Monthly Archives: March 2010

Pethybridge v D’Orsa [2010] VSC 90 (26 March 2010)

Vickery J
NEGLIGENCE – Motor vehicle accident – Driving negligently on public highway – Motor car towing horse float driven by Defendant on wrong side of highway – Collision with motor bike ridden by Plaintiff on correct side of highway – No contributory negligence – Personal injuries – Claim for loss of future earning capacity a speculative claim not giving rise to compensation on the claimed basis.

“181 I accept that Mr Pethybridge, between about the time of his redundancy and the time of his accident, had conversations with his partner, Belinda Harvey and his son Jamie Pethybridge, about taking up work in the future in the mining industry. I accept this as evidence of the intentions of Mr Pethybridge to pursue this type of employment pursuant to ss.64(3) and 66A Evidence Act 2008 which provide:

64(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by –

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made.

66A The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

182 Mr Pethybridge called Mr Timothy Sale (“Mr Sale”) to give evidence. Mr Sale was a fitter and turner but was younger than Mr Pethybridge, being a 41 year old man. He was well built and displayed no obvious health problems. He too worked at Empire Rubber in Bendigo but left without being offered a redundancy package. He then worked for a number of mining enterprises in remote locations in Western Australia. While working for a company called BGC he earned a gross salary of $125,000.

183 The Plaintiff also called Mr Sasha Cust (“Mr Cust”) to give evidence. Mr Cust was a 37 year old man in good health. He had two children from a second marriage aged three and a half and seven months. From December 2009 he was made the operations manager of UME based in Bendigo. He earned $120,000 per annum together with fringe benefits which included a car. In a management role, he was involved in administrative work requiring paperwork skills which the Plaintiff did not possess. He said that when he started in the mining industry the normal rate for a fitter and turner in the industry varied somewhat between $38 per hour to between $55 to $60 per hour.

184 Mr Pethybridge also said that he would have continued to work as long as he was fit to do so. He was a skilled worker and he had worked consistently throughout his life. From this it is possible to draw the inference that he could obtain work in his chosen trade if it was available locally.”

SZNOZ v Minister for Immigration and Citizenship [2010] FCA 269 (25 March 2010)

MIGRATION – judicial review of a decision to refuse the grant of a Protection visa given some 19 years ago – time for review is within 28 days of being served with the decision – whether the appellant was served – regs 35 and 173 of the Migration Regulations 1994 (Cth) – the Refugee Review Tribunal had no jurisdiction to review out of time – s 412 of the Migration Act 1958 (Cth)

Evidence Act 1995 (Cth) s 163

Zentai v Honourable Brendan O’Connor (No 2) [2010] FCA 252 (19 March 2010)

LEGAL PROFESSIONAL PRIVILEGE – within the Attorney-General’s Department – advice concerning discretionary decision to surrender for extradition – whether the Attorney-General’s delegate is entitled to Legal Professional Privilege – whether disclosure of most, but not all, of the advice is unfair or inconsistent with a claim for legal professional privilege – whether legal professional privilege is waived

Australian Securities & Investments Commission v Oswyn Indra de Silva [2010] NSWSC 200 (18 March 2010)

CONTEMPT OF COURT – SENTENCING – Defendant pleaded guilty to breach of order restraining him from attempting to leave jurisdiction pending ASIC examination – Defendant detained at airport attempting to leave – guilty plea – whether mitigating factors – whether prison sentence required.

Evidence Act 1995 (NSW) – s 128

Habib v Nationwide News Pty Ltd [2010] NSWCA 34 (16 March 2010)

EVIDENCE – admission – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether inadmissible by virtue of s 84(1) Evidence Act 1995 (NSW)
EVIDENCE – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether issue under s 84 raised as required under s 84(2) Evidence Act 1995 (NSW)
EVIDENCE – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether primary judge reversed onus of proof under s 84(1) Evidence Act 1995 (NSW)
EVIDENCE – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether respondent discharged burden of demonstrating appellant’s admissions not influenced by s 84(1) conduct
DEFAMATION – whether defence of substantial truth established
DEFAMATION – characterisation of imputation
DEFAMATION – whether imputation general charge against the character of the plaintiff
DEFAMATION – whether interview given after publication of matter complained of sufficiently proximate in time to be relied upon as evidence of substantial truth of imputation
PROCEDURE – abuse of process – whether s 56 Civil Procedure Act 2005 (NSW) obliged appellant to make a strike out application in regard to aspects of the respondent’s defence
WORDS AND PHRASES – “raised in the proceeding an issue about whether the admission or its making were so influenced” – s84(2) Evidence Act 1995 (NSW)

Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161 (12 March 2010)

DEFAMATION – preliminary discovery – UCPR 5.3 – plaintiff former constable of police – where plaintiff anticipates that she will be unfavourably portrayed in an upcoming television drama series Underbelly: The Golden Mile to be screened nationally – whether publication of defamatory matter has occurred – whether it appears to the court that the plaintiff may be entitled to make a claim for relief – whether plaintiff unable to obtain sufficient information to decide whether or not to commence proceedings – whether interlocutory injunction would be granted to restrain the broadcast in any event – EVIDENCE – admissibility – tender of transcript of evidence given by the plaintiff at Wood Royal Commission – Royal Commissions Act 1923 s 17 – privilege against self-incrimination – whether privilege waived by formulation of imputations referring to the evidence given in the Royal Commission – whether evidence relevant – whether evidence prejudicial etc – s135 Evidence Act 1995 – discretion to exclude – summons dismissed.

R v WG [2010] VSCA 34 (4 March 2010)

CRIMINAL LAW – Sexual offences – Jury question – Whether judge failing to respond adequately to jury question that, if jury believed complainant’s evidence to be plausible, that was beyond reasonable doubt – R v Cavkic, Athanasi and Clarke [No 2] [2009] VSCA 43, referred to.

CRIMINAL LAW – Evidence – Whether judge’s failure to comply strictly with s 23(1D) of Evidence Act 1958 vitiated conviction – R v BIC [2009] VSCA 155, considered; R v Brooks (1998) 44 NSWLR 121, distinguished, Evidence Act 1958, s 23(1D).

R v Darmody [2010] VSCA 41 (9 March 2010)

CRIMINAL LAW – Application for special leave to appeal from interlocutory decision pursuant to s 295 Criminal Procedure Act 2009 – Whether judge below erred in holding that the Evidence Act 2008 applied – Whether provisions of Clause 2(2) of Schedule 2 to the Evidence Act 2008 correctly applied by the judge – Whether complainant ‘not available to give evidence’ within the meaning of s 65(1) of the Evidence Act 2008 – Power to receive prior statement of an unavailable witness – Section 67(1)(4), the Evidence Act 2008 – Whether judge erred in excusing failure to give notice of intention to adduce evidence – Section 137, the Evidence Act 2008 – Whether probative value of evidence given by complainant at committal hearing was outweighed by danger of unfair prejudice to applicant – Whether judge erred in not excluding such evidence.

Midnight Seas Pty Limited v St George Bank Limited [2010] NSWSC 135 (4 March 2010)

PRACTICE AND PROCEDURE – Stay of proceedings pending prosecution of witness – Defendants 2 and 3 applied for stay – Police prosecution of Sam Cassaniti, not a party to these proceedings, pending on three charges of fraudulently misappropriating cheques – Cheques were paid into D2 company bank account of accounting practice conducted by D3 and plaintiff sued for amounts of cheques claiming that Sam Cassaniti was instructed to pay the cheques to Australian Taxation Office – D2 and D3 unable to obtain information from Sam Cassaniti while prosecution pending – Consideration of principles relating to protection of right to silence – HELD D2 and D3 not entitled to protection of another person’s right to silence and on consideration of difficulties of either side, D2 and D3 faced ordinary vicissitudes of litigation. Stay refused.

Evidence Act s 128

Li, Wing Cheong v R [2010] NSWCCA 40 (8 March 2010)

CRIMINAL LAW – Conviction appeal – Money Laundering – EVIDENCE – whether telephone conversations between persons not charged with offence hearsay – whether evidence should have been excluded under s 137 of Evidence Act – SUMMING UP – whether directions as to use to be made of telephone calls adequate – PRACTICE AND PROCEDURE – whether Crown’s address to jury prejudicial – SUMMING UP – whether Judge erred in directions given concerning Crown’s address – whether directions on character adequate – PRACTICE AND PROCEDURE – whether misconduct bu jury caused miscarriage of justice – juror playing word game in court room

Evidence Act 1995 – ss 59(1), 135, 137

In the matter of OPEL Networks Pty Ltd (in liq) [2010] NSWSC 142 (4 March 2010)

public interest immunity
whether documents would disclose Cabinet deliberations
whether court should inspect documents
parliamentary privilege
whether draft Question Time briefs are protected
meaning of “impeached”
client legal privilege
method of proving privilege

Evidence Act 1995 (NSW), ss 117, 118, 130

Geilston v Tricom Equities [2010] NSWSC 119 (22 February 2010)

CONTRACTS – construction of contract – agreement to lend shares – plaintiff sues to recover shares – what was lending agreement and terms of agreement – whether variation of agreement to delay replacement – what was plaintiff’s entitlement to shares – where company restructured – where shares consolidated – whether specific performance should be granted.

CGL v DPP [2010] VSCA 26 (23 February 2010)

CRIMINAL LAW – Appeal – Interlocutory appeal – Trial – Severance – Sexual offences – Four complainants – Trial judge ordered separate trial of counts relating to one complainant – Whether separate trials necessary of counts relating to other complainants – Coincidence evidence – Tendency evidence – No sufficient similarity – No cross-admissibility – Appeal allowed – Separate trials ordered – Crimes Act 1958 (Vic), ss 371, 372, Evidence Act 2008 (Vic) ss 94, 97, 98, 101, Criminal Procedure Act 2009 (Vic) ss 295(2), 295(3)(b), 300(2)(b)(i)

EVIDENCE – Admissibility – Criminal proceedings – Coincidence and tendency evidence – Whether sufficient degree of similarity – Whether ‘significant probative value’ – Evidence inadmissible – Evidence Act 2008 (Vic) ss 94, 97, 98, 101.

Workers Compensation (Dust Diseases) Board Of NSW v Smith, Munro And Seymour [2010] NSWCA 19 (23 February 2010)

ADMINISTRATIVE LAW – procedural fairness – adequacy of reasons – factual finding of causation from asbestos in combination with tobacco smoke – whether necessary to attempt to set out arithmetical foundation of finding – whether decision on question of law
APPEAL – civil – statutory appeal – appeal from District Court – appeal against award of the Court in point of law – distinction between point of law, admission of evidence and findings of fact
EVIDENCE – admissibility and relevance – opinion evidence – basis rule – whether basis for opinion identified – whether explicit ruling on objection to evidence necessary
EVIDENCE – weight and sufficiency of evidence – uncontradicted evidence – affidavit evidence of deceased claimants – similarities between affidavits – whether unreliability resulted in unfair prejudice to defendant – Evidence Act 1995 (NSW), s 135
STATUTORY INTERPRETATION – construction of composite provision – dual limbs – second limb grammatically ambiguous – nature of causal connection envisaged by words “reasonably attributable to” – whether words introduce normative component to determination of statutory entitlement – Workers’ Compensation (Dust Diseases) Act 1942 (NSW), s 8(1)(b)
TORTS – negligence – causation – dust diseases – asbestos – tobacco – exposure to both carcinogens – development of lung cancer – whether exposure to asbestos constituted material contribution to carcinoma
WORDS & PHRASES – “asbestosis” – “award of the court in point of law” – “dust disease” – “Helsinki criteria” – “lung cancer” – “material contribution” – “reasonably attributable” – “relative risk”

Evidence Act 1995 (NSW), ss 63, 79, 135

Markisic v Commonwealth of Australia [2010] NSWSC 24 (25 February 2010)

PROCEDURE – judgments and orders – amending, varying and setting aside – whether given or entered irregularly, illegally or against good faith. PROCEDURE – pleadings – verification of pleadings – who can verify. PROCEDURE – amendment of pleadings – late application for amendment – no evidentiary basis for proposed amended pleading. PROCEDURE – courts and judges – disqualification for apprehended bias. PROCEDURE – abuse of process – limited resources of courts – Plaintiffs’ desire to pursue futile claims – proceedings stayed. COSTS – costs thrown away by failure of Plaintiffs to comply with Court orders – summary assessment of costs by Court – direction that costs to be paid forthwith or proceedings stayed.