CRIMINAL LAW – evidence – expert evidence – footprints in blood – comparisons with impressions of feet of witnesses including accused – whether area of specialised knowledge – blood drying times – whether police officer had specialised knowledge
EVIDENCE – Admissibility – Expert Evidence – DNA evidence – Likelihood ratios – Whether fully-continuous probabilistic statistical methodology for the evaluation of DNA evidence constitutes a new and discrete field of knowledge – Whether admission of DNA evidence would give rise to unfair prejudice to the accused due to its complexity – Evidence Act 2008 (Vic), ss 79(1), s 137.
EVIDENCE – objections to admissibility of affidavit – where tendered as expert opinion evidence – objections upheld
INDUSTRIAL LAW – occupational health and safety – inhalation of sodium sulphide – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – pecuniary penalty – liability admitted – seriousness of the breach – foreseeable risk – lack of adequate supervision and training – inadequate risk assessment and management – specific and general deterrence – mitigating factors – contrition – corrective measures taken
CONSUMER LAW – Whether misleading, deceptive or false representations made on website about the effectiveness of whooping cough vaccine – Means of assessing efficacy and effectiveness of vaccine – Evidence based medicine – Bearing of context on characterisation of representations – Whether representations misleading, deceptive or false when read in context of an epidemic – Whether representation that vaccine was “short-lived” was misleading, deceptive or false given vaccine’s propensity to wane over time.
CONSUMER LAW – Whether misleading, deceptive or false representations made about the effectiveness of homeopathic treatments for the prevention of whooping cough – Whether representations about effectiveness of homeopathic treatments fall to be assessed against a homeopathic epistemological framework or orthodox medical science – Whether representations imply a reasonable basis in medical science.
CONSUMER LAW – Whether disclaimers erase misleading, deceptive and false nature of representations – Where disclaimer did not clearly bring the true position to the public’s attention.
CONSUMER LAW – Whether representations made in trade or commerce – Whether or not carried on for profit –
Where representations said to be contribution to public debate or educational – Whether conduct has requisite commercial or trading character – Where conduct has dual character – Where representations not presented overtly in form of an advertisement.
EVIDENCE – Where expert reports do not comply with s 79 of the Evidence Act 1995 (Cth) – Precondition to admissibility of expert evidence – Failure to provide reasons for opinion and demonstrate connection with specialised knowledge – Whether the manner in which material might be presented in the field of expertise is relevant – Duty of legal representatives to ensure expert reports comply with rules of evidence and court practice directions.
CORPORATIONS – winding up – winding up in insolvency – voidable transactions – time limit for bringing of proceedings by liquidators under Corporations Act 2001 (Cth) s 588FF in respect of voidable transactions – time extended upon liquidators’ ex parte application by a “shelf” order under s 588FF(3)(b) applying to all proceedings against all persons – that “shelf” order later set aside as it relates to proceedings brought against Commissioner of Taxation – finding that directors of the company who would be liable under statutory indemnity to indemnify the Commissioner for loss or damage suffered through voidable transaction order were denied opportunity to be heard on the extension application and that there was a breach of the duty of candour to the court – liquidators challenge the order setting aside the “shelf” order as against the Commissioner – whether the relevant directors were entitled to an opportunity to be heard – nature of the “right”, “interest” or “expectation” giving rise to right to be heard discussed – nature and implications of s 588FGA liability of directors discussed – PROCEDURE – miscellaneous procedural matters – ex parte application – setting aside on application of a person denied an opportunity to be heard
PROCEDURE – costs – gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) – assessment of costs on an indemnity basis – Uniform Civil Procedure Rules 2005 (NSW), r 42.5
PRACTICE AND PROCEDURE – Amendment of pleading – Leave sought to amend statement of claim – Plaintiff claims reputational damage from conduct of defendants that was misleading or deceptive – Statements posted on product review website by defendants – Whether conduct in trade or commerce – Whether adequate cause of loss and damage from conduct pleaded.
PRACTICE AND PROCEDURE – Security for costs – Plaintiff a corporate trustee of a unit trust – Enforcement of any right of indemnity against trust assets uncertain – Risk that plaintiff unable to pay costs on demand – Whether persons standing behind plaintiff taking benefit of proceeding should put up security – No risk of stultification – Merits of claim – Delay – Security ordered for future costs only – s 1335(1) Corporations Act 2001 (Cth), R 62.02 Supreme Court (General Civil Procedure) Rules 2005.
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.
NEGLIGENCE — Workplace injury — Manual handling – Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic) — Breach of common law and statutory duties — Contributory negligence —Psychiatric injury — Bullying and harassment — Alleged failure by employer to prevent bullying/harassment by supervisor during return to work — Scope of employer’s duty to prevent psychiatric injury — Whether employer’s response to risk of psychiatric injury adequate — Application of Koehler v Cerebos (Aust) Ltd Assessment of damages —Application of Malec v Hutton to assessment of damages — Interaction between physical and psychological injuries.
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 – appeal – power to reopen judgment and set aside orders – orders entered – failure to address submission – failure to refer to authorities relied on by applicants
PRACTICE AND PROCEDURE – Evidence – objections to admissibility – procedural fairness and fair trial – objections allowed in part
CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay refused – Long delay, but not simply presumptive prejudice – Destruction of evidence – Loss of evidence – Greatly limited ability to adduce alibi evidence – Whether judge erred by confining evidence of complainants on voir dire – Attack upon findings made and inferential reasoning of judge below – Appeal allowed – Decision refusing stay set aside – Matter remitted for re-hearing and determination by another judge.
CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling by judge that evidence of complainants cross-admissible – Whether reasonable possibility of collusion or contamination – Whether judge wrongly approached matter by treating applicant as carrying burden of proof – Whether judge erred by making findings upon matters of disputed fact – Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded – Appeal allowed – Ruling set aside – In lieu, ruling that evidence not cross-admissible – Question whether indictment should be severed remitted for re-hearing and determination by another judge – Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.
CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with ‘grooming’ by sex offenders – Concession by Crown on appeal that evidence inadmissible – Concession rightly made – s 79 Evidence Act 2008 – Whether witness had relevant expertise – Whether evidence had any probative value – Circularity – Whether, in any event, evidence should have been excluded under s 135 Evidence Act – Whether evidence was about a matter upon which expert evidence was receivable – Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act – Whether, if so, evidence should have been excluded under s 101 – Whether unacceptable risk that evidence would trespass into propensity evidence – Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act – Whether evidence admissible under s 108C Evidence Act.
CRIMINAL LAW – Appeal – Interlocutory Appeal – Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication – No reasons given – Note made by counsellor of statement attributed to complainant – Note contained in confidential communications earlier released for inspection by accused’s legal advisers – Later ruling by judge that counsel for accused not be permitted to cross-examine complainant upon the note at trial – ss 32C and 32D Evidence (Miscellaneous Provisions) Act 1958 – Whether peremptory refusal complied with statutory obligations imposed upon judge – Whether peremptory refusal and later ruling supportable – Appeal allowed – Ruling set aside – In lieu, ruling that accused have leave to cross-examine complainant on further hearing of stay application and in any later trial.
CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that prosecution might adduce evidence of accused’s pleas of guilty, in 2008, to sexual offences committed between 2003-2005 and of agreed summary of circumstances read to Magistrates’ Court in, ‘rebuttal’ if credibility of victims of those offences was challenged in cross-examination – Evidence only admissible if viva voce evidence of witnesses receivable as tendency evidence – Crown statement that evidence of some witnesses would not be relied upon at a trial – Whether any basis revealed for prosecution being permitted to split its case – Consideration of possible juridical bases upon which evidence might be admissible – Appeal allowed – Ruling set aside – In lieu, question whether evidence admissible remitted for re-hearing and determination by another judge.
APPEAL – grounds – apprehended bias – application to trial judge to recuse herself because ruling on admissibility suggested acceptance of the evidence – whether a reasonable fair-minded observer would apprehend bias
DEFAMATION – imputations – broadcast as to risks identified with infant sleep positioners overseas – infant sleep positioner manufactured and sold by applicants featured on broadcast without being named – alleged defamatory imputations that the applicants sold and offered for sale a product subject to recall and unsafe – whether defamatory imputations conveyed – whether imputations would diminish the applicants’ standing in the eyes of the ordinary reasonable person
DEFAMATION – defences – substantial truth – whether defamatory imputations as to the safety of infant sleep positioners were substantially true – reliance on expert evidence on the risks associated with infant sleep positioners to establish substantial truth – Defamation Act 2005 (NSW), s 25
DEFAMATION – defences – justification – contextual truth – imputation not substantially true – whether broadcast carried contextual imputations that were substantially true – whether defamatory imputation could do no further harm to reputation because of contextual imputations – Defamation Act 2005 (NSW), s 26
DEFAMATION – cause of action – whether corporate plaintiff an excluded corporation – corporation is an “excluded corporation” if it employs fewer than 10 persons – whether persons confined to employees – Defamation Act 2005 (NSW), s 9(2)(b)
EVIDENCE – relevance – admissibility – applicants sought to give evidence as to whether dangers in other sleep positioners applied to their products – whether non-expert opinion evidence admissible to prove falsity of a defamatory imputation
EVIDENCE – expert opinion – whether expert qualified to give opinion on the specific characteristics of the applicants’ infant sleep positioner – whether expert had a preconceived opposition to infant sleep positioners – Evidence Act 1995 (NSW), s 79
TORT – injurious falsehood – malice – whether failure to obtain comment from supplier was so reckless as to warrant inference of malice
WORDS AND PHRASES – “employs” – “persons” – Defamation Act 2005 (NSW), s 9
REAL PROPERTY – Torrens title – Caveats Against Dealings – Extension – Orders made for the continuation of caveats on interlocutory basis pending final determination of proceedings
PATENTS – patents for safety IV catheters – infringement – “pith and marrow” principle – whether alleged infringing items disclose all essential features of claims in suit – construction of claims – validity of patents – whether invention novel – priority date of patents – whether claims fairly based on matter disclosed by ancestors – whether real and reasonably clear disclosure of claimed invention in body of specification – whether invention sufficiently described in specification.
Family Law and Child Welfare – Child welfare under State legislation – Children in need of protection – Proceedings relating to care and protection – Other matters – Appeal from order made by consent – Application for appeal to proceed as hearing de novo.
ADMINISTRATIVE LAW – judicial review – workers compensation – decision of the Medical Appeal Panel – whether infected by jurisdictional error – failure to take into account relevant consideration – whether Medical Appeal Panel failed to take into account a medical report – whether error of law – whether failure to provide adequate reasons
CRIMINAL LAW – CONVICTION APPEAL – attempting to possess a commercial quantity of an unlawfully imported border control drug – 102 kilograms of pure heroin – whether a miscarriage of justice because of lack of qualifications of expert interpreter called in Crown case – whether verdict of jury unreasonable or could not be supported by the evidence – whether evidence as to flight properly admitted – evidence of Crown expert not misleading – differences in interpretation between Crown and defence experts not of significance in conduct of trial – differences in interpretation adequately explained by differences in audio equipment – strong circumstantial Crown case – on whole of the evidence open to the jury to be satisfied beyond reasonable doubt as to guilt – evidence of flight properly admitted – no breach of s137 of the Evidence Act 1995 in admitting evidence of flight – conviction appeal dismissed – APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE – whether principle of parity properly taken into account – no significant difference in level of criminality between applicant and co-offender – differences in subjective case of applicant and co-offender – sentence of co-offender manifestly inadequate – parity principle not properly applied – need for applicant to be re-sentenced.
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.
CRIMINAL – appeal – conviction – whether misdirection in presentation of crown case to jury – no misdirection on factual possibility of push followed by a trip – consistent with an intention to kill – direction consented to – no tactical disadvantage – no miscarriage of justice – misdirection on availability of mental element of reckless indifference to human life – not Crown case – whether miscarriage of justice – significance of the appellant’s case that he was not involved in death at all – possibility of jury speculating remote – no objection by counsel
CRIMINAL – appeal – evidence – admission of evidence – expert opinion – whether evidence wholly or substantially based on specialised knowledge – process of reasoning involved matters of common knowledge
CRIMINAL – appeal – evidence – admission of evidence – expert opinion – whether expert had relevant expertise – whether expertise from study and experience – no details of how investigations conducted equipped expert to give evidence in present case – publications not tendered – titles of publications insufficient evidence of expertise from study and experience
APPEAL – criminal – whether notwithstanding appellant’s success appeal should be dismissed – application of proviso – 6(1) Criminal Appeal Act 1912 (NSW) – whether no substantial miscarriage of justice – consideration of importance of expert evidence – Court satisfied beyond reasonable doubt that evidence properly admitted at trial proved the guilt of the appellant
APPEAL – criminal – fresh evidence – whether Court of Criminal Appeal decision concerning expert and book published by expert before trial is fresh evidence – could have been discovered by reasonable due diligence – no miscarriage of justice – previous decision of Court of Criminal Appeal irrelevant to admissibility of expert evidence
CRIMINAL – appeal – conviction – no error in direction on use of evidence as both tendency evidence and for motive – reserve consideration of whether tendency evidence must be proved beyond reasonable doubt reserved
NATIVE TITLE – whether the apical ancestors of the respondent groups were also apical ancestors of the native title claim group – traditional area associated with the apical ancestors of the respondent groups were not part of the geographical area of the claim group – apical ancestors of the respondent groups did not acquire native title rights or interests in the claim area – strong anthropological evidence that the apical ancestors were unlikely to come from the claim area
EVIDENCE – expert report – expertise – Evidence Act 1995 s 79 – whether expert possessed specialised knowledge based on training, study or experience – whether expert report otherwise concerned with matters of relevance to the proceedings
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
PRACTICE AND PROCEDURE – appeals – application for leave to appeal from an interlocutory judgment – application by non-party – subpoenas to produce documents issued to non-parties – subpoenas sought tax returns and income information for dermatology practices – application to set aside the subpoenas dismissed – whether “apparent relevance” established – whether primary judge’s decision attended by sufficient doubt – whether substantial injustice
PRACTICE AND PROCEDURE – subpoenas – where information confidential
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)
CONSUMER LAW – Australian Consumer Law ss 18(1), 29(1)(a), 33 – Misleading or deceptive conduct or conduct likely to mislead or deceive, false or misleading representations, conduct liable to mislead the public – Whether the use of the phrases “baked today, sold today”, “freshly baked”, “baked fresh” and “freshly baked in-store” is misleading where the complete baking process is not undertaken in-store on the day – Whether the relevant context for assessing misleading or deceptive conduct includes a cynical consumer culture
PRACTICE AND PROCEDURE – Admissibility of evidence – relevance – whether evidence of third party conduct is relevant – hearsay – whether statements made by third parties serve a non-hearsay purpose
EVIDENCE – Expert opinion – Evidence of likely reaction of union members
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
On 5 June 2013 the Court of Criminal Appeal (“CCA”) (Macfarlan JA, Campbell J & Barr AJ) http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/135.html unanimously dismissed Mr Honeysett’s appeal. Their Honours held that the evidence of Professor Henneberg was admissible, as it was an opinion based on specialised knowledge in accordance with s 79(1) of the Evidence Act 1995 (NSW) (“the Act”). The CCA found that that evidence identified physical characteristics that Mr Honeysett had in common with the Offender, without stating any conclusions that might be drawn from those characteristics. It was not to the effect that the Offender and Mr Honeysett were similar in appearance. Their Honours also found that Professor Henneberg’s detailed examination of the CCTV footage had rendered him an “ad hoc” expert such that his evidence went beyond obvious matters that the jury would have discerned for itself.
The grounds of appeal include:
The Court of Criminal Appeal erred in the application of s 79 of the Act in holding that the evidence of Professor Hennenberg involved an area of specialised knowledge based on training, study or experience, and that his opinion was wholly or substantially based on that area of specialized knowledge.
The Court of Criminal Appeal erred in holding that the evidence of Professor Hennenberg’s consideration of the CCTV footage rendered him an “ad hoc” expert.
TORTS – negligence – 9 year old child injured when rode bicycle into an unfenced concrete drainage channel – drainage channel and surrounding grassed slope under care and control of appellant – presence of drainage channel not obvious from adjacent cycleway – appellant aware of risk of injury to children from unfenced drainage channel – expert report of engineer admitted without objection – whether trial judge bound to accept expert opinion – extent to which precise sequence of events leading to accident needed to be foreseen – application of sections 5B and 5C of Civil Liability Act 2002 – whether child engaged in a “dangerous recreational activity” at time of injury – s5L Civil Liability Act 2002 – application of s42 Civil Liability Act 2002 – whether resources of appellant sufficient to construct fence – ambiguity of evidence – defence not made out.
TORTS – negligence – occupier’s liability – respondent slipped on appellant’s driveway – whether appellant was negligent in resealing driveway – whether slip was reasonably foreseeable in circumstances where no prior accident – whether accident was caused by a positive act – whether reasonable care extended to erecting a handrail – whether trial judge failed to have regard to authorities – application of s 5B of the Civil Liability Act 2005 (NSW) to positive acts
PRACTICE AND PROCEDURE – Expert evidence – Joint reports of experts – Admissibility of joint reports – Whether reasons are required for agreement between experts – Whether conclave failed to identify the material it relied upon – Whether consideration of extraneous material by the conclave constituted an irrelevant consideration – Whether experts are required to be provided with a joint statement of assumptions – Whether the questions asked of the conclave were drafted in terms that addressed relevant issues and matters appropriate for consideration by experts – Whether the joint reports are inconsistent with the common law “statement of reasoning” rule – Whether the joint reports are inconsistent with the Makita principle – Application of s 79 of the Evidence Act to joint reports of experts – Whether Court should exercise discretion to exclude the joint reports under s 135 of the Evidence Act
EVIDENCE – Expert opinion based on specialised knowledge – Differentiation of primary and secondary facts – Expert as advocate – Admissibility – “Basis rule” – Necessary to distinguish fact and opinion – Evidence Act 2008 (Vic) s 79 – Civil Procedure Act 2010 (Vic) – Supreme Court (General Civil Procedure) Rules 2005 (Vic).
EVIDENCE – Expert opinion based on specialised knowledge – Opinion on matters outside of original remit – Admissibility – “Basis rule” – Evidence Act 2008 (Vic) ss 55, 79 – Civil Procedure Act 2010 (Vic) ss 65F, 65H, 65K – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 44.05.
EVIDENCE – Expert Evidence – criminal trial – conspiracy to murder – specialised knowledge – no evidence opinions based on specialised knowledge
EVIDENCE – Relevance – criminal trial – conspiracy to murder – whether opinion of psychiatrist as to whether accused would have carried out conspiracy relevant – not relevant to express an opinion on question of guilt based on evidence before jury which jury is competent to answer
EVIDENCE – Recall of second defendant’s witness for cross-examination by plaintiff – Expert evidence – Admissibility – Limitations to cross-examination – Restriction on leading questions – Expertise – Evidence Act 2008 (Vic) ss 42, 79 – Civil Procedure Act 2010 (Vic) s 65H – Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 44.
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.
REAL PROPERTY – Caveats – Removal – Application – Caveatable interests – Serious question to be tried – Balance of convenience – Transfer of Land Act 1958 (Vic), s 90(3).
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.
TAXES AND DUTIES – payroll tax – liability to taxation – Payroll Tax Act 2007 – Payroll Tax Act 1971 – contractor provisions – whether contractors engaged under a “relevant contract” – whether appellant was supplied services ancillary to the conveyance of goods by means of a vehicle provided by the person conveying them – whether apportionment provisions of the Payroll Tax Acts should apply
PROCEDURE – subpoenas – application for subpoena to be set aside – where subpoena is for contracts containing commercially sensitive information – where party issuing subpoena a member of the same industry – whether the production of confidential information would assist with the matter in issue – whether a legitimate forensic purpose for the subpoena – whether proposed analysis of subpoena documents falls within the proper scope of the valuation evidence – whether Practice Note SC 11 is applicable.
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
DEFAMATION- cause of action- corporate plaintiff not established excluded – imputations- whether carried- identity of natural plaintiffs irrelevant to Broadcast- whether defamatory- no injury to plaintiffs’ reputation as distinct from goods- defences- justification- truth- evidence of all contextual imputations to be weighed against imputations not proved true- qualified privilege- when available to mass media- damages- special damages- whether attributable to matter complained of
EVIDENCE- findings as to credit- witness advocate for own cause
TORTS- injurious falsehood- relevant counterfactual to assess damages
WORDS AND PHRASES- meaning of ‘falsely’- synonymous with ‘incorrectly’
EVIDENCE – admissibility – whether evidence admissible under s79 Evidence Act 1995 (NSW) – whether evidence complies with Uniform Civil Procedure Rules 2005 (NSW) r 31.23, r31.24, r31.27.