Category Archives: s. 169

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