Cases and authorities

Conviction appeal - complainant drugged - no memory of assaults which were videoed - opinion as to whether she consented or appeared to consent irrelevant - s79 Evidence Act 1995 - also rightly rejected as oppressive - sentence appeal - substantial accumulation appropriate where substantive additional offence

INSURANCE - Liability insurance policy - Exclusion clause - Dishonesty and fraud - Requirement of judgment or final adjudication - Whether insurer can resist giving indemnity prior to judgment or final adjudication.

BAILMENTS -Pledges - Whether pledge inconsistent with mortgage - MORTGAGES - Chattel securities - Whether mortgage inconsistent with pledge - CRIMINAL LAW - Further appeal from conviction of lending money on the security of pawned goods without a licence - Whether documentation of transactions as mortgages inconsistent with goods being "pawned goods".

CORPORATIONS - RECEIVERS, MANAGERS AND CONTROLLERS - liability of receivers under s 419A(2) Corporations Act to pay rent or other amounts for leased third party property - circumstances in which receivers have such a liability - scope of "rent or other amounts" - whether amount payable under lessee's covenant to indemnify lessor for GST is "rent or other amounts" - factors affecting the courts discretion under s 419A(7) Corporations Act to excuse receivers from liability - ability of the court to excuse liability that accrued in the past under s 419A(7) - PROCEDURE - costs - of court application seeking an indulgence - WORDS AND PHRASES- "excuse"

INSURANCE - APPLICATION TO SUE INSURER DIRECTLY - RIGHT OF INSURER TO DISCLAIM - FEDERAL AND STATE LEGISLATION

Plea of Guilty to Manslaughter

PROCEDURE - Costs - Two or more unsuccessful defendants - Whether an order for costs against co-defendants is joint and several - Whether the rule requires "partners in crime" - Whether more is required than judgment against co-defendants - Whether sufficient segregation of defences to justify an order that each defendant pay the plaintiff's costs of issues against it

Commercial transaction - one party a solicitor - negligence - breach of fiduciary duty - s 23 of the Limitation Act 1987.

Succession - Family Provision - Claim by adult daughter - Financial and material circumstances of Plaintiff - Whether Plaintiff has been left without adequate provision for her proper maintenance - Competing claim of other beneficiary (widow of Deceased) - Cross-claim by widow for payment of debt owed by Deceased - Loan made by widow and acknowledged by Deceased - Loan repayable upon demand - No demand made during lifetime of Deceased - Whether claim is statute barred. - Limitation period commences on date when loan was made - Obligation of personal representative to fulfil contractual obligations of deceased considered.

CORPORATIONS - voluntary administration - adjournment of winding up application - how order for costs on winding up application treated when administration begins after argument of winding up application and before decision on winding up application - need for administrator to consider both what transactions would be preferences or otherwise voidable if company entered a creditors' voluntary winding up, and if company were wound up by the Court - requirements for entitlement to vote at creditors' meeting - manner of voting at creditors' meeting - how section 440A Corporations Act 2001 affects entitlement of creditor to a winding up order ex debito justitiae

CORPORATIONS [212]- Statutory demand- Application to set aside- Requirement to state grounds of dispute with evidence within 21 days- Whether also requirement to provide hearing with admissible evidence as to each element of cause of action in order to demonstrate genuine dispute- What is an equitable debt?- Whether company or another person principal debtor- What is meant by substance of guarantee transaction? WORDS & PHRASES- "Genuine dispute"- "Is satisfied"- "Debt".

CRIMINAL LAW - Appeal by DPP under s5F of the Criminal Appeal Act - rejection by trial judge of evidence arising from illegal search - whether evidence should have been admitted notwithstanding illegality

The case turns on its facts.

Indemnity costs - asset preservation orders.

LEGAL PROFESSION - Solicitors - Solicitor acting for lender - Whether also acting for guarantor - DAMAGES - Lender recovers judgment against guarantor - Lender also sues solicitor - Whether damages suffered - When and how damages against solicitor assessed.

Administrative Law - judicial review - decision made by the Minister for Education and Training - entry into a selective high school refused because plaintiff not an Australian or New Zealand citizen or a permanent resident of Australia - whether Minister and Department blindly applied the residence requirement without regard to special circumstances - whether an exception was available - whether residence requirement was contrary to s34(5) of the Education Act 1990 as racially discriminatory

CORPORATIONS - Winding Up - Statutory Demand - Whether mediation provision would ground a stay of proceedings to recover a debt - Whether a claim to a debt subject to a stay can ground a statutory demand - Sponsorship of football club - Whether genuine dispute as to implied terms that NRL salary cap rules would be obeyed and plaintiff had right of refusal to work on defendant's Oasis Project

CORPORATIONS - winding up - application for termination of winding up following execution of deed of company arrangement - deed extinguishes some debts but leaves substantial related party debts - purported contractual subordination - contract terminable or variable by mutual consent - whether future financial stability sufficiently assured

Judicial Review - whether Apprehended Violence Orders validly issued - whether order for detention valid - whether Magistrates should be restrained from issuing orders

CRIMINAL LAW AND PROCEDURE - AGGRAVATED DANGEROUS DRIVING CAUSING DEATH - SENTENCE - LEAVING SCENE OF COLLISION - FURTHER OFFENCE ON FORM 1 - AVOIDANCE OF DOUBLE PUNISHMENT - ASSERTION OF POTENTIALLY MITIGATING CIRCUMSTANCE BY OFFENDER - NOTICE IF SOUGHT TO BE CONTROVERTED - PRIOR OTHERWISE GOOD CHARACTER - OBSERVATION OF SENTENCING PATTERNS

Criminal law - conviction appeal - whether reasonable hypothesis inconsistent with guilt - directions on propensity - directions on silence - fresh evidence

Criminal Practice and Procedure - Judgment and Punishment - Discount for guilty plea and contrition - whether inadequate - whether sentence manifestly excessive.

Criminal Law and Procedure - Judgment and Punishment - Application of Pearce v The Queen - whether pronouncement of sentence manifested error - sentence manifestly excessive.

LIMITATION OF ACTIONS - Commonwealth authority - Right of action by employee for personal injuries - Statutory removal of that right - Exception requiring election - Election made - When did cause of action arise?

LIMITATION - extension of limitation period - no question of principle

Practice and Procedure - application to set aside consent orders - judgment not entered - fraud - capacity - whether should be by way of separate proceedings -

CORPORATIONS - Practice and Procedure - Whether to transfer proceedings to Federal Court - Whether applicant needs to be a creditor - Whether claimant of unliqudated damages is a creditor - Whether views of Federal Court Judge seised of related proceedings in that Court should be ascertained

defamation - capacity - whether the plaintiff should be directed to include additional material in the matter complained of

PRACTICE AND PROCEDURE - CONTRACT - TENDER - REFERENCE - Whether Defendant's conduct in non-disclosure of additional information in its possession was misleading and/or deceptive - Whether Referee erred in decision - Whether Referee's Report should be adopted HELD: Referee's Report should be adopted - Plaintiff's Notice of Motion for rejection of Report dismissed - Defendant entitled to orders sought in its Notice of Motion that Report be adopted

ESTOPPEL - former adjudication and matters of record or quasi record - when issue estoppel arises - respective roles of trial judge and appellate court's findings in creating issue estoppels - relevance of remarks of High Court Justices on application for special leave to issue estoppel - role of error in earlier judgment to whether issue estoppel arises - whether "special circumstances" exception to issue estoppel - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - Statute of Frauds, section 4 - what is a "contract for the sale or other disposition of land or any interest in land" - possibility of an estoppel against application of the Statute - whether part-performance can entitle plaintiff to recover damages if contract breaches Statute - DAMAGES - measure and remoteness of damages in actions for breach of contract - circumstances in which costs of appealing are recoverable damages - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - illegal and void contracts - application of section 23C(1)(a) Conveyancing Act to contract for disposal of interest in land

defamation - justification defence - contextual truth defence - failure to comply with legal obligations - publication of imputations that further injure the reputation of the plaintiff - interstate defences - aggravated damages

defamation

Termination of residential tenancy agreement - advance payment - variation of agreement or fresh agreement so as to create a fixed term tenancy after holding over - effect of advance payment.

Practice and procedure - application to disqualify from hearing - relevant principles where judge is former adviser

CONTEMPT - ACKNOWLEDGED - APOLOGY - TECHNICAL LEVEL - DEFENDANT SHOULD PAY COSTS OF PLAINTIFF

Evidence - no question of principle

defamation - particularisation of extrinsic facts

Move to appeal against decision of trial judge to refuse permanent stay of proceedings - Trial concluded with finding of guilty - Whether there was anything left of substance to stay - Whether refusal of leave to appeal will prevent same grounds from being raised in subsequent appeal from conviction - Non-reportable - Non-distributable

LIMITATION OF ACTIONS - procedure - extension of limitation period may be granted after proceedings commenced

identification and registration of companion animal - responsibilities for control of dogs - procedures for dealing with seized animals

EQUITY - interlocutory injunction - interlocutory mandatory injunction - contract of personal services - continual superintendence

Administrative Law - Administrative Decisions Tribunal - Replacement of Tribunal Member - Unavailability of Member - Lack of consent of parties - Constitution of new Tribunal - Whether discretion of Acting President - Tribunal wrongly constituted - Appealable decision - Administrative Decisions Tribunal Act 1997 ss 22, 79, 112

Development applications granted by Commissioner in Land & Environment Court - Appeal by Council - Whether matter should be remitted to a different Commissioner on basis of reasonable apprehension of bias - ND

Family Law - De facto relationships - Statutory power to make orders adjusting property interests of parties - Matters to be considered in making adjustments - Property inherited by one party shortly before separation - Property (Relationships) Act 1984 s20

Corporations Law. Application to set aside statutory demand. Whether a referance to Review Panel of a determination of a costs assessor operates as a stay of judgment. On the facts no referral during the currency of the demand. Proceedings dismssed.

CORPORATIONS - charges - old registered charge - whether company's property released from charge

PRACTICE AND PROCEDURE - inconvenient forum - A in Canada transferred money to B a partner in Canadian law firm, B transferred money to London bank of London office of Sydney law firm C, of which D then London partner but now resident in New South Wales - A alleges moneys misappropriated - sues B in Canada and partners of C in New South Wales - partners of C bring action in New South Wales against E, a partner of B - claiming that if they liable to A then B bound to indemnify them or contribute to any judgment in favour of A and that E as partner of B vicariously liable for his conduct - Motion for leave to proceed - counter motion to dismiss New South Wales proceedings on ground inconvenient forum - leave granted

prohibition of public assembly - authorised public assembly - privacy - exercise of democratic freedom

CRIMINAL LAW - Appeal - Sentence - Discounts - Plea of guilty - Utilitarian discount - Irrelevance of strength of Crown case - Assistance to authorities - Cumulation of discounts - Moderation of effect of discounting process.

GROUNDS OF APPEAL - Notice of appeal - Defectively drawn grounds - Appeal on grounds that the trial judge erred in the factual findings he made - Approach of an appeal court - Appeal dismissed. D