REAL PROPERTY – whether certificate of title ought be delivered to the Registrar-General to enable sale of property – no general point of principle
PROCEDURE – subpoenas issued under Evidence on Commission Act 1995 in aid of US proceedings – NSW proceedings commenced in name of US Judge – but one party to the US proceedings is the true moving party – recipients of subpoenas seek reimbursement of their expenses in complying with subpoenas under Uniform Civil Procedure Rules 2005 (UCPR) r 33.11 – whether costs may be awarded against a non-party to the NSW proceedings – whether moving party should pay UCPR r 33.11 costs, and if so in what amount.
PRACTICE AND PROCEDURE – application for security for costs – impecunious corporate plaintiff – no evidence of potential stultification – co plaintiff provided de facto security – overlapping issues – quantum of security reduced
CRIMINAL LAW – Evidence – cross-examination – requirement to tender a statement cross-examined upon beyond those parts used by the witness to refresh memory – no requirement that tender be sought before the close of cross-examination – complainant cross-examined about a statement made by her to police – defence required to tender the complainant’s statement
Evidence Act (NT), s 19 and s 20
Evidence Act (Vic), s 36
EQUITY – Succession – Family Provision – deceased makes provision for intellectually disabled daughter – Whether provision made is adequate for the daughter’s proper maintenance, education and advancement in life.
PROBATE AND ADMINISTRATION – whether estate has been properly administered – delay in selling estate property – whether orders should be made for the sale of the single asset in the estate, a residential property.
second plaintiff paid workers compensation settlement to defendant without deducting monies owed to the Commonwealth
Centrelink had issued a Recovery Notice to the second plaintiff requesting the payment of $63,603.12 before the payment to the defendant
the second plaintiff paid this sum to Centrelink after payment to defendant
now seeks restitution
mistake of fact or law made by the second plaintiff’s claims officer
miscalculation of sum to be paid to the defendant
no defence to claim
judgment entered for the plaintiffs in the amount of $63,603.12 plus interest accrued up to judgment
Evidence Act 1995 (NSW) s 36
Evidence – statutory exceptions to hearsay rule in civil proceedings – whether person who made representation not available to give evidence about asserted fact – whether it would cause undue expense or undue delay or would not be reasonably practicable to call person who made the representation to give evidence – general statutory discretion to exclude evidence: whether probative value of evidence substantially outweighed by danger that it might be unfairly prejudicial to a party.
facts excluded from proof
on grounds of privilege
call for emails under s 36 Evidence Act
emails produced but client privilege claimed
waiver of privilege
emails made available
Evidence Act 1995 (NSW) s 36
EVIDENCE – admissibility and relevancy – exceptions to the hearsay rule – s 63 exception where maker of representation in a document is “not available to give evidence” – meaning of “available” – meaning of “attendance” – where person resident in a foreign country – whether availability of procedures under the Evidence on Commission Act is relevant to these questions – EVIDENCE – admissibility and relevancy – exceptions to the hearsay rule – s 81 exception for previous representation reasonably necessary to an understanding of an admission where the representation made “at the time the admission was made, or shortly before or after that time” – meaning of “shortly after” – WORDS AND PHRASES – “attendance” – “shortly after”
Evidence Act 1995, Part 2 clause 4(1) of the dictionary, ss 36(1), 59, 63, 64(1), 67, 68, 81(1), 81(2), 135(a)
Evidence (Audio and Audio Visual Links) Act 1998, ss 5B, 5C
Evidence on Commission Act 1995, ss 4, 6(1), 5, 8
Foreign Evidence Act 1994 (Cth), s 7
Interpretation Act 1987, s 12(1)(b)
CONSTITUTIONAL LAW – operation and effect of Commonwealth Constitution – whether notice under s 78B of the Judiciary Act 1903 (Cth) should be given – issue of fact to be determined first.
COURTS AND JUDGES – request to terminate trial – allegation that judge sleeping – procedure to determine the issue – evidence available on the issue.
Evidence Act 1995 (Cth) s 36, 69(3)
EVIDENCE  – Witnesses – Refreshing memory – Generally – Documents used to revive memory – Memory revised before swearing affidavits read in evidence – Whether production required under Evidence Act 1995 (NSW) s 34 – Memory revived from part of privileged document – Rest of document not relevant to witness’ testimony – Whether production of whole document should be required under s 34.
Evidence Act 1995 ss 32, 33, 34, 35, 36
Practice and Procedure – subpoena to produce documents – whether Evidence Act 1995 (Cth) enters upon that field – subpoena to attend to give evidence – witness giving evidence declines to produce documents requested by the examiner – whether s 36 of the Evidence Act applies – whether inconsistency between Evidence Act and s 35 of the Aboriginal Heritage Act 1983 (SA) – whether s 35 has application to prohibit production of the documents insofar as they contain Aboriginal tradition – whether witness entitled to recover costs under FCR O 27, r 4A.