Category Archives: s. 081

Suzlon Energy Ltd v Bangad [2014] FCA 1105 (15 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1105.html

ADMIRALTY – maritime fraud – breach of employee’s fiduciary obligation to not put himself in a position of conflict or to obtain a benefit without employer’s fully informed consent – fraudulent and dishonest conduct of employees and companies they controlled – use of interposed companies controlled by employees to carry employer’s or principal’s cargo at undisclosed inflated prices – employee without any disclosure of true position procuring related company of employer to guarantee charterparty obligations of employee’s company – employee causing secret commissions and profits to be paid into Swiss bank accounts in names of companies he controlled – whether transactions gave rise to equitable debt, resulting trust or justified imposition of constructive trust – where employee’s secret commissions and profits held by company he controlled as volunteer

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

http://www.austlii.edu.au/au/cases/cth/FCA/2014/625.html

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

Zomojo Pty Ltd v Hurd (No 5) [2014] FCA 537 (28 May 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/537.html

CONTEMPT OF COURT – failure to comply with court orders – whether charges of contempt proven beyond reasonable doubt – contravention of inter parte undertakings – aiding and abetting – whether breach enforceable in the proceeding

EVIDENCE – admissibility of affidavit material – dispensation of Rule 42.12(b) of the Rules – whether affidavit material contained admissions – whether deponents protected by privilege against selfincrimination

Fair Work Ombudsman v Valuair Limited [2014] FCA 404 (29 April 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/404.html

EVIDENCE – out of court statements contained in transcript of interview – applicant sought to admit parts of transcript into evidence as admission – mixed statement containing inculpating and exculpating representations – whether entirety of the record of interview should be admitted into evidence at the same time – entirety of transcripts admitted into evidence

Cairns v Trowelcoat Pty Ltd [2014] VSC 129 (28 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/129.html

ACCIDENT COMPENSATION – admission sought after receipt of workers compensation – whether acceptance of Workcover claim form founds request by the plaintiff that the defendant admit it has paid and continues to pay the plaintiff’s medical and like expenses – injury arising out of or in the course of employment – Accident Compensation Act 1985 ss 82(1) and 99(1).

Smart v Tasmania [2013] TASCCA 15 (23 December 2013)

http://www.austlii.edu.au/au/cases/tas/TASCCA/2013/15.html

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage of justice – Misdirection or non-direction – Misdirection – Reasonable doubt – Examination of doubt suggested.

Graham v R [2000] TASSC 153; (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191; Ladd v R [2009] NTCCA 6; (2009) 27 NTLR 1, followed.

Aust Dig Criminal Law [3466]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage of justice – Misdirection or non-direction – Non-direction – Conduct of accused after two crimes committed – Possible inference of consciousness of some wrongdoing – Edwards direction not given.

Edwards v R [1993] HCA 63; (1993) 178 CLR 193, distinguished.

Woon v R [1964] HCA 23; (1964) 109 CLR 529, referred to.

Aust Dig Criminal Law [3470]

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to the evidence – Appeal allowed – Evidence displaying inadequacy and lacking probative force – Murder – Circumstantial evidence – Guilty verdict open to jury only if unchallenged expert evidence rejected.

Shepherd v R [1990] HCA 56; (1990) 170 CLR 573; M v R [1994] HCA 63; (1994) 181 CLR 487; Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657; Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521; Morris v R [1987] HCA 50; (1987) 163 CLR 454; Chidiac v R [1991] HCA 4; (1991) 171 CLR 432, referred to.

Aust Dig Criminal Law [3475]

Peter Vitek & Anor v Estate Homes Pty Ltd & Ors [2013] NSWSC 1805 (30 October 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1805.html

EVIDENCE – whether evidence of a witness for the plaintiffs about what was said between himself and the first defendant in the presence of the third defendant is admissible against the third defendant given the fact that the plaintiffs did not intend to call the first defendant in their case

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

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

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

MIS Funding No 1 Pty Ltd v Buckley [2013] VSC 607 (15 November 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/607.html

CORPORATIONS – unregistered managed investment scheme – no prospectus – information memorandum offering investment only to limited classes of investors – representations made by investor – funds loaned to invest in scheme – whether defendant a “professional investor” – meaning of “control” – Corporations Act 2001 (Cth), ss 9, 708(11) (as enacted in the Financial Services Reform Act 2001 (Cth)).

Texxcon Pty Ltd & Anor v Austexx Corporation Pty Ltd & Ors [2013] VSC 327 (20 June 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/327.html

TRADE PRACTICES – Misleading or deceptive conduct – Representations as to present fact and future matters – Loan agreement – Representation that a loan could be “called up” at any time – Representation that funds in alternative facility could be drawn down to fund repayment of the loan – Whether a reasonable person would have understood representations as conveying that loan would be repaid immediately upon demand – Whether representations implied a capacity to repay – Failure to repay loan – Whether defendants had a reasonable basis for making representations – Whether representations misleading or deceptive – Whether plaintiffs induced to approve loan in reliance on the representations – Trade Practices Act 1974 (Cth), ss 51A, 52, and 82 – Fair Trading Act 1999 (Vic), ss 4, 9, and 159 – Krakowski v Eurolynx Properties (1995) 183 CLR 563 applied – Award of damages.

TRADE PRACTICES – Misleading or deceptive conduct – Accessorial liability – Involvement in contraventions – Knowledge – Trade Practices Act 1974 (Cth), s 75B – Fair Trading Act 1999 (Vic), s 145 – Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 applied.

CORPORATIONS – Director’s Duties – Non-executive directors – Care and diligence – Good faith – Proper purpose – Corporations Act 2001 (Cth), ss 180 and 181 – No breach of duty because company acting as agent not principal.

AGENCY – Joint venture – Whether nominee company merely agent for joint venture parties – Express denial of agency relationship in joint venture agreement and management agreement – Whether relationship was in truth one of principal and agent – Consideration of relevant principles – Relevance of control – Implied agency – Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (2013) 296 ALR 465.

EVIDENCE – Relevance of pleading in prior proceeding to assessment of credit – Court entitled to assume that the pleading reflects instructions given by the defendants to their legal practitioners – Requirement to put one’s name to a pleading reflects duty imposed on practitioners to be satisfied pleading has a proper basis – Unnecessary to consider whether pleading amounted to an admission – Evidence Act 2008 (Vic), ss 81 and 87 – Civil Procedure Act 2010 (Vic), s 18.

Cooper v Hobbs [2013] NSWCA 70 (9 April 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/70.html

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

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

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

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

Registrar of Aboriginal and Torres Strait Islander Corporations v Ponto [2012] FCA 1500 (24 December 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1500.html

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

McHugh v Australian Jockey Club Limited (No 13) [2012] FCA 1441 (19 December 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1441.html

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

Aged Care Services v Macedonian Aged Care [2012] NSWSC 531 (4 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/531.html

[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.

Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94 (20 March 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/94.html

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) [2012] 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 [1931] 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

DPP v Polutele [2011] VSC 223 (26 May 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/223.html

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 [1988] 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.

United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408 (8 December 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1408.html

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

Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086 (22 September 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1086.html

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

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

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

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

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

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

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

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

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

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

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

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

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

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

” admission means a previous representation that is:

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

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

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

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

Crossman v Taylor (No 3) [2011] FCA 734 (29 June 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/734.html

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.

JGM Nominees Pty Ltd & Ors v Australvic Pty Ltd (in liq) (No 3) [2010] VSC 623 (23 December 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/623.html

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.

Bell J
“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.”

Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331 (17 December 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/331.html

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.

Parker v Chief of Air Force [2010] ADFDAT 2 (29 November 2010)

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2010/2.html

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

Australian Securities & Investments Commission v Fortescue Metals Group Ltd [No 5] [2009] FCA 1586 (23 December 2009)

http://www.austlii.edu.au/au/cases/cth/FCA/2009/1586.html

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

Crawley v Short [2009] NSWCA 410 (16 December 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2009/410.html
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

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/769.html
EVIDENCE – admissibility and relevancy – exceptions to the hearsay rule – s 63 exception where maker of representation in a document is “not available to give evidence” – meaning of “available” – meaning of “attendance” – where person resident in a foreign country – whether availability of procedures under the Evidence on Commission Act is relevant to these questions – EVIDENCE – admissibility and relevancy – exceptions to the hearsay rule – s 81 exception for previous representation reasonably necessary to an understanding of an admission where the representation made “at the time the admission was made, or shortly before or after that time” – meaning of “shortly after” – WORDS AND PHRASES – “attendance” – “shortly after”

Evidence Act 1995, Part 2 clause 4(1) of the dictionary, ss 36(1), 59, 63, 64(1), 67, 68, 81(1), 81(2), 135(a)
Evidence (Audio and Audio Visual Links) Act 1998, ss 5B, 5C
Evidence on Commission Act 1995, ss 4, 6(1), 5, 8
Foreign Evidence Act 1994 (Cth), s 7
Interpretation Act 1987, s 12(1)(b)

Australian Securities and Investments Commission v Fortescue Metals Group Ltd [No 2] [2009] FCA 424 (29 April 2009)

http://www.austlii.edu.au/au/cases/cth/FCA/2009/424.html
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 [2004] FCA 1678 at [118]- [124].
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.

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1247 (24 November 2008)

[2008] NSWSC 1247

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

Daniel v Western Australia [2001] FCA 223 (14 March 2001)

[2001] FCA 223

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

Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794 (29 May 2007)

[2007] 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

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

[2008] FCA 369

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

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

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

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

Regina v Lodhi [2006] NSWSC 648 (11 May 2006)

[2006] NSWSC 648

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

DECISION:
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”.

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 657 (27 June 2008)

[2008] NSWSC 657

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

Butcher v Lachlan Elder Realty; Harkins v Butcher & Anor [2002] NSWCA 237 (28 August 2002)

[2002] NSWCA 237

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

R v Gao [2003] NSWCCA 390 (16 December 2003)

[2003] NSWCCA 390

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.

R v Rymer [2005] NSWCCA 310 (6 September 2005)

[2005] NSWCCA 310

CRIMINAL LAW AND PROCEDURE

EVIDENCE

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

HEARSAY

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

SENTENCE

TRIAL JUDGE MISINFORMED AS TO APPLICABLE MAXIMUM PENALTY

IMPOSITIONS IN EXCESS OF MAXIMUM

APPEAL AGAINST SENTENCE ALLOWED AND APPELLANT RESENTENCED

s59 Evidence Act 1995