Category Archives: s. 063

Rathner in his capacity as Official Liquidator of Kalimand Pty Ltd (in liq) v Hawthorn [2014] FCA 1067 (8 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1067.html

CORPORATIONS – Company wound up – Voidable transactions – Identification of transaction – Insolvent transactions – Meaning of becoming insolvent “because of” entering into transaction – Uncommercial transactions

EVIDENCE – Transcript of public examination of director – Whether admissible against company – Exception to hearsay rule

International Relief and Development Inc v Ladu [2014] FCA 887 (20 August 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/887.html

ARBITRATION – Foreign arbitral award – Application to enforce foreign award – Opposition to enforcement on the basis of no proper notice – Whether absence of proper notice of appointment of the arbitrator or of the arbitration proceedings – Whether breach of the rules of natural justice – Whether no notice of the arbitration hearing – Consideration of grounds for refusing to enforce foreign award under ss 8(5)(c), (7) and (7A) of the International Arbitration Act 1974 (Cth) – Respondent failed to establish alleged absence of notice – Order for enforcement made.

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

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/232.html

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

Aravanis (Trustee), in the matter of Gillespie (Bankrupt) v Gillespie [2014] FCA 630 (17 June 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/630.html

TRUSTS AND TRUSTEES – constructive trusts – resulting trusts – presumption of advancement – whether common intention that respondent’s brother purchase property on trust for respondent’s mother – mortgage in name of respondent’s brother – respondent’s mother contributed substantial sum towards purchase price

BANKRUPTCY – whether transfer of property void pursuant to Bankruptcy Act 1966 (Cth) ss 120 and 121 or Conveyancing Act 1919 (NSW) s 37A – whether bankrupt solvent at time of transfer – whether transfer for purpose of defeating creditors

PROPERTY – equitable lien – purchaser paid less than sale price provided for in contract for sale of land – whether agreement between parties was for price in contract for sale or consideration actually paid by purchaser

Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 (17 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1895.html

WILLS, PROBATE AND ADMINISTRATION – informal testamentary document – no dispute that undated document not executed in accordance with s 6 Succession Act 2006 – No dispute that the undated document purports to state the testamentary intentions of a deceased – Deceased familiar with the formal requirements for the making of a valid will – Whether Court satisfied that the deceased intended the undated document to form a Will – Consideration of circumstances in which the document was made – No dispute that if Court not satisfied should be grant of Letters of Administration with formal 2007 Will annexed to independent solicitor agreed to by the parties

Andonovski v Park-Tec Engineering Pty Ltd & Anor; Andonovski v East Realisations Pty Limited Formerly t/as Westbus Pty Ltd [2013] NSWSC 1926 (12 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1926.html

EVIDENCE – admissibility of medical reports – objection under s136 Evidence Act 1995 (NSW) – objection under r 31.26(5) Uniform Civil Procedure Rules 2005 (NSW – objection under s63 – whether witness unavailable to give evidence

Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375 (17 December 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/375.html

CO-OWNERSHIP – Appeal – Joint tenancy at law – Whether tenancy in common in equity – Four unities of possession, interest, time and title – Right of survivorship – Equity is equality – Equity’s dislike of joint tenancies – Intention of parties when property was acquired – Whether consideration given for half share – Whether joint tenancy severed at inception by agreement to distribute proceeds if property sold – Whether joint tenancy severed at time of sale of property by agreement to divide proceeds – Whether joint tenancy severed by conduct – Death of joint tenant before completion of sale of the subject land – Whether nett proceeds of sale of the subject land lay with executor of estate or with liquidator of corporate joint tenant – Attack on credit of witnesses – Whether judge should have found facts based upon testimony of witnesses – Duty of Court of Appeal when challenge made to findings based on credit – Weighing of findings of credit with findings on all relevant probabilities – Appeal dismissed.

PRACTICE AND PROCEDURE – Application to lead fresh evidence – Failure of appellant to serve subpoena on bank at trial – Whether there was a ‘high probability’ the fresh evidence would have produced the opposite result at trial – Application refused.

PRACTICE AND PROCEDURE – COSTS – Non-party costs order – Costs order made against liquidator personally – Application for leave to appeal costs order against non-party – House v The King [1936] HCA 40; (1936) 55 CLR 499 – No error of principle – Application refused.

PRACTICE AND PROCEDURE – COSTS – Application for leave to appeal costs order – Offer of compromise made by respondent before appeal – Consequences of rejection – Whether respondent entitled to costs on an indemnity basis – Whether judge had reasonable regard to Calderbank offer – Whether judge erred in his analysis of Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2) [2005] VSCA 298; (2005) 13 VR 435 – Application dismissed.

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1712.html

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.

Manning Motel Pty Limited v DH MB Pty Limited [2013] NSWSC 1582 (1 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1582.html

CONTRACT – Collateral Contract – Validity – Tripartite Collateral Contract – Whether consistency between collateral and principal agreements required – Finding of collateral contract requires that a representation made as an inducement to enter the principal contract to be intended as a promise
CONTRACT – Collateral Contract – Contract Collateral to a Lease does not necessarily have to be in, or evidenced by, writing notwithstanding a statutory requirement that the Lease be in, or evidenced by, writing.

Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322 (11 April 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/322.html

EVIDENCE – Re-examination – Proper scope of re-examination – Whether evidence not given in examination in chief can properly arise in re-examination – Particular facts of the representation made

EVIDENCE – Exception to hearsay rule – Where maker of representation overseas – Whether reasonable efforts to secure witness had been made – Whether notice requirements in s 192(2) of the Evidence Act 1995 (Cth) complied with

EVIDENCE – Discretion to exclude – Whether evidence unfairly prejudicial when hearsay adduced in re-examination – Whether such evidence should be the subject of a direction under s 135 or s 136 of the Evidence Act 1995 (Cth)

EVIDENCE – Witnesses – Unfavourable witness – Evidence Act 1995 (Cth) s 38 – Whether a party should call a witness to disprove an unfavourable statement adduced by hearsay

EVIDENCE – Discretion to exclude – Whether evidence unfairly prejudicial when maker of the representation is not available for cross-examination

SZQVM v Minister for Immigration and Citizenship [2013] FCA 5 (15 January 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/5.html

MIGRATION – appeal from order of Federal Magistrate dismissing application for judicial review of a decision of the Refugee Review Tribunal to affirm decision not to grant protection visa – whether Tribunal erred in placing no weight upon evidence of two emails received by appellant asserting risk of harm to appellant should appellant return to originating country, due to emails containing hearsay – whether Tribunal had opportunity to test evidence of emails and verify authenticity – whether Tribunal should and did so test – whether Federal Magistrate erred in finding evidence of emails was not in Tribunal’s possession prior to Tribunal hearing – whether Tribunal erred in placing little weight on evidence of witness, due to evidence containing hearsay – discussion of constitution, powers, operation, and treatment of evidence, by Tribunal

PRACTICE AND PROCEDURE – notice of contention sought to be filed beyond time limit prescribed by r 36.24 of the Federal Court Rules 2011 – where no explanation given for model litigant’s failure to comply with rules

Damman v Peninsula Health [2012] VSC 572 (23 November 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/572.html

COMMON LAW – Application for an extension of limitation period – Section 27K of the Limitation of Actions Act 1958 – Allegations of sexual assault – Key witness deceased – Defendant suffered substantial prejudice – Plaintiff’s cause of action against former solicitors relevant consideration – Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114 applied.

Levy v Watt [2012] VSC 539 (14 November 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/539.html

LIMITATION OF ACTION – Valuable painting stolen in 1991 – Identity of thief not known – Defendants the executors and residuary beneficiaries of owner’s estate – Painting left by R to the plaintiff, his solicitor, in his will – Defendants did not learn whereabouts of the painting until 2010 when police seized the painting – Application to Magistrates’ Court for order under s 125 of the Police Regulation Act 1958 – Order that the painting be returned to the defendants pending determination of ownership – Plaintiff claimed his possessory title was superior to defendants’ documentary title which had been extinguished by expiration of limitation period – Whether right of action concealed by fraud if identity of thief not known – Whether plaintiff proved that R acquired the painting as a bona fide purchaser for value without notice – Limitation of Actions Act 1958, ss 3(4), 5(1), 6, 27.

10 I uphold the submission by counsel for the plaintiff that this hearsay upon hearsay evidence is inadmissible, pursuant to s 59(1) of the Evidence Act 2008 , as the defendants seek to rely upon it to establish that Mr James Watt had told Mr Rand to get off the property and that he had told his sister in law what he had said and that she had told her daughter in law what had been said. Even if Mrs Sandra Watt’s evidence that she heard Mr James Watt say “I told him to get off the property” is admissible under s 63 of the Evidence Act , it does not assist the defendants because the “him” is not identified.

Mischel v Mischel Holdings Pty Ltd (in liq) [2012] VSC 292 (27 July 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/292.html

CO-OWNERSHIP – Joint tenancy at law – whether tenancy in common in equity – whether consideration given for acquisition of share – severance of joint tenancy by agreement and by conduct – effect of death of joint tenant after exchange of contracts but before completion of sale of the subject land – Delehunt v Carmody [1986] HCA 67; (1986) 161 CLR 464 – Corin v Patton [1990] HCA 12; (1989) 169 CLR 540 – Conlan v Registrar of Titles [2001] WASC 188; (2001) 24 WAR 229 – Lyons v Lyons [1967] VR 160 – Public Trustee v Pheiffle [1991] 1 VR 19 (Pfeiffle v Pheiffle (1989) 13 Fam LR 692 (VSCFC)) – Burgess v Rawnsley [1979] Ch 429 – Transfer of Land Act 1958 (Vic) s 42 – Evidence Act 2008 (Vic) sub-s 67(1)

EQUITY – Maxims – Equity will not assist a volunteer – Corin v Patton [1990] HCA 12; (1989) 169 CLR 540 – Blackett v Darcy [2005] NSWSC 65; (2005) 62 NSWLR 392

QBE Insurance (Australia) Ltd v CGU Workers Compensation (NSW) Ltd [2012] NSWSC 377 (20 April 2012)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2012/377.html

INSURANCE – double insurance – contribution – whether sufficient to only show reasonable compromise – whether common insured an “owner” of vehicle – whether “injury” established – whether compromise reasonable so as to entitle Plaintiff to contribution – recoupment.

Dictionary
ss 4(1)(f) of Part 2 of the Dictionary to the Evidence Act

Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (14 March 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/87.html

PROFESSIONAL LIABILITY – solicitors – property proceeding in Family Court of Australia – settled at door of court on terms overly generous to wife – action by husband for damages for lost opportunity – valuation, taxation and other evidence not prepared in time for hearing – instructions taken and acted on from client lacking mental capacity – whether solicitors should have known – whether breach of duty of care – whether breach of fiduciary duty – whether coercion – pre-hearing representations – whether in trade or commerce – whether misleading and deceptive conduct – advocates’ immunity – whether applicable – assessment of damages for lost opportunity – notional trial in Family Court – whether evidence of subsequent facts admissible – apportionment of damages between concurrent wrongdoers – rule in Jones v Dunkel – husband’s senior counsel not called by solicitor – whether senior counsel in camp of solicitor – affidavit of husband’s deceased father – whether admissible hearsay evidence – Fair Trading Act 1985 (Vic), s 9(1) – Wrongs Act 1958 (Vic), pt IVAA – Evidence Act 2005 (Vic), s 135.

Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis [2012] NSWSC 201 (7 March 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/201.html

EQUITY – Succession – Family Provision – deceased makes provision for intellectually disabled daughter – Whether provision made is adequate for the daughter’s proper maintenance, education and advancement in life.
PROBATE AND ADMINISTRATION – whether estate has been properly administered – delay in selling estate property – whether orders should be made for the sale of the single asset in the estate, a residential property.

Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters & Ors [2011] VSC 589 (2 December 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/589.html

TRADE AND COMMERCE – Misleading or deceptive representations – Sale of racehorse – Issue of veterinary certificate – Agency – Fair Trading Act 1999 (Vic) s 9.

NEGLIGENCE – Part X Wrongs Act 1958 (Vic) – Duty of care – Risk of harm – Foreseeability – Not insignificant risk – Adequacy of response to risk – evidence of loss.

CONTRACT – Breach – Construction – Damages – Failure to effect and maintain Insurance – Whether damages limited to insurance payout – Interpretation of contract of sale – Principles of construction – Deferred payment – Terms providing for a future interest.

EQUITY – Fiduciary duty – Vendor and Purchaser – Existence of a Fiduciary Relationship.

Fedorow v Fedorow [2011] ACTCA 10 (23 June 2011)

http://www.austlii.edu.au/au/cases/act/ACTCA/2011/10.html

APPEAL – appeal from factual findings and conclusions – Function of appellate court – Inferences of fact set aside.

TRUSTS – Resulting trust – Purchase of property as joint tenants – Deposit provided by one party – Mortgage for balance liability of both parties – Property held on trust as tenants in common.

Evidence Act 1995 (Cth), s 63

On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 (13 April 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/366.html

INDUSTRIAL LAW – employer and employee – whether interpreters and translators, casual employees or independent contractors – multi-factorial totality test – indicia for distinguishing between an employee and an independent contractor – indicia of a business – indicia as to whose business the activity is performed in and for.

SUPERANNUATION – liability for superannuation guarantee charge – whether employees or independent contractors at common law – whether interpreters and translators were employees within the extended definition of employee in s 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth).

Evidence Act 1995 (Cth) ss 63(2), 67, 68

Tusyn v State of Tasmania (No 3) [2010] TASSC 55 (30 November 2010)

http://www.austlii.edu.au/au/cases/tas/TASSC/2010/55.html

Limitation of Actions – Extension or postponement of limitation periods – Extension of time in personal injuries matters – Evidence to establish right of action – Whether proof required that applicant has a cause of action.
Limitation Act 1974 (Tas), s38A(3).
Commonwealth v McLean (1996) 41 NSWLR 389; Kaye v Hoffman [2007] TASSC 31, referred to.
Aust Dig Limitation of Actions [1084]

Limitation of Actions – Extension of time in personal injuries matters – Principles upon which discretion exercised – Change of circumstances after filing of application for extension of time.
Limitation Act 1974 (Tas), s38A.
Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 144; Posner v Roberts [1986] WAR 1; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 531, distinguished.
Aust Dig Limitation of Actions [1085]

FZ v Commissioner for Children and Young People [2010] NSWSC 1144 (8 October 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1144.html

APPEAL – Supreme Court Act 1970 s 75A – administrative law – Administrative Decisions Tribunal – application for declaration under s 33I of the Commission for Children and Young People Act 1998 that Part 7, Division 2 not apply to the plaintiff – where plaintiff convicted in 1982 of index offence of “sexual intercourse without consent” contrary to s 61D Crimes Act 1900 – child related employment – where plaintiff unable to work as a bus driver –– whether plaintiff posed a risk to the safety of children – where allegations of subsequent sexual abuse made against plaintiff in 2000 and 2001 – where plaintiff sought to cross-examine complainant about allegations – where complainant not made available for cross-examination before Tribunal – whether allegations had substance – where but for the allegations risk posed to the safety of children otherwise low or non-existent – denial of procedural fairness – appeal allowed – proceedings remitted to Tribunal for decision according to law

Huang v University of New South Wales [2010] FCAFC 104 (25 August 2010)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/104.html

EVIDENCE – foreign evidence – application to obtain evidence from Korea for use in Federal Magistrates Court proceeding – whether appellant denied procedural fairness – interpreter present during morning, but absent in afternoon, when hearing continued and judgment given – application adjourned to enable appellant to apply to vacate trial date – application subsequently dismissed because appellant had not so applied – whether appellant failed to understand requirement to apply to vacate trial date before next mention of application – whether appeal court should deal with merits of application when primary judge had not done so – appellant could have made further application once trial date vacated, but did not do so – need to obtain evidence from Korea depends on course taken by respondents at trial in relation to statements of Korean witness in an exchange of emails with appellant and in an affidavit

Evidence Act 1995 (Cth), ss 27, 63, 63(2)(b), 67, 170, 173, 190(1)(b), 190(3), 190(4)

Darlaston v Parker [2010] FCA 771 (23 July 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/771.html

INDUSTRIAL LAW – power of entry upon premises – need to comply with an occupational health and safety requirement – entry upon premises for an unauthorised purpose – occupational health and safety requirement

EVIDENCE – witness fails to attend in answer to subpoena – failure to provide “reasonable notice” of intention to rely upon evidence

Evidence Act 1995 (Cth), ss 63, 67

Haque v Minister for Immigration & Citizenship (No 3) [2010] FCA 772 (23 July 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/772.html

MIGRATION – jurisdiction of Migration Review Tribunal to review application received outside statutory time limit – whether notice complied with requirements under s 66(2)(d)(iv) of the Migration Act 1958 (Cth).

EVIDENCE – exception to hearsay rule – whether leaflet constituted business record within s 69 of the Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth) ss 63, 69

Seafood Imports Pty Ltd v ANL Singapore Pte Ltd [2010] FCA 702 (5 July 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/702.html

SHIPPING AND NAVIGATION – Carriage of goods by sea – In refrigerated container supplied by carrier – controller on container becoming stuck in defrost mode due to incompatible software – Whether goods properly and carefully carried, kept, cared for and discharged – Exception of latent defect – Whether malfunctioning of container not discoverable by due diligence – Hague-Visby Rules Arts III rr (1) and (2) and IV rr (1) and (2)(p)

Evidence Act 1995 (Cth) ss 63 and 64

Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411 (6 May 2010)

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/411.html

Evidence – statutory exceptions to hearsay rule in civil proceedings – whether person who made representation not available to give evidence about asserted fact – whether it would cause undue expense or undue delay or would not be reasonably practicable to call person who made the representation to give evidence – general statutory discretion to exclude evidence: whether probative value of evidence substantially outweighed by danger that it might be unfairly prejudicial to a party.

Pavicic v Webb [2010] ACTSC 37 (30 April 2010)

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/37.html

DAMAGES – personal injury – whiplash injury to neck – probable facet joint injury – psychological condition secondary to chronic pain – loss of earning capacity – whether failure to submit to recommended treatment was failure to mitigate loss

EVIDENCE – death of expert witness before trial – whether statement of witness admissible – whether statement should be excluded as prejudicial because of loss of opportunity to cross-examine

Evidence Act 1995 (Cwlth) ss 63, 135
Evidence Act 1995 (NSW) s 63

Workers Compensation (Dust Diseases) Board Of NSW v Smith, Munro And Seymour [2010] NSWCA 19 (23 February 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/19.html

ADMINISTRATIVE LAW – procedural fairness – adequacy of reasons – factual finding of causation from asbestos in combination with tobacco smoke – whether necessary to attempt to set out arithmetical foundation of finding – whether decision on question of law
APPEAL – civil – statutory appeal – appeal from District Court – appeal against award of the Court in point of law – distinction between point of law, admission of evidence and findings of fact
EVIDENCE – admissibility and relevance – opinion evidence – basis rule – whether basis for opinion identified – whether explicit ruling on objection to evidence necessary
EVIDENCE – weight and sufficiency of evidence – uncontradicted evidence – affidavit evidence of deceased claimants – similarities between affidavits – whether unreliability resulted in unfair prejudice to defendant – Evidence Act 1995 (NSW), s 135
STATUTORY INTERPRETATION – construction of composite provision – dual limbs – second limb grammatically ambiguous – nature of causal connection envisaged by words “reasonably attributable to” – whether words introduce normative component to determination of statutory entitlement – Workers’ Compensation (Dust Diseases) Act 1942 (NSW), s 8(1)(b)
TORTS – negligence – causation – dust diseases – asbestos – tobacco – exposure to both carcinogens – development of lung cancer – whether exposure to asbestos constituted material contribution to carcinoma
WORDS & PHRASES – “asbestosis” – “award of the court in point of law” – “dust disease” – “Helsinki criteria” – “lung cancer” – “material contribution” – “reasonably attributable” – “relative risk”

Evidence Act 1995 (NSW), ss 63, 79, 135

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306 (13 November 2009)

[2009] FCA 1306
EVIDENCE – whether hearsay evidence of statements by persons overseas should be permitted – the extent to which the proposed evidence was first hand or more remote hearsay – no independent evidence corroborating any hearsay version – whether undue prejudice to the respondent.

PRACTICE AND PROCEDURE – application to take evidence by video link – requirement to make out a case for such an order where it is opposed – discussion of the possible difficulties associated with video evidence.

PRACTICE AND PROCEDURE – security for costs – consideration of application for further security.

Evidence Act 1995 (Cth) ss 59(1), 62, 63, 64, 67, 68, 75, 135, 136, 192, 192A

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769 (6 August 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/769.html
EVIDENCE – admissibility and relevancy – exceptions to the hearsay rule – s 63 exception where maker of representation in a document is “not available to give evidence” – meaning of “available” – meaning of “attendance” – where person resident in a foreign country – whether availability of procedures under the Evidence on Commission Act is relevant to these questions – EVIDENCE – admissibility and relevancy – exceptions to the hearsay rule – s 81 exception for previous representation reasonably necessary to an understanding of an admission where the representation made “at the time the admission was made, or shortly before or after that time” – meaning of “shortly after” – WORDS AND PHRASES – “attendance” – “shortly after”

Evidence Act 1995, Part 2 clause 4(1) of the dictionary, ss 36(1), 59, 63, 64(1), 67, 68, 81(1), 81(2), 135(a)
Evidence (Audio and Audio Visual Links) Act 1998, ss 5B, 5C
Evidence on Commission Act 1995, ss 4, 6(1), 5, 8
Foreign Evidence Act 1994 (Cth), s 7
Interpretation Act 1987, s 12(1)(b)

Cox v State of New South Wales [2007] NSWSC 471 (14 May 2007)

[2007] NSWSC 471

TORT – NEGLIGENCE – personal injury – psychiatric/psychological harm – plaintiff bullied at primary school – reports of bullying to school authorities by plaintiff’s mother – severe anxiety symptoms – reliability of mother’s evidence – some discrepancies – no significance – duty of care – expert evidence – identification of psychiatric disability – causation – relevance of mother’s own psychiatric condition
DAMAGES – non-economic loss – economic loss – superannuation – discount for vicissitudes
EVIDENCE – hearsay – exceptions to hearsay rule – whether person who made representation is competent to give evidence of asserted fact – no recollection of asserted fact

Evidence Act 1995 ss 59, 63

FENG MIN v UVANNA PTY LTD [1996] FCA 1805 (26 September 1996)

[1996] FCA 1805

Trade Practices – Consumer Protection – respondent migration consultant engaged to obtain permanent residency status for applicants under Employer Nomination Scheme – certain representations made by officers of respondent as to guaranteed success of applications or refund of fees paid – whether such representations constituted misleading and deceptive conduct under s52 of the Trade Practices Act 1974 (Cth) – whether principal of respondent firm a person knowingly concerned in a contravention of the Trade Practices Act under s75B and therefore personally liable in damages under s79.

Contract – terms of contract included guarantee of success or refund of fees paid – whether failure of applications constituted breach of contract or required refund under terms of contract.

Evidence – Hearsay – conversations between applicants and principal of respondent firm conducted through respondent’s employee as interpreter – whether applicants’ evidence relating to such conversations inadmissible hearsay under s59(1) of the  Evidence Act 1995  (Cth) – discussion of position at common law – whether proof of accuracy of translation required – whether interpreter can be described as “narrator” or “agent” – significant that objection raised by respondent when interpreter employee and agent of the respondent firm – if such evidence was “first-hand” hearsay whether admissible under ss63(2) or 64(2) where interpreter unavailable etc – consideration of notice required by s67(1) – when such notice requirement may be dispensed with by the Court.

Evidence Act 1995  (Cth); ss59(1), 63(2), 64(2) and 67(1).

Harrington-Smith on behalf of The Wongatha People v Western Australia (No 4) [2003] FCA 17 (20 January 2003)

[2003] FCA 17

EVIDENCE – hearsay – old photographs – taker of photographs deceased – representations by him heard by his daughter as to taking of photographs and their subject matter – attempt to lead hearsay evidence from daughter on those matters – failure of party tendering photographs to give notice of intention to adduce such hearsay evidence – whether direction should be made that exclusion of hearsay rule still applies – exercise of discretion – whether other parties prejudiced by loss of opportunity to cross-examine other witnesses who had left the witness box.

Evidence Act 1995  (Cth) ss 59, 63, 67

Australian Competition & Consumer Commission v Lux Pty Ltd [2003] FCA 89 (18 February 2003)

[2003] FCA 89

EVIDENCE – expert’s report – objection to admission – whether danger unfairly prejudicial, misleading or confusing or result in waste of time – whether usurps ultimate function of court – whether excluded as a consequence of non-compliance with Practice Note or Guidelines for Expert Witnesses – whether Guidelines abrogate privilege – whether probative value substantially outweighed

EVIDENCE – legal professional privilege – principles applicable to experts’ reports – application to documents – rulings

EVIDENCE – witness statements – objections – whether s 51AB(4) of the Trade Practices Act 1974 (Cth) a barrier to particular evidence – whether unfairness – other objections

Evidence Act 1995  (Cth) ss 63, 64, 80, 118, 122, 135, Pt 3.10

Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 (22 August 2007)

[2007] NSWSC 976

EVIDENCE [53] – Admissibility and relevancy – Hearsay – Particular cases – Exclusion of hearsay rule –  Evidence Act 1995  s 63 – Civil proceedings – Person who made previous representation not available to give evidence – Meaning of not available – Whether all reasonable steps have been taken to secure his attendance but without success.

Evidence Act 1995  ss 63, 65 & Dictionary Part 2 cl 4

R v Yl [2004] ACTSC 115 (27 October 2004)

[2004] ACTSC 115

COURTS AND THE JUDICIAL SYSTEM – whether discretion to refuse to exercise coercive powers to compel 7 year old child to enter court and give evidence against his will – evidence by psychiatrist that forcing the child to do so could cause significant harm – application by Crown to discharge jury in order to test rulings of trial judge – attempt to enter nolle prosequi in order to test rulings – general principles – relevance of rights guaranteed by Human Rights Act 2004 (ACT).

EVIDENCE – objection under s 18 of the  Evidence Act 1995  (Cth) to giving evidence – whether s 19 precludes the application of s 18 to “domestic violence offences” mentioned in s 9 of the Protection Orders Act 2001 (ACT) – application of s 10A of the Acts Interpretation Act 1901 (Cth) – whether 7 year old child compellable – whether discretion to refuse to exercise coercive powers to force child to enter court and give evidence against his will – relevance of rights guaranteed by Human Rights Act 2004 (ACT).

EVIDENCE – whether child an “unavailable” witness when court refuses to compel him to enter court and give evidence – whether evidence of prior representations by the child admissible under s 65 of the Evidence Act 1995 (Cth)- whether rejection of such evidence required by s 137 of the  Evidence Act 1995  (Cth).

Evidence Act 1995  (Cth), ss 18, 137, 19, 8, 65, 67, 63(2), 64(2), 65(2,3,8)

Nagle and Anor – as Executors, Estate Late Marie Jewell Lodge v Lavender [2002] NSWSC 595 (28 June 2002)

[2002] NSWSC 595

EVIDENCE – facts excluded from proof – hearsay – exception for first hand hearsay under s 63(2)(a)  Evidence Act 1995  – evidence needs to be in substance stating what was the previous representation – EVIDENCE – facts excluded from proof – evidence relevant to credibility of witness – interrelationship of s 55 and s 102  Evidence Act 1995