Monthly Archives: February 2012

DPP (Cth) v Carey [2012] VSCA 15 (16 February 2012)

CRIMINAL − Appeal by Director of Public Prosecutions − Criminal Procedure Act 2009 s 291 − Respondent pleaded guilty to attempting to possess precursor chemical − 15 months’ imprisonment wholly suspended and fine of $17,000 − Breach of undertaking to give evidence against co-offenders − Parity − Co-offender sentenced to 15 months’ imprisonment (12 months suspended) − Sentence based on erroneous factual basis − Appeal allowed − Respondent re-sentenced.

Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93 (15 February 2012)

COPYRIGHT – whether the scope of the non-exclusive licence of the right to broadcast certain sound recordings granted by a copyright collection agency to radio stations included the right to play those recordings in radio programs transmitted by FM broadcast as a simulcast with transmission of the same program via the Internet

Kirby v Centro Properties Limited (No 2) [2012] FCA 70 (10 February 2012)

PRIVILEGE – legal professional privilege – legal advice – whether parts of retainers which revealed or permitted to be inferred the nature of legal advice sought by a client were privileged – whether privilege can attach to communications between solicitor and a prospective client – whether communications between in-house lawyer and employing corporation and corporation and external lawyers were privileged – whether evidence from in-house lawyer and Company Secretary sufficient to discharge burden as to dominant purpose – whether communications between directors disclosing legal advice from external lawyers privileged – whether evidence from Company Secretary sufficient to discharge burden – whether adverse inference should be drawn because authors of communications were not called – whether (i) communications between solicitors and client; (ii) solicitors’ internal work product; (iii) communications between solicitor and third parties (accountants and other solicitors); were privileged – whether evidence of solicitors sufficient to discharge burden in circumstances where it was claimed the client had multiple purposes including an operational purposes – whether the claimed operational purpose involved the purpose of obtaining legal advice – claims for privilege upheld

Waiver – implied waiver – whether privileged contents of retainers waived because gist of the nature of advice sought was disclosed in furtherance of protecting retainers from disclosure – whether voluntary but limited and qualified disclosure to a third party resulted in an implied waiver as against the person seeking disclosure – whether implied waiver by reason of asserted deployment of the substance of privileged documents by directors of the privilege holder – no waiver found – application dismissed

Bromberg J

PWC’s application fell to be determined under the common law rather than the Evidence Act 1995 (Cth): Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 at [16] (Gleeson CJ, Gaudron and Gummow JJ). As Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [9] in The Daniels Corporation International Pty Ltd v Australia Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543:

It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

Cozadinos v Construction, Forestry, Mining and Energy Union [2012] FCA 46 (6 February 2012)

INDUSTRIAL LAW – building and construction industry – threat with intent to coerce or apply undue pressure – whether threat made – whether intent should be inferred in absence of cross-examination on intent

INDUSTRIAL LAW – building and construction industry – discrimination – whether alleged discriminatory statements made – whether discrimination to make a statement that can have no effect

Secretary, Department of Health and Ageing v Export Corporation (Australia) Pty Ltd [2012] FCA 42 (3 February 2012)

JUDGMENTS AND ORDERS – Civil penalty – imposition of civil penalty under the Therapeutic Goods Act 1989 (Cth) section 19D – discussion of relevant principles – agreed statement of facts

HEALTH LAW – Therapeutic goods – importation and supply of goods containing non-listed and non-registered substances – imposition of civil penalty – discussion of relevant principles

Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 (3 February 2012)

CRIMINAL LAW – Penalty notice for red traffic signal offence – Proceedings dismissed in Local Court as no prima facie case established – Denial of procedural fairness – Magistrate peremptorily refused to permit prosecution to call two police witnesses – Error of law in ruling prosecution had not established prima facie case – Statements that witness evidence is unreliable without analysis as to why does not discharge judicial obligation to give reasons – Order dismissing proceedings set aside and new hearing before new magistrate ordered

Barlow v Law Society of the Australian Capital Territory [2012] ACTSC 16 (3 February 2012)

PROFESSIONS AND TRADES – lawyers – application for unrestricted practising certificate – professional skill and professional experience – level of skill and experience required – how assessed – nature of “unrestricted practising certificate” – further submissions required.

Liu v The Age Company Limited [2012] NSWSC 12 (1 February 2012)

CONSTITUTIONAL LAW – implied freedom of communication on matters of government and politics – power to order preliminary discovery under rule 5.2 of the Uniform Civil Procedure Rules 2005 – whether rule 5.2 authorises orders in respect of the identity of a confidential source who has provided information to a journalist for use in a publication about government or political matters – whether the newspaper rule is of absolute effect in protecting the journalist against such an order in the case of communication on matters of government and politics

PRACTICE AND PROCEDURE – preliminary discovery – publication amounting to communication on matters of government and politics – alleged defamation of plaintiff – plaintiff seeking identification of journalists’ confidential sources – where journalists alleged to have been provided with forged documents – whether discretion enlivened – discretionary factors

Mulcahy v R [2012] ACTCA 3 (31 January 2012)

CRIMINAL LAW – appeal and new trial – appellant convicted of assault occasioning actual bodily harm – whether appellant acted in self-defence – whether verdict unsafe and unsatisfactory – whether trial judge erred in use of prior inconsistent statements – consideration of s 60 of the Evidence Act 1995 (Cth) – appeal dismissed

Domenico Rinaudo v Nicholas Morris Cleary [2012] ACTSC 5 (31 January 2012)

PRACTICE AND PROCEDURE – personal injury action – provision of medical reports by defendant to plaintiff – Civil Law (Wrongs) Act 2002, ch 5- whether of continuing application after commencement of court proceedings

STATUTES – Civil law (Wrongs) Act 2002 – disclosure of medical reports under ch 5 – whether obligation continues after commencement of court proceedings

R v Meyboom [2012] ACTCA 2 (31 January 2012)

APPEAL AND NEW TRIAL – in general and right of appeal – leave to appeal out of time – principles on which leave should be granted – explanation for delay – whether miscarriage of justice – leave refused.

APPEAL AND NEW TRIAL – practice and procedure – when time for appeal begins to run in criminal matters – Court Procedures Rules 2006 (ACT) Div 5.4.7 – meaning of conviction.

APPEAL AND NEW TRIAL – practice and procedure – cross appeal – whether conviction appeal can be cross-appeal against sentence appeal – need for fresh appeal.

Australian Crime Commission v Stewart [2012] FCA 29 (30 January 2012)

EVIDENCE – legal professional privilege – privilege claimed over documents obtained pursuant to search warrants and summons under the Australian Crime Commission Act 2002 (Cth) and Crimes Act 1914 (Cth) – whether Australian Crime Commission (ACC) entitled to inspect

EVIDENCE – whether documents subject to legal professional privilege – applicable principles – Evidence Act 1995 (Cth) not relevant – no issue of admissibility of evidence – issue to be determined under common law – legal professional privilege a fundamental common law immunity – whether reference to common law is to common law of Australia

PRIVATE INTERNATIONAL LAW – choice of law – whether right to inspect documents seized under Australian statute gives rise to choice of law question – question of statutory interpretation – no choice of law question – issue governed by Australian principles of legal professional privilege

PRIVATE INTERNATIONAL LAW – if choice of law question arises whether Australian choice of law principles apply

Fryer Holdings v Liaoning MEC Group [2012] NSWSC 18 (30 January 2012)

CONTRACT – identifying terms of contract – what terms were implied in the contract from the United Nations Convention on Contracts for the International Sale of Goods (CISG) – whether goods supplied were fit for purpose and of merchantable quality – whether implied warranty of fitness for purpose had been breached – whether circumstances of termination had any direct relevance to the quantification of damages – DAMAGES – contract – assessment of damages – whether direct losses were sustained – whether indemnity for compensation could be claimed – whether plaintiff could claim damages for loss of profit due to breach.

Armadale Retail Investments Ptd Ltd & Ors v Owenlaw Mortgage Managers Ltd [2012] VSC 9 (25 January 2012)

CORPORATIONS — Appeal against decision of an Associate Justice — Rehearing de novo on the merits — Statutory demand— When statutory demand served — Service by post — Whether the deemed service provisions in the Acts Interpretation Act 1901 (Cth) and Evidence Act 2008 (Vic) rebutted by evidence — Corporations Act 2001 (Cth) ss 109X, 459G, Acts Interpretation Act 1901 (Cth) s 29, Evidence Act 2008 (Vic) s 160

Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 2) [2012] FCA 19 (23 January 2012)

CONSUMER PROTECTION – contraventions of consumer protection legislation admitted – orders sought by consent – declaratory orders – injunctions – pecuniary penalties – publication orders – whether declaratory relief available under the circumstances – proper contradictor exists where contradictor consents to orders – orders made in terms sought

Howroyd v Howroyd [2011] TASSC 73 (22 December 2011)

Succession – Wills, probate and administration – The making of a will – Testamentary instruments – Knowledge and approval of contents – Generally – Circumstances raising suspicion – Will prepared by person taking benefit.
Vernon v Watson [2002] NSWSC 600; Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, referred to.
Aust Dig Succession [12]

Succession – Wills, probate and administration – The making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Evidence – Onus of proof and weight of evidence – Will executed day before death.
Banks v Goodfellow (1870) LR 5 QB 549, Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, referred to.
Wills Act 1992 (Tas), s10.
Aust Dig Succession [8]

Chen v Gu; Chen v Nguyen [2011] NSWSC 1622 (15 December 2011)

REAL PROPERTY – where as part of their divorce settlement in the Family Court, the plaintiff (husband) and the first defendant (wife) were confirmed as tenants-in-common in equal shares of a unit and they were both named as owners on the certificate of title – where the first defendant sold the unit without the knowledge or consent of the plaintiff and forged the plaintiff’s signature on the contract of sale, the transfer and two authorities which purported to authorise her to act on the plaintiff’s behalf in relation to the sale and also to receive all of the net proceeds of sale – where the first defendant alleges an oral agreement whereby the plaintiff agreed to give her his half-interest in the unit in return for her relinquishing her alleged interest in another property and the first defendant also alleges that the sale occurred with the knowledge and consent of her ex-husband and that he authorised her to sign his name on the conveyance documents – issues of credit of witnesses – whether there was an agreement between the plaintiff and the first defendant that the plaintiff would pay money to the first defendant periodically in relation to a partnership business that they ran together which was subsequently run solely by the plaintiff – where the plaintiff also brings an action against the Registrar-General seeking compensation from the Torrens Assurance Fund for the loss of his interest in the unit

NEGLIGENCE – where the plaintiff brings an action in negligence against the solicitor who handled the sale of the unit – where the plaintiff and the first defendant spoke Chinese but the solicitor did not – where the first defendant and the plaintiff were completely unknown to the solicitor – where the first defendant attended the solicitor’s office twice with her cousin who was presented to the solicitor as her ex-husband – where the solicitor only took instructions from the first defendant and made no effort to ensure that the person he thought was her ex-husband understood the effect of those instructions – where the first defendant presented the signed contract of sale, transfer and two authorities to the solicitor on which the plaintiff’s signature was forged by the first defendant – whether there was a duty on the part of the solicitor to seek photographic identification to ensure that his clients were who they said they were – checking that the certificate of title is not a forgery is not sufficient – CAUSATION – whether the solicitor’s breaches of duty owed to the plaintiff as found caused the plaintiff’s loss – whether a false attestation of the plaintiff’s apparent signature on the transfer is a novus actus interveniens which breaks the chain of causation

TORTS – conversion – whether the solicitor wrongfully converted property jointly owned by the plaintiff and the first defendant ie the certificate of title, and wrongly converted the cheques representing the proceeds of sale of the unit by acting on the forged authority given by the first defendant to him and giving those cheques to the first defendant alone

Paycorp Payment Solutions Pty Ltd & Anor v Peter Singyin Chai & Anor (No 3) [2011] NSWSC 1632 (7 December 2011)

PRACTICE AND PROCEDURE – Reference of papers to Attorney-General – evidence adduced in proceedings discloses potential commission of criminal offences by plaintiffs’ principal – Court has discretion to refer papers to Attorney-General – in exercising discretion Court considers objective seriousness of offence, utility of any prosecution and consequences of offence – offences in question objectively serious but had little harmful consequence – papers not referred.

(NSW) Evidence Act 1995, s 69
(CTH) Evidence Act 1995, s 69

Hamod v State of New South Wales and Anor [2011] NSWCA 375 (6 December 2011)

TORTS – false arrest and false imprisonment – absence of reasonable suspicion to arrest – appellant arrested following investigation by police into allegations that he was attempting to sell a fake certificate of guarantee for platinum – evidence did not establish cause of action

TORTS – malicious prosecution – absence of reasonable and probable cause for prosecution – whether reasonable basis for prosecutor’s belief – one charge withdrawn – one charge dismissed – acquitted on remaining charge – evidence did not establish cause of action

TORTS – injurious falsehood – evidence subject to immunity – cause of action not established

TORTS – conspiracy to injure by lawful means – conspiracy to injure by unlawful means – evidence did not establish causes of action

ADMINISTRATIVE LAW – procedural fairness – whether trial judge’s descriptions of appellant’s evidence and comments upon the magistrate’s reasons breached procedural fairness – trial judge considered evidence having regard to its relevance, weight and sufficiency – trial judge’s comments upon magistrate’s reasons not integral to dismissal of appellant’s causes of action – no denial of procedural fairness

COSTS – Civil Procedure Act 2005, s 98(4)(c) – specified gross sum costs order -where appellant impecunious and unlikely to satisfy any costs order – where costs of assessment unlikely to be recouped – whether trial judge’s discretion miscarried as to costs – trial judge correctly exercised power to make an order for specified gross sum costs instead of assessed costs

COURTS AND JUDGES – disqualification – apprehended bias – conduct of trial judge in relation to unrepresented litigant – trial judge did not err in refusing to recuse on the ground of apprehended bias

COURTS AND JUDGES – duty to unrepresented litigant – obligation to ensure unrepresented litigant has information about the practice and procedure of the court – obligation to ensure a fair trial

EVIDENCE – admissibility – expert evidence – trial judge did not err in admitting expert evidence where expert not required for cross-examination

EVIDENCE – admissibility – transcript of Local Court proceedings – whether trial judge erred in rejecting the whole of the transcript of Local Court proceedings – trial judge did not err – basis of tender of the transcript was convenience – no identification of the relevant portions of the transcript

EVIDENCE – privilege – immunity given to statements made in court or in connection with court proceedings – statements upon which appellant based claims in injurious falsehood and conspiracy to injure protected by immunity

PRACTICE AND PROCEDURE – adjournment – where appellant did not have legal representation for balance of the hearing – whether trial judge’s refusal to grant an adjournment constituted a miscarriage of discretion – trial judge did not err in refusing an adjournment

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules, r 51.36(2) – challenges to findings of fact – requirement for separate identification in written submissions of challenges made to primary facts found by trial judge

Chevalley v Industrial Court of New South Wales [2011] NSWCA 357 (24 November 2011)

ADMINISTRATIVE LAW – judicial review – constitutional validity of legislation – whether s 26 of the Occupational Health and Safety Act 2000 violates the principles underlying Ch III of the Constitution
CONSTITUTIONAL LAW – constitutional validity of legislation – whether s 26 of the Occupational Health and Safety Act 2000 violates the principles underlying Ch III of the Constitution
CRIMINAL LAW – director’s liability for corporation’s contravention – whether defences in Occupational Health and Safety Act 2000 s 26 and s 28 illusory
EVIDENCE – admissibility – whether certificate of conviction of corporation admissible and sufficient to prove essential fact of corporation’s contravention of the Occupational Health and Safety Act 2000 – Evidence Act 1995 s 178
PROCEDURE – civil – documents – amendment – refusal to allow amendment – issue not raised by notice given under Judiciary Act 1903 (Cth) s 78B
STATUTORY INTERPRETATION – Occupational Health and Safety Act 2000 s 26 – whether charges bad in law for failing to particularise steps defendant should have taken to avoid contravention – whether charges bad in law for failing to particularise act or omission of defendant constituting contravention

Evidence Act 1995 , s 178(1)