Cases and authorities

CRIMINAL LAW – legal representation – former counsel granted leave to withdraw – new counsel instructed – asserted prejudice to accused – multiple applications by accused for discharge of jury - whether accused can be properly represented – other matters giving rise to prejudice – cumulative effect of matters leading to prejudice – adequacy of directions as a means to cure any possible prejudice - question of whether the accused can receive a fair trial – applications refused

CRIMINAL LAW – CONVICTION APPEAL – offence of murder – whether consciousness of guilt direction should have been given – whether direction should have been given concerning fact that co-offender did not give evidence – whether verdict was unreasonable. No occasion for consciousness of guilt direction – direction concerning fact that co-accused did not give evidence not necessary – conviction appeal dismissed – SENTENCE APPEAL – whether sentence imposed manifestly excessive – findings of fact open to sentencing judge – no error in assessment of objective seriousness – appropriate matters taken into account by way of mitigation – no error in accumulation of murder sentence and discharge of firearm sentence – CONVICTION APPEAL BY CO-OFFENDER – accessory after the fact to murder – whether direction as to elements of offence correct – error in direction identified – application of proviso – appeal dismissed – SENTENCE APPEAL – offences of accessory after the fact to murder, perverting the course of justice and possessing prohibited weapons – whether findings of fact open – whether offence of possessing a prohibited firearm was part of a planned or organised criminal activity – whether plea of guilty taken into account in sentence for possess a prohibited firearm – whether technical errors necessitated re-sentencing – whether error in cumulation of sentences – appeal against sentence dismissed.

APPEAL - application for stay on ex parte basis – relevant considerations – whether appropriate to grant stay in circumstances

PROCEDURE – costs – application for indemnity costs – whether it was unreasonable to not accept an offer of compromise – presumption of receipt under s 160 of the Evidence Act 1995 (NSW) GUARANTEE AND INDEMNITY – construction of indemnity – whether the appellant is entitled to the costs of these proceedings on the basis that it has suffered “losses” under the indemnity PROCEDURE – costs – departing from the general rule – failure in a portion of a claim – whether there should be no order as to the costs of the District Court proceedings on the basis that the appellant was unsuccessful in a discrete aspect of its claim

CORPORATIONS – winding up – winding up on grounds of insolvency – failure to comply with creditor’s statutory demand – application for adjournment of winding up hearing to enable meeting of creditors to be convened – where administrators appointed – immediately prior to hearing of winding up proceedings – whether in creditors’ interests for administration to proceed

CORPORATIONS – winding up – liquidators – application for leave under (Cth) Corporations Act 2001, s 477(2B) – leave to enter into litigation funding agreement and to engage solicitors for prosecution of proceedings – purpose of s 477(2B) in preventing protraction of liquidation.

CORPORATIONS – winding up – liquidators – liquidator’s remuneration – approval of liquidator’s remuneration by court – requirement of meeting of creditors to approve remuneration to be convened before court approval can be given – doctrine of unanimous assent – where sole creditor has indicated approval of proposed remuneration in advance of meeting of creditors – held, resolution of creditors passed for the purposes of (Cth) Corporations Act 2001, s 473(3)(b)(i).

CORPORATIONS – winding up – liquidators – removal of liquidator – where liquidator seeking to convene final meeting to complete liquidation – where plaintiff seeks public examinations to recover additional assets – whether desirable, in the interests of creditors, that further investigations be made – where propriety of liquidator’s conduct not in issue – held, liquidator removed and replaced.

PRACTICE AND PROCEDURE – undertakings – application for release from undertaking and substitution of alternative undertaking – where undertaking given as consideration for adjournment of proceedings for appointment of provisional liquidator – where proposed substituted undertaking would allow for divestment of assets otherwise available in future liquidation – held, inappropriate to grant release.

CORPORATIONS – winding up – liquidators – application for leave to make final distribution of surplus – where surplus exists – where no further claims on company. CORPORATIONS – winding up – liquidators – liquidator’s remuneration – application for approval of proposed remuneration by the court – where all creditors have been paid and approval of creditors cannot first be obtained – where amount is reasonable.

CORPORATIONS – winding up – creditor’s statutory demand – application to set aside creditor’s statutory demand – whether genuine dispute as to existence or amount of debt.

CORPORATIONS – Winding up – Statutory demand – Application to set aside a creditor’s statutory demand under Corporations Act 2001 (Cth) s 459J(1) – Where applicant did not appear – Whether defect in statutory demand established – Whether sufficient evidence to set aside demand for some other reason under Corporations Act 2001 (Cth) s 459J(1)(b).

COSTS – whether costs should be reserved until account in common form completed – whether plaintiffs should pay costs thrown away by vacation of hearing date – whether Bullock or Sanderson order should be made against unsuccessful defendants in relation to successful defendant – whether relief should be granted against second defendant – whether costs should be awarded against second defendant – whether costs should be awarded against unsuccessful third plaintiff CIVIL PROCEDURE – determination of further factual issues reserved in principal judgment – whether plaintiffs entitled to declaratory relief. APPREHENDED BIAS – where final findings of credit made against witnesses in determining that joint venture existed – whether apprehended bias due to pre-judgment should prevent same judicial officer from hearing the taking of joint venturers’ accounts.

EQUITY - equitable remedies – receivers – receivers appointed by court – applications – for the opinion advice and direction of the court – nature and extent of jurisdiction CORPORATIONS – bodies corporate other than companies and associations – winding up – insolvency – proofs of debt – set-off - whether statutory set-off under Corporations Act, s 553C, is available – held, it is not – whether rule in Cherry v Boultbee applies – where set-off of mutual debts available – held, rule does not apply, mutual debts to be set-off EQUITY – equitable remedies - receivers – receivers appointed by court – where appointed to wind up a corporation not subject to winding up under Corporations Act – where authorised to receive and adjudicate proofs of debt – whether justified in deferring adjudication pending outcome of related proceedings – where not apparent that circumstances of debt will be illuminated by evidence or findings in the related proceedings – held, not justified in deferring adjudication

TORTS – negligence – duty of care – breach of duty – where plaintiff seriously injured when his bicycle collided with boom gate erected by Council – boom gate intended to close public road to prevent access to carpark at night by hooning motorists – where arrangement with local club to open boom gate in the morning at a time at its discretion – where other Council carparks opened at fixed times by Council officers – where closed boom gate created “perceptual trap” for cyclists – where previous incidents of cyclists injured colliding with boom gate notified to Council – whether s 5B Civil Liability Act 2002 (NSW) correctly applied – standard of liability – whether primary judge applied too exacting a standard of reasonableness by referring to Council “ensuring” various matters TORTS – negligence – causation – whether appellant’s breach caused respondent’s injury – previous incidents of cyclist colliding with boom gate notified to Council – whether Council failed to take simple measures to mitigate against threat of harm within reasonable time – s 5D Civil Liability Act 2002 (NSW) TORTS – negligence – whether constructing boom gate across public road involved exercise of a “special statutory power” – whether boom gate a “traffic control facility” – s 87 of the Roads Act 1993 (NSW) – whether boom gate regulated traffic on a public road for the purpose of protecting members of the public from any hazards on the public road – s 115(2) Roads Act 1993 (NSW – s 43A Civil Liability Act 2002 (NSW) WORDS AND PHRASES – “special statutory power” – “based on” – s 43A Civil Liability Act 2002 (NSW) TORTS – negligence – contributory negligence – whether any fault on plaintiff’s part contributed to his accident – where plaintiff keeping a proper lookout PRACTICE – pleading – s 43A Civil Liability Act 2002 (NSW) – whether liability based on public or other authority’s exercise of, or failure to exercise, special statutory power – turns on consideration of acts or omissions pleaded – unnecessary to expressly identify statutory source of liability

APPEAL – application for leave to appeal – discretionary interlocutory decision – summary dismissal for abuse of process – whether primary judge erred in approaching test for summary dismissal – whether primary judge misapprehended nature of application – whether pleading raised issues different from those determined in prior proceedings

CONSTITUTIONAL LAW - Commonwealth places - Service and Execution of Process Act 1992 (Cth), s 8(4) - effect of provision that federal law operates to exclusion of State law - State law incapable of applying of own force - State law made applicable by federal law - State court invested with federal jurisdiction to determine whether federal offence had been committed CRIMINAL LAW - escape from lawful custody - bench warrant issued by District Court of NSW for arrest of man who pleaded guilty to fraud charges - man arrested in Victoria - Victorian magistrate ordered his return to Sydney - man attempted to escape at Tullamarine Airport while en route to Sydney - man charged with escaping from lawful custody under Crimes Act 1900 (NSW), s 310D - whether prima facie case - charge to be read as charge against federal offence created by application of Crimes Act 1900 (NSW) to the man while being returned to Sydney - matter remitted for magistrate to determine whether to amend Court Attendance Notice FEDERAL JURISDICTION - Application of State criminal law to man escaping from lawful custody at Tullamarine Airport while being returned to New South Wales pursuant to order under Service and Execution of Process Act 1992 (Cth) - man charged under Crimes Act 1900 (NSW) - federal laws making Crimes Act 1900 (NSW) applicable - Service and Execution of Process Act 1992 (Cth) created federal offence - inapplicability of decisions on Judiciary Act 1903 (Cth), ss 68(2) and 79 as to way in which Service and Execution of Process Act 1992 (Cth) applied State law - State laws as to amendment of indictment made applicable to trial STATUTORY CONSTRUCTION - two federal laws potentially causing Crimes Act 1900 (NSW) to apply in different terms to man attempting to escape from lawful custody at airport while being returned pursuant to order under Service and Execution of Process Act 1992 (Cth) - both laws construed - federal laws containing own hierarchy - Service and Execution of Process Act 1992 (Cth) renders Crimes Act 1900 (NSW) applicable to man's attempted escape

CONTRACTS – employment – probationary teachers - implied terms – whether term of mutual trust and confidence implied into employment contract as a matter of law by way of necessity – whether term of good faith implied into employment contract as a matter of law by way of necessity – whether breach of any implied term of good faith CONTRACTS – employment – incorporation of extrinsic document – whether evaluative provisions of Teachers’ Handbook incorporated into employment contract CONTRACTS – employment – repudiation – whether contract was repudiated – whether repudiation accepted COSTS – general rule that costs follow the event

CRIMINAL LAW – practice and procedure – whether trial judge bound by orders of previous judge in respect of pre-trial orders made for service of evidence CRIMINAL LAW – admissibility of opinion evidence under s 79 Evidence Act – whether opinion beyond expertise

PROFESSIONAL NEGLIGENCE – medical negligence – alleged failure to diagnose or follow up carcinoma of the lung – whether particulars of plaintiff’s work history or related possible exposure to carcinogenic agents (asbestos) relevant to a fact in issue

PROCEDURE – notice of motion – application for an order to lift stay – the application refused – orders earlier imposed varied

TAXES AND DUTIES – running balance accounts – where company in liquidation lodges tax returns relating to transactions prior to winding up – where Commissioner sought to set-off amounts in several tax accounts to determine net position – whether Commissioner’s approach inconsistent with pari passu principle. TAXES AND DUTIES – running balance accounts – where the Commissioner applied tax credits against tax debits in running balance accounts – whether Commissioner was entitled to do so under s 8AAZLA of the Taxation Administration Act 1953 (Cth). CORPORATIONS – winding up – conduct and incidents of winding up – where Commissioner sought to determine net position within running balance accounts – whether Company had a chose in action as to tax credit prior to set-off – whether amounts in accounts were property under s 9 of the Corporations Act – whether set-off constituted attachment under s 500 of the Corporations Act 2001 (Cth).

TORTS – negligence – liability for injury at work due to collision with trolley at supermarket operated by Woolworths – duty of care owed by Woolworths as the occupier of the premises to an entrant working in the course of their employment for their employer – whether the risk of personal injury is insignificant where risk of harm is reasonably foreseeable TORTS – negligence – liability for injury at work due to collision with a trolley at a supermarket – duty of care owed by an employer where the employee was working as a merchandiser at another’s premises – whether risk was foreseeable according to the common law principles TORTS – contingent finding – response to identifiable risk – assessment of the burden of alleviating risk by both the employer and the occupier of the premises – where both businesses operate on a national scale DAMAGES – torts – negligence – workers compensation – contingent finding – application of Seltsam Pty Ltd v Ghaleb

ADMINISTRATIVE LAW – judicial review – decision of the proper officer of the Motor Accidents Authority – whether the proper officer misinterpreted the phrase “additional relevant information” contained in s 62(1)(a) of the Motor Accidents Compensation Act 1999 (NSW)

SUCCESSION – wills, probate and administration – making of will – execution – informal document intended to be will – disputed document written by hand in notebook – deceased had earlier will – no dispute document prepared by deceased – whether document intended to be a will – testamentary intention clear from language of document – extrinsic evidence consistent with document – disputed document admitted to probate

PRACTICE AND PROCEDURE – application for summary judgment – application for stay of cross-claim – where plaintiff in partnership – where cross-claim alleges contributory negligence against plaintiff and her partner personally – whether plaintiff’s partner liable under s 5(1)(c) Law Reform (Miscellaneous Provisions) Act – whether a partnership can be liable for personal injuries – whether duty of care arises from partnership relationship or is a delictual duty owed personally – whether permitting cross-claim to proceed would cause circuity of action – whether permitting cross-claim to proceed would result in hardship

PRACTICE – costs – cost assessor’s certificate of determination – consequences of filing – magistrate has no power to set aside - appeal from local court

ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 – further medical assessment – judicial review of decision of proper officer – jurisdictional error – unreasonableness – illogical or irrational – constructive failure to exercise jurisdiction

JUDICIAL REVIEW – decision of NSW Civil and Administrative Tribunal – Residential Parks Act 1985 –application to terminate residential site agreements – necessity for Tribunal to be satisfied that compensation for cost of relocating dwelling to new location has been determined under s 128 – relocation not possible – Tribunal erred in concluding that order for termination could be made where no relocation was to occur – whether Tribunal approach to s 113(3A)(b) correct – s 113(3A)(b) does not require agreement with resident – Tribunal can assess value of dwelling under s 130A in application under s 113A – discretion to refuse relief where internal appeal available – whether explanation for not pursuing appeal adequate – discretion not exercised – relief granted.

PROFESSIONAL NEGLIGENCE – medical negligence - surgical procedure – whether failure to warn – bilateral endoscopic thoracic sympathectomy – where plaintiff sought relief from chronic palmar hyperhidrosis - risks and side effects of surgery – whether defendant properly or adequately warned – manifestation of post-operative psychiatric condition – whether condition caused by surgery

CRIMINAL LAW – remarks on sentence – plea of guilty to murder – deceased attacked with a weapon in her own home – intention to kill – loss of control – evidence of deep remorse by offender – prior good character

CRIMINAL LAW – appeals – appeal against sentence – dishonesty offences – fraud – larceny – goods in custody – whether judge’s rejection of applicant’s evidence of remorse procedurally unfair –where evidence not challenged in cross-examination – where no indication given at hearing that evidence was to be accepted – open to the judge to reject applicant’s evidence of remorse - no denial of procedural fairness CRIMINAL LAW – appeals – appeal against sentence - aggregate sentencing – whether principles of aggregate sentencing properly applied – criminality of individual offences appropriately assessed - judge not required to detail process of accumulation and application of principle of totality – no error established CRIMINAL LAW – appeals – appeal against sentence – aggregate sentencing – discount for guilty plea – discount not to be applied to aggregate sentence – discount a matter to be taken into account in determining indicative sentences – no error established

CRIMINAL LAW – appeals – appeal against sentence – offence of commercial supply – offence of ongoing supply – where applicant has lengthy criminal record - Crohn’s disease - history of drug induced psychosis – objective seriousness assessed at below mid-range – error established in assessment of objective seriousness – no error in assessment of subjective features - finding of special circumstances – insufficient reduction of non-parole period - sentencing discretion miscarried – where justifiable sense of grievance given sentence imposed on co-offender – lesser sentence warranted – leave granted – appeal allowed CRIMINAL LAW – appeals – appeal against sentence – discount for guilty plea – where plea entered on day of trial – 25 per cent discount permitted only in exceptional circumstances – discount of 15 per cent allowed on re-sentence

CRIMINAL LAW – sentence – parity principle – whether manifestly inadequate sentences of co-offenders enliven appellate discretion to reduce appellant’s sentence – whether in exercise of that discretion Court should reduce sentence to a level which does not reflect the criminality involved

CRIMINAL LAW – Murder – Application for extension of time in which to seek leave to appeal against sentence – Asserted Muldrock error – Whether sentencing judge gave primary or determinative significance to the prescribed standard non-parole period – Whether the sentencing judge engaged in a two stage process of sentencing – Whether the sentencing judge failed to have regard to the applicant’s subjective considerations – Necessity to consider the reasons of the sentencing judge as a whole – Necessity to consider the prospects of success of the proposed ground of appeal should an extension of time be granted – Error not established – Application to extend time refused.

CORPORATIONS – winding up – deregistration and reinstatement – vesting of a deregistered company’s property in the Australian Securities and Investments Commission – whether, during the period of a mortgagor company’s deregistration, the mortgagee continues to owe relevant duties to it – Corporations Act 2001 (Cth), s 601AD EQUITY – general principles – equitable estates and interests – interest of a purchaser under an uncompleted contract for the sale of land – whether specific performance would have been ordered – whether other equitable remedies would have been available EQUITY – general principles – priority and notice – competition between a mortgagor’s equity of redemption and the interest of a purchaser under an uncompleted contract for the sale of land – whether the equity of redemption is subject to a properly exercised power of sale by the mortgagee MORTGAGES – mortgages and charges generally – remedies of the mortgagor – improper exercise of the power of sale – whether the mortgagee failed to take reasonable care in relation to obtaining market value for land sold in the exercise of the power of sale – Corporations Act 2001 (Cth), s 420A REAL PROPERTY – compulsory acquisition of land – compensation – whether the first respondent has an “interest” in the relevant land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 4

DEFAMATION – respondents found to have published review defamatory of appellants’ conduct as restaurateurs in relation to two restaurants they conducted – assessment of damages – aggravated damages – whether primary judge awarded the appellants amounts referrable to the hurt to feelings occasioned by the respondents failure to apologise and the falsity of the imputations – DEFAMATION – assessment of damages – exemplary damages – first respondent continued to publish restaurant review on its website after Court of Appeal held its defences to appellants’ defamation suit had failed – whether first respondent acted in contumelious disregard of appellants’ rights – DEFAMATION – assessment of damages – compensatory damages – adequacy – DEFAMATION – assessment of damages – mitigation – reputation – whether facts established in relation to meals reviewer ate at one of appellants’ restaurants constituted contextual background relevant to the appellants’ reputations – whether and to what extent such facts mitigated the appellants’ damages – JUDGMENTS – interest on judgment – whether damages judgment should take effect on date earlier than date on which given – Uniform Civil Procedure Rules 36.4

CRIMINAL LAW – relevance – admissibility of crime scene officer’s sketch plans

POSSESSION – specific performance – where Court of Appeal found parties had not entered into a binding deed of settlement and release – whether in principle agreement binding – whether plaintiff repudiated in principle agreement – whether plaintiff abandoned in principle agreement – whether laches and unconscionable delay by the plaintiff – whether in principle agreement enforceable – whether principles of res judicata and issue estoppel apply – whether there has been abuse of process amounting to issue estoppel – whether plaintiff elected not to rely on an in principle agreement – whether additional conduct by plaintiff gives rise to an estoppel

CIVIL – procedure – whether application to file further amended statement of claim (other torts) precluded by judgment of Court of Appeal – abuse of process

CRIMINAL LAW – bail – “show cause” offence – strong Crown case – plea of guilty entered – effects of plea of guilty upon bail application – bail refused

EQUITY- challenges to claim for privilege - whether privilege waived by the pleadings of the bank and the evidence of one of its witnesses

APPEAL – application for leave to appeal from Civil and Administrative Appeals Tribunal – small amount in dispute – no question of law arising – leave to appeal refused – no question of principle.

ADMINISTRATIVE LAW – judicial review – prerogative relief sought – prohibition and certiorari – whether Magistrate biased – no basis established – inappropriate to exercise discretion

PRACTICE AND PROCEDURE - pleadings - application to file and serve a further amended statement of claim – whether there was a mistake in the name of the parties – whether new causes of action arise from substantially the same facts – whether the justice of the case requires leave to amend – whether the amendments would be futile

MORTGAGES – Mortgages and charges generally – Rights and liabilities of mortgagor and mortgagee – Conveyancing Act 1919 (NSW) ss 94, 95 – Whether second mortgagee can require first mortgagee to transfer its mortgage to second mortgagee – Meaning of expression “any third person”

CONTRACTS – General contractual principles – Construction and interpretation of contracts – Meaning attributed to clause for repayment of funds

Criminal law – sentencing – murder – victim impact statement – period on bail in mental institution treated as custody

Murder; judge alone trial; defence of mental illness; special verdict - not guilty on the grounds of mental illness

CONTRACT – construction – rental agreement – whether a renewal clause provided for one renewal period or unlimited renewal periods RESTITUTION – mistake – whether rental payments were made by reason of a mistake of fact or law – whether the recipient was unjustly enriched – whether there was evidence of a relevant mistake