Category Archives: s. 064

The Council of the New South Wales Bar Association v Franklin [2014] NSWCA 329 (19 September 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/329.html

EVIDENCE – advance ruling as to admissibility of evidence – hearsay evidence – where applicant seeks to tender transcripts of evidence from respondent’s criminal trial – notice of intention to adduce hearsay evidence where maker available to be called – where no written objection to tender – Evidence Act 1995 (NSW), ss 64, 67, 68

Wilson v Mitchell (No 2) [2014] VSC 332 (8 July 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/332.html

EVIDENCE – Appeal from Magistrates’ Court decision to release documents – Client legal privilege – Exceptions for documents produced in the furtherance of a fraud – Hearsay – Whether open to conclude that it would result in undue expense or delay to call author of hearsay evidence on bar table assertion that author lived in Malaysia – Admissions – Evidence Act 2008 ss, 64, 75, 118 and 125.

Zraika v Walsh [2014] NSWSC 892 (23 June 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/892.html

EVIDENCE – admissibility – hearsay evidence – exceptions – maker available – where maker no longer has recollection of event but has provided an earlier statement
EVIDENCE – admissibility – judicial discretion to exclude or limit the use of evidence – application to exclude evidence where prejudice outweighs probative value

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

Peter Vitek & Anor v Estate Homes Pty Ltd & Ors [2013] NSWSC 1805 (30 October 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1805.html

EVIDENCE – whether evidence of a witness for the plaintiffs about what was said between himself and the first defendant in the presence of the third defendant is admissible against the third defendant given the fact that the plaintiffs did not intend to call the first defendant in their case

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

http://www.austlii.edu.au/au/cases/cth/FCA/2013/564.html

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.

Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727 (7 June 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/727.html

NEGLIGENCE – BREACH OF IMPLIED TERM – accident boarding chairlift – Jones v Dunkel – failure to call doctor – lift ticket – purported contractual exclusion of implied term and liability – s 5N(1) Civil Liability Act – s 68, s 68A, s 68B and s 74 Trade Practices Act – whether Civil Liability Act applies to causes of action for breach of term implied by s 74(1) arising prior to 13 July 2004 – s 109 of the Constitution – duty of care – breach – whether lift operator inattentive – risk of harm from chair arriving in defective state – precaution of lift operator observing state of chair from location near loading point – causation – s 5D – inherent risk – s 5I – dangerous recreational activity – s 5L – risk warning – s 5M – contributory negligence – breach of implied term – damages – pre-accident afflictions – post-accident restrictions – failure to provide records – whether adverse interest should be drawn – economic loss – Sections 12 and 13 of Civil Liability Act – whether rental income and management fees earnings – gratuitous attendant services – lost fees from days absent from work.

Australian Associated Motor Insurers Limited v Elmore Haulage Pty Ltd [2013] VSCA 54 (19 March 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/54.html

INSURANCE – Motor vehicle insurance – Indemnity in respect of liability for loss or damage resulting from use of vehicle – Exclusion in respect of liability for loss or damage intentionally caused by insured – Head on collision involving insured’s motor vehicle – Whether driver of insured’s vehicle intending to commit suicide – Application of principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 – Whether inference of suicide more probable – Whether exclusion clause of policy applied, in the event of a finding that driver of insured vehicle intended suicide.

SZQVM v Minister for Immigration and Citizenship [2013] FCA 5 (15 January 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/5.html

MIGRATION – appeal from order of Federal Magistrate dismissing application for judicial review of a decision of the Refugee Review Tribunal to affirm decision not to grant protection visa – whether Tribunal erred in placing no weight upon evidence of two emails received by appellant asserting risk of harm to appellant should appellant return to originating country, due to emails containing hearsay – whether Tribunal had opportunity to test evidence of emails and verify authenticity – whether Tribunal should and did so test – whether Federal Magistrate erred in finding evidence of emails was not in Tribunal’s possession prior to Tribunal hearing – whether Tribunal erred in placing little weight on evidence of witness, due to evidence containing hearsay – discussion of constitution, powers, operation, and treatment of evidence, by Tribunal

PRACTICE AND PROCEDURE – notice of contention sought to be filed beyond time limit prescribed by r 36.24 of the Federal Court Rules 2011 – where no explanation given for model litigant’s failure to comply with rules

Ware v Amaral Pastoral Pty Ltd (No 5) [2012] NSWSC 1550 (14 December 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1550.html

CONTRACT – employment contract – farm manager terminated – recovery of unpaid wages and superannuation – whether implied term requiring reasonable notice – whether conduct warranted summary dismissal – whether entitled to bonus – contract for tractor hire – whether oral agreement – whether term deferring payment until farm’s cash flow allowed void for uncertainty – whether implied term that entitlement to payment for tractor hire arises on termination of employment contract – whether unauthorised self-dealing – whether breach of obligation of good faith and fidelity – whether breach of fiduciary duty – findings of credit adverse to defendant.

Damman v Peninsula Health [2012] VSC 572 (23 November 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/572.html

COMMON LAW – Application for an extension of limitation period – Section 27K of the Limitation of Actions Act 1958 – Allegations of sexual assault – Key witness deceased – Defendant suffered substantial prejudice – Plaintiff’s cause of action against former solicitors relevant consideration – Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114 applied.

SPAR Licensing Pty Ltd v MIS QLD Pty Ltd (No 2) [2012] FCA 1116 (15 October 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1116.html

CONTRACT – termination of franchise agreement – no express right of termination – whether implied right of termination – whether breach of franchise agreement

COMPETITION – s 45(2) Competition and Consumer Act 2010 (Cth) – whether provision an exclusionary provision – whether provision has substantial purpose and/or effect or likely effect of substantially lessening competition in a market – definition of relevant market –competitors in that market

TRADE PRACTICES – s 51AD Trade Practices Act 1974 (Cth) – Trade Practices (Industry Codes-Franchising) Regulations 1998 – whether breach of clauses 6B and 10 of Franchising Code of Conduct – whether current disclosure document provided to prospective franchisee – whether relief granted under ss 82 or 87

TRADE PRACTICES – s 18 Australian Consumer Law – representations prior to execution of franchise agreement – representations that franchise agreement could be terminated on payment of termination and related fees – whether representations made – whether representations misleading and/or deceptive – whether representations relied upon – whether loss or damage suffered – whether causal link between representation and loss suffered – whether relief granted under ss 82 or 87 Competition and Consumer Act 2010 (Cth)

Jo Maree Payne v Helen Mary Rowe & Anor [2012] NSWSC 685 [2012] NSWSC 1168 (25 June 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1168.html

REAL PROPERTY – co-ownership – application for appointment of statutory trustees for sale – adjustment of interests – whether non-occupying owner entitled to occupation fee – where there has been no exclusion from the property – consideration of principle in McKay v McKay and Callow v Rupchev – held applicable to “domestic relationship” between brother, sister and mother.
REAL PROPERTY – co-ownership – application for appointment of statutory trustees for sale – adjustment of interests – whether contributions made by associated entity attributable to party.
EQUITY – trusts – resulting trust – presumption of resulting trust based on contributions to purchase price – presumption rebutted where parties have agreed on beneficial interest at time of purchase.
EQUITY – trusts – remedial constructive trust – principle in Baumgartner – application to family relationship – necessity of identifying relevant “joint enterprise” – whether there was “attributable blame” for the failure of the joint enterprise – whether party adequately compensated by a right to contribution – whether respective contributions by parties should be valued according to cost or increase in value of property.
LIMITATION OF ACTIONS – whether claim for imposition of remedial constructive trust subject to limitation period – application of Limitation Act directly or by analogy – distinction between claim for constructive trust and claim for debt or action for money had and received – consideration of when claim for remedial constructive trust accrues.
EVIDENCE – admissibility – inadmissibility of evidence of communications in connection with an attempt to negotiate a settlement of the dispute – whether admissions made in such communications admissible – consideration of exception in s 131(2)(g) – held evidence not admissible simply because it qualifies other evidence adduced in proceedings.
ONUS OF PROOF – general principle – onus is on the defendant if the allegation is not simply a denial of an essential ingredient of the cause of action but a good defence.

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

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.

Garzo v Liverpool/Campbelltown Christian School Limited& Anor [2011] NSWSC 292 (15 April 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/292.html

NEGLIGENCE – Duty of care – Accident occurred in a school in which there were internal roads and pedestrian crossings – Maintenance contractor engaged by the school to paint pedestrian crossings – Plaintiff slipped and fell on a painted strip of a pedestrian crossing

NEGLIGENCE – Breach of duty – Proper pleading of a claim under s 5B of the Civil Liability Act – Identification of a risk of harm – Foreseeability – Whether defendant had actual or constructive knowledge of the risk of harm – Whether risk of harm was not insignificant – The precautions which the plaintiff says a reasonable person in the defendants’ position would have taken in the circumstances – Whether part of the crossing had been more recently repainted – Whether the slip resistance of the crossing was below recommended standards – Whether the slip resistance of the crossing was insufficiently uniform – Whether a reasonable person in the position of the school or the maintenance contractor would have sourced a different paint for use on the crossing

NEGLIGENCE – Causation – The test under s 5D of the Civil Liability Act 2002 – Many potential causes of a slip and fall – Whether the plaintiff has established that the lack of slip resistance of the crossing caused her injury

DAMAGES – Assessment of damages for personal injury – The extent to which the plaintiff utilised her earning capacity prior to the accident – Difficulties with assessing future economic loss – Damages for loss of capacity to provide domestic services – Where plaintiff has a disabled child

Evans v Evans [2011] NSWCA 92 (14 April 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/92.html

ESTOPPEL – equitable estoppel – proprietary estoppel – requirement that plaintiffs’ assumption be reasonable – no requirement that representations be sufficiently certain to amount to valid contract – requirement to demonstrate detriment – expectation arising from conduct over a period of time – whether it would be contrary to good conscience to disappoint – APPEAL AND NEW TRIAL – new trial – failure to make specific findings of fact to resolve conflicts of evidence – APPEAL AND NEW TRIAL – Court of Appeal – circumstances in which appellate court will make findings of fact where conflicts of evidence unresolved – not where questions of credibility – APPEAL AND NEW TRIAL – practice and procedure – costs – certificate under Suitors’ Fund – PRACTICE AND PROCEDURE – mediation – power to order where appropriate

Seafood Imports Pty Ltd v ANL Singapore Pte Ltd [2010] FCA 702 (5 July 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/702.html

SHIPPING AND NAVIGATION – Carriage of goods by sea – In refrigerated container supplied by carrier – controller on container becoming stuck in defrost mode due to incompatible software – Whether goods properly and carefully carried, kept, cared for and discharged – Exception of latent defect – Whether malfunctioning of container not discoverable by due diligence – Hague-Visby Rules Arts III rr (1) and (2) and IV rr (1) and (2)(p)

Evidence Act 1995 (Cth) ss 63 and 64

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.

Pethybridge v D’Orsa [2010] VSC 90 (26 March 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/90.html

Vickery J
NEGLIGENCE – Motor vehicle accident – Driving negligently on public highway – Motor car towing horse float driven by Defendant on wrong side of highway – Collision with motor bike ridden by Plaintiff on correct side of highway – No contributory negligence – Personal injuries – Claim for loss of future earning capacity a speculative claim not giving rise to compensation on the claimed basis.

“181 I accept that Mr Pethybridge, between about the time of his redundancy and the time of his accident, had conversations with his partner, Belinda Harvey and his son Jamie Pethybridge, about taking up work in the future in the mining industry. I accept this as evidence of the intentions of Mr Pethybridge to pursue this type of employment pursuant to ss.64(3) and 66A Evidence Act 2008 which provide:

64(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by –

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made.

66A The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

182 Mr Pethybridge called Mr Timothy Sale (“Mr Sale”) to give evidence. Mr Sale was a fitter and turner but was younger than Mr Pethybridge, being a 41 year old man. He was well built and displayed no obvious health problems. He too worked at Empire Rubber in Bendigo but left without being offered a redundancy package. He then worked for a number of mining enterprises in remote locations in Western Australia. While working for a company called BGC he earned a gross salary of $125,000.

183 The Plaintiff also called Mr Sasha Cust (“Mr Cust”) to give evidence. Mr Cust was a 37 year old man in good health. He had two children from a second marriage aged three and a half and seven months. From December 2009 he was made the operations manager of UME based in Bendigo. He earned $120,000 per annum together with fringe benefits which included a car. In a management role, he was involved in administrative work requiring paperwork skills which the Plaintiff did not possess. He said that when he started in the mining industry the normal rate for a fitter and turner in the industry varied somewhat between $38 per hour to between $55 to $60 per hour.

184 Mr Pethybridge also said that he would have continued to work as long as he was fit to do so. He was a skilled worker and he had worked consistently throughout his life. From this it is possible to draw the inference that he could obtain work in his chosen trade if it was available locally.”

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)

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

Citibank Ltd v Liu; Abn Amro Bank Nv v Liu [2003] NSWSC 69 (20 February 2003)

[2003] NSWSC 69

EVIDENCE [118] – Documentary evidence – Statutory provisions as to statements in documents when direct oral evidence admissible – Where maker of statement not attending as witness – Evidence Act 1995 s 64 – Whether to call maker of statement would cause undue expense or undue delay or is not reasonably practicable.

Evidence Act 1995 ss 62 & 64

FENG MIN v UVANNA PTY LTD [1996] FCA 1805 (26 September 1996)

[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).

Australian Competition & Consumer Commission v CC (New South Wales) Pty Ltd (formerly known as Concrete Constructions (NSW) Pty Ltd [1998] FCA 923 (29 July 1998)

 [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

Australian Competition & Consumer Commission v Lux Pty Ltd [2003] FCA 89 (18 February 2003)

[2003] FCA 89

EVIDENCE – expert’s report – objection to admission – whether danger unfairly prejudicial, misleading or confusing or result in waste of time – whether usurps ultimate function of court – whether excluded as a consequence of non-compliance with Practice Note or Guidelines for Expert Witnesses – whether Guidelines abrogate privilege – whether probative value substantially outweighed

EVIDENCE – legal professional privilege – principles applicable to experts’ reports – application to documents – rulings

EVIDENCE – witness statements – objections – whether s 51AB(4) of the Trade Practices Act 1974 (Cth) a barrier to particular evidence – whether unfairness – other objections

Evidence Act 1995  (Cth) ss 63, 64, 80, 118, 122, 135, Pt 3.10

Neowarra v Western Australia [2003] FCA 1400 (8 December 2003)

[2003] FCA 1400

EVIDENCE – Hearsay rule – Rule not apply to evidence of a representation, made by a person called to give evidence, given by a person who heard the representations being made if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation – Whether exception applies to statements by Aboriginal people recounting stories, rules, customs and practices handed down by their forebears.

Evidence Act 1995  (Cth) s 64(3)

Athens & Anor v Randwick City Council [2005] NSWCA 317 (16 September 2005)

[2005] NSWCA 317

CONTEMPT OF COURT

JUDGMENTS AND ORDERS – Construction of court orders – Use of extrinsic material – Need for certainty – Relevance of prejudice where alleged uncertainty minor – Applicability of criminal procedure to contempt proceedings

EVIDENCE – Exclusion of evidence improperly obtained – Conversations with persons encountered on premises during execution of search warrant – Whether improperly obtained – Whether inadmissible as hearsay – Whether admissible as statement of intention – Cross-examination of officer of company on return of subpoena to company – Whether part of evidence in the proceedings.

Evidence Act 1995  ss.64, 72, 138

R v Yl [2004] ACTSC 115 (27 October 2004)

[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)

Trustees of the Property of Zoltan Sandor, a Bankrupt v Ramirez [1999] NSWCA 261 (20 August 1999)

[1999] NSWCA 261

EVIDENCE ACT 1995  – prior inconsistent statement – application of s43 – effect of ss60 and 64

TRUSTS – whether resulting trust – principle in Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 inapplicable

EVIDENCE – parties admittedly engaged in dishonest activity – whether evidence could be relied on

COSTS – trustee in bankruptcy – whether costs should follow event where bankrupt engages in dishonest activity – whether fraudulent – trial Judge’s discretion