Cases and authorities

PROFESSIONS [63]- Lawyers- Right of audience- When Court may restrict right under its inherent power of supervision.

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.

CONTEMPT OF COURT - judgment on penalty - where defendant found to have deliberately hit and abused a barrister out of frustration and to achieve revenge for the fact that he had been made a party to lengthy and hotly disputed litigation - possibility of litigation is an ever present threat for a professional person that should be acknowledged and accepted as one of the inevitable burdens of professional life - the community must however ensure that the litigation process is not compromised and remains free of any risk that witnesses or advocates may be deflected from their essential obligations - where apology and acknowledgement of transgressions made - action of the defendant not premeditated but rather a spontaneous gesture prompted by frustration and grief - declaration that defendant is guilty of contempt of court made - defendant ordered to pay plaintiff's costs.

PROCEDURE — Disqualification of a judge — Relevant factors — Waiver — Prudential issues that may nonetheless persuade a judge not to sit or to sit.

Victims Compensation - appeal - certiorari - s30(1) Victims Compensation Act 1996 - whether District Court erred in law - whether Victims Compensation Tribunal could set aside assessor's determination and award less - appeal considered on papers - procedural fairness - whether Tribunal obliged to notify party of intention to reduce award. (D)

Crown Appeal against sentence - robbery in company - attempted robbery - assault occasioning actual bodily harm - non-parole period 5 months 2 days - special circumstances - respondent permitted to return to New Zealand with mother - term of imprisonment manifestly inadequate - R v Henry (1999) 46 NSWLR 346 - trial judge erred in failing to address each indictment separately - subjective features make it inappropriate to impose further custodial sentence.

EVIDENCE — Legal professional privilege — whether lost — could evidence nonetheless be adduced under s122 of s125 of Evidence Act 1995 — Meaning of consent for purposes of s122(1) — Meaning of fraud and abuse of power for purpose of s125 — Production of documents under court order — Effect of subsequent discovery of letter by producing party referring to possible privilege when clients out of jurisdiction — dealt with in two contemporaneous judgments to be read together — Capacity to object to adducing of evidence when client out of jurisdiction — Continuance of retainer for that purpose — Duty of lawyer — Recourse to s133 to examine documents.

Family Provision - niece-aunt - dependency - member of household - factors warranting - quality of relationship - testamentary intention - natural object of recognition - large estate

TRADE & COMMERCE [15]- Restraint of trade- Consequence of restraint- Contract not void but merely unenforceable between unwilling parties- Not all restrictions on trade constitute "restraints" of trade within doctrine.

Costs - Discretion of Court - Cross-claim by Defendant was substantially reduced at commencement of hearing - Relief to which Plaintiff was entitled was not significantly different from relief sought by Defendant in amended cross-claim - Plaintiff substantially successful - Defendant substantially unsuccessful - Entitlement to costs should not be based upon a mere accounting exercise.

EVIDENCE — Legal professional privilege — whether lost — could evidence nonetheless be adduced under s122 of s125 of Evidence Act 1995 — Meaning of consent for purposes of s122(1) — Meaning of fraud and abuse of power for purpose of s125 — Production of documents under court order — Effect of subsequent discovery of letter by producing party referring to possible privilege when clients out of jurisdiction — dealt with in two contemporaneous judgments to be read together — Capacity to object to adducing of evidence when client out of jurisdiction — Continuance of retainer for that purpose — Duty of lawyer — Recourse to s133 to examine documents.

SUCCESSION [296]- Family Provision- Claim by adult son- Claimant impecunious- Claimant lives in property owned by widow rent free- Widow promises to leave that property to claimant- Estate only sufficient to provide for widow- Application dismissed.

PROCEDURE [553] - Costs - Costs of whole action - Generally - Where action settled - Usual rule - Exception when it is plain one party would have succeeded had matter been fully tried.

Administrative Law - Judicial review at common law - Abuse of discretionary power - Consideration of irrelevant matter - Acceptance of complaint out of time by Anti-Discrimination Board

Criminal Law - Sentencing - ill health - fresh exercise of sentencing discretion, without need to esxtablish error by sentencing judge, where medical conditions existed at time of sentencing but were not then known

CRIMINAL LAW - appeals - appeal against sentence - offence of dishonesty - fraudulent misappropriation of rental bond monies and purchaser's deposit - whether sentence outside range - reference to statistics of limited value - breach of trust - general deterrence - whether insufficient weight given to the offer of reparations - no error found

Criminal Law - Sentencing - conspiracy - uncertainty as to record of proceedings - no question of principle

CRIMINAL LAW - appeals - appeal against sentence - one count supply prohibited drug on an ongoing basis - whether sentence manifestly excessive - appellant submitted drugs were for personal use only - earlier admissions of dealing - no basis to submission - whether sentence was one occasioning undue hardship to appellant's family - it is only in circumstances of exceptional hardship to an appellant's family that the court will take into account hardship in mitigatio of sentence - submission not made good

Torts - Conveyancing - contract for the sale of land - liability under Corporations Law where an unincorporated company purports to enter a contract - whether conveyancer failed to advise on potential liability - whether breach of duty - appeal dismissed.

TOWN PLANNING - Land used for purposes of a poultry farm - Land situated with Residential 2(a) and Special Uses zones under LEP - Whether use as poultry farm an existing use for purposes of LEP - Application for development approval for shopping centre complex - Shops as prohibited purpose in Residential 2(a) and Special Uses 5(a) zones - Whether change of use permitted pursuant to s.108 of EP & A Act D

EVIDENCE - witness statement reporting conversation in indirect speech - form does not affect admissibility - desirability of words actually spoken being reported if remembered even in part - preferable in this case that the evidence be adduced orally

COSTS

CRIMINAL LAW - appeals - appeal against sentence - one count of larceny - one count of take a conveyance without consent - whether sentence manifestly excessive - offences committed while appellant on recognisance - circumstance of considerable aggravation - general and specific deterrence - whether special circumstances found - rehabilitation of importance - special circumstances found to justify departure from ratio between head sentence and non-parole period

CRIMINAL LAW - appeals - appeal against sentence – supply of commercial quantity of heroin – two counts of supply of sample of heroin - 1 count supply of methylamphetamine – whether role of the applicant was that of "secondary principal" – expression ambiguous – whether parity in sentencing – whether correct starting point of sentence – whether court should have taken into account applicant’s past drug use – no substance to submissions

CONTRACT - Construction & Interpretation - Extrinsic evidence - Parol evidence rule - Ambiguity exception - Admissibility of prior negotiations to construe loan contract - Conduct of parties after contract made - Not admissible to aid construction or resolve ambiguity - Implied terms - Whether necessary for business efficacy - Term accelerating interest repayments not to be implied - No implied term to allow combination of loan and other accounts or capitalisation of interest. D

Defamation - discharge of jury - whether counsel's address to the jury entitled the trial judge to discharge the jury - where counsel addressed the jury on the truth of the imputations alleged and intention of the publisher - whether error of discretion - appeal dismissed.

MOTOR VEHICLE LAW - "injury" - "defect" in use or operation - Motor Accidents Act 1988, s3(1) - INSURANCE LAW - self-insurer employer - indemnity not contribution from third party insurer - no co-ordinate liability.

Resumption and acquisition of land - compensation - assessment and related matters - factors in estimating compensation - disturbance

CRIMINAL LAW - Community Service Order - breach - warrant for arrest - Community Service Order expired - whether execution of warrants lawful - CRIMINAL LAW - ss 23, 24 Community Service Orders Act 1979 - meaning of 'proceedings' - whether referred to actual arrest or issue of warrant - ND

Criminal Law - Sentencing - s52A of Crimes Act - dangerous driving occasioning grievous bodily harm - no question of principle

CORPORATIONS [216]- Winding up- statutory demand- Defective- Point not taken in time- Other invalid attacks made on demand- Giver of demand now in liquidation- Whether demand can or should be set aside.

Criminal Law - robbery in company with wounding - detaining for advantage - appeal from conviction and sentence - identification evidence - whether warning required - evidence of untruths told by appellant - whether evidence going to credibility or consciousness of guilt - whether warning required - appeal dismissed.

Withdrawal of plea prior to conviction - applicable principles - using false instruments - construction of ss299 & 300 of Crimes Act 1900 - whether evidence sufficient to support charges.

Appeal against severity of sentence - Aggravated break, enter and steal - Justifiable sense of grievance - Parity

CRIMINAL LAW - murder - appeal against conviction - whether direction on provocation required - where no evidence of loss of self-control - whether summing up incomplete because particular evidence not referred to.

Appeal against severity of sentence - Aggravated break and enter with intent - Entering guilty plea at earliest opportunity - Concurrent sentences

Practice and Procedure - special federal matter - whether proceedings be transferred to Federal Court - whether special reasons for matter to be determined by this Court - proceedings fixed for early hearing - notice to Commonwealth and State Attorneys-General - neither participating in hearing - application for leave to take evidence by audio-visual link.

Proceeds of Crime - Restraining order - Liability for costs where Summons dismissed

Appeal decision of Local Court Magistrate

Criminal law - sentencing - special circumstances - leave to reargue correctness of R v Hameed [2001] NSWCCA 287

Indemnity costs - Contingency premium may be included - Limited application of District Court Practice Note 42 - Costs payable as a result of an order by a Court or Tribunal does not include costs payable under a deed - Successful outcome of the matter - Unreasonable amount and unreasonably incurred are questions of fact

Appeal against decision of Liquor Administration Board - Denial of Natural Justice

PARTNERSHIP - retirement of partner - partnership agreement provided for dissolution if partner gave three months' notice and for division of assets on dissolution - construction of "assets" - whether referred to "book assets" or included value of goodwill and net present value of contractual rights - PARTNERSHIP - partnership agreement - whether agreement should be rectified to exclude goodwill and net present value of contractual rights from assets to be distributed on retirement of partner and dissolution - PARTNERSHIP - whether partner estopped from relying on partnership agreement because partnership was not conduct on that basis - ESTOPPEL - estoppel by convention - whether conduct of partnership and conversations between partners estopped a retiring partner from relying on the partnership agreement

CONVEYANCING - vendor and purchaser - contracts for sale of land not completed on their terms - deed giving further time for completion clearly stating time of essence and failure to complete would result in forfeiture of deposits - second mortgage moneys required for settlement not available on last day as delay in transfer from Singapore - moneys available following day - contract terminated after notice moneys available - whether relief against forfeiture should be granted - whether return of deposit should be ordered - CONVEYANCING - vendor and purchaser - claim for return of deposit under s 55(2A) of Conveyancing Act 1919 - whether return should be ordered - EQUITY - relief against forfeiture - whether relief against forfeiture of interest in land should be granted after termination of contracts - whether failure to complete result of accident - whether unconscionable to terminate the contract

Appeal against severity of sentence - Break, enter and steal - Guily plea at earliest opportunity - Application of Ellis principle