Category Archives: !! Dictionary

R v Simmons; R v Moore (No 3) [2015] NSWSC 189 (10 March 2015)

CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – use of listening device – where device deployed in psychiatric hospital – accused recovering from acute psychosis – whether police failed to disclose relevant information in application for surveillance device warrant – discretion to exclude admissions that are unfair – whether witness an agent of the state – whether witness “elicited” admissions – where accused had not previously been interviewed or advised of his right to silence
CRIMINAL LAW – admissions – whether admission induced by offer of “off the record” conversation – whether reliability adversely affected – fairness discretion

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

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

Oakley v Hyslop [2014] ACTSC 314 (28 November 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Points and Objections not Taken Below – evidence admitted in Magistrates Court was coincidence evidence as defined in Evidence Act – no compliance with Evidence Act notice requirements – no consideration by Magistrate of whether evidence had significant probative value – no consideration by Magistrate whether probative value of evidence substantially outweighed any prejudicial effect on defendant – no objection taken by defence counsel by reference to Evidence Act – failure to object not a waiver – evidence inadmissible because of Magistrate’s failure to consider probative value of evidence – appellant deprived of fair trial – evidence not necessarily inadmissible if Evidence Act provisions properly complied with – no finding that verdict unsafe and unsatisfactory – appeal upheld – matter remitted to Magistrates Court for further hearing and decision by different Magistrate.
EVIDENCE – Admissibility and Relevancy – whether evidence is coincidence evidence – admissibility of coincidence evidence under Evidence Act – effect of failure to comply with statutory requirements for court to consider probative value of coincidence evidence and weigh probative value and prejudicial effect – evidence inadmissible because of lack of compliance with statutory requirements – evidence not necessarily inadmissible if statutory requirements complied with – matter remitted to Magistrates Court for further hearing and decision by different Magistrate.

Director of Public Prosecutions (NSW) v Lucas [2014] NSWSC 1441 (20 October 2014)

CRIMINAL LAW – appeal by prosecutor against dismissal of charges – intentionally or recklessly damaging property – intimidation – magistrate erred in dismissing property damage charge – property was unable to be used for ordinary function for a period whilst imperfection was eliminated – magistrate did not prevent prosecutor from leading evidence of a pattern of violence – magistrate erred by failing to provide reasons for dismissal of intimidation charge

Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2014] VSCA 261 (24 October 2014)

CONTEMPT OF COURT – Industrial dispute – Preventing access to building sites – Restraining orders made – Alleged breaches of restraining orders – Proceeding alleging contempt of court initiated under Supreme Court (General Civil Procedure) Rules 2005 (r 75.06(2)) – Whether civil or criminal proceeding in circumstances of case.

CONTEMPT OF COURT – Finding made of breaches of restraining orders – Finding of criminal contempt – Criminal convictions recorded and fines imposed – Whether finding of criminal contempt available when charges did not plead contumacious conduct – Whether contumacy an element of criminal contempt or an aggravating circumstance – Nature of contempt – Effect of X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 and Lee v The Queen (2014) 88 ALJR 656 – Whether contumacy must be pleaded in order that contempt for breach of Court orders be treated as criminal – Contumacy need not be pleaded – Sufficient that alleged contemnor put on notice that allegation of contumacy is made.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether trial judge erred in finding applicant had breached restraining orders – Terms of orders – Whether particulars of charges satisfied – Significance of redeployment of workers before relevant blockading conduct commenced – Not reasonably arguable that trial judge erred in findings of contempt.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether evidence to support findings of breaches to criminal standard – Not reasonably arguable that trial judge erred in so finding.

CRIMINAL LAW – Breaches of restraining orders – Finding of criminal contempt – Fine imposed – Whether fine in respect of breach disproportionate to fines imposed for other breaches – Not reasonably arguable that fine disproportionate.

Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (S APCI 2014 0040)

PRACTICE AND PROCEDURE – Discovery – Whether procedure under r 29.07 available against alleged contemnor in contempt proceedings brought under Supreme Court General Civil Procedure) Rules 2005 (r 75.06)(2)) – Proceeding alleging breaches of court orders – Nature of contempt alleged – Relevant evidentiary/procedural regime – Corporate defendant – Whether discovery unavailable by reason of contempt proceeding ‘criminal’ and ‘accusatorial’ – Leave to appeal against order for discovery refused.

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

The Greek Orthodox Parish Community of St Marys and District Limited v Denis Stanley Merrick [2014] NSWSC 1196 (26 August 2014)

CONTRACT LAW – contract for the sale of land – notice to complete – settlement location in dispute – termination of contract – termination invalid – recovery of deposit under s 55(2A) conveyancing act 1919

EVIDENCE LAW – affidavit not properly sworn – definition of public document – evidentiary value of statements made by solicitors

International Relief and Development Inc v Ladu [2014] FCA 887 (20 August 2014)

ARBITRATION – Foreign arbitral award – Application to enforce foreign award – Opposition to enforcement on the basis of no proper notice – Whether absence of proper notice of appointment of the arbitrator or of the arbitration proceedings – Whether breach of the rules of natural justice – Whether no notice of the arbitration hearing – Consideration of grounds for refusing to enforce foreign award under ss 8(5)(c), (7) and (7A) of the International Arbitration Act 1974 (Cth) – Respondent failed to establish alleged absence of notice – Order for enforcement made.

Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCAFC 101 (8 August 2014)

INDUSTRIAL LAW – application of s 553 of the Fair Work Act 2009 (Cth) – where applicant convicted of criminal contempt in the Supreme Court of Victoria – whether proceedings for pecuniary penalty order stayed or dismissed in so far as there is conduct that is substantially the same – whether s 553 operates where contempt of court alleged

R v Hunter (No 6) [2014] NSWSC 1149 (4 July 2014)

CRIMINAL LAW – EVIDENCE – admissibility – Criminal Procedure Act 1986 (NSW) s 281 – whether admissions were made “in the course of official questioning”

23. R v Horton (1998) 45 NSWLR 426 establishes that a seemingly exculpatory statement can be excluded as an admission, if it is capable of being relied upon as being a lie. It also establishes that conduct able to be characterised as an admission was captured by the predecessor of s 281: at 437-8. That is consistent with the definition of an admission and the definition of a representation contained in the Dictionary to the Evidence Act 1995 (NSW).

Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625 (16 June 2014)

EVIDENCE – whether previous representations made in certain printouts of emails should be admitted into evidence as business records pursuant to s 69 of the Evidence Act 1995 (Cth) – whether those emails should be excluded in the exercise of the Court’s discretion pursuant to s 135 or s 169 of the Evidence Act – whether the Court should compel the plaintiff to call the authors of the emails pursuant to s 169 of the Evidence Act – whether the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) prohibit the tender of transcripts of recordings of intercepted telephone calls and whether, if not, those transcripts are admissible as business records – whether transcripts of evidence given at a public inquiry conducted by the NSW Independent Commission Against Corruption are admissible as business records – whether a previous statement in writing made by a potential witness out of Court which was created for the purpose of being provided to a television journalist is admissible

Marsh Pty Ltd v Vickery [2014] FCA 484 (15 May 2014)

PRACTICE AND PROCEDURE – application for further and better production of documents under subpoena – whether addressee had complied with subpoena – where subpoena required production of electronic properties of documents originating in electronic form – where documents produced documents in hard copy – where electronic properties not produced – application to set aside subpoena on grounds of oppression – where electronic documents within the scope of the subpoena archived on server located in United States – where compliance with subpoena will be costly and time consuming.

Held: Application for further and better production allowed. Application to set aside subpoena dismissed. Orders made for production of documents under subpoena.

Kelly v Australia and New Zealand Banking Group Limited [2014] NSWSC 426 (11 April 2014)

CONTRACT LAW – alleged breach of contract – alleged misleading and deceptive conduct pursuant to s 52 of the Trade Practices Act 1974 (Cth) – whether the defendant promised to appoint the plaintiff’s company to its panel of quantity surveyors in exchange for the plaintiff remaining a customer of the defendant and taking loans from the defendant – whether this promise constituted a contract between the plaintiff and the defendant – neither the defendant nor its representatives made the alleged promise – no contract to the effect pleaded in the Statement of Claim – the defendant did not engage in conduct that was misleading or deceptive or likely to mislead or deceive – evidence fabricated by the plaintiff – cross-claim by the defendant in respect of monies owed in respect of the loans to be heard and determined

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

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.

[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)

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)

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)

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)

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)

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)

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

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

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

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

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)

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)

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)

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)

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.

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)

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)

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 –
previous representation

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

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)

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)

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.

[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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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).