Cases and authorities

CRIMINAL LAW - appeals - sentencing appeal - redetermination of life sentence - relevance of sentences imposed subsequent to the oife sentence - principle of totality - whether sentence manifestly excessive

Crown appeal; inadequacy of sentence; offer bribe; supply prohibited drug; police corruption.

CRIMINAL LAW; sentence; maliciously inflicting grievous bodily harm; parity; worst type of case

Driving whilst disqualified; Traffic Act; Local Court; Crimes Act s 556A; Justices Act ss 75B, 76; District Court; Denial of procedural fairness; Discretion in sentencing; Double jeopardy; Proceedings returned to the Local Court

amendment of transcript of proceedings

Taxation; Land Tax; Unutilised value allowance - what is the basis of calculation?

COPYRIGHT ACT 1968 (COMMONWEALTH), Part VA - Copying of Transmissions by Educational and Other Institutions -Generally Accepted Mistake of Law as to Entitlement to Royalties of Copyright Owners of Copyright in Sound Recordings Incorporated into the Sound-Track of Cinematograph Films Causing Breaches of Trust by Plaintiff Collecting Society in Distributing Equitable Remuneration to Copyright Owners - No Breach of Trust by Plaintiff Collecting Society in Paying Moneys from Plaintiff's IBNR Fund to Copyright Owners of Copyright in Artistic Works Included in a Cinematograph Film.; TRUSTEE ACT 1925 (NSW), Section 85; Held: Plaintiff Collecting Society Had Acted Honestly and Reasonably and Ought Fairly to be Excused and Wholly Relieved from Liability for Breaches of Trust;

Criminal trial - application to cross-examine in re-examination - lay opinion evidence - character in a particular respect - prior inconsistent statement - original belief inconsistent with present testimony - limited leave granted in respect of general position - particular matters ruled too prejudicial.

INJUNCTIONS — Interim injunction to protect either legal professional privilege or confidential information — Requirements — Duty of candour — Meaning of materiality in requiring full disclosure on ex parte applications for interim relief — Illegitimate use by defendant of protected information in communicating with officers of plaintiffs.

ADMINISTRATIVE LAW - workers compensation insurance premiums - assessment of appeal to Workcover Authority - grounds on which determination of Workcover Authority subject to judicial review; INSURANCE - workers compensation - assessment of premium - acquisition of business - gradual acquisition - wages and claims experience of former employer; WORDS & PHRASES - acquire, business, predecessor.

Family Provision. Application by a daughter under Family Provision Act. Whole estate left to widow. Provision of small legacy appropriate.

Sentence - importation of trafficable quantity of ecstasy - courier - process of arriving at sentence - evaluation of assistance to police - assessment of ecstasy as middle range drug - range of sentence for offences of this kind.

CRIMINAL LAW - receiving of stolen property - horse float - where trial Judge incorrectly stated in summing up time at which accused must have knowledge that goods were stolen - where correct time of knowledge later stated by trial Judge - where no recognition of prior mistake

Negligence; Nervous Shock

Criminal trial - adjournment to call overseas witness - important testimony - interests of justice on serious criminal charge - fragmented trial - necessity jury remain able to appreciate totality of evidence.

Criminal trial - application to cross-examine witness - application within limited ambit - turns on own facts - discretion considered.

Costs indemnity basis; Personal liability of solicitor; Part 52A rule 43; Costs improperly incurred.

Winding up proceedings; Strike out; Abuse of process; Collateral purpose; Solvency.

CRIMINAL LAW - Re-determination of life sentence.

LANDLORD AND TENANT - ANCILLARY RIGHTS

CORPORATIONS [182] - Voluntary administration - Protection of company property - Secured creditor - Application under s 441D to limit powers of chargee where enforcement action commenced before administration - Costs - Basis of exercise of discretion.

SENTENCING; justifiable sense of grievance; lack of parity; discount for assistance given to authorities; SENTENCING; discretion to refer for assessment for home detention

CRIMINAL LAW - sentencing - appeal against sentence for drug offences - whether manifestly escessive - whether sufficient allowance made for fact that case could have been prosecuted in Local Court

Appeal against sentence - no novel question of principle

CRIMINAL LAW - sentencing - appeal against sentence for various stealing offences - whether raises question of general principle - whether sentence excessive

CRIMINAL LAW - sentencing - appeal against sentence for dishonestly obtaining goods by deception - whether manifestly excessive - whether special circumstances exist

Appeal against sentence - no novel question of principle

CRIMINAL LAW - sentencing - appeal against sentence for armed robbery - whether raises question of principle - whether manifestly excessive - whether appellant should have been givenbenefit of a portion of time spent already in custody for other offences

CRIMINAL LAW; Importation of commercial quantity of heroin contrary to s 233B Customs Act 1901; Opinion evidence at trial admissable and properly admitted pursuant to s 79 Evidence Act 1995; Appropriate directions given by trial judge in relation to Leung's failure to give evidence; Appeal against convictions dismissed.

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Criminal Law - sentencing - manslaughter - substantial impairment by abnormality of mind

Criminal Law and Procedure - Charge to Jury - Obligation To Summarize Case For Accused

CRIMINAL LAW - sexual abuse of granddaughter - Crimes Act 1900 - s 66A - sexual intercourse with a person under the age of 10 - s 61M(2) - aggravated indecent assault against a person under the age of 10; SENTENCING - Criminal Appeal Act 1912 - Crown appeal under s 5D - whether sentence imposed by trial Judge manifestly inadequate - whether factors such as age of prisoner, contrition of prisoner, or wishes of victim's family warrant non-custodial sentence

Criminal Law & Procedure - Sentence - Juvenile - Alleged Inadequacy - Subordinate Role In Serious Assault

Jury verdict: Martin convicted of the offence of maliciously inflicting grievous bodily harm with intent to do so; Cushman convicted on a charge of being an accessory after the fact of Martin's offence.

FAMILY PROVISION - Adult daughter - testatrix made no provision for daughter aged 36 out of estate and notional estate worth $300,000 - all assets passed to son who already owned joint interest worth $120,000 in grazing property - review of family history and parties' conduct - provision of $80,000 ordered.

Application for injunction in long term contract for coal supply - Alleged invalid suspension of deliveries - implication of reasonableness - estoppel.

APPEAL from Master's decision - valuation of shares - oppression - appeal dismissed

EVIDENCE - OPINION - EXPERT - NEED TO DIFFERENTIATE ASSUMED FACTS AND OPINION

VENDOR and PURCHASER; PROPRIETARY ESTOPPEL; AGRICULTURAL TENANCIES; - Forsyth QC and his trust co. owned 12000 ac Yarrawah at Hay and permitted Clancy and his trust co. to conduct operations including grazing and cropping from October 1992 until Forsyth died in August 1997. During this time Clancy carried out extensive irrigation works and other improvements with Forsyth's knowledge approval and encouragement and earnt large sums from operations. The basis of dealing was recorded in a long series of letters and several documents - Option, Memorandum, Contract and Licence. Contract was poorly drafted by Forsyth and neogtiations for over 2 years between solicitors for formal contract to be exchanged did not result in exchange. Several weeks before Forsyth's death Clancy objected to the price and contended it was unfair and did not give credit for his improvements. Forsyth's executors treated this as repudiation, gave notice of termination and sued for possession. Clancy disputed that the Contract was intended to be binding, alleged that it was unconscionable, alleged a Proprietary Estoppel and relied on the Agricultural Tenancies Act. These defences failed on the facts, principally (1) the Contract was intended to be binding (2) If there had been room for Proprietary Estoppel, the property was held out as available only on payment of Forsyth's price, which Clancy was unwilling to pay (3) there was no sharefarming arrangement as between Forsyth and Clancy.

NEGLIGENCE - dust diseases - damages - measure of - plaintiff's estate may recover damages for destruction of earning capacity of deceased during remainder of what would have been the plaintiff's working life had he not died; NEGLIGENCE - dust diseases - multiple defendants - no issue as to causation - apportionment of damages

CONTRACT - breach - procuring breach ; CONTRACT - novation - by express words - by conduct ; CONTRACT - option to renew - construction of clause containing option - method of exercise; CONTRACT - breach - damages - future economic loss - allowance for degree of probability of future hypothetical events

DUST DISEASES - Exposure of respondent to asbestos by successive employers - respondent contracted mesothelioma ; APPORTIONMENT OF LIABILITY - s5(2) Law Reform (Miscellaneous Provisions) Act 1946 - Comparison of parties’ relative culpability - Consideration of relative blameworthiness and relevant causal potency - No medical basis to determine other than that all exposure was equally relevant - Exercise of apportionment task by trial judge - Whether entitled to have regard to factors indicating varying lengths, degree and knowledge of exposure by employers; Discussion of apportionment proposition in E M Baldwin & Son Pty Ltd v Plane (1999) Aust Torts Reports 91-499

JUDGMENT on costs and final orders

SUCCESSION - WILLS PROBATE AND ADMINISTRATION - application under Pt13 r5 Supreme Court Rules for dismissal of statement of claim seeking revocation of grant of letters of administration cta and grant in respect of later documents under s18A of the Wills Probate and Administration Act ESTOPPEL - res judicata - issue between plaintiff and defendant already determined - Anshun estoppel - claim ought to have been made in prior proceedings

CORPORATIONS [182] - Voluntary administration - Protection of company property - Secured creditor - Application to take possession of property under s 440C - Meaning of "in the possession of" - Remaining duration of administration short - Relevant considerations.