Category Archives: s. 091

Liao v State of New South WalesZhang v State of New South Wales [2014] NSWCA 71 (24 March 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/71.html

PROCEDURE – pleading – prior adjudication in proceedings in which the present defendant was sued by different plaintiff – application for order striking out parts of the defence said to reflect findings in the earlier proceedings – whether abuse of process to put the plaintiff to proof of such matters – PROCEDURE – admissions – power of court to compel admissions – findings in the earlier proceedings against the defendant said to require admissions by the defendant in present proceedings

Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 (17 March 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/245.html

GUARDIANSHIP – Protected person – Financial management – Appointment of manager – Private manager – Terms of appointment – Remuneration – Regulatory regime – Financial services licence, issued by Australian Securities and Investment Commission, required – Subject to regulation by public authorities (by ASIC as licence holder, by NSW Trustee as financial manager) and supervision by Court (in exercise of Protective jurisdiction) – Public interest considerations
MENTAL HEALTH – Protected person – Appointment of manager of estate – Private manager – Remuneration – Regulatory regime – Public interest considerations
PRACTICE – NSW Trustee & Guardian Act – Protected person – Appointment of manager of estate – Private manager – Terms of appointment – Remuneration – Regulatory regime – Public interest considerations

Moss v Eagleston [2014] NSWSC 6 (4 March 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/6.html

TORTS – professional negligence – legal profession – where employed solicitor privately agreed to draft statement of claim after his employer’s retainer had been terminated – advocate’s immunity – whether available where not expressly raised as a defence – scope of solicitor’s duty of care in drafting statement of claim – whether informed by agreement to provide services on a pro bono basis – whether causes of action in defamation and unconscionable or misleading or deceptive conduct ought to have been included in the pleading – whether solicitor undertook to represent plaintiff at the hearing of the pleaded claim – whether plaintiff lost chance of succeeding on pleaded claim – whether plaintiff lost chance of succeeding on causes of action omitted from pleading – value of any lost chance

Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118 (25 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/118.html

PROCEDURE – application for vexatious proceedings order under s 8 Vexatious Proceedings Act – 31 proceedings relied upon by Attorney General – whether all vexatious – whether defendant has frequently instituted or conducted vexatious proceedings – whether Vexatious Proceedings Act applies to a person governed by the Felons (Civil Proceedings) Act – discretion to make orders sought – where defendant has appeal against conviction for serious indictable offence pending in the Court of Criminal Appeal – whether appropriate to make an order prohibiting the institution of interlocutory applications in that appeal.

O’Shane v Harbour Radio Pty Ltd [2014] NSWSC 93 (20 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/93.html

DEFAMATION- application to set aside subpoena addressed to Judicial Commission of NSW – documents regarding complaints against judicial officer – Judicial Officers Act 1986 (NSW) – no blanket exemption from production of documents concerning judicial officers – hearsay material indicating complaints against plaintiff – defence of substantial truth – pleading of aggravated damages by reference to falsity of imputations – whether subpoenaed documents have legitimate forensic purpose – “fishing expedition” – “on the cards” test – Alister v R (1984) 154 CLR 404 – class of documents sought by subpoena too wide – subpoena set aside in part

O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 (24 September 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/315.html

TORTS – defamation – judicial officer suing in respect of criticism of her performance of her judicial function – defence of truth – Uniform Civil Procedure Rules 2005, r 1.21 – questions referred to Court of Appeal – whether the defence of truth is precluded by the principle of judicial immunity – consequences for the proceedings

TORTS – defamation – judicial officer suing in respect of criticism of her performance of her judicial function – defence of truth – Uniform Civil Procedure Rules 2005, r 1.21 – questions referred to Court of Appeal – whether the defendants defence of truth constitutes an abuse of process as inconsistent with the principle of finality

TORTS – defamation – whether a judicial officer is barred from bringing defamation proceedings with respect to defamatory publications relating to criticism of the performance of a judicial officer’s judicial function

CONSTITUTIONAL LAW – operation and effect of the Commonwealth Constitution – Uniform Civil Procedure Rules 2005, r 1.21 – questions referred to Court of Appeal – whether the principle of judicial immunity is consistent with the implied freedom of political communication – whether discussion about the discharge by a judicial officer of the judicial function in a particular case is a discussion concerning political or governmental matters

PROCEDURE – questions referred to Court of Appeal before trial – amendments to pleadings in appeal court – whether questions should be answered

Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors [2013] VSCA 237 (6 September 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/237.html

TRADE PRACTICES – Misleading or deceptive conduct – Appeal from trial judge’s dismissal of appellants’ claims for damages – Degree of precision required in pleading and proving representations where impugned conduct is alleged to be founded upon oral statements − Whether trial judge erred in not considering certain evidence said to demonstrate an intention to mislead or deceive − Whether pleaded representations were made by respondents – Whether respondents’ conduct was misleading or deceptive or otherwise in breach of statutory prohibitions – Whether the appellants relied on any conduct including misrepresentations to their detriment – Whether loss or damage established by the appellants – Whether judge erred in making adverse findings as to credit of appellants’ witnesses – Extra-territorial application of trade practices legislation – Appeal dismissed – Watson v Foxman (1995) 49 NSWLR 315 − Gould v Vaggelas (1985) 157 CLR 215 − Fox v Percy (2003) 214 CLR 118 – Trade Practices Act 1974 (Cth) ss 5(1), 52, 53, 82 – Fair Trading Act 1999 (Vic) ss 9, 12.

DECEIT − Claim for damages founded upon the same representations as alleged for claim based upon statutory contravention − Whether trial judge erred in not considering certain evidence said to demonstrate joint purpose − Claim failed for failure to prove alleged representations − Appeal dismissed.

PRACTICE AND PROCEDURE – Importance of pleadings in large and complex litigation – ASIC v Rich [2009] NSWSC 1229; (2009) 236 FLR 1.

PRIVATE INTERNATIONAL LAW – Anti-suit injunction – Appeal against decision issuing an anti-suit injunction in relation to foreign proceedings – Where foreign proceedings involve similar factual dispute – Where complete relief available in the local proceedings – Whether evidence of additional cost or inconvenience required to establish that co-existence of proceedings is vexatious or oppressive – Whether vexatious or oppressive to continue foreign proceedings – Whether legitimate juridical advantage in continuing foreign proceedings – Whether abuse of court process to continue foreign proceedings – Appeal dismissed – CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345.

PRACTICE AND PROCEDURE – Application to adduce fresh evidence in an appeal – Application refused – Apostolidis v Kalenik [2011] VSCA 307.

COSTS – Appeal – Where appeal on the merits fails – Leave required to appeal against cost orders – Special costs orders – Where a proceeding is commenced or continued for some ulterior motive or in wilful disregard of the facts or clearly established law – Presumption where case hopeless – Where allegations of fraud made which are baseless – Where breaches of overarching obligations under the Civil Procedure Act 2010 – Leave refused.

Kiril Josifovski (aka Kiro Josifovski) as Administrator of the estates of the late Snezana Velevski (aka Snezana Velevska) and the late Daniela Velevska v Ljube Velevski [2013] NSWSC 1103 (14 August 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1103.html

WILLS, PROBATE AND ADMINISTRATION – Forfeiture under public policy rule – Defendant killed wife and children – Joint tenancy – Intestacy – Order for sale

Beckett v The State of New South Wales (No. 3) [2013] NSWSC 791 (28 June 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/791.html

PROCEDURE – discovery and interrogatories – discovery – privilege – statutory privilege under s 170 Police Act 1990 – whether documents should be produced though not admissible in evidence – definitions of privileged document and privileged information in UCPR – whether original complaints should be produced – who is a witness for the purposes of s 170

R v Jacobs (No 5) [2013] NSWSC 946 (26 June 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/946.html

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

R v Klobucar [2013] ACTSC 118 (18 June 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/118.html

CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – judge-alone trial – procuring drug trafficking – intention to procure – conduct effective to procure – trafficking offence actually committed – verdict of guilty to be entered.

CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – procuring drug trafficking – presumption of required intention or belief for trafficking offence arising from transporting of traffickable quantity not available against accused who procured the transporting – Criminal Code 2002 (ACT), s 604.

CRIMINAL LAW – PARTICULAR OFFENCES – drug trafficking – whether a person who transports drugs on behalf of another person expecting payment for the delivery “sells” the drugs to the other person – whether if a person who transports drugs on behalf of another person “sells” the drugs to the other person, the other person is protected from liability for an offence arising from procuring the transporting of the drugs by reason of an intention to “buy” the drugs – Criminal Code 2002 (ACT), ss 600, 602, 605.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Courses of Evidence, Statements and Addresses – whether prosecution should be permitted to open on one analysis of the facts and close on another analysis – whether defence prejudiced in cross-examination.

CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – evidence of co-offender’s conviction for offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), ss 91, 178.

CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – opinion of person about legal significance of actions not evidence based on what person saw, heard or otherwise perceived about a matter or event – evidence of co-offender’s opinion whether he committed offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), s 78.

Amaca Pty Limited (under NSW administered winding up) & Ors v Messrs A G McGrath & C J Honey (as liquidators of the HIH Group of Companies) & Anor [2012] NSWSC 1523 (11 December 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1523.html

CORPORATIONS – Winding up – Insolvency – Proceeds of contract of reinsurance – Application for orders under Corporations Act 2001 (Cth) s 562A(4) – Whether “just and equitable” to make orders sought by the Plaintiffs.

In the matter of TMPL Pty Limited (in liquidation) [2012] NSWSC 1059 (6 September 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1059.html

CORPORATIONS – Winding up – Termination – Power of court to terminate winding up – Attitude and interests of creditors, liquidator and contributories – Whether termination is in the public interest and the company is solvent – Whether any non-compliance with statutory duties and circumstances leading to wind up explained.

Kable v State of New South Wales [2012] NSWCA 243 (8 August 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/243.html

ADMINISTRATIVE LAW – judicial power – executing invalid order of superior court – whether order of superior court incompatible with exercise of judicial power is valid until set aside – whether non-judicial order derives whatever authority it has solely from the relevant legislation – effects of orders in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51

CONSTITUTIONAL LAW – judicial power – Supreme Court order under statutory power incompatible with judicial power invalid – order made in proceedings involving exercise of federal judicial power – exercise of federal judicial power simultaneous with function incompatible with judicial power – whether invalid State law applied by federal law – Judiciary Act 1903 (Cth), ss 39(2), 79 and 80

TORT – defences – protection from liability in tort for officer enforcing non-judicial order of judge of superior court in good faith – whether protection exists at common law – whether any protection extends to orders incompatible with exercise of judicial power

TORT – false imprisonment – plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to purported State legislation – legislation incompatible with judicial power and invalid – whether deprivation of liberty carried out by a person for whose conduct the State was liable – whether deprivation of liberty justified by law

TORT – malicious prosecution and collateral abuse of process – plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to invalid legislation – whether malice established

TORT – vicarious liability – vicarious liability of the State for conduct of persons in service of the Crown – whether State vicariously liable for conduct which was tortious absent statutory protection – Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8 and 10

Palavi v Queensland Newspapers Pty Ltd & Anor [2012] NSWCA 182 (20 June 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/182.html

PROCEDURE – Defamation proceedings – Destruction of mobile phones prior to commencement of proceedings – Admitted facts before primary judge disclosed evidence material to pleaded imputations had been destroyed – Whether admitted facts supported the inference that appellant intended to pervert the course of justice – Whether primary judge erred in striking out appellant’s statement of claim as an abuse of process – Uniform Civil Procedure Rules, r 13.4(1)(c)

DEFAMATION – Destruction of evidence prior to commencement of proceedings – Claim for aggravated damages – No defence filed – Notice to strike out claim – Whether truth of imputations in issue on claim

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/433.html

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

Gerard Cassegrain & Co Pty Limited v Cassegrain [2011] NSWSC 1156 (29 September 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1156.html

CORPORATIONS – management and administration – directors – fiduciary duties of directors – where loan account in director’s favour established in company’s books – where to director’s knowledge there was no entitlement of the director to funds represented by the loan account – drawings by director against loan account – whether breach of fiduciary duty – whether fraudulent breach – CORPORATIONS – informed consent of company to breach of fiduciary duty – where one shareholder given by constitution power to pass any resolution at a general meeting – assent by that shareholder apart from general meeting – whether effective – ESTOPPEL – prior adjudication – where creation of loan account and drawings on it had been the subject of findings in earlier oppression proceedings – whether res judicata – whether issue estoppel – whether existence of issue estoppel precludes reception of further evidence – ESTOPPEL – prior adjudication – effect on non-party – whether non-party privy or agent of party – EVIDENCE – judicial discretion to limit use – relevance of inability to cross-examine because witness not called – REAL PROPERTY – co-ownership – joint tenants – whether fraud of one joint tenant in taking of title jointly affects other joint tenant – where first joint tenant later transferred his interest to second joint tenant – nature of the sole registered proprietor’s title under Real Property Act – TORRENS SYSTEM – fraud exception to indefeasibility of registered estates – nature of relevant fraud – EQUITY – equitable defences – laches – elements of defence – LIMITATION OF ACTIONS – proceedings for equitable relief – equity seeks analogy with the law – fraudulent breach of fiduciary duty – analogy with tort of deceit or conspiracy to defraud – no analogy with trusteeship if trust property not held – relevance of incapacity

Evidence Act 1995, ss 69, 91,136

Fodare Pty Ltd v Shearn [2011] NSWSC 479 (25 May 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/479.html

CORPORATIONS – directors – duties of directors – company’s sole asset sold – sole director fails to account in any way for proceeds – vague statement as to part that it was used to pay unspecified debts – evidence as to another part that it was given to daughter-in-law to enable her to pay off her home mortgage – findings of breach of duty by director as to three sums – funding of “knowing receipt” by daughter-in-law as to one of these.

De Vries & Anor v Rapid Metal Developments (Australia) Pty Ltd [2011] NSWCA 100 (28 April 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/100.html

CORPORATIONS – mortgagee in possession – corporation in business of hiring scaffolding – whether agents of mortgagee (“Controllers”) liable under s 419A(2) of the Corporations Act for rent due to third party for scaffolding in possession of corporation – whether third party proved that its scaffolding was in the possession of the corporation at the date of Controllers’ appointment – whether the language of s 419A(2) of the Corporations Act extends to the corporation’s liability to make payments at the end of a period of hire – whether the primary Judge was correct not to excuse the Controllers from liability pursuant to s 419A(7) of the Corporations Act.

TORTS – conversion – whether sale by Controllers of scaffolding constituted conversion – whether damages should be assessed by reference to owner’s list prices.

Charmyne Palavi v Queensland Newspapers Pty Ltd& Anor [2011] NSWSC 274 (12 April 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/274.html

COURTS – PRACTICE AND PROCEDURE – abuse of process – proceedings for damages for defamation – destruction of material by plaintiff when legal proceedings in contemplation – destroyed material potentially relevant to truth or falsity of defamatory imputations- whether conduct amounted to an attempt to pervert the course of justice – whether proceedings should be dismissed – counsel bound by admission made to court – principles considered

Groves v Commissioner of Taxation [2011] FCA 222 (15 March 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/222.html

PRACTICE AND PROCEDURE – application for temporary stay of taxation appeals – applicant but not Commissioner of Taxation a party to proceeding in Supreme Court of Queensland involving some issues of law and fact common to taxation appeal – consideration of relevant principles – application refused

Evidence Act 1995 (Cth) s 91

Watts v Bendigo and Adelaide Bank Limited (No. 3) [2011] FCA 186 (9 March 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/186.html

BANKRUPTCY – Sequestration order – creditor’s petition – whether act of bankruptcy within six months of petition – interpretation of order extending time for compliance with bankruptcy notice until “first return date” of notice of appeal – whether “first return date” was date of appeal index conference before registrar or later call-over before judge

BANKRUPTCY – Sequestration order – creditor’s petition – whether debtor able to pay debts within meaning of Bankruptcy Act 1996 (Cth) s 52(2)(a) – whether sequestration order ought not be made for “other sufficient cause” within meaning of s 52(2)(b)

Evidence Act 1995 (Cth) ss 91, 131

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 (7 December 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/335.html

DEFAMATION – defences – substantial truth – whether necessary to prove each element of imputation a matter of substantial truth – whether element a material part of the imputation – whether sting of imputation proven to be a matter of substantial truth – Defamation Act 1974 (NSW), s 15
DEFAMATION – defences – contextual truth – whether by reason of the substantial truth of one imputation remaining imputations did not further injure reputation – Defamation Act 1974 (NSW), s 16
DEFAMATION – damages – mitigation of damages – evidence of bad reputation – identification of scope of reputation capable of being harmed by imputations – whether evidence of bad reputation goes to relevant sector of reputation
DEFAMATION – damages – mitigation of damages – evidence of bad reputation – post-publication evidence of bad reputation – correctness of Rochfort v John Fairfax & Sons Pty Ltd [1972] 1 NSWLR 16
DEFAMATION – damages – mitigation of damages – bad reputation – use of judicial findings made in other civil proceedings
DEFAMATION – damages – mitigation of damages – bad reputation – use of evidence properly before the court on some other issue
DEFAMATION – damages – continuing nature of damages for injury to reputation and hurt to feelings
DEFAMATION – damages – where separate publications – assessment of amount to be awarded
DEFAMATION – damages – whether damages excessive

Fodare Pty Ltd v Shearn [2010] NSWSC 737 (6 July 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/737.html

CORPORATIONS – examination of officers and others – written record of examination – to what extent admissible in evidence to prove facts stated – EVIDENCE – admissibility – hearsay – where deponent repeats in current affidavit statements made in an earlier affidavit – whether excluded by hearsay rule – EVIDENCE – admissibility – proceedings by company against director alleging breach of duty – whether defendant thereby exposed to penalty relevant to admissibility of evidence – EVIDENCE – admissibility – written record of examination – application of hearsay rule – statutory exception in Corporations Act

Evidence Act 1995 (Cth), s 4
Evidence Act 1995 , ss 4, 56, 59, 69(1), 69(2), 69(3), 91, 135

Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 645 (21 June 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/645.html

DEFAMATION – pleadings – defence – whether parts of truth and contextual truth defences should be struck out under UCPR 14.28(1) – adequacy of particulars to support truth defence – test to be applied – capacity of matter complained of to convey contextual imputation pleaded – whether contextual imputation pleaded is an “other imputation” – context of publication relevant – permissible breadth of contextual imputation – adequacy of particulars of the truth of contextual imputations to support contextual truth defence – effect of admission by plaintiff of some particulars of truth – whether fact is in issue after admission – whether contextual imputations differ in substance – availability of particulars of bad reputation to support plea of bad reputation

Legal Services Board v McGrath [2010] VSC 266 (17 June 2010)

http://www.austlii.edu.au/au/cases/vic/VICSC/2010/266.html

LEGAL PRACTITIONERS – Application to have defendant struck off Roll of Practitioners – Legal Profession Act 2004, s 2.4.42 – power to strike off – broader purpose than public protection – defendant convicted of child pornography offences – whether fit and proper person at time of hearing – failure to adduce sufficient evidence in admissible form – application refused.

EVIDENCE – Admissibility – hearsay evidence – evidence of criminal convictions in civil proceeding – evidence of criminal convictions subject of appeal at time of civil proceedings – Evidence Act 2008, ss 59(1), 91, 92(2)(a), 178.

Russell v Commissioner of Taxation of the Commonwealth of Australia [2009] FCA 1224 (30 October 2009)

[2009] FCA 1224

TAXATION – Income Tax and Penalty Assessments issued by Commissioner of Taxation – Allegedly false or misleading statements as to personal services by the appellant as to his income resulting in a tax shortfall – Whether the income received by a New Zealand incorporated company from an Australian company was mainly a reward for the appellant’s personal efforts or skills – Whether the aforementioned income constituted the appellant’s “personal services income” – Whether the New Zealand company was a “personal services entity” – Whether 80% of the appellant’s personal services income was from the same entity – Whether the appellant met the results test under s 87-18 Income Tax Assessment Act 1997 (Cth) – Whether an overseas company can be a personal services entity in relation to the assessment of personal services income of an individual – Whether the attribution of income paid to the New Zealand company by the Australian company as the appellant’s personal services income is contrary to the Australia-New Zealand Double Taxation Agreement – Whether the penalty assessment for intentional disregard of a taxation law was assessed correctly – Whether the Commissioner’s related penalty remission decision was attended with error such that the Court should reach its own conclusion on that subject – Held payments from Australian company to New Zealand company constituted part of the appellant’s “personal services income” – Held payments were an additional commission reward for services or skills provided to Australian company – Held New Zealand company was a “personal services entity” – Held appellant’s “personal services income” was not income from conducting a “personal services business” – Held New Zealand company can be a “personal services entity” in respect of Part 2-42 of the Income Tax Assessment Act 1997 (Cth) – Held NZ Double Taxation Agreement subjects the appellant to taxation in Australia in respect of the appellant’s “personal services income” pursuant to Part 2-42 of the Income Tax Assessment Act 1997 (Cth) – Held appeal allowed – Question as to whether possible by court order to increase the amount of an assessment on an appeal from an objection decision – Reserved for consideration after receipt of supplementary submissions

TAXATION – Goods and Services Tax – Whether the assessment of the GST net amount and related penalty assessment was excessive – Whether any of the items the subject of the claimed input tax credits were acquired by the partnership in carrying on an “enterprise” – Characterisation of the “enterprise” of the partnership – Whether the items the subject of the claimed input tax credits were of a private or domestic nature – Whether the statutory pre-conditions to the assessment of the base penalty were satisfied – Whether the Commissioner of Taxation properly exercised his discretion not to remit the base penalty – Whether the Commissioner of Taxation’s opinion that there was an avoidance of tax due to fraud or evasion was an error of law – Held GST assessment excessive – Held entitlement to claim tax credits in respect of forestry enterprise was an entitlement – Held no entitlement to claim tax credits in respect of accountancy practice and naturist retreat – Held Commissioner of Taxation’s remission decision was a error of law – Held appeal allowed

Evidence Act 1995 (Cth) ss 69(2)(b), 91(1)

Ainsworth v Burden [ 2005] NSWCA 174 (21 June 2005)

 [2005] NSWCA 174

Letter written to Police Minister by defendant imputing that plaintiff not a fit and proper person to hold gaming licence or to be associated with holder of such licence – Police Minister directs investigation into allegations made in letter – defamation action based on letter – defendant pleads defences of truth and qualified privilege – malice pleaded in answer to qualified privilege – - -

At trial plaintiff seeks to tender five judgments of Licensing Court and report of investigation into defendant’s allegations all rejecting those allegations, of which defendant was aware, as evidence of malice by defendant’s persistence in asserting truth of his allegations in face of their constant rejection by authorities – tender rejected by trial judge as unfairly prejudicial to defendant, as strength of findings in favour of plaintiff such that jurors unable to put them out of mind when considering defence of truth – Evidence Act 1995, s 135 – error by judge – - -

At trial plaintiff seeks to amend by adding to particulars of malice and supplying particulars of aggravated damages – judge rejects on principles of case management- similarity of issues in malice and aggravated damages – error by judge – - -

Judge rules that, after withdrawal of defence of truth and in absence of particulars of aggravated damages or of falsity, no issue of truth or falsity arose – discussion of relevance of truth and falsity in defamation – error by judge

Gonzales v Claridades [2003] NSWSC 508 (12 June 2003)

[2003] NSWSC 508

SUCCESSION- WILLS, PROBATE AND ADMINISTRATION- rules of public policy – forfeiture by killing -application to have funds released to person accused of murdering testator – EXECUTORS AND ADMINISTRATORS – what constitutes administration being completed – personal liability of representative for release of funds to wrong beneficiary – EXECUTORS AND ADMINISTRATORS – rights, powers and duties – duty to ascertain the beneficiaries – duty where notice of possible forfeiture by a beneficiary – PROCEDURE – administration of estates – application to release funds to a possible beneficiary before estate administration complete – basis for a right of a beneficiary from an estate not fully administered – appropriation – interim distributions -whether beneficiary has a right to be paid where there is an undecided forfeiture question – PROCEDURE – administration of estates – summary relief requiring distribution by executor – when appropriate – EVIDENCE – CIVIL PROCEEDINGS – effect of a verdict in criminal proceedings on a factual question in civil proceedings – admissibility and significance of a conviction – EVIDENCE – onus of proof – presumption of innocence – role in proof of criminal or seriously wrongful acts within civil proceedings – whether applicable in litigation where whether such an act has occurred is not being decided.

Batey and Anor v Potts and Ors [2004] NSWSC 606 (13 July 2004)

[2004] NSWSC 606

SUCCESSION – Executors and Administrators – Proceedings by executors or administrators – Determination of questions in administration of estate – Nature of right of residence granted to husband by testatrix – Residuary estate bequeathed to son – Whether forfeiture rule applies to acceleration of son’s interest upon killing father – Son convicted of manslaughter – Whether certificate of conviction admissible – Whether son’s interest postponed for period of life expectancy of father – Whether late application for modification of rule under Forfeiture Act 1995 should be granted – Whether rule should be modified – Whether only effect of forfeiture rule to delay son’s entitlement