Opinion evidence – relevance – expert allegedly adopting role of “advocate” – qualifications – whether plaintiff’s case confined to that suggested by his own evidence.
APPEAL – error in process of fact finding – failure to examine all material relevant to central issue – new trial required
CONTRACT – whether transaction loan to appellant or investment in third party company – whether respondents’ case contrary to compelling inference
CONTRACT – post-contractual conduct – letter from respondents’ solicitor to third party – whether letter contained admissions adverse to respondents’ interests
EVIDENCE – whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness – client legal privilege – where respondents gave evidence at trial about solicitor’s advice – whether respondents waived privilege by acting inconsistently with maintenance of privilege
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.
PRACTICE AND PROCEDURE – admissibility of evidence – transcripts of examinations conducted pursuant to s 453-5(1)(c) Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – where recordings not tendered – where transcripts not authenticated by signature or respondents’ testimony – application of s 48(1)(c) of the Evidence Act 1995 (Cth) – whether transcripts satisfy hearsay exception in s 81 of the Evidence Act 1995 (Cth) – whether transcripts contain admissions
CORPORATIONS – whether improper use of position within the meaning of s 265-10 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – where management agreement existed with an external company – where that external company controlled the Corporation’s bank accounts – where minority of directors did not approve of management agreement – where chairman director sought to appoint a chief executive officer sympathetic to minority position on favourable terms without Board approval – where chairman director and new chief executive officer attempted to access bank accounts of Corporation – whether two other directors who attended the bank but did not participate were “involved in” these contraventions within the meaning of s 694-55 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
CORPORATIONS – disqualification orders under s 279-15 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – where contravening respondents attempted to circumvent Board process and impose minority views – where general deterrence an important consideration as acts jeopardised Corporation providing essential services – where specific deterrence less important as respondents unlikely to serve as directors or officers again – where no intention to misappropriate funds – where no evidence of bad character or similar previous behaviour
COSTS – where applicant successful against two respondents – where only one respondent appeared – where respondent increased cost of hearing by cross-examining many of the witnesses – costs sought against that respondent
COMPETITION – s 45 of the Competition and Consumer Act 2010 (Cth) – thoroughbred horses – Australian Stud Book – thoroughbred horse racing – artificial insemination – restricting or prohibiting the entry in the Australian Stud Book of thoroughbred horses bred by artificial insemination – restricting or prohibiting the entry into races of thoroughbred horses bred by artificial insemination –whether contract, arrangement or understanding – aggregation of provisions – whether provisions have or likely to have effect of substantially lessening competition in a market – thoroughbred breeding market – thoroughbred acquisition market – scope of market – whether thoroughbreds bred by natural cover or by artificial insemination sufficiently close substitutes – appropriate counterfactual – rules of sport
TRADE AND COMMERCE – restraint of trade – reasonableness of restraint when imposed – relevance of later events – whether later events foreseeable
[EQUITY] – interest – priorities – whether acknowledgement is effective to prove that a debt was owing – whether acknowledgment created an enforceable promise to give security over the land in the event that the debt was not paid by the specified date – whether first cross-defendant is entitled to be subrogated to the rights of the mortgagee bank – whether cross-claimant’s equitable interest should be postponed to the equitable interest of the first cross-defendant.
[PROCEDURE] – whether orders made on 3 and 21 June 2011 be set aside pursuant to UCPR r 36.15.
NOTE: This version has been amended pursuant to the ‘Slip Rule’ by Order made 1 May 2012 and reasons: James George Hodgson v Amcor (No. 8)  VSC 162 http://www.austlii.edu.au/au/cases/vic/VSC/2012/162.html
COMPANIES – “Officer” of a corporation – Duties arising under ss 180, 181, 182 and 183 Corporations Act 2001 – Persons who constitute the directing mind of a corporation –Alleged sale of company assets on uncommercial terms – concept of an ‘uncommercial transaction’ – Whether breach of fiduciary duty for employee to participate in a sale of company assets on uncommercial terms – Noting business opportunities – Whether breach of fiduciary duty to employer – Making preparations for new business following termination of employment – Whether breach of fiduciary duty to employer – Concealing useful commercial intelligence from employer – Whether breach of fiduciary duty to employer – Failing to disclose own breaches of fiduciary duty – Whether in itself a breach of fiduciary duty to employer – Compensation under Corporations Act 2001 s 1317H – Claims by shareholders for losses suffered by a company – Claims by shareholder for damages reflective of company losses
EMPLOYER and EMPLOYEE – Redundancy at common law – Whether employee made redundant – Contractual termination by notice – Purported summary dismissal post termination – Whether purported ground of summary dismissal made out – Burden on employer to establish serious misconduct – Whether grounds of termination may change by reason of after acquired information – Application of principle in Shepherd v Felt and Textiles of Australia  HCA 21; (1931) 45 CLR 359 – Entitlement to bonus – Quantum of bonus – Long service leave calculation – Annual leave calculation – Whether accrued entitlements survive termination – Sale of employers’ businesses to employees – Fiduciary duties of employees
EQUITY – Fiduciary duties of employees – Equitable remedies – Election as to relief – Equitable compensation – Taking of accounts – Causation and equitable relief – Barnes v Addy liability – Knowledge of fiduciary breach – Equitable defence of laches in relation to fiduciary claims
EVIDENCE – Admissions made by a party in computer stored information- ss 59(1), 81(1), 87(1)(a) Evidence Act 2008 – Admissions admissible against parties other than the maker – s 87(1)(a) Evidence Act 2008 – Proof of requirements under s 87(1)(a) Evidence Act 2008
PRACTICE and PROCEDURE – Application at trial to amend defence to withdraw an admission – Principles to be applied – Anshun estoppel – Principles to be applied
Evidence – expert report – relevance of expert reports to issues in the proceedings – proof of assumption rule – whether underlying assumptions admissible as part of business records or as admissions
CRIMINAL LAW – Evidence – Manslaughter by unlawful and dangerous act – Accused charged with delivering blow rendering deceased man unconscious – Accused alleged to have acted in concert with witness serving prison sentence for manslaughter after guilty plea – Leave granted under s 38(1)(b) of the Evidence Act 2008 (‘the Act’) to cross-examine witness with whom accused alleged to have acted in concert – Leave granted to cross examine in relation to contents of witness’s police Record of Interview as prior inconsistent statements – Section 192(2)(a)-(e) of the Act – Credibility evidence – Evidence of prior inconsistent statement which could substantially affect assessment of credibility under s 102 of the Act – Principle in Blewitt v R  HCA 43; (1988) 62 ALJR 503 inapplicable – Evidence of Record of Interview not excluded under s 137 of the Act – Evidence of second-hand hearsay admissions in Record of Interview excluded under s 137 of the Act.
INDUSTRIAL LAW – unlawful industrial action by more than 1300 respondents – some represented – some not – breach of Fair Work Act 2009 (Cth) (FW Act) and Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) – purpose of industrial action – motivation of respondents – industrial motivation – liability – liability admitted by represented respondents – agreement on remedy and penalty – appropriate penalty to be determined by the Court – whether it is appropriate to make declarations – analysis of transitional provisions of the FW Act – differences between an agreement-based transitional instructions, Workplace Relations Act instruments and transitional instruments – meaning of industrially-motivated in the BCII Act – definition of ‘industrially-motivated’ in the BCII Act – operation and construction of para (a) of the definition of ‘industrially-motivated’ in the BCII Act – operation and construction of para (d) of the definition of ‘industrially-motivated’ in the BCII Act – meaning of motivation – disruption to the performance of work for the purpose of industrial action
PRACTICE AND PROCEDURE – respondents who have not entered an appearance – former Federal Court Rules O 32 r 2(1)(d) – Court required to consider merits of case and make determination on balance of probabilities – Court entitled to assume correctness of matters upon which the applicant bears the onus – Federal Court Rules 2011 r 1.04 – whether proof of service on absent respondents required before affidavits can be read – where service was not effected personally – leave required to read affidavits without service – where respondents had notice of proceedings and consequences
EVIDENCE – reliance on inference – proof of any fact on the balance of probabilities from which the Court infers a further fact – inferences from primary or intermediate fact – circumstances to be taken into account when drawing an inference – failure to deny or explain facts – admissions made by agents of the unrepresented respondents – establishing liability against unrepresented respondents – unrepresented respondents aware of proceeding and consequences – liability established
Evidence Act 1995 (Cth) ss 81, 87
TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where provider of internet search engine published advertisements in the form of “sponsored links” displayed on search results page in response to search queries – whether provider of internet search engine engaged in conduct that was misleading or deceptive or likely to mislead or deceive by failing to adequately distinguish between advertisements and organic search results – consideration of expression “sponsored link” – whether provider of internet search engine made implied representations that sponsored links were not advertisements – whether provider of internet search engine made implied representations that sponsored links were organic search results – whether provider of internet search engine made implied representations that position of sponsored links on search results page was the result of their relative relevance to search queries as determined by the search engine – consideration of layout of search results page – consideration of relevant class of consumer – consideration of impact on ordinary and reasonable members of relevant class of consumer
TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where advertisers sought to promote their goods or services by means of sponsored links on search results pages – where headline of sponsored link replicated third party’s business name, trade mark or website address – whether advertiser made implied representations of association or affiliation – consideration of relevant class of consumer – consideration of impact of sponsored links on ordinary and reasonable members of relevant class of consumer – whether representations conveyed were misleading or deceptive or likely to mislead or deceive – whether search engine provider also made implied representations of association or affiliation by publishing sponsored links or by adopting or endorsing representations conveyed – significance of “keyword insertion” when used to generate headline which replicated terms of search query
TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where provider of internet search engine published advertisements in the form of “sponsored links” displayed on search results pages in response to search queries – where sponsored links conveyed misleading and deceptive representations – whether search engine provider had a defence under s 85(3) of the Trade Practices Act 1974 (Cth) (the Act) – whether advertisements in the form of sponsored links were advertisements received by the search engine provider in the ordinary course of business – whether search engine provider knew or had reason to suspect that publication of advertisement would amount to contravention of s 52 of the Act – whether search engine provider could discharge onus of proof without showing that it took reasonable precautions or exercised reasonable diligence to avoid such contravention
Evidence Act 1995 (Cth) ss 81, 88 and 135
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  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  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 .
EVIDENCE – admissibility – lies as consciousness of guilt – unfair prejudice – misleading or confusing evidence in the context of the proceedings – same lie told be innocent persons and the accused
TRADE PRACTICES — Action for misleading or deceptive conduct in contravention of s 56 of the Fair Trading Act 1987 (SA) (‘the Act’) — where plaintiff and first defendant formed second defendant company for purpose of acquisition and operation of marina business — where plaintiff and first defendant in personal relationship —where first defendant said to have made oral representations which induced plaintiff to enter into the venture including representation that both parties would contribute equally to funding of business — where plaintiff made substantially greater financial contribution to the company — where plaintiff seeks damages or compensation pursuant to ss 84 and 85 of the Act — whether representations were in trade or commerce — whether representations were representations as to future matters for purpose of s 54 of the Act — whether plaintiff entitled to recover all of her contributions
CORPORATIONS —claim by plaintiff for equalisation of contributions made to company under s 233 of the Corporations Act 2001 (Cth) on basis of first defendant’s oppressive conduct under s 232 — where plaintiff said failure to make equal contributions was oppressive conduct — whether failure to meet a pre-incorporation understanding between incorporators of company is in conduct of a company’s affairs for purpose of s 232 — whether even if failure to make contributions was in conduct of a company’s affairs an order for equalisation of contributions would be appropriate under s 233 — where other forms of oppressive conduct might be made out but would not lead to relief sought
EQUITY — where plaintiff alleged existence of fiduciary relationship between plaintiff and first defendant because of proposed joint venture — no fiduciary relationship between incorporators of company
HELD: The defendant had engaged in misleading and deceptive conduct contrary to s 56 of the Act and the plaintiff was entitled to damages in the amount of all of her contributions to the company with interest. The plaintiff did not succeed in the oppressive conduct case or the fiduciary duty case.
EVIDENCE – Evidence Act 1995 – hearsay and opinion rules – whether admissions in ERISP made with authority
APPEAL – decision of associate judge – funds in court – balance of proceeds of mortgagee’s sale of property – who entitled to funds – whether property held on trust under joint venture agreement – whether trust a sham – whether property subject of charges – whether debts owing and secured by charges – appeal do novo – appeal dismissed – Supreme Court (General Civil Procedure) Rules 2005, r 77.06.
PRACTICE AND PROCEDURE – costs – appeal against decision of associate judge – order that liquidator should pay costs personally – whether should have been order for liquidator to recover costs and expenses from disputed funds in court – liquidator at all times reasonably conducted defence of company – liquidator performed statutory function as officer of the court – appeal allowed.
“72 Australvic took objection to the admission of this affidavit, both before the associate judge and me. I reject the objection. The affidavit is a clear admission against interest by a party to this proceeding on the matter which is primarily in issue – whether the Oxford Street property was held on trust by Australvic for Mr Calderone. It is admissible as an admission by Australvic that the property was held on trust for Mr Calderone. Under s 81(1) of the Evidence Act 2008 , the hearsay and opinion rules do not apply to evidence of an admission. The admission was proved by tendering the affidavit and it was not necessary for Mr Calderone to call Mr Fisher to give the evidence independently or to prove his affidavit.”
CORPORATIONS – misleading announcement sent to ASX – whether pleaded version of draft announcement taken to board meeting – whether resolution to approve draft announcement and authorise for sending to ASX passed at board meeting – detailed consideration of factual circumstances before, during and after board meeting – consideration of constraints in appellate review – discussion of advantages of trial judges – discussion of advantages in appellate courts – consideration of s 140 of Evidence Act and Briginshaw v Briginshaw – failure to call witnesses who were at board meeting – whether ASIC under obligation akin to prosecutorial duty – whether appropriate to reason by analogy from criminal procedure to civil penalty proceedings – discussion of civil penalty regime – not appropriate to reason by analogy – no prosecutorial duty – whether ASIC’s obligation to act fairly required witnesses to be called – discussion of obligation of fairness owed by government agencies – consideration of principles of fair trial – consideration of government agencies as model litigants – consideration of ASIC’s role as regulator – consideration of ASIC’s powers under ASIC Act and Corporations Act – failure to call witnesses may constitute breach of obligation of fairness – consideration of evidentiary principles enunciated in Blatch v Archer, Jones v Dunkel and Whitlam v ASIC – failure to call witnesses taken into account in deciding whether onus of proof satisfied – breach of obligation of fairness taken into account in deciding whether onus of proof satisfied – obligation of fairness breached – burden of proof not discharged – not proved that resolution passed. CORPORATIONS – directors’ statutory duty of care and diligence under s 180 of Corporations Law – assuming resolution passed, whether non-executive directors contravened duty in voting for resolution – discussion of duty of care and diligence of non-executive directors – non-executive directors may rely on management and officers to a greater extent than executive directors – duty dependent on facts of each case – consideration of factual circumstances surrounding resolution – if resolution passed, contravention properly found. CORPORATIONS – definition of officer in s 9 of Corporations Law – consideration of company secretary as officer when also general counsel – whether participation in matters that affected the whole or a substantial part of the business – participation need not be as one of those in ultimate control – test is one of participation in making of decision – participation more than administrative arrangement – must be real contribution to making of decision – participation made out – whether statutory duty extends to any matter which falls within the scope of responsibilities as company secretary – duty extends to responsibilities actually carried out by company secretary – relevant acts and omissions were within responsibilities as company secretary. CORPORATIONS – statutory duty of care and diligence of company secretary – assuming resolution passed, whether duty of care breached in failing to advise draft announcement was misleading – would be breach – whether duty breached in failing to warn of limitations in cash flow models – no breach because knowledge of limitations not proved – whether duty breached in failing to advise or obtain advice for board or CEO concerning disclosure of Deed of Covenant and Indemnity – whether company secretary could rely on absence of warning by external advisers – reliance not available – breach properly found – whether breach of duty in failing to advise nature of “best estimate” – on facts, no breach – whether breach in failing to advise of failure to take into account superimposed inflation – breach properly found. CORPORATIONS – definition of officer in s 9 of Corporations Law – whether chief financial officer participated in decisions that affected the whole or substantial part of company’s business – not confined to acts and omissions alleged to have been in breach of statutory duty as officer – first consider whether person is an officer – then consider whether breach of duty – participation made out – whether chief financial officer had capacity to affect company’s financial standing – test focuses on the particular officer, not an abstract officer – capacity made out. CORPORATIONS – statutory duty of due care and diligence of chief financial officer – whether duty breached in failing to warn of limitations in cash flow analysis –breach properly found – whether duty breached in failing to advise nature of “best estimate” and failing to take into account superimposed inflation – on facts, no breach. EVIDENCE – admissibility – admissibility of prior inconsistent statement for non-hearsay purpose – consideration of R v Adam and Adam v The Queen – no inconsistency identified – admissibility as admissions of documents stating resolution had been passed – consideration of Lustre Hosiery Limited v York – whether circumstances were such as to make it unlikely that erroneous statements would be allowed to pass unchallenged – no error shown in ruling not admissible.
EVIDENCE – admissibility of interview with police – conducted while appellant intoxicated – no caution administered – discretion to exclude illegally obtained evidence
CRIMINAL LAW – reasonable hypothesis consistent with innocence open on evidence – unreasonable or unsafe and unsatisfactory conviction recorded – defence of sudden or extraordinary emergency – unavailable to appellant – appellant may have taken steps to obviate threat
Evidence Act 1995 (Cth) ss 60, 81, 84, 138, 191
application to tender affidavit
whether statements constitute admissions
par 68 to the end of the affidavit rejected
Evidence Act 1995 s 55, s 59, s 81
CORPORATIONS – continuous disclosure – obligation to disclose information to ASX under Chapter 6CA Corporations Act 2001 (Cth) – relationship between continuous disclosure provisions of ASX Listing Rules and Corporations Act – agreements contemplating execution of fuller and more detailed agreements – mining project contingent upon completion of definitive feasibility study – notification to ASX in purported compliance with continuous disclosure provisions under s 674 – asserted binding legal effect of agreements – whether information disclosed by listed disclosing entity as to legal effect of agreements was incorrect or unreasonably based – whether entity ought reasonably to have come into possession of different information as to legal effect of agreements – relevance of subjective belief or opinion as to legal effect – whether opinion as to legal effect honestly held – whether legal effect of agreements as asserted by plaintiff was information that was not generally available for the purposes of s 674(2) – whether entity received legal advice as to effect of agreements and disclosure obligations – ex ante and ex post consideration of materiality for purposes of s 674(2) – correct approach – whether contravention of s 674(2A) by director allegedly involved in entity’s alleged contravention of s 674(2)
CORPORATIONS – misleading or deceptive conduct under s 1041H – public disclosures made as to the binding legal effect of agreements – whether conduct in relation to a financial product or a financial service – relevance of belief or opinion – relevance of context at the time disclosures were made to market – whether disclosures were misleading or deceptive
CORPORATIONS – director’s duties – whether director breached duty to exercise reasonable care and diligence required by s 180(1) – whether disclosure about legal effect of agreements was honest and reasonable – legal advice obtained consistent with belief.
EVIDENCE – allegations of dishonesty no reasonable evidentiary basis for such allegations
EVIDENCE – standard of proof – Briginshaw standard – prescription of civil standard of proof in a civil penalty proceeding by s 1332 of the Corporations Act – prescription of balance of probabilities as standard of proof in a civil proceeding by s 140 Evidence Act 1995
EVIDENCE – applicability of rule in Jones v Dunkel to civil penalty proceedings – rule in Browne v Dunn – consequences of failure to comply with rule in Browne v Dunn
EVIDENCE – admissibility of transcripts of examinations under s 19 Australian Securities and Investments Commission Act 2001 – whether transcripts contain admissions
EVIDENCE – relevance of expert opinion of statisticians, stockbrokers and analysts in determining contraventions of continuous disclosure provisions
WORDS AND PHRASES – “information”, “aware”, “not generally available”,
Evidence Act 1995 (Cth), ss 81, 87(1)(b), 140
CORPORATIONS- oppression- numerous instances of oppression by director of companies- remedies- appropriate remedy a compulsory purchase order- valuation of shares. CORPORATIONS- oppression- remedies- compulsory buy-out order- valuation of shares- company’s assets solely land and business- relevance of capital gains tax (CGT) liability when sold- whether CGT deducted from value-whether selling costs to be deducted from gross proceeds. EQUITY- general principles- equitable defences- laches and delay- elements of laches- degree of knowledge of wrongdoing required depends on facts in all the circumstances- applicability of defence to oppression suit. EQUITY- fiduciary duties- directors’ duties to shareholders- when owed to shareholders. REAL PROPERTY- valuation of land- highest and best use- special value irrelevant in prevailing circumstances.
Evidence Act 1995, s 81
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)
RULING AS TO ADMISSIBILITY OF STATEMENTS
UNDER SECTION 19 OF THE ASIC ACT
1. ASIC seeks to tender parts of statements of the second defendant, and of Mr Graeme Rowley and Mr Alan Watling, officers of the first defendant at all material times, made upon their respective examinations under s 19 of the Australian Securities and Investment Commission Act 2001 (Cth) (the ASIC Act). The relevant statements are contained in transcript extracts.
2. The transcripts of Rowley and Watling are sought to be tendered under ss 81 and 87 of the Evidence Act 1995 (Cth) as evidence of admissions made on behalf of the first defendant. Admissions made in the examination of a corporate officer may be used as evidence against the corporation: ACCC v Leahy Petroleum  FCA 1678 at - .
3. The transcript of the second defendant is proffered as evidence of an admission against interest as well as an admission made on behalf of the first defendant. ASIC relies for this proposed tender upon ss 81 and 88 of the Evidence Act alternatively s 76 of the ASIC Act.
4. I have been asked to assume for the purposes of this ruling as to admissibility of the transcripts that the statement recorded in each constitutes a relevant admission although it may be that this will be the subject of challenge in due course.
EVIDENCE – admissibility and relevance – admissions – hearsay statements – whether it is reasonably open to find that the statements were made with the authority of the defendant – whether it is reasonably open to find that statements were made in furtherance of a common purpose of the maker and the defendant – whether discretion against admitting should be exercised – where defendant can remedy position by resort to s 81(2)
Evidence Act 1995, ss 81, 87, 135
EVIDENCE – admissions – communications by applicants for native title and others to expert anthropologist – recorded in field notes – whether documentation of communications admissible as admissions
EVIDENCE – hearsay – communications by applicants for native title and others to expert anthropologist – recorded in field notes – viva voce and documentary evidence of communications- whether admissible as relevant for a purpose other than proof of the fact intended to be asserted by the representation – whether court should limit the use to be made of the evidence or exclude it – relevance of opportunity for cross-examination
Evidence Act 1995 (Cth), ss 60, 79, 81(1), 82, 135, 136
 FCA 794
TRADE PRACTICES – price-fixing – arrangements or understandings – whether existed between competitors within the Geelong retail petrol market – whether contained provisions for the fixing of retail petrol prices – whether necessary for parties to have commitment or moral obligation – applicant pleaded existence of seven bipartite and one tripartite interlocking arrangements or understandings and that effect was given to them on a number of occasions within a two-year period – relied on oral evidence of some alleged parties to them, circumstantial evidence in the form of data as to times of telephone communications between parties to alleged arrangements or understandings and changes in retail price of petrol, as well as admissions by some alleged parties to arrangements or understandings – whether evidence established existence, and giving effect to, of arrangements or understandings – whether evidence of origins of alleged arrangements or understandings sufficient – whether oral evidence and circumstantial evidence inconsistent – oral evidence not specific as to any particular occasion – circumstantial evidence often inconsistent with oral evidence, and with applicant’s allegations – whether judgment should be given on admissions
EVIDENCE – admissions – whether appropriate to exercise discretion to pronounce judgment based on admissions – whether reason to question correctness of facts admitted or agreed – whether previous representations made in furtherance of common purpose – whether reasonably open to find that representations were made in furtherance of common purpose – existence of common purpose established by evidence other than previous representation itself
WORDS AND PHRASES – “contract”, “arrangement”, “understanding”, “make an arrangement”, “arrive at an understanding”, “provision”
Evidence Act 1995 (Cth) ss 38(1)(c), 50, 57(2), 59(1), 60, 81(1), 83, 87, 87(1)(a), 87(1)(b), 87(1)(c), 87(2), 140
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
CRIMINAL LAW & PROCEDURE
admissibility of evidence
Evidence Act 1995, ss 55, 56, 65, 81, 82, 102, 108, 135, 137, 165.
Criminal law; admissions by accused: s 81 Evidence Act (NSW) 1995; exception to hearsay rule (s 65(1) and 65(2)(c) Evidence Act); availability of witness; evidence admissible for non-hearsay purpose; s 136 Evidence Act – Limitation order
I am satisfied that there is no basis under ss 135 or 137 of the Evidence Act to exclude the evidence of the representations, provided the Crown does not lead the evidence relating to the name “Faheem”.
EVIDENCE – admissibility – hearsay – whether hearsay representation nevertheless admissible as admission by defendant – representation made by individual – whether pursuant to Evidence Act s 87 representation to be taken to be representation of defendant – where individual was company secretary of defendant – whether company secretary may be taken to be “employee” of company – nature of implied authority of company secretary
Evidence Act 1995, ss 81, 87
AGENCY – hearsay representation by agent – not representation as to truth of statement – estate agents incorporate copy of incorrect survey diagram in brochure
COSTS – unnecessary charge of fraud which fails – plaintiff to pay costs of issue of fraud
MISREPRESENTATION – hearsay representation by agent – not representation of truth of statement
SPECIFIC PERFORMANCE – defence of innocent misrepresentation – purchasers’ failure to rescind no bar
TRADE PRACTICES ACT – s 51A – s 52 – misleading and deceptive conduct – hearsay representation by agents on behalf of principal – representation by principal – not representation by agents
VENDOR & PURCHASER – Conveyancing Act s 55 (2A) – repayment of deposit – loss of right to rescind for innocent misrepresentation no bar to order – discretion
Criminal law – appeal against conviction – sentence – voice identification – speech in intercepted telephone calls in Cantonese – police officer hears calls – later identifies voice of speaker from Cantonese speech at interview with police – held evidence rightly admitted – appellant spoken to in Cantonese during interview in which he refused to answer questions – his reply in Cantonese used for voice identification – no impropriety found – vocal sounds not a representation – no legal necessity for recording to make the voice identificaion evidence admissible – no basis for challenge to sentence.
CRIMINAL APPEAL – joint trial – cut throat defence – record of interview withdrawn by Crown because induced by threat – co-accused uses answers in withdrawn record of interview to cross-examine accused – Evidence Act, s84 – “admission”.
Appeal by Crown under s5F(3A) of Criminal Appeal Act
rejection of evidence of photograph of accused taken by police
accused a child
whether posing for the photograph amounted to an admission
whether Part 10A of Crimes Act complied with
exercise of discretion under s138, Evidence Act
appeal against conviction
leave to appeal against sentence
threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse
admission of evidence of flight
directions regarding consciousness of guilt
the proviso to s6(1) of the Criminal Appeal Act 1912
Criminal law and procedure – evidence within principles in O’Leary v The King – evidence of consciousness of guilt – lies – accessorial liability – whether verdict unreasonable and cannot be supported
CRIMINAL LAW AND PROCEDURE
DENIAL BY ACCUSED WHEN CONFRONTED BY POLICE WITH ALLEGATION
DENIAL MAINTAINED AT VIDEO RECORDED INTERVIEW HELD SHORTLY THEREAFTER
OBJECTION BY CROWN TO ADMISSION OF EXCULPATORY MATERIAL
BASIS OF EXCEPTION TO HEARSAY RULE
MAINTENANCE OF COMMON PRACTICE
GENERAL DUTY OF CROWN TO TENDER SUBJECT TO OBJECTIONABILITY OF CONTRIVED MATERIAL
ACCUSED GIVES EVIDENCE FOLLOWING RULING REQUIRING HIM TO DO SO IN ORDER TO MAKE EARLIER DENIALS ADMISSIBLE
RULING ERRONEOUS BUT NO RESULTANT MISCARRIAGE
DISCUSSION OF VARIETY OF APPROACHES TO EVIDENCE OF EXCULPATORY STATEMENTS
TRIAL JUDGE MISINFORMED AS TO APPLICABLE MAXIMUM PENALTY
IMPOSITIONS IN EXCESS OF MAXIMUM
APPEAL AGAINST SENTENCE ALLOWED AND APPELLANT RESENTENCED
s59 Evidence Act 1995
Murder – provocation – whether trial judge’s directions reduced the ‘standard’ for Crown to accused’s disadvantage – Crimes Act 1900 s23(2)(b) – consciousness of guilt – propriety of and necessity for directions when manslaughter an available verdict – life sentence – second conviction for murder of spouse
CRIMINAL LAW – SENTENCE – knowing concern in importation of heroin – where circumstantial case – where trial judge erred in leaving to jury specific lie as evidence of consciousness of guilt – whether proviso applicable in circumstances of error in trial – whether proviso applicable on circumstantial case
appeal against conviction
maliciously inflicting grievous bodily harm
assault occasioning actual bodily harm
admission of evidence over objection
statement tendered at trial pursuant to s65(2)(b) and (c) of Evidence Act 1995
maker of statement unavailable to give evidence
objection taken on grounds of late notice and discretionary factors
no separate objection to content of evidence
whole of statement admitted
whether trial judge erred in admitting statement
- whether trial judge failed adequately to warn jury of the danger of relying on the evidence of the statement
directions to jury adequate to draw attention to any potential unreliability of statement, including those parts now held to have been inadmissible
hearsay provisions of the Evidence Act
exceptions to the hearsay rule
identification of previous representation
identification of what fact was intended to be asserted by previous representation
evidence of out of court representation by one person cannot be given by out of court representation of another person
evidence of previous representations inadmissible
effect of admission of inadmissible evidence of previous representation
Criminal Appeal Rules, rule 4
whether appellant requires leave before being permitted to argue admissibility of previous representations as a ground of appeal
Criminal Procedure Act s68, s289
appellant waived right to committal hearing
proviso to s6 of the Criminal Appeal Act
admission of the inadmissible evidence would and should have had no significance in verdict
evidence properly admitted proves beyond reasonable doubt guilt of the offence
Evidence Act 1995 s55, s56, s59, s60, s62, s65, s66, s67, s81, s82, s135, s137, s165, s192
CRIMINAL LAW – appeal against conviction – armed robbery – circumstantial case – evidence of flight – consciousness of guilt – whether error in admitting this evidence – whether error in characterising evidence as flight – other explanations of flight – whether other explanations prejudicial – whether evidence ought to have been led in a modified form – whether jury properly directed as to use of evidence of flight – whether verdict unreasonable – direction in relation to circumstantial evidence – nature of circumstantial evidence available
EVIDENCE – application for leave to adduce evidence given by a defendant in earlier interlocutory hearing – where evidence to be adduced is an admission of defendant – relevant considerations for granting leave – where some defendants in current proceeding were not parties to earlier proceeding– whether the hearsay and/or opinion rules apply – where admission is tendered against third parties
(NSW) Evidence Act 1995, ss 81(1), 83 (1)
Criminal Law – Lies – Whether going to credibility or indicating guilt – Direction to jury – Proviso – Circumstances for application in strong Crown case.
Words and phrases – “consciousness of guilt”.
Negligence – Child injured by defendant’s car – Conversation with defendant prior to accident – Threat of retaliation by child’s father if child injured – Admissibility – Conversation with defendant subsequent to accident – Defendant accused of driving too fast – No reply – Admissibility – Whether wrongful admission of evidence justified new trial – Whether damages awarded excessive – Action for damages – General Rules of the Supreme Court (N.S.W.), O. XXII, r. 15.
Evidence – Hearsay rule – Previous representation by witness including alleged confession by accused – Whether entire previous representation could be admitted as prior inconsistent statement – Whether report of confession could be used to prove the truth of the alleged confession.
Evidence Act 1995 (NSW), ss 60, 137.
Criminal law – Conspiracy to murder – Alleged lies told by accused – Lies as corroboration – Direction to jury – Failure to direct that lies could not be used as corroboration of witness where evidence of same witness is used to establish the lie – Other evidence upon which jury could conclude accused was telling lies – No substantial miscarriage of justice – Application of proviso.
Criminal Law – Evidence – Hearsay – Exception to Hearsay Rule – Complaint of sexual assault – Prior complaint evidence – Whether complaint made when facts “fresh in the memory” of complainant.
Criminal Law – Evidence – Credibility – Exception to Credibility Rule – Whether evidence fabricated – Discretion to admit prior consistent statement – Factors affecting discretion.
Words and Phrases – “fresh in the memory”.
Evidence Act 1995 (NSW), ss 66, 108, 192.
Criminal Law – Evidence – Sexual offence – Corroboration – Lies by accused – When corroborative of complainant’s evidence – Directions to jury.
Negligence – Breach of duty – Canola seeds imported from New Zealand – Imported seed also contained weed seeds – Whether reasonably foreseeable that weeds would be declared prohibited plants by Western Australian Government with consequent financial loss to purchasers.
Practice and procedure – Federal Court – Proceedings under Federal Court of Australia Act 1976 (Cth), Pt IVA – Powers of Court to make “declarations of liability” – Interlocutory declaration of liability – Whether available and should have been made.
Evidence – Admissions – Civil proceedings for damages for negligence – Distinction between admission and apology – Availability of admission by party of mixed law and fact.
Appeal – Concession made at trial – Whether issue can be argued for first time on appeal.
Words and phrases – “declarations of liability”.
Criminal Law – Murder – Case for prosecution dependent on circumstantial evidence – Whether conviction improper unless circumstances inconsistent with any rational conclusion other than guilt.