Cases and authorities

Appeal decision of Local Court Magistrate - insurance - indemnity

De facto relationship - Factors to be considered in respect of adjustments - Balancing contributions of both parties - Contributions in respect of children brought in by one party.

Urgent application for interlocutory relief against media to restrain publication of unauthorised disclosure of plaintiff's medical condition by his psychiatrist - no inducement by media - insufficient prospect of any real damage.

EVIDENCE - facts excluded from proof - client legal privilege - whether copies of documents not themselves privileged which are provided to a solicitor for the purpose of obtaining advice are privileged under Evidence Act 1995 - whether drafts of transaction documents prepared by a solicitor are privileged under Evidence Act 1995 - exception to privilege in section 121(3) Evidence Act 1995 concerning "a communication or document that affects a right of a person"

Superannuation - Total and Permanent Disablement - The case turns on its facts - Practice and Procedure - Separate determination of questions

CRIMINAL LAW AND PROCEDURE - DEEMED SUPPLY OF CANNABIS - ALLEGED OFFENDER OVERSEAS FOR EXTENDED PERIOD - POLICE SEIZURE OF DRUG DURING HIS ABSENCE - PURPORTED EXPERT EVIDENCE OF RATE OF DETERIORATION AND CHANGE OF APPEARANCE AFTER HARVEST - VIEW OF MATERIAL AT TIME OF SEIZURE SOLE BASIS FOR OPINION - EXPERIENCE DID NOT QUALIFY WITNESS - INSUFFICIENT OTHER EVIDENCE TO INCULPATE APPELLANT

CRIMINAL LAW AND PROCEDURE - Appeal against conviction - Directions as to the absence of any evidence from the accused - Whether "desirable" in this case for full "Azzopardi" direction to be given - No reference in direction given to some evidence not available to fill in gaps in Crown case or as make-weight in assessing whether Crown has proved its case beyond reasonable doubt - No complaint at trial as to adequacy of summing-up - Rule 4 - Need to show that error led to miscarriage of justice for leave to rely on error. - Whether missing ingredients of "Azzopardi" direction "desirable" in this case - Whether those ingredients directed to weight to be given to hearsay evidence of exculpatory statements by accused to police or to preventing jury from reasoning that, if the accused had any answer to the Crown case or to a particular part of the Crown case he or she would have given evidence of that, and that he did not give evidence because his or her evidence would have filled in those gaps or added to the weight of the Crown case. - Reliance by appellant in Regina v Macris [2004] NSWCCA 261 - whether ruling that nothing in the facts of that case would have made a full "Azzopardi" direction "inappropriate" demonstrated that it was "desirable" for such a direction to be given - whether correctly decided. - Appeal against sentence - misdirection as to existence of recognised range of sentences for manslaughter of young child - matters of aggravation referred to without indicating whether accepted or rejected - reduced sentence.

Sentencing - malicious wounding - detain with intent to obtain an advantage - linking of strength of Crown case to utilitarian value of the plea - delay - manifestly excessive sentences

Home Building Act 1989 - scheme of compulsory insurance - amendments providing for State to provide indemnity to persons entitled to claim against insolvent insurer - exception for "a developer to which the policy relates" - claimant had previously been held entitled to claim against insurer notwithstanding a policy exclusion of a claim by developer - whether claimant thereby characterised otherwise than as developer and not within exception in legislation. D

CONTRACT - SALE OF LAND - Whether parties had concluded an oral agreement whereby plaintiff would be entitled to acquire an interest in land to be purchased by defendant - whether part performance by plaintiff - question of fact.

Criminal Law - application by ABC for release of video tape exhibit - video shown in open court - potential harm to accused - interests of open justice - interests of person with mental illness - whether material wholly exceptional such that should not be released.

Appeal decision of CTTT- cross claim - interest

Criminal Practice & Procedure

DEFAMATION - whether article capable of carrying an imputation - accuracy of reporting court proceedings - relevance of headlines and article layout - whether article simply reported courtroom proceedings

Negligence - trespasser deliberately jumps from moving XPT - duty owed - no breach

CORPORATIONS - winding up - extension of time for determination of application for winding up in insolvency - whether slip rule available if extension application not made within time - no presumption of oversight or error where ground other than insolvency relied on

CRIMINAL LAW - sentencing - bribery of a Commonwealth public official - assistance to authorities - whether the sentencing judge erred in calculating the purported discount - whether the sentencing judge erred by failing to sentence the applicant in accordance with s21E of the Crimes Act 1914 (Commonwealth), having regard to the assistance - whether the sentencing judge gave adequate value to the assistance

PRACTICE AND PROCEDURE - Contempt - Referring question of contempt under s 203 District Court Act 1973 (NSW) to the Supreme Court - Not a "judgment or order in an action" as required by s 127(1) of the Act to be referable - Appeal not competent - COSTS - Leave to appeal - Judicial reluctance to grant leave to appeal in respect of costs orders alone. D

CORPORATIONS - liquidation - disclaimer of onerous property - whether s 568(1B) of the Corporations Act empowers the Court to make an order varying contractual rights and liabilities that is not necessary in order to release the company or its property from liability

NEGLIGENCE - Motor vehicle collision - No first hand evidence - Proof on the balance of probabilities - Claim and counter-claim dismissed - APPEAL - Whether trial judge drew correct inferences from primary evidence - Trial judge inferences upheld - COSTS - Discretion to award - Claim and counter claim - Each party separately represented as plaintiff and defendant - Courts should only award costs where justice requires double representation - Parties should seek leave to be separately represented - Courts should exercise discretion to award costs to create an incentive to ensure only one set of legal representatives appointed to represent an individual party - In the normal case a successful Plaintiff should receive one half of his or her costs and a successful defendant should receive one half of his or her costs

CORPORATIONS [236] - Winding up - Winding up by Court - Stay of proceedings under order and discharge of order - Setting aside of order - Relevant considerations - Proof of solvency.

Contempt of Court - abusive and threatening remarks to juror in court after verdict of guilty of murder against brother - sentencing

Application to commence proceedings under s 6 Law Reform (Miscellaneous Provisions) Act 1946 - whether negligence or misrepresentation relating to preparation of valuation - policy of insurance - issue of direct actions against insurers from claimants - whether there was no solvent or perfectly good Defendant - whether s 6 applied to a claims made and notified policy where event giving rise to damages claim occurred prior to commencement of policy - whether Defendants had entitlement to disclaim liability under policies - Trade Practices Act s 6(3)(a) - Fair Trading Act - Insurance Contracts Act 1984 (Cth) s 54.

Family Provision. Application by children of deceased. Real estate passed to eldest son in accordance with Chinese custom. Orders for provision made in favour of plaintiff.

Criminal Law - pre-trial issues - notice of motion of accused to disallow tender of evidence.

CONTRACT - retrospectivity - whether parties could conclude an agreement which adversely affected accrued rights of third party - implied terms - holding over - whether contractual terms expiring at conclusion of one year continued to operate until conclusion of new agreement in the following year - PRACTICE AND PROCEDURE - reopening - whether reasoning in previous decision, but where judgment not yet entered, ought to be reopened - weight of submissions considered both individually and collectively - EVIDENCE - content of applicable foreign law - whether decision of foreign court concerning validity of foreign law is evidence as to the application of that foreign law - JUDGMENTS AND ORDERS - interest rate on judgments - rate - judgment in foreign currency - whether foreign interest rate applicable

Building and construction - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether adjudication determination void - whether adjudicator made jurisdictional error in determining existence of a construction contract as defined in s 4 of the Act - whether there was an arrangement which was a construction contract - distinction between "contract" and "arrangement" for purposes of the Act - statutory scheme for entitlement to, liability for, and recovery of, a progress payment regardless of provision of relevant construction contract

Application for provision pursuant to s 7 of the Family Provision Act 1982 by partner of 20 years - Whether applicant and the deceased in a de-facto relationship - Whether in all the circumstances provision should be made

Family Law. De facto relationship. Date of termination of relationship. Duration of relationship. Three separate periods of cohabitation. Significant periods of separation. Whether the parties have lived together in the relationship for not less than two years. Child of the parties. Respective contributions of the parties. Domestic relationship agreement. Significance of agreement where by its terms its provisions are no longer in force.

CONVEYANCING [185] - Land titles under the Torrens system - Caveats against dealings - Form of caveat - Statement of estate or interest - Statement reveals caveator relies on interest which is not caveatable.

CORPORATIONS [176] - Voluntary administration - Jurisdiction and powers of Court - General power to make orders - Power to make such order as it thinks appropriate - Adjournment sought of creditors' meeting where further adjournment not possible under s 439B.

Family Provision - Small Estate - Long happy marriage - Chronic illness of deceased - Care provided by widow - Competing needs - Special circumstances

PROCEDURE [553] - Costs - Costs of whole action - Generally - Where action settled - Usual rule - Exception when it is plain one party would have succeeded had matter been fully tried.

Application to amend Statement of Claim - implied term as to mutual trust and confidence in contract of employment - whether law of Australia contemplates such a term - whether amendment futile - principles applicable to application.

CONTEMPT - Failure to comply with orders of the Master - No case to answer - Ambiguity of the order - Whether order capable of compliance - Whether more than one possible construction of order prevents liability for contempt - Requirements to prove civil contempt - No evidence by the plaintiff - Evidence failed to satisfy beyond reasonable doubt first plaintiff still posessed the document when order made.

Criminal Law - Sentencing - Judge found that the offender was not suffering mental illness despite psychiatric report - whether finding open - whether sentence excessive in any event - Despite error no lesser sentence warranted.

CRIMINAL LAW - Crown appeal against sentence - Defrauding the Commonwealth - 21 months imprisonment - Wholly suspended - Defrauding of social security system over a period of years - Unusual subjective case - Alcoholism arising from sexual abuse as a teenager and related health problems - Whether exceptional circumstances justifying disposition other than full time custodial sentence to be served

CRIMINAL LAW AND PROCEDURE - DANGEROUS DRIVING CAUSING DEATH - VICTIM A PASSENGER IN A RELATIONSHIP WITH OFFENDER - SENTENCING PATTERNS - PARTICULAR IMPOSITION EXCESSIVE - RESENTENCE APPROPRIATE

COSTS - Appeal - Two parties with substantially similar interests - Separate appeals brought - One appellant, an insurer with an interest in establishing a general point, briefed senior counsel - Respondent ordered to pay the appellant's costs, not extending to briefing senior counsel.

CONSTRUCTION AND INTERPRETATION - Minister's water management plan - definition of "performance indicators" - whether "performance indicator" must be in the form of a "target" or "standard" - s 50 Water Management Act 2000 - CONSTRUCTION AND INTERPRETATION - Minister's water management plan - rule expressed in terms of "extraction limit" - whether a rule for the "identification, establishment and maintenance of water" within the meaning of the Act - STATUTES - Construction - Acts done in breach of form requirements regulating a statutory power - Whether invalid - Substance-based test. - WATER RIGHTS - whether management plan invalid for failing to provide environmental water rules required under the Act - s 8 Water Management Act 2000 - WATER RIGHTS - Whether amendments to Act invalidate Plan - WORDS AND PHRASES - Performance Indicators, Water

ADMINISTRATIVE LAW - Minister's water management plan - Whether invalid for extraneous purpose - ADMINISTRATIVE LAW - Minister's water management plan - Contemplates right not supported by statute - Right could be created by series of interconnected executive acts - Whether invalid - ADMINISTRATIVE LAW - Minister's water management plan - Whether invalid for irrationality - CONSTRUCTION AND INTERPRETATION - Minister's water management plan - Whether formula mathematically impossible - CONSTRUCTION AND INTERPRETATION - Minister's water management plan - Difficulty arising from commencement date of Plan - Whether invalid - Whether amendments to Act save provisions - WATER RIGHTS - Minister's Sharing Plan - Whether invalid - WORDS AND PHRASES: Requirements

CONTEMPT OF COURT - Tendency to interfere with course of justice - Allegation of pressure on unrepresented litigant - Allegation of causing unreasonable delay - Whether client responsible for solicitor's conduct.

CORPORATIONS [180] - Voluntary administration - Creditors' meeting - Application to extend time to convene - Relevant considerations - Advantageous sale requires additional time for completion.

CORPORATIONS [28] - Constitution and legal capacity - Internal disputes - Actions by individual shareholders - Statutory derivative actions - Leave to proceed - Whether leave should be granted where there are coexisting proceedings between relevant parties in the Family Court.