Monthly Archives: May 2010

Banksia Mortgages Limited v Croker and Ors [2010] NSWSC 535 (27 May 2010)

PROCEDURE – legal professional privilege – advice given by in-house solicitor – both legal advice, commercial advice and comment – independence of solicitor – legal advice privileged, commercial advice and comment not privileged – communication between defendants and solicitor used as basis for affidavit sworn by solicitor to defend plaintiff’s claim for summary judgment – waiver in defendants’ communication thereby established

Jinhong Design & Constructions Pty Limited v Xu and Anor [2010] NSWSC 523 (25 May 2010)

claim for damages for breach of contract, deceit and misleading and deceptive conduct under the Fair Trading Act 1987
claim by builder against alleged guarantors of building contract
denial that guarantees provided
held that guarantees provided
whether guarantors entitled to deny or reduce claim upon basis available to principal debtor
principal debtor a company in liquidation and not party to proceedings
Plaintiff entitled to compensatory damages
no basis for denying or reducing award of compensatory damages
claim for exemplary damages
whether conduct of Defendants demonstrated contumelious disregard for rights of Plaintiff
exemplary damages awarded

100 The Plaintiff bears the onus of proof, on the balance of probabilities, in civil proceedings: s.140(1) Evidence Act 1995 . The nature of the cause of action in deceit is to be taken into account in deciding whether the Court is satisfied that the Plaintiff has proved its case: s.140(2) Evidence Act 1995. Accordingly, the standard of proof to be applied is the civil standard, proof on the balance of probabilities, being qualified having regard to the gravity of the questions to be determined. The test has been said to be whether the issue has been proved to the reasonable satisfaction of a Court, such satisfaction not being produced by inexact proofs, indefinite testimony or indirect inferences: Briginshaw v Briginshaw at 362; Helton v Allen [1940] HCA 20; 63 CLR 691 at 701; Rejfek v McElroy [1965] HCA 46; 112 CLR 517 at 521. The Court should be comfortably satisfied, on the balance of probabilities, before such a finding is made: Bannister v Walton (1993) 30 NSWLR 699 at 711-712.

R v Peter John Parkes [2010] ACTSC 44 (21 May 2010)

CRIMINAL LAW – trial by judge alone – offence of trafficking in a controlled drug other than cannabis, namely heroin – whether accused sold heroin or gave it as a gift – sale not proved beyond reasonable doubt – accused found not guilty.

EVIDENCE – prior inconsistent statements – assessment of explanation for making prior inconsistent statement – consideration of what use can be made of prior inconsistent statement – operation of credibility rule and hearsay rule – prior inconsistent statement admitted to prove the truth of the facts asserted in the statement.

CRIMINAL LAW – circumstantial case – judge asked to draw particular inferences from evidence – whether evidence supports those inferences – requirement that no inference should be drawn from direct evidence unless it is the only rational inference available.

CRIMINAL LAW – prosecution request that if verdict of acquittal to be entered, the Court should instead direct the accused to be indicted on a charge of possession of heroin – operation of s 296 Crimes Act 1900 (ACT) – s 296 not applicable where accused to be acquitted – possession charge no longer indictable.

Evidence Act 1995 (Cth), ss 38, 59, 60, 101A(b), 102, 103, 192

R v Armstrong [2010] NSWSC 483 (21 May 2010)

Criminal law – trial – murder – objection to evidence being led of a conversation between the accused and police in which admissions are alleged to have been made – no recording made of conversation – whether “reasonable excuse” established by Crown pursuant to s 281 of the Criminal Procedure Act 1986 for not recording conversation – whether accused “refused” to have questioning electronically recorded – consideration of ss 85, 90 and 138 of the Evidence Act 1995

E. & J. Gallo Winery v Lion Nathan Australia Pty Limited [2010] HCA 15 (19 May 2010)

1 FRENCH CJ, GUMMOW, CRENNAN AND BELL JJ. This matter concerns an application to remove, from the Register of Trade Marks (“the Register”), a trade mark in respect of which the appellant, E. & J. Gallo Winery (“Gallo”), is the registered owner.
2 In the Federal Court of Australia, Gallo claimed that the respondent, Lion Nathan Australia Pty Limited (“Lion Nathan”), had infringed Gallo’s Australian trade mark registration no 787765 for the trade mark “BAREFOOT”, registered since 9 March 1999 under the provisions of the Trade Marks Act 1995 (Cth) (“the Trade Marks Act”) in class 33 in respect of “Wines being goods in class 33″ (“the registered trade mark”). Gallo was unsuccessful in this infringement claim before the primary judge (Flick J)[1] but successful on appeal to the Full Court of the Federal Court of Australia (Moore, Edmonds and Gilmour JJ) (“the Full Court”)[2].

Sagacious Legal Pty Ltd v Westfarmers General Insurance Ltd (No 4) [2010] FCA 482 (18 May 2010)

INSURANCE – MOTOR VEHICLE INSURANCE – insured’s duty of disclosure – misrepresentation by insured – duty of disclosure under s 21 of the Insurance Contracts Act 1984 (Cth) – proposal for policy of insurance – proposed form contained question about all cancellations of license and a limited question concerning convictions and offences in prior 3 years – whether limitation applied to specific question in proposal form as to any cancellations of licence – alleged ambiguity – non disclosure of cancellation of driver’s licence more than 3 years earlier – whether failure by insured to comply with duty of disclosure or misrepresentation – whether ambiguity or waiver by insurer of further compliance by insured

INSURANCE – exclusions in policy of insurance – insurance claim for indemnity value of car arising from motor vehicle accident – exclusion of liability where the driver is “under the influence of intoxicating liquor” – meaning of “under the influence of intoxicating liquor” – question of fact and degree based on the evidence – exclusion of liability where driver had a blood alcohol level in excess of the legal limit in the period up to 2 hours after the occurrence of the event – whether s 37(5) of Road Transport (Safety and Management) Act 1999 (NSW) rendered exclusion void

EVIDENCE – admissibility – s 37(2) of the Road Transport (Safety and Management) Act 1999 (NSW) made result of blood analysis under Div 4 inadmissible as evidence for the purposes of any contract of insurance – sample of blood received by analyst in container with broken seal – whether result of analysis of blood inadmissible for all purposes, or capable of being evidence that the driver’s blood contained a particular level of alcohol – effect on person of level of alcohol in blood not self-evident from result of analysis – Held: result was evidence only of the blood alcohol level not of how level of alcohol affected particular driver – results of analysis not made inadmissible by s 37

EVIDENCE – admissibility – discretion to reject blood analysis results under s 135 of the Evidence Act 1995 (Cth) – whether probative value of analysis substantially outweighed by the danger that it was misleading or unfairly prejudicial – possibility of tampering with sample with seal broken when received by analyst not excluded – requirement for a seal precaution for criminal proceedings under Road Transport (Safety and Management) Act 1999 (NSW) for the purpose of protecting accused – certificate relevant in civil proceeding as evidence of the result of analysis of the driver’s blood – concentration of alcohol in driver’s blood sample could only be proved by analysis

PRECEDENT – ratio decidendi and obiter dicta – ratio decidendi is general rule of law propounded as the reason for the decision – remarks not necessary to the decision do not form part of its ratio and are obiter dicta

Words and Phrases: under the influence of intoxicating liquor

Held: insured breached duty of disclosure and made misrepresentation by non-disclosure of previous licence cancellation – insurer entitled to rely on both exclusions

Evidence Act 1995 (Cth) ss 56(1), 135, 140

Alexander v Australian Community Pharmacy Authority (No 2) [2010] FCA 467 (14 May 2010)

EVIDENCE – claim for privilege – documentary evidence of what passed between parties during settlement negotiations with respect to costs – proscription pursuant to s 131(1) of the Evidence Act 1995 (Cth) (“the Act”) does not apply – public interest exceptions under s 131(2) of the Act may apply – Court may have regard to document for purpose of determining appropriate costs orders

Evidence Act 1995 (Cth) ss 55, 56, 131

THD v The Queen [2010] VSCA 115 (10 May 2010)

EVIDENCE – Admissibility – Criminal proceedings – Identification evidence – Photo board – Whether unfair prejudice to accused – Whether construction of photo board singled out accused – Failure to hold identification parade – Instructions given to identifying witness – R v Fisher [2001] NSWCCA 380, Knight v Brown [2004] ACTSC 35; (2004) 183 FLR 135, R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 considered – Leave to appeal granted – Appeal dismissed – Evidence Act 2008 (Vic) ss 135, 137.

CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of evidence – Nature of appeal –Whether appellate court should decide for itself whether evidence admissible –Evidence Act 2008 (Vic) ss 135, 137.

In the matter of Trio Capital Ltd (admins apptd) [2010] NSWSC 454 (13 May 2010)

application to set aside Order for Production
Order for Production addressed to ASIC requiring disclosure of documents provided to it by Hong Kong Securities and Futures Commission in connection with enquires made on ASIC’s behalf in Hong Kong in relation to certain fund management schemes and individuals
whether secrecy provisions in s 127 of Corporations Act 2001 prevented disclosure under Order for Production
whether public interest immunity privilege available to restrain production
application dismissed
production to court under Order for Production is not prevented by s 127
public interest immunity does not apply to prevent disclosure

59 Mr Parker, in response, noted that s 130 of the Evidence Act 1995 (NSW), which permits the exclusion of evidence relating to matters of state where the public interest in preserving its secrecy or confidentiality outweighs the public interest in its admission, sets out various circumstances in which information is taken to relate to matters of state and that those matters are all to be tested having regard to Australian governmental interests. (Mr Parker conceded the possibility, far-fetched though he suggested it was, that the production by Australian regulators of documents provided to those Australian regulators by overseas regulators might give rise to such a privilege if such disclosure would damage Australian governmental interests but submitted that the mere fact that a document related to events overseas or activities in Hong Kong was not of itself a matter of state.

64 Not only am I not satisfied that it has been shown that documents the subject of the Order for Production are documents in respect of which public interest immunity is likely to attach, this is a case where neither ASIC nor the foreign regulatory body which produced those documents to ASIC raises any objection to production of the documents (thus seemingly forestalling any argument based on the perceived hindrance to future inter-regulatory cooperation between those regulatory bodies). The Multilateral Memorandum of Understanding itself contemplates that (subject to compliance with the contemplated procedure, which I am informed by Mr Halley was duly undertaken in this case) information produced to the SFC under the secrecy provisions of the applicable Hong Kong legislation may nevertheless ultimately be disclosed or publicly released in some fashion.

Gibbons v Commonwealth of Australia [2010] FCA 462 (5 May 2010)

PRACTICE AND PROCEDURE – Application for extension of time within which to appeal from the Federal Magistrates Court – Where application for extension of time filed within the time allowed to appeal – Considerations relevant to exercise of discretion to extend time – Discretion exercised to refuse application in circumstances where proposed grounds of appeal not reasonably arguable

Evidence Act 1995 (Cth) s 138

Brightstar Logistics Pty Limited v Australian Securities and Investments Commission [2010] FCA 245 (4 May 2010)

3 When the hearing resumed today, Brightstar tendered a report by Ms Jennifer Exner, a partner in the forensic practice of Deloitte Touche Tohmatsu. The report was tendered as evidence of Ms Exner’s opinion as to matters to which I shall refer directly. Brightstar also referred to a number of documents that were in evidence before the Tribunal.
4 Counsel for the Commission objected to Ms Exner’s report. The Commission accepted that Ms Exner had specialised knowledge based on her training, study and experience as a member of the Institute of Chartered Accountants in Australia and a Bachelor of Economics from Macquarie University. Her experience includes the management and delivery of a range of investigation and evaluation assignments across Australia. However, the Commission contended that the report did not disclose how the opinions expressed in the report were based on Ms Exner’s specialised knowledge. The Commission contended that Ms Exner’s report did not disclose her reasoning process with the requisite particularity. Unless it is demonstrated that the opinion evidence of a witness is based on the specialised knowledge of the witness, s 79 of the Evidence Act 1995 (Cth) does not constitute an exception to s 76, which provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion is expressed.

Rees v Regina [2010] NSWCCA 84 (7 May 2010)

CRIMINAL LAW – armed robbery with offensive weapon – circumstantial evidence – Shepherd direction – Shepherd direction not required
CRIMINAL LAW – armed robbery with offensive weapon – conviction appeal – miscarriage of justice – criticism by trial judge to the jury of counsel’s submission – no miscarriage
CRIMINAL LAW – armed robbery with offensive weapon – procedural fairness – alleged failure to give counsel an opportunity to be heard on trial judge’s criticism of submission – trial counsel’s submission to the jury states wrong principle – counsel given opportunity to address – no denial of procedural fairness
CRIMINAL LAW – armed robbery with offensive weapon – conviction appeal – procedural fairness – alleged failure to give counsel opportunity to address trial judge when trial judge had directed the jury that counsel’s submission was wrong
CRIMINAL LAW – armed robbery with offensive weapon – conviction appeal – apprehended bias – apprehended bias not made out
CRIMINAL LAW – armed robbery with offensive weapon – evidence – alleged wrongful admission of evidence – evidence properly admitted

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 (10 May 2010)

MIGRATION – judicial review – jurisdictional error – protection visa – applicant claimed to be suffering from procrastination and other psychological impairments when he gave evidence at a hearing before the Refugee Review Tribunal – the tribunal rejected this evidence – whether the tribunal fell into jurisdictional error by not complying with s 425 of the Migration Act 1958 (Cth)

EVIDENCE – hearsay – factual findings of an administrative tribunal contained within its reasons – admissible for non-hearsay purpose in judicial proceedings to prove the reasons of the tribunal – subsequently admissible to prove the truth of the findings via s 60(1) Evidence Act 1995 (Cth)

Evidence Act 1995 (Cth) ss 59, 60, 136

Glad Cleaning Service Pty Ltd & Anor v Vukelic [2010] NSWSC 422 (7 May 2010)

general principles
unjust enrichment
second plaintiff paid workers compensation settlement to defendant without deducting monies owed to the Commonwealth
Centrelink had issued a Recovery Notice to the second plaintiff requesting the payment of $63,603.12 before the payment to the defendant
the second plaintiff paid this sum to Centrelink after payment to defendant
now seeks restitution
mistake of fact or law made by the second plaintiff’s claims officer
miscalculation of sum to be paid to the defendant
no defence to claim
judgment entered for the plaintiffs in the amount of $63,603.12 plus interest accrued up to judgment

Evidence Act 1995 (NSW) s 36

Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411 (6 May 2010)

Evidence – statutory exceptions to hearsay rule in civil proceedings – whether person who made representation not available to give evidence about asserted fact – whether it would cause undue expense or undue delay or would not be reasonably practicable to call person who made the representation to give evidence – general statutory discretion to exclude evidence: whether probative value of evidence substantially outweighed by danger that it might be unfairly prejudicial to a party.

Pavicic v Webb [2010] ACTSC 37 (30 April 2010)

DAMAGES – personal injury – whiplash injury to neck – probable facet joint injury – psychological condition secondary to chronic pain – loss of earning capacity – whether failure to submit to recommended treatment was failure to mitigate loss

EVIDENCE – death of expert witness before trial – whether statement of witness admissible – whether statement should be excluded as prejudicial because of loss of opportunity to cross-examine

Evidence Act 1995 (Cwlth) ss 63, 135
Evidence Act 1995 (NSW) s 63

Alcoa of Australia Limited (ACN 004 879 298) v The Australian Workers’ Union [2010] FCA 278 (23 April 2010)

INDUSTRIAL LAW – quia timet injunction – protected industrial action – specificity of notices – whether notices issued under s 414(6) Fair Work Act 2009 (Cth) require commencement time and duration – – whether ‘nature of the action’ in s 414(6) imports a requirement to specify commencement time and duration – whether there is a serious question to be tried
Evidence Act 1995 (Cth) s 75

Sundararajah v Teachers Federation Health Ltd (No. 2) [2010] NSWSC 259 (30 April 2010)

EVIDENCE – documentary evidence – complaints to health insurer about health service provider – whether complaints confidential – whether insurer entitled to redact documents to protect confidentiality of complainants – whether protected confidence – whether health care provider acting in professional capacity – whether admissibility of redacted documents unfairly prejudicial to health care provider.

Campaign Master (UK) Limited v Forty Two International Pty Ltd (No 4) [2010] FCA 398 (30 April 2010)

PRACTICE AND PROCEDURE – application by non-parties to set aside a subpoena pursuant to O 27 r 4 FCR as an abuse of process – standing to seek relief – whether documents sought have an apparent relevance to the issues in the proceeding – whether subpoena issued for an improper or collateral purpose – relevant principles discussed
HELD: Relief refused
PRACTICE AND PROCEDURE – application by non-parties pursuant to O 35 r 7(2) FCR to set aside order granting leave to use in another proceeding documents produced on subpoena in this proceeding – standing to seek relief – whether order should be set aside in all the circumstances – “special circumstances” – relevant principles discussed
HELD: Relief refused

Perpetual Trustee Ltd & Anor v Baranov (No 2) [2010] VSC 172 (30 April 2010)

MORTGAGES − Default by mortgagee ― Deed of cross collateralisation ― Multiple securities available to mortgagee to satisfy debt ― Claim for possession of mortgagee’s family home ― Precursor to mortgagee’s sale ― Statutory obligation to exercise power of sale in good faith with regard to mortgagor’s interests ― Protection of “interests” in family home ― Whether mortgagee obliged to have primary recourse to other securities ― Applicability of Nolan v MBF Investments [2009] VSC 244.