Monthly Archives: February 2010

North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (formerly Joseph Merhi Industries Pty Ltd) trading as Synergy Protection Agency [2010] NSWSC 52

North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (formerly Joseph Merhi Industries Pty Ltd) trading as Synergy Protection Agency [2010] NSWSC 52

12 February 2010

Catchwords: Damages – Summary of principles in relation to damages generally and contract damages in particular – Separate question orders agreed by parties – Lost profits-competing contentions on treatment of overheads/fixed costs – Whether proper basis of assessment is to apply the ‘absorption method’ of cost accounting to allocate correctly all of the fixed costs across the whole of the relevant business – Alternatively whether the proper basis of assessment is that has defendant continued to incur the fixed costs in question, an apportionment of those costs using the ‘absorption method’ is inappropriate – Consideration of Dart Industries inc. v Decor Corporation (1993) 179 CLR 101-Evidence – Consideration of section 146 of Evidence Act 1995
Judgment of: Einstein J   Category: Procedural and other rulings

CGL v DPP (No 2) [2010] VSCA 24 (19 February 2010)

CRIMINAL LAW – Appeal – Interlocutory appeal – Confessional evidence – Admission by accused to complainant – Whether admissible – Whether exclusion of evidence ‘would eliminate or substantially weaken the prosecution case’ – Whether certificate of trial judge warranted – Leave to appeal refused – Evidence Act 2008 (Vic) s 85, Criminal Procedure Act 2009 (Vic) ss 295(3), 297.

Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Limited [2010] FCA 108 (22 February 2010)

PATENTS – devices for assays involving specific binding – alleged infringement by respondents’ pregnancy testing devices – construction of claims – validity – utility – whether product within the claims not useful – claim leaves reader to select appropriate specific binding reagents – novelty – whether applicant’s earlier patent anticipates its later patent – whether additional feature in later patent disclosed in earlier patent – construction of “carrier” propounded by applicant for purposes of infringement applies on consideration of anticipation – whether divisional patent takes priority date of priority documents, parent or own filing date – whether divisional patent fairly based on parent patent or priority documents – sufficiency – clarity

PATENTS – personal liability of director for infringement by companies – joint tortfeasor – relevant test – relevance of director’s knowledge that acts constitute patent infringement – director’s involvement in managing companies and procuring and distributing infringing products – meaning of “authorise” under s 13 of the Patents Act – whether analogous to copyright law – whether applicable to directors – sanction, approve or countenance

EVIDENCE – admissibility – exception to hearsay rule – whether representation obtained in connection with proceeding

Words and phrases:

“specific binding reagent”, “dry porous carrier”, “within said casing”, “authorise”

Evidence Act 1995 (Cth) s 69

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (3 March 1959)

[1959] HCA 8

Negligence – Action – Collision between motor vehicles – No direct evidence of negligence – Matter of inference from proved facts – Sufficiency of facts to support inference.

Practice – Direction to jury – Inference of negligence open on proved circumstances – Whether inference should be drawn – Defendant able to explain facts from &which inference sought to be drawn – Failure of defendant to give evidence – What reliance to be placed by jury on such failure in deciding whether or not to draw inference – Nature of direction to jury.

Practice – Non-suit – Verdict by direction – History – Application in New South Wales.

Re an application for bail by Merritt (No.2) [2010] ACTSC 7 (8 January 2010)

CRIMINAL LAW – Bail – jurisdiction to hear application for bail – new information and change in circumstances relevant to grant bail – s 43 Bail Act 1992 (ACT)
CRIMINAL LAW – Bail – criteria for grant bail – cash surety – applicant desire to undertake drug rehabilitation – no offences of a serious nature – no indication of an increasing seriousness of offences – no indication that applicant is unlikely to be able to resolve criminal habits with appropriate support.
CRIMINAL LAW – Bail – surety – cash provided by surety from own resources.
PRACTICE AND PROCEDURE – Bail – Evidence and information – facts asserted from counsel – ss 4.8 Evidence Act 1995 (Cth), s 19(6) Bail Act 1992 (ACT).
PRACTICE AND PROCEDURE – completion of bail form – need for reform of application form – need for applicants to complete form with information required.
PRACTICE AND PROCEDURE – adjournment of bail applications – need to adjourn if insufficient notice given of grounds of application.

Evidence Act 1995 (Cth) ss 4, 8

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 29 (5 February 2010)

LANDLORD AND TENANT – leases and tenancy agreements – construction and interpretation – option to purchase included in lease – option exercisable within five year term of lease – whether option survives earlier termination of lease – LANDLORD AND TENANT – lessee’s covenants – as to permitted use of land – as to existence of necessary consents for permitted use – whether covenants breached – whether breach capable of being remedied – MISTAKE – equitable remedies – rectification – whether lessee’s covenant as to permitted use should be rectified for common mistake – ENVIRONMENT AND PLANNING – “existing use” rights – whether establishment of tree plantation permitted on land previously used for cattle grazing and pasture protection – LANDLORD AND TENANT – termination of the tenancy – frustration: application of to leases – whether frustration – re-entry and forfeiture – when right of re-entry becomes enforceable – CONTRACTS – discharge and breach – application of contract principles to leases – where lessee’s covenant agreed to be essential term – breach thereof – whether lease terminated for fundamental breach – separateness of right of re-entry and right to terminate contract – Conveyancing Act 1919 s 129(1) relevant to former but not latter – ESTOPPEL – estoppel by convention – whether available in the face of an “entire agreement” clause by reference to pre-contract consensus – whether such consensus existed in fact – ELECTION – principles discussed – whether lessor elected to affirm lease despite lessee’s breach of covenant – LANDLORD AND TENANT – relief against forfeiture – principles discussed – whether court should grant relief against forfeiture to lessee – whether lessor’s exercise of right to terminate was unconscionable – CONTRACTS – implied terms – term requiring good faith – whether implied – whether any such term can qualify express term making lessee’s covenants essential terms – CONTRACTS – implied terms – term requiring co-operation – scope of such term – EQUITY – fraudulent and innocent misrepresentation – alleged misrepresentation by lessee – whether lessor thereby induced to grant lease – causation and reliance – CONVEYANCING – the contract and conditions of sale – terms of contract arising from exercise of option to purchase included in lease – contractual mechanism for determination of price – construction and interpretation – LANDLORD AND TENANT – option to purchase included in lease – implied terms – whether implied term that lessee not entitled to exercise option if in breach of lease covenant – applicability of Conveyancing Act 1919 s 133E to any such implied term – EQUITY – equitable remedies and equitable defences – specific performance – unclean hands – EQUITY – fiduciary obligations – whether fiduciary duties existed – whether such duties breached – knowing involvement in breach – EQUITY – equitable remedies – constructive trust – effect on third party – whether third party with prior equitable interest will be unfairly prejudiced by recognition of constructive trust – whether such prior interest exists – EVIDENCE – where key participants not called to give evidence – available inferences – whether fear of reactivation of criminal charges sufficient explanation

Evidence Act 1995, s 128

Minister for the Environment, Heritage and the Arts v PGP Developments Pty Limited [2010] FCA 58 (12 February 2010)

ENVIRONMENT – pecuniary civil penalty sought – declaration of contravention sought – statement of agreed facts provided by parties
DECLARATIONS – statement of agreed facts adduced as evidence under s 191 Evidence Act – whether agreed facts are evidence sufficient to support declaration

Evidence Act 1995 (Cth) 191

Australian Securities & Investments Commission v Soust [2010] FCA 68 (15 February 2010)

CORPORATIONS – purchase of shares on Stock Exchange – whether transaction created an artificial price for trading in financial products on a financial market – whether transaction created a false or misleading appearance with respect to the market for or price for trading in financial products on a financial market – directors’ duties – good faith and proper purpose – personal advantage – causing detriment to a corporation.

Evidence Act 1995 (Cth): s 140

Commonwealth Development Bank of Australia Pty Ltd & Anor v Claude George Rene Cassegrain; Gerald Cassegrain & Co Pty Ltd & Ors v Commonwealth Development Bank of Australia Pty Ltd & Ors; [2002] NSWSC 980

Evidence — Expert evidence — Expert witness code of conduct — Admissibility of purported expert report — Expert failed to acknowledge that he would be bound by the Expert Witness Code of Conduct in Schedule K of the Supreme Court Rules pursuant to Pt36 r13C(2) — Witness not aware of existence of Code of Conduct prior to preparation of expert statement — Whether ‘otherwise order’ permitting evidence should be made — Supreme Court Rules Pt36 r13C(2); Schedule K

Carney v Newton [2006] TASSC 4 (15 February 2006)

[2006] TASSC 4

Appeal and New Trial – New trial – In general and particular grounds – Particular grounds – Misdirection or non-direction – Directions as to particular matters – Other matters – Balance of probabilities – Contradictory and confusing directions.

Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, referred to.

Aust Dig Appeal and New Trial [177]

Callanan v B [2004] QCA 478 (10 December 2004)

[2004] QCA 478
PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – OTHER CONTEMPTS – investigation by Crime and Misconduct Commission into criminal activities – where respondent declined to answer questions asked by the Commission concerning the involvement of the respondent’s husband in the criminal activity under investigation – where respondent declined to answer on the basis that she had a reasonable excuse for not doing so – where that reasonable excuse spousal privilege – whether respondent had a reasonable excuse for not answering questions
EVIDENCE – spousal privilege – whether there is a common law privilege against spouse incrimination – whether abrogated by s 190(2) Crime and Misconduct Act 2001 (Qld)

Boonudnoon v The Queen [2002] WASCA 313 (22 November 2002)

Criminal law and procedure – Directions as to burden of proof – Direction as to drawing inferences from circumstantial evidence – Admissibility of evidence of out­of­court statements by accused – Need for direction about lies told by accused – Admissibility of evidence by police officer as to handwriting

Sentence – Importation of heroin – Alleged failure to properly consider applicant’s antecedents – Impact on offender of service of sentence in a foreign country

Bolus v R [2006] NSWCCA 182 (15 June 2006)

[2006] NSWCCA 182

CRIMINAL LAW – Appeal against conviction – conspiracy to import cocaine – record of interview – whether judge failed to direct the jury as to consciousness of guilt – whether relevance of record of interview was merely to strengthen an otherwise strong Crown case – application of Rule 4 – whether tactical reasons for not requesting a direction on consciousness of guilt – conscious and informed decision not to seek a redirection – whether the verdict of the jury was unreasonable – meaning of hypothesis consistent with innocence – whether on the whole of the evidence it was open to the jury to conclude that the appellant knew of the planned importation – evidence of recorded conversations – whether an inference available on the knowledge of the accused

Birks v The State of Western Australia [2007] WASCA 29 (7 February 2007)

[2007] WASCA 29

Criminal law – Appeal against arson and murder convictions – Evidence – Admissibility of experiments and tests – Admissibility of video showing “demonstration burn” – Whether miscarriage of justice occurred – Disputed admissions on video records of interview – Whether trial Judge failed properly to direct the jury or give a “McKinney” direction – Whether trial Judge erred in failing to direct the jury as to the availability of s 24 Criminal Code (WA) defence – New evidence – Whether, having regard to the new evidence, a miscarriage of justice occurred – Where new evidence was inconsistent with the appellant’s case at trial

Bellemore v Tasmania [2006] TASSC 111 (21 December 2006)

[2006] TASSC 111

CONSTITUTIONAL LAW — The non-judicial organs of Government — The legislature — Legislation and legislative powers — Legislative powers — Power to act contrary to separation of powers doctrine — Constitution, Ch III — State Act creating crime — Retrospective effect — Whether jurisdiction conferred upon State Supreme Court incompatible with Ch III.
CRIMINAL LAW — Evidence — Judicial discretion to admit or exclude evidence — Evidence unfair to admit or improperly obtained — Generally — Unreliability — Whether a discretion to reject unreliable evidence.
CRIMINAL LAW — Evidence — Complaints — Admissibility of details and fact of complaint — Sexual offences — Evidence of how complainant came to make complaint many years after — Whether excluded by hearsay rule — Whether fresh in the witness’s memory — Whether inadmissible under credibility rule.
CRIMINAL LAW — Evidence — Evidentiary matters relating to witnesses and accused persons — Character and previous convictions — Evidence of good character — Desirability of direction as to.
CRIMINAL LAW — Evidence — Miscellaneous matters — Other cases — Sexual crimes against children — Evidence by psychiatrist of tendency of victims not to complain — Evidence of tendency of victims to suffer psychological damage — Evidence not specific to the complainant — Whether relevant or admissible.
CRIMINAL LAW — Jurisdiction, practice and procedure — Course of evidence, statements and addresses — Addresses — Contents — Duty of counsel for prosecution — Whether comments excessive or prejudicial — Expression of counsel’s own views of evidence — Comments minimising effect of Longman warning.
EVIDENCE — Facts excluded from proof — On grounds of privilege — Professional confidence — Communication with counsellor — Whether evidence of treatment excluded.

(TAS) Evidence Act 2001 ss 59, 66 and 102

(TAS) Evidence Act 2001 s 79A

(TAS) Evidence Act 2001 s 127B

Austereo Pty Ltd v DMG Radio (Australia) Pty Ltd [2004] FCA 968 (28 July 2004)

[2004] FCA 968
TRADE MARKS – “sounds different” mark in respect of radio broadcasting services – whether inherently adapted to distinguish – whether adapted to some extent – descriptive words

TRADE MARKS – no use before priority date – use to which evidence of subsequent use can properly be put

Evidence Act 1995 (Cth) s 72, s 78, s 138

Attorney-General v Foster [1999] FCA 81 (16 February 1999)

[1999] FCA 81

EXTRADITION – validity of warrant for surrender issued by Minister for Justice on behalf of the Attorney-General – whether s 19 of the Acts Interpretation Act 1901 (Cth) enables the Minister for Justice to act for or on behalf of the Attorney-General – whether assent of the Prime Minister or Cabinet is necessary – application of s 19 – whether section is an interpretative tool or has substantive effect – whether the words in s 19 only apply in cases of temporary absence of a Minister.

PRACTICE & PROCEDURE – retrospective legislation amendment – whether amendment deprived the issue raised by the notice of appeal of any real practical significance

EVIDENCE – notice of motion to adduce further evidence not before primary judge – documentary evidence readily accessible to public and not contentious – whether failure to adduce evidence at trial due to a lack of reasonable diligence – whether evidence important to the proper determination of the application – whether new evidence required formal proof.

ADMINISTRATIVE LAW – relevant considerations – whether Minister acted in accordance with the requirements of natural justice and procedural fairness – whether procedural fairness required a further opportunity for respondent to respond to factual matters in issue.

Evidence Act 1995 (Cth), ss 143, 153, 155

The Attorney-General for the Commonwealth & “Kevin and Jennifer” & Human Rights and Equal Opportunity Commission [2003] FamCA 94 (21 February 2003)

[2003] FamCA 94

APPEALS – Marriage – Validity – Appeal against declaration of validity of marriage between a woman and a post-operative female to male transsexual person – s. 113 Family Law Act 1975 – No application that the Full Court receive further evidence upon questions of fact pursuant to s. 93A – Family Law Act 1975 – Appeal dismissed.

CONSTITUTIONAL LAW – Meaning of marriage in the Constitution – Not to be regarded as frozen in time to the definition as it was understood in 1901 – W v T (1998) FLC 92-808, Attorney-General for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469, Attorney-General (Vic) v The Commonwealth (1962) 107 CLR 529, Cormick & Cormick v Salmon (1984) 156 CLR 170, Re: F ex parte F (1986) 161 CLR 376, The Queen v L (1991) 174 CLR 379, Re : Wakim; ex parte McNally (1999) 198 CLR 511, Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, Senate Hansard, 18 April 1961, ss. 46(1) and 69(2) Marriage Act 1961, ss. 43, 114(2) Family Law Act 1975, considered.

STATUTORY INTERPRETATION – Question of law what criteria should be applied in determining whether a person is a ‘man’ or a ‘woman’ for the purpose of the law of marriage – Marriage Act held not to be a code – Contemporary ordinary every day meaning is to be given to the words ‘man’ and ‘marriage’ for the purpose of the Marriage Act 1961 (Cth) – Meaning of ‘man’ includes a post-operative female to male transsexual – Question of fact whether the criteria are met in a particular case – Trial Judge correct to find on the evidence that the post-operative female to male transsexual person in this case is a ‘man’ for the purpose of the Marriage Act – R v Harris and McGuiness (1988)] 17 NSW LR 158, Secretary, Department of Social Security v SRA (1993) 118 ALR 467 followed; Corbett v Corbett (otherwise Ashley) [1971] P83 and Bellinger v Bellinger [2001] 2 FLR 1048 not followed; In the Marriage of C and D (falsely called C) (1979) FLC 90-636 disapproved; Cozens v Brutus [1973] AC 854, Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, Fitzpatrick v Sterling Housing Association Ltd [2001] AC 27, R v McMinn (1981) 38 ALR 565, Bennion (1997) Statutory Interpretation – A Code (3rd Ed) applied; W v W [2001] 2 WLR 673, Corporate Affairs Commission of NSW v Yuill (1991) 172 CLR 319, Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603, Goodwin v The United Kingdom (European Court of Human Rights Application no. 28957/95; judgment delivered 11 July 2002), I v The United Kingdom (European Court of Human Rights Application no. 25680/94; judgment delivered 11 July 2002), Jones v Dunkel (1959) 101 CLR 298, The Queen v L (1991) 174 CLR 379, ss. 1, 43, 51, 114(2) Family Law Act 1975, ss. 23, 23A, 23B, 42, 66 Marriage Act 1961, ss. 155, 185 Evidence Act 1995(Cth), s. 49 Births, Deaths and Marriages Registration Act 1995 (NSW), s. 1 Nullity of Marriage Act 1971 (UK), s. 11(c) Matrimonial Causes Act 1973 (UK) considered; Maynard v Hill 125 U.S. 190 (1888), Egan v Canada [1995] 2 SCR 513, Layland v Ontario (Consumer and Commercial Relations) and others (1993) 104 DLR (4th) 214, Miron v Trudel [1995] 2 SCR 418, Quilter v Attorney-General [1998] 1 NZLR 523 cited.

Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] HCA 15; 70 ALJR 603; 137 ALR 28 (22 May 1996)

High Court – Practice and procedure – Stay and like relief pending hearing of application for special leave to appeal – Jurisdiction to provide relief – Extraordinary or exceptional character of – Ruling on legal professional privilege – Effective loss of confidentiality if relief refused – Balance of convenience affecting lengthy trial – Relief refused.

Legal Practitioners – Client privilege – Protection of confidences – Nature of privilege as defensive of civic rights – Loss of privilege by waiver – Whether client knowingly and voluntarily disclosed substance of advice – Decision of primary judge arguably correct – No substantial prospect of special leave to appeal being granted – Interim relief refused.

Evidence – Client’s legal professional privilege – Waiver of confidentiality – Whether client had disclosed to another person the substance of the advice – Publication in company documents concerning receipt of legal advice supporting company’s position – Decision that privilege waived arguably correct – Interim relief refused.

Company law – Part B statement – Independent valuer’s report – Reference to existence of legal advice supporting the position of company – Whether reference constitutes waiver of legal professional privilege – Decision that it does arguably correct – No substantial prospect of grant of special leave to appeal to High Court – Interim relief refused.

Evidence Act 1995 (NSW), ss 118, 122(2).

Abdul-Kader, Mostafa v R [2007] NSWCCA 329 (29 November 2007)

[2007] NSWCCA 329

CRIMINAL LAW – evidence – the ‘credibility rule’ – exception to credibility rule – re-establishing credit – prior consistent statement – question of admissibility of prior consistent statement to support or establish credit – trial judge held prior consistent statement would not help in determining whether evidence arrived at by reconstruction or suggestion – whether trial judge erred in refusing tender of statement

CRIMINAL LAW – sentencing – parity – appellant’s criminality of a lower objective seriousness – co-accused three years younger and of limited intellect – whether trial judge erred in imposing sentence

CRIMINAL LAW – sentencing – date of commencement of sentence – pre-sentence custody – custody not exclusively referable to sentence being passed – appellant serving sentence for other offences – whether trial judge failed to give credit for time in custody

Evidence Act 1995 ss 66, 102, 108(3)(b), 192

Mantra Group Pty Ltd v Tailly Pty Ltd [2010] FCA 66 (10 February 2010)

1. Mr Crowe SC for the applicants has objected to the admission into evidence of para 6 of the affidavit of Mr Dennis Leslie Porter affirmed 23 November 2009.
2. In that paragraph, Mr Porter states:

In my opinion, the name, Circle On Cavill has since become common knowledge recognised as a location. As a central location within Surfers Paradise the area is regarded as a meeting place, a destination, to go to, or to go from. And therefore “Circle On Cavill” provides a pinpoint descriptor location address.

3. Mr Crowe SC submits that Mr Porter is not qualified to express this opinion and he is essentially trying to give evidence of a fact in breach of s 76(1) of the Evidence Act 1995 (Cth).
4. Ms O’Gorman for the respondents has responded that Mr Porter is qualified to express the opinion. She points to the paragraphs of his two affidavits where he sets out his experience as a long-term resident of the Gold Coast and his long experience as an advertising and marketing consultant, particularly his experience advertising and marketing accommodation services on the Gold Coast.
5. Before a person’s opinion can be admitted as evidence under s 79 of the Evidence Act 1995 (Cth), it must meet a number of criteria. Those were expressed by Lindgren J in Harrington-Smith and Others on behalf of the Wongatha People v State of Western Australia and Others (No 2) [2003] FCA 893; (2003) 130 FCR 424 at [20], as follows (excluding references):
* that the opinion is relevant (including that the field of knowledge is one in which expert opinion can properly be called);
* that the person put forward as an expert possesses specialised knowledge in that field;
* that the specialised knowledge is based on the person’s training, study or experience; and
* that the particular opinion tendered is based on the specialised knowledge.
6. In the next paragraph, Lindgren J added that the expert’s evidence, whether in oral or written form, must:
* clearly expose the reasoning leading to the opinion arrived at; and
* distinguish between the assumed facts on which an opinion is based and the opinion itself.
7. In my view, the opinion expressed in para 6 of Mr Porter’s affidavit fails these tests in a number of respects, each of which provides a basis for rejecting its tender. Some of these overlap.
8. First, Mr Porter does not clearly express in para 6 the reasoning process used by him to arrive at the opinion. He merely states: “In my opinion …” and then states his conclusion. This does not provide me, as the trier of fact, with “criteria enabling evaluation of the validity of [his] conclusion”: see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59] per Heydon JA.
9. Secondly, even if I were to accept that Mr Porter has specialised knowledge, or experience in advertising and marketing accommodation services on the Gold Coast, because of the bald way in which his opinion has been expressed, I cannot say whether it is based on that specialised knowledge and experience.
10. Finally, the opinion Mr Porter has expressed relates to what the “common knowledge” is. However, he does not state whose common knowledge he is referring to. It could be the common knowledge of the residents of the Gold Coast, or perhaps South East Queensland. If it is, I do not consider that Mr Porter could purport to possess specialised knowledge of that subject matter. In particular, I do not consider long-term residency of an area the size of the Gold Coast or South East Queensland equips a person to express an opinion about the common knowledge of the population of that area. Even if Mr Porter was only purporting to express an opinion about the common knowledge of persons involved in the advertising and marketing industries on the Gold Coast, I do not consider his experience, extensive as it may be, equips him to express such an opinion.
11. For these reasons, I reject the tender of para 6 of Mr Porter’s affidavit affirmed 23 November 2009.

Evidence Act 1995 (Cth), ss 76(1), 79

Whittaker v Child Support Registrar [2010] FCA 43 (5 February 2010)

ADMINISTRATIVE LAW – departure prohibition order made under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) by Child Support Registrar – whether order valid – whether Registrar obliged to afford procedural fairness by giving an opportunity to be heard where Registrar had received a “tip off” from an anonymous telephone caller that the person was about to leave Australia – whether failure by Registrar to notify person that order had been made, as Registrar was required to do by s 72G of Act, was a failure to accord procedural fairness that rendered order invalid – whether Registrar failed to give such notice. Held: In each case, No.

CONSTITUTIONAL LAW – whether Pt VA of Child Support (Registration and Collection) Act 1988 (Cth) invalid as conferring the judicial power of the Commonwealth on Child Support Registrar – Child Support Registrar was empowered to make departure prohibition order prohibiting a person from departing from Australia for a foreign country if, inter alia, the person had a child support liability and had not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged – consideration of factors indicative of “judicial power”. Held: Pt VA does not confer judicial power on Child Support Registrar.

EVIDENCE – s 32 of Evidence Act 1995 (Cth) – deponents of affidavits refreshing their memories from contemporaneous notes for the purposes of making their affidavits, and attaching a copy of the notes to the affidavits – whether affidavits rendered inadmissible by s 32 because the court had not given leave for the witness to use the notes to try to revive his or her memory – whether s 32 applied to affidavits made out of court and in contemplation of the hearing. Held: No – s 32 applies only to evidence given in court.

TORT – False Imprisonment – person intending to catch international flight detained in departure hall at airport because of departure prohibition order made in respect of him by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) – intending passenger could have abandoned attempt to depart and retreated out of airport’s departure hall – whether avenue of egress reasonable – statutory defence available to officials who had prevented intending passenger from catching international flight because departure prohibition order made by Child Support Registrar was in force in respect of him – s 72U of Act permitted authorised officers in certain circumstances to prevent person’s departure from Australia. Held: “imprisonment” not established because reasonable egress available and, in any event, statutory defence established.

TORT – interference with contractual relations by unlawful means – person intending to depart Australia by plane to perform contract overseas – departure prohibition order made by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) was in force in respect of him – Customs officers questioned him – Australian Federal Police officers told him he could not fly – mental element of the tort in circumstances in which the respondents are public officials – whether state of mind required for this tort is different from that required for the tort of misfeasance in pubic office. Held: No.

Evidence Act 1995 (Cth) Act ss 32, 34, 52

Hughes v Janrule Pty Ltd t/as Gregory’s Ford [2010] ACTSC 5 (5 February 2010)

[2010] ACTSC 5 (5 February 2010)

NEGLIGENCE – personal injury – claim against employer – safety of place and system of work – plaintiff losing footing and falling on metal staircase – whether surface of step slippery – whether maintenance adequate – whether breach of duty of care

DAMAGES – personal injury – fall on metal staircase – injury to back – psychological sequelae – impairment of earning capacity – no issue of principle

PRACTICE and PROCEDURE – application by plaintiff to reopen case and call further evidence after judgment reserved – evidence as to what took place on view attended by judge during course of hearing – such evidence should not be permitted to be called – would not affect outcome in any event – application refused

Evidence Act 1995 ss 53, 54

Goulding and Principal Member of the Veterans’ Review Board and Repatriation Commission (Party Joined) [2008] AATA 263 (2 April 2008)

VETERANS’ AFFAIRS – Veterans’ Entitlements – application for disability pension dismissed by Veterans’ Review Board – s 155AA notice sent to applicant – whether notice given to the applicant – notice not sent to applicant’s residential address – notice sent to an alternate address which applicant requested correspondence to be sent – notice not given to applicant – decision set aside

Evidence Act 1995 (Cth) ss 4, 5, 163

R v BURNS & ORS (No 6) No. SCCRM-99-85 [2000] SASC 10 (28 January 2000)

Criminal law (Cth) – voir dire hearing – evidence of certain conversations of the accused, procured by means of listening devices – difficulty in discerning some of the detail of the spoken content of certain of the tape recordings – settled written transcripts of all of the admissible material of the relevant recorded conversations prepared by prosecution – consideration of evidentiary status, if any, of the transcripts in question – whether transcripts in question should be made available to the jury other than whilst the related tapes are actually being played over in court in the course of evidence – whether transcripts ought to be taken by the jury into the jury room whilst deliberating – whether permitting the jury to take the transcript into the jury room whilst deliberating would result in a situation in which the written transcripts may influence the deliberations of the jury in a way which was out of all proportion to their real weight – whether in practical terms, this could produce a situation in which the transcript might be regarded as in some way unduly strengthening what would otherwise be the purely oral/audio material and the oral evidence – consideration of proper exercise of judicial discretion in circumstances. IN GENERAL Criminal law (Cth) – voir dire hearing – evidence of certain conversations of the accused, procured by means of listening devices – difficulty in discerning some of the detail of the spoken content of certain of the tape recordings – settled written transcripts of all of the admissible material of the relevant recorded conversations prepared by prosecution – consideration of evidentiary status, if any, of the transcripts in question.

“Status of transcripts

13 In considering the issue advanced by the accused it is necessary, at the outset, to direct attention to the evidentiary status, if any, of the transcripts here in question.

14 As appears from the judgment in Eastman v The Queen (1997) 76 FCR 9, transcripts of this type will attract the provisions of s 48 (1) (c) of the Evidence Act 1995 (Cth) in certain cases. However, this provision is not applicable in the instant case, by reason of ss 4 and  5  of that statute. It operates only in relation to proceedings in a federal court or in an ACT court; and also certain specified types of proceedings in other Australian Courts. This is not a proceeding of that class.

15 The status of the transcripts therefore falls to be determined by reference to the principles of the common law.”

SZHFW v Minister for Immigration & Anor [2006] FMCA 86 (10 February 2006)

[2006] FMCA 86

MIGRATION – RRT decision – failure to respond to invitation for additional information – validity of invitation – date when invitation received – effect of invalidity of Reg.5.03 – jurisdictional error in failure to appoint a hearing – four years unexplained delay in seeking judicial review – relief refused.

Evidence Act 1995 (Cth)  ss.5 , 160(1)


[2005] WADC 203
WA District Court

Tort – Causation – Electric shock – Pre­existing vulnerabilty to psychiatric illness – Competing causes of psychiatric injury – Onus of proving causation – Loss of earning capacity – No deduction for contingencies arising from pre­existing vulnerability – Judicial notice – Industrial award

Evidence Act 1995 (Cth), s 5, s 143(1), s 143(2)

Russell v Commissioner of Taxation of the Commonwealth of Australia [2009] FCA 1224 (30 October 2009)

[2009] FCA 1224

TAXATION – Income Tax and Penalty Assessments issued by Commissioner of Taxation – Allegedly false or misleading statements as to personal services by the appellant as to his income resulting in a tax shortfall – Whether the income received by a New Zealand incorporated company from an Australian company was mainly a reward for the appellant’s personal efforts or skills – Whether the aforementioned income constituted the appellant’s “personal services income” – Whether the New Zealand company was a “personal services entity” – Whether 80% of the appellant’s personal services income was from the same entity – Whether the appellant met the results test under s 87-18 Income Tax Assessment Act 1997 (Cth) – Whether an overseas company can be a personal services entity in relation to the assessment of personal services income of an individual – Whether the attribution of income paid to the New Zealand company by the Australian company as the appellant’s personal services income is contrary to the Australia-New Zealand Double Taxation Agreement – Whether the penalty assessment for intentional disregard of a taxation law was assessed correctly – Whether the Commissioner’s related penalty remission decision was attended with error such that the Court should reach its own conclusion on that subject – Held payments from Australian company to New Zealand company constituted part of the appellant’s “personal services income” – Held payments were an additional commission reward for services or skills provided to Australian company – Held New Zealand company was a “personal services entity” – Held appellant’s “personal services income” was not income from conducting a “personal services business” – Held New Zealand company can be a “personal services entity” in respect of Part 2-42 of the Income Tax Assessment Act 1997 (Cth) – Held NZ Double Taxation Agreement subjects the appellant to taxation in Australia in respect of the appellant’s “personal services income” pursuant to Part 2-42 of the Income Tax Assessment Act 1997 (Cth) – Held appeal allowed – Question as to whether possible by court order to increase the amount of an assessment on an appeal from an objection decision – Reserved for consideration after receipt of supplementary submissions

TAXATION – Goods and Services Tax – Whether the assessment of the GST net amount and related penalty assessment was excessive – Whether any of the items the subject of the claimed input tax credits were acquired by the partnership in carrying on an “enterprise” – Characterisation of the “enterprise” of the partnership – Whether the items the subject of the claimed input tax credits were of a private or domestic nature – Whether the statutory pre-conditions to the assessment of the base penalty were satisfied – Whether the Commissioner of Taxation properly exercised his discretion not to remit the base penalty – Whether the Commissioner of Taxation’s opinion that there was an avoidance of tax due to fraud or evasion was an error of law – Held GST assessment excessive – Held entitlement to claim tax credits in respect of forestry enterprise was an entitlement – Held no entitlement to claim tax credits in respect of accountancy practice and naturist retreat – Held Commissioner of Taxation’s remission decision was a error of law – Held appeal allowed

Evidence Act 1995 (Cth) ss 69(2)(b), 91(1)

Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Limited (ACN 008 204 635) [2009] FCA 1220 (30 October 2009)

[2009] FCA 1220

CONTRACT – long term exclusive distributorship between Australian supplier and Hong Kong distributor – parties’ written agreement not adequately expressing the true character of all aspects of their relationship – contract terminated by supplier – allegation of repudiation by distributor.

CONTRACT – claim that contract was partially oral and partially written – principles to be applied in deciding this question – contract found to be written only.

CONTRACT – construction of terms dealing with extension and termination of the agreement – negotiations over an extended period – principles of construction of such a contract – extent to which evidence of pre-contractual negotiations admissible.

CONTRACT – exclusive distributorship – allegations of parallel importation into Hong Kong – both supplier and distributor subject to a “best efforts” clause to prevent the sale of the supplier’s products in Hong Kong by persons other than the distributor – construction of “best efforts” clauses and the “standard of endeavour” required – the parties’ obligations found to be reciprocal and interdependent – supplier found in breach of the clause by not taking all reasonable steps to prevent its product being sold into Hong Kong – distributor also in breach for failing to notify supplier of the parallel importation – failure by distributor to mitigate loss.

CONTRACT – alleged refusal to supply in accordance with the agreement – offer of supply unreasonably rejected by distributor – failure to mitigate – nominal damages.

INTELLECTUAL PROPERTY – distributor selling to Chinese reading market using Chinese character trade mark and Chinese language product indications – claims by supplier to the trade marks under s 87 of the Trade Practices Act 1974 (Cth) on account of alleged misleading or deceptive conduct by Distributor – claim by distributor to copyright in Chinese character product indications and get up.

COPYRIGHT – Chinese language product indications found to be original literary works – claim they were or were represented to be direct translations of English language product indications rejected – distributor not trustee of copyright works for supplier.

COPYRIGHT – breach of copyright by supplier alleged arising out of parallel importation – alleged unauthorised reproductions by supplier – whether reproduction authorised – additional statutory conversion claim under s 116 of the Copyright Act 1968 rejected.

PASSING OFF – sale and resale of product bearing distributor’s trade mark and copyright work – alleged misrepresentation calculated to deceive customers and end users – claim rejected – sales made in Australia – no evidence that distributor or Chinese language marks had any reputation at all in Australia.

BREACH OF CONFIDENCE – after termination distributor provided third party manufacturer with supplier’s production formula and manufacturing formula – similar product manufactured and sold using production formula – claim for breach of confidence – account of profits sought – awarded for a limited period – claim against Director of distributor for profits rejected.

Evidence Act 1995 (Cth) ss 79, 174

Bianca Shandell SANTO v R [2009] NSWCCA 269 (5 November 2009)

[2009] NSWCCA 269

appeal against conviction
robbery in company
whether miscarriage of justice arising from Crown’s refusal to call co-offender as a witness
co-offender pleaded guilty to lesser offence
called as witness in defence case
whether evidence admissible of offence to which he pleaded guilty
whether jury should have been discharged after appellant revealed that she had been in custody otherwise than in relation to offence charged

Miller v Galderisi [2009] NSWCA 353 (10 November 2009)

[2009] NSWCA 353

DAMAGES – motor vehicle accident – damages for commercial domestic assistance – gratuitous assistance currently provided – only slight chance of plaintiff needing commercial assistance as a result of injuries suffered in the accident – whether damages for commercial assistance warranted – Motor Accidents Compensation Act 1999, s128
DAMAGES – future economic loss – loss of earning capacity – speculative possibility only of plaintiff having earned significant income but for the accident – whether damages for loss of capacity warranted

Alcon Inc v Bausch & Lomb (Australia) Pty Ltd [2009] FCA 1299 (12 November 2009)

[2009] FCA 1299

TRADE MARKS – whether use by the respondent of the letters “BSS” on the label of one of the containers in which it supplied its AQSIA™ brand balanced salt solution was trade mark use and thus infringed the applicant’s registered trade mark for “BSS” in Class 5 for ophthalmic irrigating solution – whether the respondent established that it used the letters “BSS” in that way in good faith in order to indicate the kind, quality, intended purpose or some other characteristic of its AQSIA™ brand balanced salt solution and should therefore be held not to have infringed the applicant’s “BSS” trade mark by reason of s 122(1)(b)(i) of the Trade Marks Act 1955 (Cth) – whether the letters “BSS” as at March 1988 or at any time thereafter were used as a descriptive acronym for “balanced salt solution” in the relevant trade in Australia for sterile ophthalmic irrigating solutions – whether the respondent established that, as at the date of its Cross-Claim, the letters “BSS” were not distinctive of the applicant’s “BSS” balanced salt solution product – whether the respondent established the pleaded grounds for cancelling the applicant’s “BSS” trade mark – respondent held to have infringed the applicant’s “BSS” trade mark – respondent not entitled to an order cancelling the registration of that trade mark

Evidence Act 1995 (Cth), s 55(1)

Penrose v Nominal Defendant & Anor [2009] NSWSC 1187 (12 November 2009)

TORT – motor accident – serious injuries suffered by plaintiff attached to taxi – identity of taxi disputed – contest between Nominal Defendant and purported owner of taxi – circumstantial evidence – GPS showing position of taxi at various times – evidence excluding other taxis from location of accident at time of accident – EVIDENCE – standard of proof in civil case where serious allegations made – Briginshaw v Briginshaw – approach in civil case in determining whether circumstantial evidence leads to finding of serious misconduct on part of taxi driver – CONTRIBUTORY NEGLIGENCE – plaintiff becoming attached to taxi – plaintiff remaining attached to taxi – objective test – COSTS – Bullock order – unsuccessful defendant to pay whole of plaintiff’s costs.

Elecon Australia Pty Ltd v Brevini Australia Pty Ltd [2009] FCA 1327 (17 November 2009)

[2009] FCA 1327

EVIDENCE – expert evidence about foreign law – tests to be applied.

CONTRACTS – whether termination of a contract might be attributed to a legal cause in existence at the time of termination but not relied upon – anticipatory breach – need to show that a party is wholly and finally disabled from performance on the date when performance is required.

EQUITY – breach of confidence – whether confidential information is property – whether confidential information may be protected if not property – whether an entity entitled to the benefit of an express covenant of confidence must be joined to proceedings commenced by a party to whom the confidential information was assigned.

TORT – passing off – need to plead damage as an element of the cause of action.

TRADE MARKS – consideration of prior use by a predecessor in title – prior use includes use by a person under the control of the predecessor in title.

TRADE PRACTICES – misleading and deceptive conduct – evidence of consumers and retailers as to the likelihood of deception critical if a special market is involved – accessorial liability under s 75B of the Trade Practices Act 1974 (Cth) – need to show intentional participation – failure to plead necessary mental elements.

Evidence Act 1995 (Cth) s 136

Watts v Adelaide Bank Limited [2009] FCAFC 169 (3 December 2009)

[2009] FCAFC 169

CORPORATIONS – appeal from dismissal of an application by judgment debtor pursuant to s 459G of the Corporations Act 2001 (Cth) to set aside creditor’s statutory demand – where judgment obtained by default – whether primary judge erred in determining no “genuine dispute” within the meaning of s 469H(1)(a) of the Corporations Act – whether primary judge erred in concluding there was no offsetting claim within the meaning of s 459H(1)(b) of the Corporations Act

BANKRUPTCY – appeal from dismissal of an application to set aside a bankruptcy notice – whether primary judge in error in determining it inappropriate to go behind a default judgment entered against the appellant – whether primary judge in error in concluding there was no counter-claim, set-off or cross-demand

Held: appeals dismissed

Food Channel Network Pty Ltd v Television Food Network, G.P [2009] FCA 1445 (4 December 2009)

[2009] FCA 1445

INTELLECTUAL PROPERTY – TRADE MARKS – Trade Marks Act 1995 (Cth) – test for leave to appeal under s 195(2) – whether there is sufficient doubt to warrant reconsideration of the matter and whether denial of an opportunity to appeal would involve a substantial injustice supposing the decision of the primary judge to have been wrong

EVIDENCE – whether there is sufficient doubt that the refusal of primary judge to allow an affidavit resulted in the denial of a fair trial on the issues of ownership and intention to use – test to be applied – whether the affidavit contained material evidence and whether it was erroneously rejected thereby depriving the possibility of a successful outcome

INTELLECTUAL PROPERTY – TRADE MARKS – s 44 – whether the primary judge made a proper assessment of deceptive similarity – test to be applied – two step process

Evidence Act 1995 (Cth), s 135

Euroceanica (UK) Ltd v The Ship “Gem of Safaga” [2009] FCA 1467 (9 December 2009)

[2009] FCA 1467

ADMIRALTY –– ARREST –– meaning of the expression “the owner” in s 19(b) of the Admiralty Act 1988 (Cth) –– 9 of 10 shares in arrested ship registered on Indian Register of Shipping in name of relevant person: 1 share registered in name of company of which director was managing director of relevant person –– whether 1 share held beneficially by registered shareholder or on resulting trust –– purchase initial ship in sole name of relevant person –– before completion relevant person procures amendment to purchase agreement to add nominee as additional purchaser –– evidence nominee given the one share

ADMIRALTY –– ARREST –– jurisdiction –– Admiralty Act 1988 (Cth) s 19(b) –– “the owner” in s 19(b) means sole owner, thus not permitting arrest of sister ships when relevant person consisted of more than one person –– beneficial ownership sufficient to constitute ownership under s 19(b)

ADMIRALTY –– ARREST –– challenge to jurisdiction –– Admiralty Act 1988 (Cth) s 19(b) –– plaintiff arrests ship as sister ship for general maritime claim –– relevant person owner of 9 of 10 shares in a ship registered in India –– other registered shareholder was stranger to plaintiff’s claim –– whether relevant person was the owner of the ship –– relevant person gave 1 share in ship to other shareholder for no consideration before completion –– relevant person substantial company arranged all finance for purchase and managed ship as part of its business –– other shareholder never received any payment, other than credits in relevant person’s accounts–– no explanation of, or direct evidence of reason for involvement of other shareholder –– relevant person, as sole owner, employed masters

ADMIRALTY –– ARREST –– meaning of “in control of” in s 19(a) of the Admiralty Act 1988 (Cth) –– whether relevant person was “in control of” two other ships at the time plaintiff’s general maritime claim under s 4(3)(f) arose for default in payment of hire by its subsidiary named as charterer in charterparties for those two ships –– whether side letter to charterparties providing that relevant person was ultimately responsible for true fulfilment of charterers’ obligations put it in control of or made it charterer of the two ships under s 19(a) –– relevant person controlling appointment of masters, officers of chartered ships, their commercial operation and giving voyage instructions

Held: relevant person was the owner of arrested ship; other share held on resulting trust for it, relevant person in control of two chartered ships. Arrest proved to be within jurisdiction

Words and Phrases: “the owner”, “charterer”, “in control of”

Evidence Act 1995 (Cth) s 140

CJD Equipment v A&C Constructions [2009] NSWSC 1362 (10 December 2009)

[2009] NSWSC 1362

BUILDING AND ENGINEERING CONTRACTS – construction – terms to be implied where contractual documents limited – whether implied term of fitness for purpose – performance – whether design defective – whether caused damage to constructed premises – whether subcontractors made representations to the principal – whether resultant liability of sub-contractors – remedies – damages – quantification – apportionment of damages between defendants – mitigation – whether plaintiff mitigated loss.
TORT – whether duty of care owed – whether plaintiff relevantly vulnerable – scope of duty – whether damage to building properly characterised as economic loss – causation – whether loss complained of caused by design or representations made by defendants – whether plaintiffs’ amendments to design a novus actus interveniens.

R v PJ [2009] ACTSC 165 (11 December 2009)

CRIMINAL LAW – Application for permanent stay of proceedings – two counts of attempt to carnally know a girl under 10 years of age – four counts of act of indecency on a girl under 16 years of age – two incidents between 1975 and 1977 – extreme delay – absence of timely complaint – lack of specificity as to time alleged offences occurred – fair trial not possible – application for stay granted

EVIDENCE LAW – complainant four and five years old at time of incidents – no corroborating evidence – unsworn evidence of child – complainant no longer a child – corroborating evidence not required – substantial delay – loss of relevant evidence – need for Longman warning

Evidence Act 1995 (Cth), s 13