Cases and authorities

Sentencing - Crimes Act s 66A - Statistics - Sentence outside range.

Sentencing - Drug Misuse and Trafficking Act 1985 s 25(2) - Different sentences for co-offenders - Special circumstances - No error - Sentence not manifestly excessive

Sentence appeal - plea of guilty - irrelevance of strength of Crown case to utilitarian value - error - whether court should intervene - s44(2) Criminal Practice and Procedure Act - need to adjust non-parole period after partial accumulation of sentences to maintain statutory ratio.

Errors of law - construction of deed - termination and refund provisions - penalty - action for common law damages - damages awarded on bases not in issue between the parties.

GAMING - possession and operation of gaming machines by registered club - conditional authority to possess and operate gaming machines under hardship provisions in s.88AF Registered Clubs Act 1976 - repeal of s.88AF and commencement of Gaming Machines Act 2001 - operation of savings and transitional provisions in Gaming Machines Act 2001 - whether Liquor Administration Board has power to review and reduce number of gaming machines allowed under original s.88AF conditional authority - Board has such power

Contributory negligence (child age 7) - Motor accident - Standard of care owed by driver to a child running across the road

Application to vacate hearing dates

CORPORATIONS - winding up - statutory demand - application for order setting aside - where demand based on several debts states aggregate sum without identification of individual debts - where demand based on assigned debts but alleged debtor not previously aware of assignment or given particulars thereof in demand itself - whether affidavit accompanying demand sufficient - whether genuine dispute as to existence of debts shown

Application to appear at hearing by telephone link - application not granted - subsequent non-appearance - alleged denial of natural justice - discretion of court to determine procedure to be followed - relevant considerations.

NEGLIGENCE – employer’s duty of care – unreasonable delay in implementing a safe system of work – nurse working at a country hospital – progressive allergic reaction to latex – anaphylactic reaction – limitation defence – aggravation of existing condition – occurrence of a new injury – latex allergy as a distinct illness – available preventative measures – latex-safe work environment – whether impractical – contributory negligence. (ND)

Practice and procedure. - Locus standi. - Whether Plaintiff has sufficient interest in subject matter of proceedings. - Interest must be such as to warrant the grant of the relief claimed. - Declaratory relief. - Will not be granted in respect only to a hypothetical question. - Distinction between such declaratory relief and an advisory opinion.

defamation - jury finding one imputation conveyed and defamatory - plaintiff pleads publication "throughout Australia" - plaintiff seeks leave to amend statement of claim or to discontinue interstate claims - SRC Pt 21 R 2, UCPR Pt 2 R 2 - defendants seek leave to amend their defence - when defamation trial begins - when hearing of proceedings on defamation claim begins - defence of truth - whether a defence of truth at common law available in NSW - whether Defamation Act 1974 (NSW) s15 is unconstitutional and invalid - whether Polly Peck defence available in NSW - whether defence of partial justification available in NSW - whether s15 interferes with constitutional freedom of communication, interstate intercourse - discrimination between residents of different states

Disciplinary proceedings under Pharmacy Act 1964 – application for permanent stay of proceedings – assessment and investigation of complaint of professional misconduct – delay – principles applicable – whether application succeeds absent evidence of prejudice – whether delay or failure to comply with statutory requirement to investigate expeditiously sufficient for a stay order

Plea of guilty - application to withdraw plea - application withdrawn - conviction and sentence - appeal against conviction and sentence - conviction appeal abandoned - notice of abandonment not filed - sentence appeal dismissed - applications to prosecute conviction appeal or bring fresh appeal and to reopen sentence appeal - not necessary to decide ability to prosecute conviction appeal or bring fresh appeal - assuming conviction appeal, miscarriage of justice in reliance on plea not shown - sentence appeal could not be reopened - if it could, no ground for reopening made out - applications dismissed. D

Medical Tribunal - complaint of unsatisfactory professional conduct - material showing that conduct was part of a pattern and not isolated - other conduct not the subject of a complaint before the Tribunal - material relevant to orders to be made if conduct complained of established to be unsatisfactory professional conduct - material irrelevant to characterisation of conduct as unsatisfactory professional conduct - error of law by Tribunal in taking other conduct into account when characterising conduct as unsatisfactory professional conduct. - Medical Tribunal - power of Supreme Court on appeal to make such order as it thinks fit when error of law established - need for caution when differing from specialist tribunal as to how conduct should be characterised. - Medical Tribunal - jurisdiction of Tribunal to stay proceedings before it where an abuse of process considered - approach to be taken (assuming jurisdiction). - Medical Tribunal - jurisdiction of Supreme Court to stay proceedings before Tribunal where an abuse of process considered - approach to be taken.

BUILDING AND CONSTRUCTION – ADMINISTRATIVE LAW – Building and Construction Industry Security of Payment Act 1999 –grounds for judicial review – grounds on which purported determination may be void – effect of failing to advert, at all, to relevant term of contract - failure to have regard to relevant considerations – distinction between error in considering relevant term and failing to consider it at all - good faith – content of good faith – not limited to dishonesty malice or personal interest – extends to capriciousness – requires genuine and conscientious attempt to exercise power – effect of deciding adjudication on questions of credit where credit irrelevant and failing to attempt to resolve issues by means provided by statute – effect of failing to advert, at all, to a submission made by a party on central issue – distinction between error in considering relevant term and failing to consider it at all - natural justice – extent to which adjudication application may contain material not in payment claim – it may do so, so long as additional material is evidence or argument within scope or ambit of payment claim - extent of requirement to notify party of basis for decision not contemplated in course of submissions – it does not extend to requiring notice of possibility that one party’s version might be preferred to the other’s.

Appeal from Tribunal - brought well out of time - non-attendance of plaintiff at hearing - medical certificate in respect of elective procedure - assumption that proceedings would be adjourned - hearing of misconceived appeal proceeds - no basis for granting extension of time.

contempt - disobedience of court order - subpoena - final hearing of charge - statement of charge - whether deficient - whether necessary to allege deliberate suppression - no allegation of wilfulness - particularisation of alleged contempt - necessary to identify date of alleged contempt - insufficient particularisation - Commissioner's personal knowledge of subpoena - minimum mental element necessary to establish contempt - compliance deficient on at least two occasions - necessary to prove wilfulness in non-compliance - wilful non-compliance not proved - suspicion about degree of commitment to task of compliance insufficient to discharge criminal onus

aggravated indecent assault - appeal against conviction - admissibility of evidence - Evidence Act credibility rule - evidence of a prior consistent statement - circumstances leading to statement - directions on complaint and delay

PROCEDURE - Leave to appeal - Grant subject to conditions - TORTS - Malicious prosecution - Whether arguable that reasonable cause of action disclosed.

Family Law. Application under Property (Relationships) Act 1984 for adjustment of parties' property. No matter of principle.

MENTAL HEALTH - declaration of finding of mental illness or incapacity - transfer by elderly lady of half interest in real estate to an aquaintance, and raising money on mortgage of real estate for the benefit of that acquaintance - capacity to enter - no question of principle

MORTGAGES: -Mortgagor and Mortgagee - Right and Liabilities of Mortgagor and Mortgagee - Construction of Deed of Release

Contract - rescission - clause 28 of standard form contract for the sale of land - sale "off the plan" - plan not registered in specified period - whether vendor had done "everything reasonable" to have plan registered in time - whether plaintiff had to show an omitted step would have contributed to registration in time - whether it was a defence that a suggested step could not possibly have achieved registration in time - whether vendor acted unreasonably and unconscionably in rescinding

CORPORATIONS - winding up - application for appointment of provisional liquidator - whether jeopardy shown - no matter of principle

SENTENCING - importation of child pornography - approach to prior good character on sentence - relevance of possibility of summary disposal to sentence - sentence not manifestly excessive.

appeal against conviction - malicious wounding in company - whether evidence concerning film footage admissible - evidence on voir dire subsequently admitted - witness saw appellant from front view after incident ended but was unable to identify him from front view footage - witness did not see appellant from rear view but purported to identify him from that footage - whether evidence relevant - evidence of fact - evidence of opinion - witness identified clothing worn by appellant minutes before attack - witness identification by process of deduction and reference to his clothing - interpretation of video evidence - ad hoc expert

TORTS - Negligence - Appeal - Reasons in short form.

Limitations - extension of time - whether plaintiff aware of the extent of personal injury suffered - eventual diagnosis of psychiatric condition and prognosis if no treatment - did not establish extent of injury of which plaintiff was unaware - if it did, whether just and reasonable to extend time - awareness extensive, and aware that could sue to obtain compensation - not just and reasonable. D

Negligence - injury when using a circuit class machine - misused in reasonable belief it was a different kind of machine - whether sign on machine sufficient care against risk of injury - in circumstances of use in haste in a circuit class, not sufficient - whether general enquiry whether members of class had done circuit classes before sufficient care aginst risk of injury - not sufficient - whether error in assessment of non-economic loss and "buffer" for economic loss - no error.

BANKING – The appellant (and borrower) is a company concerned with the construction and operation of a neighbourhood shopping centre. Whether borrower was overcharged interest by its bank for a particular period when loan outstanding (limbo period) with damages claimed in consequence – whether interest charged for limbo period exceeded what bank was entitled to charge – whether there was a continuing agreement as to the relevant interest rate to be charged on the Bank’s loan – whether agreement extended to the limbo period – whether the source of that agreement remained the original mortgage documents or a subsequent security over property subsequently acquired.

LEAVE TO APPEAL – No question of law – Delay – Unjust to grant extension in the circumstances – Challenge to order under s198G Legal Profession Act – summons dismissed. (ND)

Security for costs - Delay in application

CORPORATIONS – external administration – liquidators – application for directions – whether liquidator justified in relinquishing misconceived claim to bank accounts when it suspects that contents of accounts may be proceeds of crime - PROCEEDS OF CRIME - whether liquidator entitled to refuse to release funds to beneficial owner by reason of concern that they might be proceeds of crime.

BUILDING, ENGINEERING AND RELATED CONTRACTS - adjudication under s22 of the Building and Constructions Industry Security of Payment Act 1999 - challenge to adjudicator's decision on grounds of denial of natural justice - whether inference should be drawn of failure to consider relevant material

PROCEDURE [80] - Supreme Court procedure - Jurisdiction and generally - Other matters - Power to order mediation - Whether power should be exercised over opposition of parties - Whether second mediation should be ordered when earlier mediation has failed - Relevant considerations.

CONSTITUTIONAL LAW - whether s.80 of the Constitution precludes summary determination of charge under Bankruptcy Act by State Magistrate sitting alone - whether Statute of Monopolies (21 James 1 c.3) has that effect - whether trial of offences under Bankruptcy Act cognisable only by Federal Court - whether Federal Court constituted in a manner inconsistent with Kable v The Queen - whether jurisdiction of Local Court to determine summarily charge under Bankruptcy Act is denied by International Covenant on Civil and Political Rights or by Almighty God via the Queen's Coronation Oath - whether Supreme Court may question or review order of Federal Court - observations on "pseudo technical legal rubbish"

PRACTICE – District Court – pleading – summary judgment – no question of principle - ND

Sentence only - contempt of court - appearances as barrister whilst not the holder of a current practising certificate.

Notice to dismiss - undischarged bankrupt - no right to commence/continue proceedings - vexatious litigant - whether cause of action to warrant substitution of trustee - immunity of counsel

Building and Construction. Determination under the Building & Construction Industry Security of Payment Act 1999. Failure of Adjudicator to consider submissions of plaintiff. Adjudication determining part of the matter on a basis not presented by the parties for determination. Adjudicator's failure to engage in a bona fide exercise of power and to accord the parties natural justice. Determination declared void.

PROCEDURE - whether claims in summons should be tried separately from cross-claim - each involving same contract but separate allegations of modification by conduct at times two years apart - some commonality of witnesses whose credit might be attacked - further party added by cross-claim - cross-claim suitable for referal to referee - whether analogy with separate trial of liability and damages - PROCEDURE - application for stay where dispute resolution clause not observed - whether clause applicable - whether exception for "injunctive relief" activated - whether, in the circumstances, court would exercise discretion in support of the clause

PROCEDURE - appeal from decision of Associate Judge reviewing decision of Prothonotary re security for costs - correct approach to such appeal discussed - no error shown such as to activate principles in House v The King

PROCEDURE - Costs - Appeal - Interlocutory matter - Whether order should be made that costs be assessable and payable forthwith.