http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1391.html

CORPORATIONS – application to set aside statutory demand – whether applicant filed and served supporting “affidavit” for purposes of Corporations Act 2001, s 459G – where jurat not signed by attesting witness – whether oath administered – form of oath required – whether genuine dispute that debt owed – whether genuine dispute as to part of debt – whether parties were in partnership – whether debt by way of loan – whether offsetting claim based on misrepresentation – quantification of claim

http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/112.html

1 The decision which the appellants seek to challenge was a judgment by an experienced judge delivered after a trial of the action over seven days. His Honour canvassed the evidence called by the parties in detail and at length. His Honour addressed each of the contentions advanced on the appellants’ behalf and rendered a clear and comprehensive judgment against the appellants on each issue raised for his determination.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1030.html

TORTS
personal injury
plaintiff was learner driver injured when vehicle collided with a tree
whether defendant breached the duty of care he owed as the supervising driver by failing to properly supervise, instruct and direct plaintiff
contributory negligence

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1024.html

PROFESSIONS AND TRADES – lawyers – duties and liabilities – whether negligence in advising client in relation to guarantee in deed under which interest in real estate business acquired – in relation to terms of second deed settling certain disputes – in relation to agreement selling interest in business – nature of duty of care – duty of care owed – negligence established in part – questions of credit – advocate’s immunity – section 5O of the Civil Liability Act 2002 – causal connection – inherent risk and contributory negligence – s 5I and s 5R of the Civil Liability Act 2002 – contributory negligence established – cross claim – concurrent wrongdoers – negligence established – were damages established – claimed damages established in part

TORTS – negligence – general matters – lawyers negligence – damages

EVIDENCE – admissibility and relevancy – witness not available for cross examination – s 135 of the Evidence Act 1995 – statements received – admissions – s 87 of the Evidence Act 1995 – admissions not established

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1372.html

PRACTICE AND PROCEDURE – consideration of an application for further security for the costs to be incurred by the respondent in the preparation for trial and the conduct of the trial – consideration of the application in the context of an appeal by the applicant from a decision of the Delegate of the Registrar of Trade Marks – consideration of the costs attributable to resisting the appeal and isolating those costs referable to the respondent’s cross-appeal – consideration of the disaggregation of the costs so as to focus on those “at risk” costs generated by the appeal rather than those costs referable to the respondent’s cross-appeal – consideration of the questions raised by the cross-appeal, the field of issues alive and the scope of evidence relevant to the issues – consideration of whether a Notice to Produce issued by the applicant in the proceedings is oppressive and ought to be set aside

INTELLECTUAL PROPERTY – consideration of an application for security for costs by a cross-appellant in a trade mark appeal – consideration of the scope of the issues raised by the appeal itself – consideration of the issues, questions to be addressed and evidence directed to the matters in issue raised by the appeal as compared with matters in issue arising upon the cross-appeal – consideration of the principles to be applied in the circumstances of an appeal and cross-appeal

l

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1426.html

CONTRACT – commercial agreement – construction – identifying contractual terms – whether costs of bulk excavation earthworks were to be paid as actual or fixed costs
EQUITY – fraudulent misrepresentation – whether payments made were for material which was misrepresented as being excavated from site and disposed of, whether payments made indicated reliance on misrepresentation
EQUITY – fraudulent misrepresentation – whether false invoices were issued by excavation company resulting in overpayment
EQUITY – fraudulent misrepresentation – whether material was misrepresented as contaminated, whether payments made indicated reliance on misrepresentation
EQUITY – fraudulent misrepresentation – whether rate charged was reasonable for removing and disposing of contaminated material
TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW) – consumer protection – misleading and deceptive conduct – reliance, inducement and causation – whether false representations were made that material was contaminated

Evidence Act 1995 (NSW), s 140

http://www.austlii.edu.au/au/other/HCATrans/2010/339.html

MR JACKSON: Your Honours, the application concerns the requirements necessary to satisfy section 79(1) of the Evidence Act 1995 (NSW) in order to make admissible opinion evidence.
…
HAYNE J: Thank you. There will be a grant of special leave in this matter.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/303.html

CRIMINAL LAW – Appeal against conviction – Sexual offences alleged by different complainants against same accused – Tendency evidence – Coincidence evidence – Whether separate trials should have been ordered – Whether significant probative value – Whether probative value substantially outweighed prejudicial effect – Risk of concoction or contamination of evidence – Whether errors in directions to jury.
CRIMINAL LAW – Crown appeal against sentence – Several sexual offences against minors – Whether sentencing judge erred in imposing individual sentences and/or in failure to partially accumulate – Whether aggregate sentence manifestly inadequate.

Evidence Act 1995 , ss 97, 98, 101

http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/148.html

COPYRIGHT – Statutory licence – Determination of licence fee – Judicial review – Denial of procedural fairness – Whether Tribunal required to give parties an opportunity to respond to all evidence which the Tribunal may use in determining the licence fee

Evidence Act 1995 (Cth) s 76

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1367.htm

TRADEMARKS – whether trade mark capable of distinguishing designated goods – geographic reference – description of style of goods – cancellation of trade mark – onus of proof – Trade Marks Act 1995 (Cth), ss 41, 88(2)(a), (e)
TORTS – passing off – whether there has been representation by the respondent to the public leading the public to believe the goods offered by the respondent are the applicant’s goods
TRADE PRACTICES – misleading and deceptive conduct – clear distinguishing features – Trade Practices Act 1974 (Cth), ss 52, 53
EVIDENCE – hearsay – ss 60, 136, 190(3) Evidence Act 1995 (Cth)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/344.html

APPEAL – civil – ground of appeal – error of law – no evidence and illogicality of reasoning
EVIDENCE – admissibility – expert evidence – whether assessed in accordance with expert’s expertise
TORTS – negligence – dust diseases – causation – material contribution to injury, cumulative effect of exposure, reconciliation of cumulative effect of exposure with epidemiology
TORTS – negligence – dust diseases – duty of care – foreseeability – level of generality at which duty identified
TORTS – negligence – dust diseases – causation – relevant considerations
PROCEDURE – dust diseases – determining issues of general nature – [Dust Diseases Tribunal Act 1998] (NSW), s 25B
WORKERS COMPENSATION – dust diseases – negligence – damages – domestic care and assistance – Workers Compensation Act 1987 (NSW), s 60AA

Evidence Act 1995 (NSW), ss 55, 79

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1371.html

CORPORATIONS – insolvency – company trustee of trust funds – whether liquidator can be paid costs and remuneration out of trust money – proposed mediation – whether a mediation agreement restricting use of information obtained ought be approved

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

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1352.html

BANKRUPTCY – sequestration – whether order should have been made – judgment entered pursuant to terms of settlement – application to set aside unsuccessful – appeal from that judgment dismissed – applicant wishing to pursue application for special leave to appeal to High Court – whether federal magistrate bound to decline to make sequestration order until all avenues of appeal exhausted – whether exercise of discretion miscarried

APPEAL AND NEW TRIAL – application for leave to appeal out of time – whether special reasons – whether adequate explanation of delay – whether absence of prejudice from delay – whether sufficient prospect of success on appeal

EVIDENCE – affidavit – affidavits filed and relied on – claim to legal professional privilege as to exhibits – whether partial waiver of privilege possible – whether affidavits and their exhibits should be available for inspection

Evidence Act 1995 (Cth) ss 119, 122, 122(1), 122(2), 122(3)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1405.html

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act.
Proceedings not commenced in time. Discussion of whether s29 of Acts Interpretation Act 1901 or s160 of Evidence Act applies.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/271.html

CRIMINAL LAW
whether the trial judge erred in admitting evidence of the violent behaviour of the offender over a period of time and failed to give the jury adequate instructions regarding this evidence in sexual assault cases
whether there was a miscarriage of justice in relation to the Crown Prosecutor’s address
where violence by offender may explain the acquiescence and failure to complain by victims of sexual assault
application of rule 4

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/272.html

CRIMINAL LAW
appeal against conviction
whether a miscarriage of justice occurred because of the directions given with respect to DNA evidence
whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence
consideration of the admissibility of DNA evidence in light of s 135 and s 137 of the Evidence Act 1995 (NSW)
manner of expressing in non-scientific terms the conclusions to be drawn from DNA testing to the jury
jury verdict open and support by the evidence

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2010/2.html

EVIDENCE – admissibility of interview with police – conducted while appellant intoxicated – no caution administered – discretion to exclude illegally obtained evidence

CRIMINAL LAW – reasonable hypothesis consistent with innocence open on evidence – unreasonable or unsafe and unsatisfactory conviction recorded – defence of sudden or extraordinary emergency – unavailable to appellant – appellant may have taken steps to obviate threat

Evidence Act 1995 (Cth) ss 60, 81, 84, 138, 191

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1366.html

TORTS – assessment of damages – psychiatric injuries following years of sexual abuse by a “special friend” while the plaintiff was a ward of the State

24 The effects of Mr Featherstone’s sexual abuse on “XY” are described in a series of reports by Jonathan Phillips, Consultant Psychiatrist. To the extent that Dr Phillips’ reports record the history provided to him by “XY”, the hearsay rule does not apply to that evidence: s 60(1) of the Evidence Act 1995 ; R v Welsh (1996) 90 A Crim R 364. I have accordingly taken that evidence into account in reaching my findings as to the events underlying “XY”’s claim, making due allowance for the fact that “XY” has not been cross-examined on that material.

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/148.html

CRIMINAL LAW – sexual intercourse without consent – acts of indecency – eight separate incidents – seven complainants

EVIDENCE – pre-trial application – application to sever the indictment – application partially granted

EVIDENCE – pre-trial application – application to adduce evidence of tendency and coincidence – whether evidence has significant probative value – whether probative value substantially outweighs prejudicial effect – unrelated issues – unfair prejudice – application partially dismissed – allegations of similar and underlying unity – relevant to rebut suggestion of accident – relevant to rebut lack of awareness of inappropriateness – relevant to general context – application partially granted

Evidence Act 1995 (Cth), ss 55, 95, 97, 98, 101, 135, 137

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1326.html

CONTRACT
whether Deed of compromise valid and enforceable
BANKRUPTCY
whether failure to comply with s 58(3) Bankruptcy Act vitiated Deed
whether obligations under Deed a provable debt
whether annulment of bankruptcy removed any impediment to enforceability of Deed
UNJUST CONTRACT
Contracts Review Act
whether Deed unjust
estoppel
mutual mistake
whether proceedings abuse of process.

Evidence Act s 128, s 128(3), s 128(5)

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/145.html

ADMISSIBILITY OF EVIDENCE – admissions made by accused’s partner – whether representations made by accused’s partner can be considered to be the admissions of the accused.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence improperly obtained by interviewing officer – section 85(2) of the Evidence Act 1995 (Cth) application to exclude admissions made unless the circumstances of making the admissions are such that it is unlikely that the truth is adversely affected – application dismissed.

Evidence Act 1995 (Cth), ss 85, 87, 88, 135, 137, 138, 138(2), 139(2), 142

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/136.html

PRACTICE AND PROCEDURE – proper certification of affidavits relied upon by a represented party.

CRIMINAL LAW – search warrants – warrant authorising search of residential premises.

CRIMINAL LAW – nature and extent of search under the warrant – power of police under the search warrant to: use forcible entry without warning or announcement, search the residence, search any person on the residence and seize items not specified in the search warrant.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence collected during execution of search warrant due to improper execution of search warrant and seizure of items not specified in the search warrant – “exigent circumstances” unclear meaning in Australian law – “exigent circumstances” found to permit entry to premises to execute search warrant without prior announcement – application dismissed.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence collected during execution of search warrant due to improper execution of search warrant and seizure of items not specified in the search warrant – “exigent circumstances” exception includes the need to ensure evidence in the contemplation of the search warrant is not destroyed – application dismissed.

Evidence Act 1995 (Cth), s 138

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1277.html

CRIMINAL LAW – evidence – hearsay – murder trial – witness unavailable (overseas) – previous induced ERISP – whether portions of ERISP admissible.

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/134.html

EVIDENCE – pre-trial application – act of indecency – application to exclude parts of a record of conversation with complainant – evidence to indicate inappropriate behaviour – pattern of grooming – probative value outweighed by prejudicial effect – application granted – certain parts of record of conversation to be excluded.

EVIDENCE – pre-trial application – act of indecency – application to exclude record of interview with witness – only relevant evidence preceded by leading questions – whether the Court would have granted leave to ask leading questions – witness a young child – answers went extensively beyond leading questions put to witness – no significant unfair prejudice arising from record of conversation – application refused – record of conversation to be admitted.

Evidence Act 1995 (Cth), ss 97, 137

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1336.html

PROCEDURE – privilege – where proceedings concern testamentary capacity of deceased – where documents sought under subpoena addressed to deceased’s lawyer who is also lawyer for plaintiff seeking probate – where documents prima facie privileged under Evidence Act 1995 , s 119 or common law – application of Uniform Civil Procedure Rules, r 1.9 and Evidence Act to inspection of documents – whether Evidence Act , s 121 precludes privilege claim – whether deceased is “a client” for s 121 – whether privilege waived under Evidence Act , ss 122 or 126

Evidence Act 1995 (NSW)