Cases and authorities

CRIMINAL LAW - sentence - plea of guilty - murder - aided and abetted - aggravating and mitigating factors - special circumstances - victim impact statement

CORPORATIONS - application to appoint provisional liquidator - whether assets under threat - application dismissed

CORPORATIONS - liquidators - application for removal of liquidators - whether liquidators validly appointed - where liquidators appointed to fill vacancy at creditors meeting convened by resigning liquidator - whether creditors can fill vacancy arising from liquidator's resignation only at a meeting of creditors convened by any two creditors pursuant to s 499(5), Corporations Act 2001 (Cth) - power to convene meeting of creditors to fill vacancy arising from liquidator's resignation pursuant to s 499(5), Corporations Act 2001 (Cth) facultative and not only way in which creditors can meet to appoint liquidator to fill vacancy - meeting validly convened by resigning liquidator - whether resigning liquidator entitled to exercise casting vote - Corporations Regulations 2001 (Cth), regs 5.6.17 and 5.6.21 - where resolution passed at creditors meeting after creditor approval of liquidator's resignation - Corporations Regulations 2001 (Cth), reg 5.6.21(4) gives casting vote to chairperson presiding at meeting not to the holder of a particular office - resolution appointing liquidators to fill vacancy validly passed CORPORATIONS - liquidators - application for removal of liquidators - whether reasonable apprehension that liquidators lack impartiality - whether liquidators biased in favour of major creditor - where major creditor not prepared to provide funding for examination of director to any liquidator other than liquidators nominated by them - where former partner of liquidators provided advice to major creditor when partner of liquidators - where liquidators have been involved in administrations where major creditor petitioning creditor - impartiality of liquidators not compromised - application dismissed

SENTENCE - importation of drugs - supplying drugs - perverting the course of justice

EQUITY - trusts - rectification of trust deed - where trust deed contained no clause giving trustees discretion to appoint income or distribute capital prior to termination of trust - other clauses in trust deed indicate draftsman assumed power to appoint income or capital - affairs of trust conducted in way consistent with trustees believing they had power to appoint income and distribute capital without terminating trust - common intention that trustees have such powers - trust deed rectified in manner sought EQUITY - trusts - rectification of trust deed - application for rectification of deed of resignation to provide for resignation of trustee - where deed of resignation purported to confirm resignation of trustee retrospectively - where trustee believed he retired as trustee by execution of previous deed of resignation - where previous deed of resignation expressly provided for trustee to continue - trustee did not intend that deed of resignation would effect his removal as trustee from date of deed - trustee intended to confirm mistaken belief that he retired as trustee by execution of previous deed of resignation - no disconformity between purported effect of deed and intention of plaintiff - rectification sought goes beyond jurisdiction to rectify instruments - claim for rectification of deed of resignation refused

DAMAGES - motor vehicle accident - plaintiff incapable of managing her affairs as a result of defendant's negligence - future fund management costs - whether plaintiff entitled to such costs at the higher rates charged by a private fund manager - whether any sum should be deducted from the verdict for the purpose of the calculation

CRIMINAL LAW - appeal - conviction - evidence - false statements - whether false statements could be lies evidencing consciousness of guilt CRIMINAL LAW - appeal - conviction - whether misdirection in presentation of defence case in summing up to jury CRIMINAL LAW - appeal - conviction - objections not taken below - whether miscarriage of justice - Criminal Appeal Rules r 4 CRIMINAL LAW - appeal - sentencing - whether manifestly excessive - Crimes Act 1900 s 66A

ENVIRONMENT AND PLANNING - Land and Environment Court upholds challenge to Minister's decision to recommend amendments to State Environmental Planning Policy ("SEPP") and to validity of SEPP - whether Minister's recommendation decision failed to comply with the requirements of an existing SEPP - whether the Minister took into account an irrelevant consideration, namely a voluntary planning agreement purportedly made in conformity with s 93F of the Environmental Planning and Assessment Act 1979 - whether voluntary agreement provided for suitable means of enforcement of a development contribution, as required by s 93F(3)(g) - whether a suitable means of enforcement is a jurisdictional fact - whether non-compliance with an existing SEPP would render the Minister's recommendation decision invalid - whether status of recommendation decision affects validity of the amending SEPP - whether a Ministerial recommendation is a precondition to the exercise of the statutory power to make a SEPP WORDS AND PURPOSES - "suitable means of enforcement".

JUDICIAL REVIEW - Police sergeant seeks review of Commissioner's decision removing him from the Police Force - Industrial Relations Commission ("IRC") finds removal harsh and directs Commissioner to re-employ the former sergeant at the lower rank of Senior Constable - whether the IRC's decision affected by jurisdictional error - whether s 89(2) of the Industrial Relations Act 1996 empowers the IRC to direct re-employment of a former police officer at a lower rank - whether there was evidence to support IRC's finding that re-employment was practicable.

PRACTICE AND PROCEDURE - Notice of motion seeking leave to file amended defence and cross-claim - Overriding purpose in Court exercising power is to facilitate the just, quick and cheap resolution of the real issues - Purpose of all necessary amendments to determine the real questions raised by proceedings - Proposed amended defence - Properly pleaded would constitute a defence - Occurs early in proceedings albeit late in terms of hearing of motions - Raises matters that are or will be in issue properly between parties - Not satisfied that allowing defence would cause any irremediable prejudice to the plaintiff - Leave granted - Proposed amended cross-claim adequately pleads a cross-claim for relief under Contracts Review Act - Leave granted - Concurrent notice of motion by plaintiff seeking summary judgment stayed until plaintiff assesses new pleadings

FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - de facto relationship of fifteen years - initial asset introduced by plaintiff who seeks to retain its fully appreciated value - discussion of "erosion principle" - defendant bankrupt at commencement of relationship - order made for adjustment.

PRACTICE AND PROCEDURE - Further directions for conduct of proceedings

CRIMINAL LAW - Sentencing appeal - insider training offences - error by trial Judge in reflecting assistance to authorities CRIMINAL LAW - matters relevant to re-sentence - need for general deterrence in insider trading offences - subjective circumstances - co-operation with authorities - future assistance - whether psychiatric condition relevant - whether connected to offences - gambling addiction - remorse - rehabilitation - Ellis discount

COSTS - general rule that costs follow event - trial costs - multiple issues - multiple trials - apportionment

PRACTICE AND PROCEDURE - Reference of papers to Attorney-General - evidence adduced in proceedings discloses potential commission of criminal offences by plaintiffs' principal - Court has discretion to refer papers to Attorney-General - in exercising discretion Court considers objective seriousness of offence, utility of any prosecution and consequences of offence - offences in question objectively serious but had little harmful consequence - papers not referred.

PRACTICE AND PROCEDURE - Motion seeking stay of orders of Consumer Trader and Tenancy Tribunal - Notice of Intention to Appeal filed for Supreme Court decision not to quash orders of CTTT - Grant of stay of execution of an order pending the hearing for leave to appeal or of an appeal is a discretional grant of relief - Not in the interests of justice that the stay ought to be granted - Residential tenancy agreement expired - Landlords seek possession - Significant arrears of rental payments - Tenant on notice to fine alternative accommodation for at least 10 months. Unpersuaded that grounds of appeal are of substance or likely to succeed - stay refused.

Discharge of jury - no relevant prejudice

ESTOPPEL - Equitable estoppel - Principles upon which relief is to be granted. SUCCESSION - Family provision and maintenance - Principles upon which relief is to be granted under s 9 of Family Provision Act 1982 (NSW)

CRIMINAL LAW - appeal - conviction - fresh evidence - whether significant possibility jury acting reasonably would acquit appellant CRIMINAL LAW - appeal - sentencing - aggravation - whether abuse of trust and abuse of authority different concepts - whether abuse of trust can be aggravating factor where abuse of authority is element of offence - Crimes Act 1900 s 66C(2) - Crimes (Sentencing Procedure) Act 1999 s 21A(2) CRIMINAL LAW - appeal - sentencing - whether sentence manifestly excessive

CONSTITUTIONAL LAW - constitutional challenge to validity of statute - whether s 471.12 Criminal Code infringes implied freedom of political communication - test in Lange v Australian Broadcasting Commission - whether section burdens freedom of communication about government or political matters - whether reasonably appropriate and adapted to serve legitimate end compatible with maintenance of system of government prescribed by the Constitution (Cth) CONSTITUTIONAL LAW - constitutional challenge to validity of statute - implied freedom of political communication - whether necessary to have regard to actual communication CRIMINAL LAW - using a postal service to menace, harass or offend - constitutional validity of statutory offence - whether s 471.12 Criminal Code infringes implied freedom of political communication STATUTORY INTERPRETATION - s 471.12 Criminal Code - meaning of "offensive"

APPEAL - application for leave to appeal - no arguable basis to challenge judgment at first instance - no issue of principle - leave refused

APPEAL - civil - application for leave to appeal against consent judgment - applicant alleged that respondent's misrepresentation induced her to consent to judgment - no arguable case that representation was erroneous - leave to appeal refused

COSTS - order for costs on an interlocutory application in favour of plaintiff - costs made payable forthwith - subsequent order for trial costs against plaintiff - interlocutory costs not set off against trial costs - discretion to set off - relationship between orders - significance of interlocutory costs being payable forthwith - whether juge erred in exercise of discretion - no error.

TORTS - false arrest and false imprisonment - absence of reasonable suspicion to arrest - appellant arrested following investigation by police into allegations that he was attempting to sell a fake certificate of guarantee for platinum - evidence did not establish cause of action TORTS - malicious prosecution - absence of reasonable and probable cause for prosecution - whether reasonable basis for prosecutor's belief - one charge withdrawn - one charge dismissed - acquitted on remaining charge - evidence did not establish cause of action TORTS - injurious falsehood - evidence subject to immunity - cause of action not established TORTS - conspiracy to injure by lawful means - conspiracy to injure by unlawful means - evidence did not establish causes of action ADMINISTRATIVE LAW - procedural fairness - whether trial judge's descriptions of appellant's evidence and comments upon the magistrate's reasons breached procedural fairness - trial judge considered evidence having regard to its relevance, weight and sufficiency - trial judge's comments upon magistrate's reasons not integral to dismissal of appellant's causes of action - no denial of procedural fairness COSTS - Civil Procedure Act 2005, s 98(4)(c) - specified gross sum costs order -where appellant impecunious and unlikely to satisfy any costs order - where costs of assessment unlikely to be recouped - whether trial judge's discretion miscarried as to costs - trial judge correctly exercised power to make an order for specified gross sum costs instead of assessed costs COURTS AND JUDGES - disqualification - apprehended bias - conduct of trial judge in relation to unrepresented litigant - trial judge did not err in refusing to recuse on the ground of apprehended bias COURTS AND JUDGES - duty to unrepresented litigant - obligation to ensure unrepresented litigant has information about the practice and procedure of the court - obligation to ensure a fair trial EVIDENCE - admissibility - expert evidence - trial judge did not err in admitting expert evidence where expert not required for cross-examination EVIDENCE - admissibility - transcript of Local Court proceedings - whether trial judge erred in rejecting the whole of the transcript of Local Court proceedings - trial judge did not err - basis of tender of the transcript was convenience - no identification of the relevant portions of the transcript EVIDENCE - privilege - immunity given to statements made in court or in connection with court proceedings - statements upon which appellant based claims in injurious falsehood and conspiracy to injure protected by immunity PRACTICE AND PROCEDURE - adjournment - where appellant did not have legal representation for balance of the hearing - whether trial judge's refusal to grant an adjournment constituted a miscarriage of discretion - trial judge did not err in refusing an adjournment PRACTICE AND PROCEDURE - Uniform Civil Procedure Rules, r 51.36(2) - challenges to findings of fact - requirement for separate identification in written submissions of challenges made to primary facts found by trial judge

PRACTICE AND PROCEDURE - Application for former solicitor to indemnify second plaintiff for costs ordered to be paid by it - indication that first plaintiff may make similar application - solicitor files evidence late - solicitor then proposes to rely on no evidence - findings against solicitor not lightly made but have serious consequences - prospect of inconsistent findings in associated proceedings - risk of injustice and inconsistent findings entail adjournment preferable course.

PRACTICE AND PROCEDURE - Summons seeking stay of decision of Motor Accidents Authority of NSW for further assessment of plaintiff's injuries - Proceedings listed for hearing in three months - Plaintiff demonstrated reasonably arguable case for administrative law relief - Balance of convenience favours grant of stay - Possible more expedient to require assessment process - Not satisfied that assessment appropriate - Plaintiff inconvenienced by assessment - Plaintiff required to disclose confidential material -Stay granted

PRIVATE INTERNATIONAL LAW - foreign judgments - recognition and enforcement - Foreign Judgments Act 1991 (Cth), Part 2 - orders made in Subordinate Courts of the Republic of Singapore - Subordinate Courts of Republic of Singapore not specified inferior courts for the purposes of Part 2 of Foreign Judgments Act 1991 (Cth) - Part 2 of Foreign Judgments Act 1991 (Cth) does not apply - application refused

CRIMINAL LAW - verdict - appeal against conviction - whether conduct of trial by counsel resulted in miscarriage of justice - trial counsel failed to lead medical evidence of deceased's mental health - trial counsel failed to cross-examine on material in medical records - trial counsel failed to call witnesses - whether appellant lost an opportunity of acquittal that was fairly open to the jury - no reasonable explanation for trial counsel's failure to lead medical evidence and cross-examine on medical records - reasonable explanation for failure to call witnesses - no miscarriage of justice - appeal dismissed CRIMINAL LAW - joint criminal enterprise - whether trial judge erred in leaving a joint criminal enterprise open to the jury as an alternative basis for liability - no evidence to support a joint criminal enterprise - trial judge wrongly put the alternative case on joint criminal enterprise to the jury CRIMINAL LAW - verdict - appeal against conviction - directions of trial judge - whether trial judge erred in directions on self-defence and defence of another - whether trial judge erred in directing the jury in relation to admission by witness

APPEAL - procedure - respondent proposing to challenge the correctness of intermediate appellate court decision - respondent failed to notify Registrar at the earliest opportunity in accordance with Practice Note SC CA 1 - application for leave to appeal adjourned for hearing before a five judge bench - question of costs thrown away by adjournment to be considered at the further hearing

PROCEDURE - costs - Offer of Compromise inclusive of costs - effect of Calderbank offer inclusive of costs - whether respondent unreasonably rejected offer - key witness refusing statement in advance of hearing.

TORT - negligence - dangerous recreational activity - whether plaintiff engaged in dangerous recreational activity - contributory negligence- volenti non fit injuria

PRACTICE AND PROCEDURE - vexatious proceedings - whether proceedings are vexatious - meaning of "vexatious" - whether proceedings were conducted frequently - meaning of "frequently"

SUPERANNUATION - total and permanent disablement - claims for benefit - whether incapacity of the insured person satisfied the definition of "total and permanent disablement" under the policy - whether decisions of insurer to refuse the claims were unreasonable and invalid - whether interest payable under s 57 Insurance Contracts Act 1984 (Cth)

CRIMINAL LAW - Crown appeal - appeal allowed and Respondent resentenced - aggregate sentencing provisions utilised - aggregate sentencing provisions not available given timing of pleas of guilty - further slip in calculation of sentences - application under Rule 50C Criminal Appeal Rules - misapprehension of law materially affecting appeal judgment - order made under Rule 50C - Respondent resentenced

PROCEDURE - summary judgment - whether arguable defence - no question of principle. INSURANCE - defendant's insurer settled claim against him - whether bound defendant to pay settlement sum - policy clause gave authority to settle - payment by insured alone - settlement released another party as well as insured - whether misuse of authority whereby insured not bound - arguable defence.

APPEAL- has an appeal become spent- notice had expired- limitation period for prosecution of alleged offence had expired- section in Act purports to keep expired notices alive- Supreme Court does not have an advisory jurisdiction, however the Court retains a discretion to hear and determine an appeal which has been regularly commenced- Court is likely to exercise discretion where the decision the subject of the appeal is likely to affect other cases- Court proceeded to determine the appeal. JUDICIAL REVIEW- construction of a statutory notice- notice to be construed according to what would be conveyed to the reasonable recipient of the notice- recipient may be required to make some enquiries but not to make enquiries of unrelated third parties. JUDICIAL REVIEW- validity of a statutory notice- a statutory notice must define the "matter" in connection with which it was issued unless the governing statute operates in some special manner- the Court is not to be "precious or hypercritical" about the form of the notice- notice failed to indicate to the addressee the matter with which it was concerned- notice held to be invalid.

COSTS - order against non-party - after negotiating for Option to purchase land himself the respondent formed a company which entered into the Option Deed - he soon became sole director, secretary and shareholder, capital $100 - the company brought litigation claiming it relied on misrepresentations to the respondent made before it was formed - respondent was not a plaintiff - after protracted interlocutory preparation the litigation was settled on second hearing day on terms which amounted to capitulation - company did not pay assessed costs apart from deposit as security for costs - respondent provided company with all funds it needed and was its controlling mind throughout - order for payment of costs by respondent although not a party to the litigation.

CRIMINAL LAW - sentence - murder - guilty plea - parity with co-offender - no issue of principle - sentence imposed

CORPORATIONS - application to terminate Deed of Company Arrangement - Corporations Act 2001 s 445D(1)(g) - principle that insolvent companies should not continue to trade - Deed of Company Arrangement will not extinguish all debts - problems with company's administration and question whether creditors will be any better off under Deed - exercise discretion in favour of termination

ASSOCIATIONS AND CLUBS - officers - question as to rightful executive committee of association - whether was a quorum at Special General Meeting - construction of constitution of association - whether executive committee validly removed from office - whether interim committee validly appointed - whether interim committee had power to call an Annual General Meeting - whether Corporations Act 2001 s 1322 can be used to cure irregularities in calling of Annual General Meeting

CRIMINAL LAW - appeal against conviction - charges of stealing, receiving motor vehicle - verdict of guilty of receiving - evidence as consistent with stealing as receiving - conviction of receiving unreasonable BODY MAPPING EVIDENCE - armed robbery (2) - whether appellant one of two robbers depicted in CCTV footage - evidence of anatomist of similarities between person depicted in footage and photos of appellant - inadmissible as expert evidence

CRIMINAL LAW - appeal against sentence - denial of procedural fairness - whether applicant's role was "above that of a courier" - psychologist's report to establish role - whether trial judge erred in finding role as an aggravating factor CRIMINAL LAW - appeal against sentence - whether trial judge erred in using an Assessment of Assistance as evidence of objective gravity CRIMINAL LAW - appeal against sentence - whether errors warrant intervention of the appellate court - whether sentence was greater than it ought to have been, given erroneous findings as to role

CONTRACTS- Contracts Review Act 1980, s 9- unjust contract- undue influence depends not on the state of awareness of the victim but on the psychological ascendency of the perpetrator over the victim- appellant of lower than average intelligence entered into refinancing contract influenced by co-borrower- appellant had no ability to service the loan- primary judge found respondent bank had no knowledge of influence or inability to pay- the establishment of one or more of the criteria in s 9(2) does not necessarily mean the Court will find the contract is unjust- to find a contract unjust, the Court must look at all the circumstances- Court retains discretion as to whether to set aside the contract as unjust- even if a result found in favour of the appellant, to get relief, appellant would have to first repay money used to her advantage to discharge prior mortgage- contract not found unjust.

CORPORATIONS - arrangements and reconstructions - Part 5.1 scheme of arrangement - approval of scheme by court - interests to be considered not confined to those of persons directly bound - matters beyond direct results to be considered - no basis for considering effect of possible but non-existent alternatives - only available comparison is between status quo and situation the particular scheme will produce - approach to be taken by the court - illegality and public policy considerations -CORPORATIONS - registered managed investment scheme - identification of scheme property - permitted methods of application of scheme property - payment to scheme members - whether distribution to members as members is the only permitted method - CORPORATIONS - directors - duties of directors where company faces insolvency - where money expended to obtain concurrence of members of managed investment scheme through a resolution passed at a meeting - where need for resolution arises from stock exchange listing rules - whether directors bound to seek waiver or de-listing by stock exchange to remove that need

PRACTICE AND PROCEDURE - Plaintiffs apply to strike out paragraphs of defendants' defence - paragraphs not consequential to amendments to statement of claim and raise new matters - whether leave ought be granted to raise such matters - paragraph contains seriously arguable defence - no reason identified why not raised earlier - balance of prejudice - interests of justice favour defence pleaded being maintained.

PRACTICE AND PROCEDURE - application for extension of caveat - no appearance by plaintiff at hearing - plaintiff does not wish to proceed - application dismissed with costs

PROCEDURE - proceedings dismissed for want of compliance with directions - Civil Procedure Act 2005, s 61