http://www.austlii.edu.au/au/cases/cth/FCA/2013/428.html

EVIDENCE – discretion to exclude – whether probative value of document prepared in contemplation of legal proceedings (not related to current proceedings) outweighed prejudicial effect

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/411.html

Opinion evidence – relevance – expert allegedly adopting role of “advocate” – qualifications – whether plaintiff’s case confined to that suggested by his own evidence.

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/cgi-bin/sinodisp/au/cases/cth/FCA/2013/323.html

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

http://www.austlii.edu.au/au/cases/cth/FCA/2013/293.html

PRACTICE AND PROCEDURE – injunction sought to stay inspection of documents seized under search warrant – applicant claimed irremediable prejudice – assessment of strength of case on appeal – balance of convenience

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/228.html

PROCEDURE – case management – preliminary rulings on expert evidence – whether expert reports admissible.
EVIDENCE – expert evidence – whether reports comply with r 31.27 UCPR – use of photographs – whether expertise needed to interpret.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/289.html

EVIDENCE – admissibility – hearsay – business records exception – email from a supplier to a former customer indicating the final date a particular chemical was supplied – evidence constituted a previous representation made in the course of business – the content of the representation and the time gap between the email exchange and the commencement of proceedings do not indicate proceedings were contemplated at the relevant time.

EVIDENCE – admissibility – court’s general discretion to exclude evidence – inappropriate to exercise discretion where evidence carries significant probative value and is unlikely to mislead, confuse, waste time or cause unfair prejudice.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/56.html

EVIDENCE – indecent assault of person under the age of 16 – context evidence to assist in evaluation of complainant’s evidence of alleged offences – previous conduct of the appellant of a sexual nature involving the complainant – requirements for use as propensity evidence not satisfied – appropriate directions to the jury

EVIDENCE – indecent assault of person under the age of 16 – tender by accused of alleged prior inconsistent statement of complainant erroneously rejected under s 135 Evidence Act as unfair to Crown – whether substantial miscarriage of justice – proviso to s 6 Criminal Appeal Act 1912

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/90.html

EVIDENCE – admissibility of an expert report – whether report relevant – whether expert opinion based wholly or substantially on an expert’s training, study or expertise -whether an expert has provided adequate explanations for opinions

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/117.html

CONTRACTS – breach of contract – breach of essential term, or alternatively, serious breach of a non-essential term – termination

CONTRACTS – repudiation – acceptance of repudiation

CONTRACTS – repudiation – where both parties partially misconstrue a term of the contract – where defendant failed to comply with demands purportedly made pursuant to the terms of the contract – no repudiation if the relevant demand was not wholly a requirement of the contract

TRADE & COMMERCE – misleading or deceptive conduct – representations – no reliance

ESTOPPEL – equitable estoppel – whether plaintiff estopped from resiling from assumption that all files referred to the defendant were appropriately classified – no reliance
DAMAGES – damages for loss of benefit of the contract and likely renewals – no loss proved

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/46.html

APPEAL – failure by trail judge to give reasons in support of conclusions – factfinding miscarried – new trial
EVIDENCE – where no objection to medical and other reports containing history given by plaintiff – admissibility of histories in reports – s 60 Evidence Act 1995 (NSW) – no limitation sought under s 136 of the Evidence Act on use of histories in reports

http://www.austlii.edu.au/au/cases/cth/FCA/2013/83.html

EVIDENCE – business records exception to hearsay rule – application of rule to documents created in contemplation of proceedings – Evidence Act 1995 (Cth) s 69(3) – investigation by European Commission – relationship between Commonwealth and ACCC for the purpose of determining parties to proceedings

EVIDENCE – discretion to exclude – inability to cross examine author of business record

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/23.html

EVIDENCE – admissibility – tendering evidence – res gestae – “context” evidence – whether admissible – relevance to issues at trial – whether direction should be given.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1557.html

EVIDENCE – admissibility – whether evidence relevant – whether evidence opinion evidence – whether evidence should be excluded under s135 Evidence Act 1995 (NSW) – whether use that may be made of evidence should be limited under s136

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1433.html

EVIDENCE – examples of experiments in specification of patent in suit – whether leave should be granted to rely on examples as experimental proof – where specification has been otherwise admitted into evidence

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/148.html

COURTS AND JUDGES – Procedural fairness – bias – apprehended bias – association – prejudgment – adverse credit finding in earlier judgment – waiver

COURTS AND JUDGES – Procedural fairness – judicial intervention in the conduct of proceeding – whether judicial questioning of witnesses excessive – pejorative and inappropriate comments by federal magistrate – limits on one party’s rights to issue subpoenas and cross-examine witnesses

BANKRUPTCY AND INSOLVENCY – whether federal magistrate erred in finding that certain property was not held by the bankrupt on trust for her son – whether federal magistrate erred in treating certain chattels as having been returned to the bankrupt – failure to undertake necessary inquiry under Bankruptcy Regulations (Cth)

TRUSTS AND TRUSTEES – matters relating to registration and evidence in writing of purported trust – whether notation on reprints of the Trusts Act evidenced purported trust

PRACTICE AND PROCEDURE – Consent orders giving effect to a compromise between parties – whether it was open to federal magistrate to make an order inconsistent with consent orders

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1244.html

ENVIRONMENT AND PLANNING – building control – definitions – Building Code of Australia – definition of “effective height” in the Building Code of Australia

EVIDENCE – admissibility and relevancy – in general – whether the Guide to Building Code of Australia should be admitted into evidence for the purpose of construing the text of the Building Code of Australia

EVIDENCE – admissibility and relevancy – opinion evidence – whether expert opinion was admissible for the purpose of construing the text of the Building Code of Australia

107. If (contrary to my primary ruling) the opinion evidence of Mr Wynn-Jones were otherwise admissible, I would (pursuant to s 135 of the Evidence Act 1995 (NSW)) refuse to admit it on the basis that its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to the plaintiff (within the meaning of s 135(a) or misleading or confusing (within s 135(b)).
108. In terms of relevance, Mr Wynn-Jones’ evidence is generally one step removed from the Guide insofar as it comprises statements of opinion. His opinion about the meaning of the BCA, or the application of the BCA to the facts of the case before the Court, has no evidentiary value, helpful though that “evidence” has been as an elaboration of the defendants’ submissions. Ascertainment of the law relevant to a matter before a court and its proper application to the facts of the particular case are of the essence of the judicial function and duty; although those processes are properly the subject of submission, evidence of opinion, whether as to the identification of the relevant law or as to its proper application, is not admissible: Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (No 6) (1996) 64 FCR 79 at 83 per Lindgren J, approved by the Court of Appeal in Faucett v St George Bank Limited [2003] NSWCA 43 at [48].

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1017.html

EVIDENCE – Admission of evidence – web page poorly printed out – whether discretion in s 135 of the Evidence Act 1995 (Cth) should be used to exclude evidence

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1083.html

EVIDENCE – particulars – admission – solicitor’s ostensible authority to make admissions

http://www.austlii.edu.au/au/cases/cth/federal_ct/2012/944.html

PATENTS – two appeals from decisions of delegate of Commissioner of Patents – opposition to grant of patent for bulk material transport container on multiple grounds – consideration of nature of appeals as hearings de novo

PATENTS – combination patent – novelty – whether invention was disclosed in prior art – application of ‘reverse infringement’ test – whether invention involved an inventive step – whether the combination of integers would have been an obvious solution to a person skilled in the art in light of common general knowledge – consideration of how a person skilled in the art would have interpreted and understood the prior art – time at which prior art is to be construed

PATENTS – disputed priority date – whether there was a ‘real and reasonably clear disclosure’ in the provisional specification – whether secret use before the priority date – whether use by inventor for reasonable trial and experiment only

EVIDENCE – consideration of admissibility and weight to be given to expert evidence where the expert witnesses are not independent

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/181.html

CRIMINAL LAW – appeal against conviction – supply of more than a large commercial quantity – deemed supply – whether trial judge erred in refusing to sever count 2 – whether trial judge erred in refusing to direct a verdict – whether trial judge erred in directions to the jury – whether unreasonable verdict

http://www.austlii.edu.au/au/cases/cth/FCA/2012/788.html

1. The Commonwealth and Peter Slipper, who are the respondents in these proceedings, filed interlocutory applications last month seeking orders pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) that judgment be given against James Ashby, the applicant, because the proceeding against each of them, relevantly, was an abuse of the process of the Court and or vexatious or alternatively that the proceedings be permanently stayed on that footing.

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/cth/FCA/2012/655.html

PRACTICE AND PROCEDURE – judicial review of notice under Income Tax Assessment Act 1936 (Cth) s 264 – admissibility of expert evidence – report by independent accountant – evidence going to meaning of notice and reasonableness of time for compliance – relevance – whether probative value of report substantially outweighed by danger of undue waste of time

http://www.austlii.edu.au/au/cases/tas/TASCCA/2012/2.html

Criminal Law – Evidence – Matters relating to proof – Standard of proof – Circumstantial evidence – Motive – Whether facts establishing a motive are indispensable to the drawing of an inference of guilt – Whether those facts must be proved beyond reasonable doubt – Direction to jury.
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, applied.
Penney v R [1998] HCA 51; (1998) 72 ALJR 1316, not followed.
R v Pantoja [1998] NSWSC 565, R v Plevac [1999] NSWCCA 351, R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166, R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, R v Koeleman [2000] VSCA 141; [2000] 2 VR 20, R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479, R v Cummins [2004] VSCA 164; (2004) 10 VR 15, approved.
Aust Dig Criminal Law [2709]

Criminal Law – Evidence – Matters relating to proof – Standard of proof – Circumstantial evidence – Reasonable hypothesis consistent with innocence – Directions to jury – Adequacy – Whether a need for a direction that intermediate facts must be proved beyond reasonable doubt.
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, followed.
Re Belhaven and Stenton Peerage (1875) 1 App Cas 278, Liberato v R [1985] HCA 66; (1985) 159 CLR 507, referred to.
Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521, HML v R [2008] HCA 16; (2008) 245 ALR 204, distinguished.
Aust Dig Criminal Law [2711]

Criminal Law – Evidence – Corroboration – What constitutes corroboration – Admissions and conduct of accused – Lies, denials etc – Post-offence conduct – Allegations of laying of a false trial – Whether relied on by Crown as probative of guilt or going to credit – Direction to jury.
Edwards v R [1993] HCA 63; (1993) 178 CLR 193, Zoneff v R (2000) 299 CLR 234, Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479, R v Chang [2003] VSCA 149; (2003) 7 VR 236, R v Cook [2004] NSWCCA 52, R v SBB (2007) 175 A Crim R 573, R v MC [2009] VSCA 122, approved.
Aust Dig Criminal Law [2910]

Criminal Law – Sentence – Relevant factors – Response to charges – Co-operation with police or assistance to authorities – Generally – Post-offence conduct – Inconvenience and expense of investigation caused by accused’s actions – Whether an aggravating factor.
R v Cavkic (No 2) [2009] VSCA 43, R v Wilkinson (No 5) [2009] NSWSC 432, applied.
Fox v Fletcher unreported 17/1970, referred to.
Aust Dig Criminal Law [3274]

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/512.html

PRACTICE AND PROCEDURE – Applications to tender documents in course of trial – Rulings on tenders.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/403.html

[CORPORATIONS] – whether the transfer of shares of the corporation in two other corporations by directors to wife and daughter respectively amounted to oppression against the minority shareholders – whether notice was given – whether consent or acquiescence – whether shares transferred at undervalue.

[DIRECTORS] – Obligations in circumstances where transfer of corporation’s assets are to be transferred to a family member – whether consent obtained – whether breach of statutory duties and breach of fiduciary duties.

[KNOWING RECEIPT] – where wife/daughter to whom shares transferred aware of circumstances which would indicate the facts to an honest and reasonable person – where admission that transfer was to avoid litigation and/or appointment of provisional liquidator.

[CONVEYANCING] – Conveyancing Act 1919 (NSW) – s 37A – whether alienation of shares to delay hinder or defraud creditors – where admissions that transfer was made to avoid the appointment of a provisional liquidator.

[EVIDENCE] – where plaintiffs did not give evidence – “rule” in Jones v Dunkel – whether necessity to give evidence to prove oppression under s 232 of the Corporations Act 2001 (Cth) – and/or to prove prejudice under s 37A of the Conveyancing Act 1919 (NSW)

http://www.austlii.edu.au/au/cases/cth/HCA/2012/15.html

Criminal law – Evidence – Admissibility of evidence about DNA analysis – Appellant convicted of murder – Expert gave evidence at trial about mitochondrial DNA testing of hair found on deceased’s thumbnail – Expert’s statistical evidence given in form of frequency ratio and exclusion percentage – Whether evidence of exclusion percentage relevant given evidence of frequency ratio – Whether probative value of evidence of exclusion percentage outweighed by danger of unfair prejudice to appellant – Whether evidence of exclusion percentage misleading or confusing.

Evidence – Judicial notice – Argument for general rule that evidence of exclusion percentage is always inadmissible due to danger of unfair prejudice – Facts underpinning adoption of general rule not proved – Whether judicial notice can be taken of psychological research said to support adoption of general rule.

Words and phrases – “evidence”, “exclusion percentage”, “frequency ratio”, “judicial notice”, “misleading or confusing”, “unfair prejudice”.

Evidence Act 1995 (NSW), ss 135, 137, 144.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/384.html

Detailed rulings as to specific applications to tender documents.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/385.html

EVIDENCE – Objections to competence of proposed expert witnesses – Whether evidence relevant – Whether witnesses lacked specialised knowledge – Whether independence required

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/53.html

EVIDENCE- rejection of evidence- affidavit evidence excluded by judge because “uncertain and of low probative weight”- Court of Appeal must consider all available grounds when deciding whether decision to exclude evidence was wrong- Court of Appeal very reluctant to interfere with such decisions- in any event material probably properly rejected- leave to appeal not granted.

LANDLORD AND TENANT- application by respondent in CTTT for termination of lease and possession transferred to Supreme Court- applicant alleged a prior tenancy dispute was settled on the basis that he would be a tenant for life- whether s 5A Landlord and Tenant (Amendment) Act 1948 operated to exempt the lease from the 1948 Act- proceedings were not taken under the 1948 Act- therefore s 98A of the 1948 Act had no application- held that the proceedings were exempt from the operation of the 1948 Act.

LANDLORD AND TENANT- vacant possession- whether a question of fact or a mixed question of fact and law- vacant possession is purely a matter of fact.

PROCEDURE- re-opening after judgment- whether re-opening should be allowed- re-opening should be allowed where obvious that the decision has miscarried and that the miscarriage may be rectified by the attention of the primary judge rather than an appeal court- this principle applies to errors of fact and errors of law.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/257.html

EVIDENCE – Expert evidence – Expert’s reports – Rules of court as to admissibility of expert’s reports – Rule 31.28 of Uniform Civil Procedure Rules 2005 (NSW) – Whether “exceptional circumstances” exist supporting the admissibility of expert’s reports – Whether substantial prejudice exists preventing the admission of expert’s reports.
EVIDENCE – Tender of MYOB records – Whether sufficient evidence exists to establish how MYOB records were prepared – Whether business records under s 69 of Evidence Act 1995 (NSW).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/34.html

COPYRIGHT – infringement – gaming machine games and components – circumstantial evidence – whether infringement by dealing established

EVIDENCE – whether primary judge erred by varying rulings made under s 136 of the Evidence Act 1995 (Cth) at the time of final submissions when the course of evidence had been completed

EVIDENCE – whether primary judge erred in the use of evidence not tendered as proof of facts stated in them or as tendency evidence – where evidence not relevant except as to credit or the existence of a joint venture

DAMAGES – whether liability for compensatory damages established on the evidence

DAMAGES – additional damages – whether the amount of additional damages was excessive

DAMAGES – whether damages should have been awarded in favour of all applicants – where agreement licensing relevant copyright in favour of certain applicants executed after time of infringements and commencement of proceedings

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/218.html

EVIDENCE – relevance – credibility rule – whether a document can be evidence adduced in cross examination within the meaning of section 103 of the Evidence Act – business records – discretion to exclude evidence under s 135 of the Evidence Act

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/NSWSC/2012/137.html

EVIDENCE – admissibility – expert opinion – whether expert report shows conclusions reached were based on specialised knowledge – whether any reasoning process disclosed – whether in any event report should be rejected on discretionary grounds.