Category: Evidence
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Denial of procedural fairness
The primary judge’s conclusions as to the cause of Mr Kedwell’s injury were arrived at through his own analysis. They were not based on any expert evidence and were not reflective of any submission made to him. If that was the basis on which he was going to reject Mr Kedwell’s case that he suffered an injury…
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Onassis v Vergottis: the fading of memory
Onassis v Vergottis [1968] 2 Lloyd's Rep 403 It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken…
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Drawing inferences from the evidence
in Evidence[44] Although the appellant accepted that one witness (ironically one it had called) Mr Ahama, said in cross-examination that the ramp surface was slippery whether wet or dry, it argued that evidence did not establish the surface was unreasonably slippery because concepts of slipperiness are idiosyncratic in relative terms. This was borne out, it argued, by the fact…
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Privilege: Carbone v National Crime Authority
in Evidence[22] Hill J was confronted with a similar question in Carbone v National Crime Authority (1994) 52 FCR 516, and he adopted a robust approach to the answer. He merely said at 529: "In my view there is no substance in the argument that privilege attaching to witness statements is waived when a copy of those…
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Browne v Dunn: the rule and its limits
in EvidenceLocke v H.C. Loneragan & Company Pty Ltd as trustee for the Loneragan Family Trust t/as Quantum Forensic Solutions [2025] NSWCA 166 The fundamental concern of the rule in Browne v Dunn is to avoid unfairness to the witness and the party calling the witness. There was no breach of the rule in this case. Mr Locke…
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Willmot v State of Queensland: the fallibility of memory
Willmot v The State of Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [30] [C]ourts are mindful that ordinary human experience exposes that human memory is “fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time” [citing Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR…
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Expert evidence: Kmart Australia Ltd v Marmara
in EvidenceKmart Australia Limited v Marmara [2024] NSWCA 249 58 Kmart relied on the line of cases beginning with this Court’s decision in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (“Makita”) and running through to the High Court’s decision in Dasreef Pty Limited v Hawchar (2011) 243 CLR 588;…
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Proving conversations: the modern approach
in EvidenceThe Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 This brings to mind the recent observations of Jackman J in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [121]-[129] (which were referred to approvingly by White JA (Simpson AJA and Basten AJA…
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The frailty of human memory in fact finding
in EvidenceAlexakis v Masters (No 2) [2023] NSWSC 509 In view of the frailty of human memory, the inability of Mr McClure to give evidence and the parties’ self-interest, more weight is to be placed on the contemporaneous documents where they are available, the objective surrounding circumstances and the inherent probabilities and improbabilities of events: Watson v Foxman (1995) 49 NSWLR…
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Admissions and authority to make them
in EvidenceVicarious Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 In the absence of any express authorisation for Mr Bird to make admissions on Ms Clancy’s behalf, and in circumstances where Ms Clancy learned of the charges against her father after his police interview, Mr…