Cases and authorities

REAL PROPERTY - possession of land - by mortgagee - defaults under loan facility - consideration of defence on undefended hearing - whether agreement to lend further funds - absence of complaint until enforcement commenced PROCEDURE - adjournment - application by Defendants on first day of hearing - relevance of procedural history - lawyer ceasing to act - failure to obtain new lawyer - Defendants' desire to serve further evidence - inadequacy of evidence to justify adjournment.

ADMINISTRATIVE LAW - judicial review - prerogative relief - determination of Review Panel under the motor Accidents Act - whether Panel misapprehended its task - failure to address arguments set out in Application for Review - ignoring of relevant matters - inadequacy of reasons on review - constructive failure to exercise jurisdiction - failure to accord procedural fairness - determination quashed - review remitted for determination

CRIMINAL LAW - sentence - multiple offences of aggravated indecent assault and sexual intercourse without consent - where medical evidence that the applicant had brain damage leading to cognitive deficit at the time of his offending - where sentencing judge accepted medical opinion led in applicant's case but proceeded to make findings inconsistent with that acceptance of opinion - where error established - whether any other sentence warranted in law - where sentencing judge erred by incorrectly stating the standard non-parole period applicable to some of the offences - where applicant the paternal grandfather of the two victims - where sentencing judge erred in the applicant's favour by ascribing an additional discount on account of remorse over and above the discount on account of the utilitarian value of the pleas of guilty which had been entered - where sentencing judge erred in failing to have regard to the applicant's brain damage as a factor which reduced his moral culpability and rendered general deterrence of less significance - where offending involved gross breach of trust perpetrated on two young victims over a long period of time - where sentencing judge imposed an aggregate sentence comprising a non parole period of 4 years with a balance of term of 4 years - no other sentence warranted in law - appeal dismissed

PARTNERSHIP - whether the plaintiff was a one third partner with the defendants - whether the partnership terminated - quantum of profit share

EQUITY - Contribution - where each of two joint borrowers gives separate mortgage over separately owned parcel of land and one (plaintiff) discharges joint debt - whether right to contribution excluded by terms of deed by which parties separated their interests, whereby defendant transferred its property to plaintiff and plaintiff undertook to procure release of guarantees of defendant's debt - whether implicit that defendant would transfer its property unencumbered - where two properties secure joint debt - whether properties contribute rateably EQUITY - Rectification - where plaintiff and defendant had equal interests in joint venture - where separation of interests proceeded on conventional basis of equality of distribution of assets and liabilities - where deed of separation mistakenly fails to give effect to that conventional basis CORPORATIONS - External administration - winding-up - just and equitable ground CONTRACTS - Interpretation - no question of principle.

PROCEDURE - civil - extension of time for filing notice of appeal - whether appeal fairly arguable - whether applicant had abandoned relief sought

ADMINISTRATIVE LAW - judicial review - grounds of review - validity of decision to construct and operate fluoride dosing plants - constructive failure to exercise jurisdiction - whether there was a misconception about the duty imposed on the decision maker COSTS - costs discretion - whether discretion miscarried - whether decision of primary judge involved error

TORTS - negligence - workplace injury - plaintiff injured by trolley pushed by co-worker - identification of co-worker's employer - that employer was not the defendants - no vicarious liability of the defendants for negligence of the co-worker - workplace and systems controlled by the defendants - whether duty of care owed by them accordingly - whether duty breached - whether duty of care also owed by plaintiff's employer which had no control of workplace and systems - whether defendants entitled to contribution from plaintiff's employer - damages for non-economic loss - whether injury shown to meet threshold of 15 per cent of most extreme case - damages for economic loss - where causes of disability other than the workplace injury operated - whether relevant causation proved - observations on the need for evidence from treating doctors in cases of this kind

COSTS - costs at first instance in proceedings for sale or partition of co-owned land - analogy with suit for dissolution of partnership

CONSUMER PROTECTION - leasing agreement - whether lessee a consumer within the meaning of the Trade Practices Act

EVIDENCE LAW - evidence of presence of illicit substance in accused's body - opinion about effect of drug on accused - relevant to whether accused was person who committed the offence - whether danger of unfair prejudice outweighs probative value - evidence to be admitted

CRIMINAL LAW - juror anxiety with subject matter of trial - juror discharged - whether to discharge whole jury - trial at very early stage - accused entitled to trial by jury of twelve - whole jury discharged

PROCEDURE - operation of Uniform Civil Procedure Rules 2005 r 52.1 - application to issue a subpoena under Evidence on Commission Act 1995 on request from the Superior Court of the County of Los Angeles, California - some delay in the application coming before the Court - requested documents relate to events which occurred over 34 years ago - search time must be allowed to subpoenaed party - production of documents by the date requested by the foreign court not practicable - alternative methods of reducing delays in the administration of the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters discussed - HELD: leave to issue a subpoena granted, date for the return of the subpoena in three weeks.

COMMERCIAL LAW - whether one joint venturer owes another joint venturer money from the finalisation of the joint venture - whether letters and minutes from a meeting constituted a binding agreement and if so, its effect

PROCEDURE - costs - offer of compromise - whether offeree's rejection unreasonable

CRIMINAL LAW - sentencing - murder - intent to cause grievous bodily harm - savage unarmed assault - significant history or violence - offence while on parole and apprehended domestic violence order - future dangerousness

WINDING UP - insolvency - insurer - contracts of reinsurance - distribution of reinsurance proceeds - insured's application for order under s 562A(4) Corporations Act 2001 (Cth) that reinsurance proceeds be applied to specific insurance liabilities and not to insolvent insurer's liabilities as whole - reinsurance proceeds received as balance of account of mutual dealings under s 553C - ascertainment of amount received in respect of insolvent insurer's liability under s 562A(1)(b) - whether "just and equitable" that an order be made under s 562A(4)

CRIMINAL LAW - interlocutory appeals - appeal by accused under s 5F Criminal Appeal Act - application to sever assault charges from indictment charging accessory after the fact to manslaughter

CRIMINAL LAW - appeal - sentence quashed - consequential orders pursuant to s 59 Crimes (Sentencing Procedure) Act - variation of commencement dates of remaining sentences

PROCEDURE - costs - offer of compromise - application of r 42.15 of Uniform Civil Procedure Rules - whether court should order otherwise than provided for by r 42.15(2) - relevance of uncertainty as to incoming executor's consent to offer of compromise made by previous executor - relevance of difficulty of estimating value of claim for family provision and size of estate available for such claim

PROCEDURE - taking of account between mortgagor and mortgagees ordered pursuant to Uniform Civil Procedure Rules 2005, r 46.2 - dispute as to amount of principal and interest secured by mortgage - after hearing and delivery of reasons for judgment mortgagees sought to make claim for compound interest not included in statements of account delivered in accordance with r 46.5 - primary judge refused to allow claim on basis that mortgagor prejudiced because unable to raise arguable defence due to lateness of application - statement of account and notice of error defined issues and accordingly to be treated as equivalent to pleadings - no error in primary judge's formulation of relevant question as being one of amendment or in the exercise of discretion to reject claim

SUCCESSION - FAMILY PROVISION - The Plaintiffs, daughters of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are also daughters of the deceased to whom Probate of the deceased's Will granted - Proceedings not commenced within time - Question whether sufficient cause to extend time established - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made - Very small estate - Competing claims of beneficiaries

Appeal - appeal from decision of Local Court Magistrate - driving offences - whether error of law on the part of the Magistrate - whether reasons given by Magistrate adequate - errors of law made out - whether discretion not to remit the matter to the Local Court having found error - whether appropriate for appellate court to determine the matter on the merits and make findings of fact - appeal allowed - matter remitted to the Local Court.

CRIMINAL LAW - Crown appeal against sentence - offences relating to importation of commercial quantity of heroin - whether sentences manifestly inadequate

CRIMINAL LAW - sentence appeal by applicant - co-offenders - whether disparity between sentences - whether justifiable sense of grievance - parity principles - co-offenders in same criminal enterprise charged with different offences - differences in objective circumstances of offences - applicant on conditional liberty at time of offences - applicant an escapee at time of second offence - applicant's subjective circumstances unfavourable - no basis for any justified sense of grievance - no marked disparity established - appeal dismissed

CRIMINAL LAW - conviction appeal - offence of murder - defence of provocation - provocation said to be in part words uttered by deceased immediately before death - words related to allegation of sexual assault - evidence of sexual assault given at trial - whether Crown had to prove to the criminal standard that sexual assault had occurred to criminal standard - whether trial judge obliged to give consciousness of guilt direction in relation to lies - appeal dismissed.

CRIMINAL LAW - sentence appeal - insider trading - offending took place over 12 months - sentenced to imprisonment for 2 years to be served by Intensive Correction Order (ICO) - Crown appeal - whether irrelevant matters taken into account on sentence - whether adequate regard had to general deterrence - whether principle of totality observed - whether sentences imposed manifestly inadequate - error identified - need to re-sentence to a term of full time custody.

CRIMINAL LAW - appeal - Conviction appeal - murder of 7 year old daughter by mother - whether trial judge erred in directions on accused's alleged lies -corroboration evidence relevant to an accused's mental state - directions on consciousness of guilt evidence - directions in relation to the burden in proving intention in circumstances involving intoxication and drug use SENTENCE APPEAL - manifest excess - life imprisonment - consideration and application of s 61Crimes (Sentencing Procedure) Act 1999.

CORPORATIONS - management and administration - orders sought for modification of operation of s 443A Corporations Act 2001 (Cth) to provide that monies advanced by loan be treated as debts incurred by the administrators in the exercise of their functions, and for limitation of plaintiff's and administrator's personal liability - whether interests of company's creditors best served by administrators actions - whether creditors of the company are prejudiced or disadvantaged by the types of orders sought

REAL PROPERTY - Possession of land - Application for a stay upon a writ of possession - Action for possession previously compromised to allow the applicants' to sell the property to her daughter with the help of a loan from Indigenous Business Australia - Not clear if the loan application made - Two out of three payments agreed in the compromise not made - HELD: short stay granted to allow the applicants to make the missed payments and provide evidence of the progress of the loan application.

APPEAL - leave to appeal - s 556(2) Crimes Act - whether judge erred in determining that s 556(2) barred private prosecution of criminal charges

PROCEDURE - late withdrawal of legal representation - adjournment sought to seek further legal advice

APPEAL - application for leave to appeal - no issue of principle

PROCEDURE - costs - security for costs - where plaintiff ordinarily resident outside Australia - where plaintiff has no assets in Australia - where plaintiff is impecunious - whether primary judge misdirected herself as to applicable test - whether exercise of discretion miscarried

CONTRACT - agreement to supply land fill - whether appellants proved that fill supplied by respondents was contaminated with asbestos EVIDENCE - tendency evidence - s 97 Evidence Act 1995 - whether respondents supplied contaminated land fill to appellants' property - relevance of evidence of deliveries of contaminated land fill by the respondents to two other properties

ADMINISTRATIVE AND INDUSTRIAL LAW - judicial review - police officer removed from Police Force under s 181D Police Act - review by Industrial Relations Commission under s 181E - application for leave to appeal dismissed by Commission Full Bench - privative provisions in s 179 Industrial Relations Act applicable to review by Supreme Court - jurisdictional error required to be but not demonstrated - discretion to refuse prerogative relief on the basis of the applicant's delay EVIDENCE - s 163 Industrial Relations Act - Commission not bound by rules of evidence when not in Court Session - whether Commission entitled to rely upon findings in earlier decision in same proceedings

PRACTICE AND PROCEDURE - application to have the Registrar's decision in relation to two Notices to Produce issued on behalf of the defendants set aside - plaintiff's claim that the Notices to Produce should be set aside on the basis that it was intended to subvert the Supreme Court Practice Notes 5 and 11, the documents are confidential and the Notices to Produce lacked legitimate forensic purpose - application by the defendants that the defendants' solicitor and counsel be released from undertakings in relation to alleged confidential documents

PROCEDURE - deceased killed in a recreational flight accident - wife commenced action under Compensation to Relatives Act 1897 s 6B on behalf of herself and her children - proceedings settled - Court asked to apportion the settlement sum - proposed apportionment below the amounts allocated to each child by expert actuaries - whether the reduction appropriate - the wife already paid substantial costs of the inquest into the accident - the wife already paid expenses for the children's education and advancement in life - the children and the wife agree to the proposed apportionment - the children informed that they can receive independent legal advice and declined to do so - wife's position as a fiduciary for the children discussed - HELD: settlement sum apportioned in accordance with the proposal. PROCEDURE - action commenced on behalf of a person under legal incapacity - person ceased to be under legal incapacity - proceedings settled - Court approval of the settlement required under Civil Procedure Act 2005 s 76 - HELD: settlement approved.

REAL PROPERTY - possession of land - application for a stay of a writ of possession - hardship grounds including applicant's health problems - applicant and his wife organised a lease of an alternative property - lease not available for another six weeks - proceeds of sale of property will not satisfy judgment debt - extra six weeks will accrue further interest of more then $74,000 - whether hardship that applicant will need to move twice - HELD: stay upon a writ of possession declined.

JUDICIAL REVIEW - costs assessment - adequacy of costs assessor and review panel reasons - reasons needed to pursue right of appeal in District Court - reasons adequate - discretionary refusal of relief.

PROCEDURE - costs - general rule costs follow the event - where party has succeeded on one of a number of severable issues - whether costs order affected by party's failure to consent to separate trial of an issue - whether costs order affected by illegal acts by party - effect of parties' untruthful evidence on costs order - construction of r 42.34 of the Uniform Civil Procedure Rules - whether rule applies when plaintiff made claims for equitable relief

CRIMINAL LAW - application by accused for trial by judge alone - charge of murder - plea of guilty to manslaughter - issue of intent the only substantial issue - significant and widespread pre-trial publicity and Internet activity of a vile, hateful and intemperate nature about the accused - whether fair trial possible - whether trial by judge alone in the interests of justice - natural prejudice arising from nature of case - whether evidence so graphic that no jury could fail to be adversely affected - whether trial judge's directions adequate and sufficient to cure perceived or anticipated prejudice

NEGLIGENCE - BREACH OF IMPLIED TERM - accident boarding chairlift - Jones v Dunkel - failure to call doctor - lift ticket - purported contractual exclusion of implied term and liability - s 5N(1) Civil Liability Act - s 68, s 68A, s 68B and s 74 Trade Practices Act - whether Civil Liability Act applies to causes of action for breach of term implied by s 74(1) arising prior to 13 July 2004 - s 109 of the Constitution - duty of care - breach - whether lift operator inattentive - risk of harm from chair arriving in defective state - precaution of lift operator observing state of chair from location near loading point - causation - s 5D - inherent risk - s 5I - dangerous recreational activity - s 5L - risk warning - s 5M - contributory negligence - breach of implied term - damages - pre-accident afflictions - post-accident restrictions - failure to provide records - whether adverse interest should be drawn - economic loss - Sections 12 and 13 of Civil Liability Act - whether rental income and management fees earnings - gratuitous attendant services - lost fees from days absent from work.

CORPORATIONS - external administration - Deed of Company Arrangement - variation - requirements of variation - whether a formal deed of variation required - whether consent of deed's administrator required CORPORATIONS - external administration Deed of Company Arrangement - termination - grounds for termination - where material contravention of the deed

CRIMINAL LAW - sentencing - murder - joint criminal enterprise - victim's provocation mitigating factor - offenders' motive revenge or punishment of victim CRIMINAL LAW - sentencing - manslaughter - joint criminal enterprise - victim's provocation mitigating factor - absence of intent to cause grievous bodily harm - finding of special circumstances

TORTS - negligence - liability of train controller, driver and driver's employer for level crossing collision - scope of liability - damages for mental harm.

TORTS - negligence - personal injury - plaintiff injured as infant by falling down stairs while being carried - whether plaintiff's grandmother owed her a duty of care - whether plaintiff's grandmother negligent in manner in which she descended stairs - whether designer of the staircase or the builder responsible for renovations failed to take reasonable care in design and construction of staircase COSTS - whether Sanderson order appropriate

BANKING AND FINANCE - financier proceeding for possession of mortgaged property not precluded from later claiming mortgage debt - whether costs of proceedings recoverable under security documents CONTRACT - contract for lawyer to provide independent advice on security documents - whether client's costs of proceedings involving financier recoverable from lawyer as damages for breach of contract - whether damages entitlement could be reflected in costs order APPEAL - client challenged judgment at first instance for lawyer on professional negligence claim - lawyer resisted appeal but did not raise on appeal alternative defences of contributory negligence and apportionment - whether lawyer should have filed notice of cross-appeal or contention - principle of finality - s 56-58 Civil Procedure Act - lawyer precluded from raising defences after decision on appeal delivered

CONTRACT - guarantee and indemnity in relation to commercial hire purchase agreement - whether appellant signed guarantee - where signature of another guarantor contrived EVIDENCE - expert evidence as to authenticity of signatures - where expert found appellant's alleged signature contrived - nature of expert's mention of "self-simulation" - characterisation of expert evidence - where expert not cross-examined - where signature of another guarantor was contrived

ADMINISTRATIVE LAW - complaint concerning conduct of legal practitioner - Law Society Council reprimanded practitioner with respect to conduct, on the basis that there was "a reasonable likelihood that the practitioner would be found by the [Administrative Decisions] Tribunal to have engaged in unsatisfactory professional conduct" - practitioner appealed to Administrative Decisions Tribunal under s 540(5) of Legal Profession Act 2004 - whether ADT misdirected itself in concluding that the practitioner's conduct amounted to unsatisfactory professional conduct and in failing to address whether there was a reasonable likelihood that it would so conclude - whether ADT denied practitioner procedural fairness by taking into account conduct which was not the subject of original complaint - decision and orders of ADT set aside