Category Archives: s. 026

Investa Properties Pty Ltd v Nankervis (No 6) [2014] FCA 804 (1 August 2014)

PRACTICE AND PROCEDURE – s 26(a) and (c) and s 42 Evidence Act 1995 (Cth) – manner in which evidence to be given by litigants in person – whether respondents have same interests in proceeding – whether respondents should be allowed to cross-examine each others’ witnesses – sequence of cross-examination

Rashid v Smar Pty Ltd [2013] NSWSC 1712 (18 November 2013)

JUDICIAL REVIEW – appeal from judgments of Local Court – leave to appeal from an interlocutory order of the Local Court – whether plaintiff was denied procedural fairness – plaintiff was unrepresented and had language difficulties – whether Magistrate erred in finding no triable issue – costs.

Denlay v Commissioner of Taxation [2011] FCA 1092 (9 June 2011)

EVIDENCE – voir dire – illegal or improperly obtained evidence – where witness sought to be cross-examined on material that was derived from information obtained by an allegedly unlawful act – whether this derived evidence was admissible – where respondent not involved in impropriety – where taxation officers able refer to broad information base when making assessments or where assessments deemed lawful in Full Court proceeding – application of Pearce v Button discretion to admit evidence – cross-examination allowed to continue

Evidence Act 1995 (Cth) ss 26, 43, 138

Strata Plan 61287 & Anor v Brookfield Multiplex Limited & Ors [2011] NSWSC 1302 (2 November 2011)

PRACTICE AND PROCEDURE – Deconsolidation of proceedings – proceedings involving residential and commercial strata corporations previously consolidated as shared common substratum of facts – commercial corporation unable rely on statutory warranties – of itself insufficient to warrant deconsolidation – general position that plaintiffs should be represented by one solicitor – rule may be dispensed with in certain circumstances – circumstance that commercial corporation loses faith in solicitor – sufficient degree of change in circumstance to warrant deconsolidation – defendants contend deconsolidation will result in trial being attended by issues such as double cross-examination of defendant witnesses – extent to which such issues arise attenuated by (NSW) Evidence Act provisions allowing court to control cross-examination – proceedings deconsolidated and to be heard together with evidence in one to be evidence in other.
PRACTICE AND PROCEDURE – Commercial strata corporation seeks leave to supplement liability and quantum evidence – deficiencies identified as to quantum evidence – Makita v Sprowles concerns as to admissibility of expert evidence on liability – different judges take different views as to requirements for admissibility of expert evidence – (NSW) Civil Procedure Act, s 56, makes just resolution of proceedings paramount concern – justice requires parties be permitted to adduce relevant and admissible evidence – only possible prejudice to defendants is that hearing may be delayed – interests of justice demand plaintiff be given leave to supplement quantum and liability evidence.

(NSW) Evidence Act, 1995 , s 26, s 42

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 6) [2011] VSC 294 (22 June 2011)

PRACTICE AND PROCEDURE – Application by a party to examine a witness in the same interest in a joint trial by asking non-leading questions – Application granted in the interest of justice – Cross-Examination of a witness in the same interest considered and compared – Value of such cross-examination considered – Control of examination by the Court considered – Directions given as to procedure to be followed – Sections 11(1), 26, 27, 28 and 42 Evidence Act 2008 – Part 2.3, s.25, 47 and 49 Civil Procedure Act 2010.

Lindsay v Health Care Complaints Commission [2010] NSWCA 194 (19 August 2010)

MEDICAL TRIBUNAL – disciplinary proceedings – whether s 37 of the Medical Practice Act 1992 in its pre-2008 form, permits the Tribunal to find that examples of unsatisfactory conduct cumulatively justify a finding of “professional misconduct” – whether a finding of impairment necessarily leads the Tribunal to the decision that a medical practitioner is not competent to practice medicine. PROCEDURAL FAIRNESS – whether the Tribunal denied an unrepresented medical practitioner procedural fairness by limiting cross-examination of witnesses and rejecting questions as irrelevant – whether the Tribunal denied procedural fairness by limiting the evidence that the medical practitioner could adduce where the medical practitioner failed to comply with directions – whether Tribunal gave medical practitioner adequate warning that his conduct during the hearing could be taken into account in making findings. NON-PUBLICATION ORDER – whether Court of Appeal should modify the non-publication order made by the Tribunal.

Evidence Act 1995, ss 11, 26

Commonwealth Development Bank of Australia Pty Ltd & Anor v Claude George Rene Cassegrain; Gerald Cassegrain & Co Pty Ltd & Ors v Commonwealth Development Bank of Australia Pty Ltd & Ors; [2002] NSWSC 980

Evidence — Expert evidence — Expert witness code of conduct — Admissibility of purported expert report — Expert failed to acknowledge that he would be bound by the Expert Witness Code of Conduct in Schedule K of the Supreme Court Rules pursuant to Pt36 r13C(2) — Witness not aware of existence of Code of Conduct prior to preparation of expert statement — Whether ‘otherwise order’ permitting evidence should be made — Supreme Court Rules Pt36 r13C(2); Schedule K

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

Sharp v Rangott [2008] FCAFC 45 (3 April 2008)

[2008] FCAFC 45

BANKRUPTCY – property of bankrupt – transfer of property prior to bankruptcy – whether void as against trustee in bankruptcy – whether bankrupt solvent at time of transfer – bankrupt not called as a witness by either party – whether federal magistrate entitled to draw inference from failure to call bankrupt

Held: No error in drawing inference – onus on transferee to prove solvency – open to federal magistrate to find that bankrupt was available to transferee to call as a witness

BANKRUPTCY – property of bankrupt – transfer of property prior to bankruptcy – whether void as against trustee in bankruptcy – whether transfer for valuable consideration – transfer expressed to be in consideration of natural love and affection – whether inconsistency in federal magistrate’s reasons for judgment between finding of no consideration and finding of consideration that was of no value

Held: No inconsistency in findings – no error by federal magistrate – result the same whether no consideration or consideration of no value

COURTS AND JUDGES – trial – witness – not called by either party – power of judge to call witness of own motion – whether federal magistrate had duty to call bankrupt who had not been called by either party

Held: No duty to call bankrupt – federal magistrate entitled to take view that bankrupt available to appellant if he had chosen to call her

APPEALS – power of Full Court to receive further evidence – whether discretion should be exercised in favour of appellant

Held: Application to adduce further evidence on appeal refused – evidence available to appellant at time of trial – forensic decision made not to call evidence – evidence would not have led to a different result

Evidence Act 1995 (Cth) s 26

Halverson and Ors v Dobler Halverson by his tutor v Dobler [2006] NSWSC 1307 (1 December 2006)

[2006] NSWSC 1307

general practitioner
rural practice
brain injury
cardiac arrest
diagnosis of recurrent syncope
cardiac cause of syncope
apprpriate diagnostic investigation
facilities readily available
long QT syndrome
chance of investigation revealing long QT interval
general practitioners
scientif proof and legal standard of proof
role of hindsight
effect of s 5O of the Civil Liability Act 2002 (NSW)
LOSS OF A CHANCE in medical negligence

Attorney-General for the State of New South Wales v Winters [2007] NSWSC 1071 (26 September 2007)

[2007] NSWSC 1071

Serious sex offender – Custody Based Intensive Treatment program not completed by offender – application for extended supervision order or continuing detention order – STATUTORY INTERPRETATION – meaning of the word “likely” – standard of proof – high degree of probability – whether offender likely to commit a further serious sex offence – whether adequate supervision would be provided by an extended supervision order – EXPERT EVIDENCE – whether possible to predict risk of re-offending – actuarial assessment – dynamic risk factors – whether proposed management plan adequate – availability of funding to implement management plan – ABUSE OF PROCESS – motion to stay proceedings until funding available for treatment – whether the Court’s discretionary option was frustrated – whether defendant received a fair hearing – unfairness in outcome or in the hearing process

Lakatoi v Walker [1999] NSWSC 1088 (12 November 1999)

[1999] NSWSC 1088

PRACTICE – Cross-examination by two Counsel – Principles applicable to inform discretion – Materiality of mode in which Commercial List is administered.

Evidence Act (1995) (NSW) ss 11(1), 26

Uniform Evidence Act


Leave granted to the defendants to further cross-examine Mr Hogarth by either Mr Officer QC or Mr Powell on areas and materials previously not covered by the cross-examination of Mr Shand, but permitting further cross-examination on credit generally.

Australian Securities & Investments Commission v Macdonald (No 7) [2008] NSWSC 1367 (16 December 2008)

[2008] NSWSC 1367

EVIDENCE – Admissibility and Relevancy – Transcript of evidence volunteered by 5th defendant to plaintiff under a protocol containing a provision that it would not be tendered in evidence against the 5th defendant in a proceeding for the imposition of a penalty against him – Civil penalty proceedings – Plaintiff ordered to provide transcript to other parties in the proceedings – 1st defendant sought to cross-examine on the transcript – 1st defendant not bound by the protocol or s 68(3) of the Australian Securities and Investments Commission Act 2001 (Cth) – Whether 1st defendant bound by confidentiality – Whether equity would grant an injunction – Whether prevented from cross-examining by s 127(1)(a) of Australian Securities and Investments Commission Act or by the Evidence Act 1995, s 26, s 29, s 42, or s 44 – Voir dire held under s 189 to determine whether, in terms of s 135, the 5th defendant would be unfairly prejudiced by the admission of the cross-examination

Wakeley & Bartling v R [1990] HCA 23; (1990) 93 ALR 79; (1990) 64 ALJR 321 (7 June 1990)

[1990] HCA 23

20. The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness’s assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross-examination be contained within reasonable limits, a judge should allow counsel some leeway in cross-examination in order that counsel may perform the duty, where counsel’s instructions warrant it, of testing the evidence given by an opposing witness. Lord Hanworth M.R., in words which commanded the approval of the House of Lords in Mechanical and General Inventions Co. and Lehwess v. Austin and the Austin Motor Co. (1935) AC 346, at p 359, said:

“Cross-examination is a powerful and valuable weapon for
the purpose of testing the veracity of a witness and the
accuracy and completeness of his story. It is entrusted to
the hands of counsel in the confidence that it will be used
with discretion; and with due regard to the assistance to
be rendered by it to the Court, not forgetting at the same
time the burden that is imposed upon the witness.”

In Kalia (1974) 60 Cr App R 200 and in Maynard (1979) 69 Cr App R 309, while the Court of Criminal Appeal affirmed the duty of counsel not to extend cross-examination unduly nor to pursue irrelevant lines of inquiry, it emphasized that counsel must always be at liberty to do their duty in the proper interests of the client. It is the duty of counsel to ensure that the discretion to cross-examine is not misused. That duty is the more onerous because counsel’s discretion cannot be fully supervised by the presiding judge. Of course, there may come a stage when it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case. But until that stage is reached – and it is for the judge to ensure that the stage is not passed – the court is, to an extent, in the hands of cross-examining counsel.

RPS v R [2000] HCA 3; 199 CLR 620; 168 ALR 729; 74 ALJR 449 (3 February 2000)

[2000] HCA 3

Criminal law – Evidence – Silence of the accused – Directions to jury – Circumstances in which jury may take account of accused’s failure to give evidence.

Criminal law – Judicial instructions – Instructions about reasoning towards guilt.

Courts and judicial system – Apprehension of judicial bias – Tension between trial judge and counsel at trial – Use of trial judge’s report by appeal court.

Words and phrases – “right to silence”.

Criminal Appeal Act 1912 (NSW), s 11.

Evidence Act 1995 (NSW), s 20.

Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Limited (ACN 113 114832) (No. 2) [2007] FCA 121 (7 February 2007)

 [2007] FCA 121

EVIDENCE – Witnesses – Order in which parties may question witnesses – Where Applicant seeks to call witnesses and then conduct cross-examination – Where evidence includes transcripts of examinations – applicable principles –  Evidence Act 1995  (Cth), ss 26, 193 – Australian Securities and Investments Commissions Act 2001 (Cth), s 77 – motion dismissed

Evidence Act 1995  (Cth) – ss 26, 192

Australian Securities & Investments Commission v Rich [2006] NSWSC 643 (27 June 2006)

[2006] NSWSC 643

EVIDENCE – cross-examination on documents not tendered – third party documents and prior representations of the witness – transcripts of examinations including transcripts that could not be tendered in penalty proceedings – discretionary considerations

Evidence Act 1995  (NSW), ss 9, 26, 43, 44, 192

Australian Petroleum Pty Ltd v Parnell Transport Industries Pty Ltd & Ors [1998] FCA 1580 (20 November 1998)

[1998] FCA 1580

EVIDENCE – documentary evidence – business records – exception to hearsay – effect provisions creating time limit for objections on admissibility of evidence – whether Pt 4.6 Div 1 of  Evidence Act 1995  (Cth) requires Court not to admit evidence for twenty-one days

Evidence Act 1995  (Cth), ss 26, 47-51, 55, 56, 59, 63, 64, 67, 69, 70-75, 135, 166, 167, 168, 169, 190