Category Archives: s. 175

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.

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