Cases and authorities

CRIMINAL LAW AND PROCEDURE - Manslaughter - Sentence - Young offender - Finding by trial judge available on the evidence - No error or miscarriage of sentencing discretion

Criminal law - sentence appeal - conspiracy to sell unregistered firearms - whether features identified as matters of aggravation were inherent in the offence - offence committed without regard to public safety - offence part of a planned or organised criminal activity - whether sentence manifestly excessive.

EMPLOYMENT LAW- contract of employment- period of notice required in termination of employment- whether in "event of redundancy"

PROCEDURE – application to vacate the hearing date of the appeal – application granted – whether bankrupt respondent should bear own costs thrown away by the adjournment – whether bankrupt respondent has the right to appear on the appeal – answer dependent upon the subject matter of the appeal and the provisions of the Bankruptcy Act 1966 (Cth) - BANKRUPTCY – application to vacate the hearing date of the appeal – bankrupt respondent a party in the proceedings below – whether bankrupt respondent has an entitlement to appear on the hearing or can appear with the leave of the Court – answer dependent upon the subject matter of the appeal and the provisions of the Bankruptcy Act 1966 (Cth)

PROPERTY (RELATIONSHIPS) ACT - de facto relationship - dfr 1993 to 2006 - four children - decision on adjustment after review of facts and events - HELD - award of $350,000 to F, sale of home and release of guarantees.

Criminal law - indictment charging two acts of murder - trial by judge alone - defence of mental illness - background evidence - psychiatric opinion - whether accused mentally ill under McNaughten rule or whether substantially impaired by an abnormality of the mind under s 23A of the Crimes Act 1900 - importance of letters left by accused.

PROCEDURE - judgments and orders – court asked to make consent orders to dispose of proceedings – prima facie evidence that plaintiff transferred money to reduce tax bill without suggesting lawful explanation as to how tax would thereby be reduced – consent orders made – direction made that judgment be sent to Commissioner of Taxation

ADMINISTRATIVE LAW - Consumer, Trader and Tenancy Tribunal - Strata Schemes Management Act - Owner's Corporation - application for interim order for appointment of Strata Manager - ex parte application - lot owners not notified - denial of procedural fairness - interim order beyond jurisdiction.

Lease prepared which did not reflect determination of Administrative Decision Tribunal as to its principal terms - rent erroneously stated in lease - transfer of property to third party - lease supplied to purchaser of property signed by landlord-vendor and by managing director of plaintiff-tenant - attestation clause by plaintiff as tenant not correctly completed - lease rejected for registration but capable of being treated as agreement for lease and specifically performed - plaintiff has no personal equity against defendant third party and any personal equity plaintiff may have is not one capable of being enforced against him as registered proprietor

Corporations Law. Application to set aside statutory demand under S459G and 459H of the Corporations Act. Demand varied by reducing amount. No matter of principle.

CORPORATIONS – INSOLVENCY – UNFAIR PREFERENCE – UNCOMMERCIAL TRANSACTION – UNREASONABLE DIRECTOR-RELATED TRANSACTION – Whether written contract for sale of property to director a sham – whether oral contract for sale made with director whereby purchase price would be offset by director’s loan account with company – whether company insolvent at time of alleged oral contract – whether company insolvent at time of transfer of property to director – whether contract or later transfer to director in consideration of release of loan account constituted unfair preference, uncommercial transaction or unreasonable director-related transaction.

CRIMINAL LAW- appeals- conviction appeal- interpretation and application of Income Tax Assessment Act 1936 (Cth)- remarks of Crown Prosecutor- whether directions to jury adequate- whether unsafe and unsatisfactory verdict. CRIMINAL LAW- appeals- sentencing- Crown appeal against sentence- inadequacy of sentence. CRIMINAL LAW- appeals- sentencing- severity.

Corporations Law. Application to set aside statutory demand under s 459G of Corporations Act. Whether work was residential building work done by an unlicensed contractor. Effect of S10 of Home Building Act. Held no recovery allowed and demand set aside.

PROCEDURE – application to file fourth further amended statement of claim – previous agreement between parties not to advance claims in relation to certain issues which agreement has previously been relied upon by plaintiffs to resist the filing of a cross claim – plaintiffs now seeking leave to advance a claim in relation to those same issues – whether caught by agreement and consideration of the interests of justice and ss 56 and 57 Civil Procedure Act 2005

CORPORATIONS – Directors – Duties – Breach – Agreements selling assets of one company to a new company – Consideration issue of “V” class shares in purchaser company carrying preferential right to dividends up to possible value of assets – Vendor company wound up shortly after agreement settled – No dividends declared on “V” class shares – Whether breach of duties of directors – Corporations Act 2001 ss 181, 182, 183 – Transactions entered into on advice of solicitor and documents implementing transactions prepared by the solicitor – No proper consideration for sale – Whether solicitor liable as involved in the contravention – Corporations Act s 79.

WIMWCA - decision and reconsideration of Appeal Panel

COSTS – Departure from ordinary rule that costs follow the event – Whether issue on which successful appellant failed was clearly severable or clearly dominant – Effect of inefficient conduct of appeal.

APPEAL – appeal – excessive damages – cost of future treatment and non-economic loss – review of conclusion as to plaintiff’s psychological condition – whether findings of fact unsupported by evidence – whether primary judge applied personal opinion as to potential for recovery - JUDGES AND COURTS – judicial obligation to make findings of fact on proved evidence - EVIDENCE – medical evidence – assessment of psychological condition of witness – assessment based on inadequate evidence - DAMAGES – measure of damages in actions for tort – personal injuries – future economic loss – considerations for the assessment of future loss of earning capacity in the case of a minor – whether buffer should be awarded

CORPORATIONS - winding up - application for winding up in insolvency on basis of non-compliance with statutory demand - where time for compliance with demand had not expired when application filed and has still not expired - abuse of process - proceedings dismissed

CONTRACT - formation - whether document purportedly an agreement for loan, made between related persons, typed out and signed by the defendant, was intended by the parties to be binding according to its terms: on review of evidence of facts and circumstances, found that it was so intended. Judgment for plaintiff for recovery of loan: consideration of winding up 50/50 company on just and equitable ground. Decision on own facts.

CROSS VESTING – Whether NSW or Queensland Supreme Court more appropriate forum – all considerations equal but parties’ and witnesses’ convenience dictated Queensland.

Common Law - Practice and Procedure - whether a declaration that any assessment of damages for loss of earning capacity as defined in s 151G of the Workers Compensation Act 1987 includes an award for damages representing the costs of funds management should be made in interlocutory proceedings - advisory opinion - mediation - overriding purpose - applications for discrete consideraton of issues properly matters for the trial judge in interlocutory proceedings to be discouraged.

MORTGAGES - mortgages and charges generally - rights and liabilities of mortgagor and mortgagee - remedies of the mortgagee - transfer of the mortgage - whether secured debt is also assigned - whether notice of assignment given to mortgagor. GUARANTEE AND INDEMNITY - action against surety - whether guarantee assigned with principal debt.

CORPORATIONS - winding up - application for winding up by court - winding up conceded on the just and equitable basis under s 461(1)(k) Corporations Act 2001 - winding up would have been justified under s 461(1)(e) Corporations Act 2001 had it been fully contested - a winding up under s 461(1)(f) Corporations Act 2001 would also have been justified - third defendant engages in oppressive conduct - third defendant unreasonably causes the first defendant defend the proceedings - COSTS - an order that the third defendant pay the plaintiff's costs - an order that the third defendant indemnify the first defendant in respect of its defence costs

PARTNERSHIP – generally – whether plaintiff and defendant were engaged in partnership for the production, promotion and performance of comedy act – whether national comedy tour was an opportunity of the partnership, for which the defendant was liable to account – whether copyright in artistic work and sound recording were property of partnership for which the defendant was liable to account – whether defendant had breached fiduciary duty by use of opportunity and/or copyright – held that partnership between the plaintiff and defendant very limited in scope and did not extend to opportunity or copyright - PROCEDURE – discovery and interrogatories – discovery and inspection of documents – whether defendant had complied with discovery obligations – whether documents which the defendant would have been likely to obtain upon request were discoverable, absent an enforceable legal right to obtain them – held that such documents not discoverable – no evidence that defendant had failed to comply with discovery obligations.

PROCEDURE – matters arising out of principal judgment – determination of amounts to be paid arising out of principal judgment – life expectancy of plaintiff – whether plaintiff should be permitted to reopen to tender most recent Australian Bureau of Statistics data – where court relied on evidence at hearing – held: court should adhere to position adopted at hearing – INTEREST – held: interest awarded in respect of part losses – interest not awarded in respect of ongoing loss about half of which was still in future – EXECUTORS – whether executor should be denied indemnity out of estate – where proceedings not unreasonable – where executor not acting in personal interest – held: executor entitled to have costs paid out of estate

COSTS – wasted costs jurisdiction – defence of Family Provision Act 1982 (NSW) proceedings left to employed solicitor – delinquency in their handling – whether principals personally liable for wasted costs incurred by plaintiff – Uniform Civil Procedure Rules 2005 (NSW) 42.3(g) and Civil Procedure Act 2005 (NSW), s 99 - LEGAL PRACTITIONERS – duties and liabilities – duty to the Court, to their client and to the other party to proceedings - LEGAL PRACTITIONERS – retainer with clients

CONSTITUTIONAL LAW – New South Wales Constitution – Executive branch –Ministers – Executive Council – withdrawal of commissions – responsible government– commissions at the Governor’s pleasure – Constitution Act 1902 (NSW) – s35C – s35E - ADMINISTRATIVE LAW – judicial review –advice of Premier to Lieutenant-Governor to withdraw commissions of Minister and Executive Council - investigation of alleged misconduct of Minister - Premier established procedure for independent investigation– whether procedure gave rise to obligation of procedural fairness – justiciability – whether political considerations – role of Courts - acts of Lieutenant-Governor not subject to judicial review – advice of Premier to withdraw commissions not subject to judicial review – Lieutenant-Governor had no obligation to afford procedural fairness - Premier had no obligation to afford procedure fairness – advice of Premier to Lieutenant Governor not void - TORTS – duty of care – investigation of alleged misconduct - independent barrister retained by government as investigator and fact finder - report of investigation to inform a political decision of dismissal of a Minister - whether duty of care owed to person under investigation - novel category – salient features – coherence with other legal duties – coherence with other areas of law – interaction with law of defamation - no duty of care in the circumstances - ADMINISTRATIVE LAW – judicial review - natural justice - procedural fairness – source of obligation of procedural fairness - reputation interest attracting protection of rules of natural justice - independent barrister retained by government as investigator and fact finder - report of investigation to inform a political decision of dismissal of a Minister - reputation interest attracting protection of rules of natural justice – question of whether obligation in this case not decided - PARLIAMENTARY PRIVILEGE – Bill of Rights 1688 (Imp) Article 9 – independent barrister retained by government as investigator and fact finder- report to be tabled in Parliament – question not decided - Constitution Act 1902 (NSW) – s35C – s35E - Bill of Rights 1688 (Imp) Article 9

APPEAL – appeals from summary dismissal - frivolous and vexatious proceedings - Uniform Civil Procedure Rules 2005 (NSW) r 13.4 – appeal from summary dismissal - decision interlocutory – leave to appeal required – appeal as of right incompetent - APPEAL – appeals from summary dismissal - application for leave to appeal – application previously dismissed - no new material or new argument - APPEAL – strike out of incompetent appeal – power of single Judge of Appeal to strike out incompetent appeal – order does not determine or decide the appeal – Supreme Court Act 1970 (NSW) s 46(2)(b) - INDUSTRIAL LAW - New South Wales - Industrial Relations Commission – unfair dismissal proceedings – jurisdiction to decide whether proceedings have been settled - PROCEDURE – Registrar’s powers – conferral of powers of single appeal judge – delegation of power – power to strike out incompetent appeal – Supreme Court Rules (NSW) r 58 - Uniform Civil Procedure Rules 2005 (NSW) - r 13.4 - Supreme Court Act 1970 (NSW) - s 46(2)(b) - Supreme Court Rules (NSW) - r 58

CORPORATIONS - company deregistered - application for reinstatement by former director - applicant in receipt of notice under taxation legislation that will make him liable for company's tax obligations unless company promptly wound up - applicant wishes to place company into voluntary liquidation - need to revive company for that purpose - whether applicant a person aggrieved by deregistration - whether resinstatement just

EVIDENCE – facts excluded from proof – protection in respect of self-incrimination – whether certificate under s 128 of the Evidence Act 1995 or under s 87 of the Civil Procedure Act 2005 can be granted for plaintiff’s evidence in chief by affidavit

CORPORATIONS - winding up - application for order setting aside statutory demand - whether genuine dispute - whether defect - no matter of principle

DEFAMATION – letter sent to plaintiff’s employer – extent of publication - grapevine effect - whether imputations that plaintiff was reasonably suspected by defendant of certain conduct conveyed - if so, whether defamatory - DEFAMATION – defences – common law defence of qualified privilege – whether defendant had interest in conveying subject matter to plaintiff’s employer – whether information volunteered or requested – no occasion of qualified privilege - DEFAMATION – defences – common law defence of qualified privilege – malice – whether publication actuated by improper motive – honest belief – whether dominant purpose to discredit plaintiff - DEFAMATION – defences – unlikelihood of harm – triviality not established - DEFAMATION - damages - lower end of range

PRACTICE AND PROCEDURE – Proceedings brought against two defendants and one of them, against whom money judgment is sought, dies before the proceedings are heard - Uniform Civil Procedure Rules 2005 r 7.10 – before hearing order made that the proceedings continue in the absence of a representative of the deceased person’s estate and hearing takes place in such absence – after hearing but before judgment plaintiffs seek appointment of a representative because money judgment sought against the deceased estate – other defendant seeks dismissal of the proceedings

APPEAL – appeal from Local Court Magistrate – whether error of law or error of mixed law and fact established – no issue of law identified – appeal dismissed

CONTRACTS - loan contracts and mortgages - Lo Doc loans - fraud of finance broker and property developer - borrowers persuaded to sign blank or partially completed loan application forms - borrowers persuaded not to obtain independent legal advice - carelessness of borrowers - loans approved on fraudulent financial information inserted by finance broker without knowledge of borrowers - purported use of loan funds for joint ventures - ASIC intervention - public interest - lending guidelines - panel lawyer's guidelines - mortgage insurance - special condition as to cash out - prudent lending practice - PRINCIPAL and AGENT - conflict of interest - whether broker acting for borrowers or lender - Introduction Deed - terms of agreement - true nature of relationship - attribution of knowledge of broker to mortgage manager and lender - asset lending - conduct of business by mortgage manager - risk of serious fraud to borrowers - UNJUST CONTRACTS - Contracts Review Act - consideration of relevant circumstances - lenders guidelines not followed - whether unjust asset lending - consideration of public interest - exercise of discretion.

ENVIRONMENT AND PLANNING – development control – request for modification by Minister of terms of development approval – scope of power to modify limited by requirement that request fall within terms of statutory language conferring power – such requirement constituting precondition to evaluative judgement – whether Court to undertake that assessment – Environmental Planning and Assessment Act 1979 (NSW) s 75W - WORDS AND PHRASES – "modification of approval" – "jurisdictional fact"

STATUTORY INTERPRETATION – the Workers Compensation Act 1987, s 151A(3)(b) – apparent oversight by legislature in the drafting of legislation – whether the court is entitled to substitute or change the words of a statutory provision in such circumstances – whether the phrase “District Court” should be substituted for “Compensation Court” where appearing in s 151A(3)(b) - WORKERS' COMPENSATION – proceedings to claim compensation – statutory regime applicable to coal miners different to the statutory regime applicable to non-coal miners – statutory requirement to elect whether to claim for common law damages or permanent loss compensation – whether a plaintiff had made that election

ADMINISTRATIVE LAW - Decision by MAA for referral to medical assessor - whether such a decision amendable to judicial review - whether plaintiff had a legitimate expectation of a benefit arising from an earlier referral to a medical assessor - nature of referral power - whether such referral needed to comply with the requirements of procedural fairness and natural justice - exercise of discretion in granting relief.

CRIMINAL LAW - appeals against conviction and sentence for murder - partial defence of substantial impairment by abnormality of mind - reference by expert witness to material not in evidence - complaints about directions to jury not justified - no error in sentencing

CRIMINAL LAW - appeal - severity of limiting term - weight given to general deterrence and mental disorder in determining the limiting term - special circumstances

APPEAL – trial judge’s rejection of plaintiff’s account of critical events based to large extent on adverse credibility findings – whether such findings tainted by factual errors – whether error in not accepting the plaintiff’s evidence based on adverse credibility findings and lack of corroboration – whether substantial wrong or miscarriage – Uniform Civil Procedure Rules 2005 (NSW) Pt 51, r 53

CONTRACTS - Contracts Review Act 1980- whether to set aside or vary loan agreement- appellant entered into loan agreement with respondent with securing mortgage- loan monies used to discharge another mortgage and to finance appellant's husband's business. EQUITY - undue influence- general principles- Yerkey v Jones- limited availability of undue influence where party seeking to set aside the transaction obtained some benefit from it.

PROCEDURE – judgments and orders – effect of judgments – plaintiffs claim unsuccessful – defendants successful on cross-claim – quantification of moneys owing to defendants – whether plaintiff entitled to invoke assessment of costs regime – whether Court has power under Legal Profession Act to order assessment – in the alternative, whether Court should refer to referee – plaintiffs outside period stipulated by Legal Profession Act for assessment application – reasonableness of claim – verdict and judgment for defendants

EQUITY – trusts and trustees – whether trust terminated by plaintiff beneficiaries pursuant to rule in Saunders v Vautier – if trust not terminated, whether trustee would be justified in distributing all of the assets of the trust to the plaintiffs – held that plaintiff beneficiaries did not have a vested interest in the trust property – held that trust had not been terminated as class of beneficiaries not closed – possibility of further beneficiaries remote – trustee justified in distributing assets to plaintiffs on their undertaking to account if further beneficiaries come into existence.

Common Law - Local Court appeal - whether error in striking out defence - whether error in entering summary judgment

PRIVATE INTERNATIONAL LAW - forum non conveniens - stay of proceedings - anti-suit injunction - one party to terminated de facto relationship sues in New South Wales under property adjustment legislation - other party sues in New Zealand under several statutes relevant to property rights after termination - each seeks to halt progress of the other's litigation - need to identify whole of controversy from both proceedings - first party seeks in New South Wales relief that court cannot effectively grant or unlikely to grant - that relief available in New Zealand - aspects of second party's claims in New Zealand not maintainable in New South Wales - New South Wales proceedings are in the particular circumstances oppressive and should be stayed

GUARANTEE AND INDEMNITY - the contract of guarantee - construction and effect - nature of a guarantee - when cause of action accrues against guarantor - necessity for a demand. PROCEDURE - judgments and orders - summary dismissal - whether no reasonable cause of action - whether case so weak it could not succeed at trial. LIMITATION OF ACTIONS - contracts, torts and personal actions - when time begins to run. CORPORATIONS - legal capacity and relations with outsiders - execution of documents - whether directors bound themselves personally as guarantors by signing as directors of the corporation.

TORTS [219] Trover and detinue – Demand and refusal – Sufficiency of demand

PROFESSIONS AND TRADES – lawyers – application to restrain solicitor from acting for client in which a financial interest is held – solicitor likely to be material witness – solicitor’s evidence and/or conduct likely to be scrutinised – test to be applied to restrain solicitor from acting – interests of justice – order to restrain solicitor from acting for client made