Cases and authorities

Criminal law - two trials - aggravated armed robbery with dangerous weapon - replica firearm - Sch 1 Weapons Prohibition Act 1998 - protective custody - likelihood thereof - relevant factors

CRIMINAL LAW - Appeal - Sentence - Whether manifestly excessive - Relevance of family circumstances - Relevance of good character.

Criminal law - Crown appeal - supply large commercial quantity (heroin) - supply cocaine - role of respondent - no basis for intervention

NEGLIGENCE - product liability - causation - sudden illness after use of product - conflict among experts as to diagnosis and as to probable impact of particular chemical component (MDI) of product - possible cause not probable cause - treating doctor deferred to expert toxicologists as to critical scientific issue - trial judge's advantage - complex trial involving experts. (D)

Criminal law - sentencing - s52A(4) Crimes Act 1900 - aggravated dangerous driving whilst under the influence of intoxicating liquor causing grievous bodily harm

appeal against order of Local Court Magistrate committing plaintiffs for trial on charge of murder - defence of self-defence - proper construction of Justices Act 1902, s41(6)

PROCEDURE - costs - priority in winding up afforded to certain creditors providing financial support to liquidator - another creditor opposes liquidator's application - orders made favour all creditors referred to in liquidator's application but with two of three awarded less than liquidator sought - whether opposing creditor's role beyond that of "conventional contradictor" - whether all costs should be expense of winding up

[Negligence] - Claims that defendants, auditors, were negligent in (a) consenting to the inclusion of unqualified audit opinion on 31 December 1994 accounts of the plaintiffs in Prospectus on 3 May 1995 - and (b) signing unqualified audit opinion in respect of 30 June 1995 accounts of the plaintiffs - Allegations that the use of earned value method of bringing profit on telecommunications contracts to account was inconisitent with relevant accounting standards - Whether such contracts construction contracts - Whether material loss forseeable. [Contract] - Claims that same conduct amounted to breaches of contract. [Statute] - Claims that same conduct amounted to breach of provisions of Corporations Law in force in 1995.

PROCEDURE - Costs - Whether the Supreme Court Rules 1970, Pt 52A r 4(2) or the Corporations Act 2001 (Cth), s 1335(2) preclude the court from ordering non-party directors to pay the plaintiff's costs of originating process to wind up companies - Directors were cross defendants on a claim for compulsory acquisition of the plaintiff's shares - Whether the directors were parties to the proceedings - Whether an order for costs should be made against the directors

CORPORATIONS - winding up - proof and admission of debts - interest bearing debts - surplus remaining after payment in full of admitted debts and interest thereon accrued to date of winding up - right of such creditors to interest accruing after winding up - whether interest on judgment debt by statute different from contractual interest

Criminal Law and Procedure - s 5F Appeal by Crown - rejection of evidence which substantially weakens the Crown case - appropriateness of appeal during the course of a trial by jury - whether evidence should have been rejected under s 137 of Evidence Act.

CRIMINAL LAW - Crown appeal against leniency - supply not less than commercial quantity of methylamphetamine - plea of not guilty - Form 1 of having a false drivers license.

Crown appeal against sentence - break, enter and steal in circumstances of aggravation - break and enter a place of divine worship with intent to steal - pleas of guilty - subjective circumstances - special circumstances - applicable sentencing regime - range of objective seriousness of offences

Criminal Practice & Procedure - Crown appeal against inadequacy of sentence - breaches of bond and armed robbery - no reasons for departure from guideline - whether sentencing remarks are "evidence" in terms of proviso to Criminal Appeal Act s12(1) - admissible on appeal although not tendered before sentencing Judge.

Criminal Law - sentencing - Crown appeal - multiple offences - Crown not seeking any variation in overall sentence - Court's discretion to dismiss appeal.

appeal against sentence - assault with intent to rob - aggravated car-jacking - pleas of guilty - special circumstances - sentencing proceedings - parity - proportion between non-parole period and total sentence

CRIMINAL LAW - appeal against severity of sentence - supply commercial quantity methylamphetamine - ongoing supply - possess prohibited drug on Form 1- plea of guilty - whether sentencing judge erred in considering utilitarian value of plea - whether appropriate discount allowed for plea - whether characterisation of offence as "middle range" of objective seriousness an error - whether s 21A and 54B Crimes (Sentencing Procedure) Act erroneously applied - application of s 21A and 54B of Crimes (Sentencing Procedure) Act and effect on sentencing - whether sentences manifestly excessive.

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Need to fund litigation - Whether moneys may be released for costs of litigation other than proceedings in which Mareva relief subsists.

TAXES AND DUTIES - Goods and Services Tax - Solicitors' bill of costs to United States client for interlocutory proceedings in Australia - Three US resident persons in Australia for the purpose of the proceedings - Whether the supply of services was GST-free as a supply to a non-resident who was not in Australia when the thing supplied was done in terms of item 2 in the table to A New Tax Act (Goods and Services Tax) Act 1999 (Cth), s 38-190(1) - Whether the common law relating to the presence of a non-resident corporation in the jurisdiction for amenability to the courts applies - Whether a non-resident corporation is present in Australia only when it carries on business here through a fixed place of its own or that of an agent of dependent status and for a sufficiently substantial period of time - Appeal on question of law from a review panel under the Legal Profession Act 1987, s 208L that applied Goods and Services Tax Ruling GSTR 2000/31 that a non-resident corporation is in Australia if a representative is in Australia when the Commissioner of Taxation had taken a different view in Draft Goods and Services Tax Ruling 2002/D8 and in Draft Goods and Services Tax Ruling GSTR 2003/D9

PROFESSIONS AND TRADES - builders - Building and Construction Industry (Security of Payment) Act 1999 - whether effect of section 25(4)(a)(iii) is that once a judgment has been obtained, that judgment cannot be attacked on the basis of jurisdictional error in the certificate which led to the entry of the judgment - ADMINISTRATIVE LAW - prerogative writs and orders - Building and Construction Industry (Security of Payment) Act 1999 - whether effect of section 25(4)(a)(iii) is that once a judgment has been obtained, that judgment cannot be attacked on the basis of jurisdictional error in the certificate which led to the entry of the judgment

Appeal decision of Local Court Magistrate - calculation of interest, permanent stay

CORPORATIONS - winding up - voidable transactions - extension of time for liquidator to initiate challenge - particular party targetted - party domiciled in foreign country - need for party to be defendant and to be served - construction of s.588FF(3)(b) - conditions necessary for extension to be granted

PROCEDURE [742] - Contempt, attachment and sequestration - Disabilities of persons in contempt - Refusal of court to hear - Whether there must be formal finding of contempt - Where Court can see that order has plainly been disobeyed.

Criminal law - sentencing - aggravated sexual assault - standard non parole period - mental disability - objective seriousness

PROCEDURE - Review of decision of Registrar on Motion seeking extension of time to file appeal (as distinct from leave to appeal) - Discontinuance of appeal - Twenty-eight day rule -Lower court written judgment delayed for three months after oral judgment given - Holding summons filed - Use of personal computer by prisoner for educational purposes.

Practice and Procedure - Splitting of cases

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - order for removal of caveat - principles for making such an order - EQUITY - injunctions - interlocutory injunction requiring continuance of personal relationship of trust and confidence - application to facts of this particular case

SENTENCE - CROWN APPEAL - INADEQUACY - ATTACK ON POLICE OFFICER - REAL EFFECT OF SENTENCES HAVING REGARD TO CONCURRENT CUSTODY - INDIGENOUS AUSTRALIAN ABORIGINALS - SPECIFIC SOCIAL AND ECONOMIC HANDICAPS - DISCRETION OF APPELLATE COURT IMPLEMENTED

Criminal Law - detain for advantage - appeal against severity of sentence - no question of principle

Criminal Law - aggravated sexual intercourse without consent - appeal against conviction and severity of sentence - no question of principle

Criminal Law - detaining with intent to obtain advantage - appeal against severity of sentence - no question of principle

Listening devices - microphone transmitting to recording device - whether microphone alone a listening device - interpretation of Listening Devices Act 1984. D

Evidence - Fact and Opinion - Opinion Rule - Lay opinions - Evidence Act 1995 ss 76(1) and 78.

Corporations Law. Application to set aside statutory demand. Genuine dispute as to part of debt. Demand reduced. No matter of principle.

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - construction and interpretation of contracts - notice given under contract - principles for construction - CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - breach of contract - notice to complete and notice to bring contract to an end - principles governing construction

CORPORATIONS - Winding-up - Plaintiff liquidator seeking recovery of two payments to director under s 598(2) and (4) of Corporations Act 2001 (Cth) - Alleged negligence, default and breach of fiduciary duty - Whether duty of director not to prefer personal interest to company's interests - Whether money recoverable on other basis - Whether sum recoverable as loan - Plaintiff's onus of proof in showing nature of money advanced to defendant - Nature of loan - Nature of restitutionary obligation to repay - Whether and from when interest payable - Whether withdrawal of funds from bank constituted breach of defendant's director's duties - Whether amount consequently recoverable by liquidator under s 598(2) of Corporations Act - Whether shareholders can ratify director's breach where latter leads to company's insolvency - Whether defendant entitled to relief under s 1318 Corporations Act. - (CTH) Corporations Act 2001 ss 598, 1318.

EVIDENCE - discovery - where corporate counsel commissioned expert report into accident soon after accident occurred - claim for discovery of expert report - whether report privileged - s 119 Evidence Act 1995 - Pt 23 r 1(c) Supreme Court Rules - whether dominant purpose and existence of anticipated proceedings to be assessed at time report commissioned or when report brought into existence - where report had multiple purposes - whether there was a dominant purpose -where report commissioned by corporate counsel on behalf of company within the scope of employee's authority - whether relevant dominant purpose is that of corporate counsel or company - distinction between employee's purpose in commissioning report and company's purpose - whether at time report was commissioned there was an anticipated legal proceeding - if privilege existed, whether subsequently lost - ss 122 and 123 Evidence Act 1995 - whether common law of waiver relevant - whether privilege lost by voluntary disclosure - distinction between disclosure of substance and effect relating to an expert report - whether disclosure of substance

Limitation on action - extension application

CORPORATIONS - ASX Listing Rules - principles of interpretation - whether serious question to be tried re alleged breach where ASX states it does not adopt literal construction on which allegation of breach based - CORPORATIONS - share buy backs - whether every selective buy back entails an "offer" triggering lodgment obligation under s.254E - observations on concept of "acquisition" in buy back provisions - CORPORATIONS - meetings of members - duty to provide information with notice of meeting - whether serious qiuestion to be tried as to insufficiency of disclosure

Torts - Negligence - Motor vehicle accident - Child pedestrian running from behind parked vehicle - Reasonable response to risk - Opportunity to avoid collision.

CROSS-VESTING - notice of motion seeking order under s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) - where special federal matter and non special federal matter claims pleaded - attraction of non federal jurisdiction to a case involving the exercise of federal jurisdiction - where all aspects of the plaintiff's claim arise from common factual matrix - whether claims other than the special federal matter within the jurisdiction of the Federal Court - whether "special reasons" why matter should be heard in Supreme Court - relevance of specialist Technology and Construction List - COSTS - where defendant neither opposed nor consented to making of order under s 6(3) - whether costs should follow the event

CONVEYANCING [148] - Land titles under the Torrens system - Certificates of title and Crown grants generally - Issue and form of certificate - Application for cancellation of certificate and issue of new certificate of title - Order may be made in proceedings in which court makes a determination as to an estate or interest in land - What constitutes.

CRIMINAL LAW: - Appeal - appeal against conviction and application for leave to appeal against sentence - aggravated sexual assault - no question of principle in conviction appeal - whether sentence manifestly excessive - whether sentencing judge took into account irrelevant matter

Criminal law - sexual offences - identification issues - Evidence Act, s116 - rule 4 - directions as to meaning of "beyond reasonable doubt" - impact of media publicity upon fair trial - directions about suspect's refusal to answer questions in ERISP - directions about lies - consciousness of guilt directions - complainant's evidence as to belief of accused's guilt in matter involving inference - juror misconduct - unauthorised view and experiment - admissibility of evidence of same - appropriate directions to juries prohibiting independent enquiries (D)

NEGLIGENCE - Medical negligence - Breast reduction surgery followed by subsequent infection and later scarring - Failure to examine patient before discharge and allowing her discharge - Duty to warn as to risks of operation - Nature of warning - Duty of medical officers - General damages - Bullock orders.

SECURITY FOR COSTS - Part 51 r. 16 of Supreme Court Rules - Interpretation -"Special circumstances" - Whether impecuniosity of itself may constitute special circumstances - Whether other circumstances relevant.

DEFAMATION - Section 7A of Defamation Act (NSW) 1974 - "Jury trial" - Trial process. - NEW TRIAL - Section 126(2) of District Court Act (NSW) 1973 - Test to be applied - Whether the verdict is one at which no reasonable jury could have arrived - Trial judge not to question correctness of jury verdict.