INDUSTRIAL LAW – civil penalty proceedings – contraventions of Vehicle Manufacturing, Repair, Services and Retail Award 2010 (“the Award”) – underpayment of minimum rates of pay under the Award – underpayment of overtime entitlements under the Award – contravention of requirement to keep adequate records – whether contraventions were serious and part of a pattern of conduct – whether high range penalty is justified in the circumstances
EVIDENCE – admissibility – tendency evidence – whether notice requirement should be dispensed with – whether unfair prejudice to do so
12. In my opinion, the probative value of Mr Hunter’s approximation and reliance on it in circumstances where the experts are not able to identify the common ground as to the objective facts of whatever measurement is appropriate does not justify its admission into evidence. If this evidence were allowed, it would also cause or result in an undue waste of time in the proceedings: see s 135 of the Evidence Act 1995 (Cth).
PROCEDURE – civil – judgments and orders – effect of appellate judgments – whether court should determine scope of remitter as separate question in advance of further hearing – amendments – whether in the interests of justice that leave be granted to further amend particulars of defence
CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – Evidence Act 1995; ss 135, 137 – prejudicial evidence – whether evidence unfairly prejudicial to accused
EVIDENCE – admissibility – opinion; lay -whether lay opinion regarding positioning of a sign falls into the lay opinion exception s 78 Evidence Act 1995 (NSW)
EVIDENCE – Admissibility and Relevancy – father on trial for acts of indecency against daughters – proposal to cross-examine witness on specific contents of family report prepared in Family Court proceedings – no proposal to call author of report – mother’s evidence is that report is inaccurate not unfavourable – mother giving evidence through interpreter – no proposal to tender whole report – whether proposed cross-examination about impact of selected parts of report would cause unfairness – whether contents of report admissible as relevant to mother’s credibility – whether mother’s credibility would be affected by her opinion of impact of family report – probative and prejudicial value of parts of family report selected to be subject of cross-examination because they are said to be unfavourable to mother – directions to limit use of evidence not adequate to address prejudice – cross-examination not permitted about specific contents of family report.
CORPORATIONS – claim for breach of duties under financial services legislation as it applied at material times – whether respondents had reasonable basis for financial advice given – whether respondents made representations concerning appropriateness of advice or accuracy of finance applications that were misleading or deceptive or likely to mislead or deceive
CONTRACTS – whether respondents breached contractual duty to exercise reasonable care and skill in provision of financial advice – whether respondents owed duty to provide advice “as to the most suitable financial investments”
NEGLIGENCE – whether respondents breached duty to exercise reasonable care and skill in provision of financial advice
EQUITY – whether respondents obtained unauthorised benefit from financial advice relationship – whether respondents breached any contractual, tortious or equitable duty in connection with advice given or involvement in applicant’s purchase of property
EVIDENCE – expert opinion evidence – whether financial planner qualified to give expert evidence concerning duty of care issues and loss – relevance of expert evidence to matters in issue
DAMAGES – whether applicant is entitled to damages – extent to which any claimed loss and damages are attributable to respondents’ conduct – loss of opportunity claim – whether some claimed losses are outside statutory limitation period or otherwise affected by Civil Liability Act 2002 (WA)
PATENTS – lack of inventive step – whether the invention would be obvious to the hypothetical skilled addressee of the patent at the priority date – whether the hypothetical skilled addressee of the patent would have undertaken the steps in the patent as a matter of routine to lead, as a matter of course, to the invention – whether expectation of hypothetical skilled addressee of the patent in undertaking the steps in the patent is a necessary element of the test of obviousness – whether hypothetical skilled addressee of the patent must have expectation of successful production of the invention or “some other useful result” – whether the reformulated Cripps question is a test of universal application – lack of fair basis – lack of novelty.
PRACTICE AND PROCEDURE – application for leave to appeal against interlocutory decision on admissibility of evidence pursuant to r 34.50 of the Federal Court Rules 2011 (Cth) – whether application made out of time – where application for leave to appeal filed within time to apply for leave to appeal from orders – whether interlocutory decision sufficiently connected with orders such that time began to run on date of orders.
EVIDENCE – admissibility of experimental proof of facts – Federal Court Rules 2011 (Cth) r 34.50 – whether manufacture of tablets to be used in dissolution test experiments the subject of directions pursuant to r 34.50 forms part of the experimental proof of fact – whether manufacture of tablets akin to manufacture of standard products used in the course of an experiment.
Held: Appeal dismissed
EVIDENCE – whether documents “business records” – emails – whether expert valuations in documents admissible – whether asserted facts – whether documents produced by persons with specialised knowledge – not expert reports
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
EVIDENCE – documentary evidence – statutory provisions relating to business records – whether document of WorkCover a ‘business record’ – whether representations in document are made in connection with an investigation – whether investigation must in fact lead to proceedings for exception to apply – application of s 69(3)(b) of the Evidence Act 1995 (NSW)
EVIDENCE – admissibility – whether discretionary reasons for refusing to admit evidence – where evidence in the form of answers to specific questions – where witness not called – application of s 135 Evidence Act 1995 (NSW)
TRADE AND COMMERCE – Trade Practices – misleading or deceptive conduct – misleading or deceptive conduct in the taking of a competitor’s trade indicia – passing off – secondary reputation in the colour yellow on covers of telephone directories – date for assessing reputation in yellow – relevance of international use of colour yellow – whether respondents’ use of yellow covers on telephone directories was misleading or deceptive – identification of the class of consumers – erroneous assumption as to trade source – intention to deceive – failed intention to deceive – relevance of strength of reputation – relevance of use of common trade indicia – sufficiency of differentiation between similar products – whether respondents have done enough to differentiate their directories – conduct not misleading or deceptive
TRADE AND COMMERCE – Trade Practices – misleading or deceptive conduct – advertisements in telephone directories – misleading advertisement regarding comparative consumer usage
COPYRIGHT – unjustifiable threats of copyright infringement – relevance of bona fides – whether threat is groundless or unjustifiable
CONTRACT – payments allegedly made under mistake – whether mistaken in fact – breach of employment contract – bonuses – collateral agreement as to management fee – no question of law
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
PRACTICE AND PROCEDURE – application for further and better production of documents under subpoena – whether addressee had complied with subpoena – where subpoena required production of electronic properties of documents originating in electronic form – where documents produced documents in hard copy – where electronic properties not produced – application to set aside subpoena on grounds of oppression – where electronic documents within the scope of the subpoena archived on server located in United States – where compliance with subpoena will be costly and time consuming.
Held: Application for further and better production allowed. Application to set aside subpoena dismissed. Orders made for production of documents under subpoena.
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.
CRIMINAL LAW – Conviction – Murder – Evidence – Relevance – Admissibility – Connection with crime – Disposition of applicant – Drunken orgy extending over two days – Whether evidence of applicant’s drunken aggressive behaviour towards persons other than deceased on morning of second day of orgy, some hours before killing of deceased, admissible as evidence of part of one transaction of which killing formed part – O’Leary v The King  HCA 44; (1946) 73 CLR 566, applied – Evidence Act 2008 , ss 135, 137.
JURY – Discharge – Whether judge erred in refusing to discharge jury after inadmissible evidence given in error – Whether evidence productive of substantial miscarriage of justice – Crofts v The Queen  HCA 22; (1996) 186 CLR 427, applied; Baini v The Queen  HCA 59; (2012) 246 CLR 469; Baini v The Queen (No 2)  VSCA 157, referred to.
VERDICT – Whether unreasonable – Whether, in view of lies told by principal Crown witness and inconsistencies between evidence of witnesses, jury bound to have reasonable doubt as to identity of killer or her capacity to form murderous intent – Libke v The Queen  HCA 30; (2007) 230 CLR 559, applied; The Queen v O’Connor  HCA 17; (1980) 146 CLR 64, referred to; Cutter v R  HCA 7; (1997) 143 ALR 498, distinguished.
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).
CONSUMER LAW – franchising – appointment of Area Managers in relation to supply of claimed weight loss product – whether misleading or deceptive conduct – whether representations made that are false or that are false or misleading in a material particular – whether invitations made to engage in a business activity requiring the performance of work and/or the investment of moneys – whether personal respondents liable as principals or accessories – whether any relevant obligation of disclosure arises independently of the requirements of the Franchising Code.
PRACTICE AND PROCEDURE – Notice of objection to competency – whether the notice of appeal raises a question of law – whether leave should be granted to amend the notice of appeal – no question of law raised – objection to competency upheld – appeal dismissed.
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether settlement deed a “construction contract” – whether payment under that deed a “progress payment” – CONTRACT – implied terms – whether an implied term that parties deal with each other in good faith and cooperate – UNCONSCIONABLE CONDUCT – requirements for conduct to be unconscionable
PROCEDURE – civil – whether the court should permit party to amend its claim – effect of delay – requirement that responding party have sufficient time to respond
EVIDENCE – admissibility and relevancy – hearsay – whether relevant documents are admissible as business records under Evidence Act 1995 (NSW) s 69 – where identity of author of relevant documents is unknown – whether relevant documents contained previous representations made or recorded in the course of, or for the purposes of, relevant business – whether relevant representations were made by a person who had or might reasonably be supposed to have had knowledge of the asserted facts, or on the basis of information directly or indirectly supplied by such a person.
EVIDENCE – admissibility and relevancy – whether relevant documents should be excluded under s 135 on the basis that documents are unfairly prejudicial or misleading.
EVIDENCE – admissibility and relevancy – application to seek direction that relevant evidence is not to be admitted under Evidence Act 1995 (NSW) s 169 – where party had failed to comply with request to call witness – whether plaintiff’s refusal to comply with request made without reasonable cause.
CRIMINAL LAW – Evidence – Murder – Aggravated burglary – Admissibility of boot worn by accused – Prosecution seeking to match imprint at scene with accused’s boots – Prosecution in opening expressly disavowing any such connection – Irreversible forensic decisions by accused’s counsel based on prosecution position – Unfair prejudice to accused – Evidence excluded.
PROCEDURE – pleadings – amendment – where defendant seeks leave to file amended defence – where hearing is due to commence and there have been lengthy delays – whether leave for proposed amendments should be refused on case management grounds – whether plaintiff will suffer prejudice in addressing amendments.
EVIDENCE – request to call witnesses – application for order compelling plaintiff to call a witness under Evidence Act 1995 (NSW) ss 167, 169 – where plaintiff refused to comply with request – whether defendant should have leave to make request outside time limit – whether plaintiff’s refusal to comply with request made without reasonable cause – matters to be considered in exercise of Court’s discretion to order party to comply with request to call a witness.
ACCIDENT COMPENSATION – admission sought after receipt of workers compensation – whether acceptance of Workcover claim form founds request by the plaintiff that the defendant admit it has paid and continues to pay the plaintiff’s medical and like expenses – injury arising out of or in the course of employment – Accident Compensation Act 1985 ss 82(1) and 99(1).
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal to Appeal Division of ACT Civil and Administrative Tribunal – appeal removed into Supreme Court – nature of appeal in Supreme Court.
PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – whether permitting Law Society to amend charges deprived appellant of procedural fairness – whether Law Society was a model litigant – whether Law Society misled ACT Civil and Administrative Tribunal about nature and significance of amendments – no breach of procedural fairness – no misleading of Tribunal – appeal dismissed.
PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – admissibility of credibility evidence arising in cross-examination of appellant about peripheral aspects of separate matter also subject of charges brought by Law Society – admissibility of prejudicial credibility evidence – whether credibility findings should be set aside – whether ACT Civil and Administrative Tribunal misunderstood cross-examination – whether Tribunal misled by Law Society about significance of cross-examination – whether Law Society sought to mislead Supreme Court about significance of cross-examination – appeal dismissed.
PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – challenge to factual findings of ACT Civil and Administrative Tribunal – whether evidence to support factual findings – whether Tribunal obliged to accept appellant’s evidence of his state of mind at relevant times – whether Tribunal inconsistent in treatment of witnesses cross-examined without access to relevant documents – no error in Tribunal’s conclusions – appeal dismissed.
PRACTICE AND PROCEDURE – Expert evidence – Joint reports of experts – Admissibility of joint reports – Whether reasons are required for agreement between experts – Whether conclave failed to identify the material it relied upon – Whether consideration of extraneous material by the conclave constituted an irrelevant consideration – Whether experts are required to be provided with a joint statement of assumptions – Whether the questions asked of the conclave were drafted in terms that addressed relevant issues and matters appropriate for consideration by experts – Whether the joint reports are inconsistent with the common law “statement of reasoning” rule – Whether the joint reports are inconsistent with the Makita principle – Application of s 79 of the Evidence Act to joint reports of experts – Whether Court should exercise discretion to exclude the joint reports under s 135 of the Evidence Act
CRIMINAL LAW – Crimes (High Risk Offenders) Act 2006 – serious sex offender – sexual offending commenced when offender was 17 – multiple offences – offending when under the influence of drugs and alcohol – application for extended supervision order – whether offender an unacceptable risk of commission of further serious sex offences – conditions of supervision order – whether offender should be barred from viewing R18+ material – whether offender should be prevented from access to offender’s young sons – whether s 11(g) of the Act inconsistent with Family Law Act – requirement to take prescribed medication – length of order
1. At the commencement of the hearing on 10 March 2014, the second applicant sought leave to file the affidavit of Anthony John Gilfedder, affirmed 9 March 2014. In that affidavit Mr Gilfedder deposes to extracting certain data from a database identified as the Fintrax database. Mr Gilfedder is the Group Payments Manager of Fintrax Treasury Services Limited (Fintrax), a company within the same group of companies as the second applicant.
2. The purpose of the affidavit is to introduce the extracted data into evidence. The extracted data is annexure AG 1 to the affidavit. I marked a copy of the affidavit for identification: MFI 1.
3. The respondents object to the affidavit being filed. They submit that the second applicant has not explained how, if the affidavit were to be read, it would overcome the hearsay rule. They also raise objections to filing based on other matters to which I will refer.
4. The second applicant says that the extracted data is admissible as a business record pursuant to s 69 of the Evidence Act 1995 (Cth) (the Act). …
EVIDENCE – admissibility – judicial discretion to exclude or limit the use of evidence – where evidence sought to be lead seeks to contradict expert evidence
EVIDENCE – tendency evidence – whether evidence relied upon as tendency evidence had significant probative value – whether other inferences relied upon by the Crown reasonably open
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.
CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.
ESTOPPEL – Equitable estoppel – Proprietary estoppel – not established
EVIDENCE – Judicial Discretion to admit or exclude evidence – parol evidence rule – where an affidavit contained statements about conversations between parties prior to entering into a lease – party sought to admit evidence as showing the aim and object of a particular clause – whether evidence of negotiations admissible under any of the Codelfa exceptions – challenged material reflective of intentions and expectations – ruled inadmissible.
CONTRACT – whether respondents breached implied terms in contract – implied terms attaching to express terms – implied term to disclose matters relevant to express term – loss of opportunity – interpretation and application of release and entire agreement clauses where cause of action concealed by party seeking to rely on them
TRADE PRACTICES – whether respondents engaged in misleading or deceptive conduct through non-disclosure – misleading or deceptive conduct by silence – application of s 42 of the Fair Trading Act 1987 (NSW) – loss of opportunity
DUTY TO DISCLOSE – whether there is a duty under the general law requiring directors to disclose material personal interests relating to the interests of the company – whether there is a duty under the general law requiring directors not to place their own personal interests in actual or potential conflict with interests of company – whether respondents breached these general law duties
CORPORATIONS – whether duties under ss 182 and 191 of Corporations Act 2001 (Cth) were breached by non-disclosure of personal interest in a transaction by directors of company
DAMAGES – assessment of damages for loss of opportunity – quantifying damages
EVIDENCE – discussion of principle in Jones v Dunkel  HCA 8; (1959) 101 CLR 298 – application of ss 69, 135, 183 of the Evidence Act 1995 (Cth)
CROSS CLAIM – whether the applicants made misleading or deceptive representations – application of s 52 of the Trade Practices Act 1974 (Cth)
PROCEDURE – miscellaneous procedural matters – application to have hearing date vacated – where proceedings were commenced over seven years ago – whether vacation of hearing date would facilitate the just, quick, and cheap resolution of the real issue in dispute in the proceedings.
CIVIL PROCEDURE — Appeal against jury verdict on the basis that trial judge refused to grant adjournments to allow the Appellant to tender expert evidence about state of premises five years previously — Appellant slipped and fell on a dewy, wet, moss covered concrete surface with loose pebbles — Appellant applied for adjournment in order for an expert to conduct a ‘wet and dry slip test’ — Appellant failed to comply with court direction requiring expert evidence to be served within time limit — Breach of overarching obligations — Civil Procedure Act 2010 ss 7–9 — Appeal dismissed.
EVIDENCE — application to adduce tendency evidence — whether significant probative value — meaning of fact in issue — general discretion to exclude — application allowed in part.
EVIDENCE – whether evidence of a witness for the plaintiffs about what was said between himself and the first defendant in the presence of the third defendant is admissible against the third defendant given the fact that the plaintiffs did not intend to call the first defendant in their case
CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against two natural daughters – Whether appellant led evidence of good character – Whether the trial judge erred in allowing the Crown to adduce evidence of bad character through cross-examination and in rebuttal – Appeal allowed – Convictions quashed and retrial ordered.
PATENTS – threatened infringement of pharmaceutical patent for raloxifene – claim to raloxifene in particulate form with specified mean particle size – whether interlocutory injunction should be granted – whether prima facie case for final relief – strength of infringement and invalidity cases – whether mandatory interlocutory injunction should be granted requiring respondent to withdraw application for listing of its generic raloxifene products on the Schedule of Pharmaceutical Benefits – consideration of balance of convenience – significance of mandatory price reduction under Pharmaceutical Benefits Scheme – difficulties in quantifying and apportioning applicants’ losses in circumstances where mandatory price reduction triggered and generic suppliers enter market for raloxifene products.
Held: Interlocutory injunctions granted.
PRACTICE AND PROCEDURE – application for leave to appeal – interlocutory decision refusing permission to rely upon further evidence – application dismissed
EVIDENCE – legal professional privilege – whether implied waiver
EVIDENCE – whether paragraph of affidavit admissible -whether probative value of evidence substantially outweighed by danger that it might be unfairly prejudicial to a party
EVIDENCE – relationship evidence – whether relevant – operation of exclusionary provisions
EVIDENCE – admissibility – whether purported admission by second defendant to witness should be excluded under s135 Evidence Act 1995 (NSW)
PRACTICE AND PROCEDURE – application to rely on evidence filed out of time – nature and complexity of evidence – expansion of case – amendment of pleadings – imminent commencement of hearing – case management principles
EVIDENCE – application to rely on evidence of negotiations – whether evidence is excluded under s 131(1) – whether evidence is admissible under s 131(2) exceptions
EVIDENCE – exclusion of evidence under s 135 – probative value of evidence outweighed by s 135 factors
APPEAL AND NEW TRIAL – appeal against conviction – where evidence of relationship between complainant and appellant admitted at trial – whether evidence relevant to facts in issue – whether evidence involved tendency reasoning
http://www.austlii.edu.au/au/cases/vic/VSC/2013/601.html [Correct link]
NEGLIGENCE – Duty of care – Breach of duty – Crown – Failure by servants or agents of State government to exercise statutory powers – Position of control over industry – Public duty – Fisheries Act 1995, ss 7, 9, 10, 11A, 28, 34, 42, 49, 51, 53, 142, 148, 150, 151 and 152 – Livestock Disease Control Act 1994, ss 7, 8, 13, 15, 21, 24, 26, 27, 110, 113, 115 and 135 – Wrongs Act 1958, ss 48, 49, 51, 52, 83 and 85.