Category Archives: s. 083

Power v The Queen [2014] VSCA 146 (4 July 2014)

CRIMINAL LAW – Whether co-offender’s bare plea of guilty admissible – Whether direction required as to use of the bare plea of guilty – Andelman v The Queen [2013] VSCA 25; Bou-Elias v The Queen (No 1) [2012] VSCA 61, considered.

EVIDENCE – Unfavourable witness – Evidence Act 2008 (Vic) s 38 – Leave to cross-examine generally – Evidence affecting witness credibility – Prior inconsistent statements – Evidence of facts asserted – Evidence Act 2008 (Vic) ss 43, 60 – Adam v The Queen (2001) 207 CLR 98; R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474, considered.

CRIMINAL LAW – Evidence – Plea of guilty by co-offender and prosecutor’s summary of facts – Whether a course of conduct on plea constitutes an implied representation as to facts in summary – Whether prior inconsistent statement – Evidence of accused’s guilt – Direction not required – Forensic decision not to seek direction – No substantial miscarriage of justice.

EVIDENCE – Whether evidence of co-offender’s plea of guilty an ‘admission’ – Evidence Act 2008 (Vic) ss 60(3), 83.

Zomojo Pty Ltd v Hurd (No 5) [2014] FCA 537 (28 May 2014)

CONTEMPT OF COURT – failure to comply with court orders – whether charges of contempt proven beyond reasonable doubt – contravention of inter parte undertakings – aiding and abetting – whether breach enforceable in the proceeding

EVIDENCE – admissibility of affidavit material – dispensation of Rule 42.12(b) of the Rules – whether affidavit material contained admissions – whether deponents protected by privilege against selfincrimination

Peter Vitek & Anor v Estate Homes Pty Ltd & Ors [2013] NSWSC 1805 (30 October 2013)

EVIDENCE – whether evidence of a witness for the plaintiffs about what was said between himself and the first defendant in the presence of the third defendant is admissible against the third defendant given the fact that the plaintiffs did not intend to call the first defendant in their case

Candy v GIO General Limited [2013] NSWSC 810 (25 June 2013)

PRACTICE AND PROCEDURE – Rule 17.3 and 17.6 Uniform Civil Procedure Rules 2005 (NSW) – application by second defendant seeking leave to withdraw an admission
PRACTICE AND PROCEDURE – s73 Civil Procedure Act 2005 (NSW) – determination of question as to whether the proceedings have been settled between the second cross-defendant and second cross-claimant
EQUITY – estoppel by representation – whether second defendant is estopped from denying to first defendant that second cross-defendant was an employee of the second defendants insured – nature of relevant detriment

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

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 .

Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331 (17 December 2010)

CORPORATIONS – misleading announcement sent to ASX – whether pleaded version of draft announcement taken to board meeting – whether resolution to approve draft announcement and authorise for sending to ASX passed at board meeting – detailed consideration of factual circumstances before, during and after board meeting – consideration of constraints in appellate review – discussion of advantages of trial judges – discussion of advantages in appellate courts – consideration of s 140 of Evidence Act and Briginshaw v Briginshaw – failure to call witnesses who were at board meeting – whether ASIC under obligation akin to prosecutorial duty – whether appropriate to reason by analogy from criminal procedure to civil penalty proceedings – discussion of civil penalty regime – not appropriate to reason by analogy – no prosecutorial duty – whether ASIC’s obligation to act fairly required witnesses to be called – discussion of obligation of fairness owed by government agencies – consideration of principles of fair trial – consideration of government agencies as model litigants – consideration of ASIC’s role as regulator – consideration of ASIC’s powers under ASIC Act and Corporations Act – failure to call witnesses may constitute breach of obligation of fairness – consideration of evidentiary principles enunciated in Blatch v Archer, Jones v Dunkel and Whitlam v ASIC – failure to call witnesses taken into account in deciding whether onus of proof satisfied – breach of obligation of fairness taken into account in deciding whether onus of proof satisfied – obligation of fairness breached – burden of proof not discharged – not proved that resolution passed. CORPORATIONS – directors’ statutory duty of care and diligence under s 180 of Corporations Law – assuming resolution passed, whether non-executive directors contravened duty in voting for resolution – discussion of duty of care and diligence of non-executive directors – non-executive directors may rely on management and officers to a greater extent than executive directors – duty dependent on facts of each case – consideration of factual circumstances surrounding resolution – if resolution passed, contravention properly found. CORPORATIONS – definition of officer in s 9 of Corporations Law – consideration of company secretary as officer when also general counsel – whether participation in matters that affected the whole or a substantial part of the business – participation need not be as one of those in ultimate control – test is one of participation in making of decision – participation more than administrative arrangement – must be real contribution to making of decision – participation made out – whether statutory duty extends to any matter which falls within the scope of responsibilities as company secretary – duty extends to responsibilities actually carried out by company secretary – relevant acts and omissions were within responsibilities as company secretary. CORPORATIONS – statutory duty of care and diligence of company secretary – assuming resolution passed, whether duty of care breached in failing to advise draft announcement was misleading – would be breach – whether duty breached in failing to warn of limitations in cash flow models – no breach because knowledge of limitations not proved – whether duty breached in failing to advise or obtain advice for board or CEO concerning disclosure of Deed of Covenant and Indemnity – whether company secretary could rely on absence of warning by external advisers – reliance not available – breach properly found – whether breach of duty in failing to advise nature of “best estimate” – on facts, no breach – whether breach in failing to advise of failure to take into account superimposed inflation – breach properly found. CORPORATIONS – definition of officer in s 9 of Corporations Law – whether chief financial officer participated in decisions that affected the whole or substantial part of company’s business – not confined to acts and omissions alleged to have been in breach of statutory duty as officer – first consider whether person is an officer – then consider whether breach of duty – participation made out – whether chief financial officer had capacity to affect company’s financial standing – test focuses on the particular officer, not an abstract officer – capacity made out. CORPORATIONS – statutory duty of due care and diligence of chief financial officer – whether duty breached in failing to warn of limitations in cash flow analysis –breach properly found – whether duty breached in failing to advise nature of “best estimate” and failing to take into account superimposed inflation – on facts, no breach. EVIDENCE – admissibility – admissibility of prior inconsistent statement for non-hearsay purpose – consideration of R v Adam and Adam v The Queen – no inconsistency identified – admissibility as admissions of documents stating resolution had been passed – consideration of Lustre Hosiery Limited v York – whether circumstances were such as to make it unlikely that erroneous statements would be allowed to pass unchallenged – no error shown in ruling not admissible.

Australian Competition and Consumer Commission v April International Marketing Services Pty Ltd (No 4) [2010] FCA 16 (29 January 2010)

PRACTICE AND PROCEDURE – trade practices – allegations of price fixing arrangements made at meetings involving the respondents and other participants – applicant and some respondents have reached settlement and make joint application proposing consent orders on the basis of agreed facts and admissions – docket judge is part-heard on the continuing respondents’ motion to set aside service outside of jurisdiction – continuing respondents apply to adjourn hearing of joint application – whether docket judge should hear joint application – findings to be made on the basis of facts agreed by consenting parties – agreed facts and admissions not admissible against continuing respondents

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

R v Cornelissen; R v Sutton [2004] NSWCCA 449 (21 December 2004)

[2004] NSWCCA 449

CRIMINAL LAW – Conviction Appeal – Manslaughter – Unlawful and dangerous act – Punch – Whether the trial judge erred in failing to direct the jury not to engage in tendency reasoning with respect to relationship evidence – Whether the trial judge erred in his directions regarding manslaughter – Whether certain evidence was inadmissible against one of the appellants – Whether the trial judge erred in his directions to the jury regarding the evidence of alleged admissions by one of the appellants – Whether the trial judge erred in directing the jury as to a joint criminal enterprise – Whether the verdicts were unreasonable

Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1046 (24 September 2008)

[2008] NSWSC 1046

EVIDENCE – application for leave to adduce evidence given by a defendant in earlier interlocutory hearing – where evidence to be adduced is an admission of defendant – relevant considerations for granting leave – where some defendants in current proceeding were not parties to earlier proceeding– whether the hearsay and/or opinion rules apply – where admission is tendered against third parties

(NSW) Evidence Act 1995, ss 81(1), 83 (1)

TABER, Peter v. REGINA; STYMAN Ian v. REGINA [2007] NSWCCA 116 (26 April 2007)

[2007] NSWCCA 116

CRIMINAL LAW – Appeal against conviction – Plea in bar – Autrefois convict – Where elements of offence overlap – Abuse of process – Admission of hearsay evidence pursuant to s.65 of the  Evidence Act 1995  – Witness “not available” – Evidence given in a proceeding – Whether section limited to evidence given by prosecution witnesses – Whether unfairly prejudicial – Whether verdict unreasonable – Appeal against sentence – Whether manifestly excessive.

Evidence Act 1995  ss.65, 83, 137 and dictionary cl.4(1).

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)

David Harold Eastman v the Queen [1997] FCA 548 (25 June 1997)

 [1997] FCA 548

Criminal Law – Practice and Procedure – appeal against conviction – miscarriage of justice – removal of disruptive accused from Court – right of accused to be present at trial – discretion of trial judge to revoke bail – entitlement of jury to have regard to behaviour of accused throughout trial – direction from trial judge

Bail – Revocation of during trial

Abuse of process – police surveillance of accused – whether surveillance affected capacity of accused to conduct trial

Evidence – Admissibility of evidence demonstrating existence of relationship between accused and victim so as to explain act charged

Evidence – Whether fresh evidence not available at trial – whether sufficient to justify interference with verdict

Evidence – Whether evidence of good character of accused raised at trial – evidence in reply – appropriate use – discretion of Court – direction to jury

Evidence – Relevance and public interest immunity – accused denied access to prosecution documents – whether likely to be of assistance in answering prosecution case – whether accused prevented from presenting jury with reasonable hypothesis inconsistent with guilt

Evidence – Identification evidence – admissibility – use to which hearsay evidence of non-identification could be put – evidence of voice identification – direction from trial judge – whether adequate – s.60  Evidence Act 1995  (Cth)

Evidence – Disputed confessions – admissibility of tape recordings – s.84 Evidence Act 1992 – transcript – discretion to admit – procedure adopted by trial judge in presenting evidence of recorded material to jury

Evidence – Witnesses – cross-examination – need to cross-examine on case on which reliance to be placed – rule in Browne v Dunn – criminal proceedings – parts of defence case not put – application to criminal proceedings – unrepresented accused – consequences of failure to observe rule – inferences to be drawn – appropriate direction

Evidence Act 1995  (Cth) ss 4, 48, 59, 60, 62, 83, 64, 65, 66, 67, 84, 90, 97, 110, 112, 116, 130, 135, 136, 137, 138, 192