Cases and authorities

CRIMINAL LAW - s 233B Customs Act 1901 (Cth) - cocaine - trafficable quantity - SENTENCING - severity of sentence - sentencing guidelines - role of accused in criminal organisation - bare or mere courier - mitigating factors - assistance to authorities - plea of guilty - whether sufficient allowance made for assistance provided

CRIMINAL LAW - Customs Act 1901 s 233B(1)(b) - not less than the trafficable quantity of cocaine - directions to the trial jury regarding knowledge - intent - whether actual knowledge of possession of drugs was required or whether it was sufficient if the Crown proved that the appellant was aware there was a significant or real chance that he was in possession of the drugs

CRIMINAL LAW - conviction for armed robbery - inquiry pursuant to s 474G Crimes Act 1900 - referral to Court of Criminal Appeal (s 474H(2)(a) Crimes Act 1900) - fresh evidence - whether conviction should be quashed - miscarriage of justice - entitlement to acquittal as of right - whether new trial should be ordered - exercise of discretion not to order a new trial.

CRIMINAL LAW - practice and procedure - warrants - validity - "period" of warrant - obvious mistake - construction - erroneous end date did not invalidate warrant where intended date was clear - Listening Devices Act 1984

Contract - Offer and acceptance - Whether letter constituted contractual offer to vary existing contract and create new contract between parties - Where language of offer ambiguous - Assessment of mutually known facts re contractual background and shared beliefs of parties - Whether conduct partially conforming to letter of offer constituted implied acceptance - Mutually understood purpose of offer - Whether response to offer was rejection of it - Whether response to offer merely constituted posturing and negotiation - Contract - Consideration - No immediate or guaranteed increase in earnings - likelihood of future increases in earnings - Contract - Construction of terms - Meaning of "General commercial refuse" - In context of agreement with local Council to operate waste depot - Meaning of "additional income" - In context of moneys required to be remitted to local Council from fees charged for receipt of liquid waste at waste depot - Remedies - Restitution - Doctrine of unjust enrichment - Discussion about controversy and debate in Australia surrounding development of doctrine and its applicability to claims in contract - D

Application for costs of Notices of Motion.

Contract - formation of contract - whether parties intended to be bound - Trusts - intention to create trust

LOCAL COURT - civil claim - appeal - contract for sale of land - subject to finance clause - duty of care of purchaser's solicitor - whether evidence to support magistrate's finding

Tort - Negligence - Medical Negligence - Causation - Breach of duty to adequately warn of risks of procedure - Whether failure to warn of specific risks of procedure caused loss - Likelihood of patient having undergone procedure if warned of specific risks - Distinction between risk of harm and risk of no improvement - Causative significance of failure to warn of risk of no improvement - Effect of patient’s consent to previous procedures by same doctor - Effect of relationship of trust between patient and doctor - Relevance and effect of past warnings by another doctor - Court of Appeal - Orders - New trial - Order for new trial sought - grounds for - whether "substantial wrong or miscarriage" - Supreme Court Rules 1970 (NSW) Pt 51 R 23 - ND

CORPORATIONS - external administration - voidable transactions - preferential payments - Abattoir sold meat to wholesale Butcher August 1996 to March 1997 then sued to recover $186,000 unpaid account - action settled on terms that debt paid off at $7000 per month - six instalments paid in period January to June 1998 - in May and June 1998 Abattoir sold and delivered six consignments of meat which were each paid for by a cheque specifically for the price of one consignment - cheques postdated 2 or 3 weeks and handed over at or forwarded soon after delivery total $27811.58 - voluntary administration on 22 June followed by winding-up - company insolvent throughout 6 months preceding VA - on claim under subs.588FA(1) to recover payments, instalments off old debt $42,000 were held to be preferences - payments $27,811.58 for deliveries in May and June were held not to fall within subs.588FA(1) as the transactions were not preferential - consideration of categorisation of facts and events as transaction within the meaning of subs.588FA(1) - defence under s.588FG(2) failed because of grounds for suspicion of insolvency - consideration of Dye v. Peninsula Hotels (Ormiston JA)

Summary judgment - leave to proceed against a company in liquidation

SENTENCING - Crown appeal - six robberies armed with a knife in the space of six months - failure to give sufficient weight to multiplicity of offences and fact two were committed while on bail - failure to give sufficient weight to serious impact on victims - lack of reasonable proportionality between objective gravity of offences and subjective matters - sentences increased.

CRIMINAL LAW - appeal - appeal against sentence - conspiracy to import commercial quantity of cannabis - conspiracy to engage in offence of money laundering - inadequate legal advice on ability to challenge facts - individual deterrence - age of applicant - sentence manifestly excessive

CRIMINAL LAW - appeals - appeal against conviction - murder - refusal to allow withdrawal of plea of guilty - plea entered in circumstances amounting to a miscarriage of justice - advice of trial Counsel to enter plea of guilty imprudent and inappropriate

Practice & procedure - sufficiency of discovery - conclusiveness of affidavit verifying discovery.

OPTION TO PURCHASE - VENDOR and PURCHASER - Option to purchase in lease - claim for specific performance on exercise of option was resisted on (1) general denial of delivery of notice of exercise of option - found as a fact that it was delivered (2) contention that on true construction the lease and option related to the building only and not the land on which it stood, and the notice of exercise claiming to purchase the land was ineffective - held that the lease and option related to building and land (3) illegality of agreement to sell unsubdivided land - held that s.327 of LGAct 1919 did not apply as it was repealed before exercise of option and in any event did not make agreement to sell illegal see subs.327(3) (4) claim that documents delivered departed in their terms from requirements for exercise of option - held that intention was clear, departures were insubstantial and there was no repudiatory intention. Order for specific performance subject to obtaining subdivision approval.

EVIDENCE - Privilege - Legal professional privilege - Evidence on information and belief - Solicitor gives evidence that principal of client has informed him of certain matters - Privilege claimed for documents by which that information conveyed - Whether privilege lost.

Professional Negligence List - Summary dismissal - no reasonable cause of action disclosed - non service of any expert report or other evidence in support of particulars of negligence.

Evidence Act (1995) - Evidence-Admissibility - Opinion evidence - Expert opinion - Principles applicable at common law and by Evidence Act - Specialised knowledge - By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience section 79 requires that the opinion is presented in a form which makes it possible to answer that question - Experts who venture "opinions" outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority and legitimate processes of fact finding may be subverted - There must be a field of specialised knowledge and witness must identify it - Witness must have expertise in an aspect of that field, and must identify it - Opinion proffered must be substantially based on expertise of witness and witness must identify it. - Any factual assumptions underlying witness' opinion must be clearly identified and articulated - Any factual observations made by witness which underlie witness’ opinion must be clearly identified and articulated and the observations must have been sufficiently detailed to form satisfactory basis for the opinion - If witness relies on combination of factual assumptions and factual observations, they must be identified Witness must explain how the knowledge on which the witness is an expert applies to the facts assumed or observations made so as to produce the opinion propounded - Opinions reliant on books, research and other data - Experiential capacity - A person put forward as an expert must by his or her study training or experience be shown to have become sufficiently acquainted with different views in field of suggested expertise as to permit he or she to be shown to be in a position to appreciate the arguments and studies relating to particular issues in the field in order to then be in a position to express expert opinions taking into account in an informed way, literature which he or she has read - Appropriate and inappropriate use of secondary sources within opinion - Opinion on matters dealt with by other expert witnesses - Admissibility of opinions of other expert witnesses on the question of the section 79 expertise of a particular witness - Opinions grounded upon unique experience on novel matters - Court may not intrude into interior scope of the subject matter which the expert professes - Plaintiffs loss of opportunity cases - Examination of entitlement to express opinions given in relation to (i) the "functionality" of particular e-commerce financial services - (ii) the financial services markets in Australia, New Zealand, United Kingdom, Europe, the United States, Japan, Hong Kong and Taiwan - (iii) the valuation of performance bonus rights under the Consulting Agreement and the valuation of the Ausmaq Service and businesses such as the Ausmaq Service.

CORPORATIONS — PROCEDURE — Rectification and validation of scheme for reconstruction and amalgamation — Scheme never became operative according to its terms contrary to the assumptions upon which everyone has acted since 1994 — Slip rule — Authorisation under the Gas Act delivered a few seconds too late — Circularity of conditions involving scheme conditions and transfer of scheme assets — Does the Court have power and jurisdiction to make rectifying and validating orders — Possible application of s1322(4) and (2) of Corporations Law. - WORDS AND PHRASES — Meaning of "in relation to".

Family Provision - Claims by two daughters and a step-daughter - All three Plaintiffs were treated equally by the testator during his lifetime - Birth certificate of one Plaintiff (described in will as "my daughter") discloses another person as her father - Whether that Plaintiff is a daughter or a step-daughter of testator - No evidence by mother of Plaintiffs - Each Plaintiff expresses a desire to acquire tertiary education - No evidence concerning details or cost of such education - Each Plaintiff expresses a desire to acquire a residence - No evidence of cost or description of any such residence - Each Plaintiff appears to be content to continue to reside with her mother and her sisters.

CONVEYANCING - Vendor and purchaser - Units purchased from plan - Condition that if strata plan not registered within 30 months, either party could rescind - Promise by vendor to do everything reasonably necessary - Strata plan not registered within 30 months and vendor rescinds - Whether delay by architect and engineers involves breach by vendor - Whether failure to register plan caused by breach.

Extension of limitation period - Melbourne/Voyager - son killed - Mother's nervous shock

PROCEDURE [750]- Declarations- In special cases may be made on motion. SUCCESSION [267]- Administration- Powers of administrator- Right to sell only concrete asset to fund litigation.

CORPORATIONS [50]- Membership- Trusts- Trusts not to appear on register. SUCCESSION [164]- Wills- Rectification- Necessity for evidence to disclose testator's intention.

Application to Separate Counts - Murder - Aggravated robbery - Admissibility of transactional evidence

CRIMINAL LAW - appeals - appeal against conviction - obtaining a valuable thing by deception - fundamental failure of procedure - failure to give express orders for discharge of juror - failure to give express order for separation of jury

SENTENCE - drug importation - Crown appeal - whether sentence manifestly inadequate - (by majority) not manifestly inadequate. ND

CRIMINAL LAW - importation of a traffickable quantity of cocaine - application for leave to appeal against sentence - mitigating factors - allegation that application was low in hierarchy, "mere courier" - what offender did is determinative of sentence - personal circumstances and antecedents are not of significant weight in drug importation matters - application refused.

CRIMINAL LAW - withdrawal of guilty plea - s91 Criminal Procedure Act 1986 - finding of guilty made - no jurisdiction to allow withdrawal of plea - MISCARRIAGE OF JUSTICE - whether acceptance of guilty plea constituted miscarriage of justice - no miscarriage of justice

CRIMINAL LAW - appeals - appeal against leniency of sentence - importation of trafficable quantity of cocaine - departure from sentencing guideline judgment - undue weight attached to subjective elements - failure to give effect to sentencing principles - sentence manifestly lenient

Tort - Negligence - Procedure - denial of procedural fairness - right to a proper hearing - comments of trial judge did not indicate the conclusion of an issue. - Tort - Negligence - Procedure - discretion - arbitrary exercise of discretion. - Tort - Negligence - Procedure - District Court Practice - delay in commencing proceedings - Limitation Act 1969 (NSW) - resulting in prejudice towards the defendant. - Tort - Negligence - Procedure - factual error as to evidence - where factual error did not impact upon reasoning.

Contract - Appeal from Local Court on a question of law - Claim by Chartered Accountants for outstanding professional fees - Whether any evidence to support a finding that the fees were fair and reasonable - Whether parties entered into an agreement to vary the original contract - Alternatively, whether there was a voluntary forbearance by the plaintiff.

Express Trust - monies received into solicitors' trust account on terms of express trust - Held, certain payments out of trust account were made in breach of trust. - Legal Profession Act 1987 section 61 - monies received into solicitors' trust account on terms of express trust - Held, monies were received by solicitors on behalf of all beneficiaries of the express trust within the meaning of section 61 of the Act.