Monthly Archives: June 2011

Australian Securities and Investments Commission v Healey [2011] FCA 717 (27 June 2011)

CORPORATIONS – Directors and officers – Duties – Functions – Division of functions between Board and management – Non-executive directors – Duties of non-executive directors – Degree of skill required of non-executive directors – Extent to which directors entitled to rely on judgment and advice of management and experts – Duties of chief executive officer – Statutory duty of care and diligence – Standard of care – Duty to read and understand financial statements – Duty to apply background knowledge to review of financial statements

NEGLIGENCE – Directors – Failing to take reasonable steps to secure compliance by a company of its obligations in relation to accounting records – Nature of what is required – Relevance of belief that others discharging the obligation – Reliance on others – Whether reliance on internal and external processes discharges duties of directors – Negligence not mistake

STATUTES – Corporations Act 2001 (Cth) – ss 180, 344, 601FD, 294, 295A, 296, 297, 298, 299, 200A – Interplay between s 180 and s 344 of the Corporations Act 2001 (Cth)

PRACTICE AND PROCEDURE – Pleadings – Principles regarding unpleaded case – Whether parties can depart from pleaded case – No case to answer submission – Election – Procedure in Federal Court of Australia – Federal Court Rules – Order 35 Rule 1 – s 31A of the Federal Court of Australia Act 1976 (Cth)

EVIDENCE – Onus and standard of proof in civil penalty proceedings

Mainstream Aquaculture Pty Ltd v Calliden Insurance Ltd [2011] VSC 286 (24 June 2011)

INSURANCE – Business interruption insurance – construction of commercial insurance contract – whether damage to insured property caused loss – whether fuse property for purposes of insurance – meaning of word “damage” – whether applicable exclusion to insurance policy – McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 – Ranicar v Frigmobile Pty Ltd [1983] Tas R 113.

EVIDENCE & PROCEDURE – admissibility of expert evidence and reports – whether relevant – whether excluded as opinion evidence or based on specialised knowledge – s 55, s 76, s 79, s80 Evidence Act 2008 (Vic).

Chen v R [2011] NSWCCA 145 (22 June 2011)

CRIMINAL LAW – particular offences – offences against the person – drug offences – Drug Misuse and Trafficking Act 1985 – one count supply traffickable quantity MDMA “ecstasy” – two counts supply large commercial quantity MDMA “ecstasy” – Form 1 possession offences
CRIMINAL LAW – appeal against conviction – trial by jury – supply prohibited drug – telephone intercepts – translation of recordings – “codes” used in supply of ecstasy – whether conversations capable of innocent construction – alternative translations – conduct of defence counsel – independent translators not called – forensic decision to limit cross-examination on translation of particular words – no miscarriage of justice – finding of guilt open on the evidence – appeal dismissed
CRIMINAL LAW – evidence – opinion rule – telephone intercepts – evidence given by police officer of “argot” of drug dealing – application of s 79 Evidence Act – specialised knowledge based on experience in drug investigations – opinion framed in terms of “consistency” – evidence properly admitted
CRIMINAL LAW – evidence – witnesses – persons criminally concerned – whether evidence of tendency – proper characterisation of evidence – relevant for another purpose – s 95 Evidence Act – appropriate directions given
CRIMINAL LAW – evidence – admission of telephone intercept recordings post-dating offences alleged – appellant not involved in conversations – relevant to the issue of joint criminal enterprise – evidence properly admitted
CRIMINAL LAW – application for leave to appeal against sentence – relevance of sentences imposed on co-offenders – no error in assessment of objective seriousness – leave granted – appeal dismissed

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 4) [2011] VSC 269 (16 June 2011)

EVIDENCE – Legal Professional Privilege – ss 118, 119, 120 of the Evidence Act 2008 (Vic) – Whether privilege attached to document waived by delivery to 3rd party – Failure to object to document of which privilege is claimed in opening submissions – Whether acted in a manner inconsistent with the maintenance of confidentiality retained in document per s 117 of the Evidence Act 2008 (Vic) – Whether document can be adduced in evidence – Held privilege retained – Burden of proof – Whether burden of proof lies with the party asserting the privilege pursuant to s 122 of the Evidence Act 2008 (Vic) – Whether burden of proof shifts pursuant to s 122(5) of the Evidence Act 2008 (Vic)

PRACTICE AND PROCEDURE — Orders 42, 42A of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Failure to provide subpoenaed documents directly to the Court by solicitor – Whether subpoenaed documents must be provided to the Court – Purpose of providing subpoenaed documents to Court prior to review – Subpoenaed documents received by practitioner referred to in an affidavit of documents – Conduct of the solicitor improper.

K M J v Tasmania [2011] TASCCA 7 (22 June 2011)

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Nature of discretion – Generally – Probative value – Relevance of reliability and credibility to probative value.
Evidence Act 2001 (Tas), ss135 and 137.
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; PG v R [2010] VSCA 289, followed.
AE v R [2008] NSWCCA 52; PNJ v DPP [2010] VSCA 88, referred to.
Director of Public Prosecutions v Lynch [2006] TASSC 89; (2006) 16 Tas R 49, distinguished.
Aust Dig Criminal Law [2676]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Prejudicial evidence – Generally – Unfair prejudice arising from procedural considerations.
Evidence Act 2001 (Tas), ss135 and 137.
R v Cook [2004] NSWCCA 52; R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302; R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182; Galvin v R [2006] NSWCCA 66; (2006) 161 A Crim R 449, referred to.
Aust Dig Criminal Law [2680]

Dasreef Pty Ltd v Hawchar [2011] HCA 21 (22 June 2011)

Evidence – Admissibility – Opinion evidence – Section 79(1) of Evidence Act 1995 (NSW) provided that rule excluding evidence of opinion did not apply where “a person has specialised knowledge based on the person’s training, study or experience” and person’s opinion “wholly or substantially based on that knowledge” – Respondent sued appellant in Dust Diseases Tribunal of New South Wales – Respondent claimed he was negligently exposed to unsafe levels of silica while working for appellant – Witness gave evidence about approximate level of respirable silica to which respondent may have been exposed – Opinion treated as admissible to found calculation of numerical or quantitative level of exposure to respirable silica – Whether opinion admissible for that purpose – Requirements for admissibility.

Procedure – Specialist tribunal – Dust Diseases Tribunal of New South Wales – Ability of judge constituting Tribunal to draw on experience as member of specialist tribunal when making findings of fact – Section 25 of Dust Diseases Tribunal Act 1989 (NSW) required Tribunal to apply rules of evidence – Section 25B provided exception subject to various requirements – Trial judge drew on “experience” that silicosis usually caused by very high levels of silica exposure in concluding that respondent’s silicosis caused by exposure to silica – Section 25B neither invoked nor complied with – Whether trial judge entitled to draw on “experience” in making finding of fact.

Procedure – Objection to admissibility of evidence – Evidence taken on voir dire – Trial judge did not rule on objection at conclusion of voir dire – Desirability of ruling on objection to admissibility as soon as possible.

Words and phrases – “based on the person’s training, study or experience”, “basis rule”, “opinion rule”, “specialised knowledge”, “specialist tribunal”, “voir dire”, “wholly or substantially based on that knowledge”.

Evidence Act 1995 (NSW), ss 55(1), 76(1), 79(1).

De Bortoli Wines Pty Limited v HIH Insurance Limited (in liq) [2011] FCA 645 (9 June 2011)

CORPORATIONS – s 1321 Corporations Act 2001 (Cth) and reg 5.6.54 Corporations Regulations 2001 – appeal from liquidators rejection of formal proof of claim –consideration of role of liquidators in determining whether to admit or reject proofs – role is quasi-judicial – appeal from liquidators’ decision is interlocutory

EVIDENCE – hearsay evidence – consideration of exceptions to hearsay rule – whether transcript of examination under s 596B Corporations Act admissible – s 597(14) Corporations Act not relevant – whether transcript admissible under s 69 Evidence Act 1995 (Cth) as business record – whether admissible under s 75 Evidence Act because interlocutory proceeding – section requires particular identification of the maker of representation – even if maker identified transcript not admissible merely because interlocutory proceeding – Court has discretion to exclude evidence where prejudice outweighs probative value – transcript not admissible under exceptions to hearsay rule

TRADE PRACTICES – applicant claims shares purchased in reliance on misleading and deceptive conduct in breach of s 52 Trade Practices Act 1974 (Cth) – consideration of causation and reliance – conduct need not be sole cause of loss – carelessness not a bar to recovery of damages under s 82 Trade Practices Act – question of reliance to be considered in light of the circumstances surrounding each purchase – applicant relied on own judgment and experience – reliance not established

Evidence Act 1995 (Cth) ss 59, 69, 75, 128, 136

R v Bui [2011] ACTSC 102 (17 June 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – miscellaneous powers of courts and judges – costs in criminal cases – whether payable – failure by prosecution to disclose material in a timely fashion – unfairness to accused.

CRIMINAL LAW – jurisdiction, practice and procedure – prosecution – duty of disclosure – principles applicable to disclosure by the prosecution.

CRIMINAL LAW – jurisdiction, practice and procedure – miscellaneous powers of courts and judges – stay of proceedings – conditional stay subject to payment of costs – whether stay beyond jurisdiction – exceptional circumstances warranting a stay – stay ordered conditionally.

David Scott PARKINSON v R (Cth); R v David Scott PARKINSON (NSW); David Scott PARKINSON v R (NSW) [2011] NSWCCA 133 (15 June 2011)

(1) Commonwealth offence – attempt to dishonestly obtain financial advantage – false claim for approximately $500,000 Goods and Services Tax refund – persistence in pursuit of claim.
(2) State offences – attack on victims with operating chainsaw – evidence of attack by another (the appellant’s father) as victims fled the danger from the chainsaw – admissibility of that evidence – jury directions – sentence – failure to accumulate upon sentence for Commonwealth offence so that no minimum custody referable exclusively to State offences – inadequacy – appellant re-sentenced.

21. There were two reasons supporting the admissibility and relevance of the evidence of what transpired between Mr Hartnett and Mr Cameron and Mr Clark. First, it was admissible so that the jury could properly assess the facts and circumstances in the correct context. To discontinue the description at the point of wielding the chainsaw by the appellant would leave a gap in the intelligibility of what the Crown alleged had occurred.
22. In O’Leary v The King [1946] HCA 44; (1946) 73 CLR 566 approved as a correct statement of doctrine was this extract from Roscoe On Evidence in Criminal Cases 14 th ed:

“Thus evidence may be given, not only of the act charged itself, but of other acts so closely connected therewith, as to form part of one chain of facts which could not be excluded without rendering the evidence unintelligible – part in fact of the res gestae.”

The Court
23. In that case Dixon J (as he then was) spoke to the same effect in the context of that appeal:

” Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.”

24. O’Leary remains authoritative following the passing of the Evidence Act 1995 : Adam v Regina [1999] NSWCCA 189; (1999) 106 A Crim R 510.

VIP Plastic Packaging Pty Ltd v B.M.W. Plastics Pty Ltd [2011] FCA 660 (10 June 2011)

PATENTS – alleged infringement of patent – patent described ‘variable-length dip tube for a fluid transfer container’ – respondent did not dispute manufacture and sale of dip tubes – whether respondent’s product infringing – meaning of ‘lower end portion’ – meaning of ‘loose clearance fit’ – meaning of phrase ‘just below’ – respondent’s defence fails – respondent’s product has all essential integers of relevant claims – infringement established

PATENTS – respondent cross-claimed alleging invalidity – construction of claims – whether patent in suit invalid for want of novelty – whether patent anticipated by earlier ‘Hancock’ patent – no anticipation – lack of novelty not established

PATENTS – whether patent in suit invalid for lack of inventive step – whether patent obvious to a non-inventive worker in the field – no evidence that such a worker faced with ‘buckling’ would as matter of routine have taken steps from prior art to invention as claimed – lack of inventive step not established

PATENTS – whether patent in suit a manner of manufacture within the meaning of section 6 of the Statute of Monopolies – no disclosure in the patent specification that the invention not an alleged manner of new manufacture – not invalid on this ground

PATENTS – whether patent in suit invalid for lack of definition or clarity – whether terms ‘just below the end’ and ‘inhibits bending’ insufficiently clear – purposive approach should be adopted – skilled addressee would find these terms provide a workable standard – terms clear when construed by reference to the specifications of the patents – lack of clarity and definition grounds not made out

EVIDENCE – objection to admissibility of expert evidence – consideration of s 79 Evidence Act 1995 role of expert witness – expert witness lacked relevant qualifications and experience – no relevant specialised knowledge based on relevant training, study or experience – witness had no history of working the field of dip tubes, plastics or related field – evidence largely irrelevant and therefore inadmissible – where admissible, little weight accorded

EVIDENCE – expert witness not in the class of skilled addressee – witness conceded that he was not in a class of people ‘skilled in the art’ of dip tubes – witness unable to give reliable evidence of the state of the common general knowledge of a skilled addressee at priority date – evidence largely irrelevant and therefore inadmissible – where admissible, little weight accorded

EVIDENCE – objection to admissibility that no proper basis for the opinion – evidence largely speculative – to the extent opinion based on specialised knowledge based on training as a mechanical engineer, irrelevant as not within the relevant art – opinion based on mistaken understanding of relevant legal principles – opinion evidence irrelevant, s 76 Evidence Act 1995

EVIDENCE – role of named inventor – weight to be given to evidence of inventor – evidence admissible in accordance with the principles in Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd (1981) 148 CLR 262

BOSI Security Services Limited v Australia and New Zealand Banking Group Limited & Ors [2011] VSC 255 (15 June 2011)

MANAGED INVESTMENT SCHEMES – Horticultural schemes for the cultivation of almonds – Investment in scheme gave rights to use orchards and land owned by Timbercorp Group – Companies in Timbercorp placed in liquidation – Liquidators to sell orchards and land unencumbered by any interest – Land and orchards subject to mortgages and securities – In earlier proceedings Court gave direction authorising the liquidators to proceed with sale of schemes – Court directed proceeds to be placed into trust pending rights proceeding – Fund created out of sale proceeds – Orders preserving rights of claimants to assert entitlement to a share of the net proceeds – Question of entitlement reserved to Rights proceeding – This is the Rights proceeding – Competing claimants are the investors on the one hand and the secured creditors on the other – Part 5C of the Corporations Act 2001 (Cth) – Corporations Act 2001 (Cth) ss 601FA, 601FJ, 601FL, 601FM, 601FN, 601FQ, 601FS, 601FT

APPORTIONMENT – Principles to be applied to determine the extent of the respective interests in the fund – Rights of a proprietary nature must be shown to the assets – Contractual rights insufficient to establish entitlement to share in proceeds – Basis for apportionment of interests in the fund to be measured by the respective proprietary interests in the fund – Rights to the assets sold must be founded in property rights – Measure of apportionment to be determined by the value of property rights pre-extinguishment

NATURE OF GROWERS RIGHTS – Those investors with rights to use and occupy assets under licence contractual in nature – Whether rights of use and occupation granted under lease proprietary in nature – Whether leasehold interest in land only or whether leasehold interest extends to the orchards, capital works and water licenses – Question of construction of lease – Principles to be applied to construction of leases – Leasehold interest in the orchards and capital works – Contractual licence in relation to water licences

VALUATION – Projects unviable under their existing structures – Whether opportunity for projects to be restructured if rights not extinguished – Opportunity to be shown on the balance of probabilities – Value of opportunity to be determined on evaluation of the degree of likelihood of projects if restructured continuing to full term – Opportunity of restructure mere hope – No value established in relation to proprietary rights of investors extinguished

EVIDENCE – Expert opinion – Experts’ duty to the Court – Role of expert in provision of independent, objective and impartial assistance to the Court – Expert as advocate – Admissibility of Evidence – Evidence Act 2008 (Vic) s 79

R v Fisher (No 2) [2011] ACTSC 100 (10 June 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – special hearing – accused engaged in the conduct required for the offence.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – what orders can be made.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – ancillary orders – whether bail can be granted to submit to the jurisdiction of ACAT – no apparent power.

Evidence Act 1995 (Cth), ss 184, 190

Farrugia v Jindi Woraback Children’s Centre Inc [2011] VSC 250 (18 May 2011)

PRACTICE AND PROCEDURE – Expert opinion evidence of an ergonomist – Risk of injury by being required to cut cardboard repetitively with scissors of poor quality – Whether substantially based on a body of specialised knowledge – Whether unfairly prejudicial to a party or misleading or confusing – Danger of the opinion usurping the function of the trier of fact – Evidence Act 2008 (Vic) ss 79, 135.

Winnebago Industries, Inc v Knott Investments Pty Ltd [2011] FCA 625 (30 May 2011)

EVIDENCE – whether certain specified passages in several Annual Reports of the applicant are admissible as being representations made in business records of the applicant pursuant to s 69 of the Evidence Act 1995 (Cth) – whether letters sent by a third party to the applicant are admissible as business records of the applicant pursuant to s 69 of the Evidence Act 1995 (Cth)

Evidence Act 1995 (Cth), s 59, 69 and 135

ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639 (8 June 2011)

ADMINISTRATIVE LAW – Application for review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – National Electricity Law – National Electricity Rules – decisions relating to the regulation of the wholesale price of electricity in the ACT – whether the Australian Energy Regulator had the power to vary a decision about the averaging period to be used to determine the nominal risk-free rate of capital after the period had been specified – application filed well outside statutory period – whether extension of time should be granted – whether discretion should be exercised under s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act to refuse to grant the application

Easwaralingam v Director of Public Prosecutions [2011] HCASL 99 (7 June 2011)

The applicant was summoned to appear in the Magistrates’ Court of Victoria on charges of unlawful assault, using indecent language in a public place, stalking in a way that could reasonably be expected to arouse apprehension or fear and behaving in an offensive manner in a public place. All four counts (of which the third was ultimately withdrawn) arose out of events on 26 October 2007 involving a Ms Kelly Venner, the principal witness for the prosecution. On 22 February 2010, two days before the matter was due to be heard as a contested hearing, the informant became aware that Ms Venner would not be available to attend the hearing as she had been admitted to hospital to undergo emergency surgery. On 23 February 2010, counsel for the applicant was notified of Ms Venner’s unavailability for the following day and of the informant’s intention to seek an adjournment or, alternatively, to make an application to rely upon Ms Venner’s statement to police as an exception to the hearsay rule under s 65 of the Evidence Act 2008 (Vic) (“the Act”). Written notice of the respondent’s intention to adduce hearsay evidence under s 65 of the Act was dated 22 February 2010 and served on the applicant’s instructing solicitor on 24 February 2010.
On 24 February 2010, Magistrate Fleming refused the respondent’s application for an adjournment. The Magistrate refused to admit Ms Venner’s statement into evidence and dismissed the three remaining charges. Pursuant to s 272(1) of the Criminal Procedure Act 2009 (Vic), the respondent appealed to the Supreme Court of Victoria in respect of the Magistrate’s refusal to admit the statement into evidence under s 65 of the Act. By originating motion (heard at the same time as the appeal) the respondent sought judicial review of the decision not to grant the adjournment. On 1 October 2010, Pagone J allowed the appeal, held that the Magistrate erred in law in not granting the adjournment and remitted the matter to the Magistrates’ Court. His Honour found that the Magistrate had failed to apply the definition of “not available to give evidence” under Pt 2, cl 4(1)(g) of the Act’s Dictionary and had erroneously concluded that the respondent had not, pursuant to s 67 of the Act, given reasonable notice of its intention to adduce the evidence and that the notice was otherwise deficient.
The applicant sought leave to appeal Pagone J’s decision to the Court of Appeal. The Court of Appeal (Buchanan and Tate JJA) granted leave but dismissed the appeal.
It is not in the interests of justice generally, or in this particular case, that there be a grant of special leave to appeal. There is no reason to doubt the correctness of the actual orders made by the Court of Appeal.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
7 June 201

Ferella v Official Trustee in Bankruptcy (No 2) [2011] FCA 619 (6 June 2011)

BANKRUPTCY AND INSOLVENCY – inquiry sought into conduct of trustee in bankruptcy in the administration of two bankrupt estates – allegation that trustee engaged in unnecessary litigation – allegation that trustee unduly delayed the administration of the two estates – allegation that the trustee unjustifiably failed to disclose information in legal proceedings in which the bankrupts and the trustee were parties – whether inquiry warranted in the circumstances

Held: Limited inquiry ordered.

Fitness First Australia Pty Ltd v Dubow [2011] NSWSC 531 (3 June 2011)

CORPORATIONS – application under s 459G Corporations Act 2001 (Cth) for order setting aside statutory demand – whether demand validly served in absence of an affidavit verifying debt – whether genuine dispute as to existence of debt or offsetting claim – whether “some other reason” established for the purposes of s 459J(1)(b) – HELD – demand not served in compliance with s 459E as no affidavit verifying that portion of the debt which was not a judgment debt – genuine dispute as to the proper construction of an order staying the execution of the initial costs order underlying the judgment debt and as to whether the debt had been released prior to the registration of the costs assessment certificates – therefore genuine dispute as to existence of the debt – entry into Deed of Release constitutes “some other reason” for the purposes of s 459J(1)(b) – statutory demand set aside

Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622 (3 June 2011)

PRACTICE AND PROCEDURE – whether leave to call a witness should be granted – witness sought to be called is counsel in the proceeding – application made mid-trial – Court’s power to control the calling of witness evidence – relevance of case management principles and s 37M of the Federal Court of Australia Act 1976 – whether a legitimate forensic purpose exists for the calling of the evidence – test of apparent relevance – need for applicant to demonstrate an identifiable basis to support a reasonable likelihood that evidence is available that might assist the resolution of a fact in issue – balancing process applicable where legitimate forensic purpose exists – whether strength of forensic purpose and its importance to the issues to be determined is outweighed by prejudice, delay and disruption to trial – application dismissed

Evidence Act 1995 (Cth) ss 55, 102, 106(2)(c)

Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 (1 June 2011)

EVIDENCE – Probative value of admitted but inadmissible hearsay

INCOME TAX – International taxation – Transfer pricing – Determination of arm’s length consideration – Whether taxpayer obliged to identify single arm’s length consideration – Selection of appropriate comparable transactions – Income Tax Assessment Act 1936 (Cth) ss 136AA(3)(d), 136AD(3), 136AD(4), International Tax Agreements Act 1953 (Cth) – Relevance of double taxation treaties to construction of domestic taxation legislation

INTERNATIONAL LAW – Double taxation treaties between Australia and France, the United States of America and China – Whether treaties to be interpreted in accordance with Article 31 of Vienna Convention on the Law of Treaties – Whether commentary on OECD Model Convention relevant to the construction of double taxation treaties – Whether OECD guidelines relevant to the construction of double taxation treaties

Fodare Pty Ltd v Shearn [2011] NSWSC 479 (25 May 2011)

CORPORATIONS – directors – duties of directors – company’s sole asset sold – sole director fails to account in any way for proceeds – vague statement as to part that it was used to pay unspecified debts – evidence as to another part that it was given to daughter-in-law to enable her to pay off her home mortgage – findings of breach of duty by director as to three sums – funding of “knowing receipt” by daughter-in-law as to one of these.

Valeress Pty Ltd v Valenest Pty Limited (in liquidation) [2011] NSWSC 465 (20 May 2011)

TRUSTS – Intention to create trust – certainty of intention, object and subject matter – non-requirement that the term “trust” be used when establishing trust – vesting order to appoint Company as trustee of trust
EVIDENCE – Authenticity of documents – presumption as to the authenticity of documents displaced

Young v Lusted [2011] TASSC 22 (20 May 2011)

Criminal Law – Evidence – Identification evidence – Admissibility – Generally – Presentation of single suspect – Whether probative value of evidence was outweighed by the danger of unfair prejudice to the defendant.

Evidence Act 2001 (Tas), s137.

Festa v R (2001) 208 CLR 593, applied.

Aust Dig Criminal Law [2928]

Criminal Law – Evidence – Identification evidence – Modes of identification – Presentation of single suspect – Whether probative value of evidence was outweighed by the danger of unfair prejudice to the defendant – Whether evidence wrongly admitted.

Evidence Act 2001 (Tas), s137.
Davies and Cody v R [1937] HCA 27; (1937) 57 CLR 170; Alexander v R [1981] HCA 17; (1981) 145 CLR 395; R v Burchielli [1981] VicRp 61; [1981] VR 611; Festa v R (2001) 208 CLR 593, referred to.
Aust Dig Criminal Law [2931]

National Telecoms Group Ltd v John Fairfax Publications Pty Ltd (No 1) [2011] NSWSC 455 (19 May 2011)

EVIDENCE – opinion evidence – expert opinion – specialised knowledge – whether conclusions of experts based on specialised knowledge – principles in Makita v Sprowles – reliance by expert on analysts’ and brokers’ reports concerning the Plaintiff – whether such reports constitute business records – whether such reports admissible.

Gibbins Investments Pty Ltd v Savage [2011] FCA 527 (19 May 2011)

CORPORATIONS – Constitution – statutory contract between members – whether Constitution can be varied by implied agreement of members – doctrine of unanimous assent – applicable principles – pre-emptive rights – purported sale of shares to third party – failure to give notice under pre-emptive rights clause of Constitution – whether compliance with pre-emptive rights clause was waived by members – whether members agreed not to rely on pre-emptive rights – election between inconsistent rights – applicable principles – whether members elected to not insist on their pre-emptive rights – Corporations Act 2001 (Cth) ss 9, 140, 249L

ESTOPPEL – applicable principles – whether promissory estoppel or estoppel by convention made out

CONTRACT – whether failure to perform obligations under Heads of Agreement – repudiation – applicable principles – whether acceptance of repudiation is made out

TRADE PRACTICES – misleading and deceptive conduct – Trade Practices Act 1974 (Cth) s 52

K J M v The Queen [2011] VSCA 151 (18 May 2011)

CRIMINAL LAW – Appeal – Interlocutory appeal – Murder – Victim was domestic partner – Self-defence raised – Accused’s state of mind in issue – Whether evidence of alleged violence against former partner admissible as tendency evidence – Preliminary ruling on admissibility by trial judge – Evidence untested – Defence proposing to challenge evidence on voir dire – No final decision by trial judge on admissibility – Application premature.

Regina v OM [2011] NSWCCA 109 (17 May 2011)

CRIMINAL LAW – Appeal seeking to set aside interlocutory order – no order made – no jurisdiction to set aside preliminary ruling – providing false information to police – whether capable of constituting offence of acting with intent to pervert the course of justice – scope of offence – whether common law concept narrowed by Einfeld’s case – whether error by primary judge could be corrected.

Nominal Defendant v Livaja [2011] NSWCA 121 (17 May 2011)

APPEAL – civil – damages – award – whether judge awarded excessive damages not reflected in the evidence.

PROCEDURE – civil – judgments and orders – whether final judgment had been given before variation made – whether variation could be made even if judgment had not been entered – Uniform Civil Procedure Rules r 36.11(2).

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 2) [2011] VSC 204 (16 May 2011)

PRACTICE AND PROCEDURE – Legal professional privilege – Legal principles applied – No necessity to identify Third Parties communicated with – Solicitor’s memorandum of costs and time ledger – Crime/Fraud exception – Inspection of documents for the purpose of determining the question – Ruling sustaining privilege in relation to some documents and rejecting privilege in relation to others in a redacted form – Rule 29.13 of the Supreme Court (General Civil Procedure) Rules 2005 – Evidence Act 2008 (Vic) ss.118, 119 and 133.

Miller v The Queen [2011] VSCA 143 (16 May 2011)

Criminal law – Conviction – Whether submissions of counsel for Crown or judge’s comment infringed s 20(3), Evidence Act 2008 – Motive to lie – Whether Palmer direction (Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1) necessary – Whether evidence of representation under s 66(2)(b), Evidence Act 2008 admissible – Application for leave to appeal refused.

Criminal law – Sentence – Sexual offences committed on four occasions when applicant aged a little over 14 and aged 17 – Circumstances of offending evidenced applicant’s immaturity – Long delay between last offending and complaint – Sentence imposed some 16 years following offences – No subsequent offences – Strong evidence of rehabilitation – Appeal upheld – Appellant re-sentenced.

R v Boland [2007] VSCA 242; (2007) 17 VR 300 applied.

Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489 (13 May 2011)

PRACTICE AND PROCEDURE – application by non-party to inspect Form 167 and Form 168 filed pursuant to O 81 rr 5(2) and 7(1) of the Federal Court Rules – whether Form 167 is part of an originating process within O 46 r 6(2)(a) – whether Form 167 or Form 168 is a pleading or particulars of a pleading within O 46 r 6(2)(c)

Held: neither Form 167 nor Form 168 was an originating process, pleading or particulars of a pleading within the meaning of O 46 r 6(2)(a) or (c) – non-party has no right to inspect

PRACTICE AND PROCEDURE – whether leave should be granted to non-party to inspect a Form 167 or Form 168 pursuant to O 46 r 6(4) – no evidence led to support application to inspect – Form 167 and Form 168 filed under compulsion in accordance with O 81 rr 5(2) and 7(1) – implied undertaking as to confidentiality of documents produced by compulsion of Court orders or requirements – settlement agreement between parties to keep the terms of the complaint and attachments to the Form 167 confidential – Form 167 and Form 168 not deployed nor played any part in conduct of the proceedings in open court – principle of open justice not engaged – public interest in settlement of litigation

Held: application to inspect each Form 167 and Form 168 refused

Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470 (13 May 2011)

INDUSTRIAL LAW – whether conduct constituted industrial action in contravention of s 494 of the Workplace Relations Act – whether conduct of union delegates and officials can be taken to be conduct of union – whether authorisation or agreement of the employer under s 420(1)(e) can be given after conduct has occurred – whether applicant made false or misleading statements contravening s 401.

TORTS – whether tort of interference with trade or business a part of common law of Australia – whether tort of inducing breach of contract made out – vicarious liability of employer – nuisance.

CONTRACTS – “four hour rule” – contractual obligations of the employee under contract of employment where the employer cannot discharge its contractual obligation to pay the employee for at least four hours by operation of s 507 of the Workplace Relations Act.

TRADE PRACTICES – secondary boycott – meaning of conduct “in concert” – “dominant purpose”
PRACTICE AND PROCEDURE – role of the court where “gap” exists in legislation – scope of the power to make an order for compensation to remedy the effects of industrial action.

Evidence Act 1995 (Cth) s 140

R v Dunn [2011] ACTSC 84 (12 May 2011)

CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming unfit during trial – accused found unfit – special hearing – accused engaged in conduct required for charged offences.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming unfit during trial – election for trial by judge alone – need for court to indicate whether accused can elect for trial by judge alone – expression of opinion by guardian – need for proper method of expressing opinion.

CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming unfit during trial – accused unfit to plead – special hearing – accused found to have engaged in conduct required for charged offences – disposition – whether other orders available – orders when multiple offences involved.

Evidence Act 1995 (Cth), ss 184, 190

TM v Karapanos and Bakes [2011] ACTSC 74 (12 May 2011)

APPEAL AND NEW TRIAL – appeal – appeal from Children’s Court – principle upon which appeal to be decided.

CRIMINAL LAW – sentencing – sentencing of juveniles – principle of individualised justice – how it is to be considered.

CRIMINAL LAW – sentencing – sentencing of Aboriginal offenders – principles in R v Fernando (1992) 76 A Crim R 58 – development of those principles in Director of Public Prosecutions (Vic) v Terrick (2008) 24 VR 457.

CRIMINAL LAW – sentencing – sentencing of persons with mental disabilities – principles to be applied.

Evidence Act 1995 (Cth), s 4(2)

R v Williams (No 2) [2011] ACTSC 77 (12 May 2011)

CRIMINAL LAW – special hearing – trial by judge alone – accused found to have engaged in the conduct required for the offence.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – orders to be made after special hearing.

Evidence Act 1995 (Cth), ss 184, 190

Secretary to the Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd [2011] VSC 191 (12 May 2011)

ADMINISTRATIVE LAW – VCAT – Leave to appeal on question of law – Whether finding of fact supported by any probative evidence – Whether inferences reasonably open of facts found – Use of expert evidence – Whether basis for opinion proved – Tribunal informing itself as it sees fit – General procedure of VCAT – Section 98 Victorian Civil and Administrative Tribunal Act.

EVIDENCE – OPINION – Whether basis of opinion established – Expert tribunal with informal procedure, not subject to rules of evidence, which may inform itself as it thinks fit.

RESUMPTION AND ACQUISITION OF PROPERTY – Dispute referred to VCAT – Expert opinion evidence of value of business on DCF basis – Whether basis for opinion established – Onus of proof – Causation – Whether extinguishment of business a direct, natural and reasonable consequence of acquisition – Claim of double-counting of trading losses for assessment of disturbance loss – Claim for executive time – Sections 40, 41, 80 Land Acquisition and Compensation Act 1986.

Samenic Limited (formerly Hoyts Cinemas Limited) & Anor v APM Group (Aust) Pty Ltd & Ors [2011] VSC 194 (12 May 2011)

PRACTICE AND PROCEDURE ― Legal advice privilege ― Subpoena for document production ― Fire damage to property under construction ― Claim against construction contractors and managers ― Insured loss ― Insurer’s engagement of fire investigator ― Retention of lawyers for advice ― Production of investigator’s report ― Whether report is privileged from production ― Dominant purpose of bringing report into existence ― Evidence Act 2008 (Vic), (No 47 of 2008), s 118.

Quarrell v The Queen [2011] VSCA 125 (11 May 2011)

CRIMINAL LAW – Applicant convicted of numerous counts of arson and attempted arson – Application for leave to appeal against conviction – Whether judge erred in admitting coincidence evidence and in directing the jury about coincidence evidence – Application for leave to appeal against sentence – Whether sentence manifestly excessive.