BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether settlement deed a “construction contract” – whether payment under that deed a “progress payment” – CONTRACT – implied terms – whether an implied term that parties deal with each other in good faith and cooperate – UNCONSCIONABLE CONDUCT – requirements for conduct to be unconscionable
PROCEDURE – civil – whether the court should permit party to amend its claim – effect of delay – requirement that responding party have sufficient time to respond
EVIDENCE – admissibility and relevancy – hearsay – whether relevant documents are admissible as business records under Evidence Act 1995 (NSW) s 69 – where identity of author of relevant documents is unknown – whether relevant documents contained previous representations made or recorded in the course of, or for the purposes of, relevant business – whether relevant representations were made by a person who had or might reasonably be supposed to have had knowledge of the asserted facts, or on the basis of information directly or indirectly supplied by such a person.
EVIDENCE – admissibility and relevancy – whether relevant documents should be excluded under s 135 on the basis that documents are unfairly prejudicial or misleading.
EVIDENCE – admissibility and relevancy – application to seek direction that relevant evidence is not to be admitted under Evidence Act 1995 (NSW) s 169 – where party had failed to comply with request to call witness – whether plaintiff’s refusal to comply with request made without reasonable cause.
PROCEDURE – pleadings – amendment – where defendant seeks leave to file amended defence – where hearing is due to commence and there have been lengthy delays – whether leave for proposed amendments should be refused on case management grounds – whether plaintiff will suffer prejudice in addressing amendments.
EVIDENCE – request to call witnesses – application for order compelling plaintiff to call a witness under Evidence Act 1995 (NSW) ss 167, 169 – where plaintiff refused to comply with request – whether defendant should have leave to make request outside time limit – whether plaintiff’s refusal to comply with request made without reasonable cause – matters to be considered in exercise of Court’s discretion to order party to comply with request to call a witness.
1. At the commencement of the hearing on 10 March 2014, the second applicant sought leave to file the affidavit of Anthony John Gilfedder, affirmed 9 March 2014. In that affidavit Mr Gilfedder deposes to extracting certain data from a database identified as the Fintrax database. Mr Gilfedder is the Group Payments Manager of Fintrax Treasury Services Limited (Fintrax), a company within the same group of companies as the second applicant.
2. The purpose of the affidavit is to introduce the extracted data into evidence. The extracted data is annexure AG 1 to the affidavit. I marked a copy of the affidavit for identification: MFI 1.
3. The respondents object to the affidavit being filed. They submit that the second applicant has not explained how, if the affidavit were to be read, it would overcome the hearsay rule. They also raise objections to filing based on other matters to which I will refer.
4. The second applicant says that the extracted data is admissible as a business record pursuant to s 69 of the Evidence Act 1995 (Cth) (the Act). …
PRACTICE AND PROCEDURE – Application for leave to amend Notice of Appeal – Application for leave to rely on new evidence – Where proposed amendments do not raise new argument – Where unnecessary to deal with application for leave to rely on new evidence – Leave granted.
PRACTICE AND PROCEDURE – Appeal against Summary Judgment – Whether the defence has a ‘real prospect of success’ – Whether cause of action verified – Whether in the interests of justice to refer the matter to trial – Where unusual features of the transaction – Where additional claims on foot in the proceeding – Appeal allowed – Civil Procedure Act 2010 (Vic) ss 63(1) and 64 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) Order 22 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd  VSCA 158.
38 It is neither necessary nor desirable for us to say what evidence would constitute sufficient verification of the quantum of the claim. However, it is in our view clear that the simple verification of the sheet of paper called Schedule 1 is in the circumstances referred to inadequate. There is no supporting documentation. The schedule is dated 1 March 2011 and is clearly derived from other documents, presumably business records, that are not referred to or exhibited. In fact Schedule 1 is not even a business record that may be admissible under the Evidence Act 2008 (Vic). It is more of an aide memoire or note prepared by Mr Mondous. By itself it is of little evidential value. Even business records, more often than not constituting documentary hearsay, are only admissible if certain conditions are met.
 Section 69 of the Evidence Act 2008 (Vic).
EVIDENCE – Admissibility – Tender of documents produced in response to subpoena – Relevance – Authenticity of a document – Hearsay exception – Whether business records – Discretionary exclusion rule – Whether unfair prejudice substantially outweighs probative value – Evidence Act 2008 (Vic) ss 48(1)(e), 55, 56, 58, 59, 69, 135.
CONTRACT – whether respondents breached implied terms in contract – implied terms attaching to express terms – implied term to disclose matters relevant to express term – loss of opportunity – interpretation and application of release and entire agreement clauses where cause of action concealed by party seeking to rely on them
TRADE PRACTICES – whether respondents engaged in misleading or deceptive conduct through non-disclosure – misleading or deceptive conduct by silence – application of s 42 of the Fair Trading Act 1987 (NSW) – loss of opportunity
DUTY TO DISCLOSE – whether there is a duty under the general law requiring directors to disclose material personal interests relating to the interests of the company – whether there is a duty under the general law requiring directors not to place their own personal interests in actual or potential conflict with interests of company – whether respondents breached these general law duties
CORPORATIONS – whether duties under ss 182 and 191 of Corporations Act 2001 (Cth) were breached by non-disclosure of personal interest in a transaction by directors of company
DAMAGES – assessment of damages for loss of opportunity – quantifying damages
EVIDENCE – discussion of principle in Jones v Dunkel  HCA 8; (1959) 101 CLR 298 – application of ss 69, 135, 183 of the Evidence Act 1995 (Cth)
CROSS CLAIM – whether the applicants made misleading or deceptive representations – application of s 52 of the Trade Practices Act 1974 (Cth)
TORTS – Negligence – Causation – Pre-existing injuries
EVIDENCE – Credibility – Video Surveillance – disclosure to plaintiff
INDUSTRIAL LAW – Whether appellant contravened s 343 of the Fair Work Act 2009 (Cth) – Meaning of ‘intent to coerce’ – Elements required to establish requisite intent – Whether deliberate avoidance of a legislative policy may constitute ‘illegitimate conduct’ – Operation of statutory presumption raised by s 361 of the Fair Work Act 2009 (Cth) – No contravention made out.
INDUSTRIAL LAW – Whether appellant took adverse action in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth) against employees of an independent contractor – Construction of Item 4 of s 342(1) of the Fair Work Act 2009 (Cth) – Meaning of ‘independent contractor’ – Whether appellant ‘proposed to enter into a contract for services’ with independent contractor – No contravention made out.
INDUSTRIAL LAW – Whether the Fair Work Act 2009 (Cth) provides for the imposition of civil pecuniary penalties on the Crown – Whether the State of Victoria is a ‘body corporate’ within the meaning of that word in s 546(2) of Fair Work Act 2009 (Cth) – Inapplicability of the proposition in Cain v Doyle  HCA 38; (1946) 72 CLR 409 to determining amenability of the Crown to modern civil pecuniary penalties – Whether inappropriate as a matter of principle to impose a pecuniary penalty on the Crown – Crown amenable to civil pecuniary penalties – State of Victoria is a ‘body corporate’ in requisite sense.
PRACTICE AND PROCEDURE – Application by appellant to withdraw concession made at trial – Proposal to introduce “business records” within the meaning of s 69 of the Evidence Act 1995 (Cth) to remedy evidentiary lacuna – Application refused.
CONSTITUTIONAL LAW – Whether appellant exceeded the limits of Victorian State executive power by “adopting and promulgating” code and policy for the Victorian building and construction industry – Nature of executive policy-making – Discussion of implication of Williams v Commonwealth of Australia (2012) 248 CLR 156 for exercise of executive power by States – Capacity of the executive branch of a State to enter into contracts.
PRACTICE AND PROCEDURE – Declaratory relief sought pursuant to ss 21 or 23 of the Federal Court Act 1976 (Cth) that Victorian executive policies were invalid – “Adoption and promulgation” of policy did not give rise to justiciable controversy – No legal, equitable or statutory right affected – Relief refused.
CORPORATIONS – duties of responsible entity of managed investment scheme under s 601FC – duties of officers of responsible entity under s 601FD
STATUTORY DUTY TO ACT IN BEST INTERESTS OF MEMBERS – meaning of “best interests of members” – whether best interests of members is subjective or objective – duty of undivided loyalty to members of scheme – conflict of interests – conflict of interest and duty – duty to give priority to members’ interests –care and caution required where conflicts exist
STATUTORY DUTY TO EXERCISE CARE AND DILIGENCE – standard of care – standard of care for directors of a responsible entity acting as a professional trustee – failure to consider effects of amendment to scheme constitution – failure to consider whether legitimate reasons for amendment – failure to be satisfied as to power to make amendments – reliance on legal advice – reliance on unusual and uncertain legal advice – failure to comply with scheme constitution and Act – failure to properly consider effect of amendments on members’ rights and interests – failure to identify conflict of interests – failure to consider how to appropriately resolve conflicts – duty to prioritise members’ interests – obligation to revisit decisions previously made
STATUTORY DUTY NOT TO MAKE IMPROPER USE OF POSITION TO GAIN ADVANTAGE – meaning of “to gain” and advantage or “to cause” detriment – meaning of improper use
STATUTORY DUTY TO TAKE ALL REASONABLE STEPS TO COMPLY WITH SCHEME CONSTITUTION – scheme constitution contractually binding – scheme constitution not inconsistent with Act – scheme constitution qualifies statutory power to amend
MEMBERS’ RIGHTS – whether right to have scheme administered according to existing constitution is a “members right” under s 601GC – failure to consider members’ right to have scheme administered according to existing constitution – amendment invalid as outside power – whether amendments made outside power become valid once lodged with ASIC
RELATED PARTY TRANSACTION IN MANAGED INVESTMENT SCHEME – breach of s 208 (as modified) of responsible entity – involvement of officers of responsible entity in breach of s 208 – essential elements of the prohibition in s 208 – whether s 208(3) is an exception to the prohibition – officers’ honest belief that constitution contain provision allowing payment
LODGEMENT OF AMENDMENTS TO SCHEME CONSTITUTION – whether lodgement of consolidated scheme constitution is sufficient under s 601GC – whether lodgement of amendments themselves is required
COMPANY PROCEDURE – decision-making by meeting of directors – obligation to clearly express will in meeting of directors – obligation to ensure expression of will is clearly recorded – whether conduct amounts to or conveys assent to a resolution
DEEDS – when does an undated deed come into effect – intention of the parties to the deed – intention by reference to statutory framework
EVIDENCE – admissibility of Police Event Record document – whether document is a business record
EVIDENCE – admissibility of police event record – hearsay – whether document is a business record – whether document constitutes an admission
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – appeal against convictions – multiple offences of acts of indecency and sexual intercourse with a young person – whether jury adequately directed – impact of DNA evidence – failure to direct about opportunity to commit offences – inadequate redirection on significance of complaint evidence – absence of directions about significance of claim of sexual intercourse while appellant asleep or intoxicated – appeal upheld and new trial ordered.
APPEAL – appeal against refusal to stay prosecution – Human Rights Act 2004 (ACT), s 22(2) – right to be tried without unreasonable delay – identification of point from which delay to be assessed – long delay between alleged offences and charging of appellant – appellant unaware of possible proceedings – information sworn but not acted on for some years – earliest point is when accused person arrested or served with summons – delay before appellant charged irrelevant in assessing unreasonable delay – significance of prejudice in assessing whether delay unreasonable – appeal dismissed.
EVIDENCE – Admissibility – Documents and materials used by expert witnesses in the course of preparing expert opinions – Documents and materials provided to expert witnesses in the course of preparing expert opinions – Court’s discretion to exclude evidence – Evidence Act 2008 (Vic), ss 55, 56, 69, 76, 79, 135(c), 136 – Civil Procedure Act 2010 (Vic) ss 1, 8, 9, 49(3)(g).
PROCEDURE – costs – whether there should be any departure from the usual rule as to costs – whether successful party should be deprived of a costs order – whether indemnity costs order should be made against unsuccessful party and non-party – indemnity costs orders made
PROCEDURE – costs – motion seeking order against non-party – leave granted
EVIDENCE – tender of business records – question of authenticity – authenticity not established – s 69 of the Evidence Act 1995 – relevance – s 70 of Civil Procedure Act 2005 – relevance – documents not admissible
NEGLIGENCE – personal injury – plaintiff injured by breakage and collapse of office chair – claim against manufacturer and importer – previous returns of chairs with broken bases – defendant on notice of risk of breakage – breach of duty established.
DAMAGES – personal injury – collapse of office chair – low back injury – disc injury at
L4-5 – surgical fusion – severe permanent low back pain – depression and anxiety – substantial impairment of earning capacity.
CONTRACT – breach of contract – sale of office chair to employer – employer settling claim by injured employee – claim by employer against retailer of chair for settlement amount – rule in Hadley v Baxendale – loss too remote – not recoverable.
TRADE PRACTICES – claim under ss 74B and 74D of the former Trade Practices Act 1974 (Cth) – Breakage and collapse of office chair causing personal injury – such claim limited to goods for personal, domestic or household use – office chair not covered – claim fails.
INSURANCE – product liability – office chair – breakage and collapse causing personal injury – policy covering manufacturer and importer – exclusion clause excluding claims arising from design of product – excluding claims arising from warranty implied by law – whether claim excluded by exclusion clause.
EVIDENCE – Admissibility – Hearsay evidence – Business record exemption under s 69 of the Evidence Act 2008 (Vic) (“Act”) – Representation was hearsay evidence in business record – Whether representation must also comply with s 78 to be admitted – Opinion evidence – Section 78 of the Act provides that rule excluding evidence of opinion does not apply to certain “non-expert opinions” – Basten JA in Jackson v Lithgow City Council  NSWCA 136 - referred to and applied – Representation and “asserted fact” relied upon not defined – Precise authorship of business record not established – Inability of Court to apply statutory exceptions to hearsay and determine admissibility in such circumstances – Business record not admitted into evidence even though potentially relevant – Witnesses meeting notes contained opinion – Lithgow City Council v Jackson  HCA 36 referred to and applied – Meeting notes admitted for a limited purpose.
PRACTICE AND PROCEDURE – Application for stay of execution of judgment pending hearing of appeal – Judgment for mortgagee to recover possession of family home –Stay sought on the basis of special circumstances – Special circumstances alleged to be inadequacy of damages on the basis of sentimental attachment to family home – Sentimental attachment alone insufficient to create special circumstances – Absence of other evidence proving special circumstances – Other factors weighing against grant of stay – Application denied – Landmark Operations Ltd v J Tiver Nominees Pty Ltd  SASC 14 and Johnson v Cressy  VSCA 123 applied – County Court Act 1958, s 74(4).
EVIDENCE – admissibility – police report of motor vehicle accident – whether admissible as a business record – whether charges of negligent driving and failing to provide particulars are criminal proceedings – whether report admissible as prior inconsistent statement
EVIDENCE – admissibility of business records – admissibility of books kept by a body corporate – need for precise identification of relevant representation or matter.
CONTRACTS – construction – surrounding circumstances – whether clause is ambiguous or susceptible of more than one meaning – scope of permissible extrinsic material to aid in construction.
CONTRACTS – construction – dependency of rights and obligations – whether plaintiff’s entitlement to seek particular rights under a contract are dependent on it having fulfilled particular obligations – whether plaintiff is taking advantage of its own wrongdoing.
CONTRACTS – construction – particular clauses – whether plaintiff has exercised reasonable endeavours – whether plaintiff has acted in good faith.
Contempt of Court – Alleged breach of temporary restraining orders – Meaning of orders and charges – Whether “free access” to building sites prevented, hindered or interfered with by large static groups of people – Whether defendant industrial association caused or procured the attendance or conduct of the groups of people – Charges established beyond reasonable doubt – Findings of contempt made – Supreme Court (General Civil Procedure) Rules 2005, Order 75
BANKRUPTCY – application to annul – whether sequestration order “ought not to have been made” – whether first respondent a creditor of the applicant – whether creditor’s petition based on a final order – solvency – discretion not to annul – relevant considerations – annulment refused.
EVIDENCE – leave granted for first respondent to re-open its case to admit further evidence located after judgment reserved – use of evidence limited.
ASSOCIATIONS AND CLUBS – Incorporated Associations – meetings – whether to hold a meeting at a particular venue – injunction sought – application dismissed
ASSOCIATIONS AND CLUBS – Incorporated Associations – jurisdiction of the Court to intervene in internal affairs of association – principles for court intervention
ASSOCIATIONS AND CLUBS – Incorporated Associations – meetings – power to call meeting – provisions in constitution
ASSOCIATIONS AND CLUBS – Incorporated Associations – membership – inadequate records – renewal of membership
EVIDENCE – objections to evidence – defendant seeks to tender responses to a survey – relevance – hearsay – prejudice
ADMINISTRATIVE LAW – natural justice – rule against bias – apprehended bias – test for – actions of Commissioner of Independent Commission Against Corruption in course of a public inquiry – ADMINISTRATIVE LAW – bias by prejudgment – public inquiry by Independent Commission Against Corruption into granting of Mining Exploration Leases – contact between Commissioner and Departments of Government – provision of legal advice by Commissioner to Departments of Government – request by Commissioner that project approval not be granted until report made by Commission – statements by Commissioner that no factual findings yet made – application for injunction against Commissioner by potential beneficiary if Mining Lease granted – INDEPENDENT COMMISSION AGAINST CORRUPTION – significance of broad investigatory and inquisitorial functions and powers – how principles of apprehended bias by a prejudgment apply to such a body – whether contact with government bodies by a Commissioner and provision of advice provided basis for claim of bias by prejudgment – no basis for claim of bias by prejudgment established.
EVIDENCE – Re-examination – Proper scope of re-examination – Whether evidence not given in examination in chief can properly arise in re-examination – Particular facts of the representation made
EVIDENCE – Exception to hearsay rule – Where maker of representation overseas – Whether reasonable efforts to secure witness had been made – Whether notice requirements in s 192(2) of the Evidence Act 1995 (Cth) complied with
EVIDENCE – Discretion to exclude – Whether evidence unfairly prejudicial when hearsay adduced in re-examination – Whether such evidence should be the subject of a direction under s 135 or s 136 of the Evidence Act 1995 (Cth)
EVIDENCE – Witnesses – Unfavourable witness – Evidence Act 1995 (Cth) s 38 – Whether a party should call a witness to disprove an unfavourable statement adduced by hearsay
EVIDENCE – Discretion to exclude – Whether evidence unfairly prejudicial when maker of the representation is not available for cross-examination
APPEAL – error in process of fact finding – failure to examine all material relevant to central issue – new trial required
CONTRACT – whether transaction loan to appellant or investment in third party company – whether respondents’ case contrary to compelling inference
CONTRACT – post-contractual conduct – letter from respondents’ solicitor to third party – whether letter contained admissions adverse to respondents’ interests
EVIDENCE – whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness – client legal privilege – where respondents gave evidence at trial about solicitor’s advice – whether respondents waived privilege by acting inconsistently with maintenance of privilege
EVIDENCE – admissibility – hearsay – business records exception – email from a supplier to a former customer indicating the final date a particular chemical was supplied – evidence constituted a previous representation made in the course of business – the content of the representation and the time gap between the email exchange and the commencement of proceedings do not indicate proceedings were contemplated at the relevant time.
EVIDENCE – admissibility – court’s general discretion to exclude evidence – inappropriate to exercise discretion where evidence carries significant probative value and is unlikely to mislead, confuse, waste time or cause unfair prejudice.
TRADE PRACTICES – cartel conduct – bid rigging – requirement of a request for bids – requirement of a provision with the purpose of ensuring that one party bids but another party does not – requirement of a contract, arrangement of understanding – requirement that parties to bid rigging arrangement be in competition with one another – exception where arrangement concerns the acquisition of shares in a body corporate – conduct engaged in outside of Australia – accessorial liability – Competition and Consumer Act 2010 (Cth), Pt IV, Div 4
TRADE PRACTICES – misleading or deceptive conduct – misleading or deceptive conduct by silence – whether necessary to adduce evidence of reliance upon representations – conduct engaged in outside of Australia – accessorial liability – proportionate liability – Competition and Consumer Act 2010 (Cth), Sch 2, Pt 2-1
EVIDENCE – admissibility – where letter written by party’s solicitor to insurer – party not the author of the letter and made no representations by or in it – letter not admissible to prove the truth of the the previous representations made by its author – letter not admissible to prove suggested admission by party.
EVIDENCE – business records exception to hearsay rule – application of rule to documents created in contemplation of proceedings – Evidence Act 1995 (Cth) s 69(3) – investigation by European Commission – relationship between Commonwealth and ACCC for the purpose of determining parties to proceedings
EVIDENCE – discretion to exclude – inability to cross examine author of business record
EVIDENCE – Admissibility – business records – whether publication produced by business for promotional purposes is a record of the business
NEGLIGENCE – duty of care – breach of duty – workplace accident – whether facts found by judge adequate to support findings of negligence and decisions on apportionment between tortfeasors and absence of contributory negligence – NEGLIGENCE – damages – future economic loss – whether findings on likely time of return to work and quantification of lost earnings supportable – whether award for non-economic loss should be increased to reflect current prescribed damages – EVIDENCE – workplace accident report – no evidence of authorship – whether report admissible – whether admitted “only against” one defendant
EVIDENCE – Admissibility – relevance – whether evidence of matters that pre-date and post-date the matters pleaded are nonetheless relevant to proving pleaded matters – whether evidence of matters that occurred in markets other than the markets pleaded are nonetheless relevant to proving the matters pleaded
EVIDENCE – Admissibility – hearsay – whether perceptions of perceptions are admissible – whether question arises
EVIDENCE – Admissibility – hearsay – whether documents relevant for a non-hearsay purpose
EVIDENCE – Admissibility – relevance – documents of uncertain status – whether relevant
EVIDENCE – Admissibility – draft and non-final documents – whether admissible
EVIDENCE – Admissibility – relevance – whether documents relevant to case as pleaded
EVIDENCE – Admissibility – relevance – whether documents concerning alleged conspirators not at trial are relevant to the allegations made against those who are – whether use of such documents is coincidence reasoning – discussion of the matters that such documents might be used to prove
EVIDENCE – Admissibility – business records – whether minutes of meetings of an organisation that represents businesses are business records of the businesses or, alternatively, the organisation – whether representations made therein are made ‘in the course of, or for the purposes of, the business’ of each member business or, alternatively, of the organisation – whether document must belong to the entity to whose business the document relates – whether minutes discovered on the computer networks of a business are ‘belonging to or kept by’ the business
EVIDENCE – Admissibility – business records – whether statements of opinion in business records are admissible
EVIDENCE – Admissibility – relevance – authenticity – whether document’s authenticity must be proved for the document to be admissible – whether inferences as to authenticity may be drawn from the document itself – whether National Australia Bank v Rusu  NSWSC 539; (1999) 47 NSWLR 309 should be followed
NEGLIGENCE – duty of care – plaintiff slipped on grease on surface of car park – escaped from grease trap under control of building manager – content of duty of care owed by car park operator to avoid risk of slipping on car park surface – whether hourly inspections would have prevented accident – grease trap alarm system known to be faulty – content of duty of care owed by building manager – whether regular inspections of grease trap would have prevented accident
NEGLIGENCE – apportionment – whether primary judge erred in concluding car park operator primarily at fault as best placed to deal with risks and safety
EVIDENCE – admissibility – whether primary judge erred in rejecting tender of documentary evidence – tendering party’s obligation to make clear purpose and basis of tender – ordinarily no “improper” rejection of evidence if grounds which would justify tender not argued before primary judge.
PROCEDURE – amendment – joinder – oral application to amend and join additional party – no notice of motion served – challenge to exercise of discretion to dispense with filing and service of notice of motion and to grant leave to amend – no House v The King error – Civil Procedure Act, s 64
EVIDENCE – Hearsay – Police information report – Business records exception – Section 69 Evidence Act 2008 .
CONTRACT – principal and agent – authority of agent – whether sufficient evidence to find agent had authority to incur liability under contract
EVIDENCE – admissibility – hearsay – business records – email purportedly sent by company officer – whether proof of officer’s authority to order goods on behalf of company
“18. By reason of s 161 of the Evidence Act 1995 , that email is to be presumed, in the absence of evidence suggesting the contrary, to have been sent by DIAG. Utilising the power conferred by s 183 of the Evidence Act to draw inferences, it should be inferred that a copy of that email was retained by DIAG, for at least a short period, as part of the records of its business. As a result, it can be concluded that the document in evidence is a copy of a business record of DIAG within the meaning of s 69 of the Evidence Act .”
EVIDENCE – admissibility – statements in letters marked ‘without prejudice’ – letters sent between solicitors for persons who are not parties to or witnesses in the proceeding to solicitors for a bank – representations in the communications relevant to issue in the proceeding – no attempt to negotiate settlement of a dispute – letters not excluded by ‘without prejudice’ privilege – whether letters excluded from evidence by the hearsay rule – whether letters are ‘business records’ – whether business record exclusion to hearsay rule permits reception in evidence of the letters – Evidence Act 2008 (Vic), ss 59, 69 and 131.
PRACTICE AND PROCEDURE – Applications to tender documents in course of trial – Rulings on tenders.
PERSONAL INJURY – supply of contaminated food – Salmonella poisoning – factual contest as to source of supply.
INSURANCE – double insurance – contribution – whether sufficient to only show reasonable compromise – whether common insured an “owner” of vehicle – whether “injury” established – whether compromise reasonable so as to entitle Plaintiff to contribution – recoupment.
ss 4(1)(f) of Part 2 of the Dictionary to the Evidence Act
Detailed rulings as to specific applications to tender documents.
EVIDENCE – Expert evidence – Expert’s reports – Rules of court as to admissibility of expert’s reports – Rule 31.28 of Uniform Civil Procedure Rules 2005 (NSW) – Whether “exceptional circumstances” exist supporting the admissibility of expert’s reports – Whether substantial prejudice exists preventing the admission of expert’s reports.
EVIDENCE – Tender of MYOB records – Whether sufficient evidence exists to establish how MYOB records were prepared – Whether business records under s 69 of Evidence Act 1995 (NSW).
Evidence – expert report – relevance of expert reports to issues in the proceedings – proof of assumption rule – whether underlying assumptions admissible as part of business records or as admissions
CORPORATIONS – Opes Prime Schemes of Arrangement – cl 7.2 of the Schemes – Established Securities Claim – “their Deposited Securities” – “otherwise associated with”
EVIDENCE – whether Panopus’ Scheme Claim inadmissible on grounds of hearsay – whether portfolio statements, correspondence and an Assignment deed admissible as business records – failure to call director of Panopus to give evidence – Jones v Dunkel inference – onus of proving an exception applies
PRACTICE AND PROCEDURE – Reference of papers to Attorney-General – evidence adduced in proceedings discloses potential commission of criminal offences by plaintiffs’ principal – Court has discretion to refer papers to Attorney-General – in exercising discretion Court considers objective seriousness of offence, utility of any prosecution and consequences of offence – offences in question objectively serious but had little harmful consequence – papers not referred.
(NSW) Evidence Act 1995, s 69
(CTH) Evidence Act 1995, s 69
PRACTICE AND PROCEDURE – consideration of an application to admit into evidence representations contained in a document said to fall within the notion of a business record for the purposes of s 69 of the Evidence Act 1995 (Cth) – consideration of s 135 and s 136 of the Evidence Act 1995 (Cth)