http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1423.html

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

http://www.austlii.edu.au/au/cases/cth/FCA/2012/323.html

No Catchwords

“1. On 29 March 2012, an application by Centro Properties Limited and CPT Manager Limited (collectively CNP) supported by Centro Retail Limited, Centro MCS Manager Limited and Centro Corporate Services Pty Limited (collectively CER) for a limitation order under s 136 of the Evidence Act 1995 (Cth) (the Evidence Act ) in respect of certain parts of a number of “analyst reports” was dismissed. These are the reasons for that decision.”

[2009] NSWCCA 72

CRIMINAL LAW
particular offences
offences relating to administration of justice
interference with witnesses or jurors

Evidence Act 1995, s 76, s 76(1), s 50(3), s 77

[2009] NSWSC 49

EVIDENCE – report of expert – report as to value of land – not commissioned or obtained for use in proceedings – no Schedule 7 acknowledgment – not served as required by rules of court – whether admissible under Evidence Act – held it is – but need for s 136(a) order to promote purpose of rules of court

Evidence Act 1995, s 55, 56, 59, 60(1), 69, 76(1), 77, 135, 136(a), 137

[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

[2003] NSWSC 939

Evidence
meaning and ambit of the word “records” in s69 of the Evidence Act 1995
whether the section applies to an article in a trade journal
application of ss 135 & 136

Evidence Act 1995, s60, s69, s77, s135, s136

[2003] TASSC 131

Contract – General contractual principles – Construction and interpretation of contracts – Implied terms – Generally – Business efficacy – Vendor of land must permit access for the purpose of valuation.

BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; (1977) 180 CLR 266; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 64 ALR 481, applied.

National Mutual Life Association of Australasia Limited v Chris Poulson Insurance Agencies Pty Ltd (No 4) 11/1998; Chris Poulson Insurance Agencies Pty Ltd v National Mutual Life Association of Australasia Limited 40/1999, considered.

Conveyancing and Law of Property Act 1884 (Tas), s39.

Aust Dig Contract [105]

[2004] TASSC 69

Evidence – Admissibility – Opinion evidence – Expert evidence – In general.

Evidence Act 2001  (Tas), ss77, 79.

Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, applied.

Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 80 FCR 276, referred to.

Aust Dig Evidence [55]

[2003] FCA 1399

EVIDENCE – Expert evidence – Anthropological evidence – Whether “basis rule” applies – Hearsay – Rule not apply to evidence of previous representation admitted because relevant for purpose other than proof of fact intended to be asserted by representation – Application of exception to evidence of anthropologists of statements made by Aboriginal persons about customs and practices.

Evidence Act 1995  (Cth) ss 59, 60, 76-80, 135-136

[2006] NSWCA 158

NEGLIGENCE – liability of manufacturer to end user – asbestos cement sheeting – in 1961 the plaintiff, a priest, worked with asbestos cement sheeting purchased retail by a relative and manufactured by defendant and was exposed to asbestos dust and fibres – work totalled about 12 hours over several days – extension to his sister’s house – no other exposure to asbestos dust and fibre apart from ordinary environmental exposure – in 2003 plaintiff became ill and mesothelioma diagnosed – Dust Diseases Tribunal found, on extensive review of evidence including publications about knowledge of risks related to asbestos in 1961, that defendant owed duty of care to plaintiff and was in breach by failing to print warning on each sheet – on review of evidence, held that the conclusion, on test in Shirt v Wyong S.C. that there was a foreseeable risk of injury to class of persons including the plaintiff and hence a duty of care to the plaintiff, on state of available knowledge in 1961, was not reasonably available – held no duty of care – consideration of establishing relevant class of persons for purposes of foreseeability and casual end users not conflated with persons more intensely exposed in industrial occupations – consideration of Trial Judge’s decision on need to print warning on sheets – admissibility of plaintiff’s evidence on how a warning would have affected his conduct.

Evidence Act 1995  (Cth) s.76
Evidence Act 1995  (NSW) ss.76, 77, 78 and 79

[2006] NSWCA 243

EVIDENCE – expert evidence – admissibility –  Evidence Act 1995  (NSW), s 79 – car stolen despite engine immobiliser – expert had no experience in immobilisers – based opinion on internet materials and investigations – whether expert had relevant expertise – whether expert expressed relevant opinion – whether opinion based on expertise – whether opinion expressed in admissible form
JURISDICTION – appeal from Local Court under Local Courts (Civil Claims) Act 1970 (NSW), s 69(2) – whether appeal against the rejection of an expert report was an appeal “in point of law” – expertise a question of fact – whether alleged error material to the outcome

LEGISLATION CITED:
Evidence Act 1995  (NSW), ss 76, 77, 78, 79

 [1996] FCA 1331 (22 March 1996)

Evidence – opinion – evidence of reliance in case of non-disclosure – evidence of what person reading prospectus would have done if disclosure had been made – whether such evidence is “opinion evidence” – whether excluded by “opinion rule” in s 76 of  Evidence Act 1995 .

Evidence Act 1995  ss 76, 77, 78.

[2003] NSWSC 907

Evidence
Evidence Act 1995 , s136
meaning of “unfairly prejudicial”
where maker of representation not called
where ss 60 or 77 operate

Evidence Act 1995 , s59, s60, s63 s64, s66, s69, s70, s76, s77, s135, s136, s137

[2005] FCA 1348
EVIDENCE – opinion evidence admissible to prove the truth of the opinion – whether Court should exercise discretion to limit use of evidence – unfair prejudice – procedural unfairness – evidence admitted for limited purpose of proving belief or intention –  Evidence Act 1995  (Cth) ss 77, 136

Evidence Act 1995  (Cth) ss 60, 77, 78, 79, 136

[2001] NSWCA 305

Torts – Negligence – Liability – Slip and Fall – Whether employer failed to provide a safe means of access between car park and offices – Whether stairs slippery – Whether expert evidence on slipperiness of stairs should have been accepted by trial judge – Discussion in obiter dicta about credibility of party-witness – Where employee injured whilst walking between roof-top car park and office – Where lack of previous slipping accidents on stairs

Evidence – Opinion – Expert evidence – Admissibility and use – Discussion of common law and statutory requirements – Need for expert witness to reveal factual and intellectual basis of opinion -  Evidence Act 1995  (NSW), ss 76, 77, 78, 79 and 80 – D