Cases and authorities

CRIMINAL LAW - SENTENCING - Manslaughter - stab wound - melee - flight from scene - act of stabbing deliberate - no evidence justifying use of knife in a manner which killed the deceased

CORPORATIONS — Asset preservation orders under s1323 and 1324 — The relevant principles applicable to ex parte applications and subsequent contested applications where sought by ASIC — Jurisdictional and discretionary basis — Relevance of dissipation of assets and prima facie case.

Claim for indemnity under Export Policy of Trade Credit Insurance - Indemnity denied on basis of alleged dispute between Buyer and Insured - Whether dispute existed - whether Insurer entitled to refuse to indemnify Insured.

Extension of time to commence proceedings ss 60G and I - Limitation Act - Wards of the States of Victoria and NSW

[CORPORATIONS LAW] - Policy of the establishment and structure of the National Guarantee Fund under Part 7.10 of the Corporations Law - Entitlement to make a claim on the Fund pursuant to s 957 of the Corporations Law - Statutory obligations of the Board of the Securities Exchange Guarantee Corporation (SEGC) pursuant to Divisions 7 & 9 of Part 7.10 of the Corporations Law in considering whether it is satisfied that a claimant is entitled to make a claim on the Fund pursuant to s 957 - Whether payments to a claimant by a third party may be taken into account by the Board in such consideration - SEGC's statutory right of subrogation pursuant to s 980(2) of the Corporations Law - Whether claimant's contractual assignment of rights to a third party precludes an entitlement to make a claim under s 957. [DECLARATORY ORDERS] - Whether application for declaration should be entertained prior to the Board of the SEGC considering the defendants' entitlement to make claims pursuant to s 957 of the Corporations Law.

Claim for client legal privilege

CRIMINAL LAW - dangerous driving occasioning death - whether sentence manifestly excessive - where strong subjective features redounding to appellant's credit - whether incorrect application of sentencing principles - R v Jurisic (1998) 45 NSWLR 209

Sentencing - Appellant committed for sentence to the District Court pursuant to s 51A of the Justices Act 1902 - One count of break, enter and steal specified jewellery to the value of $38,000 - Appellant adheres to plea of guilty in District Court and admits stealing electric drill (not particularised) but denies stealing the particularized jewellery - Consideration of appropriate procedure to be followed by the sentencing judge in such circumstances - necessity to comply carefully and precisely with terms of s 51A.

APPEAL - Court of Appeal - appeal on fact - approach of an appellate court - dispute as to credibility and factual findings of trial judge - nothing to show trial judge failed to use or palpably misused his advantage - evidence of respondent preferred. ND

Workers Compensation - where trial judge accepted some parts of plaintiff's evidence and rejected others - no obligation on trial judge to say why some parts of evidence believed and others not - appeal dismissed.

Liability - motor cycle and unidentified vehicle - whether there was another vehicle and whether it was the cause of the accident - whether there should have been a view of the accident site.

Sentencing - murder - drug addict - plea of guilty - eighteen years - non parole period thirteen and a half years

Evidence Act (1995) - Evidence - Admissibility - Opinion evidence - Expert opinion - Section 79 - Specialised knowledge - Whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience

Corporations Law. Application to set aside statutory demand. Genuine dispute established and demand set aside. No matter of principle.

Family Provision. Application by son who was left a minimal legacy by his mother. Mother unreasonably cuts off relationship with son. Discussion of conduct disentitling. Order made for legacy of $100,000.

Dangerous driving occasioning death- Jurisic guidelines- "momentary reckless error of judgment"- gradations of culpability- suspended sentence not excessively lenient - :Crown appeal- discretion-Crown's attitude below- departure on appeal. - :Suspended sentence- two step procedure- reasons for - failure to follow may but does not necessarily reveal error in sentence.

Criminal Law- - sentencing- prisoner in need of surgery- - fresh evidence on sentence- departmental responsibility to provide medical care to prisoners- - the limited role of the Court of Criminal Appeal.

Criminal law- sentence- not manifestly excessive- sentencer not obliged to specify the degree of reduction of penalty attributable to each subjective circumstance- and should not do so- multiple offences - separate assessment of criminality required (R v Itamua, Pearce v The Queen applies)- accumulation of sentences as a "special circumstance"- principle of totality.

Criminal law - appeal against conviction - admissibility of ERISP - accused a child at time of interview - s.13 Children (Criminal Proceedings) Act - absence at interview of accompanying person - reasonable to admit evidence - significant possibility evidence would not have been admitted - significant possibility of acquittal - appeal upheld - new trial ordered.

Criminal law - appeal - sentence - drug courier - relevance of personal circumstances - no question of principle.

Notice of Motion - Application to strike out appeal for want of prosecution - where essential documents for a re-trial cannot be found - delay of approximately 16 years from filing of notice of appeal to institution of appeal - application granted.

Defamation - imputations - challenge to capacity to defame - assertion of homosexual intercourse

Plaintiff sues defendant to recover amount alleged to have been paid by mistake - amount paid as result of misleading conduct on part of defendant - denied.

Defamation - Defamation List Practice Note 114 - Part 67 r 12A SCR

Equity - Implied Trusts - Resulting trusts - Whether rebuttal of presumption of advancement from parent to child of equitable interest in property in addition to legal title - Whether parent possessed "definite intention" to retain beneficial interest - Application of general law of evidence to determine whether "definite intention" proved - Conflict of Laws - Breach of foreign law - Whether Australian Courts will prevent party from enforcing in Australia a resulting trust created in a foreign jurisdiction for a purpose that was "illegal" or "unlawful" in that foreign jurisdiction - Identification of "illegal" or "unlawful" purpose - Necessity to examine provisions of foreign legislation - Ascertainment of "policy" of legislation - Where foreign jurisdiction is Germany - Where foreign law relates to capital gains tax avoidance or evasion - Conflict of Laws - Presumption of identity of unproved foreign law and the lex fori - Whether such presumption should be made - Where foreign jurisdiction is Germany - Where relevant unproved foreign law is likely to be statute-based - Where relevant unproved foreign law relates to capital gains tax avoidance and evasion - Where taxation law is not an area of law that is based on broad principles that can be assumed to be part of any given legal system - D

Administrative Law - Jurisdiction of Government and Related Employees Appeals Tribunal - Whether Tribunal lacked jurisdiction to review decision to recommend dismissal of officer to Governor - Whether Tribunal lacked jurisdiction to review decision to withhold salary from suspended officer - Existence of jurisdictional fact - Whether relevant decisions were "disciplinary" in nature so as to invoke Tribunal’s jurisdiction - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e) and 23(1)(f). - Employment Law - Whether Crown’s prerogative right to dismiss public employees at pleasure can be fettered by an appeal to the Government and Related Employees Appeals Tribunal - Where appeal to Tribunal was against decision to recommend dismissal to Governor rather than against dismissal decision itself - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e), 23(1)(f) and 37. - Statutory Construction - Whether sections of Government and Related Employees Appeal Tribunal Act should be read down so as to detract from the Crown’s prerogative right to dismiss at pleasure - Whether Parliament intended Tribunal to hear appeals against decisions to recommend to the Governor that an officer be dismissed subject to the Crown’s right to dismiss at pleasure - Government and Related Employees Appeal Tribunal Act 1980 (NSW), ss 23(1), 24(1) and 37 - and Public Sector Management Act 1988 (NSW), s 54. D

FAMILY LAW - De facto relationships - Adjustment of interests in property - Contributions by one party to business of company solely owned by other - Debt and other contract claims should not be left to be separately litigated - Need for proceedings to produce finality in all aspects of relationship - Order for payment made - Proceedings separately maintainable barred

CONTRACTS - General contractual principles - Termination of contract by common intention - Formation of contract by correspondence - Repudiation - Non-acceptance of repudiation by promisee - Affirmation by promisee - Estoppel not created - LANDLORD AND TENANT - Covenants - Effect of covenants in registered lease before registration of transfer of lease - Termination by landlord for breach of "essential" term of lease - Circumstances where consent to assignment causes landlord to be estopped from relying on lease covenant against assignee - EQUITY - Relief against forfeiture

Commercial Arbitration Act - Leave to appeal from interim award - discretion - error of law not manifest on the face of the award - contract - measure of damage - principles

Criminal law - life sentences - application for re-determination - original offences of murder not worst class of case - statutory maximum for other offence reduced from life to 25 years - circumstances of all offences - views of trial judge - non-release recommendation - effects of amendments to s.13A - special reasons justifying determination - co-offender's sentences re-determined under provision before relevant amendments - facts different - no parity required - marked rehabilitation - no special reasons considering culpability - applicant not eligible for re-determination - power to direct applicant not re-apply does not arise.

Practice & procedure - setting aside subpoena for abuse of process - ground of manifest irrelevance - status of applicant party other than person subpoenaed - sufficient interest of applicant.

CRIMINAL LAW - Crown appeal against sentence - s 29D Crimes Act 1914 (Cth) - Systematic fraud - taxation - prescribed payment system - pay as you earn - early guilty plea - high level co-operation - principles when sentencing for revenue fraud - general deterrence - whether sentences manifestly inadequate - whether sentences unreasonable or plainly unjust

CRIMINAL LAW - supply of not less than the large commercial quantity of methylamphetamine - s 25 Drug Misuse and Trafficking Act 1985 - joint possession for supply - requirement of knowledge - inference of knowledge as to quantity from circumstances - D

CRIMINAL LAW - carnal knowledge by step-father of step-daughter - whether step-relationship because of de facto relationship between offender and mother of child - or because of offender's position of authority and control over child - held no - marriage between offender and mother of child is necessary. D.

Sentence - Manslaughter - Diminished responsibility - Effects of prescribed drug - Extraordinary circumstances - Act out of character - Immediate confession - Plea of guilty - Criteria for sentencing -

Personal injury - damages

Mediation of civil proceedings - party not consenting to order - compulsory order for mediation - Principles - meaning of obligation to mediate in good faith - Overriding purpose of Supreme Court Rules - Just, quick and cheap resolution of issues in civil proceedings

Customs - Imported Goods - Non-entry of goods for home consumption - Whether duty payable despite lack of entry for home consumption - Customs Act 1901 (Cth), ss 30, 36, 68, 132, 153 - Customs Tariff Act 1982 (Cth), ss 11, 18 and 19 - Customs Tariff Act 1987 (Cth), ss 13, 21 and 22. - Statutory Construction - Customs legislation - Non-entry of imported goods for home consumption - Whether duty payable despite lack of entry for home consumption - Customs Act 1901 (Cth), ss 30, 36, 68, 132, 153 - Customs Tariff Act 1982 (Cth), ss 11, 18 and 19 - Customs Tariff Act 1987 (Cth), s 13, 21 and 22 - D

COSTS - Calderbank letter - in substance, invited capitulation - appeal was arguable and decided by majority - no special costs order. ND.

NEGLIGENCE - Duty of Care - breach of duty - whether appellant breached duty of care by failing to evict person responsible for fight and failing to provide security guards - DAMAGES - Negligence - assessment of damages - sick pay and loss of earning capacity - appeal upheld. D

COSTS - vendor and purchaser - purchaser claims restraint of termination on premature Notice to Complete and specific performance - interim injunction - sale settled without judicial decision - purchaser seeks costs on indemnity basis - on the facts, vendor was not in compliance with Special Condition dealing with encroachments on easements, was not entitled to give Notice to Complete or to threaten termination and acted unreasonably - principles in which costs are not awarded in compromised proceedings did not apply as the vendor had not adopted reasonable positions.

VENDOR and PURCHASER - option to purchase "upon the grantor's death" - collateral assurance that widow would not be disturbed - one month after death purchaser assured widow in writing - "... no intention of exercising ... first Right of Refusal ..." - executors transmitted title to widow who occupied property for 7 years and died - purchaser sought to enforce option against her executors - Held - option no longer available for exercise - executors not affected by any equities arising out of dealings with grantor.

Evidence - Admissibility - Form Transparency of reasoning processes

Contract - Life Insurance Policy - definition of "Heart Attack" - myocardial infarction - diagnosis required to be based on electrocardiogram and biochemical assessment.ND

Practice and Procedure - Discovery

Negligence - Master and servant duty - Damages - Workers' Compensation Act s151 - Threshold

Stated case - Purpose of - Requirements as to contents of stated case - Criminal Appeal Act 1912 (NSW), s 5B