Cases and authorities

Criminal law - appeal - verdict unreasonable or unable to be supported by the evidence - malicious wounding with intent - alternative verdicts.

CRIMINAL LAW - proof - circumstantial evidence - totality of circumstances - appeal - whether verdicts unreasonable

TORT - Negligence - Appeal on damages - No question of principle.

CRIMINAL LAW - sentence - Crown appeal against sentences - whether sentences manifestly inadequate - whether wholly concurrent sentences failed to account for the criminal conduct of each offence - principles - calculation of aggregate sentences - application of totality principle - Crimes Act 1900, ss 35(1)(a), 98 - appeals upheld.

CRIMINAL PRACTICE & PROCEDURE - Crown appeal against dismissal of forfeiture application - Confiscation of Proceeds of Crime Act 1989 - Meaning of 'hardship' - Whether Judge took account of sentence imposed (s18(2))

Notice of Motion - variation of orders - s 243AC Local Government Act 1919 - whether the Court failed to apply the relevant rules of construction - notice of motion dismissed with costs.

CRIMINAL LAW: Sentence - manslaughter - provocation.

Murder - three counts - offender's infant children - worst class of case - heinousness - extreme level of culpability - life sentence - two stage process - absence of effective subjective matters

EQUITY - injunctions - interlocutory injunctions - balance of convenience - relevance of whether damages adequate remedy - relevance of need for court's supervision

Summary judgment - Appeal from Liquor Administration Board

TRUSTS AND TRUSTEES - superannuation scheme - whether Minister's powers to consent and agree to trustee's application of surplus amounted to a direction inconsistent with s 58, or a discretion inconsistent with s 59, of the Superannuation Industry (Supervision) Act - whether Minister owed fiduciary duties to scheme beneficiaries - whether Minister's decision in fraud of power

TAXES AND DUTIES - Income Tax and related legislation - Royalties paid by resident to limited partnership of overseas partners deemed to be a resident - Royalties paid by partnership to overseas head licensor - Whether royalty withholding tax payable - Domestic legislation adopting international treaty provisions - Priniciples of construction - Acquisition of intellectual property rights and their sub-licence constitutes a business under international tax law - Place of conduct of business in overseas country by dependent agent not a permanent establishment - Agent not habitually exercising power to negotiate and conclude contracts - General authority "or" habitual exercise means general authority "and" habitual exercise.

CRIMINAL LAW - Sentencing - Crown appeal - offences involving receipt of welfare benefits by means of untrue representations - where periodic detention imposed - where offender has demonstrated that he has reached a cross-roads

Courts - inferior courts - administration of justice - case management - right to be heard - dismissal of case for want of appearance - application for setting aside dismissal order - whether proper - relevant matters - paramountcy of administration of justice - D

PROCEDURE [736] - Contempt, attachment and sequestration - Attachment and committal - Practice - Warrant to arrest and detain contemnor pending hearing of charge - Circumstances in which warrant may be issued - Meaning of "likely to abscond".

Real estate agent's commission - Preliminary issue - Second issue - Denial of natural justice

Legal Profession Act 1987 - ss175, 177, 178, 179, 182 - costs recovery proceedings in Local Court - default judgment - declaratory and other relief sought

Contracts. Construction and interpretation of contracts. Agreement for caretaker services to a large complex of strata units. Whether on its construction the agreement delegated functions of the Owners Corporation is in breach of s13(3) of Strata Schemes Management Act 1996. Held that it did not constitute a delegation of functions.

No question of principle

Tort - negligence - duty of care - breach - damages - quantum - psychiatric damage - whether finding of causal contribution of psychiatric damage to plaintiff's state of being open on the evidence - liability not in issue - ND

SUCCESSION - WILLS PROBATE AND ADMINISTRATION - pleadings - whether the defendant is required to plead particulars of fraud where fraud is not a necessary component of the cause of action or the defence

[CONTRACT] - Claim by plaintiff for amounts owing in outstanding invoices for computer goods and services (the System) - Cross-Claim by defendant for liquidated damages for late and incomplete delivery of the System and additional claims for expenses incurred in rectifying the System and for loss of revenue or loss of opportunity - No claim made under warranty - Completion of delivery of the System made by defendant's employees (who had previously been employed with plaintiff) without any claim upon or notification to the plaintiff until delivery complete. [DAMAGES] - Measure of damages to which the defendant/cross-claimant is entitled - Whether inference as to quantum of damages is able to be drawn from evidence of problems with the System and low revenue without any evidence from users of the System that they experienced problems and terminated their subscription with the defendant because of problems with the System.

LANDLORD AND TENANT - retail tenancies legislation - whether variation of existing lease may itself be "retail shop lease" - determining purpose of right of occupation - whether actual use as distinct from agreed use relevant - construction of user covenant

appeal from assessment of costs payable pursuant to orders of the court - alleged expiry of limitation period and application of Barristers' Rules to disentitle recovery of counsel's fees - nature of the assessment process - an application is not a proceeding in this Court.

CRIMINAL LAW - SENTENCE - Crown appeal against inadequacy - failure to consider prior conviction - failure to consider offences committed while on good behaviour bond - manifestly inadequate sentence - where prior offence unrelated - where offender previously police officer - range of permissible discretion

Criminal law - jury question - criminal appeals - Court of Criminal Appeal substitute verdict - Court of Criminal Appeal re-sentencing

ADMIRALTY - bills of lading - split bills of lading - letters of indemnity required for discharge of legumes - effect of signature of bank employee on letters of indemnity - CONTRACT - whether bank was contractually bound to indemnify - P and I Clubs standard form - NEGLIGENCE - whether bank negligent in execution of letters of indemnity - TRADE PRACTICES ACT - whether bank misrepresented effect of letters of indemnity - OSTENSIBLE AUTHORITY - no representations by bank that employee had authority to indemnify

Matter to be determined as preliminary issue - whether plaintiff's injury arose out of or in the course of his employment.

GUARANTEE - Mr and Mrs Davis and companies guaranteed $1m loan to companies they controlled - borrower companies gave security over industrial plant and equipment - numerous grounds of defence to claim by lender against guarantors after borrowers defaulted, went into liquidation and lender sold plant & equipment under power of sale - HELD - securities were not made ineffective by their being given in two separate registered charges by each of two borrowers which were in partnership - Consideration of meaning and operation of s.420A of Corporations Act and "market value" - on the facts, no breach of duty of mortgage or sale - consideration of remedies under Corporations Act s.423, s.1324, HELD no tort remedy against mortgagee exercising power of sale - Consideration of remedies available to guarantor where cross-claim or set-off available to principal debtor - consideration of effect of provisions of guarantee - giving primacy to remedies of mortgagee claim to relief under Contracts Review Act dismissed.

CRIMINAL LAW - accused charged with murder of four children, and one attempted murder - plea of not guilty - defence application to have trials heard individually and separately - Tendency and coincidence evidence.

COSTS - successful plaintiffs joined NAFM as second defendant and obtained orders attaching proceeds of policy with NAFM owned by judgment debtor - discretionary decision on costs of application against NAFM where Notice of Motion was resisted combatively - Costs order against NAFM.

Succession - Family Provision - Claims by adult daughter and by adult grandson (a disable person) - Financial and material circumstances of Plaintiffs - Nature of relationship of Plaintiffs with Deceased - Whether Plaintiffs have been left without adequate provision for their proper maintenance - Notional estate of Deceased - Whether Deceased entered into prescribed transactions - Competing claim of widower of Deceased, who is chief beneficiary - Trusts - Discretionary trusts - Absolute discretion in trustee to exercise power of appointment - Deceased and First Defendant were sole shareholders and sole directors of trustee and were principal beneficiaries of the trust - Trust was essentially a vehicle by which Deceased and First Defendant conducted their personal affairs - Whether a member of a class of beneficiaries has standing to seek relief in respect to alleged breaches of trust - In any event, relief sought would be a jejune and barren exercise - Whether parties have been unnecessarily joined.

ADMINISTRATIVE LAW [39]- Racing industry- Three tiered internal tribunal system- What type of appeal lies to final tier- Whether final tier only enabled to act if error at second tier- Whether final tier bound to give warning of serious possibility of intention to increase penalty. PROCEDURE [743]- Declaration- Whether appropriate to make declaration of invalidity of administrative appeal body's decision- Scope of remedy. WORDS & PHRASES- "Appeal"- "Bet"- "Legitimate".

CORPORATIONS LAW - meetings - whether a special general meeting had been "held" - Corporations Act 2001 s249D(5) and s1324(1)(a)

Police - Police powers - Drug detection dog - Sniffer dog - Suspicion - Reasonably suspect - Basis for suspicion - Search - What constitutes search - Assault - Drugs - Identifying presence of drugs by trained drug detection dog - Evidence - Interlocutory order

CORPORATIONS - winding up - unfair preferences - subjective and objective ingredients of defence in s 588FG(2) - ingredients of running account under s 588FA(3)

Extension of time to bring appeal - denial of natural justice - entitlement to legal representation before Tribunal - alleged refusal of application for legal representation - evidentiary deficiencies.

claim for damages for personal injury - motor vehicle accident - prescribed concentration of alcohol - driver of the vehicle - direct evidence - circumstantial evidence - expert opinion evidence - injury patterns - reliance upon arrangement between parties - responsibility for own injuries - contributory negligence

Leave to discontinue appeal - terms of leave - indemnity costs and indemnity by solicitor to pay those costs - s 76C and Pt 52A r 43 provide independent remedies.

Application for stay - abuse of process - self-defence - reasonable response

aggravated sexual intercourse without consent - attempted sexual intercourse without consent - assault with acts of indecency - verdicts of guilty on two counts, not guilty on three counts - alleged inconsistency of verdicts - directions to jury - effect of doubt concerning credibility or reliability in relation to one count, or more than one count, in relation to other counts - jury question concerning withdrawal of consent - verdicts - evidence of tape recorded telephone conversations between complainant and appellant

Criminal law - appeals against conviction - robbery in company - reasonableness of jury's verdict - essentially circumstantial case based on identification evidence - held that cumulative evidence provided ample basis for jury's verdict - judge's failure to give directions on the absence of two potential witnesses did not cause trial to miscarry

CRIMINAL LAW - Appeals from interlocutory decisions - whether decisions appealed from had requisite degree of finality - where Constitutional issues raised were misconceived - where application for removal of proceedings to High Court and stay of District Court proceedings.

Tort - negligence - duty of care - existence - breach - personal injury - misfeasance - nonfeasance - plaintiff victim of crime - assault occurring on common property - application of principle in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2001) 205 CLR 254 - D