Category Archives: s. 161

Yewsang v Chief of Army [2013] ADFDAT 1 (21 March 2013)

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2013/1.html

DEFENCE – Convictions relating to claims for reunion travel – whether Defence Force Magistrate incorrectly found that witness not confronted with certain allegation directly in cross examination – whether inadequate reasons given for accepting evidence-in-chief in preference to evidence given in cross examination – whether Defence Force Magistrate rejected evidence of witness on the basis of ill-founded assumption – whether inadequate reasons given for adverse credit finding and finding of dishonesty – whether conviction unreasonable, unsafe or unsatisfactory

Spencer v Bamber [2012] NSWCA 274 (5 September 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/274.html

APPEAL AND NEW TRIAL – bias of trial judge – where the trial judge is alleged to have been vitiated by actual or apprehended bias – allegations of bias must be dealt with first on appeal as the discovery of bias taints the whole of the judgment below

APPEAL AND NEW TRIAL – bias of trial judge – where the trial judge is alleged to have been vitiated by actual or apprehended bias – it is not prejudgment for a trial judge to rely on a party, without objection, seeking to confine the issues it agitates to particular arguments it has put forward at trial

EVIDENCE – proof of documents – where print-out of email produced before the court purporting to show email and its attachments were sent to a particular addressee – reasonable to assume that in the ordinary course of business emails reach their intended recipient – conclusion supported by s 161 Evidence Act 1995

JUDGMENT – reasons for judgment – amendment by judge to judgment after delivery of reasons extempore – extent to which amendments are permissible – permissible amendments are limited to matters which were clearly in the judge’s mind at the time or are merely editorial or stylistic – changes of substance are not permitted – the inclusion of an order not requested by either party supported by reasons not addressed by either party is a change of substance – order set aside

JUDGMENT – reasons for judgment – amendment by judge to judgment after delivery of reasons extempore – where amendments were impermissible – proper course on appeal is to read judgment as if amendments had not been made

PRACTICE AND PROCEDURE – expedition list – not necessary for trial judge having an expedited matter come before him or her to question the reason for the placement of the matter in the expedition list – reasonable to proceed on the basis that the matter ought to be dealt with as expeditiously as practicable in the circumstances

REAL PROPERTY – service of notices – s 170 Conveyancing Act 1919 – the legislatively enumerated methods of service serve to increase, not limit, the ways in which service can be effected – any method by which a document actually comes to the attention of the person to be served is sufficiently served for the purposes of the section – Notice of Intention to Apply for Foreclosure required to be served on mortgagor – notice in electronic format attached to an email sent to the mortgagor by his solicitor was actual service of the mortgagor

WORDS AND PHRASES – “actual bias”, “apprehended bias”, “service”

Miletich v Murchie [2012] FCA 1013 (17 September 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1013.html

TRADE PRACTICES – misleading and deceptive conduct – prospective operators of cafe franchise in new shopping centre development – representations about businesses of other tenants and extent of patronage – representations made by computer-animated video, brochure and orally – further representations in written landlord disclosure statement – whether misleading and deceptive – whether relied on – calculation of loss and damage – calculation of interest

TRADE PRACTICES – concurrent wrongdoers – apportionment of liability – letting agent and its director, developer and its director – whether necessary for respondent to plead and prove material facts relevant to apportionment – effect of provisions relating to vicarious liability

Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155 (23 May 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/155.html

CONTRACT – principal and agent – authority of agent – whether sufficient evidence to find agent had authority to incur liability under contract
EVIDENCE – admissibility – hearsay – business records – email purportedly sent by company officer – whether proof of officer’s authority to order goods on behalf of company

“18. By reason of s 161 of the Evidence Act 1995 , that email is to be presumed, in the absence of evidence suggesting the contrary, to have been sent by DIAG. Utilising the power conferred by s 183 of the Evidence Act to draw inferences, it should be inferred that a copy of that email was retained by DIAG, for at least a short period, as part of the records of its business. As a result, it can be concluded that the document in evidence is a copy of a business record of DIAG within the meaning of s 69 of the Evidence Act .”

Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 8) [2010] FCA 1197 (5 November 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1197.html

EVIDENCE – Witnesses – Witness called by applicant without prior signed statement – Where witnesses testimony not all favourable – Whether tendering of his oral evidence by applicant meant that all of witness’ evidence must be treated as credible – Whether counsel may lead evidence contradicting the evidence given by the witness – Consideration of Kabadanis v Panagiotu [1980] FCA 80; (1979) 47 FLR 221.

Held: Counsel not precluded from leading evidence contrary to evidence given by witness.

Evidence Act 1995 (Cth) ss 38, 59, 71, 140, 161