Cases and authorities

EVIDENCE - expert evidence - admissibility - whether assumptions made by expert established

CRIMINAL LAW - sentence appeal - 16 offences relating to the possession and transmission of child pornography - using a carriage service to cause offence - whether sentencing judge erred in assessing objective seriousness of offences - whether sentences are manifestly excessive

INSURANCE - construction of insurance policy - insuring clause - whether first and second respondents entitled to indemnity from third respondent - policy cover for claims arising "in connection with the Insured's Business" - injury and damage caused during recreational boat trip - whether trip in connection with insured's business INSURANCE - construction of insurance policy - exclusion clause - dangerous navigation - Crimes Act 1900 s 52B - whether second respondent's conduct "criminal act or omission" for purposes of exclusion clause - whether act needs to be intentional NEGLIGENCE - insurance broker - duty of care - retainer - whether insurance broker failed to advise of deficiencies in policy

CRIMINAL LAW - sentencing - plea of guilty - felony murder - constructive murder - foundational offence of aggravated assault with intent to rob committed inside victims' dwelling house - offender accidentally shot in face by co-offender before discharging firearm which killed deceased - offender with long standing personal problems including drug use and anti-social personality characteristics - no link established between offender's anti-social personality disorder and any abusive or deprived upbringing - no basis for findings of special circumstances

AGENCY - where mortgage broker misappropriated loan monies - whether mortgage broker acting with actual or apparent authority of mortgagee - actual or apparent authority - principles to be applied CONTRACTS - unjust - where mortgage broker misappropriated loan monies - whether Contracts Review Act 1980 (NSW) excluded - whether contract entered into in the course of "trade, business or profession" - meaning of "business" - question of fact - principles to be applied

FAMILY LAW - Whether transfer of property pursuant to Family Court consent orders liable to be set aside as fraud on creditors - Conveyancing Act 1919 (NSW), s37A FAMILY LAW - Defendants did not disclose to Family Court existence of plaintiffs' claim against first defendant - Whether there was a miscarriage of justice - Family Law Act 1975 (Cth), ss79(10), 79A(1)

COSTS - gross fixed sum costs order

CRIMINAL LAW - murder - two offenders - parity - category of most serious cases - significance of pleas of guilty - discount of plea of guilty withheld for the protection of the public - Aboriginality CRIMINAL LAW - aggravated break and enter - inflict grievous bodily harm and actual bodily harm - in company - in home of vulnerable victim CRIMINAL LAW - use postal service to threaten and to cause harm - intimidation - recruiting a child to commit a crime - influencing witnesses

PROCEDURE - judgments and orders - application to withdraw and replace undertakings given to the Court in order to alter a cap on legal expenditure - where costs in the proceedings have escalated due to numerous interlocutory applications - whether costs incurred in respect of the proceedings had been reasonably incurred. PROCEDURE - costs - security for costs - plaintiff - defendants seek an order that the plaintiffs give further security for their costs of the proceedings - where costs to be incurred in respect of the substantive hearing have increased - where delay in bringing application for security for costs - whether the Court should exercise its discretion.

CORPORATIONS - share capital - shares - valuations -where orders made by Court of Appeal provide for a valuation to be undertaken by reference to the market value of the whole share capital of the company - where conflicting expert valuation evidence - where expert evidence differed on the application of differing methodologies - whether earnings-based valuation or valuation based on unadjusted balance sheet should be applied.

CONTRACT - Collateral Contract - Validity - Tripartite Collateral Contract - Whether consistency between collateral and principal agreements required - Finding of collateral contract requires that a representation made as an inducement to enter the principal contract to be intended as a promise CONTRACT - Collateral Contract - Contract Collateral to a Lease does not necessarily have to be in, or evidenced by, writing notwithstanding a statutory requirement that the Lease be in, or evidenced by, writing.

COSTS - offer of compromise purportedly made in accordance with r 20.26 Uniform Civil Procedure Rules 2005 (NSW) - application for indemnity costs pursuant to r 42.15A - whether offer made in public law claim in the Court's supervisory jurisdiction engages r 20.26 - whether an order dismissing the proceedings engages r 42.15A

ESTOPPEL - res judicata - issue estoppel - guarantor seeks to defend proceedings and cross-claim relying on issues determined adversely to principal debtor - dismissal of proceedings brought by principal debtor in Federal Court - dismissal by consent - whether issue estoppel - guarantor is sole shareholder and controller of principal debtor company - whether a privy of the company - whether loss sought to be claimed was reflective loss of company PROCEDURE - application to file cross-claim out of time - where applicant consented to orders on numerous occasions to file cross-claim but failed to do so - no satisfactory explanation for failures - consideration of the applicant's approach to the proceedings generally

APPEAL – criminal – interlocutory appeal – nature of appeal – Evidence Act s 128 – where accused objects to giving evidence – where trial judge refused to grant certificate – jurisdiction – Criminal Appeal Act, s 5F(3) – whether refusal of s 128 certificate an “interlocutory judgment or order given or made in proceedings” EVIDENCE – Evidence Act s 128 – whether trial judge erroneously refused to grant s 128 certificate – where accused makes tactical decision not to give evidence without certificate – whether accused unfairly hindered in ability to satisfy onus to exclude prejudicial material pursuant to Evidence Act, s 137 – whether accused "objecting" to give evidence – whether accused “compellable” to give evidence

CRIMINAL LAW - application for leave to appeal sentence - guilty plea - two counts of manufacture prohibited drug, five counts of possess precursor, one count of possess drug manufacture apparatus - offence primarily motivated by addiction not financial gain - whether individual and aggregate sentences manifestly excessive - whether degree of accumulation constitutes double punishment - whether moral culpability is diminished by fact of addiction - whether sentence adequately reflects finding of special circumstances - appeal allowed - sentence quashed - re-sentenced

CRIMINAL LAW - appeal- appeal against sentence - conviction for kidnapping under s 86(1)(b) of the Crimes Act 1900 - where sentencing judge found that the sentence was of a most serious nature - whether sentence manifestly excessive

APPEAL - sentence - where applicant pleaded guilty to intentionally importing a quantity of pseudoephedrine - where evidence that applicant suffered from mild mental retardation - whether sentencing judge erred in failing to have regard to the effect of that condition upon moral culpability and general deterrence - where sentencing judge commenced with a starting point of 4 years and 2 months imprisonment against a maximum penalty of five years imprisonment - whether the adoption of that starting point was indicative of manifest excess - consideration of role played by applicant in importation - relevance of quantity of drug imported and applicant's knowledge of that quantity - limited use of statistics and other decisions said to be comparable - sentence not manifestly excessive - appeal dismissed

APPEAL - criminal law - conviction - controlled operation pursuant to Law Enforcement (Controlled Operations) Act 1997 - admissibility of evidence - disclosure of evidence.

CRIMINAL LAW - appeal against conviction - sexual assault - historical sexual assault - husband rapes wife - issue of consent - delay in complaint - whether significant forensic disadvantage - lack of medical records of the complainant in documenting the complaint - admissions of husband to counsellor and the police - effect of delay rather than length important - directions - counsel must apply with details of forensic disadvantage alleged

APPEAL - Consent orders allowing appeal - Court satisfied that respondents' concessions of appellable error properly made

TORTS - negligence - s 5B(1)(c) Civil Liability Act 2002 - obligation to determine whether precautions reasonably required TORTS - construction of s 45 Civil Liability Act 2002 - meaning of "particular risk"

APPEAL - adequacy of reasons - conflicting testimony of experts - explanation required for adopting preferred opinion - whether need to address 'sub-issues' - need to balance transparency and prolixity DAMAGES - assessment of damages - medical negligence - no issues of principle COSTS - offer of compromise - offer not in accordance with r 20.26 UCPR - whether valid Calderbank letter - whether discretion under UCPR, r 42.1 should be exercised

PROCEDURE - application by defendant that plaintiffs submit to examination by consultant psychiatrist - where plaintiffs have already undergone psychiatric examination - where alternatively defendant relies on a single expert direction - where issues are complex and opinion may differ a single expert direction is inappropriate - where additional order under rule 23.4 Uniform Civil Procedure Rules 2005 is sought - where in weighing interests of both parties an order under r 23.4 is necessary to respond to expert opinion is appropriate

CRIMINAL LAW - juries - application by accused to discharge whole jury - whether research of discharged juror contaminated whole jury - where foreperson immediately intervened when discharged juror raised terms of her researches - where no opportunity nor sufficient time for other jurors to read discharged juror's researches - where material researched related to 'malice' being the only matter disclosed or discussed - no risk of substantial miscarriage of justice - trial to continue with the remaining eleven jurors

EVIDENCE - admissibility - cross examination under s43 Evidence Act 1995 (NSW) - objection taken - whether document on which the witness is being cross examined under s43 need be shown to be admissible for cross examination to occur

CRIMINAL LAW - application for a "Shepherd" direction - whether portions of evidence of a particular witness an indispensable intermediate fact - applicable test - circumstantial case - whether case to go to they jury without the evidence - application refused.

SUCCESSION - application for judicial advice by an executor under Trustee Act 1925 s 63 in relation to a settlement offer and for approval of the settlement under Civil Procedure Act 2006 s 76 - the Court previously gave judicial advice that the executor that he would not be justified in accepting a settlement offer and identified certain unacceptable elements of that offer - the parties later reached an amended settlement and asked for it to be approved -the Court had a residual concern whether as a result of the settlement to be approved a sister should be appointed as her disabled brother's financial manager despite the potential conflict of interest which would arise in the sister on that appointment - mechanisms discussed to resolve the conflict.

PRACTICE AND PROCEDURE - application for leave to amend pleadings - judicial review proceedings - whether plaintiff should be permitted to prosecute claims together - whether undue delay - leave granted PRACTICE AND PROCEDURE - application for order in nature of discovery - whether available in judicial review proceedings - whether order should be granted - no order for discovery

CRIMINAL PROCEDURE - appeal from orders pursuant to Crimes (Forensic Procedures) Act 2000 - no error in not reciting standard of proof repeatedly - no error in finding plaintiff a suspect - no error in suspecting plaintiff had committed an offence - leave to appeal granted - appeal dismissed CRIMINAL PROCEDURE - whether power to order costs - no explicit power in statute - consideration of case law - power to order costs - costs order made

CONFISCATION - ancillary orders - alleged non-compliance with previous orders for statement of asset and liabilities - whether ancillary orders can require specificity - whether compliance requires disclosure of value of assets - orders requiring provision of further details made

MORTGAGES - claim for possession of land following alleged mortgage default - defendants are husband and wife - mortgage broker acting for defendants - defendants executed mortgage and loan documentation - split-facility loan (Loans A, B and C) - Loan C remained in an undrawn account - written direction given to lender to disburse Loan C funds - funds paid into account of mortgage broker - defendants deny that direction to disburse Loan C funds executed by them or at their direction - whether husband and/or wife signed direction - whether defendants liable for disbursed Loan C funds - not established that husband or wife signed direction - whether defendants ratified the direction through their later conduct - held defendants did not ratify the direction - whether defendants were required to repay entire sum specified in mortgage (including Loan C funds) as mortgage contained a specific covenant to repay - construction of mortgage - held defendants not required to pay back entire sum - defendants not liable for Loan C funds drawn down without their authority - plaintiff's claim based upon failure to repay Loan C funds rejected

COSTS - costs follow the event - no question of principle.

CORPORATIONS - statutory demand - application to set aside creditor's statutory demand - whether it is open to the defendant to support the statutory demand on a basis other than that referred to in the demand and accompanying affidavit - content of the "genuine dispute" standard - whether demand should be set aside under s 459J Corporations Act 2001 (Cth) - whether "defect" in the statutory demand due to misdescription of the debt - whether substantial injustice to the company if defendant could rely on a basis for supporting the debt not raised in the statutory demand.

DAMAGES - calculation of economic loss - interest and earnings - calculating the offsetting value of the benefit of the restructure - termination date for calculating that benefit - whether dividend flow to third party beneficiaries the same amount or percentage in the hypothetical and real worlds - timing of tax payments. PROCEDURE - re-opening after publication of reasons for judgment but before orders are made.

PARTNERSHIP - termination of partnership - construction of partnership agreement - taking of partnership accounts - entitlements of partner on dissolution of partnership.

APPEAL - appeal from Local Court -CONTRACT - interpretation of contract - terms of contract - whether there was a breach of contract - whether guarantee in the contract has been discharged

CORPORATIONS - statutory demands - application to set aside a statutory demand under ss 459G(1), 459H(1)(a), 459J(1)(b) Corporations Act 2001 (Cth) - whether genuine dispute established - whether sufficient basis for dispute over receivers' fees to constitute a 'genuine dispute' - application of Graywinter principle - whether the court should exercise its discretion to vary the demand - whether the statutory demand should be set aside for some other reason under s 459J Corporations Act 2001 (Cth) - whether Graywinter principle applies to restrict matters that can be relied upon to form the basis of 'some other reason' - whether error in supporting affidavit is such that the demand should be set aside for 'some other reason'.

ADMINISTRATIVE LAW - judicial review - discretion to refuse relief - application by deregistered medical practitioner for declarations that decision and orders of the Medical Tribunal made in 2003 are invalid - earlier application by the same applicant for order quashing the decision dismissed - where new grounds advanced on the present application ought reasonably to have been advanced in support of the earlier application - whether the present application is an abuse of process

APPEAL - application for leave to appeal refused - no significant prospects of success - no issue of principle

APPEAL - appeal on a question of law - 'no evidence' ground - party bearing burden of proof cannot demonstrate error of law by asserting 'no evidence' justifying failure of judge to accept claim LAND VALUATION - compulsory acquisition - determination of market value - whether primary judge erred in failing to take into account non-binding offer to purchase acquired land - whether premium should have been applied to market value due to existing development consent

CRIMINAL LAW - juror misconduct - Internet research by juror as to law - examination by judge of juror in question and foreperson - discharge of juror

CORPORATIONS - Scheme of arrangement - where defendant scheme administrators sent to all known and potential scheme creditors a final claim form for estimation - defendant rejected claim because form returned late - application for order under (Cth) Corporations Act 2001 s 1321 reversing defendant's decision to reject form - consideration of proper construction of scheme document - whether form returned in time - plaintiff must be taken to have returned the document "so as to reach" the defendant if it caused it to be posted at a time when its reasonable expectation was that it would reach the defendant by the specified time - defendants were wrong to exclude the plaintiff's claim on the basis that it was late - appropriate to extend time under s 1322(4) if finding with respect to return of form not made.

PROCEDURE - various motions - where statement of claim is manifestly defective - where principles of finality are limited by a finding of fraud - no general point of principle.

EVIDENCE - whether evidence of a witness for the plaintiffs about what was said between himself and the first defendant in the presence of the third defendant is admissible against the third defendant given the fact that the plaintiffs did not intend to call the first defendant in their case

CRIMINAL LAW - evidence - tendency - tendency notice - evidence in relation to victim's character, reputation and conduct - tendency to engage in violent conduct towards females, use of weapons and to carry knife on person - evidence sought to be relied on in relation to whether accused was acting in self defence when fatal wound was inflicted - whether evidence has significant probative value - whether evidence admissible

SENTENCE - assault with intent to rob in company with wounding and manslaughter - assault on elderly homeless man on train - co-offender plead guilty to murder - offender on bail for similar offences at time of offence - inherent criminality of each offence cannot be meaningfully separated - general and specific deterrence - question of totality - early offer to plead guilty to manslaughter entitles offender to 25% discount - genuine remorse - finding of special circumstances on basis of offender's youth, partial accumulation and demonstrated need for supervision - question of concurrency and partial accumulation

EVIDENCE - admissibility - whether purported admission by second defendant to witness should be excluded under s135 Evidence Act 1995 (NSW)

CRIMINAL LAW - whether manslaughter should be left as alternative verdict - charge of murder on basis of joint criminal enterprise or accessorial liability - whether case for manslaughter viable - manslaughter verdict not viable on evidence - manslaughter not left to jury

CRIMINAL PROCEDURE - application to amend indictment by defence counsel - whether to insert a new charge on indictment - whether trial judge has power to add count on indictment - whether ss 20 and 21 of the Criminal Procedure Act gives power to add count - application refused

PROCEDURE - summary disposal - whether sufficiently high degree of certainty regarding ultimate outcome - claims inadequately pleaded - distinction between existence of a reasonable cause of action and the pleading of a reasonable cause of action - where plaintiff self-represented - where plaintiff failed to comply with orders of the court to file and serve evidence in support of claim - application dismissed PROCEDURE - pleadings - application to strike out statement of claim - statement of claim has tendency to cause prejudice, embarrassment or delay in the proceedings - statement of claim struck out - no leave to re-plead in present circumstances