Cases and authorities

CRIMINAL LAW - appeal against severity of sentence - top of the range criminality - special circumstances - non-parole period - robbery in company causing grievous bodily harm

Criminal law - severity appeal - separate sentences for separate offences ordered to be served consecutively - totality

Crown appeal against sentences - respondents arraigned on charges of murder - each pleaded guilty to manslaughter - pleas accepted by Crown in full satisfaction - finding of fact consistent with conviction for manslaughter - knowledge of the presence of a knife - separate convictions for assault occasioning actual bodily harm - continuing course of events - subjective circumstances - discount for pleas of guilty - aggravating features - mitigating factors - accumulation - concurrence - Crimes (Sentencing Procedure) Act s44(2) - special circumstances - degree of reduction in non-parole period - principle of totality - range of seriousness of offence of manslaughter - parity

Criminal law - sentence - appeal - lengthy course of pension fraud - elderly ill applicant - full time custody called for - sentencing judge expected custody in hospital or not in maximum security - applicant put in maximum security to be out of hospital but close to it - suffered consequential heart attacks requiring removal to hospital - further attack when taken to court - necessity to re-sentence to accord with sentencing judge's expectations.

TAXES AND DUTIES - Pay-roll tax - Whether a common law employer acting as agent is an employment agent within the Pay-roll Tax Act 1971, s 3C(2) - Whether later ratification can create a retrospective employment agency agreement - Whether the exemptions in s 3C(4) are dependent upon s 3C(2) being operative - Whether the declaration required under s 3C(4)(c) can be given after the event - Whether the decision maker had the requisite employment grade under the delegation of the Chief Commissioner - Whether penalty tax and interest should be further remitted

Separate Question Orders

Partnership or joint venture - Breach of fundamental term.

Winding up order - Estoppel - Contract - Novation - Unfair preferences - Good faith defence.

Discharge of water on plaintiff's land caused by the defendant's drainage works - Negligence - Duty of Care - Nuisance - s 241 of the Local Government Act 1919 and s 733 of the Local Government Act 1993 - "Good Faith" - Conditions of development consent.

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - order for withdrawal of caveat - circumstances in which withdrawal may be ordered even if court has earlier declined to order withdrawal - PROCEDURE - miscellaneous procedural matters - court declines to order removal of caveat - whether such an order interlocutory - whether application on basis of facts arising since previous judgment for order for withdrawal of caveat involves re-opening previous judgment - COSTS - litigant fails to comply with undertaking to court through fault of his solicitor - later court proceedings occasioned by the failure to comply with undertaking - whether solicitor to pay costs of later proceedings, and on what basis

EVIDENCE - evidence on commission - requests by foreign courts - meaning of "evidence" - whether evidence sought for purposes of US proceedings - weight to be given to terms of letters of request - Evidence on Commission Act 1995 s 33 - discretion to give effect to letters of request - breadth of inquiry - possible exposure to civil or criminal proceedings - privilege of witnesses - where use-immunity granted in jurisdiction of requesting court - Evidence on Commission Act 1995 s 34 - - - EVIDENCE - legal professional privilege - where documents in public domain - whether implied consent to disclosure by third party - where explicit consent to procedure whereby documents could become publicly available - Evidence Act 1995 s 122(4) - PRACTICE AND PROCEDURE - joinder of parties - where third party rights potentially affected by course of examination of witness - where third party able to protect itself by attending examination and seeking to be heard - no joinder required - Supreme Court Rules 1970 Pt 8 r 8(1)

[Security for Costs] - Application by cross-defendant to cross-claim against him by former employer - holding company of cross-claimant in receivership and financial statements to 2002 show major decline in finances - notice to produce served on respondent for production of up to date financial statements - not produced - Inference available.

Delivery of former solicitor's file

Succession - Family Provision - Claim by adult son - Relationship between Plaintiff and Deceased - Distributions inter vivos by Deceased - Effect of such distributions was to dispose of entirety of assets of Deceased - Prescribed transactions - Notional estate - Plaintiff named as a beneficiary in last will of Deceased - Competing claims of other beneficiaries - Statements made by and attributed to Deceased - Conduct disentitling.

Damages - tortious injury - subsequent non-tortious injury - would independently have diminished the earning capacity diminished by the first injury - whether taken into account in assessing damages. D

Criminal Law and Procedure - Proceedings after sentence - Application to re-open sentencing proceedings - whether sentence imposed after Crown appeal was contrary to law - whether new material indicates that court acted erroneously when determining the commencement date of the sentence - extent of jurisdiction to re-open sentencing proceedings.

Application for leave to appeal- dismissal of claimant's motion to amend defence to plead s.151C of Workers Compensation Act 1987- whether failure of claimant to reply to letter seeking admission of liability within seven days sufficent to enliven exceptions provided in s.151C- whether claimant, by filing of defence denying liability and preparation of matter for trial, estopped from amending defence and/or relying on s.151C- failure to offer explanation of delay

NEGLIGENCE - Construction industry - Working environment with large amounts of asbestos dust - Negligent performance of statutory duties - Whether State owed a duty of care to employees to direct the employer to address unsafe working conditions - whether inspectors knew such conditions were unsafe - Whether knowledge of the State inspectors to be attributed to the State - Whether knowledge of an independent statutory corporation is to be attributed to the State - Whether circumstances fall into any of the specified exceptional categories identified in Sutherland Shire Council v Heyman (1985) 157 CLR 424 - Whether circumstances analogous to those in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 or Pyrenees Shire Council v Day (1998) 192 CLR 330. D

CONVEYANCING - Matters arising between Contract and Conveyance - Vendor issuing notice to complete - Whether vendor free of default by way of breach or antecedent relevant delay - Whether inaccurate answers to requisitions constituted breach or relevant delay - Whether the purchaser was entitled to issue the requisitions - Whether any antecedent breach remained relevant to the relative situation of the parties - Whether the purchaser was entitled to serve further requisitions within 21 days from service of earlier answers - Notice to complete issued within the 21 day period - Whether the notice of termination was justified on the ground of repudiation - Whether the purchaser had the capacity to finance the purchase

CORPORATIONS - reinstatement of registration of deregistered company - whether trustee in bankruptcy of both shareholders is "person aggrieved" by deregistration - where company had assets exceeding liabilities - whether trustee in bankruptcy is "contributory" with standing to seek winding up on just and equitable ground - where former shareholders attempting to divert company property

Appeal from decision of CTTT - Non-receipt of notice of hearing - denial of procedural fairness

Criminal Practice & Procedure - admissibility of Alibi Notice - lies - whether consciousness of guilt or credibility - whether notice should have been excluded - directions on lies - Rule 4 - forensic advantage.

Criminal Law and Procedure - Sentencing for fraud offences - whether cumulative sentences warranted - whether sentencing discretion affected by the number of offences - Appeal - no sentence imposed for one offence - whether court should remit the matter.

CRIMINAL LAW - Sentence - Crown appeal - break enter and steal - suspended sentence - delay - prospects of rehabilitation - whether sentence inadequate

Costs - Calderbank letter - Supreme Court Act 1970, Pt 52A r33

DEFAMATION - PRACTICE AND PROCEDURE - appeal from jury decision - whether jury's finding that imputations not conveyed was one which no reasonable jury could reach - whether period of jury's deliberation so short as to suggest failure to perform its function - principles governing granting extension of time for filing application for leave to appeal. (D)

COSTS - Indemnity principle - whether a nominal party is entitled to recover the costs of proceedings where the benefit of the costs enures to a third party with a real interest in the proceedings - operation of sections 112 and 116 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). (D)

EMPLOYEE - psychiatric illness - conduct of employer resulting in workplace stress - distinction between stress and a recognised psychiatric illness - where employees existing mental disorder known to employer - foreseeability of psychiatric illness - whether far-fetched and fanciful

Appeal - Personal injury - Workplace injury - Negligence - Terms of building contract - Apportionment of responsibility between employer and contractor when negligent construction caused wall to fall - Damages - Future economic loss - Quantum

LOCAL GOVERNMENT - Development application - Section 56A of the Land and Environment Court Act 1979 - Whether Commissioner failed properly to apply a clause of a Development Control Plan - Reasons of Commissioner - PRACTICE AND PROCEDURE - Costs of Appeal - Indemnity Costs - Rejection of pre-trial offer - Where appeal intrinsically lacked merit. ND

EVIDENCE - Travel Agents Act 1986 (NSW) - Travel Compensation Fund - subpoena - where confidentiality claimed in respect of certain subpoenaed documents - whether certain subpoenaed documents commercially sensitive or confidential - whether certain subpoenaed documents subject to legal professional privilege - whether restricted access should be given to subpoenaed documents

TRADE PRACTICES - ss 51A, 52 Trade Practices Act 1974 - agreement for sale of advertising business - whether first and second defendants made representations as to profitability of business that were misleading or deceptive or likely to mislead or deceive - whether first or second plaintiffs relied upon any such representations in deciding to purchase the business - INDUSTRIAL LAW - ss 105, 106 Industrial Relations Act 1996 - agreement for the sale of business - whether agreement as made and/or as performed was unfair for the purposes of s 106 - whether order for the payment of money to be made against a person who was not a party to the contract - whether second defendant (first applicant in IRC proceedings) was constructively dismissed

Rehearing of an arbitration - personal injury - fall from scaffolding

special verdict - not guilty on the grounds of mental illness - knowledge of the nature and quality of acts but no knowledge that what was done was wrong

Young offender - plea of guilty to murder - significant discount for assistance to authorities - excellent prospects of rehabilitation - finding of "special circumstances".

Criminal Law - sentence on guilty plea - no question of principle.

No question of principle

Criminal Practice & Procedure - appeal against sentence - offer of DNA sample - whether need for specific discount - mistake by sentencing Judge in respect of offence - different maximim penalty - mistake corrected by mathematical adjustment - whether error.

CRIMINAL LAW: Crown appeal - adjournment under s11 of the Crimes (Sentencing Procedure) Act - serious offence - unfavourable record - prospects of rehabilitation - fulltime custodial sentence still likely.

CRIMINAL LAW: Appeal against conviction - importing heroin - admitted lies by appellant to customs officers and police - not relied upon as evidence of consciousness of guilt - whether trial judge's directions appropriate. - Evidence of good character - whether relevant to credibility of appellant's account to police in a recorded interview.

CRIMINAL LAW: Appeal fresh evidence aggravated sexual assault - allegation of penile penetration of a young man without his consent - new evidence suggesting appellant was impotent

Personal injuries suffered by the respondent while riding motor cycle owned by appellant during the course of employment-contributory negligence- future Griffiths v Kerkeymeyer- assessment of vicissitudes- future economic loss-whether adequate reasons.

LEGAL PRACTITIONERS: - solicitors - what constitutes professional misconduct - good fame and character - fit and proper person - criminal acts - forgery of mortgage documents to fraudulently obtain money - dishonest behaviour

APPEAL for Master - application for summary dismissal - whether statement of claim pleaded facts sufficient for cause of action or whether no foundation for claims made

Costs - whether an offer to compromise liability is an offer of compromise within the meaning of Pt 22 of Supreme Court Rules - order for payment of costs forthwith pursuant to Pt 52A r 9(1) - whether s198D of the Legal Profession Act 1987 is subject to s198F

CORPORATIONS - voluntary administration - creditor in an amount exceeding $5,000 sought to be appointed as administrator of company - debt arises from peculiar form of administration of a related company - undertakings appropriate when one person appointed as administrator of several companies in group