Category Archives: s. 157

Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596 (13 November 2014)

PROCEDURE – orders sought under the Vexatious Proceedings Act 2008 (NSW) – procedural requirements satisfied – litigious history established by evidence and admissions – vexatious proceedings established – defendant frequently involved in vexatious proceedings – whether orders should extend to cross-claim – orders made

EVIDENCE – documentary evidence – documents in dispute – judgments and transcripts of proceedings – relevance – admissibility – s 91 Evidence Act 1995 (NSW) – proof – s 157 Evidence Act 1995 (NSW) – judgments – whether reasons for judgment are a public document – proof of reasons for judgment pursuant to s 48 of the Evidence Act 1995 (NSW) – hearsay – s 64 of the Evidence Act 1995 (NSW) – judges not compellable to give evidence – s 69 application of business records exception to judgments and reasons

EVIDENCE – application under s 67 of the Evidence Act 1995 (NSW) – direction given

Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 1212 (2 September 2013)

PROCEDURE – adjournment application – refused – further disqualification application – refused – notice of motion seeking leave to file second cross-summons – not granted – orders sought to restrain legal practitioners from acting in the proceedings – not granted – notice of motion seeking three judgments to be set aside – refused – notice of motion seeking an amendment to summons – additional prayer to be added to the summons, that the cross-claim be stayed – granted – costs reserved – further directions

Joyce v Baird and Reynolds [2013] ACTSC 79 (3 May 2013)

APPEAL AND NEW TRIAL – appeal against conviction – failure to appear – Bench Sheets admissible under s 157 Evidence Act 2011 (ACT) – appeal dismissed

APPEAL AND NEW TRIAL – appeal against conviction – failure to appear – fault element under s 49(3) Bail Act 1992 (ACT) – overlooking obligation to appear does not satisfy the element of ‘reasonable excuse’ – appeal dismissed

APPEAL AND NEW TRIAL – appeal against conviction – minor theft – temporary unavailability of witness – witness deemed available – statement by witness tendered in her absence inadmissible – appeal dismissed

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

CVETKOVIC, Dragan v R [2010] NSWCCA 329 (21 December 2010)

CRIMINAL LAW – Appeal against conviction and sentence – grounds of appeal – (1) Conviction unreasonable or unsupported by evidence – (2) Wrong interlocutory decisions – (3) Substantial miscarriage of justice – Appeal dismissed –
CRIMINAL LAW – Evidence – Issues raised on appeal – Evidence sought to be admitted by the appellant as character and tendency evidence was determined by the trial judge to be evidence going to issues of credit – trial judge decision to admit certain evidence put forward by the prosecution as relationship evidence rather than tendency evidence – whether trial judge ought to have made a section 136 ( Evidence Act 1995) ruling in relation to evidence about the credibility of the victim – whether trial judge ought to have imposed a section 136 ( Evidence Act 1995) limitation on sexual experience evidence – application for leave to recall witnesses for further cross-examination –
CRIMINAL LAW – Particular offences – offences against the person – acts intended to cause or causing danger to life or bodily harm or serious injury – wounding with intent to murder –
CRIMINAL LAW – Criminal liability and capacity – defence matters – non-insane automatism – interaction of onus of proof and presumptions of mental capacity and that an action is willed – significance of psychiatric evidence in displacing presumptions [86]-[93] –
APPEAL – test for appellate reversal of discretionary decision of practice and procedure no different to test for any other discretionary decision, but satisfaction of the test often harder as a matter of fact [217] –
EVIDENCE – tendency evidence – proper procedure for deciding admissibility of tendency evidence [224] – difference between tendency evidence and relationship or context evidence –
CRIMINAL LAW – procedure – whether a “prescribed sexual offence” within Criminal Procedure Act 1986 must involve activities that themselves have a sexual component [265]-[277] – effect of a “prescribed sexual offence” being tried with other charges [278] –
STATUTES – Acts of Parliament – interpretation – role of definition section – meaning of “except in so far as the context or subject-matter requires” [272]-[276] –
EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – reasons for judgment in other cases – whether admissible under s65(3) [295]-[300] – whether statements in them are first-hand hearsay [299]-[300] – whether admissible under s65(8)(b) [301]-[303] – whether admissible as a public document under s157 [304]-[314] – whether “judgment” in s157 includes reasons for judgment [306] –
EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – first-hand hearsay – onus of proof of unavailability of the person who made the previous representation [341] – form in which evidence of the previous representation can be given by the person who saw, heard or otherwise perceived the representation being made [343] –
EVIDENCE – admissibility under the Evidence Act 1995 – what constitutes “evidence of reputation” under s73 [353]-[354]

Allardyce Lumbar Company Limited v Quarter Enterprises Pty Limited [2010] NSWSC 807 (12 August 2010)

JUDGMENTS – foreign judgments – registration of – contested application – requirements to be satisfied – requirement to show that if judgment registered the registration would not be liable to be set aside under s 7 Foreign Judgments Act 1991 (Cth) – whether those matters need to be determined on application for registration – appropriate order to be sought.

Markisic v Commonwealth of Australia [2010] NSWSC 24 (25 February 2010)

PROCEDURE – judgments and orders – amending, varying and setting aside – whether given or entered irregularly, illegally or against good faith. PROCEDURE – pleadings – verification of pleadings – who can verify. PROCEDURE – amendment of pleadings – late application for amendment – no evidentiary basis for proposed amended pleading. PROCEDURE – courts and judges – disqualification for apprehended bias. PROCEDURE – abuse of process – limited resources of courts – Plaintiffs’ desire to pursue futile claims – proceedings stayed. COSTS – costs thrown away by failure of Plaintiffs to comply with Court orders – summary assessment of costs by Court – direction that costs to be paid forthwith or proceedings stayed.

Markisic v Today-Denes [2009] NSWSC 482 (10 July 2009)
JUDGMENT – application to set aside – whether given or entered irregularly, illegally or against good faith – whether judgment genuine and authentic or “a forgery, a fake or counterfeit” or otherwise fabricated – whether Court’s website and file secure from tampering – whether irreconcilable and fatal conflict between foundation of application for relief and previous (unsuccessful) appeal to Court of Appeal by plaintiff against now disputed judgment – application dismissed – PRACTICE – hopeless proceedings – unwarranted applications – unreasonable refusal to accept rulings – power to restrain – restraint with conditions

IBM Global Services Australia Limited in the matter of an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission [2005] FCAFC 66 (29 April 2005)

[2005] FCAFC 66

INDUSTRIAL LAW – industrial dispute – finding by Australian Industrial Relations Commission that industrial disputes existed between union and two employers – whether jurisdictional error – whether employees in respect of whom demands made eligible to join union – construction of rules of union relating to eligibility for membership – whether information technology incidental, ancillary or complementary to supply, installation or maintenance of telecommunications services – identification of part of business of employer – identification of principal function of part of business

WORDS AND PHRASES – ‘industrial dispute’, ‘incidental, ancillary or complementary’, ‘part of a business’, ‘principal function’

Evidence Act 1995 (Cth) ss 8, 48(1)(f), 52, 157, 190