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.
APPEAL – application of leave to appeal from grant of leave to discontinue – no question of principle – leave refused
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
PRACTICE AND PROCEDURE – Discovery – Principles applicable to applications for discovery in judicial review proceedings – Significance of reasons – East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 considered
CRIMINAL – appeal – conviction – whether misdirection in presentation of crown case to jury – no misdirection on factual possibility of push followed by a trip – consistent with an intention to kill – direction consented to – no tactical disadvantage – no miscarriage of justice – misdirection on availability of mental element of reckless indifference to human life – not Crown case – whether miscarriage of justice – significance of the appellant’s case that he was not involved in death at all – possibility of jury speculating remote – no objection by counsel
CRIMINAL – appeal – evidence – admission of evidence – expert opinion – whether evidence wholly or substantially based on specialised knowledge – process of reasoning involved matters of common knowledge
CRIMINAL – appeal – evidence – admission of evidence – expert opinion – whether expert had relevant expertise – whether expertise from study and experience – no details of how investigations conducted equipped expert to give evidence in present case – publications not tendered – titles of publications insufficient evidence of expertise from study and experience
APPEAL – criminal – whether notwithstanding appellant’s success appeal should be dismissed – application of proviso – 6(1) Criminal Appeal Act 1912 (NSW) – whether no substantial miscarriage of justice – consideration of importance of expert evidence – Court satisfied beyond reasonable doubt that evidence properly admitted at trial proved the guilt of the appellant
APPEAL – criminal – fresh evidence – whether Court of Criminal Appeal decision concerning expert and book published by expert before trial is fresh evidence – could have been discovered by reasonable due diligence – no miscarriage of justice – previous decision of Court of Criminal Appeal irrelevant to admissibility of expert evidence
CRIMINAL – appeal – conviction – no error in direction on use of evidence as both tendency evidence and for motive – reserve consideration of whether tendency evidence must be proved beyond reasonable doubt reserved
EQUITY – estoppel -whether defendant and Represented Persons are bound by decisions in earlier proceedings – whether previous declarations and orders are in rem – whether a privity of interest exists between the defendant (and the Represented Persons) and the Association (a defendant in the earlier proceedings) – whether order should be made under s 70 of the Civil Procedure Act 2005; TRUSTS AND TRUSTEES – terms of the trust – charitable trusts – proper construction of the Constitution and Diocesan Statute of the Macedonian Orthodox Church – whether it is a term of the trust declared in the 1997 proceedings that membership of the Parish Assembly, and thus the Association, depends on nomination in the parish register – whether parish register purportedly maintained by second defendant compliant with Constitution; EQUITY – whether relief should be denied on a discretionary basis – whether plaintiffs have clean hands – whether false evidence given in these proceedings and in earlier proceedings – whether false evidence directly and immediately related to equity sought
SUCCESSION Wills, Probate and Administration – Statutory Will – Minor Nil Capacity Case – Statutory powers of Court informed by protective jurisdiction – Consideration of benefit to, and interests of, incapacitated minor – Operation in context of statutory criteria.
EVIDENCE – Client legal privilege – Loss of privilege by the commission of a fraud – Relevant principles – Meaning of “in furtherance of the commission of a fraud” – Whether the fraud must be consummated – Evidence Act 2008 (Vic), ss 91, 125.
Agency – sufficiency of evidence of show – goods vendor and financier.
EVIDENCE – application to adduce tendency evidence – applicant made redundant while on maternity leave – sought to adduce evidence from another employee of the respondent who was made redundant while on maternity leave – whether significant probative value – whether reasonable notice given
BANKRUPTCY – appeal of dismissal of application to set aside a bankruptcy notice – whether appellant denied procedural fairness because his application for an adjournment was refused – whether the appellant was denied an opportunity to cross-examine and whether any such denial resulted in a denial of procedural fairness – whether discretion to extend the time for compliance with a bankruptcy notice conferred by s 41(6A) of the Bankruptcy Act 1966 (Cth) miscarried – whether bankruptcy notice was invalid because it was capable of reasonably misleading the debtor – appeal dismissed.
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
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
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
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.
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
EVIDENCE – whether prejudice in correspondence between party and insurer about indemnity for settlement offer – tender of reasons for judgment – Evidence Act – s 44, s 91 s and 131(1).
PRACTICE AND PROCEDURE – stay pending appeal – interpretation of effect of interlocutory orders
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
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  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  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.
WILLS, PROBATE AND ADMINISTRATION – Forfeiture under public policy rule – Defendant killed wife and children – Joint tenancy – Intestacy – Order for sale
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
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
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.
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.
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.
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)  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
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
CONVEYANCING – vendor and purchaser – purported rescission of contract by purchaser – whether purchaser became mentally ill – termination of contract by vendor – application for return of deposit
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
ADMISSIONS – application to withdraw – principles – evidence – admission of affidavit evidence from other proceedings
PROCEDURE – Vexatious Proceedings Act 2008, s 6, s 8 – Whether proceedings are vexatious – meaning of “vexatious” – whether proceedings were conducted frequently – meaning of “frequently”
– Evidence Act 1995 (NSW) – s 91
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
Introduction agency – allegations of misleading and deceptive conduct – allegations of unconscionable conduct -accessorial liability of the second defendant – ex parte proceedings
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.
Introduction agency – allegations of misleading and deceptive conduct – allegations of unconscionable conduct – accessorial liability of the defendants – ex parte proceedings
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.
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
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
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
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  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
PRACTICE AND PROCEDURE – application for stay or adjournment of proceeding pending outcome of appeals in separate proceedings
Held: adjournment granted.
Evidence Act 1995 (Cth), s 91(1)
BANKRUPTCY – application for stay of proceedings pursuant to sequestration order until determination of appeal – application for return of passports from trustee and permission to travel overseas
Evidence Act 1995 (Cth), s 91
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
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 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.
PRACTICE AND PROCEDURE: Application pursuant to ss 30 and 50 of the Bankruptcy Act 1966 – whether trustee should take control of respondent’s property – whether respondent should be restrained from departing Australia.
Evidence Act 1966 (Cth), ss 91(1), 97(1)(a), 100(1), 135.
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)
CRIMINAL LAW – trial by Judge alone – aggravated robbery – accessory after the fact – act of assistance – fault elements of knowledge and intent– Criminal Code 2002 (ACT), s 717.
Evidence Act 1995 (Cth), s 91
WILLS AND ESTATES – forfeiture rule – whether object of discretionary trust receives benefit for purposes of rule – causal connection between beneficiary’s conduct and deceased’s death – admissibility of evidence of decision at criminal trial that accused was not guilty due to mental illness
Evidence Act 1995 (NSW), ss 91, 178