Monthly Archives: July 2012

Ashby v Commonwealth of Australia (No 3) [2012] FCA 788 (20 July 2012)

1. The Commonwealth and Peter Slipper, who are the respondents in these proceedings, filed interlocutory applications last month seeking orders pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) that judgment be given against James Ashby, the applicant, because the proceeding against each of them, relevantly, was an abuse of the process of the Court and or vexatious or alternatively that the proceedings be permanently stayed on that footing.

Yet Son Rosewood Furniture Pty Ltd v Ai Yan Luo [2012] NSWSC 730 (2 July 2012)

TORTS – conversion – tax office audit identifying shortfall in the declaration of company’s cash sales receipts – company alleging that shortfall represents cash appropriated by defendant whilst employed as bookkeeper for the company – circumstantial case – conversion of small sum established

EVIDENCE – representation by tax office as to shortfall in the declaration of company’s cash sales receipts – where representation relevant for a non-hearsay purpose – whether use to be made of the representation should be limited under s 136 of the Evidence Act 1995

Wyszenko v Wyszenko [2012] NSWSC 732 (19 June 2012)

CONTEMPT OF COURT – civil contempt – failure to comply with order of the Court to pay costs – whether failure to make payment deliberate or wilful – failure to make payment not so described if defendant unable to pay – no evidence that defendant has moneys with which to pay the judgment debt – held failure to comply with order within time not deliberate or wilful

15. Nonetheless, it is necessary for the party alleging contempt to prove that the breach of the court’s order was deliberate and not casual, accidental or unintentional.

16. In the present case, it is unnecessary to decide whether the party alleging contempt must prove the deliberateness or wilfulness of the breach beyond reasonable doubt, or whether, in the case of a civil contempt such as this, proof to the standard prescribed by s 140 of the Evidence Act 1995 is sufficient (see Markisic v The Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 at [60]; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69; Sigalla v TZ Limited [2011] NSWCA 334, where it is assumed, following Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, that proof of each element in the charge must be beyond reasonable doubt, but where the operation of the Evidence Act 1995 (NSW) on that question was not considered. Compare Australian Securities and Investments Commission v Sigalla (No. 4) [2011] NSWSC 62 at [89]- [94].)

Wyong Shire Council v Jenbuild [2012] NSWSC 720 (19 June 2012)

[COMMERCIAL ARBITRATION] – contracts – whether contracts made between the plaintiff and the first defendant constitute a valid arbitration agreement for the purposes of s 7 of the Commercial Arbitration Act 2010 (NSW) – whether contract ancillary to the principal contracts governed the dispute resolution process.

[ESTOPPEL] – estoppel in pais – convention; estoppel by – whether sufficient detriment that parties are estopped from denying their contractual relationship is governed by a dispute resolution clause.

24. The Council replied by email of 18 January 2010, appointing a meeting for 21 January 2010 at 3pm. That was changed to 1pm on Friday, 22 January 2010. That meeting occurred.

25. In relation to that meeting, Mr Jensen of Jenbuild sent an email on 21 January 2010. Mr Corsaro of Senior Counsel, who appeared for the Council, objected to the tender of that email, relying on s 131 of the Evidence Act 1995 (NSW). He submitted that the email was a communication made between persons in dispute in connection with an attempt to negotiate a settlement of the dispute.

26. I do not think that a document appointing a meeting for a contractual purpose (for example, in compliance with alternative 1 set out in cl 47.2 of the general conditions of contract) is a “communication” of the kind referred to in s 131(1)(a). The purpose of s 131 is, as its heading indicates, to exclude evidence of what is said or communicated in the course of settlement negotiations. That reflects the law’s concern to ensure that parties in dispute should be free to attempt to settle their disputes, without curial, arbitral or other imposed resolution, without being put at risk that what is said in an attempt to negotiate a settlement will be used in evidence against them at a later time. The fact that there was to be a meeting can hardly be of any significance, particularly where that meeting was one (on Jenbuild’s case) required by the contract to be held. Nor did the email, to the extent that I admitted it, give any clue as to what had been said at the previous meeting, or what might be said at the meeting to be held later on the day the email was sent.

27. The email did however proceed further, and make observations as to the Council’s conduct, apparently in the prior settlement meeting, in a way that did seem to me to infringe s 131. Accordingly, I rejected those paragraphs of the email from the tender.
28. However, at a later stage in the course of the hearing, Mr Corsaro then sought to tender those two paragraphs. When he did so, they were admitted. It appears that he sought to do so because he wanted to make the point that Jenbuild had proposed binding expert determination. That submission in turn prompted Mr Roberts of Senior Counsel, who appeared for Jenbuild, to tender a letter of 15 April 2009 from Jenbuild to the Council which had earlier been tendered and rejected on s 131 grounds (and on Mr Corsaro’s application). Mr Roberts renewed the tender of that letter and I admitted it.

29. I have to say that all of this seems to me to be much ado about nothing. However, it will be necessary to return to the submission, as to expert determination, in due course.

Insight SRC IP Holdings Pty Ltd v The Australian Council for Educational Research Limited [2012] FCA 779 (24 July 2012)

COPYRIGHT – ownership of copyright in organisational health questionnaire – where author of questionnaire managing director and major shareholder of applicants – where author employed by Department of Education during period in which questionnaire made – where author engaged in PhD research – whether questionnaire made in pursuance of terms of employment with Department under s 35(6) of Copyright Act 1968 (Cth) (“the Act”) – whether questionnaire made by or under direction or control of Crown for purposes of s 176(2) of the Act – whether operation of s 35(6) excluded by agreement between author and Department or whether agreement about vesting of copyright within s 179 of the Act – relevance of subsequent conduct of Department and author in construing agreement.

Held: The circumstances in which the questionnaire was made fall outside the operation of ss 35(6) and 176(2) of the Act; the author of the questionnaire is the owner of copyright.

COPYRIGHT – assignment – purported assignment of copyright from author to first applicant in 2009 – where corporate trustee of author’s family trust part of chain of assignment – purported exclusive licence of copyright from first to second applicant in 2009 – whether effective assignment of copyright – subsequent purported assignment of accrued bare rights of action from author to corporate trustee to first applicant in 2011 – whether valid assignment of bare rights of action – whether “genuine commercial interest”.

Held: The deeds of assignment were effective to transfer copyright in the questionnaire and rights of action for infringement.

COPYRIGHT – damages – where cause of action accrued prior to assignment by author to first applicant – where owner of copyright at time of infringement not engaged in commercial exploitation of copyright – whether loss suffered – whether general damages available – calculation of loss of profits – award of nominal damages – whether award of additional damages warranted – ss 115(2), 115(4) of Copyright Act 1968 (Cth).

Held: The applicants are entitled to an award of nominal damages and additional damages.

Clarke & Ors v Great Southern Finance Pty Ltd & Ors [2012] VSC 312 (24 July 2012)

COSTS – Privilege – Loss of privilege under s 124 Evidence Act 2008 (Vic) determined before trial – Plaintiffs successful.

COSTS – Application by plaintiffs under s 1321 Corporations Act 2001 (Cth) to review decision of liquidators to assert joint privilege – application adjourned sine die without determination.

Thompson v Kane (No. 2) [2012] FCA 763 (16 July 2012)

PRACTICE AND PROCEDURE – consideration of an application by a non-legally qualified person for leave to assist and represent the applicant in the proceedings in addressing an Interlocutory Application by the Commonwealth of Australia (the third respondent) for orders dismissing the applicant’s Originating Application – consideration of the circumstances taken into account in determining whether the person seeking leave is a fit and proper person to assist a litigant before the Court – consideration of principles taken into account in determining whether, in the circumstances of the present application, leave ought to be granted

32. Murphy J ultimately made orders requesting that officers of the Queensland Police Service take all such steps as might be reasonably available to them to investigate whether any criminal offences, pursuant to the Queensland Criminal Code, had been committed by the mother or Mr Bell or any other person.
33. Mr Bell strongly disputes any wrongdoing in respect of any of the matters mentioned by Murphy J. Mr Bell also says that he is concerned that particular websites may have been attacked resulting in the posting of unauthorised matter or comments.
34. I have had regard to the observations in these judgments for the purposes of s 144 of the Evidence Act 1995 (Cth).

Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 (13 July 2012)

PRACTICE AND PROCEDURE – whether the applicants had a reasonable prospect of success in pleading misleading or deceptive conduct by the bank’s reliance on allegedly inaccurate property valuations – application for summary judgment by respondent bank and valuers pursuant to s 31A Federal Court Act 1976 (Cth) and r 26.01 Federal Court Rules 2011 – what onus if any on a party when all relevant evidence is held by the other

CONTRACT – whether the applicants had a reasonable prospect of success in pleading breach of implied term of loan contract by the bank’s reliance on allegedly inaccurate property valuations

Held: applicants’ breach of implied contractual term pleading should be summarily dismissed because the loan contract had expired and no automatic right of renewal

TRADE PRACTICES – reliance and causation – consideration of applicants’ conduct in chain of causation causing loss and reliance on valuations – held the respondents’ causation argument (that the actions of the bank were unaffected by the valuations) could not be determined summarily because the question of what the bank would have done had the property valuations been higher could only be determined at trial by testing the evidence

Held: however that the respondents’ reliance argument should succeed insofar as the ‘indirect causation theory’ could not apply as there was no evidence that the applicants relied on the valuation at any time, they were not misled by the valuation and their own actions in selling the property were the cause of the loss

The Bank and the Valuers particularly rely upon a judgment of Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 where her Honour said (at [127]):

Thirdly, each case must be considered separately. No particular hard and fast rules can be set down, only general principles. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22]. In other words, it is inappropriate in defence of a claim for judgment under s 31A of the [Act] to seek to defend by merely putting a claimant to formal proof: Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12]. This is not a new concept. It finds earlier reflection in ss 190(4) and 191 of the Evidence Act 1995 (Cth) and O 33, 34 and 34B of the Federal Court Rules 1979 (Cth).

R v Fitzpatrick [2012] ACTSC 107 (13 July 2012)

CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown was highly prejudicial to the accused – the probative value of the evidence did not substantially outweigh the prejudicial effect – application refused

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, Indictment or Presentment – Defence application to sever the indictment – found that there would be an unacceptable risk of prejudice to the accused if counts were heard in one trial – indictment severed – application allowed

Evidence Act 1995 (Cth), ss 97

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

Ashby v Commonwealth of Australia (No 2) [2012] FCA 766 (13 July 2012)

EVIDENCE – privilege – journalist’s privilege – journalist’s assertion of privilege under s 126H(1) of the Evidence Act 1995 (Cth) – where journalist asserts that he or she is not compellable to produce a document in answer to a subpoena under ss 126H(1) and 131A – whether document falling within the ambit of a subpoena discloses, or enables to be ascertained, the identity of a person who provided information to the journalist in the expectation of confidentiality – where party issuing subpoena has not applied to the Court to exercise its discretion under ss 126H(2) or 131A(1A) to override journalist’s privilege on public interest grounds

Held: under s126H(1), a journalist is not compellable to produce a document that would disclose, or enable to be ascertained, the identity of the journalist’s informant as the source of the particular information for which the informant sought confidentiality – no such privilege exists if the informant’s identity as the journalist’s source of the particular information has already been disclosed or is able to ascertained

Evidence Act 1995 (Cth) ss 126G, 126H, 131A

Gibbins Investments Pty Ltd v Samuel Savage as Executor of the Estate of John Thomas Savage [2012] FCA 742 (11 July 2012)

PRACTICE AND PROCEDURE – “without prejudice” – s 131 Evidence Act 1995 (Cth) – whether applicant can adduce evidence of communications between the parties at the substantive hearing before Jessup J – whether the relevant communications were in respect of a “dispute” – whether genuine attempt to negotiate – whether any of the exceptions in s 131 (2) applied to exclude protection under s 131(1) of the Evidence Act 1995 (Cth)

DPP v Gibson [2012] VSC 297 (9 July 2012)

ADMINISTRATIVE LAW – Appeal from a decision in the Magistrates’ Court – Respondent acquitted of charge under s 49(1)(f) of the Road Safety Act 1986 (Vic) – Magistrate accepted the respondent’s uncorroborated evidence about the timing of her drinking – Whether the requirement in s 48(1A) of the Road Safety Act 1986 (Vic) that evidence be corroborated by the material evidence of another person has been displaced by s 164(1) of the Evidence Act 2008 (Vic) – Whether s 164(1) of the Evidence Act 2008 (Vic) impliedly repeals part of s 48(1A) of the Road Safety Act 1986 (Vic) – Whether s 8 of the Evidence Act 2008 (Vic) preserves the operation of corroboration requirements in the Road Safety Act 1986 (Vic) – Application of the maxim generalia specialibus non derogant – Road Safety Act 1986 (Vic), ss 48(1A), 49(1)(f) – Evidence Act 2008 (Vic), ss 8, 164(1) – Appeal allowed.

Gilham v R [2012] NSWCCA 131 (25 June 2012)

CRIMINAL LAW – appeal – conviction – double jeopardy – incontrovertibility of verdict – whether conviction of applicant for murder of his parents controverted applicant’s acquittal for murder of his brother – whether manner in which Crown Prosecutor conducted trial controverted earlier acquittal – whether trial judge failed to instruct jury to give applicant “full benefit” of earlier acquittal – whether trial judge erred by not staying proceedings – rule against double jeopardy not infringed – trial judge’s directions denied applicant full benefit of earlier acquittal.

CRIMINAL LAW – appeal – conviction – expert evidence – admissibility – relevance – prejudicial effect – whether evidence of fire demonstrations and likely behaviour of fire elicited from Crown expert was relevant – whether probative value of evidence outweighed by prejudicial effect – probative value outweighed by prejudicial effect – evidence ought not to have been admitted – whether expert opinion evidence on similarity of pattern of stab wounds admissible – evidence of similarity admissible – opinion that similarity constituted an underlying pattern inadmissible – Crown Prosecutor’s reliance on pattern of similarity amounted to coincidence reasoning – evidence of pattern of similarity not admitted as coincidence evidence under s 98 of Evidence Act 1995 – whether failure to call additional expert on issue of similarity on grounds of unreliability occasioned a miscarriage of justice – failure to call witness caused trial to miscarry – whether expert evidence on expected amount of blood on applicant and murder weapon relevant and admissible as expert opinion evidence – whether probative value of evidence outweighed by prejudicial effect – evidence admissible as expert opinion evidence – probative value outweighed prejudicial effect.

CRIMINAL LAW – appeal – conviction – whether Crown Prosecutor cross-examined applicant in improper manner – whether Crown Prosecutor addressed jury in an improper manner – whether Crown Prosecutor undermined directions of trial judge – aspects of Crown Prosecutor’s conduct and address improper -no miscarriage of justice occassioned.

CRIMINAL LAW – appeal – conviction – whether verdict unreasonable or unsupported by the evidence – circumstantial evidence – circumstantial evidence to be considered as a whole – doubt capable of being resolved by jury’s advantage in seeing and hearing evidence of applicant – no reasonable doubt on independent assessment of evidence.

CRIMINAL LAW – new and fresh evidence – whether evidence available at time of trial – whether evidence credible, plausible or capable of belief – whether evidence likely to have caused jury to have entertained a reasonable doubt about guilt of applicant – new evidence concerning carbon monoxide likely to have caused jury to entertain a reasonable doubt.

CRIMINAL LAW – appeal – conviction – whether applicant should be acquitted or retried – discretionary considerations.

MJ v R [2012] NSWCCA 146 (4 July 2012)

CRIMINAL LAW – Conviction Appeal – extension of time granted – sexual offence – “corroboration” – relevantly immediate complaint to mother – accused gave evidence at trial – ground of appeal on basis of unreasonable verdict – no reasonable doubt – mere fact that jury verdict depended on choice as to whether to believe complainant beyond reasonable doubt is not, without independent evidence or some other factor affecting assessment, does not necessarily give rise to reasonable doubt.

51. The terms of s 165A of the Evidence Act 1995 prohibit a warning to a jury based on the unreliability of children’s evidence as a class. In any event, an examination of the recording of the complainant’s evidence does not suggest that the evidence is, in any sense, unreliable.

Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713 (29 June 2012)

CRIMINAL LAW – assault – summary hearing in Local Court – charge dismissed – prosecution appeal against dismissal – Magistrate did not permit prosecutor to call certain witnesses – whether denial of procedural fairness – whether error of law in Magistrate’s approach to dismissal of charge – whether Magistrate failed to give reasons required by law – duties of Magistrate at defended criminal hearing – error of law and denial of procedural fairness established – matter remitted to Local Court for hearing before a different Magistrate

40. Of course, the progress of a hearing will depend upon the issues arising for determination during the trial, including the question as to whether, as a matter of law, there is no prima facie case at the close of the prosecution case. This involves application of well-recognised principles: Director of Prosecutions v Elskaf [2012] NSWSC 21 at [47]. If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the tribunal of fact in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left for decision by the tribunal of fact. A verdict of not guilty may be entered at the conclusion of the prosecution case only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 212, 214-215. The principle remains the same whether application is made for an acquittal at the end of the prosecution case where trial is proceeding before Judge and jury, or where trial is proceeding before a Judge or Magistrate sitting alone.

41. The duty of a trial Judge, whether sitting with a jury or sitting alone, has been repeatedly stated and is well understood. In Crompton v The Queen [2000] HCA 60; 206 CLR 161, Gleeson CJ said at 173 [19]:

“Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice.”

42. A criminal trial is not an inquisition. It is for the parties to act as protagonists in the trial with the judge to “take no part in that contest, having his [or her] own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law”: Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 517 (Barwick CJ).

43. These principles have been stated repeatedly in decisions such as Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265; 207 A Crim R 362 at 369 [28].

44. In Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82, the Court said at 95-96 [58]:

“Criminal proceedings are conducted as adversarial litigation: Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at 618-619 [9]. The role of the presiding Judge is to hold the balance between the contending parties without himself or herself taking part in their disputation. The Judge does not exercise an inquisitorial role in which he or she seeks to remedy the deficiencies in the case of either side, nor is part of the function of a Judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 682. The fundamental task of a Judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at [76]; Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 at [138]- [140]. Although these observations were made concerning the role of the Judge in a jury criminal trial, I consider that they are equally applicable to Magistrates hearing and determining criminal proceedings in the Local Court, whether defended hearings or sentence proceedings following a plea of guilty.”

45. If the defence objects to the prosecution calling a particular witness or witnesses or adducing certain evidence from a witness or objects to the tender of physical evidence, then the Judge or Magistrate should ascertain the basis of the objection for the purpose of ruling whether the evidence ought be allowed. If necessary and appropriate for the purpose of ruling on the objection, evidence may be given on the voir dire even if proceedings are without a jury: s.189 Evidence Act 1995 ; Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78 at [107]- [112].

46. The Evidence Act 1995 applies in an adversarial context. It is the parties who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at 9 [20] (Gleeson CJ and Hayne J).

47. There is no obligation on a trial judge to reject evidence under s.137 Evidence Act 1995 to which no objection has been taken: R v FDP [2008] NSWCCA 317 at 651-653 [23]- [30]. This reflects the role of the judge in adversarial proceedings. A statutory exception to this general principle is s.41 Evidence Act 1995 which requires a judge to reject an improper question whether or not objection has been taken: R v FDP at 652 [28]-[30] (concerning s.275A Criminal Procedure Act 1986 which is now to be found in s.41 Evidence Act 1995 ).

48. A prosecutor at a criminal trial (including a police prosecutor) is under a duty to lead the whole of the evidence to which the accused is required to make answer: Dhanhoa v The Queen at 9 [20]. The duty of the prosecutor with respect to the calling of witnesses is well known: R v Kneebone [1999] NSWCCA 450; 47 NSWLR 450 at 457-462 [39]-[56].

R v Fadi Shamoun [2012] NSWSC 716 (29 June 2012)

CRIMINAL LAW – sentence – murder – whether offender had an intention to kill or an intention to inflict grievous bodily harm – whether offender acted for reward – effect of offender’s brain injury upon need for general deterrence – whether special circumstances – malicious wounding – whether partial accumulation of sentences warranted

9. Prior to the commencement of the trial, the Crown served a notice pursuant to s 97 of the Evidence Act 1995 seeking the admission, in its case against the offender at trial, of evidence concerning an incident at Kings Cross approximately two weeks after the murder of the deceased (“the Kings Cross incident”). The Crown’s application was later expanded to include an application that the evidence be admitted pursuant to s. 98 of the Evidence Act . In a judgment delivered on 16 February 2012, I concluded that the evidence should not be admitted.

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.

C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh (No 3) [2012] FCA 680 (29 June 2012)

PRACTICE AND PROCEDURE – application under rr 6.01 and 29.03 of the Federal Court Rules 2011 to strike out paragraphs of affidavit – whether paragraphs contain matter that is scandalous, irrelevant or otherwise oppressive

17. I do not propose to strike out these paragraphs. In my view they do not contain matter that is scandalous or oppressive. Having said that, I doubt that some of the material is of much probative value. For example, some of the conversations recorded by the first defendant (see paragraphs 4.3, 4.5, 4.6, 4.7, 4.8, 4.11 and 4.12) do not seem to advance materially the narrative of the events that the first defendant has recorded. Nevertheless, I would not be prepared to find at the present time that, if read at trial, the asserted facts in these paragraphs would not pass the threshold of s 55 of the Evidence Act 1995 (Cth) (the Evidence Act ). There may be a real question whether the probative value of such evidence is substantially outweighed by the danger that it may cause or result in undue waste of time or would otherwise be liable to rejection on discretionary grounds under s 135 of the Evidence Act . That is not, however, a ruling I am prepared to make at the present time. It is sufficient for me to indicate that, as presently advised, some of the conversational material in these paragraphs appears to me to be of marginal relevance.

31. In my view these paragraphs do not contain matter that is scandalous or oppressive. The second plaintiff may well disagree with the first defendant’s opinions and conclusions underpinning his report to ASIC. That disagreement does not make the first defendant’s proposed evidence about the making of this report, or his reason for making it, either scandalous or oppressive. Moreover, I do not understand the first defendant to be contending that he proposes to read these paragraphs to prove that the second plaintiff has engaged in conduct that does contravene the Corporations Act. Rather he proposes to read these paragraphs to show that a report to ASIC was made and that that fact affected his relationship with the second plaintiff and influenced the course of events leading to the first plaintiff being taken out of administration and the mortgage of the Kelman Estate being granted. If need be, these paragraphs can be read subject to a limitation under s 136 of the Evidence Act as to their use. Any such ruling can be made at trial. I am not persuaded that they contain matter that is so lacking in relevance that they should be struck out. I am not satisfied that these paragraphs contain matter that is oppressive in the circumstances.

SNF (Australia) Pty Ltd v Ciba Specialty Chemicals Water Treatments Limited [2012] FCAFC 95 (29 June 2012)

PATENTS – construction – meaning of “rigidification”

PATENTS – novelty – whether prior publications and prior uses disclose all integers of claim in combination – where there were no “signposts” sufficient to disclose an integer – whether the prior art taught away from the invention – relevance and meaning of “teach” to novelty – insufficient disclosure to constitute an anticipation of the process of the claim

PATENTS – innovative step – variations between claimed invention and prior art documents and acts – substantial contribution to working of invention

PATENTS – sufficiency of description – whether skilled addressee would have to do more than ‘routine trial and error’ to understand and implement the process of the claim – where dosage tests necessary to optimise claimed process – specification not insufficient because tests characterised as routine