Cases and authorities

Costs - The Calderbank principles may be applicable in probate proceedings.

PRACTICE AND PROCEDURE - stay of proceeding - arbitration clause in partnership agreement - defendant commences proceeding for dissolution of partnership in South Australia - plaintiff commences proceeding in this Court to restrain South Australian proceeding in absence of arbitration, and to restrain breach of partnership agreement, and applies for stay of South Australian proceeding - defendant applies for stay of proceeding in this Court - relevant considerations

ADMINISTRATIVE LAW [38]- Review of determination to fix price of batch chickens- Approach of court- How purpose of Committee discovered- Whether Committee acted within mandate- On facts no order made. PROCEDURE [750]- Declaration- Administrative decision allegedly invalid- All affected persons need to be parties. WORDS & PHRASES- "Class".

Home Building Act: - A contracted with B, for B to do residential bulding work. B subcontracted that work to C. C became insolvent, and did not complete the work. B and C each obtained insurance cover under Pt 6 of the Act, but both insurers became insolvent. - Held: B was not entitled to be indemnified under C's policy, and therefore was not entitled to be indemnified by the State under P 103I of the Act.

Trusts and trustees - Charities - Trustee in liquidation - Whether trust funds constitute a dormant fund - Judicial advice.

Restraint of trade - confidential information - Injunctions - no question of principle.

CORPORATIONS - voluntary administration - extension of convening period - large business necessitating extended sale process - (no question of general principle)

NEGLIGENCE - Personal injury - Plaintiff injured during accident in course of employment - Whether employer vicariously liable - Whether employer breached a non-delegable duty of care to provide a safe system of work - Whether employee was contributorily negligent. ND

NEGLIGENCE - No evidence to explain lift breakdown - Statutory claim pursuant to s.67 of the Construction Safety Regulation 1950 - Evidence of unforeseen, unexplained occurrence not sufficient. - INDEMNITY CLAUSES - Construction - Natural meaning of words used- Not available when party sued in respect of own conduct.

EXPERT EVIDENCE - s.136 of Evidence Act 1995 - Operation - Standard of proof of expert evidence - Finding made "with great reluctance" - Operation of principle in Makita v Sprowles. - ERROR OF LAW - Insufficiency of evidence not an error in point of law - Circumstances in which judicial discretion may be erroneous in point of law - Operation of s.136 of Evidence Act 1995 - Weight of evidence not an error in point of law.

Contract - Constructive Trust - Remedy

EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Appropriate balancing exercise.

CRIMINAL LAW - SENTENCE - Whether sentence imposed by trial judge manifestly inadequate - Objective seriousness of offence - Whether matters on Form 1 properly taken into account - Discount for utilitarian value of plea of guilty - Whether "double discount" allowed. - FORM 1 MATTERS - Offences on a Form 1 constitute an admission of guilt but not a conviction - Offender not to be sentenced for more than principal offence.

Criminal law - Appeal - Sentence - Drug importation - Courier - Heroin - Commercial quantity - Plea of guilty - Amendment to law between dates of plea and sentence - Relevance to sentencing discretion - Words and phrases: "in addition to any other matters".

Criminal law - Appeal - Multiple counts in indictment - Inconsistent verdicts - Principles to be applied - Logic, reasonableness and common sense.

Criminal law - appeal against conviction - certificate by trial judge - whether conviction unsupported by the evidence or unreasonable - tests to be applied by appellate court whether inference of necessary intent for murder available - whethre power to substitute a convictoin for manslaughter - new trial limited to manslaughter ordered.

CRIMINAL LAW - SENTENCE - Griffiths Remand: s. 11 of the Crimes (Sentencing Procedure) Act (NSW) 1999 - Whether appropriate when a custodial sentence likely.

SENTENCE - Application for leave to appeal against the severity of the sentence - whether sufficient weight given to applicant's youth - whether too much emphasis on general deterrence.

Criminal law - Appeal - Pecuniary Penalty Order - Pecuniary Penalty Order based on several convictions - Quashing of some such convictions - Time for appeal against making of Pecuniary Penalty Order - Amendments to legislation concerning Pecuniary Penalty Orders - Effect of legislative amendments.

Whether the proper officer of a company can claim privilege against self-incrimination where a subpoena duces tecum is served on the corporation - meaning of "proper officer" - whether the "proper office" requires the express authority of the company to answer the subpoena - whether it is oppressive on the accused or an abuse of process for a corporation to comply with a subpoena where the accused is the sole director and secretary of the corporation - whether the accused is being asked to assist in the preparation of the Crown case - whether the process of gathering documents is an exercise of executive or judicial power.

Criminal Practice & Procedure - Crown appeal against sentence - Firearms Act - possession of large number of prohibited and unregistered weapons - collector - security risk - importance of maximum penalty - deterrence and denunciation - unsuitability of periodic detention

Appeal from Dust Diseases Tribunal of NSW - Questions of law (s 32) - Adequacy of reasons

CORPORATIONS- Hired machinery- Debts unpaid- Alleged preferences under s 588FF of the Corporations Act 2001- Heavy onus on payee. CORPORATIONS- How purpose is established- Question of fact- State of mind of corporation- How is it assessed that corporation had suspicion- Whether no reasonable grounds for suspecting insolvency. EVIDENCE- Jones v Dunkel- Two aspects of rule- Whether test objective or subjective- Court has regard to the material available to a party and what was deployed in evidence by that party.

NEGLIGENCE - PRACTICE AND PROCEDURE - personal injury - leave to appeal refused - trial judge examined the facts surrounding the opponent's fall and correctly applied the law to conclude that the claimant had owed a duty to the opponent in the circumstances. (D)

CONTRACT - CONSTRUCTION - OPTION - Whether obligation to perform remediation work on land survived exercise of option - whether obligation to complete contract for sale conditional on completion of remediation work - FRUSTRATION - Whether damages for loss of bargain may be awarded when one party to contract fails to complete at stipulated time and contract is thereafter frustrated by operation of law but before innocent party rescinds - DEPOSIT - UNJUST ENRICHMENT - Whether vendor would be unjustly enriched if it retained deposit under a frustrated contract - PENALTY - Who has onus of proof.

Criminal law - Manslaughter - Plea of not guilty - Provocation - High culpability - Events subsequent to killing - Hiding body - Revealing of whereabouts of body after many months - Remorse - Absence of remorse - Assistance to authorities not effective

Plaintiff's application to amend to add fresh imputations - after unsuccessful s7A trial - after partially successful appeal - new trial confined to one imputation - res judicata - Anshun principles - status of Court of Appeal's order

FAMILY LAW - adoption - name of child - change to name of child - whether adoption under Adoption of Children Act 1965 or Adoption Act 2000 - whether alteration of child's first forename in his best interests - whether addition of new third forename connected with adoptive family is in his best interests

PRACTICE AND PROCEDURE - court-appointed receiver - receiver's authority to delegate

Negligence - Maritime collision - Collision - Voyager - Melbourne - Psychological injury - Post Traumatic Stress Disorder - PTSD - Loss of chance - Pension - Damages

Evidence: Admissibility of record of interview - s 138 of Evidence Act (NSW) - s 90 of Evidence Act (NSW) - Crimes Act (Cth) s 231(g) - Arrest - when it occurs - right to silence - exercise during interview - Discretion and public policy

Criminal law - Manslaughter - Assault - Affray - Plea of not guilty - Killing in company - Gang - Drugs - Revenge - Youth of prisoner - Remorse - Rehabilitation prospects - Educational courses in prison - Resentence - Statistics

CORPORATIONS - winding up - application to terminate winding up - proper applicant - need for proof of solvency - if all debts not paid out, need for independent accountant's report on solvency - if debts paid out with money contributed, need to have money contributed in form of capital

CRIMINAL LAW - Detaining for advantage - Robbery - Consistency of differing verdicts for different counts - Reasonableness of verdicts - Warning pursuant to s 165 of the Evidence Act 1995 - Directions to jury regarding fact that accused did not give evidence - Claim of Right - Acting on behalf of another - Whether sentence manifestly excessive - Approach to be taken in sentencing - Totality of sentences.

Resemblance evidence - identification - other circumstantial evidence - video of accused said to be "re-enactment" of offence

PRACTICE AND PROCEDURE - notice to produce served by plaintiff - next step in proceedings is determination of application for security for costs - whether plaintiff, having fully pleaded its claims, has legitimate need of documents sought

Parties to litigation, criminal proceedings, proceedings to recover penalties, authority of party seeking to commence prosecutions - party claiming to proceed to recover penalties as a common informer - availability of the process of the Supreme Court for those purposes, unavailability of offences of obtaining benefit by false representation and perverting the course of justice to support a private right of action.

EQUITY - asset preservation order - making of order in proceedings under Property (Relationships) Act - (no question of general principle)

Costs - Whether "expense or loss" include the costs of retaining a solicitor and/or counsel - Indemnity costs - Appearing before the Court is a public duty - Conduct money - Compliance with Supreme Court Rules

CORPORATIONS [215], [216] - Winding up - Winding up by Court - Grounds for winding up - Insolvency - Application to set aside demand - Offsetting claims - What constitute - Countervailing claims arising out of same subject matter but not directly between same parties - For defect or "some other reason" - Some other reason - Substantial injustice - Existence of countervailing claims which do not fall within rubric of "offsetting claims".

EQUITY - asset preservation orders - ancillary disclosure order - whether ancillary disclosure order should be made to assist plaintiffs to ascertain whether defendants have breached asset preservation orders made at an earlier time

Error of law - Fair Trading Tribunal - Consumer Trader and Tenancy Tribunal Act 2001 (NSW)

SENTENCE - Crown appeal against inadequacy of sentences - principles in Pearce.

Criminal law - appeal against conviction for murder - notice of abandonment of appeal - application for leave to withdraw notice of abandonment - evidence by person who might reasonably be supposed to have been criminally concerned - Evidence Act s 165(1)(d) - evidence by co-accused - prior consistent statement - Evidence Act s 108(3) - admissions made while in custody - separate trials - right to silence - hearsay evidence - Evidence Act s 165(1)(a) - whether manslaughter verdict available - evidence of prisoner informer - cross-examination of accused

Limitation Act 1969 - Section 60I(1)(a)(i) - (iii)