http://www.austlii.edu.au/au/cases/cth/FCA/2013/452.html

“No Catchwords”

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/70.html

APPEAL – error in process of fact finding – failure to examine all material relevant to central issue – new trial required

CONTRACT – whether transaction loan to appellant or investment in third party company – whether respondents’ case contrary to compelling inference

CONTRACT – post-contractual conduct – letter from respondents’ solicitor to third party – whether letter contained admissions adverse to respondents’ interests

EVIDENCE – whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness – client legal privilege – where respondents gave evidence at trial about solicitor’s advice – whether respondents waived privilege by acting inconsistently with maintenance of privilege

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/30.html

DEFAMATION – defence of qualified privilege – common law – occasion of qualified privilege.

DEFAMATION – defence of qualified privilege – relevance – sufficient connection to privileged occasion – effect of excessive language.

DEFAMATION – defence of qualified privilege defeated by malice – statement made for purpose foreign to the privilege – basis for inferring an improper motive.

DEFAMATION – defence of qualified privilege – response to attack.

DEFAMATION – defence of qualified privilege – comment – recognisable as comment not fact – proper material for comment.

DAMAGES – relationship between harm and quantum – nature of assessment by trial judge – basis for appellate intervention.

LIMITATION OF ACTIONS – tort – defamation – contemporaneity of distribution.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/5.html

MIGRATION – appeal from order of Federal Magistrate dismissing application for judicial review of a decision of the Refugee Review Tribunal to affirm decision not to grant protection visa – whether Tribunal erred in placing no weight upon evidence of two emails received by appellant asserting risk of harm to appellant should appellant return to originating country, due to emails containing hearsay – whether Tribunal had opportunity to test evidence of emails and verify authenticity – whether Tribunal should and did so test – whether Federal Magistrate erred in finding evidence of emails was not in Tribunal’s possession prior to Tribunal hearing – whether Tribunal erred in placing little weight on evidence of witness, due to evidence containing hearsay – discussion of constitution, powers, operation, and treatment of evidence, by Tribunal

PRACTICE AND PROCEDURE – notice of contention sought to be filed beyond time limit prescribed by r 36.24 of the Federal Court Rules 2011 – where no explanation given for model litigant’s failure to comply with rules

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1479.html

EVIDENCE – Admissibility – business records – whether publication produced by business for promotional purposes is a record of the business

http://www.austlii.edu.au/au/cases/tas/TASSC/2012/83.html

Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Need for error to be shown – Assertion that finding was unsafe and unsatisfactory.

Kelly v O’Sullivan [1995] TASSC 72; (1995) 4 Tas R 446, Dixon v Lusted [2010] TASSC 16, referred to.

Aust Dig Magistrates [270]

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Sufficiency of reasons.

Phillips v Arnold (2009) 19 Tas R 21, referred to.

Aust Dig Magistrates [274]

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/342.html

NEGLIGENCE – duty of care – plaintiff slipped on grease on surface of car park – escaped from grease trap under control of building manager – content of duty of care owed by car park operator to avoid risk of slipping on car park surface – whether hourly inspections would have prevented accident – grease trap alarm system known to be faulty – content of duty of care owed by building manager – whether regular inspections of grease trap would have prevented accident

NEGLIGENCE – apportionment – whether primary judge erred in concluding car park operator primarily at fault as best placed to deal with risks and safety

EVIDENCE – admissibility – whether primary judge erred in rejecting tender of documentary evidence – tendering party’s obligation to make clear purpose and basis of tender – ordinarily no “improper” rejection of evidence if grounds which would justify tender not argued before primary judge.

PROCEDURE – amendment – joinder – oral application to amend and join additional party – no notice of motion served – challenge to exercise of discretion to dispense with filing and service of notice of motion and to grant leave to amend – no House v The King error – Civil Procedure Act, s 64

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/119.html

CRIMINAL LAW – CONVICTION APPEAL – theft assault and robbery convictions – appellant self-represented – whether hearsay evidence wrongfully admitted – whether Crown address caused miscarriage of justice – whether miscarriage of justice as a result of directions by trial judge – whether fresh evidence should be admitted on appeal – whether miscarriage of justice occurred as the result of conduct by appellant’s counsel – whether revocation of bail during trial caused miscarriage of justice – whether jury verdict unreasonable – SENTENCE APPEAL – whether sentencing judge erred in assessment of objective seriousness – whether principle of totality applied – whether sentence manifestly excessive.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/323.html

No Catchwords

“1. On 29 March 2012, an application by Centro Properties Limited and CPT Manager Limited (collectively CNP) supported by Centro Retail Limited, Centro MCS Manager Limited and Centro Corporate Services Pty Limited (collectively CER) for a limitation order under s 136 of the Evidence Act 1995 (Cth) (the Evidence Act ) in respect of certain parts of a number of “analyst reports” was dismissed. These are the reasons for that decision.”

http://www.austlii.edu.au/au/cases/cth/FCA/2012/158.html

CORPORATIONS – Opes Prime Schemes of Arrangement – cl 7.2 of the Schemes – Established Securities Claim – “their Deposited Securities” – “otherwise associated with”

EVIDENCE – whether Panopus’ Scheme Claim inadmissible on grounds of hearsay – whether portfolio statements, correspondence and an Assignment deed admissible as business records – failure to call director of Panopus to give evidence – Jones v Dunkel inference – onus of proving an exception applies

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/636.html

EVIDENCE – Admissibility – exceptions to the hearsay rule – exceptions to the credibility rule – proof of prior consistent statement – allegations of fabrication – ability to cross-examine the maker of the statement.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/245.html

CRIMINAL LAW – conviction appeal – appellant convicted of murder of his partner – conversation between appellant and his brother – brother’s first version of conversation asserted that appellant said “How can they [the children] love me? I killed their mother” – brother later asserts first version was incorrect and that the appellant said “How can they love me if I killed their mother” – Crown given leave to cross-examine brother under s.38 Evidence Act 1995 – Crown relied on first version as admission of guilt – trial Judge directs jury that first version capable of constituting admission – contended on appeal that error in accordance with Lee v The Queen [1998] HCA 60; 195 CLR 94 – point not taken at trial – whether leave under Rule 4 should be granted – Crown concedes that error occurred at trial – whether proviso applied – Crown case involving circumstantial evidence and direct evidence – by reference to admissible evidence used permissibly, Court satisfied beyond reasonable doubt of guilt of appellant – appeal dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/637.html

EVIDENCE – Admissibility – discretion to exclude or limit the use of evidence – probative value of evidence – prejudicial nature of evidence.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/220.html

TORTS – negligence – motorcycle accident – whether unidentified vehicle caused plaintiff’s accident

APPEAL – appellate review of findings of fact – whether errors in process of fact-finding – where primary judge rejected plaintiff’s version of accident and accepted independent witness’ account -whether primary judge’s findings glaringly improbable or contrary to compelling inference

EVIDENCE – use of police diagram – whether used impermissibly as direct evidence

EVIDENCE – business record – whether diagram drawn by police officer a “business record” – whether admissible to prove the existence of a fact – ss 59(1) and 68, Evidence Act 1995

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/738.html

Insurance Contracts – Statutory write-off – Section 16B (3) (f) Road Transport (Vehicle Registration) Act 1997 (No 119) – Cl 83C (1) (c) Road Transport (Vehicle Registration) Regulation 2007 – Election – Reasonable time – “Without prejudice” communication – Construction of insurance clause – Hearsay

http://www.austlii.edu.au/au/cases/cth/FCA/2011/762.html

TRADE PRACTICES – Application for interlocutory injunction –Respondent’s employees allegedly made representations that the applicant is in financial difficulty and unable to pay suppliers – Whether serious question to be tried – Whether balance of convenience favours the grant of interlocutory relief

EVIDENCE – Applicant relied on hearsay evidence – Whether double hearsay evidence admissible – Whether evidence should be excluded as unfairly prejudicial – Whether applicant required to prove damage

Evidence Act 1995 (Cth) ss 59, 62(1), 75, 135

http://www.austlii.edu.au/au/cases/cth/FCA/2011/645.html

CORPORATIONS – s 1321 Corporations Act 2001 (Cth) and reg 5.6.54 Corporations Regulations 2001 – appeal from liquidators rejection of formal proof of claim –consideration of role of liquidators in determining whether to admit or reject proofs – role is quasi-judicial – appeal from liquidators’ decision is interlocutory

EVIDENCE – hearsay evidence – consideration of exceptions to hearsay rule – whether transcript of examination under s 596B Corporations Act admissible – s 597(14) Corporations Act not relevant – whether transcript admissible under s 69 Evidence Act 1995 (Cth) as business record – whether admissible under s 75 Evidence Act because interlocutory proceeding – section requires particular identification of the maker of representation – even if maker identified transcript not admissible merely because interlocutory proceeding – Court has discretion to exclude evidence where prejudice outweighs probative value – transcript not admissible under exceptions to hearsay rule

TRADE PRACTICES – applicant claims shares purchased in reliance on misleading and deceptive conduct in breach of s 52 Trade Practices Act 1974 (Cth) – consideration of causation and reliance – conduct need not be sole cause of loss – carelessness not a bar to recovery of damages under s 82 Trade Practices Act – question of reliance to be considered in light of the circumstances surrounding each purchase – applicant relied on own judgment and experience – reliance not established

Evidence Act 1995 (Cth) ss 59, 69, 75, 128, 136

http://www.austlii.edu.au/au/cases/cth/FCA/2011/625.html

EVIDENCE – whether certain specified passages in several Annual Reports of the applicant are admissible as being representations made in business records of the applicant pursuant to s 69 of the Evidence Act 1995 (Cth) – whether letters sent by a third party to the applicant are admissible as business records of the applicant pursuant to s 69 of the Evidence Act 1995 (Cth)

Evidence Act 1995 (Cth), s 59, 69 and 135

http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/74.html

EVIDENCE – Probative value of admitted but inadmissible hearsay

INCOME TAX – International taxation – Transfer pricing – Determination of arm’s length consideration – Whether taxpayer obliged to identify single arm’s length consideration – Selection of appropriate comparable transactions – Income Tax Assessment Act 1936 (Cth) ss 136AA(3)(d), 136AD(3), 136AD(4), International Tax Agreements Act 1953 (Cth) – Relevance of double taxation treaties to construction of domestic taxation legislation

INTERNATIONAL LAW – Double taxation treaties between Australia and France, the United States of America and China – Whether treaties to be interpreted in accordance with Article 31 of Vienna Convention on the Law of Treaties – Whether commentary on OECD Model Convention relevant to the construction of double taxation treaties – Whether OECD guidelines relevant to the construction of double taxation treaties

http://www.austlii.edu.au/au/cases/cth/FCA/2011/578.html

PRACTICE AND PROCEDURE – evidence – email between non-parties to proceedings – whether a business record – authentication of document

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/292.html

NEGLIGENCE – Duty of care – Accident occurred in a school in which there were internal roads and pedestrian crossings – Maintenance contractor engaged by the school to paint pedestrian crossings – Plaintiff slipped and fell on a painted strip of a pedestrian crossing

NEGLIGENCE – Breach of duty – Proper pleading of a claim under s 5B of the Civil Liability Act – Identification of a risk of harm – Foreseeability – Whether defendant had actual or constructive knowledge of the risk of harm – Whether risk of harm was not insignificant – The precautions which the plaintiff says a reasonable person in the defendants’ position would have taken in the circumstances – Whether part of the crossing had been more recently repainted – Whether the slip resistance of the crossing was below recommended standards – Whether the slip resistance of the crossing was insufficiently uniform – Whether a reasonable person in the position of the school or the maintenance contractor would have sourced a different paint for use on the crossing

NEGLIGENCE – Causation – The test under s 5D of the Civil Liability Act 2002 – Many potential causes of a slip and fall – Whether the plaintiff has established that the lack of slip resistance of the crossing caused her injury

DAMAGES – Assessment of damages for personal injury – The extent to which the plaintiff utilised her earning capacity prior to the accident – Difficulties with assessing future economic loss – Damages for loss of capacity to provide domestic services – Where plaintiff has a disabled child

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/61.html

Criminal Law – direction by trial judge that jury could look for independent support for the evidence of one indemnified witness in the evidence of another indemnified witness – evidence of comfit identification – fresh evidence – failure by prosecution to disclose to defence material relevant to credibility of Crown witness.

Evidence Act (NSW) – ss 38, 59, 66(2), 106, 114, 115(5), 137, 164, 165

http://www.austlii.edu.au/au/cases/cth/FCA/2011/333.html

INDUSTRIAL LAW – general protection claim involving dismissal – application for compensation and pecuniary penalty for contravention of the Fair Work Act 2009 (Cth) – application for declarations that the respondent contravened general protection provisions of the Fair Work Act 2009 (Cth) – whether adverse action taken against employee by employer in breach of s 340(1) and s 346(1) of the Fair Work Act 2009 (Cth) –whether objective facts proved to establish contravention of workplace rights to enliven s 361 reverse onus – s 361 reverse onus enlivened – no evidence adduced of decision-making process of respondent in respect of adverse actions – s 361 reverse onus not discharged

INDUSTRIAL LAW – jurisdictional issue – whether the employment agreement described as an ITEA is a “workplace instrument” for the purposes of s 340 of the Fair Work Act 2009 (Cth) – “workplace instrument” defined to be an instrument made under, or recognised by, a “workplace law” for the purposes of s 12 of the Fair Work Act 2009 (Cth) – where the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) provides for the continued existence of an ITEA – whether the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) regulates relationships between employers and employees so that it is a “workplace law”

INDUSTRIAL LAW – jurisdictional issue – whether applicant required to plead and prove there is an ITEA – where respondent has pleaded in its defence that an ITEA was made and that the employee had the benefit of it – pleading treated as an admission that the ITEA was an ITEA for the purposes of the Fair Work Act 2009 (Cth)

INDUSTRIAL LAW – jurisdictional issue – whether Fair Work Act 2009 (Cth) applies to pre-1 July 2009 conduct – whether there is a relevant “workplace law” to support the “workplace right” – found “workplace right” not limited to an entitlement or ability that arises under the Fair Work Act 2009 (Cth)

INDUSTRIAL LAW – whether order under s 545 Fair Work Act 2009 (Cth) may order compensation for non economic loss such as distress, hurt and humiliation

INDUSTRIAL LAW – payment of interest under s 51A Federal Court Act of Australia 1976 (Cth) as part of judgment sum on compensation ordered under s 545 Fair Work Act 2009 (Cth)

Evidence Act 1995 (Cth) s 48, s 59, s 69, s 135, s 136

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1197.html

EVIDENCE – Witnesses – Witness called by applicant without prior signed statement – Where witnesses testimony not all favourable – Whether tendering of his oral evidence by applicant meant that all of witness’ evidence must be treated as credible – Whether counsel may lead evidence contradicting the evidence given by the witness – Consideration of Kabadanis v Panagiotu [1980] FCA 80; (1979) 47 FLR 221.

Held: Counsel not precluded from leading evidence contrary to evidence given by witness.

Evidence Act 1995 (Cth) ss 38, 59, 71, 140, 161

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1131.html

PRACTICE AND PROCEDURE – consideration of submissions in relation to the admission of evidence and rulings in relation to objections to the reception of opinion evidence having regard to ss 55, 59, 69, 76 and 79 of the Evidence Act 1995 (Cth)

Evidence Act 1995 (Cth), ss 55, 59, 69, 76 and 79

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1140.html

PROCEDURE
civil
documents
affidavits
application to tender affidavit
whether statements constitute admissions
relevance
par 68 to the end of the affidavit rejected

Evidence Act 1995 s 55, s 59, s 81

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/869.html

CORPORATIONS – winding up – application for winding up order based on alleged insolvency – plaintiff seeks to rely on presumption of insolvency arising from non-compliance with statutory demand – defendant seeks declaration that demand not served – PROCEDURE – service – service by post – need for proof of various acts culminating in depositing of addressed and stamped or franked envelope into the post – only evidence is that identified document “was forwarded by mail to the defendant” – hearsay – no evidence of acts of deponent – no evidence of existence, addressing or stamping of any envelope – no evidence of deposit into post

Evidence Act 1995 , s 59

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/517.html

CATCHWORDS:
JURIES – defamation – issue of identification of plaintiff as a person referred to in the matter complained of – counsel’s address to jury – use of evidence given by plaintiff of conversations with a series of people on the day of publication – where counsel addressed to suggest plaintiff identified by such evidence – whether submission available in light of earlier discussion concerning conduct of the trial
EVIDENCE – defamation – issue of identification of plaintiff as a person referred to in the matter complained of – admissibility of evidence of declarations made out of court for the purpose of identification – application for correcting address or direction to jury refused.

Harrison J

13 There may be good reasons for this. Mr Dawson referred to some of them in the passages quoted earlier. In particular, he referred to the common law rule concerning hearsay evidence of identification. That rule does not appear to have been affected by any provision of the Evidence Act 1995 and none that I was referred to during argument would appear to have limited or replaced it. In particular, I am not satisfied that the notice provisions of the Act, which apply to evidence that is sought to be introduced by the s 63 and s 67 pathways, have somehow by implication become engrafted upon evidence to which the common law rule relates. There are certainly no specific provisions that deal with it and none that supports any argument that has been suggested might apply by analogy.

14 In Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 656, Samuels JA considered the rule in these terms:

“There is authority for the admissibility of evidence of declarations made out of court for the purpose of identification. In Cook v Ward [1830] EngR 362; (1830) 6 Bing 409; 130 ER 1338, evidence was held admissible that the plaintiff had been publicly ridiculed after publication of the libel. Tindal CJ (at 415; 1340) said that the evidence was properly admitted ‘as identifying the subject of the libel’; and Park J (at 416; 1341) observed that the evidence had been admitted ‘to identify the Plaintiff as the person to whom the ridicule of the libel attached’. In the earlier case of Du Bost v Beresford (1810) 2 Camp 511; 170 ER 1235, the plaintiff sued the defendant for the value of a painting entitled ‘Beauty & the Beast’ which the defendant had cut in pieces on the ground that it was a scandalous libel upon his sister and her husband. In the course of the trial Lord Ellenborough held that the declarations of the spectators, while they looked at the picture in the exhibition room, were evidence to show that the figures portrayed were meant to represent the defendant’s sister and brother-in-law. In Jozwiak v Sadek [1954] 1 WLR 275; [1954] 1 All ER 3, Ormerod J, relying upon Cook and Du Bost, admitted evidence of statements made out of court and of anonymous telephone calls to the plaintiff, to identify the plaintiff with the libel; and it appears that evidence of declarations out of court were admitted in aid of the innuendo in Hough v London Express Newspaper Ltd [1940] 2 KB 507.

There are cases in this Court to the same effect, upon which the respondent relied, ie Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189 and Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225. In Steele (at 369, 370) Hutley JA (in a judgment with which upon this point I expressed my general agreement) held that the evidence of witnesses that other persons in the country town where the plaintiff lived had declared that they believed the defamatory article to refer to the plaintiff (whom it did not name) was admissible to establish the extent of the identification of the plaintiff with the person whom the article described. It is possible that this ruling was strictly obiter, since there was direct evidence of identification not under challenge which was sufficient to carry the case to the jury. However this may be, it was applied by the court (Moffitt P, Hutley and Glass JJA) in World Hosts, where it was held that evidence of statements made out of court was admissible to establish the extent of the identification of the plaintiff as the subject of the article: see at 202, 207 and 209. In Andrews the court (Hutley, Glass and Mahoney JJA) applied Steele and World Hosts and admitted hearsay evidence of identification: see at 234, 248 and 264.

The evidence now in question does not concern identification, and lacking that independent basis for admission (see per Hutley JA in Andrews (at 234)) is not distinctly authorized by the cases to which I have referred (per Glass JA in Andrews (at 248))…”

15 The plaintiff’s ability to rely upon the evidence in question for proof of identification would appear to be authorised by this passage and the cases that it refers to as support. Whether or not the defendants adverted to this rule at the time the original debate took place, or even when the plaintiff gave the evidence that is the subject of Mr Molomby’s submission to the jury, is of no particular importance. The fact that it was not raised either during the discussion or when the evidence was ultimately given rather supports both the proposition, and my conclusion, that the discussion was not concerned with identification evidence at all, as well as the proposition that this line of authority would have disposed of any objection that the defendants may have raised to the plaintiff’s evidence of conversations that she had with the twelve people that she referred to if objections to that evidence had been taken at that time.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/737.html

CORPORATIONS – examination of officers and others – written record of examination – to what extent admissible in evidence to prove facts stated – EVIDENCE – admissibility – hearsay – where deponent repeats in current affidavit statements made in an earlier affidavit – whether excluded by hearsay rule – EVIDENCE – admissibility – proceedings by company against director alleging breach of duty – whether defendant thereby exposed to penalty relevant to admissibility of evidence – EVIDENCE – admissibility – written record of examination – application of hearsay rule – statutory exception in Corporations Act

Evidence Act 1995 (Cth), s 4
Evidence Act 1995 , ss 4, 56, 59, 69(1), 69(2), 69(3), 91, 135

http://www.austlii.edu.au/au/cases/cth/HCA/2010/15.html

1 FRENCH CJ, GUMMOW, CRENNAN AND BELL JJ. This matter concerns an application to remove, from the Register of Trade Marks (“the Register”), a trade mark in respect of which the appellant, E. & J. Gallo Winery (“Gallo”), is the registered owner.
2 In the Federal Court of Australia, Gallo claimed that the respondent, Lion Nathan Australia Pty Limited (“Lion Nathan”), had infringed Gallo’s Australian trade mark registration no 787765 for the trade mark “BAREFOOT”, registered since 9 March 1999 under the provisions of the Trade Marks Act 1995 (Cth) (“the Trade Marks Act”) in class 33 in respect of “Wines being goods in class 33″ (“the registered trade mark”). Gallo was unsuccessful in this infringement claim before the primary judge (Flick J)[1] but successful on appeal to the Full Court of the Federal Court of Australia (Moore, Edmonds and Gilmour JJ) (“the Full Court”)[2].

http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/41.html

MIGRATION – judicial review – jurisdictional error – protection visa – applicant claimed to be suffering from procrastination and other psychological impairments when he gave evidence at a hearing before the Refugee Review Tribunal – the tribunal rejected this evidence – whether the tribunal fell into jurisdictional error by not complying with s 425 of the Migration Act 1958 (Cth)

EVIDENCE – hearsay – factual findings of an administrative tribunal contained within its reasons – admissible for non-hearsay purpose in judicial proceedings to prove the reasons of the tribunal – subsequently admissible to prove the truth of the findings via s 60(1) Evidence Act 1995 (Cth)

Evidence Act 1995 (Cth) ss 59, 60, 136