QLD Bar Exam -
essential cases
Questions and Complete
Solutions Graded A+
Dasreef pty ltd v Hawchar [2011] HCA 21 - Answer: Evidence - Expert Opinion
Evidence of an opinion is not admissible if it assumes a fact in issue to be true and cannot be used to
prove a fact about which the opinion is expressed
In case an expert gave opinion that the protective wear that the P was wearing would have exposed him
to an unsafe amount of silica dust. this was disallowed as it assumed he was exposed to high levels of
silica dust which was the fact in issue.
Joy v Philips, Mills and Co ltd [1916] 1 KB 849 - Answer: Similar fact evidence
case establsihed the presumption of continuance
A claim was made against a work company after the death of a stable boy from a kick to the head from a
horse. but evidence was lead showing that the boy had a habit of spooking the horses and it was held
that it was likely the case he was doing this when the incident occurred.
R v Hayden and slattery [1959] VR 102 - Answer: Evidence - adverse witness
provided the definition for hostile (adverse) witnesses
, a hostile witness is one who deliberately withholds material evidence or is unwilling to tell the whole
truth for the advancement of justice
decisions to make a hostile witnesses must be made in voir dire
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 - Answer: Practice and Procedure
UCPR 5 and 389(2)
continuance of proceedings after delay. in determining whether to allow next step or dismiss the
application the court must consider:
1. how long ago the events alleged occurred
2. how long ago the litigation was commenced or causes of action were added;
3. prospects of success of the plaintiff;
4. whether or not there has been disobedience of Court orders or directions;
5. whether or not the litigation has been characterised by periods of delay;
6. whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the
defendant;
7. whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation
and whether the defendant is responsible for the plaintiff's impecuniosity;
8. whether the litigation between the parties would be concluded by the striking out of the plaintiff's
claim;
9.how far the litigation has progressed;
10. whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness
will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave
to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
11. whether there is a satisfactory explanation for the delay;
12. whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure
a fair trial.
Kilby v the Queen [1973] HCA 30 - Answer: Evidence - exception to hearsay
, Failure to complain
Where victim was delayed in making complaint this could be used against them of evidence of poor
credibility.
(unlikely delay would cause case to be dismissed nowadays)
Nicholls v The Queen [2000] HCA 1 - Answer: Evidence - exception to hearsay
hearsay is admissible in circumstances where it is used to prove bias or unreliability
R v Hammond & Loosemore [2016] QSC 98 - Answer: Evidence - unlawfully obtained
police conducted enquiries into a traffic accident and illegally entered a person home to find drug
equipment
evidence was excluded n the basis that the police disregarded the law
Ex Parte Fernandez (1861) 10 CB NS 3 - Answer: Evidence - compellability
Anyone who is competent is compellable
Ratten v The Queen [1974] HCA 35 - Answer: Evidence - Res Gestae - Hearsay exception
hearsay evidence may be admitted if the statement is made in such circumstances of involvement or
pressure so as t exclude the possibility of concoction or distortion to the advantage of the maker or
disadvantage of the accused
Vaughan v Bongiornio (2007) NSWSC 1398 - Answer: Practice and procedure - Mareva Orders - PD 1 of
2007
essential cases
Questions and Complete
Solutions Graded A+
Dasreef pty ltd v Hawchar [2011] HCA 21 - Answer: Evidence - Expert Opinion
Evidence of an opinion is not admissible if it assumes a fact in issue to be true and cannot be used to
prove a fact about which the opinion is expressed
In case an expert gave opinion that the protective wear that the P was wearing would have exposed him
to an unsafe amount of silica dust. this was disallowed as it assumed he was exposed to high levels of
silica dust which was the fact in issue.
Joy v Philips, Mills and Co ltd [1916] 1 KB 849 - Answer: Similar fact evidence
case establsihed the presumption of continuance
A claim was made against a work company after the death of a stable boy from a kick to the head from a
horse. but evidence was lead showing that the boy had a habit of spooking the horses and it was held
that it was likely the case he was doing this when the incident occurred.
R v Hayden and slattery [1959] VR 102 - Answer: Evidence - adverse witness
provided the definition for hostile (adverse) witnesses
, a hostile witness is one who deliberately withholds material evidence or is unwilling to tell the whole
truth for the advancement of justice
decisions to make a hostile witnesses must be made in voir dire
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 - Answer: Practice and Procedure
UCPR 5 and 389(2)
continuance of proceedings after delay. in determining whether to allow next step or dismiss the
application the court must consider:
1. how long ago the events alleged occurred
2. how long ago the litigation was commenced or causes of action were added;
3. prospects of success of the plaintiff;
4. whether or not there has been disobedience of Court orders or directions;
5. whether or not the litigation has been characterised by periods of delay;
6. whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the
defendant;
7. whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation
and whether the defendant is responsible for the plaintiff's impecuniosity;
8. whether the litigation between the parties would be concluded by the striking out of the plaintiff's
claim;
9.how far the litigation has progressed;
10. whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness
will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave
to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
11. whether there is a satisfactory explanation for the delay;
12. whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure
a fair trial.
Kilby v the Queen [1973] HCA 30 - Answer: Evidence - exception to hearsay
, Failure to complain
Where victim was delayed in making complaint this could be used against them of evidence of poor
credibility.
(unlikely delay would cause case to be dismissed nowadays)
Nicholls v The Queen [2000] HCA 1 - Answer: Evidence - exception to hearsay
hearsay is admissible in circumstances where it is used to prove bias or unreliability
R v Hammond & Loosemore [2016] QSC 98 - Answer: Evidence - unlawfully obtained
police conducted enquiries into a traffic accident and illegally entered a person home to find drug
equipment
evidence was excluded n the basis that the police disregarded the law
Ex Parte Fernandez (1861) 10 CB NS 3 - Answer: Evidence - compellability
Anyone who is competent is compellable
Ratten v The Queen [1974] HCA 35 - Answer: Evidence - Res Gestae - Hearsay exception
hearsay evidence may be admitted if the statement is made in such circumstances of involvement or
pressure so as t exclude the possibility of concoction or distortion to the advantage of the maker or
disadvantage of the accused
Vaughan v Bongiornio (2007) NSWSC 1398 - Answer: Practice and procedure - Mareva Orders - PD 1 of
2007
