Cases and authorities

Criminal law - application for leave to appeal against sentences - detention of complainant for advantage - aggravated sexual intercourse without consent (in company) - whether errors in findings and approach by sentencing judge - whether sentences manifestly excessive.

Aggravated sexual assault - detention of complainant - offences committed in company when a juvenile - parity.

Application by appellant for attendance of persons for examination at hearing of his appeal against conviction - one such person was a juror at the appellant's trial and the other was the Director of Public Prosecutions

Criminal law - application for leave to appeal against sentences - detention of complainants for advantage - assault - aggravated sexual intercourse without consent (in company) - accessorial offences and offence as principal in the first degree - whether errors in findings and approach by sentencing judge - youth - whether sentences manifestly excessive.

Criminal law - application for leave to appeal against sentences - detention of complainants for advantage - aggravated sexual intercourse without consent (in company) - accessorial offences and offences as principal in the first degree - aggravated indecent assault in company - aggravated act of indecency in company - whether offences of aggravated sexual intercourse constituted worst class of case - whether errors in findings and approach by sentencing judge - parity - whether sentences manifestly excessive.

Criminal law - application for leave to appeal against sentences - act of indecency - assault - aggravated indecent assault - detention of complainants for advantage - aggravated sexual intercourse without consent (in company) - accessorial offences and offence as principal in the first degree - sexual intercourse without consent - whether errors in findings and approach by sentencing judge - whether sentences unduly harsh and severe.

Criminal law - application for leave to appeal against sentences - aggravated sexual intercourse without consent (in company) - detention of complainant for advantage - whether errors in findings by sentencing judge - whether sentences manifestly excessive.

INSURANCE - Application to join insurer as additional defendant pursuant to s6 Law Reform (Miscellaneous Provisions) Act 1946 and s51 Insurance Contracts Act 1984 (Cth) - arguable case for indemnity under policy - meaning "entered into contract of insurance" in s6 Law Reform (Miscellaneous Provisions) Act - meaning "the insured" in s51 Insurance Contracts Act - arguably includes beneficiaries of contract of insurance.

Aggravated sexual assault - detention of complainant - offences committed in company when a juvenile - planning - offences committed as principal in the first degree distinguished from offences committed as aider and abetter - totality.

CONTRACT - agreement - terms and conditions - construction of licence agreement between tenants in common under lease - whether licence intended to be irrevocable for duration of lease period

Damages - medical negligence - father's costs of raising a child

Succession - Executors and Administrators. - Application for accounts on the basis of wilful default. One wilful default established. No likelihood of other defaults. Limited order for an account on the basis of wilful default.

Application to set aside orders - discretionary power exercisable upon satisfaction of threshold requirements - against good faith - sufficient cause - discretionary considerations.

Plea in bar application - whether available - further question as to whether proceedings an abuse of process.

PROCEDURE - subpoenas - power of court to issue a subpoena in aid of enforcement of a judgment - PROCEDURE - costs - costs of motion which settles

Appeal - Proceedings in Small Claims Division of Local Court - documents on subpoena filed at hearing - documents alleged dishonesty and misconduct by appellants - refusal to allow witnesses to be called in answer to documents - denial of procedural fairness.

CRIMINAL LAW AND PROCEDURE - INTERLOCUTORY ORDER REFUSING SEPARATE TRIALS - PARTICULAR PREJUDICE TO ONE OF THREE ACCUSED - NOT REASONABLY CAPABLE OF AVOIDANCE BY JUDICIAL DIRECTION - NECESSARY ORDER TO AVOID UNFAIR TRIAL

EVIDENCE - private hearing of New South Wales Crime Commission - failure to answer question - reasonable excuse under s18(2) New South Wales Crime Commission Act 1985 - claim that disclosure would reveal the identity of an informer - law of public interest immunity - fear of reprisal - costs. (ND)

CONTRACT - pre-registration contract - s131 of the Corporations Act (2001) (Cth) - whether contract ratified - whether parties agreed to extend time period for registration set out in contract - EVIDENCE - further evidence - whether evidence available at trial but not read or tendered should be admitted on appeal under s75A (8) of the Supreme Court Act 1970

ADMINISTRATIVE LAW - consent under 90 of the National Parks and Wildlife Act 1974 - permit under s87 of that Act - validity of permit and consent to disturb and relocate Aboriginal objects - validity of permit and consent to destroy Aboriginal objects, the existence of which is not yet known - whether procedural fairness accorded to interested party in relation to survey and assessment of Aboriginal significance of proposed development site - whether there was a legitimate expectation that interested party would be included in survey - whether interested party given an adequate opportunity to assess the significance of any Aboriginal objects

ENVIRONMENT AND PLANNING - Decision of Commissioner of Land and Environment Court granting development consent - Earlier decision by different Commissioner refusing similar application in relation to neighbouring property - No reference to earlier decision - Whether Commissioner bound to follow earlier decision - APPEALS - Error of law - Duty to make findings - Judicial comity - Relevance of practice of judge at first instance following earlier decision of judge of co-ordinate jurisdiction - Duty to give reasons - Principal contested issues - Whether Commissioner's failure to refer to earlier decision constituted an error of law - ADMINISTRATIVE LAW - Relevance of principle of consistency in administrative decision-making

EQUITY - Fiduciary Obligations - Joint venture for redevelopment of property - Fiduciary duties arising out of joint venture - Scope of fiduciary duties - Development application refused on basis that property needed to be amalgamated with adjoining properties to maximise potential - Fiduciary subsequently acquired adjoining properties - Whether fiduciary duties breached - Fiduciary's obligations of disclosure - No conflict rule - No profit rule - Causal link between fiduciary relationship and profit - EQUITY - Constructive Trusts - Whether adjoining properties held on constructive trust - Recipient liability - First limb in Barnes v Addy - Actual or constructive knowledge on part of recipient of breach of fiduciary duty - Restitutionary approach to recipient liability based on unjust enrichment - Whether acquisition of indefeasible title prevented claim for relief - Whether fiduciary entitled to allowance for entrepreneurial skills

INJUNCTIONS - Interlocutory injunctions - reconsideration and variation - where appropriate - Mareva injunction - whether necessary to show intent to render defendant judgment proof - whether risk of dissipation bona fide but calculated to defeat claim sufficient.

PRACTICE AND PROCEDURE - Application to reformulate pleadings and add new respondents - Whether new pleadings are reasonably arguable, inconsistent with previous verified pleadings or cause irremediable prejudice due to the death of the primary respondent - Allegation of unconscionable retention of property arising out of breach of contract - Held that new claims are not manifestly hopeless - Leave to amend granted.

MEDIA - INJUNCTION - CONFIDENTIAL INFORMATION - Urgent application to restrain broadcast of allegedly confidential material - alleged breach of confidential information - alleged interference with contractual relations - plaintiff proved to have published previously most of alleged confidential information.

SOLICITOR'S LIEN - COSTS - Whether previous solicitor should be ordered to render bill of costs and surrender file on condition.

appeal against conviction - supply prohibited drug (MDMA/ecstasy) - plea of guilty - traffickable quantity - deemed to have the drug in possession for supply - appellant instructed counsel possession for personal use - counsel error advising "a deemed supply" - miscarriage of justice

Criminal law - appeal against sentence - aggravated break, enter and steal (x 2) - Form 1 matters - parity - prior criminal record as an aggravating factor

CRIMINAL LAW AND PROCEDURE - SENTENCE - DRUG ADMINISTRATION TO FACILITATE SEXUAL ASSAULT - OFFENDER A CHURCH YOUTH WORKER - MULTIPLE VICTIMS - PLANNED CRIMES - SEVERE SENTENCE WARRANTED - NO ERROR OR MISCARRIAGE OF DISCRETION BY FIRST INSTANCE JUDGE

FAMILY LAW - Family relationships - Whether parties lived together as a couple - Short form judgment dismissing appeal.

CONTRACT - CORPORATIONS - NEGLIGENCE - Liability of auditors - Construction of accounting standards - Earned value method - Duty of auditor in giving consent to inclusion of auditor's report in a prospectus - Extent of duty - Whether auditor's report constituted misleading conduct - Duty of auditor in audit of accounts - Relationship between compliance with accounting standards and a true and fair view of company's financial position - Causation of loss.

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. Claims by plaintiff taxpayer for remissions of General Interest charges under the Taxation Administration Act 1953. Claims ignored by Commissioner. Demand set aside under s 459J(1)(b) because of oppresive conduct of the Commissioner.

PRACTICE AND PROCEDURE - Appeal from decision of Master undertaking review of decision of Registrar - summary dismissal of claim for misfeasance in public office against District Court - doctrine of judicial immunity - claims against other defendants for malicious prosecution, false imprisonment, wrongful arrest, trespass to the person and trespass to goods - balance of statement of claim struck out - purposes of pleadings - embarrassing pleadings - leave to replead granted against remaining defendants

Criminal Practice & Procedure - sentence - murder - firing pen gun at a party - affected by alcohol and drugs - excessive self defence rejected by jury - standard non parole period - youth - protection.

Validity of adjudication - denial of natural justice - statutory non-compliance - setting aside of satisfied judgment - exhaustion of statutory process - utility of granting relief.

Sentence: Manslaughter - Finding by Jury of Provocation.

Practice and procedure - Equity - Orders for specific performance - Liberty to apply for the purpose of dealing with matters involved in or arising in the course of working out an order for specific performance - Indemnity costs - Plaintiff claims indemnity costs as equitable compensation for personal defendant's breaches of fiduciary duty - Principles - Requirement to show delinquency in the conduct of a party in order to visit that party with indemnity costs - Personal defendant against whom indemnity costs are sought called by corporate defendants - Inappropriate to visit indemnity costs upon personal defendant - No claim for indemnity costs pursued against corporate defendants who called the personal defendant - Application following delivery of reserved judgment to be joined as a new party in order to be heard in the proceedings, to reopen the hearing to adduce evidence in the proceedings and to present arguments as to the form of orders to be made - Uniform Civil Procedure Act 2005 - Overriding purpose rule - Need to ensure efficient disposal of the business of the court - Efficient use of available judicial resources - Timely disposal of proceedings - Application for joinder summarily dismissed

Criminal Practice & Procedure - charge under s1311(1) of the Corporations Act 2001 (Cth) - making a misleading statement to Stock Exchange - plea of guilty - agreed he ought to have known misleading - issue whether knew - aged 65 years - investing public knowingly misled.

DEFAMATION - Assessment - Damages - aggravated compensatory damages for falsity of imputations and subsequent publications

Practice and Procedure - reference of questions to expert - Part 72 of the Supreme Court Rules - transitional provisions of Civil Procedure Act - reference to continue under Part 72 - report adopted with variations and certain questions referred back.

Criminal law - import heroin - two-stage approach to sentencing - applicant's mental condition - mitigating factor - contended that the sentence was manifestly excessive - low level drug importer - factors in s.16A, Crimes Act

Appeal against sentence - break and enter offences - aggregate non-parole period greater than 75 percent of aggregate head sentences - s44(2) Crimes (Sentencing Procedure) Act 1999 - trial judge did not impose such a sentence inadvertently - no reason in law for a lesser sentence to be imposed. (ND)

CRIMINAL LAW AND PROCEDURE - SENTENCE - SPECIFICALLY TAKING INTO ACCOUNT FACTORS OF ADDITIONAL AGGRAVATION WHICH ARE INGREDIENTS OF OFFENCE - SURROUNDING CIRCUMSTANCE ELEVATING OFFENCE INTO MORE SERIOUS CATEGORY THAN THAT CHARGED - CROWN CONCESSIONS - RESENTENCE APPROPRIATE

Criminal Law - Sentencing - offences of robbery and armed robbery - young, mentally ill offender - whether sentences manifestly excessive in view of subjective considerations.

Criminal Law - Evidence - complainant's evidence in chief given by playing videotape - tape marked as exhibit - sent to jury on retirement - procedural irregularity - rule 4 applied - no miscarriage of justice - Verdict not unreasonable or against weight of the evidence.

EVIDENCE - client legal privilege - consent and waiver - lease of city convenience store - lessors sued for rent &c, lessee cross-claimed for misrepresentation, misleading or deceptive conduct in negotiations preceding grant of lease - correspondence and drafts sent to lessee's solicitor before grant of lease contained statements relevant to alleged misrepresentations - lessee objected and DCJ rejected questions in cross-examination relating to communications and advice from solicitor in relation to lease before execution - held that conduct of cross-claim was inconsistent with maintenance of confidentiality for legal advice - in interests of fairness, client legal privilege ought not to be maintained and waiver of privilege is to be imputed by operation of law - consideration of Evidence Act 1995 (NSW) s 118, s 122 - extensive review of authorities - Telstra Corporation v B T Australasia (1998) 85 FCR 152 (FC FC) followed - new trial ordered.

Criminal law - appeal against sentence - 19 counts of sexual intercourse with a person of or above the age of 14 and under the age of 16 - vulnerability of complainant as an aggravating factor - concurrent terms imposed for multiple offences