Category Archives: s. 178

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

Commonwealth of Australia v Davis Samuel Pty Ltd and Ors (No 7) [2013] ACTSC 146 (1 August 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/146.html

CORPORATIONS – Director – means of becoming – acting in position of – officer – decisions affecting corporation – maker of or participant in

EQUITY – Fiduciary duty – breach of – Barnes v Addy – receipt and assistance – liability for – third party – participatory liability – receipt liability – company – knowledge of – imputation to

EQUITY – Fiduciary duty – breach of – Barnes v Addy – remedies – In rem – In personam – constructive trust – imposition of – discretionary – occasion for – tracing – multiple fiduciary duty breaches – multiple claims

EQUITY – Breach of confidence – fundamental or operative mistake – ultra vires payment of public money

TRADE PRACTICES ACT – misleading and deceptive conduct

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.

Lewis v Nortex Pty Limited (in liq) [2012] FCA 621 (15 June 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/621.html

BANKRUPTCY AND INSOLVENCY – application to set aside a bankruptcy notice –whether orders attached to a bankruptcy notice identified payments to be made on different accounts

22. I did not understand there to be, finally, any other substantive ground raised in support of the application to set aside the bankruptcy notice, although a number of other matters were raised in the written submissions. One matter which appears to me not to be covered in one way or another by the matters already discussed is a suggestion that the JUDGMENT/ORDER signed and sealed by a Registrar of the Supreme Court on 17 August 2010 was not a “final Judgment or final Order” as required by s 41 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”). The JUDGMENT/ORDER signed and sealed by the Registrar is a “certificate” for the purposes of s 178 of the Evidence Act 1995 (Cth). The certificate is evidence of the existence of an order by “an applicable court” and of the matters stated in the certificate. It was accepted that the specific orders set out in the certificate are an accurate consolidation of orders actually made, and in effect. If there was any infelicity or clerical error in the certificate, s 306 of the Bankruptcy Act would, in my view, operate to overcome any such defect. The certificate was adequate proof of a final judgment or order and the existence of the debt claimed.

Chevalley v Industrial Court of New South Wales [2011] NSWCA 357 (24 November 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/357.html

ADMINISTRATIVE LAW – judicial review – constitutional validity of legislation – whether s 26 of the Occupational Health and Safety Act 2000 violates the principles underlying Ch III of the Constitution
CONSTITUTIONAL LAW – constitutional validity of legislation – whether s 26 of the Occupational Health and Safety Act 2000 violates the principles underlying Ch III of the Constitution
CRIMINAL LAW – director’s liability for corporation’s contravention – whether defences in Occupational Health and Safety Act 2000 s 26 and s 28 illusory
EVIDENCE – admissibility – whether certificate of conviction of corporation admissible and sufficient to prove essential fact of corporation’s contravention of the Occupational Health and Safety Act 2000 – Evidence Act 1995 s 178
PROCEDURE – civil – documents – amendment – refusal to allow amendment – issue not raised by notice given under Judiciary Act 1903 (Cth) s 78B
STATUTORY INTERPRETATION – Occupational Health and Safety Act 2000 s 26 – whether charges bad in law for failing to particularise steps defendant should have taken to avoid contravention – whether charges bad in law for failing to particularise act or omission of defendant constituting contravention

Evidence Act 1995 , s 178(1)

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.

Australian Trade Commission v Underwood Exports Pty Ltd [1997] FCA 1060 (17 October 1997)

[1997] FCA 1060

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – Tribunal’s duty to make findings on material questions of fact under s 43(2B) of the Administrative Appeals Tribunal Act 1975 – role of Court on judicial review is not to analyse Tribunal’s decision minutely – Tribunal required in these circumstances to make specific findings on the central question – failure of Tribunal to do so – remitted to Tribunal for further consideration.

Evidence Act 1995  (Cth), ss 103, 106, 178

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