Category Archives: s. 135

SLS v The Queen [2014] VSCA 31 (6 March 2014)

CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay refused – Long delay, but not simply presumptive prejudice – Destruction of evidence – Loss of evidence – Greatly limited ability to adduce alibi evidence – Whether judge erred by confining evidence of complainants on voir dire – Attack upon findings made and inferential reasoning of judge below – Appeal allowed – Decision refusing stay set aside – Matter remitted for re-hearing and determination by another judge.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling by judge that evidence of complainants cross-admissible – Whether reasonable possibility of collusion or contamination – Whether judge wrongly approached matter by treating applicant as carrying burden of proof – Whether judge erred by making findings upon matters of disputed fact – Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded – Appeal allowed – Ruling set aside – In lieu, ruling that evidence not cross-admissible – Question whether indictment should be severed remitted for re-hearing and determination by another judge – Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with ‘grooming’ by sex offenders – Concession by Crown on appeal that evidence inadmissible – Concession rightly made – s 79 Evidence Act 2008 – Whether witness had relevant expertise – Whether evidence had any probative value – Circularity – Whether, in any event, evidence should have been excluded under s 135 Evidence Act – Whether evidence was about a matter upon which expert evidence was receivable – Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act – Whether, if so, evidence should have been excluded under s 101 – Whether unacceptable risk that evidence would trespass into propensity evidence – Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act – Whether evidence admissible under s 108C Evidence Act.

CRIMINAL LAW – Appeal – Interlocutory Appeal – Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication – No reasons given – Note made by counsellor of statement attributed to complainant – Note contained in confidential communications earlier released for inspection by accused’s legal advisers – Later ruling by judge that counsel for accused not be permitted to cross-examine complainant upon the note at trial – ss 32C and 32D Evidence (Miscellaneous Provisions) Act 1958 – Whether peremptory refusal complied with statutory obligations imposed upon judge – Whether peremptory refusal and later ruling supportable – Appeal allowed – Ruling set aside – In lieu, ruling that accused have leave to cross-examine complainant on further hearing of stay application and in any later trial.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that prosecution might adduce evidence of accused’s pleas of guilty, in 2008, to sexual offences committed between 2003-2005 and of agreed summary of circumstances read to Magistrates’ Court in, ‘rebuttal’ if credibility of victims of those offences was challenged in cross-examination – Evidence only admissible if viva voce evidence of witnesses receivable as tendency evidence – Crown statement that evidence of some witnesses would not be relied upon at a trial – Whether any basis revealed for prosecution being permitted to split its case – Consideration of possible juridical bases upon which evidence might be admissible – Appeal allowed – Ruling set aside – In lieu, question whether evidence admissible remitted for re-hearing and determination by another judge.

Hodder v Hamilton & Fitzpatrick [2014] VSCA 279 (6 November 2014)

ACCIDENT COMPENSATION – Occupiers’ liability – Jury trial – Application to discharge jury – Evidence – Cross-examination – Re-examination – Whether cross-examination impermissible – Whether re-examination arose out of cross-examination – DVD purporting to be a re-enactment of the accident – Whether DVD admissible- Whether DVD admissible in re-examination – Whether probative value of evidence substantially outweighed by the danger that the evidence might be confusing – No substantial wrong or miscarriage occasioned in the trial by the rejection of the tender – Evidence Act 2008 , ss 55, 78 and 135(b) – Supreme Court (General Civil Procedure) Rules 2005, r 64.23(2) – Appeal dismissed.

Rice v R (No 1) [2014] NSWSC 1400 (14 October 2014)

EVIDENCE – accused indicted for conspiracy to murder – evidence of accused’s DNA found on cigarette butt in vehicle allegedly used by him in the course of the conspiracy – cigarette butt destroyed following scientific analysis – accused deprived of the opportunity to independently test the item – where other items located in the vicinity of the cigarette butt not seized and tested – whether evidence of DNA analysis should be excluded on the basis of unfair prejudice – whether, in the event of the evidence being admitted, the jury should be directed about the disadvantage to the accused as a consequence of the destruction of evidence

Dale v Clayton Utz (a firm) (No 2) [2014] VSC 517 (22 October 2014)

PRACTICE AND PROCEDURE – Partnership – Removal of partner – Whether removed partner entitled to split case – Applicable principles – Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VicRp 18; [1985] VR 187 (FC) – Wong v Carter [2000] VSCA 53 – French v Triple M Melbourne Pty Ltd Ruling (No 2) [2008] VSC 548 – Privileges against self-incrimination – Re Australian Property Custodian Holdings (In Liquidation) (Receivers and Managers Appointed) (Controllers Appointed) (No 2) [2012] VSC 576; (2012) 93 ACSR 130 – Gemmell v Le Roi Homestyle Cookies Pty Ltd (In Liquidation) [2014] VSCA 182 – Evidence Act 2008 , ss 128, 135 and 136.

Lau v R [2014] NSWCCA 179 (12 September 2014)

CRIMINAL LAW – CONVICTION APPEAL – attempting to possess a commercial quantity of an unlawfully imported border control drug – 102 kilograms of pure heroin – whether a miscarriage of justice because of lack of qualifications of expert interpreter called in Crown case – whether verdict of jury unreasonable or could not be supported by the evidence – whether evidence as to flight properly admitted – evidence of Crown expert not misleading – differences in interpretation between Crown and defence experts not of significance in conduct of trial – differences in interpretation adequately explained by differences in audio equipment – strong circumstantial Crown case – on whole of the evidence open to the jury to be satisfied beyond reasonable doubt as to guilt – evidence of flight properly admitted – no breach of s137 of the Evidence Act 1995 in admitting evidence of flight – conviction appeal dismissed – APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE – whether principle of parity properly taken into account – no significant difference in level of criminality between applicant and co-offender – differences in subjective case of applicant and co-offender – sentence of co-offender manifestly inadequate – parity principle not properly applied – need for applicant to be re-sentenced.

Fato v Regione Calabria Pty Ltd [2014] VSC 435 (11 September 2014)

APPEAL — Question of law — Magistrates’ Court Act 1989 s 109 — Test applicable where it is alleged the Magistrate’s decision is not open on the evidence.

ADMINISTRATIVE LAW — Natural justice — Magistrate made comments in running indicating adverse view of credit of appellant and respondent’s key witness — Comments more adverse to respondent’s key witness — Neither party complained during the trial — Appellant not denied natural justice — Waiver of right to rely on any breach of rules of natural justice.

ADMINISTRATION OF JUSTICE — Fair trial according to law — Undue interference by Magistrate in the conduct of the hearing — Magistrate took initiative to telephone a new witness during the hearing — No miscarriage of justice when trial considered as a whole.

CONTRACT — Loan agreement — Non-payment of principal and interest — Whether action statute barred — Limitation of Actions Act 1958 s 5.

Fair Work Ombudsman v Crystal Carwash Cafe Pty Ltd (No 2) [2014] FCA 827 (7 August 2014)

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

Reckitt Benckiser Healthcare (UK) Ltd v Glaxosmithkline Australia Pty Ltd (No 4) [2014] FCA 810 (3 June 2014)

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).

R v GJ (No 2) [2014] ACTSC 113 (31 March 2014)

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.

Dennis v Chambers Investment Planners Pty Ltd (Administrators Appointed) (No 3) [2014] FCA 648 (20 June 2014)

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)

Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [2014] FCAFC 73 (19 June 2014)

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

Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625 (16 June 2014)

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

Walsh v Walgett Shire Council [2014] NSWSC 812 (11 June 2014)

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)

Telstra Corporation Limited v Phone Directories Company Pty Ltd [2014] FCA 568 (30 May 2014)

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

R v Bui [2014] ACTSC 64 (31 March 2014)

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

Marsh Pty Ltd v Vickery [2014] FCA 484 (15 May 2014)

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.

EWC Payments PTY LTD v Commonwealth Bank of Australia [2014] VSC 207 (14 May 2014)

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.

Hothnyang v The Queen [2014] VSCA 64 (11 April 2014)

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 [1946] 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 [1996] HCA 22; (1996) 186 CLR 427, applied; Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Baini v The Queen (No 2) [2013] 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 [2007] HCA 30; (2007) 230 CLR 559, applied; The Queen v O’Connor [1980] HCA 17; (1980) 146 CLR 64, referred to; Cutter v R [1997] HCA 7; (1997) 143 ALR 498, distinguished.

Benson v The Queen [2014] VSCA 51 (28 March 2014)

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).

Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 5) [2014] FCA 340 (8 April 2014)

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.

Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation) [2014] NSWSC 382 (4 April 2014)

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

HP Mercantile Pty Ltd v Clements [2014] NSWSC 290 (19 March 2014)

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.

DPP v Hicks (Ruling No 3) [2014] VSC 106 (14 March 2014)

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.

HP Mercantile Pty Ltd v Clements [2014] NSWSC 213 (6 March 2014)

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.

Cairns v Trowelcoat Pty Ltd [2014] VSC 129 (28 March 2014)

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).

The Legal Practitioner v Council of The Law Society of The Act [2014] ACTSC 50 (28 March 2014)

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.

Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 (21 March 2014)

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

State of New South Wales v Cruse (No. 2) [2014] NSWSC 128 (14 March 2014)

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

Mainline Corporate Holdings Ltd v Fexco Merchant Services [2014] FCA 265 (11 March 2014)

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). …

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 59 (27 February 2014)

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.

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

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.

Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd [No. 1] [2014] ACTSC 11 (18 February 2014)

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.

Forty Two International Pty Limited v Barnes [2014] FCA 85 (18 February 2014)

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 [1959] 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)

Eaton v ISS Catering Pty Ltd & Ors [2013] VSCA 361 (12 December 2013)

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.

Peter Vitek & Anor v Estate Homes Pty Ltd & Ors [2013] NSWSC 1805 (30 October 2013)

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

Huges (a Pseudonym) v The Queen [2013] VSCA 338 (28 November 2013)

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.