http://www.austlii.edu.au/au/cases/cth/FCA/2011/835.html

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.

http://www.austlii.edu.au/au/cases/cth/FCA/2011/804.html

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

http://www.austlii.edu.au/au/cases/cth/FCA/2011/814.html

EVIDENCE – legal professional privilege – privilege claimed over documents produced in response to subpoenas – waiver of privilege

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/754.html

PROCEDURE – subpoena – documents produced – access – legal professional privilege – third party documents – litigation or advice privilege – whether relevant difference

http://www.austlii.edu.au/au/cases/cth/FCA/2011/809.html

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

http://www.austlii.edu.au/au/cases/cth/FCA/2011/808.html

INDUSTRIAL LAW – penalty hearing – admitted contraventions of ss 38 and 43 of the Building and Construction Industry Improvement Act 2005 (Cth) – agreed penalty – relevant considerations in assessing appropriateness of agreed penalty

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/738.html

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

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/157.html

CRIMINAL LAW – section 5F Criminal Appeal Act – appeal against interlocutory judgment made by trial judge – evidence of lies as consciousness of guilt – appeal allowed – evidence admissible as evidence of guilt.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/690.html

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

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/63.html

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)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/760.html

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

http://www.austlii.edu.au/au/cases/cth/FCA/2011/762.html

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

http://www.austlii.edu.au/au/cases/cth/FCA/2011/751.html

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)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/109.html

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.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/689.html

Referral of matters to Regulator – purpose – whether appropriate in the circumstances

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/654.html

TAXES AND DUTIES – Payroll tax – notices under the Taxation Administration Act 1996, s 72 to provide information, to produce documents and to attend and give evidence – whether notices bad on their face – whether notices issued in bad faith

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/578.html

EVIDENCE – opinion evidence – expert opinion – specialised knowledge – whether conclusions of experts based on specialised knowledge – evidence of the ultimate issue – assertion of falsification of accounts – inferences by expert.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/653.html

Common law – personal injury – assessment

http://www.austlii.edu.au/au/cases/cth/FCA/2002/1605.html

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)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/734.html

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.

http://www.austlii.edu.au/au/cases/cth/FCA/2011/725.html

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

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/89.html

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.