Cases and authorities

CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - killing by father of 4 1/2 month old baby by throwing onto a bed - lower range of seriousness - plea of guilty

CORPORATIONS - oppression proceedings - alleged failure to carry out arrangements for separation of businesses - no grounds under Part 2F.1 shown - just and equitable ground of winding up - where company is commercially viable

PRACTICE AND PROCEDURE – preliminary discovery – orders previously made – question of whether categories are relevant and/or confidential – residual discretion – discretion not exercised – some documents irrelevant for purpose of preliminary discovery – distinction turns on issues of fact

EQUITY - general principles - equitable doctrines and presumptions - application for permanent stay of proceedings - cause of action estoppel alleged arising out of findings in prior proceedings - Port of Melbourne Authority v Anshun (1981) 147 CLR 589 estoppel alleged - abuse of process alleged - subject matter of the current proceedings not raised in the prior proceedings - different causes of action in the two proceedings subject matter relied upon in the current proceedings not so relevant to the subject matter of the prior proceedings that it would have been unreasonable not to rely upon it in the prior proceedings - no inconsistency in judgments likely between the current proceedings and prior proceedings - no abuse of process - application dismissed

ADMINISTRATIVE LAW - administrative tribunals - judicial review and statutory appeal from administrative authorities to courts - exploration licence holders access to land under Mining Act 1992 - conditions of access arrangement imposed by Mining Warden in review proceedings under Mining Act 1992 - jurisdiction of Warden's Court - jurisdiction of arbitrator - construction of Mining Act 1992 - failure to give statutory notices to landholders - whether more than one access arrangement may be entered between a license holder and landholders - jurisdictional error established - error on face of record - other issues of construction of Mining Act 1992 - conditions to be imposed on access arrangement - construction of s 141(1) of the Mining Act 1992 - failure to give reasons for decision - compensation - errors of law established - right of appeal from Mining Warden's determination under Mining Act 1992 - no statutory right of appeal - decision and determinations of Warden's Court and arbitrator quashed - - ENERGY AND RESOURCES - minerals - courts or tribunals exercising jurisdiction in mining matters

APPEAL – s 56 Crimes (Appeal and Review) Act 2001 - plaintiff employed by Sydney South Western Area Health Service as a cleaner - private criminal prosecution by him in the Local Court of the defendants who were his former co-workers alleging offences under s 62(1) of the Privacy and Personal Information Act 1998 and s 68(1) of the Health Records and Information Privacy Act 2002 – where magistrate dismissed the proceedings on defendants' request on basis that the plaintiff's application was invalid by reason of duplicity and in breach of s 175 of the Criminal Procedure Act – whether decision concerned a question of law – whether s 16(2)(a) applied - whether decision erroneous – magistrate's decision not erroneous on issues decided by her – whether magistrate's decision erroneous by reason of a failure to give the plaintiff an opportunity to elect or to amend the application – limited error found - consequential orders made.

REAL PROPERTY - Land owned by a co-operative - Expulsion of a member - s 90 Co-operatives Act 1992 - Domestic Tribunals - Whether procedural fairness accorded.

CONTRACT – joint venture agreement – expert determinations under terms of contract – whether expert determinations binding on the parties – whether expert has an obligation to accord procedural fairness– effect of mistake on the part of the expert –– scope of guarantee under the contract – EQUITY – declaration as a discretionary remedy – RESTITUTION – total failure of consideration – recovery of contributions to a joint venture where joint venture agreement does not contemplate events which have occurred

TORTS - negligence - essentials of action for negligence - duty of care - special relationships and duties - police officers - salient features to be considering in novel cases of duty of care - POLICE - rights, powers and duties - other powers and duties - PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - nature of proceedings - appeals as to costs - PROCEDURE - inferior courts - New South Wales - Supreme Court procedure - summarily striking out statement of claim for failing to disclose reasonable cause of action - PROCEDURE - appeal lodged against findings of Magistrate striking out claim pursuant to rule 13.4 of the Uniform Civil Procedure Rules for failing to disclose reasonable cause of action - appeal involved determination of whether Police Officer owed duty of care to victim of domestic violence the content of which required the police officer to advise the victim to seek independent advice before entering into a commercial transaction with the police officer

CRIMINAL LAW — Sentencing — mental illness — causal connection between mental illness and commission of offence

CRIMINAL LAW – sentence appeal – where applicant convicted of numerous offences of obtaining property by deception contrary to s 178BA(1) Crimes Act 1900 – where value of property exceeded $250,000 – where applicant sentenced to effective non-parole period of 18 months – whether sentencing judge erred in not imposing entirely concurrent sentences for all offences – whether sentencing judge erred in allowing only 40 per cent combined discount for early plea and assistance to authorities – whether sentencing procedure conducted on basis of agreed facts erroneous – whether sentence manifestly excessive – appeal dismissed.

CRIMINAL LAW - Appeal against sentence - pre-sentence custody taken into account by backdating or reducing sentence - could not backdate as sentence suspended - taken into account by reducing sentence - or in deciding kind of sentence - sentencing in round figures not mandatory.

CRIMINAL LAW - appeal - appeal against sentence - supply large commercial quantity of prohibited drug - 2 offenders - parity principle - general deterrence and mental health issues - challenge to weight accorded to factors by Sentencing Judge - whether error shown.

CRIMINAL LAW - Sentence - Two counts of indecent assault of children under 10 - Error by judge in approach to standard non-parole period - whether any lesser sentence is warranted.

COURT OF APPEAL - leave to appeal - application to Dust Diseases Tribunal for leave to amend by adding new defendant - claim based on alleged asbestos exposure from 1942 to 1990 - discretionary considerations - no question of principle - DUST DISEASES TRIBUNAL - leave to amend by adding new defendant - part of claim very stale - prejudice to proposed defendant - no question of principle.

LIMITATION OF ACTIONS - extension of limitation period - appeal against decision to strike out claim for workers compensation - claim struck out erroneously - appeal lodged after delay of four years - whether adequate explanation for delay provided - whether necessary to demonstrate arguable substantive case - whether prejudice demonstrated

CRIMINAL LAW - appeal - verdict unreasonable or insupportable having regard to evidence - appeal dismissed - CRIMINAL LAW - appeal - miscarriage of justice - leave to appeal declined

CONSTITUTIONAL LAW - public interest immunity - whether documents would disclose Cabinet deliberations - whether court should inspect documents - parliamentary privilege - whether draft Question Time briefs are protected - meaning of "impeached" - EVIDENCE - client legal privilege - method of proving privilege

CONVEYANCING – contract for sale of land – where purchaser claims entry into contracts procured by misrepresentation – where purchaser found not to have relied on contravening conduct - whether contravening conduct productive of loss or damage - where purchaser affirms contract – effect of affirmation on statutory remedies - whether contract should be avoided under Fair Trading Act, s 72 – where purchaser remained in possession following termination by vendor for default – assessment of damages for breach of contract – assessment of damages for trespass - extent to which credit must be given for forfeited deposit – whether deposit should be returned under Conveyancing Act, s 52(2A). - TRADE PRACTICES – contract for sale of land – where purchaser claims entry into contracts procured by misrepresentation – where purchaser found not to have relied on contravening conduct - whether contravening conduct productive of loss or damage - where purchaser affirms contract – effect of affirmation on statutory remedies - whether contract should be avoided under Fair Trading Act, s 72.

SUCCESSION - family provision - claim by adult son against mother's estate - financial and material circumstances of Plaintiff - Deceased had earlier obtained additional provision from her husband's estate, thus reducing benefit received by Plaintiff under his father's will - obligation of an applicant for provision to place before the Court as fully and as frankly as possible all information regarding his financial and material circumstances - whether Plaintiff has been left without adequate provision for his proper maintenance - if plaintiff does not understand his financial position, it is not possible for him to prove a present need - competing claim of First Defendant.

PRACTICE AND PROCEDURE – Stay of proceedings pending prosecution of witness – Defendants 2 and 3 applied for stay – Police prosecution of Sam Cassaniti, not a party to these proceedings, pending on three charges of fraudulently misappropriating cheques – Cheques were paid into D2 company bank account of accounting practice conducted by D3 and plaintiff sued for amounts of cheques claiming that Sam Cassaniti was instructed to pay the cheques to Australian Taxation Office – D2 and D3 unable to obtain information from Sam Cassaniti while prosecution pending – Consideration of principles relating to protection of right to silence – HELD D2 and D3 not entitled to protection of another person’s right to silence and on consideration of difficulties of either side, D2 and D3 faced ordinary vicissitudes of litigation. Stay refused.

TRADE PRACTICES – Trade Practices Act 1974 (Cth) – s 51A – deeming provision in s 51A – nature of the onus on representor (whether merely evidentiary) – PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules – Rule 1.21 – Rule 28.2 – motion for separate determination of questions of law – application for removal to the Court of Appeal – conflicting precedent – whether proposition of law assumed, but not considered, in a judgment is binding on a later court – nature of dicta and the extent to which it is binding on a lower court

ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error of law – Relevant considerations – Unreasonableness – Bad faith – Procedural fairness – Bias – Absence of evidence - APPEAL AND NEW TRIAL – Appeal - practice and procedure – New South Wales – When no appeal lies – Whether the appeal to the Supreme Court under s 90 of the Medical Practice Act against the decision of the Medical Tribunal of NSW is incompetent – Appellant must be a person about whom a complaint has been referred to the Tribunal - PROFESSIONS AND TRADES – Health care professionals – Medical practitioners – Disciplinary proceedings – Proceedings before boards, tribunals, etc – Proceedings before the Medical Board of NSW – Suspension order under s 66(1)(a) Medical Practice Act – Appeal to the Medical Tribunal of NSW dismissed – Appeal to the Supreme Court against the decision of the Medical Tribunal of NSW – Whether the Medical Tribunal of NSW made a jurisdictional error or committed an error of law on the face of the record

TORTS – damages – aggravated and exemplary – intentional tort – injury to offender in custody – recovery of personal injury damages prohibited in circumstances where permanent impairment less than 15% – whether aggravated and exemplary damages constitute personal injury damages – Civil Liability Act 2002 (NSW), ss 3B, 26B, 26C - WORDS & PHRASES – "aggravated damages" – "exemplary damages" – "offender in custody" – "personal injury damages"

APPEAL – Practice and procedure – New South Wales – Extension of time for appeal – Summons for leave to appeal filed late – Delay in the seeking of alternative advice with respect to the prospects of a successful appeal from the decision of the primary judge – Whether application for an extension of time in which to seek leave to appeal should be granted - ENVIRONMENT AND PLANNING – Environmental planning – Planning schemes and instruments – New South Wales – Local environmental plans – Penrith Local Environmental Plan No 201 – Development may be carried out for the purposes of a fruit and vegetable store with a maximum floor area of 150 sq. m – Development application to increase size of existing fruit and vegetable store from 150 sq. m to 765 sq. m – Application refused by Penrith City Council – Whether the words “with a maximum floor area of 150 sq. m” constitute a development standard or a prohibition upon development

FAMILY LAW - domestic relationships other than marriage - 21 year relationship - just and equitable division of parties' joint property adjustment of interests in property under s 20 Property (Relationships) Act 1984 (NSW) - divisible pool of property agreed - extent of financial and non financial contributions as recognised under s 20 Property (Relationships) Act 1984 (NSW) - substantial initial financial contributions by one party greater financial and non financial contribution by other party during the relationship - treatment of initial contributions - consideration of "erosion principle" - each party entitled to 50% of the parties' divisible pool of property

CORPORATIONS - statutory derivative action - whether derivative claims may be added to proceedings seeking relief against oppression and raising other matters - whether companies, already joined as defendants, are required to become plaintiffs - whether a serious question to be tried - appropriate formal orders - application to limit use of companies' funds in the litigation and to require independent legal representation

CORPORATIONS – materials provided by liquidators provide sufficient explanation of conduct of winding up of company – not necessary for court to hold inquiry and examine liquidators in relation to winding up under Corporations Act, s 536 –effectiveness of resignations of liquidators – appointment of liquidator by court under s 502

PRACTICE AND PROCEDURE – Subpoena to produce documents – application to set aside subpoena issued on ASIC following s.19 examinations – whether documents sought for legitimate forensic purpose – whether production of documents is oppressive – whether restricted access should be given in respect of certain documents where confidentiality or commercial sensitivity is claimed.

CONTRACTS - Building, engineering and related contracts - APPLICATION FOR SUMMARY JUDGMENT - Where language of contract ambiguous - Whether summary judgment appropriate

CRIMINAL LAW - Sentence - taking into account time served - sentence should be backdated unless good reasons for not doing so - error but no lesser sentence warranted.

CRIMINAL LAW - sentence following trial - sexual intercourse without consent and indecent assault (two counts) - taxi driver sexually assaults passenger - vulnerable victim - assessment of objective seriousness of s.61I offence - relevance of applicant's continued denial of guilt to assessment of prospects of rehabilitation and likelihood of reoffending - importance of general deterrence for offences by taxi driver against passenger - sentence not manifestly excessive

CRIMINAL LAW - Sentencing - Aggravated break and enter and Assault occasioning actual bodily harm - whether incorrect finding of facts - whether sentence manifestly inadequate.

CRIMINAL LAW - Sentencing - Dangerous driving causing death - whether error in determining objective seriousness of driving - juvenile offender - whether sentence should be reduced to permit offender to remain juvenile facility.

CRIMINAL LAW – particular offences – offences against the person – sexual offences – indecent assault in circumstances of aggravation – sexual intercourse without consent in circumstances of aggravation – CRIMINAL LAW – appeal against conviction – verdicts of guilty open to the jury and not unreasonable - verdicts of guilty could be supported having regard to the evidence – appeal dismissed

CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - judge act on wrong principle - sentence manifestly excessive or inadequate - CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offender

RESTITUTION - moneys had and received - innocent, third party recipient of funds - defence of change of position - Lipkin Gorman (a firm) v Karpnale Ltd - funds lost in gambling or returned to initial recipient from plaintiff

CIVIL PROCEDURE - motion for order directing separate decision of question in proceedings - proceedings for possession of land - allegation that defendants' signatures on mortgage forged - separate question whether any debt secured by mortgage - possible joinder of Registrar-General

PROCEDURE – miscellaneous procedural matters - application by defendants for summary dismissal – proceedings commenced by clients against solicitors in 1993 – adjudication by judge in 1995 – adjudication by master in 2000 – question whether any claims extant thereafter – held that claims with respect to clients’ liability for solicitors’ costs remain undetermined – decisions by court in 2001 that the issue of the terms of the solicitors’ retainer must be determined by the court – points of claim and points of defence on that issue then filed on several occasions – leave granted in 2002 concerning points of claim taken to include leave to amend – those points of claim plead fraud by solicitor in relation to formation of retainer – fraud alleged to make retainer void or unenforceable - order in 2009 that the proceedings proceed on pleadings – statement of claim filed which pleads the same fraud as a basis for claims for damages and equitable compensation – such statement of claim held to involve amendment – leave to amend neither granted nor sought – statement of claim pleading new causes of action not authorized by 2009 order – statement of claim struck out – proceedings not dismissed - need for case as articulated in 2002 points of claim and points of defence to be brought to trial expeditiously – PROCEDURE – parties – joinder – one of three solicitors practicing in partnership neither named as a defendant in the summons nor joined by any later order – that solicitor said in a judgment of the court to be a defendant, recorded in an order and various court documents as a defendant, represented by other parties to be a defendant and representing himself to be a defendant – submissions to be made on consequences of findings with respect to him.

LEGAL PROFESSION - solicitor in Victoria, client in New South Wales - first instructions rule - meaning of "matter" - whether Victorian or New South Wales legal profession legislation applies - effect of choice of law clauses - PRACTICE AND PROCEDURE - effect of orders by judge at first instance, subsequently reversed on appeal, in period before Court of Appeal makes orders - where judge at first instance holds solicitor's retainer valid, but Court of Appeal disagrees - whether solicitor precluded from recovering costs

EMPLOYMENT LAW –– employment contract - restraint of trade clause – application for injunctive relief by employer to prevent employee from working at another legal practice – restraints on solicitation and on competition – whether restraint on solicitation for twelve months offered sufficient protection for interest of employer – whether solicitation should be limited to clients for whom employee had undertaken legal work or include clients generally – validity of restraint on competition – relevant principles – public policy - Restraints of Trade Act 1976 (NSW)

Equity - Interlocutory injunctions - Principles - Banking law - Borrower seeks to restrain Lending Bank from appointing receiver - Bank's powers under transactional documents - Guarantees - Whether there was anything unconventional, unconscionable, unfair or unjust in any of the terms in the security documents - To sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document - The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents - Good faith - Bank mortgages traditionally drawn to cover multitude of possible situations and intended to secure the bank as effectively as possible

CORPORATIONS – COSTS – Application to set aside Statutory Demand – whether Defendant creditor should bear costs on the indemnity basis when put on notice of fatal flaw in creditor’s Statutory Demand.

SUCCESSION - validity of will - whether deceased had capacity to make will - whether deceased had ability to discriminate

REAL PROPERTY – Torrens System – indefeasibility of title – default judgment – elderly mortgagor who speaks no English – alleged involvement of agent of mortgagee in alleged unfair conduct – not fraud of the kind to defeat indefeasibility – default judgment not set aside

PRACTICE AND PROCEDURE – discovery – objection to categories as irrelevant – consideration of relevance – objection disallowed

APPEAL - leave to appeal - no question of principle

Second Further Amended Statement of Cross Claim - strike out application - adequacy of particulars - transfer of equity proceedings to Family Court - Executor not attacking gifts but husband of deceased doing so - Executor in compromising position - effect of s 106B(1) of Family Law Act - costs of parties of transfer proceedings and costs of sundry applications

ADMINISTRATIVE LAW - administrative tribunals - Administrative Decisions Tribunal (NSW) - declaratory relief - challenge to the revocation of licences under the Security Industry Act 1997 - confidential exhibit not disclosed to plaintiffs pursuant to s 29(3) of the Security Industry Act 1997 - whether proposed special advocate procedure could be adopted under the Administrative Decisions Tribunal Act 1997 - section 29(3) of the Security Industry Act 1997 and its interaction with the Administrative Decisions Tribunal Act 1997 - special advocate must be appointed by plaintiffs - whether there was power to disclose confidential exhibit to proposed special advocate without consent of Commissioner of Police - consent required - whether Police Commissioner's discretion under s 29(3) of the Security Industry Act 1997 exercised validly - discretion not validly exercised - declarations and orders made

FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - significant contributions of Plaintiff as homemaker and parent - Defendant was sole breadwinner, and made all financial and material contributions to relationship - non-compliance by parties with directions for provision of Case Statements