Category Archives: s. 070

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 (6 March 2015)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/25.html

INDUSTRIAL LAW – claim by respondent that appellant union contravened ss 50, 340, 345, 349 and 417 of Fair Work Act 2009 (Cth) by promulgating document(s) containing the union’s overtime policy (“the FW Act”) – whether primary judge erroneously characterised manner of alleged contraventions as promulgation of the policy, rather than promulgation of document(s) containing the policy – whether primary judge was required to identify time of contraventions and whether time was so identified – whether Jones v Dunkel inference could have been drawn and whether it was so drawn – whether primary judge erred in finding that the union had organised industrial action – whether primary judge erred in finding that respondent had a workplace right under enterprise agreement – whether an employer may have a workplace right within the meaning of s 361 of the FW Act – whether primary judge erred in finding that reason for union’s industrial action was because of respondent’s workplace right – whether primary judge erred in finding that union had knowingly or recklessly made false or misleading representations

Gray t/as Clarence Valley Plumbing Services v Ware Building Pty Ltd [2013] NSWCA 271 (23 August 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/271.html

APPEAL AND NEW TRIAL – procedural fairness – where request for adjournment and transfer of trial to another location refused – where defendant (now appellant) did not attend – whether violation of the hearing rule established

CONTRACT – construction of clause giving rise to an election to terminate on a insolvency event – whether there was anything that indicated the defendant (now appellant) was or would be insolvent at the relevant time – whether contract validly terminated

EVIDENCE – where evidence adduced ex-parte – where evidence is comprised of hearsay – whether evidence should be given less weight

Raymond Holder b Bradley William Searle [1998] FCA 1775 (23 October 1998)

http://www.austlii.edu.au/au/cases/cth/FCA/1998/1775.html

INTELLECTUAL PROPERTY – copyright – infringement – parallel importation – knowingly concerned in possession of copyright material – subsistence of copyright – ownership of copyright – relevance of Universal Copyright Convention symbol and claim to copyright on packaging in establishing ownership of copyright – whether ownership by legal entity – whether limited partnership constitutes legal entity – assignment of ownership of copyright – exclusive licence for distribution of copyright material – whether possession of copyright material by company or by directors of company personally – where copyright material cinematograph films stored in laser video disc format – where copyright owner resident of United States of America and Canada

Evidence Act 1995 (Cth) ss 70 and 171

R v Gallagher [2001] NSWSC 462 (4 May 2001)

[2001] NSWSC 462

Evidence – whether evidence of DNA test results was based on the witness’ specialised knowledge based on training, study and experience – Held: Yes.

Evidence – whether evidence of DNA test results had substantial probative value – Held: Yes.

Evidence – whether admission of evidence of DNA test results gave rise to danger of unfair prejudice to accused – Held: No.

ACTS CITED:

Evidence Act 1995 (NSW) ss 70, 79, 135, 137

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