Category Archives: s. 005

Deputy Commissioner of Taxation, in the matter of ABW Design & Construction Pty Ltd v ABW Design & Construction Pty Ltd [2012] FCA 346 (4 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/346.html

CORPORATIONS – winding up – statutory demand – proof of service by post where registered office of corporation included a post code – where post code was obscured on envelope containing statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth) considered

Held: non-compliance with s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth)

EVIDENCE – presumptions pursuant to s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 and s 163 of the Evidence Act 1995 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – no evidence led as to when documents were delivered – proof of non-receipt

Held: presumptions rebutted

Goulding and Principal Member of the Veterans’ Review Board and Repatriation Commission (Party Joined) [2008] AATA 263 (2 April 2008)

http://www.austlii.edu.au/au/cases/cth/AATA/2008/263.html

VETERANS’ AFFAIRS – Veterans’ Entitlements – application for disability pension dismissed by Veterans’ Review Board – s 155AA notice sent to applicant – whether notice given to the applicant – notice not sent to applicant’s residential address – notice sent to an alternate address which applicant requested correspondence to be sent – notice not given to applicant – decision set aside

Evidence Act 1995 (Cth) ss 4, 5, 163

R v BURNS & ORS (No 6) No. SCCRM-99-85 [2000] SASC 10 (28 January 2000)

http://www.austlii.edu.au/au/cases/sa/SASC/2000/10.html

Criminal law (Cth) – voir dire hearing – evidence of certain conversations of the accused, procured by means of listening devices – difficulty in discerning some of the detail of the spoken content of certain of the tape recordings – settled written transcripts of all of the admissible material of the relevant recorded conversations prepared by prosecution – consideration of evidentiary status, if any, of the transcripts in question – whether transcripts in question should be made available to the jury other than whilst the related tapes are actually being played over in court in the course of evidence – whether transcripts ought to be taken by the jury into the jury room whilst deliberating – whether permitting the jury to take the transcript into the jury room whilst deliberating would result in a situation in which the written transcripts may influence the deliberations of the jury in a way which was out of all proportion to their real weight – whether in practical terms, this could produce a situation in which the transcript might be regarded as in some way unduly strengthening what would otherwise be the purely oral/audio material and the oral evidence – consideration of proper exercise of judicial discretion in circumstances. IN GENERAL Criminal law (Cth) – voir dire hearing – evidence of certain conversations of the accused, procured by means of listening devices – difficulty in discerning some of the detail of the spoken content of certain of the tape recordings – settled written transcripts of all of the admissible material of the relevant recorded conversations prepared by prosecution – consideration of evidentiary status, if any, of the transcripts in question.

“Status of transcripts

13 In considering the issue advanced by the accused it is necessary, at the outset, to direct attention to the evidentiary status, if any, of the transcripts here in question.

14 As appears from the judgment in Eastman v The Queen (1997) 76 FCR 9, transcripts of this type will attract the provisions of s 48 (1) (c) of the Evidence Act 1995 (Cth) in certain cases. However, this provision is not applicable in the instant case, by reason of ss 4 and  5  of that statute. It operates only in relation to proceedings in a federal court or in an ACT court; and also certain specified types of proceedings in other Australian Courts. This is not a proceeding of that class.

15 The status of the transcripts therefore falls to be determined by reference to the principles of the common law.”

SZHFW v Minister for Immigration & Anor [2006] FMCA 86 (10 February 2006)

[2006] FMCA 86

MIGRATION – RRT decision – failure to respond to invitation for additional information – validity of invitation – date when invitation received – effect of invalidity of Reg.5.03 – jurisdictional error in failure to appoint a hearing – four years unexplained delay in seeking judicial review – relief refused.

Evidence Act 1995 (Cth)  ss.5 , 160(1)

GREENWOOD -v- THE SHELL COMPANY OF AUSTRALIA LIMITED & ANOR [2005] WADC 203 (31 October 2005)

[2005] WADC 203
WA District Court

Tort – Causation – Electric shock – Pre­existing vulnerabilty to psychiatric illness – Competing causes of psychiatric injury – Onus of proving causation – Loss of earning capacity – No deduction for contingencies arising from pre­existing vulnerability – Judicial notice – Industrial award

Evidence Act 1995 (Cth), s 5, s 143(1), s 143(2)

Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354 (10 December 2007)

[2007] NSWCA 354

EVIDENCE – presumption of delivery in course of post – relationship of Evidence Act 1995 (Cth) to other Acts – Evidence Act 1995 (Cth), ss 160 and 163

NOTICE – service by post – letter from Commonwealth agency – evidence of non-delivery or non-receipt – Acts Interpretation Act 1901 (Cth) s 29 – Income Tax Assessment Act 1936 (Cth) s 222AOF – Evidence Act 1995 (Cth) ss 160 and 163

TAXATION – liability for failure to remit tax withheld from salary entitlements – Income Tax Assessment Act 1936 (Cth) s 222AOE

WORDS & PHRASES – “contrary intention” in statute – “give”, “serve”, “send” a notice – “sending it by post”

[<i>Evidence Act</i>] 1995 (Cth), ss 4, 5, 160, 163, 182

Bodnar v Townsend [2003] TASSC 148 (23 December 2003)

[2003] TASSC 148

Banking and Finance – Non-bank financial institutions – Miscellaneous – Duties of confidentiality – Credit union.

Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, referred to.

Aust Dig Banking and Finance [125]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Particular cases – Credit union statements – Breach of duty of confidentiality.

Evidence Act 2001  (Tas), s138(1).

Aust Dig Criminal Law [424]

Faustin Epeabaka v Minister for Immigration & Multicultural Affairs [1997] FCA 1413 (10 December 1997)

http://www.austlii.edu.au/au/cases/cth/FCA/1997/1413.html

MIGRATION – judicial review – Refugee Review Tribunal – nature of proceedings before Tribunal – burden of proof – obligation to rationally consider probative evidence

EVIDENCE – whether Refugee Review Tribunal is a court for purposes of the  Evidence Act 1995  (Cth) – effect of ss 8 and 9

Evidence Act 1995  (Cth) ss 8(1), 9(1), 150

Finkelstein J
In clauses 9(1) and (2) of Pt 2 of the Dictionary “a law of the Commonwealth” is defined to be a written or unwritten law of the Commonwealth and an “Australian law” (which according to the definition in Pt 1 includes the law of the Commonwealth) is also defined to be a written or unwritten law.

Most of the limbs of each definition of federal court and Australian court refer to an actual court. They can have no application to the Tribunal for in no sense is it a court. But each definition includes as a court a body that is not in fact a court. It is to these parts of the definitions to which I must now refer.

The Tribunal will be an Australian court if it is “a body that, in exercising a function under an Australian law, is required to apply the laws of evidence “and it will be a federal court if it is a body that “in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.” However, the Tribunal is not such a body because s 420(1) of the Migration Act provides that the Tribunal is “not bound by … rules of evidence”. This is sufficient to take the Tribunal outside those limbs of the definition of Australian court and federal court just mentioned.

In arriving at this conclusion I have ignored the difference in language between s 420(1) which provides that the Tribunal is not bound by the rules of evidence and the definitions which refer to a body that is required to apply the laws of evidence. I do not regard this difference in expression as material. Each expression is apt to refer to the same subject namely matters that are or are not admissible in a proceeding and the method by which those matters are placed before a decision-maker: see Sopinka Lederman & Bryant, “Laws of Evidence in Canada” (1992 Butterworths) at p 1, and Halsbury’s Laws of England (4th ed) vol 4 para 1.

Further, I do not regard the fact that the Tribunal is obliged to observe certain rules that are sometimes called rules of evidence as affecting my conclusion. The rules that I have in mind are the various privileges that may be relied upon to exclude evidence being led before the Tribunal. The privileges are legal professional privilege, the privilege against self incrimination and what was once referred to as Crown privilege but is now known as public interest immunity. While each of these privileges is commonly regarded as part of the rules of evidence, they have application to a proceeding before the Tribunal not because they are rules of evidence but because they are fundamental principles of the common law that are capable of being exercised not only in curial proceedings but in administrative and investigative proceedings as well: see Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 with regard to legal professional privilege, Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 and Controlled Consultants v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385 with regard to the privilege against self incrimination and Science Research Council v Nasse [1980] AC 1028 and Middendorp Electric Co Pty Ltd v Law Institute of Victoria [1994] 2 VR 313 with regard to public interest immunity.

The result is that the Tribunal does not fit within any limb of the definition of federal court. However, the Tribunal is a body that is authorised by an Australian law, the Migration Act, to hear, receive and examine evidence: see the discussion of the powers and functions of the Tribunal earlier in these reasons. It follows that the Tribunal is an Australian court in accordance with para (e) of the definition of that court.

But it does not follow from the fact that the Tribunal is an Australian court that proceedings before it are governed by the tabled provisions in s 5(1). The effect of s 8(1) of the Evidence Act must be considered. Section 8(1) is one of a number of provisions in Pt 1.2 which are concerned with the application of the Evidence Act. The subsection provides that the Evidence Act does not affect the operation of the provisions of any other Act. The question thus raised is whether s 8(1) prevents the tabled provisions in s 5(1) having application to proceedings before the Tribunal.

The scope of operation of s 8(1) is not clear. There will be no difficulty in applying the sub-section in the case where a provision of the Evidence Act is directly inconsistent with the provision of some other enactment. In that event the provision of that other enactment will prevail. But what if there is no direct inconsistency. Some indication of how s 8(1) is to operate in that circumstance may be gathered from s 9(1) which provides that:

“For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.”

When s 8(1) and s 9(1) are considered together the legislative intention that is disclosed is that where a court, whether it is an Australian court or a federal court, is not required to observe the rules of evidence the Evidence Act will not operate so as to impose that obligation. Here again reference should be made to s 420(1) of the Migration Act which provides that the Tribunal is not bound by the rules of evidence. If a proceeding before the Tribunal was governed by ss 150 the Tribunal would be required to receive a particular document as part of the evidence in a proceeding before it when it would not be required to do so if s 420(1) was the sole provision that applied. Thus there is, in a general sense, an inconsistency between the two provisions. It follows, in my opinion, that s 8(1) renders s 5(1) inapplicable to proceedings before the Tribunal.

Scope Data Systems Pty Ltd v David Goman as Representative of the Partnership BDO Nelson Parkhill [2007] NSWSC 278 (18 April 2007)

[2007] NSWSC 278

CORPORATIONS – Statutory demand – Service of documents – Application to set aside or vary statutory demand on grounds of offsetting claim by post – Whether application to set aside made within 21 days of service of statutory demand – Service of statutory demand under s 109X (CTH) Corporations Act – Where mail addressed to registered office diverted to post office box – Where evidence rebuts presumption in s 29 of (CTH) Acts Interpretation Act that statutory demand served in the ordinary course of post – Applicability of s160 of the (NSW) Evidence Act – Section 160 of the (NSW) Evidence Act not displaced by s 109X of (CTH) Corporations Act and s 29 of the Acts Interpretation Act (Cth) – No presumption that statutory demand received in post office box on fourth working day after posting where that was not the specified address – Whether receipt in post office box effective as service at registered office – Whether possible to rebut presumption of delivery in ordinary course of post if mail diverted to post office box – Held demand not served until taken to registered office after being collected from box – Plaintiff’s application to set aside statutory demand filed and served within time prescribed by s 459G (CTH) Corporations Act – Offsetting claim genuine.

Repatriation Commission v Goulding [2008] FCA 1858 (9 December 2008)

[2008] FCA 1858

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether either s 160 or s 163 of the  Evidence Act 1995  creates a presumption of receipt of notice – misapprehension as to correct law – what constitutes “effective service” under s 28A of the Acts Interpretation Act 1901 – what constitutes the giving of written notice in accordance with s 155AA of the Veterans’ Entitlements Act 1986 (Cth)

PRACTICE AND PROCEDURE – appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether notice of appeal complies with the requirements of Order 53 rule 3 of the Federal Court Rules – what constitutes a question of law

Evidence Act 1995 ss 5, 160, 163

Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534 (2 June 2005)

[2005] NSWSC 534

MENTAL HEALTH – guardians, committees, administrators, managers and receivers – appointment by Queensland Supreme Court of Protective Commissioner as manager of part of a person’s estate – procedural irregularities in circumstances in which appointment made – whether order recognised as a valid order in Queensland – whether order recognised as a valid order elsewhere in Australia – MENTAL HEALTH – effect of mental illness or disability on civil rights and duties – effect of appointment of Protective Commissioner as manager of part of a person’s estate on that person’s ability to give a power of attorney – steps Protective Commissioner should take when a power of attorney has been given by such a person – JUDGMENTS AND ORDERS – orders of a superior court of a law district – treated as valid within that law district unless and until set aside – effect on validity of superior court acting beyond jurisdiction – effect of court mis-stating the source of its authority to make an order – effect of full faith and credit provision in section 185  Evidence Act 1995  (Cth) on interstate recognition of a judgment – EVIDENCE – full faith and credit provision in section 185  Evidence Act 1995  (Cth) – meaning of “full faith and credit” – whether section 185 has substantive effect or only evidentiary effect – STATUTES – construction – grant of jurisdiction to superior court – STATUTES – construction – procedures to be followed by a court in exercising the jurisdiction conferred upon it by a statute – PRACTICE – jurisdiction – effects of conferral of jurisdiction by Jurisdiction of Courts (Cross-Vesting) Act 1987 of the various States upon the jurisdiction of the Supreme Court of other States and Territories

Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1998] FCA 1655 (22 December 1998)

http://www.austlii.edu.au/au/cases/cth/FCA/1998/1655.html

PRACTICE AND PROCEDURE – Discovery – Client legal privilege – Statutory protection for communications prepared for dominant purpose of providing legal advice or services in connection with litigation – Evidence not to be adduced – Whether extends to ancillary processes such as discovery and inspection – Construction – Whether in area not covered by statute common law sole purpose test modified by analogy with statute – Rules of Court – Court not to make order for production unless satisfied that order necessary – Whether proper exercise of power to exclude documents from production solely because they meet dominant purpose test.

“Section 5  provides for certain provisions of the Act (not including ss 118 and 119) to apply to all proceedings in “an Australian court”. It is unnecessary for present purposes to outline those provisions other than to say that, in general, they relate to formal, rather than substantive, evidentiary matters.”