Category Archives: s. 135

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.

Eli Lilly and Company v Generic Health Pty Ltd [2013] FCA 1254 (26 November 2013)

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.

Samsung Electronics Co. Limited v Apple Inc. [2013] FCA 1142 (4 November 2013)

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

Regent Holdings v State of Victoria [2013] VSC 601 (7 November 2013) [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.

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 31) [2013] VSC 575 (30 October 2013)

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.

Victorian WorkCover Authority v BlueScope Steel [2013] VSC 562 (15 October 2013)

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).

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 29) [2013] VSC 537 (10 October 2013)

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).

Murdoch (a Pseudonym) v The Queen [2013] VSCA 272 (27 September 2013)

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.

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 (27 September 2013)

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

O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 (24 September 2013)

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

Secure Funding Pty Limited v StarkSecure Funding Pty Limited v Conway [2013] NSWSC 1257 (5 September 2013)

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.

Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296 (5 September 2013)

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

Legislation Cited:
Conveyancing Act 1919 (NSW), s 133B
Evidence Act 1995 (NSW), ss 59, 60, 135, 136, 137

McGlashan v QBE Insurance Limited [2013] NSWSC 678 (28 May 2013)

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

Flora v The Queen [2013] VSCA 192 (31 July 2013)

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 [2006] VSCA 263; (2006) 16 VR 26; R v Hillier [2007] HCA 13; (2007) 228 CLR 618; Brooks v The Queen [2012] 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 [2007] VSCA 1; (2007) 14 VR 392 applied.

Sydney Attractions Group Pty Ltd v Frederick Schulman [2013] NSWSC 858 (28 June 2013)

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.

GrainCorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171 (14 June 2013)

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)”