PRACTICE AND PROCEDURE – Legal advice privilege – Litigation privilege – Joint legal privilege – No joint advice or legal privilege found – Definition of ‘Australia or overseas proceeding’ and ‘Australian Court’ under the Evidence Act 2008 (Vic) – Krok v Szaintop Homes Pty Ltd (No 1)  VSC 16 – Evidence Act 2008 (Vic) ss 118, 119 .
EVIDENCE – rulings on admissibility of evidence in advance of hearing
Evidence Act 1995 (Cth) s 136
Professions and Trades – Lawyers – Duties and liabilities – Counsel and Client – Other matters – When a barrister may be restrained from continuing to act against a party – Court’s inherent jurisdiction.
Criminal Law – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Whether the circumstances in which the admission was made made it unlikely that the truth of the admission was adversely affected – Whether improper inducements by police officers – Whether person interviewed was vulnerable to making false admissions.
Evidence Act 2001 (Tas), s85(2).
TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where provider of internet search engine published advertisements in the form of “sponsored links” displayed on search results page in response to search queries – whether provider of internet search engine engaged in conduct that was misleading or deceptive or likely to mislead or deceive by failing to adequately distinguish between advertisements and organic search results – consideration of expression “sponsored link” – whether provider of internet search engine made implied representations that sponsored links were not advertisements – whether provider of internet search engine made implied representations that sponsored links were organic search results – whether provider of internet search engine made implied representations that position of sponsored links on search results page was the result of their relative relevance to search queries as determined by the search engine – consideration of layout of search results page – consideration of relevant class of consumer – consideration of impact on ordinary and reasonable members of relevant class of consumer
TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where advertisers sought to promote their goods or services by means of sponsored links on search results pages – where headline of sponsored link replicated third party’s business name, trade mark or website address – whether advertiser made implied representations of association or affiliation – consideration of relevant class of consumer – consideration of impact of sponsored links on ordinary and reasonable members of relevant class of consumer – whether representations conveyed were misleading or deceptive or likely to mislead or deceive – whether search engine provider also made implied representations of association or affiliation by publishing sponsored links or by adopting or endorsing representations conveyed – significance of “keyword insertion” when used to generate headline which replicated terms of search query
TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where provider of internet search engine published advertisements in the form of “sponsored links” displayed on search results pages in response to search queries – where sponsored links conveyed misleading and deceptive representations – whether search engine provider had a defence under s 85(3) of the Trade Practices Act 1974 (Cth) (the Act) – whether advertisements in the form of sponsored links were advertisements received by the search engine provider in the ordinary course of business – whether search engine provider knew or had reason to suspect that publication of advertisement would amount to contravention of s 52 of the Act – whether search engine provider could discharge onus of proof without showing that it took reasonable precautions or exercised reasonable diligence to avoid such contravention
Evidence Act 1995 (Cth) ss 81, 88 and 135
BUILDING AND CONSTRUCTION – s 177 Conveyancing Act 1919 – “duty of care not to do anything on or in relation to land…” – whether developer’s decision to use particular support system was “doing something” in relation to land – whether developer’s decision to use particular support system was something that “removed the support provided by the supporting land” – whether developer’s decision to use particular support system was made without exercising reasonable care – relevance of departure from construction certificate
BUILDING AND CONSTRUCTION – s 109ZJ Environment Planning and Assessment Act 1979 – whether party was a “contributing party” – effect of agreement of all parties that it would not be alleged that, had a person been a party to the action, that person would have been a contributing party
NEGLIGENCE – causation – s 5D Civil Liability Act 2002 – whether failure to warn or advise can only be causative of loss if a warning or notification, if given, would have been acted upon in a way that prevented the loss – whether it is appropriate to attribute liability to someone who puts in place the preconditions that enable another person’s negligence to become effective – discussion of the principles governing causation under s 5D
AGENCY – whether one party contracted with another as agent for a third party, or whether that party separately contracted with the other in performance of contractual obligations to the third party
APPEAL – interference with judge’s finding of fact – Jones v Dunkel inference – enables tribunal of fact to infer that the evidence of an absent witness, if called, would not have assisted the party who failed to call that witness – missing witness must have been expected to have been called by one party rather than other – inference not available where disputed issue is whether missing witness was agent for the party and no other reason to believe missing witness was in camp of that party
CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – discussion of for what proposition County Securities Pty Ltd v Challenger Group Holdings Pty Ltd  NSWCA 193 is authority – majority reasons do not have as their ratio any proposition about the availability of post-contractual conduct for the purpose of finding the terms of an agreement that is wholly or partly oral
CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – post-contractual conduct can be used for the purpose of finding the terms of an agreement that is wholly or partly oral when that conduct is an admission – Tomko v Palasty  NSWCA 258 – circumstances in which being an admission would not permit post-contractual conduct to be used to find terms of a wholly or partly oral contract
CONTRACTS – construction and interpretation – that a particular person is party to a contract is a matter of mixed fact and law – whether a party to litigation can make an admission concerning a matter of mixed fact and law – whether admission made by person other than party to the litigation can be admitted against that party – effect of the introduction of the Evidence Act 1995 to the pre-existing common law principles concerning admissibility of admissions for post-contractual conduct
CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – post-contractual conduct can be used for the purpose of ascertaining the terms or the subject matter of an agreement that is wholly or partly oral regardless of whether the post-contractual conduct is an admission.
151. The trial judge cannot have been using the word “admission” in the sense it has in the Evidence Act . This is for three reasons.
152. First, the Dictionary to the Evidence Act provides:
” admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person’s interest in the outcome of the proceeding.
previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.”
Because Mr Browne’s answers to questions in cross-examination were given in the proceedings, they were not “previous representations” and therefore cannot be “admissions” for the purposes of the Evidence Act .
ADMINISTRATIVE LAW – judicial review – procedural fairness – reasonably opportunity to be heard -a failure to be notified of proceedings – whether statutory scheme deems notice to have been given – Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 25(2), Consumer, Trader and Tenancy Tribunal Regulations 2009 (NSW), cl 50(2)
STATUTORY INTERPRETATION – effect of regulation providing means of service – inconsistency between provisions – which provisions prevails – reading which permits an opportunity for party to be heard preferred over a reading which denies such an opportunity – Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 78(4);
Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW), cl 50; Interpretation Act 1987 (NSW), ss 5, 76
TENANCY LAW – statutory grounds for termination of leave – Residential Tenancies Act (NSW), s 64
93. As this Court has noted in the past, there is a link between illogicality and the “no evidence” principle: see Amaba Pty Ltd v Booth  NSWCA 344 at :
“Implicit in the statement that there is no evidence to ‘support’ a particular finding, is the characterisation of a relationship between the evidence and the finding. It is the same relationship inherent in the concept of “relevance”, on which the laws of evidence depend. That relationship depends on a process of reasoning which must be logical or rational. Thus, evidence is relevant which, if accepted, ‘could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding': Evidence Act 1995 (NSW), s 55(1). As explained by Gleeson CJ, Heydon and Crennan JJ in Washer v Western Australia  HCA 48; 234 CLR 492 at :
‘The word ‘rationally’ is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial.'”
PRACTICE AND PROCEDURE – privilege – whether common law or Evidence Act 1995 applies – s 131A, Evidence Act – Evidence Act and not the common law applies where the objection to inspection taken by person required to produce documents on subpoena or notice to produce – s 131A, Evidence Act only applies where person objecting to disclosure on ground of privilege is same person required to produce document
PRACTICE AND PROCEDURE – privilege – waiver – no question of principle
INTELLECTUAL PROPERTY – consideration of an appeal under s 56 of the Trade Marks Act 1995 (Cth) from a decision of the Registrar’s delegate in opposition proceedings – consideration of a cross-appeal – consideration of grounds advanced under ss 43, 44 and 60 of the Trade Marks Act 1995 (Cth) – consideration of whether the trade marks LUCKY DREAM and LUCKY DRAW are deceptively similar to registered trade marks LUCKY STRIKE and LUCKIES – consideration of the principles to be applied in determining deceptive similarity – consideration of the principles to be applied in determining the standard of proof to be discharged by the opponent in discharging the opponent’s onus of proof
TRADE MARKS – consideration of an appeal under s 56 of the Trade Marks Act 1995 (Cth) from a decision of the Registrar’s delegate in opposition proceedings – consideration of a cross-appeal – consideration of grounds advanced under ss 43, 44 and 60 of the Trade Marks Act 1995 (Cth) – consideration of whether the trade marks LUCKY DREAM and LUCKY DRAW are deceptively similar to registered trade marks LUCKY STRIKE and LUCKIES – consideration of the principles to be applied in determining deceptive similarity – consideration of the principles to be applied in determining the standard of proof to be discharged by the opponent in discharging the opponent’s onus of proof
Evidence Act 1995 (Cth), ss 76 and 79
Leave is granted to the Crown under s 38 Evidence Act 1995 to cross-examine Witness E on the ERISP.
CRIMINAL LAW – unfavourable witness – application by Crown to cross-examine Crown witness on ERISP – matters considered in granting leave.
LEGAL PRACTITIONERS – Application to appoint a receiver to a law practice – Deficiencies in trust account – Practitioner unable to remedy deficiencies – Receiver appointed – Legal Profession Act 2004 (Vic) Part 3.3 and Chapter 5.
EVIDENCE – Rejection of evidence – Late service of evidence – Relevance to pleaded issue – Prejudice
CRIMINAL APPEAL – Section 5F Criminal Appeal Act 1912 – charge of murder – dismissal of application that evidence be excluded – and that proceedings be stayed – no right of appeal against ruling on evidence – should not be permitted to contest ruling in relation to appeal against refusal of stay – no arguable case of error in refusing stay – leave to appeal refused.
PRACTICE AND PROCEDURE – Privilege – application for inspection of documents over which claim for privilege was made – purpose of communications
Evidence Act 1995 (Cth) s 119
PRACTICE AND PROCEDURE – Privilege – application for production of documents disclosed on discovery over which claim for legal professional privilege made – confidentiality – dominant purpose for which documents created
Australian Securities and Investments Commission Act 2001 (Cth) s 127
Evidence Act 1995 (Cth) ss 117, 118, 119, 131A
Evidence Act 1995 (NSW) ss 117, 118, 119, 131A
Evidence Act 2008 (VIC)
Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth)
Evidence Amendment Act 2007 (NSW)
PRACTICE AND PROCEDURE – Waiver of client legal privilege – Whether client legal privilege is waived by the disclosure in pleadings of the substance of the evidence or of a document – Mann v Carnell  HCA 66; (1999) 201 CLR 1 – Civil Procedure Act 2010 (Vic) s 26 – Evidence Act 2008 (Vic) s 122.
Admissibility of evidence
Truth/Falsehood of Allegation
Signficiant probative value
Evidence Act 1995 (NSW) ss 55, 56, 97 and 135
CRIMINAL LAW – Appeal – Murder – Provocation – Whether judge’s direction sufficient – Application refused.
EVIDENCE – Corroboration – Whether evidence capable of corroborating – Whether necessary that corroborative evidence itself establish commission of offence and accused’s involvement.
EVIDENCE – Criminal trial – Crown witness – Evidence in chief retracted in cross-examination – Whether hostile witness – Whether dangerous witness – Whether judge’s warning about unreliability sufficient – Whether trial judge followed procedure in R v Thynne  VicRp 10;  VR 98 – Whether trial unfair.
[Client Legal Privilege] – Motion for access to documentsproduced on subpoena – Objection to access on ground that documents consisting of pleadings, affidavits and particulars filed and served in other proceedings are privileged and were filed and served under compulsion of law (s.122 (2) (c) – Claim that pleadings and/or affidavits are not privileged so that s122 (2) (c) does not apply – Alternative application for access pursuant to Part 65 rule 7 and Practice Note 97.
8 The foregoing general positions of, respectively, the Crown and the accused having been established, application was made for a series of hearings on the voir dire to the end of testing the admissibility in the Crown case at trial of various pieces of evidence. Voir dire hearings were granted accordingly, and all of them were dealt with by way of documentary evidence. In all, sixteen separate such hearings were conducted. Eleven of those hearings concerned evidence which the Crown seeks to have admitted as tendency evidence; a further four hearings concerned hearsay evidence which the Crown seeks to have admitted as relationship evidence; and one hearing concerned admissions made by the accused to investigating police.
INTELLECTUAL PROPERTY – copyright – infringement – parallel importation – knowingly concerned in possession of copyright material – subsistence of copyright – ownership of copyright – relevance of Universal Copyright Convention symbol and claim to copyright on packaging in establishing ownership of copyright – whether ownership by legal entity – whether limited partnership constitutes legal entity – assignment of ownership of copyright – exclusive licence for distribution of copyright material – whether possession of copyright material by company or by directors of company personally – where copyright material cinematograph films stored in laser video disc format – where copyright owner resident of United States of America and Canada
Evidence Act 1995 (Cth) ss 70 and 171
PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Client legal privilege – Whether documents privileged – Dominant purpose for creation of documents – Whether two directors of company each equally entitled to maintain claims for privilege on behalf of company – Director defending claims on behalf of company entitled to maintain claims for privilege on behalf of company – Where retainer of solicitor by company invalid because director who retained services of solicitor on behalf of company acted ultra vires – Whetherbelief that retainer exists sufficient to support privilege – Privilege available where client bona fide believed on reasonable grounds that the solicitor was retained as its solicitor – Held that director with authority to defend proceedings on behalf of company entitled to maintain claim for privilege, on behalf of company, over certain communications with solicitor which were created when company believed retainer existed.CORPORATIONS – Orders previously made for inspection of documents by a director – Supplemental orders made for purpose of making more efficacious the principal orders.
Mr Ellicott objects to the last sentence of par 19 and the whole of par 20. The provisions of the Evidence Act 1995 (Cth) (“Evidence Act”) relevant to the objection are ss 55(1), 56, 76, 78 and 135:
Objection by de facto wife of accused to giving evidence as a witness for the Crown
CRIMINAL LAW – Conviction – Sexual penetration of a child aged 16 or 17 under appellant’s care, supervision or authority (Counts 1, 2 and 5 against niece) – Indecent act with child under 16 (Counts 3 and 4 against daughter) – Niece gave evidence of uncharged acts – Relevant to context – No objection by defence counsel who wanted evidence admitted to use in cross-examination of niece – Whether evidence received as tendency evidence – Whether judge required to direct jury of need to be satisfied beyond reasonable doubt of uncharged acts alleged by niece before relying on such acts in relation to counts 1, 2 and 5 – R v Sadler  VSCA 198; (2008) 20 VR 69 considered – Direction not required in the circumstances – Whether judge failed to tell jury it could not use niece’s evidence of uncharged acts in relation to counts 3 and 4 – Appeal dismissed.
3 The trial was relevantly governed by the provisions of the Evidence Act 2008 (‘the Act’). In point were ss 97, 100 and 101 of that Act, not s 398A of the Crimes Act 1958.
PRACTICE AND PROCEDURE – Privilege – application for inspection of documents over which claim for privilege was made – purpose of communications
Evidence Act 1995 (Cth) s 119
EVIDENCE – expert opinion evidence – forensic accountant’s report on financial position and board reporting in complex corporate group – whether report, as a whole, admissible under s 79 as opinion evidence wholly or substantially based on specialised knowledge – whether report should be excluded on discretionary grounds under s 135 – applicability of Makita principles to an accountant’s report – whether expert’s prior relationship with litigant, involving access to additional information and formation of opinions for another purpose, rendered expert’s evidence tendered by that litigant inadmissible under s 79 or open to exclusion under s 135 – whether lack of independence rendered expert opinion evidence inadmissible or open to exclusion
Evidence Act 1995 (NSW), ss 55, 56, 60, 76, 79, 135, 137
Discovery of documents – Objection to production – Legal professional privilege – Salaried employee lawyer – Privilege available – Independence of lawyer – Whether necessary – Onus – Proof – Acting independently
33 The substantial body of dicta leads me to the conclusion that it is the common law in Australia that legal professional privilege can exist in respect of communications made between an employer in the private sector and his employee legal adviser.
34 That view of the law was accepted in Ritz Hotel v. Charles of The Ritz (No. 4) supra and Deputy Federal Commissioner of Taxation v. Citibank Limited (1988) 88 ATC 4941.
35 See Cross on Evidence, 5th Australian Ed. paragraph 25245 and Laws of Australia, Vol. 16 at pp.26 and 27. In addition, the legal privilege enacted by the Commonwealth Evidence Act 1995 extends to confidential communications between private sector lawyer and his employer – see definition of “client” in s.117(a) of the Act.
36 In my opinion, legal professional privilege applies in respect of a confidential communication between a private sector employer and its employee legal practitioner if it is established that the communication –
(i) arises as a result of the employer consulting the employee in a professional capacity;
(ii) is in relation to a professional matter;
(iii) is made in confidence;
(iv) arises from the relationship lawyer and client,
see Dawson J in Kearney’s case, supra at pp.530-1 quoted by Mason and Wilson JJ in Waterford’s case, supra at p.61.
(v) satisfies one of the tests laid down in Grant v. Downes.
37 But in addition to these five elements there appears to be a sixth requirement and that is the element of independence. It is likely this is an aspect of the first element, namely, professional capacity but it is convenient to consider it as a separate element.
Appeal against conviction – tendency evidence – requirement to give notice –
Reg 6, Evidence Regulations 1995 – nature of requirement – whether reference to extrinsic documents permissible
13 It is common ground, on the basis of that evidence, that there is a public interest in preserving secrecy and confidentiality in relation to the information contained in the affidavit and in documents exhibited to the affidavit, which the Commission will also seek to tender on the basis that the orders proposed relate to it as well. The first applicant opposes the reading of the affidavit and the tender of the documents on the basis that they are subject to public interest immunity, which it is not open to the Commission to or anyone else to waive. Specifically, the first applicant refers to s 130 of the Evidence Act 1995 (Cth), which provides that if the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the Court may direct that the information or document not be adduced as evidence.
EVIDENCE — character evidence in civil proceedings — whether evidence relevant — whether evidence admissible as opinion evidence — whether evidence admissible under tendency rule — whether evidence should be excluded on discretionary grounds
(CTH) Evidence Act 1995 (NSW & Cth) ss 55, 56, 76, 78, 79, 97, 135
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)
PROCEDURE – interlocutory issues – discovery – destruction of documents (mobile phones) containing relevant material in defiance of known orders for discovery – failure to comply with directions of the Court – abuse of process – power to strike out or limit plaintiff’s claim – whether proportionate response – Civil Procedure Act 2005 (NSW), ss 56-61.
APPEAL – discretionary orders – re-exercise of discretion.
PROCEDURE – discovery – form of discovery – UCPR, Pt 21 provides the framework for discovery – no provision in UCPR for order for general discovery.
31. It is to be noted that the mobile phones were all “documents” within the definition of the Interpretation Act 1987 (NSW), s 21 (which is the same as the relevant definition in the Dictionary to the Evidence Act 1995 (NSW)). The two iphones, however, were “excluded documents” for the purposes of the discovery provisions of the UCPR, Pt 21.
Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Appellant convicted of trafficking in methylamphetamine contrary to s 71AC of Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“Drugs Act”) – Trafficking in methylamphetamine an indictable offence under s 302.4 of Criminal Code (Cth) – Commonwealth offence prescribed lower maximum penalty than State offence and different sentencing regime – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency.
Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Functions conferred on State courts by State law – Compatibility with role of State courts under Ch III – Section 32(1) of Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”) provided “[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights” – Section 36(2) of Charter empowered Supreme Court of Victoria to make declaration that statutory provision cannot be interpreted consistently with a human right – Declaration had no effect upon validity of provision or legal rights of any person – Nature of task required by s 32(1) of Charter – Whether s 32(1) reflection of principle of legality – Whether s 32(1) invalid for incompatibility with institutional integrity of Supreme Court – Whether s 36 confers judicial function or function incidental to exercise of judicial power – Whether s 36 invalid for incompatibility with institutional integrity of Supreme Court.
Constitutional law (Cth) – High Court – Appellate jurisdiction – Whether declaration made under s 36 of Charter subject to appellate jurisdiction of High Court conferred by s 73 of Constitution.
Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Appellant resident of Queensland at time presentment filed for offence under Drugs Act – Whether County Court and Court of Appeal exercising federal jurisdiction – Operation of s 79 of Judiciary Act 1903 (Cth) in respect of Charter and Drugs Act.
Criminal law – Particular offences – Drug offences – Trafficking – Possession for sale or supply – Section 5 of Drugs Act provided that any substance shall be deemed to be in possession of a person so long as it is upon any land or premises occupied by him, unless person satisfies court to the contrary – Section 70(1) of Drugs Act defined “traffick” to include “have in possession for sale” – Section 73(2) of Drugs Act provided that unauthorised possession of traffickable quantity of drug of dependence by a person is prima facie evidence of trafficking
by that person – Whether s 5 applicable to offence under s 71AC on basis of “possession for sale” – Whether s 5 applicable to s 73(2) – Whether onus on prosecution to prove appellant had knowledge of presence of drugs – Whether onus on appellant to prove not in possession of drugs.
Statutes – Validity – Severance – Section 33 of Charter provided for referral to Supreme Court of questions of law relating to application of Charter or interpretation of statutory provisions in accordance with Charter – Section 37 of Charter required Minister administering statutory provision in respect of which declaration made under s 36(2) to prepare written response and cause copies of declaration and response to be laid before Parliament and published in Government Gazette – Whether, if s 36 of Charter invalid, ss 33 and 37, and balance of Charter, severable from s 36.
Statutes – Interpretation – Section 7(2) of Charter provided that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society – Whether s 7(2) relevant to interpretive process under s 32(1) – Whether s 5 of Drugs Act to be construed to impose evidential rather than legal onus on appellant.
Procedure – Costs – Criminal appeal – Departing from general rule for costs where appeal raised significant issues of constitutional law – Whether appellant entitled to special costs order.
Words and phrases – “declaration”, “diversity jurisdiction”, “evidential onus”, “incompatibility”, “institutional integrity”, “interpret”, “legal onus”, “legislative intention”, “matter”, “possession”, “possession for sale”, “resident of a State”, “right to be presumed innocent”.
Constitution, Ch III, ss 73, 75(iv), 77(iii), 109.
Commonwealth of Australia Constitution Act 1900 (Imp), s 5.
Crimes Act 1914 (Cth), s 4C(2).
Criminal Code (Cth), ss 13.1, 13.2, 300.4, 302.4, 302.5.
Judiciary Act 1903 (Cth), ss 39(2), 79.
Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 25(1), 32, 33, 36, 37.
Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 5, 70(1), 71AC, 73(2).
Interpretation of Legislation Act 1984 (Vic), s 6(1).
per CRENNAN AND KIEFEL JJ.
511. Section 5 of the Drugs Act denies the operation of the common law rule that the prosecution prove the guilt of an accused person by proof, beyond reasonable doubt, of both negative and positive elements of an offence. The rule reflects the common law concept of the presumption of a person’s innocence.
512. The principle of legality at common law would require that a statutory provision affecting the presumption of innocence be construed, so far as the language of the provision allows, to minimise or avoid the displacement of the presumption. But, for the reasons which follow, its application to s 5 cannot yield a construction other than that required by the clear language of that section, which places the legal burden of proof on the accused.
 Referred to as the “golden thread”: see Woolmington v The Director of Public Prosecutions  UKHL 1;  AC 462 at 481 per Viscount Sankey LC; and see Phipson on Evidence, 17th ed (2010) at 154 [6-09]. The rule is now embodied in s 141 of the Evidence Act 2008 (Vic) albeit, by s 8 of that Act, it does not affect the operation of any other Act.
APPEAL FROM LOCAL COURT – application for evidence of admissions to be excluded – admissions not tape recorded – whether s 281 of the Criminal Procedure Act only applies to offences being dealt with on indictment – whether s 281 of the Criminal Procedure Act has application to proceedings conducted in accordance with ss 26-31 of the Children (Criminal Proceedings) Act – discretion to admit evidence under ss 85 and 86 of the Evidence Act
CRIMINAL LAW – Murder – Admissibility of confession made to police covertly engaged in ‘scenario’ investigation – Whether admission of ‘scenario evidence’ unfairly prejudicial to accused – Whether probative value outweighed by danger of unfair prejudice – Whether evidence improperly obtained – Evidence admitted – Evidence Act 2008 ss 90, 135, 137, 138
PRACTICE AND PROCEDURE – Preliminary discovery – Whether sufficient information to enable plaintiff to decide whether to commence proceedings – Whether reasonable grounds to believe that plaintiff may have right to obtain relief against defendant – Where relevant document that the plaintiff would inspect is privileged from inspection under the principles of state interest immunity – Discretionary considerations – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 32.05.
EVIDENCE – State interest immunity – Document prepared for and considered by committee of Cabinet – Business case for major State project – Whether document disclosing, or enabling to be ascertained, the existence or identity of confidential information relating to the administration of a law of a State, or disclosure which may prejudice the proper functioning of the government – Evidence Act 2008 (Vic) ss 130, 131A.
NEGLIGENCE – Duty of care – Economic loss – Landslip upon an inherently fragile escarpment owned by a third party contiguous with the plaintiffs’ land – Failure of the remediation of that landslip by defendant – No physical damage to the plaintiffs’ land – Whether there was economic loss – Expenditure by plaintiffs on engineered stabilisation of the escarpment – Whether risk of future damage to plaintiffs’ land not insignificant –Whether expenditure to avoid prospective damage recoverable loss – Nature of the harm suffered – Factors relevant to determination of duty – Causation – Whether conduct of defendant a cause of claimed loss – Factors relevant to determination of cause – Whether prospective expenditure caused by conduct of defendant or naturally occurring conditions – Factors relevant to determination of breach – Whether defendant shown to have breached any duty owed – Whether defendant a concurrent wrongdoer – Whether Shire council caused the loss claimed by the plaintiffs – Wrongs Act 1958 (Vic) ss 24AH, 24AI, 43, 48, 49, 51, 52, 83.
EVIDENCE – Expert opinion – Failure to comply with concurrent evidence directions – Application of overarching obligations – Civil Procedure Act 2010 (Vic) ss 7, 9, 10 – Expert Code of Conduct – Supreme Court (General Civil Procedure) Rules 2005 r 44.06.
EVIDENCE – Expert opinion – Basis rule – Whether opinions expressed from specialised knowledge – Evidence Act 2008 (Vic) ss 76, 79.
WORDS AND PHRASES – ‘harm’ – ‘insignificant risk’ – Wrongs Act 1958 (Vic) ss 43, 48.
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 – Appeal allowed in part – Evidence Act 2008 (Vic) ss 97, 101.
CRIMINAL LAW – Appeal – Interlocutory appeal – Tendency evidence – Ruling on admissibility – Nature of appellate review on interlocutory appeal.
The record of the proceedings of the Children’s Court at Nowra against the Plaintiff on 3 February 2011 be removed into this Court.
Pursuant to s.69 Supreme Court Act 1970 , an order is made quashing the decision of the Children’s Court at Nowra to the effect that, because of the operation of s.19 Evidence Act 1995 , s.18 Evidence Act 1995 did not apply to the application by the Plaintiff’s mother to be excused from giving evidence against the Plaintiff in those proceedings.
The proceedings are remitted to the Children’s Court at Nowra to be dealt with according to law and consistent with the judgment of this Court.
No order is made as to the costs of these proceedings.
A recommendation is made that a copy of this judgment be provided to the Attorney General for New South Wales for the purpose of consideration being given to amendment of s.19 Evidence Act 1995 .
CRIMINAL LAW – claim for prerogative relief – summary prosecution in Children’s Court – prosecution to call mother of defendant to give evidence – mother objects under s.18 Evidence Act 1995 – ruling that objection not available because of s.19 Evidence Act 1995 – construction of s.19 Evidence Act 1995 – error established – relief granted – recommendation for review of terms of s.19 Evidence Act 1995
42 The second reason is more complicated. Until recently, in applications for judicial advice or directions by the Court required to be brought under a legislative provision, Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar; the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand  NSWCA 160; (2006) 66 NSWLR 112 was authority for the following principles:
Legal professional privilege is a rule of substantive law and cannot be abrogated by the principles of natural justice in a statutory proceeding for judicial advice or directions, absent express or implied abrogation by statute or the rules of the Court (assuming a procedural rule could do so): at ;
It cannot be said that an application for judicial advice or directions under s 63 of the Trustee Act 1925 (NSW) – and, by analogy, a liquidator’s application for approval or directions under ss 477(2A) and (2B), s 479(3) or s 511 – is “a proceeding in the Court”, so that any material before the Court becomes “evidence” to which the Evidence Act 1995 (Cth) (the Evidence Act ) applies. Accordingly, s 122 of the Evidence Act cannot apply to material placed before the Court on such an application, such that legal professional privilege in that material could be held to have been waived pursuant to it. Why? Because “[a]pplications for judicial advice have a particular pedigree”: at . They are not adversarial proceedings. The order made is permissive in nature and does not carry with it the usual consequences of an order made in adversarial proceedings: – “it does not create a res judicata. It does not finally determine the rights of parties”: at . It simply gives the protection of the Court’s “permission” or approval to take a particular action. It cannot be breached, but if improperly obtained may be revoked: at -; see also Application of Macedonian Orthodox Community Church St Petka Incorporated (No 2)  NSWSC 558; (2005) 63 NSWLR 441 at  and Application of Perpetual Trustee Company Ltd  NSWSC 1185 at .
Even if that view is wrong (and I do not consider that it is), s 122 of the Evidence Act (implied waiver of privilege) does not assist the challenger of privilege in a legal opinion placed before the Court in such a case because (at -)
COSTS – Interest on costs – rate of interest – UCPR 36.7(1) – earlier order that interest be paid “at the rates set out in Schedule 5″ UCPR – effect of repeal of Schedule 5 and amendment of r 36.7(1) – rate at which interest payable prior to 1 July 2010 – proper construction of order
COSTS – Interest on costs – time during which interest runs – earlier order reserving consideration of whether costs should continue to run – whether power to make order denying interest over past periods – power to make order denying interest over future periods – whether delay that makes it just for the successful parties not to receive interest on costs for a particular time – delay in preparing bill of costs before High Court special leave application determined – delay while Review Panel reviewed cost assessor’s assessment – delay while appeal from Review Panel to District Court was on foot
COSTS – Effect of the entitlement to an input credit for GST on extent of indemnity –
COSTS – failure of costs assessor to disclose costs agreement between other party and solicitor – client legal privilege – procedural fairness
EVIDENCE – Admissibility – Criminal proceedings – Whether the maker of a previous representation is available – Evidence Act 2008 s 66, Dictionary cl 4(1) – Papakosmas v R  HCA 37; (1999) 196 CLR 297 – Leave to appeal refused.
CRIMINAL LAW – Appeal – Interlocutory Appeal – Admissibility of hearsay evidence –Certification by trial judge pursuant to s 295(3) of the Criminal Procedure Act 2009 – Whether principles in House v The King apply – Evidence Act 2008 ss 136, 137.
COSTS – Costs of motion follow the event
Evidence Act – ss 79, 135
Joint expert’s report excluded under Evidence Act s 135
EXPERTS’ REPORTS – whether UCPR r 31.26 requires admission of joint experts report – failure of expert report to disclose reasoning process – Exclusion of joint report under Evidence Act s 135
– Evidence Act 1995 (NSW) – s 79, s 135
INSURANCE – Fire insurance – losses and claims – damages – retail fashion shop – whether replacement cost should include mark-ups, expenses and profits – stock purchased through wholesale company – retail and wholesale companies no longer trading – mark-ups – expert evidence – experts’ view of value of stock – replacement value of stock – fixtures and fittings – business interruption – interest – section 57 of the Insurance Contracts Act 1984 (Cth) – orders
PERSONAL INJURY – Sexual abuse of boy aged 11-13 by uncle – Delay of 33 years in instituting proceedings – Tendency evidence – Circumstances of sequential abuse – Defendant declining to be cross-examined on grounds of the privilege against self-incrimination – Ongoing psychological consequences of abuse – Loss of enjoyment of life – Effect of abuse upon plaintiff’s capacity to bring proceeding – Extension of limitation period – General damages for pain and suffering – Aggravated damages – Exemplary damages – Special damages – ss 27K and 27L Limitation of Actions Act 1958 – s 97 Evidence Act 2008 – Briginshaw  HCA 34; (1938) 60 CLR 336 – Carter & Anor v Walker & Anor  VSCA 740.
TRUSTS ― Trustee ― Foreign trustee corporation ― Trustee deregistered under foreign law ― Application by beneficiaries in Victoria to appoint new trustee ― Absence of trust instrument and any documentation ― Secondary evidence ― Intention of proposed trustee to immediately extinguish trust and distribute to beneficiaries ― Ability of beneficiaries to extinguish trust ― Rule in Saunders v Vautier ― Vesting order ― Trustee Act 1958 (Vic), No 6401, s 48, 51, 52
PATENTS – Method and apparatus for treating wounds unlikely to heal by the use of conventional methods through negative pressure wound therapy – Common general knowledge as at priority date – Construction of claims – Meaning of integer of screen means “sufficiently rigid to prevent wound overgrowth” – Meaning of integer of screen means “sufficiently porous” to allow gases or oxygen to reach the wound – Meaning of integer of “migration of epithelial and subcutaneous tissue toward the wound” – Whether various integers essential
PATENTS – Infringement – Whether direct or indirect infringement – Whether respondent liable as joint tortfeasor – Whether respondent’s products possessed screen means sufficiently rigid to prevent wound overgrowth – Whether respondent’s products possessed other integers
PATENTS – Validity – Novelty – Whether prior art anticipated claims in suit – Whether claims in suit anticipated by prior use of open drainage system
PATENTS – Validity – Inventive step – Whether invention obvious to skilled addressee – Construction of Patents Act 1990 (Cth) ss 7(2) and (3) – Whether prior art comparator to be considered as starting point for obviousness
PATENTS – Validity – Other grounds of alleged invalidity – Whether claims in suit fairly based on matter described in specification – Whether priority date deferred – Whether invention a manner of manufacture or comprised of mere clinical desiderata – Whether invention properly defined – Whether claims invalid for lack of clarity – Whether claims invalid for lack of sufficiency – Whether claim invalid as a mere collocation
Evidence Act 1995 (Cth) s 140
CROSS-EXAMINATION- Fairness and openness in the conduct of litigation- Section 136 Evidence Act