Category Archives: s. 011

In the matter of Petrolink Pty Ltd; Smith v Boné [2014] FCA 1024 (22 September 2014)

PRACTICE AND PROCEDURE – interlocutory process – application for summary dismissal on the basis the interlocutory process is an abuse of process – whether the predominant purpose of the interlocutory process was to obtain a collateral advantage or was otherwise improper

PRACTICE AND PROCEDURE – words and phrases – “abuse of process” – relevant principles – application of ss 11(2), 131(1) and 131(2)(k) of the Evidence Act 1995

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14 (10 February 2014)

ADMINISTRATIVE LAW – application for judicial review of decision of Magistrates Court – decision to permanently stay criminal proceedings – whether Magistrate properly exercised her powers – power to grant permanent stay to be exercised sparingly and only where there is a fundamental defect that cannot be remedied by other means – scope for Magistrate to review prosecutorial discretion to institute and maintain a prosecution – no basis for Magistrate to find abuse of process – other remedies available to Magistrate to deal with weak Crown case – no grounds for Magistrate to stay prosecution – order should not have been made.

ADMINISTRATIVE LAW – Prerogative Writs and Orders – relief sought in nature of certiorari – availability of remedy – grounds for order in nature of certiorari – fraud or error on face of record not asserted – whether there was jurisdictional error or failure to give procedural fairness – stay order made without application by either party and without opportunity for either party to make submissions – failure to give procedural fairness justified order in nature of certiorari – whether erroneous exercise of discretionary power by Magistrate amounted to jurisdictional error – jurisdictional error not relied on in making order in nature of certiorari – decision of Magistrate quashed and matter remitted to Magistrates Court differently constituted.

R v SH, MV and KC [2011] ACTSC 198 (17 November 2011)

EVIDENCE – witnesses – unfavourable witnesses – advanced rulings on whether leave should be given to cross-examine witnesses.

EVIDENCE – witnesses – unfavourable witnesses – test for granting leave to cross-examine witnesses.

Evidence Act 1995 (Cth), ss 11, 38, 41, 55, 135, 137, 192, 192A

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 6) [2011] VSC 294 (22 June 2011)

PRACTICE AND PROCEDURE – Application by a party to examine a witness in the same interest in a joint trial by asking non-leading questions – Application granted in the interest of justice – Cross-Examination of a witness in the same interest considered and compared – Value of such cross-examination considered – Control of examination by the Court considered – Directions given as to procedure to be followed – Sections 11(1), 26, 27, 28 and 42 Evidence Act 2008 – Part 2.3, s.25, 47 and 49 Civil Procedure Act 2010.

Director of Public Prosecutions (NSW) v J G [2010] NSWCCA 222 (30 September 2010)

APPEAL – criminal – interlocutory appeal – power to take further evidence and make other judgment – appeal by way of rehearing – Criminal Appeal Act 1912 (NSW), s 5F(3A) – EVIDENCE – criminal trial – objection to the tender of recorded interviews of child – whether contaminated by suggestion – unfair prejudice – Evidence Act 1995 (NSW), s 137 – EVIDENCE – interview of child – whether affected by later hypnosis sessions – no reliance on post-hypnosis evidence – difficulties for post-hypnosis cross-examination – whether assessed under Evidence Act 1995 (NSW), s 137 or general law – PROCEDURE – criminal – objection to prosecution evidence – pre-trial hearing – Evidence Act 1995 (NSW), s 192A

Evidence Act 1995 (NSW), ss 9, 11, 55, 56, 108C, 135, 137, 165, 192A

Lindsay v Health Care Complaints Commission [2010] NSWCA 194 (19 August 2010)

MEDICAL TRIBUNAL – disciplinary proceedings – whether s 37 of the Medical Practice Act 1992 in its pre-2008 form, permits the Tribunal to find that examples of unsatisfactory conduct cumulatively justify a finding of “professional misconduct” – whether a finding of impairment necessarily leads the Tribunal to the decision that a medical practitioner is not competent to practice medicine. PROCEDURAL FAIRNESS – whether the Tribunal denied an unrepresented medical practitioner procedural fairness by limiting cross-examination of witnesses and rejecting questions as irrelevant – whether the Tribunal denied procedural fairness by limiting the evidence that the medical practitioner could adduce where the medical practitioner failed to comply with directions – whether Tribunal gave medical practitioner adequate warning that his conduct during the hearing could be taken into account in making findings. NON-PUBLICATION ORDER – whether Court of Appeal should modify the non-publication order made by the Tribunal.

Evidence Act 1995, ss 11, 26

Prentice v Cummins (No 6) [2003] FCA 1002 (24 September 2003)

[2003] FCA 1002

PRACTICE AND PROCEDURE – motion to separate causes of action the subject of earlier no case submissions from remaining causes of action – respondents had elected to call no evidence in relation to the causes of action subject to the no case submissions – applicants entitled to cross examine respondent on all issues relevant to proceedings, including the causes of action the subject of no case submissions

BANKRUPTCY – application pursuant to s 121 of the Bankruptcy Act 1966 (Cth) – quantum of Bankrupt’s beneficial interest in matrimonial home registered in joint names – Bankrupt’s wife contributed nearly two-thirds of purchase price – presumption of resulting trust rebutted – common intention to acquire property as joint beneficial owners -Trustees entitled to 50 per cent of net proceeds of sale

BANKRUPTCY – whether Bankrupt was beneficially entitled to share held in his name – company acquired by the Bankrupt’s wife to act as trustee of her family trust – wife paid for share and acquisition costs – presumption of resulting trust applies – Trustees’ claim to share dismissed

Evidence Act 1995 (Cth), ss 11, 27, 26(a), 135(a), (b), 144

Haque v Commissioner of Corrective Services [2008] NSWSC 253 (31 March 2008)

[2008] NSWSC 253

Standing to sue not made out
Review of Commissioner’s decision to refuse distribution of newsletter for prisoners
Extent of power under s 232 Crimes (Administration of Sentences) Act and the Crimes (Administration of Sentences) Regulation
Relevant considerations
Irrelevant considerations
Right to freedom of communication
Implied freedom of communication concerning government or political matters
Admissibility of business records
Paragraph 23 of SCCL 3 Practice Note
Approach to s 11 of the Evidence Act

Lakatoi v Walker [1999] NSWSC 1088 (12 November 1999)

[1999] NSWSC 1088

PRACTICE – Cross-examination by two Counsel – Principles applicable to inform discretion – Materiality of mode in which Commercial List is administered.

Evidence Act (1995) (NSW) ss 11(1), 26

Uniform Evidence Act


Leave granted to the defendants to further cross-examine Mr Hogarth by either Mr Officer QC or Mr Powell on areas and materials previously not covered by the cross-examination of Mr Shand, but permitting further cross-examination on credit generally.

R v Richards [2001] NSWCCA 160 (1 May 2001)

[2001] NSWCCA 160












Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 (12 April 1989)

[1989] HCA 21

Companies – Winding up – Public examination of director – Privilege against self-incrimination – Abrogation by statute – Power to give directions as to matters to be inquired into – Whether court may excuse from duty to answer questions on ground that answer may incriminate – Inherent power of court to control proceedings – Ability to reject question on ground that answer may incriminate – Companies (New South Wales) Code, s. 541.

Van Der Lee & Ors v New South Wales & Ors [2002] NSWCA 286 (30 August 2002)

[2002] NSWCA 286

EVIDENCE – Privilege – Without prejudice communications attempting to negotiate a settlement of a dispute – Where such communications are alleged to evidence abuse of process – Whether admissible

PROCEDURE – Abuse of process – Proceedings against employees of deregistered company – Alleged purpose of obtaining money from holding company – Reasonable grounds for bringing proceedings against employees and against holding company – Whether proceedings against employees an abuse of process.

Evidence Act 1995 , ss.11, 125, 139.