Category Archives: s. 059

Agresta v Trustee of the property of F Agresta a Bankrupt [2015] FCA 46 (5 February 2015)

BANKRUPTCY AND INSOLVENCY – application to review trustee’s decisions to reject proofs of debt – whether alleged debts were provable – whether parties’ conduct evinced intention to create legal relations – whether consideration given for guarantee of loan – trustee’s decisions confirmed – Bankruptcy Act 1966 (Cth), s 104(1), (2)

Cahill v Kenna; Cahill v Ferrier [2014] NSWSC 1763 (10 December 2014)

EVIDENCE – expert evidence – whether to reject whole of evidence of expert witness where prepared on a basis inconsistent with the impugned valuation – whether evidence was unfairly prejudicial – where excluding evidence would effectively determine the issue of substance to which that evidence was directed

EVIDENCE – expert evidence – whether to reject evidence of valuations prepared for non-litigation purposes – where valuations were business records – whether r 31.23 only applies to reports prepared by an “expert witness” – whether court should “otherwise order” – whether evidence would be unfairly prejudicial – where signatories did not acknowledge obligations under schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)- where signatories not to be called as witnesses – where signatories not involved in preparation of joint expert reports

EVIDENCE – expert evidence – expert valuation of land – whether one expert’s evidence to be preferred – where one expert witness briefed with substantially more information – where other expert prepared a “blind” valuation – where expert town planning advice not available to original valuer – where expert town planning advice nevertheless relied upon by one expert witness – where expert town planning advice speculative

NEGLIGENCE – duty of care – whether mediator and valuer owed a common law duty of care to plaintiffs – whether plaintiffs were vulnerable – where valuer did not know the purpose for which the valuation was to be used – whether reliance is sufficient to establish vulnerability – whether plaintiffs could have protected their own interests – whether valuation negligent – whether valued at highest and best use of the site – whether negligent in valuing property without expert town planning advice – whether no valuer acting prudently and reasonably could arrive at the value in the valuation report – whether mediator negligent in instructions to valuer – whether mediator owed parties in dispute a duty of care in instructing valuer – whether mediator breached duty of care – whether mediator acting in capacity as mediator or separate contract entered into for mediator to instruct valuer – whether mediator protected from liability as acting in capacity as mediator

MISLEADING AND DECEPTIVE CONDUCT – expert valuation of property – whether value attributed to property was misleading or deceptive – whether direct or indirect reliance on valuation – whether the valuation causative of loss

Rathner in his capacity as Official Liquidator of Kalimand Pty Ltd (in liq) v Hawthorn [2014] FCA 1067 (8 October 2014)

CORPORATIONS – Company wound up – Voidable transactions – Identification of transaction – Insolvent transactions – Meaning of becoming insolvent “because of” entering into transaction – Uncommercial transactions

EVIDENCE – Transcript of public examination of director – Whether admissible against company – Exception to hearsay rule

Australian Gift and Homewares Association Limited v Melbourne Convention and Exhibition Trust & Anor (Ruling No. 1) [2014] VSC 481 (26 September 2014)

EVIDENCE – Order sought to prevent disclosure of the identity of an informant – Whether Open Courts Act 2013 (Vic) applies – Open Courts Act 2013, ss 3, 7, 17 and 30 – Act not applicable.

PRACTICE AND PROCEDURE – Preliminary discovery – Whether particular evidence to be adduced for a hearsay purpose or non-hearsay purpose, namely the fact that a representation was made – Evidence admitted for non-hearsay purpose becoming admissible for hearsay purpose by operation of s 60 of the Evidence Act 2008 – Admissibility of hearsay evidence in interlocutory applications – Supreme Court (General Civil Procedure) Rules 2005, rr 32.05, 43.03; Evidence Act 2008, ss 59, 60 and 75.

Lazaris v R [2014] NSWCCA 163 (18 August 2014)

CRIMINAL LAW – Offence of supplying prohibited drug – Trial before judge alone – Where Crown relied on circumstantial case – Where trial judge satisfied beyond reasonable doubt of applicant’s guilt – Whether verdicts unreasonable or could not be supported by the evidence

EVIDENCE – Where hearsay representations admitted without objection – Where trial judge relied upon representations as evidence of the truth – Whether open to the trial judge to do so – Whether evidence admissible as an exception to the hearsay rule in any event

Velkoski v The Queen [2014] VSCA 121 (18 June 2014)

EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292; R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375; R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700; W v The Queen [2001] FCA 1648; (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic) [2010] VSCA 26; (2010) 24 VR 486; AE v The Queen [2008] NSWCCA 52; PNJ v Director of Public Prosecutions (Vic) [2005] NSWCCA 338; (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen [2010] VSCA 95; GBF v The Queen [2010] VSCA 135; R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229; PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552; RHB v The Queen [2011] VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen [2011] VSCA 442; DR v The Queen [2011] VSCA 440; CEG v The Queen [2012] VSCA 55; Reeves v The Queen [2013] VSCA 311; R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75; BSJ v The Queen [2012] VSCA 93; (2012) 35 VR 475; Semaan v The Queen [2013] VSCA 134; Murdoch v The Queen [2013] VSCA 272; SLS v The Queen [2014] VSCA 31R; CV v Director of Public Prosecutions (Vic) [2014] VSCA 58; Doyle v The Queen [2014] NSWCCA 4; Sokolowskyj v The Queen [2014] NSWCCA 55; DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568; RH v The Queen [2014] NSWCCA 55, considered – Cross-admissibility of three complainants’ evidence – Evidence Act 2008 (Vic) s 97.

CRIMINAL LAW – Trial – Failure to object to evidence – Whether tendency evidence – Whether words ‘is not admissible’ in Evidence Act 2008 (Vic) s 97 should be construed as ‘is not admissible over objection’ – R v Reid [1999] NSWCCA 258; Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232; FDP v The Queen [2008] NSWCCA 317; (2008) 74 NSWLR 645, considered – Deliberate decision for forensic reasons not to object – R v Radford (1993) 66 A Crim R 210; Shaw v The Queen (Unreported, Court of Criminal Appeal (NSW), Gleeson CJ, Dowd and Hidden JJ, 3 April 1996); R v Gay [[1976] VR 577, followed – Waiver – R v Clarke [2005] VSCA 294; (2005) 13 VR 75; R v McCosker [2010] QCA 52; [2011] 2 Qd R 138, followed – Whether trial judge under duty to intervene.

CRIMINAL LAW – Trial – Directions to jury – Inadequate directions as to tendency reasoning – Identification of features of tendency evidence necessary – Explanation necessary as to why tendency evidence makes fact in issue more probable – RR v The Queen [2011] VSCA 442; RJP v The Queen (2011) 215 A Crim R 315, considered – Inappropriate direction as to sexual interest in complainants as evidence of ‘state of mind’ – Appeal allowed – Retrial ordered.

EVIDENCE – Criminal Procedure Act 2009 (Vic) s 377(3) – Exception to hearsay rule – Whether fact asserted in previous representation must be subject of evidence by person who makes assertion – Complainant recants previous assertion – Evidence should therefore have been excluded.

CRIMINAL LAW – Conviction – Appeal – Whether verdicts unsafe or unsatisfactory – Verdict of acquittal entered on Charges 3 and 11.

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

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

Fair Work Ombudsman v Valuair Limited [2014] FCA 404 (29 April 2014)

EVIDENCE – out of court statements contained in transcript of interview – applicant sought to admit parts of transcript into evidence as admission – mixed statement containing inculpating and exculpating representations – whether entirety of the record of interview should be admitted into evidence at the same time – entirety of transcripts admitted into evidence

Munro v R [2014] ACTCA 11 (24 April 2014)

APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether trial judge erred in admitting statement by cleaner – where statement details system of work employed by cleaner relevant to when DNA may have been deposited at scene – whether statement made in circumstances that make it highly probably that the statement is reliable: s 65(2)(c) Evidence Act 2011 (ACT) – where related to system regularly repeated and therefore likely to be remembered, where no personal interest in trial, where desire to maintain reputation likely outweighed by inclination to avoid criminal prosecution – s 65(2)(c) does not apply to a statement simply because it was made to a police officer

APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether trial judge erred in admitting statement by cleaner – whether trial judge erred in ruling probative value not outweighed by danger of prejudice: s 137 Evidence Act 2011 (ACT) – where author deceased and therefore unavailable for cross-examination – whether jury would assign undue weight to statement in absence of cross-examination – where statement admitted for limited purpose – where judicial directions and counsel’s address to jury available

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to unreliability of witness – where witness involved in offence charged – where witness had lied in earlier proceedings – s 165 Evidence Act 2011 (ACT) does not require trial judge to form a view as to unreliability of evidence before directing jury – where trial judge gave further directions at request of appellant, and no further request, indicating adequacy of directions

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to circumstantial evidence – whether evidence in circumstantial case need to be proved beyond a reasonable doubt – evidence in “strands in the cable” case not necessary to prove individual strands beyond a reasonable doubt, nor necessary that individual strands support guilt – misdescription of case as both direct evidence and circumstantial not misleading – where no request for redirection

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to statement by cleaner – where misdirection that statement was not hearsay immaterial – where author deceased and therefore unavailable for cross-examination – whether jury should have been warned of unreliability – where warning at discretion of judge – where no basis for unreliability beyond unavailability – where no request for redirection

APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether verdict unsafe and unsatisfactory – where evidence of unreliable witness supported by other evidence in trial – where jury adequately directed – where the evidence was not so lacking in cogency, did not contain such discrepancies or inadequacies, and was not so tainted as to make verdicts of not guilty the only proper verdicts

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – where no application under r 5531 Courts Procedures Rules 2006 (ACT) – r 5531 not a formality to be neglected – operation of rule alone sufficient to dispose of appeal grounds alleging misdirection

APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – aggravated robbery and intentionally inflict grievous bodily harm – whether disparity between sentences imposed on appellant and co-offender – where appellant sentenced for two offences and co-offender only one – common elements in offences not a reason to reduce sentence, but a factor in determining concurrency – where appellant was individual who discharged weapon causing grievous bodily harm, not co-offender – where co-offender not sentenced on basis of discharge of firearm – where co-offender pleaded guilty – where subjective circumstances different

APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – whether manifestly excessive – serious example of offending – where offences called for strong general deterrent effect

APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – whether trial judge in error in relying on aggravating feature not proved beyond reasonable doubt – where criminal history suggested appellant was at large in breach of bail at committal – where history possibly inconsistent – where no inference available that the appellant had absconded from bail in South Australia – where trial judge made findings of aggravating circumstances, necessary inference is they were taken into account on sentence

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

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.

Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 (17 December 2013)

WILLS, PROBATE AND ADMINISTRATION – informal testamentary document – no dispute that undated document not executed in accordance with s 6 Succession Act 2006 – No dispute that the undated document purports to state the testamentary intentions of a deceased – Deceased familiar with the formal requirements for the making of a valid will – Whether Court satisfied that the deceased intended the undated document to form a Will – Consideration of circumstances in which the document was made – No dispute that if Court not satisfied should be grant of Letters of Administration with formal 2007 Will annexed to independent solicitor agreed to by the parties

Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 (20 December 2013)

ADMINISTRATIVE LAW – application for judicial review of decision of Minister for the Environment to approve a project to construct and operate a new open cut coal mine – whether the Minister took into account an alleged disclosure of sensitive information by the New South Wales Government in making his decision – whether the conditions attached to the approval were sufficiently certain – whether the Minister failed to take into account the impact of the project on the Tylophora linearis plant species – whether s 139(2) of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) is dependent on a jurisdictional fact – if a jurisdictional fact does exist, whether the jurisdictional fact is enlivened – if the jurisdictional fact is enlivened, whether the project is likely to have a significant impact on the Tylophora linearis plant species

EVIDENCE – whether direction under s 136 of the Evidence Act 1995 (Cth) should be made in respect of a submission made on behalf of the applicant to the Minister for the Environment in respect of the project – whether the direction is necessary to restrict inadmissible opinion evidence – whether the direction is necessary to restrict inadmissible hearsay evidence

State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 (19 December 2013)

INDUSTRIAL LAW – Whether appellant contravened s 343 of the Fair Work Act 2009 (Cth) – Meaning of ‘intent to coerce’ – Elements required to establish requisite intent – Whether deliberate avoidance of a legislative policy may constitute ‘illegitimate conduct’ – Operation of statutory presumption raised by s 361 of the Fair Work Act 2009 (Cth) – No contravention made out.

INDUSTRIAL LAW – Whether appellant took adverse action in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth) against employees of an independent contractor – Construction of Item 4 of s 342(1) of the Fair Work Act 2009 (Cth) – Meaning of ‘independent contractor’ – Whether appellant ‘proposed to enter into a contract for services’ with independent contractor – No contravention made out.

INDUSTRIAL LAW – Whether the Fair Work Act 2009 (Cth) provides for the imposition of civil pecuniary penalties on the Crown – Whether the State of Victoria is a ‘body corporate’ within the meaning of that word in s 546(2) of Fair Work Act 2009 (Cth) – Inapplicability of the proposition in Cain v Doyle [1946] HCA 38; (1946) 72 CLR 409 to determining amenability of the Crown to modern civil pecuniary penalties – Whether inappropriate as a matter of principle to impose a pecuniary penalty on the Crown – Crown amenable to civil pecuniary penalties – State of Victoria is a ‘body corporate’ in requisite sense.

PRACTICE AND PROCEDURE – Application by appellant to withdraw concession made at trial – Proposal to introduce “business records” within the meaning of s 69 of the Evidence Act 1995 (Cth) to remedy evidentiary lacuna – Application refused.

CONSTITUTIONAL LAW – Whether appellant exceeded the limits of Victorian State executive power by “adopting and promulgating” code and policy for the Victorian building and construction industry – Nature of executive policy-making – Discussion of implication of Williams v Commonwealth of Australia (2012) 248 CLR 156 for exercise of executive power by States – Capacity of the executive branch of a State to enter into contracts.

PRACTICE AND PROCEDURE – Declaratory relief sought pursuant to ss 21 or 23 of the Federal Court Act 1976 (Cth) that Victorian executive policies were invalid – “Adoption and promulgation” of policy did not give rise to justiciable controversy – No legal, equitable or statutory right affected – Relief refused.

McWhirter v Dunlop; Tran v Harris [2013] VSC 697 (13 December 2013)

APPEAL FROM MAGISTRATES’ COURT —Exceeding speed limit in breach of r 20 Road Safety Road Rules 2009—Defendant failed to appear — Preliminary brief served— Charge heard and determined ex parte — Whether informant’s statement in preliminary brief sufficient— Use of speed detector device— Sufficiency of evidence— Error in finding sentencing facts – ss 27, 37, 80, 84 Criminal Procedure Act 2009 (Vic), s 79(1) Road Safety Act 1986 (Vic), reg 20 Road Safety Road Rules 2009 (Vic), reg 41, 45, 46 Road Safety (General) Regulations 2009

McLaren v Chief of Navy [2013] ADFDAT 5 (29 November 2013)

DEFENCE FORCE – appeal from Restricted Court Martial against convictions for committing an act of indecency – circumstantial evidence – whether Judge Advocate erred in failing to give proper direction – admissibility of evidence based on inference drawn by witness from observed facts – whether substantial miscarriage of justice – meaning of “indecency” – appeal allowed – conviction quashed – retrial ordered

Downie and Community Information & Referral Service ACT Inc. v Jantom Company Propriety Ltd, Ex-Government Furniture Propriety Ltd and GIO General Insurance Ltd [2013] ACTSC 171 (29 August 2013)

NEGLIGENCE – personal injury – plaintiff injured by breakage and collapse of office chair – claim against manufacturer and importer – previous returns of chairs with broken bases – defendant on notice of risk of breakage – breach of duty established.

DAMAGES – personal injury – collapse of office chair – low back injury – disc injury at

L4-5 – surgical fusion – severe permanent low back pain – depression and anxiety – substantial impairment of earning capacity.

CONTRACT – breach of contract – sale of office chair to employer – employer settling claim by injured employee – claim by employer against retailer of chair for settlement amount – rule in Hadley v Baxendale – loss too remote – not recoverable.

TRADE PRACTICES – claim under ss 74B and 74D of the former Trade Practices Act 1974 (Cth) – Breakage and collapse of office chair causing personal injury – such claim limited to goods for personal, domestic or household use – office chair not covered – claim fails.

INSURANCE – product liability – office chair – breakage and collapse causing personal injury – policy covering manufacturer and importer – exclusion clause excluding claims arising from design of product – excluding claims arising from warranty implied by law – whether claim excluded by exclusion clause.

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

Raimondi v The Queen [2013] VSCA 194 (31 July 2013)

CRIMINAL LAW – Appeal against conviction – Evidence – Use of prior inconsistent statements – Direction as to whether inconsistent statement had been made – Direction that jury determine which of the inconsistent statements they believe – Whether Liberato direction necessary – Whether necessary to direct jury that prior inconsistent statements could be used as evidence of the facts asserted in them – ss 59, 60 Evidence Act 2008 – R v Abdallah [1999] NSWCCA 380; R v Hilder (1997) 97 A Crim R 70 considered – Truth of representations not relied upon by either party – Forensic advantage for defence in not seeking direction.

CRIMINAL LAW – Whether verdict unsafe or unsatisfactory – Unusual features of case not creating solid obstacle to conviction – M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; Rodi v The Queen [2011] VSCA 48 applied- Appeal dismissed

CRIMINAL PROCEDURE – Content of Judge’s Report to Court of Appeal – Opinion on issues to be determined on appeal.

The Queen v De Saint-Aromain (Ruling No 1) [2013] VSC 398 (26 July 2013)

CRIMINAL LAW – Ruling – Admissibility of a statement of additional evidence from a witness – Evidence vague, not sufficiently relevant and not a professional opinion – Evidence inadmissible – Criminal Procedure Act 2009 (Vic) s 188, Evidence Act 2008 (Vic) ss 55, 59, 76, 77, 79(1).

R v Jacobs (No 6) [2013] NSWSC 947 (27 June 2013)

EVIDENCE LAW – evidence of unfired cartridges located at home of accused – unfired cartridges found whilst accused in hospital – unfired cartridges of same calibre as ammunition found at scene – majority of unfired cartridges of same make as ammunition found at scene – whether evidence relevant – whether probative value of evidence outweighed by danger of unfair prejudice – evidence to be admitted

Russell v The Queen [2013] VSCA 155 (21 June 2013)

CRIMINAL LAW – Application for leave to appeal against conviction – One charge of buggery with a child under 14 years and five charges of buggery – Offences committed over 40 years ago – Whether trial judge erred in directing the jury they could use hearsay evidence adverse to the applicant adduced in cross examination of the informant – Whether trial miscarried because of failure correctly to direct the jury about the use to be made of a false Crown theory of defence tactics never adopted by the applicant – Whether verdicts unsafe – Leave to appeal granted and appeal allowed.

R v Dib [2013] ACTSC 70 (19 April 2013)

CRIMINAL LAW – PARTICULAR OFFENCES – Drug Offences – two charges of trafficking in a controlled drug – judge-alone trial – whether accused transported or possessed drugs with intention of selling – whether drugs were in accused’s possession – reasonable doubt whether bag transported by accused was bag subsequently found to contain drugs – accused’s DNA on outside of bag containing drugs – possibility that accused’s DNA found on one item inside bag deposited by secondary transfer during police search of bag – reasonable doubt whether accused had possession of bag containing drugs – accused not guilty of either offence.

R v Dib [2013] ACTSC 71 (19 April 2013)

CRIMINAL LAW – PARTICULAR OFFENCES – Drug Offences – two charges of trafficking in a controlled drug – judge-alone trial – whether accused transported or possessed drugs with intention of selling – whether drugs were in accused’s possession – reasonable doubt whether bag transported by accused was bag subsequently found to contain drugs – accused’s DNA on outside of bag containing drugs – possibility that accused’s DNA found on one item inside bag deposited by secondary transfer during police search of bag – reasonable doubt whether accused had possession of bag containing drugs – accused not guilty of either offence.

Cooper v Hobbs [2013] NSWCA 70 (9 April 2013)

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

Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30 (25 February 2013)

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.

SZQVM v Minister for Immigration and Citizenship [2013] FCA 5 (15 January 2013)

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

ATV v Buxton [2012] TASSC 83 (11 December 2012)

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]

Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 (24 October 2012)

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

Levy v Watt [2012] VSC 539 (14 November 2012)

LIMITATION OF ACTION – Valuable painting stolen in 1991 – Identity of thief not known – Defendants the executors and residuary beneficiaries of owner’s estate – Painting left by R to the plaintiff, his solicitor, in his will – Defendants did not learn whereabouts of the painting until 2010 when police seized the painting – Application to Magistrates’ Court for order under s 125 of the Police Regulation Act 1958 – Order that the painting be returned to the defendants pending determination of ownership – Plaintiff claimed his possessory title was superior to defendants’ documentary title which had been extinguished by expiration of limitation period – Whether right of action concealed by fraud if identity of thief not known – Whether plaintiff proved that R acquired the painting as a bona fide purchaser for value without notice – Limitation of Actions Act 1958, ss 3(4), 5(1), 6, 27.

10 I uphold the submission by counsel for the plaintiff that this hearsay upon hearsay evidence is inadmissible, pursuant to s 59(1) of the Evidence Act 2008 , as the defendants seek to rely upon it to establish that Mr James Watt had told Mr Rand to get off the property and that he had told his sister in law what he had said and that she had told her daughter in law what had been said. Even if Mrs Sandra Watt’s evidence that she heard Mr James Watt say “I told him to get off the property” is admissible under s 63 of the Evidence Act , it does not assist the defendants because the “him” is not identified.

SALMON v R [2012] NSWCCA 119 (4 June 2012)

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.

Smith v Gould (Ruling No 1) [2012] VSC 210 (18 May 2012)

EVIDENCE – admissibility – statements in letters marked ‘without prejudice’ – letters sent between solicitors for persons who are not parties to or witnesses in the proceeding to solicitors for a bank – representations in the communications relevant to issue in the proceeding – no attempt to negotiate settlement of a dispute – letters not excluded by ‘without prejudice’ privilege – whether letters excluded from evidence by the hearsay rule – whether letters are ‘business records’ – whether business record exclusion to hearsay rule permits reception in evidence of the letters – Evidence Act 2008 (Vic), ss 59, 69 and 131.

Kirby v Centro Properties Limited (No 4) [2012] FCA 323 (29 March 2012)

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.”

Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94 (20 March 2012)

NOTE: This version has been amended pursuant to the ‘Slip Rule’ by Order made 1 May 2012 and reasons: James George Hodgson v Amcor (No. 8) [2012] VSC 162

COMPANIES – “Officer” of a corporation – Duties arising under ss 180, 181, 182 and 183 Corporations Act 2001 – Persons who constitute the directing mind of a corporation –Alleged sale of company assets on uncommercial terms – concept of an ‘uncommercial transaction’ – Whether breach of fiduciary duty for employee to participate in a sale of company assets on uncommercial terms – Noting business opportunities – Whether breach of fiduciary duty to employer – Making preparations for new business following termination of employment – Whether breach of fiduciary duty to employer – Concealing useful commercial intelligence from employer – Whether breach of fiduciary duty to employer – Failing to disclose own breaches of fiduciary duty – Whether in itself a breach of fiduciary duty to employer – Compensation under Corporations Act 2001 s 1317H – Claims by shareholders for losses suffered by a company – Claims by shareholder for damages reflective of company losses

EMPLOYER and EMPLOYEE – Redundancy at common law – Whether employee made redundant – Contractual termination by notice – Purported summary dismissal post termination – Whether purported ground of summary dismissal made out – Burden on employer to establish serious misconduct – Whether grounds of termination may change by reason of after acquired information – Application of principle in Shepherd v Felt and Textiles of Australia [1931] HCA 21; (1931) 45 CLR 359 – Entitlement to bonus – Quantum of bonus – Long service leave calculation – Annual leave calculation – Whether accrued entitlements survive termination – Sale of employers’ businesses to employees – Fiduciary duties of employees

EQUITY – Fiduciary duties of employees – Equitable remedies – Election as to relief – Equitable compensation – Taking of accounts – Causation and equitable relief – Barnes v Addy liability – Knowledge of fiduciary breach – Equitable defence of laches in relation to fiduciary claims

EVIDENCE – Admissions made by a party in computer stored information- ss 59(1), 81(1), 87(1)(a) Evidence Act 2008 – Admissions admissible against parties other than the maker – s 87(1)(a) Evidence Act 2008 – Proof of requirements under s 87(1)(a) Evidence Act 2008

PRACTICE and PROCEDURE – Application at trial to amend defence to withdraw an admission – Principles to be applied – Anshun estoppel – Principles to be applied

Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (14 March 2012)

PROFESSIONAL LIABILITY – solicitors – property proceeding in Family Court of Australia – settled at door of court on terms overly generous to wife – action by husband for damages for lost opportunity – valuation, taxation and other evidence not prepared in time for hearing – instructions taken and acted on from client lacking mental capacity – whether solicitors should have known – whether breach of duty of care – whether breach of fiduciary duty – whether coercion – pre-hearing representations – whether in trade or commerce – whether misleading and deceptive conduct – advocates’ immunity – whether applicable – assessment of damages for lost opportunity – notional trial in Family Court – whether evidence of subsequent facts admissible – apportionment of damages between concurrent wrongdoers – rule in Jones v Dunkel – husband’s senior counsel not called by solicitor – whether senior counsel in camp of solicitor – affidavit of husband’s deceased father – whether admissible hearsay evidence – Fair Trading Act 1985 (Vic), s 9(1) – Wrongs Act 1958 (Vic), pt IVAA – Evidence Act 2005 (Vic), s 135.

Panopus Plc, in the matter of Opes Prime Stockbroking Limited [2012] FCA 158 (1 March 2012)

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

DPP v Polutele [2011] VSC 223 (26 May 2011)

CRIMINAL LAW – Evidence – Manslaughter by unlawful and dangerous act – Accused charged with delivering blow rendering deceased man unconscious – Accused alleged to have acted in concert with witness serving prison sentence for manslaughter after guilty plea – Leave granted under s 38(1)(b) of the Evidence Act 2008 (‘the Act’) to cross-examine witness with whom accused alleged to have acted in concert – Leave granted to cross examine in relation to contents of witness’s police Record of Interview as prior inconsistent statements – Section 192(2)(a)-(e) of the Act – Credibility evidence – Evidence of prior inconsistent statement which could substantially affect assessment of credibility under s 102 of the Act – Principle in Blewitt v R [1988] HCA 43; (1988) 62 ALJR 503 inapplicable – Evidence of Record of Interview not excluded under s 137 of the Act – Evidence of second-hand hearsay admissions in Record of Interview excluded under s 137 of the Act.

R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2011] NSWSC 1388 (21 November 2011)

CRIMINAL LAW – interlocutory proceedings – s 192A Evidence Act 1995 – advanced rulings and findings – admissibility and use of evidence
CRIMINAL LAW – particular offences – offences against the government – conspiracy to defraud the Commonwealth – s 29D and s 86(1) Crimes Act 1914 – s 135.4(5) Criminal Code Act 1995