CRIMINAL LAW – Appeal – Interlocutory appeal – Stay – Fair trial – Trial of alleged sexual offences – Delay – Alleged offending occurred nearly 40 years ago – Child complainant – Original complaint to police lost – Whether irremediable prejudice – Whether forensic disadvantage warning sufficient – No error in refusal of stay – Leave to appeal refused.
APPEAL AND NEW TRIAL – order for new trial – findings based on inadmissible evidence – whether unchallenged findings sufficient to determine liability without need for a retrial – inconsistencies between witnesses’ account of accident – whether inconsistencies can be resolved by appellate court – opportunity at trial to assess reliability of accounts on the basis of witnesses’ oral presentation
DAMAGES – assessment – whether allowance for lost earning capacity inadequate – whether allowance for future domestic assistance inadequate – whether trial judge erred in reduction for vicissitudes
EVIDENCE – admissibility – expert opinion evidence – evidence of traffic engineer that inconsistencies between two witnesses were different perceptions of the same event – whether opinion based wholly or substantially on specialised knowledge of the expert – extent of expert’s specialised knowledge – whether expert had any specialised knowledge in psychology – Evidence Act 1995 (NSW), s 79
TORTS – negligence – motor vehicle accident – unidentified vehicle(s) involved in accident – inconsistent accounts as to nature and actions of the unidentified vehicle – trial judge resolved inconsistency by finding there were two vehicles involved – whether evidence sufficient to determine what caused the accident – whether evidence sufficient to find there were two vehicles – whether evidence sufficient to determine the drivers of either of the unidentified vehicles were negligent
PRACTICE AND PROCEDURE – Overarching obligation not to make a claim or a response to a claim without a proper basis – Whether breached by solicitor for losing party – Liability of solicitor for wasted costs – Requirement that solicitor’s conduct be unreasonable – Briefing of experts – Preparation of witness statements – Investigation of factual basis for a claim – Discretionary considerations in wasted costs jurisdiction – Discretionary considerations under s 29 Civil Procedure Act – Whether solicitor entitled to benefit of a doubt because claims of client legal privilege not waived – Whether relevant privileged communication established – ss 18, 22, 23, 29, 42 Civil Procedure Act 2010 (Vic) – r 63.23 Supreme Court (General Civil Procedure) Rules 2005.
LEGAL PRACTITIONERS – Overarching obligation not to make a claim or a response to a claim without a proper basis – Whether breached by solicitor for losing party – Liability of solicitor for wasted costs – Requirement that solicitor’s conduct be unreasonable – Briefing of experts – Preparation of witness statements – Investigation of factual basis for a claim – Discretionary considerations in wasted costs jurisdiction – Discretionary considerations under s 29 Civil Procedure Act – Whether solicitor entitled to benefit of a doubt because claims of client legal privilege not waived – Whether relevant privileged communication established – ss 18, 22, 23, 29, 42 Civil Procedure Act 2010 (Vic) – r 63.23 Supreme Court (General Civil Procedure) Rules, 2005.
CONSUMER LAW – misleading or deceptive conduct, or conduct likely to mislead or deceive – whether sale of respondents’ glass cola bottle misleading or deceptive, or likely to mislead or deceive – meaning of “likely to mislead or deceive” – how test differs to claim for passing off – Competition and Consumer Act 2010 (Cth) Sch 2, ss 52 and 53.
TORT – passing off – whether sale of respondents’ glass cola bottle amounted to passing off – relevant date for determining applicant’s reputation where respondents’ impugned products removed from and later reintroduced into the marketplace – whether applicant’s had established reputation in shape, or outline or silhouette, of its glass cola bottle at the relevant date – whether consumers would make purchasing decision based on shape, or outline or silhouette, of glass cola bottle – whether respondents’ made representations to consumers through sales of its glass cola bottle that respondents’ business is associated with applicant’s business.
TRADE MARKS – shape marks – use as a trade mark – whether respondents using shape of their glass cola bottle, or outline or silhouette of glass cola bottle, as an indicator of trade origin – whether consumers educated to view shape of bottles of non-alcoholic beverages as indicator of trade origin generally – relevance of respondents’ intention in designing glass cola bottle to whether shape being used as indicator of trade origin – relevance of context of sale – where respondents also using word and device marks on glass cola bottle – deceptive similarity – whether signs used by respondents deceptively similar to applicant’s registered trade marks – alleged infringement of two dimensional marks by three dimensional objects – whether outline or silhouette of registered marks an essential feature or the dominant feature or the main idea of the marks – whether the outline or silhouette of the respondents’ glass cola bottle the “overall impression” given to consumers – relevance of respondents’ intention in designing glass cola bottle to deceptive similarity – Trade Marks Act 1995 (Cth) s 120.
Held: Application dismissed.
EVIDENCE – pre-trial application for exclusion of expert evidence – whether admissibility should be dealt with on an interlocutory basis by judge who may not be the trial judge – whether evidence complies with test for admissibility of expert opinion evidence – whether general discretion to exclude evidence should be exercised – pre-trial application for directions with regard to expert evidence – consideration of the role a judge should play in determining what evidence is presented
PRACTICE AND PROCEDURE – Evidence – objections to admissibility – procedural fairness and fair trial – objections allowed in part
NATIVE TITLE – application pursuant to s 84(5) of the Native Act 1993 (Cth) for joinder as respondents to a native title determination application – whether it was in the interests of justice for the applicants to be joined as respondents – whether the interests of the joinder applicants would be affected by a determination of native title over the claim area – whether the applicants have established a prima facie case
Held: it was in the interests of justice for the three applicants to be joined as respondents
CRIMINAL LAW – Conviction – Evidence – Opinion evidence – Lay opinion – Expert evidence – Ad hoc expert – Specialised knowledge based on training, study or experience – Basis rule – Identification – Identification evidence – Voice identification – Jury directions – Conduct of trial – Application for leave to appeal against conviction refused – Evidence Act 2008 , ss 76, 78 and 79.
CRIMINAL LAW – Sentence – Blackmail – Aggravated burglary – Armed robbery – Recklessly causing injury – Whether sentences manifestly excessive – Totality – Whether orders for cumulation excessive – Application for leave to appeal against sentence refused.
Evidence – Admissibility – Opinion evidence – Section 79(1) of Evidence Act 1995 (NSW) exception for evidence of opinion based wholly or substantially on specialised knowledge based on training, study or experience – Prosecution adduced evidence of anatomist regarding physical characteristics common to persons depicted in images – Whether opinion based wholly or substantially on specialised knowledge.
Words and phrases – “opinion rule”, “specialised knowledge”, “training, study or experience”, “wholly or substantially”.
Evidence Act 1995 (NSW), ss 76, 79.
EVIDENCE – admissibility – opinion evidence – worker exposed to asbestos dust during employment – admissibility of statements of workers alleging exposure to asbestos dust – whether identification of dust as asbestos inadmissible as opinion – whether evidence admissible as perception of a fact – whether evidence admissible as opinion based on specialised knowledge – Evidence Act 1995 (NSW), ss 76(1), 78, 79
TORT – joint tortfeasors – contribution between tortfeasors – worker sued statutory authority in negligence – statutory authority settled without admitting liability – statutory authority sought contribution from worker’s employer – whether statutory authority liable to worker – whether erroneous apportionment of liability – whether failure to consider relative culpability of parties – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2)
TORT – negligence – duty of care – statutory authority regulating stevedoring industry – worker exposed to asbestos dust when employed by a stevedore – worker not a registered waterside worker – whether statutory authority owed a duty of care to persons other than registered waterside workers – functions and powers of the statutory authority- breach of duty – whether evidence established breach – Stevedoring Industry Act 1956 (Cth), ss 7, 8, 17, 18, 28, 29, 33, 39, 41
EVIDENCE – admissibility – opinion; lay -whether lay opinion regarding positioning of a sign falls into the lay opinion exception s 78 Evidence Act 1995 (NSW)
CRIMINAL LAW – EVIDENCE – admissibility – lay opinion evidence – whether evidence of the opinion is necessary to obtain an adequate account or understanding of the witness’s perception of the matter or event.
CORPORATIONS – claim for breach of duties under financial services legislation as it applied at material times – whether respondents had reasonable basis for financial advice given – whether respondents made representations concerning appropriateness of advice or accuracy of finance applications that were misleading or deceptive or likely to mislead or deceive
CONTRACTS – whether respondents breached contractual duty to exercise reasonable care and skill in provision of financial advice – whether respondents owed duty to provide advice “as to the most suitable financial investments”
NEGLIGENCE – whether respondents breached duty to exercise reasonable care and skill in provision of financial advice
EQUITY – whether respondents obtained unauthorised benefit from financial advice relationship – whether respondents breached any contractual, tortious or equitable duty in connection with advice given or involvement in applicant’s purchase of property
EVIDENCE – expert opinion evidence – whether financial planner qualified to give expert evidence concerning duty of care issues and loss – relevance of expert evidence to matters in issue
DAMAGES – whether applicant is entitled to damages – extent to which any claimed loss and damages are attributable to respondents’ conduct – loss of opportunity claim – whether some claimed losses are outside statutory limitation period or otherwise affected by Civil Liability Act 2002 (WA)
EVIDENCE – whether documents “business records” – emails – whether expert valuations in documents admissible – whether asserted facts – whether documents produced by persons with specialised knowledge – not expert reports
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
LAND VALUATION AND COMPENSATION – Compulsory acquisition – Proposal for bypass road – Land used for agricultural purposes – Valuation according to highest and best use of land – Whether market value of land decreased because of bypass proposal – Whether land would otherwise have been used for quarrying and landfill – Planning panel recommended permit restrictions – Whether restrictions arose from bypass proposal – Pointe Gourde principle discussed – Land Acquisition and Compensation Act 1986 (Vic) s 43(1)(a).
APPEAL – Appeal limited to questions of law – Grounds of appeal in substance challenged findings of fact – Whether open to trial judge to make findings in question – Whether judge bound to make different findings – No error of law – Appeal dismissed – Land Acquisition and Compensation Act 1986 (Vic) s 89(2).
PRACTICE AND PROCEDURE – Trial – Final addresses – Directions to parties to file submissions in form of draft judgment – Plaintiff unrepresented – Whether procedurally unfair – No breach of natural justice – Procedure undesirable and not to be followed.
EVIDENCE – Opinion – Planning panel – What recommendations likely to have been made by panel if circumstances different – Proposed evidence from Planning Minister about likely outcome – No specialised knowledge – Opinion evidence inadmissible – Evidence Act 2008 (Vic) ss 76, 79.
ADMINISTRATIVE LAW – Appeal from decision of Victorian Civil and Administrative Tribunal – Declaration by Council that the dog of the appellant is a “restricted breed dog” – Declaration upheld by VCAT – Adverse findings made by senior member against expert witness of the appellant – Apprehended bias – No evidence – Inadequate reasons – Admissibility of purported expert evidence at VCAT – Leave to appeal granted – Appeal allowed – Matter remitted for rehearing.
ADMINISTRATIVE LAW – application for judicial review of decision of Minister for the Environment to approve a project to construct and operate a new open cut coal mine – whether the Minister took into account an alleged disclosure of sensitive information by the New South Wales Government in making his decision – whether the conditions attached to the approval were sufficiently certain – whether the Minister failed to take into account the impact of the project on the Tylophora linearis plant species – whether s 139(2) of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) is dependent on a jurisdictional fact – if a jurisdictional fact does exist, whether the jurisdictional fact is enlivened – if the jurisdictional fact is enlivened, whether the project is likely to have a significant impact on the Tylophora linearis plant species
EVIDENCE – whether direction under s 136 of the Evidence Act 1995 (Cth) should be made in respect of a submission made on behalf of the applicant to the Minister for the Environment in respect of the project – whether the direction is necessary to restrict inadmissible opinion evidence – whether the direction is necessary to restrict inadmissible hearsay evidence
DEFENCE FORCE – appeal from Restricted Court Martial against convictions for committing an act of indecency – circumstantial evidence – whether Judge Advocate erred in failing to give proper direction – admissibility of evidence based on inference drawn by witness from observed facts – whether substantial miscarriage of justice – meaning of “indecency” – appeal allowed – conviction quashed – retrial ordered
ADMINISTRATIVE LAW- apprehension of bias- application for disqualification of trial judge- evidentiary rulings- exchanges between bar and bench
DEFAMATION- plaintiff’s entitlement to “nail the lie”- use of evidence depends on admissibility- relevant to damages- giving of evidence itself a remedy
EVIDENCE- construction of s 76, s 78 and s 79 Evidence Act 1995 – whether unqualified plaintiff’s evidence of falsity of matter of expert opinion is admissible to prove its falsity or is limited to the plaintiff’s belief
Evidence – admissibility – whether opinions expressed were admissible – whether discretion to exclude should be exercised.
EVIDENCE – Admissibility – Documents and materials used by expert witnesses in the course of preparing expert opinions – Documents and materials provided to expert witnesses in the course of preparing expert opinions – Court’s discretion to exclude evidence – Evidence Act 2008 (Vic), ss 55, 56, 69, 76, 79, 135(c), 136 – Civil Procedure Act 2010 (Vic) ss 1, 8, 9, 49(3)(g).
Evidence – admissibility – whether opinions expressed were admissible – whether discretion to exclude should be exercised.
ACCIDENT COMPENSATION — Workplace accident — Impairment — Assessment — Medical Panel — American Medical Association Guides — Interpretation — Multilevel fractures of transverse process — Whether constituted ‘multilevel spine segment structural compromise’ — Whether Panel decision vitiated by jurisdictional error — Whether expert evidence admissible on question of construction of Guides — Appeal dismissed — Transport Accident Commission v Serwylo  VSC 421 applied — Accident Compensation Act 1985 (Vic) s 91(1) — American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed).
EVIDENCE — Expert evidence — Interpretation — Impairment assessment — American Medical Association Guides — Categories of spinal impairment — Whether technical terms — Whether used with specialised meaning — Whether expert medical evidence admissible to assist in construction of terms — Evidence Act 2008 (Vic) ss 55(1), 76(1), 79.
WORDS AND PHRASES — ‘As with fractures’, ‘fractures’.
CRIMINAL LAW – Ruling – Admissibility of a statement of additional evidence from a witness – Evidence vague, not sufficiently relevant and not a professional opinion – Evidence inadmissible – Criminal Procedure Act 2009 (Vic) s 188, Evidence Act 2008 (Vic) ss 55, 59, 76, 77, 79(1).
EVIDENCE – expert evidence – witness offering expert opinion – no adoption of Expert Witness Code – evidence not complying with r 31.27 UCPR – statement rejected
CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – judge-alone trial – procuring drug trafficking – intention to procure – conduct effective to procure – trafficking offence actually committed – verdict of guilty to be entered.
CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – procuring drug trafficking – presumption of required intention or belief for trafficking offence arising from transporting of traffickable quantity not available against accused who procured the transporting – Criminal Code 2002 (ACT), s 604.
CRIMINAL LAW – PARTICULAR OFFENCES – drug trafficking – whether a person who transports drugs on behalf of another person expecting payment for the delivery “sells” the drugs to the other person – whether if a person who transports drugs on behalf of another person “sells” the drugs to the other person, the other person is protected from liability for an offence arising from procuring the transporting of the drugs by reason of an intention to “buy” the drugs – Criminal Code 2002 (ACT), ss 600, 602, 605.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Courses of Evidence, Statements and Addresses – whether prosecution should be permitted to open on one analysis of the facts and close on another analysis – whether defence prejudiced in cross-examination.
CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – evidence of co-offender’s conviction for offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), ss 91, 178.
CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – opinion of person about legal significance of actions not evidence based on what person saw, heard or otherwise perceived about a matter or event – evidence of co-offender’s opinion whether he committed offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), s 78.
PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment – application for stay pending determination of application for leave to appeal or appeal – recovery of tax – challenge to decision of primary judge to refuse to stay the execution of a tax judgment while Part IVC appeal pending – whether sufficient prospects of success in appeal against the refusal of the stay to justify reconsideration by a Full Court – whether primary judge erred in holding that he could not determine the merits of the pending Part IVC appeal without speculating – whether there was evidence to support the finding – whether evidence called by the Commissioner should have been admitted and, if so, whether it was sufficient to support the decision – whether primary judge applied the wrong test for considering the merits – whether substantial prejudice would result if leave were refused
CRIMINAL LAW – environmental offences – s 118A(2) – Expert witness code – admissibility of expert reports – chain of possession – assumptions – construction of Final Determination of Scientific Committee – beyond reasonable doubt – reasonable certainty – s 194(1)(d) – foreseeability of harm
EVIDENCE – admissibility of an expert report – whether report relevant – whether expert opinion based wholly or substantially on an expert’s training, study or expertise -whether an expert has provided adequate explanations for opinions
1. By application dated 30 October 2012, the respondent sought interlocutory orders pursuant to rules 20.13 and 20.15 of the Federal Court Rules 2011 (Cth) for non-standard discovery of certain categories of documents. The application was supported by an affidavit of Mr Robert Tang filed 30 October 2012.
2. By a further application dated 4 December 2012, the applicants sought orders setting aside subpoenas issued on 9 November 2012 to Ernst & Young (a partnership) and on 27 November 2012 to Ernst & Young Law Pty Limited. That application was supported by an affidavit of Mr Christopher Michael Prestwich filed 4 December 2012.
3. The issue which gave rise to the respondent’s request for discovery and the issue of the subpoenas arose out of consideration by the forensic accounting expert engaged by the respondent, Mr Samuel of Sapere Research Group, of the “Offer Valuation Report” prepared by Mr Michael Potter, the expert engaged by the applicants. Each expert was retained to provide expert evidence in relation to the quantum of damages which might arise on the ultimate determination of the issues in this case.
4. For convenience I note that at the conclusion of the hearing of argument on these applications on 13 December 2012, the respondent indicated that it was content to obtain any documents sought in its application by way of an order for production from a party. The applicants indicated that they also considered that this was the preferable course.
TAXATION – application made under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand – whether there was a genuine dispute as to the claimed debt – whether the debt was “due and payable” under s 459E (1)(a) of the Corporations Act 2001 (Cth) – whether there was a statutory exception under s 105-50(3)(b) of Sch 1 of the Taxation Administration Act 1953 (Cth)
DAMAGES – leases and tenancies – whether there was a breach of contract – lock out by lessor – hotel – claim for damages for outstanding rent; repair and replacement of plant and equipment; repair and maintenance of hotel; and rent to end of term – defendant in default of various obligations including rent – plaintiff re-entered, occupied and took possession of the hotel – claim that defendant failed to maintain, replace, repair hotel – loss of bargain claim dismissed – referee claims – evidentiary difficulties – nature of lease obligations – was the defendant liable for any prior breach of the lease – observed items – claim for painting-head contractor – claim for costs of re-entry – cross-claim – repayment of security deposit – conversion – claim in respect of mini bus – interest – costs
PROCEDURE – various notice of motions – leave sought to rely on further affidavits – refusal of pleading amendment – refusal of the adjournment application – rejection of the tender
EVIDENCE – admissibility – expert evidence
EVIDENCE – Expert Evidence – Admissibility of engineer’s report in jury action for damages for personal injury – Whether expert has complied with expertise basis rule – Whether expert has complied with statement of reasoning rule – ss 76, 79 Evidence Act 2008 (Vic).
Rulings as to admissibility of proposed expert opinion evidence
CRIME – particular offences – insider trading – elements of offence – admissibility of expert opinion evidence to prove some elements
EVIDENCE – admissibility – expert opinion evidence – where relied upon to prove general availability and materiality of alleged inside information – whether general availability of information a matter of expertise – whether report adequately articulates connection between expertise and opinions stated
PATENTS – two appeals from decisions of delegate of Commissioner of Patents – opposition to grant of patent for bulk material transport container on multiple grounds – consideration of nature of appeals as hearings de novo
PATENTS – combination patent – novelty – whether invention was disclosed in prior art – application of ‘reverse infringement’ test – whether invention involved an inventive step – whether the combination of integers would have been an obvious solution to a person skilled in the art in light of common general knowledge – consideration of how a person skilled in the art would have interpreted and understood the prior art – time at which prior art is to be construed
PATENTS – disputed priority date – whether there was a ‘real and reasonably clear disclosure’ in the provisional specification – whether secret use before the priority date – whether use by inventor for reasonable trial and experiment only
EVIDENCE – consideration of admissibility and weight to be given to expert evidence where the expert witnesses are not independent
Evidence – admissibility – whether opinions expressed were admissible
Evidence Act 1995 s 55, s 76(1), s 79(1),
s 80(a), s 80(b)
EVIDENCE – Opinion based on specialised knowledge – Admissibility of evidence – Requirements of Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Evidence Act 2008 (Vic) ss 76, 79 and 55.
CONTRACT – Restraint of trade – Contract of employment – Post-employment restraint clause – Settlement agreement between the parties modifying the expiration date of the restraint period – Whether the respondent evinced an intention to not be bound by the settlement agreement – Whether the terms of the settlement agreement were otherwise breached – Applicant did not discharge burden of proof – Application dismissed.
COSTS – indemnity costs – offer of compromise – whether Dust Diseases Tribunal Regulation 2007 (NSW), Pt 6, only operates to the extent that it is not inconsistent with the Uniform Civil Procedure Rules – whether offeror had provided all documents necessary to enable the offeree to consider offer under the Uniform Civil Procedure Rules – whether offer was open for a reasonable time
EVIDENCE – admissibility – expert evidence – whether appropriate to consider all of the evidence to determine whether expert evidence should have been admitted – whether pathologist able to give evidence as to the causal connection between exposure to asbestos dust and lung cancer, given current state of medical knowledge
TORTS – causation – whether increase in risk can be equated with factual causation – whether liability requires satisfaction of the necessary condition test – whether open to Tribunal to accept pathologist’s opinion as to link between exposure to asbestos dust and lung cancer
EVIDENCE – Objections to competence of proposed expert witnesses – Whether evidence relevant – Whether witnesses lacked specialised knowledge – Whether independence required
CONTRACT – building engineering and related contracts – principal served notices to show cause for substantial breach on contractor– whether substantial breach of obligation under cl 30.1 to use the standard of materials or provide the standards of workmanship required by the contract – whether substantial breach of obligation under cl 30.3 to comply with superintendent’s directions – whether substantial breach of obligation under cl 33.1 to proceed with the work with due expedition and without delay – whether notices invalid because defective in content or form, wanting particulars, or being prolix and confusing – general conditions of contract AS 2124–1992, clauses 30, 33, 44.
CONTRACT – building engineering and related contracts – content of the contractual requirement of cl 33 to proceed with the works with due expedition and without delay – obligation to work to approved construction program – whether grounds for unapproved extensions of time relevant – general conditions of contract AS 2124–1992, clauses 33, 35.
CONTRACT – building engineering and related contracts – whether principal obliged to act reasonably in serving show cause notices – whether contractor failed to show reasonable cause why principal should not exercise a right under cl 44.4 to take the work remaining to be completed out of the hands of the contractor – principal’s obligations when evaluating response of contractor to a show cause notice – whether principal obliged to act reasonably in serving notice to take the works out of the hands of the contractor – general conditions of contract AS 2124–1992, cl 44.
CONTRACT – building engineering and related contracts – principal serves notices to take the works out of the hands of the contractor – whether principal repudiated contract.
CONTRACT – building engineering and related contracts – principal takes the works out of the hands of the contractor – principal completes the project works to an enhanced scope of works – principal served on contractor a costs to complete certificate – whether cost to complete certified a cost of the works provided for under the contract – whether costs to complete certificate final and binding or reviewable for error – whether principal entitled to common law damages in addition to debt due under certificate – where no claim made for liquidated damages – entitlement of principal to delay damages at common law – general conditions of contract AS 2124–1992, cl 44.
EVIDENCE – admissibility – opinion evidence – exception under s 79 – requirements for admissibility – Evidence Act 2008 (Vic) ss 55, 56, 76, 79.
PRACTICE AND PROCEDURE – expert evidence taken by concurrent evidence sessions following joint conclaves – late objection to admissibility of expert evidence – conditional admission of evidence – ruling reserved to judgment – whether good reason to defer ruling – circumstances include pre-trial case management of large proceeding by trial judge directed to preparation of expert evidence by concurrent evidence sessions following joint conclaves – Civil Procedure Act 2010 ss 8, 9, 49 – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 Order 3 Chapter II (Technology Engineering and Construction Cases) (TEC Rules) – Practice Note No. 2 of 2009 The Technology Engineering and Construction List.
“1. On 29 March 2012, an application by Centro Properties Limited and CPT Manager Limited (collectively CNP) supported by Centro Retail Limited, Centro MCS Manager Limited and Centro Corporate Services Pty Limited (collectively CER) for a limitation order under s 136 of the Evidence Act 1995 (Cth) (the Evidence Act ) in respect of certain parts of a number of “analyst reports” was dismissed. These are the reasons for that decision.”
Evidence – expert report – relevance of expert reports to issues in the proceedings – proof of assumption rule – whether underlying assumptions admissible as part of business records or as admissions
TAXATION – notices to furnish information issued by Deputy Commissioner pursuant to s 264(1)(a) of Income Tax Assessment Act 1936 (Cth) – notices directed to Australian bank – information sought in notices provided to bank from subsidiary in Vanuatu – information stored electronically in Australia – whether notices invalid – whether notices require bank to breach common law and statutory confidentiality obligations under Vanuatu law – whether s 264 authorises Commissioner to issue notices that infringe foreign sovereignty – whether notices were issued for a proper purpose – whether notices are uncertain – whether bank “not capable of complying” with notices within meaning of s 8C(1B) of Taxation Administration Act 1953 (Cth) – application dismissed
CRIMINAL LAW – appeal – conviction – unreasonable verdict – unsupported by the evidence – circumstantial evidence – circumstantial evidence to be considered as a whole -reasonable doubt on independent assessment of the evidence – jury advantage in hearing evidence insufficient to resolve reasonable doubt.
CRIMINAL LAW – appeal – conviction – identification evidence – probative value – “displacement effect” – appropriate directions – whether evidence of similar appearance is identification evidence. CRIMINAL LAW – appeal – conviction – expert evidence – identification and proof of assumptions by admissible evidence – qualification of expert – weight to be given to expert evidence.
CRIMINAL LAW – appeal – conviction – expert evidence – breach of Expert Witness Code of Conduct – whether breach of Expert Witness Code of Conduct goes to admissibility or weight – discretionary exclusion of evidence of expert who breaches Code of Conduct.
CRIMINAL LAW – appeal – conviction – evidence – admissibility – relevance.
CRIMINAL LAW – appeal – conviction – whether a conclusion of fact is an indispensable intermediate fact – need for a Shepherd direction – Shepherd direction not required.
CRIMINAL LAW – appeal – conviction – whether trial miscarried because of prejudice occasioned by the Crown prosecutor – prosecutor’s duty of fairness – whether prosecutor breached trial judge’s ruling – whether prosecutor invited jury to invert the onus of proof – whether prosecutor impermissibly gave personal opinions – whether prosecutor misrepresented evidence – whether prosecutor failed to adhere to case theory.
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – need for evidence of enterprise and participation by the accused.
CRIMINAL LAW – evidence – lack of evidence to support motive – dangers of inviting speculation as to motive – whether unfair prejudice occasioned.
CRIMINAL LAW – new and fresh evidence – evidence not disclosed by prosecution at time of trial.
EVIDENCE – admissibility – expert opinion – whether expert report shows conclusions reached were based on specialised knowledge – whether any reasoning process disclosed – whether in any event report should be rejected on discretionary grounds.
EVIDENCE – Expert evidence – valuation of land – valuer proffers valuation evidence based on differing assumptions as to whether representations made about subject property were or were not true – valuer said not to sufficiently disclose reasoning underlying opinion – reasoning sufficiently exposed to enable testing in cross-examination – valuer provides figure of ten percent as to effect of representations – no underlying reasoning to explain figure – does not necessarily mean not based on specialised training, knowledge, study or experience – evidence admissible.
(NSW) Evidence Act 1995 , s 56, s 76, s 79
EQUITY – equitable remedies – recoupment – trust – mortgaged real property settled on trust – settlor remained liable to lender on a loan agreement that was secured over property following settlement of that property on the trust – loans paid by trust – whether recoupment available to trustee from settlor – whether vis-à-vis settlor, obligation of trustee to repay loans was an ultimate or secondary obligation – recoupment refused.
EQUITY – equitable remedies – Rule in Milroy v Lord – perfection of incomplete gift of foreign land – whether transfer of land in Thailand and/or proceeds of its sale by Australian resident owner to an Australian resident trustee of a trust effectively completed by transferor – land being marketed for sale – death of trustee prior to sale – legal title remained with transferor – whether executors obliged in equity to complete the transfer – possession and title to land lost to adverse possessor prior to trial – relief refused.
EVIDENCE – claims against deceased estate – general requirement for scrutiny and caution – particular circumstances dictating a cautious approach discussed.
EVIDENCE – opinion evidence – valuation of land – methodology – direct comparison method using an unaccepted offer to sell or asking price – whether opinion admissible – Evidence Act 2008 s 76, 79.