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)
EVIDENCE – hearsay rule – exceptions – business records – whether documents met requirements in s 69(2) of the Evidence Act 1995 (Cth) – where documents obtained by employee of institution without permission of that institution – where employee had knowledge of record – keeping system – where documents had significant details concerning applicants’ activities and identity – documents met requirements of s 69 of the Evidence Act 1995 (Cth) – documents admissible
EVIDENCE – admissibility – improperly or illegally obtained evidence – whether documents illegally obtained – where manner in which documents obtained was contrary to Liechtenstein but not Australian law – where duty of confidence is not relevant factor – where respondent not party to manner in which documents obtained – documents not illegally obtained by respondent – documents admissible
Evidence Act 1995 (Cth) ss 69, 138,
COSTS – security for costs – considerations relevant to the Court’s discretionary power to order payment of security for costs – respondent outside the Court’s jurisdiction – no evidence that the respondent intends to return to Australia – respondent’s cross-claim seeking large amount – where the cross-claim is a claim in itself – whether a cross-claim is purely defensive – apparent strength and bona fides of the cross-claim – quantum – Federal Court of Australia Act 1976 (Cth) s 56 – Federal Court Rules 2011 r 19.01 – jurisdiction to order security – Federal Court of Australia Act 1976 (Cth) s 57 – Federal Court Rules 2011 r 19
Evidence Act 1995 (Cth) s 69
CRIMINAL LAW – verdict – appeal against conviction – whether conduct of trial by counsel resulted in miscarriage of justice – trial counsel failed to lead medical evidence of deceased’s mental health – trial counsel failed to cross-examine on material in medical records – trial counsel failed to call witnesses – whether appellant lost an opportunity of acquittal that was fairly open to the jury – no reasonable explanation for trial counsel’s failure to lead medical evidence and cross-examine on medical records – reasonable explanation for failure to call witnesses – no miscarriage of justice – appeal dismissed
CRIMINAL LAW – joint criminal enterprise – whether trial judge erred in leaving a joint criminal enterprise open to the jury as an alternative basis for liability – no evidence to support a joint criminal enterprise – trial judge wrongly put the alternative case on joint criminal enterprise to the jury
CRIMINAL LAW – verdict – appeal against conviction – directions of trial judge – whether trial judge erred in directions on self-defence and defence of another – whether trial judge erred in directing the jury in relation to admission by witness
CRIMINAL LAW – interlocutory proceedings – s 192A Evidence Act 1995 – advanced rulings and findings – admissibility and use of evidence
CRIMINAL LAW – particular offences – offences against the government – conspiracy to defraud the Commonwealth – s 29D and s 86(1) Crimes Act 1914 – s 135.4(5) Criminal Code Act 1995
PRACTICE AND PROCEDURE – Leave to tender additional documents not included in Court Book – Amendment of pleadings
PRACTICE AND PROCEDURE – Evidence Act ss 69, 78 and 79 – evidence – opinion evidence – business records.
Evidence Act 1995 (NSW) – s 69, s 78, s 79
EVIDENCE – Admissibility – discretion to exclude or limit the use of evidence – probative value of evidence – prejudicial nature of evidence.
7 Senior Counsel for Balaji submitted that none of this matters because the correspondence is admissible pursuant to s 69(2) of the Evidence Act 1995 (Cth) (the Evidence Act) and that no submission has been made on behalf of Traxys that it should be excluded on some discretionary basis (eg pursuant to s 135 of the Evidence Act).
8 I am entitled to look at the documents in Annexure “VA1”in order to decide whether or not they should be admitted pursuant to s 69 of the Evidence Act. It seems to me that the documents do meet the requirements of subs (2) of s 69. I say this because, on their face, they appear to be documents maintained by Balaji as part of its ordinary business records (see s 183 of the Evidence Act) and, insofar as those letters generated by Balaji itself are concerned, appear to have been generated by a person with the requisite knowledge. The same may be said of the letters emanating from Concast.
9 For these reasons, I propose to admit the correspondence comprised in Annexure “VA1” to Mr Agarwal’s first affidavit. In so doing I say nothing about the weight that will be given to those documents when I come to consider the substantive decision or decisions which I have to make in the present litigation.
12 It is incumbent upon the party tendering a document which is said to constitute a binding contract such as the Share Sale Agreement to authenticate its execution by calling a witness who can testify as to that matter or by otherwise satisfying the Court that the document was executed as it appears to have been. In the present case, I am not satisfied that Balaji has discharged that proof. The correct approach to a matter such as this was discussed by Nicholas J in Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) (2011) 280 ALR 97 at –, particularly at –. As Bryson J said in National Australia Bank Ltd v Rusu  NSWSC 539; (1999) 47 NSWLR 309 at  (p 312), at its simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made. Proof of authenticity in this sense means proof that the relevant document is what it purports to be. Section 149 of the Evidence Act ameliorates the position as far as the evidence of attesting witnesses is concerned but does not otherwise affect these basic propositions.
25 Senior Counsel for Balaji submits, however, that the document is admissible because s 150 of the Evidence Act makes it admissible. In addition, Senior Counsel for Balaji submits that I should revisit the previous ruling which I made rejecting the alleged Agreement (Ruling 4) for the same reason, that is to say, that s 150 of the Evidence Act makes the document admissible. …
27 In Pt 1 of the Dictionary in the Evidence Act, “seal” is defined as including a stamp. Annexure “VA2A” has the seal of a notary from Calcutta affixed to it. Initially, Senior Counsel for Balaji relied upon that fact as assisting the admissibility of the document but, upon more mature reflection, accepted that that circumstance did not take the matter as far as he needed to take it.
28 The critical submission ultimately made was that the document has affixed to pages 1, 2 and 3 a stamp which appears to be either the Common Seal of Balaji or at least a stamp containing the name of Balaji and that, at the point where the document required execution, the following appeared:
29 It is apparent, therefore, that there is a stamp (not the same stamp as appears on pages 1, 2 and 3 of the document but, nonetheless, a stamp) at the point where the document was required to be executed by Balaji, together with the signature of Mr Sharma as its Director. It appears, therefore, that there was an imprint of a seal of Balaji on the document, which is Annexure “VA2A” to the second affidavit. It also appears that Balaji is a body corporate established by a law of a foreign country (namely, India).
30 It, therefore, appears that the presumption raised by s 150(1) of the Evidence Act is raised in the present case. That presumption is a presumption to the effect that the imprint is the imprint of the corporate seal and that the document was duly sealed as it purports to have been sealed.
CORPORATIONS – management and administration – directors – fiduciary duties of directors – where loan account in director’s favour established in company’s books – where to director’s knowledge there was no entitlement of the director to funds represented by the loan account – drawings by director against loan account – whether breach of fiduciary duty – whether fraudulent breach – CORPORATIONS – informed consent of company to breach of fiduciary duty – where one shareholder given by constitution power to pass any resolution at a general meeting – assent by that shareholder apart from general meeting – whether effective – ESTOPPEL – prior adjudication – where creation of loan account and drawings on it had been the subject of findings in earlier oppression proceedings – whether res judicata – whether issue estoppel – whether existence of issue estoppel precludes reception of further evidence – ESTOPPEL – prior adjudication – effect on non-party – whether non-party privy or agent of party – EVIDENCE – judicial discretion to limit use – relevance of inability to cross-examine because witness not called – REAL PROPERTY – co-ownership – joint tenants – whether fraud of one joint tenant in taking of title jointly affects other joint tenant – where first joint tenant later transferred his interest to second joint tenant – nature of the sole registered proprietor’s title under Real Property Act – TORRENS SYSTEM – fraud exception to indefeasibility of registered estates – nature of relevant fraud – EQUITY – equitable defences – laches – elements of defence – LIMITATION OF ACTIONS – proceedings for equitable relief – equity seeks analogy with the law – fraudulent breach of fiduciary duty – analogy with tort of deceit or conspiracy to defraud – no analogy with trusteeship if trust property not held – relevance of incapacity
Evidence Act 1995, ss 69, 91,136
Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Whether records belonging to or kept in the course of, or for the purposes of a business.
Tubby Trout Pty Ltd v Sailbay Pty Ltd (1992) 42 FCR 595, applied.
Evidence Act 2001 (Tas), s69.
Aust Dig Evidence 
Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Whether reasonable cause for non–compliance with a request to call as a witness the maker of a representation.
Evidence Act 2001 (Tas), s169.
Aust Dig Evidence 
Criminal Law – Particular offences – Offences against the Government – Other offences – Conspiracy to defraud by deflection a public officer from public duty – Public duty.
Tasmania v Lin  TASSC 14; Herscu v R  HCA 40; (1991) 173 CLR 276, referred to.
Living Marine Resources Management Act 1995 (Tas).
Fisheries (Rock Lobster and Giant Crab) Rules 2001 (Tas).
Aust Dig Criminal Law 
Criminal Law – Procedure – Verdict – Alternative verdicts – Particular cases – Alternative charges of similar gravity – If guilty on either charge the jury should give its verdict on that charge alone.
R v Seymour (1954) 38 Cr App R 68, applied.
Stanton v R  HCA 29; (2003) 77 ALJR 1151, referred to.
Aust Dig Criminal Law 
Evidence – Admissibility – Opinion evidence – Section 78 of Evidence Act 1995 (NSW) (“Act”) provided that rule excluding evidence of opinion does not apply where “opinion is based on what the person saw, heard or otherwise perceived about a matter or event” and evidence “is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event” – Respondent found unconscious and injured in drain – Respondent conceded appellant only liable if respondent fell from vertical retaining wall – Ambulance record contained representation “? Fall from 1.5 metres onto concrete” – Whether representation was admissible under s 78 of Act as opinion that respondent fell from vertical retaining wall.
Evidence – Admissibility – Hearsay evidence – Business records exception under s 69 of Act – Representation was hearsay evidence in business record – Whether representation must also comply with s 78.
Negligence – Causation – Whether circumstantial inferences sufficient to establish causation.
Evidence Act 1995 (NSW), ss 69, 78.
EVIDENCE – documents contain statement of land value by Valuer-General – (NSW) Evidence Act s 156 does not provide for admissibility of public documents – whether documents business records – business includes activity engaged in or carried on by the Crown in any of its capacities – document a business record falling within business records exception to the hearsay rule – whether if hearsay rule does not apply document containing opinions may be excluded by opinion rule – prevailing view that opinion rule applies to business records – document containing opinions based on specialised knowledge, training, study or experience admissible – general discretion to exclude evidence – Makita principles do not apply to render business records containing opinions inadmissible -circumstances include Valuer-General not available for cross-examination, plaintiffs to call other valuation evidence, defendant serves no valuation evidence, notice of valuation does not reveal rationale – evidence unfairly prejudicial to defendant and discretion exercised to exclude.
(NSW) Evidence Act 1995, s 69, s 76, s 79, s 156, Dictionary Pt 2.