Category Archives: s. 099

Stanley v Service to Youth Council Incorporated (No 2) [2014] FCA 644 (20 June 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/644.html

EVIDENCE – application to adduce tendency evidence – applicant made redundant while on maternity leave – sought to adduce evidence from another employee of the respondent who was made redundant while on maternity leave – whether significant probative value – whether reasonable notice given

R v Schofield [2013] ACTSC 247 (21 November 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/247.html

EVIDENCE – Admissibility – tendency and coincidence evidence – prior conduct – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101

TRIAL – Roles of judge and jury – tendency and coincidence evidence – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101

Rafferty v Time 2000 West Pty Limited (No 4) [2010] FCA 725 (13 July 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/725.html

TRADE PRACTICES – application for relief under s 87 of the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct – where applicants entered into agreements with second to fifth respondents for the sale of portable accommodation units – where fifth respondent was a natural person and second, third and fourth respondents were corporations associated with him – where fifth respondent made representations to first applicant that prototype portable accommodation unit was under construction in China

Held: application allowed – representations as to prototype materially contributed to applicants entering into agreements – the applicants’ entry into the agreements was sufficient to establish that they suffered loss or damage – the fifth respondent was liable as being “knowingly concerned” in the contravention under s 75B(1) of the Trade Practices Act 1974 (Cth).

TRADE PRACTICES – application for relief under s 87 of the Trade Practices Act 1974 (Cth) for breach of s 51AD – where applicants entered into agreements with second to fifth respondents for the sale of portable accommodation units – where no disclosure documents provided as required if the agreements were a franchise agreement under the Franchising Code of Conduct – whether the agreements or one or more of them was a franchise agreement or agreement to enter into franchise agreement under Franchising Code of Conduct – whether agreement granted the right to carry on the business of offering, supplying or distributing goods or services under a system or marketing plan substantially determined, controlled or suggested by the franchisor or an associate of the franchisor within clause 4(1)(b) of the definition of franchise agreement

Held: application allowed – agreements provided for matters such as a centralised bookkeeping and recordkeeping computer operation, the reservation to the franchisor of the right to screen and approve promotions, the prohibition of repackaging of products, suggested retail prices by the franchisor, a comprehensive advertising and promotional program by the franchisor, the division of a state into marketing areas, the establishment of sales quotas and the restriction on the sale of products without the franchisor’s consent – the fifth respondent was not liable as being “knowingly concerned” in the contravention under s 75B(1) of the Trade Practices Act 1974 (Cth).

TRADE PRACTICES – application for relief under s 159 of the Fair Trading Act 1999 (Vic) for misleading and deceptive conduct – where applicants entered into agreements with second to fifth respondents for the sale of portable accommodation units – where sixth respondent was a firm of solicitors and had prepared the relevant agreements – where the agreements or one or more of them had been held to be a franchise agreement and the disclosure obligations under the Franchising Code of Conduct had not been complied with – whether the sixth respondent had engaged in misleading or deceptive conduct by failing to advise the applicants that the Franchising Code applied.

Held: application dismissed – the applicants did not have a reasonable expectation that the sixth respondent would advise them on whether the Franchising Code applied – the sixth respondent owed a duty of confidence to the second to fifth respondents and the failure to disclose was not deliberate.

TRADE PRACTICES – application for relief under s 87 of the Trade Practices Act 1974 (Cth) for breach of s 51AD – where applicants entered into agreements with second to fifth respondents for the sale of portable accommodation units – where the agreements or one or more of them had been held to be a franchise agreement and the disclosure obligations under the Franchising Code of Conduct had not been complied with – whether the sixth respondent was “knowingly concerned” in the contravention of s 51AD under s 75B(1) because they drafted the agreements.

Held: application dismissed – the sixth respondent did not know all essential matters that made up the contravention because they did not know that the Franchising Code of Conduct applied to the agreements.

CONTRACT – claim for breach of retainer – where the second to fifth respondents had retained the sixth respondent to draft agreements relating to the sale of portable accommodation units – where the agreements or one or more of them had been held to be franchise agreements and the disclosure obligations under the Franchising Code of Conduct had not been complied with – whether the sixth respondent had adequately advised the second to fifth respondents as to Franchising Code of Conduct

Held: application dismissed – uncontradicted evidence that the sixth respondent had adequately advised the second to fifth respondents.

TRADE PRACTICES – application for relief under s 87 of the Trade Practices Act 1974 (Cth) for breach of s 51AD – where the agreements or one or more of them had been held to be franchise agreements and the disclosure obligations under the Franchising Code of Conduct had not been complied with – whether the second to fifth respondents could claim a contribution or indemnity from the sixth respondent by reason of s 75B(1) of the Trade Practices Act 1974 (Cth)

Held: application dismissed – s 75B(1) of the Trade Practices Act 1974 (Cth) does not enable the court to make orders for contribution or indemnity – the sixth respondent was not knowingly involved in the contravention of s 51AD for the purpose of s 75B(1) of the Trade Practices Act 1974 (Cth).

Evidence Act 1995 (Cth) ss 97, 99, 100

R v Harker [2004] NSWCCA 427 (2 December 2004)

[2004] NSWCCA 427

Criminal Law – Evidence – Tendency Evidence – failure to give notice – whether trial judge should have dispensed with notice requirementrs – whether evidence ought to be rejected in exercise of discretion.

Evidence Act 1995 – ss 38, 97(1), 99, 100(1), 101(2), 135, 137, 192, 195

Evidence Act Regulations – clause 6

State of Tasmania v P [2005] TASSC 32 (6 April 2005)

[2005] TASSC 32

Criminal Law – Jurisdiction practice and procedure – Information, indictment or presentment – Joinder – Of counts – By statute – Same facts or series of offences of same or similar character – Prejudice to the accused – Severance.

Tasmania v Farmer [2004] TASSC 104, referred to.

Aust Dig Criminal Law [722]

R v Fletcher [2005] NSWCCA 338 (23 September 2005)

[2005] NSWCCA 338

Criminal Law

Evidence

Prior Conduct

Tendency and Coincidence

Relevance

Principles to apply

Material to be considered

Time at which Judgment to be made

Exercise of discretion by trial judge

Common Law as a guide to Evidence Act

Weighing of probative value and prejudicial effect

Evidence Act 1995 , s.55, s.56, s.97, s.98, s.101, s.102, s.135, s.137, Dictionary

R v WRC [2002] NSWCCA 210 (7 June 2002)

[2002] NSWCCA 210

EVIDENCE – Circumstantial evidence – Coincidence evidence – Tendency evidence – Relationship evidence – Probative value and prejudicial effect – Contamination

CRIMINAL LAW – Appeal against conviction – Longman direction – Whether necessary – Whether adequate – Whether rule 4 leave should be granted.

Evidence Act 1995  ss.95, 97-101, 135, 137, 192.

Nye v State of New South Wales and ors [2002] NSWSC 1272 (4 September 2002)

[2002] NSWSC 1272

Evidence
Malicious prosecution
Malice
Police investigative team
Wilful blindness
Inducement to witness
Matters not specified in opening
Particulars limited – no reference to evidence sought to be adduced
Relevance – ambit
Policy of  Evidence Act 1995  in relation to relevance in civil cases
Evidence Act 1995 : ss 55, 56, 57, 98, 99

R v Giovannone [2002] NSWCCA 323 (14 August 2002)

[2002] NSWCCA 323

CRIMINAL LAW – appeal against conviction and sentence – perverting the course of justice – corruption – whether indictment bad in law – conduct which forms part of the course of justice – whether duplicity between the charges – whether the requisite mens rea and actus reus were open to the jury – summing up – EVIDENCE – admissibility – poor quality listening device recording – enhanced version of recording – whether enhanced copy is a ‘copy’ of a ‘document’ for the purposes of the  Evidence Act 1995  – purported transcript of recording admitted on the basis of being an aide-memoire – whether admissible to prove the contents of the conversation – relationship evidence – tendency and propensity evidence – suitable directions to be given to jury – SENTENCING – subjective factors – whether full-time incarceration was appropriate – cumulative sentences – objective seriousness.

R v Ellis [2003] NSWCCA 319 (5 November 2003)

[2003] NSWCCA 319

EVIDENCE – tendency and coincidence – criminal trial – admissibility – multiple counts on indictment – where trial judge admitted evidence of each offence as tendency and coincidence evidence in relation to all other offences – where trial judge applied  Evidence Act 1995  s 101 in terms – whether test in Pfennig v The Queen applicable – whether tendency and coincidence evidence admissible.