Category Archives: s. 069

Smythe v Burgman (No 2) [2015] NSWSC 298 (25 March 2015)

TORTS – alleged medical negligence resulting in amputation of leg – whether general practitioner ought to have diagnosed arterial ischaemia notwithstanding atypical presentation – relevance of subsequent detection of abnormal pulses to determination whether defendant checked pulses and found them to be normal at first examination – whether amputation would or could have been avoided if ischaemia diagnosed at first examination – insufficient evidence to assess the value of chance of avoiding amputation if earlier diagnosis made
CREDIBILITY OF WITNESSES – evidence of usual practice – inferences from clinical notes – importance of timing of versions given by plaintiff compared with contemporaneous business records

Caltex Australia Petroleum Pty Ltd v Troost [2015] NSWCA 64 (23 March 2015)

GUARANTEE AND INDEMNITY – construction of indemnities – whether a section of a loan application form entitled “Guarantee and Indemnity by Directors”, which was divided into two columns with two signature blocks, gave rise to both a guarantee and an indemnity where only one signature block was signed – whether, therefore, the appellant was bound by the indemnity

GUARANTEE AND INDEMNITY – discharge from indemnities – whether a material variation of the terms of the principal obligations discharged the appellant in circumstances where the principal contract contemplated amendment – whether the creditor’s failure to perfect security for the debtor’s indebtedness discharged the appellant – whether the creditor’s unilateral increase of the credit limit and its granting of extensions of time to the debtor discharged the appellant

GUARANTEE AND INDEMNITY – discharge from indemnities – whether the appellant’s liability was limited by reference to his time as a director, in circumstances where the appellant signed the indemnity in his capacity as a director

McDougall v Johns [2014] ACTSC 351 (18 December 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appellant’s licence disqualified in Magistrates Court proceedings – leave to appeal out of time granted – appellant claimed to have delivered notice of appeal to court registry – police observed appellant driving during original licence disqualification period – appellant charged with driving while disqualified –whether delivery of notice of appeal would have stayed disqualification – whether reference to “duly instituted” appeal required notice of appeal to have been noted in court records or served on other party – conviction and sentence set aside.
EVIDENCE – General – appellant charged with driving while licence disqualified despite evidence of delivering notice of appeal against Magistrates Court orders effecting disqualification – court registry had no record of receiving notice of appeal – no evidence of court registry systems or searches – whether there was evidence of notice of appeal having been delivered to court registry – absence of challenge to appellant’s evidence that notice of appeal had been delivered – conviction and sentence set aside.

Lancaster v The Queen [2014] VSCA 333 (17 December 2014)

CRIMINAL LAW – Indecent acts with a child under 16 years, sexual penetrations of a child under 16 years, make threat to kill – Expert opinion evidence based upon representations in business records – Whether exclusion of business records productive of a substantial miscarriage of justice – Complainant exhibiting sexualised behaviour – Whether result of exposure to sexual conduct or sexual abuse – Risk of misattribution or transference – Whether judge erred in refusing leave under s 342 of the Criminal Procedure Act 2009 to cross-examine complainant – Appeal allowed.

CRIMINAL LAW – Tendency evidence – Sexual interest in complainant – Gentry (a Pseudonym) v The Queen [2014] VSCA 211, applied – Whether anti-propensity warning required – Grech v The Queen [1997] 2 VR 609, discussed – Grech directions qualified.

CRIMINAL LAW – Ostensible bias – Whether undue intervention in trial – Whether judge’s refusal to recuse himself gave rise to apparent bias – Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, applied.

EVIDENCE – Business records – Files maintained by Department of Human Services and other cognate organisations – Expert opinion evidence based on facts recorded in files sought to be tendered by defence – Whether files admissible into evidence as business records under s 69 of the Evidence Act 2008 – Whether contents of files rightly excluded as hearsay – Procedure to be followed – Each entry in files relied upon in expert reports reviewed to determine whether that entry satisfies requirements of admissibility in s 69(2) – Whether representations by person who had personal knowledge of facts – Second-hand or more remote hearsay – Sections 62 and 69 of the Evidence Act 2008 .

Cahill v Kenna; Cahill v Ferrier [2014] NSWSC 1763 (10 December 2014)

EVIDENCE – expert evidence – whether to reject whole of evidence of expert witness where prepared on a basis inconsistent with the impugned valuation – whether evidence was unfairly prejudicial – where excluding evidence would effectively determine the issue of substance to which that evidence was directed

EVIDENCE – expert evidence – whether to reject evidence of valuations prepared for non-litigation purposes – where valuations were business records – whether r 31.23 only applies to reports prepared by an “expert witness” – whether court should “otherwise order” – whether evidence would be unfairly prejudicial – where signatories did not acknowledge obligations under schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)- where signatories not to be called as witnesses – where signatories not involved in preparation of joint expert reports

EVIDENCE – expert evidence – expert valuation of land – whether one expert’s evidence to be preferred – where one expert witness briefed with substantially more information – where other expert prepared a “blind” valuation – where expert town planning advice not available to original valuer – where expert town planning advice nevertheless relied upon by one expert witness – where expert town planning advice speculative

NEGLIGENCE – duty of care – whether mediator and valuer owed a common law duty of care to plaintiffs – whether plaintiffs were vulnerable – where valuer did not know the purpose for which the valuation was to be used – whether reliance is sufficient to establish vulnerability – whether plaintiffs could have protected their own interests – whether valuation negligent – whether valued at highest and best use of the site – whether negligent in valuing property without expert town planning advice – whether no valuer acting prudently and reasonably could arrive at the value in the valuation report – whether mediator negligent in instructions to valuer – whether mediator owed parties in dispute a duty of care in instructing valuer – whether mediator breached duty of care – whether mediator acting in capacity as mediator or separate contract entered into for mediator to instruct valuer – whether mediator protected from liability as acting in capacity as mediator

MISLEADING AND DECEPTIVE CONDUCT – expert valuation of property – whether value attributed to property was misleading or deceptive – whether direct or indirect reliance on valuation – whether the valuation causative of loss

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 (27 November 2014)

DEFAMATION – defences – offer to make amends – requirements of a valid offer – whether offer reasonable in all the circumstances

DEFAMATION – damages – prominent article in major newspaper – imputations attributed to female teacher of sexual impropriety with boys – case of wrongful identification – plaintiff not named in matter complained of but identified by the inclusion of incorrect detail – proper approach for assessing extent of harm – factors aggravating damages

Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596 (13 November 2014)

PROCEDURE – orders sought under the Vexatious Proceedings Act 2008 (NSW) – procedural requirements satisfied – litigious history established by evidence and admissions – vexatious proceedings established – defendant frequently involved in vexatious proceedings – whether orders should extend to cross-claim – orders made

EVIDENCE – documentary evidence – documents in dispute – judgments and transcripts of proceedings – relevance – admissibility – s 91 Evidence Act 1995 (NSW) – proof – s 157 Evidence Act 1995 (NSW) – judgments – whether reasons for judgment are a public document – proof of reasons for judgment pursuant to s 48 of the Evidence Act 1995 (NSW) – hearsay – s 64 of the Evidence Act 1995 (NSW) – judges not compellable to give evidence – s 69 application of business records exception to judgments and reasons

EVIDENCE – application under s 67 of the Evidence Act 1995 (NSW) – direction given

Vella v Minister for Immigration and Border Protection [2014] FCA 1177 (6 November 2014)

MIGRATION – application for review of the Minister’s decision not to revoke a visa cancellation under s 501C of the Migration Act – subpoena issued to the Minister for all material before him at the time of the decision – whether the documents that would otherwise have been required to be produced are protected from production under s 503A of the Migration Act – whether the evidence of the Minister satisfies the preconditions for protection under s 503A

PRACTICE AND PROCEDURE – subpoena – whether the subpoena has a legitimate forensic purpose – whether documents sought by the subpoena in relation to a particular issue cease to have apparent relevance because of a concession or admission, or because other evidence is already available in relation to that issue

Zwanenberg Australia Pty Ltd v Moira Mac’s Poultry and Fine Foods Pty Ltd [2014] FCA 1072 (6 October 2014)

CONTRACTS – Construction

CONTRACTS – Contract for the supply of goods, on order, at unit prices – Prices based on manufacturing and capital costs, with mark-up – Provision for regular adjustment – Whether buyer in breach of obligation to calculate adjustment – Provision for coverage of seller’s fixed manufacturing costs at minimum production – Whether limited by estimate or based on actual costs – How costs referable both to manufacture of products and to seller’s other business to be apportioned – Provision for review of model for coverage of minimum costs – Whether buyer in breach of obligation to review

CONTRACTS – Breach – Whether breach constituted by mere threat that fundamental obligation under contract would not be observed.

CONTRACTS – Repudiation – Whether repudiation established by party’s intimation that it would not observe fundamental obligation unless other party made payment which it was not required to make under contract – Affirmation – Whether constituted by continued dealing under contract in conjunction with the issue of proceedings alleging repudiation

CONTRACTS – Implied Terms – Contract for the supply of goods, on order, at unit prices – Whether buyer’s own decision to cease dealing in goods amounted to breach of implied term of co-operation – Whether term implied on facts of case requiring buyer to continue actively seeking business in relevant area – Whether term should be implied requiring seller to mitigate its costs under the contract

TRADE AND COMMERCE – Negotiation of long-term contract for the supply of goods at prices referable to seller’s costs – Seller giving estimate of costs – Whether representation as to future matter – Whether reasonable grounds existed for making of representation – Whether representee suffered or likely to suffer loss

PRACTICE AND PROCEDURE – Setoff – Whether debtor entitled to set off debt owed by creditor to debtor’s parent company

Edith White v Judith Liane Wills [2014] NSWSC 1160 (22 August 2014)

EQUITY – undue influence – where plaintiff executed a deed not to revoke her will – whether presumption of undue influence arises – whether presumption rebutted – whether improvident transaction – whether plaintiff received independent advice – whether unjust under Contracts Review Act – whether doctrine of suspicious circumstances applies

Ozden and Ozden v Commonwealth Bank of Australia [2014] VSCA 127 (24 June 2014)

LOAN CONTRACT – Mortgage securing appellants’ obligations under three loans – Whether the trial judge erred in admitting a document prepared for the trial as evidence of the amount owing – Whether trial judge erred in authorising the respondent to commence the County Court proceeding with regard to the first loan nunc pro tunc notwithstanding that the notice of default did not comply with the National Credit Code – Whether the respondent’s right to enforcement was limited by a duty to cooperate, act reasonably and act in good faith – Where trial judge considered the totality of evidence in determining the amount owing – Where trial judge correctly exercised discretion in granting leave to commence proceedings nunc pro tunc under s 88(5)(c) of the National Credit Code – Where no breach of duty on the part of the respondent – National Credit Code s 88(5)(c) – Appeal dismissed.

EQUITY – Equitable set-off – Whether the appellant’s cross-claim for damages associated with wrongful retention by the respondent of the title to the marina berth impeaches the respondent’s claim for repayment of the loans – Where the two claims are independent and not sufficiently related – British Anzani (Felixstowe) Limited v International Marina Management (UK) Limited [1980] QB 137 – Eagle Star Nominees Ltd v Merril [1982] VicRp 57; [1982] VR 557 – Appeal dismissed.

DAMAGES – Whether the trial judge erred in assessment of damages for the respondent’s wrongful retention of title to a marina berth – Damages correctly assessed on basis of loss of chance – Where no contract of sale was on foot – Where trial judge did not act on a wrong principle, misapprehend the facts or make an erroneous estimate of damages suffered – CSR Readymix (Australia) Pty Ltd v Payne [1998] VR 505 – Appeal dismissed.

Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625 (16 June 2014)

EVIDENCE – whether previous representations made in certain printouts of emails should be admitted into evidence as business records pursuant to s 69 of the Evidence Act 1995 (Cth) – whether those emails should be excluded in the exercise of the Court’s discretion pursuant to s 135 or s 169 of the Evidence Act – whether the Court should compel the plaintiff to call the authors of the emails pursuant to s 169 of the Evidence Act – whether the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) prohibit the tender of transcripts of recordings of intercepted telephone calls and whether, if not, those transcripts are admissible as business records – whether transcripts of evidence given at a public inquiry conducted by the NSW Independent Commission Against Corruption are admissible as business records – whether a previous statement in writing made by a potential witness out of Court which was created for the purpose of being provided to a television journalist is admissible

Walsh v Walgett Shire Council [2014] NSWSC 812 (11 June 2014)

EVIDENCE – documentary evidence – statutory provisions relating to business records – whether document of WorkCover a ‘business record’ – whether representations in document are made in connection with an investigation – whether investigation must in fact lead to proceedings for exception to apply – application of s 69(3)(b) of the Evidence Act 1995 (NSW)
EVIDENCE – admissibility – whether discretionary reasons for refusing to admit evidence – where evidence in the form of answers to specific questions – where witness not called – application of s 135 Evidence Act 1995 (NSW)

ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65 (6 June 2014)

CONTRACT – breach of contract – contract for provision of financial services – implied warranties in s 12ED of Australian Securities and Investments Commission Act 2001 (Cth) – damages for breach of contract

CORPORATIONS – financial products – breach of Australian financial services licence under s 912A of Corporations Act 2001 (Cth) – meaning of derivative in s 761D(1) of Corporations Act 2001 (Cth) – meaning of debenture in s 9 of Corporations Act 2001 (Cth)

CORPORATIONS – misleading and deceptive statements – whether statements based on reasonable grounds and result of exercise of reasonable care and skill – effect of disclaimers – proportionate liability provisions

CORPORATIONS – rescission – requirements of s 924A of Corporations Act 2001 (Cth) – notice under s 925A of Corporations Act 2001 (Cth) – whether notice given within a “reasonable period”

DAMAGES – causation – remoteness – “rule” in Potts v Miller [1940] HCA 43; (1940) 64 CLR 282 – contributory negligence – statutory damages – measure for damages – apportionment – proportionate liability

EQUITY – fiduciary obligations – informal advisory relationship arising from conduct – whether breach of fiduciary duty – equitable compensation – equitable contribution

INSURANCE – whether insured entity a party to contract of insurance – effect of s 48 of Insurance Contracts Act 1984 (Cth) – duty of disclosure – construction of terms

PRACTICE AND PROCEDURE – entitlement to raise new matters on appeal

STATUTORY INTERPRETATION – whether investment permissible under s 625 of Local Government Act 1993 (NSW) – whether product a security within the meaning of relevant Ministerial order

TORT – whether duty of care owed – negligent misstatement – indeterminate liability – vulnerability – causation – unlawful conduct – effect of disclaimers – contributory negligence

TRADE PRACTICES – misleading and deceptive conduct – whether conduct engaged in “in this jurisdiction” – whether conduct in relation to financial product or financial services – “mere conduit”

Telstra Corporation Limited v Phone Directories Company Pty Ltd [2014] FCA 568 (30 May 2014)

TRADE AND COMMERCE – Trade Practices – misleading or deceptive conduct – misleading or deceptive conduct in the taking of a competitor’s trade indicia – passing off – secondary reputation in the colour yellow on covers of telephone directories – date for assessing reputation in yellow – relevance of international use of colour yellow – whether respondents’ use of yellow covers on telephone directories was misleading or deceptive – identification of the class of consumers – erroneous assumption as to trade source – intention to deceive – failed intention to deceive – relevance of strength of reputation – relevance of use of common trade indicia – sufficiency of differentiation between similar products – whether respondents have done enough to differentiate their directories – conduct not misleading or deceptive
TRADE AND COMMERCE – Trade Practices – misleading or deceptive conduct – advertisements in telephone directories – misleading advertisement regarding comparative consumer usage
COPYRIGHT – unjustifiable threats of copyright infringement – relevance of bona fides – whether threat is groundless or unjustifiable

HP Mercantile Pty Ltd v Clements [2014] NSWSC 509 (2 May 2014)

CONTRACTS – construction – loan agreements – where defendant entered into managed agricultural investment scheme and executed loan agreements with initial managing entity of the scheme – where rights to debt owed by defendant was assigned to plaintiff under sequence of assignments – where plaintiff has demanded repayment of relevant principal sum and interest – whether assignor had incurred harvesting and marketing costs under relevant agreement – whether it can be established that a particular amount is owed by defendant in respect of such costs – whether defendant made income from interest in project available in its entirety to relevant representative under loan agreements – whether limited recourse provision in loan agreement ceased to have effect – whether default occurred under loan agreements.
PROCEDURE – where plaintiff now claims different amount of harvesting and marketing costs from amount originally pleaded on basis of different evidence – no amendment application made – whether defendant would suffer real prejudice by change in plaintiff’s claim.

WORDS AND PHRASES – “income” – “made available”.

Andara Homes Pty Limited v Tai [2014] ACTSC 38 (3 February 2014)

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – Standard home building contract of the Master Builders Association of the Australian Capital Territory – Equitable charge under Contract giving rise to a caveatable interest – Application to extend caveat to further lapsing – Applicant in a proceedings for an application for extension generally required to commence proceedings for the recovery of money as condition of extension – Applicant must give an undertaking as to damaged in an application for extension – Caveat extended by twenty-eight days – Where proceedings seeking payment are commenced in this twenty-eight day period, the caveat is extended until the conclusion of the proceedings so commenced

CONVEYANCING – Land Titles under the Torrens System – Caveats against dealings – Extension of caveat – Need for undertakings as to damages

Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation) [2014] NSWSC 382 (4 April 2014)

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

HP Mercantile Pty Ltd v Clements [2014] NSWSC 290 (19 March 2014)

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.

HP Mercantile Pty Ltd v Clements [2014] NSWSC 213 (6 March 2014)

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.

Mainline Corporate Holdings Ltd v Fexco Merchant Services [2014] FCA 265 (11 March 2014)

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). …

Feldman v Frontlink Pty Ltd [2014] VSCA 27 (3 March 2014)

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 [2013] 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.[8]
[8] Section 69 of the Evidence Act 2008 (Vic).

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 59 (27 February 2014)

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.

Forty Two International Pty Limited v Barnes [2014] FCA 85 (18 February 2014)

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 [1959] 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)

State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 (19 December 2013)

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 [1946] 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.

Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) (No 3) [2013] FCA 1342 (12 December 2013)

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

Nona v R [2013] ACTCA 39 (22 October 2013)

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.

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 29) [2013] VSC 537 (10 October 2013)

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).

Thaler v Amzalak (No 3) [2013] NSWSC 1315 (12 September 2013)

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

Downie and Community Information & Referral Service ACT Inc. v Jantom Company Propriety Ltd, Ex-Government Furniture Propriety Ltd and GIO General Insurance Ltd [2013] ACTSC 171 (29 August 2013)

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.

ICM Investments Pty Ltd v San Miguel Corporation & Anor [Ruling No. 1] [2013] VSC 463 (27 August 2013)

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 [2010] NSWCA 136 [60]-[76] 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 [2011] HCA 36 referred to and applied – Meeting notes admitted for a limited purpose.

Ozden & Anor v Commonwealth Bank of Australia [2013] VSCA 195 (2 August 2013)

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 [2009] SASC 14 and Johnson v Cressy [2009] VSCA 123 applied – County Court Act 1958, s 74(4).

Sydney Attractions Group Pty Ltd v Frederick Schulman [2013] NSWSC 858 (28 June 2013)

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.

Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275 (24 May 2013)

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

Francis v Eggleston Mitchell Lawyers Pty Ltd [2013] FCA 564 (7 June 2013)

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.

Moromilov v Dragicevic [2013] ACTSC 91 (17 May 2013)

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