Cases and authorities

SENTENCE - standard non-parole period - statutory requirements - proper approach to sentencing.

CRIMINAL LAW - sentence appeal - pleas of guilty - offer to supply large commercial quantity of ecstasy - supply commercial quantity of cocaine (two counts) - supply cocaine - whether error in finding (on offer to supply ecstasy count) that Appellant had access to and was in a position to actually supply 10,000 ecstasy tablets - no error demonstrated - whether individual sentences or total effect sentence manifestly excessive - sentences not manifestly excessive - appeal dismissed

SUPERANNUATION - police superannuation - backdating of superannuation entitlement for hurt on duty injury to date of medical discharge - application made 16 years after discharge - whether primary judge took into account irrelevant considerations or disregarded relevant considerations - Police Regulation (Superannuation) Act 1906 s 9A(4), s 10B TRUSTS - Superannuation - defined benefit scheme - trustee a statutory body - duty of trustee -- whether trustee had a duty to advise beneficiaries of potential rights - relevance of contributions of fund SUPERANNUATION - where delay in processing application pending legislative amendments - whether error in position of law in considering delay between application for benefit and decision

NEGLIGENCE - duty of care - solicitors - whether breach of professional duty - failure to convey offer of settlement to appellant - causation - whether trial judge's conclusion on causation was correct LEGAL PROFESSION - solicitors - advocate's immunity - question not arising where breach of duty and causation not established

CORPORATIONS - voluntary administration - whether person having unadjudicated claim under s 106 Industrial Relations Act 1996 is a "creditor" bound by a Deed of Company Arrangement - whether Court has power under s 447A(1) Corporations Act 2001 (Cth) to vary operation of Pt 5.3A to allow admission of such claim CORPORATIONS - voluntary administration - definition of "creditor" in Pt 5.3A - whether term has same meaning as defined in s 553 - Brash Holdings v Katile Pty Ltd [1996] 1 VR 24 - whether scheme, purpose and scope of Pt 5.3A require class of claims broader than that of claims under s 553 CORPORATIONS - voluntary administration - definition of "claim" in Pt 5.3A - contingent claim - Community Development Pty Ltd v Engwirda Construction Co (1969) 120 CLR 455 - requirement of existing obligation INDUSTRIAL LAW - unfair contracts - status of unadjudicated claim under s 106 Industrial Relations Act - whether "claim" within meaning of s 553 - Majik Markets Pty Ltd v Brake & Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443 - Fisher v Madden [2002] NSWCA 28 - Colley v Futurebrand FHA Pty Ltd [2005] NSWCA 223 - whether basis, founded on existing legal right, for asserting a right to participate in the division of the assets of the company - whether legally enforceable right to have Industrial Relations Commission determine application according to law is sufficient - analogy with claim for costs CORPORATIONS - voluntary administration - power of Court - s 447A - whether Court has power under s 447A(1) Corporations Act 2001 (Cth) to vary operation of Pt 5.3A to deem to be a creditor someone who is not a creditor - Re Motor Group Australia Pty Ltd [2005] FCA 985 CORPORATIONS - voluntary administration - power of Court - s 447A - whether limitations imposed by the subject matter, scope and purpose of the statute - whether order falls within objectives within s 435A or other purpose within Pt 5.3A CORPORATIONS - voluntary administration - power of Court - s 447A - where broad power conferred on court, requirement to exercise judicially - requirement to exercise power to achieve purposes for which it was conferred CORPORATIONS - voluntary administration - power of Court - s 447A - whether nexus with how Pt 5.3A is to operate CORPORATIONS - voluntary administration - power of Court - s 447A - Standing - person with unadjudicated claim under s 106 Industrial Relations Act seeking order deeming them to be creditor - whether "any other interested person" - Allatech Pty Ltd v Construction Management Group Pty Ltd [2002] NSWSC 293 APPEAL - right of appeal - jurisdiction of the Court of Appeal - s 101(2)(r)(ii) Supreme Court Act 1970 - whether leave to appeal required - whether appeal involves a matter at issue amounting to $100,000 or more COSTS - general rule - costs follow the event - whether departure from general rule - where proceedings relate to fund being administered subject to control of court - whether costs should be treated as costs in administration - no reason to depart from general rule

CIVIL LIABILITY - whether a doctor conducting a post mortem is protected from liability under the Coroners Act STATUTORY INTERPRETATION - Anti-Discrimination Act ss 4 and 49B - whether "person" includes a "deceased person" STATUTORY INTERPRETATION - Anti-Discrimination Act s 4 - whether "associate" includes a past associate of the aggrieved person - wording of definition is unambiguous - "associate" only include those who are presently associates STATUTORY INTERPRETATION - Anti-Discrimination Act ss 4, 49M - whether "service" includes the performance of a post mortem - whether a particular matter is a "service" is a question of fact

EQUITY - TRUSTS - whether moneys paid into firm of solicitors' trust account was held on express trust for plaintiff as it was only to be used for a prescribed purpose - whether trust was breached by payment out of trust account of moneys for purposes other than prescribed purpose - whether plaintiff entitled to equitable compensation - whether third defendant liable as an accessory to breach of express trust or breach of Quistclose trust under the first and/or second limbs of Barnes v Addy - consideration of Quistclose trust - HELD - express trust in favour of plaintiff - breach of trust established - plaintiff entitled to equitable compensation - third defendant liable for receiving and becoming chargeable with trust property and for knowing assistance in breach of trust - TORTS - NEGLIGENCE - duty of care - whether firm of solicitors, as trustees under Quistclose trust owed plaintiff a duty of care in relation to moneys held in trust account and whether that duty has been breached - HELD - had this issue arisen breach of duty of care would have been established - CONTRACT - whether contract between plaintiff and third defendant and if so whether third defendant is liable to repay moneys pursuant to frustration of contract or on a failure of consideration - HELD - contract established between plaintiff and third defendant - had this issue arisen third defendant would have been liable on total failure of consideration or on frustration of contract - PROPORTIONATE LIABILITY - whether claim for equitable compensation for breach of trust is an apportionable claim pursuant to Part 4 of the Civil Liability Act 2002 (NSW) - HELD - liability for breach of trust where that liability not predicated on failure to take reasonable care is not an apportionable claim - FAIR TRADING ACT - whether cross-defendant liable for misleading and deceptive conduct - HELD liable to indemnify for loss caused by misrepresentation that funds were beneficially his - EQUITABLE CONTRIBUTION - whether power to order unequal contribution between concurrent wrongdoers - HELD - equitable contribution had it arisen in this case should be pro rata

FAMILY LAW AND CHILD WELFARE - claim by mother invoking parens patriae and supervisory jurisdiction of Supreme Court after Director-General of Community Services assumed care responsibility of child - proceedings commenced on same day as care proceedings in the Children's Court - error in Children's Court proceedings conceded - exceptional circumstances established such as to warrant Supreme Court not following usual approach of declining to exercise jurisdiction pending determination of care proceedings - likelihood of multiple further proceedings if mother's claim not heard in the Supreme Court - request for Supreme Court to cross-vest jurisdiction under Family Law Act 1975 - jurisdiction cross-vested - parenting orders made

REAL PROPERTY - easements - right of carriageway - whether substantial interference with use of right of carriageway - where use of right of carriageway infrequent

PRIOR CONSENT ORDERS FOR SALE AT AUCTION - Change sought in reserve - Defendant owner opposes change - Issue as to which account proceeds of sale should be paid - Proceeds to be paid into Court

EXECUTORS AND ADMINISTRATORS - Rights, powers and duties - Powers of some or only one of several executors as to sale, mortgage or lease of real estate - Purchase by one executor and third beneficiary opposed by other executor and fourth beneficiary - Co-executor's offer not better than offer of third party - Other co-executor can proceed with sale to third party

REAL PROPERTY - Torrens title - easement - parties in dispute as to the form of orders to govern their mutual use and upkeep of the inclinator - parties do not wish to be left merely to their common law rights - parties ask Court to resolve their remaining differences as to the final form of orders.

FAMILY LAW AND CHILD WELFARE - Adoptions - child over 12 consents to adoption - natural father files notice of appearance and seeks access to evidence - consent of natural father not required - natural justice requires natural father have access to evidence so as to enable formation of view as to adoption and to make submissions as to whether adoption order ought be made.

CIVIL PROCEDURE - application for leave to withdraw submitting appearance and to set aside judgment entered by registrar - submitting appearance filed in error - whether registrar had power to enter judgment

COSTS - whether the general rule that costs follow the event should be displaced - defendants succeeded in the proceedings solely on the basis of late amendments - plaintiff would otherwise have succeeded - substantial costs incurred before hearing - no order as to costs.

PROCEDURE - orders - order for inquiry - whether allowances appropriate - other miscellaneous matters

PRACTICE AND PROCEDURE - application for leave to institute proceedings where vexatious proceedings order made in respect of applicant - vexatious proceedings - meaning of vexatious proceedings

GUARANTEE AND INDEMNITY - enforcement of indemnity - whether court should refuse to enforce indemnity on grounds of public policy - where parties conspired to attempt to obtain financial advantage by deception - cause of action grounded on deed of indemnity and deed not itself part of intended deception - not in public interest to refuse to enforce indemnity GUARANTEE AND INDEMNITY - enforcement of indemnity - liability of indemnifier before payment - whether indemnity merely requires indemnifier to compensate indemnified party for what he has paid towards liability or requires indemnifier to relieve indemnified party of burden of liability - obligation of indemnifier depends on terms of contract between indemnifier and indemnified - Wren v Mahoney [1972] HCA 47; (1972) 126 CLR 212 distinguished - indemnity not limited to compensate indemnified for amounts paid - indemnity required indemnifier to relieve indemnified party of burden of liability GUARANTEE AND INDEMNITY - enforcement of indemnity - whether plaintiff's action at law for damages or in equity for specific performance - assessment of damage for breach of contract for indemnity where promise is to relieve indemnified party of burden of liability uncertain - damages not adequate remedy - damages fall for assessment only if specific performance not available EQUITY - equitable remedies - specific performance - whether sufficient consideration - where consideration provided for in deed incorrect - party estopped by recitals to deed from denying that consideration provided - consideration provided by implied promise GUARANTEE AND INDEMNITY - enforcement of indemnity - where indemnity requires indemnifier to relieve indemnified party from burden of liability - appropriate remedy - where creditor not a party - order payment to person entitled to indemnity even though have not yet paid creditor on undertaking to apply payment forthwith to discharge liability

TRADE PRACTICES ACT - misleading and deceptive conduct - product labelling - whether a wooden plank labelled as being of a certain grade was defective - liability for defective goods causing injury - defence where workers' compensation law applies - whether the plaintiff was an employee -defence where the state of scientific or technical knowledge would not have allowed the defect to be discovered - whether technology existed which would have enabled manufacturers to detect the defective wood

MOTOR ACCIDENTS COMPENSATION - leave to commence proceedings out of time - time limit of 3 years - full and satisfactory explanation - prejudice

Proceedings commenced by mother of the Plaintiffs as tutor, in which a claim for a family provision order, under the Succession Act 2006 sought for each of two children of deceased - Only issue is whether adequate provision for proper maintenance education or advancement in life made in the Will of the deceased for the Plaintiffs - Competing claim of beneficiary widow

Proceedings commenced by the sister of the deceased for a family provision order - Defendant is the brother of the deceased and the executor named in the deceased's Will - Question whether the Plaintiff was a person with whom the deceased was living in a close personal relationship at the time of the deceased's death

Proceedings, commenced by the former husband of the deceased for a family provision order under Chapter 3 of the Succession Act 2006 - Also alleged to be a person with whom the deceased was living in a close personal relationship at the time of the deceased's death, as well as a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member - Plaintiff also asserts he was in a de facto relationship with the deceased at the time of the deceased's death - Defendants named in the Summons are children of the deceased by prior marriage and the persons to whom Probate of the deceased's Will was granted - They oppose the application of the Plaintiff for a family provision order

[COSTS] - Where partial success on leave to appeal - success on appeal and cross-appeal - whether Respondents entitled to certificate under Suitors' Fund Act 1951

SUPPRESSION ORDERS- Court Suppression and Non-Publication Orders Act 2010, s 6- a primary objective of the administration of justice is to safeguard the public interest in open justice- principle of open justice one of the most fundamental aspects of the system of justice in Australia- the entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public- exceptions to open justice when court is acting in parental and administrative capacity, in blackmail and extortion cases and where disclosure of the information would seriously affect its commercial value- none of the exceptions apply. SUPPRESSION ORDERS- Court Suppression and Non-Publication Orders Act 2010, s 8(1)(a)- whether the making of an order is necessary to prevent prejudice to the proper administration of justice- meaning of the word "necessary"- necessary is a strong word- orders under the Act should only be made in exceptional circumstances- necessary does not mean convenient, reasonable or sensible- it is not sufficient that information is inherently confidential as distinct from personal or commercial information that has value as an asset that would be compromised. SUPPRESSION ORDERS- Court Suppression and Non-Publication Orders Act 2010, s 7- meaning of "information"- per Young JA (Bathurst CJ and McColl JA not deciding) information includes evidence and material which reveals the identity of a party or witness or a person related to or otherwise associated with a party or witness- orders should be confined to information as defined in s 7. STATUTORY INTERPRETATION- principle of legality- legislation should be construed consistently with the statutory scheme in a way that has the least adverse impact upon the open justice principle and common law freedom of speech. STATUTORY INTERPRETATION- whether an uncommenced Act can be used to construe a statute- Acts in a legislative scheme can be used to construe one another, even if one is uncommenced. WORDS AND PHRASES- "Necessary".

Interest - pre-judgment - Civil Procedure Act s 100(1) - joint-venture - moneys payable under contract pursuant to auditor's report - no cause of action until report - interest ordered from date of report.

COSTS - Judgment for plaintiff - Negligence proceedings - Motor Vehicle Accident - Two insurers involved in defence of proceedings - Plaintiff abandoned additional claim under Occupational Health and Safety Act - Trial limited to Motor Accidents Compensation Act claim- Second insurer elected to be separate party due to cause of action travelling outside MACA - Additional pleading did not occasion additional investigation or evidence - Second insurer took unduly restrictive and unnecessary approach - No sensible negotiations to develop cost-effective defence of claim - Second insurer to pay costs of plaintiff - Second insurer to pay costs of first insurer for period first insurer indemnified defendants

PROCEDURE - notice of motion - orders sought refused - costs

COURTS AND JUDGES - Orders made restraining defendant from publishing materials that were either defamatory or an abuse of process - non-publication orders also made - materials contain scurrilous and scandalous imputations about plaintiff - defendant murdered - Commissioner of Police applies to vary order to allow disclosure of materials to Director of Public Prosecutions and defendants in committal proceedings relating to murder of defendant - question whether material disclosable under (NSW) Director of Public Prosecutions Act 1986, s 15A - police under obligation to disclose to DPP information that might reasonably be expected to assist case for the prosecution or accused - materials point to a rational hypothesis consistent with innocence of accused - materials prima facie disclosable - balancing exercise required to assess whether documents ought be disclosed - need to balance interests of plaintiff and defendants - disclosure of material would jeopardise reputation and welfare of plaintiff - material not considered relevant to Crown case against accused - not for Crown to decide what lines of inquiry accused should pursue - accused may be deprived of defence if material not disclosed - administration of justice requires disclosure of such information - likely that rights of accused to a fair trial would trump rights to plaintiff - police permitted to disclose that have such material to DPP.

GUARANTEE - enforcement of guarantee - whether plaintiff has standing - whether demand on guarantors - sale of property as mortgagee in possession - whether mortgagee complied with duty of good faith - whether right to set off

PROCEDURE - costs - departing from the general rule - plaintiff to pay part of defendant's costs - oversight in relation to accounting costs order - order made - set-off - order for set off made and to stay money judgment until costs have been assessed - orders made

CONSEQUENTIAL ORDERS - Answers to separate questions - Availability of declaration COSTS - No issue of principle

PROFESSIONS AND TRADES - lawyers - duties and liabilities - wills - whether advice given as to severance of joint tenancy - whether the defendants were negligent in the advice given - whether the defendants owed the plaintiffs a duty of care - whether duty of care was breached - damages

PROCEDURE - notice of motion - mandatory injunction - access to legal documents - expedition - injunction refused - access to certain legal documents and expedition granted

APPEAL - Workers Compensation - whether Appeal Panel was in error - refusal of an oral hearing - failure to give reasons - whether there was error on the face of the record - jurisdictional error - whether the Appeal Panel - properly considered the grounds of the appeal STATUTORY CONSTRUCTION - construction of the Workplace Injury Management and Workers Compensation Act 1998 and the WorkCover Guides for the Evaluation of Permanent Impairment - construction of s 323 of the Workplace Injury Management and Workers Compensation Act 1998 - whether s 322(4) grants a discretion to a Medical Specialist - appeal upheld

COSTS - application for indemnity certificate pursuant to s 6 of the Suitors' Fund Act 1951 - appeal from adjudicator's determination under Building and Construction Industry Security of Payment Act 1999 - whether determination by adjudicator a decision of a "court" - held not a "court" for the purpose of s 6 - bankruptcy of applicant would also affect grant of certificate

CRIMINAL LAW - manslaughter - substantial impairment by abnormality of mind - sexual abuse - sentence

Claims by adult children of the deceased for family provision order under Succession Act 2006 out of the estate or notional estate of the deceased and an order designating property as notional estate - The deceased provided for the whole of his estate to pass to a friend - No provision for Plaintiffs - Estate fully distributed to Defendant - Plaintiffs' application out of time - Whether property should be designated as notional estate - Whether special circumstances established - Nature of property designated

POSSESSION OF LAND - registered mortgage securing loan - mortgagor deceased - registered proprietor deceased - matrimonial property - interest payments not made after death - default notice - whether funds advanced as loan or gift

CRIMINAL LAW - application for leave to appeal against sentence - single count ongoing supply of prohibited drug - heroin - s 25A(1) Drug Misuse and Trafficking Act 1985 - Form 1 offences of supply and possession - plea of guilty - finding of special circumstances - co-offenders pleaded guilty to knowingly taking part in supply of not less than commercial quantity of prohibited drug - offence of money laundering taken into account on Form 1 against both co-offenders - error in assessment of objective gravity - error in application of proportionality principle - greater disparity between sentences warranted - leave granted - appeal allowed - applicant re-sentenced

CRIMINAL APPEAL - s86(3) Crimes Act 1900 (NSW) - consideration of evidence in co-offenders' hearings on sentence - leave to appeal refused.

CRIMINAL APPEAL - s25(2) Drug Misuse and Trafficking Act 1985 (NSW) - physical control of drugs but with the intention of returning them to the owner - Carey defence should have been left to jury - no adverse consequence for appellant - no miscarriage of justice - no lesser sentence warranted at law - appeal dismissed.

CRIMINAL LAW - sentence appeal - plea of guilty to offence of robbery - whether sentencing judge properly assessed remorse - whether sentence manifestly excessive - refusal to identify co-offenders not relevant to remorse - limitation in use of statistics to establish manifest excess.

CRIMINAL LAW - sentence appeal - plea of guilty to five break enter and steal offences - whether applicant's mental illness properly considered by sentencing judge - whether sentencing judge erred in not backdating commencement of sentences - effect of applicant serving balance of sentence for breach of parole on sentences for new offences - special circumstances - whether sentences manifestly excessive.

CRIMINAL LAW - appeal against conviction - evidence raised reasonable doubt of guilt of appellant - conviction quashed.