Monthly Archives: June 2012

Deputy Commissioner of Taxation v Revolve Limited [2012] FCA 555 (11 May 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/555.html

No catchwords

“1. This is an interlocutory application filed on 17 April 2012 under which Ms Kay Hewitt a former director of the defendant company (Revolve Limited) seeks leave pursuant to s 471A(1A)(d) of the Corporations Act 2001 (Cth) to cause the defendant to commence and proceed with the review of a winding up order made by Registrar Hedge on 16 March 2012.
2. The application also seeks the setting aside of the winding up order and dismissal of the plaintiff’s application for the winding up. The plaintiff (the Deputy Commissioner of Taxation) opposes leave to extend time for the making of the application.”

Edwards & Ors v Vic Land Rehabilitation Pty Ltd & Ors [2012] VSC 188 (9 May 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/188.html

Evidence – Legal professional privilege – Legal advice provided to a client disclosed in the affidavit of another party in the proceeding – Client claims privilege – Whether privilege lost through disclosure by a client or party concerned under the Evidence Act 2008 (Vic) s 122(2) – Meaning of client or party concerned – Evidence Act 2008 (Vic) ss 117, 122 – WORDS AND PHRASES – “party”.

Legal practitioners – Application restraining legal practitioners from acting – Where counsel and solicitor are potential witnesses – Proper administration of justice.

DPP v Kocoglu [2012] VSC 185 (9 May 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/185.html

CRIMINAL LAW – Application for advance ruling on whether cross-examination of the main Crown witness on his criminal record would result in the Court granting leave to the prosecution to cross-examine the Accused on his criminal record if he gave evidence – If cross-examination on the main Crown witness’s criminal record were confined to that witness’s drug offences, leave would not be given to the prosecution to cross-examine the Accused on any aspect of his criminal record – If the main Crown witness were cross-examined on his entire criminal record, leave would be granted to the prosecution to cross-examine the Accused only on his prior dishonesty offences – Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 applied; R v El-Azzi [2004] NSWCCA 455 (16 December 2004) considered – Evidence Act 2008, ss 101A, 102, 103, 104, 110, 112, 192, 192A.

Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433 (8 May 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/433.html

PROCEDURE – various motions and oral applications – application by defendants for summary dismissal of Attorney General’s summons – application refused – motion seeking leave to issue subpoenas – refused – application for trial by jury – application previously heard and refused –
leave sought to proceed on defendants’ proposed statement of claim – leave not granted – notices to admit facts served on Attorney General – refused – summary judgment on notice to admit facts served on the Commonwealth – notice set aside – leave sought by Commonwealth to amend its motion to set aside notices to produce documents granted – motion to set aside notices to produce documents – granted – notices to produce served on Attorney General – motion seeking production of documents by Attorney General – production of certain documents required, motion otherwise dismissed

Rite Flow Pty Limited v Nahas Constructions (NSW) Pty Limited [2012] NSWSC 553 (6 March 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/553.html

CORPORATIONS – Winding up – Statutory demand – Application to set aside statutory demand – Whether there is a “genuine dispute” as to the amount claimed in the statutory demand.
COSTS – Indemnity costs – Application for indemnity costs in circumstances where there were significant deficiencies in respect of statutory demand, a very substantial defect in the affidavit verifying the statutory demand, and a finding that the statutory demand was not a proper use of the statutory demand procedure.

Tasmania v Hudson and Whiting [2012] TASSC 31 (18 April 2012)

http://www.austlii.edu.au/au/cases/tas/TASSC/2012/31.html

Criminal law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Particular cases – Interviewed in breach of Criminal Law (Detention and Interrogation) Act 1995, s6.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s6.
Evidence Act 2001 (Tas), s90.
R v Em [2003] NSWCCA 374, applied.
Aust Dig Criminal Law [2688]

R v Belghar [2012] NSWCCA 86 (4 May 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/86.html

CRIMINAL LAW – 5F application – jury trial – trial by judge alone – application of s 132 of the Criminal Procedure Act 1986 – whether there is a presumption in favour of a jury trial – what factors are relevant to a determining the interests of justice – whether the subjective views of the accused are relevant to the interests of justice – whether there is evidence to support the subjective views of the accused – whether trial efficiency and reasons are relevant to the interests of justice

Allardyce Lumber Company Limited and Ors v Quarter Enterprises Pty Limited and Anor (No. 2) [2012] NSWSC 438 (4 May 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/438.html

JUDGMENTS – foreign judgment – judgment of High Court of Solomon Islands – judgment registered after contested application under s.6 Foreign Judgments Act 1991 (Cth) – application under s.7 to set aside registration of judgment – whether judgment registered in contravention of Act – whether High Court of Solomon Islands had jurisdiction – whether judgment obtained by fraud – whether applicable test is different where fraud alleged in obtaining foreign judgment as opposed to local judgment – whether enforcement of judgment contrary to public policy – whether matter in dispute already subject of final and conclusive judgment by other court – whether leave to reopen hearing ought be granted after judgment reserved – reopening application refused – all grounds to set aside registration of judgment rejected

“125.In determining whether the Applicants have discharged the civil standard of proof that the judgment was obtained by fraud, the Court should take into account the gravity of the matters alleged: s.140(2)(c) Evidence Act 1995 . Section 140(2) imports the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 in requiring a court, when considering whether it is satisfied on the balance of probabilities, to take into account the gravity of the matters alleged in relation to the question: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at [61]; Palmer v Dorman [2005] NSWCA 361 at [40]- [47].”

Australian Securities and Investments Commission v Hellicar; Australian Securities and Investments Commission v Brown; Australian Securities and Investments Commission v Gillfillan; Australian Securities and Investments Commission v Koffel; Australian Securities and Investments Commission v Terry; Australian Securities and Investments Commission v O’Brien; Australian Securities and Investments Commission v Willcox; Australian Securities and Investments Commission v Shafron [2012] HCA 17 (3 May 2012)

http://www.austlii.edu.au/au/cases/cth/HCA/2012/17.html

Corporations – Duties and liabilities of directors and officers – Contraventions of civil penalty provisions of Corporations Act 2001 (Cth) (“the Act”) – Corporation released misleading announcement to Australian Stock Exchange (“ASX”) – Australian Securities and Investments Commission (“ASIC”) brought proceedings against respondents (and others) for contraventions of the Act – Section 180(1) of the Act required directors and officers to act with degree of care and diligence that reasonable person in that position would exercise – ASIC alleged directors contravened s_180(1) by approving draft announcement not materially different from misleading announcement released to ASX – ASIC alleged company secretary and general counsel of corporation contravened s 180(1) by not advising board that draft announcement was misleading – Whether directors approved draft announcement.

Evidence – ASIC tendered minutes of board meeting recording tabling and approval of draft ASX announcement – Minutes subsequently approved – ASIC did not call corporation’s solicitor, who had supervised preparation of draft minutes and attended board meeting – Whether ASIC owed respondents a “duty of fairness” in its conduct of litigation – Whether ASIC breached putative duty by not calling solicitor – Whether proper consequence of any such breach was to discount cogency of ASIC’s case – Whether board minutes sufficient evidence to prove directors’ approval of draft announcement.

Words and phrases – “cogency of proof”, “duty of fairness”, “obligation of fairness”, “onus of proof”, “satisfaction on the balance of probabilities”.

Ballard v Multiplex [2012] NSWSC 426 (3 May 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/426.html

[PROCEDURE] – plaintiff’s application to reopen case – whether interests of justice favour reopening for purpose of admitting new material – whether finding by a commissioner as to the credibility of a witness is admissible in other proceedings for the purpose of proving that witness’s credibility – whether plaintiff made a tactical decision not to tender an expert’s report – whether expert’s report, obtained on subpoena, is tendered for the purpose of responding to a submission put by the defendants as to plaintiff’s alleged depression.

[EVIDENCE] – proof – standard of proof – civil – approach to assessment of credibility – burden of proof to the Briginshaw v Briginshaw standard – whether onus of proof in civil litigation is any different where the fact involves criminal conduct, fraud or serious misconduct – whether evidence of each witness should be assessed, on its own merits, for credibility – whether court can defer resolution of the question of credibility until all the facts have been found.

[TORTS] – intentional – conspiracy – harm by lawful means – harm by unlawful means – whether there existed a conspiratorial agreement between the first, second, either the third and fourth or both, or the fifth defendant and others to ensure that the plaintiff and his company were removed from the construction industry – whether defendants’ intent and purpose of agreement was to injure the plaintiff – whether first and second defendants had an evil intention of the kind contemplated by Evatt J in McKernan v Fraser – whether purpose of the fifth defendant entering into agreement (if it did) was to injure the plaintiff – whether agreement becomes tainted and all participants are liable for harm if one, or all of the defendants had an evil motive and countenanced this purpose by giving assistance – whether any such conspiracy agreement was carried into execution.

[TORTS] – intentional – tort of intimidation – whether third, fourth and fifth defendants coerced the first and second defendants by way of threat and intimidation to terminate the construction contract – whether threats by defendant were unlawful as to induce, procure or engage in unlawful industrial action – whether third and fourth defendants threatened to use unlawful means to compel the first and second defendants to obey the defendant’s demands – whether the third and fourth defendants intended that by making the threat, the first and second defendants would be persuaded to accede to the other defendants’ will, being to deprive the plaintiff of the opportunity to provide demolition services.

[TORTS] – intentional – wrongful interference – whether tort of unlawful interference exists – whether third, fourth and fifth defendants illegally interfered with the contract between the first and second defendants and the plaintiffs – whether a contractual relationship existed between the first and second defendants – whether the third and fourth defendants knew of that relationship – whether the third and fourth defendants unjustifiably and intentionally interfered with the contract between the first and second defendants and the plaintiffs – whether that interference caused termination of the contract.

[LIMITATION OF ACTIONS] – limitation defence – fraudulent concealment – whether plaintiff’s cause of action is statue barred – whether plaintiff proved, on the balance of probabilities, that he discovered fraudulent concealment to enliven the operation of section 55 of the Limitation Act (NSW) – whether defendants fraudulently concealed causes of action from the plaintiff.

[BUILDING AND CONSTRUCTION] – contract – building – performance – whether subcontract was terminated lawfully – whether first and second defendants paid all that was contractually due – whether notice of default and notice of termination was ineffective – whether first and second defendants unlawfully locked out plaintiff from the work site – whether first and second defendants unlawfully and without authority or cause, seized and converted the plaintiff’s plant and equipment.

[DAMAGES] – torts – negligence – financial loss – pure economic loss – recoverability – damages for psychological and psychiatric impairment – aggravated and exemplary damages – whether experts report in relation to damages were based on assumptions made good in evidence – whether plaintiff can claim damages for lost earnings that would have been made but for the conspiracy – whether plaintiff can claim damages for the loss of opportunity – whether calculation of damages by expert was calculated with flawed assumptions.

SH v Regina [2012] NSWCCA 79 (3 May 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/79.html

CRIMINAL LAW – appeal – conviction – evidence – sexual intercourse with person aged under 10 years – complainant gave unsworn evidence – Court did not tell complainant that she should feel no pressure to agree with statements she believed were untrue – whether Evidence Act 1995 (NSW), s 13 complied with – whether non-compliance necessitates upholding appeal – whether miscarriage of justice

EVIDENCE – witnesses – competence – unsworn evidence – requirement that Court tell witness about to give unsworn evidence that he or she should feel no pressure to agree with statements that he or she believes are untrue – whether Evidence Act 1995 (NSW), s 13 complied with – whether witness competent to give unsworn evidence if not given required direction

Alfred v Construction, Forestry, Mining and Energy Union [2012] FCA 450 (2 May 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/450.html

INDUSTRIAL LAW – freedom of association – whether demand made by union official for employees to join a union in contravention of ss 346, 348, and 349 of the Fair Work Act 2009 (Cth) – whether identity of union official alleged to have made the demand established – application dismissed

EVIDENCE – s 45(3)(c) Evidence Act 1995 (Cth) – cross examination on alleged prior inconsistent statement contained in a document – whether document should be admitted into evidence

Australian Competition and Consumer Commission v Energy Watch Pty Ltd [2012] FCA 425 (30 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/425.html

CONSUMER LAW – misleading and deceptive conduct – advertising – breach of Australian Consumer Law ss 18(1), 29(1)(g), 34 – whether representations were made – whether representations were false, misleading or deceptive – whether qualifying information sufficiently clear and prominent

Re Bailey and Blake No 2 [2012] NSWSC 394 (27 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/394.html

ADMINISTRATIVE LAW – order in the nature of certiorari quashing the decision of a Children’s Court magistrate – alleged error in admitting expert report independently obtained by party without consent to assessment by all parties with parental responsibility. CHILDREN – care proceedings – whether expert report independently obtained by a party is admissible – whether consent of all persons with parental responsibility necessary – paramountcy of the interests of the children the subject of the proceedings – need to balance principle that probative evidence should be admitted against principle that evidence should not be admitted in contravention of the law – appropriate to consider the requirement that Children’s Court proceedings be conducted with as little formality and technicality as possible.

Coshott v Burke [2012] FCA 517 (27 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/517.html

BANKRUPTCY – annulment of bankruptcy pursuant to s153A Bankruptcy Act 1966 (Cth) – trustee gives notice of intention to declare final dividend under s 145 and requires proof of debt by specified date to facilitate annulment – application under s 104 by bankrupt for review of decision by trustee pursuant to s102(1)(b) to partially admit creditor’s proof of debt – where creditor delays lodging proof of debt for a period after specified date in notice – whether Court should reject late proof of debt on a review of trustee’s decision under s 104 in respect of bankrupt seeking annulment under s 153A
Held: Court conducts a review de novo under s 104 of the trustee’s decision to admit or reject creditor’s proof of debt – when considering whether trustee (or Court) satisfied for the purposes of s 153A(1) that bankrupt has paid all provable debts in full, trustee (or Court) not constrained by time specified in notice to creditors under s 145(3)

Denis Cassegrain & Ors v Gerard Cassegrain & Co. Pty Ltd & Ors [2012] NSWSC 403 (27 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/403.html

[CORPORATIONS] – whether the transfer of shares of the corporation in two other corporations by directors to wife and daughter respectively amounted to oppression against the minority shareholders – whether notice was given – whether consent or acquiescence – whether shares transferred at undervalue.

[DIRECTORS] – Obligations in circumstances where transfer of corporation’s assets are to be transferred to a family member – whether consent obtained – whether breach of statutory duties and breach of fiduciary duties.

[KNOWING RECEIPT] – where wife/daughter to whom shares transferred aware of circumstances which would indicate the facts to an honest and reasonable person – where admission that transfer was to avoid litigation and/or appointment of provisional liquidator.

[CONVEYANCING] – Conveyancing Act 1919 (NSW) – s 37A – whether alienation of shares to delay hinder or defraud creditors – where admissions that transfer was made to avoid the appointment of a provisional liquidator.

[EVIDENCE] – where plaintiffs did not give evidence – “rule” in Jones v Dunkel – whether necessity to give evidence to prove oppression under s 232 of the Corporations Act 2001 (Cth) – and/or to prove prejudice under s 37A of the Conveyancing Act 1919 (NSW)

Environinvest Limited v Pescott & Ors (No 2) [2012] VSC 151 (26 April 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/151.html

PRACTICE AND PROCEDURE – Application to amend pleading – Allegations of breach of ss 180, 181, 182 Corporations Act 2001 (Cth) – Relief sought under Part 5.7B Corporations Act 2001 (Cth) – Evidence supporting claims – Need for proper basis certification – Civil Procedure Act 2010 (Vic) s 18, Corporations Act 2001 (Cth) ss 180, 181, 182, 588FB, 588FC, 588FDA, 588FE, 588FF, 1317H.

45 Mr Robertson submitted that affidavit evidence given by Mr Dossetor and another witness (Anthony Medland) in separate proceedings are hearsay and no leave has been sought to use them in this proceeding. He noted that no notice of intention to adduce hearsay evidence had been given pursuant to s 67 of the Evidence Act 2008 (Vic). As counsel for the plaintiffs noted, this application is interlocutory and the hearsay rule does not apply.[28] Those affidavits go to show that there is a reasonable basis on which the plaintiffs may plead an arguable case.

Deputy Commissioner of Taxation, in the matter of Manta’s on the Beach Pty Ltd v Manta’s on the Beach Pty Ltd [2012] FCA 417 (24 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/417.html

CORPORATIONS – winding up – statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) – statutory demand sent by Commissioner though never received at company’s registered office – held non–compliance with s 109X of the Corporations Act 2001 (Cth)

EVIDENCE – presumptions pursuant to s 160 and s 163 of the Evidence Act 1995 (Cth) and s 29 of the Acts Interpretation Act 1901 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – only generic evidence led of postal delivery times to support presumption – express evidence of non–receipt – held presumption rebutted

CORPORATIONS – solvency and insolvency – whether company is insolvent pursuant to s 95A of the Corporations Act 2001 (Cth) – no evidence led by Commissioner as to resources company may command in a reasonable time to meet debts already due and such as may fall due – held failure to prove insolvency

Australian Securities and Investments Commission v Camelot Derivatives Pty Limited (In Liquidation); In the Matter of Camelot Derivatives Pty Limited (In Liquidation) [2012] FCA 414 (23 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/414.html

CORPORATIONS – whether a corporation which solicited clients to trade in options (including derivatives) contravened s 1041H of the Corporations Act 2001 (Cth) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) by making false or misleading representations about its investment strategies – whether that corporation also breached the terms of its Australian Financial Services Licence and failed to do all things necessary to ensure that the financial services covered by the licence were provided efficiently, honestly and fairly – whether the principal of the corporation should be held liable as an accessory to the contraventions on the part of the corporation

PRACTICE AND PROCEDURE – whether consent declarations agreed between the corporate regulator (ASIC) and the individual who caused a corporation to contravene the Corporations Act and the ASIC Act should be made – relevant principles discussed

QBE Insurance (Australia) Ltd v CGU Workers Compensation (NSW) Ltd [2012] NSWSC 377 (20 April 2012)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2012/377.html

INSURANCE – double insurance – contribution – whether sufficient to only show reasonable compromise – whether common insured an “owner” of vehicle – whether “injury” established – whether compromise reasonable so as to entitle Plaintiff to contribution – recoupment.

Dictionary
ss 4(1)(f) of Part 2 of the Dictionary to the Evidence Act

R v Goodridge [2012] NSWSC 378 (20 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/378.html

CRIME – murder – special hearing – partial defence of substantial impairment by abnormality of the mind

“6. There was no cross-examination of any of the witnesses. All the statements were tendered without objection. The Crown and the defence agreed to waive the rules of evidence. Section 184 of the Evidence Act 1995 permits an accused in a criminal proceeding to admit a matter of fact or to give a consent “if advised to do so by his or her lawyer”. Section 190 of the Evidence Act permits the rules of evidence to be waived; however the defendant’s consent in criminal proceedings is not effective unless the defendant has been advised to consent by his or her lawyer. Mr Winch, who appeared for the accused, confirmed that he had given him the requisite advice. The procedure adopted is not inconsistent with s 21(1) of the Mental Health (Forensic Provisions) Act: R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1 at 6 [15]- [18], per Spigelman CJ, with whom Sully J agreed.”

Aytugrul v The Queen [2012] HCA 15 (18 April 2012)

http://www.austlii.edu.au/au/cases/cth/HCA/2012/15.html

Criminal law – Evidence – Admissibility of evidence about DNA analysis – Appellant convicted of murder – Expert gave evidence at trial about mitochondrial DNA testing of hair found on deceased’s thumbnail – Expert’s statistical evidence given in form of frequency ratio and exclusion percentage – Whether evidence of exclusion percentage relevant given evidence of frequency ratio – Whether probative value of evidence of exclusion percentage outweighed by danger of unfair prejudice to appellant – Whether evidence of exclusion percentage misleading or confusing.

Evidence – Judicial notice – Argument for general rule that evidence of exclusion percentage is always inadmissible due to danger of unfair prejudice – Facts underpinning adoption of general rule not proved – Whether judicial notice can be taken of psychological research said to support adoption of general rule.

Words and phrases – “evidence”, “exclusion percentage”, “frequency ratio”, “judicial notice”, “misleading or confusing”, “unfair prejudice”.

Evidence Act 1995 (NSW), ss 135, 137, 144.

Clear Wealth Pty Ltd v Kwong [2012] NSWSC 561 (12 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/561.html

EVIDENCE – admissibility and relevancy – opinion evidence – expert opinion – expert reports – minor ambiguities – use of “we” and use of passive voice and possible ambiguity as to method used can clarified in examination-in-chief of expert

EVIDENCE – admissibility and relevancy – opinion evidence – expert opinion – expert reports – observations in report are at the low end of the spectrum of opinion evidence – expert not required to disclose how expertise was applied to make observations

TWL v R [2012] NSWCCA 57 (5 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/57.html

CRIMINAL LAW – appeal – conviction – manslaughter – unlawful and dangerous act – joint criminal enterprise – need for agreement to commit act exposing victim to appreciable risk of serious injury – whether failure to direct jury as to essential element of offence led to miscarriage of justice – whether failure to comply with pre-trial disclosure requirements led to miscarriage of justice – evidence of critical Crown witness – ss 137, 138 Criminal Procedure Act 1986

CRIMINAL LAW – appeal – conviction quashed – miscarriage of justice – circumstances in which retrial appropriate

R v White & ors (No 5) [2012] NSWSC 469 (5 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/469.html

CRIMINAL LAW – evidence – admissions – no electronic recording – s 281 Criminal Procedure Act 1986 – admissions made in Victoria – practice of Victorian police not to electronically record admissions in the field – whether following standard Victorian police practice a “reasonable excuse”

Deputy Commissioner of Taxation, in the matter of ABW Design & Construction Pty Ltd v ABW Design & Construction Pty Ltd [2012] FCA 346 (4 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/346.html

CORPORATIONS – winding up – statutory demand – proof of service by post where registered office of corporation included a post code – where post code was obscured on envelope containing statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth) considered

Held: non-compliance with s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth)

EVIDENCE – presumptions pursuant to s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 and s 163 of the Evidence Act 1995 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – no evidence led as to when documents were delivered – proof of non-receipt

Held: presumptions rebutted

Allianz Australia Ltd v Sim; WorkCover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (In liq) v Sim [2012] NSWCA 68 (4 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/68.html

COSTS – indemnity costs – offer of compromise – whether Dust Diseases Tribunal Regulation 2007 (NSW), Pt 6, only operates to the extent that it is not inconsistent with the Uniform Civil Procedure Rules – whether offeror had provided all documents necessary to enable the offeree to consider offer under the Uniform Civil Procedure Rules – whether offer was open for a reasonable time

EVIDENCE – admissibility – expert evidence – whether appropriate to consider all of the evidence to determine whether expert evidence should have been admitted – whether pathologist able to give evidence as to the causal connection between exposure to asbestos dust and lung cancer, given current state of medical knowledge

TORTS – causation – whether increase in risk can be equated with factual causation – whether liability requires satisfaction of the necessary condition test – whether open to Tribunal to accept pathologist’s opinion as to link between exposure to asbestos dust and lung cancer

Director of Public Prosecutions v Langford [2012] NSWSC 310 (4 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/310.html

APPEAL FROM LOCAL COURT – appeal against order by Magistrate to dismiss proceedings – drive motor vehicle with high range prescribed concentration of alcohol – exclusion of improperly or illegally obtained evidence – whether Magistrate erred in law in refusing to exercise discretion under s 138 of Evidence Act – whether Magistrate failed to give proper account to factors required under s 138(3) of Evidence Act – whether Magistrate erred in disregarding very high blood alcohol reading indicated by certificate of analysis

Aged Care Services v Macedonian Aged Care [2012] NSWSC 531 (4 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/531.html

[EQUITY] – interest – priorities – whether acknowledgement is effective to prove that a debt was owing – whether acknowledgment created an enforceable promise to give security over the land in the event that the debt was not paid by the specified date – whether first cross-defendant is entitled to be subrogated to the rights of the mortgagee bank – whether cross-claimant’s equitable interest should be postponed to the equitable interest of the first cross-defendant.

[PROCEDURE] – whether orders made on 3 and 21 June 2011 be set aside pursuant to UCPR r 36.15.

Neubecker v The Queen [2012] VSCA 58 (4 April 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/58.html

CRIMINAL LAW — Appeal against conviction — Persistent sexual abuse of child under 16 years — Jury directions — Whether judge required to direct jury that evidence of uncharged acts must be established beyond reasonable doubt — Whether judge gave such a direction —R v Sadler [2008] VSCA 198; (2008) 20 VR 69 considered — Appeal dismissed.

CRIMINAL LAW — Application for leave to appeal against sentence — Whether total effective sentence of 5 years and 6 months’ imprisonment, with non-parole period of 3 years and 6 months manifestly excessive — Whether sufficient weight given to applicant’s youth —Application for leave refused.

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) & Ors [2012] VSC 99 (30 March 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/99.html

CONTRACT – building engineering and related contracts – principal served notices to show cause for substantial breach on contractor– whether substantial breach of obligation under cl 30.1 to use the standard of materials or provide the standards of workmanship required by the contract – whether substantial breach of obligation under cl 30.3 to comply with superintendent’s directions – whether substantial breach of obligation under cl 33.1 to proceed with the work with due expedition and without delay – whether notices invalid because defective in content or form, wanting particulars, or being prolix and confusing – general conditions of contract AS 2124–1992, clauses 30, 33, 44.

CONTRACT – building engineering and related contracts – content of the contractual requirement of cl 33 to proceed with the works with due expedition and without delay – obligation to work to approved construction program – whether grounds for unapproved extensions of time relevant – general conditions of contract AS 2124–1992, clauses 33, 35.

CONTRACT – building engineering and related contracts – whether principal obliged to act reasonably in serving show cause notices – whether contractor failed to show reasonable cause why principal should not exercise a right under cl 44.4 to take the work remaining to be completed out of the hands of the contractor – principal’s obligations when evaluating response of contractor to a show cause notice – whether principal obliged to act reasonably in serving notice to take the works out of the hands of the contractor – general conditions of contract AS 2124–1992, cl 44.

CONTRACT – building engineering and related contracts – principal serves notices to take the works out of the hands of the contractor – whether principal repudiated contract.

CONTRACT – building engineering and related contracts – principal takes the works out of the hands of the contractor – principal completes the project works to an enhanced scope of works – principal served on contractor a costs to complete certificate – whether cost to complete certified a cost of the works provided for under the contract – whether costs to complete certificate final and binding or reviewable for error – whether principal entitled to common law damages in addition to debt due under certificate – where no claim made for liquidated damages – entitlement of principal to delay damages at common law – general conditions of contract AS 2124–1992, cl 44.

EVIDENCE – admissibility – opinion evidence – exception under s 79 – requirements for admissibility – Evidence Act 2008 (Vic) ss 55, 56, 76, 79.

PRACTICE AND PROCEDURE – expert evidence taken by concurrent evidence sessions following joint conclaves – late objection to admissibility of expert evidence – conditional admission of evidence – ruling reserved to judgment – whether good reason to defer ruling – circumstances include pre-trial case management of large proceeding by trial judge directed to preparation of expert evidence by concurrent evidence sessions following joint conclaves – Civil Procedure Act 2010 ss 8, 9, 49 – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 Order 3 Chapter II (Technology Engineering and Construction Cases) (TEC Rules) – Practice Note No. 2 of 2009 The Technology Engineering and Construction List.

Kopas v Celermajer Holdings Pty Ltd [2012] NSWCA 53 (29 March 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/53.html

EVIDENCE- rejection of evidence- affidavit evidence excluded by judge because “uncertain and of low probative weight”- Court of Appeal must consider all available grounds when deciding whether decision to exclude evidence was wrong- Court of Appeal very reluctant to interfere with such decisions- in any event material probably properly rejected- leave to appeal not granted.

LANDLORD AND TENANT- application by respondent in CTTT for termination of lease and possession transferred to Supreme Court- applicant alleged a prior tenancy dispute was settled on the basis that he would be a tenant for life- whether s 5A Landlord and Tenant (Amendment) Act 1948 operated to exempt the lease from the 1948 Act- proceedings were not taken under the 1948 Act- therefore s 98A of the 1948 Act had no application- held that the proceedings were exempt from the operation of the 1948 Act.

LANDLORD AND TENANT- vacant possession- whether a question of fact or a mixed question of fact and law- vacant possession is purely a matter of fact.

PROCEDURE- re-opening after judgment- whether re-opening should be allowed- re-opening should be allowed where obvious that the decision has miscarried and that the miscarriage may be rectified by the attention of the primary judge rather than an appeal court- this principle applies to errors of fact and errors of law.

Kirby v Centro Properties Limited (No 4) [2012] FCA 323 (29 March 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/323.html

No Catchwords

“1. On 29 March 2012, an application by Centro Properties Limited and CPT Manager Limited (collectively CNP) supported by Centro Retail Limited, Centro MCS Manager Limited and Centro Corporate Services Pty Limited (collectively CER) for a limitation order under s 136 of the Evidence Act 1995 (Cth) (the Evidence Act ) in respect of certain parts of a number of “analyst reports” was dismissed. These are the reasons for that decision.”

McCarthy v R [2012] ACTCA 18 (28 March 2012)

http://www.austlii.edu.au/au/cases/act/ACTCA/2012/18.html

CRIMINAL LAW – jurisdiction practice and procedure – bail on appeal – jurisdiction to grant bail incidental to power to stay proceedings – Supreme Court Act 1933 (ACT) s 37Q – sentence does not continue to run when appellant on bail.

CRIMINAL LAW – jurisdiction practice and procedure – bail – special or exceptional circumstances – pre-trial delay not sufficient to justify bail – strength of appeal grounds insufficient to justify bail – bail application dismissed.

Curran v Harvey [2012] NSWSC 276 (27 March 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/276.html

SUCCESSION – FAMILY PROVISION – The Plaintiff, a daughter of a former de facto partner of deceased seeks family provision order under Family Provision Act 1982 – Whole estate shared between natural daughters, a friend, identified grandchildren of the deceased – Allegations of sexual relationship between the Plaintiff and the deceased – Whether jurisdictional issue established, factors warranting the making of the Plaintiff’s application, and if so, nature and quantum of provision to be made.

C E G v The Queen [2012] VSCA 55 (27 March 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/55.html

CRIMINAL LAW – Interlocutory appeal – Application for review of refusal to certify under s 295 of Criminal Procedure Act 2009 – Evidence – Tendency Evidence – Cross-admissibility of complainants’ evidence in cases of sexual offences – Whether judge erred in ruling complainants’ evidence admissible as tendency evidence pursuant to s 97 of the Evidence Act 2008 – Application allowed but leave to appeal refused.

SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277 (23 March 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/277.html

EVIDENCE – where proposed cross-examination in civil proceeding involved disclosure of basis of ASIO adverse security assessment – where public interest immunity claimed – where disclosure of relevant documents not sought – where information to be adduced oral in form – where knowledge of witness derived from briefing document of Director-General of Security – where proceeding concerns psychiatric harm caused by ongoing immigration detention of applicant – where adverse security assessment cause of ongoing detention – whether oral evidence falls within “class” of documents protected from disclosure by public interest immunity – public interest balancing exercise – Evidence Act 1995 (Cth), s 130.

Held: that the public interest immunity claim be upheld and a direction made that the information not be adduced as evidence.