Category Archives: s. 058

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 59 (27 February 2014)

EVIDENCE – Admissibility – Tender of documents produced in response to subpoena – Relevance – Authenticity of a document – Hearsay exception – Whether business records – Discretionary exclusion rule – Whether unfair prejudice substantially outweighs probative value – Evidence Act 2008 (Vic) ss 48(1)(e), 55, 56, 58, 59, 69, 135.

Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355 (30 November 2012)

EVIDENCE – Admissibility – relevance – whether documents relevant to case as pleaded

EVIDENCE – Admissibility – relevance – whether documents concerning alleged conspirators not at trial are relevant to the allegations made against those who are – whether use of such documents is coincidence reasoning – discussion of the matters that such documents might be used to prove

EVIDENCE – Admissibility – business records – whether minutes of meetings of an organisation that represents businesses are business records of the businesses or, alternatively, the organisation – whether representations made therein are made ‘in the course of, or for the purposes of, the business’ of each member business or, alternatively, of the organisation – whether document must belong to the entity to whose business the document relates – whether minutes discovered on the computer networks of a business are ‘belonging to or kept by’ the business

EVIDENCE – Admissibility – business records – whether statements of opinion in business records are admissible

EVIDENCE – Admissibility – relevance – authenticity – whether document’s authenticity must be proved for the document to be admissible – whether inferences as to authenticity may be drawn from the document itself – whether National Australia Bank v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309 should be followed

Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 (24 October 2012)

NEGLIGENCE – duty of care – plaintiff slipped on grease on surface of car park – escaped from grease trap under control of building manager – content of duty of care owed by car park operator to avoid risk of slipping on car park surface – whether hourly inspections would have prevented accident – grease trap alarm system known to be faulty – content of duty of care owed by building manager – whether regular inspections of grease trap would have prevented accident

NEGLIGENCE – apportionment – whether primary judge erred in concluding car park operator primarily at fault as best placed to deal with risks and safety

EVIDENCE – admissibility – whether primary judge erred in rejecting tender of documentary evidence – tendering party’s obligation to make clear purpose and basis of tender – ordinarily no “improper” rejection of evidence if grounds which would justify tender not argued before primary judge.

PROCEDURE – amendment – joinder – oral application to amend and join additional party – no notice of motion served – challenge to exercise of discretion to dispense with filing and service of notice of motion and to grant leave to amend – no House v The King error – Civil Procedure Act, s 64

Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) [2011] FCA 338 (12 April 2011)

CONTEMPT OF COURT – respondent gave undertakings to the Court not to withhold consent to assignment of its franchises on a certain basis – whether respondent contravened undertakings – general principles applicable to determination of a charge of civil contempt – what constitutes an “assignment” for the purposes of undertakings – whether consent to assignment “withheld” where no request to assign made but respondent indicated that consent to assignment would not be given – whether change of directors constitutes an assignment of franchise for purposes of undertakings in circumstances where franchise agreement deemed such a change to constitute an assignment – not an assignment for the purposes of undertakings

EVIDENCE – admissibility of documents exhibited to affidavit – whether documents exhibited to affidavit are what they purport to be – authenticity of documents – whether admissible as business records – reliance on other evidence to support contention that documents exhibited to affidavit are what they purport to be – documents admissible as business records
Words & phrases: “assignment”, “withhold consent”

Evidence Act 1995 (Cth), s 48(1), s 55(1), s 58(1), s 69, s 142 and s 183

R v Gregory (Ruling No 2) [2009] VSC 509 (11 November 2009)

CRIMINAL LAW – Indictment with two counts of defrauding the Commonwealth and one count of conspiracy to dishonestly cause a risk of loss to the Commonwealth – Severance application – Judicial discretion to sever – Whether evidence on first two counts is admissible on the third count and vice-versa – No severance ordered.


Harriman v R [1989] HCA 50; [1989] 167 CLR 590, considered.

Whelan J
3 Pursuant to an agreement between the parties, argument on 19 and 20 October 2009 proceeded on the assumption that as at the date now fixed for the commencement of the trial, being 1 February 2010, the Evidence Act 2008 (Vic) would be in operation, and the submissions addressed admissibility by reference to the provisions of that Act.

Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2002] FCA 1018 (14 August 2002)

[2002] FCA 1018

TRADE PRACTICES – NEGLIGENCE – misleading or deceptive conduct – applicants having a course of dealing over many years with respondent estate agent – acquisition and sale of various properties – respondent oversaw management of some of applicants’ businesses – respondent acted as project manager on behalf of applicants in respect of certain property developments – respondent subsequently acted as agent for vendor of a city building – applicants allege respondent made false representations before they entered contracts with vendor interests for purchase of building and carrying out of major refurbishment works to the property – whether respondent misled or deceived relevant applicants in relation to acquiring the building and guaranteeing obligations in respect of the purchase and major refurbishment costs of the building – disputes with vendor interests before settlement of those contracts – applicants settled those disputes and accepted further guarantee obligations – subsequent litigation between vendor interests and applicants – those disputes settled in mid-hearing – respondent had provided valuation of building prior to first settlement of disputes – whether respondent negligent in preparing that valuation – whether respondent made representations negligently in breach of common law duty of care – whether applicants relied on respondent’s representations when purchasing the building and entering into the guarantees – whether applicants relied on those representations and the valuation when entering into the subsequent settlement transactions – whether respondent and relevant applicants in a fiduciary relationship in respect of acquisition of the building.

EQUITY – fiduciary duties – whether respondent real estate agent, in the particular circumstances, owed any relevant fiduciary duty to applicant purchaser and applicant guarantors of the purchaser’s obligations.

Regina v Lodhi [2006] NSWSC 648 (11 May 2006)

[2006] NSWSC 648

Criminal law; admissions by accused: s 81 Evidence Act (NSW) 1995; exception to hearsay rule (s 65(1) and 65(2)(c) Evidence Act); availability of witness; evidence admissible for non-hearsay purpose; s 136 Evidence Act – Limitation order

I am satisfied that there is no basis under ss 135 or 137 of the Evidence Act to exclude the evidence of the representations, provided the Crown does not lead the evidence relating to the name “Faheem”.

Australian Securities & Investments Commission v Rich [2005] NSWSC 417 (5 May 2005)

[2005] NSWSC 417

EVIDENCE – admissibility of documents – scope and effect of s 1305 of the Corporations Act – whether such documents as budgets are inadmissible under the hearsay rule – requirement of authentication of documents tendered in evidence – scope and effect of business records exception to hearsay rule – effect of business records exception where document contains representations of expert opinion – scope of “unfair prejudice” under ss 135 and 136
Evidence Act 1995 (NSW) ss 48, 55, 56, 57, 58, 59, 69, 79, 135, 136, 183

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305 (4 October 2002)

[2002] FCAFC 305

MIGRATION – appeal from single judge dismissing application for review of decision of Migration Review Tribunal – Tribunal had refused to consider application as appellant had lodged her application outside the statutory time requirements of the Migration Act 1958 (Cth) – appellant did not receive letter advising of delegate’s decision – evidence of letter sent within statutory time requirements

MIGRATION – Tribunals – purported decision of Migration Review Tribunal to refuse to consider appellant’s application – decision made by Deputy Registrar – supposed delegation of power by Principal Member unlawful

Evidence Act 1995  (Cth) ss 58, 69, 135,