http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1118.html
PRACTICE AND PROCEDURE – subpoena to non party – claim for legal professional privilege and common interest privilege – onus of establishing matters relevant to either claim – whether either claim made out
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1092.html
PRACTICE AND PROCEDURE – subpoena to non party – claim for legal professional privilege and common interest privilege – onus of establishing matters relevant to either claim – whether either claim made out
http://www.austlii.edu.au/au/cases/cth/FCA/2012/242.html
CONTRACTS – employment contract – implied term of mutual trust and confidence and/or good faith discussed – incorporation of employer’s policies and procedures discussed – whether employment of employee via a subsidiary company was a sham
DEFAMATION – qualified privilege – reply to attack
HUMAN RIGHTS – discrimination – allegations of sexual harassment – jurisdiction of the Federal Court – some alleged conduct occurred in New Zealand – whether Sex Discrimination Act 1984 (Cth) has extraterritorial effect – vicarious liability – workplace participant
TORTS – injurious falsehood – whether damage to trade or business of an employee
http://www.austlii.edu.au/au/cases/act/ACTSC/2011/204.html
CRIMINAL LAW – trial by judge alone – incest – act of indecency – assault – alternative count of maintaining a sexual relationship with a young person – admissibility of statement of deceased mother of complainant – admissibility of evidence of other sexual activity of complainant – accused guilty on five counts – alternative count not considered.
Evidence Act 1995 (Cth) ss 51(1), 62(1), 65(2), 66(2), 108, 142(1)
http://www.austlii.edu.au/au/cases/vic/VSC/2011/453.html
LEGAL PRACTITIONERS – Application to appoint a receiver to a law practice – Deficiencies in trust account – Practitioner unable to remedy deficiencies – Receiver appointed – Legal Profession Act 2004 (Vic) Part 3.3 and Chapter 5.
http://www.austlii.edu.au/au/cases/cth/FCA/2011/338.html
CONTEMPT OF COURT – respondent gave undertakings to the Court not to withhold consent to assignment of its franchises on a certain basis – whether respondent contravened undertakings – general principles applicable to determination of a charge of civil contempt – what constitutes an “assignment” for the purposes of undertakings – whether consent to assignment “withheld” where no request to assign made but respondent indicated that consent to assignment would not be given – whether change of directors constitutes an assignment of franchise for purposes of undertakings in circumstances where franchise agreement deemed such a change to constitute an assignment – not an assignment for the purposes of undertakings
EVIDENCE – admissibility of documents exhibited to affidavit – whether documents exhibited to affidavit are what they purport to be – authenticity of documents – whether admissible as business records – reliance on other evidence to support contention that documents exhibited to affidavit are what they purport to be – documents admissible as business records
Words & phrases: “assignment”, “withhold consent”
Evidence Act 1995 (Cth), s 48(1), s 55(1), s 58(1), s 69, s 142 and s 183
http://www.austlii.edu.au/au/cases/act/ACTSC/2010/145.html
ADMISSIBILITY OF EVIDENCE – admissions made by accused’s partner – whether representations made by accused’s partner can be considered to be the admissions of the accused.
ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence improperly obtained by interviewing officer – section 85(2) of the Evidence Act 1995 (Cth) application to exclude admissions made unless the circumstances of making the admissions are such that it is unlikely that the truth is adversely affected – application dismissed.
Evidence Act 1995 (Cth), ss 85, 87, 88, 135, 137, 138, 138(2), 139(2), 142
http://www.austlii.edu.au/au/cases/vic/VSCA/2010/173.html
CRIMINAL LAW – Applications for leave to appeal against two interlocutory decisions – Two evidentiary rulings concerning admissibility of certain DNA evidence in murder trial – Consideration of s 297 of Criminal Procedure Act 2009 (Vic) – Whether leave to appeal should be given – Merits of appeal relevant to giving of leave – Onus of proof in exercise of judicial discretions under Evidence Act 2008 (Vic) – Applications for leave refused.
TRADE PRACTICES — restrictive trade practices — appeal against finding that union was liable as an accessory under s 76(1) of Trade Practices Act 1974 (Cth) to company’s contraventions of ss 45E and 45EA — whether primary judge erred in finding contract, arrangement or understanding between company and union contravened s 45E — whether primary judge erred in drawing certain inferences — whether primary judge erred in finding alternative case of Australian Competition and Consumer Commission made out — whether primary judge erred in finding union had knowledge of all elements required by s 45E(3)
TRADE PRACTICES — restrictive trade practices — proper construction of s 45E(3) of Trade Practices Act — whether ‘purpose’ for the inclusion of a provision is objective or subjective — whether ‘purpose’ to be common intention of parties — whether ‘purpose’ must be the only purpose or an operative purpose — whether union can be liable as an accessory to a corporation’s contravention of s 45E(3) — whether ‘second person’ must be a particular identified person — whether sufficient to identify a class of persons
TRADE PRACTICES — appeal against pecuniary penalty imposed on union for accessorial liability — whether pecuniary penalty excessive — standard of proof for pecuniary penalties under s 76
WORDS AND PHRASES — ‘purpose’
Evidence Act 1995 (Cth) ss 140, 140(2)
CRIMINAL LAW
Admissibility of accused’s interview with police
voir dire
whether accused was threatened
state of affectation by alcohol, drugs and depression
whether failure by police to comply with cl 28
Evidence Act 1995, ss 84, 85, 90, 138, 142, 189
DECISION:
Tender of interview allowed
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”.
CRIMINAL LAW – appeals – appeal against conviction – murder – trial by judge alone – role of Court of Appeal – causation – whether death of deceased caused by act of appellant – where more than one possible cause of death – where constitutional defect – admissibility of admissions – confabulation – reliability of admissions.
Evidence Act 1995 s 85, 85(2), 86, 90, 135, 136, 137, 142, 189(3)
CRIMINAL PRACTICE & PROCEDURE
Jurisdiction where issue is one of admissibility of evidence
Invalidity of Listening Device warrant
Admissibility of conversations recorded under invalid warrant
Evidence Act, 1995 – s138; s142
PRIVILEGE IN RESPECT OF SETTLEMENT NEGOTIATIONS – meaning of ‘in connection with’ and ‘attempt’ in s 131(1) of the Evidence Act
Evidence Act 1995 (Cth) s 131, 133, 142
Evidence – public interest immunity – exclusion of matters of State – public interest in protecting confidential and restricted Aboriginal knowledge – public interest in not denying access to relevant evidence in the administration of justice - Evidence Act 1995 (Cth), s 130
Constitutional Law – inconsistency – whether State law prohibiting the divulging of Aboriginal tradition in contravention of Aboriginal tradition inconsistent with the Commonwealth Evidence Act – Commonwealth Constitution s 109
Constitutional Law – whether laws of the Commonwealth otherwise provided – s 35 of the Aboriginal Heritage Act 1983 (SA) and Commonwealth Evidence Act – Judiciary Act 1903 (Cth), s 79
Evidence Act 1995 (Cth), ss 4, 8(1), 12, 48(4), 56(1), 130, 135, 142
APPEAL – nature of and approach to appeals in Federal Court – consideration of what constitutes ground of appeal – whether appropriate for parties to invite Court to re-hear matter ab initio – appeal is by way of re-hearing not trial de novo – task of appellate court is correction of error at first instance – need for parties to clearly demonstrate error – conclusions of trial judge given appropriate weight in determining whether error has been made
EVIDENCE – whether evidence is excludable where trial judge has taken it into consideration when objection not taken at first instance – expert evidence – admissibility of expert evidence – distinction between admissibility and ultimate weight – role of expert evidence in Federal Court hearings – whether marketing is considered an area of expertise – whether expert can give evidence on matters of common experience – where party failed to cross-examine expert witness on evidence and subsequently raised objection to it on appeal
TORT – passing off – characteristics of a valid cause of action – action designed to protect trader’s goodwill – whether requirement for actual, subjective intention to mislead – only likelihood of confusion of prospective purchaser need be proven – totality of the conduct of alleged deceiver to be considered – whether get-up distinctive of respondent’s product – whether appellant’s get-up would lead potential purchasers to believe appellant’s product was associated with the respondent – role of `gestalt’ in determining passing off – whether deliberate copying of rival’s get-up – whether get-up designed to “sail as close as possible to the wind” – where identical shades of blue, silver and red and diagonal thrust are features of both products’ get-up
TORT – joint tortfeasor – whether managing director procured or directed tort by corporation – where managing director not a `one man company’
TRADE PRACTICES – misleading and deceptive conduct – designed to protect consumers- whether conduct was misleading or deceptive or likely to mislead or deceive – whether managing director knowingly concerned in misleading and deceptive conduct of corporation when closely, as distinct from, remotely associated with conduct – whether injunctive relief can be sought against managing director of infringing corporation
Evidence Act 1995 (Cth) ss 56, 57, 76, 79, 80, 135, 142
EVIDENCE [130] – Documentary evidence – Secondary evidence – In general – Computer hard disk containing a copy of a copy of a copy of a relevant computer file.
Evidence Act 1995 ss 48(4), 57, 142
Customs and excise – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Standard of proof required in order to obtain convictions for offences against specified provisions of Customs Act 1901 (Cth) and Excise Act 1901 (Cth).
Practice and procedure – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Whether standard of proof a matter of “practice and procedure” in the context of s 247 Customs Act 1901 (Cth) and s 136 Excise Act 1901 (Cth) – Whether standard of proof within contemplation of rules governing “commencing, prosecuting or proceeding with” a prosecution – Whether statutory averment provisions affect question of standard of proof.
Federal jurisdiction – Supreme Court exercising federal jurisdiction in respect of “Customs prosecutions” and “Excise prosecutions” under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Whether s 79 Judiciary Act 1903 (Cth) “picks up” any State law prescribing standard of proof to be applied – Whether s 80 Judiciary Act 1903 (Cth) applies to direct attention to common law principles.
Criminal law – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Standard of proof – Common law requirements where conviction sought for offence against a law of the Commonwealth – Significance of orders sought in prosecution proceedings – Meaning of “conviction” – Relevance of penal consequences of prosecutions to issue of whether proof beyond reasonable doubt necessary.
Words and phrases – “Customs prosecution”, “Excise prosecution”, “recovery of penalties”, “usual practice and procedure”, “commenced prosecuted and proceeded with”, “conviction”.
CRIMINAL LAW – trial by judge – murder – intentionally wound – self defence – whether accused believed that his actions were necessary in order to defend himself and that he had reasonable grounds to hold that belief.
EVIDENCE – hostile witness – prior inconsistent statement – Evidence Act 1995, ss 38, 60.
EVIDENCE – availability of witness – whether all reasonable steps had been taken to secure attendance of a witness - Evidence Act 1995 , s 65.
EVIDENCE – availability of witness – whether witness not competent to give evidence about fact - Evidence Act 1995 , s 65
Evidence Act 1995 (Cth), ss 13, 65, 67, 135-147, 192, cl 4 Part 2 of the Dictionary
CRIMINAL LAW – evidence – confessions – official questioning – no caution administered after formal arrest – earlier caution at search - Evidence Act 1995 (Cth), s 139, Crimes Act 1914 (Cth), s 23F.
CRIMINAL LAW – evidence – confessions – official questioning – where recording facilities available confession inadmissible unless recorded – parts of questioning not recorded – separate periods of questioning – Crimes Act 1914 (Cth), s 23V.
CRIMINAL LAW – evidence – confessions – official questioning – whether truth of confession adversely affected - Evidence Act 1995 (Cth), s 85.
CRIMINAL LAW – evidence – confessions – official questioning – unfairness discretion – Evidence Act 1995 (Cth), s 90.
Evidence Act 1995 (Cth), s 85, s 90, s 135, s 138, s 139, s 142
Practice and Procedure – commercial litigation – unrepresented parties – non-English speaking – proper advice and assistance from Court -
Evidence – tender of Business records by plaintiff bank – admissibility – Need to prove authenticity of records - Evidence Act 1995 .
Evidence Act 1995 ss 48(1), 48(1)(6), 55(1), s 7(1), 59(1), 69(1), 69(2), 81(1) 142(1), 144(1) (6), 152, 166, 168 and 169.
EVIDENCE – pre-trial application – voir dire – admissibility of admissions – Evidence Act 1995 (Cth), s 189; Court Procedures Rules 2006 (ACT), rr 4752, 4753, 4737 – first admission influenced by violent and oppressive conduct – Evidence Act 1995 (Cth), s 84 – whether second admission influenced by prior inadmissible admission.
EVIDENCE – proper procedure when questioning a young person – Children and Young People Act 1999 (ACT), s 79; Crimes Act 1914 (Cth) s 23K – failure to provide time for suspect to confer with ‘interview friend’.
EVIDENCE – admissibility of admissions – Crimes Act 1914 (Cth), s 23V – proper procedure when questioning – failure to tape-record questioning when practicable to do so – contrary to the interests of justice to admit such evidence – vulnerability of the suspect – guidelines for police questioning.
EVIDENCE – admissibility of taped interview – discretion to exclude – Evidence Act 1995 (Cth), s 90 – factors considered – period of remand – Crimes Act 1914 (Cth), s 23C –allowable discounted time – alleged failure to provide sleep and food to suspect – alleged prejudice due to conduct of suspect’s lawyer – seizure of clothes.
EVIDENCE – whether prior questioning formed part of later questioning.
Evidence Act 1995 (Cth), ss 75, 84, 85, 90, 135, 137, 138, 142(1), 189