Category: Other

Posted on

Witness credibility (deceased estates)

(Source: Isin v Ozen [2016] NSWSC 1480)

It is plain that the credibility of witness evidence is critical (lets say determinative) in cases where conversations are alleged with a deceased (for want of a better word!).

There may or sometimes will usually be contemporaneous documents including where authenticity of such documents is not in issue.

What follows is some relevant considerations to keep in mind in how these conversations are assessed and effect creditibility.

Black J has recently repeated in Coyte v Norman; Centre Capital (Newcastle) Pty Ltd v B Scorer [2016] NSWSC 1242 at [9]:

“…the credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to the witness’s motives and the overall probabilities”.

Where conversations are alleged with a party who is deceased, it was important to remember the principle expressed by Bryson AJ in Zahra v Francica [2009] NSWSC 1206 at [1] – [2]:

“In these proceedings the plaintiff makes claims against the deceased’s estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

“… in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.”

A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson ,see particularly pars [26] to [28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA’s par [28] observations in the High Court of Australia in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities.”

Further, Bryson J had said in Day v Couch [2000] NSWSC 230 at [9]:

“Where a claim is made against the estate of a deceased person and knowledge of the facts on which the claim is based is no longer available to the legal personal representative of the deceased, judicial experience requires a careful approach to fact-finding, although there are no special rules relating to the burden or to the standard of proof: “[I]n cases of this sort the Court scrutinizes very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff’s case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue”: Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 at 548-549 per Isaacs J. In Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666, which related to mutual wills, there were also expressions of caution: see per Latham CJ at 674 and Dixon J at 681-682. See too Grundel v The Registrar General(1990) BPR 97-340 at11,219 per McLelland J. These observations do not establish any legal standard of proof differing from the ordinary civil standard relating to the balance of probabilities, and there is no legal requirement for corroborative evidence.”

As was stated by Hallen J in Isin v Ozen [2016] NSWSC 1480 these principles need to be considered where conversations involve a deceased.

Posted on

Breach of duty of care – motor vehicle accidents – you decide?

You decide ?Mr Kidd gave evidence that he was driving a yellow bus, proceeding south-easterly on Talavera Road when he faced a red light at the Herring Road intersection and came to a stop. He had been a professional bus driver for six years and was well familiar with the intersection. He said the green arrow allowed two buses through on each phase. He was the first vehicle in the right-hand turn bus lane at the lights. He waited until he received a green arrow to turn right, and when that appeared he proceeded into the intersection. When he was about 15 metres into the intersection, he first noticed Mrs Aziz’s car proceeding in the opposite direction towards the intersection about 100 metres away. As he continued he became concerned that she might not stop, contrary to the red light he believed she must have been facing, and shortly before she entered the intersection, he proceeded to stop the bus when its front was about a third of the width of the lane or about a metre across the continuation of Mrs Aziz’s lane. He said she had room to drive around the bus. Mrs Aziz did not stop but collided with the front of the bus on the driver’s side. When she exited her car, she swore at and abused Mr Kidd, maintaining she had a green light.

Mrs Aziz agrees with Mr Kidd’s account of her conduct after the collision. She gave evidence that she proceeded into the intersection because she faced a green light and had right of way. She did not see the bus until she was in the intersection and could give no evidence of other vehicles. She made no attempt to drive around the bus.

Both Mr Kidd and Mrs Aziz were faced with two witnesses whose recollections differed from theirs. Esme Wilson and Loan Yen Banh were traffic officers located on the north-west side of the intersection not far from and to the north of where Mr Kidd allegedly stopped his bus at the red light. Both believed that Mr Kidd had entered the intersection against a red light. Ms Wilson was an experienced traffic controller who was controlling pedestrian traffic across Talavera Road on the north-western side. She was being assisted by Ms Banh.

Did the driver in the circumstances breach his duty of care?

In Aziz v Kidd [2016] NSWDC 254 Taylor DCJ made the following observations about breach of drivers duty of care.

  1. As was stated in Marien v Gardiner [2013] NSWCA 396 at [34]-[37], quoted in Warth v Lafsky [2014] NSWCA 94 at [55]:

“[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant’s circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 – 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s5B(1).

[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], ‘reasonable attention to all that is happening on and near the roadway that may present a source of danger’. That in turn requires ‘simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle’s path’.

[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the ‘limits of visibility and control’ so as to be able to react to whatever ventures into the vehicle’s path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 andMorris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.”

  1. Certainly, under s 5B of the Civil Liability Act 2002, Mr Kidd was required to take reasonable care for the safety of other road users:Marien v Gardiner at [33]. He was required to “exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections” (Turkmani at [28], Warth at [56]). Here, Mr Kidd did that, observing Ms Aziz’s vehicle 100 metres away, observing that she seemed to be travelling fast, growing increasingly concerned that she might not stop at the intersection.
  2. The real question is whether a reasonable person would have taken precautions other than or in addition to those taken by Mr Kidd: see s 5B(1) of the Civil Liability Act 2002. In answering this question, one must bear in mind the circumstance that Mr Kidd is facing a green arrow and has the general right of way that is occasioned by that green light. It is far less significant, in my view, that Mr Kidd was turning across a lane of traffic, unlike in a situation where a driver is turning across a lane of traffic at an uncontrolled intersection: see Tran v Government Insurance Office (NSW) (1994) 20 MVR 182, Ilsley v Boots [1970] 2 NSWR 551, David v Hartman [1953] SASR 109. As the intersection in Tran was not controlled by traffic lights, the turning vehicle in that case had no general right of way over oncoming traffic. Here, Mr Kidd was not “disturbing the flow of traffic” (Tran at 183), as was the driver in Tran; rather, it was the traffic lights that had that effect on the flow of traffic.
  3. Some guidance is provided, in my view, in the decision of Tromp v Liddle (1941) 41 SR(NSW) 108. The headnote relevantly notes:

“A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as the result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not. Thus, the mere fact that he sees the bonnet of a car appear from a side street on his left does not make it imperative for him to stop; and he may, unless he gets some indication to the contrary, reasonably assume that the driver on his left is advancing to serve the normal purpose of seeing whether cars are approaching on the right.”

Posted on

Product liability

Source: www.fasterway.com.au

This is a typical fracture surface. This is a threaded connection (hence the appearance of a depression around the circumference).

The fracture surface was smooth, flat, and perpendicular to the principal axis of the bolt. Crack progression marks (beach marks) extended radially from one side of the bolt and covered approximately 90% of the fracture surface area. The remaining small region towards the outer edge of the bolt exhibited features consistent with an overstress failure. The large area of fatigue cracking and small overstress area indicated that failure of the bolt was due to high cycle low stress fatigue cracking.

Bolt fracture surface showing evidence of fatigue crack progression (beach) marks

Bolt fracture surface showing evidence of fatigue crack progression (beach) marks

Source: ATSB

On 30 May 2015, a Fasterway powered parachute, recreational registration 19-7677, collided with terrain near Theodore, Queensland. The pilot, the sole occupant, died as a result of the accident.

Submitted eyenut and fractured bolt

Source: ATSB – Investigation title: Technical assistance to Recreational Aviation Australia in the examination of a fractured eyebolt from the collision with terrain involving a Fasterway Powered Parachute, near Theodore, Qld. on 30 May 2015

Investigation number: AE-2015-075

Posted on

Legal nature of a cheque

Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35 (5 February 2014)

Para 93

  1. The issue of a cheque by a customer, or the giving of a payment instruction or withdrawal request to its bank, which would have the effect of overdrawing a customer’s account, is construed as a request by the customer for an advance or loan from the bank, and the bank has a discretion to approve or disapprove the loan: Cuthbert v Robarts, Lubbock & Company [1909] 2 Ch 226 at 233; Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd [1980] 1 QB 677 at 699-700; Ryan v Bank of New South Wales[1978] VicRp 54; [1978] VR 555 at 577; Narni Pty Ltd v National Australia Bank Ltd [1998] VSC 146 at [37] and Narni Pty Ltd v National Australia Bank Ltd [2001] VSCA 31 at [21];

See also Weaver GA and Craigie CR, The Law Relating to Banker and Customer in Australia, (Thompson Lawbook Co) at [2.140] (update 62).

Posted on

Legal nature of a deposit

Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35 (5 February 2014)

Para 93

  1. A savings or deposit account is in law a loan to the banker: Pearce v Creswick [1843] EngR 304; (1843) 2 Hare 286; Dixon v Bank of New South Wales [1896] NSWLawRp 103; (1896) 17 LR (NSW) Eq 355; Khan v Singh [1936] 2 All ER 545. The bank borrows the money and proceeds from the customer and undertakes to repay them on demand. The bank’s undertaking includes a promise to pay any part of the amount due against the written order of the customer addressed to the branch of the bank where the account is kept: Joachimson at [127]. Conversely, the bank will not pay any part of the amount due to the customer without such an order or some other compulsion or entitlement recognised by law;

See also Weaver GA and Craigie CR, The Law Relating to Banker and Customer in Australia, (Thompson Lawbook Co) at [2.140] (update 62).\

Citigroup Pty Limited v National Australia Bank Limited [2012] NSWCA 381 (4 December 2012)

Banker and customer

  1. The accepted analysis of the banker-customer relationship where the account is in credit casts the bank in the role of the customer’s debtor. Money notionally “in” the customer’s account is in truth money owned by the bank which is owed by it to the customer and payable on demand made by the customer by way of “withdrawal”: see, for example, Carr v Carr[1811] EngR 606; (1811) 1 Mer 541n; 35 ER 799; Devaynes v Noble (1816) 1 Mer 529; 35 ER 767; Foley v Hill [1848] EngR 837 ; (1848) 2 HL Cas 28;  9 ER 1002.  On this basis, the money paid by Citibank to NAB on 16 November 2010 was the property of Citibank and the money paid by NAB to the Hong Kong bank on 19 November 2010 was the property of NAB. The question arising between each bank and its customers was whether the payment by the bank justified a commensurate reduction in the debt owed by the bank to those customers. Because, on the facts as they are now accepted, each bank gave effect to a forged and false instruction and therefore acted outside the bank’s mandate and in breach of contract, no such reduction was warranted.

Commonwealth of Australia v The Official Trustee in Bankruptcy as Trustee of the Property of Stephen Vasil [2004] NSWSC 1155 (2 December 2004)

8 When a person (the Customer) opens a banking account with a trading bank, he or she enters into a contract with the Bank under which the money deposited by the Customer in his or her account becomes the property of the Bank and the relationship of debtor and creditor is created between banker and customer: Foley v Hill  [1848] EngR 837 ; (1848) 2 HLC 28;  9 ER 1002 ; Croton v Reg [1967] HCA 48; (1967) 117 CLR 326 at 330.

 

Croton v R [1967] HCA 48; (1967) 117 CLR 326 (21 December 1967)

12. The subject matter of the instant charges was money, in each case expressed as a number of dollars, that is, paper money, or coin to the stated face value. That can be asported and be the subject of larceny. But, though in a popular sense it may be said that a depositor with a bank has “money in the bank”, in law he has but a chose in action, a right to recover from the bank the balance standing to his credit in account with the bank at the date of his demand, or the commencement of action. That recovery will be effected by an action for debt. But the money deposited becomes an asset of the bank which may use it as it pleases: see generally Nussbaum, Money in the Law: s. 8, p. 103. Neither the balance standing to the credit of the joint account in this case, nor any part of it, as it constituted no more than a chose in action in contradistinction to a chose in possession, was susceptible of larceny, though it might be the subject of misappropriation: see also on this point the judgment of Lord Goddard in Reg. v. Davenport (1954) 1 WLR 569;(1954) 1 All ER 602 with which I respectfully agree. (at p331)

Posted on

Relationship between a banker and a customer

Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35 (5 February 2014)

  1. However, as part of the wider framework, reference also must be made to the established principles concerning the relationship of banks and their customers. These were summarised in Andrews Trial at [81]-[82] (see also BMP Global Distribution Inc v Bank of Nova Scotia [2009] 1 SCR 504 at [47]-[48]) as follows:

It is trite that the relationship between a banker and a customer is in contract: Foley v Hill [1848] EngR 837; (1848) 2 HL Cas 28. Such contracts have been described as:

… ordinary commercial contracts to be construed and applied according to their terms, and in accordance with a ‘basic principle of the common law of contract … that parties to a contract are free to determine for themselves what primary obligations they will accept’.

Williams and Glyn’s Bank v Barnes [1981] Com LR 205 at 209 (quoting Photo Production Ltd v Securicor Transport Ltd [1980] UKHL 2; [1980] AC 827 at 848) cited with approval in Narni Pty Ltd v National Australia Bank[2001] VSCA 31 at [19].

Unsurprisingly, the contractual terms are important; it is a contract usually with many terms (Joachimson v Swiss Bank Corporation [1921] 3 KB 110 at 127) but from which the following core banking law principles derive:

  1. A savings or deposit account is in law a loan to the banker: Pearce v Creswick [1843] EngR 304; (1843) 2 Hare 286; Dixon v Bank of New South Wales [1896] NSWLawRp 103; (1896) 17 LR (NSW) Eq 355; Khan v Singh [1936] 2 All ER 545. The bank borrows the money and proceeds from the customer and undertakes to repay them on demand. The bank’s undertaking includes a promise to pay any part of the amount due against the written order of the customer addressed to the branch of the bank where the account is kept: Joachimson at [127]. Conversely, the bank will not pay any part of the amount due to the customer without such an order or some other compulsion or entitlement recognised by law;
  1. The issue of a cheque by a customer, or the giving of a payment instruction or withdrawal request to its bank, which would have the effect of overdrawing a customer’s account, is construed as a request by the customer for an advance or loan from the bank, and the bank has a discretion to approve or disapprove the loan: Cuthbert v Robarts, Lubbock & Company [1909] 2 Ch 226 at 233; Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd [1980] 1 QB 677 at 699-700; Ryan v Bank of New South Wales[1978] VicRp 54; [1978] VR 555 at 577; Narni Pty Ltd v National Australia Bank Ltd [1998] VSC 146 at [37] and Narni Pty Ltd v National Australia Bank Ltd [2001] VSCA 31 at [21];
  1. A written order by a customer which requires the bank to pay a greater amount than the balance standing to the credit of the customer may be declined. There is no obligation on the bank to pay a cheque unless there is a sufficient balance in the account to pay the entire amount or unless overdraft arrangements have been made which are adequate to cover the amount of the cheque: Bank of New South Wales v Laing [1954] AC 135 at [154]; Office of Fair Trading v Abbey National plc [2008] EWHC 875(Comm) at [45] and Narni [2001] VSCA 31 at [12];
  1. If a customer with no express overdraft facility draws a cheque which causes his account to go into overdraft, the customer, by necessary implication, requests the bank to grant an overdraft on its usual terms as to interest and other charges: Lloyds Bank plc v Voller [2000] 2 All ER (Comm) 978 at 982.

See also Weaver GA and Craigie CR, The Law Relating to Banker and Customer in Australia, (Thompson Lawbook Co) at [2.140] (update 62).

Posted on

Failure to pass a Standard does not of itself establish negligence

Garrett v Hills Industries [2006] QDC 299 –  Even if a device of product failed to pass all relevant tests of the Australian standard, this would not, of itself, establish negligence: O’Connor v Hansen Wilckens Hornibook Constructions Ltd (1968) 42 ALJR 239; Crisa v John Shearer Ltd (1981) 27 SASR 422 at 428.

Failure to follow a standard does not, without more, establish negligence: O’Connor v Hansen Wilckens Hornibrook Constructions Ltd (1968) 42 ALJR 239, 242; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [110]; Scope Machinery Pty Ltd v Ross [2009] WASCA 100 [43].

It is for the court to adjudicate upon what is the appropriate standard of care: Lanza v Codemo [2001] NSWSC 845 [169]; Francis v Lewis [2003] NSWCA 152 [43].

Even compliance or noncompliance with statutory construction requirements will not be determinative of the issue about whether reasonable care has been taken (Jones v Bartlett [23]).

Posted on

Trustee duties – general law and superannuation law

No different approach has been taken: see Re Application of HIH Superannuation Ltd [2003] NSWSC 65; Breckler at 109-110 ([41]); Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691 at [21]– [25]; Telstra Super Pty Ltd v Finch [2009] VSCA 318 at [65]; and J C Campbell, ‘Exercise by Superannuation Trustees of Discretionary Powers’ (2009) 83 ALJ 159.

 

From Manglicmot v Commonwealth Bank Officers Superannuation Corporation [2010] NSWSC 363

Posted on

Legal Principles Governing Contempt of Court

The principles are fully set out in Commonwealth Bank of Australia v Salvato (No.4) [2013] NSWSC 321.

Below is a summary of those principles.

The first principle is that the charge of contempt must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 529 per Brennan, Deane, Toohey and Gaudron JJ.  

Secondly, a contempt of court can be constituted by the breach of an order of the Court: Trade Practices Commission v C. G. Smith Pty Ltd (1978) 30 FLR 368 at 375; Spindler v Balog (1959) 76 WN (NSW) 391; Circuit Finance Australia v Sobbi [2010] NSWSC 789 at [10].

Thirdly, a person cannot be found guilty of a contempt of court for breach of an order, where the terms of the order are ambiguous: Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 515-6 per Owen J. The ambiguity must be such that it cannot be said what it was that required compliance: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [56]-[57] per Beazley JA.

Fourthly, where the contempt of court consists of a failure to comply with an order of the Court, it must be demonstrated that the contempt was wilful, and not merely casual, accidental or unintentional: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98. However, it is not necessary for an applicant to prove that the contemnor intended to breach an order of the Court: see Anderson v Hassett [2007] NSWSC 1310; Mudginberri at 111; Matthews v Australian Securities Investment Commission [2009] NSWCA 155 at [16] per Tobias JA.

 As Brereton J said in Anderson at [6]:

 “The statement in Mudginberri (at 113) that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional, does not require proof of a specific intent, but permits an alleged contemnor to show by way of exculpation that the default was ‘casual, accidental or unintentional’ … “

Finally, it is not necessary for an applicant to prove that the contemnor was aware that his or her conduct constituted a breach of the Court’s order: Microsoft Corporation v Marks (No.1) (1996) 69 FCR 117 at 143 per Lindgren J; Metcash Trading Ltd v Bunn (No.5) [2009] FCA 16 at [9] per Finn J.