Category Archives: s. 183

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

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

HP Mercantile Pty Ltd v Clements [2014] NSWSC 290 (19 March 2014)

EVIDENCE – admissibility and relevancy – hearsay – whether relevant documents are admissible as business records under Evidence Act 1995 (NSW) s 69 – where identity of author of relevant documents is unknown – whether relevant documents contained previous representations made or recorded in the course of, or for the purposes of, relevant business – whether relevant representations were made by a person who had or might reasonably be supposed to have had knowledge of the asserted facts, or on the basis of information directly or indirectly supplied by such a person.
EVIDENCE – admissibility and relevancy – whether relevant documents should be excluded under s 135 on the basis that documents are unfairly prejudicial or misleading.
EVIDENCE – admissibility and relevancy – application to seek direction that relevant evidence is not to be admitted under Evidence Act 1995 (NSW) s 169 – where party had failed to comply with request to call witness – whether plaintiff’s refusal to comply with request made without reasonable cause.

Forty Two International Pty Limited v Barnes [2014] FCA 85 (18 February 2014)

CONTRACT – whether respondents breached implied terms in contract – implied terms attaching to express terms – implied term to disclose matters relevant to express term – loss of opportunity – interpretation and application of release and entire agreement clauses where cause of action concealed by party seeking to rely on them

TRADE PRACTICES – whether respondents engaged in misleading or deceptive conduct through non-disclosure – misleading or deceptive conduct by silence – application of s 42 of the Fair Trading Act 1987 (NSW) – loss of opportunity

DUTY TO DISCLOSE – whether there is a duty under the general law requiring directors to disclose material personal interests relating to the interests of the company – whether there is a duty under the general law requiring directors not to place their own personal interests in actual or potential conflict with interests of company – whether respondents breached these general law duties

CORPORATIONS – whether duties under ss 182 and 191 of Corporations Act 2001 (Cth) were breached by non-disclosure of personal interest in a transaction by directors of company

DAMAGES – assessment of damages for loss of opportunity – quantifying damages

EVIDENCE – discussion of principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 – application of ss 69, 135, 183 of the Evidence Act 1995 (Cth)

CROSS CLAIM – whether the applicants made misleading or deceptive representations – application of s 52 of the Trade Practices Act 1974 (Cth)

Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155 (23 May 2012)

CONTRACT – principal and agent – authority of agent – whether sufficient evidence to find agent had authority to incur liability under contract
EVIDENCE – admissibility – hearsay – business records – email purportedly sent by company officer – whether proof of officer’s authority to order goods on behalf of company

“18. By reason of s 161 of the Evidence Act 1995 , that email is to be presumed, in the absence of evidence suggesting the contrary, to have been sent by DIAG. Utilising the power conferred by s 183 of the Evidence Act to draw inferences, it should be inferred that a copy of that email was retained by DIAG, for at least a short period, as part of the records of its business. As a result, it can be concluded that the document in evidence is a copy of a business record of DIAG within the meaning of s 69 of the Evidence Act .”

Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433 (8 May 2012)

PROCEDURE – various motions and oral applications – application by defendants for summary dismissal of Attorney General’s summons – application refused – motion seeking leave to issue subpoenas – refused – application for trial by jury – application previously heard and refused –
leave sought to proceed on defendants’ proposed statement of claim – leave not granted – notices to admit facts served on Attorney General – refused – summary judgment on notice to admit facts served on the Commonwealth – notice set aside – leave sought by Commonwealth to amend its motion to set aside notices to produce documents granted – motion to set aside notices to produce documents – granted – notices to produce served on Attorney General – motion seeking production of documents by Attorney General – production of certain documents required, motion otherwise dismissed

Deputy Commissioner of Taxation, in the matter of ABW Design & Construction Pty Ltd v ABW Design & Construction Pty Ltd [2012] FCA 346 (4 April 2012)

CORPORATIONS – winding up – statutory demand – proof of service by post where registered office of corporation included a post code – where post code was obscured on envelope containing statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth) considered

Held: non-compliance with s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth)

EVIDENCE – presumptions pursuant to s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 and s 163 of the Evidence Act 1995 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – no evidence led as to when documents were delivered – proof of non-receipt

Held: presumptions rebutted

Panopus Plc, in the matter of Opes Prime Stockbroking Limited [2012] FCA 158 (1 March 2012)

CORPORATIONS – Opes Prime Schemes of Arrangement – cl 7.2 of the Schemes – Established Securities Claim – “their Deposited Securities” – “otherwise associated with”

EVIDENCE – whether Panopus’ Scheme Claim inadmissible on grounds of hearsay – whether portfolio statements, correspondence and an Assignment deed admissible as business records – failure to call director of Panopus to give evidence – Jones v Dunkel inference – onus of proving an exception applies

Valeress Pty Ltd v Valenest Pty Limited (in liquidation) [2011] NSWSC 465 (20 May 2011)

TRUSTS – Intention to create trust – certainty of intention, object and subject matter – non-requirement that the term “trust” be used when establishing trust – vesting order to appoint Company as trustee of trust
EVIDENCE – Authenticity of documents – presumption as to the authenticity of documents displaced

Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) [2011] FCA 338 (12 April 2011)

CONTEMPT OF COURT – respondent gave undertakings to the Court not to withhold consent to assignment of its franchises on a certain basis – whether respondent contravened undertakings – general principles applicable to determination of a charge of civil contempt – what constitutes an “assignment” for the purposes of undertakings – whether consent to assignment “withheld” where no request to assign made but respondent indicated that consent to assignment would not be given – whether change of directors constitutes an assignment of franchise for purposes of undertakings in circumstances where franchise agreement deemed such a change to constitute an assignment – not an assignment for the purposes of undertakings

EVIDENCE – admissibility of documents exhibited to affidavit – whether documents exhibited to affidavit are what they purport to be – authenticity of documents – whether admissible as business records – reliance on other evidence to support contention that documents exhibited to affidavit are what they purport to be – documents admissible as business records
Words & phrases: “assignment”, “withhold consent”

Evidence Act 1995 (Cth), s 48(1), s 55(1), s 58(1), s 69, s 142 and s 183

Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd [2010] FCA 1223 (5 November 2010)

BANKRUPTCY AND INSOLVENCY – Winding up – Application by Deputy Commissioner of Taxation to wind up a company for failure to comply with a statutory demand – Whether statutory demand and accompanying affidavit were served in accordance with s 109X of the Corporations Act 2001 (Cth) – Whether inferences could be made from affidavit of service of demand as to compliance with s 109X of the Corporations Act 2001 (Cth)

Evidence Act 1995 (Cth) ss 3, 160, 163, 183
Evidence Act 1995 (NSW) s 160
Evidence Act 2008 (Vic) s 160

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

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

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

Lee v Minister for Immigration & Multicultural Affairs [2002] FCA 303 (20 March 2002)

[2002] FCA 303

MIGRATION – appeal from decision of Migration Review Tribunal to refuse an application for a student visa – whether application was lodged with the Migration Review Tribunal out of time – whether applicant was properly notified by the Minister for Immigration & Multicultural Affairs of its decision to refuse the applicant a student visa – whether notification was deemed to be received

Evidence Act 1995 (Cth) s 69, 69(2)(a), 69(2)(b), 183

Roads and Traffic Authority of New South Wales v Tetley [2004] NSWSC 925 (8 October 2004)

[2004] NSWSC 925

EVIDENCE – whether duplicates of driver logbooks and computer-generated Journey Report produced pursuant to Notice to Produce during RTA audit of defendant, admissible – where RTA prosecution depends on establishing falsity of duplicates through reference to Journey Report – where relevant documents ruled inadmissible by Magistrate on basis logbook duplicates part of Vehicle Movement Record (VMR) and therefore inadmissible in criminal proceedings (s 147(3)), and Journey Report inadmissible on basis of irrelevance – whether evidence supports Magistrate finding duplicates on removal from logbook became a part of the VMR, and therefore inadmissible under s 69 of Road Transport (Safety and Traffic Management Act – whether logbook duplicates admissible as business records under exception to hearsay rule pursuant s 69 Evidence Act – whether Journey Report relevant to issue in proceedings – whether Ocean Marine Mutual Insurance v Jetopay authority for the proposition that in considering questions of admissibility under s 147, a document may not be examined pursuant to s 183 if objection is taken to it – whether Journey Report part of VMR and inadmissible pursuant to s 147(3) as related to, or leading to, criminal proceeding – whether defendant/respondent under obligation to maintain VMR on vehicle registered outside NSW – whether computer-generated data in Journey Report constitutes in effect a VMR.
APPEALS – Appeal from decision of Magistrate rejecting evidence

Evidence Act 1995, s49, s69, s146, s147, s183

Australian Securities & Investments Commission v Rich [2005] NSWSC 417 (5 May 2005)

[2005] NSWSC 417

EVIDENCE – admissibility of documents – scope and effect of s 1305 of the Corporations Act – whether such documents as budgets are inadmissible under the hearsay rule – requirement of authentication of documents tendered in evidence – scope and effect of business records exception to hearsay rule – effect of business records exception where document contains representations of expert opinion – scope of “unfair prejudice” under ss 135 and 136
Evidence Act 1995 (NSW) ss 48, 55, 56, 57, 58, 59, 69, 79, 135, 136, 183

Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933 (4 September 2003)

[2003] FCA 933

EVIDENCE – admissibility of document – valuer’s report – expert opinion – maker of the opinion not called to give evidence – whether valuation is a business record – whether part of the records of the relevant business – whether evidence admissible as an `opinion’

Evidence Act 1995  (Cth) s 59, 59(2), 69, 69(1)(a)(i), 69(1)(a)(ii), 69(1)(b), 69(2)(a), 69 (3), 69(5), 78, 78(a), 79, 111, 135, 135(a), 135(b), 183

Ocean Marine Mutual Insurance Association (Europe) OVv Jetopay Pty Ltd [2000] FCA 1463 (27 November 2000)

[2000] FCA 1463

ADMIRALTY – marine insurance – claim in respect of damage to engine of fishing vessel – whether policy-holder indemnified by policy in respect of damage – whether damage caused by negligence of repairers

EVIDENCE – opinion – expert reports – whether admissible – where no explicit evidence as to training, study or experience of authors of reports – whether pursuant to the  Evidence Act 1995  (Cth), s 183 inferences may be drawn from contents of report as to the specialised knowledge of its author

Evidence Act 1995  (Cth) ss 76, 79 & 183