http://www.austlii.edu.au/au/cases/cth/FCAFC/2013/26.html

ADMINISTRATIVE LAW – whether findings of tribunal open on the evidence – burden of proof – relationship between s 14ZZK(b)(i) Taxation Administration Act 1953 (Cth) and s 43(1) Administrative Appeals Tribunal Act 1975 (Cth) – procedural fairness

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1448.html

BANKRUPTCY – appeal from decision of Federal Magistrate – whether s 121 of the Bankruptcy Act 1966 (Cth) requires that creditor at time of impugned transfer be proving or capable of proving in bankruptcy – whether s 121 of the Bankruptcy Act 1966 (Cth) operated extra-territorially – whether two properties purchased by bankrupt – consideration of principles relevant to required approach to assessment of evidence – whether funds transferred to effect purchases of property would probably have become part of bankrupt’s estate and available to creditors

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

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/201.html

EQUITY – Succession – Family Provision – deceased makes provision for intellectually disabled daughter – Whether provision made is adequate for the daughter’s proper maintenance, education and advancement in life.
PROBATE AND ADMINISTRATION – whether estate has been properly administered – delay in selling estate property – whether orders should be made for the sale of the single asset in the estate, a residential property.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1486.html

TORT – negligence – dangerous recreational activity – whether plaintiff engaged in
- Evidence Act 1995 (NSW) – s 67, s 177

http://www.austlii.edu.au/au/cases/cth/FCA/2011/366.html

INDUSTRIAL LAW – employer and employee – whether interpreters and translators, casual employees or independent contractors – multi-factorial totality test – indicia for distinguishing between an employee and an independent contractor – indicia of a business – indicia as to whose business the activity is performed in and for.

SUPERANNUATION – liability for superannuation guarantee charge – whether employees or independent contractors at common law – whether interpreters and translators were employees within the extended definition of employee in s 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth).

Evidence Act 1995 (Cth) ss 63(2), 67, 68

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1277.html

CRIMINAL LAW – evidence – hearsay – murder trial – witness unavailable (overseas) – previous induced ERISP – whether portions of ERISP admissible.

http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/104.html

EVIDENCE – foreign evidence – application to obtain evidence from Korea for use in Federal Magistrates Court proceeding – whether appellant denied procedural fairness – interpreter present during morning, but absent in afternoon, when hearing continued and judgment given – application adjourned to enable appellant to apply to vacate trial date – application subsequently dismissed because appellant had not so applied – whether appellant failed to understand requirement to apply to vacate trial date before next mention of application – whether appeal court should deal with merits of application when primary judge had not done so – appellant could have made further application once trial date vacated, but did not do so – need to obtain evidence from Korea depends on course taken by respondents at trial in relation to statements of Korean witness in an exchange of emails with appellant and in an affidavit

Evidence Act 1995 (Cth), ss 27, 63, 63(2)(b), 67, 170, 173, 190(1)(b), 190(3), 190(4)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/771.html

INDUSTRIAL LAW – power of entry upon premises – need to comply with an occupational health and safety requirement – entry upon premises for an unauthorised purpose – occupational health and safety requirement

EVIDENCE – witness fails to attend in answer to subpoena – failure to provide “reasonable notice” of intention to rely upon evidence

Evidence Act 1995 (Cth), ss 63, 67

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/605.html

Evidence Act 1995, s 67

[2009] NSWSC 1362

BUILDING AND ENGINEERING CONTRACTS – construction – terms to be implied where contractual documents limited – whether implied term of fitness for purpose – performance – whether design defective – whether caused damage to constructed premises – whether subcontractors made representations to the principal – whether resultant liability of sub-contractors – remedies – damages – quantification – apportionment of damages between defendants – mitigation – whether plaintiff mitigated loss.
TORT – whether duty of care owed – whether plaintiff relevantly vulnerable – scope of duty – whether damage to building properly characterised as economic loss – causation – whether loss complained of caused by design or representations made by defendants – whether plaintiffs’ amendments to design a novus actus interveniens.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/1209.html
EVIDENCE – affidavits and statutory declarations – affidavits – plaintiff seeks to read affidavit of conversation with person unable to be called as a witness – where plaintiff’s solicitor sent letter to defendant’s solicitors purporting to give notice under (NSW) Evidence Act 1995, s 67 of an intention to adduce evidence of previous representation in reliance on s 64(2) – where notice substantially complied in form with requirements of (NSW) Evidence Regulations 2005, reg 4 – where requisite 21 days prior service not complied with – where there would be potential prejudice from inability to investigate – leave to read affidavit refused

(NSW) Evidence Act 1995, s 64(2), s 67, s 68

http://www.austlii.edu.au/au/cases/cth/FCA/2009/606.html
INTELLECTUAL PROPERTY – allegations of passing off, misleading conduct, false representations and infringement of trade marks – whether ordinary consumer could be misled by respondent’s product – whether meaningful to speak of respondent’s get-up

Held: application dismissed

Evidence Act 1995 (Cth) ss 64(2), 67(4)

[2008] NSWSC 811

Contempt
failure to attend and give evidence under subpoena
admission of guilt
mental illness of the defendant
whether imposition of bond suitable
declaration of guilt sufficient

CRIMINAL LAW — inadmissibility of a witness statement taken through an interpreter.
ADMISSIBILITY OF EVIDENCE UNDER S 65 EVIDENCE ACT WHEN THE MAKER IS NOT AVAILABLE — unavailability of persons.

(CTH) Evidence Act 1995 – s 65, 67

[2003] FCA 1263

MIGRATION – judicial review – reasons for decision – cancellation of visa – departmental submission to Minister – decisional option endorsed by Minister – presented as reasons for decision – new set of reasons – tendered without verification by Minister through third party – whether admissible

EVIDENCE – documents – hearsay rule – Commonwealth records – reasons for decision to cancel visa – statutory obligation to produce reasons – tendered as document through party other than maker of decision – not admissible – decision-maker to be available for cross-examination if reasons verified on oath

Evidence Act 1995 (Cth) s 59, s 64, s 67, s 155

[2000] NSWSC 55

On notice given by the defendant pursuant to s 67 of the Evidence Act – ss 62, 63 & 74

[1999] NSWSC 871

EVIDENCE [52] – Admissibility – Hearsay – First hand hearsay – Notice requirements – Whether complied with – Dispensation with.

Evidence Act 1995, ss 59, 63, 67, 135, 136

[2002] NSWCCA 509

CRIMINAL LAW – Appeal against conviction and sentence for murder – plea of not guilty – Crown appeal against leniency of sentence – Form 1 offences – obtain benefit by deception- exception to hearsay – ERISP evidence – admissibility of out of court statement where maker unavailable – statement against interest.

Evidence Act (NSW) 1995 ss 59 62, 65, 67, 135, 137, 165, 192

[2006] NSWCCA 60

appeal against conviction

maliciously inflicting grievous bodily harm

assault occasioning actual bodily harm

admission of evidence over objection

statement tendered at trial pursuant to s65(2)(b) and (c) of Evidence Act 1995

maker of statement unavailable to give evidence

objection taken on grounds of late notice and discretionary factors

no separate objection to content of evidence

whole of statement admitted

whether trial judge erred in admitting statement

- whether trial judge failed adequately to warn jury of the danger of relying on the evidence of the statement

directions to jury adequate to draw attention to any potential unreliability of statement, including those parts now held to have been inadmissible

hearsay provisions of the Evidence Act

exceptions to the hearsay rule

identification of previous representation

identification of what fact was intended to be asserted by previous representation

relevant evidence

evidence of out of court representation by one person cannot be given by out of court representation of another person

evidence of previous representations inadmissible

effect of admission of inadmissible evidence of previous representation

Criminal Appeal Rules, rule 4

whether appellant requires leave before being permitted to argue admissibility of previous representations as a ground of appeal

Criminal Procedure Act s68, s289

appellant waived right to committal hearing

proviso to s6 of the Criminal Appeal Act

admission of the inadmissible evidence would and should have had no significance in verdict

evidence properly admitted proves beyond reasonable doubt guilt of the offence

Evidence Act 1995 s55, s56, s59, s60, s62, s65, s66, s67, s81, s82, s135, s137, s165, s192

[2001] ACTSC 29

CRIMINAL LAW AND PROCEDURE – evidence – whether interview by police tainted by earlier conversation – whether interview unfairly conducted – whether in nature of cross-examination – whether any “cross-examination” by police renders questioning unfair – it does not.

CRIMINAL LAW AND PROCEDURE – evidence – propensity and relationship evidence – tendency evidence and coincidence evidence under ss 97, 98 of the  Evidence Act 1995  (Cth) – rule in Pfennig v The Queen – whether evidence for prosecution on voir dire consistent with innocence – it was not – whether probative value of evidence substantially outweighed its possible prejudicial effect under s 101 of the Evidence Act – mostly not.

CRIMINAL LAW AND PROCEDURE – evidence – hearsay evidence under s 67 of the Evidence Act – whether admissible – it was.

CRIMINAL LAW AND PROCEDURE – application to quash indictment and/or order permanent stay of prosecution – whether open to prosecution to proceed on indictable charges of false accounting when summary charges of stealing were statute-barred – it was.

CRIMINAL LAW AND PROCEDURE – application to quash indictment and/or order permanent stay of prosecution – whether open to prosecution to proceed on indictable charges of false accounting when summary charges of stealing were statute-barred – it was.

CRIMINAL LAW AND PROCEDURE – application to reserve question of law to Full Court under ss 428, 470 of the Crimes Act 1900 – procedure obsolete – surpassed by Federal Court of Australia Act 1976, s 24 and possibly Supreme Court Act 1933, s 20(1)(a).

Evidence Act 1995  (Cth), s 67, s 81 s 97(1), s 98, s 101(2)

[1996] FCA 1805

Trade Practices – Consumer Protection – respondent migration consultant engaged to obtain permanent residency status for applicants under Employer Nomination Scheme – certain representations made by officers of respondent as to guaranteed success of applications or refund of fees paid – whether such representations constituted misleading and deceptive conduct under s52 of the Trade Practices Act 1974 (Cth) – whether principal of respondent firm a person knowingly concerned in a contravention of the Trade Practices Act under s75B and therefore personally liable in damages under s79.

Contract – terms of contract included guarantee of success or refund of fees paid – whether failure of applications constituted breach of contract or required refund under terms of contract.

Evidence – Hearsay – conversations between applicants and principal of respondent firm conducted through respondent’s employee as interpreter – whether applicants’ evidence relating to such conversations inadmissible hearsay under s59(1) of the  Evidence Act 1995  (Cth) – discussion of position at common law – whether proof of accuracy of translation required – whether interpreter can be described as “narrator” or “agent” – significant that objection raised by respondent when interpreter employee and agent of the respondent firm – if such evidence was “first-hand” hearsay whether admissible under ss63(2) or 64(2) where interpreter unavailable etc – consideration of notice required by s67(1) – when such notice requirement may be dispensed with by the Court.

Evidence Act 1995  (Cth); ss59(1), 63(2), 64(2) and 67(1).

 [1998] FCA 923

EVIDENCE – hearsay – notices of intention to adduce evidence of previous representation – whether it would cause undue expense or undue delay or would not be reasonably practicable to call makers of previous representations to give evidence – notices attached lengthy transcripts of evidence given to a Royal Commission and in examinations under s 155 of Trade Practices Act 1974 (Cth) and, in one case, lengthy statements, without identifying any particular representations – whether notices sufficiently stated substance of evidence of previous representations sought to be adduced – whether notices sufficiently stated substance of all other relevant representations made by the persons who made those previous representations, so far as they were known to the notifying party.

Evidence Act 1995  (Cth) ss 64, 67

[2003] FCA 17

EVIDENCE – hearsay – old photographs – taker of photographs deceased – representations by him heard by his daughter as to taking of photographs and their subject matter – attempt to lead hearsay evidence from daughter on those matters – failure of party tendering photographs to give notice of intention to adduce such hearsay evidence – whether direction should be made that exclusion of hearsay rule still applies – exercise of discretion – whether other parties prejudiced by loss of opportunity to cross-examine other witnesses who had left the witness box.

Evidence Act 1995  (Cth) ss 59, 63, 67

[1999] NSWCA 105

EVIDENCE ACT – s63 (2) – maker of statement not available – no notice given that statement was to be tendered – s67 (4) – discretion of Court to admit statement – admitted with no reasons given – whether in error

[2004] ACTSC 115

COURTS AND THE JUDICIAL SYSTEM – whether discretion to refuse to exercise coercive powers to compel 7 year old child to enter court and give evidence against his will – evidence by psychiatrist that forcing the child to do so could cause significant harm – application by Crown to discharge jury in order to test rulings of trial judge – attempt to enter nolle prosequi in order to test rulings – general principles – relevance of rights guaranteed by Human Rights Act 2004 (ACT).

EVIDENCE – objection under s 18 of the  Evidence Act 1995  (Cth) to giving evidence – whether s 19 precludes the application of s 18 to “domestic violence offences” mentioned in s 9 of the Protection Orders Act 2001 (ACT) – application of s 10A of the Acts Interpretation Act 1901 (Cth) – whether 7 year old child compellable – whether discretion to refuse to exercise coercive powers to force child to enter court and give evidence against his will – relevance of rights guaranteed by Human Rights Act 2004 (ACT).

EVIDENCE – whether child an “unavailable” witness when court refuses to compel him to enter court and give evidence – whether evidence of prior representations by the child admissible under s 65 of the Evidence Act 1995 (Cth)- whether rejection of such evidence required by s 137 of the  Evidence Act 1995  (Cth).

Evidence Act 1995  (Cth), ss 18, 137, 19, 8, 65, 67, 63(2), 64(2), 65(2,3,8)