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.
EVIDENCE – admissibility of witness statement to police – whether evidence about the temperament of the horse known as “Dargo” should be excluded pursuant to s135 Evidence Act 1995 (NSW)
EVIDENCE – Whether evidence was obtained illegally or improperly – Discretion to admit evidence where desirability to admit outweighs undesirability to admit – Evidence obtained for the purpose of defence of litigation – Evidence obtained by improper or illegal conduct – Assessment of probative value of evidence – Probative value high, desirability of admitting outweighs desirability of excluding – Evidence Act 2008 (Vic) ss 135, 137, 138.
PRACTICE AND PROCEDURE – Obligations of parties and their solicitors under Part 2.3 of the Civil Procedure Act 2010 (Vic) – Obligation to act honestly – Obligation to cooperate with the parties and the Court – Obligation not to engage in conduct which is misleading or deceptive – Obligation not to engage in conduct which is likely to mislead or deceive – Obligation to use reasonable endeavours to narrow the issues – Failure of Applicant and Defendant to narrow the issues – Failure of Applicant and Defendant to cooperate – Failure of Defendant not to act in a way that was likely to mislead – Civil Procedure Act 2010 (Vic) ss 16, 17, 20, 21, 23.
STATUTORY INTERPRETATION – Scope of statutory authority of Electricity Corporation to enter private property – Consent of landowners to Electricity Corporation entering private property – Electricity Industry Act 2000 (Vic) ss 1, 20, 21, 85, 88, 93, 95.
ACCIDENT COMPENSATION – Evidence – Claim by plaintiff for indemnity for compensation payments to injured worker – Plaintiff alleging that defendant liable for worker’s injury – Admissibility details of settlement by defendant of worker’s common law proceeding – Whether relevant – Whether probative value outweighed by risk of undue waste of court’s fine – Evidence Act 2008 (Vic) s 135(c).
Evidence – admissibility – whether opinions expressed were admissible – whether discretion to exclude should be exercised.
EVIDENCE – Admissibility – Documents and materials used by expert witnesses in the course of preparing expert opinions – Documents and materials provided to expert witnesses in the course of preparing expert opinions – Court’s discretion to exclude evidence – Evidence Act 2008 (Vic), ss 55, 56, 69, 76, 79, 135(c), 136 – Civil Procedure Act 2010 (Vic) ss 1, 8, 9, 49(3)(g).
EVIDENCE – Re-opening of the Plaintiff’s case – Tender of fresh evidence – Overriding consideration of interests of justice.
CRIMINAL LAW – Sexual offences – Cross admissibility of evidence of two complainants – Evidence of concoction, collusion and contamination – Whether trial judge erred by admitting the tendency and coincidence evidence – Whether the trial judge gave adequate directions – Appeal allowed – Convictions quashed and a retrial ordered.
CRIMINAL LAW – Appeal against sentence – Whether the sentencing judge erred in imposing a higher sentence on retrial than that imposed following previous trial – Observations on justification for increasing sentence following real possibility of collusion could not be excluded – Retrial.
CONTEMPT OF COURT – alleged failure of fourth respondent to comply with order of the Federal Court of Australia – two charges of contempt of Court – consideration of requisite elements and whether proven beyond reasonable doubt – whether alleged contemptor was knowingly concerned in breach of orders
Held: both charges of contempt of Court proved beyond reasonable doubt, notwithstanding that certain particulars of charge 2 not so proved
Evidence – admissibility – whether opinions expressed were admissible – whether discretion to exclude should be exercised.
TORTS – defamation – judicial officer suing in respect of criticism of her performance of her judicial function – defence of truth – Uniform Civil Procedure Rules 2005, r 1.21 – questions referred to Court of Appeal – whether the defence of truth is precluded by the principle of judicial immunity – consequences for the proceedings
TORTS – defamation – judicial officer suing in respect of criticism of her performance of her judicial function – defence of truth – Uniform Civil Procedure Rules 2005, r 1.21 – questions referred to Court of Appeal – whether the defendants defence of truth constitutes an abuse of process as inconsistent with the principle of finality
TORTS – defamation – whether a judicial officer is barred from bringing defamation proceedings with respect to defamatory publications relating to criticism of the performance of a judicial officer’s judicial function
CONSTITUTIONAL LAW – operation and effect of the Commonwealth Constitution – Uniform Civil Procedure Rules 2005, r 1.21 – questions referred to Court of Appeal – whether the principle of judicial immunity is consistent with the implied freedom of political communication – whether discussion about the discharge by a judicial officer of the judicial function in a particular case is a discussion concerning political or governmental matters
PROCEDURE – questions referred to Court of Appeal before trial – amendments to pleadings in appeal court – whether questions should be answered
EVIDENCE- exceptions to hearsay rule when witness unavailable – witness refuses to give evidence
PROCEDURE – judgments and orders – order sought for proceedings or execution of judgment for possession to be stayed pending determination of other proceedings – whether the requirements of justice demand a stay – whether any prejudice to the respondent arising out of the grant of a stay – whether other proceedings would be stultified by declining a stay.
CONTRACT – construction – assignment of rights – whether party to contract (obligee) can grant charge over its contractual rights to third party without consent of other contracting party (obligor) – where contract stipulates that rights under the agreement “cannot be assigned, encumbered or otherwise dealt with… without the prior consent of the other parties (not to be unreasonably withheld)” – whether unreasonable withholding of consent constitutes breach of contract or affirmative grant of consent
CONTRACT – assignment of rights – whether refusal of obligor to consent to grant of charge over assignor’s contractual rights unreasonable – obligor protected from suit by assignor by order barring further proceedings unless lump sum costs order paid – whether purported assignee willing to pay costs – whether assignee bound by barring order – whether identity and solvency of proposed assignee legitimate considerations – where contractual relationship continues only for purpose of resolving disputes under contract – respondents concerned with legal and financial status of purported assignee – whether these matters extraneous to agreement
EVIDENCE – proof – onus – which party bears onus of proof to establish unreasonableness of refusal to consent to charge over contractual rights – where obligor commenced proceedings for declaratory relief pleading consent to charge reasonably withheld – absence of consent not contested – whether obligor needed to justify refusal of consent – not established whether unreasonable withholding of consent discharged need to obtain consent – if not, obligor entitled to relief – if so, assignees required to prove underlying factual basis, being unreasonableness of withholding consent
EVIDENCE – admissibility – judicial discretion to exclude or limit use of evidence – letters sent by obligors articulating basis for refusing consent – whether letters unfairly prejudicial, misleading or confusing – whether letters should be limited to proving refusal of consent – whether letters could be used to prove subjective intention of obligor – where assignees denied opportunity to cross-examine respondents’ witnesses – whether absence of opportunity to cross-examine constitutes unfair prejudice – Evidence Act 1995 (NSW), s 136
Conveyancing Act 1919 (NSW), s 133B
Evidence Act 1995 (NSW), ss 59, 60, 135, 136, 137
EVIDENCE – prior consistent statement – whether admissible under s108(3) Evidence Act 1995 (NSW) – whether it was suggested to the witness that his evidence had been ‘re-constructed’ EVIDENCE – s135 Evidence Act – whether the probative value of the statement is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff
CRIMINAL LAW – Appeal against conviction – One count of rape and one count of intentionally causing injury – Evidence of distress – Whether ‘intractably neutral’ as to whether rape or lesser crime – Post-offence circumstantial evidence – Inference from totality of the evidence – Appeal dismissed – R v Ciantar  VSCA 263; (2006) 16 VR 26; R v Hillier  HCA 13; (2007) 228 CLR 618; Brooks v The Queen  VSCA 197 applied.
CRIMINAL LAW – Appeal against sentence – Lengthy and largely unexplained delay – Whether sentencing judge failed adequately to take significance of delay into account –Appellant resentenced – R v Merrett  VSCA 1; (2007) 14 VR 392 applied.
EVIDENCE – admissibility of business records – admissibility of books kept by a body corporate – need for precise identification of relevant representation or matter.
CONTRACTS – construction – surrounding circumstances – whether clause is ambiguous or susceptible of more than one meaning – scope of permissible extrinsic material to aid in construction.
CONTRACTS – construction – dependency of rights and obligations – whether plaintiff’s entitlement to seek particular rights under a contract are dependent on it having fulfilled particular obligations – whether plaintiff is taking advantage of its own wrongdoing.
CONTRACTS – construction – particular clauses – whether plaintiff has exercised reasonable endeavours – whether plaintiff has acted in good faith.
ENVIRONMENT AND PLANNING – characterisation of development in development application – construction of local environment plan – whether fly-in-fly-out temporary accommodation for migratory workers is classifiable as “residential buildings (other than dwelling-houses and units for aged persons)”
DEFENCE – Convictions relating to receipt of rental and other allowances – whether Judge Advocate erred in direction to panel about whether appellant and his wife “normally lived together” for purposes of relevant Defence Determination – whether verdicts entered against appellant inconsistent with other verdicts of acquittal – whether Judge Advocate erred by failing to hold that certain email evidence should have been excluded – whether Judge Advocate erred in rejecting proposed tender of Defence Force Pay and Conditions Manual – whether Judge Advocate erred in failing to hold that appellant was entitled to trial by jury – whether Judge Advocate erred in directing that panel should reach determination on each charge by majority vote.
BANKRUPTCY AND INSOLVENCY – appeal from Federal Circuit Court – sequestration order made on creditor’s petition – District Court judgment for unpaid tax – effect of s 177 of Income Tax Assessment Act 1936 (Cth) – whether denial of procedural fairness by primary judge – claim of conscious maladministration on the part of the respondent – proposed proceedings by appellant under s 39B of the Judiciary Act 1903 (Cth) – proposed proceedings against respondent for damages – whether primary judge erred in not being satisfied by debtor that for other sufficient cause under s 52(2) of the Bankruptcy Act 1966 (Cth) a sequestration order ought not to be made
APPEAL – criminal – Director’s right of appeal against ruling on admissibility of evidence – whether exclusion of evidence substantially weakened prosecution case – how appellate court to determine whether ruling substantially weakens prosecution case – whether permissible to consider how evidence strengthens probative value of other evidence s 5F(3A) – Criminal Appeal Act 1912 (NSW)
EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether permissible for court to consider credibility and reliability of evidence in determining probative value – where restrictive approach previously adopted by same court in R v Shamouil  NSWCCA 112 – restrictive approach rejected by other intermediate appellate court in Dupas v The Queen  VSCA 328 – whether material difference between approaches
EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether failure to identify particular unfair prejudice – failure to consider how proper direction could overcome risk of unfair prejudice – whether trial judge erred in excluding evidence
EVIDENCE – criminal proceedings – respondent charged with sexual offences – evidence of telephone conversations between complainant and respondent nine years after alleged incident – transcripts included responses to allegations – whether vagueness of allegations created risk of unfair prejudice – whether danger that jury would use evidence for impermissible tendency inference – whether risk could be overcome by proper direction – s 137 Evidence Act 1995 (NSW)
EVIDENCE – criminal proceedings – discretion to exclude evidence that would be unfair to defendant – transcript of telephone conversations in which accused responded to allegations of sexual offences made by complainant – whether unfair to admit evidence requiring accused to explain to jury – whether infringement of right to silence – s 90 Evidence Act 1995 (NSW)
STATUTORY INTERPRETATION – construction of statute – precedent – resolving conflicting authorities – whether Court of Criminal Appeal entitled to follow its own earlier authority – where intermediate appellate court in another Australian jurisdiction found that authority plainly wrong – whether Court of Criminal Appeal required to find later authority plainly wrong – course conducive to orderly administration of justice – where courts interpreting uniform state legislation not national in operation – uniform Evidence Acts
CRIMINAL LAW – environmental offences – s 118A(2) – Expert witness code – admissibility of expert reports – chain of possession – assumptions – construction of Final Determination of Scientific Committee – beyond reasonable doubt – reasonable certainty – s 194(1)(d) – foreseeability of harm
EVIDENCE – the coincidence rule – evidence taken on voir dire – ruling followed – questions to be addressed – requirement that evidence be of significant probative value – Evidence Act 2008 (Vic), s 98(1).
EVIDENCE – general discretion to exclude – Evidence Act 2008 (Vic), s 135.
EVIDENCE – discretion to exclude – whether probative value of document prepared in contemplation of legal proceedings (not related to current proceedings) outweighed prejudicial effect
CRIMINAL LAW – Murder – Appellant stabbed victim to death after fighting with victim’s friends – Defence that stabbing was unintentional – Self-defence not relied on – Whether obligation to put any alternate defence of self-defence – Whether trial judge erred in failing to leave self-defence, defensive homicide and manslaughter self-defence to the jury – No self-defence direction required – No evidence to found a claim of self-defence – Pemble v The Queen  HCA 20; (1971) 124 CLR 107 discussed – Crimes Act 1958.
CRIMINAL LAW – Post offence conduct – Consciousness of guilt – Appellant fled the scene of the murder, lied to emergency services and planned to obtain a false passport – Whether evidence of post-offence conduct should have been left to the jury – Trial judge properly allowed the evidence to be led – All items of post-offence conduct demonstrated a consciousness of guilt – R v Ciantar  VSCA 263; (2006) 16 VR 26 discussed.
CRIMINAL LAW – Juries – Reasonable apprehension of bias – Trial judge notified by a juror that the juror knew a key witness – Application to discharge the juror refused – Whether trial judge erred in failing to discharge the jury or the single juror – R v Goodall  VSCA 63; Chung v Rechichi (2005) 20 VR 221 considered – No error in exercise of discretion not to discharge the individual juror or the jury – No high degree of need for discharge – Section 43 of the Juries Act 2000.
CRIMINAL LAW – Appeal against sentence – Manifest excess – Pressing need for general deterrence in respect of violent knife attacks by youthful offenders – Sentence not manifestly excessive – Appeal dismissed.
EVIDENCE – Admissibility – Court’s discretion to exclude evidence – Whether danger of undue waste of time outweighs probative value – Evidence Act 2008 (Vic), ss 55, 135(c).
Opinion evidence – relevance – expert allegedly adopting role of “advocate” – qualifications – whether plaintiff’s case confined to that suggested by his own evidence.
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
CONTRACT – Abandonment – Conduct and factors relevant to mutual intention to abandon contract – Objective assessment.
CONTRACT – Termination – Whether discussions amounted to an agreement to terminate contract.
CONTRACT – Construction – Whether termination clause required notice to be given.
CONTRACT – Enforceability – Whether conduct gave rise to estoppel, waiver and misleading or deceptive conduct.
CONTRACT – Penalty – Whether liquidated damages clause was extravagant and unconscionable.
 Pursuant to s 60 of the Evidence Act 2008 (Vic), the email may be used for all purposes. There was no application under ss 135 or 136 of the Evidence Act to exclude or limit the use of the email. It is unlikely that any such application would have been successful. Finally, it should be noted that my decision and the result in this case would not be affected by exclusion of the email.
EVIDENCE – Re-examination – Proper scope of re-examination – Whether evidence not given in examination in chief can properly arise in re-examination – Particular facts of the representation made
EVIDENCE – Exception to hearsay rule – Where maker of representation overseas – Whether reasonable efforts to secure witness had been made – Whether notice requirements in s 192(2) of the Evidence Act 1995 (Cth) complied with
EVIDENCE – Discretion to exclude – Whether evidence unfairly prejudicial when hearsay adduced in re-examination – Whether such evidence should be the subject of a direction under s 135 or s 136 of the Evidence Act 1995 (Cth)
EVIDENCE – Witnesses – Unfavourable witness – Evidence Act 1995 (Cth) s 38 – Whether a party should call a witness to disprove an unfavourable statement adduced by hearsay
EVIDENCE – Discretion to exclude – Whether evidence unfairly prejudicial when maker of the representation is not available for cross-examination
EVIDENCE – Opinion evidence – Expert evidence – Whether expert on international transportation law qualified to give evidence on competition law – Whether expert on international transportation law qualified to give evidence on treaty construction
EVIDENCE – Opinion evidence – Expert evidence – Proof of international law – Whether international law to be proved as a matter of law – Whether question of international law arising as part of foreign law to be proved as a fact or whether it should be excluded – Interaction between foreign, domestic and international law in evidence