Cases and authorities

CRIMINAL LAW - procedure - verdict - unanimous and majority verdicts - whether deliberation for reasonable period of time

CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - prejudice to accused - two grounds - late notice of Crown's reliance upon evidence against the accused - alleged failure by Crown to comply with rule in Browne & Dunn

CONTRACTS - Whether binding and enforceable agreement - defendant provides plaintiff with request for quotation for building works - plaintiff submits quote - defendant responds that plaintiff is successful tenderer and provides draft sub-contract agreement with schedule of rates to be filled out by plaintiff - plaintiff fills out and returns draft contract - plaintiff contends provision of draft contract and announcement that plaintiff successful tenderer comprised offer capable of acceptance - plaintiff contends accepted offer by filling in blanks and returning document to defendant - defendant had communicated that draft sub-contract was subject to review and had reserved to itself final execution - improbable that defendant intended to be bound by whatever plaintiff inserted in schedule - matter inserted in schedule not subject to prior discussion - viewed objectively no intention that parties be bound without both parties executing and communicating execution to one another.

GUARANTEE AND INDEMNITY - Discharge of Surety - terms of settlement and notice of discontinuance against one surety - whether co-surety released - whether covenant not to sue

PRACTICE AND PROCEDURE - UCPR 14.14 - Application by the Plaintiff to exclude portions of an expert report sought to be adduced by the Second Defendant - Whether the Second Defendant is required to plead an alternative cause in his defence - procedural fairness - surprise

EQUITY - Equitable remedies - injunctions - to restrain breach of confidence - database of information for recruitment/labour hire business - whether information can be identified - how far information confidential - information database created as the result of joint enterprise with the defendants - whether information communicated to the defendants in circumstances importing an obligation of confidence - whether defendants are using the information in breach of contract - whether defendants are estopped from denying the confidentiality of the information - HELD: information not confidential to the plaintiff to the exclusion of the defendants - information not communicated to defendants in circumstances importing an obligation of confidence - defendants not estopped from denying confidentiality of the information.

PROCEDURE - costs - application for order setting aside statutory demand - order that demand stand but for reduced amount - competing submissions as to costs - no matter of principle

EQUITY - TRUSTS - whether on proper construction of Sale of Business Agreement, moneys received into first defendant's trading account were impressed with an implied or resulting trust or otherwise held on constructive trust for the plaintiff - whether, if so, plaintiff entitled to trace into account in which moneys now held - whether second and third defendants liable for any shortfall in the retained moneys under the second limb of Barnes v Addy - HELD - implied or resulting trust arose on receipt of the moneys into the trading account and plaintiff able to trace into part of the funds held in the controlled moneys account - knowing assistance in dishonest breach of trust or fiduciary duty established - CONTRACT - whether breach by first defendant of warranties in Sale of Business Agreement - whether breach by plaintiff of obligation to conduct business after completion in ordinary and usual course - HELD - only breach of warranty established was in relation to preparation of company's accounts - no damages recoverable in respect of that breach as no reliance on the relevant warranty - having regard to meaning of "ordinary and usual course" of business no breach of contractual obligation by plaintiff in that regard - plaintiff entitled to set-off as against moneys owing by it to first defendant under Sale of Business Agreement the shortfall on its retained moneys claim after payment out of moneys held on trust for its benefit

CORPORATIONS - insolvency - winding up in insolvency - whether statutory demand served on the defendant - presumption statutory demand was delivered in ordinary course of post not rebutted - presumption of insolvency arises CORPORATIONS - insolvency - application for winding up in insolvency - where presumption of insolvency arises - whether company has adduced "fullest and best" evidence to rebut presumption of insolvency - what "fullest and best" evidence requires CORPORATIONS - insolvency - application for winding up in insolvency - where presumption of insolvency arises - whether company is insolvent because it would not be able to pay debt owed to a director if he were to call for its payment where no intention to make such a call - company not insolvent as a matter of commercial reality

CORPORATIONS - winding up - winding up in insolvency - statutory demand - application for order setting aside - demanded debt arises under guarantee - company relies on offsetting claim - guarantee requires payment in full and without deduction - whether right to offsetting claim bargained away - whether inability of company to set up its claim in an action for recovery of the demanded debt deprives the claim of the character of "offsetting claim" - whether claim genuine - whether amount of claim sufficiently articulated in supporting affidavit

PROCEDURE - civil - pleadings - strike out; application to - question whether cause of action statute barred cannot be decided on pleadings - no utility in striking out other causes of action based on same facts -whether paragraphs should be struck out on the basis that they have a tendency to cause prejudice, embarrassment or delay

CONTRACT - construction - vendor warranty to 'do all things necessary' to retain staff post sale of business - whether should be interpreted as 'best endeavours' clause CONTRACT - acceptance - whether term of draft consultancy agreement incorporated by reference into another agreement. CONTRACT - construction - meaning of "entice". CONTRACT - termination -whether change in composition of partnership or dissolution of partnership terminate employment by operation of law -whether change in employee's role resulted in termination of contract. EQUITY - fiduciary duties - employer/employee relationship AND CONTRACT - implied terms - obligation to act with good faith - employee entitled to establish competing business post employment - preparatory acts to establish while still employed must not be inconsistent with duties as employee - no breach - confidential information - extent to which employee can use knowledge gained in course of employment. VICARIOUS LIABILITY - whether vicarious liability exists for breach of implied contractual or fiduciary duty to third party - whether conduct in course of employment. CONTRACT - implied terms - whether term should be implied in contract for sale of business providing for deferred consideration that purchasers would conduct business in a proper, business like and professional manner. TRADE PRACTICES - misleading and deceptive conduct - representations concerning how would conduct business - not misleading or deceptive - no loss or damage suffered

CRIMINAL LAW - appeal against conviction - causing another to take a stupefying drug with attempt to commit an indictable offence - indecent assault - whether trial judge's summing up was unbalanced - whether trial judge erred in failing to direct jury to consider each count on indictment separately - whether trial judge erred in failing to give Markuleski direction

PROCEDURE - civil - notice of discontinuance.

WORKERS COMPENSATION - appeal - appeal from Arbitrator to Presidential member - whether arbitrator denied procedural fairness - content of obligations of procedural fairness in Workers Compensation Commission - where adverse credit finding made, whether party was given reasonable opportunity to answer the case against that party - rule in Browne v Dunn - where cross-examination terminated following objection by counsel of party claiming denial of procedural fairness - whether exchange of documentation before hearing gave party notice of the case that is put against that party WORKERS COMPENSATION - appeal - appeal from arbitrator to Presidential member - whether arbitrator failed to give adequate reasons - task of Presidential member is to decide whether the arbitrator has reached the correct view of the question that has been decided by the arbitrator - allegation of "inadequacy of reasons" identifies decision as flawed because it has been arrived at without observing the legal requirements governing the manner in which the decision is arrived at, not because decision is in substance wrong - decision by Presidential member that arbitrator has not given adequate reasons is not sufficient to justify Presidential member revoking or altering decision of arbitrator unless Presidential member also decides that decision of arbitrator is not the true and correct decision WORKERS COMPENSATION - appeal - appeal from arbitrator to Presidential member - nature of power to "review" - whether necessary for Presidential member to find error in decision of arbitrator before setting aside WORKERS COMPENSATION - appeal - appeal from Workers Compensation Commission to Court of Appeal - leave to appeal necessary where appeal made from interlocutory decision EVIDENCE - witnesses - Cross-examination - rule in Browne v Dunn - where cross-examination terminated following objection by counsel of party claiming denial of procedural fairness

Procedure - civil - motion to stay and/or set aside default judgment and execution of a writ of possession - motion dismissed

PRACTICE AND PROCEDURE - Evidence Act ss 69, 78 and 79 - evidence - opinion evidence - business records.

PROCEDURE - civil - an application for access to documents produced, which were separated by the Registry on the basis of objection to production and/or access by the defendant - restricted access granted

PROCEDURE - civil - judgments and orders - application to review decision of the registrar to adjourn the hearing of a motion - motion determined - leave to issue subpoenas - trial by jury refused

Charities - cy pres - gift for "... scholarships tenable overseas for advancement of Secretarial and Administrative knowledge to immediate Post-Graduate candidates ..." - Trustee now conducts Post-Graduate Diploma courses whereas earlier intake had been school-leavers - changes in nature of training altered practicalities of limitations to studies overseas and to immediate Post-Graduates - scheme altering these requirements approved

PROCEDURE - Application for leave to amend pleadings - amendments not previously appreciated - delay not as a result of tactical or intentional decision - no or minimal prejudice - directions to be made to cure any prejudice.

SERIOUS SEX OFFENDER - Crimes (Serious Sex Offenders) Act 2006 - Serious sex offender - Paedophilia non-exclusive type - Sentence served - Resident of community support program facility - Application for extended supervision order - Orders unopposed except for duration and residential suitability condition - Evidence of high risk of respondent committing a serious sex offence if does not accept treatment and supervision - Five year supervision order appropriate from psychiatric perspective to reintegrate, consolidate and monitor - Respondent can seek variation of orders in the future - Residential condition sought by respondent prohibiting refusal of accommodation by reason only that it has shared common rooms interferes with soundly based Corrective Services policy - Applicant's orders made EVIDENCE - Serious sex offender - Unchallenged psychiatric evidence - Evidence not illogical or inherently improbable - No suggestion of inaccuracy or unreliability of the history relied upon by experts - Evidence accepted EVIDENCE - Expert evidence - Serious sex offender - Predictions of criminal dangerousness - Caution due to reliability issues

CRIMINAL LAW - Sentence - Murder - Jury rejected partial defences at trial - No provocation - Capacity to control himself substantially impaired by brain damage subsequent to meningoencephalitis and depression - Impairment not sufficient to reduce liability to manslaughter consistent with jury's verdict CRIMINAL LAW - Sentence - Murder - Aggravating factors - Use of iron bar - Offence committed in victim's home - Mitigating factors - Not part of any planned or organised criminal activity - Little weight given to victim's conduct and associated relationship tension and general enmity - No prior convictions - Good character - Unlikely to reoffend - Good prospects of rehabilitation - No genuine remorse - Objective seriousness above middle of the range - Importance of deterrence - Special circumstances for varying statutory ratio for non-parole period

PRACTICE AND PROCEDURE - relevance of party's belief where controversial

PRACTICE AND PROCEDURE - Instalment orders - defendants seek judgment debt be paid in instalments - discussion of law as to instalment orders - such orders ought not be made where judgment debtor's means sufficient to pay debt in full immediately - such orders ought not be made if would be futile due to impecuniosity of debtor - time for payment ought not be unreasonable - instalment order must result in net reduction of judgment debt, bearing in mind interest accrues on such debts - defendants means do not enable them to immediately pay judgment debt - legitimate public interest in allowing defendants to continue performing work - order made enables net reduction of judgment debt. PRACTICE AND PROCEDURE - Notices to produce - plaintiff seeks to have defendants' notice set aside - notice pertains to plaintiff's application for strike out or summary dismissal of defendants' cross-claim on basis of legal untenability of cross-claim - Court assumes factual allegations can be proved in such applications - defendants' contention two companies "one and the same" legally impossible - notice to produce set aside.

PRACTICE AND PROCEDURE - COURTS AND JUDGES - Court Suppression and Non-publication Orders Act 2010 - pseudonym order in respect of the Plaintiff - Court satisfied that pseudonym order is necessary in the circumstances.

COSTS - calculation of amount owing plus interest under varied agreements where original agreement was found unjust under the Contracts Review Act -whether general rule that costs of successful party are paid by unsuccessful party should be displaced - Bullock order

WORKERS COMPENSATION - Assessment of whole person impairment - Plaintiff seeks orders that the decision of an Appeal Panel in relation to a medical dispute be quashed - meaning of "additional information" in s 327 - relief under s 69 of Supreme Court Act - construction of reasons of an administrative decision maker - Court not to assume role of decision maker.

DEFAMATION - pleadings - imputations - question of capacity

Road transport - driver licensing - Road Transport (General) Act s 188(2)(d) - date from which court ordered disqualification may commence

Proceedings for possession - mortgages - notice to mortgagor allegedly overstating amount due - s 58A Real Property Act - whether clause in mortgage an agreement within s 58A dispensing with notice

EVIDENCE - Coincidence evidence - s 98 Evidence Act 1995 (as at 10 November 2008) - for events to be related events, the events must be substantially and relevantly similar; and that the circumstances in which the events occurred must be substantially similar EVIDENCE - Coincidence evidence - where evidence of A is adduced to prove that because of the improbability of A and B occurring coincidentally, a person did B; and evidence of A also adduced to prove that because of the improbability of A and C occurring coincidentally, that person did C - consideration of similarities between B and C not relevant to whether evidence of A can be admitted as coincidence evidence concerning B or C CRIMINAL LAW - Evidence - Coincidence evidence - s 101 Evidence Act 1995 - probative value of evidence must outweigh any prejudicial effect it may have on the defendant - whether trial judge applied test EVIDENCE - Coincidence evidence - s 95 Evidence Act 1995 - where evidence inadmissible as coincidence evidence but admitted as circumstantial evidence, but where the probative value of the evidence as circumstantial evidence relied upon the same similarities as those identified in relation to coincidence evidence APPEAL - s 6 Criminal Appeal Act 1912 - where applicable statute requires a range of questions to be addressed, it must be clear that in substance all questions have been considered - whether trial judge permitted evidence to be adduced without having satisfied statutory preconditions EVIDENCE - Admissibility - Voir dire - decision made on basis of evidence expected to be given - whether unavailability of evidence expected to be given - whether possibility of miscarriage of justice arising from jury having had before them evidence that, as the facts ultimately unfolded, they should not have had APPEAL - Practice and Procedure - Appeal against conviction - s 10(1) Criminal Appeal Act 1912 - notice of intention to appeal against conviction required within 28 days after conviction - need for evidence to justify grant of extension of time - court requires substantial reasons to be advanced before granting extension of time - prospects of success and significance of consequences if extension denied are relevant matters

CRIMINAL LAW - application for leave to appeal against sentence - import commercial quantity of heroin and methylamphetamine - weight given to recent expressions of contrition must be slight - sentencing judge had regard to the applicant's evidence, co-operation and assistance on the question of contrition - discount for assistance and plea of guilty did not fall outside appropriate range - information assessed as low value and applicant caught committing the offence - applicant responsible for initiating and organising importation - applicant on parole for a similar offence - no lesser sentence warranted in law.

APPEAL - challenge to costs order - appeal involving bona fide challenge to other orders in addition to costs order - whether leave required - whether existing practice of court in accordance with authority in other jurisdictions - Land and Environment Court Act 1979 (NSW), s 57(4) COSTS - valuation proceedings - no presumption that costs follow the event - principle that claimant for compensation who has acted reasonably in commencing and maintaining proceedings recover costs ENVIRONMENT AND PLANNING - compulsory acquisition of interest in land - easement for construction of levee - assessment of market value - assessment of claim for disturbance - apportionment of cost of scour protection works - Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55(f) REAL PROPERTY - principles governing construction of easement - principles applicable where easement constitutes interest in land subject to compulsory acquisition

CONTRACT - building - oral variation of specification - contract unenforceable by builder but oral variation relied upon in defence of claim by owner - construction of contract - Home Building Act 1989 (NSW), ss 7, 7A, 7E, 10 JUDICIAL REVIEW - variation of costs order - order set aside as against party wrongly made subject to order STATUTORY INTERPRETATION - reliance by builder on oral variation to written agreement - statute prescribing consequences of breach - Home Building Act 1989 (NSW), ss 7, 7A, 7E, 10

STATUTORY INTERPRETATION - changes in assessment of compensation - effect of amendments commencing on 1 January 2002 - application of transitional provisions - Workers Compensation Act 1987 (NSW), ss 4, 16, Sch 6, Pt 18C, cl 3 WORKERS COMPENSATION - incapacity due to police officer being hurt on duty - entitlement under Police Regulation (Superannuation) Act 1906 (NSW) - injury arising from nature and conditions of work - effect of amendments commencing on 1 January 2002 - gratuity quantified not by reference to dates on which the injury occurred but date of claim

CRIMINAL LAW - procedure - juries - applications for discharge of jury or majority verdict direction - lengthy period of deliberation - communications from jurors - concern that jury not adhering to instructions on how to reach proper verdicts

GUARANTEE AND INDEMNITY - enforcement of guarantee and charge - deed of company arrangement does not affect creditor's rights under guarantee and indemnity - charge secures costs incurred in enforcing the charge assessed on the ordinary basis and interest pursuant to s 100 of the Civil Procedure Act 2005 - defendant to be afforded a reasonable time to pay amount for which he is liable before order for judicial sale

INJUNCTIONS - Plaintiff and defendant parties to confidential settlement agreement in relation to prior litigious dispute - defendant seeks to disclose terms of agreement to law firm acting for defendant and other parties in proceedings before Administrative Appeals Tribunal - proceedings on foot in Administrative Appeals Tribunal pertain to patent the subject of the settlement agreement - no evidence terms of settlement agreement in public domain - settlement agreement potentially exposes terms on which plaintiff willing to compromise litigation - impossible for law firm acting for defendant and other parties to put out of its mind the terms of the agreement in developing tactics and undertaking negotiations on behalf of and for benefit of its other clients - injunction granted restraining disclosure.

BUILDING AND ENGINEERING CONTRACTS - Defendant obtains adjudication determining moneys owed pursuant to building contract - corporation and natural person promisees under building contract - corporation alone is owner of land - whether contract one for the carrying out of residential building work on premises for party whom resides in or proposes to reside in, for purposes of (NSW) Building and Construction Industry Security of Payments Act, 1999, s 7(2)(b) - construction of s 7(2)(b) - sufficient for one party to contract to reside or intend to reside in premises - contract falls within s 7(2)(b) and is not a contract to which Act applies - adjudication void.

EVIDENCE - expert witness - s 79 Evidence Act 1995 - evidence in relation to lending practices in 2004-2005 - evidence based on specialised knowledge - evidence will not cause undue delay - report admissible

PROCEDURE - civil - applications to amend pleadings - motions dismissed

PRACTICE AND PROCEDURE - Client-legal privilege - plaintiff asserts privilege in relation to email correspondence with solicitors relating to property transaction - such correspondence confidential communications or documents for dominant purpose of providing legal advice - defendants contend privilege cannot subsist because relevant to fact in issue in proceedings - relevance not a basis for holding privilege to be waived - further communication between solicitor and third party - privilege resides in third party - third party asserts privilege - third party not joined to motion and court cannot override his claim for privilege. PRACTICE AND PROCEDURE - Discovery - obligations of parties under (NSW) Uniform Civil Procedure Rules, 2005, r 21.3 to identify documents claimed to be privileged - defendants' identify four boxes as privileged - defendants' contend that by giving discovery they may jeopardise a particular client's privilege where client has not consented - startling contention that third party's privilege would be waived merely by solicitors inspecting documents with a view to ascertaining privileged status - defendants' seek declaration that inspection will not result in waiver of privilege - no basis for making such a declaration. PRACTICE AND PROCEDURE - Discovery - defendants' seek order for further discovery - defendants' contend plaintiff's discovery inadequate - plaintiff solicitor adopts cavalier approach to discovery obligations - defendants required to sufficiently identify documents or class of documents in respect of which further discovery sought - defendants' required to establish reasonable grounds for believing documents in plaintiff's possession - order refused.

DAMAGES - General Principles - breach of contract - sale of goods - Robinson v Harman - plaintiff conducting an assisted reproduction technology practice - hypothetical sale and purchase of straws of sperm - sperm supplied valueless - assessment of time of breach - whether subsequent changes in legislation, codes of practice and ethical guidelines should be taken into account - whether credit should be given for betterment

DEFAMATION - defamatory imputations conveyed by email - qualified privilege - occasion of qualified privilege - two alternative bases - each destroyed by improper motive - damages awarded

APPEAL - administrative law - appeal from magistrate's refusal of adjournment/vacation of dates and striking out of defence - no error of principle - appeal dismissed

PROCEDURE - dismissal of statement of claim - UCPR 13.4 - statement of claim did not disclose any reasonable cause of action

CRIMINAL LAW - evidence - admissibility - whether evidence of probative value - whether evidence unfairly prejudicial to Accused - inference capable of being drawn from evidence - whether evidence could be misused by the jury.

COSTS - general rule that costs follow the event - whether indemnity costs should be ordered -whether should depart from general rule - no issue of principle

CORPORATIONS - winding up - application by company for its own winding up - reliance on ground that the company has resolved by special resolution that it be wound up and on the just and equitable ground - sole director and shareholder does not have records or information enabling her to discharge responsibilities - company suing her predecessor in separate proceedings - s 461(1)(a) ground established - s 461(1)(f) factors also at work - discretion should be exercised in favour of making order