Category Archives: s. 079

Wallace on behalf of the Boonthamurra People v State of Queensland [2014] FCA 901 (22 August 2014)

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

Honeysett v The Queen [2014] HCA 29 (13 August 2014)

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.

Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215 (3 July 2014)

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

Wong v Sklavos [2014] FCA 679 (26 June 2014)

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

Dennis v Chambers Investment Planners Pty Ltd (Administrators Appointed) (No 3) [2014] FCA 648 (20 June 2014)

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)

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634 (18 June 2014)

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

Honeysett v The Queen [2014] HCAASP 23 (12 June 2014)

On 5 June 2013 the Court of Criminal Appeal (“CCA”) (Macfarlan JA, Campbell J & Barr AJ) 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.

Holroyd City Council v Zaiter [2014] NSWCA 109 (8 April 2014)

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.

Caruana v Darouti [2014] NSWCA 85 (28 March 2014)

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

Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 (21 March 2014)

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

Matthews v SPI Electricity & Ors (Ruling No 38) [2014] VSC 102 (21 March 2014)

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).

Matthews v SPI Electricity & Ors (Ruling No 39) [2014] VSC 109 (19 March 2014)

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.

R v Iacuone; R v Duffy; R v JR [2014] ACTSC 43 (13 March 2014)

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

Matthews v SPI Electricity & Ors (Ruling No 36) [2014] VSC 82 (11 March 2014)

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.

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

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)

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.

Smith’s Snackfood Company Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWCA 470 (23 December 2013)

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

In the matter of North Coast Transit Pty Limited [2013] NSWSC 1912 (18 December 2013)

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.

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

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

Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 6) [2013] NSWSC 1651 (12 November 2013)

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’

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

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)

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).

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 (27 September 2013)

CONTEMPT OF COURT – alleged failure of fourth respondent to comply with order of the Federal Court of Australia – two charges of contempt of Court – consideration of requisite elements and whether proven beyond reasonable doubt – whether alleged contemptor was knowingly concerned in breach of orders

Held: both charges of contempt of Court proved beyond reasonable doubt, notwithstanding that certain particulars of charge 2 not so proved

Ubertini v Saeco International Group Spa (No 2) [2013] VSC 489 (11 September 2013)

PRACTICE AND PROCEDURE – PLEADINGS – application to amend pleadings at trial – relevant principles governing court’s discretion to grant leave to amend – role and function of pleadings – delay in seeking leave to amend – whether 1st defendant taken by surprise – whether 1st defendant likely to suffer irremediable prejudice – leave granted – Supreme Court (General Civil Procedure) Rules 2005, r 36.01(1)(a) – Civil Procedure Act 2010 (Vic), ss 1(c), 7(1).

Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273 (29 August 2013)

TORTS – negligence – occupier’s liability – appellant fell in respondent’s supermarket – where appellant slipped on wet floor left unattended for several minutes while wet floor warning signs were in place – whether respondent breached its duty of care to appellant in circumstances by failing to take reasonable precaution against risk – causation – where primary judge took into account own observations of appellant in witness box – assessment of damages where medical expert witnesses not cross-examined despite conflicting opinions – contributory negligence

TORTS – negligence – whether appeal as of right under s 127 of District Court Act 1973 – where primary judge assessed damages, if respondent were liable, at $1773 – sufficiency of appellant’s affidavit as to whether appeal as of right under UCPR r 51.22(2) – leave granted

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

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)

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).

Honeysett v R [2013] NSWCCA 135 (5 June 2013)

EVIDENCE – robbery of hotel – opinion evidence – s 79 Evidence Act 1995 – expert evidence of comparisons of CCTV images of offender and images of appellant – common anatomical features identified – evidence not given that there was “a high level of anatomical similarity” between offender and appellant – Morgan v R 215 A Crim R 33 distinguished – whether admissible as expert opinion evidence – whether based on specialised knowledge – whether witness qualified as an ad hoc expert

CRIMINAL LAW – appeal – whether verdict unreasonable or insupportable having regard to evidence – appeal dismissed

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

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

Selig v Wealthsure Pty Ltd [2013] FCA 348 (18 April 2013)

CORPORATIONS – investment advice given by Australian Financial Services Licensee and authorised representative thereof – whether investment scheme advised “Ponzi scheme” – actions under Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth) for loss or damage arising from misleading and deceptive conduct – whether disclosure document or statement defective – whether reasonable basis for investment advice given – whether obligation to warn client if investment advice based on incomplete or inaccurate information – whether representations as to future matters misleading – whether false or misleading statements made – whether statements made to induce dealings in financial products where maker knows or is reckless to whether statement is misleading, false or deceptive – whether false representations made in relation to standard of financial services – whether investment advice acted upon

CONTRACTS – whether investment advice given pursuant to express terms – whether advice appropriate for plaintiffs’ needs, objectives and circumstances – whether term of reasonable care implied by law, and implied by fact, breached – whether breach of warranty implied by s 12ED of Australian Securities and Investments Commission Act 2001 (Cth) – whether financial services rendered with due care and skill

NEGLIGENCE – whether duty and content thereof established – whether breach of duty established

PARTNERSHIP – whether conduct of partner within ordinary course of business of, or with authority of, partnership

DAMAGES – loss of initial investment, interest on compounding basis, and consequential loss upon collapse of dependent investments sought – whether plaintiffs’ damages to be reduced on account of plaintiffs’ failure to take reasonable care – first and second defendants cross-claim brought against other defendants seeking apportionment, indemnity and contribution – whether concurrent wrongdoers – application of statutory contributory negligence and proportionate liability provisions within Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth) – discussion of principles of apportionment – whether plaintiffs “consumers” for purposes of Civil Liability Act 2003 (Qld)

McNeil v Narrabri Shire Council [2013] NSWCA 112 (9 May 2013)

LOCAL GOVERNMENT – whether order made by council under s 124 of Local Government Act valid whether order stated what was required to be done
LOCAL GOVERNMENT whether order under item 21 of s 124 for demolition valid
LOCAL GOVERNMENT whether trespass by council where order referred only to one of two parcels of real property on the premises where order referred to address of premises containing both parcels
LOCAL GOVERNMENT whether s 124 order invalid for lack of jurisdictional fact presumption of regularity onus on appellant to prove jurisdictional fact did not exist where opinion evidence of appellant inadmissible – whether friable asbestos on premises definition of friable asbestos where bonded asbestos affected by fire

Resource Capital Fund III LP v Commissioner of Taxation [2013] FCA 363 (26 April 2013)

DOUBLE TAXATION TREATIES – United States Double Taxation Convention – principles of and materials in aid of interpretation – taxation of gains derived from disposition of shares in a company owning real property (mining tenements) situated in Australia by a limited partnership formed outside both Australia and the United States but comprised of limited partners being predominantly United States residents – whether gain derived by limited partnership or limited partners for the purpose of the Convention – reconciliation with any inconsistency under Australia’s domestic law – Div 5A of Pt III of Income Tax Assessment Act 1936 (Cth)

INCOME TAX – Div 855 of Pt 4-5 of Income Tax Assessment Act 1997 (Cth) – whether capital gains derived by a foreign resident to be disregarded – whether “principle asset test” in s 855-30 passed – consideration of what is to be valued and compared as the criterion for passing the test – hypotheses and methodologies of valuation to be adopted

Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA 90 (24 April 2013)

EVIDENCE – findings of fact – appellate review – whether a finding of fact by a referee was based on no evidence or no more than a mere scintilla of evidence

DAMAGES – negligence – method for valuing a loss of commercial opportunity(or loss of chance) – whether credit should be given for salvage value of business including any residual goodwill

PRACTICE AND PROCEDURE – whether primary judge erred in exercise of discretion in adopting the referee’s report