Category Archives: s. 067

R v Barker [2014] ACTSC 153 (27 June 2014)

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/153.html

CRIMINAL LAW – PARTICULAR OFFENCES – Property Offences – Cause damage to property – Trial by judge alone – Not guilty because of mental impairment

CRIMINAL LAW – GENERAL MATTERS – General Liability and Capacity – Pleas of not guilty because of mental impairment – Meaning of “cannot reason with a moderate degree of sense and composure” – Meaning of “could not control the conduct” – Criminal Code 2002 (ACT), s 28.

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

http://www.austlii.edu.au/au/cases/cth/FCA/2014/568.html

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

Clavel v Savage (No 2) [2014] NSWSC 463 (23 April 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/463.html

TORT – intentional infliction of emotion distress – liability and quantum against first and second defendant – application of principles to facts found in earlier judgment
COSTS – Offer of Compromise – insufficient actual compromise – later Calderbank letter – indemnity costs on basis of Calderbank letter

Warth v Lafsky [2014] NSWCA 94 (1 April 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/94.html

TORTS – negligence – motor vehicle accident – collision between motor vehicle and child on scooter – where driver driving at excessive speed – whether driver failed to keep proper lookout

TORTS – negligence – motor vehicle accident – causation – whether driver could have stopped vehicle before impact if driving at reasonable speed and keeping proper lookout – whether any negligence on driver’s part a necessary condition of occurrence of harm – S 5D Civil Liability Act 2002 (NSW) – whether accident inevitable

PRACTICE – amendment – where appellant sought leave at hearing to amend notice of appeal – whether leave to amend should be granted

DPP v Bracken [2014] VSC 94 (12 February 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/94.html

CRIMINAL LAW – Trial – Murder – Self-defence – Family violence – Whether family violence ‘alleged’ – Whether defence inconsistent with record of interview – Whether prosecutor bound to call Crown witnesses named on indictment – Whether Crown witnesses may be cross-examined on family violence – Questioning allowed – Crimes Act (Vic) 1958 s 9AH.

EVIDENCE – Criminal trial – Tendency evidence – Hearsay evidence – Evidence to be adduced in cross-examination – Nature and purpose of evidence identified in defence written submission – Whether further notice required – Evidence Act 2008 (Vic) ss 67, 97, 100.

EVIDENCE – Criminal trial – Murder – Self-defence – Family violence – Advance ruling – Character evidence – Proposed cross-examination of Crown witnesses about relationship between accused and deceased – Whether adducing evidence of accused’s behaviour in response to family violence would put his character in issue – Whether proposed Crown evidence of other conduct admissible – Whether ruling premature – Ruling given – Character not in issue – Crimes Act 1958 (Vic) s 9AH, Evidence Act 2008 (Vic) ss 110, 192A.

EVIDENCE – Criminal trial – Hearsay – Exception to hearsay rule – Statements by accused to witness about facial injuries – Whether accused’s statements about cause of injuries within exception – Whether admissible for non-hearsay purpose – Evidence inadmissible – Subramaniam v Public Prosecutor [1956] 1 WLR 965 considered – Evidence Act 2008 (Vic) s 66A.

Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375 (17 December 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/375.html

CO-OWNERSHIP – Appeal – Joint tenancy at law – Whether tenancy in common in equity – Four unities of possession, interest, time and title – Right of survivorship – Equity is equality – Equity’s dislike of joint tenancies – Intention of parties when property was acquired – Whether consideration given for half share – Whether joint tenancy severed at inception by agreement to distribute proceeds if property sold – Whether joint tenancy severed at time of sale of property by agreement to divide proceeds – Whether joint tenancy severed by conduct – Death of joint tenant before completion of sale of the subject land – Whether nett proceeds of sale of the subject land lay with executor of estate or with liquidator of corporate joint tenant – Attack on credit of witnesses – Whether judge should have found facts based upon testimony of witnesses – Duty of Court of Appeal when challenge made to findings based on credit – Weighing of findings of credit with findings on all relevant probabilities – Appeal dismissed.

PRACTICE AND PROCEDURE – Application to lead fresh evidence – Failure of appellant to serve subpoena on bank at trial – Whether there was a ‘high probability’ the fresh evidence would have produced the opposite result at trial – Application refused.

PRACTICE AND PROCEDURE – COSTS – Non-party costs order – Costs order made against liquidator personally – Application for leave to appeal costs order against non-party – House v The King [1936] HCA 40; (1936) 55 CLR 499 – No error of principle – Application refused.

PRACTICE AND PROCEDURE – COSTS – Application for leave to appeal costs order – Offer of compromise made by respondent before appeal – Consequences of rejection – Whether respondent entitled to costs on an indemnity basis – Whether judge had reasonable regard to Calderbank offer – Whether judge erred in his analysis of Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2) [2005] VSCA 298; (2005) 13 VR 435 – Application dismissed.

Manning Motel Pty Limited v DH MB Pty Limited [2013] NSWSC 1582 (1 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1582.html

CONTRACT – Collateral Contract – Validity – Tripartite Collateral Contract – Whether consistency between collateral and principal agreements required – Finding of collateral contract requires that a representation made as an inducement to enter the principal contract to be intended as a promise
CONTRACT – Collateral Contract – Contract Collateral to a Lease does not necessarily have to be in, or evidenced by, writing notwithstanding a statutory requirement that the Lease be in, or evidenced by, writing.

Brian John Harris v Mark Kevin Harris [2013] NSWSC 1010 (30 July 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1010.html

CONTRACTS – Unjust contracts – Contracts Review Act – Plaintiff urgently needed funds but determined to keep property in family name – Only prepared to sell to nephew who agreed to purchase for all he could afford and granted seven year lease back to Plaintiff – Both parties understood price was a significant undervalue – Contracts not unjust in the circumstances

Clavel v Savage [2013] NSWSC 775 (14 June 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/775.html

TORT – malicious prosecution – collateral abuse of process – intentional infliction of emotional distress – discussion of elements and principles – application of principles to largely factual judgment – reasonable and proper cause for prosecution – malice or extraneous or improper purpose

s 67 – refer pars [103-105] – PDF Part 1
s 164 – refer par [736] – PDF Part 3
s 136 – refer par [857] – PDF Part 3

[Note from Faris QC: this judgement is reported in 3 pdf files which can be downloaded from the caselink above]

Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322 (11 April 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/322.html

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

Mathai v Nelson [2012] FCA 1448 (21 December 2012)

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

Easwaralingam v Director of Public Prosecutions [2011] HCASL 99 (7 June 2011)

http://www.austlii.edu.au/au/cases/cth/HCASL/2011/99.html

The applicant was summoned to appear in the Magistrates’ Court of Victoria on charges of unlawful assault, using indecent language in a public place, stalking in a way that could reasonably be expected to arouse apprehension or fear and behaving in an offensive manner in a public place. All four counts (of which the third was ultimately withdrawn) arose out of events on 26 October 2007 involving a Ms Kelly Venner, the principal witness for the prosecution. On 22 February 2010, two days before the matter was due to be heard as a contested hearing, the informant became aware that Ms Venner would not be available to attend the hearing as she had been admitted to hospital to undergo emergency surgery. On 23 February 2010, counsel for the applicant was notified of Ms Venner’s unavailability for the following day and of the informant’s intention to seek an adjournment or, alternatively, to make an application to rely upon Ms Venner’s statement to police as an exception to the hearsay rule under s 65 of the Evidence Act 2008 (Vic) (“the Act”). Written notice of the respondent’s intention to adduce hearsay evidence under s 65 of the Act was dated 22 February 2010 and served on the applicant’s instructing solicitor on 24 February 2010.
On 24 February 2010, Magistrate Fleming refused the respondent’s application for an adjournment. The Magistrate refused to admit Ms Venner’s statement into evidence and dismissed the three remaining charges. Pursuant to s 272(1) of the Criminal Procedure Act 2009 (Vic), the respondent appealed to the Supreme Court of Victoria in respect of the Magistrate’s refusal to admit the statement into evidence under s 65 of the Act. By originating motion (heard at the same time as the appeal) the respondent sought judicial review of the decision not to grant the adjournment. On 1 October 2010, Pagone J allowed the appeal, held that the Magistrate erred in law in not granting the adjournment and remitted the matter to the Magistrates’ Court. His Honour found that the Magistrate had failed to apply the definition of “not available to give evidence” under Pt 2, cl 4(1)(g) of the Act’s Dictionary and had erroneously concluded that the respondent had not, pursuant to s 67 of the Act, given reasonable notice of its intention to adduce the evidence and that the notice was otherwise deficient.
The applicant sought leave to appeal Pagone J’s decision to the Court of Appeal. The Court of Appeal (Buchanan and Tate JJA) granted leave but dismissed the appeal.
It is not in the interests of justice generally, or in this particular case, that there be a grant of special leave to appeal. There is no reason to doubt the correctness of the actual orders made by the Court of Appeal.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

Azizi v The Queen [2012] VSCA 205 (30 August 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/205.html

CRIMINAL LAW – Appeal – Conviction – Murder – Applicant found guilty of murdering his wife – Evidence adduced at trial of representations made by deceased to effect that applicant had physically and emotionally abused her – Crown sought to use evidence as tendency evidence – Whether evidence fell within exceptions to hearsay rule provided for in ss 65(2)(b) and (c) of Evidence Act 2008 – Whether evidence could be used as tendency evidence – Whether Crown’s failure to call as witnesses interpreters who interpreted conversations in which representations were said to have been made by deceased gave rise to miscarriage of justice – Whether directions given by trial judge tended to reverse onus of proof – Appeal allowed – Evidence Act 2008 ss 65, 66A, 67(1), 97(1), 101(2), 135 and 137 – Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204 – R v Mankotia [1998] NSWSC 295 – Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490 – R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603 – Gaio v The Queen [1960] HCA 70; (1960) 104 CLR 419 – Director of Public Prosecutions (Vic) v BB [2010] 29 VR 110 – R v LRG (2006) 16 VR 89 – Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 – Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

Mischel v Mischel Holdings Pty Ltd (in liq) [2012] VSC 292 (27 July 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/292.html

CO-OWNERSHIP – Joint tenancy at law – whether tenancy in common in equity – whether consideration given for acquisition of share – severance of joint tenancy by agreement and by conduct – effect of death of joint tenant after exchange of contracts but before completion of sale of the subject land – Delehunt v Carmody [1986] HCA 67; (1986) 161 CLR 464 – Corin v Patton [1990] HCA 12; (1989) 169 CLR 540 – Conlan v Registrar of Titles [2001] WASC 188; (2001) 24 WAR 229 – Lyons v Lyons [1967] VR 160 – Public Trustee v Pheiffle [1991] 1 VR 19 (Pfeiffle v Pheiffle (1989) 13 Fam LR 692 (VSCFC)) – Burgess v Rawnsley [1979] Ch 429 – Transfer of Land Act 1958 (Vic) s 42 – Evidence Act 2008 (Vic) sub-s 67(1)

EQUITY – Maxims – Equity will not assist a volunteer – Corin v Patton [1990] HCA 12; (1989) 169 CLR 540 – Blackett v Darcy [2005] NSWSC 65; (2005) 62 NSWLR 392

Jeffrey-Potts v Garel [2012] VSC 237 (22 June 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/237.html

CONTRACT – Existence of interest-free loan agreements – Limited documentary evidence – Note recording a loan agreement signed by both parties – Whether loan agreement was incomplete or uncertain – Repayments of loans made irregularly – Burden of persuasion on defendant.

TRUSTS – Existence of an express trust – Intention to create a trust.

EQUITY AND TRUSTS – Resulting trust – Contributions to purchase price – Calverley v Green [1984] HCA 81; (1984) 155 CLR 242.

EQUITY AND TRUSTS – Common intention constructive trust – Property acquired in course of mother/surrogate son type relationship – Property held in the name of one party – No common intention to create trust.

EQUITY AND TRUSTS – Remedial constructive trust – Existence of joint endeavour – Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 and Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 – Provision of funds for the purchase of the properties by both parties – Non-financial contributions made by both parties – Pooling of funds for payment of properties — Whether unconscionable to allow one party to assert sole title – Quantification of contributions of parties – Adjustments to be made.

EQUITY AND TRUSTS – Applicability of the doctrine of laches.

PROPERTY – Lodging of caveats – whether reasonable cause to lodge caveats existed.

PRACTICE AND PROCEDURE – Admissibility of evidence after conclusion of trial.

Jeffrey-Potts v Garel [2012] VSC 237 (22 June 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/237.html

CONTRACT – Existence of interest-free loan agreements – Limited documentary evidence – Note recording a loan agreement signed by both parties – Whether loan agreement was incomplete or uncertain – Repayments of loans made irregularly – Burden of persuasion on defendant.

TRUSTS – Existence of an express trust – Intention to create a trust.

EQUITY AND TRUSTS – Resulting trust – Contributions to purchase price – Calverley v Green [1984] HCA 81; (1984) 155 CLR 242.

EQUITY AND TRUSTS – Common intention constructive trust – Property acquired in course of mother/surrogate son type relationship – Property held in the name of one party – No common intention to create trust.

EQUITY AND TRUSTS – Remedial constructive trust – Existence of joint endeavour – Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 and Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 – Provision of funds for the purchase of the properties by both parties – Non-financial contributions made by both parties – Pooling of funds for payment of properties — Whether unconscionable to allow one party to assert sole title – Quantification of contributions of parties – Adjustments to be made.

EQUITY AND TRUSTS – Applicability of the doctrine of laches.

PROPERTY – Lodging of caveats – whether reasonable cause to lodge caveats existed.

PRACTICE AND PROCEDURE – Admissibility of evidence after conclusion of trial.

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

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

Environinvest Limited v Pescott & Ors (No 2) [2012] VSC 151 (26 April 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/151.html

PRACTICE AND PROCEDURE – Application to amend pleading – Allegations of breach of ss 180, 181, 182 Corporations Act 2001 (Cth) – Relief sought under Part 5.7B Corporations Act 2001 (Cth) – Evidence supporting claims – Need for proper basis certification – Civil Procedure Act 2010 (Vic) s 18, Corporations Act 2001 (Cth) ss 180, 181, 182, 588FB, 588FC, 588FDA, 588FE, 588FF, 1317H.

45 Mr Robertson submitted that affidavit evidence given by Mr Dossetor and another witness (Anthony Medland) in separate proceedings are hearsay and no leave has been sought to use them in this proceeding. He noted that no notice of intention to adduce hearsay evidence had been given pursuant to s 67 of the Evidence Act 2008 (Vic). As counsel for the plaintiffs noted, this application is interlocutory and the hearsay rule does not apply.[28] Those affidavits go to show that there is a reasonable basis on which the plaintiffs may plead an arguable case.

Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (14 March 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/87.html

PROFESSIONAL LIABILITY – solicitors – property proceeding in Family Court of Australia – settled at door of court on terms overly generous to wife – action by husband for damages for lost opportunity – valuation, taxation and other evidence not prepared in time for hearing – instructions taken and acted on from client lacking mental capacity – whether solicitors should have known – whether breach of duty of care – whether breach of fiduciary duty – whether coercion – pre-hearing representations – whether in trade or commerce – whether misleading and deceptive conduct – advocates’ immunity – whether applicable – assessment of damages for lost opportunity – notional trial in Family Court – whether evidence of subsequent facts admissible – apportionment of damages between concurrent wrongdoers – rule in Jones v Dunkel – husband’s senior counsel not called by solicitor – whether senior counsel in camp of solicitor – affidavit of husband’s deceased father – whether admissible hearsay evidence – Fair Trading Act 1985 (Vic), s 9(1) – Wrongs Act 1958 (Vic), pt IVAA – Evidence Act 2005 (Vic), s 135.

Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis [2012] NSWSC 201 (7 March 2012)

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.

Regina v Lawrence Holt [2001] NSWSC 232 (30 March 2001)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/232.html

8 The foregoing general positions of, respectively, the Crown and the accused having been established, application was made for a series of hearings on the voir dire to the end of testing the admissibility in the Crown case at trial of various pieces of evidence. Voir dire hearings were granted accordingly, and all of them were dealt with by way of documentary evidence. In all, sixteen separate such hearings were conducted. Eleven of those hearings concerned evidence which the Crown seeks to have admitted as tendency evidence; a further four hearings concerned hearsay evidence which the Crown seeks to have admitted as relationship evidence; and one hearing concerned admissions made by the accused to investigating police.

R v Fairbairn [2011] ACTSC 78 (19 May 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/78.html

CRIMINAL LAW – trial by judge alone – charge of trafficking in a controlled drug other than cannabis – accused is guilty.
EVIDENCE – admissibility and relevancy – hearsay – whether records of telephone calls inadmissible as hearsay – admissible as admissions of accused – other party’s conversation not admitted for truth of representation.
EVIDENCE – admissibility and relevancy – tendency evidence – no notice given in time – whether prosecution should be permitted to rely on evidence – substance given well before trial – evidence admitted.
EVIDENCE – admissibility and relevancy – tendency evidence – whether of significant probative value – whether significant probative value outweighs unfair prejudice – evidence admissible.
CRIMINAL LAW – evidence – res gestae – whether doctrine survives enactment of Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth), ss 59, 66, 67, 97, 100, 101, 137, Pt 3.4

On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 (13 April 2011)

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

Easwaralingam v DPP & Anor [2010] VSCA 353 (20 December 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/353.html

PRACTICE AND PROCEDURE – Discretion to admit witness statement into evidence when a person is not available to give evidence – Absent witness recovering from emergency surgery – Magistrate refused application to admit witness statement – Appeal against that refusal allowed by a single judge of the Supreme Court – Appeal to the Court of Appeal – Appeal dismissed – Matter remitted to Magistrates’ Court – Evidence Act 2008 , ss 65, 67.

ADMINISTRATIVE LAW – Judicial Review – Refusal of Magistrate to adjourn proceedings – Error of law on the face of the record – What constitutes the record – Proceeding for judicial review heard concurrently with appeal – Need to distinguish between the two proceedings and the material on which they could be decided – Need to have regard to the evidence which was then before the Magistrate when the application for adjournment was decided – Appeal against orders for judicial review allowed.

WORDS AND PHRASES – “Record” – “Not available”

R v Rossi (Ruling No 1) [2010] VSC 459 (13 October 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/459.html

CRIMINAL LAW – Evidence – Notice of Hearsay Evidence – Section 65 & 67 of the Evidence Act – Dictionary Clause 4(2)(e) & (f) – “All reasonable steps” – Whether taken – Witness threatened – Witness avoiding subpoena – Subpoena not served – Evidence of police in trying locate witness – Charter of Human Rights and Responsibilities Act 2006 – Section 25(2)(g) – Evidence Act s 137 – Risk of unfair prejudice – Previous representations admitted.

DPP v Easwaralingam & Anor [2010] VSC 437 (1 October 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/437.html

PRACTICE AND PROCEDURE – Judicial review and appeal on a question of law – Discretion to grant an adjournment – Discretion to admit witness statement into evidence when a person is not available to give evidence – Road rage incident – Evidence Act 2008 (Vic) ss 65, 67 – Whether to remit the matter to a differently constituted court.

DPP v Nicholls [2010] VSC 397 (6 September 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/397.html

APPEAL from Magistrates’ Court on a question of law – Criminal law – Evidence – Meaning of “not available to give evidence” in s 65 of the Evidence Act 2008 – Evidence Act 2008, ss 18, 65, 67, 135, 137 and clause 4 of Part 2 of the Dictionary – Criminal Procedure Act 2009, s 272(1).

Huang v University of New South Wales [2010] FCAFC 104 (25 August 2010)

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)

DPP v B B; DPP v Q N [2010] VSCA 211 (25 August 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/211.html

CRIMINAL LAW – Appeal – Crown appeal – Interlocutory appeal – Evidence – Hearsay – Admissibility of representations made by witness in evidence at committal concerning facts in issue – Evidence Act 2008 , ss 59, 65(3), 65(6), 137, 165 – Evidence Act 1958, s 55AB – Justices Act 1928, s 203 – Indictable Offences Act 1848 (U.K.).

Darlaston v Parker [2010] FCA 771 (23 July 2010)

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

Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411 (6 May 2010)

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/411.html

Evidence – statutory exceptions to hearsay rule in civil proceedings – whether person who made representation not available to give evidence about asserted fact – whether it would cause undue expense or undue delay or would not be reasonably practicable to call person who made the representation to give evidence – general statutory discretion to exclude evidence: whether probative value of evidence substantially outweighed by danger that it might be unfairly prejudicial to a party.

R v Darmody [2010] VSCA 41 (9 March 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/41.html

CRIMINAL LAW – Application for special leave to appeal from interlocutory decision pursuant to s 295 Criminal Procedure Act 2009 – Whether judge below erred in holding that the Evidence Act 2008 applied – Whether provisions of Clause 2(2) of Schedule 2 to the Evidence Act 2008 correctly applied by the judge – Whether complainant ‘not available to give evidence’ within the meaning of s 65(1) of the Evidence Act 2008 – Power to receive prior statement of an unavailable witness – Section 67(1)(4), the Evidence Act 2008 – Whether judge erred in excusing failure to give notice of intention to adduce evidence – Section 137, the Evidence Act 2008 – Whether probative value of evidence given by complainant at committal hearing was outweighed by danger of unfair prejudice to applicant – Whether judge erred in not excluding such evidence.

CJD Equipment v A&C Constructions [2009] NSWSC 1362 (10 December 2009)

[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.

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306 (13 November 2009)

[2009] FCA 1306
EVIDENCE – whether hearsay evidence of statements by persons overseas should be permitted – the extent to which the proposed evidence was first hand or more remote hearsay – no independent evidence corroborating any hearsay version – whether undue prejudice to the respondent.

PRACTICE AND PROCEDURE – application to take evidence by video link – requirement to make out a case for such an order where it is opposed – discussion of the possible difficulties associated with video evidence.

PRACTICE AND PROCEDURE – security for costs – consideration of application for further security.

Evidence Act 1995 (Cth) ss 59(1), 62, 63, 64, 67, 68, 75, 135, 136, 192, 192A

Tobin v Ezekiel; Estate of Lily Ezekiel [2009] NSWSC 1209 (23 September 2009)

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

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769 (6 August 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/769.html
EVIDENCE – admissibility and relevancy – exceptions to the hearsay rule – s 63 exception where maker of representation in a document is “not available to give evidence” – meaning of “available” – meaning of “attendance” – where person resident in a foreign country – whether availability of procedures under the Evidence on Commission Act is relevant to these questions – EVIDENCE – admissibility and relevancy – exceptions to the hearsay rule – s 81 exception for previous representation reasonably necessary to an understanding of an admission where the representation made “at the time the admission was made, or shortly before or after that time” – meaning of “shortly after” – WORDS AND PHRASES – “attendance” – “shortly after”

Evidence Act 1995, Part 2 clause 4(1) of the dictionary, ss 36(1), 59, 63, 64(1), 67, 68, 81(1), 81(2), 135(a)
Evidence (Audio and Audio Visual Links) Act 1998, ss 5B, 5C
Evidence on Commission Act 1995, ss 4, 6(1), 5, 8
Foreign Evidence Act 1994 (Cth), s 7
Interpretation Act 1987, s 12(1)(b)

Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCA 606 (5 June 2009)

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)

R v Morton [2008] NSWCCA 196

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

Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FCA 1263 (6 November 2003)

[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