Cases and authorities

EMPLOYMENT LAW - contract of employment - repudiation - implied terms - bonuses - how bonus was determined - whether disputed bonus was not paid due to plaintiff's refusal to sign proposed new contract - termination of employment relationship - whether the defendant was contractually entitled to impose conditions on the payment of the bonus - whether conditions imposed breached any fetter on the defendant's discretion - failure to pay the bonus - breach of contract - implied terms - grievance policy - whether grievance policy had contractual force, so far as the defendant was concerned - whether defendant breached its obligations under the policy - implied terms - whether refusal to adhere to the grievance policy amount to repudiation - damages

PROCEDURE - claim for possession of land - requirement on plaintiff under rules of court to serve notice of proceedings on various occupiers - whether requirement may properly be suspended, dispensed with or stayed - dictates of justice - where defendants seek to maintain cross-claim impeaching plaintiff's title under relevant mortgages

CORPORATIONS - winding up - winding up in insolvency - plaintiff seeks winding up on basis of unsatisfied statutory demand - defendant alleges abuse of process because some other proceeding more appropriate - no other proceeding between these parties on foot or proposed - defendant alleges lack of creditor status on plaintiff's part because relevant document not stamped as mortgage - s 459S precludes this argument (in any event mortgage not liable to ad valorem duty) - defendant attempts to prove solvency - relies on financial statements ten months old - main asset is land - contract for sale put into evidence - in substance an option to purchase only - directors undertakings not to call their loans offered - not appropriate - "indicative letter of offer" from lender - no certainty or commitment - no evidence from outside accountant - solvency not proved

ESTOPPEL - prior judicial determination of separate questions - Corporations Act ss 200B and 200F - judgment inter partes - res judicata - issue estoppel - Anshun estoppel - whether entitlement to termination benefit remains subject to approval by members of defendant in general meeting - where s 200F(2)(a) previously considered but s 200F(2)(b) not argued - whether unreasonable for employer not to have raised the issue for decision in earlier proceedings - employer not entitled to raise issue in later proceedings

ADMINISTRATIVE LAW - judicial review - jurisdictional error - Police Officer dismissed by the Commissioner of Police - whether the primary Judge was correct in not applying s 308H Crimes Act 1900 to applicant's access of COPS system - whether documentary evidence of applicant's access to COPS system was relevant for other reasons not considered by the primary Judge - whether evidence was incorrectly admitted of a record of interview between the applicant and an investigating officer (Inspector Nicholson) ADMINISTRATIVE LAW - judicial review - jurisdictional error - whether failure to consider all grounds of appeal is a jurisdictional error - whether the Full Bench of IRC was incorrect to dismiss the appeal

APPEAL - application for leave - refusal of primary judge to allow withdrawal of concession by counsel - need to prove that counsel had been overborne - no reasonable prospects of success.

PROCEDURE - civil - application for stay pending appeal from decision of Medical Tribunal of NSW - applicant offered to give undertaking to the Court not to practice or hold himself out as a medical practitioner until further order of the Court - stay of deregistration order granted PROCEDURE - civil - appeal from decision of Medical Tribunal of NSW - application for non-publication order - applicant's identity previously published on respondent's website in accordance with statutory obligations - whether order necessary to secure the proper administration of justice in the proceedings

APPEAL - civil - application to set aside orders dismissing leave application - application refused - no issue of principle

EQUITY - Equitable set-off - Claim by assignee of debt - Whether debtor's claims against assignor should be set-off against debt due to assignee - Relevance of sufficiency of evidence to exercise of discretion.

CRIMINAL LAW - procedure - witnesses - further applications for pseudonym orders for individual eye-witnesses - direction to the jury concerning the use of pseudonyms by some witnesses

Property (Relationships) Act 1984 - defacto relationship - adjustment of property interests - application out of time

ADMINISTRATIVE LAW - appeal from magistrate - question of law, mixed law and fact with leave - no appeal available on ground of factual error - error of law in judgment below; TRADE PRACTICES - misleading or deceptive conduct - failure to inform - examination of whole relationship required; DAMAGES - reliance where omission is misleading - loss of opportunity damages awarded

CORPORATIONS - application under s 459G Corporations Act 2001 (Cth) for order setting aside three statutory demands - whether proceedings properly constituted where copies of statutory demands not annexed to supporting affidavit - whether genuine dispute as to existence and amount of part or all of debt or genuine offsetting claim for purposes of s 459H(1)(a) and (b) - whether statutory demands defective or "some other reason" established for the purposes of s 459J(1)(a) or (b) - HELD -proceedings properly constituted - genuine dispute as to the existence or amount of the debt - statutory demands set aside

Practice and Procedure - damages assessed in reasons for judgment - whether damages should be referred to associate judge for assessment on basis of new argument not raised at trial

CORPORATIONS - documents - inspection - members - inspection of company documents by members

COSTS - security for costs - inherent power of court to order security against a personal plaintiff - whether plaintiff disposed of assets to put them out of reach of costs order - relevance of impecuniosity in situation where plaintiff has placed assets out of reach - application granted

EVIDENCE - Expert evidence - valuation of land - valuer proffers valuation evidence based on differing assumptions as to whether representations made about subject property were or were not true - valuer said not to sufficiently disclose reasoning underlying opinion - reasoning sufficiently exposed to enable testing in cross-examination - valuer provides figure of ten percent as to effect of representations - no underlying reasoning to explain figure - does not necessarily mean not based on specialised training, knowledge, study or experience - evidence admissible.

EVIDENCE - Telecommunications (Interception and Access) Act 1979 -admissibility of information lawfully intercepted under warrants - where warrants issued in respect of offences not involving the accused

CRIMINAL LAW - appeal against sentence - plea of guilty - no manifest inadequacy in individual sentences - error in failing to consider delay in prosecution - finding of special circumstances not reflected in aggregate sentence imposed - consideration of sentences imposed on co-offenders - leave granted - appeal allowed - applicant re-sentenced CRIMINAL LAW - particular offences - offences relating to the administration of justice - two counts perverting the course of justice - giving false and misleading evidence to ICAC - Form 1 offences - applicant a priest and supervisor of community service orders - falsification of records CRIMINAL LAW - sentence - approach to sentencing process - assessment of objective gravity - two-step process mandated for standard non-parole period offences - erroneous use of language hypothesising notional "mid-range" offence where standard non-parole period does not apply - no error in ultimate assessment of objective gravity CRIMINAL LAW - appeal - fresh evidence - application of s 6(3) Criminal Appeal Act 1912 - admission of additional evidence in applications for leave to appeal against sentence - medical reports - evidence could have been obtained - inadequacy of legal advice - evidence admitted CRIMINAL LAW - sentence - purpose of sentence - non-custodial orders - community service orders

CONTRACT - construction - dispute resolution clause - requirement under contract that expert determination be final and binding "unless a party gives notice of appeal" within 21 days - whether determination never final and binding where notice issued. ADR - dispute resolution clauses to be construed broadly to give effect to business purpose - parties unlikely to have intended multiple venues or occasions for resolution of disputes. CASE MANAGEMENT - conduct of appeal - filing of unnecessary material - need for practitioners to play their part in providing efficiency of service through the courts.

PROCEDURE - civil - summary disposal - whether defendants have an arguable defence - whether question of set-off should be determined as a separate question EQUITY - defences - set-off - whether cross claim sufficiently connected to permit set-off - whether defendants entitled to bring claim said to give rise to set-off

REAL PROPERTY - transfer of interest in property between family members - whether evidence established creation of a trust - transfer expressed to be for nominal consideration - held that transfer of interest in property was in exchange for relinquishing interest in another property - no question of principle

[Practice and Procedure] - applications to cross-examine defendants in respect of affidavits of discovery filed pursuant to orders for preliminary discovery - policy behind Uniform Civil Procedure Rules for preliminary discovery - whether evidence establishes probability that there are additional documents - prospect that plaintiff in a position to decide to bring proceedings in any event - contemplation of "fraud" claim under s 42 of the Real Property Act 1900 - whether allowing cross-examination consistent with the overriding purpose of the Rules

PRACTICE AND PROCEDURE - judgment and orders - notice of motion seeking orders that judgment not be entered to give effect to reasons in Michalopoulos v Perpetual Trustees Victoria Ltd & Ors [2010] NSWSC 1450 and leave to file an amended defence to second cross-claim - proposed amended defence served but not filed - trial conducted by second cross-claimant on the basis of pleadings and consented to as filed - second cross-claimant prejudiced if defence now amended - prejudice not capable of cure - interests of justice do not permit recalling part of judgment and dealing with amended defence - notice of motion dismissed

[SEARCH ORDERS] - whether ex parte search orders should be set aside for material non-disclosure - orders executed and documents and things seized and held by independent solicitor - whether documents should be returned to the defendants or produced to court

INDUSTRIAL LAW - Occupational health and safety - Charges of offences - Deficiency in particularisation - Whether particulars could subsequently be supplied - Whether jurisdictional error occurred in failure to quash or permanently stay charges.

Criminal Law - murder - permanent stay - "cold case" - loss of exhibits - assertion that police investigation inadequate and tardy

CRIMINAL LAW - sentence - aid and abet suicide - relevant factors - plea of guilty - sentence already served adequately reflects criminality of the offending - rising of the court

CRIMINAL LAW - sentence - accessory after the fact - no issue of principle - sentence imposed

CRIMINAL LAW - Crown appeal against sentence - 17 counts of various forms of sexual assault and six counts of acting with intent to pervert the course of justice involving six juvenile complainants over 18 months - no challenge to individual sentences but challenge to degree of accumulation - whether failure to properly assess the objective seriousness of the intent to pervert the course of justice offences - application of principles of proportionality and totality - judge's sentencing discretion did not miscarry.

CRIMINAL LAW - sentence - Crown appeal - serious offences of violence committed over 10-month period - young adult offender subject to conditional liberty - whether sentence for reckless wounding in company manifestly inadequate - whether total effective sentences for all offences manifestly inadequate - held that sentence for reckless wounding in company was manifestly inadequate - total effective sentences lenient but not manifestly inadequate - approach to sentence for offences of violence against pizza delivery driver - approach to sentence for offences against persons using public transport system at night - relevance of youth - importance of general deterrence - offender resentenced for reckless wounding in company

COSTS - parties agree on summary procedure for disposition of costs questions

LAND LAW - caveats - entitlement of second mortgagee to retain caveat

CORPORATIONS - application for stay of examination summons and order for production - HELD - application refused - direction that examinations be held in private and as to manner in which examinations to be transcribed

CIVIL PROCEDURE - application by second to fifth defendants for an order that the matter proceed by way of separate determination of preliminary questions - application for stay of earlier orders relating to appointment and conduct of special purpose liquidator - HELD - order pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the matter proceed by way of separate and preliminary determination of question of liability in advance of question of quantum of damages or other relief sought - order that the orders made on 26 November 2010 relating to the special purpose liquidator be stayed pending determination of question of liability

PROCEDURE - stay - stay pending appeal - whether arguable grounds of appeal shown - held not - where balance of convenience lies - given clear basis for apprehension that assets will be taken away and hidden if second defendant given possession, balance of convenience favours plaintiffs

CRIMINAL LAW - particular offences - offences against the government - conspiracy to defraud the Commonwealth - s 29D and s 86(1) Crimes Act 1914 - s 135.4(5) Criminal Code Act 1995 CRIMINAL LAW - procedure - application for temporary stay of proceedings - pre-trial publicity - order for stay refused

CORPORATIONS - directors - duties of directors - company's sole asset sold - sole director fails to account in any way for proceeds - vague statement as to part that it was used to pay unspecified debts - evidence as to another part that it was given to daughter-in-law to enable her to pay off her home mortgage - findings of breach of duty by director as to three sums - funding of "knowing receipt" by daughter-in-law as to one of these.

PROCEDURE - civil - strike out application - statement of claim alleged plaintiff was defamed by statements in police records - no cause of action articulated

PROCEDURE - costs - application to vary costs order - trust dispute - whether costs should be paid out of trust fund - where trust a vehicle for commercial investment and litigation commercial dispute - no reason that costs should not follow the event - application to vary costs order dismissed

CRIMINAL LAW - application for leave to appeal under s.5F Criminal Appeal Act 1912 - refusal by trial Judge to grant permanent stay of second count on indictment - indictment alleging two counts of conspiracy - Crown alleges single tax fraud conspiracy extending from 1997 to 2008 - change in legislative regime during course of alleged conspiracy - two counts charged to reflect change in legislative regime - whether second count foredoomed to fail - whether necessary for Crown to prove fresh agreement entered for purposes of second count - nature of conspiracy - continuing offence - whether s.135.4 Criminal Code 1995 (Cth) required proof of fresh agreement entered into within period of second count - physical element of s.135.4(5) offence - "state of affairs" - second count not foredoomed to fail - no error in refusal of permanent stay - leave to appeal granted - appeal dismissed

TORT - wrongful arrest and false imprisonment - whether transit officers had authority to arrest and detain appellants - whether power to arrest and detain enlivened by breach of Rail Safety (General) Regulation 2000 - Crimes Act 1900 (NSW) s 352 TORT - Injurious falsehood - whether elements of cause of action established DAMAGES - Tort - adequacy of general damages DAMAGES - Tort - exemplary damages - assault - whether individual respondent acted in contumelious disregard of appellants' rights - whether exemplary damages available where individual respondent convicted in respect of assault of one appellant and acquitted in respect of assault of other - whether exemplary damages available on evidence of disciplinary action taken by employer in respect of individual respondent - relevance of appellants' conduct DAMAGES - Tort - aggravated damages - assault - whether appellants provoked assault

CONTRACTS- election- contract for sale of land contained two special conditions with two independent rights to rescind, one if unsuccessful development approval, one if finance not obtained- whether election against rescission in solicitors' letter referred to unsuccessful finance approval- letter must be construed in its context which includes the factual matrix- words must be given the meaning intended by the parties-there was no election with regards to finance approval as only rescission due to unsuccessful development approval was in mind. CONTRACTS- election by conduct- sale of land contract contained right of rescission if application for finance approval was unsuccessful- relevance of general conduct apparently affirming contract before result of finance application known- whether constitutes an election not to exercise right to rescind contract- election requires choice between two mutually exclusive rights- purchaser did not elect as there were not mutually inconsistent rights- conduct was consistent with wishing to complete contract but keeping in reserve right to rescind.

ABORIGINAL LAND RIGHTS - whether lands the subject of a claim under the Aboriginal Land Rights Act 1983 (NSW) are "claimable Crown lands" - Land and Environment Court finds that the claimed lands were not likely to be needed for the essential public purpose of nature conservation - appeal under s 57(1) of the Land and Environment Court Act 1979 (NSW) - whether finding affected by error of law.

WILLS AND PROBATE- Family Provision Act s 9- purpose of section- factors warranting the making of provision- whether the primary judge erred in finding there were not sufficient factors by not taking into account the contributions of the appellant and the relationship between the appellant and the deceased- the principles in House v The King are the test for whether the judge erred- appellant failed to demonstrate error in the judge's reasons. WILLS AND PROBATE- Family Provision Act s 32- the making of a s 32 statement by a testator referring to a person is not an implicit acknowledgment of a legitimate claim by that person on his or her bounty- such a statement only indicates that the testator expected the person to make a claim. WILLS AND PROBATE- Family Provision Act- who is claimant on testator's bounty?- testator left estate to remote relatives and nothing to step daughter- step daughter asset rich but on partial pension- the protection of public funds is not a purpose of Family Provision legislation although the Court should not disregard the interest of the public in public funds- the testator's views should be respected unless they are contrary to community expectations.

CRIMINAL LAW - sentence - conspiracy to murder - criminality towards the upper range of objective seriousness - genuine remorse - low prospects of re-offending - late plea of guilty - discount for future assistance where assistance not as forthcoming as originally anticipated - finding of special circumstances.

PROCEDURE - proceedings for possession - application by occupier for extension of stay of writ of execution issued after judgment for possession entered by default against defendant mortgagor - scope of occupier's right to be let in to defend proceedings - application for access to mortgagee's documents

CONTRACT - construction - expert's opinion as to market value of shares - whether alleged flaw in the methodology of an expert renders it other than an opinion as to market value within the meaning of the contract