Category Archives: s. 092

Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2014] VSCA 261 (24 October 2014)

CONTEMPT OF COURT – Industrial dispute – Preventing access to building sites – Restraining orders made – Alleged breaches of restraining orders – Proceeding alleging contempt of court initiated under Supreme Court (General Civil Procedure) Rules 2005 (r 75.06(2)) – Whether civil or criminal proceeding in circumstances of case.

CONTEMPT OF COURT – Finding made of breaches of restraining orders – Finding of criminal contempt – Criminal convictions recorded and fines imposed – Whether finding of criminal contempt available when charges did not plead contumacious conduct – Whether contumacy an element of criminal contempt or an aggravating circumstance – Nature of contempt – Effect of X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 and Lee v The Queen (2014) 88 ALJR 656 – Whether contumacy must be pleaded in order that contempt for breach of Court orders be treated as criminal – Contumacy need not be pleaded – Sufficient that alleged contemnor put on notice that allegation of contumacy is made.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether trial judge erred in finding applicant had breached restraining orders – Terms of orders – Whether particulars of charges satisfied – Significance of redeployment of workers before relevant blockading conduct commenced – Not reasonably arguable that trial judge erred in findings of contempt.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether evidence to support findings of breaches to criminal standard – Not reasonably arguable that trial judge erred in so finding.

CRIMINAL LAW – Breaches of restraining orders – Finding of criminal contempt – Fine imposed – Whether fine in respect of breach disproportionate to fines imposed for other breaches – Not reasonably arguable that fine disproportionate.

Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (S APCI 2014 0040)

PRACTICE AND PROCEDURE – Discovery – Whether procedure under r 29.07 available against alleged contemnor in contempt proceedings brought under Supreme Court General Civil Procedure) Rules 2005 (r 75.06)(2)) – Proceeding alleging breaches of court orders – Nature of contempt alleged – Relevant evidentiary/procedural regime – Corporate defendant – Whether discovery unavailable by reason of contempt proceeding ‘criminal’ and ‘accusatorial’ – Leave to appeal against order for discovery refused.

Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392 (22 August 2014)

WILLS AND ESTATES — Principal beneficiary under will convicted of defensive homicide of the deceased — Whether forfeiture rule applies — Whether discretion not to apply forfeiture rule — Whether constructive trust should be imposed — Whether gift over saved by the rule in Jones v Westcomb (1711) Prec Ch 316; 24 ER 149 — Supreme Court (General Civil Procedure) Rules 2005, r 54.02

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)

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)

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

The Prothonotary of the Supreme Court of New South Wales v Kearns [2011] NSWCA 394 (15 December 2011)

LEGAL PROFESSION – solicitor convicted of serious offences of dishonesty – whether order should be made to remove solicitor’s name from the Roll of Legal Practitioners – extent to which particulars of misconduct supported by evidence of the convictions

14. … Evidence of the convictions can be admitted and used against the Opponent in these proceedings: Evidence Act 1995, s 92(2), (3) (providing that the hearsay and opinion rule does not apply to the evidence so admitted), Dictionary (definition of ” civil proceedings “).

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

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.

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.