Cases and authorities

SENTENCING - assault occasioning actual bodily harm under s.59(1) Crimes Act 1900 - applicant pleaded guilty to s.59(1) offence following acquittal on more serious related offence in District Court - community service order of 300 hours imposed - whether allowance made for fact that summary disposal in Local Court was both open and appropriate - use of sentencing statistics for s.59(1) offences in Local Court.

Sentencing - appeal against sentence - sentencing in cultivation cases - severity of sentence - whether sentence was unduly harsh - apparently excessive sentence - personal or subjective factors.

Contract - Statutory Construction. - Whether three invoices served in the same facsimile can constitute one payment claim under the Building and Construction Industry Security for Payment Act 1999. - Held that this did constitute one payment.

CORPORATIONS - winding up - proposal for pooling of assets and liabilities of several companies - no interference with pari passu basis of creditors' participation - whether one dissentient creditor means s.510 resolution of creditors ineffective - requirements for such resolution discussed

Franchise agreement - misrepresentation and breaches of contractual obligations - non-compliance with clause 11(1) of the Code - leave and extension of time.

CORPORATIONS - winding up - application by creditor for winding up in insolvency - subsequent deed of company arrangement purports to extinguish plaintiff's debt - pending application by plaintiff for order setting deed aside - whether s.444E(2)(b) precludes application by plaintiff for adjournment of winding up application - whether extinguishment of plaintiff's debt means that winding up application must now be dismissed

Aplication for indemnity costs - Offer of compromise - Calderbank letter

PROCEDURE - action for recovery of contributions paid to trustee of superannuation fund - persons in respect of whom contributions made not joined as parties - trustee adopting neutral stance - whether proceedings properly constituted

Defamation Act 1974 - ss 15, 16, 48 - contextual imputations - whether evidence of truth of contextual imputation relevant to damages - whether particulars of truth of contextual imputation in support of plea of mitigation of damages should be struck out - whether particulars in support of plea of mitigation of damages under s 48 should be struck out - whether plea under s 48 raises issues to be left to trial - whether plaintiff's objections to interrogatories should be upheld

Criminal law - corporate crime - HIH insurance group - director's duties - guilty plea - financial advantage - false and misleading statements - recklessness - objective criminality - public confidence in securities and equities market - general deterrence.

Solicitors discontinue part heard proceedings in 1992 without instructions to do so - breach of retainer and duty of care - notional 1992 trial held in 2005 - prospects of success and/or of compromise - prospects of obtaining costs orders.

EQUITY - whether existence of fiduciary relationship - whether fiduciary relationship continued after incorporation of business - whether duty to account - whether entitlement to equitable relief established

Review - additional discovery following agreed discovery - fishing expedition and oppression - excluded and other documents created after accrual of cause of action - discretionary powers conferred by rules 3 & 4 - special reasons.

EQUITY - appropriation - whether an appropriation of payment took place - whether appropriation communicated - whether open to creditor to change position - rule in Clayton's case

appeal against decision of a Master - leave to continue the appeal - vexatious litigant - prima facie ground for proceedings - abuse of process

CONTRACT - Rectification of a lease - Common intention - Mutual mistake - No express covenant by the lessor to effect repairs - Lessee not required by contract to undertake structural works - No implied term that landlord be responsible for repairs - Held that parties intended and agreed that the lessor would be responsible for structural repairs - Construction of rent escalation clause by CPI increases where parties failed to agree on a new rent - Held that "failing agreement" included situation where no offer was made by either party.

Criminal Law - Sentencing - no matter of principle - Fresh evidence - psychiatric report prepared after sentence - rejected.

Criminal law - appeal against sentence - taking into account period of pre-sentence custody - s.47 Crimes (Sentencing Procedure) Act 1999 - involvement in planning of the offence - s.21A Crimes (Sentencing Procedure) Act 1999 - principle in De Simoni - principle of totality

CRIMINAL LAW AND PROCEDURE - POLICE OFFICER SOLICITING BRIBE - SIMILAR OFFENCE ON FORM 1 - PLEA OF GUILTY - SENTENCE - NO ERROR BY JUDGE IN DECLINING TO ORDER SUSPENSION OF SENTENCE - NO SENTENCING ERROR OTHERWISE

Criminal Law - Sentencing - s 21A(2) aggravating factors - harm suffered by victims of armed robbery offences.

CRIMINAL LAW - Appeal against interlocutory judgment - Decision to refuse permanent stay - Defendant asserted that offence could not have been performed maliciously - Where open to jury to conclude that it was - Although this was not the basis upon which the trial judge refused the stay application it was relevant to leave.

Employee of subcontractor injured in course of performing specialised services in premises of third party - sues both employer and occupier - trial judge finds both responsible - duty of occupier to such entrant injured when impeded by readily visible obstruction - occupier not liable - lifting injury caused only by employee undertaking a procedure which, unknown to him through negligence of employer, involved a risk of injury to himself - whether "Bullock" order appropriate in favour of plaintiff.

PROCEDURE - Costs - Circumstances in which a liquidator may be ordered to pay personally costs which have been ordered against the company in liquidation - - Liquidator caused company to bring proceedings to recover corporate assets - Proceedings unsuccessful due to estoppel and Ex parte James defences - Personal costs order sought against liquidator - Whether liquidator's conduct of litigation was "improper" - Whether liquidator acted reasonably in opposing estoppel and Ex parte James defences - Whether "exceptional circumstances" established justifying personal costs order against liquidator - PROCEDURE - Costs - Indemnity costs - Whether conduct of litigation such as to warrant award of indemnity costs against liquidator

Practice and Procedure - separate determination of issues - no question of principle.

CONTRACT - Medical services arrangement and sublease - interpretation of contractual arrangements as to whether medical practitioner had right to use shared facilities by way of procedures room or whether dependent on favourable exercise of discretion by sublessor Medical Centre proprietor - no capacity of sublessor to attach conditions outside those expressly referred to in the clause such as extent of insurance or possible obligation to register under relevant legislation - principles of contractual interpretation as regards background knowledge reasonably available to the parties - capacity to terminate on the ground of breach constituting repudiation - PROCEDURE - scope of appellate review where credibility findings based on incorrect interpretation of medical practitioner's rights.

PROCEDURE - Costs - Plaintiff obtained order that first and second defendants pay plaintiff's costs - Further costs orders made "as between the respective defendants" including orders reflecting apportionment of liability - Appeal by second defendant against apportionment allowed and new orders made reflecting reapportionment - Application by plaintiff to vary new orders to ensure defendants remained joint and severally liable for plaintiff's costs - Whether original orders in fact made defendants so liable - Whether, as a matter of discretion, Court should decline to vary orders - Supreme Court Rules 1970 Part 40 rule 9(3)

Family Provision. Claim by a daughter left out of will. Proceedings dismissed. No matter of principle.

Meaning of statutory offences - "hinders" and "obstructs" - non-compliance or failure to act which impedes or hampers - misdirection.

Murder

Practice and Procedure - Rigorous approach to submissions to be made on motions to adopt/reject Part 72 Referee's Report - Overriding Purpose Rule

Offence if a person by an act or omission does anything that causes damage to the habitat of a threatened species - charges that by slashing and clearing vegetation and/or crushing vegetation and/or constructing access tracks caused damage - prosecution proposed to rely on each in the alternative - whether act causing damage an ingredient of offence - whether charges bad for duplicity - held yes and yes.

Aggravated indecent assault committed after 1 February 2003 - case falling "just below" the mid-range of objective seriousness - plea of guilty - relevance of standard non-parole period fixed by Division 1A of Part 4 of Crimes (Sentencing Procedure) Act 1999 - sentence falling within upper end of the range of sentences for this offence in Judicial Commission statistics for offences committed before 1 February 2003 - intention of Legislature to increase sentences for all offences of aggravated indecent assault.

FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Adoption - Application for dispense orders with respect to Korean guardian of orphan child - Whether necessary - Immigration (Guardianship of Children) Act 1946 (Cth) provides that Minister becomes guardian of every non-citizen child entering Australia to the exclusion of any former guardian

LIMITATION OF ACTIONS - extension of time - whether plaintiff knew personal injury suffered - whether plaintiff unaware of nature and extent of personal injury - whether plaintiff unaware of connection between personal injury and act or omission of defendant - whether just and reasonable to grant an extension of time - whether granting an extension of time would cause significant prejudice to defendant - whether fair trial possible - meaning of "fair trial" - COSTS - where plaintiff conceded that SCR Pt 52A r 17 applicable to limitation question dealt with separately and plaintiff succeeded - whether litigation unduly extended - whether s 60G Limitation Act provides another regime for costs order

FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Parens patriae juridiction - Order sought by hospital to administer blood transfusion to a Jehovah's Witness child - Child over 16 years - Whether order should be made in opposiiton to parents and child

Practice and procedure - Parallel proceedings - Stay of proceedings - Cross-vesting application - Principles concerning mode of dealing with cross applications (1) for stay of proceedings and (2) seeking cross-vesting orders - Proceedings commenced by plaintiff in Supreme Court of New South Wales one-day prior to commencement by defendant of proceedings in Supreme Court of Victoria - Claim that New South Wales proceedings amounted to an abuse of process or close to such as brought in circumstances which were unconscionable in order to pre-empt threatened Victorian proceedings - Allegation that plaintiff/plaintiff's solicitors had by correspondence exchange stolen a march on defendant/defendant's solicitors - Equity - Declarations - Negative declarations - Utility

TORT - Negligence - Motor accident - Meaning of injury - Whether injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle - Whether the injury a result of the driving of the vehicle - Whether the injury caused during the driving of the vehicle - Meaning of driving.

Costs - Indemnity costs

Family Provision. Application by daughter suffering from Downes' Syndrome. Order made for a legacy. No matter of principle.

CONTRACTS - formation - whether oral contract formed - ESTOPPEL - whether oral representation made - turns on own facts - no question of principle

ANIMALS - offence of being owner of dog that attacks a person or animal under s.16(1) Companion Animals Act 1998 - elements of offence under s.16(1) - construction of s.16(2) containing exculpatory matters - whether Local Court erred in construction and application of s.16(2) - error established.

CORPORATIONS - Transactions affecting share capital - Selective share buy-back agreements in consideration for other shares and cash negotiated by others in settlement disputes - Agreements conditional upon special or unanimous approval of shareholders - Plaintiff's agreement contained provision that directors agreed to recommend shareholder approval - Market value of other shares rose - Notice of general meeting contained statement that majority of directors recommended approval if other share price at specified amount - One director recommended against - Plaintiff purported to terminate - Whether termination valid - ASX listing rule 10.1 required approval of general meeting to disposal of a substantial asset under another selective share buy-back - Whether plaintiff an associate as acting in concert with party that negotiated settlement - Whether plaintiff excluded from voting under listing rule 14.11

CRIMINAL LAW AND PROCEDURE - OBTAINING MONEY BY DECEPTION - CONTINUED FALSE CLAIMS OF EXPECTATION OF ARRIVAL OF OVERSEAS FUNDS - SENTENCE - NO PARTICULAR POINT OF PRINCIPLE

CRIMINAL LAW - Sentencing - Appeal against severity of sentence - Inconsistency between sentencing judge's expressed intention in relation to time in custody and sentences actually imposed - Assessment of discount for plea of guilty - Timing and utilitarian value of plea - Relationship between non-parole period and balance of term of sentence - Where balance of term less than one-third of non-parole period - Whether sentencing judge erred in increasing statutory proportion - Whether accumulation of sentences constituted "special circumstances" under s 44(2) of Crimes (Sentencing Procedure) Act 1999 - Whether less severe sentence warranted in law given necessity of reflecting totality of criminality - Criminal Appeal Act 1912 s 6(3)

CRIMINAL LAW AND PROCEDURE - EXTENSION OF TIME - SIX YEARS AFTER CONVICTION - STATUTORY DEFINITION OF SEXUAL INTERCOURSE - ATTEMPT TO BRING SECOND APPEAL

TORT - Negligence - Public authority - Pit created by Telstra - Plaintiff falls into pit after cover removed - No evidence from Telstra as to placing or nature of cover - Whether inferences open that cover easily removable, and that warning signs should have been provided.

COSTS - Second respondent's interests not affected by orders sought in Notice of Appeal - Second respondent only appeared at hearing of appeal to meet submission made, but later withdrawn, by third respondent - Appeal dismissed - Which party to pay second respondent's appeal costs - LEGISLATION

WORKERS COMPENSATION - Reimbursement of WorkCover Authority under s 144(3) of Workers Compensation Act 1987 - Employee applied to Compensation Court to have claim determined - Employer and Authority named as respondents - Matter settled as between employee and Authority - Authority sought reimbursement from employer - Whether Court had power to make an order for reimbursement without employer's liability to employee having been determined or agreed - Whether sufficient for the making of an order for reimbursement that settlement between employee and Authority was reasonable

Costs- Indemnity costs- Late notification preventing submitting appearance being filed- Whether ground for indemnity costs- Interest on costs in equity appeal- Ordinarily interest runs from date of assessment of costs- Whether probabilities that assessment will be delayed is reason for ordering interest to run earlier- Held it was.