[ 2.2 ] Cases - Key paragraphs

Question 1

Fafoutellis v The Blockage Bloke Pty Ltd & Ors [2017] VSC 480

Answer 1

1. In Fafoutellis, Clayton JR rejected the first defendant’s application to join YVW as a defendant under O 11. 2. There was no satisfactory explanation for the dealy in making the application. 3. Upon consideration of the overarching purpose (in s 7 CiPA), the Court held that YVW should not be joined because of delay to the trial.

Question 2

[73] of Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118

Answer 2

A pleading of reliance on representations, without more, will not usually manifest inconsistency with the maintenance of LPP in communications relevant to that state of mind.

Question 3

Raventhorpe Pty Ltd & Ors v Westpac Banking Corporation [2017] VSC 362

Answer 3

1. In Raventhorpe, Matthew JR granted an order under O 62 for security for costs against two companies with insufficient assets to pay Westpac’s costs. 2. This was despite the delay of Westpac in making an application. 3. However, the quantum sought by Westpac was reduced to reflect costs on a standard basis.

Question 4

[76] of Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118

Answer 4

No gloss should be added to the test of inconsistency in s 122(2).

Question 5

[33] of Hera Project Pty Ltd v Bisognin (No 4) [2017] VSC 270

Answer 5

Documents to be produced should be described in a subpoena in relatively clear language and with reasonable particularity.

Question 6

R v Adams (No 5) [2016] NSWSC 1563

Answer 6

1. In Adams (No 5), Button J held that “voir dire exhibit G” - a NSW Police crime information report - was inadmissible due to s 69(3) because it was prepared in connection with an investigation. 2. However, “voir dire exhibit H” was admissible as a business record because it was an intelligence report maintained by the police general information purposes. 3. Thus, the Crown were entitled to rely on the representation as to the accused’ vehicle in 1978.

Question 7

[38] of Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118

Answer 7

“Although s 122(2) is directed at the adducing of evidence, it applies also to the giving of information or the production of a document in other circumstances, including pre-trial discovery: s 131A.”

Question 8

Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118

Answer 8

1. In Viterra Malt, the CoA held that Cargill had not waived privilege in legal advice about undisclosed matters in data room disclosures by pleading reliance on representations by Viterra that those matters did not exist. 2. Viterra had argued that Cargill’s pleadings put its state of mind about its knowledge of the undisclosed matters in issue, and therefore waived privilege in advice about those matters.

Question 9

[13] of CGL v DPP (No 2) [2010] VSCA 24

Answer 9

A TJ should provide short reasons for a certification under s 295(3).

Question 10

R v Dickman [2017] HCA 24

Answer 10

1. In Dickman, the HCA held that the probative value (PV) of the victim’s identification evidence (of the accused in a police photoboard) was low because of the fact that the offences had occurred two years prior. 2. However, the PV still outweighed the danger of unfair prejudice (UP) to the accused - even though the police improperly said the the victim that the suspect’s photo would be included in the photoboard. 3. The danger of UP was minimal and could be addressed by directions.

Question 11

Dunn v The Queen [2017] VSCA 371

Answer 11

1. In Dunn, the Court of Appeal held that the TJ had not erred by not directing the jury must consider whether Watts, the accused, had still been a party to the joint criminal enterprise at the time of the relevant offence. 2. Counsel for Watts did not object to the question trail (or integrated directions: s 67 of JDA) proposed by the TJ. 3. There was no substantial or compelling reason to give such a direction not requested by counsel.

Question 12

Re Ceylan [2018] VSC 361

Answer 12

1. In Ceylan, Beach JA was not persuaded that the applicant, accused of a schedule 2 offence, was shown a compelling reason to justify bail (i.e. a forceful and convincing, but not irresistible or exceptional, reason). 2. The applicant had a poor criminal history, and had previously committed offences while on bail and had fled to Turkey on a false passport. 3. Beach JA also held that there was an unacceptable risk that the applicant would commit offences while on bail (if granted).

Question 13

R v Brown [2018] VSC 742

Answer 13

1. In Brown, Champion J, adopting the instinctive synthesis method (Markarian), sentenced the accused to prison for 30 years (with a NPP of 24 years). 2. The accused had brutally murdered his ex-partner. Champion J considered the maximum penalty (life), serious offending, high culpability, the standard sentence, and the need for general deterrence (although specific deterrence was not significant). 3. Had the accused not pleaded guilty, Champion J would have sentenced him to 35 years (with NPP of 28 years): s 6AAA.

Question 14

Wilson v Bauer Media Pty Ltd [2017] VSC 357

Answer 14

1. In Wilson, John Dixon J held that Mr Principato’s expert evidence regarding the plaintiff’s lost opportunities was admissible. 2. His evidence was relevant to the claims (s 55), sufficiently based on his specialised knowledge of the film industry, and identified the relevant facts and assumptions on which it was based (s 79). 3. The PV of his evidence outweighed the danger of an undue waste of time (s 135).

Question 15

[85] of Dunn v The Queen [2017] VSCA 371

Answer 15

The policy underpinning the JDA is that it is for trial counsel to determine how the case is to be presented to the jury.

Question 16

[44] of R v Dickman [2017] HCA 24

Answer 16

“The fact that standing alone its probative value was low did not require its exclusion unless that value was outweighed by the danger of unfair prejudice”

Question 17

Svajcer v Woolworths Limited [2015] VSC 543

Answer 17

1. In Svacjer, Rush J held that evidence of the plaintiff’s criminal history was not to be excluded under s 135. 2. Although the history may have been unfairly prejudicial, this was outweighed by the PV of the evidence, which was said to be causative of the plaintiff’s psychological injuries. 3. The risk of unfair prejudice was further addressed by Rush J directing under r 47.02(3) that the trial be heard by judge alone.

Question 18

Trkulja v Dobrijevic (No 2) [2016] VSC 596

Answer 18

1. In Trukulja, Garde J held that it was in the interests of justice to order security of costs of $55,000 in the inherent jurisdiction of the Supreme Court. 2. His Honour held that the P’s case was weak, many costs orders had previously been made against the P, and there was no public interest precluding an order for security for costs.

Question 19

Hera Project Pty Ltd v Bisognin (No 4) [2017] VSC 270

Answer 19

1. In Hera Project, Riordan J awarded Gadens the reasonable expenses of complying with the plaintiff’s subpoena under r 42.11 (although significantly less than what Gadens claimed). 2. The amount was reduced because: (i) the terms of the subpoena were reasonable; (ii) Gadens had misled the plaintiff about the extent of compliance work; and (ii) there was no established basis for a confidentiality claim by Gadens.

Question 20

[48] of R v Dickman [2017] HCA 24

Answer 20

“Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury’s assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence”

Question 21

[18] of McLean v The Queen [2018] VSCA 209

Answer 21

There is no mathematically correct range of ratio for a NPP.

Question 22

McLean v The Queen [2018] VSCA 209

Answer 22

1. In McLean, the CoA upheld a NPP of 2 years, being 80% of the head sentence of 2y 6m. 2. Although this ratio was higher than the common 60-75%, this was because of the “very modest” head sentence due to the additional threat of deportation. 3. 2 years NPP was the minimum time justice required the offender to serve.

Question 23

CGL v DPP (No 2) [2010] VSCA 24

Answer 23

1. In CGL, the CoA refused leave to appeal from a ruling an admission admissible under s 85(2). 2. The CoA said that the TJ should not have certified that ruling under s 295(3). 3. As the foundation of the P case was the complainant’s evidence, the exclusion of the admission would not “substantially weaken” the P case.

Question 24

[63] of Dunn v The Queen [2017] VSCA 371

Answer 24

The JDA contemplates active engagement between the Court and counsel.