Category Archives: !! Part 3.03

Regent Holdings v State of Victoria [2013] VSC 601 (7 November 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/601.html [Correct link]

NEGLIGENCE – Duty of care – Breach of duty – Crown – Failure by servants or agents of State government to exercise statutory powers – Position of control over industry – Public duty – Fisheries Act 1995, ss 7, 9, 10, 11A, 28, 34, 42, 49, 51, 53, 142, 148, 150, 151 and 152 – Livestock Disease Control Act 1994, ss 7, 8, 13, 15, 21, 24, 26, 27, 110, 113, 115 and 135 – Wrongs Act 1958, ss 48, 49, 51, 52, 83 and 85.

CHEP Australia Limited v Strickland [2013] NSWCA 351 (25 October 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/351.html

WORKERS COMPENSATION – appeal from decision of Presidential member of the Workers Compensation Commission upon appeal from a decision of the Commission constituted by an arbitrator – appeal to the Court of Appeal is available to a party aggrieved by a decision of the Presidential member in point of law – Presidential member declined to admit further evidence – whether decision that non-admission would not occasion substantial injustice entailed error of law – whether reliance on a particular medical report entailed error of law.

MZYWC v Minister for Immigration and Citizenship [2012] FCA 1457 (29 November 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1457.html

EVIDENCE – admissibility – whether a matter of discretion – question whether appellant had mental capacity to participate in hearing before independent merits reviewer in relation to his claim for a protection visa – appellant relied on report of expert as to his mental condition – federal magistrate held report inadmissible – relied on weight and on conflicting evidence – no exercise of power to exclude admissible evidence because probative value outweighed by other factors – whether error by federal magistrate

HIGH COURT AND FEDERAL COURT – appeal – orders – consent orders – whether Court should make consent orders – consent orders based on incorrect assumption about basis of judgment the subject of appeal – appeal raised questions capable of being determined conclusively by appeal court

Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (28 August 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/282.html

WORKERS COMPENSATION – Workers Compensation Commission – Arbitrator’s decision – appeal to Presidential Member – error of law – whether no evidence to support finding that respondent injured while working for appellant – whether arbitrator answered wrong question in situation where possibility injury occurred at two workplaces

WORKERS COMPENSATION – procedure – s 354 Workplace Injury Management and Workers Compensation Act 1998 – procedures before Commission not governed by rules of evidence – arbitrator required to draw conclusions from material that is satisfactory in probative sense – where respondent’s credit impugned – whether arbitrator entitled to rely on expert reports where medical history respondent gave experts differed from evidence accepted by arbitrator

WORKERS COMPENSATION – procedure – procedures before Commission not governed by rules of evidence – Workers Compensation Commission Rules -evidence required to be logical and probative, relevant to facts in issue and issues in dispute, not based on speculation or unsubstantiated assumptions, not in form of unqualified opinions – not a reintroduction of rules of evidence

STATUTORY INTERPRETATION – s 354 Workplace Injury Management and Workers Compensation Act 1998 – procedures before Commission not governed by rules of evidence – Workers Compensation Commission Rules – evidence required to be logical and probative, relevant to facts in issue and issues in dispute, not based on speculation or unsubstantiated assumptions, not in form of unqualified opinions – rules not to be construed in manner inconsistent with statute

SNF (Australia) Pty Ltd v Ciba Specialty Chemicals Water Treatments Limited [2012] FCAFC 95 (29 June 2012)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/95.html

PATENTS – construction – meaning of “rigidification”

PATENTS – novelty – whether prior publications and prior uses disclose all integers of claim in combination – where there were no “signposts” sufficient to disclose an integer – whether the prior art taught away from the invention – relevance and meaning of “teach” to novelty – insufficient disclosure to constitute an anticipation of the process of the claim

PATENTS – innovative step – variations between claimed invention and prior art documents and acts – substantial contribution to working of invention

PATENTS – sufficiency of description – whether skilled addressee would have to do more than ‘routine trial and error’ to understand and implement the process of the claim – where dosage tests necessary to optimise claimed process – specification not insufficient because tests characterised as routine

R v Meyboom [2012] ACTCA 2 (31 January 2012)

http://www.austlii.edu.au/au/cases/act/ACTCA/2012/2.html

APPEAL AND NEW TRIAL – in general and right of appeal – leave to appeal out of time – principles on which leave should be granted – explanation for delay – whether miscarriage of justice – leave refused.

APPEAL AND NEW TRIAL – practice and procedure – when time for appeal begins to run in criminal matters – Court Procedures Rules 2006 (ACT) Div 5.4.7 – meaning of conviction.

APPEAL AND NEW TRIAL – practice and procedure – cross appeal – whether conviction appeal can be cross-appeal against sentence appeal – need for fresh appeal.

Ta and Nguyen v R [2011] NSWCCA 32 (4 March 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/32.html

CRIMINAL LAW – knowingly concerned in cultivation of large commercial quantity of cannabis plants – discharge of jury – possibly prejudicial evidence effectively withdrawn by trial judge from jury’s consideration – sentencing – aggravating factors in s 21A(2)(e), s 21A(2)(i) and s 21A(2)(n) of Crimes (Sentencing Procedure) Act – wrongly found by sentencing judge – these factors inherent in offence – applicants re-sentenced

Evidence Act – ss 37, 37(1)(c), Part 3.3

Bullman v Debnam [2010] ACTSC 97 (13 September 2010)

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/97.html

APPEAL – failure to challenge admissibility of evidence in Magistrates Court – wish to save time in Magistrates Court not an excuse sufficient to justify raising admissibility on appeal.

EVIDENCE – whether identification evidence was evidence of opinion or evidence of fact – identification of witness’s own remembered observation with later observation not opinion evidence.

EVIDENCE – whether failure to hold identification parades deprived defendant of chance of acquittal – considerations in whether to hold identification parade – nature and circumstances of witnesses’ observations – scope for accused person changing appearance in relevant respects – no obligation to hold identification parade if any result would be unreliable.

EVIDENCE – whether treatment of identification evidence resulted in unsafe and unsatisfactory verdict – whether evidence should have been excluded as unfairly prejudicial – whether Magistrate was sufficiently aware of potential unreliability of identification evidence – prosecution required to establish defendant’s guilt beyond reasonable doubt, not required to disprove defendant’s evidence beyond reasonable doubt.

Evidence Act 1995 (Cth), ss 114,114(2)(b),114(3),137
Evidence Act 1995 (NSW), Pt 3.3, s 76

R v Drollett [2005] NSWCCA 356 (4 November 2005)

 [2005] NSWCCA 356

appeal against conviction

malicious wounding in company

whether evidence concerning film footage admissible

evidence on voir dire subsequently admitted

witness saw appellant from front view after incident ended but was unable to identify him from front view footage

witness did not see appellant from rear view but purported to identify him from that footage

whether evidence relevant

evidence of fact

evidence of opinion

witness identified clothing worn by appellant minutes before attack

witness identification by process of deduction and reference to his clothing

interpretation of video evidence

ad hoc expert

Evidence Act 1995, Part 3.3, s56, s76, s78, s79, s137