Category Archives: s. 036

The Application of Jan L. Brodie (Judge of the Circuit Court of Fairfax County Commonwealth of Virginia United States of America) v. ex parte Laura E. Dunlop [2013] NSWSC 829 (25 June 2013)

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.

R v Janima [2012] NTSC 35 (6 March 2012)

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

Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis [2012] NSWSC 201 (7 March 2012)

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.

Glad Cleaning Service Pty Ltd & Anor v Vukelic [2010] NSWSC 422 (7 May 2010)

general principles
unjust enrichment
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

Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411 (6 May 2010)

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.

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769 (6 August 2009)
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)

Commonwealth of Australia v Davis Samuel Pty Ltd [No 4] [2008] ACTSC 112 (26 September 2008)

[2008] ACTSC 112

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)

Lowe v Lang [2000] NSWSC 309 (30 March 2000)

[2000] NSWSC 309

EVIDENCE [228] – 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

Chapman v Luminis Pty Ltd (No 3) [2000] FCA 1120 (10 August 2000)

[2000] FCA 1120

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.