Category Archives: s. 169

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.

Charara v Grewal & Wilden [2013] NSWSC 1724 (15 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1724.html

PROCEDURE AND EVIDENCE – claim inadequately pleaded – reasonable request to inspect documents – failure to comply with request – application for requested documents not to be admitted into evidence – right to test authenticity of evidence – failure to comply with court order – overseas travel no excuse for failure to comply – plaintiff claim dismissed – costs awarded

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

State of Tasmania v Lin [2011] TASSC 54 (4 October 2011)

http://www.austlii.edu.au/au/cases/tas/supreme_ct/2011/54.html

Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Whether records belonging to or kept in the course of, or for the purposes of a business.
Tubby Trout Pty Ltd v Sailbay Pty Ltd (1992) 42 FCR 595, applied.

Evidence Act 2001 (Tas), s69.

Aust Dig Evidence [121]

Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Whether reasonable cause for non–compliance with a request to call as a witness the maker of a representation.
Evidence Act 2001 (Tas), s169.

Aust Dig Evidence [121]

Criminal Law – Particular offences – Offences against the Government – Other offences – Conspiracy to defraud by deflection a public officer from public duty – Public duty.
Tasmania v Lin [2011] TASSC 14; Herscu v R [1991] HCA 40; (1991) 173 CLR 276, referred to.
Living Marine Resources Management Act 1995 (Tas).
Fisheries (Rock Lobster and Giant Crab) Rules 2001 (Tas).

Aust Dig Criminal Law [2538]

Criminal Law – Procedure – Verdict – Alternative verdicts – Particular cases – Alternative charges of similar gravity – If guilty on either charge the jury should give its verdict on that charge alone.
R v Seymour (1954) 38 Cr App R 68, applied.
Stanton v R [2003] HCA 29; (2003) 77 ALJR 1151, referred to.
Aust Dig Criminal Law [3176]

Banksia Mortgages Limited v Croker and Ors [2010] NSWSC 883 (6 August 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/883.html

PROCEDURE – discovery and interrogatories – discovery and inspection of documents – orders for further discovery refused – leave to rely on further lay and expert evidence – leave granted in part – leave under section 168 of Evidence Act 1995 refused – orders under section 169 of Evidence Act 1995 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

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

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.

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