Cases and authorities

Criminal appeal - sentencing - Crimes Act 1900, s52A(3)(c) - custody dispute contributed to dangerous driving hitting pedestrian - victim known to driver - White guideline - "abandonment of responsibility". ND

PRACTICE AND PROCEDURE - VEXATIOUS LITIGANTS - The inherent power of a court to restrain a person from making unwarranted and vexatious interlocutory applications without leave - History of unmeritorious satellite litigation - Repeated refusal to accept rulings - Repeated refusal to limit oral argments to time periods allotted by the Court - Repeated applications for judges to disqualify themselves on grounds of apprehended bias - Proper conduct of hearings in the courtroom - Frequent and intemperate displays of rudeness and discourtesy, and scurrilous and baseless allegations - Form of orders. D

CRIMINAL LAW - Sentence - supplying commercial quantity of ecstasy, supplying cocaine - whether sentences excessive - whether parity of sentence required with another offender whose offences were related to, but independent of, the applicant's

INSURANCE - indemnity insurances - employment practices liaiblity policy - sums recovered by dismissed employee suing for breach of contract - whether "liquidated damages" - whether referable to express payment obligation - whether termination in breach of contract is "wrongful termination"

CORPORATIONS - winding up - statutory demand - application to set aside - genuine dispute not shown - one ground unavailable because not appearing from supporting affidavit

RESTRAINT OF TRADE - salesman employed by real estate agency - employer's interest - reasonableness of geographic and temporal restraints

PROCEDURE - Mareva type orders - defective notice of motion - assets held in lawyer's trust account - test to determine whether prima facie case has been made out - injunctive relief to be granted on limited basis

Transmission by email of magistrate's personal notes in proceedings - apprehension of bias - integrity of judicial proceedings - need to disqualify magistrate by virtue of exposure of his notes to the parties.

Family Law. Application under Property Relationships Act for adjustment of parties' property interests. Whether a global approach is appropriate. Orders made.

Sentence - manslaughter - unlawful and dangerous act - offender suffering from bipolar disorder.

CORPORATIONS - winding up - joint stock company incorporated by statute - whether body to which Div 6 of Pt XII of Companies (New South Wales) Code applies - whether body having more than 5 members - ascertaining membership where most persons on register acknowledged or presumed dead - whether relevant Code provisions continue in force - whether winding up order is in respect of matter "arising before" 1 January 1991 - necessity for facts warranting winding up to exist both before 1 January 1991 and when order made - whether plaintiff has liability making him a contributory and therefore competent applicant

CORPORATIONS - winding up in insolvency - alleged defect in affidavit accompanying statutory demand - does not vitiate demand - does not forestall presumption of insolvency

Exercise of judicial discretion - onus on applicant to establish error - pre-trial publicity.

EVIDENCE - CRIMINAL LAW - Evidence Act, s 65 - Whether trial judge erred in refusing to admit the evidence of a statement made by Crown witness - Whether witness was available to give evidence - Whether facts asserted in witness statement were fabricated - Whether respondent would sustain relevant prejudice were the statement to be admitted.

Juvenile Justice Report not obtained - mandatory provision for person under 21 who was a child at time of charge.

NEGLIGENCE - road accident - challenge to findings of trial judge - no question of principle

Workers Compensation - Compensation payable on death - Definition of "injury" - Workers' Compensation Act 1987 ss4, 15, Schedule 6 Part 3 - Workers' Compensation Act 1926

Incompetent appeal - extension of time - futility - grounds of appeal not argued below - question with respect to matter of law and procedural fairness - misconception of legal issues and of the grounds of appeal - legislature should provide an alternative to an appeal in this Court where small claims are involved.

PROCEDURE - whether amended statement of claim discloses a sustainable cause of action - whether SCR Pt 13 r 5 dismissal or stay, or SCR Pt 15 r 26 striking out, should be ordered - whether res judicata or issue estoppel applies - BANKRUPTCY - consideration of the right of a bankrupt to enforce proceedings to recover damages for injuries to the bankrupt's estate - whether s 116(2)(g) of the Bankruptcy Act applies

Succession - Family Provision - Claim by former wife - Plaintiff and Deceased were divorced in 1965 - Plaintiff subsequently married her present husband, by whom she has three children - Financial and material circusmtances of Plaintiff - Obligation of Plaintiff to place before the Court as fully and as frankly as possible all available details - Whether Plaintiff has established relevant need - Failure of Plaintiff to enforce maintenance and costs orders against Deceased - Factors which warrant the making of the application - Competing claims of beneficiaries.

REAL PROPERTY - caveat - ex parte application for extension refused - circumstances in which order under s 74 O will be made

Refusal of adjournment - rehearing not granted - denial of procedural fairness - practice of seeking adjournments by facsimile and telephone - non-attendance at hearing.

CORPORATIONS - statutory derivative action - meaning of "an officer or former officer of the company" - unresolved question whether director removed from office - whether appropriate to grant leave when notice requirement in s.237(2)(e)(i) not satisfied

Leave to appeal - appeal against sentence - Aggravated robbery - Sentence - manifestly excessive - parity in sentencing - sense of grievance

FAMILY LAW - De facto relationship - Division of assets - Whether Master carried out s20 balancing test correctly - Whether an adjustment should be made - ND

DAMAGES - personal injury suffered in motor vehicle accident - whether qualifying under applicable thresholds of Motor Accident Act 1988 - damages for non-economic loss - damages for future economic loss - alleged exacerbation of injury by pre-existing condition and subsequent pregnancy. Judicial failure to have regard to certain evidence (principally medical) - failure to refer at all to appellant's explanation. Re-trial rather than substituted verdict

CONTRACT - Breach due to refusal to accepts goods subject to the contract - Whether trial judge correctly assessed damages for loss of profit - ND

CORPORATIONS - voluntary administration - court's approval of transfer of shares - relevant considerations

Appeal from costs assessor - costs payable as a result of an order on indemnity basis - any challenge should have been brought before a panel - application of test - sufficiency of reasons - no matter of law.

Leave to file statement of claim against defendant in liquidation

Damages - Reasons - No question of principles

Manslaughter - Infant - Father - Killing of 3 month old baby by father - Death as a result of baby being shaken rapidly, strongly and excessively by father, accompanied by a throwing down onto furniture and striking the baby in the abdominal region with his fist - Serious case of manslaughter - Custodial sentence appropriate - Statistics - Use of statistics - Anticedents - Testimonials - Rehabilitation - Familial and presently incurable medical condition likely to shorten lifespan - Special circumstances.

Appeal against conviction - whether verdicts inconsistent - whether verdicts unreasonable - significant contradictions between complaint and trial evidence - verdicts of guilt not open on evidence - convictions quashed

INSURANCE - DIRECTORS AND OFFICERS INSURANCE - Plaintiff sought indemnity under policy for costs of civil proceedings brought by former employer and criminal proceedings in which nolle prosequi granted - whether insurer entitled to rectification of policy - period of cover - date of entry into policy - construction of insuring clauses and exclusion clauses - whether dishonest, fraudulent or criminal conduct - whether plaintiff involved in contravention of s 205 Corporations Law by provision of financial assistance for purchase of company’s own shares - whether claim notified during policy period - whether official ‘Inquiry’ commenced prior to policy period - whether non-disclosure or fraudulent misrepresentation by plaintiff - whether plaintiff entitled to indemnity under professional indemnity policy - whether insurer estopped from relying on matters not previously relied upon - whether insurer acted in bad faith by obtaining documents through misrepresentation - CORPORATIONS LAW - DIRECTORS INDEMNITY - whether plaintiff entitled to indemnity under company’s Articles of Association or common law - whether plaintiff’s costs arose out of conduct involving lack of good faith - whether nolle prosequi amounts to acquittal or judgment in favour - whether obligation of good faith owed to plaintiff, implied from board resolution - whether former employer breached such obligation by cancelling policy - DEEDS AND INSTRUMENTS - CONSTRUCTION - Deed of Release - whether general release contained in Deed extended to bar claim for criminal defence costs - limitation of general words of release to matters in contemplation of parties at time deed entered - whether unconscionable for former employer to rely on deed - whether inequality of knowledge

CONTRACTS - construction of clause in contract permitting termination of arbitration - whether person purporting to exercise contractual power to terminate arbitration was acting reasonably - WORDS AND PHRASES - monitor (v)

Negligence - breach of duty - foreseeability of injury Factual error - Inconsistency of verdict

PRACTICE & PROCEDURE - pleadings - respondent injured in the course of employment by the appellant when he fell from a motor vehicle - whether in the circumstances of the accident the proceedings were caught by the Motor Accidents Compensation Act 1999 ("the Act") with the effect that the respondent was precluded from commencing proceedings because he had not complied with ss 70 and 108 of that Act - whether the fact that the respondent's pleading was framed as a breach of duty of care by his employer meant it avoided the operation of the Act - STATUTORY INTERPRETATION - whether the respondent's proceedings constituted a "claim" with respect to a "motor accident" within the meaning of the Act. - D

Evidence - re-examination - applicable principles

defamation - security for costs - plaintiff resident outside the State

Family Provision. Application by deceased's de facto partner and daughter. Orders for provision made. No matter of principle.

defamation - costs of the proceedings - commencement or continuation of proceedings in Supreme Court - District Court jurisdiction

PROCEDURE [676] [692] & [741]- Contempt- Injunctions to restrain contempt- When given- Religious pressure brought to bear on litigant may amount to contempt- How far misrepresenting court's final judgment constitutes contempt.

Crown appeal - robbery in company - detaining for advantage - failure to comply with undertaking to provide assistance to law enforcement authorities - parity

CRIMINAL LAW AND PROCEDURE - SENTENCE - PARITY - NO ERROR IN APPROACH OR ASSESSMENT OF TRIAL JUDGE

CRIMINAL LAW - appeal against severity of sentence - Discount for plea of guilty - Fernando considerations - whether sentence excessive - Form 1 offences - principle of totality.

Appeal against sentence - Sexual assault - Two separate committals - Multiple counts in each committal - Complaints by victims - Voluntary disclosures by applicant - Offences committed over substantial period - Aggravation - Person in authority - Stepfather - Discount for plea of guilty - Discount for voluntary disclosure - Relationship between overall sentence and non parole period - Power of Court to impose non parole period greater than three quarters of the term of the head sentence - Special circumstances - Finding of special circumstances not mandatory, depends on all the circumstances.