Category Archives: s. 143

Bateman and Idameneo (No 123) Pty Limited v Fairfax Media Publications Pty Limited and Ors [2013] ACTSC 72 (26 April 2013)

COURTS AND JUDICIAL SYSTEM – jurisdiction – cross-vesting legislation – action for damages for defamation – application to transfer proceedings to Supreme Court of New South Wales – transfers in the interests of justice – factors to be considered – place of the tort, the applicable law, location of the parties, procedural matters such as trial by jury, convenience and expense, place of vindication – transfer ordered

COURTS AND JUDICIAL SYSTEM – jurisdiction – cross-vesting legislation – action for damages for defamation – application to transfer proceedings to Supreme Court of New South Wales – transfers in the interests of justice – factors to be considered – existence of an onus on the applicant – onus not relevant

H A v The Queen [2013] VSCA 77 (9 April 2013)

CRIMINAL LAW – Conviction – Sexual penetration of child under 16 and indecent act with child under 16 – Jurisdiction – Offences committed on ferry steaming between Port of Melbourne, Victoria and Port of Devonport, Tasmania – Whether and when necessary for Crown to prove that offences committed within Victorian jurisdiction – Thompson v R [1989] HCA 30; (1989) 169 CLR 1, considered; Reg v Wallwork (1958) 42 Cr App R 153; Reg v Hildebrandt (1963) 81 WN (NSW) 143, referred to.

CRIMINAL LAW – Procedure – Indictment – Pleading – Whether necessary for Crown to plead place of commission of offences – Whether pleading that offences committed at place ‘adjacent to Victoria’ adequate to invoke statutory presumption applicable to offences alleged to have been committed within ‘adjacent area’ for Victoria – Whether failure to invoke statutory presumption inimical to pleading – Reg v Wallwork (1948) 42 Cr App R 153, applied; Criminal Procedure Act 2009 (Vic), Schedule 1 – Crimes at Sea Act 1999 (Vic), Crimes at Sea Act 2000 (C’th), Schedules 1, Clauses 1, 2 and 4.

CRIMINAL LAW – Evidence – Mode and form – Evidence of former Master of ferry as to ‘legal boundary’ between Victorian and Tasmanian waters – Whether evidence as to ‘legal boundary’ objectionable as hearsay or opinion or otherwise in point of mode and form – Whether objection waived – R v Ford [1972] VicRp 1; [1972] VR 3; R v Radford (1993) 6 A Crim R 210; R v Clark [2005] VSCA 294; (2005) 13 VR 75, referred to – Evidence Act 2008 (Vic), s 143.

CRIMINAL LAW – Juries – Transcript of discussion between judge and counsel in absence of jury – Transcript inadvertently given to jury – Whether productive of miscarriage of justice – Juries Act 2000 (Vic), s 78(4).

Barlow v Law Society of the Australian Capital Territory [2012] ACTSC 16 (3 February 2012)

PROFESSIONS AND TRADES – lawyers – application for unrestricted practising certificate – professional skill and professional experience – level of skill and experience required – how assessed – nature of “unrestricted practising certificate” – further submissions required.

Attorney-General v Foster [1999] FCA 81 (16 February 1999)

[1999] FCA 81

EXTRADITION – validity of warrant for surrender issued by Minister for Justice on behalf of the Attorney-General – whether s 19 of the Acts Interpretation Act 1901 (Cth) enables the Minister for Justice to act for or on behalf of the Attorney-General – whether assent of the Prime Minister or Cabinet is necessary – application of s 19 – whether section is an interpretative tool or has substantive effect – whether the words in s 19 only apply in cases of temporary absence of a Minister.

PRACTICE & PROCEDURE – retrospective legislation amendment – whether amendment deprived the issue raised by the notice of appeal of any real practical significance

EVIDENCE – notice of motion to adduce further evidence not before primary judge – documentary evidence readily accessible to public and not contentious – whether failure to adduce evidence at trial due to a lack of reasonable diligence – whether evidence important to the proper determination of the application – whether new evidence required formal proof.

ADMINISTRATIVE LAW – relevant considerations – whether Minister acted in accordance with the requirements of natural justice and procedural fairness – whether procedural fairness required a further opportunity for respondent to respond to factual matters in issue.

Evidence Act 1995 (Cth), ss 143, 153, 155


[2005] WADC 203
WA District Court

Tort – Causation – Electric shock – Pre­existing vulnerabilty to psychiatric illness – Competing causes of psychiatric injury – Onus of proving causation – Loss of earning capacity – No deduction for contingencies arising from pre­existing vulnerability – Judicial notice – Industrial award

Evidence Act 1995 (Cth), s 5, s 143(1), s 143(2)

Mokbel v Attorney-General for the Commonwealth of Australia [2007] FCA 1536 (5 October 2007)

[2007] FCA 1536

EXTRADITION – validity of request for extradition to Australia issued by the Minister for Justice and Customs – whether s 40 of the Extradition Act 1988 (Cth) evinces a “contrary intention” for the purpose of s 19A of the Acts Interpretation Act 1901 (Cth) – source of power to request the extradition of an Australian citizen from a foreign State – operation of ss 19 and 19A of the Acts Interpretation Act 1901 (Cth) in relation to the exercise of executive power by two ministers.

INTERNATIONAL LAW – whether an Australian Court can comment on or intervene in the manner in which the Greek Ministry of Justice dealt with communications from an Australian diplomat – principle of non-adjudication.

ADMINISTRATIVE LAW – whether the Minister acted in bad faith, for an improper purpose or in breach of the requirements of natural justice.

Evidence Act 1995 (Cth) ss 143(1)(c), 150, 153

LED Technologies Pty Ltd v Elecspess Pty Ltd [2008] FCA 1941 (18 December 2008)

[2008] FCA 1941

INTELLECTUAL PROPERTY – Designs – whether Designs Act 2003 (Cth) applies to extraterritorial conduct – whether alleged infringer’s subsequent registration of designs in respect of her own products is relevant to the questions of infringement or validity of the allegedly infringed design –whether a design that combines various features, each of which can be found in the prior art base when considered individually but not collectively in any one particular piece of prior art, is capable of being distinctive – whether infringement analysis is undertaken by comparing allegedly infringing product with registered design or with a product embodying the registered design – authorship – who is an author of a design – whether an independent contractor can be a co-author of a design – design register – what constitutes the design register – whether a design will be invalid for lack of clarity if the relevant features appear from the registered representations without necessity for unreasonably prolonged or complicated series of deductions – substantial similarity as judged objectively by hypothetical “informed user” – whether “informed user” is more informed than an average user but less informed than a expert – whether party has duty to check the design register where the product embodying the design carries a registration notice and the substantial similarity of the allegedly infringing, later-designed product permits the inference that the party had access to the product embodying the registered design and did or should have seen the registration notice – damages – lost sales – whether infringer’s sales may be claimed by design owner on a one-to-one basis in calculating damages

EVIDENCE – judicial notice – whether court may take judicial notice of design representations displayed on IP Australia website – whether circulars published by the Administrator of Vehicle Standards constitute legislative instruments of which the court may take judicial notice – whether substantial similarity of two products permits an inference that designer of later created product had reference to earlier-created work – whether court may take judicial notice of matter requiring basic computer literacy

TRADE PRACTICES – accessorial liability – actual knowledge – whether representation of compliance with law may be misleading where it is based upon a commonly shared mistake of law – damages – lost sales – whether sales lost by virtue of defendant’s misleading conduct greater than sales lost by virtue of defendant’s infringement

WORDS AND PHRASES – “Design Register,” “informed user,” “primary infringer,” “secondary infringer”

R v Tran [2003] ACTSC 53 (27 June 2003)

[2003] ACTSC 53

CRIMINAL LAW – trial by judge – murder – intentionally wound – self defence – whether accused believed that his actions were necessary in order to defend himself and that he had reasonable grounds to hold that belief.

EVIDENCE – hostile witness – prior inconsistent statement – Evidence Act 1995, ss 38, 60.

EVIDENCE – availability of witness – whether all reasonable steps had been taken to secure attendance of a witness –  Evidence Act 1995 , s 65.

EVIDENCE – availability of witness – whether witness not competent to give evidence about fact –  Evidence Act 1995 , s 65

Evidence Act 1995  (Cth), ss 13, 65, 67, 135-147, 192, cl 4 Part 2 of the Dictionary

Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308 (5 April 2007)

[2007] NSWSC 308

ROAD TRANSPORT – appeal on questions of law from dismissal of charge in Local Court – offence of failing to submit to breath analysis under s.15(4) Road Transport (Safety and Traffic Management) Act 1999 – proof of authority by Commissioner of Police to police officer to carry out breath analysis under s.15(2) – delegation by Commissioner of Police to senior police officers to give authority under s.15(2) – whether certificate relied upon by prosecution constituted certificate under s.33(2) – function incidental to delegated function under s.49(4) Interpretation Act 1987 – approach to construction of road safety statute – presumption of regularity – de facto officer’s principle