Category Archives: s. 167

Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 5) [2014] FCA 976 (9 September 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/976.html

ARBITRATION – international arbitration – whether the Court should appoint receivers in respect of shares in a private company incorporated in Australia being the only known asset in Australia belonging to an Indian corporation which is an award debtor under a foreign arbitral award – whether a purported sale of the said shares to another Indian corporation was a sham.

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

HP Mercantile Pty Ltd v Clements [2014] NSWSC 290 (19 March 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/290.html

EVIDENCE – admissibility and relevancy – hearsay – whether relevant documents are admissible as business records under Evidence Act 1995 (NSW) s 69 – where identity of author of relevant documents is unknown – whether relevant documents contained previous representations made or recorded in the course of, or for the purposes of, relevant business – whether relevant representations were made by a person who had or might reasonably be supposed to have had knowledge of the asserted facts, or on the basis of information directly or indirectly supplied by such a person.
EVIDENCE – admissibility and relevancy – whether relevant documents should be excluded under s 135 on the basis that documents are unfairly prejudicial or misleading.
EVIDENCE – admissibility and relevancy – application to seek direction that relevant evidence is not to be admitted under Evidence Act 1995 (NSW) s 169 – where party had failed to comply with request to call witness – whether plaintiff’s refusal to comply with request made without reasonable cause.

HP Mercantile Pty Ltd v Clements [2014] NSWSC 213 (6 March 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/213.html

PROCEDURE – pleadings – amendment – where defendant seeks leave to file amended defence – where hearing is due to commence and there have been lengthy delays – whether leave for proposed amendments should be refused on case management grounds – whether plaintiff will suffer prejudice in addressing amendments.
EVIDENCE – request to call witnesses – application for order compelling plaintiff to call a witness under Evidence Act 1995 (NSW) ss 167, 169 – where plaintiff refused to comply with request – whether defendant should have leave to make request outside time limit – whether plaintiff’s refusal to comply with request made without reasonable cause – matters to be considered in exercise of Court’s discretion to order party to comply with request to call a witness.

R v Gittany (No 3) [2013] NSWSC 1670 (13 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1670.html

CRIME – evidence – where accused served notice of intention to call evidence that deceased had a tendency to act in a particular way – call by Crown for production of any statements taken by solicitor for accused from persons identified in notice – whether client legal privilege lost upon service of notice – whether client legal privilege lost upon calling witnesses to give evidence in the case for the accused

Westpac Banking Corporation v Billgate Pty Ltd [2013] NSWSC 1304 (11 September 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1304.html

147. The truth only emerged because Mrs Jamieson’s legal advisors served on the Bank a notice pursuant to s 167 of the Evidence Act 1995 requiring the Bank to produce Mr Le Compte as a witness to prove the file notes. But for that, the true position may never have emerged.
148. It follows that I do not accept Mr Le Compte’s “recollection version” file notes as providing reliable evidence as to what occurred on those days. Further, I accept the submission made on behalf of both Mr and Mrs Jamieson that it is also likely that Mr Le Compte tailored his oral evidence to match the version of events in his “recollection version” files notes and that I should treat his evidence about those matters with the upmost caution.

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

Lin v Tasmania [2012] TASCCA 9 (19 September 2012)

http://www.austlii.edu.au/au/cases/tas/TASCCA/2012/9.html

Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Criminal cases – Prosecution case based on business records – Makers of representations not apparent from records – Request by accused to call makers of the representations at the trial – Prosecution asserted inability to identify makers – Unsuccessful application by accused to have evidence not admitted – Finding that accused likely to have known of the identity of the makers – Onus on prosecution to show reasonable cause for failing to call the makers as witnesses – Relevance of knowledge of the accused – Evidence Act 2001 (Tas), ss167, 169.

Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324; Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307, considered.

Aust Dig Evidence [121]

Evidence – Documentary evidence – Statutory provisions relating to business records – Particular cases – Criminal proceedings – Business record – Notation on document relied on for a non-hearsay purpose – Request by accused to call maker – Prosecution asserted inability to identify maker – Unsuccessful application by accused to have evidence not admitted – Evidence Act , ss167 and 169 apply to representations tendered for non-hearsay purposes.

Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324; Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307, considered.

Lewis v Nortex Pty Ltd (In liq) [2002] NSWSC 237, applied.

Aust Dig Evidence [122]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Misdirection or non-direction – Misdirection – Prosecution based on representations in business records – Miscarriage of justice where trial judge wrongly gave significance to a notation not relied on by prosecution as incriminating – Failure to properly re-direct when requested.

Aust Dig Criminal Law [3466]

Criminal Law – Procedure – Confiscation of proceeds of crime and related matters – Pecuniary penalty and like orders – Assessment of benefit derived from the commission of the crime – Crime of conspiracy – Conspiracy to commit crimes under fishing legislation by understating in catch records amount of fish caught – Payment by accused for undeclared amount at lesser rate than for declared amount – Benefit derived was the wholesale value of the undeclared fish received – Price paid for undeclared fish disregarded.

Cornwell v Australian Federal Police (1990) 24 FCR 544 at 554, followed.

Crime (Confiscation of Profits) Act 1993 (Tas), ss21, 22.

Aust Dig Criminal Law [3230]

Kirby v Centro Properties Limited (No 3) [2012] FCA 221 (13 March 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/221.html

EVIDENCE – Evidence Act 1995 (Cth) ss 135, 136 167(a), 169 and 192A – reasonable request – for the purpose of determining a question that relates to a previous representation – implied representation which might be relevant for the purposes of the proceedings – representation might be relied on for hearsay purpose – failure or refusal to comply with request – without reasonable cause – general discretion to exclude or limit use of evidence – unfair prejudice – framing of limitation order

NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 1036 (13 September 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1036.html

CIVIL PROCEDURE – interlocutory application for access to documentary exhibit for forensic examination – quaere the existence of any genuine dispute as to authenticity or identity of the document– no reasonable forensic purpose identified – whether request reasonable in the circumstances – application refused

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

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

Deputy Commissioner of Taxation v Trimcoll Pty. Limited [2005] NSWSC 1324 (16 December 2005)

[2005] NSWSC 1324

Requests made under s.167 Evidence Act – plaintiff requested the defendant call as a witness certain persons who had made previous representations in particular documents – defendant refused to compy with request – plaintiff seeking an order that the evidence to which the request is made is not to be admitted in evidence – plaintiff would alternatively accept an order directing that persons believed to be concerned with production of specified documents be called as witnesses at the hearing – authenticity or admissibility of the documents in issue – defendant did not wish to tender the documents as evidence of the truth of the representations – documents annexed to affidavits contained previous representations – annexed documents included payment declaration forms and invoices for work undertaken by sub-contractors – the request procedures under s.167 of the Evidence Act – whether plaintiff’s requests made under s.167 of the Evidence Act reasonable – the preconditions to be met by a requesting party – matters relevant to determining whether a request under s.167 a reasonable request – whether defendant’s refusal to comply with request made without reasonable cause – matters to be considered in the exercise of the power to make orders under s.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