Category Archives: s. 042

R v Simmons; R v Moore (No 3) [2015] NSWSC 189 (10 March 2015)

CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – use of listening device – where device deployed in psychiatric hospital – accused recovering from acute psychosis – whether police failed to disclose relevant information in application for surveillance device warrant – discretion to exclude admissions that are unfair – whether witness an agent of the state – whether witness “elicited” admissions – where accused had not previously been interviewed or advised of his right to silence
CRIMINAL LAW – admissions – whether admission induced by offer of “off the record” conversation – whether reliability adversely affected – fairness discretion

Investa Properties Pty Ltd v Nankervis (No 6) [2014] FCA 804 (1 August 2014)

PRACTICE AND PROCEDURE – s 26(a) and (c) and s 42 Evidence Act 1995 (Cth) – manner in which evidence to be given by litigants in person – whether respondents have same interests in proceeding – whether respondents should be allowed to cross-examine each others’ witnesses – sequence of cross-examination

Matthews v SPI Electricity & Ors (Ruling No 36) [2014] VSC 82 (11 March 2014)

EVIDENCE – Recall of second defendant’s witness for cross-examination by plaintiff – Expert evidence – Admissibility – Limitations to cross-examination – Restriction on leading questions – Expertise – Evidence Act 2008 (Vic) ss 42, 79 – Civil Procedure Act 2010 (Vic) s 65H – Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 44.

George v Fletcher (Trustee) [2012] FCAFC 148 (25 October 2012)

COURTS AND JUDGES – Procedural fairness – bias – apprehended bias – association – prejudgment – adverse credit finding in earlier judgment – waiver

COURTS AND JUDGES – Procedural fairness – judicial intervention in the conduct of proceeding – whether judicial questioning of witnesses excessive – pejorative and inappropriate comments by federal magistrate – limits on one party’s rights to issue subpoenas and cross-examine witnesses

BANKRUPTCY AND INSOLVENCY – whether federal magistrate erred in finding that certain property was not held by the bankrupt on trust for her son – whether federal magistrate erred in treating certain chattels as having been returned to the bankrupt – failure to undertake necessary inquiry under Bankruptcy Regulations (Cth)

TRUSTS AND TRUSTEES – matters relating to registration and evidence in writing of purported trust – whether notation on reprints of the Trusts Act evidenced purported trust

PRACTICE AND PROCEDURE – Consent orders giving effect to a compromise between parties – whether it was open to federal magistrate to make an order inconsistent with consent orders

Elphick v Westfield Shopping Centre Management Company Pty Limited [2011] NSWCA 356 (25 November 2011)

APPEAL – shopping centre accident – injured employee of cleaning contractor – liability of occupier – liability of independent contractor – contractual relationship between occupier and independent contractor – indemnity in cleaning agreement – right to indemnity for costs of defending action

PRACTICE – (per Young JA)- there is no right for the one party to be represented by two sets of lawyers just because part of its interest is insured unless the leave of the Court is obtained.

Evidence Act 1995 s 42

Strata Plan 61287 & Anor v Brookfield Multiplex Limited & Ors [2011] NSWSC 1302 (2 November 2011)

PRACTICE AND PROCEDURE – Deconsolidation of proceedings – proceedings involving residential and commercial strata corporations previously consolidated as shared common substratum of facts – commercial corporation unable rely on statutory warranties – of itself insufficient to warrant deconsolidation – general position that plaintiffs should be represented by one solicitor – rule may be dispensed with in certain circumstances – circumstance that commercial corporation loses faith in solicitor – sufficient degree of change in circumstance to warrant deconsolidation – defendants contend deconsolidation will result in trial being attended by issues such as double cross-examination of defendant witnesses – extent to which such issues arise attenuated by (NSW) Evidence Act provisions allowing court to control cross-examination – proceedings deconsolidated and to be heard together with evidence in one to be evidence in other.
PRACTICE AND PROCEDURE – Commercial strata corporation seeks leave to supplement liability and quantum evidence – deficiencies identified as to quantum evidence – Makita v Sprowles concerns as to admissibility of expert evidence on liability – different judges take different views as to requirements for admissibility of expert evidence – (NSW) Civil Procedure Act, s 56, makes just resolution of proceedings paramount concern – justice requires parties be permitted to adduce relevant and admissible evidence – only possible prejudice to defendants is that hearing may be delayed – interests of justice demand plaintiff be given leave to supplement quantum and liability evidence.

(NSW) Evidence Act, 1995 , s 26, s 42

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.

Australian Securities & Investments Commission v Macdonald (No 7) [2008] NSWSC 1367 (16 December 2008)

[2008] NSWSC 1367

EVIDENCE – Admissibility and Relevancy – Transcript of evidence volunteered by 5th defendant to plaintiff under a protocol containing a provision that it would not be tendered in evidence against the 5th defendant in a proceeding for the imposition of a penalty against him – Civil penalty proceedings – Plaintiff ordered to provide transcript to other parties in the proceedings – 1st defendant sought to cross-examine on the transcript – 1st defendant not bound by the protocol or s 68(3) of the Australian Securities and Investments Commission Act 2001 (Cth) – Whether 1st defendant bound by confidentiality – Whether equity would grant an injunction – Whether prevented from cross-examining by s 127(1)(a) of Australian Securities and Investments Commission Act or by the Evidence Act 1995, s 26, s 29, s 42, or s 44 – Voir dire held under s 189 to determine whether, in terms of s 135, the 5th defendant would be unfairly prejudiced by the admission of the cross-examination