Cases and authorities

CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE OFFENCES - DISCOUNTS FOR EARLY PLEAS AND ASSISTANCE TO AUTHORITIES - NO ERROR IN ASSESSMENT BY SENTENCING JUDGE

CORPORATIONS - voluntary administration - deed of company arrangement - internal inconsistencies of approach - resort to materials sent to creditors before meeting and to proceedings at meeting - whether deed has run its course - whether it should be amended to put this beyond doubt - PROCEDURE - separate proceedings cross vested from Industrial Relations Commission and Federal Court - observations on how they should be progressed together.

CORPORATIONS - winding up - foreign corporation adjudged bankrupt in place of origin - subsequent winding up order under Corporations Law - application by liquidator for discharge - considerations relevant to such application - preliminary ruling as to substituted notification requirements appropriate to particular circumstances.

TAXES AND DUTIES - Stamp duties - Whether a document that fails to identify the duty assessed on each instrument can be a notice of assessment under the Stamp Duties Act, 1920 - Whether the subsequent service of a schedule identifying the duty combined with the original document constitutes a notice of assessment - Whether the exigibility of transactions entered into after the decision the subject of objection can be considered by the court on review - Whether a surrender of the balance of the term of a lease is a conveyance for the purposes of the Stamp Duties Act 1920 and a dutiable transaction for the purposes of the Duties Act 1997 - Whether the "sale" by a tenant to his landlord of tenant's fixtures is a waiver of the right of severance and neither a contract for sale of goods nor a contract for sale of an interest in land - Whether the application of Revenue Ruling DUT 004 alone is a fetter upon the discretion not to exact duty on the value of goods under the Stamp Duties Act 1920, s 43A(2)(b) and the Duties Act 1997, s 26(1) - Whether subservience of items of plant and equipment to the business conducted on land should be allowed to dominate the determination whether such items are fixtures - Whether operational interconnection of items is a relevant factor in determining whether such items are fixtures.

CORPORATIONS - winding up - creditors voluntary winding up after Part 5.3A administration - recoverability in such winding up of costs under costs order where winding up application initiated before Part 5.3A administration was dismissed after commencement of creditors voluntary winding up with order for costs in favour of plaintiff.

Family provision - Small estate - One child receives whole of estate - Extent to which court can interfere with testator's intentions - Nature of relationship - Misleading evidence as to means

CRIMINAL LAW - Appeal - When appeal lies - From interlocutory judgment or order - Opinion before trial on whether defence available - Not interlocutory judgment - Criminal Appeal Act 1912, s 5F. - JUDGMENTS AND ORDERS - Classification - Interlocutory judgment or order - Opinion before trial on whether defence available - Not appealable before conviction - Criminal Appeal Act 1912, s 5F.

PERSONAL INJURY - duty of care - causation - breach of duty - JUDICIAL OFFICERS - content of obligation to give adequate reasons

FAMILY PROVISION ACT - Claimant a widow of eighty-six years of age - insufficient provision for her security of accommodation - whether claimant should have whole estate absolutely or life interest.

Bail - refusal - after conviction for serious "white collar" crime

Application for discharge of jury during summing-up: Principles - Judge's comments on counsel's address to jury: need for caution and restraint

Jury Act s 22 - Discharge of juror - reasons continuation of trial with less than 12 jurors

Jury Act s 22 - Discharge of Juror - Reasons continuation of trial with less than 12 Jurors

PROCEDURE - Application for stay of execution of writ of possession - Circumstances in which Court will exercise discretion in favour of granting a stay - Whether appeal would be rendered nugatory if stay not granted - Whether claimaint has arguable case on appeal - WILLS PROBATE AND ADMINISTRATION - Administration of will by Public Trustee - Sale of property required to cover debts of estate - Writ of possession obtained by Public Trustee - Claimant claiming property in specie - Claimaint had lived in and maintained property

Application by DOCS for orders permitting medical treatment - child born with significant brain damage - not consented by parents - role of Court - orders made

Suit for specific performance of sale of land - Whether the defendant's objection under the contract is valid - Whether certain easements arose out of the "requirements" of the Council - Whether easements were "minor" variations to a s. 88B Instrument - Whether defendant's objections valid.

licence agreement - property and assets - summons - appointment of administrator to first plaintiff - conditions precendent of Deed - appointment of proxy by creditor company

interlocutory process - provisional liquidation

CORPORATIONS - s 237 - Leave to bring under section. - INJUNCTIONS - Heads of Agreement - Notice of termination - Whether serious question to be tried - When compromise of a claim is sufficient consideration - Whether arguable that the court has jurisdiction to grant relief against forfeiture of rights under dealership agreement - Where time stipulations essential.

Equity - Confidential information - No question of principle - Corporations - Information - No question of principle

Contracts - Implied Terms - Customs or usage - Other questions of fact - No question of principle.

PROBATE - Original will not located - Whether photocopies of the will are forgeries - Whether the original will stolen - No question of principle.

PROCEDURE - contempt, attachment and sequestration - order prohibiting "the Defendant, by himself, his servants and agents" from acting in certain ways - meaning of "agents" in this context - whether person who might have been, on the evidence, a person engaged by an independent contractor of the defendant is the agent of the defendant - tests for deciding whether a person is an "agent" for the purposes of such an order - JUDGMENTS AND ORDERS - consent orders - whether to be construed by reference to surrounding circumstances - PROCEDURE - contempt, attachment and sequestration - degree of clarity required in order before it can be enforced by contempt proceedings - JUDGMENTS AND ORDERS - degree of clarity required in order before it can be enforced by contempt proceedings - WORDS AND PHRASES - "excavate" - WORDS AND PHRASES - "by himself, his servants and agents" - WORDS AND PHRASES - "agent" - INJUNCTIONS - form of order which requires a land owner to take steps to prevent activity of a certain type occurring on his land, even by a person who is not his servant or agent - INJUNCTIONS - contempt committed by person whose activities knowingly frustrate an injunction

Future out-of-pockets - Costs

Costs. Offer of compromise. Consequences of failure by Defendant to accept. Whether Court should otherwise order.

CONTEMPT OF COURT - PRACTICE AND PROCEDURE - ARREST - DETENTION IN CUSTODY - Content of arrest warrant issued under Pt 55 r.10 Supreme Court Rules discussed - power of Court to direct alleged contemnors to be held in prison pending trial of contempt charge explained.

Contract-whether contractual intention in respect of rules of admission to a sporting competition for children and youths-equitable estoppel- whether representations clear and unequivocal- whether representations contravened s52 of the Trade Practices Act.

Malicious prosecution - strike out application - instigation of prosecution - pleading of agency and motive - reasonable and probable cause.

CRIMINAL LAW - Conviction Appeal - Manslaughter - Unlawful and dangerous act - Punch - Whether the trial judge erred in failing to direct the jury not to engage in tendency reasoning with respect to relationship evidence - Whether the trial judge erred in his directions regarding manslaughter - Whether certain evidence was inadmissible against one of the appellants - Whether the trial judge erred in his directions to the jury regarding the evidence of alleged admissions by one of the appellants - Whether the trial judge erred in directing the jury as to a joint criminal enterprise - Whether the verdicts were unreasonable

CRIMINAL LAW - Sentencing - Crown Appeal - indecent assault - whether sentencing judge failed to comply with principle of sentencing stated in Pearce - sentencing judge decided not to impose lengthy custodial sentence because of previous sentences passed on respondent - respondent has many health problems

Criminal Law and Procedure - abuse of process - double jeopardy - successive charges arising out of same facts - elements of offences not identical - delay

JUDGMENT - Consent judgment - Death of plaintiff - Whether defendant entitled to a reduction in the amount of damages payable where plaintiff dies shortly after the date of consent judgment. - APPEAL - Supreme Court Act 1970 (NSW), s.75A - Construction - Appeal to the Court of Appeal is by way of re-hearing - Discretion to admit further evidence - Power conferred by s.75A is to be construed in the appellate context - Importance of public interest in finality of litigation.

CONTRACT - PARTNERSHIPS - Agreement between first appellant and first respondent to establish hedge investment fund - identity of partners - TERMINATION - term of partnership agreement that each partner would contribute equally in terms of time and effort - first respondent left partnership to take up full-time employment - whether partnership agreement terminated - whether first respondent accepted first appellant's repudiation - principles concerning repudiation and partnerships - Abandonment - whether partnership agreement abandoned - Conduct of trial - terms of referral to Master - Estoppel - whether appellants estopped from asserting any share in the business or profits after the termination date. (D)

COSTS - PROTECTED ESTATES - Case involving matter of general importance concerning Protective Commissioner's powers.

Practice and Procedure - Excise prosecution for convictions, penalties and unpaid duties - nature of proceedings - privileges against self-incrimination and exposure to penalties - trial procedure differential case management - verification of defences

CORPORATIONS - compulsory acquisition of securities under Part 6A.2 Corporations Act 2001 (Cth) - application to court to approve acquisition under section 664F Corporations Act 2001 (Cth) - whether terms of compulsory acquisition notice give a fair value for the securities - VALUATIONS - valuation of intellectual property - whether similar to valuation of individual business

Costs - application for indemnity costs - validity of offer of compromise

CUSTOMS PROSECUTION - importations of clothing in 1998 - alleged offences of – smuggling - evading payment of duty - intentionally making a statement to a Customs officer, reckless as to the fact that the statement is false in a material particular - circumstantial case - tendency evidence - coincidence evidence

Criminal law - murder - robbery in company with infliction of grievous bodily harm - robbery in company with wounding - joint criminal enterprise - common purpose - constructive murder - conditional indemnity given to witness in exchange for evidence - consciousness of guilt - grounds pertaining to directions to jury - ss 3A and 21A of Crimes (Sentencing Procedure) Act 1999 - ss 164, 165 Evidence Act 1995 - s 18 Crimes Act 1900.

CRIMINAL LAW - appeal against sentence - aggravated sexual intercourse without consent - two matters on Form 1 - whether judge had regard to standard non-parole period, not applicable to the case - whether proper approach to Form 1 matters - whether adequate weight given to plea of guilty, co-operation, poor health, protection

Criminal law - aggravated break enter and steal in company - bank robbery - Crown appeal against sentence as manifestly inadequate - objective seriousness of offence - determination of appropriate starting point for sentence - patent or latent error - Respondent on parole - significant criminal history - similar past offence - s 112(2) Crimes Act (NSW) 1900 - s 21A(2), s 21A(3), s 44(2), s 54A(2), s 54B Crimes (Sentencing Procedure) Act 1999.

application for leave to appeal against sentences - detaining for advantage - aggravated sexual assault - indecent assault - total accumulation of sentences imposed in respect of rape offences on the sentence imposed in respect of detention offence - common elements between offences - relevance of sentencing patterns from foreign jurisdictions - synchronicity with English guidelines - parity - whether overall sentence imposed has been shown to be manifestly excessive

CRIMINAL LAW - Evidence - Character - Bad character - Good character - Whether adduced by defence - Whether evidence given deliberately not inadvertently - Conscience decision - CRIMINAL LAW - Evidence - Character - Requirement for leave - Leave required - Error by trial judge - No miscarriage of justice - Evidence Act, ss 112, 192(2) - CRIMINAL LAW - Jury - Directions - Character direction - Trial judge only directs that evidence of good character able to be considered in relation to guilt - No propensity direction - Requirement to so direct - Risk of jury misunderstanding legitimate use of evidence - CRIMINAL LAW - Evidence - Voice identification evidence - Quality of - Unreliable - Discretion to refuse admission - Identification warning given to jury - Evidence Act, ss 135, 137

Stay of execution of judgment pending an appeal - payment claim under Building and Construction Industry Security of Payment Act 1999 - no payment schedule - judgment obtained in District Court - appeal on ground payment claim served out of time because remedial work was not construction work to which the payment claim related - difficult argument on appeal - no evidence payment of judgment sum would cause, hardship or be irrecoverable - other proceedings to be brought by judgment debtor for breach of contract - policy of Act favoured reluctance to grant stay in these circumstances - stay refused.

COURTS AND JUDICIAL SYSTEM - Jurisdiction of District Court to hear taxation matters - Meaning of s44(1)(a) of the District Court Act - TAXATION AND REVENUE - Validity of notices issued under s222AOE of the Income Tax Assessment Act

ADOPTION - CONSENT - WHETHER EFFECTIVE - Birth mother gives general consent to adoption while suffering severe depression and post-traumatic stress - whether consent effective under s.58(2)(d) Adoption Act. HELD: Birth mother's consent ineffective. - ADOPTION - CONSENT DISPENSE ORDER - Whether birth mother's mental condition and general circumstances required that her consent to adoption be dispensed with and adoption order made. HELD: Consent dispense order made.