Category Archives: s. 052

Hua Wang Bank Berhad v Commissioner of Taxation (No 15) [2013] FCA 1124 (31 October 2013)

EVIDENCE – Certificate under s 128(5) of the Evidence Act 1995 (Cth) – Scope of evidence to be included – Whether sworn affidavit is indirect evidence for the purposes of Evidence Act 1995 (Cth) s 128(7)(b)

EVIDENCE – Documentary evidence – Distinction between oral testimony and affidavit evidence

Bailiff v R [2011] ACTCA 7 (25 February 2011)

APPEAL – appeal as to the finding of the appellant’s fitness to plead – whether the primary judge erred in her consideration of the criteria she was required to take into account in deciding whether the appellant was fit to plead to the charge – held that there was no appealable error in the approach of the primary judge – appeal dismissed

Evidence Act 1995 (Cth) s 52

Whittaker v Child Support Registrar [2010] FCA 43 (5 February 2010)

ADMINISTRATIVE LAW – departure prohibition order made under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) by Child Support Registrar – whether order valid – whether Registrar obliged to afford procedural fairness by giving an opportunity to be heard where Registrar had received a “tip off” from an anonymous telephone caller that the person was about to leave Australia – whether failure by Registrar to notify person that order had been made, as Registrar was required to do by s 72G of Act, was a failure to accord procedural fairness that rendered order invalid – whether Registrar failed to give such notice. Held: In each case, No.

CONSTITUTIONAL LAW – whether Pt VA of Child Support (Registration and Collection) Act 1988 (Cth) invalid as conferring the judicial power of the Commonwealth on Child Support Registrar – Child Support Registrar was empowered to make departure prohibition order prohibiting a person from departing from Australia for a foreign country if, inter alia, the person had a child support liability and had not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged – consideration of factors indicative of “judicial power”. Held: Pt VA does not confer judicial power on Child Support Registrar.

EVIDENCE – s 32 of Evidence Act 1995 (Cth) – deponents of affidavits refreshing their memories from contemporaneous notes for the purposes of making their affidavits, and attaching a copy of the notes to the affidavits – whether affidavits rendered inadmissible by s 32 because the court had not given leave for the witness to use the notes to try to revive his or her memory – whether s 32 applied to affidavits made out of court and in contemplation of the hearing. Held: No – s 32 applies only to evidence given in court.

TORT – False Imprisonment – person intending to catch international flight detained in departure hall at airport because of departure prohibition order made in respect of him by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) – intending passenger could have abandoned attempt to depart and retreated out of airport’s departure hall – whether avenue of egress reasonable – statutory defence available to officials who had prevented intending passenger from catching international flight because departure prohibition order made by Child Support Registrar was in force in respect of him – s 72U of Act permitted authorised officers in certain circumstances to prevent person’s departure from Australia. Held: “imprisonment” not established because reasonable egress available and, in any event, statutory defence established.

TORT – interference with contractual relations by unlawful means – person intending to depart Australia by plane to perform contract overseas – departure prohibition order made by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) was in force in respect of him – Customs officers questioned him – Australian Federal Police officers told him he could not fly – mental element of the tort in circumstances in which the respondents are public officials – whether state of mind required for this tort is different from that required for the tort of misfeasance in pubic office. Held: No.

Evidence Act 1995 (Cth) Act ss 32, 34, 52

IBM Global Services Australia Limited in the matter of an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission [2005] FCAFC 66 (29 April 2005)

[2005] FCAFC 66

INDUSTRIAL LAW – industrial dispute – finding by Australian Industrial Relations Commission that industrial disputes existed between union and two employers – whether jurisdictional error – whether employees in respect of whom demands made eligible to join union – construction of rules of union relating to eligibility for membership – whether information technology incidental, ancillary or complementary to supply, installation or maintenance of telecommunications services – identification of part of business of employer – identification of principal function of part of business

WORDS AND PHRASES – ‘industrial dispute’, ‘incidental, ancillary or complementary’, ‘part of a business’, ‘principal function’

Evidence Act 1995 (Cth) ss 8, 48(1)(f), 52, 157, 190

Evans v The Queen [2007] HCA 59 (13 December 2007)

[2007] HCA 59

Criminal law – Evidence – Admissibility of in court demonstrations – An armed man wearing overalls, balaclava and sunglasses committed a robbery – During the trial the appellant was required to wear overalls and a balaclava found at his residence and sunglasses not in evidence as well as walk before the jury and say words attributed to the robber (“the in court demonstration”) – Whether the in court demonstration was relevant – Whether the in court demonstration was unfairly prejudicial – Relevance of distinction between demonstrations, experiments, inspections, reconstructions and views – Whether s 53 of the  Evidence Act 1995   (NSW) (“the Act”) applied to in court demonstrations – Whether requiring the appellant to perform the in court demonstration was permitted either by s 53 of the Act or at common law.

Criminal law – Evidence – Admissibility – Whether showing witnesses the overalls and balaclava found at the appellant’s residence was relevant – Whether showing witnesses the overalls and balaclava was unfairly prejudicial.

Criminal law – Appeals – Application of the proviso- Whether the trial judge’s error in not admitting alibi evidence which the appellant proposed to call denied the application of the proviso – Whether the failure of the trial judge to give adequate reasons for rulings made during trial was a miscarriage of justice – Whether the judicial warnings to the jury were adequate – Whether the in court demonstration was so prejudicial as to deny the application of the proviso – Whether the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged.

Words and phrases – “demonstration”, “experiment”, “inspection”, “unfairly prejudicial”, “reconstruction”, “relevance”, “view”.

Evidence Act 1995  (NSW), ss 53, 55, 137.