Category Archives: s. 048

Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596 (13 November 2014)

PROCEDURE – orders sought under the Vexatious Proceedings Act 2008 (NSW) – procedural requirements satisfied – litigious history established by evidence and admissions – vexatious proceedings established – defendant frequently involved in vexatious proceedings – whether orders should extend to cross-claim – orders made

EVIDENCE – documentary evidence – documents in dispute – judgments and transcripts of proceedings – relevance – admissibility – s 91 Evidence Act 1995 (NSW) – proof – s 157 Evidence Act 1995 (NSW) – judgments – whether reasons for judgment are a public document – proof of reasons for judgment pursuant to s 48 of the Evidence Act 1995 (NSW) – hearsay – s 64 of the Evidence Act 1995 (NSW) – judges not compellable to give evidence – s 69 application of business records exception to judgments and reasons

EVIDENCE – application under s 67 of the Evidence Act 1995 (NSW) – direction given

Vella v Minister for Immigration and Border Protection [2014] FCA 1177 (6 November 2014)

MIGRATION – application for review of the Minister’s decision not to revoke a visa cancellation under s 501C of the Migration Act – subpoena issued to the Minister for all material before him at the time of the decision – whether the documents that would otherwise have been required to be produced are protected from production under s 503A of the Migration Act – whether the evidence of the Minister satisfies the preconditions for protection under s 503A

PRACTICE AND PROCEDURE – subpoena – whether the subpoena has a legitimate forensic purpose – whether documents sought by the subpoena in relation to a particular issue cease to have apparent relevance because of a concession or admission, or because other evidence is already available in relation to that issue

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

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). …

Wade (a pseudonym) v The Queen [2014] VSCA 13 (14 February 2014)

CRIMINAL LAW – Conviction – Armed robbery and attempted armed robbery – Applicant sentenced to a 25 years Supervision Order pursuant to Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) – Indictment – Severance – Prejudice – Whether charges should have been severed – Verdict – Whether verdict unreasonable – Evidence – Whether secondary evidence of contents of lost CCTV recordings should have been excluded under s 137 of Evidence Act 2008 – Pitkin v R [1995] HCA 30; (1995) 130 ALR 35; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; Festa v The Queen (2001) 208 CLR 593, referred to – Evidence Act 2008 s 137.

WORDS AND PHRASES – ‘Document’ – Whether judge erred in treating CCTV footage as document within the meaning of s 48 of Evidence Act 2008 –Taylor v Chief Constable [1986] 1 WLR 1480; R v Sitek [1988] 2 Qd R 284; Smith v The Queen [2001] HCA 50; (2006) 206 CLR 650 referred to.

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.

Agripower Barraba Pty Limited v Blomfield [2013] NSWSC 1598 (5 November 2013)

PROPERTY – fixtures to land – intention of parties – degree of annexation – where uncertainty over who owned disputed items prior to transfer of title – where uncertainty over whether party held rights of ownership or rights of a secured creditor over the disputed items – where certain items partly welded in place and structures built around them which would have to be demolished, in part, to remove them – where certain items are part of an integrated processing and bagging facility – whether removal would destroy the items – whether the cost of removal would exceed the value of the items – whether removal would damage the property – whether terms of a lease assists with determining the intention of parties.

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

R v Klobucar [2013] ACTSC 118 (18 June 2013)

CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – judge-alone trial – procuring drug trafficking – intention to procure – conduct effective to procure – trafficking offence actually committed – verdict of guilty to be entered.

CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – procuring drug trafficking – presumption of required intention or belief for trafficking offence arising from transporting of traffickable quantity not available against accused who procured the transporting – Criminal Code 2002 (ACT), s 604.

CRIMINAL LAW – PARTICULAR OFFENCES – drug trafficking – whether a person who transports drugs on behalf of another person expecting payment for the delivery “sells” the drugs to the other person – whether if a person who transports drugs on behalf of another person “sells” the drugs to the other person, the other person is protected from liability for an offence arising from procuring the transporting of the drugs by reason of an intention to “buy” the drugs – Criminal Code 2002 (ACT), ss 600, 602, 605.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Courses of Evidence, Statements and Addresses – whether prosecution should be permitted to open on one analysis of the facts and close on another analysis – whether defence prejudiced in cross-examination.

CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – evidence of co-offender’s conviction for offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), ss 91, 178.

CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – opinion of person about legal significance of actions not evidence based on what person saw, heard or otherwise perceived about a matter or event – evidence of co-offender’s opinion whether he committed offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), s 78.

Audsley v The Queen [2013] VSCA 41 (7 March 2013)

CRIMINAL LAW − Handling stolen goods − Appellant convicted of five counts of handling stolen furniture items − Allegedly stolen items disposed of before trial − Whether convictions unsafe because of unavailability of furniture − Whether trial judge failed to properly direct jury as to the elements of handling − Whether the trial judge was required to direct the jury that the appellant have exclusive possession of the furniture − Whether trial miscarried by the introduction, in re-examination, of evidence earlier ruled to be inadmissible − Whether verdicts unsafe and unsatisfactory − Crimes Act 1958 (Vic) s 88.

Registrar of Aboriginal and Torres Strait Islander Corporations v Ponto [2012] FCA 1500 (24 December 2012)

PRACTICE AND PROCEDURE – admissibility of evidence – transcripts of examinations conducted pursuant to s 453-5(1)(c) Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – where recordings not tendered – where transcripts not authenticated by signature or respondents’ testimony – application of s 48(1)(c) of the Evidence Act 1995 (Cth) – whether transcripts satisfy hearsay exception in s 81 of the Evidence Act 1995 (Cth) – whether transcripts contain admissions

CORPORATIONS – whether improper use of position within the meaning of s 265-10 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – where management agreement existed with an external company – where that external company controlled the Corporation’s bank accounts – where minority of directors did not approve of management agreement – where chairman director sought to appoint a chief executive officer sympathetic to minority position on favourable terms without Board approval – where chairman director and new chief executive officer attempted to access bank accounts of Corporation – whether two other directors who attended the bank but did not participate were “involved in” these contraventions within the meaning of s 694-55 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

CORPORATIONS – disqualification orders under s 279-15 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – where contravening respondents attempted to circumvent Board process and impose minority views – where general deterrence an important consideration as acts jeopardised Corporation providing essential services – where specific deterrence less important as respondents unlikely to serve as directors or officers again – where no intention to misappropriate funds – where no evidence of bad character or similar previous behaviour

COSTS – where applicant successful against two respondents – where only one respondent appeared – where respondent increased cost of hearing by cross-examining many of the witnesses – costs sought against that respondent

Bank of Western Australia Limited v Coppola and Anor (No. 2) [2012] NSWSC 1495 (6 December 2012)

MORTGAGES – claim for possession of land and monetary judgment – mortgage default – application by Plaintiff for summary judgment – Cross-Claim against Plaintiff and Registrar General – application by Plaintiff and Registrar General for summary dismissal of Cross-Claim – Plaintiff granted summary judgment – summary dismissal of Cross-Claim granted

Frontlink Pty Ltd v Feldman [2012] VSC 530 (2 November 2012)

PRACTICE AND PROCEDURE – Plaintiff’s application for summary judgement – deceased entered into multiple agreements with plaintiff as owner of the properties – deceased and defendant acted as farm consultants to plaintiff – extent to which defendant held letters of administration ad colligendum bona for deceased – Civil Procedure Act 2010, ss 61, 63-64.

14 The plaintiff provided an explanation as to why only a copy was available. Sauhail Mondous, the director of Frontlink deposed:

In this respect I recollect handing the original of the document “SM-2” referred to in my previous Affidavit to the deceased in or about October 2002 so it could be signed. He said he would arrange for its signature. The deceased took the document away to have it signed, by both himself and his wife. I recollect that several days later the deceased returned a copy of the original document to me in the form in which it appears as Exhibit SM-2. I believe the deceased retained the original.[9]

15 I accept that explanation. In any event, s 48 of the Evidence Act (Vic) permits a party to adduce evidence of the contents of a document in question by, among methods, tendering a document that is or purports to be a copy of the document in question.

Coshott v Burke [2012] FCA 517 (27 April 2012)

BANKRUPTCY – annulment of bankruptcy pursuant to s153A Bankruptcy Act 1966 (Cth) – trustee gives notice of intention to declare final dividend under s 145 and requires proof of debt by specified date to facilitate annulment – application under s 104 by bankrupt for review of decision by trustee pursuant to s102(1)(b) to partially admit creditor’s proof of debt – where creditor delays lodging proof of debt for a period after specified date in notice – whether Court should reject late proof of debt on a review of trustee’s decision under s 104 in respect of bankrupt seeking annulment under s 153A
Held: Court conducts a review de novo under s 104 of the trustee’s decision to admit or reject creditor’s proof of debt – when considering whether trustee (or Court) satisfied for the purposes of s 153A(1) that bankrupt has paid all provable debts in full, trustee (or Court) not constrained by time specified in notice to creditors under s 145(3)

Maher v Carpenter [2012] ACTSC 38 (16 March 2012)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal upheld and proceedings remitted.

TRAFFIC LAW – offences – driving with prescribed concentration of alcohol – mistake of fact – onus of proof – what needs to be proved.

TRAFFIC LAW – offences – driving with prescribed concentration of alcohol – whether defence evidence capable of inducing reasonable doubt as to accuracy of breathalyser instrument – whether charge may be dismissed.

PROCEDURE – courts and judges generally – unrepresented party – degree of assistance from trial Magistrate.

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 3) [2011] VSC 272 (2 June 2011)

EVIDENCE– Distinction between opinion evidence and factual evidence – Admissibility of expert evidence of facts – Expert with experience in computer forensic analysis assisted in data retrieval – Whether an expert opinion — Document in question (computer data) not available – ss.48(4), 76 and 79 Evidence Act 2008 ;

PRACTICE AND PROCEDURE — Case management – Civil Procedure Act 2010 – Case management orders made pursuant to s 47(1) – Balance between case management requirements and the necessity to ensure a fair trial – Rule 44 Supreme Court (General Civil Procedure) Rules 2005 – Whether applicable to expert statement where facts stated but where no opinion expressed.

Secretary to the Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd [2011] VSC 191 (12 May 2011)

ADMINISTRATIVE LAW – VCAT – Leave to appeal on question of law – Whether finding of fact supported by any probative evidence – Whether inferences reasonably open of facts found – Use of expert evidence – Whether basis for opinion proved – Tribunal informing itself as it sees fit – General procedure of VCAT – Section 98 Victorian Civil and Administrative Tribunal Act.

EVIDENCE – OPINION – Whether basis of opinion established – Expert tribunal with informal procedure, not subject to rules of evidence, which may inform itself as it thinks fit.

RESUMPTION AND ACQUISITION OF PROPERTY – Dispute referred to VCAT – Expert opinion evidence of value of business on DCF basis – Whether basis for opinion established – Onus of proof – Causation – Whether extinguishment of business a direct, natural and reasonable consequence of acquisition – Claim of double-counting of trading losses for assessment of disturbance loss – Claim for executive time – Sections 40, 41, 80 Land Acquisition and Compensation Act 1986.

Keays v J P Morgan Administrative Services Australia Limited [2011] FCA 358 (13 April 2011)

CONTRACTS – employment contract – repudiation – breach of contract – implied terms

TRADE PRACTICES – whether representations made in connection with an employment contract contravened ss 52 and 53B of the Trade Practices Act 1974 (Cth)

Evidence Act 1995 (Cth) ss 48, 60, 136

Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) [2011] FCA 338 (12 April 2011)

CONTEMPT OF COURT – respondent gave undertakings to the Court not to withhold consent to assignment of its franchises on a certain basis – whether respondent contravened undertakings – general principles applicable to determination of a charge of civil contempt – what constitutes an “assignment” for the purposes of undertakings – whether consent to assignment “withheld” where no request to assign made but respondent indicated that consent to assignment would not be given – whether change of directors constitutes an assignment of franchise for purposes of undertakings in circumstances where franchise agreement deemed such a change to constitute an assignment – not an assignment for the purposes of undertakings

EVIDENCE – admissibility of documents exhibited to affidavit – whether documents exhibited to affidavit are what they purport to be – authenticity of documents – whether admissible as business records – reliance on other evidence to support contention that documents exhibited to affidavit are what they purport to be – documents admissible as business records
Words & phrases: “assignment”, “withhold consent”

Evidence Act 1995 (Cth), s 48(1), s 55(1), s 58(1), s 69, s 142 and s 183

Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 (8 April 2011)

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

Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) [2011] FCA 263 (23 March 2011)

EVIDENCE – tender of a computer disk containing recordings of conversations made by using mobile telephone – whether s 138 of the Evidence Act 1995 (Cth) applies – whether contravention of s 5 Surveillance Devices Act 1998 (WA) – whether contravention of s 9 Surveillance Devices Act 1998 (WA) – exemptions held to apply – whether use of surveillance device in the public interest – no additional requirement to obtain publication order under s 31 Surveillance Devices Act 1998 (WA)

Evidence Act 1995 (Cth) s 48, s 138

Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 (7 October 2010)

DEFAMATION – Defence of truth – Whether available where the imputation is comment – Whether error by primary judge in finding defence made out.
DEFAMATION – Defence of statutory qualified privilege – Interest or apparent interest – Whether defence defeated by malice – whether defendant must exclude malice in order to show that its conduct was reasonable.
DEFAMATION – Defence of comment – Whether available where imputation is partly comment and partly assertion of fact.

Evidence Act 1995 s 48

Minassian v Minassian [2010] NSWSC 708 (6 July 2010)

TRUSTS – Express trusts – resulting trusts – constructive trusts – requirements of writing
EVIDENCE – Documents – where lost – admission of secondary evidence – need to have personal knowledge of contents – admissions as to contents – admissions contained in later contract
Ball J

Express written trust arising from the 1980 agreement
42 George seeks to prove the existence and terms of the 1980 agreement in various ways. First, he relies on direct evidence from those who say they saw the agreement – that is, himself and Rita. Second, he seeks to infer its existence and its terms from the contents of the 1990 agreement. Third, he relies on statements made by or on behalf of Mr and Mrs Minas concerning their interest in the Carlingford property. Those statements take various forms. There are the statements in the 1990 wills which were signed by Elie. There is the statement in the caveat concerning the interest that they claimed. There are the statements in Mrs Minas’s later wills. Finally, George and his sisters and some other witnesses give evidence of oral statements made by Mr and Mrs Minas concerning their interest in the property. Some of those statements were made in discussions leading up to the acquisition of the property. A substantial number of them were made after the property had been purchased.

43 Section 48 of the Evidence Act 1995 sets out how a party may adduce evidence of the contents of a document. Relevantly, it permits a party to prove the contents of a document by adducing evidence of an admission made by another party to the proceeding as to the contents of the document (s 48(1)(a)) or, where the document in question is not available to a party, by “adducing from a witness evidence of the contents of the document in question” (s 48(4)). Clause 5 of the Dictionary of the Evidence Act relevantly provides that a document is taken not to be available to a party if “it cannot be found after reasonable inquiry and search by the party”. Section 51 of the Evidence Act abolishes the common law principles applicable to the proof of the contents of a document.

44 Although s 51 of the Evidence Act abolishes the common law principles relating to the admissibility of evidence to prove the contents of documents, it does not affect the principle that, at least where property disputes are in question, clear and convincing evidence of the contents of the lost document is necessary. In Maks v Maks (1986) 6 NSWLR 34, for example, the plaintiff sought to establish by oral secondary evidence the contents of a declaration of trust by the defendant in favour of the plaintiff in respect of a half share in a house. McLelland J said (at 36):

“I am of the opinion that where the original writing is not produced and secondary evidence is relied on, there must be clear and convincing proof not only of the existence, but also of the relevant contents, of the writing, of the same order as the proof required to establish an entitlement to the rectification of a written instrument …, the two classes of case being to my mind in relevant respects analogous.”

See also Mack v Lenton (1993) 32 NSWLR 259 at 261 per Young J; Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010 at [29] per von Doussa J.

45 There is no specific provision of the Evidence Act dealing with how the existence of a document is to be proved. That depends on the common law as modified by the general provisions of the Evidence Act .

46 I think that it is more likely than not that there was some form of written agreement dated 11 December 1980. I say that largely because of the terms of the 1990 agreement and the caveat prepared at the same time. I deal below with the question whether the fact that Elie signed the 1990 agreement (and the wills) can be taken as an admission by him in relation to the 1980 agreement. However, even if it is not, in my opinion, the 1990 agreement and the caveat are admissible to prove the existence of the 1980 agreement. Mr Phair signed the caveat. He could not recall seeing the 1980 agreement. However, he gave evidence that it was his practice to satisfy himself that there was at least some basis for the claim made in the caveat. The likelihood is that he saw a document dated 11 December 1980 and it was that document that formed the basis of that claim. Mr Phair could not recall preparing the 1990 agreement. However, he signed the letter dated 23 March 1990 to Mr and Mrs Minas enclosing a draft of that agreement. Again, the likelihood is that he reviewed the draft agreement even if he did not prepare it himself; and, again, it is difficult to see where the reference to an agreement bearing a date of 11 December 1980 would have come from other than from a document bearing that date. It is possible that Mr Phair did not actually see the 1980 document but was relying on a description of it given to him by Mr Minas or George. But in that case the document still must have existed in order to be described. The only other alternative is that Mr Minas or George gave Mr Phair the date and some description of the document sufficient to permit the caveat and 1990 agreement to be prepared in circumstances where no such document existed. That strikes me as unlikely.

47 What, then, were the contents of the 1980 agreement? As I have said, s 48 of the Evidence Act determines what is admissible in answering that question. Mr Loofs made two submissions in relation to that section. First, he submitted that the 1980 agreement was “not available” to George within the meaning of the Act. Consequently, he said, s 48(4) applied. Second, he submitted that that subsection should be read as permitting the admission of all evidence admissible in accordance with other provisions of the Act which was relevant to the contents of the document, or that it should at least be interpreted as permitting admissible hearsay evidence of the contents of the document.

48 I am prepared to accept that the 1980 agreement was “not available” to George in the sense required by the Evidence Act . The likely location of the document was at Mr Phair’s offices or among his parents’ papers. A subpoena was served on Mr Phair to produce documents but he did not produce a copy of the 1980 agreement. Although George did not give direct evidence of the searches that he had made among his parents’ papers, it is clear that he did search through those documents and he attached a number of them to his affidavit. I am prepared to infer that, as part of his searches, he also looked for the 1980 agreement and was unable to find it.

49 However, I do not accept Mr Loofs interpretation of s 48(4) of the Evidence Act . That subsection permits a party to adduce evidence of the “contents’ of the document. That evidence could take the form of evidence from a person who has seen the document and who can give evidence about what it contained. It could also take the form of another document that purported to record the contents of the document that is unavailable: Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 337. However, I do not think that it includes evidence concerning people’s intentions or beliefs from which the contents of the document might be inferred. That evidence is not evidence of the contents of the document.

50 For similar reasons, I do not think admissible hearsay evidence of the contents of a document (such as evidence from a witness that Mr Minas told the witness about the contents of the 1980 agreement) is admissible under s 48(4). That evidence is evidence of what one person said to another concerning the contents of the document in question. It is not itself evidence of the contents of the document.

51 There is some support for the conclusion of the previous paragraph in the Report of the Australian Law Reform Commission that led to the Evidence Act (ALRC 38). In its Interim Report on Evidence (ALRC 26), the Commission recommended adoption of similar principles to those contained in the US Federal Rules in relation to the proof of the contents of documents. That recommendation was adopted in the Final Report (see ALRC 38 para 231) and the legislation drafted by the Commission to give effect to that recommendation (see cl 125(3) of the draft legislation appended to the Commission’s Report) was based, in part, on Rule 1004 of the US Federal Rules. That rule provides that “[t]he original is not required and other evidence of the contents of a writing, recording, or photograph is admissible” if certain conditions are satisfied. Section 48(4) is in substantially the same terms as cl 125(3). Rule 1004 does not state what “other evidence” is admissible to prove the contents of the document. However, Wigmore states the principle at common law in these terms:

“a person who proposes to testify to the contents of a document, either by copy or otherwise must have read it. He may not describe its contents merely on the credit of what another has told him it contains even though his informant purports to have read it aloud in the presence: Wigmore on Evidence, 1972 Volume 4, § 1278 (emphasis in original).”

52 It is hard to believe that the US Federal Rules intended to depart radically from the principle stated by Wigmore without expressly saying so. Similarly, it is hard to believe that the Australian Law Reform Commission in recommending adoption of a clause based on the US Federal Rules (cl 125(3)) intended to depart radically from that principle.

53 There is nothing in s 48(4) of the Evidence Act to suggest that it sets out the exclusive means of proving the contents of a document that it is not available to a party. It is still open to a party to prove the contents of a document not available to the party in accordance with subs (1) – and, in particular, by adducing evidence of an admission by a party concerning the contents of the document.

54 It follows from what I have said that the contents of the 1980 agreement can be proved either through admissions by Elie or through direct evidence of someone who saw the agreement.

55 Elie signed the 1990 agreement and, in the absence of an application to have it set aside, is bound by its terms: Toll (FGCT) Pty Ltd v Alphafarm [2004] HCA 52; (2004) 219 CLR 165. However, it is not a deed and consequently does not give rise to an estoppel in relation to the facts asserted in it: see J D Heydon, Cross on Evidence (7th ed) at [39160]. In any event, any such estoppel would only operate in proceedings based on the 1990 agreement. It would not operate in proceedings the 1980 agreement: Offshore Oil NL v Southern Cross Exploration NL 9 (1985) 3 NSWLR 337. The 1990 agreement, and the wills signed by Ellie, may amount to an admission by him in relation to the facts asserted in them, but the weight of that admission depends on the circumstances in which they were signed. As Ryan J explained in Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407 at [77]:

“An agreement does not ordinarily constitute a representation by a contracting party. One reason for that is the difficulty in attributing a particular statement in the agreement to one party or the other. It is also notorious that parties to an agreement may elect to conduct their contractual relations and, if necessary, enforce the rights arising from them on a basis which is contrary to fact. That is not to say that no statement in an agreement or contractual document can ever constitute a representation in the sense used in the definition of “admission” in the Evidence Act . A recital to a deed or other written contract may, in its context, be so expressed as to warrant the conclusion that both contracting parties intended it to operate as an assertion of actual fact. In that event, the recital, in my view, would be admissible in later proceedings as an admission against either contracting party.”

See also Lustre Hosiery Ltd v York [1935] HCA 71; (1935) 54 CLR 134 at 143-4 per Rich, Dixon, Evatt and McTiernan JJ.

56 In my opinion, the 1990 agreement is of little assistance in establishing the contents of the 1980 agreement and what assistance it is does not support George’s case. Recital A is the only provision of the 1990 agreement that purports to record the terms of the 1980 agreement. That recital suggests that George, but not Elie, was a party to the agreement. The operative terms of the 1990 agreement purport to vary the terms of the 1980 agreement. Consequently, it is difficult to see how they could operate as admissions by Elie of the terms of the earlier agreement. Even if they could, clause 1 (providing that Mr and Mrs Minas can remain in the property for the whole of their lives) seems unnecessary if they owned half the property.

57 I do not think that the wills signed by Elie take the matter any further. They could only amount to an admission if it could be said that Elie intended, by signing them, to adopt the statements made in them as his own. It strikes me as inherently improbable that someone would sign another’s will for the purposes of adopting the statements it contained, particularly when, at the same time, that person signed an agreement dealing with the same subject matter. The likelihood is that Elie signed the wills in error at the time that he signed the 1990 agreement. He did not pay close attention to what he was signing because of his father’s insistence, the heated debate that they were having and his concern to return to work.

58 Both George and Rita say that they saw the 1980 agreement and gave evidence of its terms. However, I think that this evidence needs to be treated with caution. George did not say when he last saw the 1980 agreement, although it appears from his evidence that it was at about the time that it was signed – some 30 years ago. He says nothing about what happened to the agreement after it was signed. His evidence was unreliable on other important aspects of the case (such as how the purchase price was made up) and the likelihood now is that his memory has been clouded by an emotional investment in the case.

59 The only person apart from George who says she saw the 1980 agreement is Rita. According to her, she raised a concern with her father shortly after the purchase of the Carlingford property about whether Mr and Mrs Minas would be protected. In response, Mr Minas went and got a copy of the 1980 agreement and asked Rita to explain it to him. Rita describes the document in much the same way as George in her affidavit. However, in cross-examination she was much less certain. She insisted she saw the four names. She admitted that she did not read the second page and did not understand all of the words used on the first page. However, she described what she saw in the following terms:

“I saw the Agreement 1980 and then I saw four names and four signatures. I saw the 25% on each one of them, next to them, whatever, up, down, it was there, 25%. I can see the signatures, but after that it is blocked …”

I do not find this evidence convincing. It is possible that Rita was shown a document by her father in 1980 but having regard to the amount of time that has lapsed and the evidence that she was able to give of it, I do not think that any weight can be placed on her evidence of its terms.

60 Mr Loofs submitted that the terms of the 1980 agreement could be inferred from statements made by Mr and Mrs Minas both at the time that the agreement was entered into and later and from Mrs Minas’s later wills. In particular, he relies on evidence from Maria to the effect that her parents told her on several occasions during the 1980s that they owned the Carlingford property with Elie and George in quarter shares. In my opinion, that evidence is not admissible under s 48 of the Evidence Act . In any event, I do not think that Maria’s evidence is reliable. Again, it is implausible that she would remember conversations from over 20 years ago. She was insistent that she could remember exactly what was said in circumstances where she clearly could not do so. Moreover, it is clear from an SMS message she sent to Elie that was highly critical of Elie’s decision to seek to take possession of the Carlingford property and that she thinks poorly of Elie for doing so. That view clouded the evidence that she gave.

Nu-Tec v ABC [2010] NSWSC 711 (30 June 2010)

DEFAMATION – admissibility of transcript of television broadcast
DEFAMATION – identification – application for dismissal of proceedings after conclusion of evidence for plaintiffs – whether there was evidence upon which the jury could decide that the matters complained of identified the second plaintiff

McCallum J
Transcripts of the broadcasts

3 The first issue was the admissibility of a transcript of each of the two broadcasts. There was already in evidence a recording of each broadcast on DVD. Ms Reid, who appeared with Ms Brown for the plaintiffs, noted that the jury would have those discs with them as exhibits in the jury room. She submitted, in effect, that it would make no difference for the jury also to have the transcripts and that they may be assisted by having them.

4 Different views have been expressed as to both the permissibility and the desirability of that course. In Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448, three judges of the Court of Appeal were in agreement that a transcript of a radio broadcast sued on in a defamation case should not be admitted into evidence where there is no difficulty in understanding the tape played before the jury: at 472G – 473E per Clarke JA, Cripps JA agreeing; per Handley JA at 474B. Clarke JA emphasised the general principle that the meaning drawn from a broadcast by the ordinary, reasonable listener or viewer (who sees it only once) is in many cases a matter of impression. In that context, his Honour saw force in the contention that a transcript could only have distracted the jury from their task of assessing the matter from that perspective.

5 Parker was decided before the commencement of the Evidence Act 1995. In Goldsworthy v Radio 2UE Sydney Pty Limited (unreported 22 March 1999), Dunford J held that under s 48(1)(c) of the Evidence Act , both a tape of a radio broadcast and a transcript of it are admissible. However, his Honour saw “some difficulty in a transcript in that the provision of a written transcript of what was said may tend to mislead the jury into considering the material as if it were print media, eg a book or newspaper, rather than an oral broadcast”. On that basis, his Honour admitted the tape but exercised his discretion under s 135 of the Evidence Act to exclude the transcript.

6 In Vacik Distributors Pty Limited v Australian Broadcasting Corporation (unreported 4 November 1999), Sperling J took a different view. His Honour reached the same conclusion as had Dunford J that the transcript was admissible under s 48(1)(c) of the Evidence Act , subject only to the exercise of the Court’s discretion pursuant to s 135. The discretion to refuse to admit evidence under that section arises if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, misleading or confusing or cause or result in undue waste of time.

7 Sperling J acknowledged that, where a tape of the broadcast is available and the only use for a transcript is as an aide-mémoire or for ease of reference, the transcript should not be regarded as having any significant probative value at all. On that basis, his Honour accepted that, if there was any significant unfair prejudice to a defendant of admitting a transcript, that prejudice “would necessarily substantially outweigh the probative value of the evidence for the purposes of s 135”.

8 Sperling J was of the view, however, that the admission of a transcript did not entail prejudice of the kind perceived by Clarke JA in Parker. His Honour noted (as Clarke JA had) that much of what occurs at a trial in which a jury determines the question of defamatory meaning has a tendency to distract the jury from the task of assessing the effect of the broadcast at the time it was published, given that the ordinary reasonable viewer would have seen it only once. Sperling J concluded that an accurate transcript is an aid to that task, rather than a distraction from its proper performance.

9 Counsel informed me that the most recent substantive consideration of the issue is contained in the decision of Levine J in Griffith v Australian Broadcasting Corporation [2003] NSWSC 483. In that case, Levine J came to a different conclusion (from that reached by Sperling J) as to the threshold question of admissibility. His Honour considered that, since the “best” evidence of the broadcast (a tape or a disc) is before the jury, there is no fact in issue to which a transcript of the broadcast can be relevant. On that basis, his Honour held (at [13]) that a transcript is not relevant evidence within the meaning of s 55 of the Evidence Act and, accordingly, that it is not admissible under s 56 of the Act. On that analysis, s 48(1)(c) of the Act did not assist.

10 Levine J stated further (at [14]), in case his primary analysis was wrong, that he would certainly exercise his discretion under s 135 so as to exclude the transcript. His Honour emphasised the importance of the concept of “impression” in relation to transient publications and did not agree with the analysis of Sperling J in Vacik that an accurate transcript is a proper aid to the jury’s assessment of that impression.

11 The conclusion reached by Levine J that a transcript of a broadcast is not “relevant” within the meaning of s 55 of the Act where a tape or disc recording of the broadcast is available to be put before the jury may be open to debate. Assuming the tape itself is admissible, it is probably a “document in question” as defined in s 47. On that basis, there may be force in the view expressed by Dunford J in Goldsworthy that a transcript of the tape is admissible by reason of the operation of s 48(1)(c).

12 However, it is not necessary for me to decide that question. Assuming for present purposes that the transcript is admissible, I would exercise my discretion under s 135 to exclude it, for the reasons explained by Clarke JA in Parker, by Dunford J in Goldsworthy and by Levine J in Griffith. In my view, there is a significant danger that the availability of a written version of a transient publication would compromise the already difficult task for the jury of assessing the likely impression of the publication on the viewer who saw it once, in its original form, as an ordinary, reasonable member of the community would see it.

13 Further, as noted by Levine J in Griffith at [11] (and accepted by Sperling J in Vacik), the probative value of a transcript is negligible where a tape or disc that can be understood is available to the jury. In my view, the probative value is plainly outweighed by the danger to which I have referred.

14 For those reasons, I rejected the tender of the two transcripts.

R v Thomas Sam; R v Manju Sam (No. 14) [2009] NSWSC 561 (29 May 2009)

[2009] NSWSC 561

jury trial
lengthy records of interview between accused and police
Crown application to provide jury during closing address with documents containing topics and cross-references to answers in interviews
objection by accused to provision of document
relevant discretionary considerations
whether any unfairness to accused
jury entitled to practical assistance
no unfairness to accused
application allowed

Sherman v Commissioner of Patents [2008] FCA 1026 (9 July 2008)

[2008] FCA 1026

5 Counsel for the applicant objected to the reading of paragraphs 6, 7 and 8 of the affidavit, and to the reception into evidence of the exhibits referred to therein. Although those objections were based upon several grounds arising under the Evidence Act 1995 (Cth) (“the Evidence Act”), most of them involved the proposition that the Commissioner should not be permitted to prove the contents of the Rork citation referred to in the delegate’s affidavit, and of the statutory declarations exhibited to the affidavit, without calling direct evidence of the substantive facts which the Commissioner seeks to establish by the tender of those documents. Counsel for the applicant relied in this respect upon ss 59(1), 135, 56(2) and 48(1) of the Evidence Act, and upon O 14 r 9 of the Federal Court Rules.

6 Counsel for the Commissioner pressed for the reception into evidence of the contents of the delegate’s affidavit, and of the exhibits thereto. They submitted that, in an appeal to the Federal Court under s 60(4) of the Patents Act, that Act permitted all of the material which had been before the delegate in the opposition hearing to be tendered as evidence without reference to restrictions that might otherwise have been imposed by the Evidence Act. Alternatively, they sought a direction pursuant to s 190(3) of the Evidence Act that the provisions of that Act relied upon by the applicant not apply, on the ground that the application of those provisions would cause or involve unnecessary expense or delay. They relied also upon ss 60 and 75 of the Evidence Act in response to the applicant’s reliance upon s 59.

Violi v Berrivale Orchards Limited [2000] FCA 797 (14 June 2000)

[2000] FCA 797

EVIDENCE – Evidence Act 1995 (Cth) – discretion to admit evidence illegally obtained – relevance of State law concerning admissibility of evidence – wide public interest in exclusion of evidence illegally obtained

EVIDENCE – Listening Devices Act 1984 (NSW) – meaning of “necessary for the protection of the lawful interests” of a party – when a conversation “comes to the knowledge” of a person otherwise than as a result of the use of a listening device – relevance when court exercising federal jurisdiction

Evidence Act 1995 (Cth) ss 48 and 138

Commissioner of Taxation v Industrial Equity Ltd [2000] FCA 420 (4 April 2000)

[2000] FCA 420
APPEAL – judgment setting aside notice by Commissioner of Taxation under s 264 Income Tax Assessment Act 1936 (Cth) and ordering Commissioner to pay costs – subsequent notice answered – appeal by Commissioner – motion to stay appeal

TAXATION – income tax – notice by Commissioner of Taxation under s 264 Income Tax Assessment Act 1936 (Cth) – whether notice can validly require attendance before “any or all” of several named persons and the Commissioner – whether notice uncertain

IBM Global Services Australia Limited in the matter of an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission [2005] FCAFC 66 (29 April 2005)

[2005] FCAFC 66

INDUSTRIAL LAW – industrial dispute – finding by Australian Industrial Relations Commission that industrial disputes existed between union and two employers – whether jurisdictional error – whether employees in respect of whom demands made eligible to join union – construction of rules of union relating to eligibility for membership – whether information technology incidental, ancillary or complementary to supply, installation or maintenance of telecommunications services – identification of part of business of employer – identification of principal function of part of business

WORDS AND PHRASES – ‘industrial dispute’, ‘incidental, ancillary or complementary’, ‘part of a business’, ‘principal function’

Evidence Act 1995 (Cth) ss 8, 48(1)(f), 52, 157, 190

Purcell and Anor v Cruising Yacht Club of Australia and 2 Ors [2001] NSWSC 926 (15 October 2001)

[2001] NSWSC 926

1 HIS HONOUR: For the purposes of this trial it can be stated, relevantly, that the plaintiff by his Amended Statement of Claim filed on 28 June this year sues the three defendants in respect of a publication on 1 June 1999 said to give rise to one imputation. That is the evidence as it presently stands and as I understand, it is what the case essentially is about: namely, on that day in 1999 the three defendants spoke words at a press conference. It is upon those words the plaintiff sues by reason of his contention that they give rise to the imputation of the cause of action. It is fundamentally the case that under the old law it would be described as a slander.

2 It so happens that a video tape of the words being spoken was made and by consent that has become Exhibit A. What the plaintiff now seeks to have before the jury is a transcript of part of Exhibit A, being a transcript said to coincide with the material appended to the amended statement of claim, which in fact is part of the whole of the occasion on 1 June 1999 when members of the media attended the press conference.

3 The use of a transcript in defamation actions has given rise to a variety of first instance judgments. Those judgments, I will list them shortly, have been concerned with publications either of a television broadcast or a radio programme. This is one step removed from that kind of situation.

4 It is contended for the plaintiff that a transcript of the kind tendered is admissible under the Evidence Act (see s 48) and that my discretion should be exercised in favour of it being placed before the jury. One cannot lose sight of the fact that the publication which Mr Purcell sues is made up of words spoken of which it happens there is a video tape record. In a sense, that video tape record, Exhibit A, could be viewed in the same way as a transcript of a radio programme taped or television programme video taped. But it is in its form a transcript of a piece of evidence that is some evidence itself, and indeed, I presume will be the only evidence of what someone said, which is different to a transcript of a video tape or an audio tape, which is evidence of what the broadcast was. One would think, as a matter of good sense and efficiency, there will hardly be an argument about the availability of a transcript.

5 Each case, particularly what I will call a media case, might depend upon its own circumstances in terms of convenience being weighed against prejudice. But as I said this is not such a case. This is a case where the jury has a an advantage of a video of people speaking, and that will be available to them as evidence of what those people said, how they said it, to enable the jury to project the ordinary reasonable listener when they come to answer the questions. In my decision in the Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 87 and in Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 90 (Dunford J), both for different reasons as I understand it, the transcript was excluded (see also Vacik Distributors Pty Limited v ABC & Anor (Sperling J, unreported, 14 November 1999) and Buck v Jones & Ors (Barr J, unreported, 15 June 2000). But a component of the respective decisions was that it must be borne in mind that the jury members do not decide what they think the programme meant. The jury decides, after addresses and instruction, what the ordinary reasonable person present would have understood the words spoken to have meant.

6 There is a real danger, in my view, of the jury being distracted from that path by the use of transcript of a piece of evidence which happens to exist and recorded spoken words, the spoken words themselves in the circumstances attending them, being the foundation for the action.

R v Cornwell [2003] NSWSC 97 (20 February 2003)

[2003] NSWSC 97

Criminal Law and Procedure – Admissibility of listening device material – s 138 Evidence Act – whether mistatement in application for warrant improper – whether recorded conversations should be edited – admissibility of evidence of uncharged criminal conduct to prove relationship of alleged co-conspirators.

Evidence Act 1995 – ss 137, 138, 139, 48(1), 97

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 654 (26 June 2008)

[2008] NSWSC 654

EVIDENCE – admissibility – tender of documents containing statements of or attributed to second plaintiff – business records – second plaintiff does not intend to give evidence – inability to cross examine – whether use should be limited to proof of words spoken – whether certain business records prepared in contemplation of legal proceedings

Evidence Act 1995, ss 48(1)(b), 59, 60, 69(1), 69(2), 69(3), 128, 135, 136(a)

Australian Securities & Investments Commission v Rich [2005] NSWSC 417 (5 May 2005)

[2005] NSWSC 417

EVIDENCE – admissibility of documents – scope and effect of s 1305 of the Corporations Act – whether such documents as budgets are inadmissible under the hearsay rule – requirement of authentication of documents tendered in evidence – scope and effect of business records exception to hearsay rule – effect of business records exception where document contains representations of expert opinion – scope of “unfair prejudice” under ss 135 and 136
Evidence Act 1995 (NSW) ss 48, 55, 56, 57, 58, 59, 69, 79, 135, 136, 183

O’Meara v Dominican Fathers [2003] ACTCA 24 (5 December 2003)

[2003] ACTCA 24

NEGLIGENCE – occupier’s liability – fall from first floor balustrade of a residential university college –whether college aware of practice of unsafe behaviour and failed to take precautions – where balustrade did not comply with current building standards

CONTRACTS – occupier’s liability – contractual liability – content of implied term as to safety of premises – where appellant is fee paying resident in residential university college – where practice of unsafe conduct by students – obligation of occupier in control of premises

EVIDENCE – hearsay rule – business records exception

EVIDENCE – evidence produced by process, machines or other devices – proof of contents of a document

EVIDENCE – failure to call evidence – Jones v Dunkel inference – whether respondent had knowledge of practice of unsafe behaviour – where respondent failed to call available evidence – where appellant entitled to inference that such evidence was not led because it would not have assisted the respondent

CONTRIBUTORY NEGLIGENCE – whether apportionment of liability in contract where contributory negligence – whether duties in tort and contract are co-extensive

Evidence Act 1995  (Cth) ss 48(1)(e), 69, 142, 146, 183

Violi v Berrivale Orchards Limited [2000] FCA 797 (14 June 2000)

[2000] FCA 797

EVIDENCE –  Evidence Act 1995  (Cth) – discretion to admit evidence illegally obtained – relevance of State law concerning admissibility of evidence – wide public interest in exclusion of evidence illegally obtained

EVIDENCE – Listening Devices Act 1984 (NSW) – meaning of “necessary for the protection of the lawful interests” of a party – when a conversation “comes to the knowledge” of a person otherwise than as a result of the use of a listening device – relevance when court exercising federal jurisdiction

Evidence Act 1995  (Cth) ss 48 and 138

Chapman v Luminis Pty Ltd [No 2] [2000] FCA 1010 (28 July 2000)

[2000] FCA 1010

Evidence – public interest immunity – exclusion of matters of State – public interest in protecting confidential and restricted Aboriginal knowledge – public interest in not denying access to relevant evidence in the administration of justice –  Evidence Act 1995  (Cth), s 130

Constitutional Law – inconsistency – whether State law prohibiting the divulging of Aboriginal tradition in contravention of Aboriginal tradition inconsistent with the Commonwealth Evidence Act – Commonwealth Constitution s 109

Constitutional Law – whether laws of the Commonwealth otherwise provided – s 35 of the Aboriginal Heritage Act 1983 (SA) and Commonwealth Evidence Act – Judiciary Act 1903 (Cth), s 79

Evidence Act 1995  (Cth), ss 4, 8(1), 12, 48(4), 56(1), 130, 135, 142