Monthly Archives: January 2010

R v Turner (No 14) [2001] TASSC 124

http://www.austlii.edu.au/au/cases/tas/TASSC/2001/124.html

Blow J

Criminal Law — Evidence — Judicial discretion to admit or exclude evidence — Illegally obtained evidence — Particular cases — Records and returns as to fish catches — Whether discretion available.

Ridgeway v R (1995) 184 CLR 19

R v Swaffield (1998) 192 CLR 159

Nicholas v R (1998) 193 CLR 173, referred to.

Aust Dig Criminal Law [426]

Criminal Law – Jurisdiction, practice and procedure – Warrants, arrest, search, seizure and incidental powers – Search warrants – Generally – Susceptibility to collateral challenge – Misrepresentation to issuing officer – Matters relevant to trial judge’s discretion to exclude evidence.

Murphy v R (1989) 167 CLR 94;

Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356, distinguished.

Lego Australia Pty Ltd v Paraggio (1994) 53 FCR 542;

Flanagan v Commissioner of the Australian Federal Police (1995) 60 FCR 149;

R v Grassby (1988) 15 NSWLR 109, referred to.

Aust Dig Criminal Law [623]

R v S [2005] TASSC 18

R v S [2005] TASSC 18
Slicer J
CRIMINAL LAW — Jurisdiction practice and procedure — Adjournment, stay of proceedings or order restraining proceedings — Stay of proceedings — Abuse of process — Delay in instituting proceedings — Whether the accused will be prejudiced or oppressed by the delay.
CRIMINAL LAW — Jurisdiction, practice and procedure — Information, indictment or presentment — Joinder — Joint or separate trials — Generally — Discretion of trial judge to make orders — Severance of counts of indictment.

(TAS) Aust Dig Criminal Law [703]

(TAS) Criminal Code 1924 s 326

(TAS) Evidence Act 2001 ss 97, 98(2)(a) and 101

(TAS) Aust Dig Criminal Law [725]

Jago v District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378, applied

R v Randell [1999] TASSC 78, considered

Tasmania v Lam [2006] TASSC 7

Crawford J

CRIMINAL LAW — General matters — Ancillary liability — Conspiracy — Generally — Whether offender must be capable of committing the crime the object of the conspiracy — Whether only one of the conspirators need be so capable.

CRIMINAL LAW — Evidence — Judicial discretion to admit or exclude evidence — Evidence unfair to admit or improperly obtained — Illegally obtained evidence — Generally.

Gallagher (1989) 44 A Crim R 256, applied

(TAS) Aust Dig Criminal Law [87]

(TAS) Evidence Act 2001 s 138(1)

(TAS) Aust Dig Criminal Law [423] [425]

Tasmania v E [2007] TASSC 38

Crawford J

CRIMINAL LAW — Evidence — Similar facts — Relevance — Sexual Offences — Similar acts in relation to different persons — Whether related events — Whether significant probative value.

(TAS) Evidence Act 2001 ss 98(1)(b) and (2) and 101(2)

(TAS) Aust Dig Criminal Law [522]

L v Tasmania [2006] TASSC 59; R v Ellis (2003) 58 NSWLR 700, applied

Tasmania v Salter [2007] TASSC 33

Evans J

CRIMINAL LAW — Jurisdiction, practice and procedure — Warrants, arrests, search, seizure and incidental powers — Warrants — Search warrants — Issue and validity — Generally — Whether susceptible to collateral challenge for insufficiency of material before issuing officer.

CRIMINAL LAW — Evidence — Judicial discretion to admit or exclude evidence — Evidence unfair to admit or improperly obtained — Generally — Assessment of whether the desirability of admitting evidence outweighs the undesirability of its admission is a balancing exercise.

(TAS) Aust Dig Criminal Law [623]

(TAS) Aust Dig Criminal Law [423]

(TAS) Evidence Act 2001 s 138

McArthur v Williams (1936) 55 CLR 324; Murphy v R (1989) 167 CLR 94; Ousley v R (1997) 192 CLR 69; Question of Law Reserved on Acquittal (2000) 111 A Crim R 75,, referred

In the matter of an application for Bail by Breen [2009] ACTSC 172 (31 December 2009)

http://www.austlii.edu.au/au/cases/act/ACTSC/2009/172.html
BAIL – review of refusal of bail in Magistrates Court – applicant charged with threat to kill – applicant convicted of offence of violence in previous 10 years – presumption in favour of bail “does not apply” – Bail Act 1992 (ACT), s 9B – unique provision – onus lies with applicant, though prosecution must be heard.
HUMAN RIGHTS – factors relevant to grant of bail – Bail Act 1992 (ACT), s 22 – relevance of right to liberty – Human Rights Act 2004, s 18 (ACT) – presumption of innocence and interests of the accused – balanced against attendance at trial and “future risk” to the community – refusal of bail for “future risk” tantamount to “preventative detention” – policy of mandatory arrest in family violence matters – management of mental health and strict bail conditions held to mitigate risk.
EVIDENCE – assessment as to risk must be based on more than mere suspicion – court may consider any “information” it considers “relevant and reliable” – Bail Act 1992 (ACT), s 19(6).

DUFFY, Michael John v R; MANGAN, Shane Kenneth v R [2009] NSWCCA 304 (18 December 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2009/304.html
CRIMINAL LAW
appeal against sentence
maliciously inflicting grievous bodily harm in company
whether error in factual findings by sentencing judge
whether error in failure to apply 25 per cent discount for guilty plea
whether error in appointment of applicant’s role in commission of offence
whether failure to give sufficient weight to subjective circumstances

British American Tobacco Australia Services Ltd v Laurie & Ors [2009] NSWCA 414 (17 December 2009)

[2009] NSWCA 414

PROCEDURE – Courts and judges generally – Judges – Disqualification for interest or bias – Apprehended bias by way of prejudgment – Challenge to judge’s refusal to recuse himself – Where judge previously made credit and factual findings adverse to a party in an interlocutory judgment in separate proceedings – Whether findings in the interlocutory judgment expressed in such terms of finality that might give the impression to the reasonable fair-minded observer that the judge might not bring an impartial and unprejudiced mind to the issues in the proceedings – Material to which fair minded lay-observer may be assumed to have regard – Whether erroneous refusal of a judge of the Dust Diseases Tribunal to disqualify himself involves a decision in point of law so to ground an appeal under s 32(1) of the Dust Diseases Tribunal Act 1989 – Whether judge should have declined to disqualify himself on the ground of necessity

Crawley v Short [2009] NSWCA 410 (16 December 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2009/410.html
CORPORATIONS- oppression- numerous instances of oppression by director of companies- remedies- appropriate remedy a compulsory purchase order- valuation of shares. CORPORATIONS- oppression- remedies- compulsory buy-out order- valuation of shares- company’s assets solely land and business- relevance of capital gains tax (CGT) liability when sold- whether CGT deducted from value-whether selling costs to be deducted from gross proceeds. EQUITY- general principles- equitable defences- laches and delay- elements of laches- degree of knowledge of wrongdoing required depends on facts in all the circumstances- applicability of defence to oppression suit. EQUITY- fiduciary duties- directors’ duties to shareholders- when owed to shareholders. REAL PROPERTY- valuation of land- highest and best use- special value irrelevant in prevailing circumstances.

Evidence Act 1995, s 81

Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 (16 December 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2009/407.html
CONTRACTS – construction and interpretation of contracts – use of surrounding circumstances – whether ambiguity in the words of the contract is required before surrounding circumstances can be examined – businesslike or commercially sensible construction – relationship with surrounding circumstances – scope of admissible surrounding circumstances – CONTRACTS – construction and interpretation of contracts – subsequent conduct – whether the subsequent conduct of the parties can be examined to construe a written contract – relationship with objective theory of contract – extent of permissible use of evidence arising after the execution of a written contract – CONTRACTS – construction and interpretation of contracts – recitals – use of recitals as an aid to construction – EQUITY – equitable remedies – rectification – common intention of the parties – role of commercial context in determining the common intention of the parties – rationale for rectification – nature of the common intention required – standard of proof for common intention of the parties – test for appellate intervention – ESTOPPEL – equitable estoppel – whether the parties could be taken to have assumed or expected the existence of a binding agreement which differed the written agreement as executed – whether parties would be assumed to be free to withdraw from negotiations – estoppel by convention – need for a common assumption to be adopted by both parties – whether estoppel by convention can arise from pre-contractual negotiations

Pinot Nominees Pty Ltd v Commissioner of Taxation [2009] FCA 1508 (15 December 2009)

[2009] FCA 1508

EVIDENCE – parties attended a Court ordered mediation conference – whether evidence of communications of offer of compromise made at the mediation conference admissible on the question of costs.

COSTS – whether Commissioner acted unreasonably in not accepting offer of compromise – obligation on Commonwealth to act as a model litigant – whether compassionate considerations a relevant factor.

Evidence Act 1995 (Cth) s 131, 131(1), 131(2)(h)

RELIANCE FINANCIAL SERVICES NSW PTY LIMITED v SOBBI & ANOR [2009] NSWSC 1375 (10 December 2009)

[2009] NSWSC 1375

AMENDMENT TO PLEADINGS – Application to amend Cross-Claim by guarantors (defendants) against lenders/mortgagees (cross-defendants) – issue as to whether the cross-claimant guarantors were to receive the benefit of the loan – relevant to relief sought under Contracts Review Act 1980 – true purpose of loan sought to be raised under proposed amendments – contrary to purpose disclosed in principal affidavit of first cross-claimant – APPLICATION RE EVIDENCE – to adduce new or additional evidence to explain circumstances in which a contrary or contradictory version as to the purpose of the loan was given by first cross-claimant in unrelated proceedings at an earlier time – issues of delay and need to recall witnesses and likelihood of a prolonged hearing resulting – application refused – principles enunciated in Aon Risk Services Australia Limited v Australian National University applied – EVIDENCE – whether certificate under s.128, Evidence Act 1995 may be given where potentially incriminating evidence sought to be led in cross-examination or re-examination – whether such evidence can be considered to be given under objection or willingly by the witness – held a s.128 certificate may not be given with respect to such evidence as foreshadowed on the application for leave

R v Maan [2009] ACTSC 160 (7 December 2009)

[This decision seems to have been removed. It can still be located at LexisNexis]

CRIMINAL LAW – trial by judge alone – attempt to engage in sexual intercourse without consent – act of indecency without consent – Crown case entirely dependent on complainant’s evidence – sworn denials of accused – good character evidence – not necessary for a verdict of acquittal that accused’s account is truthful – finding of not guilty entered

EVIDENCE – whether to give a Prasad direction due to insufficient evidence – some discrepancies in complainant’s evidence – complainant a truthful witness – conduct of complainant following attack highly persuasive of its occurrence – request for a Prasad direction denied

EVIDENCE – complainant’s evidence not regarded as unreliable – no serious inconsistencies in the complainant’s evidence such as to have an adverse effect – multiple complaints from the same source have no enhanced evidentiary value – evidence of good character of accused – evidence of flight from the scene not an unequivocal consciousness of guilt

Evidence Act 1995 (Cth), ss 66,102, 108, 164, 165

Ying v Song [2009] NSWSC 1344 (3 December 2009)

[2009] NSWSC 1344

EVIDENCE – facts excluded from proof – privilege in respect of self-incrimination – application for a certificate to be given under s 128 of the Evidence Act for evidence proposed to be given by a defendant in chief by affidavit – whether the defendant in those circumstances “objects” within the meaning of s 128(1) – consideration of Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178 and Cornwell v R [2007] HCA 12; (2007) 231 CLR 260 – held that defendant did not object within the meaning of s 128 as defendant not otherwise compelled to give the evidence
PROCEDURE – courts and judges generally – precedents – decisions of particular courts – conflict between ratio of Full Family Court judgment and dicta of High Court majority judgment – both entitled to significant deference but neither strictly binding upon New South Wales Supreme Court – consideration of phrase “seriously considered dicta” – consideration of proper approach to conflicting non-binding authorities

R v Sharma [2009] ACTSC 154 (1 December 2009)

[2009] ACTSC 154

CRIMINAL LAW – trial by Judge alone – act of indecency upon person under age of 16 years.
CRIMINAL LAW – evidence – hearsay evidence – admissibility under Evidence Act 1995 (Cth) – out of court representation to police officer – representation as to kind of evidence witness could give in trial – content and purpose of representation – evidence inadmissible – Evidence Act 1995 (Cth), s 66(3).

Evidence Act 1995 (Cth), s 60, s 66

Safari Automotive Technology Pty Ltd v Ironman 4×4 Pty Ltd [2009] FCA 1330 (18 November 2009)

[2009] FCA 1330
TRADE PRACTICES –interlocutory injunction – restraining from importing distributing supplying offering for sale or selling goods of a same design and appearance – passing off – breach of ss 52 and 53 of the Trade Practices Act 1974 (Cth).

EVIDENCE – hearsay expert opinion – need to comply with ss 76 and 79 of the Evidence Act 1995 (Cth).

Guthrie v Spence [2009] NSWCA 369 (17 November 2009)

[2009] NSWCA 369

LIMITATION OF ACTIONS – postponement of the bar – disabilities – nature of the disability required – type of affairs with respect to which the disability must relate – nature of the suspension arising from a period of disability – meaning of “cause of action” in the Limitation Act 1969 – APPEAL AND NEW TRIAL – appeal – no order made in the court below – incomplete application for leave to appeal – procedure for dealing with a purported appeal when there was no order made in the District Court below – transfer of proceedings in the District Court for the purpose of making an order – PROCEDURE – interlocutory decisions – limitation of actions – methods by which a claim that a limitation period has been suspended might be litigated – EVIDENCE – admissibility of a history recorded in a medical report – WORDS AND PHRASES – “cause of action” – “substantially” – “affairs” – “management of his or her affairs”

Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 6) [2009] FCA 1363 (16 November 2009)

[2009] FCA 1363

PRACTICE AND PROCEDURE – Application for leave to inspect documents produced under subpoena directed to expert witnesses – Claim for legal professional privilege – Whether claim engaged with a known category of legal professional privilege – Whether privilege should be regarded as waived in terms of current Court practice and procedure – Held no claim for legal professional privilege – Held leave to inspect documents granted

Evidence Act 1995 (Cth) ss 118, 119

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306 (13 November 2009)

[2009] FCA 1306
EVIDENCE – whether hearsay evidence of statements by persons overseas should be permitted – the extent to which the proposed evidence was first hand or more remote hearsay – no independent evidence corroborating any hearsay version – whether undue prejudice to the respondent.

PRACTICE AND PROCEDURE – application to take evidence by video link – requirement to make out a case for such an order where it is opposed – discussion of the possible difficulties associated with video evidence.

PRACTICE AND PROCEDURE – security for costs – consideration of application for further security.

Evidence Act 1995 (Cth) ss 59(1), 62, 63, 64, 67, 68, 75, 135, 136, 192, 192A

Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 5) [2009] FCA 1320 (10 November 2009)

[2009] FCA 1320

EVIDENCE — Expert evidence — Application to reject tender of expert report — Relevance — Whether expert’s evidence based on specific knowledge based on that expert’s study, training or experience — Importance of identifying the relevant opinion of the expert and the material upon which the opinion is based — Whether expert has expertise with respect to the issues on the pleadings — Held expert does have particular expertise — Held expert report covers wider issues than those on the pleadings — Held difficulties distinguishing fact from opinion within expert report — Held detailed editorial exercise would be necessary to separate relevant from irrelevant – Tender of whole pressed – Held Application allowed and tender of report rejected

Evidence Act 1995 (Cth) ss 55, 56, 76, 79

Winnel v Byron [2009] ACTSC 146 (6 November 2009)

[2009] ACTSC 146

DEFAMATION – application to amend statement of claim – minor amendments made – no issue of principle

PRACTICE AND PROCEDURE – application to amend statement of claim – previously amended 3 times – 7 years since claim commenced – long delays – remarks on case management

Evidence Act 1995 s 136

Wilkshire v Registrar of Trade Marks [2009] FCA 1222 (30 October 2009)

[2009] FCA 1222

TRADE MARKS – applicant seeking rectification by cancellation of trade mark – construction of s 88 of Trade Marks Act 1995 (Cth) – grounds relied upon not enlivening s 88 of the Act

PRACTICE AND PROCEDURE – quasi summary nature of trade mark opposition proceedings – orders by consent dismissing appeal to Federal Court – undertakings noted including undertaking “not to threaten the Respondent … with any form of action” – construction of consent orders and undertakings – threaten in the context intended to comprehend “the initiation” of an action

Evidence Act 1995 (Cth) s 140

Humphries v SAS Signage Accessories Supplier Pty Ltd (No 2) [2009] FCA 1238 (26 October 2009)

[2009] FCA 1238

PRACTICE AND PROCEDURE – discovery of documents – discovery from non-parties to the proceedings – discovery against third parties is exceptional and the power to order third-party discovery must be exercised with restraint – inadequate evidence – no proper basis for ordering discovery – Notice of Motion dismissed.

Evidence Act 1995 (Cth) s 75

Comcare v John Holland Pty Ltd [2009] FCA 1196 (23 October 2009)

[2009] FCA 1196

EVIDENCE – pecuniary penalty proceedings under s 16(1) of the Occupational Health & Safety Act 1991 (Cth) – whether to admit written victim impact statements from victim’s family members

Held: Immediate family of deceased worker may table written material detailing the impact of death of deceased worker on their lives, being background information of assistance to Court. Material not taken into account to increase or decrease pecuniary penalties

Evidence Act 1995 (Cth) s 56(2)

New South Wales Crime Commission v Vu [2009] NSWCA 349 (22 October 2009)

[2009] NSWCA 349

APPEAL – nature of appeal indicated by whether first instance decision best characterised as an exercise of ‘discretion’ or ‘judgment’ – ex parte nature indicates first instance determination should be treated in the same way as an inference from facts – principles in Warren v Coombes applicable
CRIMINAL LAW – procedure – confiscation of proceeds of crime and related matters – restraining or freezing order – evidence and procedure – requirements of affidavit under s 10 Criminal Assets Recovery Act 1990
CRIMINAL LAW – procedure – confiscation of proceeds of crime and related matters – restraining or freezing order – evidence and procedure – police officer issuing charge not sufficient to establish reasonable grounds for suspicion under s 10 Criminal Assets Recovery Act 1990
EVIDENCE – admissibility and relevancy – hearsay – interlocutory proceedings – need not identify the ultimate source of the statement
WORDS & PHRASES – “reasonable grounds for suspicion”.

O’Keefe v Seafresh Holdings Pty Ltd trading as Westmore Seafoods [2009] NSWSC 1090 (15 October 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/1090.html
SECURITY FOR COSTS – resident outside jurisdiction – impecunious – inability to work because of injury – effect to stifle proceedings – conditional costs agreement with success payment not, on the facts, undertaking litigation for a commercial profit – order refused
PRIVILEGE – communication with third parties for the purpose of settling proceedings – s 131 Evidence Act 1995 – not applicable to costs agreement

Michael Wilson and Partners Ltd v Robert Colin Nicholls [2009] NSWSC 1033

Barnes and Addy — Breaches of contract — Secret profits — Diverting business opportunities from former employer to competing business — Confidential information — Plaintiff law firm offering legal services and business consultancy in Kazakhstan brings proceedings against former employees for having furthered their own interests to their employers detriment by various means — Jurisdiction — Enquiry as to whether foreign law applies to determination of matters litigated — Principled approach to determining questions of foreign law — Proceedings involve consideration of several potentially applicable systems of law — Multiplicity and overlapping nature of issues require court to consider the level of abstraction appropriate to address issues so as to discharge its ultimate mandate of doing justice between the parties — Fraud — Principles which inform the proper approach to whether or not particular conduct is proven to have been fraudulent — Conspiracy to defraud — Principles — Interference with contractual relations-Principles-Causation-Abuse of process — Defendants claim that proceedings amount to an abuse of process and required to be summarily dismissed-Consideration of what amounts to an abuse of process — Case management — Allegations of abuse of process intertwined with principal issues litigated — Efficiently dictates that both the plaintiffs pleaded case as well as the defendant’s abuse of process case be litigated together — Causation — Remedies — Constructive trusts — Election — Split election — Nullus commodum capere potest de injuria sua propria — Overriding purpose rule — Achievement of a just, timely and cost-effective resolution of dispute has an effect upon the court and upon other litigants — Commercial life depends on timely and just payment of money such that those who claim to be entitled to money should know, as soon as possible, whether they will be paid and those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay — Ethos of Commercial List to determine disputes speedily

Horizontal Falls Adventure Tours Pty Ltd (ACN 108 455 410) v Thomas (No 2) [2009] FCA 1084 (25 September 2009)

http://www.austlii.edu.au/au/cases/cth/FCA/2009/1084.html
PRACTICE AND PROCEDURE – applicant company conducts tours in remote Western Australia – applicant part of tourism business jointly operated by applicant’s sole director and the second respondent – applicant seeks order for delivery of booking records allegedly taken by respondents – whether applicant entitled to relief sought – standard of proof – causes of action raised by applicant after judgment reserved

Held: Application for order for delivery of booking records dismissed

Evidence Act 1995 (Cth) s 140(2)

Tobin v Ezekiel; Estate of Lily Ezekiel [2009] NSWSC 1209 (23 September 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/1209.html
EVIDENCE – affidavits and statutory declarations – affidavits – plaintiff seeks to read affidavit of conversation with person unable to be called as a witness – where plaintiff’s solicitor sent letter to defendant’s solicitors purporting to give notice under (NSW) Evidence Act 1995, s 67 of an intention to adduce evidence of previous representation in reliance on s 64(2) – where notice substantially complied in form with requirements of (NSW) Evidence Regulations 2005, reg 4 – where requisite 21 days prior service not complied with – where there would be potential prejudice from inability to investigate – leave to read affidavit refused

(NSW) Evidence Act 1995, s 64(2), s 67, s 68

Blomfield v Nationwide News Pty Ltd (No 2) [2009] NSWSC 978 (15 September 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/978.html
EVIDENCE – defamation – admissibility and relevance – facts relevant to facts in issue – facts showing state of mind – credit and credibility – objection to the tender of evidence on the contention that it is irrelevant, unfairly prejudicial, previous representation and does not qualify as business record – Evidence Act 1995 ss 44, 69 and 135

Holschier v State Parole Authority [2009] NSWSC 916 (11 September 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/916.html
ADMINISTRATIVE LAW
judicial review
error of law on face of record
jurisdictional error
decision of State Parole Authority
determination not to rescind order revoking parole
reasonableness of decision
onus of proof
not accepting evidence despite finding not untruthful
whether witnesses had interest in outcome of proceedings
assessment of voice identification evidence

University of Western Australia v Gray [2009] FCAFC 116 (3 September 2009)

[2009] FCAFC 116
CONTRACT – implication of terms in law – person employed by university as professor of surgery – express contractual obligations, inter alia, to undertake research, to organise research and generally to stimulate research among the university’s staff and students – employee part of a team carrying out research directed to treatment of tumours in the liver – funding of the research came from numerous bodies – the employee had been engaged on research of that kind before joining the staff of the university as well as during his tenure there – inventions and applications for and the grant of patents resulted from the research – whether implied term that the university had proprietary rights in the inventions, patent applications and patents – whether term implied in law that employee held them upon trust for the university – special features of universities and academic pursuits – freedom to publish results of research.
Held: there was no “duty to invent” and the conditions required for the implication of a term at law were not satisfied.

FIDUCIARY DUTIES – person employed by university as professor of surgery – express contractual obligations, inter alia, to undertake research, to organise research and generally to stimulate research among the university’s staff and students – employee part of a team carrying out research directed to treatment of tumours in the liver – funding of the research came from numerous bodies – the employee had been engaged on research of that kind before joining the staff of the university as well as during his tenure there – inventions and applications for and the grant of patents resulted from the research – whether implied term that the university had proprietary rights in the inventions, patent applications and patents – whether term implied in law that employee held them upon trust for the university – special features of universities and academic pursuits – freedom to publish results of research.
Held: in absence of implication of terms in law, there was no independent fiduciary obligation of a kind and scope that made employee accountable to university for the inventions, applications for patents, or patents.

PATENTS – inventive concept – identification of inventive concept – time when inventive concept was complete – identification of inventors – person employed by university as professor of surgery – express contractual obligations, inter alia, to undertake research, to organise research and generally to stimulate research among the university’s staff and students – employee part of a team carrying out research directed to treatment of tumours in the liver – funding of the research came from numerous bodies – the employee had been engaged on research of that kind before joining the staff of the university as well as during his tenure there – inventions and applications for and the grant of patents resulted from the research – claim by university that employee accountable to university for inventions, patent applications and patents resulting from research done by him during and in course of his employment – whether inventive concept was complete during period of his employment – distinction between inventive concept on one hand and verification and reduction to practice on other hand – whether employee was the inventor.

CONTRACT – express terms – person employed by university as professor of surgery – contractual term incorporating university’s patents regulations to effect that employee making an invention during and in the course of employment must promptly notify Vice-Chancellor who is to refer matter to Patents Committee for recommendation whether university should assert rights in invention and apply for a patent – university’s failure to maintain patent committee mechanism – failure to maintain mechanism on which its rights dependent – non-fulfilment of contingent condition.
Held: on the evidence, university had abandoned the patent committee mechanism and the term incorporating the patent regulations did not avail university.

Evidence Act 1995 (Cth) s 144

Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Limited [2009] FCAFC 105 (31 August 2009)

[2009] FCAFC 105
ADMINISTRATIVE LAW — voluntary statement of reasons — filed “to assist the parties” — filing constitutes no joinder of issue — legal advice in minute making recommendations — no waiver of privilege

PRACTICE AND PROCEDURE — leave to appeal — legal professional privilege –statement of reasons — statement as to effect of legal advice — waiver

Evidence Act 1995 (Cth) s 122(5)(a)(iii)

On the matter of an application by Huy Huu Lee [2009] ACTSC 98 (27 August 2009)

[2009] ACTSC 98

EVIDENCE – admissibility – identification evidence relying on photograph of accused –photograph taken during execution of defective search warrant – whether identification evidence obtained improperly or in contravention of Australian law, or in consequence of impropriety or contravention.

EVIDENCE – admissibility – identification evidence relying on photograph of accused –photograph taken during execution of defective search warrant – application of s 230 Crimes Act 1900 (ACT) – whether photograph should have been retained by police if taking of photograph not authorised by s 230 Crimes Act 1900 (ACT) – whether s 231 applies to material taken in mistaken belief that s 230 permits taking of material – whether, if s 231 does not apply, material can be retained or should be destroyed.

EVIDENCE – admissibility – identification evidence relying on photograph of accused – scope for taking identification material apart from s 230 Crimes Act 1900 (ACT) – effect of Surveillance Devices Act 2004 (Cth)].

EVIDENCE – admissibility – application of s 138 Evidence Act 1995 (Cth) – evidence obtained in consequence of an impropriety or contravention of Australian law – whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained in the way it was obtained – public interest in compliance with restrictions on police powers to take identification material.

Evidence Act 1995 (Cth), s 138