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
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
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
 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
 NSWSC 1046
EVIDENCE – Affidavit – Applicability of Evidence Act – Evidence about advice from solicitor given by annexing solicitor’s file note and commenting on it – Whether admissible.
Evidence Act 1995 ss.9, 11, 32, 34, 52
 NSWCA 441
TRADE PRACTICES – Misleading, deceptive and unconscionable conduct – Primary judge not satisfied that alleged representations made, or that, if made, they were relied on – Whether errors or deficiency of reasons shown
 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.