http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/569.html

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/475.html

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

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/2.html

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

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/400.html

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

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1363.html

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1423.html

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1449.html

CRIMINAL LAW – Evidence – tendency – domestic homicide – murder – application on voir dire to adduce evidence that the accused has a tendency to act in a violent way when he has a disagreement with a person with whom he has or had an intimate relationship – alleged attempt to strangle previous partner’s male colleague – alleged attempt to strangle previous partner – accused caused self harm following dispute with previous partner – similarity of acts – distance in time – whether significant probative value to facts in issu

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1415.html

EVIDENCE – whether evidence relevant

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/342.html

NEGLIGENCE – duty of care – plaintiff slipped on grease on surface of car park – escaped from grease trap under control of building manager – content of duty of care owed by car park operator to avoid risk of slipping on car park surface – whether hourly inspections would have prevented accident – grease trap alarm system known to be faulty – content of duty of care owed by building manager – whether regular inspections of grease trap would have prevented accident

NEGLIGENCE – apportionment – whether primary judge erred in concluding car park operator primarily at fault as best placed to deal with risks and safety

EVIDENCE – admissibility – whether primary judge erred in rejecting tender of documentary evidence – tendering party’s obligation to make clear purpose and basis of tender – ordinarily no “improper” rejection of evidence if grounds which would justify tender not argued before primary judge.

PROCEDURE – amendment – joinder – oral application to amend and join additional party – no notice of motion served – challenge to exercise of discretion to dispense with filing and service of notice of motion and to grant leave to amend – no House v The King error – Civil Procedure Act, s 64

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1215.html

NATIVE TITLE – application for review of Registrar’s decision under s 190F Native Title Act 1993 – Registrar ‘s determination that native title application does not meet criteria for registration in s 190B – applicant provides additional anthropological evidence – whether Tribunal was required to consider laws and customs of local clan as opposed to wider nation – whether the application meets the criteria in s 190B – discussion of ‘society’ for purposes of Native Title Act – discussion of anthropological evidence – native title application does not meet requirements for registration – application dismissed.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/996.html

2. Ms Winton was a Division Director at Macquarie Relationship Banking. The sole ground of objection raised by MBL is that, contrary to the requirements of ss 55 and 56 of the Evidence Act 1995 (Cth), none of the identified paragraphs of Ms Winton’s outline of evidence is relevant to any issue in the case ASIC has pleaded against MBL. Specifically, MBL claimed that Ms Winton’s evidence is not relevant to ASIC’s case as it relates to MBL’s knowledge of the managed investment scheme allegedly promoted by Storm Financial Limited (Storm Scheme).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/916.html

Evidence – admissibility – whether opinions expressed were admissible

Evidence Act 1995 s 55, s 76(1), s 79(1),
s 80(a), s 80(b)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/244.html

ADMINISTRATIVE LAW – judicial review – failure to take into account relevant considerations – whether failure to refer to particular evidence can constitute failure to take into account relevant consideration – whether applicant entitled to rely on the reasons of the decision maker – whether necessary for applicant to rely on submissions before decision maker – need to identify source of legal obligation to consider mandatory factors – whether decision maker considered evidence – whether evidence is a relevant consideration for the purposes of judicial review

DAMAGES – motor vehicle accident – future economic loss – use of buffer – whether decision to award damages by way of buffer is an evaluative judgment – whether buffer manifestly unreasonable given likely future loss

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/107.html

CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown was highly prejudicial to the accused – the probative value of the evidence did not substantially outweigh the prejudicial effect – application refused

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, Indictment or Presentment – Defence application to sever the indictment – found that there would be an unacceptable risk of prejudice to the accused if counts were heard in one trial – indictment severed – application allowed

Evidence Act 1995 (Cth), ss 97

Evidence Act 2011 (ACT), ss 55, 56, 97, 101

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/713.html

CRIMINAL LAW – assault – summary hearing in Local Court – charge dismissed – prosecution appeal against dismissal – Magistrate did not permit prosecutor to call certain witnesses – whether denial of procedural fairness – whether error of law in Magistrate’s approach to dismissal of charge – whether Magistrate failed to give reasons required by law – duties of Magistrate at defended criminal hearing – error of law and denial of procedural fairness established – matter remitted to Local Court for hearing before a different Magistrate

40. Of course, the progress of a hearing will depend upon the issues arising for determination during the trial, including the question as to whether, as a matter of law, there is no prima facie case at the close of the prosecution case. This involves application of well-recognised principles: Director of Prosecutions v Elskaf [2012] NSWSC 21 at [47]. If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the tribunal of fact in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left for decision by the tribunal of fact. A verdict of not guilty may be entered at the conclusion of the prosecution case only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 212, 214-215. The principle remains the same whether application is made for an acquittal at the end of the prosecution case where trial is proceeding before Judge and jury, or where trial is proceeding before a Judge or Magistrate sitting alone.

41. The duty of a trial Judge, whether sitting with a jury or sitting alone, has been repeatedly stated and is well understood. In Crompton v The Queen [2000] HCA 60; 206 CLR 161, Gleeson CJ said at 173 [19]:

“Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice.”

42. A criminal trial is not an inquisition. It is for the parties to act as protagonists in the trial with the judge to “take no part in that contest, having his [or her] own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law”: Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 517 (Barwick CJ).

43. These principles have been stated repeatedly in decisions such as Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265; 207 A Crim R 362 at 369 [28].

44. In Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82, the Court said at 95-96 [58]:

“Criminal proceedings are conducted as adversarial litigation: Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at 618-619 [9]. The role of the presiding Judge is to hold the balance between the contending parties without himself or herself taking part in their disputation. The Judge does not exercise an inquisitorial role in which he or she seeks to remedy the deficiencies in the case of either side, nor is part of the function of a Judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 682. The fundamental task of a Judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at [76]; Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 at [138]- [140]. Although these observations were made concerning the role of the Judge in a jury criminal trial, I consider that they are equally applicable to Magistrates hearing and determining criminal proceedings in the Local Court, whether defended hearings or sentence proceedings following a plea of guilty.”

45. If the defence objects to the prosecution calling a particular witness or witnesses or adducing certain evidence from a witness or objects to the tender of physical evidence, then the Judge or Magistrate should ascertain the basis of the objection for the purpose of ruling whether the evidence ought be allowed. If necessary and appropriate for the purpose of ruling on the objection, evidence may be given on the voir dire even if proceedings are without a jury: s.189 Evidence Act 1995 ; Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78 at [107]- [112].

46. The Evidence Act 1995 applies in an adversarial context. It is the parties who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at 9 [20] (Gleeson CJ and Hayne J).

47. There is no obligation on a trial judge to reject evidence under s.137 Evidence Act 1995 to which no objection has been taken: R v FDP [2008] NSWCCA 317 at 651-653 [23]- [30]. This reflects the role of the judge in adversarial proceedings. A statutory exception to this general principle is s.41 Evidence Act 1995 which requires a judge to reject an improper question whether or not objection has been taken: R v FDP at 652 [28]-[30] (concerning s.275A Criminal Procedure Act 1986 which is now to be found in s.41 Evidence Act 1995 ).

48. A prosecutor at a criminal trial (including a police prosecutor) is under a duty to lead the whole of the evidence to which the accused is required to make answer: Dhanhoa v The Queen at 9 [20]. The duty of the prosecutor with respect to the calling of witnesses is well known: R v Kneebone [1999] NSWCCA 450; 47 NSWLR 450 at 457-462 [39]-[56].

http://www.austlii.edu.au/au/cases/cth/FCA/2012/680.html

PRACTICE AND PROCEDURE – application under rr 6.01 and 29.03 of the Federal Court Rules 2011 to strike out paragraphs of affidavit – whether paragraphs contain matter that is scandalous, irrelevant or otherwise oppressive

17. I do not propose to strike out these paragraphs. In my view they do not contain matter that is scandalous or oppressive. Having said that, I doubt that some of the material is of much probative value. For example, some of the conversations recorded by the first defendant (see paragraphs 4.3, 4.5, 4.6, 4.7, 4.8, 4.11 and 4.12) do not seem to advance materially the narrative of the events that the first defendant has recorded. Nevertheless, I would not be prepared to find at the present time that, if read at trial, the asserted facts in these paragraphs would not pass the threshold of s 55 of the Evidence Act 1995 (Cth) (the Evidence Act ). There may be a real question whether the probative value of such evidence is substantially outweighed by the danger that it may cause or result in undue waste of time or would otherwise be liable to rejection on discretionary grounds under s 135 of the Evidence Act . That is not, however, a ruling I am prepared to make at the present time. It is sufficient for me to indicate that, as presently advised, some of the conversational material in these paragraphs appears to me to be of marginal relevance.
…
31. In my view these paragraphs do not contain matter that is scandalous or oppressive. The second plaintiff may well disagree with the first defendant’s opinions and conclusions underpinning his report to ASIC. That disagreement does not make the first defendant’s proposed evidence about the making of this report, or his reason for making it, either scandalous or oppressive. Moreover, I do not understand the first defendant to be contending that he proposes to read these paragraphs to prove that the second plaintiff has engaged in conduct that does contravene the Corporations Act. Rather he proposes to read these paragraphs to show that a report to ASIC was made and that that fact affected his relationship with the second plaintiff and influenced the course of events leading to the first plaintiff being taken out of administration and the mortgage of the Kelman Estate being granted. If need be, these paragraphs can be read subject to a limitation under s 136 of the Evidence Act as to their use. Any such ruling can be made at trial. I am not persuaded that they contain matter that is so lacking in relevance that they should be struck out. I am not satisfied that these paragraphs contain matter that is oppressive in the circumstances.

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/89.html

CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown is of significant probative value – application conditionally allowed

CRIMINAL LAW – EVIDENCE – Crown application to adduce Coincidence Evidence – evidence sought to be adduced by the Crown is not coincidence evidence according to s 98 of the Evidence Act 2011 (ACT) – application refused

Evidence Act 1995 (Cth), ss 97

Evidence Act 2011 (ACT), ss 55, 56, 97, 98, 101, 137,

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2012/2.html

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DEFENCE AND WAR – charges of indecency – seven counts of indecency found by General Court Martial –appeal – grounds – prosecutor’s final address at trial prejudicial – direction made by Judge Advocate to jury – any prejudice to appellant negatived – grounds not made out – ruling made by Judge Advocate on objections to charge sheet – provision relied upon said to be unavailable – duplicity alleged – grounds not made out – provision of Crimes Act on consent said not to apply – ground not made out – Judge Advocate said to have erred in pre-trial ruling on the defence’s objection to a member of the panel – application was refused – said to be reasonable grounds for inferring ostensible bias – resulting in wrongful convictions and substantial miscarriage of justice and/or material irregularity – ground not made out – fraudulent misrepresentation of fact said to have occurred – error alleged in Judge Advocate’s directions to panel on whether or not complainant’s consent negatived – ground not made out – convictions said to be inconsistent with acquittals – found – open to panel to conclude to requisite standard that appellant guilty – ground rejected – conviction under Charge 22 said to be unreasonable and/or could not be supported by evidence – ground upheld – Charge 22 quashed – Charge 23 laid as alternative to Charge 22 – evidence supports this charge – conviction recorded and appellant sentenced to severe reprimand – recorded telephone conversation between complainant and appellant said to be inadmissible – Judge Advocate ruled that desirability of admitting evidence outweighed undesirability of admitting it – no error in exercise of discretion – ground not made out – admission of recording of police interview with appellant – part of interview referring to covert recording – admission of this part of interview said to be erroneous – no error found – ground not made out – appellant said offences subject of convictions were indictable offences – entitled to trial by jury – ground dismissed – Tribunal bound by authority requiring rejection of ground

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/68.html

COSTS – indemnity costs – offer of compromise – whether Dust Diseases Tribunal Regulation 2007 (NSW), Pt 6, only operates to the extent that it is not inconsistent with the Uniform Civil Procedure Rules – whether offeror had provided all documents necessary to enable the offeree to consider offer under the Uniform Civil Procedure Rules – whether offer was open for a reasonable time

EVIDENCE – admissibility – expert evidence – whether appropriate to consider all of the evidence to determine whether expert evidence should have been admitted – whether pathologist able to give evidence as to the causal connection between exposure to asbestos dust and lung cancer, given current state of medical knowledge

TORTS – causation – whether increase in risk can be equated with factual causation – whether liability requires satisfaction of the necessary condition test – whether open to Tribunal to accept pathologist’s opinion as to link between exposure to asbestos dust and lung cancer

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/34.html

TORTS – negligence – duty of care – roads – failure to install guide posts – public or other authorities – special statutory power under Civil Liability Act 2002, s 43A
TORTS – negligence – duty of care – roads – failure to install guide posts – identification of relevant risk – Civil Liability Act 2002, s 5B
TORTS – negligence – duty of care – roads – failure to install guide posts – public or other authorities – whether Council exercising special statutory power under Roads Act 1993, s 87
CIVIL PROCEDURE – pleadings – whether statutory defence pleaded under Civil Liability Act 2002 – Uniform Civil Procedure Rules 2005, r 14.7 – material facts – necessity to plead
CIVIL PROCEDURE – pleadings – failure to plead – ambush – fairness to opposing party – prejudice – Civil Procedure Act 2005, ss 14, 56, 59 and 60
CIVIL PROCEDURE – defence – matters that must be pleaded – Uniform Civil Procedure Rules 2005, r 14.14

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/21.html

CRIMINAL LAW – appeal – conviction – unreasonable verdict – unsupported by the evidence – circumstantial evidence – circumstantial evidence to be considered as a whole -reasonable doubt on independent assessment of the evidence – jury advantage in hearing evidence insufficient to resolve reasonable doubt.
CRIMINAL LAW – appeal – conviction – identification evidence – probative value – “displacement effect” – appropriate directions – whether evidence of similar appearance is identification evidence. CRIMINAL LAW – appeal – conviction – expert evidence – identification and proof of assumptions by admissible evidence – qualification of expert – weight to be given to expert evidence.
CRIMINAL LAW – appeal – conviction – expert evidence – breach of Expert Witness Code of Conduct – whether breach of Expert Witness Code of Conduct goes to admissibility or weight – discretionary exclusion of evidence of expert who breaches Code of Conduct.
CRIMINAL LAW – appeal – conviction – evidence – admissibility – relevance.
CRIMINAL LAW – appeal – conviction – whether a conclusion of fact is an indispensable intermediate fact – need for a Shepherd direction – Shepherd direction not required.
CRIMINAL LAW – appeal – conviction – whether trial miscarried because of prejudice occasioned by the Crown prosecutor – prosecutor’s duty of fairness – whether prosecutor breached trial judge’s ruling – whether prosecutor invited jury to invert the onus of proof – whether prosecutor impermissibly gave personal opinions – whether prosecutor misrepresented evidence – whether prosecutor failed to adhere to case theory.
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – need for evidence of enterprise and participation by the accused.
CRIMINAL LAW – evidence – lack of evidence to support motive – dangers of inviting speculation as to motive – whether unfair prejudice occasioned.
CRIMINAL LAW – new and fresh evidence – evidence not disclosed by prosecution at time of trial.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/9.html

EVIDENCE – admissibility – coincidence evidence – s 98 Evidence Act 1995 (Cth) – significant probative value – whether regard must be had to alternative inferences inconsistent with guilt – whether R v Zhang was correctly decided – distinction between judge and jury functions in a criminal trial.

CRIMINAL LAW – appeal – pre-trial order – insider trading – s 1043A(1) Corporations Act 2001 (Cth)

Evidence Act 1995 (NSW) – ss 55, 56, 97, 98, 101, 135, 137

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/375.html

TORTS – false arrest and false imprisonment – absence of reasonable suspicion to arrest – appellant arrested following investigation by police into allegations that he was attempting to sell a fake certificate of guarantee for platinum – evidence did not establish cause of action

TORTS – malicious prosecution – absence of reasonable and probable cause for prosecution – whether reasonable basis for prosecutor’s belief – one charge withdrawn – one charge dismissed – acquitted on remaining charge – evidence did not establish cause of action

TORTS – injurious falsehood – evidence subject to immunity – cause of action not established

TORTS – conspiracy to injure by lawful means – conspiracy to injure by unlawful means – evidence did not establish causes of action

ADMINISTRATIVE LAW – procedural fairness – whether trial judge’s descriptions of appellant’s evidence and comments upon the magistrate’s reasons breached procedural fairness – trial judge considered evidence having regard to its relevance, weight and sufficiency – trial judge’s comments upon magistrate’s reasons not integral to dismissal of appellant’s causes of action – no denial of procedural fairness

COSTS – Civil Procedure Act 2005, s 98(4)(c) – specified gross sum costs order -where appellant impecunious and unlikely to satisfy any costs order – where costs of assessment unlikely to be recouped – whether trial judge’s discretion miscarried as to costs – trial judge correctly exercised power to make an order for specified gross sum costs instead of assessed costs

COURTS AND JUDGES – disqualification – apprehended bias – conduct of trial judge in relation to unrepresented litigant – trial judge did not err in refusing to recuse on the ground of apprehended bias

COURTS AND JUDGES – duty to unrepresented litigant – obligation to ensure unrepresented litigant has information about the practice and procedure of the court – obligation to ensure a fair trial

EVIDENCE – admissibility – expert evidence – trial judge did not err in admitting expert evidence where expert not required for cross-examination

EVIDENCE – admissibility – transcript of Local Court proceedings – whether trial judge erred in rejecting the whole of the transcript of Local Court proceedings – trial judge did not err – basis of tender of the transcript was convenience – no identification of the relevant portions of the transcript

EVIDENCE – privilege – immunity given to statements made in court or in connection with court proceedings – statements upon which appellant based claims in injurious falsehood and conspiracy to injure protected by immunity

PRACTICE AND PROCEDURE – adjournment – where appellant did not have legal representation for balance of the hearing – whether trial judge’s refusal to grant an adjournment constituted a miscarriage of discretion – trial judge did not err in refusing an adjournment

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules, r 51.36(2) – challenges to findings of fact – requirement for separate identification in written submissions of challenges made to primary facts found by trial judge

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1446.html

TRADE AND COMMERCE – other regulation of trade or commerce – statutory regulation of particular matters – Fair Trading Act 1987 – misleading or deceptive conduct – representations by financial adviser as to present and future matters – nature and performance of investments – whether reliance by investors upon advice
TORTS – negligence – professional advice concerning investments in agricultural managed investment schemes – breach of duty – whether financial adviser failed to carry out adequate assessment of investments – whether investments were “sound, prudent and sensible” having regard to investors’ instructions and risk profile – contributory negligence – apportionment of responsibility and damages
CONTRACTS – general contractual principles – discharge, breach and defences to action for breach – whether breach of retainer by accountants and financial advisers in relation to investment advice
EQUITY – general principles – fiduciary relationships – financial adviser – conflict of interest arising from commission entitlement in respect of finance borrowings for investments – whether breach of fiduciary duty – whether financial adviser failed to eschew conflict of interest
CORPORATIONS – financial services and markets – financial services providers – advice to retail clients – whether statements of advice provided – whether statements of advice defective – liability of financial services licensee and authorised representative – whether loss or damage suffered because of failure of provide statement of advice or because statement of advice defective
DAMAGES – general principles – valuation of failed agricultural managed investment scheme investments – effect of investments on plaintiffs’ post-tax cashflow – application of consumer price index to reflect present value – application of Supreme Court rates to reflect loss of opportunity to earn interest
DAMAGES – general principles – incidence of taxation as affecting damages – “grossing up” of damages for taxation – expenditure relating to tax-deductible investments – ordinary income – whether damages to “fill the hole” in assessable income – statutory income – whether assessable recoupment – whether assessable recoupment ascertainable from award of damages
LIMITATION OF ACTIONS – contracts, torts and personal actions – when time begins to run on claims – failed investments – question as to when loss occurred
PARTNERSHIP – generally – what constitutes partnership – whether directors of a corporate partner were partners themselves – conduct of corporate directors consistent with them being partners as individuals – construction of partnership agreement
PARTNERSHIP – actions by and against partners – actions and proceedings against firms and individual partners – whether chartered accountancy firm liable for conduct of related financial planning business

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/298.html

ADMINISTRATIVE LAW – judicial review – procedural fairness – reasonably opportunity to be heard -a failure to be notified of proceedings – whether statutory scheme deems notice to have been given – Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 25(2), Consumer, Trader and Tenancy Tribunal Regulations 2009 (NSW), cl 50(2)

STATUTORY INTERPRETATION – effect of regulation providing means of service – inconsistency between provisions – which provisions prevails – reading which permits an opportunity for party to be heard preferred over a reading which denies such an opportunity – Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 78(4);
Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW), cl 50; Interpretation Act 1987 (NSW), ss 5, 76

TENANCY LAW – statutory grounds for termination of leave – Residential Tenancies Act (NSW), s 64

93. As this Court has noted in the past, there is a link between illogicality and the “no evidence” principle: see Amaba Pty Ltd v Booth [2010] NSWCA 344 at [23]:

“Implicit in the statement that there is no evidence to ‘support’ a particular finding, is the characterisation of a relationship between the evidence and the finding. It is the same relationship inherent in the concept of “relevance”, on which the laws of evidence depend. That relationship depends on a process of reasoning which must be logical or rational. Thus, evidence is relevant which, if accepted, ‘could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’: Evidence Act 1995 (NSW), s 55(1). As explained by Gleeson CJ, Heydon and Crennan JJ in Washer v Western Australia [2007] HCA 48; 234 CLR 492 at [5]:

‘The word ‘rationally’ is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial.’”

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2005/1191.html

Defamation
Admissibility of evidence
Tendency evidence
Imputations
Truth/Falsehood of Allegation
Signficiant probative value

Evidence Act 1995 (NSW) ss 55, 56, 97 and 135

http://www.austlii.edu.au/au/cases/cth/FCA/1998/480.html

Mr Ellicott objects to the last sentence of par 19 and the whole of par 20. The provisions of the Evidence Act 1995 (Cth) (“Evidence Act”) relevant to the objection are ss 55(1), 56, 76, 78 and 135:

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2005/149.html

EVIDENCE – expert opinion evidence – forensic accountant’s report on financial position and board reporting in complex corporate group – whether report, as a whole, admissible under s 79 as opinion evidence wholly or substantially based on specialised knowledge – whether report should be excluded on discretionary grounds under s 135 – applicability of Makita principles to an accountant’s report – whether expert’s prior relationship with litigant, involving access to additional information and formation of opinions for another purpose, rendered expert’s evidence tendered by that litigant inadmissible under s 79 or open to exclusion under s 135 – whether lack of independence rendered expert opinion evidence inadmissible or open to exclusion

Evidence Act 1995 (NSW), ss 55, 56, 60, 76, 79, 135, 137

http://www.lawlink.nsw.gov.au/scjudgments/2003nswsc.nsf/aef73009028d6777ca25673900081e8d/790a94a3f065cdcdca256e00007a8a3e?OpenDocument

EVIDENCE — character evidence in civil proceedings — whether evidence relevant — whether evidence admissible as opinion evidence — whether evidence admissible under tendency rule — whether evidence should be excluded on discretionary grounds

(CTH) Evidence Act 1995 (NSW & Cth) ss 55, 56, 76, 78, 79, 97, 135

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/905.html

APPEAL – cross appeal – leave to appeal – failure to give reasons – illogicality of reasoning – whether findings based on evidence – whether certain issues were overlooked – failure to give effect to certain provisions of the lease – Land Tax Management Act 1956 – section 170 of the Conveyancing Act 1919 – mixed questions of fact and law – error of law established – appeal upheld and matter reheard – claims for unpaid rent – abatement of rent – unpleaded point – cross appeal upheld – claim for outgoings – land tax – water and council rates – painting – fire hydrant services – property management fees – pre-judgment interest

COSTS – costs of arbitration – costs below – costs of the appeal

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/230.html

APPEAL – decision in point of law – whether relevant error established where evidence supportive of and adverse to plaintiff’s claim – Dust Diseases Tribunal Act 1989 (NSW), s 32(1).

TORT – negligence – causation – whether material increase in risk constitutes a causally material contribution to the harm suffered

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/762.html

PROCEDURE – Notices to Produce – production of documents for intended Motion for security for costs – whether notice was a fishing expedition or required documents for an improper purpose – whether bank accounts and tax returns were relevant to the question of whether the claimants were “ordinarily resident” out of the jurisdiction.

http://www.austlii.edu.au/au/cases/cth/FCA/2011/809.html

APPEAL AND NEW TRIAL – Practice and procedure – whether further evidence should be admitted – matters occurring after trial – principles applicable – whether denial of procedural fairness

BANKRUPTCY AND INSOLVENCY – Bankruptcy Act 1966 (Cth) s 122(1) – equitable charges created by unstamped instruments – whether creditor was a “secured creditor”

TAXATION – Stamp duties – Duties Act 1997 (NSW) ss 211, 304 – whether stamping after execution has retrospective effect

Evidence Act 1995 (Cth) ss 55, 56, 60, 136

http://www.austlii.edu.au/au/cases/cth/HCA/2011/21.html

Evidence – Admissibility – Opinion evidence – Section 79(1) of Evidence Act 1995 (NSW) provided that rule excluding evidence of opinion did not apply where “a person has specialised knowledge based on the person’s training, study or experience” and person’s opinion “wholly or substantially based on that knowledge” – Respondent sued appellant in Dust Diseases Tribunal of New South Wales – Respondent claimed he was negligently exposed to unsafe levels of silica while working for appellant – Witness gave evidence about approximate level of respirable silica to which respondent may have been exposed – Opinion treated as admissible to found calculation of numerical or quantitative level of exposure to respirable silica – Whether opinion admissible for that purpose – Requirements for admissibility.

Procedure – Specialist tribunal – Dust Diseases Tribunal of New South Wales – Ability of judge constituting Tribunal to draw on experience as member of specialist tribunal when making findings of fact – Section 25 of Dust Diseases Tribunal Act 1989 (NSW) required Tribunal to apply rules of evidence – Section 25B provided exception subject to various requirements – Trial judge drew on “experience” that silicosis usually caused by very high levels of silica exposure in concluding that respondent’s silicosis caused by exposure to silica – Section 25B neither invoked nor complied with – Whether trial judge entitled to draw on “experience” in making finding of fact.

Procedure – Objection to admissibility of evidence – Evidence taken on voir dire – Trial judge did not rule on objection at conclusion of voir dire – Desirability of ruling on objection to admissibility as soon as possible.

Words and phrases – “based on the person’s training, study or experience”, “basis rule”, “opinion rule”, “specialised knowledge”, “specialist tribunal”, “voir dire”, “wholly or substantially based on that knowledge”.

Evidence Act 1995 (NSW), ss 55(1), 76(1), 79(1).