http://www.austlii.edu.au/au/cases/cth/federal_ct/2012/944.html

PATENTS – two appeals from decisions of delegate of Commissioner of Patents – opposition to grant of patent for bulk material transport container on multiple grounds – consideration of nature of appeals as hearings de novo

PATENTS – combination patent – novelty – whether invention was disclosed in prior art – application of ‘reverse infringement’ test – whether invention involved an inventive step – whether the combination of integers would have been an obvious solution to a person skilled in the art in light of common general knowledge – consideration of how a person skilled in the art would have interpreted and understood the prior art – time at which prior art is to be construed

PATENTS – disputed priority date – whether there was a ‘real and reasonably clear disclosure’ in the provisional specification – whether secret use before the priority date – whether use by inventor for reasonable trial and experiment only

EVIDENCE – consideration of admissibility and weight to be given to expert evidence where the expert witnesses are not independent

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/935.html

PRACTICE AND PROCEDURE: Review of Registrar’s decision under UCPR rule 49.19 on preliminary discovery – principles to apply – nature of review

Preliminary discovery – UCPR rule 5.3 – principles to apply

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/929.html

EVIDENCE – affidavit – communications made in attempt to negotiate settlement of underlying proceedings – without prejudice – whether evidence receivable because it falls within s 131(2)(g) of Evidence Act 1995

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/916.html

Evidence – admissibility – whether opinions expressed were admissible

Evidence Act 1995 s 55, s 76(1), s 79(1),
s 80(a), s 80(b)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/181.html

CRIMINAL LAW – appeal against conviction – supply of more than a large commercial quantity – deemed supply – whether trial judge erred in refusing to sever count 2 – whether trial judge erred in refusing to direct a verdict – whether trial judge erred in directions to the jury – whether unreasonable verdict

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/174.html

CRIMINAL LAW – interlocutory Crown appeal – larceny – admissibility of evidence – coincidence evidence – conditions of admissibility – reasonable notice – formation of opinion by court that the evidence, either by itself or having regard to other evidence adduced or to be adduced by tendering party, capable of having significant probative value – evidence not admissible if conditions not met – process for determination of admissibility – differing functions of judge and jury – whether evidence capable of having significant probative value – whether probative value of evidence substantially outweighs its prejudicial effect – probative value does not substantially outweigh prejudicial effect – Criminal Appeal Act 1912, s 5F(3A), s 5F(5) – Evidence Act 1995 , s 97, s 98, s 100(2), s 101, s 165

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/244.html

ADMINISTRATIVE LAW – judicial review – failure to take into account relevant considerations – whether failure to refer to particular evidence can constitute failure to take into account relevant consideration – whether applicant entitled to rely on the reasons of the decision maker – whether necessary for applicant to rely on submissions before decision maker – need to identify source of legal obligation to consider mandatory factors – whether decision maker considered evidence – whether evidence is a relevant consideration for the purposes of judicial review

DAMAGES – motor vehicle accident – future economic loss – use of buffer – whether decision to award damages by way of buffer is an evaluative judgment – whether buffer manifestly unreasonable given likely future loss

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/243.html

ADMINISTRATIVE LAW – judicial power – executing invalid order of superior court – whether order of superior court incompatible with exercise of judicial power is valid until set aside – whether non-judicial order derives whatever authority it has solely from the relevant legislation – effects of orders in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51

CONSTITUTIONAL LAW – judicial power – Supreme Court order under statutory power incompatible with judicial power invalid – order made in proceedings involving exercise of federal judicial power – exercise of federal judicial power simultaneous with function incompatible with judicial power – whether invalid State law applied by federal law – Judiciary Act 1903 (Cth), ss 39(2), 79 and 80

TORT – defences – protection from liability in tort for officer enforcing non-judicial order of judge of superior court in good faith – whether protection exists at common law – whether any protection extends to orders incompatible with exercise of judicial power

TORT – false imprisonment – plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to purported State legislation – legislation incompatible with judicial power and invalid – whether deprivation of liberty carried out by a person for whose conduct the State was liable – whether deprivation of liberty justified by law

TORT – malicious prosecution and collateral abuse of process – plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to invalid legislation – whether malice established

TORT – vicarious liability – vicarious liability of the State for conduct of persons in service of the Crown – whether State vicariously liable for conduct which was tortious absent statutory protection – Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8 and 10

http://www.austlii.edu.au/au/cases/cth/HCA/2012/27.html

Criminal law – Evidence – Common law – Hearsay – Admissions – Appellant and co-accused jointly tried for murder – Appellant convicted; co-accused acquitted – Co-accused made certain admissions in police interview and to witnesses (“out-of-court confessional statements”) – Consideration of Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 – Whether out-of-court confessional statements were admissible in exculpation of appellant as exception to hearsay rule.

Words and phrases – “admissions”, “against penal interest”, “hearsay rule”, “out-of-court confessional statements”.

http://www.austlii.edu.au/au/cases/cth/HCA/2012/28.html

Criminal law – Terrorism – Collecting or making documents likely to facilitate terrorist acts – Jury misdirection – Respondent convicted of making document “connected with … assistance in a terrorist act”, knowing of that connection, contrary to s 101.5(1) of Criminal Code (Cth) (“Code”) – Trial judge directed jury that words “connected with … assistance in a terrorist act” had no special or technical meaning – Whether trial judge misdirected jury.

Criminal law – Terrorism – Collecting or making documents likely to facilitate terrorist acts – Exception to liability – Evidential burden – Section 101.5(5) of Code created exception to liability under s 101.5(1) if making of document “not intended to facilitate … assistance in a terrorist act” – Respondent bore evidential burden under s 101.5(5), as defined in s 13.3(6) – Whether evidence at trial suggested reasonable possibility that making of document by respondent not intended to facilitate assistance in a terrorist act.

Words and phrases – “connected with”, “evidential burden”.

Heydon J dissenting
94. These arguments must be rejected. It does not follow from the fact that a decision-maker has not provided reasons that the decision-maker’s decision is unreasoned. Nor does it follow that it is unexaminable. The publication of reasons certainly helps those who wish to challenge administrative decisions. But it is not essential to a challenge. A decision-maker can be compelled to produce documents revealing the reasons for a given decision, whether by a subpoena duces tecum or a notice to produce. That decision-maker can be compelled by interrogatories to reveal those reasons in writing, and by a subpoena ad testificandum to reveal those reasons in the witness box. It is true that judicial review proceedings cannot be commenced on an entirely speculative basis. But non-speculative inferences can be drawn from the nature of the decision and from the dealings between the decision-maker and the affected person before the decision was made. It is also true that it would be difficult for a person challenging the decision to frame non-leading questions capable of eliciting answers that would reveal the decision-maker’s reasons. But the person challenging the decision can question the decision-maker as though on cross-examination where the decision-maker is not making a genuine attempt to give evidence on a matter of which that decision-maker may reasonably be supposed to have knowledge: Evidence Act 1995 (Cth), s 38(1)(b). Reluctance on the decision-maker’s part to give reasons would support an inference that there were no reasons, or no convincing reasons. It would be likely to stimulate close curial scrutiny. That is particularly so of adherence to a code of omerta in the witness box[118].

http://www.austlii.edu.au/au/cases/cth/FCA/2012/870.html

PRACTICE AND PROCEDURE – Application for leave to appeal from interlocutory judgment – relevant principles – whether sufficient doubt to warrant reconsideration – whether substantial injustice – leave granted

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/778.html

EVIDENCE – Evidence Act 1995 , s 131 – whether settlement communications admissible – settlement communications admissible pursuant to 131(2)(f) as existence of or making of agreement an issue in proceedings

(NSW) Evidence Act 1995 s 131, 131(2)(f)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/162.html

EVIDENCE – prosecution relied on tendency evidence without giving notice – whether evidence also relevant to circumstantial case in relation to another offence – whether necessary to distinguish circumstantial evidence from tendency evidence – whether direction could have assisted jury – whether leave should be granted to rely on ground not objected to at trial – Evidence Act 1995 (NSW), s 97; Criminal Appeal Rules (NSW), r 4

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/115.html

PROCEDURE – discovery and interrogatories – whether witness statements form part of an investigator’s report – witness statements were obtained at the same time and prepared by the same person as the investigator’s report – witness statements are the basis for the investigator’s report – found that the witness statements are part of the investigator’s report

Evidence Act 2011 (ACT), s 118

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/159.html

CRIMINAL LAW – Appeal against conviction – Sexual assault offences – Whether trial was held according to law – Whether trial a nullity – Appellant not arraigned in accordance with mandatory requirements, Criminal Procedure Act 1986, s 130(3)(b) – Appellant not arraigned again after empanelment of jury – No requirement to re-arraign accused person after empanelment where there is no legal issue to be determined in the exercise of the court’s jurisdiction under s 130(2).

CRIMINAL LAW – Appeal against conviction – Sexual assault offences -Complainant’s response during cross-examination “Why would I lie about that?”- Motive to lie an issue for the jury’s determination – Crown Prosecutor’s address to the jury drew attention to complainant’s response – Whether the Crown Prosecutor’s address resulted in a miscarriage of justice – Crown Prosecutor permitted to refer to complainant’s evidence – Impermissible for the Crown Prosecutor to indicate that the complainant had no motive to lie thereby suggesting the accused bore an onus to establish complainant was lying.

CRIMINAL LAW – Appeal against conviction – Sexual assault offences -Complainant’s response during cross-examination “Why would I lie about that?”- Whether trial judge’s direction that there may be a number of reasons why a person has a motive to lie was inadequate – Trial judge directed jury to the complainant’s response and reminded jury that Crown bore onus of proof beyond reasonable doubt – Trial judge’s direction concluded that it was a matter for the jury to assess complainant’s evidence – Trial judge’s direction was adequate.

CRIMINAL LAW – Appeal against conviction – Sexual assault offences – Whether trial judge erred by failing to give a proper and/or adequate warning to the jury as to the unreliability of evidence of admissions pursuant to the Evidence Act 1995 , s 165 – Appellant’s defence counsel specifically agreed to the terms of the direction that the trial judge proposed to give and in fact gave – Trial judge was not required to give a direction that contained the specific warning and information specified in s 165(2).

CRIMINAL LAW – Appeal against conviction – Sexual assault offences – Whether an aggregation of the defects alleged in the grounds of appeal constituted a miscarriage of justice – Court not satisfied that there were defects in the conduct of the case – Appeal dismissed.

CRIMINAL LAW – Application for leave to appeal on sentence – Trial judge misstated the standard non-parole period for Crimes Act, s 61M(2) offence at the time the offence was committed – Trial judge assessed the offending conduct below the mid-range of objective seriousness – Error in statement of standard non-parole period led to error in the non-parole period imposed for the offence – Appeal allowed – Appellant re-sentenced.

CRIMINAL LAW – Application for leave to appeal on sentence – Trial judge erred in finding that the commission of the offences in counts 1, 2 and 3 in the home was an aggravating feature – Despite error no other sentence warranted in law in respect of counts 1 and 2.

CRIMINAL LAW – Application for leave to appeal on sentence – Length of total sentence imposed – Whether trial judge erred in not finding special circumstances – Trial judge had regard to the question of accumulation of sentences – Trial judge was not in error.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/223.html

DAMAGES – torts – exemplary damages – medical practitioner provided treatment that was objectively unnecessary and without therapeutic effect – relevance of planning and duration of course of conduct

MEDICAL PRACTITIONERS – liability in tort – defence of consent – medical practitioner providing treatment that was objectively unnecessary and without therapeutic effect – whether defence of consent available – burden of proof of demonstrating consent of patient – whether medical practitioner was reckless as to whether treatment was either appropriate or necessary – whether exemplary damages should be awarded

STATUTORY INTERPRETATION – Civil Liability Act 2002 (NSW), s 3B(1)(a) -intentional act that is done by a person with intent to cause injury – purpose of leaving those who commit intentional torts to the operation of the general law – whether provision engaged by treatment known not to be reasonably necessary

TORTS – trespass to the person – consent to medical treatment – requirement that basic information be given to patient – distinction between nature of procedure and peripheral characteristics – whether misrepresentation of the nature of the procedure vitiates consent – relevance of motive of practitioner in misrepresenting the proposed treatment – burden of proof of establishing that procedure undertaken with consent – whether honest and reasonable belief that patient consented a defence

Evidence Act 1995 (NSW), s 140