Category Archives: s. 129

O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 (24 September 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/315.html

TORTS – defamation – judicial officer suing in respect of criticism of her performance of her judicial function – defence of truth – Uniform Civil Procedure Rules 2005, r 1.21 – questions referred to Court of Appeal – whether the defence of truth is precluded by the principle of judicial immunity – consequences for the proceedings

TORTS – defamation – judicial officer suing in respect of criticism of her performance of her judicial function – defence of truth – Uniform Civil Procedure Rules 2005, r 1.21 – questions referred to Court of Appeal – whether the defendants defence of truth constitutes an abuse of process as inconsistent with the principle of finality

TORTS – defamation – whether a judicial officer is barred from bringing defamation proceedings with respect to defamatory publications relating to criticism of the performance of a judicial officer’s judicial function

CONSTITUTIONAL LAW – operation and effect of the Commonwealth Constitution – Uniform Civil Procedure Rules 2005, r 1.21 – questions referred to Court of Appeal – whether the principle of judicial immunity is consistent with the implied freedom of political communication – whether discussion about the discharge by a judicial officer of the judicial function in a particular case is a discussion concerning political or governmental matters

PROCEDURE – questions referred to Court of Appeal before trial – amendments to pleadings in appeal court – whether questions should be answered

Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 1212 (2 September 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1212.html

PROCEDURE – adjournment application – refused – further disqualification application – refused – notice of motion seeking leave to file second cross-summons – not granted – orders sought to restrain legal practitioners from acting in the proceedings – not granted – notice of motion seeking three judgments to be set aside – refused – notice of motion seeking an amendment to summons – additional prayer to be added to the summons, that the cross-claim be stayed – granted – costs reserved – further directions

Barakat v Goritsas (No 2) [2012] NSWCA 36 (9 March 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/36.html

EVIDENCE – appeal – application to adduce evidence to supplement transcript – discussion of Vakauta v Kelly (1988) 13 NSWLR 502 – whether court should receive evidence pursuant to Supreme Court Act 1970 (NSW), s 75A(7) – whether court should exercise discretion to reject admissible evidence tendered for the first time on appeal

PROCEDURE – civil – refusal to disqualify for apprehended bias – whether appellate court or court exercising supervisory jurisdiction should consider judgment of the court below on recusal application – whether exchanges between counsel and judge demonstrate that a fair-minded lay observer might hold the opinion that the judge might not determine issues fairly

WORDS AND PHRASES – “apprehension of bias”

Green v Magistrates’ Court of Victoria & Anor [2011] VSC 584 (16 November 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/584.html

CONTEMPT – Judicial review of Magistrate’s finding of contempt – Sections 134(c) and (e) of Magistrates’ Court Act 1989 (Vic) – Error of law on the face of the record – What constitutes the record – Failure to follow steps in Zukanovic v Magistrates’ Court of Victoria at Moorabbin [2011] VSC 141 – Jurisdictional error – Procedural fairness – Need for clear articulation of the charge – Natural justice.

PRACTICE & PROCEDURE – Judicial review – Order 56 of Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Statutory right of appeal from Magistrates’ Court to Supreme Court – Judicial review as alternative to appeal – Whether to exercise discretion to grant leave to re-open.

Australian Securities & Investments Commission v Rich [2006] NSWSC 643 (27 June 2006)

[2006] NSWSC 643

EVIDENCE – cross-examination on documents not tendered – third party documents and prior representations of the witness – transcripts of examinations including transcripts that could not be tendered in penalty proceedings – discretionary considerations

Evidence Act 1995  (NSW), ss 9, 26, 43, 44, 192