Monthly Archives: November 2011

Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58 (11 November 2011)

Procedure – Discovery and interrogatories – Discovery and inspection of documents – Production and inspection – Grounds for resisting production – Legal professional privilege – Waiver of privilege – Implied waiver – Solicitor’s instructions to expert – Proof of expert delivered – No express reference in proof to or incorporation of instructing material – Assumptions of fact set out – Rule of court requiring expert proof to contain facts, matters and assumption on which opinion expressed – Relevant principles – No implied waiver.
Supreme Court Rules 2000 (Tas), rr515 and 516(2)(d).
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; Cole v Dyer (1999) 74 SASR 216; Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804; British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; (2002) 7 VR 524 applied.
Attorney-General (NT) v Maurice (1986) 161 CLR 475; Clark v Boden [2004] TASSC 119; (2004) 13 Tas R 198; Dean v More Than a Morsel Pty Ltd [2002] ACTSC 101; (2002) 170 FLR 432, considered.
Aust Dig Procedure [449]

DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355 (11 November 2011)

CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence obtained by investigating police in contravention of s 81 Drugs Poisons and Controlled Substances Act 1981 – Evidence obtained pursuant to search warrants – Affidavits in support of warrants – Affidavits signed but not sworn or affirmed – Evidence excluded – Section 138 Evidence Act 2008 – Whether discretion to exclude was wrongly exercised – Gravity of impropriety considered – State of mind of police officers – Whether contravention was deliberate, reckless or careless – Definition of reckless – Appeal dismissed.

Stratford Sun Limited v OM Holdings Limited; In the Matter of OM Holdings Limited (No 5) [2011] FCA 1275 (10 November 2011)

CORPORATIONS – whether a public listed corporation listed on the ASX contravened ASX Listing Rules 7.3.4, 7.3.6 and 7.3.8 and engaged in misleading and deceptive conduct in contravention of s 1041H(1) of the Corporations Act 2001 (Cth) by circulating to its shareholders a Notice of Meeting and accompanying Explanatory Statement which failed to provide sufficient or adequate information to those shareholders in order to enable them to make a sensible and rational judgment about a resolution to be proposed at the upcoming Annual General Meeting for the issue of 345 million new fully paid ordinary shares in the corporation

Evidence Act 1995 (Cth), s 76(1), s 79(1)

Deputy Commissioner of Taxation v Commercial & General Law (SA) Pty Ltd [2011] FCA 1269 (7 November 2011)

COURTS AND JUDICIAL SYSTEM – delegation of powers to Registrar – application to review “exercise of power” by Registrar – winding up application – preliminary issue decided by Registrar – factual finding regarding the compounding of a debt – whether application for review competent – whether conclusions of Registrar correct – application dismissed as incompetent

BIAS – whether reasonable apprehension of bias – recusal application refused.

Aksentijevic v Victoria Racing Club Limited [2011] VSC 538 (27 October 2011)

TORT – Employer and employee – Alleged acts of bullying by supervisor – Psychiatric injury – Whether acts of bullying established.

125 … Those considerations are relevant to my assessment of the evidence upon which the plaintiff relies to establish, on the balance of probabilities, that Mr Goodie indulged in the conduct alleged by him.[7]


Tsang v DPP (Cth) [2011] VSCA 336 (7 November 2011)

CRIMINAL LAW – Appeal against conviction and sentence – Importing commercial quantities of border controlled drugs – s 307.1 of the Criminal Code 1995 (Cth) – Conspiracy – Admissibility of evidence – Hearsay – Statements made by a third person co-accused in the absence of the accused – Whether trial judge erred in ruling that intercepted telephone calls were admissible – Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 and Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 considered

CRIMINAL LAW – Appeal – Jury directions – Whether substantial miscarriage of justice occurred – Whether judge erred in failing to provide directions on the applicant’s use of an interpreter – Whether judge erred in not advising the jury to ignore the prosecutor’s remark that the applicant was ‘hiding behind an interpreter’ – Appeal dismissed

CRIMINAL LAW – Sentence – Assessment of applicant’s role in offending – Parity – Whether sentence manifestly disparate to sentence of co-accused – Totality – Whether sentencing judge erred in failing to take into account period of imprisonment served in Canada – Whether sentencing judge erred in finding that there were no relevant mitigating factors – Appeal allowed – Applicant re-sentenced

Assessing any abuse of the use of an interpreter – is this a matter for the jury?

102 The first question is whether the Crown is permitted to make submissions as to whether the use of an interpreter is being abused or used for tactical advantage. In other words, is the assessment of the existence or extent of any abuse of the accused’s use of an interpreter a matter for the jury? We accept that such assessment is a proper matter for the jury, subject to appropriate directions by the trial judge.

103 The issue must be seen and assessed in its proper context. The issue is not whether the accused was entitled to use an interpreter. An accused person whose first language is not English has a right to an interpreter paid for by the State. This is an important right and is critical to ensuring a fair trial.[47]

FN 47
[47] Section 30 of the Evidence Act 2008 (Vic) permits evidence to be given through an interpreter unless a witness can understand and speak English sufficiently so as to enable the witness to understand and respond to questions. Section 30 has the effect of changing the onus. A person is entitled to an interpreter unless the court orders otherwise. As the Australian Law Reform Commission stated in its interim report on the proposed change to the Evidence Act (Australian Law Reform Commission, Evidence, Report No 26 (1985) [611]), ‘the possibility of abuse exists whatever approach is taken. The proposal gives the trial judge control over the situation.’ It should be noted that s 30 only came into operation on 1 January 2010 and accordingly, was not in operation at the time of the trial. However, prior to the commencement of s 30, the right to the free assistance of an interpreter when required was regarded as one of the attributes of a fair trial.

Wilson v The Queen [2011] VSCA 328 (27 October 2011)

CRIMINAL LAW – Appeal – Conviction – Rape – Indecent assault – Multiple counts –Offences occurred in course of applicant’s practice as naturopath – Complainants were applicant’s patients – Whether applicant aware of absence of consent – Reasonableness of applicant’s belief in consent – Awareness that complainants were or might have been mistaken about whether the acts were sexual acts or were for medical purposes – Whether impugned acts were performed for purposes of providing legitimate medical treatment – Whether touching accidental – Jury directions deficient – Appeal allowed in part – Retrial ordered – Resentenced on remaining counts – Neal v The Queen [2011] VSCA 172, Getachew v The Queen [2011] VSCA 164, Roberts v The Queen [2011] VSCA 162, followed – Crimes Act 1958, ss 35, 36(f), (g), 37, 37AAA(d), (e)(i), (e)(ii) and 37AA(b)(i).

CRIMINAL LAW – Appeal – Conviction – Rape – Indecent assault – Uncharged acts – Trial judge failed to direct jury that complainant’s evidence of uncharged acts must be proved beyond reasonable doubt – Consideration of circumstances in which trial judge required to direct jury that circumstantial facts should be proved to a particular standard – R v Sadler [2008] VSCA 198; (2008) 20 VR 69 considered, Roach v The Queen [2011] HCA 12 (4 May 2011), HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, referred to.

EVIDENCE – Criminal law – Rape – Indecent assault – Cross-admissibility of evidence – Multiple counts of rape and indecent assault involving four complainants – Whether sexual acts performed in the course of a sexual relationship – High degree of similarity, common theme – Application for severance properly rejected by trial judge – Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, applied, R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375, followed.

LAW REFORM – Sexual offences – Complexity of trial directions required to be given – Legislative intervention required to simplify required directions.

177 The conclusion flowing from the finding of an uncharged sexual act, that the accused has a sexual interest in the complainant, thereby enhancing the complainant’s credibility, is treated under the Evidence Act 2008 as tendency reasoning. But it has never been customary to direct juries that the use of uncharged acts involves a process of inferential reasoning and no such direction was here given. The jury would not have understood that the general direction concerning inferential reasoning applied either to the uncharged acts or to the use that could be made of them.

Hargraves v The Queen; Stoten v The Queen [2011] HCA 44 (26 October 2011)

Criminal law – Trial – Directions to jury – Appellants convicted of charges arising from tax avoidance scheme – Appellants’ dishonesty only issue at trial – Appellants gave evidence – Prosecution called appellants’ accountant as witness – Appellants’ counsel cross-examined accountant suggesting he tailored evidence to avoid own prosecution – Trial judge told jury they could evaluate credibility by considering a witness’s “interest in the subject matter of the evidence” including “self-protection” – Whether misdirection causing miscarriage of justice – Whether direction deflected jury from need to be persuaded beyond reasonable doubt of appellants’ guilt – Whether direction invited jury to test appellants’ evidence according to appellants’ interest in outcome of trial – Principles applicable to directions about evaluation of evidence.

42 As has been repeatedly pointed out[30], the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury needs to know to decide those issues. The trial judge may, but need not, comment on the facts of the case[31]. The trial judge may, but need not, suggest how the jury might evaluate the credibility of evidence that has been given. In some circumstances the common law[32] or statute[33] may require the trial judge to give a particular warning to the jury about factual issues. But informing and underpinning all of these requirements is that the judge’s instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury’s attention from the need to be persuaded beyond reasonable doubt of the accused’s guilt before returning a verdict of guilty.

[33] See, for example, Evidence Act 1995 (Cth), s 165.

Offstage Support Association Inc v Time of My Life Pty Ltd (No 2) [2011] FCA 1183 (20 October 2011)

COSTS – application for costs order against non-parties and solicitor acting for plaintiff on indemnity basis – substantive application dismissed on various grounds including abuse of process – finding on costs application that substantive application not brought to wind up defendant but for collateral purpose

Held: non-parties and solicitor to pay defendant’s costs of the proceeding on an indemnity basis

Australian Competition and Consumer Commission v Sampson [2011] FCA 1165 (17 October 2011)


11 The Court has the power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth). Any declaratory order made in the exercise of this power must be directed to quelling legal controversy between parties. The applicant must have a real interest in obtaining the relief sought: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-2. There must also be a proper contradictor: Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437-8.
12 Each of these requirements is satisfied in the present proceeding. A dispute has existed between the parties as to whether or not Ms Sampson had engaged in contraventions of s 52 of the Act. The ACCC is a public body which had power under the Act to bring enforcement proceedings. Declaratory orders of the kind proposed serve the public interest by making it plain that conduct such as that admitted by Ms Sampson contravenes the Act: see Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333; Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at 91.
13 In Forster Gibbs J (with whom McTiernan, Stephen and Mason JJ agreed) adopted Lord Dunedin’s description of a proper contradictor (in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438 at 448) as “one presently existing who has a true interest to oppose the declaration sought”: see at 438. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382 Perram J added a requirement that the proper contradictor must not only be a party but must argue against the granting of relief: see at [32]. In adding this requirement his Honour considered himself bound by the joint judgment of Keely and Beaumont JJ in BMI Limited v Federated Clerks Union of Australia (1983) 51 ALR 401.
14 More recently, Dodds-Streeton J has held that the true ratio of BMI is much narrower and that, in any event, the decision is distinguishable: see Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd (No 2) [2011] FCA 752 at [32]- [43].
15 I respectfully agree with her Honour’s analysis. In BMI the failure of the respondents actively to oppose the making of declarations was but one of a number of factors which led the Court, in the exercise of its discretion, to refuse relief. Forster, in my view, establishes that a person will be a “proper contradictor” provided that he or she has a genuine interest in resisting the grant of relief. Ms Sampson is a proper contradictor notwithstanding her agreement to the making of the proposed declarations. Despite her willingness to compromise her position in the litigation she retained a genuine interest in resisting the granting of the declarations.
16 One of the reasons for requiring that there be a proper contradictor is to ensure that the Court is supplied with a factual foundation for the making of orders. Some judges have expressed reservations about whether this requirement can be satisfied in circumstances where the parties have reached agreement as to the facts and the orders which should be made. These reservations can be traced to the statement of Keely and Beaumont JJ in BMI at 412-3, that declarations “ought not to be made merely on admissions of counsel or by consent, but only if the court is satisfied by evidence.” This statement of principle led Finkelstein J to hold, in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960 at [19], that the Court should “not grant a declaration involving a public right in the absence of evidence that supports the declaration.” Statements of agreed facts did not constitute “evidence” for relevant purposes. See also: Australian Competition and Consumer Commission v Cosic Holdings Pty Ltd [2009] FCA 1579; Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd [2009] FCA 1580 (per Barker J).
17 Other judges have, however, been prepared to grant declaratory relief on the evidentiary foundation provided by a statement of agreed facts which has been made in accordance with the requirements of s 191 of the Evidence Act 1995 (Cth): see Australian Competition and Consumer Commission v Skins Compression Garments Pty Ltd [2009] FCA 710 (per Besanko J); Minister for Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58; (2010) 183 FCR 10 (per Stone J); MSY Technology at [27] (per Perram J). An ‘agreed fact’ is one which the parties to a proceeding have agreed will not be disputed in that proceeding: see s 191(1). Whilst agreement as to a fact will not necessarily be determinative of the truth of that fact, evidence need not be brought to prove its existence: see s 191(2)(a).
18 In my view the agreed statement of facts, when considered in light of s 191, provides a sufficient basis for the making of the declarations sought in the present proceeding. The agreed statement clearly identifies the impugned statements and the reasons that those statements are misleading and deceptive. The declarations which are sought accurately describe the contravening conduct.

Connelly v Allan [2011] ACTSC 170 (13 October 2011)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal allowed in part.

CRIMINAL LAW – evidence – evidentiary matters relating to witnesses and accused persons – identification – voice identification – whether warning required under s 116 of the Evidence Act 1995 (Cth) – warning required.

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – whether miscarriage of justice in absence of warning about voice identification evidence – no miscarriage of justice.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – whether sentencer erred in rejecting a community service condition to a good behaviour order when sentence of imprisonment suspended – error found and appellant to be re-sentenced.

F M J v The Queen [2011] VSCA 308 (11 October 2011)

CRIMINAL LAW – Interlocutory appeal – Admissibility of recording made by complainant’s mother containing admissions by accused – Judge refused to certify interlocutory decision for appeal – Crown case not dependent upon recording alone – Criminal Procedure Act 2009 s 295(3)

CRIMINAL LAW – Evidence – Application to exclude evidence of recording pursuant to Evidence Act 2008 ss 85, 90 and 137 – Judge misstated onus of proof with regard to s 85 – Error inconsequential in particular circumstances of case – Other grounds untenable – Leave to appeal refused

Kingston v Australian Capital Territory [2011] ACTSC 165 (7 October 2011)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – nature of appeal.

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – magistrate using affidavit not read – error in doing so – appeal upheld.

Evidence Act 1995 (Cth), ss 43, 128, 103

McHugh v Australian Jockey Club Limited (No 9) [2011] FCA 1138 (4 October 2011)

“The applicant applies to exclude, by deletion, certain written evidence by Dr Keller and Dr McKinnon, expert veterinarians called by the applicant, on the ground that since that evidence was given the fifth respondent has notified its decision not to call one of its expert veterinarians, Dr Perriam. I have been told that it was on 27 September 2011 that the applicant was informed Dr Perriam would not be called in the fifth respondent’s case. The fifth respondent’s witnesses, or those that are to be called, are due to be heard in about one week’s time. “

McHugh v Australian Jockey Club Limited (No 7) [2011] FCA 1136 (30 September 2011)

“6 Secondly, even if the material had any probative value, which I consider it does not, because it takes the form of commentary on propositions in a funding proposal by an academic who is not to give evidence, and whose application for funding is not otherwise in evidence, I would exclude that material under s 135(c) of the Evidence Act 1995 (Cth).”

McHugh v Australian Jockey Club Limited (No 6) [2011] FCA 1135 (29 September 2011)

EVIDENCE – Proof of foreign law –tender of copies of foreign legislation –whether the mere tender of foreign legislation would enable the Court to draw certain inferences – whether appropriate to assume foreign law is the same as Australian law – whether late tender caused prejudice – tender refused