Cases and authorities

CRIMINAL LAW: s188 Crimes Act - receiving motor vehicle - objective seriousness - use of subjective features - concurrency and accumulation.

CRIMINAL LAW AND PROCEDURE - SENTENCE - MANSLAUGHTER - PRINCIPAL OFFENDER ( A JUVENILE) COMMITS MURDER BY SHOOTING WITH PISTOL - KNOWLEDGE OF PRESENCE OF WEAPON AND INTENTION TO THREATEN VICTIM - CONDUCT OF FIRST INSTANCE PROCEEDINGS - OBVIOUS DECISION NOT TO SUGGEST MITIGATION BY REASON OF PROVOCATION BY VICTIM - DECISION REPUDIATED ON APPEAL - WHETHER MISCARRIAGE - SERIOUS OFFENCES IN WHICH WHAT BECAME THE MURDER WEAPON USED TAKEN INTO ACCOUNT ON FORM 1 - SENTENCE NOT EXCESSIVE

Proceeds of crime - money laundering offences - definition of "proceeds" and "instrument" - whether character as one precludes also other character - revocation application - defendant on no grounds for restraining order - if property proceeds order must be made - in money laundering offences the money is both instrument and proceeds application to revoke - dismissed.

Ex parte proceedings - belated application to add a ground of appeal - jurisdiction - matters of procedure - non-compliance with regulations - residential building work - ambit of appeal.

Clarification of scope of earlier costs order - no question of principle. ND

Workers Compensation Act 1987 - consequences of a breach of s151C - whether proceedings in breach of s151C are a nullity - waiver of right to invoke s151C - Part 19A r3 District Court Rules - leave to withdraw offer of settlement - leave to amend. (D)

MENTAL HEALTH - protected estates - managers - application for leave to appeal decision of Guardianship Tribunal to appoint manager - whether error in Tribunal's fact finding process

Interlocutory relief - injunction to restrain compliance with notice to produce documents under statutory power in aid of investigation - whether enabling regulation constitutionally invalid - free speech - implied right of political discussion - s.109 inconsistency contrary to a Chapter III implication - whether giving of notice beyond power - whether notice givers belief must incorporate exculpatory assurances of the object of investigation - arguable case and balance of convenience - case unsufficiently arguable.

Extension of time to maintain proceedings - Limitation Act 1969 (NSW) - s 60G & s 60I

Criminal Law - Sentencing for supply and manufacturing methylamphetamine in a quantity not less than the large commercial quantity - whether life sentence should be imposed.

INSURANCE - Workers compensation insurance - Statutory workers compensation policy - Non-employer joint tortfeasor - Judgment by injured worker against employer (sub-contractor) - Judgment by injured worker against non-employer tortfeasor (head-contractor) - Contractual indemnity between head and sub contractors - Liability between contractors as joint or concurrent tortfeasors - Whether policy responds - Workers Compensation Act, s 151Z(2) - WORKERS COMPENSATION - Joint tortfeasors - Employer and non-employer tortfeasor - Apportionment of responsibility - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 - Workers Compensation Act 1987(NSW), s 151Z(2)

CRIMINAL LAW - Unfitness to be tried - "Special hearing" pursuant to s19(1) of the Mental Health (Criminal Procedure) Act 1990 - Adequacy of judge's directions - Whether new trial should be ordered - Discretion under s8(1) Criminal Appeal Act 1990 - PRACTICE AND PROCEDURE - Trials conducted as "special hearings" under Mental Health (Criminal Procedure) Act 1990 - Jury directions

Assaults with acts of indecency - whether summing up appropriate on issue of "consent" and "reckless indifference" - whether necessity for Shepherd style direction as to knowledge complainant not consenting or recklessly indifferent to whether or not complainant was consenting. Acquittal on two of five counts - whether verdict of jury unreasonable.

Indictment - invalidity - not signed by authorised person

CRIMINAL LAW - appeal against sentence - plea of guilty - maliciously inflict grievous bodily harm with intent to do grievous bodily harm - assault occasioning actual bodily harm on a Form 1 - provocation - whether sentence manifestly excessive - whether sentencing judge erred in assessment of the objective criminality involved - whether sentencing judge paid sufficient regard to subjective circumstances

Criminal law - aggravated breaking and entering and committing a serious indictable offence - whether use of corporal violence capable of aggravating when the serious indictable offence is assault occasioning actual bodily harm.

CRIMINAL APPEALS - s247 Crimes Act 1900 - Whether open to jury to final element of malice - Whether open to jury to dismiss defence of reasonable action

Claim for damages following fall in defendant's supermarket on chicken fluids on floor - whether plaintiff guilty of contributory negligence - whether damages excessive - disputed diagnosis of reflex sympathetic dystrophy developed as a complication of injuries to the plaintiff's ankle in the fall - judge's criticism of defendant's medical witness as being "more into polemics than a desire to objectively reach the truth of the matter".

DAMAGES - no question of principle

Appeal decision of Local Court Magistrate - Home Building Act

CORPORATIONS - Application to set aside Statutory Demand - Whether genuine dispute as to liability for debt - Whether genuine offsetting claim by way of counter claim, set-off or cross demand - Potential available relief - Counter claim able to be quantified in monetary terms.

D1: murder - malicious wounding with intent - armed robbery - D2: manslaughter - armed robbery

Judicial advice - Rule against accumulations - Rule against perpetutites - Trust, whether charitable - Partial intestacy - Whether failed gifts both corpus and income form part of residue

EQUITY - injunctions - whether offers of settlement headed "without prejudice" and "confidential - not to be disclosed to third parties" contained confidential information - threat to disclose to outside funder maintaining proceedings - motion to restrain disclosure the subject of judgment - substantive motion for stay based on abuse of process

Personal injury claim by soldier injured in army training - Liability of Commonwealth not established - No matter of principle.

EQUITY - claims by administrator of estate for recovery from Defendant of payments by deceased - whether deceased and Defendant in de facto relationship of husband and wife - whether relationship of carer and patient - whether deceased under special disadvantage - whether undue influence or unconscionable conduct - whether monies taken post-death without authority part of estate - whether estate entitled to recovery - Deed of Settlement of prior litigation - whether Defendant entitled to payment under the deed

Succession. Family Provision. Claims by two adult daughters. Notional estate. Prescribed transactions. Deceased shortly before his death transferred home unit to himself and his wife as joint tenants. Financial and material circumstances of each Plaintiff. Deceased recognised an obligation to provide a residence for one Plaintiff. Other Plaintiff suffers from a pyschiatric condition. Competing claim of widow. Marriage of very short duration.

LIMITATION OF ACTIONS - Statutes of limitation - Barring a cause of action or a remedy - When cause of action exists independently of statute, only remedy is barred - STATUTES - Construction - Purposive approach versus textual approach - Purposive approach preferred when it avoids anomalies and gives rise to equitable relief - WORKERS COMPENSATION - Deregistered company - Action brought against insurer under s 601AG of the Corporations Act 2001 (Cth) - Insurer can raise defences that would have been open to the deregistered company (subject to the qualifications attaching to those defences) - Section 151D(2) of the Workers Compensation Act 1987 (NSW). D

CRIMINAL LAW - Sentencing - discount on account of assistance - failure to fulfill undertaking - Crown appeal - calculation of discount allowed for future assistance - application to re-open proceedings - whether sentence imposed "contrary to law" - methods of calculating multiple discounts - WORDS and PHRASES - "contrary to law"

Murder - sentence - applicability of sentencing criteria - test for imposition of life sentence, "worst class of case" - relevance of offender's obsessive compulsive disorder pre-disposing him to commission of this and similar crimes - consideration of dangerousness.

LICENSEE & LICENSOR - Option to renew licence - whether validly exercised - Construction of correspondence between the parties - Contra proferentam principles not to apply on the facts.

Misrepresentation - publications of biographical details - defendant fails to supply publications or refund payments - declaratory and injunctive relief.

Appeal decision of Local Court Magistrate - assignment of debt - set off

Trade Practices Act - s52, s74, s82, s87 - Transfer of liabilities in Airports (Transitional) Act 1996 - Negligence - content of duty of care - relationship with lease - effect of exclusion provisions - claim for economic loss - damages - loss of opportunity in hypothetical scenario - causation - mitigation.

CORPORATIONS - winding up - just and equitable ground - failure of corporate organs

LEGAL PRACTITIONERS - Solicitors - tort of negligence - contract - alleged breach of duty of care - first defendant was acting as solicitor for the plaintiff - scope of solicitor's duty - whether the duty extended to matters outside the terms of the retainer - unsought advice on the wisdom of the proposed transaction - independent legal advice - whether there had been breaches of solicitor's obligation - whether any such breaches had caused damage to the plaintiff - plaintiff transferred various parcels of land to son and nephew - solicitor acted for all parties to the transaction - UNDUE INFLUENCE - UNCONSCIONABLE CONDUCT - whether plaintiff induced to enter into the transaction by alleged undue influence and/or unconscionable conduct of the second defendant

Proceeds of crime - successful application to revoke restraining order - power to award costs to successful applicant - power to award indemnity costs - discretion - consideration of matters affecting exercise.

CONTRACTS - electricity swap contracts in form of 1992 Master Agreement of International Swap Dealers Association Inc - (a) whether interest payable by defaulting party before it can designate an Early Termination Date - (b) whether non-defaulting party can avoid designation of an Early Termination Date by paying an amount exclusive of interest - (c) whether non-defaulting party obliged to pay interest once Early Termination Date is designated. ENERGY AND RESOURCES - Electricity - electricity swap contracts in form of 1992 Master Agreement of International Swap Dealers Association Inc - (a) whether interest payable by defaulting party before it can designate an Early Termination Date - (b) whether non-defaulting party can avoid designation of an Early Termination Date by paying an amount exclusive of interest - (c) whether non-defaulting party obliged to pay interest once Early Termination Date is designated

PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Success of different parties on distinct claims.

Appeal from Local Court - no evidence proffered by Commonwealth DPP - application for costs - Justices Act s 41A

CONVICTION APPEAL - defence of another - damage to property of innocent third party - distinction between protest and self-defence - role of judge - whether defence rightly excluded - appeal dismissed - SENTENCE APPEAL - significance of payment of compensation - appeal dismissed

CONSTITUTIONAL LAW - Operation and effect of Commonwealth Constitution - Whether Commonwealth Parliament has power to create criminal liability by reference to previous liability under State law - CRIMINAL LAW - Jurisdiction, practice and procedure - Persons entitled to conduct prosecution - The Commonwealth - Director of Public Prosecutions - Prosecution for breaches of Corporations Act 2001 (Cth) s1311, 1002G - STATUTORY CONSTRUCTION - Explicatory words - Parentheses - Operative effect - WORDS AND PHRASES: equivalent.

CONVICTION APPEAL - joint trials - whether separation wrongly refused - nature of prejudice - retrial following quashing on appeal - whether Crown significantly changed case - whether bound by way first trial conducted - whether abuse of process - conviction upheld - SENTENCE APPEAL - significance of bail conditions - whether double punishment - appeal dismissed

CONTRACTS - construction of particular agreement - whether trademarks fall within "intellectual property" within the meaning of "all intellectual property developed by the Alliance" in a particular agreement

Representations made to plaintiff that if he resigned his directorship of defendant he would be entitled to participate under Retirement Policy to be adopted by it receiving promptly the maximum benefits to be calculated in accordance with that policy - Corporations - Directors - Entitlement of a director to receive a retirement benefit in an amount which conformed with Retirement Policy adopted by defendant corporation - Corporations - Authority of chairman to enter into contract with director relating to retirement benefits - Contract - Holding that defendant entered into enforceable contract with plaintiff whereunder he agreed to resign from his position as a director, defendant agreeing that plaintiff would be entitled to participate under Retirement Policy to be adopted by it receiving promptly the maximum benefits to be calculated in accordance with that policy - Estoppel - Alternative estoppel case made out - Character of representations made to plaintiff apt to induce in him belief that he had an enforceable entitlement against defendant to be promptly paid for the full retirement benefit if he resigned - Conduct of defendant following plaintiff's resignation as director held to be unconscionable in the circumstances - Trade Practices Act 1974/Fair Trading Act 1987 - Whether representations made in trade or commerce - Corporations - Consideration of scheme of Part 2D.2 Corporations Act 2001 - Section 200B - Section 200F - Section 200G - Section 9 definition of "remuneration" - Australian Accounting Standard Board (AASB) Accounting Standard 1017 - Related Party Disclosure - Construction - Whether appropriate to construe Retirement Policy in light of Corporations Act definitions of "remuneration" - Application to the particular circumstances - Liability - Joint obligors - Equity - Declaratory Relief - Utility

Extension of limitation period - sexual assaults by teacher on schoolboy - personal knowledge of connection between personal injury and acts and omissions of second defendant - prejudice.