Category Archives: s. 144

Denney v Lusted [2015] TASSC 10 (23 March 2015)

Magistrates – Hearing – Conduct of magistrates – Participation – Questioning by magistrate using internet images of scene not in evidence.

R v Esposito (1998) 105 A Crim R 27, referred to.

Aust Dig Magistrates [1119]

Criminal Law – Evidence – Credibility – Failure to put matter to witness – Unfairly drawing adverse inference from failure of the accused to dispute prosecution evidence.

MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329, applied.

Aust Dig Criminal Law [2875]

Kaur v Victorian WorkCover Authority [2014] VSCA 300 (26 November 2014)

ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) s 134AB(16)(b) – Common law damages – Discogenic injury to lower back – Whether appellant had suffered a ‘serious injury’ within the statutory definition – Whether judge breached the requirements of natural justice – Whether judge should have taken judicial notice that possible future pregnancy may exacerbate back pain – Failure of appellant to adduce medical evidence of effect of future pregnancy – Appeal dismissed – Steen v WorkSafe Victoria [2014] VSCA 299; Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8; Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436; Re Refuge Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.

Ng v Filmlock Pty Ltd [2014] NSWCA 389 (13 November 2014)

CONTRACTS – contract for sale of land – termination for breach – measure of the vendors’ loss – whether the primary judge erred in finding that the measure of loss was the difference between the price payable under the contract and the net amount attributable to the land under a resale contract 13 months later – whether the prima facie rule governing damages for breach of a contract for sale of land should give way where there was no “available market” at the time of breach – no evidence before the primary judge as to the market value of the land at the date of breach

Australian Competition and Consumer Commission v Air New Zealand Limited [2014] FCA 1157 (31 October 2014)

TRADE PRACTICES – price fixing – alleged arrangements or understandings between airlines to fix fees and surcharges in relation to the carriage of air cargo – Trade Practices Act 1974 (Cth) ss 45 and 45A – whether airlines engaged in collusive practices – whether airlines bound by domestic law or practice of foreign countries to fix charges

TRADE PRACTICES – price fixing – whether alleged price fixes had purpose, or were likely to have the effect, of substantially lessening competition in a market in Australia – whether markets were ‘in Australia’ for the purposes of Trade Practices Act 1974 (Cth) s 4E – definition of market – assessment of substitution and switching behaviour – assessment of product, geographical and functional dimensions

EVIDENCE – proving a contract, arrangement or understanding within the meaning of Trade Practices Act 1974 (Cth) s 45 – circumstantial proof of collusive behaviour – evidence to be looked at as a whole

Commissioner of Police v Pecover [2014] NSWSC 1427 (20 October 2014)

CRIMINAL LAW – application by police to have computer drives that were found to contain child pornography forfeited to the Crown – onus of proof on person claiming lawful entitlement to possession

APPEAL – Magistrate misapprehended
s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – failure to give any reasons for decision – took account of matters of technical nature that were not “common knowledge” – Magistrate’s orders set aside and remitted to Local Court

Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCAFC 101 (8 August 2014)

INDUSTRIAL LAW – application of s 553 of the Fair Work Act 2009 (Cth) – where applicant convicted of criminal contempt in the Supreme Court of Victoria – whether proceedings for pecuniary penalty order stayed or dismissed in so far as there is conduct that is substantially the same – whether s 553 operates where contempt of court alleged

Farkas v R [2014] NSWCCA 141 (30 July 2014)

CRIMINAL LAW – appeal against sentence – ongoing drug supply – misapprehension of fact about applicant’s motivation – no evidence of financial gain – whether financial gain an element of the offence

EVIDENCE – finding as to ‘normal street purity’ of drug – use of other cases as evidence of fact – judicial notice – lack of clarity of fact in issue – lack of notice to offender

EVIDENCE – whether Evidence Act 1995 (NSW) applies in sentencing proceeding – what rules apply if Act does not apply – Evidence Act 1995 (NSW), s 4

PROCEDURAL FAIRNESS – judge relying on own enquiries about factual matter without notice to offender

WORDS AND PHRASES – “common knowledge” – Evidence Act 1995 (NSW), s 144

B v Director of Public Prosecutions [2014] NSWCA 232 (21 July 2014)

ADMINISTRATIVE LAW – judicial review – appeal from the Local Court to the District Court in respect of a conviction for an offence under the Public Health Act 1991, s 13 dismissed – whether jurisdictional error established

ADMINISTRATIVE LAW – procedural fairness – bias – apprehended bias – whether a bias or apprehended bias – observation not supported by evidence – whether observation matter of judge’s personal opinion – whether observation available as a matter of common experience – whether relief should be granted – matter remitted to the District Court

Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 (26 May 2014)

TORTS – negligence – slip and fall at retail premises – floor recently mopped – mopping not conducted so as to leave dry passageway – no findings by primary judge concerning duty of care and standard of care – such findings essential – appeal court able to make the findings – whether breach of duty of care – if breach, whether it was causative of the damage suffered – contributory negligence – assessment of damages – respective responsibilities of occupier, cleaning contractor and the contractor’s insurer – construction of cleaning contract and insurance contract

Aitkenhead v Kaufline and Insurance Australia Ltd t/as NRMA Insurance (No 3) [2014] ACTSC 83 (9 May 2014)

TORTS – Contributory negligence – collision between two vehicles at the crest of a country road – where plaintiff was negligent in approaching the crest in the centre of the road – whether the plaintiff’s negligence was a cause of the accident – burden rests on the defendant to demonstrate how the plaintiff’s contributory negligence made a difference to the injury suffered – the plaintiff’s negligence did not increase the likelihood of the accident or increase the severity of the damage.

Hughes v The Queen [2014] VSCA 4 (6 February 2014)

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.

470 St Kilda Road v Robinson [2013] FCA 1420 (20 December 2013)

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.

Taheri v Vitek [2013] NSWCA 438 (11 December 2013)

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.

Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427 (11 December 2013)

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”

Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 (31 May 2013)

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.

R v Sean Lee King [2013] NSWSC 448 (4 April 2013)

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

HomeSec Finance Express Pty Ltd v Richardson [2012] NSWSC 1375 (14 November 2012)

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

Australian Competition and Consumer Commission v EDirect Pty. Ltd. (in liq) [2012] FCA 976 (6 September 2012)

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

Thompson v Kane (No. 2) [2012] FCA 763 (16 July 2012)

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).

R v Belghar [2012] NSWCCA 86 (4 May 2012)

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

Aytugrul v The Queen [2012] HCA 15 (18 April 2012)

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.

Barlow v Law Society of the Australian Capital Territory [2012] ACTSC 16 (3 February 2012)

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.

Australian Competition and Consumer Commission v Jutsen (No 3) [2011] FCA 1352 (28 November 2011)

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)

Parmar v Minister for Immigration and Citizenship [2011] FCA 760 (7 July 2011)

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

Hobsons Bay City Council v Gibbon & Ors [2011] VSC 140 (12 April 2011)

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.

Brennan v McGuire [2010] FCA 1443 (21 December 2010)

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

Wentworth District Capital Ltd v Commissioner of Taxation [2010] FCA 862 (13 August 2010)

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

Sportsbet Pty Ltd v New South Wales [2010] FCA 604 (16 June 2010)

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

University of Western Australia v Gray [2009] FCAFC 116 (3 September 2009)

[2009] 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

Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240 (11 August 2009)

[2009] NSWCA 240

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

Permanent Trustee Company Limited v O’Donnell and Anor; Permanent Trustee Company Limited v Di Benedetto and Anor; Tonto Home Loans Australia Pty Limited v Tavares and Anor [ 2009] NSWSC 271 (6 April 2009)

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

Riley v Seip [2008] ACTSC 72 (12 August 2008)

[2008] ACTSC 72

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

Jones v Toben [2002] FCA 1150 (17 September 2002)

[2002] FCA 1150

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”

Prentice v Cummins (No 5) [2002] FCA 1503 (5 December 2002)

[2002] FCA 1503

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.

Prentice v Cummins (No 6) [2003] FCA 1002 (24 September 2003)

[2003] FCA 1002

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

Applicant S1983 of 2003 v Minister for Immigrationand Citizenship [2007] FCA 854 (8 June 2007)

[2007] 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

Victorian Women Lawyers’ Association Inc v Commissioner of Taxation [2008] FCA 983 (27 June 2008)

[2008] FCA 983

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

ICI Australia Operations Pty Limited (now known as Orica Australia Pty Limited) & 1 Ors v The WorkCover Authority of New South Wales [2004] NSWCA 55 (11 March 2004)

[2004] 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

Crown Glass & Aluminium P/L v Ibrahim [2005] NSWCA 195 (30 June 2005)

[2005] NSWCA 195

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

Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460; 186 ALR 145; 76 ALJR 483 (7 March 2002)

[2002] HCA 9

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.