Category Archives: s. 076

Love v Roads Corporation [2014] VSCA 30 (6 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/30.html

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.

Gray v Brimbank City Council [2014] VSC 13 (6 February 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/13.html

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.

Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 (20 December 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/1419.html

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

McLaren v Chief of Navy [2013] ADFDAT 5 (29 November 2013)

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2013/5.html

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

Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 4) [2013] NSWSC 1649 (21 October 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1649.html

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

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 29) [2013] VSC 537 (10 October 2013)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2013/537.html

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).

Vic WorkCover Authority v Elsdon [2013] VSCA 235 (6 September 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/235.html

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 [2010] 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’.

The Queen v De Saint-Aromain (Ruling No 1) [2013] VSC 398 (26 July 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/398.html

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).

R v Klobucar [2013] ACTSC 118 (18 June 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/118.html

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.

Derrin Brothers Properties Limited v Deputy Commissioner of Taxation [2013] FCA 571 (11 June 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/571.html

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

Kyluk Pty Ltd v Chief Executive Office of Environment and Heritage [2013] NSWCCA 114 (20 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/114.html

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

Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank of Queensland Limited (ACN 009 656 740) (No 13) and 13 related matters [2013] NSWSC 90 (19 February 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/90.html

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

Archer Capital 4A Ltd as trustee for the Archer Capital Trust 4A v The Sage Group plc [2012] FCA 1476 (17 December 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1476.html

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.

Westend Asset Pty Ltd v Deputy Commissioner of Taxation [2012] FCA 1374 (5 December 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1374.html

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)

Gigi Entertainment Pty Limited v Schmidt [2012] NSWSC 1423 (23 November 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1423.html

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

Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (Ruling No 1) [2012] VSC 555 (13 November 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/555.html

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).

Regina v Fysh [2012] NSWSC 1266 (22 October 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1266.html

Decision:

Rulings as to admissibility of proposed expert opinion evidence

Catchwords:
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

Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2012] FCA 944 (31 August 2012)

http://www.austlii.edu.au/au/cases/cth/federal_ct/2012/944.html

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

Matthews v SPI Electricity Pty Ltd & Ors; SPI Electricity Pty Ltd v Utility Services Corporation Limited (Ruling No 9) [2012] VSC 340 (13 August 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/340.html

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.

Nexus Energy Limited v Cottee [2012] VSC 215 (24 May 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/215.html

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.

Allianz Australia Ltd v Sim; WorkCover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (In liq) v Sim [2012] NSWCA 68 (4 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/68.html

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

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) & Ors [2012] VSC 99 (30 March 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/99.html

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.

Kirby v Centro Properties Limited (No 4) [2012] FCA 323 (29 March 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/323.html

No Catchwords

“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.”

Australia and New Zealand Banking Group Limited v Konza [2012] FCA 196 (9 March 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/196.html

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

Wood v R [2012] NSWCCA 21 (24 February 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/21.html

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.

Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 920 (28 May 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/920.html

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

Harpur v Levy & Ors [2011] VSC 653 (15 December 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/653.html

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.

Stratford Sun Limited v OM Holdings Limited; In the Matter of OM Holdings Limited (No 5) [2011] FCA 1275 (10 November 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1275.html

CORPORATIONS – whether a public listed corporation listed on the ASX contravened ASX Listing Rules 7.3.4, 7.3.6 and 7.3.8 and engaged in misleading and deceptive conduct in contravention of s 1041H(1) of the Corporations Act 2001 (Cth) by circulating to its shareholders a Notice of Meeting and accompanying Explanatory Statement which failed to provide sufficient or adequate information to those shareholders in order to enable them to make a sensible and rational judgment about a resolution to be proposed at the upcoming Annual General Meeting for the issue of 345 million new fully paid ordinary shares in the corporation

Evidence Act 1995 (Cth), s 76(1), s 79(1)

In the matter of Hopetoun Kembla Investments Pty Ltd – Hopetoun Kembla Investments Pty Ltd v JPR Legal Pty Ltd [2011] NSWSC 1343 (7 November 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1343.html

CORPORATIONS – application under ss 459G, 459H(1)(b) and 459J(1)(b) of the Corporations Act 2001 (Cth) for order setting aside statutory demand – whether Graywinter principles apply to preclude reliance on supplementary affidavits – whether genuine offsetting claims established – whether pending appeal from costs determination the subject of judgment debt constitutes “some other reason” for the purposes of s 459J(1)(b) to set aside demand – HELD – Graywinter principles apply to preclude reliance on ground sought to be relied on as “some other reason” pursuant to s 459J(1)(b) but not otherwise – genuine offsetting claims established in excess of the amount claimed in statutory demand – statutory demand set aside – CIVIL PROCEDURE – application for leave to use in present proceedings documents obtained under subpoena in other proceedings – leave granted

Stratford Sun Limited v OM Holdings Limited; In the Matter of OM Holdings Limited (No 5) [2011] FCA 1275 (10 November 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1275.html

CORPORATIONS – whether a public listed corporation listed on the ASX contravened ASX Listing Rules 7.3.4, 7.3.6 and 7.3.8 and engaged in misleading and deceptive conduct in contravention of s 1041H(1) of the Corporations Act 2001 (Cth) by circulating to its shareholders a Notice of Meeting and accompanying Explanatory Statement which failed to provide sufficient or adequate information to those shareholders in order to enable them to make a sensible and rational judgment about a resolution to be proposed at the upcoming Annual General Meeting for the issue of 345 million new fully paid ordinary shares in the corporation

Evidence Act 1995 (Cth), s 76(1), s 79(1)

N.V. Sumatra Tobacco Trading Company v British American Tobacco Services Limited [2011] FCA 1051 (9 September 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1051.html

INTELLECTUAL PROPERTY – consideration of an appeal under s 56 of the Trade Marks Act 1995 (Cth) from a decision of the Registrar’s delegate in opposition proceedings – consideration of a cross-appeal – consideration of grounds advanced under ss 43, 44 and 60 of the Trade Marks Act 1995 (Cth) – consideration of whether the trade marks LUCKY DREAM and LUCKY DRAW are deceptively similar to registered trade marks LUCKY STRIKE and LUCKIES – consideration of the principles to be applied in determining deceptive similarity – consideration of the principles to be applied in determining the standard of proof to be discharged by the opponent in discharging the opponent’s onus of proof

TRADE MARKS – consideration of an appeal under s 56 of the Trade Marks Act 1995 (Cth) from a decision of the Registrar’s delegate in opposition proceedings – consideration of a cross-appeal – consideration of grounds advanced under ss 43, 44 and 60 of the Trade Marks Act 1995 (Cth) – consideration of whether the trade marks LUCKY DREAM and LUCKY DRAW are deceptively similar to registered trade marks LUCKY STRIKE and LUCKIES – consideration of the principles to be applied in determining deceptive similarity – consideration of the principles to be applied in determining the standard of proof to be discharged by the opponent in discharging the opponent’s onus of proof

Evidence Act 1995 (Cth), ss 76 and 79

Asic v Rich [2005] NSWSC 149 (7 March 2005)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2005/149.html

EVIDENCE – expert opinion evidence – forensic accountant’s report on financial position and board reporting in complex corporate group – whether report, as a whole, admissible under s 79 as opinion evidence wholly or substantially based on specialised knowledge – whether report should be excluded on discretionary grounds under s 135 – applicability of Makita principles to an accountant’s report – whether expert’s prior relationship with litigant, involving access to additional information and formation of opinions for another purpose, rendered expert’s evidence tendered by that litigant inadmissible under s 79 or open to exclusion under s 135 – whether lack of independence rendered expert opinion evidence inadmissible or open to exclusion

Evidence Act 1995 (NSW), ss 55, 56, 60, 76, 79, 135, 137

ASIC v Vines [2003] NSWSC 1237

http://www.lawlink.nsw.gov.au/scjudgments/2003nswsc.nsf/aef73009028d6777ca25673900081e8d/790a94a3f065cdcdca256e00007a8a3e?OpenDocument

EVIDENCE — character evidence in civil proceedings — whether evidence relevant — whether evidence admissible as opinion evidence — whether evidence admissible under tendency rule — whether evidence should be excluded on discretionary grounds

(CTH) Evidence Act 1995 (NSW & Cth) ss 55, 56, 76, 78, 79, 97, 135

Gunnersen & Anor v Henwood & Anor [2011] VSC 440 (7 September 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/440.html

NEGLIGENCE – Duty of care – Economic loss – Landslip upon an inherently fragile escarpment owned by a third party contiguous with the plaintiffs’ land – Failure of the remediation of that landslip by defendant – No physical damage to the plaintiffs’ land – Whether there was economic loss – Expenditure by plaintiffs on engineered stabilisation of the escarpment – Whether risk of future damage to plaintiffs’ land not insignificant –Whether expenditure to avoid prospective damage recoverable loss – Nature of the harm suffered – Factors relevant to determination of duty – Causation – Whether conduct of defendant a cause of claimed loss – Factors relevant to determination of cause – Whether prospective expenditure caused by conduct of defendant or naturally occurring conditions – Factors relevant to determination of breach – Whether defendant shown to have breached any duty owed – Whether defendant a concurrent wrongdoer – Whether Shire council caused the loss claimed by the plaintiffs – Wrongs Act 1958 (Vic) ss 24AH, 24AI, 43, 48, 49, 51, 52, 83.

EVIDENCE – Expert opinion – Failure to comply with concurrent evidence directions – Application of overarching obligations – Civil Procedure Act 2010 (Vic) ss 7, 9, 10 – Expert Code of Conduct – Supreme Court (General Civil Procedure) Rules 2005 r 44.06.

EVIDENCE – Expert opinion – Basis rule – Whether opinions expressed from specialised knowledge – Evidence Act 2008 (Vic) ss 76, 79.

WORDS AND PHRASES – ‘harm’ – ‘insignificant risk’ – Wrongs Act 1958 (Vic) ss 43, 48.

Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 922 (27 June 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/922.html

EVIDENCE – documents contain statement of land value by Valuer-General – (NSW) Evidence Act s 156 does not provide for admissibility of public documents – whether documents business records – business includes activity engaged in or carried on by the Crown in any of its capacities – document a business record falling within business records exception to the hearsay rule – whether if hearsay rule does not apply document containing opinions may be excluded by opinion rule – prevailing view that opinion rule applies to business records – document containing opinions based on specialised knowledge, training, study or experience admissible – general discretion to exclude evidence – Makita principles do not apply to render business records containing opinions inadmissible -circumstances include Valuer-General not available for cross-examination, plaintiffs to call other valuation evidence, defendant serves no valuation evidence, notice of valuation does not reveal rationale – evidence unfairly prejudicial to defendant and discretion exercised to exclude.

(NSW) Evidence Act 1995, s 69, s 76, s 79, s 156, Dictionary Pt 2.

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 3) [2011] VSC 272 (2 June 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/272.html

EVIDENCE– Distinction between opinion evidence and factual evidence – Admissibility of expert evidence of facts – Expert with experience in computer forensic analysis assisted in data retrieval – Whether an expert opinion — Document in question (computer data) not available – ss.48(4), 76 and 79 Evidence Act 2008 ;

PRACTICE AND PROCEDURE — Case management – Civil Procedure Act 2010 – Case management orders made pursuant to s 47(1) – Balance between case management requirements and the necessity to ensure a fair trial – Rule 44 Supreme Court (General Civil Procedure) Rules 2005 – Whether applicable to expert statement where facts stated but where no opinion expressed.

Mainstream Aquaculture Pty Ltd v Calliden Insurance Ltd [2011] VSC 286 (24 June 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/286.html

INSURANCE – Business interruption insurance – construction of commercial insurance contract – whether damage to insured property caused loss – whether fuse property for purposes of insurance – meaning of word “damage” – whether applicable exclusion to insurance policy – McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 – Ranicar v Frigmobile Pty Ltd [1983] Tas R 113.

EVIDENCE & PROCEDURE – admissibility of expert evidence and reports – whether relevant – whether excluded as opinion evidence or based on specialised knowledge – s 55, s 76, s 79, s80 Evidence Act 2008 (Vic).

Dasreef Pty Ltd v Hawchar [2011] HCA 21 (22 June 2011)

http://www.austlii.edu.au/au/cases/cth/HCA/2011/21.html

Evidence – Admissibility – Opinion evidence – Section 79(1) of Evidence Act 1995 (NSW) provided that rule excluding evidence of opinion did not apply where “a person has specialised knowledge based on the person’s training, study or experience” and person’s opinion “wholly or substantially based on that knowledge” – Respondent sued appellant in Dust Diseases Tribunal of New South Wales – Respondent claimed he was negligently exposed to unsafe levels of silica while working for appellant – Witness gave evidence about approximate level of respirable silica to which respondent may have been exposed – Opinion treated as admissible to found calculation of numerical or quantitative level of exposure to respirable silica – Whether opinion admissible for that purpose – Requirements for admissibility.

Procedure – Specialist tribunal – Dust Diseases Tribunal of New South Wales – Ability of judge constituting Tribunal to draw on experience as member of specialist tribunal when making findings of fact – Section 25 of Dust Diseases Tribunal Act 1989 (NSW) required Tribunal to apply rules of evidence – Section 25B provided exception subject to various requirements – Trial judge drew on “experience” that silicosis usually caused by very high levels of silica exposure in concluding that respondent’s silicosis caused by exposure to silica – Section 25B neither invoked nor complied with – Whether trial judge entitled to draw on “experience” in making finding of fact.

Procedure – Objection to admissibility of evidence – Evidence taken on voir dire – Trial judge did not rule on objection at conclusion of voir dire – Desirability of ruling on objection to admissibility as soon as possible.

Words and phrases – “based on the person’s training, study or experience”, “basis rule”, “opinion rule”, “specialised knowledge”, “specialist tribunal”, “voir dire”, “wholly or substantially based on that knowledge”.

Evidence Act 1995 (NSW), ss 55(1), 76(1), 79(1).

VIP Plastic Packaging Pty Ltd v B.M.W. Plastics Pty Ltd [2011] FCA 660 (10 June 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/660.html

PATENTS – alleged infringement of patent – patent described ‘variable-length dip tube for a fluid transfer container’ – respondent did not dispute manufacture and sale of dip tubes – whether respondent’s product infringing – meaning of ‘lower end portion’ – meaning of ‘loose clearance fit’ – meaning of phrase ‘just below’ – respondent’s defence fails – respondent’s product has all essential integers of relevant claims – infringement established

PATENTS – respondent cross-claimed alleging invalidity – construction of claims – whether patent in suit invalid for want of novelty – whether patent anticipated by earlier ‘Hancock’ patent – no anticipation – lack of novelty not established

PATENTS – whether patent in suit invalid for lack of inventive step – whether patent obvious to a non-inventive worker in the field – no evidence that such a worker faced with ‘buckling’ would as matter of routine have taken steps from prior art to invention as claimed – lack of inventive step not established

PATENTS – whether patent in suit a manner of manufacture within the meaning of section 6 of the Statute of Monopolies – no disclosure in the patent specification that the invention not an alleged manner of new manufacture – not invalid on this ground

PATENTS – whether patent in suit invalid for lack of definition or clarity – whether terms ‘just below the end’ and ‘inhibits bending’ insufficiently clear – purposive approach should be adopted – skilled addressee would find these terms provide a workable standard – terms clear when construed by reference to the specifications of the patents – lack of clarity and definition grounds not made out

EVIDENCE – objection to admissibility of expert evidence – consideration of s 79 Evidence Act 1995 role of expert witness – expert witness lacked relevant qualifications and experience – no relevant specialised knowledge based on relevant training, study or experience – witness had no history of working the field of dip tubes, plastics or related field – evidence largely irrelevant and therefore inadmissible – where admissible, little weight accorded

EVIDENCE – expert witness not in the class of skilled addressee – witness conceded that he was not in a class of people ‘skilled in the art’ of dip tubes – witness unable to give reliable evidence of the state of the common general knowledge of a skilled addressee at priority date – evidence largely irrelevant and therefore inadmissible – where admissible, little weight accorded

EVIDENCE – objection to admissibility that no proper basis for the opinion – evidence largely speculative – to the extent opinion based on specialised knowledge based on training as a mechanical engineer, irrelevant as not within the relevant art – opinion based on mistaken understanding of relevant legal principles – opinion evidence irrelevant, s 76 Evidence Act 1995

EVIDENCE – role of named inventor – weight to be given to evidence of inventor – evidence admissible in accordance with the principles in Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd (1981) 148 CLR 262

R v Dupas [2011] VSC 180 (3 May 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/180.html

Evidence – Identification evidence – Opinion evidence – Whether psychological evidence admissible as to the possible effects of post-event information on memory – Whether psychological evidence admissible concerning police photoboard – Whether, if admissible, such evidence should be excluded under s 135 – Evidence Act 2008 ss 76, 79, 80, 135