Category Archives: s. 055

Lydgate (a pseudonym) v The Queen [2014] VSCA 144 (1 July 2014)

CRIMINAL LAW – Sexual offences – Sexual penetration of child ‘under his care, supervision or authority’ – Accused was previously Principal of victim’s school – Sexual acts occurred after accused had resigned as Principal – Whether victim remained under accused’s ‘care, supervision or authority’ – Whether evidence of former Principal–pupil relationship admissible – Whether temporal proximity relevant – Crimes Act 1958 (Vic) ss 48, 49.

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

R v Bui [2014] ACTSC 64 (31 March 2014)

EVIDENCE – application to exclude DNA evidence – judge alone trial – drug trafficking charges – whether evidence relevant – whether probative value outweighed by danger of unfair prejudice – where potential for contamination – virtually no risk of judge or magistrate giving evidence more weight than entitled – strength of circumstantial case found in examining all of evidence together

Criminal Code 2002 (ACT), s 603(7)

Evidence Act (ACT), ss 55(1), 56(1), 135, 137

EWC Payments PTY LTD v Commonwealth Bank of Australia [2014] VSC 207 (14 May 2014)

APPEAL – PRACTICE AND PROCEDURE – Pleadings – Application to amend statement of claim – Court’s discretion – Amendment to plead assignment of causes of action – Whether amendments bad in law or not fairly arguable – Whether granting of leave would be futile – Relevant principles – Whether genuine commercial interest – Whether necessary to plead – Material facts giving rise to genuine commercial interest – Whether leave ought to have been granted – Appeal allowed – Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 13.02(1)(a), 13.07(1)(a), (b) and (c), 36.01(1)(a), (b) and (c), and 76.06.09(2)(b) and (c); Civil Procedure Act 2010 (Vic), ss 7(1) and 63; Evidence Act 2008 (Vic), ss 55, 56 and 135.

Sokolowskyj v Regina [2014] NSWCCA 55 (15 April 2014)

CRIMINAL LAW – conviction appeal – assault with an act of indecency upon a person under the age of 10 – whether tendency evidence properly admitted at trial – evidence relevant and capable of proving a tendency – the tendency specified was at a high level of generality – purpose of evidence to rebut likely challenge to Crown case – tendency evidence lacked “significant probative value” – probative value of tendency evidence did not substantially outweigh its prejudicial effect – tendency evidence should have been rejected – conviction quashed.

SeaRoad Logistics v Patricks Stevedores [2014] VSC 170 (15 April 2014)

CONSTRUCTION OF LEASE – Proper construction of head lease and sub lease – Dispute between tenant and sub tenant whether rent review clause from head lease incorporated into sub lease – Rent review to be ‘in the same manner’ – Meaning of ‘manner’– Whether terms inconsistent – Validity of rent review procedure undertaken – Requirement to pay part of the rent sought if sub tenant objects to rent review – Exercise of option to renew sub lease – Obligation to seek consent from head landlord – Whether sub tenant a monthly tenant or a tenant in equity for further term – Objections to evidence.

Benson v The Queen [2014] VSCA 51 (28 March 2014)

Application for leave to appeal against conviction and sentence – One charge of rape – Applicant sentenced to total effective sentence of seven years imprisonment with a nonparole period of five years – Trial judge erred in admitting evidence of the Applicant’s past violent conduct as relationship evidence – Substantial miscarriage of justice – Application granted – Appeal allowed – New trial ordered – Baini v The Queen (2012) 246 CLR 469 – s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).

Matthews v SPI Electricity & Ors (Ruling No 39) [2014] VSC 109 (19 March 2014)

EVIDENCE – Expert opinion based on specialised knowledge – Opinion on matters outside of original remit – Admissibility – “Basis rule” – Evidence Act 2008 (Vic) ss 55, 79 – Civil Procedure Act 2010 (Vic) ss 65F, 65H, 65K – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 44.05.

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.

Wingfoot Australia Partner Pty Ltd & Anor v Jovevski [2014] VSCA 21 (26 February 2014)

ACCIDENT COMPENSATION – Appeal – Serious injury application – Claimed psychiatric injury arising out of aggravation of shoulder pain – Causation of psychiatric injury where physical consequences of aggravation not permanent – Factual basis of expert evidence disputed on appeal – Adequacy of reasons – New case advanced on appeal – Civil Procedure Act 2010.

[22] Evidence Act 2008 s 55(1) and definition of ‘probative value’ of evidence in the Dictionary to the Evidence Act 2008 .

Grills v Leighton Contractors Pty Ltd (No 2) [2013] NSWSC 1951 (20 December 2013)

TORTS – negligence – police – police highway patrol – motorcade – Eastern Distributor – boomgate – how did the boomgate come to be lowered – were instructions given to lower the boomgate – was the plaintiff’s speed excessive – duty of care – breach of duty – causation – contributory negligence – apportionment – Motor Accidents Compensation Act 1999 – damages – plaintiff’s injuries – vocational reports – occupational therapists – non-economic loss – past and future economic loss – superannuation – out of pocket expenses – future medical expenses – domestic assistance – past care – future care future therapy, driving aids and equipment – orders

TORTS – defences – unpleaded defence

R v Schofield [2013] ACTSC 247 (21 November 2013)

EVIDENCE – Admissibility – tendency and coincidence evidence – prior conduct – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101

TRIAL – Roles of judge and jury – tendency and coincidence evidence – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101

Wright v Optus Administration & Anor (No 5) [2013] NSWSC 1717 (12 November 2013)

EVIDENCE – admissibility – Part 3.4 Evidence Act 1995 (NSW) – s87 – whether statement of witness contains admissions – whether statement contains representations to which it is reasonably necessary to refer in order to understand admissions – whether witnesses representations related to a matter within the scope of her employment

R v MR [2013] NSWCCA 236 (18 October 2013)

CRIMINAL LAW – Crown appeal against ruling excluding coincidence evidence – Crown appeal against interlocutory judgment severing counts on indictment – whether ruling eliminated or substantially weakened the prosecution case – Criminal Appeal Act 1912, 2 5F.

EVIDENCE – admissibility – coincidence evidence – test – relevance – significant probative value – Evidence Act 1995 , ss 55 and 98.

Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd [2013] NSWCA 344 (21 October 2013)

CORPORATIONS – winding up – statutory demand – application to set aside – Corporations Act 2001, ss 459G, 459H – whether evidence sufficient to establish offsetting claim – whether evidence sufficient to establish quantum of offsetting claim


[This headnote is not to be read as part of the judgment]

The respondent, Analysis & Technology Australia Pty Limited, served a statutory demand on the applicant, Britten-Norman Pty Limited, pursuant to the Corporations Act 2001 (Cth), s 459E. The applicant applied to set aside the statutory demand pursuant to the Corporations Act 2001 (Cth), ss 459H(1)(b), 459J(1)(a) and 459J(1)(b). The primary judge dismissed the application.

The applicant sought leave to appeal from that dismissal. The summons for leave to appeal and the appeal were heard concurrently. The application raised two issues for determination:

Whether the evidence was sufficient to satisfy the Court that there was an offsetting claim pursuant to the Corporations Act, s 459H(1)(b); and

Whether, pursuant to the Corporations Act, s 459H(2)-(3) the evidence was sufficient to satisfy the Court that the amount of the offsetting claim was greater than the amount of the statutory claim less the minimum statutory amount of $2,000.

The Court granted leave to appeal and allowed the appeal.

Held by the Court (Beazley P, Meagher and Gleeson JJA):

In respect of (1):

Pursuant to the Corporations Act 2001, s 459G there must be evidence that satisfies the court that there is “a serious question to be tried”, or “an issue deserving of a hearing” or a “plausible contention requiring investigation” of the existence of either a dispute as to the debt or an offsetting claim under the Corporations Act 2001, s 459H: [70].

Principal legislation and cases considered: Corporations Act 2001, ss 459G, 459H; Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; Chase Manhattan Bank Australia Limited v Oscty Pty Limited [1995] FCA 1208; 17 ACSR 128; Scanhill Pty Ltd v Century 21 Australasia Pty Ltd [1993] FCA 618; (1993) 47 FCR 451.

Evidence sufficient to satisfy this test need not conclusively prove the claim or otherwise be incontrovertible or substantially non-contestable: [36]. The existence of evidence that casts doubt on the contention that there is a disputed debt or an offsetting claim is not the basis for a rejection of an application under the Corporations Act, s 459H: [60]. The evidence does not have to be supported by contemporaneous documentation: [61].

Principal legislation and cases considered: Corporations Act 2001, ss 459G, 459H; Evidence Act 1995 , s 55; Corporations Rules, r 2.4(1); Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd [2008] VSCA 70; 66 ACSR 67; Infratel Networks Pty Ltd v Gundry’s Telco & Rigging Pty Ltd [2012] NSWCA 365; 297 ALR 372.

The primary judge erred because when the evidence is considered as a whole, having regard to the absence of challenge to aspects of it, the evidence established a plausible contention requiring investigation: [70].

In respect of (2):

The evidence before the primary judge was sufficient to establish that the applicant had an offsetting claim for the purpose of the Corporations Act, s 459H(1)(b) for misleading or deceptive conduct (and for that matter in contract) which was greater than the statutory claim less the minimum statutory amount of $2,000.

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).

Fattal & Ors v The Queen [2013] VSCA 276 (2 October 2013)

CRIMINAL LAW – Conviction – Conspiring to do acts in preparation for or planning of terrorist act contrary to ss 11.5(1) and 101.6(1) of Criminal Code (Cth) – Reconnoitring Holsworthy Barracks and seeking Islamic fatwa for armed attack on barracks – Whether convictions unsafe and unsatisfactory or otherwise unreasonable – Whether open to find accused committed acts in furtherance of conspiracy – Trial – Whether trial unfair by reason of Crown alleging lies evidencing consciousness of guilt against one accused but not another – Jury directions – Whether judge sufficiently directed jury as to need for Crown to prove intent to advance Islam through violence – Whether judge erred by creating new arguments for Crown – Inconsistent verdicts – Whether acquittal of some co-accused inconsistent with conviction of others – Indictment – Severance – Whether strength of Crown case against one co-accused so much weaker than strength of Crown case against another as to require that indictment be severed – Possible alternative verdicts – Whether judge bound to leave State offence as possible alternative verdict to Commonwealth offence charged – Constitutional law – Freedom of religion – Whether proscription of advancement of religious causes by violent means a law ‘for prohibiting the free exercise of any religion’ contrary to s 116 of the Commonwealth Constitution – Evidence – Whether evidence of accused’s hostility towards Australia and her citizens to be excluded as evidence of which the probative value was outweighed by prejudicial effect – Whether judge sufficiently directed jury that evidence admissible against one accused not admissible against another – Whether judge erred in directing jury that some aspects of evidence important and others peripheral – Criminal Code (Cth), ss 11.5(1) and 101.6(1) – Commonwealth Constitution, s 116.

CRIMINAL LAW – Sentence – Each offender sentenced to 18 years’ imprisonment with a non-parole period of 13 years and six months – Whether sentence manifestly excessive – Amateurish operation – Application of three-quarters rule in determining parole period – Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470, R v Elomar [2010] NSWSC 10; (2010) 264 ALR 759, and Benbrika v The Queen (2010) 29 VR 593, considered.

CRIMINAL LAW – Sentence – Director’s appeal – Whether sentence manifestly inadequate – Seriousness of offence and maximum penalty – General and specific deterrence – Protection of the community.

Murdoch (a Pseudonym) v The Queen [2013] VSCA 272 (27 September 2013)

CRIMINAL LAW – Sexual offences – Cross admissibility of evidence of two complainants – Evidence of concoction, collusion and contamination – Whether trial judge erred by admitting the tendency and coincidence evidence – Whether the trial judge gave adequate directions – Appeal allowed – Convictions quashed and a retrial ordered.

CRIMINAL LAW – Appeal against sentence – Whether the sentencing judge erred in imposing a higher sentence on retrial than that imposed following previous trial – Observations on justification for increasing sentence following real possibility of collusion could not be excluded – Retrial.

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 (27 September 2013)

CONTEMPT OF COURT – alleged failure of fourth respondent to comply with order of the Federal Court of Australia – two charges of contempt of Court – consideration of requisite elements and whether proven beyond reasonable doubt – whether alleged contemptor was knowingly concerned in breach of orders

Held: both charges of contempt of Court proved beyond reasonable doubt, notwithstanding that certain particulars of charge 2 not so proved

Bodycorp Repairers Pty Ltd v Maisano (No 8) [2013] VSC 472 (4 September 2013)

CONTRACT – breach – repudiation – franchise agreement – whether termination unlawful – whether breach by franchisor of essential term – willingness to perform only in manner substantially inconsistent with obligations

CONTRACT – breach – unreasonable restraint of trade

RESTITUTION – claim for work and labour done – flawed method of proving any loss suffered

TORT – inducement of breach of contract – attempt to establish case by inference

PRACTICE AND PROCEDURE – application to amend pleadings during trial – leave granted – date from which amendment to take effect – whether new and distinct cause of action – relation back effect of order.

Vic WorkCover Authority v Elsdon [2013] VSCA 235 (6 September 2013)

ACCIDENT COMPENSATION — Workplace accident — Impairment — Assessment — Medical Panel — American Medical Association Guides — Interpretation — Multilevel fractures of transverse process — Whether constituted ‘multilevel spine segment structural compromise’ — Whether Panel decision vitiated by jurisdictional error — Whether expert evidence admissible on question of construction of Guides — Appeal dismissed — Transport Accident Commission v Serwylo [2010] VSC 421 applied — Accident Compensation Act 1985 (Vic) s 91(1) — American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed).

EVIDENCE — Expert evidence — Interpretation — Impairment assessment — American Medical Association Guides — Categories of spinal impairment — Whether technical terms — Whether used with specialised meaning — Whether expert medical evidence admissible to assist in construction of terms — Evidence Act 2008 (Vic) ss 55(1), 76(1), 79.

WORDS AND PHRASES — ‘As with fractures’, ‘fractures’.

Semaan v The Queen [2013] VSCA 134 (3 June 2013)

CRIMINAL LAW – Appeal – Conviction – Appellant convicted of one charge of dangerous driving causing death and five charges of dangerous driving causing serious injury – Whether trial judge erred in admitting the earlier driving of the accused – Whether trial judge erred in directions to the jury concerning the purpose to which the jury might use the evidence of the appellant’s earlier driving – Appeal allowed – Convictions quashed and retrial ordered.

The Queen v De Saint-Aromain (Ruling No 1) [2013] VSC 398 (26 July 2013)

CRIMINAL LAW – Ruling – Admissibility of a statement of additional evidence from a witness – Evidence vague, not sufficiently relevant and not a professional opinion – Evidence inadmissible – Criminal Procedure Act 2009 (Vic) s 188, Evidence Act 2008 (Vic) ss 55, 59, 76, 77, 79(1).

Doolan v R [2013] NSWCCA 145 (3 July 2013)

CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission of inconsistent statements by appellant about stolen motor vehicle – relevance – where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found

CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission – warning to jury – s 137 Evidence Act 1995 – whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence

R v Jacobs (No 6) [2013] NSWSC 947 (27 June 2013)

EVIDENCE LAW – evidence of unfired cartridges located at home of accused – unfired cartridges found whilst accused in hospital – unfired cartridges of same calibre as ammunition found at scene – majority of unfired cartridges of same make as ammunition found at scene – whether evidence relevant – whether probative value of evidence outweighed by danger of unfair prejudice – evidence to be admitted

Gangi v Boral Resources (NSW) Pty Limited (No 2) [2013] NSWSC 569 (17 May 2013)

TORTS – negligence – concrete batching plant – plant collapse onto truck – bin collapse – scope of duty of care – whether risk of harm arising from collapse was foreseeable – exposure to significant risk – constructive knowledge of risk – whether risk ought to have been known – systems of work at the plant – how the plant was maintained – deficiencies in systems – bin support structure required maintenance before collapse – bin support system – expert evidence – s 5B Civil Liability Act 2002 – causation – s 5D Civil Liability Act 2002 – reasonable care was required – plaintiff’s injuries – credibility – medical records – expert evidence – damages – physical and psychological injuries – economic losses – orders

EVIDENCE – privilege – experts not given access to relevant information – inferences drawn against defendant

R v Abdollahi (No 2) [2013] NSWSC 475 (11 February 2013)

CRIMINAL LAW – particular offences – offences against peace and public order – affray, riot, unlawful assembly and like offences – riot – evidence of incidents in disturbance beyond when accuseds’ involvement can be established – evidence relevant to common purpose – sufficient temporal connection – probative value not outweighed by unfair prejudice

M A v The Queen [2013] VSCA 20 (14 February 2013)

CRIMINAL LAW – Appeal – Appeal against conviction – Convictions arising out of sexual abuse of appellant’s daughter – Admissibility of expert evidence as to the general behaviour of child victims of sexual abuse – Incidental evidence concerning common parental reactions – Relevance of evidence concerning counter-intuitive behaviour –Whether witness had ‘specialised knowledge’ for the purposes of ss 79 or 108C of the Evidence Act 2008 – Whether basis of opinion properly established – Whether probative value outweighed by danger of unfair prejudice – Evidence Act 2008 ss 55, 79, 135, 137, 108C – Criminal Procedure Act 2009 s 388 – Appeal dismissed.

Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2 (1 February 2013)

EQUITY – fiduciary duty – fact-based fiduciary duty – where plaintiff granted to defendant a licence to exploit technology – finding of breach of contract through exploitation contrary to licence agreement – concurrent finding of existence and breach of fiduciary duty of defendant licensee by reason of same acts – no recognised fiduciary relationship – whether the circumstances gave rise to the fiduciary duty alleged – EQUITY – equitable obligation of confidence – licence agreement imposed confidentiality restraints with respect to information – finding of existence and breach of concurrent equitable duty of confidence – question whether equitable duty may co-exist with contractual duty not in contest – whether information said to be protected by equitable duty sufficiently identified – whether confidential quality sufficiently shown – course of trial such as to prevent adequate inquiry into those questions – need for new trial – TRADE AND COMMERCE – misleading or deceptive conduct – representation as to future matter – whether representation contrary to statute – whether order varying contract affected by such representation properly made

Eire Contractors Pty Ltd v O’Brien [2012] NSWCA 400 (11 December 2012)

NEGLIGENCE – duty of care – breach of duty – workplace accident – whether facts found by judge adequate to support findings of negligence and decisions on apportionment between tortfeasors and absence of contributory negligence – NEGLIGENCE – damages – future economic loss – whether findings on likely time of return to work and quantification of lost earnings supportable – whether award for non-economic loss should be increased to reflect current prescribed damages – EVIDENCE – workplace accident report – no evidence of authorship – whether report admissible – whether admitted “only against” one defendant

Australian Competition and Consumer Commission v Air New Zealand Limited (No 2) [2012] FCA 1363 (30 November 2012)

EVIDENCE – Admissibility – relevance – whether evidence of matters that pre-date and post-date the matters pleaded are nonetheless relevant to proving pleaded matters – whether evidence of matters that occurred in markets other than the markets pleaded are nonetheless relevant to proving the matters pleaded

EVIDENCE – Admissibility – hearsay – whether perceptions of perceptions are admissible – whether question arises

EVIDENCE – Admissibility – hearsay – whether documents relevant for a non-hearsay purpose

EVIDENCE – Admissibility – relevance – documents of uncertain status – whether relevant

EVIDENCE – Admissibility – draft and non-final documents – whether admissible

Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355 (30 November 2012)

EVIDENCE – Admissibility – relevance – whether documents relevant to case as pleaded

EVIDENCE – Admissibility – relevance – whether documents concerning alleged conspirators not at trial are relevant to the allegations made against those who are – whether use of such documents is coincidence reasoning – discussion of the matters that such documents might be used to prove

EVIDENCE – Admissibility – business records – whether minutes of meetings of an organisation that represents businesses are business records of the businesses or, alternatively, the organisation – whether representations made therein are made ‘in the course of, or for the purposes of, the business’ of each member business or, alternatively, of the organisation – whether document must belong to the entity to whose business the document relates – whether minutes discovered on the computer networks of a business are ‘belonging to or kept by’ the business

EVIDENCE – Admissibility – business records – whether statements of opinion in business records are admissible

EVIDENCE – Admissibility – relevance – authenticity – whether document’s authenticity must be proved for the document to be admissible – whether inferences as to authenticity may be drawn from the document itself – whether National Australia Bank v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309 should be followed

Gigi Entertainment Pty Limited v Schmidt [2012] NSWSC 1423 (23 November 2012)

DAMAGES – leases and tenancies – whether there was a breach of contract – lock out by lessor – hotel – claim for damages for outstanding rent; repair and replacement of plant and equipment; repair and maintenance of hotel; and rent to end of term – defendant in default of various obligations including rent – plaintiff re-entered, occupied and took possession of the hotel – claim that defendant failed to maintain, replace, repair hotel – loss of bargain claim dismissed – referee claims – evidentiary difficulties – nature of lease obligations – was the defendant liable for any prior breach of the lease – observed items – claim for painting-head contractor – claim for costs of re-entry – cross-claim – repayment of security deposit – conversion – claim in respect of mini bus – interest – costs

PROCEDURE – various notice of motions – leave sought to rely on further affidavits – refusal of pleading amendment – refusal of the adjournment application – rejection of the tender

EVIDENCE – admissibility – expert evidence