Monthly Archives: July 2011

SA E.Med Pty Ltd v Calvary Health Care Adelaide Ltd (No 2) [2011] FCA 835 (27 July 2011)

PRACTICE AND PROCEDURE — Application by respondent for production of documents in respect of which applicant claimed privilege — where applicant claimed rectification of written contract with respondent — where applicant’s state of mind is in issue — where legal advice obtained by applicant was material to applicant’s state of mind — whether applicant had waived privilege

HELD: The applicant was ordered to produce the communications sought in the period leading up to the entry into the contract and at the time of the contract, but not the communications sought during the period after entry into the contract.

Amcor Limited & Ors v Barnes & Ors [2011] VSC 341 (26 July 2011)

EVIDENCE – Client legal privilege – Loss of privilege by the commission of a fraud, an offence or an act that renders a person liable to a civil penalty – Meaning of ‘fraud’ – Whether the client must be knowingly involved in the fraud, offence or act – Meaning of ‘in furtherance of the commission of a fraud … offence … or act’ – Whether the fraud, offence or act must be consummated – Whether the commission of the fraud, offence or act must be a fact in issue – Evidence Act 2008 , ss 125, 131A.

PRACTICE AND PROCEDURE – Inspection by Judge of disputed documents – Evidence Act 2008 , s 133.

PRACTICE AND PROCEDURE – Jurisdiction of a Judge to hear an appeal from an order of an Associate Judge on a question referred to the Associate Judge by another Judge during the trial of a proceeding – Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 77.02(1), 77.07(1).

Australian Competition and Consumer Commission v European City Guide S L [2011] FCA 804 (22 July 2011)

TRADE PRACTICES – misleading and deceptive conduct – forms – where forms sent to businesses and organisations purport to come from an agency of the Australian Government or an agency of the Australian Government requesting business’s or organisation’s details for a register – forms actually offer a paid subscription to listing services to website and CD-Rom of a private Spanish company – whether forms misleading and deceptive – whether ACCC failed to act as a model litigant where there was an obligation to act

Arnautovic & Sutherland t/as Jirsch Sutherland & Co v Cvitanovic (as trustee of the bankrupt estate of Adrian Lawrence Rosee) [2011] FCA 809 (20 July 2011)

APPEAL AND NEW TRIAL – Practice and procedure – whether further evidence should be admitted – matters occurring after trial – principles applicable – whether denial of procedural fairness

BANKRUPTCY AND INSOLVENCY – Bankruptcy Act 1966 (Cth) s 122(1) – equitable charges created by unstamped instruments – whether creditor was a “secured creditor”

TAXATION – Stamp duties – Duties Act 1997 (NSW) ss 211, 304 – whether stamping after execution has retrospective effect

Evidence Act 1995 (Cth) ss 55, 56, 60, 136

K & M Prodanovski Pty Limited v Calliden Insurance Limited [2011] NSWSC 738 (15 July 2011)

Insurance Contracts – Statutory write-off – Section 16B (3) (f) Road Transport (Vehicle Registration) Act 1997 (No 119) – Cl 83C (1) (c) Road Transport (Vehicle Registration) Regulation 2007 – Election – Reasonable time – “Without prejudice” communication – Construction of insurance clause – Hearsay

Newsnet Pty Limited v Patching [2011] NSWSC 690 (8 July 2011)

CORPORATIONS – practice and procedure – statutory demand – application to summarily dismiss plaintiff’s application to set aside statutory demand – whether application to set aside validly served within 21 day period required by s 459G, Corporations Act 2001 (Cth) – an application under s 459G, Corporations Acts 2001 (Cth) to set aside statutory demand and a copy of the supporting affidavit can be served by the documents being serve at the address for service stated in the demand – service at the address for service is effective whether or not the document is received by a person – service by facsimile – service effective on the day the facsimile was received and printed at the office of the address for service

CORPORATIONS – practice and procedure – statutory demand – application to summarily dismiss plaintiff’s application to set aside statutory demand – Graywinter principle – whether supporting affidavits meets minimum requirements of supporting affidavit

CORPORATIONS – practice and procedure – observations on undesirability of a party applying for summary dismissal of an application under s 459G

Sutherland v Woods [2011] NSWSC 13 (3 February 2011)

TRUSTS – Superannuation – Whether express trust established – Whether superannuation fund a complying one for purposes of the Superannuation Industry (Supervision) Act 1993 (Cth) – Indemnification of trustees out of the assets of superannuation fund – Pleadings – Admissions – If admissions, should the Plaintiff be able to withdraw admissions

R v Jacka [2011] ACTSC 63 (14 April 2011)

CRIMINAL LAW – trial by judge alone – identity evidence – considerations to be taken into account – whether “Molotov cocktail” falls within the definition of prohibited weapon under the Prohibited Weapons Act 1996 – definition of “damage property” and “deface the property” under the Criminal Code 2002 – accused guilty on both charges

Evidence Act 1995 (Cth), ss 116, 165(1)(b)

Parmar v Minister for Immigration and Citizenship [2011] FCA 760 (7 July 2011)

IMMIGRATION – Visas – skilled graduate visa – English language test requirements – appeal from Federal Magistrates Court upholding decision to refuse visa – whether regulation defining ‘competent English’ states a sufficient or necessary standard – whether valid – Migration Regulations 1994 (Cth) reg 1.15C

Evidence Act 1995 (Cth) ss 136, 144

United Dairy Power Pty Ltd v Murray Goulburn Co operative Co Ltd [2011] FCA 762 (6 July 2011)

TRADE PRACTICES – Application for interlocutory injunction –Respondent’s employees allegedly made representations that the applicant is in financial difficulty and unable to pay suppliers – Whether serious question to be tried – Whether balance of convenience favours the grant of interlocutory relief

EVIDENCE – Applicant relied on hearsay evidence – Whether double hearsay evidence admissible – Whether evidence should be excluded as unfairly prejudicial – Whether applicant required to prove damage

Evidence Act 1995 (Cth) ss 59, 62(1), 75, 135

Nick Scali Limited v Super A-Mart Pty Ltd [2011] FCA 751 (6 July 2011)

TRADE PRACTICES – consumer protection – comparative advertising – misleading or deceptive conduct – false representations – television commercial – point of sale material – relevant approach discussed – whether price-compared products represented to be of the same or equivalent standard, quality, grade or composition – oral representations – whether products represented to be the same or to have come from same factory or place – sufficiency of evidence – whether certification of product misrepresented

Evidence Act 1995 (Cth) s 140(2)

R v Mills [2011] ACTSC 109 (1 July 2011)

CRIMINAL LAW – trafficking in a controlled drug – possession – application for a permanent stay of proceedings – unreasonable delay – section 22(1)(c) of the Human Rights Act 2004 (ACT ) – delay of more than four years – lack of communication with prosecution – lack of resources – institutional delay – no right not to be tried following undue delay – determination of appropriate remedy – balancing exercise of prejudice to accused against societal interest in prosecuting offenders – permanent stay granted.

Perry & Anor v Powercor Australia Limited [2011] VSC 308 (4 July 2011)

PRACTICE AND PROCEDURE – Application for inspection of discovered reports on cause of fire at Coleraine on Black Saturday – Defendant’s solicitor informed that fire allegedly caused by defendant’s power line – Solicitor anticipated litigation against defendant – Solicitor consults CEO of defendant and instructed to carry out investigation – Solicitor seeks reports on cause of fire allegedly caused by defendant’s power line – Solicitor says purpose of reports was to give legal advice to defendant – defendant needed information in reports for a range of purposes – Duty of defendant to report defendant’s part in cause of fire to Energy Safe Victoria under the Electricity Safety Act 1998 – Duty of officers of defendant to act with reasonable degree of care and diligence under s 180 Corporations Act 2001 to ascertain defendant’s part in cause of fire – Failure of defendant to prove dominant purpose was covered by legal advice or legal litigation privilege – Inspection ordered – Section 180 Corporations Act 2001; Electricity Safety Act 1998; and ss 119 and 120 Evidence Act 2008 .

Australian Competition & Consumer Commission v Black on White [ 2002] FCA 1605 (20 December 2002)

COSTS – discretion conferred upon Court by subs 43(2) Federal Court of Australia Act 1976 (Cth) is absolute and unfettered but must be exercised judicially, not arbitrarily or capriciously or upon grounds unconnected with litigation – Court must consider particular facts of the case before it – ordinary rule is that costs follow the event and a successful party will receive his/her costs in the absence of special circumstances justifying some other order – offer to settle – in assessing utility of offer, Court must consider whether offer is constructed in such a way as to constitute a reasonable basis for compromising or settling a proceeding and whether offer is genuine

PRACTICE & PROCEDURE – Court can consider evidence of settlement negotiations where relevant to determining liability for costs – reference to parties in O 23 r 2 Federal Court Rules is a reference to the parties to the litigation, not to the persons on whose behalf the proceedings were instituted

TRADE PRACTICES -proceedings initiated by Australian Competition and Consumer Commission for compensation for loss and damage to named third parties successful

Evidence Act 1995 (Cth), s 131(2)(h)

Crossman v Taylor (No 3) [2011] FCA 734 (29 June 2011)

TRADE PRACTICES — Action for misleading or deceptive conduct in contravention of s 56 of the Fair Trading Act 1987 (SA) (‘the Act’) — where plaintiff and first defendant formed second defendant company for purpose of acquisition and operation of marina business — where plaintiff and first defendant in personal relationship —where first defendant said to have made oral representations which induced plaintiff to enter into the venture including representation that both parties would contribute equally to funding of business — where plaintiff made substantially greater financial contribution to the company — where plaintiff seeks damages or compensation pursuant to ss 84 and 85 of the Act — whether representations were in trade or commerce — whether representations were representations as to future matters for purpose of s 54 of the Act — whether plaintiff entitled to recover all of her contributions

CORPORATIONS —claim by plaintiff for equalisation of contributions made to company under s 233 of the Corporations Act 2001 (Cth) on basis of first defendant’s oppressive conduct under s 232 — where plaintiff said failure to make equal contributions was oppressive conduct — whether failure to meet a pre-incorporation understanding between incorporators of company is in conduct of a company’s affairs for purpose of s 232 — whether even if failure to make contributions was in conduct of a company’s affairs an order for equalisation of contributions would be appropriate under s 233 — where other forms of oppressive conduct might be made out but would not lead to relief sought

EQUITY — where plaintiff alleged existence of fiduciary relationship between plaintiff and first defendant because of proposed joint venture — no fiduciary relationship between incorporators of company

HELD: The defendant had engaged in misleading and deceptive conduct contrary to s 56 of the Act and the plaintiff was entitled to damages in the amount of all of her contributions to the company with interest. The plaintiff did not succeed in the oppressive conduct case or the fiduciary duty case.

Management 3 Group Pty Ltd (in liq) v Lenny’s Commercial Kitchens Pty Ltd (No 3) [2011] FCA 725 (28 June 2011)

COSTS – Settlement offer – Deadline for acceptance one day before commencement of trial – Offer included releases of other actual or potential claims extraneous to present proceeding – Whether Calderbank letter – Whether unreasonable for applicants to reject offer – Whether party-party or indemnity costs – Whether security should be released

Associated Retailers Limited v Toys Unlimited Pty Ltd & Ors [2011] VSC 297 (28 June 2011)

REAL ESTATE – Mortgage – Third party liabilities – Terms of mortgage.

TRADE PRACTICES ACT – Misleading and deceptive conduct – Representation as to a future matter – Representation that liability under a mortgage would be limited in time and in amount – Unconscionable conduct – Trade Practices Act 1974 (Cth), ss 51AA, 51A, 52, 53(g).

ESTOPPEL – Representation that liability under a mortgage would be limited in time.

TERMS OF SETTLEMENT – Payment accepted in full and final settlement of liabilities of primary debtor and co-guarantors – Whether had the effect of discharging the liability of a guarantor who was not a party to the settlement.

LEGAL PRACTITIONERS – Whether negligent in drafting terms of settlement.

M L v The Queen [2011] VSCA 193 (23 June 2011)

CRIMINAL LAW – Interlocutory appeal – Application for review of a refusal by the trial judge to certify – Whether prosecution entitled to cross examine the applicant on statements made to Department of Human Services officers – Whether ss 85 and 86 of the Evidence Act 2008 applied – Whether statements made were ‘admissions’ – Criminal Procedure Act 2009, ss 295(3), 296(4)(a) and 297 – Whether evidence given under cross-examination would, if ruled inadmissible, eliminate or substantially weaken the prosecution case – Application refused.

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 6) [2011] VSC 294 (22 June 2011)

PRACTICE AND PROCEDURE – Application by a party to examine a witness in the same interest in a joint trial by asking non-leading questions – Application granted in the interest of justice – Cross-Examination of a witness in the same interest considered and compared – Value of such cross-examination considered – Control of examination by the Court considered – Directions given as to procedure to be followed – Sections 11(1), 26, 27, 28 and 42 Evidence Act 2008 – Part 2.3, s.25, 47 and 49 Civil Procedure Act 2010.

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 5) [2011] VSC 295 (21 June 2011)

EVIDENCE – Business Records – Whether solicitor’s file (or part thereof) admissible as a business record – Inter office memorandum – Internal file note – s.69 Evidence Act 2008 – Inspection of document under s. 133 Evidence Act 2008 – Refusal to admit document into evidence because it is confusing – s. 135 Evidence Act applied.

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 3) [2011] VSC 272 (2 June 2011)

EVIDENCE– Distinction between opinion evidence and factual evidence – Admissibility of expert evidence of facts – Expert with experience in computer forensic analysis assisted in data retrieval – Whether an expert opinion — Document in question (computer data) not available – ss.48(4), 76 and 79 Evidence Act 2008 ;

PRACTICE AND PROCEDURE — Case management – Civil Procedure Act 2010 – Case management orders made pursuant to s 47(1) – Balance between case management requirements and the necessity to ensure a fair trial – Rule 44 Supreme Court (General Civil Procedure) Rules 2005 – Whether applicable to expert statement where facts stated but where no opinion expressed.

Crowley v Commonwealth of Australia, Australian Capital Territory and Pitkethly [2011] ACTSC 89 (27 May 2011)

TORTS – negligence – circumstances in which police may owe a duty of care – extent of police “immunity” in respect of investigations and suppression of crime – taking control of situation may constitute assuming a duty of care – coherence.

TORTS – negligence – relationship between common law doctor-patient duty of care and statutory power to compulsorily detain mentally dysfunctional or mentally ill person – common law duty of care may be associated with existence of statutory power to compulsorily detain.

R v Fairbairn [2011] ACTSC 78 (19 May 2011)

CRIMINAL LAW – trial by judge alone – charge of trafficking in a controlled drug other than cannabis – accused is guilty.
EVIDENCE – admissibility and relevancy – hearsay – whether records of telephone calls inadmissible as hearsay – admissible as admissions of accused – other party’s conversation not admitted for truth of representation.
EVIDENCE – admissibility and relevancy – tendency evidence – no notice given in time – whether prosecution should be permitted to rely on evidence – substance given well before trial – evidence admitted.
EVIDENCE – admissibility and relevancy – tendency evidence – whether of significant probative value – whether significant probative value outweighs unfair prejudice – evidence admissible.
CRIMINAL LAW – evidence – res gestae – whether doctrine survives enactment of Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth), ss 59, 66, 67, 97, 100, 101, 137, Pt 3.4