Cases and authorities

CRIMINAL LAW - Appeal against severity of sentence - conpiracy to supply not less than large commercial quantity of heroin - guilty plea - take part in supply of cocaine - Form 1 - proper characterisation of offence where drug "rip off" involved - parity of sentence with co offender.

Criminal Law and Procedure - Sentence - Applicannt suffering HIV/AIDS - Effect of ill health on sentence - Failure to apply Pearce v The Queen

CRIMINAL LAW - appeal against severity of sentence - import not less than the commercial quantity of ecstasy - plea of guilty - whether sufficient weight given to plea - whether sufficient weight given by sentencing Judge to medical status.

CONFLICT OF LAWS - PRACTICE AND PROCEDURE - Service in California - Application to set aside service or decline jurisdiction - Whether USA defendants 'properly joined' - Whether substantive and limitation law of California applied - Whether cause of action statute-barred under California law - Applicability and effect of General Steel test.

CORPORATIONS [250], [253] - Winding up - Conduct and incidents of liquidation - Effect of winding up on other transactions - Preferences - Protected transactions - Dealings in good faith - Reasonable grounds for suspecting insolvency - What constitutes - Other matters - Indemnification of Commissioner of Taxation by directors - When cause of action complete.

PRACTICE & PROCEDURE - costs - interest thereon - common law claim.

LOCAL COURT: Appeal from decision of a magistrate in a civil claim - no question of law.

Discontinuance - leave - entitlement to costs -reasonableness of plaintiffs' actions

EVIDENCE - credibility - s 108(3) - prior inconsistent statement - prior consistent statement - discretion - leave of Court

Breach of professional duty - warning of risks of surgery - whether necessary - Breach of professional duty - warning of risks of surgery - whether warning given - Breach of professional duty - advice about alternative to surgery - whether duty to explain

FPA son - no contact since a child minimal support by deceased - large estate - burden of provision - separate joinder of beneficiaries - liability for costs

Limitation of action - application for extension of time - whether applicant aware of connection between "the personal injury" and the respondent's alleged "act or omission" - what needed to constitute awareness - whether just and reasonable to order that time be extended - consideration of prejudice - Limitation Act ss 60G, I.

PRIVATE INTERNATIONAL LAW [34]- Tort- Death of X and Y in Indonesia- Relatives hearing of death in NSW- Compensation to Relatives Act claims- Death may be due to faulty part manufactured in USA- Whether US manufacturer could be served. SALE OF GOODS [72]- Remedy of buyer- Goods containing latent defect- No opportunity for seller to become aware of defect- No liability. TORTS [31]- Negligence- Dangerous product- When retailer liable for selling product with latent defect.

Practice - Stay of proceedings - Industrial Commission proceedings under S.106 of the Industrial Relations Act - Stay refused - Commercial imperatives involved in particular dispute require Commercial List proceedings to continue - Commercial List in place for expediting hearing and determination of commercial disputes

Review of decision by Registrar - amendment after expiry of limitation period - restricted power conferred by rule 4 (5) - admission of evidence in review - distinction between a review and a fresh hearing of the original application - discretionary considerations.

CRIMINAL LAW PRACTICE AND PROCEDURE - Criminal Appeal Act - whether Court of Criminal appeal can dismiss an appeal, irrespective of appealable error, if there is no substantial miscarriage of justice - CRIMINIAL LAW - Environmental Offences and Penalties Act 1989 - admissibility of evidence - statutory interpretation - whether verdict unsafe and unsatisfactory - CRIMINAL LAW - severity of sentence

CRIMINAL LAW PRACTICE AND PROCEDURE - mutually exclusive counts in indictment - whether court should have ordered that the counts in the indictment be severed

CRIMINAL LAW - Evidence - Unreliable evidence - directions by trial judge - use of word "accomplice" - whether desirable - Evidence Act 1995, s 165 - CRIMINAL LAW - unsafe and unsatisfactory verdict - where sworn evidence of alleged accomplices resiled from earlier statements inculpating accused.

PRACTICE and PROCEDURE - Court of Appeal - Review of Registrar's decision - whether Pt 61 rr3 and 4 Supreme Court Rules is inconsistent with s46(4) of the Supreme Court Act 1970.

CONTRACT - Offer said to be open until specified time - Offer withdrawn before that time, but then accepted - Whether contract made - PROCEDURE - COSTS - Calderbank offer - Said to be open until specified time - Offer withdrawn before that time, but then accepted - Whether settlement agreement made.

CORPORATIONS- Statutory demand- What defects will nullify. (D)

BUILDING AND CONSTRUCTION CONTRACT - statutory construction - s14(3) Contractors Debts Act 1997 - attachment order - two stage process - whether the court is required to first assess the claim on the face of the application and then exercise a discretion of whether to make the order after considering other relevant evidence

Evidence Act s65(2)(b),(c) & (3) - Justices Act s48AA, 48A-H

PROCEDURE [483] - Judgments and orders - Varying and setting aside - General rules.

Criminal Law - appeal from Local Court - plaintiff convicted of lending money on the security of pawned goods whilst not being holder of licence under Pawnbrokers & Second-hand Dealers Act 1996 - transactions documented as bill of sale / goods mortgage - whether transfer of title under a goods mortgage is inconsistent with the goods being "pawned goods" within the meaning of the Act

Appeal from Tribunal - incompetent - evidentiary deficiencies - no error of law.

SUCCESSION [48]- Informal will- Instructions given to solicitor- Read back and approved- Deceased dies unexpectedly two hours later- Instructions not admitted to probate as a will.

Succession: Wills Probate & Administration. Application under s18A of the Wills Probate & Administration Act. Codicil signed by the deceased but not witnessed. Testator believed a codicil needed to be witnessed. In the circumstances codicil not admitted to probate.

Liquor Act 1982, s 36 (6) - Moratorium legislation - refused premises - extent of moratorium

Malicious prosecution - Malice - Evidence - Relevance - Common law concept of relevance expanded by Evidence Act 1995 - Exclusion of representations made in connection with an investigation relating or leading to a criminal prosecution - Business records - Royal Commission engaged in a business - Evidence adduced at Royal Commission is not a representation made in connection with an investigation relating or leading to a criminal proceeding - Royal Commissioner engaged in a business - Words and phrases - "in connection with", "relating to", "leading to".

Appeal against sentence - steal from the person and assault occasioning actual bodily harm - drug dependent young offender with bad record - on bail and on a suspended sentence - sentences not manifestly excessive - further material explaining circumstances in which applicant on protection - sentence reduced.

Appeal against sentence - on-going supply of amphetamines - six controlled purchases by an undercover officer - relatively small amounts and low purity - involved wife in the offences - some criminal record - strong subjective case - special circumstances - manifestly excessive

LEASES - construction of terms of lease - arrears of rent - failure to satisfy covenants/ conditions of lease - "rent free period" - obligation to restore and repair - relief against forfeiture - repudiation of lease - Conveyancing Act 1919 (NSW), s129 - set-off - recoupment - right of re-entry - amendment of statement of claim - application to add further ground of appeal

Nuisance - whether the Council could not be held to have committed any nuisance - liberty to apply provisions - appeal dismissed with costs.

Administrative law - authority gives statutory notice to produce documents - recipient brings proceedings challenging its validity - recipient gives authority notice to produce various documents - documents produced - whether access should be granted to the produced documents - belief required of authority's investigator who gives the statutory notice - relevance of the produced documents to the belief or otherwise in the proceedings. D

APPEAL AND NEW TRIAL [268] - Appeal - Practice and procedure - Suitors' Fund - Definitions - "Appeal" - Proceedings in nature of appeal - Proceedings in nature of application for prohibition against Children's Court.

Appeal from decisions of a costs assessor - grounds upon which a costs assessor may decide not to proceed with an assessment - costs quantified by legally binding arrangement made between the parties (other than a costs agreement) - powers conferred by s 207 and their exercise - natural justice.

CORPORATIONS [180]- Administration- Creditors' meeting- Extension of date of adjournment of meeting.

CORPORATIONS - whether leave under s237 of the Corporations Act 2001 should be granted to a director of a company to bring proceedings on behalf of that company

Criminal Law - causing grievous bodily harm by a negligent act or omission - appeal from the Local Court under s104 of the Justices Act 1902 - no question of principle

Subpoena - Production of documents - Legal Professional Privilege - Exceptions to Legal Professional Privilege - Functions of Director of Public Prosecutions extend beyond legal functions - Certain functions of Director of Public Prosecutions do not per se attract Legal Professional Privilege - Comparison between roles of Director of Public Prosecutions and Solicitor for Public Prosecutions - Informers Index

Torts - interference with chattels - conversion and detinue - whether complicity in affixing equipment the property of the plaintiff to a truck the property of a third party gave rise to an estoppel by representation, precluding the plaintiff from denying that title to the equipment had passed on the sale of the truck and equipment by the third party to a further party

PROCEDURE - costs - no question of principle

CORPORATIONS - winding up - creditor providing financial support to liquidator in pursuit of recovery action - whether creditor should be given advantage in order of priority

whether strike out statement of claim - injury sustained during course of employment - workers compensation - whether entitled to bring claim for common law damages - administrative decision - whether legislative pre-conditions satisfied - construction of legislation

Corporations - directors' duties - breach - company placed in administration - whether directors' purpose in so doing improper - propriety of directors' resolution to pay themselves increased fees - Corporations - administration - meetings - notice - whether valid - Corporations - administrators - whether administrators knew of directors' improper purpose in seeking to place company in administration - accessorial liability - relevance - Remedies - general law and statutory remedies - setting aside of company resolutions - whether appropriate in circumstances - whether company should be taken to have entered voluntary administration - Corporations Law s 447A - Evidence - drawing of inferences - rule in Jones v Dunkel - application - requirements - Equity - waiver - Equity - discretionary defences - unclean hands - D

Insurance - euthanasia of horse - recovery under bloodstock insurance policy - insurer in liquidation - insurance broker - whether breach of warranty of authority - construction of terms of insurance policy

PROCEDURE - appeal from Master to Judge - appellant seeks to adduce further evidence

CORPORATIONS - winding up - members' voluntary winding up - whether provisions in Div 3 of Pt 5.5 apply to such winding up - whether leave under s.500(2) required for continuation of legal proceedings