Category Archives: s. 016

SALMON v R [2012] NSWCCA 119 (4 June 2012)

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CRIMINAL LAW – CONVICTION APPEAL – theft assault and robbery convictions – appellant self-represented – whether hearsay evidence wrongfully admitted – whether Crown address caused miscarriage of justice – whether miscarriage of justice as a result of directions by trial judge – whether fresh evidence should be admitted on appeal – whether miscarriage of justice occurred as the result of conduct by appellant’s counsel – whether revocation of bail during trial caused miscarriage of justice – whether jury verdict unreasonable – SENTENCE APPEAL – whether sentencing judge erred in assessment of objective seriousness – whether principle of totality applied – whether sentence manifestly excessive.

Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433 (8 May 2012)

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http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/433.html

PROCEDURE – various motions and oral applications – application by defendants for summary dismissal of Attorney General’s summons – application refused – motion seeking leave to issue subpoenas – refused – application for trial by jury – application previously heard and refused -
leave sought to proceed on defendants’ proposed statement of claim – leave not granted – notices to admit facts served on Attorney General – refused – summary judgment on notice to admit facts served on the Commonwealth – notice set aside – leave sought by Commonwealth to amend its motion to set aside notices to produce documents granted – motion to set aside notices to produce documents – granted – notices to produce served on Attorney General – motion seeking production of documents by Attorney General – production of certain documents required, motion otherwise dismissed

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

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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”

Johnson v Director of Consumer Affairs Victoria; Johnson v Victorian Civil and Administrative Tribunal & Anor [2011] VSC 595 (23 November 2011)

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http://www.austlii.edu.au/au/cases/vic/VSC/2011/595.html

ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal (‘VCAT’) – Appeal on a question of law – Whether an order made without jurisdiction involves a question of law – Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) s 148(1).

ADMINISTRATIVE LAW – Application for leave to appeal from an order of the VCAT cancelling a real estate agent’s licence and disqualifying the agent from holding a licence for two years – Whether the VCAT, as constituted, had jurisdiction to make the order – Victorian Civil and Administrative Tribunal Rules 2008 (‘VCAT Rules’) r 5.03(2), (4).

ADMINISTRATIVE LAW – Inquiry under s 25 of the Estate Agents Act 1980 (‘EA Act’) – Underquoting price of properties for sale – Whether the VCAT has jurisdiction to make a finding that a person is not a fit and proper person to hold a licence in an application for an inquiry into whether that person breached the EA Act and regulations made under the EA Act – The VCAT exceeded its jurisdiction – Leave to appeal granted and appeal allowed – Order of the VCAT set aside.

ADMINISTRATIVE LAW – Natural justice – Hearing rule does not apply to the exercise of the function set out in r 5.03(4) of the VCAT Rules.

ADMINISTRATIVE LAW – Natural justice – The VCAT breached the hearing rule by finding that a person is not a fit and proper person to hold a real estate agent’s licence without giving that person notice that it proposed to make such a finding.

ADMINISTRATIVE LAW – Penalty for breaches of the EA Act and regulations made under the EA Act – Whether manifestly excessive – Whether error of law established.

PRACTICE AND PROCEDURE – Circumstances in which it is appropriate for an officer of the VCAT to give evidence on affidavit in an appeal from a decision of the VCAT – Observations about how such an affidavit should be prepared and filed – Whether a member of the VCAT can be compelled to give evidence about a matter not involving the VCAT’s decision-making process.

EVIDENCE – Presumption of regularity.

FN
[36] See Herijanto v Refugee Review Tribunal [2000] HCA 16; (2000) 170 ALR 379, 383-5 [16]-[24]; Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601, 610 [25], 646 [197]-[199], 669 [298]-[299]; Towie v Victoria [2008] VSC 177; (2008) 19 VR 640, 655-6 [59]. Section 16(2) of the Evidence Act 2008 does not apply because the VCAT is not an ‘Australian court’ for the purpose of the definition of ‘Australian or overseas proceeding’ in the Dictionary at the end of that Act.