Monthly Archives: June 2012

R v Janima [2012] NTSC 35 (6 March 2012)

CRIMINAL LAW – Evidence – cross-examination – requirement to tender a statement cross-examined upon beyond those parts used by the witness to refresh memory – no requirement that tender be sought before the close of cross-examination – complainant cross-examined about a statement made by her to police – defence required to tender the complainant’s statement

Evidence Act (NT), s 19 and s 20

Evidence Act (Vic), s 36

Erdogan v Ekici [2012] VSC 256 (27 June 2012)

CAPACITY – funds in court – person under disability – plaintiff suffered brain injury in vehicle accident in 1999 – compensation paid into court in 2004 – application in 2010 to Senior Master for funds in court to be released to the applicant – whether applicant no longer a person under disability – whether capacity to manage own affairs – test to be applied – Supreme Court (General Civil Procedure) Rules 2005 rr 77.01, 79.02; Guardianship and Administration Act 1986 s 66.

PRACTICE AND PROCEDURE – funds in court – application for return of funds and property – appeal from associate justice – de novo rehearing – proper procedure considered – Supreme Court (General Civil Procedure) Rules 2005 rr 1.15, 77.01, 77.06; Civil Procedure Act 2010 (Vic) s 47(1).

PRACTICE AND PROCEDURE – inherent jurisdiction – parens patriae – application for return of funds and property in court – whether capacity to manage own affairs.

Tasmania v B (No 2) [2012] TASSC 39 (22 June 2012)

Evidence – Admissibility and relevancy – Hearing – In general – Relevant principles – Exceptions to hearsay rule – Prior inconsistent statement – Previous representation by witness of admission by accused – Witness acknowledging making of representation but not its truth.
Evidence Act 2001 (Tas), s60(3).
Lee v R (1998) 195 CLR 594; R v AA (No 1) [2009] NSWSC 1414, distinguished.
Aust Dig Evidence [48]

Binetter v Deputy Commissioner of Taxation (No 2) [2012] FCA 655 (19 June 2012)

PRACTICE AND PROCEDURE – judicial review of notice under Income Tax Assessment Act 1936 (Cth) s 264 – admissibility of expert evidence – report by independent accountant – evidence going to meaning of notice and reasonableness of time for compliance – relevance – whether probative value of report substantially outweighed by danger of undue waste of time

Tasmania v B [2012] TASSC 38 (13 June 2012)

Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Electronic recording – Admissions at police station and accused’s home not electronically recorded – No audio-visually recorded interview when accused invited to adopt or confirm making of admissions – Audio-visual recording facilities available – Whether reasonable explanation why audio-visual record of adoption or confirmation of admissions could not be made – Whether exceptional circumstances which in the interests of justice justified the admission of the evidence.
Evidence Act 2001 (Tas), s85A(1)(c), (d).
R v Julin [2000] TASSC 50, followed.
Kelly v R [2004] HCA 12; (2004) 218 CLR 216; R v Arnol (1997) 6 Tas R 374; R v McKenzie [1999] TASSC 36; Tasmania v Cadman (2011) 208 A Crim R 541, referred to.
Aust Dig Criminal Law [2753]

DPP v Haddara (Ruling No1) [2012] VSC 276 (5 June 2012)

CRIMINAL LAW – Evidence – Attempted murder – Tape recording of conversation at time of shooting – Comparison with recording of interview of accused by police – Whether recording of interview admissible – Accused suffering from intellectual impairment – Whether accused had adequate capacity to exercise right to silence – Evidence Act 2008 (Vict) s 90, 137.

DPP v Haddara (Ruling No 2) [2012] VSC 277 (15 June 2012)

CRIMINAL LAW – Evidence – Attempted murder – Tape recording made by principal prosecution witness tendered in evidence – Witness claiming tape was of circumstances of alleged shooting – Cross-examination as to time recording made – Cross-examination based on telephone device records in depositions – Prosecution giving notice of additional witness to explain time of recording made – Whether unfair prejudice to accused – Procedural unfairness held to outweigh probative value of new evidence – Evidence not admitted – Evidence Act 2008 (Vic) 2008 s 137.

Jeffrey-Potts v Garel [2012] VSC 237 (22 June 2012)

CONTRACT – Existence of interest-free loan agreements – Limited documentary evidence – Note recording a loan agreement signed by both parties – Whether loan agreement was incomplete or uncertain – Repayments of loans made irregularly – Burden of persuasion on defendant.

TRUSTS – Existence of an express trust – Intention to create a trust.

EQUITY AND TRUSTS – Resulting trust – Contributions to purchase price – Calverley v Green [1984] HCA 81; (1984) 155 CLR 242.

EQUITY AND TRUSTS – Common intention constructive trust – Property acquired in course of mother/surrogate son type relationship – Property held in the name of one party – No common intention to create trust.

EQUITY AND TRUSTS – Remedial constructive trust – Existence of joint endeavour – Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 and Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 – Provision of funds for the purchase of the properties by both parties – Non-financial contributions made by both parties – Pooling of funds for payment of properties — Whether unconscionable to allow one party to assert sole title – Quantification of contributions of parties – Adjustments to be made.

EQUITY AND TRUSTS – Applicability of the doctrine of laches.

PROPERTY – Lodging of caveats – whether reasonable cause to lodge caveats existed.

PRACTICE AND PROCEDURE – Admissibility of evidence after conclusion of trial.

Brown v Health Services Union [2012] FCA 644 (21 June 2012)

INDUSTRIAL LAW – declaration that organisation has ceased to function effectively – no effective means under rules – scheme approved – terms and conditions of scheme – appointment of interim administrator – vacation of all offices – demerger

PRACTICE AND PROCEDURE – New South Wales Industrial Court proceeding – cross vested

PRACTICE AND PROCEDURE – agreed statement of facts – declarations

Palavi v Queensland Newspapers Pty Ltd & Anor [2012] NSWCA 182 (20 June 2012)

PROCEDURE – Defamation proceedings – Destruction of mobile phones prior to commencement of proceedings – Admitted facts before primary judge disclosed evidence material to pleaded imputations had been destroyed – Whether admitted facts supported the inference that appellant intended to pervert the course of justice – Whether primary judge erred in striking out appellant’s statement of claim as an abuse of process – Uniform Civil Procedure Rules, r 13.4(1)(c)

DEFAMATION – Destruction of evidence prior to commencement of proceedings – Claim for aggravated damages – No defence filed – Notice to strike out claim – Whether truth of imputations in issue on claim

Campbell Street Theatre Pty Ltd (receiver and manager appointed) (in liquidation) & Ors v Commercial Mortgage Trade Pty Ltd & Anor [2012] NSWSC 669 (19 June 2012)

CORPORATIONS – Uncommercial transactions – Corporations Act 2001 (Cth) s 588FB – Whether entry into deeds of agreement was an uncommercial transaction – Insolvency – Corporations Act 2001 (Cth) s 588FC – Whether entry into deeds of agreement was an insolvent transaction – Voidable transactions – Whether entry into deeds of agreement was a voidable transaction – Whether First Plaintiff should be released from the transaction.

Clarke & Ors v Great Southern Finance Pty Ltd (recs & mgrs apptd) & Ors [2012] VSC 260 (20 June 2012)

EVIDENCE – PRIVILEGE – joint privilege – material disclosed subject to joint privilege – whether jointly privileged material able to be tendered in inter partes proceedings – whether privilege waived or lost – question determined prior to trial – Evidence Act 2008 (VIC) ss 124 and 131A – whether proceedings relate to same matter as material – whether joint privilege arose out of joint retainer – loss of joint privilege at common law when parties in litigation – whether joint privilege able to be lost through party possessing material – Calcraft v Guest [1898] 1 QB 759.

Hull v Smith [2012] NSWCA 183 (18 June 2012)

PRACTICE AND PROCEDURE – Application to extend time for filing a Notice of Appeal – whether appeal has reasonable prospects of success – held no – no matter of principle

6. His Honour spent a considerable amount of time in his judgment discussing all these matters. He then referred to s140 of the Evidence Act 1995 which provides in paraphrase that the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities, but in doing so the court must take into account the nature of the subject matter of the proceeding and the gravity of the matters alleged. He then noted that in an English case, Re A (A Minor) [1994] 2 FLR 463 (Eng), Lord Justice Waite had said that the issue of paternity is a serious one, more serious in the scale of gravity than, for example, proof of debt or minor negligence and the balance of probability has to be established to a degree of sureness in the mind of the court which matches the seriousness of the issue.

Lewis v Nortex Pty Limited (in liq) [2012] FCA 621 (15 June 2012)

BANKRUPTCY AND INSOLVENCY – application to set aside a bankruptcy notice –whether orders attached to a bankruptcy notice identified payments to be made on different accounts

22. I did not understand there to be, finally, any other substantive ground raised in support of the application to set aside the bankruptcy notice, although a number of other matters were raised in the written submissions. One matter which appears to me not to be covered in one way or another by the matters already discussed is a suggestion that the JUDGMENT/ORDER signed and sealed by a Registrar of the Supreme Court on 17 August 2010 was not a “final Judgment or final Order” as required by s 41 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”). The JUDGMENT/ORDER signed and sealed by the Registrar is a “certificate” for the purposes of s 178 of the Evidence Act 1995 (Cth). The certificate is evidence of the existence of an order by “an applicable court” and of the matters stated in the certificate. It was accepted that the specific orders set out in the certificate are an accurate consolidation of orders actually made, and in effect. If there was any infelicity or clerical error in the certificate, s 306 of the Bankruptcy Act would, in my view, operate to overcome any such defect. The certificate was adequate proof of a final judgment or order and the existence of the debt claimed.

Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 (22 March 2012)

LOCAL GOVERNMENT – building control – development application – principles – whether application in respect of “designated development” – Environmental Planning and Assessment Act 1979 (NSW), s 77A – identification of “existing or approved development” – Environmental Planning and Assessment Regulation 2000 (NSW) Sch 3, Pt 2, cl 35

APPEAL – appeal from Land and Environment Court – whether order or decision on question of law – where decision required formation of opinion appeal available if decision maker asked the wrong question – Land and Environment Court Act 1979 (NSW), s 57

EVIDENCE – presumption of regularity – whether applicable to issue of whether original development consent given – whether original consent can be inferred from subsequent development consents

PROCEDURE – adequacy of reasons – burden of proof – whether establishing existing use rights a principal contested issue between parties in merits hearing to determine development application

Levy v Bablis [2012] NSWCA 157 (30 May 2012)

PRACTICE & PROCEDURE – Interlocutory application – Application for leave to adduce fresh and further evidence on appeal

EVIDENCE – Subpoena to produce documents – Claim of legal professional privilege over subpoenaed documents – Whether the documents were privileged – Copies of documents submitted to legal advisers for legal advice are privileged – Waiver of privilege – Originals not privileged

Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16 (2 March 2012)

COPYRIGHT – literary work – originality – whether copyright subsists in HTML source code of material safety data sheets (MSDSs) rendered by computer program – whether work of joint authorship – where HTML source code is generated by computer program and includes data entered manually – whether copyright subsists in only part of the relevant copyright work

COPYRIGHT – literary work – originality – whether copyright subsists in MSDSs created by a process of transcription of third party MSDSs

COPYRIGHT – infringement – implied licence arising as a matter of law – scope of licence – where manufacturers, importers and suppliers of hazardous substances required to comply with legislative regimes for the provision of MSDSs – where first respondent reproduced appellant’s MSDSs in anticipation of receipt of customer requests for their provision

COPYRIGHT – infringement – whether appellant discharged onus to prove absence of licence in circumstances where primary judge found many MSDSs were the subject of a customer request for their provision and many were not – whether respondents carried an evidentiary burden to show acts falling within the scope of the implied licence found

Neill-Fraser v Tasmania [2012] TASCCA 2 (6 March 2012)

Criminal Law – Evidence – Matters relating to proof – Standard of proof – Circumstantial evidence – Motive – Whether facts establishing a motive are indispensable to the drawing of an inference of guilt – Whether those facts must be proved beyond reasonable doubt – Direction to jury.
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, applied.
Penney v R [1998] HCA 51; (1998) 72 ALJR 1316, not followed.
R v Pantoja [1998] NSWSC 565, R v Plevac [1999] NSWCCA 351, R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166, R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, R v Koeleman [2000] VSCA 141; [2000] 2 VR 20, R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479, R v Cummins [2004] VSCA 164; (2004) 10 VR 15, approved.
Aust Dig Criminal Law [2709]

Criminal Law – Evidence – Matters relating to proof – Standard of proof – Circumstantial evidence – Reasonable hypothesis consistent with innocence – Directions to jury – Adequacy – Whether a need for a direction that intermediate facts must be proved beyond reasonable doubt.
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, followed.
Re Belhaven and Stenton Peerage (1875) 1 App Cas 278, Liberato v R [1985] HCA 66; (1985) 159 CLR 507, referred to.
Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521, HML v R [2008] HCA 16; (2008) 245 ALR 204, distinguished.
Aust Dig Criminal Law [2711]

Criminal Law – Evidence – Corroboration – What constitutes corroboration – Admissions and conduct of accused – Lies, denials etc – Post-offence conduct – Allegations of laying of a false trial – Whether relied on by Crown as probative of guilt or going to credit – Direction to jury.
Edwards v R [1993] HCA 63; (1993) 178 CLR 193, Zoneff v R (2000) 299 CLR 234, Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479, R v Chang [2003] VSCA 149; (2003) 7 VR 236, R v Cook [2004] NSWCCA 52, R v SBB (2007) 175 A Crim R 573, R v MC [2009] VSCA 122, approved.
Aust Dig Criminal Law [2910]

Criminal Law – Sentence – Relevant factors – Response to charges – Co-operation with police or assistance to authorities – Generally – Post-offence conduct – Inconvenience and expense of investigation caused by accused’s actions – Whether an aggravating factor.
R v Cavkic (No 2) [2009] VSCA 43, R v Wilkinson (No 5) [2009] NSWSC 432, applied.
Fox v Fletcher unreported 17/1970, referred to.
Aust Dig Criminal Law [3274]

Australian Competition and Consumer Commission v Link Solutions Pty Limited (No 3) [2012] FCA 348 (5 April 2012)

TRADE PRACTICES – Exclusive Dealing – Third line forcing – Telecommunication companies offered call credits to customers conditional upon them leasing equipment from one of a panel of finance companies – declarations and injunctions by consent – Power to grant declaratory relief by consent – Presence of a proper contradictor – Relief granted

TRADE PRACTICES – Misleading and deceptive conduct and false representations in relation to ‘free’ equipment when the customer had signed an equipment lease – declarations by consent

Allam v Aristocrat Technologies Australia Pty Ltd (No 2) [2012] FCAFC 75 (25 May 2012)

PRACTICE AND PROCEDURE – scope of remittal to the primary judge

EVIDENCE – whether s 94(3) of the Evidence Act 1995 (Cth) precluded the application of s 97 – whether further submissions should be received as to the applicability of s 97 to the admissibility of “impugned” emails in circumstances where no ground of appeal relied on s 97

COSTS – where appeals successful but the appellants were not successful on a substantial number of issues raised

North Sydney Leagues’ Club Limited v Synergy Protection Agency Pty Limited [2012] NSWCA 168 (8 June 2012)

CONTRACTS – Contract for provision of security services – Breach of contract – Award of expectation damages – Whether overhead expenses should be included in the assessment of damages – No absolute principle that account must be taken of overhead expenses – Plaintiff is entitled to such damages as place it in the same position it would have been in had the contract been performed – The Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64

DAMAGES – Contract – Breach of contract – Sufficiency of evidence to prove claim for damages – Challenge to the reliability and admissibility of accounting evidence – Inaccuracies were not of sufficient size or volume to raise sufficient doubt as to overall accuracy of accounting evidence – Sufficiency of evidence is a matter for the trial judge

EVIDENCE – Evidence Act 1995 , s 146 – Exhibits derived from business records – Statutory presumption – Section 146 relates to documents produced by processes, machines or other devices – Presumption not directed to underlying accuracy of information contained in a document or record that is reproduced

Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors (No 2) [2012] VSC 239 (8 June 2012)

TRADE PRACTICES – Misleading or deceptive conduct – whether any representations were made by the Defendants in respect to the status, purchase and development of land in Dubai – execution of contract and payment of a fee by the Plaintiff – whether any conduct of, including any representations, of the Defendants was misleading or deceptive or otherwise in breach of statutory prohibitions – whether the Plaintiff relied on any conduct including misrepresentations to its detriment – causal connection between the conduct of the Defendants and the misapprehension of the Plaintiff – no reliance by the Plaintiffs on the alleged misrepresentations – whether First to Third Defendants a ‘person involved’ in a contravention for the purposes of accessorial liability – failure of Plaintiffs to establish loss or damage – Gould v Vaggelas [1985] HCA 85; (1985) 157 CLR 215; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592; ACCC v Dukemaster Pty Ltd [2009] FCA 682 – Trade Practices Act 1974 (Cth) ss 5(1), 6(2), 52, 53, 53A, 75B, 82 – Fair Trading Act 1999 (Vic) ss 9, 12, 158, 159.

TORTS – Deceit – jurisdiction and choice of law – whether alleged representations were fraudulent – whether elements of deceit established – no evidence to support claim of deceit – Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 – United Arab Emirates Civil Code (Law No. 5 of 1985).

CORPORATIONS – Corporate governance – Plaintiff’s announcements to Australian Stock Exchange (“ASX”) – Plaintiff’s failure to disclose market sensitive information in announcements to ASX – Board reporting.

EVIDENCE – Reliability of Plaintiffs’ witnesses – application of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 – application of Browne v Dunn (1893) 6 R 67 (HL) – Evidence Act 2008 (Vic) s 140.

R v Johnston [2012] ACTSC 89 (8 June 2012)

CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown is of significant probative value – application conditionally allowed

CRIMINAL LAW – EVIDENCE – Crown application to adduce Coincidence Evidence – evidence sought to be adduced by the Crown is not coincidence evidence according to s 98 of the Evidence Act 2011 (ACT) – application refused

Evidence Act 1995 (Cth), ss 97

Evidence Act 2011 (ACT), ss 55, 56, 97, 98, 101, 137,

Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582 (6 June 2012)

BANKRUPTCY – Appeal from sequestration order – where federal magistrate refused to adjourn creditor’s petition – federal magistrate allowed the creditor’s petition to be amended to correct judgment date and dispensed with service of the amended petition – federal magistrate refused to receive bankrupt’s evidence where bankrupt required for cross-examination on her affidavits but did not attend – whether grounds of appeal disclose any appealable error

SALMON v R [2012] NSWCCA 119 (4 June 2012)

CRIMINAL LAW – CONVICTION APPEAL – theft assault and robbery convictions – appellant self-represented – whether hearsay evidence wrongfully admitted – whether Crown address caused miscarriage of justice – whether miscarriage of justice as a result of directions by trial judge – whether fresh evidence should be admitted on appeal – whether miscarriage of justice occurred as the result of conduct by appellant’s counsel – whether revocation of bail during trial caused miscarriage of justice – whether jury verdict unreasonable – SENTENCE APPEAL – whether sentencing judge erred in assessment of objective seriousness – whether principle of totality applied – whether sentence manifestly excessive.

Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594 (1 June 2012)

SUCCESSION – wills, probate and administration – making of a will – deceased creates a Microsoft Word document in his personal computer – document not executed in accordance with Succession Act, s 6 – whether the document expresses the testamentary intentions of the deceased – whether the deceased intended the document to be his will – Succession Act, s 8 – revocation – document printed out of deceased’s computer but not found amongst his papers after his death – Microsoft Word document not deleted from deceased’s computer – whether the deceased destroyed the printed version of the document – if so, whether the deceased intended to revoke the testamentary intentions expressed within the Microsoft Word document and/or the printed document – whether the deceased no longer intended to treat the Microsoft Word document and the printed document as his will – HELD: no intention to revoke the testamentary intentions expressed in the Microsoft Word document – the Microsoft Word document satisfies Succession Act, s 8 and should be admitted to probate.

Scott Alan May v Regina [2012] NSWCCA 111 (31 May 2012)

CRIMINAL LAW – appeal – conviction – evidence – whether verdict unreasonable on evidence
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – whether misdirection in summing up to jury – whether extended joint criminal enterprise alternative should have been left to jury
CRIMINAL LAW – appeal – conviction – whether misdirection in summing up to jury – whether evidence capable of verifying key witness’s account
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – whether manslaughter alternative should have been left to jury

Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 (30 May 2012)

PRACTICE AND PROCEDURE – Stay of proceedings – whether civil proceeding should be stayed pending determination of criminal proceeding relating to the same subject matter – whether real risk of prejudice – application and ambit of McMahon v Gould guidelines – previous breach of undertaking by respondent to stay application, who provided statement of claim to police – risk of further disclosures – applicants for stay impecunious – burden of concurrent civil and criminal proceedings

In the matter of Idylic Solutions Pty Ltd & ors – Australian Securities and Investments Commission v Hobbs [2012] NSWSC 581 (30 May 2012)

CASE MANAGEMENT – interlocutory applications regarding affidavit evidence, vacation of the hearing date and request for a referral for pro bono legal assistance – HELD – application to vacate dismissed but commencement date deferred – limited order for pro bono assistance – other applications dismissed.

Clarence City Council v Howlin [2012] TASSC 26 (28 May 2012)

Highways – Creation and extinction of highways – Dedication – What constitutes dedication – In general – Common law principles – Intention to dedicate – Rebuttal of the presumption of dedication that arises from user.
President of the Shire of Narracan v Leviston [1906] HCA 34; (1906) 3 CLR 846, followed.
Aust Dig Highways [13]

Highways – Construction, maintenance and repair – Roads –Whether road maintained as shown on municipal map.
Local Government (Highways) Act 1982 (Tas), s21.
Local Government Act 1993 (Tas), s208.
Aust Dig Highways [27]

Bateson v Chief of Army [2012] ADFDAT 3 (25 May 2012)


DEFENCE AND WAR – appeal – charges of insubordination – grounds – convictions unreasonable and cannot be supported with regard to the evidence – wrong decisions on questions of law made – material irregularity – convictions unsafe and unsatisfactory – found – no material error in conduct of trial – no error in taking into account uncharged acts – no irregularity found – mistake of fact ground – possible defence not taken into account at trial – appellant deprived of chance of acquittal – miscarriage of justice occurred – appeal allowed – convictions quashed – no retrial ordered

Trkulja v Yahoo! Inc LLC & Anor (No 2) [2012] VSC 217 (25 May 2012)

DEFAMATION – COSTS – Application by successful plaintiff for indemnity costs – Proof that defendants had not made settlement offer – Whether failure of defendants to make settlement offer unreasonable – Whether failure of defendants to accept settlement offer by plaintiff unreasonable – Defamation Act 2005 s 40(2).

In the matter of Idylic Solutions Pty Ltd & ors – Australian Securities and Investments Commission v Hobbs [2012] NSWSC 568 (25 May 2012)

EVIDENCE – s 50 Evidence Act 1995 (NSW) – whether evidence summarising voluminous or complex underlying documents could be adduced as “summaries” pursuant to s 50 – whether a document prepared through a process that involved the exercise of judgment or the application of a calculation is a “summary” – whether document summarising other summary documents is a “summary” – whether a conclusion based on underlying documents is a summary – HELD – document prepared through simple application of arithmetical formula is a “summary” – document prepared involving the exercise of judgment or opinion is not a “summary” – document summarising other summary documents is a “summary” – evidence containing conclusions are not “summaries” but are to be treated as submissions

Nexus Energy Limited v Cottee [2012] VSC 215 (24 May 2012)

CONTRACT – Restraint of trade – Contract of employment – Post-employment restraint clause – Settlement agreement between the parties modifying the expiration date of the restraint period – Whether the respondent evinced an intention to not be bound by the settlement agreement – Whether the terms of the settlement agreement were otherwise breached – Applicant did not discharge burden of proof – Application dismissed.

Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155 (23 May 2012)

CONTRACT – principal and agent – authority of agent – whether sufficient evidence to find agent had authority to incur liability under contract
EVIDENCE – admissibility – hearsay – business records – email purportedly sent by company officer – whether proof of officer’s authority to order goods on behalf of company

“18. By reason of s 161 of the Evidence Act 1995 , that email is to be presumed, in the absence of evidence suggesting the contrary, to have been sent by DIAG. Utilising the power conferred by s 183 of the Evidence Act to draw inferences, it should be inferred that a copy of that email was retained by DIAG, for at least a short period, as part of the records of its business. As a result, it can be concluded that the document in evidence is a copy of a business record of DIAG within the meaning of s 69 of the Evidence Act .”

Jones v Chief of Navy [2012] ADFDAT 2 (22 May 2012)


DEFENCE AND WAR – charges of indecency – seven counts of indecency found by General Court Martial –appeal – grounds – prosecutor’s final address at trial prejudicial – direction made by Judge Advocate to jury – any prejudice to appellant negatived – grounds not made out – ruling made by Judge Advocate on objections to charge sheet – provision relied upon said to be unavailable – duplicity alleged – grounds not made out – provision of Crimes Act on consent said not to apply – ground not made out – Judge Advocate said to have erred in pre-trial ruling on the defence’s objection to a member of the panel – application was refused – said to be reasonable grounds for inferring ostensible bias – resulting in wrongful convictions and substantial miscarriage of justice and/or material irregularity – ground not made out – fraudulent misrepresentation of fact said to have occurred – error alleged in Judge Advocate’s directions to panel on whether or not complainant’s consent negatived – ground not made out – convictions said to be inconsistent with acquittals – found – open to panel to conclude to requisite standard that appellant guilty – ground rejected – conviction under Charge 22 said to be unreasonable and/or could not be supported by evidence – ground upheld – Charge 22 quashed – Charge 23 laid as alternative to Charge 22 – evidence supports this charge – conviction recorded and appellant sentenced to severe reprimand – recorded telephone conversation between complainant and appellant said to be inadmissible – Judge Advocate ruled that desirability of admitting evidence outweighed undesirability of admitting it – no error in exercise of discretion – ground not made out – admission of recording of police interview with appellant – part of interview referring to covert recording – admission of this part of interview said to be erroneous – no error found – ground not made out – appellant said offences subject of convictions were indictable offences – entitled to trial by jury – ground dismissed – Tribunal bound by authority requiring rejection of ground

Plastec Australia Pty Ltd v Plumbing Solutions Pty Ltd [2012] FCA 510 (18 May 2012)

TRADE PRACTICES – consideration of whether a document distributed by means of a telecommunications facility and through the use of the postal service, contained representations of fact which were misleading or deceptive or likely to mislead or deceive consumers as to the entitlement of the applicant to sell plumbing fittings described and marked as compliant with a particular Australian Standard and an Australian Technical Specification – consideration of the extension provision, s 6(3) of the Trade Practices Act 1974 (Cth) as the applicable law at the material time – consideration of whether the material distributed by the third respondent containing the statements in suit, were statements made “in trade or commerce” – consideration of whether s 52 so far as that section purports to regulate conduct said to be misleading or deceptive in circumstances where the statements concern aspects of the legislative and regulatory environment governing the plumbing industry, engage the constitutional limitation or guarantee the subject of the decisions in Lange v Australian Broadcasting Corporation; Hogan v Hinch and Wotton v State of Queensland and related earlier authorities of the High Court (cited below) – consideration of whether, on the facts, the statements were representations or statements of opinion – consideration of whether the conduct of the third respondent in making the various statements was conduct in close association with the applicant’s principal rival

CONSUMER LAW – consideration of whether a document distributed by means of a telecommunications facility and through the use of the postal service, contained representations of fact which were misleading or deceptive or likely to mislead or deceive consumers as to the entitlement of the applicant to sell plumbing fittings described and marked as compliant with a particular Australian Standard and an Australian Technical Specification

STATUTES – consideration of the application of the cooperative arrangements for the legislative and regulatory arrangements governing the plumbing industry in Australia and New Zealand, by reference to the legislative instruments adopted in Queensland as emblematic of each jurisdiction’s legislation, including The Plumbing and Drainage Act 2002 (Qld); Standard Plumbing and Drainage Regulation 2003 (Qld); the provisions of the Plumbing Code of Australia 2004; and various Australian Standards and particularly Australian Technical Specification 5200.055:2008

Smith v Gould (Ruling No 1) [2012] VSC 210 (18 May 2012)

EVIDENCE – admissibility – statements in letters marked ‘without prejudice’ – letters sent between solicitors for persons who are not parties to or witnesses in the proceeding to solicitors for a bank – representations in the communications relevant to issue in the proceeding – no attempt to negotiate settlement of a dispute – letters not excluded by ‘without prejudice’ privilege – whether letters excluded from evidence by the hearsay rule – whether letters are ‘business records’ – whether business record exclusion to hearsay rule permits reception in evidence of the letters – Evidence Act 2008 (Vic), ss 59, 69 and 131.

B S J v The Queen [2012] VSCA 93 (17 May 2012)

CRIMINAL LAW – Appeal – Conviction – Incest – Coincidence evidence – Possibility of concoction relevant to assessment of probative value – No real possibility of concoction – Coincidence evidence – Cross-admissibility limited to similar evidence.

CRIMINAL LAW – Appeal – Sentence – Incest – Same sentence for different counts.

Badans v R [2012] NSWCCA 97 (17 May 2012)

CRIMINAL LAW – appeal – conviction – whether misdirections in summing up to jury – evidence – whether verdict unreasonable or unsupportable on evidence – Criminal Appeal Act 1912, s 5(1)(a) and s 5(1)(b)
CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – standard non-parole period – consideration of Muldrock – significance of appellant’s intellectual disability – Criminal Appeal Act 1912, s 5D(1)
CRIMINAL LAW – appeal – procedure – sentencing hearing – order Crown pay costs incurred by appellant in calling expert under s 177(7) of Evidence Act – no direction in accordance with s 4(2)(a) that law of evidence applied – costs order set aside

R v Aliwijaya [2012] NSWSC 503 (16 May 2012)

CRIMINAL LAW – procedure – determination as to fitness to be tried

CRIMINAL LAW – murder – trial by judge alone – offence committed whilst accused suffering acute symptoms of schizophrenic illness – consensus between expert psychiatrists as to mental illness defence – defence established

“33. The reports of the two psychiatrists were admitted by consent of both the Crown and the accused. The contents of the reports were uncontested and no order was sought limiting the use to be made of that evidence. In those circumstances, the reports are admissible to prove the accused’s version of events: s 60 of the Evidence Act 1995 ; R v Welsh (1996) 90 A Crim R 364 at 367-369. It is apparent from their opinions that both psychiatrists accepted the accused’s account as to his past perceptions. I am satisfied on that basis that I can rely on the reports as recording a genuine account of the accused’s state of mind at relevant times. “