Category Archives: s. 028

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.

Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929 (18 December 2008)

[2008] FCA 1929

NATIVE TITLE – non-claimant application under Native Title Act 1993 (Cth) seeking determination that no native title exists over land – previous claimant applications for determination that native title exists struck out for not meeting requirements of Act – previous claimant joined as third respondent under s 84(5) of the Act – third respondent opposes non-claimant application – role of Minister in proceedings – Minister has not abandoned right to participate – Minister not required to establish interest to remain a party – burden of proof – evidentiary burden – requirement to prove negative proposition on balance of probabilities – no presumption of native title – third respondent is not required to establish native title but is required to adduce evidence once applicant has adduced sufficient evidence from which the negative proposition may be inferred – third respondent has not adduced sufficient evidence to cast doubt on applicant’s case – no sufficient evidence that asserted rights and interests arise under normative system of traditional laws acknowledged and traditional customs observed – applicant entitled to determination that there is no native title over the land

Evidence Act 1995 (Cth), ss 27, 28, 106

Temple v Powell (No 1) [2007] FCA 987 (2 July 2007)

[2007] FCA 987

EVIDENCE – mode of evidence at trial – civil penalty proceedings – whether affidavit evidence exhibiting transcripts of interview and statements given to investigators may be received – unsatisfactory form of some proposed evidence – discretionary questions – civil penalty proceedings – critical evidence of oral statements and conversations by union officials – evidence directed to be given on affidavit – affidavits to indicate time, place and nature of critical oral conversations – evidence of content of oral conversations and statements to be adduced orally in chief – annexure to affidavits of previous witness statements or interviews with investigators not permitted in exercise of discretion