ADMINISTRATIVE LAW – judicial review – power to grant costs certificate may be granted after commencement of trial – refusal to consider application for costs certificate on the basis that no trial had commenced – whether failure to exercise jurisdiction – Costs in Criminal Cases Act 1967 (NSW), s 2
CRIMINAL LAW – procedure – application for costs certificate – power to grant costs certificate after commencement of trial – multiple accused arraigned before judge and entered pleas of not guilty – indictment withdrawn before jury empanelled – whether trial had commenced – whether “trial” limited to hearing before a jury – whether trial commences when accused arraigned and enters plea – Costs in Criminal Cases Act 1967 (NSW), s 2
STATUTORY INTERPRETATION – principles – reading provision in context – meaning of “trial” in one Act – reference to another Act regarding the conduct of trials – relationship between Acts for the purposes of interpretation – Criminal Procedure Act 1987 (NSW), s 130 – Costs in Criminal Cases Act 1967 (NSW), s 2
WORDS AND PHRASES – “trial” – ordinary meaning of “trial” – whether meaning of “trial” includes when accused arraigned and enters plea – Costs in Criminal Cases Act 1967 (NSW), s 2
NEGLIGENCE – damages arising from death – damages for nervous shock – son of two plaintiffs killed on school excursion – whether parents suffered mental harm – pre-existing psychiatric conditions – costs of coronial inquest – whether plaintiff entitled to such costs – two plaintiffs sole directors and shareholders of two plaintiff companies – companies make per quod amisit sevitium claim – whether claim falls within exception in Barclay v Penberthy – failure to mitigate
1. The substantive proceeding involves a claim by the applicant for patent infringement. The patent in suit is the same patent that was referred to in Eli Lilly and Company v Generic Health Pty Ltd  FCA 1254. Both proceedings are fixed for hearing commencing on 2 June 2014.
2. A key issue in the infringement case concerns the size of raloxifene particles in the respondent’s tableted products. Considerable time and effort has been spent by the parties over many months attempting to agree upon an appropriate protocol that would form the basis for experimental evidence directed to that issue. The protocol that was finally agreed between the parties had been through numerous previous iterations. Experiments were conducted in England earlier this year pursuant to the agreed protocol and related orders made pursuant to rule 34.50 of the Federal Court Rules 2011 (Cth).
3. Now before me is an application brought by the applicants pursuant to rule 34.50(2) seeking leave to rely on evidence contained in sections F9 and G of the affidavit of Dr Shen Luk sworn on 10 March 2014. Also before me is an application by the respondent for an order pursuant to s 192A of the Evidence Act 1995 (Cth) ruling that parts of the applicants’ affidavit evidence are inadmissible in so far as it relates to the following:
evidence as to the use of “Image J” software, and all evidence based directly or indirectly on such evidence (category (a)); and
evidence as to the “Aggregate Experiment” referred to in paragraph 143 of the affidavit of Shen Yung Luk sworn on 10 March 2014, and all evidence based directly or indirectly on such evidence (category (b)).
CRIMINAL LAW – Trial – Murder – Self-defence – Family violence – Whether family violence ‘alleged’ – Whether defence inconsistent with record of interview – Whether prosecutor bound to call Crown witnesses named on indictment – Whether Crown witnesses may be cross-examined on family violence – Questioning allowed – Crimes Act (Vic) 1958 s 9AH.
EVIDENCE – Criminal trial – Tendency evidence – Hearsay evidence – Evidence to be adduced in cross-examination – Nature and purpose of evidence identified in defence written submission – Whether further notice required – Evidence Act 2008 (Vic) ss 67, 97, 100.
EVIDENCE – Criminal trial – Murder – Self-defence – Family violence – Advance ruling – Character evidence – Proposed cross-examination of Crown witnesses about relationship between accused and deceased – Whether adducing evidence of accused’s behaviour in response to family violence would put his character in issue – Whether proposed Crown evidence of other conduct admissible – Whether ruling premature – Ruling given – Character not in issue – Crimes Act 1958 (Vic) s 9AH, Evidence Act 2008 (Vic) ss 110, 192A.
EVIDENCE – Criminal trial – Hearsay – Exception to hearsay rule – Statements by accused to witness about facial injuries – Whether accused’s statements about cause of injuries within exception – Whether admissible for non-hearsay purpose – Evidence inadmissible – Subramaniam v Public Prosecutor  1 WLR 965 considered – Evidence Act 2008 (Vic) s 66A.
CRIMINAL LAW – appeal against conviction – three counts of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900 – one count of aggravated sexual assault pursuant to s 61J(1) of the Crimes Act 1900 – convicted of four counts of aggravated indecent assault – alleged that the jury verdicts are unreasonable and could not be supported by the evidence – all relevant matters were left open to the jury – upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged – alleged failure by the trial judge to adequately warn the jury that the prosecution case relied wholly on the evidence of the complainant – failure by trial counsel to seek directions – application of Rule 4 of the Criminal Appeal Rules – trial judge gave strong and clear directions as to the importance of not returning a guilty verdict unless the jury was satisfied beyond reasonable doubt of the evidence given by the complainant – jury accepted the complainant as a truthful and reliable witness – benefit of the jury seeing the complainant give evidence – no miscarriage of justice arising from the absence of good character evidence and directions on good character – failure by trial counsel to seek directions on good character – application of Rule 4 of the Criminal Appeal Rules – proper consideration was given by trial counsel to the question of calling good character evidence and a tactical decision was made – appeal dismissed
EVIDENCE – expert evidence – admissibility of evidence – compliance with r 31.23 of Uniform Civil Procedure Rules 2005 – whether discretion should be exercised under r 31.23(3) of UCPR – interests of justice require balance between any real or substantial prejudice and the determination of all issues at trial – overriding duty of trial judge to ensure a fair trial – overriding purpose of UCPR
CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against two natural daughters – Whether appellant led evidence of good character – Whether the trial judge erred in allowing the Crown to adduce evidence of bad character through cross-examination and in rebuttal – Appeal allowed – Convictions quashed and retrial ordered.
PRACTICE AND PROCEDURE – application to rely on evidence filed out of time – nature and complexity of evidence – expansion of case – amendment of pleadings – imminent commencement of hearing – case management principles
EVIDENCE – application to rely on evidence of negotiations – whether evidence is excluded under s 131(1) – whether evidence is admissible under s 131(2) exceptions
EVIDENCE – exclusion of evidence under s 135 – probative value of evidence outweighed by s 135 factors
EVIDENCE – expert evidence – early determination – application to reinstate rejected evidence – need to reconsider earlier judgment – power to re-open and re-hear – whether misapprehension of fact or law
PROCEDURE – application to serve further expert reports after trial well advanced – whether a re-casting of the case – case management principles – no explanation for delay in serving reports
DAMAGES – loss of chance – absence of evidence of value of chance – whether court must do its best to assess damages
COSTS – offer of compromise – whether offer invalid for uncertainty – indemnity cost consequences – discretion to “order otherwise” – whether court should “order otherwise” – whether to apportion costs – whether to award interest on costs.
EVIDENCE – application for advanced ruling pursuant to s 192A of Evidence Act – further expert evidence sought to be relied upon – whether applicant can show real or substantial prejudice – interests of justice require all issues to be determined at trial – no prejudice in reliance on additional expert evidence – no general point of principle
EVIDENCE LAW – application for advanced ruling pursuant to s 192A of Evidence Act – proposed cross-examination of Crown witness with regard to past offences – Crown witness convicted of manslaughter – tendency adduced by accused of Crown witness to act violently – whether evidence has significant probative value – whether facts in remarks on sentence admissible pursuant to s 91 of Evidence Act – evidence of manslaughter admissible as tendency evidence – undisputed facts found in remarks on sentence admissible – no adverse credibility consequences
PROCEDURE – notice of motion – application to reject evidence sworn in an affidavit under ss 61(2)(a) and 61(3)(e) of Civil Procedure Act 2005 and s 192A(a) of Evidence Act 1995- no benefit of advance ruling- not in the interests of justice to compel an admission – no general point of principle
CRIMINAL LAW – Application by prosecutor to cross-examine own witness – Section 38(1)(a) of the Evidence Act 2008 – Whether evidence “unfavourable” – Advanced ruling pursuant to s192A of the Evidence Act 2008 – No unfairness – Application granted
PRACTICE & PROCEDURE – pleadings – amendment to pleadings – whether proposed amendments futile – strike out – whether proposed amendments disclose cause of action with reasonable prospects of success – whether frivolous or vexatious or an abuse of process
PRACTICE AND PROCEDURE – ruling prior to trial on admissibility of evidence of proposed witnesses –
s 192A of the Evidence Act 1995 (Cth) – evidence going to the credibility of another witness inadmissible unless falls within stated exceptions – reliance upon exception in s 106 of Evidence Act premature – s 108C exception in respect of expert evidence only applies where the expert evidence deals with the capacity of the other witness to give credible evidence – proposed witness evidence inadmissible – witnesses not to be called without leave of the Court.
CRIMINAL LAW – Application for advance ruling on whether cross-examination of the main Crown witness on his criminal record would result in the Court granting leave to the prosecution to cross-examine the Accused on his criminal record if he gave evidence – If cross-examination on the main Crown witness’s criminal record were confined to that witness’s drug offences, leave would not be given to the prosecution to cross-examine the Accused on any aspect of his criminal record – If the main Crown witness were cross-examined on his entire criminal record, leave would be granted to the prosecution to cross-examine the Accused only on his prior dishonesty offences – Phillips v The Queen  HCA 79; (1985) 159 CLR 45 applied; R v El-Azzi  NSWCCA 455 (16 December 2004) considered – Evidence Act 2008, ss 101A, 102, 103, 104, 110, 112, 192, 192A.
EVIDENCE – Evidence Act 1995 (Cth) ss 135, 136 167(a), 169 and 192A – reasonable request – for the purpose of determining a question that relates to a previous representation – implied representation which might be relevant for the purposes of the proceedings – representation might be relied on for hearsay purpose – failure or refusal to comply with request – without reasonable cause – general discretion to exclude or limit use of evidence – unfair prejudice – framing of limitation order
PRACTICE AND PROCEDURE – challenge to relevance of applicant’s affidavit – whether advance ruling on admissibility of the applicant’s affidavit should be made before trial – s 192A of the Evidence Act 1995 (Cth) – difficult to determine relevance of affidavit prior to trial – interests of efficiency do not favour advance ruling – advance ruling on affidavit refused
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
CRIMINAL LAW – Appeal seeking to set aside interlocutory order – no order made – no jurisdiction to set aside preliminary ruling – providing false information to police – whether capable of constituting offence of acting with intent to pervert the course of justice – scope of offence – whether common law concept narrowed by Einfeld’s case – whether error by primary judge could be corrected.
PRACTICE AND PROCEDURE – whether a decision by a single judge of the Court not to rule certain evidence inadmissible one year before the trial is an “interlocutory order” within s 37E(4) of the Supreme Court Act 1933 (ACT) and thus susceptible to an application for leave to appeal from that decision before final judgment is delivered – in the circumstances of the present case, the decision of the primary judge not to exclude evidence in advance of the trial held not to be “an interlocutory order” within s 37E(4) – application for leave to appeal incompetent – even if, contrary to the Court’s conclusion, the application for leave to appeal in the present case was competent, leave to appeal should be refused – application dismissed with costs
APPEAL – criminal – interlocutory appeal – power to take further evidence and make other judgment – appeal by way of rehearing – Criminal Appeal Act 1912 (NSW), s 5F(3A) – EVIDENCE – criminal trial – objection to the tender of recorded interviews of child – whether contaminated by suggestion – unfair prejudice – Evidence Act 1995 (NSW), s 137 – EVIDENCE – interview of child – whether affected by later hypnosis sessions – no reliance on post-hypnosis evidence – difficulties for post-hypnosis cross-examination – whether assessed under Evidence Act 1995 (NSW), s 137 or general law – PROCEDURE – criminal – objection to prosecution evidence – pre-trial hearing – Evidence Act 1995 (NSW), s 192A
TRADE PRACTICES – s 52 of Trade Practices Act 1974 (Cth) – misleading and deceptive conduct – alleged misrepresentations made in oral discussions – representations contrary to statements made in formal written documents – necessity to look at whole course of conduct – representations either not made or not misleading or deceptive having regard to whole course of conduct – no reliance on representations – no loss or damage caused to applicants
TRADE PRACTICES – s 51AC of Trade Practices Act 1974 (Cth) – respondent alleged to have engaged in unconscionable conduct – unconscionable conduct involves a high level of moral obloquy or is highly unethical – no unconscionable conduct established on facts
TRADE PRACTICES – s 51AD of Trade Practices Act 1974 (Cth) – breach of industry code – franchising code of conduct – no failure to comply with franchising code of conduct – no breach of legislation
CONTRACTS – breach of contract – representations alleged to be warranties of a contract collateral to formal written contract – such representations not made or not breached – no repudiation by respondent of formal written contract
EVIDENCE – tendency evidence – amendments to Evidence Act 1995 (Cth) – evidence only admissible if it will have significant probative value – evidence sought to be adduced was not admissible under tendency rule
TRUSTS – trustee remains personally liable even if documents were signed as trustee
 FCA 1306
EVIDENCE – whether hearsay evidence of statements by persons overseas should be permitted – the extent to which the proposed evidence was first hand or more remote hearsay – no independent evidence corroborating any hearsay version – whether undue prejudice to the respondent.
PRACTICE AND PROCEDURE – application to take evidence by video link – requirement to make out a case for such an order where it is opposed – discussion of the possible difficulties associated with video evidence.
PRACTICE AND PROCEDURE – security for costs – consideration of application for further security.
A Note to Section 101A states “Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.”
Criminal law – Evidence – Whether trial judge erred in admitting prior inconsistent statements of prosecution witness – Relevance of prior inconsistent statements – Application of credibility rule – Exceptions to hearsay rule – Prior inconsistent statements as evidence of the truth of the representations.
Criminal law – Evidence – Unfavourable witnesses – Whether trial judge erred in granting prosecution leave to cross-examine its own witness – Unreliable evidence.
Evidence – Prior inconsistent statements – Relevance of such statements – Whether evidence of the truth of representations – Whether judge erred in granting leave to prosecutor to cross-examine its own witness.
EVIDENCE – whether the Court should exercise its discretion pursuant to s 192A of the Evidence Act 1995 (Cth) to rule on the admissibility of evidence in advance of that evidence being adduced – ruling made
PRACTICE AND PROCEDURE – whether the Australian Competition and Consumer Commission should be released from the implied undertaking attributed to it in respect of documents produced using the compulsory processes of the Court – three sets of proceedings to be heard together – leave granted to use documents in all three actions
PRIVILEGE – whether investigative accountant’s reports and associated calculations prepared for settlement negotiations and a mediation are protected from being adduced in evidence by s 131(1) of the Evidence Act 1995 (Cth) – meaning of expression “in connection with” in s 131(1) – documents prepared for the purposes of settlement are protected – documents ruled inadmissible
Criminal law – Conviction – Aggravated indecent assault – Aggravated indecency – Matters connected with conduct of defence – Failure of defence counsel to call character evidence – No application for voir dire – Whether tactical decision of defence counsel not to call character evidence constituted a miscarriage of justice where that evidence may have been excluded – Chance of acquittal “fairly open” not lost.
Criminal law – Appeal – Practice and procedure – “On any other ground whatsoever” – Allegation defendant not competently or adequately represented – Tactical decision at trial – Whether forensic advantage – Informed and deliberate decision – No miscarriage of justice.
Criminal law – Appeal – Circumstances in which conduct of legal practitioners can provide grounds for appeal – Relevant principles.
Criminal law – Jurisdiction – Trial judge – “Advance ruling” – Whether required by Evidence Act 1995 (NSW) – Whether within implied powers of District Court – Power to conduct voir dire to make “advance ruling”.
Words and Phrases – “fairly open”, “on any other ground whatsoever”, “advance ruling”.