Category Archives: s. 166

Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625 (16 June 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/625.html

EVIDENCE – whether previous representations made in certain printouts of emails should be admitted into evidence as business records pursuant to s 69 of the Evidence Act 1995 (Cth) – whether those emails should be excluded in the exercise of the Court’s discretion pursuant to s 135 or s 169 of the Evidence Act – whether the Court should compel the plaintiff to call the authors of the emails pursuant to s 169 of the Evidence Act – whether the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) prohibit the tender of transcripts of recordings of intercepted telephone calls and whether, if not, those transcripts are admissible as business records – whether transcripts of evidence given at a public inquiry conducted by the NSW Independent Commission Against Corruption are admissible as business records – whether a previous statement in writing made by a potential witness out of Court which was created for the purpose of being provided to a television journalist is admissible

Commonwealth of Australia v Davis Samuel Pty Ltd and Ors (No 7) [2013] ACTSC 146 (1 August 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/146.html

CORPORATIONS – Director – means of becoming – acting in position of – officer – decisions affecting corporation – maker of or participant in

EQUITY – Fiduciary duty – breach of – Barnes v Addy – receipt and assistance – liability for – third party – participatory liability – receipt liability – company – knowledge of – imputation to

EQUITY – Fiduciary duty – breach of – Barnes v Addy – remedies – In rem – In personam – constructive trust – imposition of – discretionary – occasion for – tracing – multiple fiduciary duty breaches – multiple claims

EQUITY – Breach of confidence – fundamental or operative mistake – ultra vires payment of public money

TRADE PRACTICES ACT – misleading and deceptive conduct

Giles Geoffrey Woodgate v Helen Margaret Fawcett [2008] NSWSC 786 (28 July 2008)

[2008] NSWSC 786

EVIDENCE – defendant served expert report on plaintiffs – plaintiffs requested certain documents and information referred to in the expert report pursuant to s 166 of the Evidence Act 1995 (NSW) – defendants did not comply with request and plaintiffs obtained order of the Court under s 169 that defendant was to comply with the requests – defendant sent letter explaining non-compliance – plaintiffs sought order under s 169(3) that the defendant’s expert report not be admitted into evidence – whether reasonable cause for non-compliance under s 169(4)(a) – whether Court had power to make order directing defendant to comply with request to identify author of a document – whether discretion to direct that the expert report not be admitted into evidence should be exercised

TRIMCOLL PTY LTD v DEPUTY COMMISSIONER OF TAXATION [2007] NSWCA 307 (30 October 2007)

[2007] NSWCA 307

EVIDENCE – request to call witnesses – Evidence Act] 1995 (NSW), s 167 – documents sought to be relied on as evidence of sham transactions – previous representation – authenticity, identity or admissibility of document or thing – operation of s 167(c) [Evidence Act not limited to exceptions to hearsay rule[
]EVIDENCE – reasonableness of request to call witnesses – reasonable refusal to comply with request to call witnesses – [Evidence Act] 1995 (NSW), s 169 – exercise of Court’s discretion to order party to comply with request to call witnesses
TAXATION – adequacy of pleadings – statement or averment in statement of claim prima facie evidence of matter averred – no reversal of legal burden of proof – Tax Administration Act 1953 (Cth) s 255-50
TAXATION – income tax – failure to make deductions from prescribed payments – liability of eligible paying authority – payees provided payee declarations varying prescribed payment deduction to nil – payees allegedly mere agents or conduits for third parties not entitled to deduction variation to whom payments were in fact due –[Income Tax Assessment Act] 1936 (Cth) s 221YHDA, s YHH(1)
WORDS & PHRASES – “authenticity” – “identity – “previous representation” – “representation”

LEGISLATION CITED:
Evidence Act 1995 (NSW), ss 59, 60, 69, 166, 167, 168, 169, Part 4.6

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 237 (26 March 2002)

[2002] NSWSC 237

EVIDENCE [53] – Admissibility and relevancy – Hearsay – Particular cases – Exclusion of hearsay rule – Statement by person not to be called as a witness tendered by a party – Whether another party (who is the person’s employer) may be required under s 169 of  Evidence Act 1995  to call the person as a witness.

Evidence Act 1995  Part 4.6 Div 1 ss 38, 59, 69, 166 – 169

NAB v Rusu [1999] NSWSC 539 (4 June 1999)

[1999] NSWSC 539

Practice and Procedure – commercial litigation – unrepresented parties – non-English speaking – proper advice and assistance from Court -

Evidence – tender of Business records by plaintiff bank – admissibility – Need to prove authenticity of records -  Evidence Act 1995 .

Evidence Act 1995  ss 48(1), 48(1)(6), 55(1), s 7(1), 59(1), 69(1), 69(2), 81(1) 142(1), 144(1) (6), 152, 166, 168 and 169.

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