CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one charge each of aggravated burglary, intentionally causing serious injury, making a threat to kill and reckless conduct endangering life – Charges relate to two separate incidents in Benalla – Trial judge provided a map to the jury following a request through the tipstaff – Counsel were advised subsequently of the request and the provision of the map – No objection immediately taken – Later a request to discharge the jury – Application for discharge refused – Whether the trial judge erred in providing the map without first communicating that fact to counsel and inviting submissions – Whether providing the map to the jury was a serious departure from the prescribed processes for trial – Application for leave to appeal against conviction refused.
EVIDENCE – Objection to admissibility of expert report on basis that expert opinion intruded impermissibly on the judicial function of the Court – Opinions provided included construction of contract clauses in contest – Objection upheld – Application by cross-respondent under s 144(1)(b) of the Evidence Act 1995 (Cth) to tender bundle of documents – Documents admitted into evidence.
PRACTICE AND PROCEDURE – stay pending appeal – whether appeal bound to fail – balance of convenience – where limited information about appellant’s liabilities – offer to charge appellant’s home to secure judgment debts – offer to attempt to sell specified real property and pay proceeds into Court – undertaking not to dissipate assets and prosecute appeal expeditiously – stay granted on terms.
WORKERS COMPENSATION – coal miners – interpretation of Workers Compensation Act 1987, Sch 6 Pt 18 Cl 3(4) – respondent, who was employed by a supplier of mining equipment, injured in motor vehicle accident while travelling to coal mine to instruct miners in use of equipment – whether, at time of injury, respondent a worker employed “in or about a mine”
CAVEATS – Land Titles Act 1925 (ACT) s 107 – building dispute – termination of contract by builder due to owner’s breach – standard form contract – scope of charging clause
INTERPRETATION – Births, Deaths and Marriages Registration Act 1995, s 32DC – whether the Registrar’s power under s 32DC to register change of a person’s “sex” is limited to registering a change from male to female or female to male.
ADMINISTRATIVE LAW – jurisdiction, Administrative Decisions Tribunal Act 1997, s 119(1) – whether question of law.
INTERPRETATION – extrinsic material – whether regard could be had to second reading speeches, dictionary definitions, academic material and other Acts.
EVIDENCE – proof – judicial notice – whether regard could be had to extrinsic material in the interpretation of the statute.
CRIMINAL LAW – murder – application for a trial before a judge alone – whether in the interests of justice to grant the order sought – whether issue of intention was one which required the application of community standards – whether the nature and extent of pre-trial publicity was such as to render it in the interests of justice that order be granted for a trial by judge alone – whether potential saving to the community is a relevant factor – where appropriate directions will be given to the jury – where it is assumed that such directions will be applied – application for judge alone trial dismissed
CONTRACTS – loan agreements and registered mortgages – proceedings by lender against borrower for possession and monetary order – Contracts Review Act 1980 – loan for a business purpose – not asset lending – whether conduct of “mortgage broker” amounted to agency – consideration of s 9 factual matters – not unjust – lender conduct not “unconscionable” – Trade Practices Act and Fair Trading Act not applicable
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
BANKRUPTCY – Creditor’s petition – appeal from decision of Federal Magistrates Court to make sequestration order – whether Farm Debt Mediation Act 1994 (NSW) applied to the debt – whether a quad bike is a ‘tractor’ or ‘other implement’ – whether debt had been paid
PRACTICE AND PROCEDURE – consideration of an application by a non-legally qualified person for leave to assist and represent the applicant in the proceedings in addressing an Interlocutory Application by the Commonwealth of Australia (the third respondent) for orders dismissing the applicant’s Originating Application – consideration of the circumstances taken into account in determining whether the person seeking leave is a fit and proper person to assist a litigant before the Court – consideration of principles taken into account in determining whether, in the circumstances of the present application, leave ought to be granted
32. Murphy J ultimately made orders requesting that officers of the Queensland Police Service take all such steps as might be reasonably available to them to investigate whether any criminal offences, pursuant to the Queensland Criminal Code, had been committed by the mother or Mr Bell or any other person.
33. Mr Bell strongly disputes any wrongdoing in respect of any of the matters mentioned by Murphy J. Mr Bell also says that he is concerned that particular websites may have been attacked resulting in the posting of unauthorised matter or comments.
34. I have had regard to the observations in these judgments for the purposes of s 144 of the Evidence Act 1995 (Cth).
CRIMINAL LAW – 5F application – jury trial – trial by judge alone – application of s 132 of the Criminal Procedure Act 1986 – whether there is a presumption in favour of a jury trial – what factors are relevant to a determining the interests of justice – whether the subjective views of the accused are relevant to the interests of justice – whether there is evidence to support the subjective views of the accused – whether trial efficiency and reasons are relevant to the interests of justice
Criminal law – Evidence – Admissibility of evidence about DNA analysis – Appellant convicted of murder – Expert gave evidence at trial about mitochondrial DNA testing of hair found on deceased’s thumbnail – Expert’s statistical evidence given in form of frequency ratio and exclusion percentage – Whether evidence of exclusion percentage relevant given evidence of frequency ratio – Whether probative value of evidence of exclusion percentage outweighed by danger of unfair prejudice to appellant – Whether evidence of exclusion percentage misleading or confusing.
Evidence – Judicial notice – Argument for general rule that evidence of exclusion percentage is always inadmissible due to danger of unfair prejudice – Facts underpinning adoption of general rule not proved – Whether judicial notice can be taken of psychological research said to support adoption of general rule.
Words and phrases – “evidence”, “exclusion percentage”, “frequency ratio”, “judicial notice”, “misleading or confusing”, “unfair prejudice”.
Evidence Act 1995 (NSW), ss 135, 137, 144.
PROFESSIONS AND TRADES – lawyers – application for unrestricted practising certificate – professional skill and professional experience – level of skill and experience required – how assessed – nature of “unrestricted practising certificate” – further submissions required.
TRADE PRACTICES – pyramid selling schemes – internet based scheme – where new participants required to make a one off membership payment to participate in the scheme – where prospective members induced by the prospect of making money by recruiting new members – whether services purportedly offered to members are of little or no value – whether respondents participated in the scheme – whether association formed by the respondents which promoted and supported membership of the scheme, including by way of internet sites, was for the purposes of s 65AAD of the Trade Practices Act 1974 (Cth) a scheme in itself
TRADE PRACTICES – misleading and deceptive conduct and false or misleading representations – whether respondents adopted or endorsed representations – representation that services had a benefit that they did not in fact have – representation of affiliation or approval that did not in fact exist
TRADE PRACTICES – pyramid selling schemes – misleading and deceptive conduct and false representations – application of Trade Practices Act 1974 (Cth) to natural persons – conduct of respondents involved the use of the internet and thereby a telegraphic service within the meaning of s 6(3)(a) of the Trade Practices Act 1974 (Cth)
Held: respondents participated in a pyramid selling scheme in contravention of s 65AAC of the Trade Practices Act 1974 (Cth) – respondents engaged in misleading and deceptive conduct – respondents made false or misleading representations
Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth), Sch 7 Subitem 7(1)
Evidence Act 1995 (Cth) s 144(1)
IMMIGRATION – Visas – skilled graduate visa – English language test requirements – appeal from Federal Magistrates Court upholding decision to refuse visa – whether regulation defining ‘competent English’ states a sufficient or necessary standard – whether valid – Migration Regulations 1994 (Cth) reg 1.15C
Evidence Act 1995 (Cth) ss 136, 144
EQUITY – Estoppel – Proprietary estoppel – Encouragement and standing by – Claims for irrevocable licences over municipal land – Persons encouraged to build boatsheds in fishing village on municipal land 45 years before – Numerous subsequent transfers – Current occupiers unable to establish that predecessors had reasonable expectation of permanent tenure induced by conduct of Council – Subsequent payments and improvements insufficient to establish irrevocable licences or other equities – Estoppel claims also confronted by statutory provisions – Estoppel claims not made out – Local Government Act 1958 (as amended from time to time) ss 3, 8, 236, 237, 238, 239, 240A; Local Government Act 1989 ss 189, 190, 191, 192.
85. From late 2007 world financial markets began to experience difficulties that became known as the “global financial crisis”. The crisis developed in 2008 reaching its nadir around September 2008. In general the value of securities and investments on markets worldwide, including in Australia, declined markedly over this period. This crisis was not the subject of any detailed evidence, but is so well known that proof of it is not necessary under s 144(1)(a) of the Evidence Act 1995
INCOME TAX – Exemption – Not-for-profit corporation established to facilitate the provision of face-to-face banking services in a rural town lacking such a service – Whether established for “community service purposes” –s 50-10 Income Tax Assessment Act 1997 (Cth)
EVIDENCE – Judicial notice – Non-local geographical location – Published map
Evidence Act 1995 (Cth) s 144
Appeal against decision of Local Court Magistrate
speed measuring device
errors of law
whether discretion not to remit to Local Court
Evidence Act 1995 s 144, s 144(1)(a), s 144(4)
Evidence Act 1995 (Cth) ss 74, 78, 79, 135, 144
CONSTITUTIONAL LAW – Freedom of interstate trade – New South Wales law authorising imposition of licence condition requiring fee to be paid to New South Wales racing control bodies – Racing control bodies impose fee condition on all wagering operators regardless of the State or Territory of operation – Racing control bodies put in place exemptions and subsidies reducing number of New South Wales wagering operators economically exposed to fee to negligible number – Whether the fee condition, subsidies and exemptions inseverable aspects of single measure – Whether fee effectively only borne by interstate traders
CONSTITUTIONAL LAW – Inconsistency of laws – s 49 of Northern Territory (Self-Government) Act 1978 (Cth) requires trade, commerce and intercourse between the North Territory and a State to be free – New South Wales law prohibits racing control bodies from imposing fee on wagering operators which interferes with freedom of trade between New South Wales and the Territory – Racing control bodies impose such a fee – Whether conduct contravenes s 49
Evidence Act 1995 (Cth) ss 140, 144
PROCEDURE – pleading – application to strike out portions of defence as inconsistent with earlier admission.
EVIDENCE – admission before action – admission by defendant’s insurer – circumstances in which admission may be withdrawn.
Evidence Act 1995 (Cth), s 144
 FCAFC 116
CONTRACT – implication of terms in law – person employed by university as professor of surgery – express contractual obligations, inter alia, to undertake research, to organise research and generally to stimulate research among the university’s staff and students – employee part of a team carrying out research directed to treatment of tumours in the liver – funding of the research came from numerous bodies – the employee had been engaged on research of that kind before joining the staff of the university as well as during his tenure there – inventions and applications for and the grant of patents resulted from the research – whether implied term that the university had proprietary rights in the inventions, patent applications and patents – whether term implied in law that employee held them upon trust for the university – special features of universities and academic pursuits – freedom to publish results of research.
Held: there was no “duty to invent” and the conditions required for the implication of a term at law were not satisfied.
FIDUCIARY DUTIES – person employed by university as professor of surgery – express contractual obligations, inter alia, to undertake research, to organise research and generally to stimulate research among the university’s staff and students – employee part of a team carrying out research directed to treatment of tumours in the liver – funding of the research came from numerous bodies – the employee had been engaged on research of that kind before joining the staff of the university as well as during his tenure there – inventions and applications for and the grant of patents resulted from the research – whether implied term that the university had proprietary rights in the inventions, patent applications and patents – whether term implied in law that employee held them upon trust for the university – special features of universities and academic pursuits – freedom to publish results of research.
Held: in absence of implication of terms in law, there was no independent fiduciary obligation of a kind and scope that made employee accountable to university for the inventions, applications for patents, or patents.
PATENTS – inventive concept – identification of inventive concept – time when inventive concept was complete – identification of inventors – person employed by university as professor of surgery – express contractual obligations, inter alia, to undertake research, to organise research and generally to stimulate research among the university’s staff and students – employee part of a team carrying out research directed to treatment of tumours in the liver – funding of the research came from numerous bodies – the employee had been engaged on research of that kind before joining the staff of the university as well as during his tenure there – inventions and applications for and the grant of patents resulted from the research – claim by university that employee accountable to university for inventions, patent applications and patents resulting from research done by him during and in course of his employment – whether inventive concept was complete during period of his employment – distinction between inventive concept on one hand and verification and reduction to practice on other hand – whether employee was the inventor.
CONTRACT – express terms – person employed by university as professor of surgery – contractual term incorporating university’s patents regulations to effect that employee making an invention during and in the course of employment must promptly notify Vice-Chancellor who is to refer matter to Patents Committee for recommendation whether university should assert rights in invention and apply for a patent – university’s failure to maintain patent committee mechanism – failure to maintain mechanism on which its rights dependent – non-fulfilment of contingent condition.
Held: on the evidence, university had abandoned the patent committee mechanism and the term incorporating the patent regulations did not avail university.
Evidence Act 1995 (Cth) s 144
PARTNERSHIP – partners – power of a partner to bind the partnership – determining the “business of the kind carried on by the firm” for the purpose of s 5 Partnership Act 1892 – whether “business of the kind carried on by the firm” is necessarily the business actually carried on by the partnership – meaning of “the usual way” in which the business is carried on – whether a judge can inform themselves using “common sense” of the business ordinarily carried on by a type of partnership firm – role of judicial notice in deciding this – PARTNERSHIP – partners – power of a partner to bind the partnership – ostensible authority – whether the ostensible authority of a partner is limited to what is necessary to carry on the partnership business – distinction between what is necessary to carry out a particular task and what is necessary to carry out the business of the partnership – PARTNERSHIP – partners – relevance of registration under Business Names Act 1962 to proof of identity of partners – difference between statutory facilitation of proof of identity of partners under Business Names Act 1962 and Business Names Act 2002 – APPEAL AND NEW TRIAL – appeal – general principles – interference with Judge’s findings of fact – limitations on an appellate court’s ability to assess the evidence – limitations extending beyond the trial Judge’s assessments of demeanour – advantages of a trial judge in weighing the account of a witness against contemporaneous documents – CONTRACTS – general contractual principles – parties – identification of parties – whether an objective bystander would conclude that a party to the contract was purporting to act on behalf of the partnership – CONTRACTS – general contractual principles – formation – whether a party can be held to an improbable promise where another party believes that the fulfilment of the promise was possible – whether such a contract can exist – EVIDENCE – witnesses – failure to call – inferences to be drawn – whether a Jones v Dunkel inference is open on the facts – no requirement for the trial judge to draw an adverse inference
PROCEDURE – interest – inherent jurisdiction to award interest on claim for equitable contribution – interest as compensation for loss of value of money – costs – determination of the “event” – factors relevant to costs discretion
Practice and Prodedure
intervention by ASIC
whether material subject to rules of evidence
whether material sufficiently convincing to be taken into account
Evidence Act 1995 s 144
DAMAGES – personal injury – motor vehicle collision – whiplash injury to neck – injury to C1-2 facet joint – substantial impairment of earning capacity – chronic neck pain – effect of other injuries before and after cause of action
Evidence Act 1995, s 144
APPEAL FROM MAGISTRATE – driving offence – drive motor vehicle with a prescribed concentration of alcohol in the blood – Drager breath analysing instrument – breathalyser reading certification prima facie evidence of the presence of the concentration – reliability of breathalyser – calibration of machine
EVIDENCE –– evidence of intoxication – evidence of alcohol consumption – prosecution to prove accused had driven motor vehicle with prescribed concentration of alcohol in blood – evidential burden on accused to cast reasonable doubt on result obtained
Evidence Act 1998 (Cth), s 144
HUMAN RIGHTS AND DISCRIMINATION LAW – racial discrimination – racial vilification – proceedings to enforce determination of Human Rights and Equal Opportunity Commission – hearing de novo of original complaint – representative claim – necessity for class to be closed – entitlement of applicant alone to institute proceeding – whether Jews in Australia constitute a group of people with common “ethnic origin” – whether non-password protected website caused material to be `communicated to the public’ – meanings of the words offend, insult, humiliate, or intimidate – ordinary meaning — whether publication of material on website reasonably likely to offend or intimidate Jews in Australia – objective test – real effects – whether “ethnic origin” one factor in the content of material on website
RACIAL VILIFICATION – applicable principles in determining whether material reasonably likely to offend, insult, humiliate or intimidate – principles of defamation – objective test – whether imputations would be conveyed to an ordinary reasonable reader
PRACTICE AND PROCEDURE – Federal Court Rules – summary judgment – repeated failure of respondent to file a defence – respondent unwilling to cooperate in bringing proceeding to trial
RELIEF – injunctions – utility of injunction to restrain Internet publication – whether apology or retraction should be ordered
WORDS AND PHRASES – “likely”, “offend, insult, humiliate or intimidate”, “because of”
EVIDENCE – judicial notice – Evidence Act 1995 (Cth), s 144 – whether Court can take judicial notice of Bills forming “trigger” for double dissolution of Commonwealth Parliament – whether unfair to permit party to rely on such material where it had not been identified prior to supplementary written submissions.
PRACTICE AND PROCEDURE – no case submissions – principles to be applied where evidence is said to be insufficient to support applicant’s case.
BANKRUPTCY – Bankruptcy Act 1966 (Cth) – s 121 – voluntary transfer by bankrupt of matrimonial home and shares – bankrupt a practising barrister who had not lodged a tax return for many years – whether evidence sufficient to establish for the purposes of a no-case submission that bankrupt’s “main purpose” was to defeat or delay creditors.
PRACTICE AND PROCEDURE – motion to separate causes of action the subject of earlier no case submissions from remaining causes of action – respondents had elected to call no evidence in relation to the causes of action subject to the no case submissions – applicants entitled to cross examine respondent on all issues relevant to proceedings, including the causes of action the subject of no case submissions
BANKRUPTCY – application pursuant to s 121 of the Bankruptcy Act 1966 (Cth) – quantum of Bankrupt’s beneficial interest in matrimonial home registered in joint names – Bankrupt’s wife contributed nearly two-thirds of purchase price – presumption of resulting trust rebutted – common intention to acquire property as joint beneficial owners -Trustees entitled to 50 per cent of net proceeds of sale
BANKRUPTCY – whether Bankrupt was beneficially entitled to share held in his name – company acquired by the Bankrupt’s wife to act as trustee of her family trust – wife paid for share and acquisition costs – presumption of resulting trust applies – Trustees’ claim to share dismissed
Evidence Act 1995 (Cth), ss 11, 27, 26(a), 135(a), (b), 144
 FCA 854
MIGRATION – appellant claimed in his protection visa application to fear persecution because he was low caste – discussion at Tribunal hearing as to whether appellant claimed persecution on basis of being a Sindhi or a Dalit (low caste) – whether Tribunal misunderstood distinction between being a Sindhi and a Dalit – whether Tribunal considered appellant’s claim to fear persecution on basis of being a Dalit – whether further evidence permitted to be received on appeal regarding the meaning of the terms Sindhi and Dalit – Held: further evidence received on appeal – Tribunal failed to address the claim advanced by the appellant
Evidence Act 1995 (Cth) s 144
TAXATION – income tax – charitable institution – association for advancement of women in legal profession – whether association charitable institution – whether purposes “beneficial to the community” – public benefit – political purposes – whether association established for community service purposes – political or lobbying purposes – taxpayer held to be charitable institution – appeals allowed
Evidence Act 1995 (Cth) s 144
 NSWCA 55
WORKERS COMPENSATION – DUST DISEASES – INSURANCE – meaning of “employment to the nature of which the disease was due” in s 151AB of the Workers Compensation Act 1987 – whether the Court is required to have regard to the actual occupational disease suffered by the worker – standard of proof required – extent to which Judges of the Dust Diseases Tribunal are entitled to rely upon their knowledge as members of a specialised tribunal – insolvent insurers – whether s 232 of the Workers Compensation Act 1987 confers a discretion on the WorkCover Authority to make payments out of the Insurers’ Guarantee Fund – capacity in which an insurer designated pursuant to s 151AC of the Workers Compensation Act 1987 makes a payment to or on behalf of an employer – whether the WorkCover Authority has power to reimburse an employer pursuant to s 232 where the employer’s liability has been discharged by the designated insurer – effect of undertaking to the Dust Diseases Tribunal by the WorkCover Authority that it would reimburse employer – D
Motor vehicle accident
Griffith v Kerkemeyer damages
Burnicle v Cutelli
loss of capacity
damages for care
inability to care for children
impairment of ability to lead a normal life
reduction of damages for vicissitudes
Motor Accidents Act 1988 (NSW) ss 72(2), 79, 80
WORKERS COMPENSATION – Employee assaulted outside his home – Whether injury occurred in the course of employment – Whether at the time of assault employee carrying sum of money for purpose of paying wages
EVIDENCE – Appeals – Question of law – Circumstances in which finding of fact can reveal error of law – Conflicting evidence concerning source of the sum of money – Employee’s primary evidence regarding source of money altered as a result of cross-examination – Whether evidence as accepted by primary judge could properly base his finding of fact that employee had money on him when assaulted – Whether primary judge’s conclusion of fact involved a form of rationalisation in order to enable a finding in employee’s favour which was otherwise unsupported by evidence
Negligence – Occupier’s liability – Duty of care – Eye injury suffered by player of indoor cricket – Failure to provide protective helmet – Failure to warn of specific risk of eye injury – Whether conduct of occupier reasonable in the circumstances – Relevance of industry practice and rules of game – Relevance of obviousness of risk – Voluntary assumption of risk – Causation of damage.
Evidence – Judicial notice – Whether judicial notice can be taken that institutions such as the respondent use a standard form of guarantee.
Guarantee – Consequence of person named as co-surety not being shown to have executed guarantee.
Practice and procedure – High Court – Determination of appeal – Appellants’ ground of appeal succeeds – Notice of Contention – Whether respondent should have leave to amend contentions sought in motion filed immediately before appeal hearing – Whether outstanding issues should be determined in intermediate appellate court.
Words and Phrases: “judicial notice”, “common knowledge”.
Evidence Act 1995 (NSW), s 144.
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Duty of care – Fatal injuries.
Evidence – General – Judicial notice – Matters not requiring proof – In general – Asbestos – Possible effects of exposure.
Evidence Act 2001 (Tas), s144(1)(a).
Re E M Murray [1964 - 5] NSWR 121; Mutemeri v Cheesman  4 VR 484; X and X  FamCA 2254; (1999) 26 Fam LR 51; R v Mason  NSWCCA 82, referred to.
Aust Dig Evidence 
INTELLECTUAL PROPERTY – Designs – whether Designs Act 2003 (Cth) applies to extraterritorial conduct – whether alleged infringer’s subsequent registration of designs in respect of her own products is relevant to the questions of infringement or validity of the allegedly infringed design –whether a design that combines various features, each of which can be found in the prior art base when considered individually but not collectively in any one particular piece of prior art, is capable of being distinctive – whether infringement analysis is undertaken by comparing allegedly infringing product with registered design or with a product embodying the registered design – authorship – who is an author of a design – whether an independent contractor can be a co-author of a design – design register – what constitutes the design register – whether a design will be invalid for lack of clarity if the relevant features appear from the registered representations without necessity for unreasonably prolonged or complicated series of deductions – substantial similarity as judged objectively by hypothetical “informed user” – whether “informed user” is more informed than an average user but less informed than a expert – whether party has duty to check the design register where the product embodying the design carries a registration notice and the substantial similarity of the allegedly infringing, later-designed product permits the inference that the party had access to the product embodying the registered design and did or should have seen the registration notice – damages – lost sales – whether infringer’s sales may be claimed by design owner on a one-to-one basis in calculating damages
EVIDENCE – judicial notice – whether court may take judicial notice of design representations displayed on IP Australia website – whether circulars published by the Administrator of Vehicle Standards constitute legislative instruments of which the court may take judicial notice – whether substantial similarity of two products permits an inference that designer of later created product had reference to earlier-created work – whether court may take judicial notice of matter requiring basic computer literacy
TRADE PRACTICES – accessorial liability – actual knowledge – whether representation of compliance with law may be misleading where it is based upon a commonly shared mistake of law – damages – lost sales – whether sales lost by virtue of defendant’s misleading conduct greater than sales lost by virtue of defendant’s infringement
WORDS AND PHRASES – “Design Register,” “informed user,” “primary infringer,” “secondary infringer”
CRIMINAL LAW – trial by judge alone – charges of burglary and theft – Crown case substantially dependent upon fingerprint found on allegedly stolen item – whether sufficient
ORDER NISI – to review decision of Magistrate – respondent driving with level 4 alcohol in blood after drinking four beers – Magistrate had reasonable doubt as to respondent’s guilt – limits of judicial notice – absence of expert evidence.
PROCEDURE – pleading – application to deliver amended defence – some amendments inconsistent with earlier admissions
EVIDENCE – admission before action – admission by defendant’s insurer – circumstances in which admission may be withdrawn
TRADE PRACTICES – misleading and deceptive conduct – notices inviting business entities to register a domain name – found to be a misleading representation that the notice was for the renewal of the recipient’s existing similar domain name – whether trial judge should have required admissible evidence as to characteristics of recipients – whether s 144 Evidence Act 1995 (Cth) applicable – whether recipients of notices members of a specialist market – whether a significant number of members of group must be misled
COSTS – Calderbank offer by defendant – plaintiff recovering less than amount offered – relevant considerations
CRIMINAL LAW - trial by judge alone – murder- whether any evidence of requisite intent or recklessness – whether evidence to support alternative verdict of manslaughter – whether self defence excluded.