Corporations Act 2001 (Cth) – relationship between continuous disclosure provisions of ASX Listing Rules and Corporations Act – agreements contemplating execution of fuller and more detailed agreements – mining project contingent upon completion of definitive feasibility study – notification to ASX in purported compliance with continuous disclosure provisions under s 674 – asserted binding legal effect of agreements – whether information disclosed by listed disclosing entity as to legal effect of agreements was incorrect or unreasonably based – whether entity ought reasonably to have come into possession of different information as to legal effect of agreements – relevance of subjective belief or opinion as to legal effect – whether opinion as to legal effect honestly held – whether legal effect of agreements as asserted by plaintiff was information that was not generally available for the purposes of s 674(2) – whether entity received legal advice as to effect of agreements and disclosure obligations – ex ante and ex post consideration of materiality for purposes of s 674(2) – correct approach – whether contravention of s 674(2A) by director allegedly involved in entity’s alleged contravention of s 674(2)

CORPORATIONS – misleading or deceptive conduct under s 1041H – public disclosures made as to the binding legal effect of agreements – whether conduct in relation to a financial product or a financial service – relevance of belief or opinion – relevance of context at the time disclosures were made to market – whether disclosures were misleading or deceptive

CORPORATIONS – director’s duties – whether director breached duty to exercise reasonable care and diligence required by s 180(1) – whether disclosure about legal effect of agreements was honest and reasonable – legal advice obtained consistent with belief.

EVIDENCE – allegations of dishonesty no reasonable evidentiary basis for such allegations

EVIDENCE – standard of proof – Briginshaw standard – prescription of civil standard of proof in a civil penalty proceeding by s 1332 of the Corporations Act – prescription of balance of probabilities as standard of proof in a civil proceeding by s 140 Evidence Act 1995

EVIDENCE – applicability of rule in Jones v Dunkel to civil penalty proceedings – rule in Browne v Dunn – consequences of failure to comply with rule in Browne v Dunn

EVIDENCE – admissibility of transcripts of examinations under s 19 Australian Securities and Investments Commission Act 2001 – whether transcripts contain admissions

EVIDENCE – relevance of expert opinion of statisticians, stockbrokers and analysts in determining contraventions of continuous disclosure provisions

WORDS AND PHRASES – “information”, “aware”, “not generally available”,

Evidence Act 1995 (Cth), ss 81, 87(1)(b), 140

Refina Pty Ltd v Binnie [2009] NSWSC 311 (20 March 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/311.html

PROCEDURE – Application to have parts of affidavit previously rejected on the grounds of hearsay admitted (following cross-examination) on grounds that they contained admissions made with authority – Evidence Act s 87 – Statements made by contractor of defendant – Statement beyond scope of authority – Statement not admissible

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1247 (24 November 2008)

[2008] NSWSC 1247

EVIDENCE – admissibility and relevance – admissions – hearsay statements – whether it is reasonably open to find that the statements were made with the authority of the defendant – whether it is reasonably open to find that statements were made in furtherance of a common purpose of the maker and the defendant – whether discretion against admitting should be exercised – where defendant can remedy position by resort to s 81(2)

Evidence Act 1995, ss 81, 87, 135

Australian Competition & Consumer Commission v World Netsafe [2002] FCA 517 (30 April 2002)

http://www.austlii.edu.au/au/cases/cth/FCA/2002/517.html

1 The Australian Competition and Consumer Commission (the ACCC) seeks to admit into evidence a statement heard by Daniel Christopher Webb concerning the World Netsafe card allegedly made by Lindsay Birch, an officer of World Netsafe, who promoted the purchase of that card. It is alleged that Mr Birch commenced a World Netsafe meeting by stating: “I am looking after the interests of World Netsafe in Australia.” The reason that this statement is sought to be admitted into evidence is to prove that World Netsafe contravened orders of the Court, and that Mr Terence Butler was guilty of contraventions of the Court’s orders by failing to take reasonable steps to prevent World Netsafe from breaching those orders.

Australian Competition & Consumer Commission v Leahy Petroleum [2004] FCA 1678 (17 December 2004)

[2004] FCA 1678

TRADE PRACTICES – price-fixing understanding – whether communications between competitors concerning retail petrol price increases constitute evidence of an understanding that provides for the fixing or controlling of prices – whether participation in the communications and increasing the retail price of petrol constitute giving effect to the understanding – consideration of circumstances in which a servant’s or agent’s conduct in making and giving effect to a price-fixing understanding is binding on the principal

COURTS – practice and procedure – submission of no case to answer – whether respondents should not be permitted to make no case submissions at the conclusion of the applicant’s case unless all of the respondents elect not to call evidence

EVIDENCE – whether the Ahern principle applies to persons involved in a contravention of s 45(2) of the Trade Practices Act 1974 (Cth) – consideration of circumstances in which admissions of a servant or agent in relation to past events are admissible against the principal – consideration of circumstances in which false denials may constitute evidence of consciousness of guilt

Evidence Act 1995 (Cth) s 57(2), 87(1)(b) and 87(1)(c)

Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2007] FCA 1535 (4 October 2007)

[2007] FCA 1535

TRADE PRACTICES – boycotts affecting trade or commerce – contamination of feed for sheep intended for live export – export of all sheep delayed and export of some sheep prevented – whether conduct prevented or substantially hindered the applicants from engaging in trade or commerce – whether hindering encompasses causing to carry out actions to a greater extent than normally required – whether trade or commerce engaged in by supplier of feed to sheep in feedlot, prior to loading of sheep onto ship, was trade or commerce involving the movement of goods between Australia and places outside of Australia – whether exporter carrying on trade or commerce involving the movement of goods between Australia and places outside of Australia – whether perpetrator had dominant purpose substantially related to environmental protection – whether environment includes sheep generally – whether onus as to dominant purpose on party alleging contravention of general provision or on party alleging existence of dominant purpose

WORDS AND PHRASES – “in concert”, “purpose”, “hindering”, “involving”, “environmental protection”

Evidence Act 1995 (Cth) s 87(1)(c)

Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794 (29 May 2007)

[2007] FCA 794
TRADE PRACTICES – price-fixing – arrangements or understandings – whether existed between competitors within the Geelong retail petrol market – whether contained provisions for the fixing of retail petrol prices – whether necessary for parties to have commitment or moral obligation – applicant pleaded existence of seven bipartite and one tripartite interlocking arrangements or understandings and that effect was given to them on a number of occasions within a two-year period – relied on oral evidence of some alleged parties to them, circumstantial evidence in the form of data as to times of telephone communications between parties to alleged arrangements or understandings and changes in retail price of petrol, as well as admissions by some alleged parties to arrangements or understandings – whether evidence established existence, and giving effect to, of arrangements or understandings – whether evidence of origins of alleged arrangements or understandings sufficient – whether oral evidence and circumstantial evidence inconsistent – oral evidence not specific as to any particular occasion – circumstantial evidence often inconsistent with oral evidence, and with applicant’s allegations – whether judgment should be given on admissions

EVIDENCE – admissions – whether appropriate to exercise discretion to pronounce judgment based on admissions – whether reason to question correctness of facts admitted or agreed – whether previous representations made in furtherance of common purpose – whether reasonably open to find that representations were made in furtherance of common purpose – existence of common purpose established by evidence other than previous representation itself

WORDS AND PHRASES – “contract”, “arrangement”, “understanding”, “make an arrangement”, “arrive at an understanding”, “provision”

Evidence Act 1995 (Cth) ss 38(1)(c), 50, 57(2), 59(1), 60, 81(1), 83, 87, 87(1)(a), 87(1)(b), 87(1)(c), 87(2), 140

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

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 657 (27 June 2008)

[2008] NSWSC 657

EVIDENCE – admissibility – hearsay – whether hearsay representation nevertheless admissible as admission by defendant – representation made by individual – whether pursuant to Evidence Act s 87 representation to be taken to be representation of defendant – where individual was company secretary of defendant – whether company secretary may be taken to be “employee” of company – nature of implied authority of company secretary

Evidence Act 1995, ss 81, 87

R v Scott Alan MAY (No 2) [2008] NSWSC 595 (13 May 2008)

[2008] NSWSC 595

EVIDENCE – admissibility of representation by participant in joint criminal enterprise against other participants – need for independent evidence of combination and of representation being uttered in furtherance of the common purpose – operation of s 87(1)(c) of Evidence Act – not confined to common purpose charged but applies to any common purpose relevant to proceedings – leave to re-open examination in chief refused at this stage – leave necessary because question does not arise out of evidence given in cross-examination.

R v Ngo [2003] NSWCCA 82 (3 April 2003)

[2003] NSWCCA 82

CRIMINAL LAW – JURY – juror inadvertently exposed to inadmissible evidence – whether falure to discharge jury – whether incident gave rise to reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not, or will not discharge its task impartially – whether direction adequate to correct any prejudice or perception of prejudice to the accused

EVIDENCE – whether decision to allow witnesses to give evidence by videolink infringed the right of the accused to a fair trial – whether s 20A of the Evidence (Audio and Audio Visual Links) Act 1998 provides that an accused must be able to see witnesses in all circumstances – whether accused has a fundamental right to confront accuser where issues of identity involved – whether trial judge properly balanced the forensic disadvantage suffered by the accused with the rights of witnesses – whether the decision to allow the witnesses to give videolink evidence prevented the accused from attending a part of the proceedings (Supreme Court Rules Part 75 rule 2(8)(b))

EVIDENCE – whether inadequate direction as to lies – whether inadequate direction as to accomplice evidence

LEGISLATION CITED:

Evidence Act 1995, ss 55, 56, 87(1)(b) and (c), 108(3)(b), 137, 164, 165(1), (1)(d), (2)(a) (b) and (c), (3),(4) and (5)

Evidence (Audio and Audio Visual Links) Act 1998,

ss 5(1A), 5(2), 5B(1), 5B(2)(a), (b), (c) and (d), (2A), (3), 20A(a)

Evidence (Children) Act 1997

Supreme Court Rules (Part 36 rule 2A(1) and Part 75 rule 2(8)(b)

European Convention on Human Rights Article 6

Charter of Rights and Freedoms (Canada)

Cahill v Construction, Forestry, Mining and Energy Union (No 3) [2009] FCA 52 (5 February 2009)

[2009] FCA 52
INDUSTRIAL LAW – meetings between Union officer and construction company in relation to a construction project – Union officer told crane crew to shut down crane and leave the construction site – whether Union officer contravened s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) by making threats or taking action with intent to coerce the construction company for a proscribed reason – contraventions made out – Union contravened s 43 by virtue of Union officer’s actions

INDUSTRIAL LAW – whether Union officer discouraged other crane companies from attending the construction site – whether Union officer threatened to organise, or organised, a picket line – alleged contraventions of ss 38 and 43 of the Building and Construction Industry Improvement Act not made out

Evidence Act 1995 (Cth) ss 87(1)(c),140

Australian Securities and Investments Commission v Macdonald (No 3) [2008] NSWSC 1099 (20 October 2008)

[2008] NSWSC 1099

EVIDENCE – Admissibility and Relevancy – Late tender of documents after examination and cross-examination of witnesses – Whether an explanatory memorandum referring to a link to a website to submissions to the Jackson inquiry is admissible as a relevant business record or as admission against its signatories because of the content of the submissions – Whether the submissions sent to various defendants are admissible against them as admissions by silence in failing to correct the matter in the submissions – Whether board papers relating to confirmation of the minutes of an earlier board meeting are relevant – Whether the balance of the board papers of the later meeting are relevant

Ahern v R [1988] HCA 39 ; (1988) 165 CLR 87 (18 August 1988)

[1988] HCA 39

Criminal Law – Evidence – Admissibility – Conspiracy – Acts and declarations of alleged co-conspirators – Evidence of participation of accused in conspiracy – Acts done or words uttered outside presence of accused – Admissibility to prove participation – Requirement of reasonable evidence – Whether existence of reasonable evidence to be determined by judge or jury.

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.

Jacara Pty Ltd v Auto-Bake Pty Ltd [1999] FCA 417 (15 April 1999)

[1999] FCA 417

EVIDENCE – Admissibility – Misleading or deceptive conduct – Representations made prior to lease of shops – Similar fact evidence – Whether relevant – Whether evidence could affect assessment of probability that representations made – Whether significant probative value – Whether evidence should be excluded on discretionary grounds.

Evidence Act 1995  ss 55, 56, 87 and 135

R v Lim & Yeung [2002] NSWCCA 293 (30 July 2002)

[2002] NSWCCA 293

appeals against conviction

possession of not less than commercial quantity of prohibited imports

evidence of intercepted telephone calls to which appellants were not party

admissibility of statements made by participants to joint criminal enterprise against other alleged participants

reasonable evidence of pre-concert

prejudicial value of evidence vis-a-vis probative value

not tendency evidence

verdicts not unsafe and unsatisfactory

conversations in furtherance of conspiracy

application for leave to appeal against sentence

error in finding judgment verdict entailed knowledge of actual quantity of drugs

nevertheless no error in sentencing process

R v Prochilo [2003] NSWCCA 265 (19 September 2003)

[2003] NSWCCA 265

Supply of prohibited drug

Evidence established joint enterprise not a case of conspiracy

Proof of participation in joint enterprise may be established by other than presence at scene of supply

Agreement as essence of joint criminal enterprise emphasised

Directions not confusing

Jury told what activities constituted the supply and what supply meant

What taped conversation could be considered and the use to be made of them

Facts supported “supply” and adequate directions given as to elements of “supply” and material facts

no error in admitting challenged evidence and in directions given as to its use.

LANDINI v. STATE OF NSW and ORS [2007] NSWSC 259 (22 March 2007)

[2007] NSWSC 259

Evidence Act 1995  (NSW), s.87(1)(c) – statement allegedly made by one police officer to another as to what allegedly said to the latter by a third officer – hearsay statement – whether admissible under s.87(1)(c) – when open to court to make finding as to the existence of a common puropse within that sub-section and as to whether first officer a party to such a common purpose – not open to find first officer a party to a common purpose – the statement made by first officer was not a representation in furtherance of a common purpose within s.87(1)(c) of the Act

Vaccaro and Anor v Flammia [2008] NSWSC 1322 (11 December 2008)

[2008] NSWSC 1322

INSURANCE
claim for damages against solicitor for negligence
Plaintiffs’ Certificate of Title taken from solicitor’s office and used to give mortgage over property
signatures of Plaintiffs forged on mortgage
application for leave to join LawCover to negligence proceedings against solicitor
s.6 Law Reform (Miscellaneous Proceedings) Act 1946
LawCover opposes grant of leave relying on dishonesty/fraud exclusion under insurance policy
whether Plaintiffs had demonstrated arguable case that solicitor acted negligently but not dishonestly in circumstances giving rise to claim
leave granted to join LawCover

Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 (16 May 2008)

[2008] FCA 678

TRADE PRACTICES – restrictive trade practices – accessorial liability for contravention of s 45E(3) of the Trade Practices Act 1974 (Cth) – existence of an “arrangement or understanding” – lack of necessary “meeting of the minds”

EVIDENCE – admissibility under s 45 of the  Evidence Act 1995  (Cth) of document witness taken to in cross-examination – admissibility of witness statement where witness not called – admissibility of answers to s 155 Trade Practices Act 1974 (Cth) notices

Evidence Act 1995  (Cth) ss 43, 45, 81, 83, 87(1), 122, 140(2)

Gordon v Ross [2006] NSWCA 157 (22 June 2006)

[2006] NSWCA 157

NEGLIGENCE – duty of care owed by employer to employee – employee struck in the back by heifer while cattle drenching – suffered serious neck injury – causation –whether failing to employ a third person to assist with drenching caused injury –whether there was contributory negligence on the part of the employee
EVIDENCE – whether file note was a ‘business record’ – whether payments by insurer an ‘admission’
DAMAGES – whether the award for non-economic loss too great – whether damages should be reduced for board and lodging provided by relatives or friends –whether damages for loss of earning and future domestic care should be proportionately reduced for the possibility of improvement in condition

Evidence Act 1995  (NSW), s69, s81, s87