Category Archives: !! Dictionary

Wingfoot Australia Partner Pty Ltd & Anor v Jovevski [2014] VSCA 21 (26 February 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/21.html

ACCIDENT COMPENSATION – Appeal – Serious injury application – Claimed psychiatric injury arising out of aggravation of shoulder pain – Causation of psychiatric injury where physical consequences of aggravation not permanent – Factual basis of expert evidence disputed on appeal – Adequacy of reasons – New case advanced on appeal – Civil Procedure Act 2010.

FN
[22] Evidence Act 2008 s 55(1) and definition of ‘probative value’ of evidence in the Dictionary to the Evidence Act 2008 .

R v Hadchiti [2013] NSWSC 1726 (30 October 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1726.html

CRIMINAL LAW – evidence – tendency – tendency notice – evidence in relation to victim’s character, reputation and conduct – tendency to engage in violent conduct towards females, use of weapons and to carry knife on person – evidence sought to be relied on in relation to whether accused was acting in self defence when fatal wound was inflicted – whether evidence has significant probative value – whether evidence admissible

Wright v Optus Administration & Anor (No 5) [2013] NSWSC 1717 (12 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1717.html

EVIDENCE – admissibility – Part 3.4 Evidence Act 1995 (NSW) – s87 – whether statement of witness contains admissions – whether statement contains representations to which it is reasonably necessary to refer in order to understand admissions – whether witnesses representations related to a matter within the scope of her employment

VERSI Peter v R [2013] NSWCCA 206 (14 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/206.html

CRIMINAL LAW – appeal against conviction – historical child sexual assault – verdict not unreasonable – errors in trial transcript – corrected by substantial agreement – appellate court not required to listen to transcript

EVIDENCE – tendency and coincidence evidence – confusing directions – coincidental “events” – appropriate coincidental reasoning

CRIMINAL LAW – appeal against sentence – manifestly excessive – whether sentence practices at the time of the offences should be applied

Sydney Attractions Group Pty Ltd v Frederick Schulman [2013] NSWSC 858 (28 June 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/858.html

EVIDENCE – admissibility of business records – admissibility of books kept by a body corporate – need for precise identification of relevant representation or matter.

CONTRACTS – construction – surrounding circumstances – whether clause is ambiguous or susceptible of more than one meaning – scope of permissible extrinsic material to aid in construction.

CONTRACTS – construction – dependency of rights and obligations – whether plaintiff’s entitlement to seek particular rights under a contract are dependent on it having fulfilled particular obligations – whether plaintiff is taking advantage of its own wrongdoing.

CONTRACTS – construction – particular clauses – whether plaintiff has exercised reasonable endeavours – whether plaintiff has acted in good faith.

Mokbel v The Queen [2013] VSCA 118 (17 May 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/118.html

CRIMINAL LAW – Appeal – Conviction – Fair trial – Abuse of process – Accused absconded during previous trial – Convicted and sentenced in absentia – Extradited from Greece – Prior application to European Court of Human Rights – Whether surrender by Greece violated European Convention on Human Rights – Whether Australian officials complicit – Applicant presented on fresh drug charges – Stay applications failed – Accused pleaded guilty – No violation by Greece – No abuse of process – Leave to appeal refused.

CRIMIMAL LAW – Appeal – Sentence – Drug trafficking – Incitement to import – Many multiples of large commercial quantity of ecstasy, methylamphetamine – Thirty years’ imprisonment, non-parole period 22 years – Applicant head of trafficking organisation – Worst category of offending – Sentencing range – Whether sentencing judge mistaken about Crown submission on range – Whether error material – Whether different sentence should be imposed – Whether sentence manifestly excessive – Appeal dismissed.

Ascertaining foreign law

20 Neither party raised before Whelan J any issue as to whether art 34, and the obligations imposed under that provision, had to be the subject of formal proof before any reliance could be placed upon it. When the matter came before this Court, the Attorney-General for the Commonwealth, intervening, submitted (by way of a ‘preliminary point’) that the ‘operation’ of the Convention was a matter of ‘foreign law’, and therefore a question of fact that had to be proved by expert evidence. It was implicit in that submission that, no such evidence having been led, the question whether there had been a breach of art 34 did not arise.

21 An argument of that kind proceeds along a path that requires consideration of a number of separate steps. It assumes first that the ‘operation’ of the Convention involves the interpretation of foreign law. If so, it assumes next that the contents of that law must be the subject of proof. Both assumptions are questionable.

22 It may readily be accepted that foreign law is a question of fact to be proved by expert evidence.[20] It may also be accepted that great care must be exercised in using material produced by expert witnesses about foreign law. For example, an English translation of the text of a foreign written law is not necessarily to be construed as if it were an Australian statute. Not only are there problems raised by the translation of the original text (although this is not a problem when it comes to dealing with the Convention as it provides that both the French and English versions are classified as ‘authentic’), but also different rules of construction may be applicable in the foreign jurisdiction.[21]

23 It must also be borne in mind that the Evidence Act 2008 (Vic) deals specifically with proof of foreign law. Section 174 is, relevantly, in the following terms:

174 Evidence of foreign law
(1) Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing:

(a) a book or pamphlet, containing the statute, proclamation, treaty or act of State, that purports to have been printed by the government or official printer of the country or by authority of the government or administration of the country; or

(b) a book or other publication, containing the statute, proclamation, treaty or act of State, that appears to the court to be a reliable source of information; or

(c) a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or to prove, the statute, proclamation, treaty or act of State; or

(d) a copy of the statute, proclamation, treaty or act of State that is proved to be an examined copy.

24 The section is plainly intended to be permissive. It is not exhaustive. There is nothing to indicate specifically that any of conditions (a)–(d) were met in this case. Nonetheless, it is clear that Whelan J had access to art 34, and referred to it in terms.[22]

25 There is another question to be considered in relation to s 174. The section, though headed ‘[e]vidence of foreign law’, speaks of ‘evidence of a statute, proclamation, treaty or act of State of a foreign country’. The term ‘foreign country’ is not defined in the Evidence Act 2008 (Vic). It is somewhat problematic as to whether the Convention itself, which is a product of the Council of Europe, and not of any of its individual member States (or the European Union),[23] meets that description.[24]

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

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/70.html

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)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/71.html

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.

Dymocks v Capral [2013] NSWSC 130 (20 February 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/130.html

EVIDENCE – admissibility – where letter written by party’s solicitor to insurer – party not the author of the letter and made no representations by or in it – letter not admissible to prove the truth of the the previous representations made by its author – letter not admissible to prove suggested admission by party.

R v Sarbandi [2012] ACTSC 180 (7 December 2012)

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/180.html

EVIDENCE – Evidentiary matters relating to witnesses – Admissibility – First hand hearsay – Evidence Act 2011 (ACT) s 65 – Whether “all reasonable steps” taken to secure witness attendance – Where witness in Saudi Arabia – Where witness not offered reimbursement for cost of attending – Where no application to take evidence by telephone link – Section 65 threshold not satisfied.

Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355 (30 November 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1355.html

EVIDENCE – Admissibility – relevance – whether documents relevant to case as pleaded

EVIDENCE – Admissibility – relevance – whether documents concerning alleged conspirators not at trial are relevant to the allegations made against those who are – whether use of such documents is coincidence reasoning – discussion of the matters that such documents might be used to prove

EVIDENCE – Admissibility – business records – whether minutes of meetings of an organisation that represents businesses are business records of the businesses or, alternatively, the organisation – whether representations made therein are made ‘in the course of, or for the purposes of, the business’ of each member business or, alternatively, of the organisation – whether document must belong to the entity to whose business the document relates – whether minutes discovered on the computer networks of a business are ‘belonging to or kept by’ the business

EVIDENCE – Admissibility – business records – whether statements of opinion in business records are admissible

EVIDENCE – Admissibility – relevance – authenticity – whether document’s authenticity must be proved for the document to be admissible – whether inferences as to authenticity may be drawn from the document itself – whether National Australia Bank v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309 should be followed

Easwaralingam v Director of Public Prosecutions [2011] HCASL 99 (7 June 2011)

http://www.austlii.edu.au/au/cases/cth/HCASL/2011/99.html

The applicant was summoned to appear in the Magistrates’ Court of Victoria on charges of unlawful assault, using indecent language in a public place, stalking in a way that could reasonably be expected to arouse apprehension or fear and behaving in an offensive manner in a public place. All four counts (of which the third was ultimately withdrawn) arose out of events on 26 October 2007 involving a Ms Kelly Venner, the principal witness for the prosecution. On 22 February 2010, two days before the matter was due to be heard as a contested hearing, the informant became aware that Ms Venner would not be available to attend the hearing as she had been admitted to hospital to undergo emergency surgery. On 23 February 2010, counsel for the applicant was notified of Ms Venner’s unavailability for the following day and of the informant’s intention to seek an adjournment or, alternatively, to make an application to rely upon Ms Venner’s statement to police as an exception to the hearsay rule under s 65 of the Evidence Act 2008 (Vic) (“the Act”). Written notice of the respondent’s intention to adduce hearsay evidence under s 65 of the Act was dated 22 February 2010 and served on the applicant’s instructing solicitor on 24 February 2010.
On 24 February 2010, Magistrate Fleming refused the respondent’s application for an adjournment. The Magistrate refused to admit Ms Venner’s statement into evidence and dismissed the three remaining charges. Pursuant to s 272(1) of the Criminal Procedure Act 2009 (Vic), the respondent appealed to the Supreme Court of Victoria in respect of the Magistrate’s refusal to admit the statement into evidence under s 65 of the Act. By originating motion (heard at the same time as the appeal) the respondent sought judicial review of the decision not to grant the adjournment. On 1 October 2010, Pagone J allowed the appeal, held that the Magistrate erred in law in not granting the adjournment and remitted the matter to the Magistrates’ Court. His Honour found that the Magistrate had failed to apply the definition of “not available to give evidence” under Pt 2, cl 4(1)(g) of the Act’s Dictionary and had erroneously concluded that the respondent had not, pursuant to s 67 of the Act, given reasonable notice of its intention to adduce the evidence and that the notice was otherwise deficient.
The applicant sought leave to appeal Pagone J’s decision to the Court of Appeal. The Court of Appeal (Buchanan and Tate JJA) granted leave but dismissed the appeal.
It is not in the interests of justice generally, or in this particular case, that there be a grant of special leave to appeal. There is no reason to doubt the correctness of the actual orders made by the Court of Appeal.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

QBE Insurance (Australia) Ltd v CGU Workers Compensation (NSW) Ltd [2012] NSWSC 377 (20 April 2012)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2012/377.html

INSURANCE – double insurance – contribution – whether sufficient to only show reasonable compromise – whether common insured an “owner” of vehicle – whether “injury” established – whether compromise reasonable so as to entitle Plaintiff to contribution – recoupment.

Dictionary
ss 4(1)(f) of Part 2 of the Dictionary to the Evidence Act

R v Mokbel (Change of Pleas) [2012] VSC 86 (13 March 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/86.html

CRIMINAL LAW – Application to change pleas of guilty – Evidence illegally obtained as search warrant affidavits not sworn – Principles applicable on applications to change plea – Admissibility of illegally obtained evidence – Application refused.

324 Probative value is defined in the Dictionary of the Evidence Act 2008 as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

Mark McKey v Regina [2012] NSWCCA 1 (1 February 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/1.html

CRIMINAL LAW – Appeal against conviction – sexual assault – Crimes Act 1900 s66C – whether miscarriage of justice – whether trial judge erred in failing to adequately direct the jury in relation to the appellants silence or inaction in response to allegations – whether trial judge erred in failing to adequately direct the jury regarding the circumstances in which the appellants silence or inaction could be used as evidence of consciousness of guilt – whether trial judge erred in failing to adequately direct the jury in relation to the submission by the prosecutor to discount the whole of the appellants evidence due to silence or inaction – implied admissions – evidentiary significance of post offence conduct – directions by trial judge where there may be risk of a misunderstanding on the part of a jury – appeal allowed – conviction quashed.

Dictionary –
admission
previous representation
representation

D R v The Queen [2011] VSCA 440 (20 December 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/440.html

CRIMINAL LAW − Conviction − Incest − Indecent assault − Gross indecency − Indecent act with and in the presence of a person under the age of 16 − Two complainant stepdaughters

− Joinder − Whether substantial miscarriage of justice occasioned by trial of offences against both complainants in same proceeding − Evidence − Admissibility − Tendency and coincidence evidence − Jury directions − Whether trial judge adequately directed jury regarding use of charged and uncharged acts and elements of offences − Whether substantial miscarriage of justice occasioned by jury directions being given prior to charge.

57 Probative value is defined in the dictionary to the Evidence Act as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.

The Prothonotary of the Supreme Court of New South Wales v Kearns [2011] NSWCA 394 (15 December 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/394.html

LEGAL PROFESSION – solicitor convicted of serious offences of dishonesty – whether order should be made to remove solicitor’s name from the Roll of Legal Practitioners – extent to which particulars of misconduct supported by evidence of the convictions

14. … Evidence of the convictions can be admitted and used against the Opponent in these proceedings: Evidence Act 1995, s 92(2), (3) (providing that the hearsay and opinion rule does not apply to the evidence so admitted), Dictionary (definition of ” civil proceedings “).

Johnson v Director of Consumer Affairs Victoria; Johnson v Victorian Civil and Administrative Tribunal & Anor [2011] VSC 595 (23 November 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/595.html

ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal (‘VCAT’) – Appeal on a question of law – Whether an order made without jurisdiction involves a question of law – Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) s 148(1).

ADMINISTRATIVE LAW – Application for leave to appeal from an order of the VCAT cancelling a real estate agent’s licence and disqualifying the agent from holding a licence for two years – Whether the VCAT, as constituted, had jurisdiction to make the order – Victorian Civil and Administrative Tribunal Rules 2008 (‘VCAT Rules’) r 5.03(2), (4).

ADMINISTRATIVE LAW – Inquiry under s 25 of the Estate Agents Act 1980 (‘EA Act’) – Underquoting price of properties for sale – Whether the VCAT has jurisdiction to make a finding that a person is not a fit and proper person to hold a licence in an application for an inquiry into whether that person breached the EA Act and regulations made under the EA Act – The VCAT exceeded its jurisdiction – Leave to appeal granted and appeal allowed – Order of the VCAT set aside.

ADMINISTRATIVE LAW – Natural justice – Hearing rule does not apply to the exercise of the function set out in r 5.03(4) of the VCAT Rules.

ADMINISTRATIVE LAW – Natural justice – The VCAT breached the hearing rule by finding that a person is not a fit and proper person to hold a real estate agent’s licence without giving that person notice that it proposed to make such a finding.

ADMINISTRATIVE LAW – Penalty for breaches of the EA Act and regulations made under the EA Act – Whether manifestly excessive – Whether error of law established.

PRACTICE AND PROCEDURE – Circumstances in which it is appropriate for an officer of the VCAT to give evidence on affidavit in an appeal from a decision of the VCAT – Observations about how such an affidavit should be prepared and filed – Whether a member of the VCAT can be compelled to give evidence about a matter not involving the VCAT’s decision-making process.

EVIDENCE – Presumption of regularity.

FN
[36] See Herijanto v Refugee Review Tribunal [2000] HCA 16; (2000) 170 ALR 379, 383-5 [16]-[24]; Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601, 610 [25], 646 [197]-[199], 669 [298]-[299]; Towie v Victoria [2008] VSC 177; (2008) 19 VR 640, 655-6 [59]. Section 16(2) of the Evidence Act 2008 does not apply because the VCAT is not an ‘Australian court’ for the purpose of the definition of ‘Australian or overseas proceeding’ in the Dictionary at the end of that Act.

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) & Ors [2011] VSC 406 (26 August 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/406.html

Client legal privilege – subpoenas

19 The plaintiff submitted that the initial response to progress payment claims was merely contract administration and fell within the ambit of administration of the trust. However, in light of the transmission of 5 May 2006 it is not possible to characterise the resolution of the claims as anything other than an anticipated or pending Australian proceeding. Albeit that by virtue of s 4, the Evidence Act applies to all proceedings in a Victorian court as defined by the dictionary, s 9 sets out that the Evidence Act does not affect the operation of common law “except so far as this Act provides otherwise expressly or by necessary intendment.” Accordingly, I am not constrained to conclude that disputes with respect to progress claims not heard in a Victorian court are necessarily excluded from either the common law principles of legal professional privilege nor the statutory principles of client legal privilege.

R v Perish; R v Lawton; R v Perish [2011] NSWSC 1112 (18 August 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1112.html

CRIMINAL LAW – unfavourable witness – whether leave granted to Crown to cross-examine should be extended – considerations of fairness.

10. In my view, however, the present controversy may be readily resolved by a close consideration of s 137 Evidence Act which is as follows:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

11. The term “probative value” is defined in the Dictionary to the Evidence Act to mean:

” … the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 (22 September 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/303.html

BUILDING AND CONSTRUCTION – s 177 Conveyancing Act 1919 – “duty of care not to do anything on or in relation to land…” – whether developer’s decision to use particular support system was “doing something” in relation to land – whether developer’s decision to use particular support system was something that “removed the support provided by the supporting land” – whether developer’s decision to use particular support system was made without exercising reasonable care – relevance of departure from construction certificate

BUILDING AND CONSTRUCTION – s 109ZJ Environment Planning and Assessment Act 1979 – whether party was a “contributing party” – effect of agreement of all parties that it would not be alleged that, had a person been a party to the action, that person would have been a contributing party

NEGLIGENCE – causation – s 5D Civil Liability Act 2002 – whether failure to warn or advise can only be causative of loss if a warning or notification, if given, would have been acted upon in a way that prevented the loss – whether it is appropriate to attribute liability to someone who puts in place the preconditions that enable another person’s negligence to become effective – discussion of the principles governing causation under s 5D

AGENCY – whether one party contracted with another as agent for a third party, or whether that party separately contracted with the other in performance of contractual obligations to the third party

APPEAL – interference with judge’s finding of fact – Jones v Dunkel inference – enables tribunal of fact to infer that the evidence of an absent witness, if called, would not have assisted the party who failed to call that witness – missing witness must have been expected to have been called by one party rather than other – inference not available where disputed issue is whether missing witness was agent for the party and no other reason to believe missing witness was in camp of that party

CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – discussion of for what proposition County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 is authority – majority reasons do not have as their ratio any proposition about the availability of post-contractual conduct for the purpose of finding the terms of an agreement that is wholly or partly oral

CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – post-contractual conduct can be used for the purpose of finding the terms of an agreement that is wholly or partly oral when that conduct is an admission – Tomko v Palasty [2007] NSWCA 258 – circumstances in which being an admission would not permit post-contractual conduct to be used to find terms of a wholly or partly oral contract

CONTRACTS – construction and interpretation – that a particular person is party to a contract is a matter of mixed fact and law – whether a party to litigation can make an admission concerning a matter of mixed fact and law – whether admission made by person other than party to the litigation can be admitted against that party – effect of the introduction of the Evidence Act 1995 to the pre-existing common law principles concerning admissibility of admissions for post-contractual conduct

CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – post-contractual conduct can be used for the purpose of ascertaining the terms or the subject matter of an agreement that is wholly or partly oral regardless of whether the post-contractual conduct is an admission.

151. The trial judge cannot have been using the word “admission” in the sense it has in the Evidence Act . This is for three reasons.

152. First, the Dictionary to the Evidence Act provides:

” admission means a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person’s interest in the outcome of the proceeding.

previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.”

Because Mr Browne’s answers to questions in cross-examination were given in the proceedings, they were not “previous representations” and therefore cannot be “admissions” for the purposes of the Evidence Act .

Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 (8 September 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/264.html

PROCEDURE – interlocutory issues – discovery – destruction of documents (mobile phones) containing relevant material in defiance of known orders for discovery – failure to comply with directions of the Court – abuse of process – power to strike out or limit plaintiff’s claim – whether proportionate response – Civil Procedure Act 2005 (NSW), ss 56-61.

APPEAL – discretionary orders – re-exercise of discretion.

PROCEDURE – discovery – form of discovery – UCPR, Pt 21 provides the framework for discovery – no provision in UCPR for order for general discovery.

31. It is to be noted that the mobile phones were all “documents” within the definition of the Interpretation Act 1987 (NSW), s 21 (which is the same as the relevant definition in the Dictionary to the Evidence Act 1995 (NSW)). The two iphones, however, were “excluded documents” for the purposes of the discovery provisions of the UCPR, Pt 21.

Lahoud v Lahoud [2011] NSWSC 994 (1 September 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/994.html

COSTS – Interest on costs – rate of interest – UCPR 36.7(1) – earlier order that interest be paid “at the rates set out in Schedule 5″ UCPR – effect of repeal of Schedule 5 and amendment of r 36.7(1) – rate at which interest payable prior to 1 July 2010 – proper construction of order

COSTS – Interest on costs – time during which interest runs – earlier order reserving consideration of whether costs should continue to run – whether power to make order denying interest over past periods – power to make order denying interest over future periods – whether delay that makes it just for the successful parties not to receive interest on costs for a particular time – delay in preparing bill of costs before High Court special leave application determined – delay while Review Panel reviewed cost assessor’s assessment – delay while appeal from Review Panel to District Court was on foot

COSTS – Effect of the entitlement to an input credit for GST on extent of indemnity -

COSTS – failure of costs assessor to disclose costs agreement between other party and solicitor – client legal privilege – procedural fairness

Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 922 (27 June 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/922.html

EVIDENCE – documents contain statement of land value by Valuer-General – (NSW) Evidence Act s 156 does not provide for admissibility of public documents – whether documents business records – business includes activity engaged in or carried on by the Crown in any of its capacities – document a business record falling within business records exception to the hearsay rule – whether if hearsay rule does not apply document containing opinions may be excluded by opinion rule – prevailing view that opinion rule applies to business records – document containing opinions based on specialised knowledge, training, study or experience admissible – general discretion to exclude evidence – Makita principles do not apply to render business records containing opinions inadmissible -circumstances include Valuer-General not available for cross-examination, plaintiffs to call other valuation evidence, defendant serves no valuation evidence, notice of valuation does not reveal rationale – evidence unfairly prejudicial to defendant and discretion exercised to exclude.

(NSW) Evidence Act 1995, s 69, s 76, s 79, s 156, Dictionary Pt 2.

Sutherland v Woods [2011] NSWSC 13 (3 February 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/13.html

TRUSTS – Superannuation – Whether express trust established – Whether superannuation fund a complying one for purposes of the Superannuation Industry (Supervision) Act 1993 (Cth) – Indemnification of trustees out of the assets of superannuation fund – Pleadings – Admissions – If admissions, should the Plaintiff be able to withdraw admissions

David L’Estrange v The Queen [2011] NSWCCA 89 (1 April 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/89.html

CRIMINAL – conviction appeal – admissibility of evidence of prior criminal conduct as “background” evidence – not tendency evidence – failure of trial judge to take into account risk that jury would engage in tendency reasoning – failure to warn jury against tendency reasoning – EXPERT EVIDENCE – improper cross examination of expert called by the appellant so as to place inadmissible hearsay opinion of another expert before the jury – appeal allowed.

Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21 (21 February 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/21.html

ADMINISTRATIVE LAW – revocation of security licence by Commissioner of Police – application for review of decision to the Administrative Decisions Tribunal (“ADT”) – ADT required by s 29(3) of Securities Industries Act 1997 (NSW) (“SI Act”) to ensure that it does not disclose the existence or content of “criminal intelligence” without approval of the Commissioner – Commissioner relied on criminal intelligence – whether ADT bound or empowered to adopt a “special advocate” procedure to represent the review applicant’s interests – whether the Commissioner’s refusal to approve disclosure of the criminal intelligence was amenable to judicial review – whether the Commissioner was bound to consider the review applicant’s request for approval to disclosure – powers and duties of the ADT to afford procedural fairness in face of confidentiality regime.

CONSTITUTIONAL LAW – whether s 29(3) of the SI Act is unconstitutional because it purports to deny the supervisory jurisdiction of the Supreme Court – whether the constitutional issue is premature – application of principles in Kirk [2010] HCA 1; (2010) 239 CLR 531 – difficulties facing applicant for judicial review do not establish a denial of the supervisory jurisdiction

ASIC v Sigalla (No. 4) [2011] NSWSC 62 (18 February 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/62.html

CONTEMPT – whether application to punish for contempt for disobedience of court’s orders were civil proceedings to which the Civil Procedure Act 2005 and Uniform Civil Procedure Rules apply – whether application is a proceeding for an offence and therefore a criminal proceeding and not a civil proceeding – whether proceedings were civil or criminal proceedings for purposes of the Evidence Act 1995 – held character of principal proceeding in which alleged contempt committed does not determine character of contempt proceeding – held proceedings for criminal contempt are proceedings for an offence but proceedings for civil contempt are not – distinction between civil and criminal contempt – held proceeding included charges of criminal contempt – held Uniform Civil Procedure Rules r 29.10 did not apply where no case to answer submission made

CONTEMPT – evidence – standard of proof – Witham v Holloway (1995) 183 CLR 525 displaced by Evidence Act – proof required beyond reasonable doubt because proceedings are criminal proceedings within definition in Evidence Act – principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inapplicable

CONTEMPT – orders restrained defendants from dealing with ‘their assets’ – whether orders restrained dealing with moneys not beneficially owned by the defendant – trust asset is property of trustee – beneficial interest not carved out of trust property leaving the trustee with a ‘bare legal title’ – ‘their assets’ includes assets held as trustee – Federal Bank of the Middle East v Hadkinson [2000] 1 WLR 1695; [2000] 2 All ER 395 disapproved

CONTEMPT – ambiguity – orders restraining dealing with ‘their assets’ ambiguous – defendant not liable for contempt if breach not established on a reasonable view of what the orders prohibit – not proved beyond reasonable doubt that defendant beneficially entitled to moneys transferred – orders breached but contempt not established

CONTEMPT – proof of breach of court orders in relation to swearing affidavit of assets – genuine effort to comply – not proved beyond reasonable doubt that breach deliberate

ZL v The Queen [2010] VSCA 345 (14 December 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/345.html

CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Whether exclusion of evidence would substantially weaken Crown case – CGL v DPP (No 2) (2010) 24 VR 482, considered – Criminal Procedure Act 2009, s 295(3)(a).

CRIMINAL LAW – Evidence – Hearsay – Previous representation – Witness statement – Whether person who made statement not available to give evidence – Whether all reasonable steps taken to find person – Evidence Act 2008 , s 65(2)(b), Dictionary, clause 4(1)(e).

Z L v The Queen [2010] VSCA 345 (14 December 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/345.html

CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Whether exclusion of evidence would substantially weaken Crown case – CGL v DPP (No 2) (2010) 24 VR 482, considered – Criminal Procedure Act 2009, s 295(3)(a).

CRIMINAL LAW – Evidence – Hearsay – Previous representation – Witness statement – Whether person who made statement not available to give evidence – Whether all reasonable steps taken to find person – Evidence Act 2008, s 65(2)(b), Dictionary, clause 4(1)(e).

Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd (no 6) [2010] FCA 1460 (22 December 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1460.html

PRACTICE AND PROCEDURE – Federal Court – application for hearing date to be vacated – applicant charged with murder of one of the respondents – application for general stay pending outcome of criminal proceeding

PRACTICE AND PROCEDURE – application by respondents for proceeding to be cross-vested from Federal Court to Supreme Court of New South Wales – whether Supreme Court better placed to deal with overlap between civil and criminal proceedings – whether interests of justice require proceeding to be cross-vested

Evidence Act 1995 (Cth) s 128

Roads and Traffic Authority of NSW v Birchfield; Roads and Traffic Authority of NSW v Dunlop [2010] NSWSC 1253 (29 November 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1253.html

TRAFFIC LAW – regulation of traffic – traffic signs and notices – offences – Road Rules – whether signs made in accordance with Road Rule 105 – whether traffic signs amounted to instruments – whether traffic signs should be read down to be within the power of the Rules – appeal from Magistrate’s decision dismissing charges – necessity for strict or substantial compliance of signs to Road Rules.

Jiang v R [2010] NSWCCA 277 (29 November 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/277.html

CRIMINAL LAW
appeal and new trial
particular grounds of appeal
misdirection and non-direction
whether direction was required to warn against substitution of evidence of uncharged acts for charged acts
whether error in judge’s comment that certain prosecution evidence had not been challenged or contradicted
CRIMINAL LAW
appeal and new trial
appeal against sentence
grounds for interference
whether sentence manifestly excessive
whether error in not finding special circumstances

47 The evidence was not tendency evidence; it was not led for the purpose of establishing that the appellant had a tendency to act in a particular way or to have a particular state of mind: s 97 and the definition of “tendency evidence” in the Dictionary to the Evidence Act 1995 . Nor was the evidence led to establish a “relationship” or a context in which the charged acts occurred. Indeed, nobody suggested to the jury that the evidence gave rise to a process of reasoning along any of those lines.

R v Rossi (Ruling No 1) [2010] VSC 459 (13 October 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/459.html

CRIMINAL LAW – Evidence – Notice of Hearsay Evidence – Section 65 & 67 of the Evidence Act – Dictionary Clause 4(2)(e) & (f) – “All reasonable steps” – Whether taken – Witness threatened – Witness avoiding subpoena – Subpoena not served – Evidence of police in trying locate witness – Charter of Human Rights and Responsibilities Act 2006 – Section 25(2)(g) – Evidence Act s 137 – Risk of unfair prejudice – Previous representations admitted.

DPP v Nicholls [2010] VSC 397 (6 September 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/397.html

APPEAL from Magistrates’ Court on a question of law – Criminal law – Evidence – Meaning of “not available to give evidence” in s 65 of the Evidence Act 2008 – Evidence Act 2008, ss 18, 65, 67, 135, 137 and clause 4 of Part 2 of the Dictionary – Criminal Procedure Act 2009, s 272(1).

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/708.html

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.

Automotive Dealer Administration Services Pty Ltd v Kulik & Ors [2010] VSC 293 (25 June 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/293.html

DISCOVERY ― Inspection of documents ― Computer data base as document ― Expert inspection of computer server and networked documents ― Alleged breach of confidence ― Search for confidential information on database ― Discretionary considerations

6 ADS has filed a supplementary affidavit of documents in which document number 3 is identified as “ADS Customer & Warranty Database in electronic format.” A database is a “document” for present purposes. Inspection of the database may be ordered by the Court under r 29.11, more especially under r 29.12. That is clear from the definition of “document” in s 38(d), (e) and (f) of the Interpretation of Legislation Act 1984 (Vic). Reference may also be made to Part 1 of the Dictionary provisions of the Evidence Act 2008 (Vic). And I think a computer database would also be describable as “property” within the meaning of the Court’s power to order inspection under rule 37. Having discovered the database, the plaintiff is entitled to inspection of it, there being no objection taken to inspection on the ground of any type of privilege or oppression or some other basis.

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/769.html
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)

Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369 (26 February 2008)

[2008] FCA 369

EVIDENCE – admissibility of evidence – affidavit sworn by solicitor of party and read by it as evidence in earlier interlocutory proceeding – subsequently at trial, affidavit sought to be adduced as evidence of admission by solicitor’s client – whether, for the purposes of s 87(1)(a) of Evidence Act 1995 (Cth), solicitor had authority to make admission on client’s behalf – whether representations in solicitor’s affidavit constituted an ‘admission’ – whether hearsay rule did not apply pursuant to s 81(1) of Evidence Act – whether, for purposes of definition of ‘previous representation’ in Evidence Act, earlier interlocutory proceedings were same proceedings as the trial within meaning of ‘the proceeding in which evidence of the representation is sought to be adduced’

Held: Each representation was made with client’s authority and constituted an ‘admission’ – ‘the proceeding’ in Evidence Act definition of ‘previous representation’ is the particular hearing before the particular judge and does not extend to other hearings or phases in the conduct of a matter, including any interlocutory proceeding, in which the parties have been engaged prior to that hearing

WORDS AND PHRASES – ‘admission’, ‘previous representation’, ‘in the proceeding in which evidence of the representation is sought to be adduced’, ‘judge’

Evidence Act 1995 (Cth), ss 3 (and Dictionary), 4, 81(1), 82(b), 87(1)(a), 88

Nye v State of New South Wales and ors [2002] NSWSC 1268 (27 September 2002)

[2002] NSWSC 1268

Malicious prosecution
Malice
Evidence
Relevance
Common law concept of relevance expanded by Evidence Act 1995
Exclusion of representations made in connection with an investigation relating or leading to a criminal prosecution
Business records
Royal Commission engaged in a business
Evidence adduced at Royal Commission is not a representation made in connection with an investigation relating or leading to a criminal proceeding
Royal Commissioner engaged in a business
Words and phrases – “in connection with”, “relating to”, “leading to”.
:
Evidence Act 1995: ss 55(1), 56, 69(1), (2), (3), 135, 136, 137, dictionary Part 1 and Part 2, cl 1(1)(d)

Leon Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 (8 June 2007)

[2007] NSWCA 130

EVIDENCE – expert witness report – rejection of evidence – independent assessment of fair and reasonable costs pursuant to Legal Profession Act 1987 (NSW) – instructions by practitioner to expert regarding assumptions to be made in determining costs – whether Administrative Decisions Tribunal erred in rejecting expert witness report
LEGAL PRACTITIONERS – Legal Profession Act 1987 (NSW) – certificate by Costs Review Panel as to fair and reasonable costs pursuant to Part 11 – determination of professional misconduct pursuant to Part 10 of the Act – s 208KF costs certificate not binding in disciplinary proceedings – costs certificate issued under Part 11 not determinative of what was fair and reasonable for purposes of professional misconduct
LEGAL PRACTITIONERS – Legal Profession Act 1987 (NSW) – professional misconduct pursuant to Part 10 of the Act – whether costs ‘grossly excessive’ is to be determined by evidence and the Administrative Decisions Tribunal may invoke its own professional experience
LEGAL PRACTITIONERS – Legal Profession Act 1987 (NSW) s 208Q – professional misconduct – deliberate charging of grossly excessive amounts of costs – requirement that practitioner personally implicated in either knowingly overcharging or was reckless as to whether or not excessive costs had been charged – whether Administrative Decisions Tribunal erred in finding practitioner guilty of professional misconduct

Evidence Act 1995 (NSW) ss 60, 69, 76, 79, Pt 2 cl 1