Monthly Archives: December 2010

Micar Group Pty Ltd v Insul-Trade LLC [2010] NSWSC 1391 (9 November 2010)

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

Brunswick Hill Apartments Pty Ltd v CGU Insurance Limited [2010] VSC 532 (24 November 2010)

DISCOVERY AND INSPECTION – Litigation privilege – Claim for indemnity under insurance policy – Appointment of assessor by insurer – Whether litigation was contemplated – Whether contemplation of litigation accounts for documents having been made – Question of fact – Test to be applied – Order for inspection made.

25 What does the law look to in an application such as this?

26 We are here concerned with the aspect of professional privilege known as litigation privilege. The law will regard as privileged from production the confidential communications that pass between the defendant and third parties that are made for the dominant, if not sole, use in litigation that is then existing or might reasonably be expected, anticipated or reasonably in contemplation: see Esso Australia v FCT[1] and see s 119 Evidence Act 2008 (Vic). The underlying rationale of the common law of legal profession privilege was stated in Baker v Campbell[2] and reaffirmed in Esso Australia Resources and FCT.[3] That is, a person is entitled to seek legal advice in the conduct of his affairs and legal assistance for the purpose of conducting actual or anticipated litigation without being prejudiced by having to disclose those communication But against that, there lies the policy and the desirability in the interests of justice in obtaining access to the facts relevant to the issues in order to get to the truth of the matter. Thus, claims for privilege ought to be carefully examined to ensure the integrity of the discovery process.

27 Thus, there are two questions to be asked. First, was litigation either pending or in contemplation? Secondly, did the communication or documentation come into existence for use in or in relation to pending or contemplated litigation? These are questions of fact.

Roads Corporation v Love [2010] VSC 537 (26 November 2010)

LAND VALUATION AND COMPENSATION – Compulsory acquisition of part of land used for agricultural purposes – Highest and best use of the land – Claim for loss of future quarry and landfill – Prospect of grant of planning permit for a quarry beyond that recommended by a permit planning panel – No realistic prospect of grant of planning permit beyond that recommended by permit planning panel – No realistic prospect of future landfill use – Point Gourde principle considered – Market value to reflect future industrial use of the land – Discounted cash flow method – Capitalisation of earnings method – Hypothetical quarry development calculations rejected – Capitalisation of earnings method – Respondent’s claims for time rejected – Agricultural infrastructure replacements and motor vehicle claims accepted in part – Injurious affect claim allowed – Solatium – Land Acquisition and Compensation Act 1986, ss 40, 41, 43, and 44 – Valuation of Land Act 1960, s 5A.

315 Pursuant to s 76 Evidence Act 2008 evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. However, an exception is created pursuant to s 79 in respect of opinions based on specialised knowledge. If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge

Whittaker v Child Support Registrar [2010] FCAFC 112 (7 September 2010)

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.

DJZ Constructions Pty Ltd v Paul Pritchard trading as Pritchard Law Group and Ors [2010] NSWSC 1024 (10 September 2010)

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

R v Dupas [2010] VSC 409 (15 September 2010)

CRIMINAL LAW – Murder – Application for a permanent stay of re-trial – Whether pre-trial publicity such that fair trial not possible – Application for a stay refused

46 The accused also seeks to lead expert evidence pursuant to s 108C of the Evidence Act 2008 , from Dr Richard Kemp, a psychologist from the University of New South Wales. Dr Kemp’s proposed evidence addresses the “displacement effect”, being the considerable danger that a witness’s memories for a person they have seen is likely to have been affected by exposure to the many images of the accused which were presented in the media and linked to the Halvagis murder.

47 Finally, the accused seeks to exclude the following evidence, which is apparently to be relied upon by the Crown to demonstrate evidence of consciousness of guilt, or implied admissions of guilt: a hairdresser, Domenica D’Alberto, who will give evidence about discussions she had with the accused, before and after the date of Ms Halvagis’ murder, about him changing his hairstyle; an optometrist, Isabella La Rocca, and a spectacle maker, Jack Sgourakis, who will give evidence about the accused changing his style of glasses in early November 1997; and evidence from Ms La Rocca as to the accused having a scratch on his cheek on 7 November 1997, which he told her he got at work, together with evidence from his then-employer, John Kazakis, that the accused did not report any workplace injury in November 1997. The accused seeks to have the evidence of all four witnesses excluded under s 137 of the Evidence Act 2008 , on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to him.

N.V. Sumatra Tobacco Trading Company v British American Tobacco Australia Services Limited [2010] FCA 1372 (8 December 2010)

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



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

Biovision 2020 Pty Ltd & Anor v CGU Insurance Limited & Anor [2010] VSC 589 (15 December 2010)

PRACTICE AND PROCEDURE – ‘Without prejudice’ privilege – Evidence Act 2008 (Vic), ss 131 and 131A – Supreme Court (General Civil Procedure) Rules, r 42A.08 – Documents produced under subpoena – Objection to disclosure of documents to a party – Documents prepared in connection with an attempt to negotiate a settlement of a dispute – Requirement for evidence.

APPEAL – Leave to appeal from Associate Justice – Commercial Court – Hearing de novo – Appeal allowed.

BP v R; R v BP [2010] NSWCCA 303 (13 December 2010)

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

Yarra Valley Dairy Pty Ltd v Lemnos Foods Pty Ltd [2010] FCA 1367 (10 December 2010)

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)

Amaba Pty Ltd (Under NSW Administered Winding Up) v Booth; Amaca Pty Ltd (Under NSW Administered Winding Up) v Booth [2010] NSWCA 344 (10 December 2010)

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

Georges (Liquidator), in the matter of Sonray Capital Markets Pty Ltd (in liq) [2010] FCA 1371 (8 December 2010)

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)

Narain v Euroasia (Pacific) Pty Ltd [2010] FCA 1352 (6 December 2010)

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)

Gillies v Downer EDI Limited [2010] NSWSC 1323 (3 December 2010)

EVIDENCE – Client legal privilege – Waiver of privilege – Where the defendant made a voluntary disclosure to the Australian Tax Office – Where an expert witness was briefed with a copy of that voluntary disclosure letter – Where the expert’s report refers to the contents of the voluntary disclosure letter – Where the defendant has served the expert report on the plaintiff – Where the defendant now claims client legal privilege over part of the voluntary disclosure letter – Whether the unredacted parts of the letter could properly be understood in the absence of the redacted parts.
EVIDENCE – Client legal privilege – Waiver of privilege – Where the plaintiff in his affidavit refers to receipt of legal advice from his solicitor in conference – Where the solicitor kept a file note of the conference – Whether the plaintiff has waived privilege over all advice received, and the entire file note of the solicitor.

Evidence Act 1995

KTR v R [2010] NSWCCA 271 (3 December 2010)

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

Aytugrul v R [2010] NSWCCA 272 (3 December 2010)

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

Sonnet v The Queen [2010] VSCA 315 (1 December 2010)

CRIMINAL LAW – Conviction – Conspiracy to murder – Courts and judges – Bias – Whether apprehended bias by reason of trial judge sentencing co-accused before accused’s trial – R v Kearns [2003] NSWCCA 367, followed.

Evidence – Deposition of deceased witness – Tendered pursuant to s 55AB of Evidence Act 1958 – Whether accused had ‘full opportunity of cross-examining’ witness at committal hearing – Quaere whether failure of Crown to provide accused with transcript of interview of witness deprived accused of full opportunity of cross-examining witness – R v Stackelforth (1996) 86 A Crim R 438; R v Cheprakov [1997] 2 NZLR 169; Gorman v Fitzpatrick (1987) 32 A Crim R 330, considered – Evidence Act 1958 , s 55AB.

Fair trial – Whether failure of Crown to provide accused with transcript of interview of witness rendered trial unfair – Whether transcript would have significantly damaged Crown case or advanced accused’s defence – R v Grey [2001] HCA 65; (2001) 184 ALR 593, applied.

Jury – Challenge – Peremptory – Whether valid when made in absence of accused – The Queen v Johns [1979] HCA 33; (1979) 141 CLR 409, considered; Eastman v The Queen (1997) 76 FCR 9, referred to – Secrecy – Judge declining in part counsel’s request for access to full text of jury question – Whether productive of miscarriage of justice – R v Black [2007] VSCA 61; (2007) 15 VR 551, distinguished.

Appeal allowed – New trial ordered.

Roads and Traffic Authority of NSW v Birchfield; Roads and Traffic Authority of NSW v Dunlop [2010] NSWSC 1253 (29 November 2010)

TRAFFIC LAW – regulation of traffic – traffic signs and notices – offences – Road Rules – whether signs made in accordance with Road Rule 105 – whether traffic signs amounted to instruments – whether traffic signs should be read down to be within the power of the Rules – appeal from Magistrate’s decision dismissing charges – necessity for strict or substantial compliance of signs to Road Rules.

Parker v Chief of Air Force [2010] ADFDAT 2 (29 November 2010)

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

Aon Risk Services Australia Limited v Australian National University [2010] ACTCA 28 (29 November 2010)

PRACTICE AND PROCEDURE – whether a decision by a single judge of the Court not to rule certain evidence inadmissible one year before the trial is an “interlocutory order” within s 37E(4) of the Supreme Court Act 1933 (ACT) and thus susceptible to an application for leave to appeal from that decision before final judgment is delivered – in the circumstances of the present case, the decision of the primary judge not to exclude evidence in advance of the trial held not to be “an interlocutory order” within s 37E(4) – application for leave to appeal incompetent – even if, contrary to the Court’s conclusion, the application for leave to appeal in the present case was competent, leave to appeal should be refused – application dismissed with costs

Evidence Act 1995 (Cth), s 4, s 192A

Jiang v R [2010] NSWCCA 277 (29 November 2010)

appeal and new trial
particular grounds of appeal
misdirection and non-direction
whether direction was required to warn against substitution of evidence of uncharged acts for charged acts
whether error in judge’s comment that certain prosecution evidence had not been challenged or contradicted
appeal and new trial
appeal against sentence
grounds for interference
whether sentence manifestly excessive
whether error in not finding special circumstances

47 The evidence was not tendency evidence; it was not led for the purpose of establishing that the appellant had a tendency to act in a particular way or to have a particular state of mind: s 97 and the definition of “tendency evidence” in the Dictionary to the Evidence Act 1995 . Nor was the evidence led to establish a “relationship” or a context in which the charged acts occurred. Indeed, nobody suggested to the jury that the evidence gave rise to a process of reasoning along any of those lines.

XY v Featherstone [2010] NSWSC 1366 (26 November 2010)

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.

R v Pazmino [2010] ACTSC 148 (25 November 2010)

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

Raupach v MacDonald [2010] NSWSC 1326 (24 November 2010)

whether Deed of compromise valid and enforceable
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
Contracts Review Act
whether Deed unjust
mutual mistake
whether proceedings abuse of process.

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

R v Bormann [2010] ACTSC 145 (17 November 2010)

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

R v Austin (No 2) [2010] ACTSC 136 (5 November 2010)

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

In the matter of an application by JC [2010] ACTSC 134 (28 October 2010)

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

d’Apice v Gutkovich – Estate of Abraham (No . 1) [2010] NSWSC 1336 (27 October 2010)

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)