Cases and authorities

Criminal law - sentencing - HIH Insurance Limited - whether departure from standards of competence and diligence expected of Chief Executive officer - proper disclosure - withholding from prospectus of information - misleading statement - recklessness - overstating of operating profit in Annual Report - proper operation of securities market - investor faith - level of criminality - issues of general deterrence.

WILLS - lost will - requirements for recognition of will - effect of s 18A - standard of proof - where evidence of terms of new will is incomplete

Criminal Practice & Procedure - Judge sitting alone - charge of manslaughter - warnings concerning unreliability - delay in prosecution - criminal negligence - duty of care - whether duty to supervise children - or other adults who interact with children.

Costs - Proceeds of Crime - Defendant successful in having property excluded from forfeiture in discretion - consideration of matters to be taken into account on costs and on indemnity costs.

EQUITY [102] - Trusts and trustees - Constitution and classification of trusts generally - Classification of trusts in general - Implied trusts - Constructive trusts - Independent of intention - General principles - Breach of fiduciary obligations - Daughter made signatory on aged father's building society account and given power of attorney - Authority given by father for her to use funds for own benefit - No question of principle.

Correct application of s21A Crimes (Sentencing Procedure) Act 1999, effect of finding of special circumstances on structure of sentences where more than one sentence is involved.

CRIMINAL LAW AND PROCEDURE - DISCHARGE FIREARM IN PUBLIC PLACE - SHOTS FIRED IN AIR TO DISSUADE ARMED INTRUDER - SENTENCE - OFFENDER SUBJECT TO CUSTODY FOR UNRELATED OFFENCES - ERRONEOUS SUBMISSION BY CROWN THAT SUSPENDED SENTENCE BE ORDERED - SHORT BOND TO BE OF GOOD BEHAVIOUR IMPOSED - MANIFEST INADEQUACY - SUBSTANTIAL UNEXPLAINED DELAY IN PREFERRING CHARGE - OFFENDER'S PAROLE ELIGIBILITY DATE IMMINENT - IN COMBINATION VERY UNUSUAL CIRCUMSTANCES - LIMITED REALISTIC SENTENCING OPTION - DISCRETION EXERCISED TO DISMISS APPEAL

Appeal against sentence - was start point too high in multiple sentences partially concurrent and partially cumulative - did sentencing judge make error of fact.

ADMINISTRATIVE LAW - Judicial Review - Where Appeal Panel made factual error in determining whether to grant leave to appeal - Where Panel also considered merits of appeal - Whether any purpose to be served by remitting matter to Panel - WORDS & PHRASES: "authorised", "as an employee"

CRIMINAL LAW AND PROCEDURE - SENTENCE - DISCOUNTS FOR EARLY PLEA AND ASSISTANCE TO AUTHORITY - HIGHER DISCOUNTS FOR ASSISTANCE NOT RESERVED FOR ONLY OFFENDERS WHO GIVE EVIDENCE - SUFFICIENCY OF DISCOUNTS

Building & construction industry - Building and Constructions Industry Security of Payment Act - adjudication application - where plaintiff sought to restrain appointment of adjudicator - where plaintiff sought to restrain defendant from proceeding with adjudication application - whether adjudicator able to determine whether payment claims in adjudication application can be awarded - discretionary considerations.

Family Law. Application for adjustment of the parties' property interests under s20 of the Property (Relationships) Act 198A. No matter of principle.

Building and construction - Building and Construction Industry Security of Payment Act 1999 - Where injunction sought to restrain enforcement of adjudication determination - Adjudication application - Whether failure to comply with basic and essential requirement of the Act - Whether denial of natural justice - Whether notice of acceptance of application served on plaintiffs - Where service is taken to be effective upon receipt - Whether notice of application received by plaintiffs - Where unchallenged evidence of system and non receipt - No question of principle.

GIFTS - Gifts Inter Vivos - Whether gift of yacht made - Whether constructive delivery took place - Whether delivery antecedent to words of gift sufficient - Whether requirement of assumption of liability to financier a condition subsequent - Whether transfer of registration under Marine Safety Act 1998 necessary to perfect gift - Whether yacht sufficiently unique to ground an order for its return

Criminal Law - Sentencing - white collar crime - principles - disseminating false information likely to induce purchase of securities - obtaining money etc by false or misleading statements - acting dishonestly as a director

CRIMINAL LAW - Evidence - admissions made by accused to police - whether admissible - not tape recorded or referred to in subsequent video recorded interview - accused not a suspect at the time - whether he could reasonably have been suspected - lies - not relied on as showing consciousness of guilt - whether Zoneff direction necessary or desirable - Rule 4 - proviso - whether miscarriage of justice - CRIMINAL LAW - Sentencing - 2 murders and 3 other offences involving attempt to murder - life sentences for murder - whether excessive - whether other offences relevant in considering sentences for murders

CRIMINAL LAW - Appeal to District Court against summary convictions - submission of questions of law under s5B Criminal Appeal Act - two charges of committing an act of indecency "towards" young girls - whether act of indecency must be committed in the immediate physical presence of the complainants

Lies told by accused - lies affecting credibility - Crown Prosecutor's address invited jury conclusion that lies evidenced consciousness of guilt - necessity for jury to be instructed in the circumstances that it should not use a lie as evidence of guilt.

Compulsory acquisition - valuation of land - whether amount of compensation determined in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 - whether all relevant evidence taken into account - whether fees paid to town planner and surveyor were loss attributable to disturbance or were incurred relating to the actual use of the land - Procedure - submission made after trial but before judgment - whether trial Judge wrongly took submission into account

Negligence - post traumatic stress disorder - whether trial Judge failed to use or palpably misused his advantage - whether findings were inconsistent with facts incontrovertibly established by the evidence or which were glaringly improbable - Evidence - expert opinion evidence - whether histories assumed by experts must be sufficiently like those established to render the opinion of the expert of any value - Damages - whether general damages manifestly excessive - damages for loss of chance - duplication of damages - Procedure - discharge of jury - whether apprehended bias - whether procedural unfairness suffered - Costs - interest on costs - interest on costs to accrue from 21 days of the filing or lodgement for assessment by the plaintiff of the bill of costs - whether award permitted by section 95(3) of the Supreme Court Act 1970.

EVIDENCE [75] - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - General principles - Evidence Act 1995 (NSW) - Privilege at common law - Waiver of privilege.

Damages for personal injury - assessment of - PTSD - plaintiff in employment or running own business for many years - assessment of loss of earning capacity

[STATUTORY CONSTRUCTION] - [CONSTRUCTION CONTRACT] - Application for permanent injunction to restrain the obtaining of a certificate under the Building and Construction Industry Security for Payment Act 1999 (NSW) - Whether the claims under the contract as a result of the awarding of extensions of time were "variation" claims under the contract - Whether claims for delay damages consequent upon extensions of time are able to be claimed in a payment claim under the Act and awarded in a determination under the Act.

COMMITTAL PROCEEDINGS - order of committal for trial - bill of indictment found - application for leave to appeal and claim for prerogative relief - irregularity in committal proceedings - whether Supreme Court should intervene - relief refused.

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - claims for adjustment of interests under Property (Relationships) Act 1984 - no novel question of principle concerning adjustment of property interests - plaintiff and defendant both receiving pensions at single rate throughout 23-year relationship - whether appropriate to have reasons for judgment sent to Centrelink

CORPORATIONS - winding up - winding up under Companies (New South Wales) Code - surplus after payment in full of debts proved in accordance with bankruptcy rules - whether claims admissible apart from bankruptcy rules should be entertained - whether claims for post-liquidation interest should be entertained - priority between these two classes of claims - identifying point at which surplus established - efficacy of subordination provisons affecting convertible unsecured notes - where payment covenants between borrowing company and trustee - content of covenants affected by terms of issue of notes - equitable debts of noteholders

De facto relationships - adjustment of property under s 20 Property (Relationships) Act 1984 - whether orders should be made to adjust property interests of the parties - matters to which the court is to have regard in making adjustments - assessment of financial and non-financial contributions to the acquisition, conservation and improvement of the property - consideration of homemaking and parenting contributions - whether loan entered into between the parties was repaid

CRIMINAL LAW - appeal against severity of sentence - plea of guilty - one count supply prohibited drugs on an ongoing basis - whether sentencing judge erred in the discount given for plea of guilty - strength of prosecution case - utilitarian value of plea - whether sentence manifestly excessive.

WORKERS COMPENSATION - Limitation period - Whether s 15 of Workers Compensation Act applied to deem date of employee's injury for purpose of limitation provision - Scope of words "for the purposes of this Act" in s 15(1)(a) - Whether s 15 relevant to common law rights or only relevant for purposes of determining liability for statutory compensation - Workers Compensation Act 1987 ss 15, 16, 17, 151D(2)

NEGLIGENCE - prescription of drugs by medical practitioner - development of rare condition (avascular necrosis) - duty of care - causation. COSTS - pre-trial offer of compromise - Calderbank letter - whether trial judge erred in ordering indemnity costs - reasonableness of rejecting the offer of compromise. ND

Motor Accidents Act - full and satisfactory explanation for delay

Criminal Law - Sentencing - Manslaughter - Juvenile Offenders - Unlawful and dangerous act

PRACTICE AND PROCEDURE - Application for extension of caveat and interlocutory injunction restraining sale of land - Whether the right to develop land, have land sold and receive a portion of the proceeds gives rise to a caveatable interest - Whether contract was still on foot despite clause providing for automatic termination - Balance of convenience - Real Property Act 1900 (NSW) s 74F(1) - Held that plaintiff does not have a caveatable interest in the land - Not seriously arguable that contract still on foot.

EVIDENCE [121] - Documentary evidence - Statutory provisions relating to business records - In general - Representations made in course of or for purposes of business - What constitute.

COURT DOCUMENTS - Access for non-parties - Whether a common law right - Whether documents before the court - Principle of open justice - Whether onus upon applicant - Relevance of the fact that document may contain untested and hearsay allegations - Relevance of private rights - COURTS AND TRIBUNALS - Local Court - Whether Local Court has power to grant access to court documents in matters arising under Part 15A of the Crimes Act 1900 - Whether power to grant access to court documents to non-parties in such matters is necessary - APPREHENDED VIOLENCE - Part 15A Crimes Act 1900 - Consent Orders under s562BA - Whether content of complaint irrelevant to judicial function - Whether court has discretion to refuse to make consent order - APPREHENDED VIOLENCE - Part 15A Crimes Act 1900 - Orders pursuant to s562NA to close court - Whether court should consider less extreme measures - COMMONWEALTH CONSTITUTION - Implied freedom of political communication - Whether freedom requires access to court documents - COMMONWEALTH CONSTITUTION - Institutional integrity of courts exercising Federal jurisdiction - Whether refusal of access to court documents incompatible

INDUSTRIAL LAW - Construction safety legislation - Liability of head contractor - Head contractor on construction site delegated to sub-contractor part of construction work - Sub-contractor fell from ladder put into place by head contractor - Whether head contractor owed sub-contractor statutory duty of providing safe means of access to place where sub-contractor required to work - Whether head contractor engaged in "building work", and therefore "construction work", for purposes of statutory duty or whether head contractor had fully delegated this work to sub-contractor - Construction Safety Regulations 1950 Reg 73 - DAMAGES - Whether assessment of general damages manifestly inadequate - Future economic loss - Assessment of loss of earning capacity - COSTS - Whether costs should be awarded on indemnity basis.

Practice and procedure - conduct of witnesses - conduct of solicitors - coaching of witnesses

CRIMINAL LAW - Appeal - Appeal to District Court against sentence imposed by Local Court - Time limits - Notices of appeal lodged out of time - Subsequent application for leave to appeal out of time - Errors in application - Whether correctable by amendment - Court informed appeal withdrawn - Mistake as to instructions - Whether consequent order dismissing appeal appropriate - Whether denial of procedural fairness.

CONTRACT - RECTIFICATION - Common intention - Mutual mistake - Whether clear and convincing evidence of intent displaced presumption that the parties intended to be bound by the terms of their written agreement - Relevance of agreement containing obvious mistakes - Whether intention as to effect document was to achieve clearly predominated over intention to be bound by the terms in the instrument - Whether common intention sufficiently precise to permit rectification - Proposed term must give effect to the parties' intention and not go beyond it - Alternative formulations of proposed term did not indicate that common intention lacked necessary precision - Parties agreed on literal construction - Rectification available for more abundant caution. - RES JUDICATA - Previous proceedings for specific performance - Prior consent orders - Anshun estoppel - Issue estoppel - Whether there has been a merger of the cause of action in the decree for specific performance - whether the issues raised in these proceedings should have been raised before the order for specific performance was made - Whether plaintiffs had elected between inconsistent remedies - Whether the degree of conformity between the instrument and the true agreement was an issue raised in the previous proceedings - Whether previous order was a final order which completely disposed of the proceedings - Scope of liberty to apply - Held previous order final - Order for rectification can be made in new proceedings after a decree for specific performance. - RES JUDICATA - Issue estoppel - Defendants estopped from denying that the conditions precedent to a consent order for specific performance had been met. - IMPLIED TERM - Release or indemnity of mortgagor - Whether term is necessary for the reasonable or effective operation of the contract - Whether term is so obvious as to go without saying. - EVIDENCE - Failure of the defendant to give evidence in civil proceedings - Jones v Dunkel applied.

Review - no question of principle.

ASSOCIATIONS AND CLUBS - incorporated association - winding up - whether evidence warrants finding of inability to pay debts and suspension of business for one year

PROCEDURE - costs - where defendant files submitting appearance after claims in summons amended - whether defendant's costs before amendment should be assessed on indemnity basis

NEGLIGENCE - OCCUPIER - CLAIM BY TRESPASSER - MINING LEASE KNOWN BY OCCUPIER TO BE FREQUENTLY USED BY RESIDENTS AS SHORT CUT - PARTICULAR DANGER STEMMING FROM ARRANGEMENT TO STORE RAILWAY CARS WHICH NARROWED SPACE FOR TRANSIT ACROSS OPEN SIDED BRIDGE - CONSIDERABLE POTENTIAL FALL - DANGER EASILY AND ECONOMICALLY REMOVABLE - OBVIOUSNESS - CONTRIBUTORY NEGLIGENCE

CRIMINAL LAW - Appeal against conviction - Crown appeal against leniency of sentence - insider trading - possession of information - purchase of Qantas shares - deal for merging of Impulse Airlines' business with Qantas Airlines Limited - establishment of criminal standard - general deterrence - degree of culpability.