Cases and authorities

Criminal law - sexual intercourse without consent - warnings - inconsistent verdicts

Criminal law - verdict of guilty - whether unreasonable - Criminal law - verdict of guilty - whether unsupportable having regard to the evidence

Bail pending appeal to High Court - special leave to appeal already granted - substantial portion of custodial component of sentence likely to be served before appeal decided - combination of that factor and others constituting special and exceptional circumstances - bail granted.

Criminal law - Drug importation - MDMA or ecstasy and cannabis resin - Quantity in excess of trafficable quantity - Involvement in importation for money - Purchase of drugs by appellant for sale in Australia - Not a mere courier - Appellant in part responsible for the organisation of importation and in relation to distribution

CONTRACT - commercial contract for supply of casual employees - interpretation of "associates" - furtherance of a business common between the parties.

REAL PROPERTY - caveat to protect purchasers' interest - application to extend - whether serious question as to validity of termination - balance of convenience

CORPORATIONS [20] - Constitution and legal capacity - External litigation - In general - Action by member and officer against third parties - Application for leave to bring - Fulfilment of statutory requirements.

Courts - appellate courts - NSW Court of Appeal - powers - leave to appeal given on condition - appeal from interlocutory orders - Courts - appellate courts - NSW Court of Appeal - powers - condition that appellant pay respondent's costs in any event - where leave sought to run 'test case' - appropriate conditions in circumstances - where 'test case' of interest to appellant only - appellant frequent litigant - respondent litigant for first and last time - Practice - counsel - duties of - duty to put court in position where able to dispose of costs matters finally when judgment reserved - D

ADMINISTRATIVE LAW- PRISONS ADMINISTRATION- Classification of prisoners- Whether a prisoner sentenced for sex offences could have his classification affected by reference to his attitude to those offences and to psychological treatment related to them after expiry of the sentence and during a further sentence related to robbery offences- Relevance of totality principle which had been applied when he was sentenced- Classification depending on the opinion of the Commissioner- Opinion as to prisoner's need for supervision- Breadth of matters able to be considered- Appropriate costs order.

Contempt of court - refusal to answer questions at criminal trial of co-accused - reprisal against presiding judge - application of Crimes (Sentencing Procedure) Act 1999

CORPORATIONS - Procedure - Stay of orders or variation of orders for compensation and pecuniary penalty under Corporations Act - Relevant considerations - Relevance of anticipated appeal to Court of Appeal.

Jury - Common law claim - Right to jury - Power to order trial without jury - Discretion - Amendment to relevant statutory provisions - Applicability of superceded provisions to existing action - Practice - Exemplary and aggravated compensatory damages - Rights of citizen against State entity - Suitability of jury to determine rights of citizen

Sentence appeal - robbery in company - plea of guilty - appropriate discount - requirement to qualify sentence - requirement to specify - public policy

Sentencing - appeal against alleged excessive sentences - by consent psychological report prepared after sentence placed before the Court - appellant demonstrated to be suffering from intellectual disability.

PRACTICE and PROCEDURE - application for leave to amend Statement of Claim under Supreme Court Rules 1970 (NSW) Part 10, r.1A - under Pt.20 r.1, plaintiffs should be allowed to redraft pleadings and raise contentions which they genuinely wish to raise provided that the case which they wish to put forward is fairly arguable and can be understood from their pleading - a Barnes v. Addy recipient liability was not arguable with no basis in fact - the facts alleged in the proposed Amended Statement of Claim could not give rise to a claim for unjust enrichment - Pt.15, r.7 of the Supreme Court Rules authorises pleading allegations of fact and raising grounds or claims in the alternative. - PRIVATE INTERNATIONAL LAW - Application to set aside service of 3rd defendant under Supreme Court Rules 1970 (NSW) PT. 11 r. 98 and Pt.10 r.6A - service of the originating process to the 3rd defendant did not come under Pt.10 r.1A - held that 3rd defendant was properly joined as a party to the proceedings under Pt.10 r.1A(1).

CORPORATIONS [182] - Voluntary administration - Protection of company property during administration - Winding up company - Power of Court to adjourn hearing of winding up application - Criterion by which discretion to be exercised - Relevant considerations.

no catchwords

INSURANCE - shearer at employer's premises prior to commencing work - workers compensation & public liability insurers - which insurer liable - COSTS - insurer liable to indemnify employer - liability disputed - insurer liable for costs on an indemnity basis.

CRIMINAL LAW - Juries - Discharge of juror - Whether lawful in absence of jury - Continuing with eleven jurors - Whether discretion miscarried - CRIMINAL LAW - EVIDENCE - Leave to cross-examine own witness - Requirements of Evidence Act ss.38 and 192 - Whether express consideration necessary - CRIMINAL LAW - EVIDENCE - Warnings - Unreliability of witness - Prejudicial evidence - Discretion to exclude or limit - Fresh evidence.

Motor Accidents Act - Derrick v Cheung (2001) 181 ALR 301 - liability - whether an inference in favour of negligence could be drawn - appeal dismissed with costs.

Appeal decision of Fair Trading Tribunal - venue changed

CORPORATIONS [289] - Winding up - Liquidators - Provisional liquidators - Matters relating to termination of employment - Procedure on application for removal - Application should be by interlocutory process in proceedings in which provisional liquidator appointed.

Whether leave should be granted to companies in liquidation to proceed against another company in liquidation for the sole purpose of seeking to obtain a costs order against a liquidator as a non-party in a voluntary winding up - Whether the applicant is required to call evidence to establish a reasonably arguable case that such an order should be made - "Officer of the Court" - definition in Part 1, r 8 of the Supreme Court Rules 1970 (NSW) excludes solicitors, barristers and liquidators - whether excluded from the term "its own officers" in Part 52A, r 4(5)(e) - whether liquidator in voluntary winding up is one of Court's "own officers".

Criminal Law - Accused found not guilty on the ground of mental illness

Family Provision. Application under the Family Provision Act by two adult daughters. Order for legacies. No matter of principle.

COMMERCIAL - application for stay of proceedings - contractual clause for the resolution of disputes relating to Completion Accounts by an Accounting Expert - payment by a third party was claimed in the Completion Accounts - conduct of the officers of the defendant and third party is an issue - whether expert is competent to determine issues relating to conduct - whether parties should resolve disputes in accordance with terms of contract.

Summary dismissal

Severity appeal - direct relationship between offences and applicant's mental disorder.

Criminal law - sentence - appeal - aged offence - indecent assault on male - offender a life long homosexual pedophile - gaoled for other offences - instant offence disclosed afterwards so not dealt with at the same time as other offences - offender now aged 74 - subject to medication regime - suspended sentence for two years appropriate on recognisance requiring medication, supervision and treatment.

Criminal law - indecent assault - complainant aged between four and eleven years at time of alleged incidents - delay in complaint - 'Longman' direction - whether jury adequately warned of danger in convicting appellant because of danger of mistaken recollection and forensic disadvantage to appellant due to delay in complaint - whether conviction erroneous - scope of principle in Longman v R (1989) 168 CLR 79

Sentencing appeal - serious sexual offences - pleas of guilty - whether sentencing regime allowed sufficient time on parole.

Criminal law - robbery - Crown appeal - parity of sentence

Criminal law - appeal - admissibility of evidence of similarity - relevance - prejudice - consideration of identification and similarity evidence - appropriate directions concerning identification and similarity evidence under s.116 and s.165(1)(b) of the Evidence Act - verdicts not unreasonable.

CRIMINAL LAW: Appeal against conviction - sexual offences - adequacy of trial judge's warning about delay in complaint.

Criminal law - appeal - sentence - armed robberies - vulnerable victims - juvenile offender - application of R. v. Henry guildeline - sentencing statistics for similar multiple offences - sentence not outside discretionary range.

Application for security for costs

Negligence - Breach of contract - onus of proof - unreliabililty of witnesses

Family Provision. Claim by son under the Family Provision Act. Son's share in estate increased. No matter of principle.

Sentencing - sentence not erroneous but parity and proportionality require lesser sentence

Sexual offences - delay in complaint - absence of corroboration - "Longman" direction - requirement for and terms of

WORKERS COMPENSATION - employee injured in motor vehicle accident - employer pays compensation - employer claimed indemnity from third party - liability of tortfeasor - whether trial judge misconceived the nature of the cause of action - whether s 151Z(1)(d) of the Workers Compensation Act creates a single cause of action of indemnity or whether it applies to each payment - D

Interpretation of Instruments - Rules of construction - Deed of settlement - Apparently inconsistent provisions - Whether to be construed as a release or as a covenant not to sue. D

Section 59(f) Land Acquisition (Just Terms Acquisition) Act 1991 - amount of compensation payable - "disturbance" under sections 59(f) of Act - whether the rights to block the respondent's access are merely theoretical - whether the respondent could obtain relief under section 41 of the Sydney Water Act 1994.

Sentence - appeal against severity - large commercial quantity of cocaine - factors relevant to a finding of "special circumstances" - whether some other sentence "warranted in law"

Appeal - Local Court - Small Claims Division - Arbitration - Re-hearing - Practice - Amendment to legislation - Increase in amount below which re-hearing prohibited - Date at which and event to which increased amount applies - Policy of Local Courts (Civil Claims) Act 1970 in relation to small claims - Policy of Arbitration (Civil Actions) Act 1983 in relation to small claims referred to arbitration.

COSTS - solicitors - costs order against solicitors for purported plaintiff where no decision by company to bring proceedings and purported retainer by part of board was ineffective - consideration of basis on which order should be made - discretionary order under SCA s.76(1) not enforcement of common law liability for breach of warranty of authority - on review of discretionary considerations, solicitors were ordered to pay defendants' costs on indemnity basis with further order against purported directors who instructed them.

PRACTICE and PROCEDURE - interlocutory motions - restraint of repeated interlocutory motions - the defendant was restrained from making further interlocutory motions without leave of a Judge.

Criminal law - plea of guilty - sentencing - assault occasioning actual bodily harm - offender acquitted of murder and manslaughter - application of principle in Regina v. De Simoni - aged offence - consideration of sentencing regime at time of offence - circumstances of extenuation - applicability of s.10 of the Crimes (Sentencing Procedure) Act 1999.

Family Provision. Claim by a de facto partner given a life interest in jointly owned real estate. Long relationship of 31 years and conributions to real estate. Plaintiff granted real estate in fee simple.