EVIDENCE – Expert opinion evidence based on specialised knowledge – Admissibility – Status of the “Basis rule” – Dasreef Pty Ltd v Hawchar – Evidence Act 2008 (Vic), ss 79, 56.
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
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)
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
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
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
PRACTICE AND PROCEDURE – application for security for costs – impecunious corporate plaintiff – no evidence of potential stultification – co plaintiff provided de facto security – overlapping issues – quantum of security reduced
EVIDENCE – Admissibility of evidence – Evidence as to the witness’s state of knowledge and industry practice – Relevance of evidence of power companies’ record keeping – Opinion based evidence – Evidence Act 2008 (Vic) ss 55(1), 79.
PROCEDURE – case management – preliminary rulings on expert evidence – whether expert reports admissible.
EVIDENCE – expert evidence – whether reports comply with r 31.27 UCPR – use of photographs – whether expertise needed to interpret.
INSURANCE – Motor vehicle insurance – Indemnity in respect of liability for loss or damage resulting from use of vehicle – Exclusion in respect of liability for loss or damage intentionally caused by insured – Head on collision involving insured’s motor vehicle – Whether driver of insured’s vehicle intending to commit suicide – Application of principles in Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336 – Whether inference of suicide more probable – Whether exclusion clause of policy applied, in the event of a finding that driver of insured vehicle intended suicide.
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
PROCEDURE – notice of motion – leave sought under section 14 of the Vexatious Proceedings Act 2008 to bring proceedings in negligence – whether plaintiff entitled to press application for leave in relation to the proposed amended statement of claim – disputed expert reports – whether s 79 of the Evidence Act 2005 applies to the disputed reports – requirements of Rule 31.36 of the Uniform Civil Procedure Rules 2005 – whether the plaintiff has a prima facie case – no prima facie case established – whether plaintiff complied with s 14(3)(c) – obligation to disclose all material facts not complied with – whether plaintiff established that proceedings were not vexatious – not established – application for leave refused – orders – costs
CRIMINAL LAW – Appeal – Appeal against conviction – Convictions arising out of sexual abuse of appellant’s daughter – Admissibility of expert evidence as to the general behaviour of child victims of sexual abuse – Incidental evidence concerning common parental reactions – Relevance of evidence concerning counter-intuitive behaviour –Whether witness had ‘specialised knowledge’ for the purposes of ss 79 or 108C of the Evidence Act 2008 – Whether basis of opinion properly established – Whether probative value outweighed by danger of unfair prejudice – Evidence Act 2008 ss 55, 79, 135, 137, 108C – Criminal Procedure Act 2009 s 388 – Appeal dismissed.
CONTRACTS – building engineering and related contracts – variations – delays – extensions of time – PROCEDURE – proceedings or part thereof referred to a referee for inquiry and report – function of court upon motion for adoption of referee’s report – function of appellate court upon appeal from decision on such motion – consideration of whether sufficient evidentiary basis for various decisions of judge upon motion for adoption – DAMAGES – breach of contract – delay in completion of works – appropriate manner of assessing damages for late completion – INTEREST – pre-judgment interest – applicable regime for computing interest in the particular case
CRIMINAL LAW – Appeal – Conviction – Murder – Circumstantial evidence – Whether verdict unsafe and unsatisfactory – Appeal dismissed.
CRIMINAL LAW – Appeal – Conviction – Identification evidence – Probative value – Unfair prejudice – Assessment of probative value – Reliability of the evidence – Christie discretion at common law examined – Whether danger that evidence may receive disproportionate weight required exclusion – R v Shamouil  NSWCCA 112; (2006) 66 NSWLR 228 disapproved; R v Carusi (1997) 92 A Crim R 52, DSJ v R  NSWCCA 9 considered – Evidence Act 2008 (Vic) s 137.
EVIDENCE – Expert evidence as to dangers of identification evidence – Opinion rule –Credibility rule – Exception – Reliability of circumstances of identifications – Admissibility of opinion – Whether based on special knowledge – Evidence Act 2008 (Vic) ss 79, 108C.
EVIDENCE – Prison informer – Whether corroboration required – Whether Pollitt direction adequate – Pollitt v The Queen  HCA 35; (1992) 174 CLR 558 considered – Evidence Act 2008 (Vic) ss 164, 165.
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.
PRACTICE AND PROCEDURE – Appeals – where first instance decision delivered two years after conclusion of trial – circumstances in which open to appeal court to review findings of fact.
TORTS – Negligence – where plaintiff mentally ill and wielding kendo stick as weapon in public – where plaintiff shot by police officer – where plaintiff conceded police officer not negligent in discharge of weapon – whether duty of care owed by police to plaintiff – consideration of scope and application of police immunity from civil liability – whether breach of duty.
Held: Appeal allowed. The police did not owe the plaintiff a duty of care.
TORTS – Negligence – liability of statutory authority – whether ACT Mental Health owed duty of care to plaintiff – where plaintiff seen by ACT Mental Health for purposes of determining possible involuntary detention under subs 37(2) of Mental Health (Treatment and Care) Act 1994 (ACT) – where plaintiff not admitted to approved health facility – characterisation of duty of care – whether ACT Mental Health under duty to exercise statutory power to detain – whether breach of duty.
Held: Appeal allowed. ACT Mental Health owed the plaintiff a duty of care to follow up mental health assessment; however, ACT Mental Health did not breach this duty.
BAILMENT – whether possession taken on behalf of second respondent – agreement that first and second respondents take possession of motorboat and quote for work – first respondent took possession on behalf of second respondent pursuant to agreement – second respondent liable as joint bailee
EVIDENCE – expert evidence – admissibility – whether primary judge erred in admitting opinion as to value of motorboat – opinion not shown to be based on specialised knowledge in turn based on training or experience – assumptions on which opinion based not stated – no explanation for reasons for conclusion as to value – evidence should have been rejected
EVIDENCE – admissibility – whether a matter of discretion – question whether appellant had mental capacity to participate in hearing before independent merits reviewer in relation to his claim for a protection visa – appellant relied on report of expert as to his mental condition – federal magistrate held report inadmissible – relied on weight and on conflicting evidence – no exercise of power to exclude admissible evidence because probative value outweighed by other factors – whether error by federal magistrate
HIGH COURT AND FEDERAL COURT – appeal – orders – consent orders – whether Court should make consent orders – consent orders based on incorrect assumption about basis of judgment the subject of appeal – appeal raised questions capable of being determined conclusively by appeal court
EQUITY – equitable compensation for breach of fiduciary duties by employees and consultants – assessment after remitter of case by High Court to Court of Appeal – fiduciaries deliberately breached duties by diverting opportunities for legal work from a legal and consulting firm in Kazakhstan to their own firm and by knowingly assisting in other breaches of fiduciary duty – principles governing assessment of equitable compensation for lost opportunity to perform legal work and to receive financial rewards for involvement in projects – need to establish causation – significance of fiduciaries’ resignation from firm in order to further their wrongful conduct – extent to which plaintiff is entitled to rely on the presumption against wrongdoers where there are gaps in the evidence.
EVIDENCE – admissibility of expert report – report estimates legal work likely to be performed on particular projects and fees or other rewards likely to be derived by the firm performing the work – whether expert’s opinion met the requirements of s 79 of the Evidence Act 1995 – whether opinions shown to be based on the expert’s specialised knowledge – whether report should be given any probative weight.
DAMAGES – leases and tenancies – whether there was a breach of contract – lock out by lessor – hotel – claim for damages for outstanding rent; repair and replacement of plant and equipment; repair and maintenance of hotel; and rent to end of term – defendant in default of various obligations including rent – plaintiff re-entered, occupied and took possession of the hotel – claim that defendant failed to maintain, replace, repair hotel – loss of bargain claim dismissed – referee claims – evidentiary difficulties – nature of lease obligations – was the defendant liable for any prior breach of the lease – observed items – claim for painting-head contractor – claim for costs of re-entry – cross-claim – repayment of security deposit – conversion – claim in respect of mini bus – interest – costs
PROCEDURE – various notice of motions – leave sought to rely on further affidavits – refusal of pleading amendment – refusal of the adjournment application – rejection of the tender
EVIDENCE – admissibility – expert evidence
EVIDENCE – Expert Evidence – Admissibility of engineer’s report in jury action for damages for personal injury – Whether expert has complied with expertise basis rule – Whether expert has complied with statement of reasoning rule – ss 76, 79 Evidence Act 2008 (Vic).
TORT – negligence – employee injured manoeuvring a large gas cylinder down a ramp – employee successful in claim against employer – claim for contribution by employer against supplier of gas cylinders – gas cylinders supplied in cage with ramp – whether duty of care owed by supplier of gas cylinders to employee – risk of injury reasonably foreseeable – integrated purpose built ramp invited particular method of unloading which was hazardous – duty of care found to exist – apportionment of liability between employer and supplier of gas cylinders – primary judge took into account factually incorrect consideration and failed to take into account relevant matters – need to re-assess apportionment – breach of duty of care – causation – application of “but for” test – EVIDENCE – admissibility of expert evidence – relevance of evidence – compliance with s 79(1) Evidence Act 1995 (NSW) – necessary expertise established.
Rulings as to admissibility of proposed expert opinion evidence
CRIME – particular offences – insider trading – elements of offence – admissibility of expert opinion evidence to prove some elements
EVIDENCE – admissibility – expert opinion evidence – where relied upon to prove general availability and materiality of alleged inside information – whether general availability of information a matter of expertise – whether report adequately articulates connection between expertise and opinions stated
CONTRACT – termination of franchise agreement – no express right of termination – whether implied right of termination – whether breach of franchise agreement
COMPETITION – s 45(2) Competition and Consumer Act 2010 (Cth) – whether provision an exclusionary provision – whether provision has substantial purpose and/or effect or likely effect of substantially lessening competition in a market – definition of relevant market –competitors in that market
TRADE PRACTICES – s 51AD Trade Practices Act 1974 (Cth) – Trade Practices (Industry Codes-Franchising) Regulations 1998 – whether breach of clauses 6B and 10 of Franchising Code of Conduct – whether current disclosure document provided to prospective franchisee – whether relief granted under ss 82 or 87
TRADE PRACTICES – s 18 Australian Consumer Law – representations prior to execution of franchise agreement – representations that franchise agreement could be terminated on payment of termination and related fees – whether representations made – whether representations misleading and/or deceptive – whether representations relied upon – whether loss or damage suffered – whether causal link between representation and loss suffered – whether relief granted under ss 82 or 87 Competition and Consumer Act 2010 (Cth)
Opinion evidence – mechanical engineer and ergonomist – evidence admitted – no question of principle.
PRACTICE AND PROCEDURE – judgments and orders – default judgment –operation of O 35A r 3(2)(c) Federal Court Rules (now Rule 5.23(2)(c) Federal Court Rules 2011) in relation to declaratory orders – default by respondent – consideration of whether declaratory orders may be made on deemed admissions – Court not bound by decision in BMI – considerations in exercising discretion to make declaratory orders under s 21 Federal Court of Australia Act 1976 (Cth) – form of declaratory order – orders must clearly state the basis upon which they are made
PRACTICE AND PROCEDURE – judgments and orders – declarations – consideration of discretionary power to make declarations under s 21 Federal Court of Australia Act 1976 (Cth) – issue addressed by declaration must not be hypothetical – consideration of whether sufficient consequences flow from the making of declaratory orders –public interest in declarations in consumer protection litigation – declarations should clearly describe the conduct underlying the imposition of a pecuniary penalty
PRACTICE AND PROCEDURE – judgment and orders – proper contradictor – consideration of decision of Full Court in MSY Technology – a party with an interest in opposing proceedings is a proper contradictor – a decision by a proper contradictor not to contest proceedings does not alter their status as a proper contradictor
PRACTICE AND PROCEDURE – default judgment under O 35A r 3(2)(c) Federal Court Rules – principle that Court may not receive evidence in support of application for default judgment is based upon a practice of dubious origins, not a rule of law – evidence must not alter the case pleaded – Court empowered to make default judgments in the absence of evidence – matters not taken into account because not pleaded or not pleaded with sufficient particularity
TRADE PRACTICES – penalty – pecuniary penalty for contraventions – consideration of whether it is appropriate to impose a penalty on a company in liquidation – consideration of principles of general deterrence for companies or traders in a discrete industry
TRADE PRACTICES – penalty – application of pecuniary penalty under s 76E Trade Practices Act 1974 (Cth) – factors prescribed by s 76E(2) Trade Practices Act 1976 (Cth) are not exhaustive – consideration of factors relevant to fixing pecuniary penalty – penalties fixed should involve an element of general deterrence such that contraventions amount to “commercial suicide” – guidance on imposition of pecuniary penalty derived from recent, comparable cases – consideration of context, seriousness and frequency of contraventions – concurrent contraventions taken into account – relevance of prior conduct by respondent
PATENTS – two appeals from decisions of delegate of Commissioner of Patents – opposition to grant of patent for bulk material transport container on multiple grounds – consideration of nature of appeals as hearings de novo
PATENTS – combination patent – novelty – whether invention was disclosed in prior art – application of ‘reverse infringement’ test – whether invention involved an inventive step – whether the combination of integers would have been an obvious solution to a person skilled in the art in light of common general knowledge – consideration of how a person skilled in the art would have interpreted and understood the prior art – time at which prior art is to be construed
PATENTS – disputed priority date – whether there was a ‘real and reasonably clear disclosure’ in the provisional specification – whether secret use before the priority date – whether use by inventor for reasonable trial and experiment only
EVIDENCE – consideration of admissibility and weight to be given to expert evidence where the expert witnesses are not independent
Evidence – admissibility – whether opinions expressed were admissible
Evidence Act 1995 s 55, s 76(1), s 79(1),
s 80(a), s 80(b)
EVIDENCE – Opinion based on specialised knowledge – Admissibility of evidence – Requirements of Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Evidence Act 2008 (Vic) ss 76, 79 and 55.
CRIMINAL LAW – CONVICTION APPEAL – theft assault and robbery convictions – appellant self-represented – whether hearsay evidence wrongfully admitted – whether Crown address caused miscarriage of justice – whether miscarriage of justice as a result of directions by trial judge – whether fresh evidence should be admitted on appeal – whether miscarriage of justice occurred as the result of conduct by appellant’s counsel – whether revocation of bail during trial caused miscarriage of justice – whether jury verdict unreasonable – SENTENCE APPEAL – whether sentencing judge erred in assessment of objective seriousness – whether principle of totality applied – whether sentence manifestly excessive.
TRADE PRACTICES – consideration of whether a document distributed by means of a telecommunications facility and through the use of the postal service, contained representations of fact which were misleading or deceptive or likely to mislead or deceive consumers as to the entitlement of the applicant to sell plumbing fittings described and marked as compliant with a particular Australian Standard and an Australian Technical Specification – consideration of the extension provision, s 6(3) of the Trade Practices Act 1974 (Cth) as the applicable law at the material time – consideration of whether the material distributed by the third respondent containing the statements in suit, were statements made “in trade or commerce” – consideration of whether s 52 so far as that section purports to regulate conduct said to be misleading or deceptive in circumstances where the statements concern aspects of the legislative and regulatory environment governing the plumbing industry, engage the constitutional limitation or guarantee the subject of the decisions in Lange v Australian Broadcasting Corporation; Hogan v Hinch and Wotton v State of Queensland and related earlier authorities of the High Court (cited below) – consideration of whether, on the facts, the statements were representations or statements of opinion – consideration of whether the conduct of the third respondent in making the various statements was conduct in close association with the applicant’s principal rival
CONSUMER LAW – consideration of whether a document distributed by means of a telecommunications facility and through the use of the postal service, contained representations of fact which were misleading or deceptive or likely to mislead or deceive consumers as to the entitlement of the applicant to sell plumbing fittings described and marked as compliant with a particular Australian Standard and an Australian Technical Specification
STATUTES – consideration of the application of the cooperative arrangements for the legislative and regulatory arrangements governing the plumbing industry in Australia and New Zealand, by reference to the legislative instruments adopted in Queensland as emblematic of each jurisdiction’s legislation, including The Plumbing and Drainage Act 2002 (Qld); Standard Plumbing and Drainage Regulation 2003 (Qld); the provisions of the Plumbing Code of Australia 2004; and various Australian Standards and particularly Australian Technical Specification 5200.055:2008
PROCEDURE – notice of motion – leave sought to re-order five volumes of material already served – not opposed, leave granted – leave sought to file further evidence – expert evidence – application opposed – leave refused – reasons for decision
PRACTICE AND PROCEDURE – Applications to tender documents in course of trial – Rulings on tenders.
EVIDENCE – admissibility and relevancy – opinion evidence – expert opinion – expert reports – minor ambiguities – use of “we” and use of passive voice and possible ambiguity as to method used can clarified in examination-in-chief of expert
EVIDENCE – admissibility and relevancy – opinion evidence – expert opinion – expert reports – observations in report are at the low end of the spectrum of opinion evidence – expert not required to disclose how expertise was applied to make observations
COSTS – indemnity costs – offer of compromise – whether Dust Diseases Tribunal Regulation 2007 (NSW), Pt 6, only operates to the extent that it is not inconsistent with the Uniform Civil Procedure Rules – whether offeror had provided all documents necessary to enable the offeree to consider offer under the Uniform Civil Procedure Rules – whether offer was open for a reasonable time
EVIDENCE – admissibility – expert evidence – whether appropriate to consider all of the evidence to determine whether expert evidence should have been admitted – whether pathologist able to give evidence as to the causal connection between exposure to asbestos dust and lung cancer, given current state of medical knowledge
TORTS – causation – whether increase in risk can be equated with factual causation – whether liability requires satisfaction of the necessary condition test – whether open to Tribunal to accept pathologist’s opinion as to link between exposure to asbestos dust and lung cancer
EVIDENCE – Objections to competence of proposed expert witnesses – Whether evidence relevant – Whether witnesses lacked specialised knowledge – Whether independence required
CONTRACT – building engineering and related contracts – principal served notices to show cause for substantial breach on contractor– whether substantial breach of obligation under cl 30.1 to use the standard of materials or provide the standards of workmanship required by the contract – whether substantial breach of obligation under cl 30.3 to comply with superintendent’s directions – whether substantial breach of obligation under cl 33.1 to proceed with the work with due expedition and without delay – whether notices invalid because defective in content or form, wanting particulars, or being prolix and confusing – general conditions of contract AS 2124–1992, clauses 30, 33, 44.
CONTRACT – building engineering and related contracts – content of the contractual requirement of cl 33 to proceed with the works with due expedition and without delay – obligation to work to approved construction program – whether grounds for unapproved extensions of time relevant – general conditions of contract AS 2124–1992, clauses 33, 35.
CONTRACT – building engineering and related contracts – whether principal obliged to act reasonably in serving show cause notices – whether contractor failed to show reasonable cause why principal should not exercise a right under cl 44.4 to take the work remaining to be completed out of the hands of the contractor – principal’s obligations when evaluating response of contractor to a show cause notice – whether principal obliged to act reasonably in serving notice to take the works out of the hands of the contractor – general conditions of contract AS 2124–1992, cl 44.
CONTRACT – building engineering and related contracts – principal serves notices to take the works out of the hands of the contractor – whether principal repudiated contract.
CONTRACT – building engineering and related contracts – principal takes the works out of the hands of the contractor – principal completes the project works to an enhanced scope of works – principal served on contractor a costs to complete certificate – whether cost to complete certified a cost of the works provided for under the contract – whether costs to complete certificate final and binding or reviewable for error – whether principal entitled to common law damages in addition to debt due under certificate – where no claim made for liquidated damages – entitlement of principal to delay damages at common law – general conditions of contract AS 2124–1992, cl 44.
EVIDENCE – admissibility – opinion evidence – exception under s 79 – requirements for admissibility – Evidence Act 2008 (Vic) ss 55, 56, 76, 79.
PRACTICE AND PROCEDURE – expert evidence taken by concurrent evidence sessions following joint conclaves – late objection to admissibility of expert evidence – conditional admission of evidence – ruling reserved to judgment – whether good reason to defer ruling – circumstances include pre-trial case management of large proceeding by trial judge directed to preparation of expert evidence by concurrent evidence sessions following joint conclaves – Civil Procedure Act 2010 ss 8, 9, 49 – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 Order 3 Chapter II (Technology Engineering and Construction Cases) (TEC Rules) – Practice Note No. 2 of 2009 The Technology Engineering and Construction List.
EVIDENCE – Expert evidence – Expert’s reports – Rules of court as to admissibility of expert’s reports – Rule 31.28 of Uniform Civil Procedure Rules 2005 (NSW) – Whether “exceptional circumstances” exist supporting the admissibility of expert’s reports – Whether substantial prejudice exists preventing the admission of expert’s reports.
EVIDENCE – Tender of MYOB records – Whether sufficient evidence exists to establish how MYOB records were prepared – Whether business records under s 69 of Evidence Act 1995 (NSW).
TORTS – negligence – contributory negligence – apportionment – collision of unknown motor vehicle with bicycle – gross intoxication of plaintiff and failure to wear helmet – significant injuries to spine – failure to take care only relevant to apportionment where particular failure led to particular harm – onus on defendant to show particular failure – unable to prove nexus of intoxication to loss of control – no error shown in judge’s assessment of 5% contribution for lack of helmet
APPEAL AND NEW TRIAL – appeal – general principles – interference with Judge’s findings of fact – whether trial judge failed to use or misused forensic advantage – trial judge found plaintiff to be a witness of truth and persuaded by consistency of contemporaneous evidence – insufficient evidence at appeal to establish misuse of forensic advantage – trial judge’s findings undisturbed
TRADE MARKS – Whether respondents’ mark deceptively similar to applicants’ mark – Whether honest concurrent use – Whether use of respondents’ mark likely to deceive or cause confusion, because applicants’ mark had acquired reputation in Australia or due to convergence of goods sold under each mark – Whether discretionary factors justify maintenance of registration of respondents’ mark – Whether infringement of applicants’ trade mark – Whether second respondent liable as joint tortfeasor – Whether applicants’ or respondents’ mark should be removed from the Register due to non-use in respect of particular goods or services
PROCEDURE – non-publication order under Court Suppression and Non-Publication Orders Act 2010 – whether order necessary to protect safety of any person – meaning of “necessary” – whether increase in media attention constituted threat to safety. PROCEDURE – Anshun estoppel – not applicable to interlocutory orders – whether party still free to re-litigate interlocutory application without change of circumstances. EVIDENCE – expert evidence – security and safety experts – UCPR expert witness code of conduct – failure to provide code to witness before preparing report – whether cured by later affidavit asserting compliance with code. EVIDENCE – expert evidence – compliance with experts code of conduct and Makita requirements – failure to comply – failure to identify material relied upon in expert report – failure to disclose reasoning process – no demonstration of application of specialised knowledge.
Evidence – expert report – relevance of expert reports to issues in the proceedings – proof of assumption rule – whether underlying assumptions admissible as part of business records or as admissions
TORTS – negligence – medical negligence – whether general practitioner made a wrong diagnosis – a lesion on the foot diagnosed as a plantar wart – whether there was a misdiagnosis of the lesion – whether it was an acral lentiginous melanoma (ALM) – whether there was failure to consider ALM as a differential diagnosis – whether there was failure to refer the plaintiff for specialist investigation – whether there was a failure to perform a punch biopsy of the lesion – plaintiff suffered a plantar wart and also had an ALM – duty of care owed – negligence established – whether there would have been a different outcome if ALM had been earlier treated – causation not established – section 50 of the Civil Liability Act – judgment for defendant – costs
EVIDENCE – admissibility and relevance – opinion evidence – medical evidence – objections to expert evidence
EVIDENCE – witnesses – credit – credibility of evidence – reliability of evidence
TAXATION – notices to furnish information issued by Deputy Commissioner pursuant to s 264(1)(a) of Income Tax Assessment Act 1936 (Cth) – notices directed to Australian bank – information sought in notices provided to bank from subsidiary in Vanuatu – information stored electronically in Australia – whether notices invalid – whether notices require bank to breach common law and statutory confidentiality obligations under Vanuatu law – whether s 264 authorises Commissioner to issue notices that infringe foreign sovereignty – whether notices were issued for a proper purpose – whether notices are uncertain – whether bank “not capable of complying” with notices within meaning of s 8C(1B) of Taxation Administration Act 1953 (Cth) – application dismissed
CRIMINAL LAW – appeal – conviction – unreasonable verdict – unsupported by the evidence – circumstantial evidence – circumstantial evidence to be considered as a whole -reasonable doubt on independent assessment of the evidence – jury advantage in hearing evidence insufficient to resolve reasonable doubt.
CRIMINAL LAW – appeal – conviction – identification evidence – probative value – “displacement effect” – appropriate directions – whether evidence of similar appearance is identification evidence. CRIMINAL LAW – appeal – conviction – expert evidence – identification and proof of assumptions by admissible evidence – qualification of expert – weight to be given to expert evidence.
CRIMINAL LAW – appeal – conviction – expert evidence – breach of Expert Witness Code of Conduct – whether breach of Expert Witness Code of Conduct goes to admissibility or weight – discretionary exclusion of evidence of expert who breaches Code of Conduct.
CRIMINAL LAW – appeal – conviction – evidence – admissibility – relevance.
CRIMINAL LAW – appeal – conviction – whether a conclusion of fact is an indispensable intermediate fact – need for a Shepherd direction – Shepherd direction not required.
CRIMINAL LAW – appeal – conviction – whether trial miscarried because of prejudice occasioned by the Crown prosecutor – prosecutor’s duty of fairness – whether prosecutor breached trial judge’s ruling – whether prosecutor invited jury to invert the onus of proof – whether prosecutor impermissibly gave personal opinions – whether prosecutor misrepresented evidence – whether prosecutor failed to adhere to case theory.
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – need for evidence of enterprise and participation by the accused.
CRIMINAL LAW – evidence – lack of evidence to support motive – dangers of inviting speculation as to motive – whether unfair prejudice occasioned.
CRIMINAL LAW – new and fresh evidence – evidence not disclosed by prosecution at time of trial.
EVIDENCE – admissibility – expert opinion – whether expert report shows conclusions reached were based on specialised knowledge – whether any reasoning process disclosed – whether in any event report should be rejected on discretionary grounds.
REAL PROPERTY – where as part of their divorce settlement in the Family Court, the plaintiff (husband) and the first defendant (wife) were confirmed as tenants-in-common in equal shares of a unit and they were both named as owners on the certificate of title – where the first defendant sold the unit without the knowledge or consent of the plaintiff and forged the plaintiff’s signature on the contract of sale, the transfer and two authorities which purported to authorise her to act on the plaintiff’s behalf in relation to the sale and also to receive all of the net proceeds of sale – where the first defendant alleges an oral agreement whereby the plaintiff agreed to give her his half-interest in the unit in return for her relinquishing her alleged interest in another property and the first defendant also alleges that the sale occurred with the knowledge and consent of her ex-husband and that he authorised her to sign his name on the conveyance documents – issues of credit of witnesses – whether there was an agreement between the plaintiff and the first defendant that the plaintiff would pay money to the first defendant periodically in relation to a partnership business that they ran together which was subsequently run solely by the plaintiff – where the plaintiff also brings an action against the Registrar-General seeking compensation from the Torrens Assurance Fund for the loss of his interest in the unit
NEGLIGENCE – where the plaintiff brings an action in negligence against the solicitor who handled the sale of the unit – where the plaintiff and the first defendant spoke Chinese but the solicitor did not – where the first defendant and the plaintiff were completely unknown to the solicitor – where the first defendant attended the solicitor’s office twice with her cousin who was presented to the solicitor as her ex-husband – where the solicitor only took instructions from the first defendant and made no effort to ensure that the person he thought was her ex-husband understood the effect of those instructions – where the first defendant presented the signed contract of sale, transfer and two authorities to the solicitor on which the plaintiff’s signature was forged by the first defendant – whether there was a duty on the part of the solicitor to seek photographic identification to ensure that his clients were who they said they were – checking that the certificate of title is not a forgery is not sufficient – CAUSATION – whether the solicitor’s breaches of duty owed to the plaintiff as found caused the plaintiff’s loss – whether a false attestation of the plaintiff’s apparent signature on the transfer is a novus actus interveniens which breaks the chain of causation
TORTS – conversion – whether the solicitor wrongfully converted property jointly owned by the plaintiff and the first defendant ie the certificate of title, and wrongly converted the cheques representing the proceeds of sale of the unit by acting on the forged authority given by the first defendant to him and giving those cheques to the first defendant alone
EVIDENCE – Expert evidence – valuation of land – valuer proffers valuation evidence based on differing assumptions as to whether representations made about subject property were or were not true – valuer said not to sufficiently disclose reasoning underlying opinion – reasoning sufficiently exposed to enable testing in cross-examination – valuer provides figure of ten percent as to effect of representations – no underlying reasoning to explain figure – does not necessarily mean not based on specialised training, knowledge, study or experience – evidence admissible.
(NSW) Evidence Act 1995 , s 56, s 76, s 79
EQUITY – equitable remedies – recoupment – trust – mortgaged real property settled on trust – settlor remained liable to lender on a loan agreement that was secured over property following settlement of that property on the trust – loans paid by trust – whether recoupment available to trustee from settlor – whether vis-à-vis settlor, obligation of trustee to repay loans was an ultimate or secondary obligation – recoupment refused.
EQUITY – equitable remedies – Rule in Milroy v Lord – perfection of incomplete gift of foreign land – whether transfer of land in Thailand and/or proceeds of its sale by Australian resident owner to an Australian resident trustee of a trust effectively completed by transferor – land being marketed for sale – death of trustee prior to sale – legal title remained with transferor – whether executors obliged in equity to complete the transfer – possession and title to land lost to adverse possessor prior to trial – relief refused.
EVIDENCE – claims against deceased estate – general requirement for scrutiny and caution – particular circumstances dictating a cautious approach discussed.
EVIDENCE – opinion evidence – valuation of land – methodology – direct comparison method using an unaccepted offer to sell or asking price – whether opinion admissible – Evidence Act 2008 s 76, 79.