Category Archives: s. 174

Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 7) [2014] FCA 5 (17 January 2014)

PRACTICE AND PROCEDURE – application by second respondent to discharge order requiring it to give standard discovery – where second respondent incorporated in France – whether order to give standard discovery would involve the second respondent in a contravention of French law – French blocking statute – whether discovery could be obtained under the Hague Convention or the UK-France Convention.

Held: The second respondent’s application dated 30 May 2013 be dismissed.

GEDEON Gilbert v R [2013] NSWCCA 257 (12 November 2013)

CRIMINAL LAW – appeal against conviction – two counts of supply in contravention of the Drug Misuse and Trafficking Act 1985.
CONSTITUTIONAL LAW – inconsistency between State and Commonwealth laws – whether s 25 of the Drug Misuse and Trafficking Act 1985 is inconsistent with s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – gravity of impropriety or contravention – evidence gathered pursuant to authority under the Law Enforcement (Controlled Operations) Act 1997 – authority subsequently held to be invalid.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge correctly assessed the overall risk of harm of the controlled operation to the community.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge erred in considering the defence of reasonable excuse in relation to s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – whether desirability of admitting the illegally or improperly obtained evidence outweighed the undesirability.
EVIDENCE – witness – cross-examination on voir dire – privilege – self-incrimination – whether answers would tend to prove an offence against a law of a foreign country – proof of foreign law – whether the interests of justice required that the evidence be given over objection.
CRIMINAL LAW – sentencing – parity principle.

Crumpler (as liquidator and joint representative) of Global Tradewaves Ltd (a company registered in the British Virgin Islands) v Global Tradewaves (in liquidation), in the matter of Global Tradewaves Ltd (in liquidation) [2013] FCA 1127 (28 October 2013)

BANKRUPTCY AND INSOLVENCY – cross-border insolvency – UNCITRAL Model Law on Cross-Border Insolvency (Model Law) – Cross-Border Insolvency Act 2008 (Cth) – application for recognition of proceedings in British Virgin Islands as a “foreign proceeding” under the Model Law given force of law in Australia by section 6 of the Cross-Border Insolvency Act 2008 (Cth) –
application for summons of the examination of a former company director of now insolvent corporation pursuant to Article 21(1)(d) of the Model Law and section 581 and section 596B of the Corporations Act 2001 (Cth), each as applied by section 8 of the Cross-Border Insolvency Act 2008 (Cth)

Fair Work Ombudsman v Pocomwell Limited (No 2) [2013] FCA 1139 (1 November 2013)

INDUSTRIAL LAW – alleged contraventions of Fair Work Act 2009 (Cth) arising from payment of Filipino nationals working on rigs in Australia’s Exclusive Economic Zone – whether s 33(1)(b) Fair Work Act 2009 (Cth) should be read down having regard to international law – whether reg 1.15E Fair Work Regulations 2009 (Cth) should be read down or is ultra vires having regard to international law – whether rigs “fixed platforms” under Fair Work Act 2009 (Cth) – whether rigs “majority Australian-crewed ships” under Fair Work Regulations 2009 (Cth) – whether relevant award covered first respondent – whether, if first respondent contravened Fair Work Act 2009 (Cth), other respondents knowingly involved in contraventions

Mokbel v The Queen [2013] VSCA 118 (17 May 2013)

CRIMINAL LAW – Appeal – Conviction – Fair trial – Abuse of process – Accused absconded during previous trial – Convicted and sentenced in absentia – Extradited from Greece – Prior application to European Court of Human Rights – Whether surrender by Greece violated European Convention on Human Rights – Whether Australian officials complicit – Applicant presented on fresh drug charges – Stay applications failed – Accused pleaded guilty – No violation by Greece – No abuse of process – Leave to appeal refused.

CRIMIMAL LAW – Appeal – Sentence – Drug trafficking – Incitement to import – Many multiples of large commercial quantity of ecstasy, methylamphetamine – Thirty years’ imprisonment, non-parole period 22 years – Applicant head of trafficking organisation – Worst category of offending – Sentencing range – Whether sentencing judge mistaken about Crown submission on range – Whether error material – Whether different sentence should be imposed – Whether sentence manifestly excessive – Appeal dismissed.

Ascertaining foreign law

20 Neither party raised before Whelan J any issue as to whether art 34, and the obligations imposed under that provision, had to be the subject of formal proof before any reliance could be placed upon it. When the matter came before this Court, the Attorney-General for the Commonwealth, intervening, submitted (by way of a ‘preliminary point’) that the ‘operation’ of the Convention was a matter of ‘foreign law’, and therefore a question of fact that had to be proved by expert evidence. It was implicit in that submission that, no such evidence having been led, the question whether there had been a breach of art 34 did not arise.

21 An argument of that kind proceeds along a path that requires consideration of a number of separate steps. It assumes first that the ‘operation’ of the Convention involves the interpretation of foreign law. If so, it assumes next that the contents of that law must be the subject of proof. Both assumptions are questionable.

22 It may readily be accepted that foreign law is a question of fact to be proved by expert evidence.[20] It may also be accepted that great care must be exercised in using material produced by expert witnesses about foreign law. For example, an English translation of the text of a foreign written law is not necessarily to be construed as if it were an Australian statute. Not only are there problems raised by the translation of the original text (although this is not a problem when it comes to dealing with the Convention as it provides that both the French and English versions are classified as ‘authentic’), but also different rules of construction may be applicable in the foreign jurisdiction.[21]

23 It must also be borne in mind that the Evidence Act 2008 (Vic) deals specifically with proof of foreign law. Section 174 is, relevantly, in the following terms:

174 Evidence of foreign law
(1) Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing:

(a) a book or pamphlet, containing the statute, proclamation, treaty or act of State, that purports to have been printed by the government or official printer of the country or by authority of the government or administration of the country; or

(b) a book or other publication, containing the statute, proclamation, treaty or act of State, that appears to the court to be a reliable source of information; or

(c) a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or to prove, the statute, proclamation, treaty or act of State; or

(d) a copy of the statute, proclamation, treaty or act of State that is proved to be an examined copy.

24 The section is plainly intended to be permissive. It is not exhaustive. There is nothing to indicate specifically that any of conditions (a)–(d) were met in this case. Nonetheless, it is clear that Whelan J had access to art 34, and referred to it in terms.[22]

25 There is another question to be considered in relation to s 174. The section, though headed ‘[e]vidence of foreign law’, speaks of ‘evidence of a statute, proclamation, treaty or act of State of a foreign country’. The term ‘foreign country’ is not defined in the Evidence Act 2008 (Vic). It is somewhat problematic as to whether the Convention itself, which is a product of the Council of Europe, and not of any of its individual member States (or the European Union),[23] meets that description.[24]

Bateman and Idameneo (No 123) Pty Limited v Fairfax Media Publications Pty Limited and Ors [2013] ACTSC 72 (26 April 2013)

COURTS AND JUDICIAL SYSTEM – jurisdiction – cross-vesting legislation – action for damages for defamation – application to transfer proceedings to Supreme Court of New South Wales – transfers in the interests of justice – factors to be considered – place of the tort, the applicable law, location of the parties, procedural matters such as trial by jury, convenience and expense, place of vindication – transfer ordered

COURTS AND JUDICIAL SYSTEM – jurisdiction – cross-vesting legislation – action for damages for defamation – application to transfer proceedings to Supreme Court of New South Wales – transfers in the interests of justice – factors to be considered – existence of an onus on the applicant – onus not relevant

McHugh v Australian Jockey Club Limited (No 6) [2011] FCA 1135 (29 September 2011)

EVIDENCE – Proof of foreign law –tender of copies of foreign legislation –whether the mere tender of foreign legislation would enable the Court to draw certain inferences – whether appropriate to assume foreign law is the same as Australian law – whether late tender caused prejudice – tender refused

Allardyce Lumbar Company Limited v Quarter Enterprises Pty Limited [2010] NSWSC 807 (12 August 2010)

JUDGMENTS – foreign judgments – registration of – contested application – requirements to be satisfied – requirement to show that if judgment registered the registration would not be liable to be set aside under s 7 Foreign Judgments Act 1991 (Cth) – whether those matters need to be determined on application for registration – appropriate order to be sought.

Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Limited (ACN 008 204 635) [2009] FCA 1220 (30 October 2009)

[2009] FCA 1220

CONTRACT – long term exclusive distributorship between Australian supplier and Hong Kong distributor – parties’ written agreement not adequately expressing the true character of all aspects of their relationship – contract terminated by supplier – allegation of repudiation by distributor.

CONTRACT – claim that contract was partially oral and partially written – principles to be applied in deciding this question – contract found to be written only.

CONTRACT – construction of terms dealing with extension and termination of the agreement – negotiations over an extended period – principles of construction of such a contract – extent to which evidence of pre-contractual negotiations admissible.

CONTRACT – exclusive distributorship – allegations of parallel importation into Hong Kong – both supplier and distributor subject to a “best efforts” clause to prevent the sale of the supplier’s products in Hong Kong by persons other than the distributor – construction of “best efforts” clauses and the “standard of endeavour” required – the parties’ obligations found to be reciprocal and interdependent – supplier found in breach of the clause by not taking all reasonable steps to prevent its product being sold into Hong Kong – distributor also in breach for failing to notify supplier of the parallel importation – failure by distributor to mitigate loss.

CONTRACT – alleged refusal to supply in accordance with the agreement – offer of supply unreasonably rejected by distributor – failure to mitigate – nominal damages.

INTELLECTUAL PROPERTY – distributor selling to Chinese reading market using Chinese character trade mark and Chinese language product indications – claims by supplier to the trade marks under s 87 of the Trade Practices Act 1974 (Cth) on account of alleged misleading or deceptive conduct by Distributor – claim by distributor to copyright in Chinese character product indications and get up.

COPYRIGHT – Chinese language product indications found to be original literary works – claim they were or were represented to be direct translations of English language product indications rejected – distributor not trustee of copyright works for supplier.

COPYRIGHT – breach of copyright by supplier alleged arising out of parallel importation – alleged unauthorised reproductions by supplier – whether reproduction authorised – additional statutory conversion claim under s 116 of the Copyright Act 1968 rejected.

PASSING OFF – sale and resale of product bearing distributor’s trade mark and copyright work – alleged misrepresentation calculated to deceive customers and end users – claim rejected – sales made in Australia – no evidence that distributor or Chinese language marks had any reputation at all in Australia.

BREACH OF CONFIDENCE – after termination distributor provided third party manufacturer with supplier’s production formula and manufacturing formula – similar product manufactured and sold using production formula – claim for breach of confidence – account of profits sought – awarded for a limited period – claim against Director of distributor for profits rejected.

Evidence Act 1995 (Cth) ss 79, 174

Michael Wilson and Partners Ltd v Robert Colin Nicholls [2009] NSWSC 1033

Barnes and Addy — Breaches of contract — Secret profits — Diverting business opportunities from former employer to competing business — Confidential information — Plaintiff law firm offering legal services and business consultancy in Kazakhstan brings proceedings against former employees for having furthered their own interests to their employers detriment by various means — Jurisdiction — Enquiry as to whether foreign law applies to determination of matters litigated — Principled approach to determining questions of foreign law — Proceedings involve consideration of several potentially applicable systems of law — Multiplicity and overlapping nature of issues require court to consider the level of abstraction appropriate to address issues so as to discharge its ultimate mandate of doing justice between the parties — Fraud — Principles which inform the proper approach to whether or not particular conduct is proven to have been fraudulent — Conspiracy to defraud — Principles — Interference with contractual relations-Principles-Causation-Abuse of process — Defendants claim that proceedings amount to an abuse of process and required to be summarily dismissed-Consideration of what amounts to an abuse of process — Case management — Allegations of abuse of process intertwined with principal issues litigated — Efficiently dictates that both the plaintiffs pleaded case as well as the defendant’s abuse of process case be litigated together — Causation — Remedies — Constructive trusts — Election — Split election — Nullus commodum capere potest de injuria sua propria — Overriding purpose rule — Achievement of a just, timely and cost-effective resolution of dispute has an effect upon the court and upon other litigants — Commercial life depends on timely and just payment of money such that those who claim to be entitled to money should know, as soon as possible, whether they will be paid and those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay — Ethos of Commercial List to determine disputes speedily

Optus Networks Pty Limited v Gilsan (International) Limited [2006] NSWCA 171 (5 July 2006)

[2006] NSWCA 171

CONTRACT – Construction of formula determining amount of payments – Implication as to terms on which business transacted after end of contractual period – Construction of term providing for adjustment of payments
EVIDENCE – Proof of law of foreign country without calling expert – Judicial notice as to whether books would be used in court of that country – Application of presumption of continuance.

Evidence Act 1995  ss.174, 175