http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/801.html
CRIMINAL LAW – trial – murder – objection to evidence of a lawfully intercepted telephone conversation between accused whilst in custody and his father – whether capable of constituting an “admission” – whether evidence should be excluded
http://www.courts.act.gov.au/supreme/judgments/ch1.htm
EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – operation of s 53(4) Evidence (Miscellaneous Provisions) Act 1991 (ACT) – written reasons not required to be given before trial can proceed.
EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – operation of s 51 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – s 51(1) does not apply to evidence of complainant’s sexual activities with accused.
EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – whether alleged sexual activities have substantial relevance to the facts in issue or are a proper matter for cross-examination about credit – evidence of consensual sexual activity between the complainant and another man on the night of the charges not relevant to a fact in issue – evidence of prior consensual sexual intercourse followed by a rape allegation is a proper matter for cross-examination about credit – evidence of prior consensual sexual intercourse followed by a threat to make a rape allegation is a proper matter for cross-examination about credit.
PROCEDURE – interaction of provisions dealing with pre-trial hearings (div 4.2B Evidence (Miscellaneous Provisions) Act 1991 (ACT)) with provisions dealing with admissibility of evidence of complainant’s prior sexual activities (div 4.4 Evidence (Miscellaneous Provisions) Act 1991 (ACT)) and with obligations of counsel during examination of witnesses.
Criminal Code 2002 (ACT), s 712A
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 50, 51, 52, 53, 72, 73
Evidence Act 1995 (Cth), ss 55, 102, 103, 106
Evidence Act 1971 (ACT), s 76G(2)
Legal Profession (Barristers) Rules 2008
http://www.austlii.edu.au/au/cases/vic/VSC/2010/163.html
CRIMINAL LAW – Murder – Evidence of Depression of the Accused – Suicidal ideation or expressions of such intention – Re-trial – Evidence led without objection at previous trial – Issue of admissibility not raised in Court of Appeal – Relevance – Motive – Whether jury could use evidence of depression as relevant to motive – Within the common knowledge of the community – Evidence excluded.
http://www.austlii.edu.au/au/cases/cth/FCA/2010/703.html
INTELLECTUAL PROPERTY – consideration of an appeal by the trade mark owner from a decision of the Registrar to remove a trade mark from the register on the ground of non-use – consideration of s 92(4)(b) of the Trade Marks Act 1995 (Cth) – consideration of whether the trade mark owner has used the mark in relation to the services for which it is registered – consideration of the meaning to be attributed to the services as specified
Greenwood J
FCN’s website use
17. One aspect of FCN’s contended use might be addressed at the outset. FCN contends that it took steps to upload program content to its website which, when examined, contains an animated or moving depiction of the trade mark showing food items depicted in the image on the Trade Mark Certificate rotating around the TV antenna and, in addition, a static image consistent with the graphic image contained in the Certificate. TVFN contends that any use by FCN of the trade mark in relation to the website is irrelevant having regard to the description of services in the Certificate of Registration. Objection is taken to evidence concerning use of the trade mark in relation to FCN’s website. I propose to admit into evidence all of the evidence concerning use of the trade mark in connection with FCN’s website and Ms Braad’s evidence on that question in response, for the purpose of addressing the first question of whether the evidence establishes use, and then determining whether that use constitutes use in relation to the services in respect of which the trade mark is registered. I also admit the evidence on the footing that evidence of whether FCN’s subject trade mark is contained within video images uploaded to the website within the relevant period may be regarded as evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding for the purposes of s 55(1) of the Evidence Act 1995 (Cth) on the issue of whether it is more likely than not that the subject trade mark was endorsed upon particular program content in the relevant period.
…
http://www.austlii.edu.au/au/cases/cth/FCA/2010/670.html
PRACTICE AND PROCEDURE – consideration of an application to set aside a subpoena
Greenwood J
35 The question of whether a subpoena is oppressive involves answering two questions. First, does the material sought by the subpoena have an apparent relevance to the issues in the principal proceeding; that is, adjectival as distinct from substantive relevance. Does the subpoena have a legitimate forensic purpose to this extent? The answer to this question involves a consideration of the matter from the standpoint of the issuing party, Plastec. The second question is whether the subpoena is seriously and unfairly burdensome or prejudicial and the answer to that question is viewed from the perspective of the addressee: Trade Practices Commission v Arnotts Limited (No. 2) (1989) 88 ALR 90 per Beaumont J at 103; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 per Stone J at [16] and [17].
36 A subpoena will be oppressive if the documents called for are not “sufficiently relevant” to the issues in the proceeding: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 and 575 per Jordan CJ; Spencer Motors v LNC Industries [1982] 2 NSWLR 921 at 926 per Waddell J. Documents are sufficiently relevant if they are “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case”: Spencer Motors v LNC Industries (supra) at 927. Where the documents have no apparent relevance, it is likely that the issuing party is simply engaging in an impermissible fishing exercise: see Mandic v Phillips (2005) 225 ALR 760 at 777; [2005] FCA 1279 per Conti J at [49]. The notion of “relevant evidence in the case” now takes its meaning from s 55(1) of the Evidence Act 1995 (Cth) which provides that “the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/711.html
DEFAMATION – admissibility of transcript of television broadcast
DEFAMATION – identification – application for dismissal of proceedings after conclusion of evidence for plaintiffs – whether there was evidence upon which the jury could decide that the matters complained of identified the second plaintiff
McCallum J
Transcripts of the broadcasts
3 The first issue was the admissibility of a transcript of each of the two broadcasts. There was already in evidence a recording of each broadcast on DVD. Ms Reid, who appeared with Ms Brown for the plaintiffs, noted that the jury would have those discs with them as exhibits in the jury room. She submitted, in effect, that it would make no difference for the jury also to have the transcripts and that they may be assisted by having them.
4 Different views have been expressed as to both the permissibility and the desirability of that course. In Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448, three judges of the Court of Appeal were in agreement that a transcript of a radio broadcast sued on in a defamation case should not be admitted into evidence where there is no difficulty in understanding the tape played before the jury: at 472G – 473E per Clarke JA, Cripps JA agreeing; per Handley JA at 474B. Clarke JA emphasised the general principle that the meaning drawn from a broadcast by the ordinary, reasonable listener or viewer (who sees it only once) is in many cases a matter of impression. In that context, his Honour saw force in the contention that a transcript could only have distracted the jury from their task of assessing the matter from that perspective.
5 Parker was decided before the commencement of the Evidence Act 1995. In Goldsworthy v Radio 2UE Sydney Pty Limited (unreported 22 March 1999), Dunford J held that under s 48(1)(c) of the Evidence Act , both a tape of a radio broadcast and a transcript of it are admissible. However, his Honour saw “some difficulty in a transcript in that the provision of a written transcript of what was said may tend to mislead the jury into considering the material as if it were print media, eg a book or newspaper, rather than an oral broadcast”. On that basis, his Honour admitted the tape but exercised his discretion under s 135 of the Evidence Act to exclude the transcript.
6 In Vacik Distributors Pty Limited v Australian Broadcasting Corporation (unreported 4 November 1999), Sperling J took a different view. His Honour reached the same conclusion as had Dunford J that the transcript was admissible under s 48(1)(c) of the Evidence Act , subject only to the exercise of the Court’s discretion pursuant to s 135. The discretion to refuse to admit evidence under that section arises if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, misleading or confusing or cause or result in undue waste of time.
7 Sperling J acknowledged that, where a tape of the broadcast is available and the only use for a transcript is as an aide-mémoire or for ease of reference, the transcript should not be regarded as having any significant probative value at all. On that basis, his Honour accepted that, if there was any significant unfair prejudice to a defendant of admitting a transcript, that prejudice “would necessarily substantially outweigh the probative value of the evidence for the purposes of s 135”.
8 Sperling J was of the view, however, that the admission of a transcript did not entail prejudice of the kind perceived by Clarke JA in Parker. His Honour noted (as Clarke JA had) that much of what occurs at a trial in which a jury determines the question of defamatory meaning has a tendency to distract the jury from the task of assessing the effect of the broadcast at the time it was published, given that the ordinary reasonable viewer would have seen it only once. Sperling J concluded that an accurate transcript is an aid to that task, rather than a distraction from its proper performance.
9 Counsel informed me that the most recent substantive consideration of the issue is contained in the decision of Levine J in Griffith v Australian Broadcasting Corporation [2003] NSWSC 483. In that case, Levine J came to a different conclusion (from that reached by Sperling J) as to the threshold question of admissibility. His Honour considered that, since the “best” evidence of the broadcast (a tape or a disc) is before the jury, there is no fact in issue to which a transcript of the broadcast can be relevant. On that basis, his Honour held (at [13]) that a transcript is not relevant evidence within the meaning of s 55 of the Evidence Act and, accordingly, that it is not admissible under s 56 of the Act. On that analysis, s 48(1)(c) of the Act did not assist.
10 Levine J stated further (at [14]), in case his primary analysis was wrong, that he would certainly exercise his discretion under s 135 so as to exclude the transcript. His Honour emphasised the importance of the concept of “impression” in relation to transient publications and did not agree with the analysis of Sperling J in Vacik that an accurate transcript is a proper aid to the jury’s assessment of that impression.
11 The conclusion reached by Levine J that a transcript of a broadcast is not “relevant” within the meaning of s 55 of the Act where a tape or disc recording of the broadcast is available to be put before the jury may be open to debate. Assuming the tape itself is admissible, it is probably a “document in question” as defined in s 47. On that basis, there may be force in the view expressed by Dunford J in Goldsworthy that a transcript of the tape is admissible by reason of the operation of s 48(1)(c).
12 However, it is not necessary for me to decide that question. Assuming for present purposes that the transcript is admissible, I would exercise my discretion under s 135 to exclude it, for the reasons explained by Clarke JA in Parker, by Dunford J in Goldsworthy and by Levine J in Griffith. In my view, there is a significant danger that the availability of a written version of a transient publication would compromise the already difficult task for the jury of assessing the likely impression of the publication on the viewer who saw it once, in its original form, as an ordinary, reasonable member of the community would see it.
13 Further, as noted by Levine J in Griffith at [11] (and accepted by Sperling J in Vacik), the probative value of a transcript is negligible where a tape or disc that can be understood is available to the jury. In my view, the probative value is plainly outweighed by the danger to which I have referred.
14 For those reasons, I rejected the tender of the two transcripts.
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/645.html
DEFAMATION – pleadings – defence – whether parts of truth and contextual truth defences should be struck out under UCPR 14.28(1) – adequacy of particulars to support truth defence – test to be applied – capacity of matter complained of to convey contextual imputation pleaded – whether contextual imputation pleaded is an “other imputation” – context of publication relevant – permissible breadth of contextual imputation – adequacy of particulars of the truth of contextual imputations to support contextual truth defence – effect of admission by plaintiff of some particulars of truth – whether fact is in issue after admission – whether contextual imputations differ in substance – availability of particulars of bad reputation to support plea of bad reputation
http://www.austlii.edu.au/au/cases/vic/VSC/2010/257.html
CRIMINAL LAW – Evidence – Culpable driving – Whether previous criminal record of deceased admissible – Deceased riding stolen bike – Factual issue whether deceased suddenly slowed bike before impact – Relevance of prior convictions to possible decision by deceased to try to access escape route – Evidence admitted – Evidence Act 2008 (Vic) ss 55(1), 135(a).
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2009/135.html
TORTS – negligence – duty of care – duty to protect against acts of third parties – where respondent customer injured on appellant’s premises by other customers’ unruly behaviour with trolley – whether appellant, by its employees, knew of activities creating risk of injury to the respondent.
EVIDENCE – general – other general matters – unexplained failure to call witnesses – whether Jones v Dunkel inference available – burden of explaining absence of witnesses.
APPEAL AND NEW TRIAL – appeal – general principles – law applicable at the time of appeal by way of rehearing – where change in law after trial subsequently reversed by statute prior to hearing of the appeal.
http://www.austlii.edu.au/au/cases/cth/FCA/2010/467.html
EVIDENCE – claim for privilege – documentary evidence of what passed between parties during settlement negotiations with respect to costs – proscription pursuant to s 131(1) of the Evidence Act 1995 (Cth) (“the Act”) does not apply – public interest exceptions under s 131(2) of the Act may apply – Court may have regard to document for purpose of determining appropriate costs orders
Evidence Act 1995 (Cth) ss 55, 56, 131
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/71.html
REAL PROPERTY- easements- equity- relief against forfeiture- grantor with contractual right to have easement released if dominant tenement owner breached conditions- whether relief against forfeiture should be granted- whether requirement of unconscionable conduct on respondents’ part- breaches caused substantial inconvenience and loss of amenity to the servient tenement- no error in trial judge refusing relief. REAL PROPERTY- easements- court imposed easement- whether regard had to the rights of the servient tenement owner in determining whether “reasonably necessary”- whether regard to effect on servient tenement proper in assessment of “reasonably necessary”- Conveyancing Act 1919, s 88K.
Evidence Act 1995, s 55
114 However, I should make one comment on the fact finding exercise below. Under s 55 of the Evidence Act 1995 , what a judge sees on a view is evidence in the case. As I understand it, the practice I adopted in equity is now fairly standard and that is that, after the view, the judge hands down a draft note of his or her observations at the view, hears counsel before settling the final version and then records that note in the transcript or as an exhibit. In that way, everyone knows what facts the judge has taken in as a result of the view.
115 It would seem in the instant case that that process was commenced and a draft note produced, but then the process was abandoned. As a result it is understandable that a person against whom a finding of fact is stated in the reasons for judgment to have been derived from the view may justly consider that there has been unfairness.
116 In the instant case, there were some findings in this category. However, none of these went to the core of the decision and any problem here is no reason to disturb the decision.
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/70.html
ARREST – arrest at common law – Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 – requirement to inform of the “true reason” for arrest
ARREST – arrest without warrant – Crimes Act 1900 – s 352 – preconditions for arrest – lawfulness of arrest
OFFENCES – Transport Administration (Railway Offences) Regulation 1994 – cl 41 – requirement to provide warning
LICENCE – implied licence – trespass on railway land – hole in fence to railway land – whether hole in fence amounts to implied licence – whether prior use or use by other of hole in fence amounts to implied licence
EVIDENCE – Evidence Act 1995 – ss 55 & 56 – relevant evidence – evidence used for multiple purposes – credit findings – whether medical evidence as to damage can be used in adverse credit findings
EVIDENCE – Evidence Act 1995 – s 136 – unfairly prejudicial evidence – procedural fairness – limiting use of evidence – need for an application under s 136 to be made
http://www.austlii.edu.au/au/cases/vic/VSC/2010/34.html
CRIMINAL LAW – Evidence – Admissibility – Relevance pursuant to s 55 Evidence Act 2008 – Discretionary exclusion pursuant to ss 135 and 137 Evidence Act 2008 – Evidence excluded.
Negligence – Action – Collision between motor vehicles – No direct evidence of negligence – Matter of inference from proved facts – Sufficiency of facts to support inference.
Practice – Direction to jury – Inference of negligence open on proved circumstances – Whether inference should be drawn – Defendant able to explain facts from &which inference sought to be drawn – Failure of defendant to give evidence – What reliance to be placed by jury on such failure in deciding whether or not to draw inference – Nature of direction to jury.
Practice – Non-suit – Verdict by direction – History – Application in New South Wales.
http://www.austlii.edu.au/au/cases/vic/VSC/2010/21.html
J Forrest J
PRACTICE – Jury trial – Counsel’s opening – Pecuniary loss damages under the Transport Accident Act 1986 – Application to discharge jury – Application refused.
TRADE MARKS – whether use by the respondent of the letters “BSS” on the label of one of the containers in which it supplied its AQSIA™ brand balanced salt solution was trade mark use and thus infringed the applicant’s registered trade mark for “BSS” in Class 5 for ophthalmic irrigating solution – whether the respondent established that it used the letters “BSS” in that way in good faith in order to indicate the kind, quality, intended purpose or some other characteristic of its AQSIA™ brand balanced salt solution and should therefore be held not to have infringed the applicant’s “BSS” trade mark by reason of s 122(1)(b)(i) of the Trade Marks Act 1955 (Cth) – whether the letters “BSS” as at March 1988 or at any time thereafter were used as a descriptive acronym for “balanced salt solution” in the relevant trade in Australia for sterile ophthalmic irrigating solutions – whether the respondent established that, as at the date of its Cross-Claim, the letters “BSS” were not distinctive of the applicant’s “BSS” balanced salt solution product – whether the respondent established the pleaded grounds for cancelling the applicant’s “BSS” trade mark – respondent held to have infringed the applicant’s “BSS” trade mark – respondent not entitled to an order cancelling the registration of that trade mark
Evidence Act 1995 (Cth), s 55(1)
EVIDENCE — Expert evidence — Application to reject tender of expert report — Relevance — Whether expert’s evidence based on specific knowledge based on that expert’s study, training or experience — Importance of identifying the relevant opinion of the expert and the material upon which the opinion is based — Whether expert has expertise with respect to the issues on the pleadings — Held expert does have particular expertise — Held expert report covers wider issues than those on the pleadings — Held difficulties distinguishing fact from opinion within expert report — Held detailed editorial exercise would be necessary to separate relevant from irrelevant – Tender of whole pressed – Held Application allowed and tender of report rejected
Evidence Act 1995 (Cth) ss 55, 56, 76, 79
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/1211.html
Criminal Practice and Procedure
Evidence
charge of murder
previous representations of domestic violence not admitted.
LEGISLATION CITED:
Evidence Act 1995 s 55, s 65(2)(b), s 97(1), s 137
Criminal Law – Evidence – telephone intercepts – police cease monitoring calls for period – whether further intercepts unlawful – whether evidence inadmissible under s 137 Evidence Act. Practice and Procedure – failure to give Jones v Dunkel direction against Crown – whether miscarriage of justice – Verdict – evidence of accomplice – whether verdict unreasonable. Appeal – Certificates by trial judge under s 5(1)(b) of Crown Appeal Act – purpose of granting certificate. Sentence – Crown Appeal – Solicit to murder – failure to making finding as to objective seriousness of offence where standard non-parole period – error in finding motive mitigating – sentence manifestly inadequate.
Evidence Act – ss 38, 55, 90, 137, 138, 165
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/1061.html
EVIDENCE – facts excluded from proof – on grounds of privilege – waiver of privilege over documents containing legal professional advice – whether or not the gist of legal professional advice has been disclosed – whether or not the contents of that advice has any forensic purpose – whether or not privilege has been impliedly waived – whether or not it is ‘reasonably necessary’ to see advice provided to an expert in order to understand a draft report from that expert
PROCEDURE – application to rely on expert report which was served late – whether or not the expert report is of any forensic value
EVIDENCE – report of expert – report as to value of land – not commissioned or obtained for use in proceedings – no Schedule 7 acknowledgment – not served as required by rules of court – whether admissible under Evidence Act – held it is – but need for s 136(a) order to promote purpose of rules of court
Evidence Act 1995, s 55, 56, 59, 60(1), 69, 76(1), 77, 135, 136(a), 137
EVIDENCE – admissibility – various matters relevant to admissibility of business records – provenance of foreign language original and reliability of English translation – PROCEDURE – discretion of court under Civil Procedure Act 2005 to dispense with the rules of evidence – whether discretion should be exercised
Evidence Act 1995, ss 55, 56, 59, 69, 75, 135
ABORIGINES – children -separation – whether forced or consensual – whether application of general policy without regard to individual circumstances
EVIDENCE – demarcation between matters known to a judge personally and matters before a court formally as evidence – trial judge bound by evidence formally before the court – ability of a trial judge to accept part only of a witness’ evidence – weight to attach to documentary evidence – application of the Briginshaw test to a non party witness – whether principles of Briginshaw have equal and like application to persons whether they are, or are not, parties to the litigation – rule in Jones v Dunkel – absence of witnesses claimed to be material witnesses – tendency evidence in civil trials – admissibility – s 97 Evidence Act 1995 (Cth) – whether risk of concoction
WRONGFUL IMPRISONMENT – whether applicants detained – wrongful imprisonment and deprivation of liberty – whether detention unlawful – whether statutory powers exceeded – whether application of general policy without regard to individual circumstances
STATUTORY DUTY – whether statutory duty arose – whether statute precluded duty arising – whether statute allowed recovery for breach of statutory duty
NEGLIGENCE / DUTY OF CARE – whether duty owed – whether general duty of care owed in exercise of powers under welfare statutes – whether breach of duty
EQUITY – fiduciary duty – guardianship – exercise of statutory powers over wards – whether Commonwealth owed and breached fiduciary duties to part Aboriginal people – psychiatric injury – defences – limitation statute not applying to equitable actions – limitation by analogy – laches
VICARIOUS LIABILITY – liability of the Commonwealth – whether tortfeasor servant or agent of Commonwealth – application of independent discretion rule – whether chain of command or control – whether Commonwealth controlled the administration of Aboriginal affairs in the Northern Territory as part of its ordinary governmental functions – whether Director of Native Affairs or Welfare subject to the control of the Commonwealth through the Administrator in the performance of his functions
DAMAGES – assessment of damages – loss of cultural, social and spiritual life – loss of entitlements and advantages under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – mitigation – exemplary damages – whether conscious and contumelious disregard for welfare and rights of the applicants – wanton cruel and reckless indifference – aggravated damages
LIMITATION OF ACTIONS – applications for extension of time – whether extensions should be granted – delay in bringing action – persons under disability – prejudice to the Commonwealth – hardship – whether material facts became known to the applicants
Evidence Act 1995 (Cth) ss 55, 60, 73, 74, 97
TRADE MARKS – representations of the shaving surface of a triple rotary shaver the three rotary heads being configured as an equilateral triangle, registered as trade marks under the Trade Marks Act 1955 – effect of the inclusion of a “shape” in signs that can be used as trade marks under the Trade Marks Act 1995 – whether rival vendor of rotary shavers infringed by putting triple rotary shavers on the market or by representations of their shaving surface in packaging and advertising – the nature of a trade mark use – the meaning of use of a trade mark “upon, or in … relation to … goods” – whether the goods themselves can constitute a trade mark – whether the mark must have a separate identity from that of the goods – discussion of the meaning of “distinguish” in s 41 of the Trade Marks Act 1995 – discussion of whether a container can be a mark.
REGISTERED DESIGN – fraudulent or obvious imitation – product simply not an imitation at all – principal difference from registered design an inevitable consequence of the nature of the goods, not due to a manipulation to disguise copying – nature of monopoly in a registered design – the criticality of appearance to the eye discussed as having the corollary that particular weight is to be given to the decision of the trial judge unless some error in his judgment has been demonstrated – whether it was an error not to give separate and particular attention to the appearance of so much of a shaver as was revealed through its packaging – whether it is necessary rather to consider the whole of the object said to be an imitation of the registered design – consideration of the nature of the fraudulent element in a fraudulent imitation.
SECTION 52, TRADE PRACTICES ACT – circumstances where labelling with the respondent’s own brand negatived misleading conduct.
EVIDENCE – whether s 135 of the Evidence Act 1995 gives a discretion to reject evidence in circumstances where at common law it could be rejected as too remote.
Evidence Act 1995 (Cth), ss 55(1), 56, 135
INTELLECTUAL PROPERTY – patents – pre-grant opposition to patent – “appeal” against decision of delegate of Commissioner of Patents that opposition to grant was unsuccessful – nature of proceeding before Court – extent to which expert evidence admissible
INTELLECTUAL PROPERTY – patents – “manner of manufacture” – whether claims lacked quality of inventiveness to be a manner of manufacture
INTELLECTUAL PROPERTY -patents – novelty – definition of “prior art base” – appropriate date at which prior art should be taken for assessment of novelty
INTELLECTUAL PROPERTY – patents – priority date – whether claim is fairly based on matter disclosed in a priority document – whether “real and reasonably clear disclosure” of matters claimed in patent application
INTELLECTUAL PROPERTY – patents – obviousness – inventive step – boundaries of “common general knoweldge”
INTELLECTUAL PROPERTY – patents – whether complete specification failed to define the invention
EVIDENCE – definition of “a fact in issue in the proceeding”
WORDS & PHRASES – “manner of manufacture”, “prior art base”, “real and reasonably clear disclosure”, “common general knowledge”, “a fact in issue in the proceeding”
Evidence Act 1995 (Cth) ss 4, 55(1), 56, 135, 140
http://www.austlii.edu.au/au/cases/cth/federal_ct/2003/958.html
EVIDENCE – voir dire ruling in advance of final hearing – whether evidence of expert should be disallowed on grounds of relevance and/or ultimate issue and/or opinion without specialised knowledge – concession on scope of evidence conveyed with leave after hearing of voir dire – whether evidence should nevertheless be disallowed.
Evidence Act 1995 (Cth) ss 55, 56(2), 76(1), 79, 80(a)
http://www.austlii.edu.au/au/cases/cth/FCA/2003/893.html
NATIVE TITLE – case management – expert opinion evidence – numerous voluminous reports of expert witnesses and numerous evidentiary objections to them – how to deal with the objections in the course of the conduct of trial – principles governing decisions on the objections – deficiencies in reports of expert witnesses.
EVIDENCE – application for determination of native title – case management – expert opinion evidence – numerous voluminous reports of expert witnesses and numerous evidentiary objections to them – how to deal with the objections in the course of the conduct of trial – principles governing decisions on the objections – deficiencies in reports of expert witnesses.
Evidence Act 1995 (Cth) ss 55, 56, 59, 60, 79, 135, 136
EVIDENCE – compensation claim under the Native Title Act 1993 (Cth) – expert anthropological report – Evidence Act 1995 (Cth) s 79 – admissibility of paragraphs in report
Evidence Act 1995 (Cth) ss 55, 56, 59, 60, 76, 79, 80, 135, 136
[2006] FCA 256
EMPLOYMENT – contract of employment – post-employment restraint – invalid restraint of trade – solicitation of clients – breach of employee’s duty of good faith – compensation – principles
EVIDENCE – rule in Jones v Dunkel – whether applicable if witness available to both parties
BANKRUPTCY – appeal from orders of Federal Magistrates Court transferring beneficial title of properties to trustee in bankruptcy — whether appellant beneficial owner of properties
TRUSTS – whether document titled “Declaration of Trust” effective — whether document manifested intention to declare a trust — document ambiguous in its terms — whether parol evidence rule applicable — appellant’s subsequent conduct inconsistent with declaration of trust
PRACTICE AND PROCEDURE – application to adduce “further evidence” pursuant to Federal Court Act 1976 (Cth) s 27 — further evidence relevant to creation of purported “Declaration of Trust” — principles relevant to reception of further evidence — whether evidence could have been led below — whether evidence sufficiently cogent to warrant its reception — whether evidence likely to have produced different result