Monthly Archives: October 2011

The City of Sydney v Streetscape Projects (Australia) Pty Limited & Anor [2011] NSWSC 1214 (11 October 2011)

Proceedings brought by City of Sydney against Streetscape Projects (Australia) and Mr Moses Obeid in relation to “Smartpole” poles

CONTRACTS – Action for breach of contract – Contractual interpretation – Confidential information – Deeds of variation – Whether particular clauses were penalty clauses – Claim that plaintiffs suffered no loss – Distinction between liquidated damages clause and penalty clause – Damages when proof of loss is difficult – Foreign law- Presumption of identity – Principles for interpreting terms of a contract to avoid capricious consequences

EQUITY – Equitable duty – Duty of confidence – Fiduciary duty – Fiduciary duty under a commercial contract -Accessorial liability – Barnes v Addy

ADMINISTRATIVE LAW – Ultra Vires – Scope of Local Councils authority – Broad interpretation

TRADE PRACTICES CLAIM – Misleading and deceptive conduct – Section 52 Trade Practices Act – Proof of representations – Reliance on representations – Failure to take reasonable care-Section 51A Trade Practices Act – Misleading representation as to future without reasonable basis-No need to prove reliance – Appropriate relief under Section 87 (2) of Trade Practices Act – Varying the terms of a contract for misrepresentation

Traxys Europe SA v Balaji Coke Industry Pvt Ltd [2011] FCA 1132 (29 September 2011)

7 Senior Counsel for Balaji submitted that none of this matters because the correspondence is admissible pursuant to s 69(2) of the Evidence Act 1995 (Cth) (the Evidence Act) and that no submission has been made on behalf of Traxys that it should be excluded on some discretionary basis (eg pursuant to s 135 of the Evidence Act).
8 I am entitled to look at the documents in Annexure “VA1”in order to decide whether or not they should be admitted pursuant to s 69 of the Evidence Act. It seems to me that the documents do meet the requirements of subs (2) of s 69. I say this because, on their face, they appear to be documents maintained by Balaji as part of its ordinary business records (see s 183 of the Evidence Act) and, insofar as those letters generated by Balaji itself are concerned, appear to have been generated by a person with the requisite knowledge. The same may be said of the letters emanating from Concast.
9 For these reasons, I propose to admit the correspondence comprised in Annexure “VA1” to Mr Agarwal’s first affidavit. In so doing I say nothing about the weight that will be given to those documents when I come to consider the substantive decision or decisions which I have to make in the present litigation.

12 It is incumbent upon the party tendering a document which is said to constitute a binding contract such as the Share Sale Agreement to authenticate its execution by calling a witness who can testify as to that matter or by otherwise satisfying the Court that the document was executed as it appears to have been. In the present case, I am not satisfied that Balaji has discharged that proof. The correct approach to a matter such as this was discussed by Nicholas J in Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) (2011) 280 ALR 97 at [63]–[87], particularly at [78]–[80]. As Bryson J said in National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309 at [17] (p 312), at its simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made. Proof of authenticity in this sense means proof that the relevant document is what it purports to be. Section 149 of the Evidence Act ameliorates the position as far as the evidence of attesting witnesses is concerned but does not otherwise affect these basic propositions.

25 Senior Counsel for Balaji submits, however, that the document is admissible because s 150 of the Evidence Act makes it admissible. In addition, Senior Counsel for Balaji submits that I should revisit the previous ruling which I made rejecting the alleged Agreement (Ruling 4) for the same reason, that is to say, that s 150 of the Evidence Act makes the document admissible. …

27 In Pt 1 of the Dictionary in the Evidence Act, “seal” is defined as including a stamp. Annexure “VA2A” has the seal of a notary from Calcutta affixed to it. Initially, Senior Counsel for Balaji relied upon that fact as assisting the admissibility of the document but, upon more mature reflection, accepted that that circumstance did not take the matter as far as he needed to take it.
28 The critical submission ultimately made was that the document has affixed to pages 1, 2 and 3 a stamp which appears to be either the Common Seal of Balaji or at least a stamp containing the name of Balaji and that, at the point where the document required execution, the following appeared:

29 It is apparent, therefore, that there is a stamp (not the same stamp as appears on pages 1, 2 and 3 of the document but, nonetheless, a stamp) at the point where the document was required to be executed by Balaji, together with the signature of Mr Sharma as its Director. It appears, therefore, that there was an imprint of a seal of Balaji on the document, which is Annexure “VA2A” to the second affidavit. It also appears that Balaji is a body corporate established by a law of a foreign country (namely, India).
30 It, therefore, appears that the presumption raised by s 150(1) of the Evidence Act is raised in the present case. That presumption is a presumption to the effect that the imprint is the imprint of the corporate seal and that the document was duly sealed as it purports to have been sealed.

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) & Ors [2011] VSC 406 (26 August 2011)

Client legal privilege – subpoenas

19 The plaintiff submitted that the initial response to progress payment claims was merely contract administration and fell within the ambit of administration of the trust. However, in light of the transmission of 5 May 2006 it is not possible to characterise the resolution of the claims as anything other than an anticipated or pending Australian proceeding. Albeit that by virtue of s 4, the Evidence Act applies to all proceedings in a Victorian court as defined by the dictionary, s 9 sets out that the Evidence Act does not affect the operation of common law “except so far as this Act provides otherwise expressly or by necessary intendment.” Accordingly, I am not constrained to conclude that disputes with respect to progress claims not heard in a Victorian court are necessarily excluded from either the common law principles of legal professional privilege nor the statutory principles of client legal privilege.

R v Perish; R v Lawton; R v Perish [2011] NSWSC 1112 (18 August 2011)

CRIMINAL LAW – unfavourable witness – whether leave granted to Crown to cross-examine should be extended – considerations of fairness.

10. In my view, however, the present controversy may be readily resolved by a close consideration of s 137 Evidence Act which is as follows:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

11. The term “probative value” is defined in the Dictionary to the Evidence Act to mean:

” … the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

Braslin v Tasmania [2011] TASCCA 14 (13 October 2011)

Criminal Law – Evidence – Identification evidence – Warning advisable or required – Adequacy of warning – Generally – Special need for caution – Reasons for that need generally and in the circumstances.

Evidence Act 2001 (Tas), ss116, 165(2).

R v Clarke (1997) 97 A Crim R 414, followed.

Aust Dig Criminal Law [2948]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Particular cases – Where appeal allowed – Misdirection as to topic not covered in cross-examination.

Browne v Dunn (1893) 6 R 67, referred to.
Aust Dig Criminal Law [3490]

Coleman v The Queen [2011] VSCA 301 (12 October 2011)

CRIMINAL LAW – Incest and indecent acts with a child – Fresh evidence bearing on the credit of the complainant – Significant possibility that the jury would have acquitted the accused if the fresh evidence had been before it.

19 Counsel for the respondent concedes that the statements in the psychologist’s report constitute fresh evidence. The evidence could have been led as hearsay evidence pursuant to the provisions of s 59 of the Evidence Act or may have constituted prior inconsistent statements admissible pursuant to ss 103 or 106 of the Act. At trial the statements could have been put to the complainant. If she did not admit that she had made the statements, evidence could have been led from Dr Uebergang to prove the statements were made.

20 If the evidence had been available to counsel at trial, the trial may have proceeded differently in that there may have been cross-examination of the complainant and her mother and, depending on the evidence given by the complainant, possibly evidence given by Dr Uebergang. The cross-examination or the evidence may have affected the credit of the complainant and possibly that of the mother.

Ghebrat v The Queen [2011] VSCA 299 (12 October 2011)

CRIMINAL LAW – Application for leave to appeal against conviction – Armed robbery – Fingerprints found at crime scene said to match accused – Whether judge failed to summarise fingerprint evidence properly – Whether judge properly summarised defence case – Whether conviction unsafe and unsatisfactory – Retrial ordered.

45 The respondent submitted that Senior Constable Gordon’s evidence that his opinion had been independently verified by three other experts was led for a non-hearsay purpose as forming part of the foundation of the witness’s opinion. It was argued that the evidence given by Senior Constable Gordon was confined to an expression of his own opinion, having personally engaged in the analysis, comparison and evaluation. His knowledge that the verification process had been undertaken by an independent person served only to reinforce his own opinion and enabled him to express that opinion with greater confidence. It was argued that once admitted for that purpose, the statement became admissible for all purposes, pursuant to s 60(1) of the Evidence Act 2008 .

46 The problem facing the respondent was that the prosecutor made no submission at trial as to the limited purpose for which the evidence was relied upon. More importantly, the jury was not told what, if any, permissible use they could make of the evidence of Senior Constable Gordon that the fingerprint matching had been through three verification processes. How could it now be concluded that the jury understood that the evidence had a non-hearsay purpose when there was no direction from the trial judge as to the limited purpose for which the evidence was relied upon? In the circumstances of the case, the jury may well have considered, wrongly, that the evidence of Senior Constable Gordon about the independent processes taken by other experts was to be accepted as proof of the fact that those independent verification processes had occurred and thus that the process and the evidence was complete. In my opinion, it was incumbent upon the trial judge, particularly in light of the objection taken by the defence, to explain the limited purpose for which the evidence of Senior Constable Gordon was relied upon. He was in error in failing to give that explanation.

47 The situation was aggravated by the judge’s description of Senior Constable Gordon’s evidence, in front of the jury, as amounting to the claim that his work was checked by someone else and the result of that checking was that the other person approved of or reached the same view as he had done.[12] This was tantamount to an endorsement of the use of the evidence for a hearsay purpose without there having been any hearsay notice given or any ruling that, in the circumstances of the case, it fell under an exception, including the exception under s 60 of the Evidence Act .

48 The situation was further aggravated by the judge’s mis-description of the opinion of Senior Constable Gordon as being one of certainty. The evidence that the fingerprint matching had been through three verification processes, when considered by the jury in light of the judge’s charge that the process of fingerprint matching could achieve certainty, would almost inevitably have led to a finding of guilt. That finding was vitiated by the errors I have described with the result that there has been a substantial miscarriage of justice.

Suzlon Energy Ltd v Bangad [2011] FCA 1152 (7 October 2011)

PRIVATE INTERNATIONAL LAW – notice to produce served on foreign bank challenging service on it out of the jurisdiction under r 10.43 of Federal Court Rules 2011 (Cth) – whether foreigner should be subject to compulsory process of the Court – principle of restraint in permitting use of court process against foreigner challenging service out of jurisdiction from being required to produce evidence supporting that extraterritorial service – whether notice to produce should be set aside or compliance not be required in the circumstances

INTERNATIONAL LAW – documents sought in notice to produce related to financial transactions between foreign bank and customer – production of documents likely to involve foreign bank in a contravention of Swiss banking secrecy and criminal laws – principles in respect of attempts to use court processes to obtain documents from international banks so as to avoid the risk of jurisdictional conflicts – whether notice to produce should be set aside or compliance not be required the circumstances

PRACTICE AND PROCEDURE – notice to produce – application by foreign bank to set aside or excuse obligation to comply with notice to produce under r 30.28 of Federal Court Rules 2011 (Cth) – notice to produce has same coercive effect as subpoena – whether notice to produce can be served on a foreigner contesting jurisdiction

51. It is a fundamental principle of the Australian common law that, in the absence of a statutory exception, a person cannot be compelled to incriminate himself or herself. Toohey, Gaudron, McHugh and Gummow JJ held in Reid v Howard (1995) 184 CLR 1 at 14 that there is simply no scope for an exception to the privilege against self-incrimination, other than by statute. While the Evidence Act 1995 (Cth) provides some safeguards for persons who are compelled under ss 128 and 128A of that Act to respond to questions the answers to which may incriminate them, those safeguards would be of no avail to anyone defending charges of contravening Art 47 or Art 273 in a Swiss court. And, as Lehane J said in Bank Leumi 69 FCR at 545C:

“It is, in general terms, unexceptionable, as an exercise of discretion, to refuse specific relief if that relief would compel a breach of the law: see, eg, Pottinger v George (1967) 116 CLR 328 at 337. Indeed, in Rowell v Pratt [1938] AC 101 at 106, Lord Wright said bluntly that a judge “cannot compel a man to commit a criminal offence”. I cannot think it is a wrong exercise of discretion to take into account that specific relief, or relief having a similar practical effect, may compel conduct which is in breach of foreign law; thus I think that the judge was right in having regard to Swiss law in considering the appropriate remedy.”

Gerard Cassegrain & Co Pty Limited v Cassegrain [2011] NSWSC 1156 (29 September 2011)

CORPORATIONS – management and administration – directors – fiduciary duties of directors – where loan account in director’s favour established in company’s books – where to director’s knowledge there was no entitlement of the director to funds represented by the loan account – drawings by director against loan account – whether breach of fiduciary duty – whether fraudulent breach – CORPORATIONS – informed consent of company to breach of fiduciary duty – where one shareholder given by constitution power to pass any resolution at a general meeting – assent by that shareholder apart from general meeting – whether effective – ESTOPPEL – prior adjudication – where creation of loan account and drawings on it had been the subject of findings in earlier oppression proceedings – whether res judicata – whether issue estoppel – whether existence of issue estoppel precludes reception of further evidence – ESTOPPEL – prior adjudication – effect on non-party – whether non-party privy or agent of party – EVIDENCE – judicial discretion to limit use – relevance of inability to cross-examine because witness not called – REAL PROPERTY – co-ownership – joint tenants – whether fraud of one joint tenant in taking of title jointly affects other joint tenant – where first joint tenant later transferred his interest to second joint tenant – nature of the sole registered proprietor’s title under Real Property Act – TORRENS SYSTEM – fraud exception to indefeasibility of registered estates – nature of relevant fraud – EQUITY – equitable defences – laches – elements of defence – LIMITATION OF ACTIONS – proceedings for equitable relief – equity seeks analogy with the law – fraudulent breach of fiduciary duty – analogy with tort of deceit or conspiracy to defraud – no analogy with trusteeship if trust property not held – relevance of incapacity

Evidence Act 1995, ss 69, 91,136

FB v Regina; Regina v FB [2011] NSWCCA 217 (30 September 2011)

CRIMINAL LAW – appeal against conviction – appellant convicted of aggravated sexual assault – admission of tendency evidence- tendency evidence concerned a further sexual assault – possibility of concoction between victims – media reports concerning appellant’s misconduct – possibility of contamination – ground dismissed

CRIMINAL LAW – appeal against conviction – miscarriage of justice – incompetence of counsel – failure of legal representatives to adduce evidence of media reports concerning appellant’s misconduct – media article relevant to admission of tendency evidence – ground dismissed

CRIMINAL LAW – appeal against conviction – credibility of complainant – inconsistent statements concerning alleged sexual assault – absence of complaint by victim when questioned – judge gave directions in relation to absence of complaint – trial judge found complainant had reason for denying sexual assault – ground dismissed

Evidence Act 1995 (NSW) ss 97, 101

Baini v The Queen [2011] VSCA 298 (5 October 2011)

CRIMINAL LAW – Conviction – Blackmail – Many counts referrable to one complainant – Whether judge erred by refusing to sever single count relating to a second complainant – Prejudice to applicant – No formal ruling – Judge suggested that it was for the applicant to demonstrate that prejudice ‘far outhweigh[ed] convenience’ – Judge applied erroneous view of law in exercising his discretion – Whether miscarriage of justice – Demirok v The Queen [1976] VicRp 19; [1976] VR 244 – Application of proviso to s 568(1), Crimes Act 1958 – Weiss v R [2005] HCA 81; (2005) 224 CLR 300 – Applicant’s conviction on severance count brought about substantial miscarriage of justice – Whether other guilty verdicts unsafe or unsatisfactory – Whether judge erred in his directions as to prior inconsistent statements – Leave to appeal granted and appeal allowed in respect of applicant’s conviction on severance count – New trial ordered on that count – Application for leave to appeal otherwise refused.

Sections 371 and 372, Crimes Act 1958

Section 60, Evidence Act 2008

CRIMINAL LAW – Sentence – Aggregate sentence – Failure to comply with requirements stated in DPP v Felton [2007] VSCA 65; (2007) 16 VR 214 and R v Grossi [2008] VSCA 51; (2008) 23 VR 500 – Application for leave to appeal against sentence granted and appeal allowed – New aggregate sentence imposed.

State of Tasmania v Lin [2011] TASSC 54 (4 October 2011)

Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Whether records belonging to or kept in the course of, or for the purposes of a business.
Tubby Trout Pty Ltd v Sailbay Pty Ltd (1992) 42 FCR 595, applied.

Evidence Act 2001 (Tas), s69.

Aust Dig Evidence [121]

Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Whether reasonable cause for non–compliance with a request to call as a witness the maker of a representation.
Evidence Act 2001 (Tas), s169.

Aust Dig Evidence [121]

Criminal Law – Particular offences – Offences against the Government – Other offences – Conspiracy to defraud by deflection a public officer from public duty – Public duty.
Tasmania v Lin [2011] TASSC 14; Herscu v R [1991] HCA 40; (1991) 173 CLR 276, referred to.
Living Marine Resources Management Act 1995 (Tas).
Fisheries (Rock Lobster and Giant Crab) Rules 2001 (Tas).

Aust Dig Criminal Law [2538]

Criminal Law – Procedure – Verdict – Alternative verdicts – Particular cases – Alternative charges of similar gravity – If guilty on either charge the jury should give its verdict on that charge alone.
R v Seymour (1954) 38 Cr App R 68, applied.
Stanton v R [2003] HCA 29; (2003) 77 ALJR 1151, referred to.
Aust Dig Criminal Law [3176]

Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 (30 September 2011)

EQUITY – contested beneficial ownership of convertible bonds issued to a company – where liquidators sought declaratory relief against a defendant who was in possession of bond certificates and executed transfers, and who sought to become the registered holder of the bonds – whether an alleged series of undocumented assignments of equitable interest in the bonds was effective – whether the alleged assignments were made for valuable consideration

EQUITY – effect of the Conveyancing Act 1919 (NSW) on alleged assignments of the equitable interest in the bonds – whether s 23C(1)(c) was required to be complied with in order for the alleged assignments to be effective – whether s 23C(1)(c) applies to equitable dispositions of personalty

EVIDENCE – onus of proof – whether plaintiffs, as parties seeking declaratory relief and as the only parties seeking relief at all, bore the onus of disproving the chain of alleged assignments contended for by the defendants – whether defendants’ allegations constituted denials of essential ingredient in the plaintiffs’ cause of action or a defence of a prima facie claim – whether company’s registration as bondholder gave rise to a presumption of equitable ownership – whether possession of bond certificates and transfers gave rise to competing presumption of equitable ownership

CORPORATIONS – whether company’s alleged equitable assignment of the bonds was an insolvent, uncommercial or unreasonable director-related transaction within the meaning of the Corporations Act 2001 (Cth) – whether transaction voidable – whether s 588FG available as a defence – degree to which the chain of alleged assignments could be regarded as a single transaction of the company – whether alleged equitable assignment of the bonds involved breach of directorial and fiduciary duties

Evidence Act 1995 (Cth) s 140

Lithgow City Council v Jackson [2011] HCA 36 (28 September 2011)

Evidence – Admissibility – Opinion evidence – Section 78 of Evidence Act 1995 (NSW) (“Act”) provided that rule excluding evidence of opinion does not apply where “opinion is based on what the person saw, heard or otherwise perceived about a matter or event” and evidence “is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event” – Respondent found unconscious and injured in drain – Respondent conceded appellant only liable if respondent fell from vertical retaining wall – Ambulance record contained representation “? Fall from 1.5 metres onto concrete” – Whether representation was admissible under s 78 of Act as opinion that respondent fell from vertical retaining wall.

Evidence – Admissibility – Hearsay evidence – Business records exception under s 69 of Act – Representation was hearsay evidence in business record – Whether representation must also comply with s 78.

Negligence – Causation – Whether circumstantial inferences sufficient to establish causation.

Evidence Act 1995 (NSW), ss 69, 78.

RHB v The Queen [2011] VSCA 295 (27 September 2011

CRIMINAL LAW – Application for leave to appeal against interlocutory decision – Evidence – Admissibility – Tendency and coincidence evidence – Whether sexual offences committed against accused’s daughters admissible as tendency evidence in trial of accused of sexual offence committed against granddaughter – Application dismissed – Evidence Act 2008 s 97(1), 101.