Cases and authorities

Decision on formal orders and costs.

CRIMINAL PRACTIE & PROCEDURE - Direction to Jury on Identification - Request by Crown for a warning concerning identification evidence where such evidence is favourable to accused.

CORPORATIONS -- Statutory demand based on non?payment of loans -- Application to set aside -- plausible contention requiring further investigation made out -- based on alleged representations to plaintiff/borrower/supplier (albeit borrower and supplier not identical) as to fulfilment of associated take or pay contracts by defendant/lender/purchaser to the effect that payment of loan would be assured from cash flow so generated -- offsetting claim not available where different parties within corporate groups were supplier as distinct from borrower save as derived from representations and contention being made out -- possibility of intra?group dividends or loans not sufficient of itself.

Construction of written contract - No question of principle

Costs

Corporations - Winding up - Reinstatement of registration - Factors relevant to discretion when purpose of reinstatement is to obtain access to company's insurance policy - Whether alternative procedure under s.601 AG Corporations Act 2001 available

Defamation - exemplary damages - amendment to include refused - no question of principle

Defamation - qualified privilege at common law and "Qualified Protection - Excuse" under Queensland and Tasmanian legislation - publication of riposte by a third party - whether defences made out

Defamation - whether evidence of publication in various parts of Australia - no question of principle

TRIAL - joint criminal enterprise - need for directions relating evidence to legal principles. D

Sentence - child - whether should be dealt with according to law - whether mode of dealing with co-offenders relevant - relevant considerations - adjournment under s11 Crimes (Sentencing Procedure) Act 1999 - whether permissible to require bond

Sentence - drug dealing - single charge within jurisdiction of Local Court - relevance of legislative scheme - significance of limit on jurisdiction of Local Court

Criminal Law - sentencing - stale offence - Criminal Law - sentencing - adult sentenced many years after committing offence as a child - whether conviction warranted

NEGLIGENCE - DAMAGES - MOTOR ACIDENT - CAUSATION - STANDARD OF PROOF FULFILLED - CALCULATION OF ECONOMIC LOSS - REQUIREMENTS OF INJURED PARTY TO MITIGATE DAMAGE - PROPORTIONALITY OF NON ECONOMIC LOSS

Judgment - Reasons for judgment - Inadequate reasons - Amendment to judgment after delivery of reasons - Impermissible

Succession- Family Provision- Adult daughter aged 73- Destitute- Estate $690,000 represented by family home in which only other child a son had lived with testatrix for 60 years- Trial judge dismissed claim- Appeal allowed- In addition to legacy of $10,000 and personal effects appellant given legacy of $135,000. (D)

PROFESSIONAL NEGLIGENCE - Contract - Tort - Limitation period - Solicitor - Instructed to act to recover damages arising out of motor vehicle accident - Failure to advise of limitation period - Failure to commence proceedings within limitation period - Defence pleading limitation period filed when proceedings commenced - Client not advised until amost 5 1/2 years after limitation period expired - Client then advised to seek advice from another solicitor but not advised of limitation period for proceedings against solicitor - Proceedings against solicitor not commenced until amost 3 years later - Defence pleading limitation period filed - Whether proceedings statute-barred D

LIMITATIONS - appellant paraplegic since birth 38 years ago - claim against hospital where she was born and doctor who conducted delivery - 8 years since proceedings commenced - some medical records and potential witnesses apparently not available - limitation period not extended.

Defamation - whether alleged imputations were conveyed by the matter complained of - relevance of ameliorating content - "bane and antidote" - whether relevant that defamatory imputations would not have been believed

Defamation - defence of "Qualified Protection - Excuse" under Queensland and Tasmanian legislation - whether lack of "good faith" an available reply in the case of publication of a riposte by a third party

Expiry of limitation period - Awareness or knowledge - "Extension"in S.60C(2) of Limitation Act 1969

TAXES & DUTIES - Income tax & related legislation - remission of group tax deductions - company's failure to remit - liability of directors - notice before recovery - form of notice

COMPANY LAW - Court's power to give directions to controller of property of the corporation - whether Court should give directions that controller is justified in entering into compromise agreement - whether Court should give direction that controller is not prevented from entering into agreement which confers benefit on mortgagee MORTGAGES - principle that mortgagee cannot exercise of power of sale in favour of itself - scope and content of principle - whether principle applies when receiver enters into an agreement under which mortgagee and related entities acquire option to purchase secured property

CONTRACTS - plaintiff and defendants settled a previous action by signing a deed of release - terms of deed incuded plaintiff pay some money to defendants' solicitors to be paid to defendants upon their giving vacant possession of a property by a certain date - defendant did not give vacant possession - claim by both sides for balance of funds - CONTRACTS - construction - whether date of possession is essential term - whether entitled to money conditional upon possession on fixed date - whether claim of plaintiff only in damages rather than return of moneys

Courts and judicial system - Appeal - Adequacy of reasons - Motor Accidents - Whether trial judge adequately weighed evidence of both parties - Whether trial judge adequately addressed dilemmas posed by evidence - Whether inadequacy of reasons is substantial miscarriage of justice justifying new trial on liability - Supreme Court Rules Pt 51 rr 23(1) and 23(2) - Courts and judicial system - Judges - Delays in delivery of judgments - Discussion of delay in judgment delivery and effect on adequacy of reasons - Discussion of time pressures upon District Court judges - D

CONVEYANCING - Conveyancers Licensing Act 1995 - interpretation - Claim against Compensation Fund pursuant to s 38 Conveyancers Licensing Act 1995 (CL Act) - whether there was a "failure to account" within s 64G(1) Property, Stock and Business Agents Act 1941 by a licensee under the CL Act- whether money entrusted to licensee "in course of licensee's business as licensee" within s 64G(1) - whether work being carried out was "conveyancing work" within s 4 CL Act - whether work being carried out for purpose of "investing money otherwise than as provided by Div 2 of Part 3" within exclusion in s 4(3)(g) CL Act - tension between s 4(1) and s 4(3)(g) - whether distinction between "lending" and "investing" - whether, even if work being carried out not "conveyancing work", there was nevertheless an entrusting of money "to the licensee in the course of the licensee's business as a licensee"

Practice & procedure - adoption of report pursuant to Pt 72 r 13 - fresh point raised after hearing of reference and before adoption of report - fresh point raised to rely on High Court restatement of applicable principles after reference - nature of discretion under Pt 72 r13 - inherent jurisdiction to permit amendment and to re-open - discretion distinguished from nature of discretion to permit raising of a fresh point on appeal - party estopped from pursuing cause of action by consenting to formulation of questions for Pt 72 references and by participating in references - adoption of report save for ultimate finding of liability - leave to amend to raise fresh point.

Jurisdiction to hear appeal from the District Court

CRIMINAL LAW - appeal against sentence - supply of prohibited drug - where sentencing judge required to direct that applicant be released at expiration of non-parole period - whether adequate discount on sentence for plea of guilty - whether appropriate weight given to subjective features - whether sentencing judge determined whether sentence should be suspended - special circumstances.

Criminal law - appeal against conviction and sentence - adequacy of directions as to "knowingly concerned" - directions suitable to issues at trial - verdicts not unreasonable nor unsupported by evidence - on sentence - trial judge followed sentening parameters prescribed in Wong & Leung (999) 108 A. Crim. R. 531 - that decision overruled in that respect by the High Court, but sentence inappropriate notwithstanding.

CRIMINAL LAW - appeal against conviction - supply of prohibited drug - directions to jury - where trial judge gave directions with respect to failure of Appellant to give evidence that contravened the authority of RPS v The Queen (2000) 199 CLR 620 and Azzopardi v The Queen [2001] HCA 25, 75 ALJR 931.

COSTS - respondent to Appeal obtained order revoking leave to appeal (and to cross-appeal) where the questions in the appeal lacked utility because respondent had commenced second proceedings in District Court - each party had contributed to procedural miscarriages - each party to pay own costs.

Sentence - plea of guilty - utilitarian discount - need to take into account avoidance of necessity to call undercover police

EQUITY [109] - Trusts and trustees - Express trusts constituted inter vivos - "Special purpose" or Quistclose trust - Intention of parties.

CORPORATIONS - Stock Exchange - Business Rules - Interpretation of relevant business rules (rule 13.5.1(4)) relating to $100,000 cap in its proviso where charges brought against Affiliate and subsequently sought to be brought against Participating Organisation - Principles of construction in relation to penalties - Test applicable.

CORPORATIONS - arrangements and reconstructions - "stapled securities" - Part 5.1 scheme of arrangement between company and members - provision allowing company to vary scheme after approval by court - attempt to confer jurisdiction on ASIC in relation to variation procedure - provision allows any variation whatsoever which does not adversely affect rights of security holders - provision undesirable - provision omitted - EQUITY - trustees - judicial advice - advice may be given to responsible entity of managed investment scheme - advice concerning implementation of plan requiring approval by votes of unitholders is appropriately given after voting completed.

EQUITY - trusts and trustees - creation of trust - whether agreement by assignee of chose in action from company in liquidation to remit net proceeds of recovery to liquidator for benefit of creditors causes chose to be held in trust - significance of assignee's promise not to assign chose without consent - significance of distinction between company and liquidator - significance of statement of purpose - BANKRUPTCY - property of bankrupt - whether chose in action held in trust by trustee entitled to recoup expenses out of proceeds of recovery is excluded from property vesting in official trustee because held in trust for another person - CORPORATIONS - whether creditor taking assignment of chose in action from company in liquidation subject to trust to remit net proceeds of recovery to liquidator for benefit of creditors thereby protects or preserves property of company - application by such creditor for preferred position in winding up cannot be addressed until relativity of creditors' claims established - possible significance of break in creditor status between time of protecting or preserving and time of application - BANKRUPTCY - upon bankruptcy of creditor to whom debt owed by company in liquidation the debt vests in official trustee - creditor status as against company thereby lost by bankrupt - subsequent discharge from bankruptcy does not restore debt or creditor status - whether official trustee might assign debt to discharged bankrupt

EQUITY - injunctions - Mareva relief following judgment - available to prevent frustration of judgment pending exercise of judgment creditor remedies - not a substitute for execution - not to be form of security - order that assets not be dealt with except in narrowly defined ways or otherwise as allowed by judgment creditor refused

Criminal law - murder - plea of guilty - sentence - murder of wife - long history of domestic violence - plea after warranted investigation of mental condition.

PRACTICE and PROCEDURE - reference under SCR Pt72 - application to reject or vary report of referee - numerous complaints of procedural injustice and misapprehension of evidence were examined and rejected.

EVIDENCE [82] - Facts excluded from proof - On grounds of privilege - Criminating questions - Statutory protection - Grant of certificate barring prosecution - Whether certificate may be granted only in respect of oral evidence - Whether certificate may be granted in respect of affidavit or documents produced to Court in compliance with Mareva order - Whether Court must be constituted by same judicial officer for purpose of making antecedent findings and granting certificate under Evidence Act 1995 s 128(6).