CORPORATIONS — Forestry managed investment scheme — Application by liquidators for directions in relation to costs, expenses and remuneration — Directions also sought in relation to proceeds of settlement with receivers in relation to funds derived from bank guarantees — Corporations Act 2001 (Cth) s 511 — Supreme Court (General Civil Procedure Rules) 2005 (Vic), r 54.02.
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
PRACTICE AND PROCEDURE – trial in accordance with O 32 r 2(1)(d) Federal Court Rules (now Rule 1.04 Federal Court Rules 2011)
PRACTICE AND PROCEDURE – considerations in exercising discretion to make declaratory orders under s 21 Federal Court of Australia Act 1976 (Cth) – public interest in declarations in consumer protection litigation
TRADE PRACTICES – s 52 Trade Practices Act 1974 (Cth) – misleading and deceptive conduct in connection with and supply of mobile telecommunication services – representations as to pre-approved credit of potential customers – representations as to referrals made by individuals known to potential customers
TRADE PRACTICES – s 51AB Trade Practices Act 1974 (Cth) – unconscionable conduct proscribed by s 51AB not limited to specific equitable doctrines – consideration of Parliamentary intention behind s 51AB as expressed in Sch 2, s 21(4)(b) Competition and Consumer Act 2010 (Cth)
108. Before leaving this issue, it is appropriate to add these further observations. Because the ACCC chose to present the evidence about these 2,927 recordings in this way and because its analysis of those recordings does not prove what it needs to prove, I do not consider it is necessary to address the many other questions that arose about this evidence during submissions. They included: whether the process of random selection used by Ms Vaughan was statistically valid; or, if that process of random selection was statistically valid, whether the process of assessment conducted by the ACCC officers was an appropriate means of proving the critical features present in the 300 calls selected, given the existence of s 50 of the Evidence Act 1995 (Cth), which allows for such voluminous evidence to be proved in summary form; or whether Ms Le’Roy’s compilation of the Excel spreadsheets prepared by the ACCC officers was an appropriate means of proving the content of those spreadsheets, given the existence of that same section. Related to these latter two questions is the admissibility of the opinion evidence which was a necessary element of both these processes. That question would probably have been removed by the operation of s 50(3), if s 50 of the Evidence Act had been employed.
CASE MANAGEMENT – interlocutory applications regarding affidavit evidence, vacation of the hearing date and request for a referral for pro bono legal assistance – HELD – application to vacate dismissed but commencement date deferred – limited order for pro bono assistance – other applications dismissed.
EVIDENCE – s 50 Evidence Act 1995 (NSW) – whether evidence summarising voluminous or complex underlying documents could be adduced as “summaries” pursuant to s 50 – whether a document prepared through a process that involved the exercise of judgment or the application of a calculation is a “summary” – whether document summarising other summary documents is a “summary” – whether a conclusion based on underlying documents is a summary – HELD – document prepared through simple application of arithmetical formula is a “summary” – document prepared involving the exercise of judgment or opinion is not a “summary” – document summarising other summary documents is a “summary” – evidence containing conclusions are not “summaries” but are to be treated as submissions
CORPORATIONS – application under ss 459G, 459H(1)(b) and 459J(1)(b) of the Corporations Act 2001 (Cth) for order setting aside statutory demand – whether Graywinter principles apply to preclude reliance on supplementary affidavits – whether genuine offsetting claims established – whether pending appeal from costs determination the subject of judgment debt constitutes “some other reason” for the purposes of s 459J(1)(b) to set aside demand – HELD – Graywinter principles apply to preclude reliance on ground sought to be relied on as “some other reason” pursuant to s 459J(1)(b) but not otherwise – genuine offsetting claims established in excess of the amount claimed in statutory demand – statutory demand set aside – CIVIL PROCEDURE – application for leave to use in present proceedings documents obtained under subpoena in other proceedings – leave granted
CORPORATIONS – Receiver claims entitlement to indemnity secured by equitable lien for costs and expenses of receivership of the Responsible Entity of Managed Investment Schemes – “Salvage” principle in Re Universal Distributing applied – Equitable allowance principle in Re Berkeley Applegate applied – Process for determining the reasonableness of the amount claimed – Venetian Nominees applied – Standard of proof required to a prima facie level – Provision for objection process – Prima facie claim for an indemnity with respect to the remuneration, costs and expenses referrable to each scheme established
EVIDENCE – Whether evidence can be adduced by way of summaries – s 50 of the Evidence Act 2008 (Vic)
Costs – Restatement of principles of awarding costs – Indemnity costs – Apportionment- Interest on costs – Ordinary rule as to costs- UCPR r42- Caldberbank letter – Consequences of rejecting a calderbank letter – Reasonableness of rejection of offer – Reasonableness to be assessed at the time the offer was rejected and in light of the factual circumstances
PROCEDURE – costs – plaintiffs ordered to pay defendant’s costs – subsequent application by defendant for gross sum costs order – relevant considerations discussed – whether sufficient evidentiary basis for such order
Evidence Act 1995 , ss 50, 79
EVIDENCE – admissibility – plaintiffs seek direction to allow them to tender a schedule as a summary of other documents under s 50 of the Evidence Act 1995 (NSW) – Court refuses to make direction as schedule is not a summary and defendants have not had a reasonable opportunity to examine the documents which are sought to be tendered to support it – plaintiffs seek to tender voluminous documents – application refused as defendants would be prejudiced by late tender
offences relating to administration of justice
interference with witnesses or jurors
Evidence Act 1995, s 76, s 76(1), s 50(3), s 77
 FCA 794
TRADE PRACTICES – price-fixing – arrangements or understandings – whether existed between competitors within the Geelong retail petrol market – whether contained provisions for the fixing of retail petrol prices – whether necessary for parties to have commitment or moral obligation – applicant pleaded existence of seven bipartite and one tripartite interlocking arrangements or understandings and that effect was given to them on a number of occasions within a two-year period – relied on oral evidence of some alleged parties to them, circumstantial evidence in the form of data as to times of telephone communications between parties to alleged arrangements or understandings and changes in retail price of petrol, as well as admissions by some alleged parties to arrangements or understandings – whether evidence established existence, and giving effect to, of arrangements or understandings – whether evidence of origins of alleged arrangements or understandings sufficient – whether oral evidence and circumstantial evidence inconsistent – oral evidence not specific as to any particular occasion – circumstantial evidence often inconsistent with oral evidence, and with applicant’s allegations – whether judgment should be given on admissions
EVIDENCE – admissions – whether appropriate to exercise discretion to pronounce judgment based on admissions – whether reason to question correctness of facts admitted or agreed – whether previous representations made in furtherance of common purpose – whether reasonably open to find that representations were made in furtherance of common purpose – existence of common purpose established by evidence other than previous representation itself
WORDS AND PHRASES – “contract”, “arrangement”, “understanding”, “make an arrangement”, “arrive at an understanding”, “provision”
Evidence Act 1995 (Cth) ss 38(1)(c), 50, 57(2), 59(1), 60, 81(1), 83, 87, 87(1)(a), 87(1)(b), 87(1)(c), 87(2), 140
On application to tender microfilm of Regent Hotel records and summary - Evidence Act 1995 (NSW) ss 48 & 50 – T6687
Defrauding the Commonwealth (3 counts)- notional deduction of group tax – responsibility for not sending in employment declarations and for alterations to group number and company names – refusal of adjournment to allow further investigation – admissibility of statements made to ATO tax audit team – not obbtained improperly – ss 138 & 139 of Evidence Act – s 137 of Act – probative value not outweighed by danger of unfair prejudice – notes made by appellant as to meetings with ATO officers admissible as evidence of consciousness of guilt – no prejudice suffered by admission and later withdrawal of group tax summary as evidence to that effect given – ample evidence to support all counts – sentencing structure erroneous – appellant re-sentenced.
Evidence Act 1995 ss 50 137 138 139
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