Category Archives: s. 021

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

R v Muller [2013] ACTCA 15 (28 March 2013)

EVIDENCE – Competence – witness not competent to give sworn evidence – whether witness competent to give unsworn evidence – what court must tell witness – whether s 13(5) Evidence Act 2011 (ACT) requires that witness understand – whether court may inquire into witness’s understanding – witness’s lack of understanding no basis for finding witness incompetent to give unsworn evidence.

APPEAL – Application for leave to appeal against interlocutory decision – trial judge erred in finding complainant incompetent to give unsworn evidence – appeal allowed – admissibility of complainant’s evidence remitted to trial judge.

SH v Regina [2012] NSWCCA 79 (3 May 2012)

CRIMINAL LAW – appeal – conviction – evidence – sexual intercourse with person aged under 10 years – complainant gave unsworn evidence – Court did not tell complainant that she should feel no pressure to agree with statements she believed were untrue – whether Evidence Act 1995 (NSW), s 13 complied with – whether non-compliance necessitates upholding appeal – whether miscarriage of justice

EVIDENCE – witnesses – competence – unsworn evidence – requirement that Court tell witness about to give unsworn evidence that he or she should feel no pressure to agree with statements that he or she believes are untrue – whether Evidence Act 1995 (NSW), s 13 complied with – whether witness competent to give unsworn evidence if not given required direction

Fryer Holdings v Liaoning MEC Group [2012] NSWSC 18 (30 January 2012)

CONTRACT – identifying terms of contract – what terms were implied in the contract from the United Nations Convention on Contracts for the International Sale of Goods (CISG) – whether goods supplied were fit for purpose and of merchantable quality – whether implied warranty of fitness for purpose had been breached – whether circumstances of termination had any direct relevance to the quantification of damages – DAMAGES – contract – assessment of damages – whether direct losses were sustained – whether indemnity for compensation could be claimed – whether plaintiff could claim damages for loss of profit due to breach.

Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95 (19 August 2011)

PRACTICE AND PROCEDURE – Appeal from an interlocutory decision of Logan J to stay proceedings indefinitely – whether witness voluntarily giving evidence by video-link from overseas breaches nation’s sovereignty in the absence of permission from that nation – sovereignty and comity – where a respondent in the proceedings is also the subject of criminal proceedings in another nation and currently released on bail – where position of foreign nation regarding the taking of evidence by video link from that respondent unclear – where uncertain whether position of the foreign nation will ever be clarified in the future – where party may become unable to give evidence in the future if convicted in criminal proceedings in that foreign jurisdiction

Evidence Act 1995 (Cth) ss 4(1), 21

BZAAG v Minister for Immigration and Citizenship [2011] FCA 217 (4 March 2011)

PRACTICE AND PROCEDURE – non-appearance by applicant in the Federal Magistrates Court – judicial review application struck out – whether Court had jurisdiction to entertain application for leave to appeal

Held: Court had jurisdiction to entertain application

PRACTICE AND PROCEDURE – oaths and affirmations – form of oath for adherent to Sikh faith – whether impractical to administer any such oath – Evidence Act 1995 (Cth) ss 21, 23 and 24

Micar Group Pty Ltd v Insul-Trade LLC [2010] NSWSC 1391 (9 November 2010)

CORPORATIONS – application to set aside statutory demand – whether applicant filed and served supporting “affidavit” for purposes of Corporations Act 2001, s 459G – where jurat not signed by attesting witness – whether oath administered – form of oath required – whether genuine dispute that debt owed – whether genuine dispute as to part of debt – whether parties were in partnership – whether debt by way of loan – whether offsetting claim based on misrepresentation – quantification of claim

STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd [2010] FCA 1002 (3 September 2010)

EVIDENCE – oath or affirmation – whether affidavit attested before a notary public in accordance with South Korean law amounts to an oath or affirmation in a similar form to the Schedule to s 21(4) of the Evidence Act 1995 (Cth) – sufficient acknowledgment of the gravity and importance of the truth being told required to amount to an affirmation

Held: the attestation is in a form sufficient to comply with s 21(4) of the Evidence Act 1995 (Cth)

Buggy v Reinisch [2010] FCA 917 (25 August 2010)

TRADE PRACTICES – misleading or deceptive conduct

EVIDENCE – onus of proof – Jones v Dunkel – Browne v Dunn
68. … Mr Adam Reinisch’s attempt to explain why he had never seen a document by reason of it being sent to the “wrong fax number”, only for it to emerge that the number to which the document was sent was a number previously used by Mr Adam Reinisch – and possibly used in 2004 – is not the hallmark of a witness telling “the truth, the whole truth and nothing but the truth”.
69. That, of course, is part of the oath now set forth in the Schedule to the Evidence Act 1995 (Cth) and part of the oath in fact taken by Mr Adam Reinisch. The oath itself has been traced back to at least 1649: Mellinkoff, The Language of the Law (1963) at 172. An oath to “tell the truth”, it has also been pointed out long ago, was not always regarded as an oath to tell “the whole truth”: Silving, ‘The Oath’ (1959) 68 Yale L J 1329 at 1346 and 1527 to 1577. It should constantly be recalled that the requirement that an oath or affirmation be administered, as contemplated by s 44(1) of the Federal Court of Australia Act 1976 (Cth) and by s 21 of the Evidence Act 1995 (Cth), is not merely a procedural step which is but a precursor to a witness thereafter answering such questions as may be asked in such a manner as the witness may see fit. An oath or an affirmation is (in part) a solemn reminder to any witness of the serious obligation imposed to give a truthful account. The evidence given by a witness is central to the administration of justice.

Nudding & Strickland on behalf of the Maduwongga People v Western Australia [2002] FCA 934 (23 July 2002)

[2002] FCA 934

NATIVE TITLE – method of testifying in native title litigation – “joint” testimony – statements from a group of witnesses – statement by a witness after the witness has consulted with others

PRACTICE AND PROCEDURE – native title – method of testifying – “joint” testimony – statements from a group of witnesses – statement by a witness after the witness has consulted with others

Evidence Act 1995 (Cth) s 21