Cases and authorities

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander Costs – Limit on maximum costs in connection with claim for "personal injury damages" – Legal Profession Act 1987 (NSW), ss 198C and 198D – Where "personal injury damages" defined to have same meaning as in Civil Liability Act 2002 (NSW) – Whether maximum costs limitation applies to claims for personal injury damages resulting from intentional acts. Statutory interpretation – Principles – Reading provision in context – Whether, when operative statute adopts term in source statute, account must be taken of operation of term in source statute – Effect of amendments to statute. Words and phrases – "award of personal injury damages", "claim for personal injury damages", "maximum costs", "personal injury damages", "same meaning". Civil Liability Act 2002 (NSW), Pt 2, ss 3, 9. Legal Profession Act 1987 (NSW), Pt 11 Div 5B, ss 198C, 198

Costs – Limit on maximum costs in connection with claim for "personal injury damages" – Legal Profession Act 2004 (NSW), s 338 – Where "personal injury damages" defined to have same meaning as in Civil Liability Act 2002 (NSW), Pt 2 – Whether maximum costs limitation applies to claims for personal injury damages resulting from intentional acts. Costs – Limit on maximum costs in connection with claim for "personal injury damages" – Legal Profession Act 2004 (NSW), s 338 – Claim for false imprisonment not claim for "personal injury damages" – Where such claim is included in claim for damages and not severable part of claim, the claim for damages not claim for "personal injury damages". Statutory interpretation – Principles – Reading provision in context – Whether, when operative statute adopts term in source statute, account must be taken of operation of term in source statute – Effect of amendments to statute. Words and phrases – "award of personal injury damages", "claim for personal injury damages", "false imprisonment", "maximum costs", "personal injury damages", "same meaning". Civil Liability Act 2002 (NSW), Pt 2, ss 3B, 11. Legal Profession Act 2004 (NSW), Pt 3.2 Div 9, ss 337, 338.

Elias v The Queen Issa v The Queen Criminal law – Sentence – Where offence carries higher maximum penalty than other offence for which offender could have been prosecuted – Whether sentencing judge required to take lesser maximum penalty for other offence into account as mitigating factor – Whether R v Liang (1995) 124 FLR 350 should be followed. Criminal law – Respective roles of prosecution and sentencing judge – Whether appropriate for sentencing judge to have regard to other offence which judge considers as appropriate or more appropriate to facts of case. Sentencing Act 1991 (Vic), s 5(1), (2).

Income tax – International Organisations (Privileges and Immunities) Act 1963 (Cth) – Exemption from taxation on salaries and emoluments received from certain international organisations – Whether monthly pension payments exempt from taxation. International law – Treaty interpretation – Privileges and immunities of specialized agencies – Whether Convention on the Privileges and Immunities of the Specialized Agencies requires Australia not to tax monthly pension payments received by former officer of specialized agency. Words and phrases – "emolument", "pension", "salary". International Organisations (Privileges and Immunities) Act 1963 (Cth), s 6(1)(d)(i), Fourth Schedule. Specialized Agencies (Privileges and Immunities) Regulations (Cth), reg 8(1). Convention on the Privileges and Immunities of the Specialized Agencies [1988] ATS 41, Sections 18-19, 22.

Truong v The Queen Extradition - Extradition to Australia from other countries - Extradition Act 1988 (Cth), Pt IV (ss 40-44) - Speciality - Offences for which extraditable person surrendered - Request for extradition for offences including murder, kidnapping, conspiracy to commit murder and conspiracy to kidnap - Appellant surrendered to Australia in relation to conspiracy to commit murder and conspiracy to kidnap - Appellant charged and tried in Supreme Court of Victoria for murder and kidnapping - Whether offences of murder and kidnapping were offences of which the appellant could be convicted on proof of the conduct constituting the offences of conspiracy to commit murder and conspiracy to kidnap. Extradition - Speciality - Speciality arrangement between Australia and the United Kingdom - Speciality arrangement under Extradition Act 1989 (UK) - Whether breach of speciality arrangement. Constitutional law - State Supreme Court - Jurisdiction of the Supreme Court of Victoria - Extraditable person "shall not ... be ... tried in Australia" for any offence other than any offence in respect of which the person was surrendered or "any other offence ... of which the person could be convicted on proof of the conduct constituting any such offence" - Whether trial of appellant for offences of murder and kidnapping beyond the jurisdiction of the Supreme Court of Victoria - Whether prohibition of trial for offences (other than offence for which extradited and offence of which the extraditable person could be convicted on proof of the conduct constituting the extradition offence) founded special plea to the arraignment or withdrew jurisdiction from court over the trial for the offence for which the extraditable person "shall not be tried" - Whether trial of offence for which the extraditable person "shall not be tried" a miscarriage of justice. Criminal law - Murder - Kidnapping - Conspiracy to murder - Conspiracy to kidnap. Extradition Act 1988 (Cth), ss 10, 42. Crimes Act 1958 (Vic), ss 321A, 323. Extradition Act 1989 (UK). GLEESON CJ, Mc

Practice and procedure – High Court of Australia – Enforcement of judgments – Remittal of matters – Costs – Ex parte application for remedies for enforcement of judgment of High Court under s 77M of Judiciary Act 1903 (Cth) – Costs order in special leave application – Writ for levy of property and garnishee order – Judgment debtor claimed set-off for costs to be taxed in proceedings in Federal Court of Australia – Whether claim for remedies for enforcement of costs order should be remitted to Federal Court. Practice and procedure – High Court of Australia – Ex parte application – Material non-disclosure on application for writ for levy of property – Whether writ should be set aside. Judiciary Act 1903 (Cth), ss 39B(1A)(c), 44, 77

Practice and Procedure - Late application for leave to amend defendant's pleadings - Aon Risk Services Australia Ltd v Australian National University - Overriding Purpose Rule - Principled exercise of discretion to dismiss motion for leave to amend

Statutes – Interpretation – Where conjoined "wagering licence" and "gaming licence" issued under statutory scheme – Where statute provided for payment on "grant of new licences" – Where statutory scheme amended so no new wagering licence and gaming licence could be issued – Whether "grant of new licences" confined to grant of new wagering licence and gaming licence – Whether payment due. Statutes – Interpretation – Context – Relevance of legislative history – Relevance of commercial context. Statutes – Interpretation – Principle of legality – Whether principle engaged where nature of right is contingent and interest to be protected is limited. Words and phrases – "gaming licence", "gaming machine entitlement", "grant of new licences". Gambling Regulation Act 2003 (Vic), Pt 4A of Ch 3, Pt 3 of Ch 4, ss 4.3.4A, 4.3.12.

Contract – Construction of terms – Where contract used statutory term "gaming operator's licence" – Where contract provided for payment to respondent if "new gaming operator's licence" issued to person other than respondent – Where statutory scheme amended so gaming operator's licence could no longer be issued – Meaning of "new gaming operator's licence" – Whether payment due. Contract – Construction of terms – Context and purpose – Where commercial context regulated by statutory regime – Where letter from member of Executive annexed to contract – View of reasonable business people. Contract – Construction of terms – Whether pre-existing contractual right operated independently of statutory right on same subject matter – Whether pre-existing contractual right discharged or abrogated by subsequent legislative enactment. Words and phrases – "gaming machine entitlement", "gaming operator's licence", "new gaming operator's licence". Gaming Machine Control Act 1991 (Vic), Pt 3. Gambling Regulation Act 2003 (Vic), Pts 4 and 4A of Ch 3.

Criminal law – Evidence – Unsworn evidence – Where respondent convicted following trial in Supreme Court of the Australian Capital Territory of commission of act of indecency in presence of daughter, R – Where R six years old when giving evidence – Where R's evidence received unsworn under s 13(3) of Uniform Evidence legislation – Where ex tempore reasons of pre-trial judge suggested reversal of presumption of competence to give sworn evidence – Where respondent agreed to be bound by pre-trial judge's ruling under s 13(3) – Whether pre-trial judge failed to apply s 13 – Whether open to pre-trial judge to be satisfied s 13(3) test met – Whether R's unsworn evidence wrongly admitted. Criminal law – Evidence – Jury directions – Where audiovisual recording of child witness' unsworn evidence tendered at trial – Where respondent requested trial judge direct jury that evidence unsworn – Whether Uniform Evidence legislation required direction – Whether common law required direction to avoid perceptible risk of miscarriage of justice – Whether adequate directions given. Words and phrases – "competence", "evidence of a kind that may be unreliable", "evidence of children", "obligation to give truthful evidence", "perceptible risk of a miscarriage of justice", "presumption of competence", "reliability", "sworn evidence", "unsworn evidence". Crimes Act 1900 (ACT), s 61(1). Evidence Act 2011 (ACT), ss 12, 13, 21, 165, 165A, Sched 1. Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 70.

CRIMINAL LAW - obtaining financial advantage by deception - breach of trust - money laundering offence charged additionally to principal offence - no additional criminality - sentence to be concurrent not cumulative

EQUITY [184]- Duty of trustees to render accounts- Trustee obliged to account on demand and not entitled to wait until all beneficiary's evidence filed- Trustee/first defendant accused of utilising trust funds for personal profit in an investment scheme whereby a loss resulted- Application by one of the beneficiaries for freezing orders in respect of the trustee's assets and for trustee to provide affidavit of assets or affidavits in reply- Held premature.

CRIMINAL LAW - appeal against sentence - kidnapping of 5 year old boy for sexual gratification - factors relevant to assessment of objective gravity of offence - brief period of detention - sentence manifestly excessive - no error in exercise of discretion to partially accumulate sentences.

CRIMINAL LAW AND PROCEDURE - Sentence - Juvenile aged 15 - Parity with sentence on co-offender - Any sense of grievance not justified - Judge misinformed that standard non-parole period applicable - Express reference to this when assessing sentence - Material error which must have operated adversely to offender

Real property – Resumption of land – Leases – Where registered lease expressed to confer interest over specified lot of land that was later amalgamated with adjacent lot – Where land previously part of adjacent lot resumed by local council – Whether lessee's interest extended to entire amalgamated lot upon registration of plan of subdivision under Land Title Act 1994 (Q) – Whether lessee had compensable interest in resumed land under Acquisition of Land Act 1967 (Q), s 12(5). Real property – Leases – Retail leases – Construction and interpretation – Whether necessary to construe lease otherwise than in accordance with natural and ordinary effect of its terms. Statutes – Interpretation – Function of definition clause – Whether definition of "Common Areas" in retail shop lease inconsistent with definition of "common areas" in Retail Shop Leases Act 1994 (Q), s 6. Words and phrases – "common areas", "interest in land", "outgoings", "plan of subdivision", "registered lease", "registration of an instrument", "resumed land", "retail shop lease", "retail shopping centre". Acquisition of Land Act 1967 (Q), ss 2, 12(5). Acts Interpretation Act 1954 (Q), s 36. Land Title Act 1994 (Q), ss 12, 49, 49A, 50, 64, 65, 182, 183, 184, Sched 2. Retail Shop Leases Act 1994 (Q), ss 3, 5, 6, 7(1), 8, 19, 20, 38(2), 40(1), Pt 3 Div 2, Schedule.

CRIMINAL LAW - Application for leave to appeal - inordinate delay - whether Judge failed to take account of applicant's guilty pleas - whether a lesser sentence warranted.

CRIMINAL LAW - no question of principle

CRIMINAL LAW - failure in summing up to put defence case - consciousness of guilt

CRIMINAL LAW – leave to appeal against sentence – whether psychiatrist report can be tendered as fresh evidence – whether sentence was manifestly excessive – whether assessment of seriousness of offence was correct – report rejected as opportunity was available to place before sentencing judge - conclusions within sentencing judge’s discretion – leave to appeal granted but appeal dismissed.

CRIMINAL LAW - appeal and new trial - appeal against sentence - whether sentence manifestly excessive - no point of principle

CRIMINAL LAW - sentence - supply prohibited drug (methylamphetamine) - no financial gain - evidence of substantial rehabilitation - sentences manifestly excessive

CRIMINAL LAW AND PROCEDURE - Procedural regularity - Lack of co-ordination between facts supplied to sentencing court and counts in indictment - Concession concerning procedural fairness

Mallard v The Queen Criminal law - Appellant convicted of murder - Appellant petitioned for mercy - Attorney-General referred petition to Court of Criminal Appeal - Whether non-disclosure of exculpatory evidence by prosecution denied appellant a fair trial or fair chance of acquittal - Scope of jurisdiction of Court of Criminal Appeal on Attorney-General's reference under s 140(1)(a) Sentencing Act 1995 (WA) - Duty to consider the "whole case" - Whether Court of Criminal Appeal erred in refusing to consider evidence adduced at trial - Whether jury verdict unreasonable or unsupportable - Whether jury verdict could not be supported having regard to the evidence - Whether a substantial miscarriage of justice occurred - Whether a retrial should be ordered. Appeal - New trial - Petition for mercy - Reference of whole case to Court of Criminal Appeal - Scope of proceedings in Full Court. Words and phrases - "fresh evidence", "new evidence", "whole case", "as if it were an appeal". Criminal Code (WA), ss 21, 689(1). Sentencing Act 1995 (WA), s 140(1)(a).

Travel Compensation Fund v Robert Tambree T/as R Tambree & Associates Trade Practices - Fair Trading Act - Misleading or deceptive conduct - Person who suffers loss or damage by conduct of another in contravention of Act. Damages - Causation - Whether illegal conduct severed the chain of causation - Travel Compensation Fund established as part of national scheme for regulation of travel agents - Fund compensated members of the public who suffered loss by reason of an act or omission of a travel agent - Travel Shop International ("TSI") was a participant in the Fund - Financial statements of TSI prepared by first respondent and audited by second respondent in support of TSI's continued participation in the Fund - Appellant acted in reliance on information about the financial position of TSI - Respondents knew of such reliance - Respondents negligent and engaged in misleading or deceptive conduct in preparing and auditing the financial statements of TSI - Unlawful trading by TSI a cause of the damage suffered by the appellant. Damages - Causation - Statutory context relevant to determining approach to causation - Application of common law approach to causation in the context of the Fair Trading Act - Whether policy considerations and value judgments relevant. Fair Trading Act 1987 (NSW), ss 42, 68. Travel Agents Act 1986 (NSW).

CRIMINAL LAW AND PROCEDURE - Sentence - "Discount" for past and future assistance - Figures in authorities referring to "combined discount" including allowance for plea of guilty - No error in assessment by sentencing judge

CRIMINAL LAW AND PROCEDURE - Application to add ground of appeal - Assertions incapable of demonstrating miscarriage - Application refused

CRIMINAL LAW - special hearing under Mental Health (Criminal Procedure) Act - malicious wounding with intent and related charges - limiting term on major charge - appeal against conviction - no question of principle - application for leave to appeal against sentence - whether suspended sentence available after special hearing

CRIMINAL LAW – appeal – sentence – two sentences for armed robbery – no issue of principle – complaint concerning totality of sentence when combined with sentence imposed by Local Court for break enter and steal to which the sentences under appeal are to be served consecutively – no identifiable or manifest error – leave to appeal granted, appeal dismissed

CRIMINAL LAW AND PROCEDURE - Sentence - Inadequacy - Totality - Cumulation too little to reflect seriousness

Commissioner of Taxation (Cth) v Sun Alliance Investments Pty Limited (in liquidation) Income tax - Capital gains and losses - Reduced amount of any consideration in respect of the acquisition of an asset - Royal and Sun Alliance Insurance Australia Holdings Limited ("RSA") formed by merger of the Royal Group and the Sun Alliance Group - RSA deemed by operation of s 160ZZS of the Income Tax Assessment Act 1936 (Cth) ("the 1936 Act") to have acquired shares in two wholly owned subsidiaries on date of merger for a consideration equal to the market value of those shares on that date - Reconstructed accounts of subsidiaries showed unrealised accretions to the value of their assets at the merger date - Subsidiaries subsequently declared and paid dividends to RSA which attracted a rebate of tax payable on the dividends - RSA disposed of its shares in the subsidiaries and claimed capital losses on the disposals - Losses sought, in part, to be transferred to taxpayer - Whether, pursuant to s 160ZK of the 1936 Act, the consideration in respect of RSA's deemed acquisition of shares in the subsidiaries was required to be reduced by a rebatable dividend adjustment - Whether dividends distributed by the subsidiaries were attributable to profits derived by them before RSA's deemed acquisition of shares in those subsidiaries - Whether unrealised accretions to the value of assets must have permanent character in order to be profits - Whether unrealised profits can be said to be derived. Words and phrases - "attributable to profits that were derived". Income Tax Assessment Act 1936 (Cth), s 160ZK(5)(b).

Criminal Law - Crown appeal on sentence - Aggravated robbery by offender on parole - whether judge erred in assessing the offence as in the low range - whether sentence manifestly inadequate by being substantially concurrent with balance of parole - whether Court should resentence the respondent.

CRIMINAL LAW AND PROCEDURE - Sexual intercourse without consent knowing the complainant is not consenting - Sentence - Late plea of guilty - Head sentence less than half prescribed standard non-parole period - Obvious assessment of offence in low range of culpability - Statement by complainant tendered without objection - No error in account given by judge to content

CRIMINAL LAW AND PROCEDURE - Sentence - Crown appeal asserting inadequacy - Error by judge refusing to reflect general deterrence - Not mitigatory if offender does not seek to have plea of guilty to lesser offence when not disputing guilt of offence charged - Crown submission of inadequacy upheld

CRIMINAL LAW AND PROCEDURE - Sentence - Fact finding by sentencing judge following conviction of offender - Supply of large commercial quantity of prohibited drug - Finding of actual amount of dealing - Evidence - Conclusion open - No particular point of principle

Criminal Law - Appeal against sentence - No error asserted in sentence - Fresh evidence - Applicant prevented from having parole transferred to Victoria - no jurisdiction to review administrative decision - not exceptional case warranting intervention by court.

CRIMINAL LAW - appeal and acquittal - verdict unreasonable or insupportable having regard to evidence - circumstantial case with single circumstance - fingerprints - hypothesis consistent with innocence not excluded

CRIMINAL LAW - appeal and new trial - appeal against sentence - whether error in not taking into account provocation by victim - held no error - no point of principle

CRIMINAL LAW AND PROCEDURE - Sexual offences against six year old child - Evidence - Investigation by judge whether child incapable of understanding obligation to give truthful evidence - Difference between that concept and knowledge of what is a lie and truth - Statutory test fulfilled - No error by judge

CRIMINAL LAW AND PROCEDURE - Sentence - User/supplier of prohibited drug (ecstasy) - Low place in drug hierarchy - Young offender - Admission of offending on arrest - Early plea of guilty - Valuable assistance to authorities - Whether starting point too high - Apparent sentencing pattern in which sentence near upper limit - No justifiable grievance regarding treatment of co-offenders - Whether sentence excessive in particular circumstances

CRIMINAL LAW - Sentence - breach of community service order - offence dealt with under s 166 of Criminal Procedure Act - whether discretion on resentence after breach miscarried - sentencing for negligent driving causing death.

Statutory interpretation – Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ("IBAC Act") – Investigation by Independent Broad-based Anti-corruption Commission into allegations of assault and human rights violations by officers of Victoria Police – Where appellants were police officers suspected of involvement in alleged assault – Where appellants summoned to give evidence at public examination – Whether power to hold examination under Pt 6 of IBAC Act exercisable in relation to persons who have not been, but may be, charged with offence relating to subject matter of examination. Statutory interpretation – Common law rights – Whether s 144 of IBAC Act abrogates privilege against self-incrimination. Words and phrases – "abrogate", "companion principle", "compulsory examination", "police personnel misconduct", "principle of legality", "privilege against self-incrimination". Independent Broad-based Anti-corruption Commission Act 2011 (Vic), ss 5, 8, 15, 42, 84(2), 120, 144.

CRIMINAL LAW AND PROCEDURE - Sentence - Judge misinformed as to prescribed standard non-parole period - Misinformation specified a longer than correct period - Express reference to mistakenly inflated period - Material error shown - Sentence reduced

CRIMINAL LAW - appeal - whether the imposition of the sentence upon the applicant is outside the proper sentencing discretion of the sentencing judge - relevance of co-offender's aggravating and subjective circumstances

CRIMINAL LAW AND PROCEDURE - Sentence - Judge indicates intention to alter proportion of non-parole period to total term in favour of offender - Effect of sentence for unrelated offences seemingly overlooked - Resentence to achieve favourable proportion

CRIMINAL LAW AND PROCEDURE - Trial - Refusal of Judge to leave claim of duress to jury - Sufficiency of evidence on that issue - Similar situation to co-acused whose conviction quashed on that ground

CRIMINAL LAW - appeal - appeal against sentence - subjective features of appellant - discount for assistance to authorities - sentence manifestly excessive - appeal dismissed

Practice and procedure – High Court of Australia – Appeal – Stay of proceeding – Application to stay criminal proceeding in Supreme Court of New South Wales pending determination of application for special leave to appeal – Applicant made interlocutory application before empanelment of jury in proceeding on indictment in Supreme Court to quash indictment or permanently stay proceeding – Application refused by single judge – Appeal dismissed by Court of Criminal Appeal – Application made for special leave to appeal – Whether criminal proceeding should be stayed pending determination of special leave application. High Court Rules 2004 (Cth), r 8.07.

Criminal law – Jury verdict – Unreasonable or insupportable verdict – Inconsistency between multiple counts – Indictment containing multiple counts of sexual offences with respect to one complainant.