Cases and authorities

CRIMINAL LAW - appeal against conviction – perjury - Crimes Act 1900 (NSW) s 327 - appellant gave evidence in murder trial of person who had shared a prison cell with while in remand – evidence given by the appellant that shoes removed from the cell were his shoes and not those of the person accused of the murder – later covert recording of appellant telling undercover policeman that he said the shoes were his when he did not know whose shoes they were – whether open to trial judge to conclude on the evidence that the evidence given in the murder trials was objectively false – whether trial judge misdirected himself by failing to consider the possibility of mistake - verdict was unreasonable and inconsistent with the evidence – appeal dismissed - CRIMINAL LAW - appeal sentence conviction – perjury – failure to take into account mitigating factors - leave to appeal granted – sentences within sentencing judge’s discretion and not manifestly excessive - appeal dismissed - Crimes Act 1900 (NSW) – s 327

Corporations Law. Application for extension of time under s 588FF(3)(b) of the Corporations Act. Extension granted. No matter of principle.

Common law - Practice and Procedure - declarations - whether plaintiff under a legal incapacity for carrying on and settling proceedings - whether plaintiff incapable of managing own affairs.

PROCEDURE - Supreme Court procedure - Application under rule 13.4(1) for summary dismissal – whether pleading discloses reasonable cause of action – plaintiff seeks review of refusal of leave by the Administrative Decsions Tribunal – pleading reveals no reasonable cause of action – ADMINISTRATIVE LAW - whether error on face of record – whether jurisdictional error – whether tribunal member biased – claims manifestly unarguable – proceedings summarily dismissed

CORPORATIONS - Supervision, Regulation and Correction - breaches of civil penalty and other provisions - whether should be relieved from liability under s 1317S(2) or s 1318(1) of the Corporations Act - whether acted honestly - whether prohibition orders should be made under s 206C or s 206E - whether pecuniary penalty orders should be made under s 1317G(1) and s 1317G(1A) - COSTS - whether separate issues constituted by a group of discrete issues - whether no order for costs where the plaintiff succeeds on one separate issue and fails on another

CRIMINAL LAW - sentence - plea of guilty to manslaughter in satisfaction of indictment for murder - death by stabbing - substantial impairment

PROCEDURE - costs - costs of Notice of Motion to set aside subpoena - subpoena required production of some documents statutorily protected from production - Notice of Motion drawn too widely - some documents which legitimately required to be produced under subpoena - apportionment of costs of the Notice of Motion.

Family Provision. Application by widow under the Family Provision Act. Reduced needs of the plaintiff at the time of the hearing. Consideration of appropriate order. Order made in favour of plaintiff for small legacy.

CRIMINAL LAW – murder – attempt to wound with intent to murder - accused found unfit to plead - special hearing pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 – defence of mental illness – where accused suffered from long history of schizophrenia and delusional psychosis – whether accused knew the nature and quality of his acts or that what he was doing was wrong - defect of reason from disease of mind – unanimous medical opinion of psychiatrists that elements of defence of mental illness made out – accused not guilty by reason of mental illness

A New Tax System (Goods and Services Tax) Act - Commissioner refunds GST as claimed in BAS - subsequent audit by Commissioner results in disallowance of entitlement to refunds - disallowed amounts, penalties and general interest charges debited to taxpayer's Running Balance Account, but no amounts repaid by taxpayer - negotiations leading to Deed of Settlement - amended assessments issued - penalties and general interest charges remitted and the disallowed amounts adjusted - remittances and adjustments credited to Running Balance Account taking balance into credit - net credit balance paid to taxpayer - Held: taxpayer not entitled to any further interest.

Criminal Law - sentencing - parity - different charging of offenders - medical condition - special circumstances not found - finding of no real prospects of rehabilitation - repeat offender - leniency extended previously - serious offences committed whilst on parole - starting point of sentence.

CRIMINAL LAW - Criminal Appeal Rules - application to vary court's orders

CRIMINAL LAW - appeal and new trial - miscarriage of justice - conduct of defence counsel – incompetence – advice about giving evidence, conduct of cross-examination and treatment of evidence - CRIMINAL LAW - appeal and new trial - particular grounds of appeal - misdirection and non-direction - direction as to self-defence - Pemble direction

LEGAL PRACTITIONERS – Duty of skill and care – Solicitor acting for vendor and purchaser – Solicitor fails to ensure exchanged counterparts identical – Vendor and purchaser, not knowing this, agree to substitute different property – Solicitor prepares new contract – Vendor and purchaser disagree as to terms of new contract – Purchaser withdraws from transaction – Whether solicitor in breach of duty in relation to contract for substituted property – Whether loss caused by any such breach. - DAMAGES – Solicitor breaches duty of care to vendor of property in failing to ensure exchanged counterparts identical – Purchaser subsequently withdraws from transaction – Purchaser alleges misrepresentation by estate agent as to size of bedroom – Damages assessed for loss of chance.

PROTECTED PERSONS – GUARDIANSHIP – Whether appropriate to appoint guardian for mentally ill patient seeking discharge from involuntary hospitalisation for limited purposes of making enquiries as to alternative external care.

PROCEDURE - notice to produce - differences between notice under rule 21.10 requiring production to the party and notice under rule 34.1 requiring production to the court - need in the first case for "specific document" to be "clearly defined" - individual document must be sought - wider scope of rule 34.1 contrasted

WILLS - Probate – Construction of wills - Will giving life estate in shares to widow and the remainder to sister of widow - Sister of widow predeceased the life tenant – Whether interest in the remainder vested absolutely or vested subject to defeasance or was contingent upon surviving the life tenant.

TRUSTS - Trust documents - Access by beneficiary - PRIVILEGE - Whether an order that defendant executor/trustee entitled to indemnification out of estate for costs of litigation entitles plaintiff beneficiary to access to legal advices obtained during that litigation

CRIMINAL LAW - conviction appeals - robbery in company - obtaining valuable thing by deception - whether verdicts unreasonable or cannot be supported by the evidence - appeals dismissed

TORTS – Negligence – Injuries to persons entering premises – Slip and fall in car park – Failure of external floodlights – Whether breach of duty – Where primary judge found that duty existed to provide a system that ensured that lights operated at nightfall – Duty only existed to exercise reasonable care to provide adequate lighting – Consideration of precautions that would have been taken by a reasonable person to avoid the risk of failure of lighting – Requirement to consider factors in s 5B(2) of the Civil Liability Act – Causation

PROCEDURE - costs - departing from the general rule - unsuccessful appellant - whether costs should be paid on an indemnity basis - where respondents made Calderbank offer prior to hearing of the application for leave to appeal - where respondents made second Calderbank offer after leave to appeal was granted - where leave to appeal granted subject to the condition that the appellants pay the costs of both sides of the appeal in any event - where issue raised by appeal was of general public interest.

PRACTICE AND PROCEDURE - summary judgment for money had and received - money paid under mistake as a consequence of fraud - whether payees aware of improper conduct - whether payees changed their position in good faith reliance on payments - EVIDENCE - affidavit verifying defence - whether there is any evidence to meet defence of change of position in good faith

Family Provision. Application for provision under Family Provision Act by a son who had not seen his father for 20 years. Rejection of son by his father not justified. Order for provision.

REAL PROPERTY – Torrens system – indefeasibility of title – exceptions – fraud – whether registration of transfer to first defendant procured by fraud – whether transfer invalid CONSTUTIONAL LAW – inconsistency – s 109 Commonwealth Constitution – transfer of land under Real Property Act 1900 – whether s 42 Real Property Act 1900 inconsistent with s 601AD and s 601AE Corporations Act 2001 (Cth) – whether transfer under Torrens system invalid – principles considered

CORPORATIONS - winding up - creditors' voluntary winding up - remuneration of liquidator - request by liquidator that committee of inspection fix remuneration - committee seeks information or explanation in two areas - not clear that this given as to both - court cannot find that statutory machinery for fixing remuneration has broken down - liquidator's application to court adjourned

PROCEDURE - application for confidentiality order in respect of whole affidavit - only isolated paragraphs confidential - order that affidavit be kept confidential but that a copy omitting the relevant few paragraphs be filed

APPEAL - new point of law raised on appeal – not entertained unless the facts fully found or admitted. - APPEAL – appeal from Consumer Trader and Tenancy Tribunal to Supreme Court - limited to questions of law decided by Tribunal – new point cannot be entertained. - CONSUMER TRADER AND TENANCY TRIBUNAL - appeal to Supreme Court - limited to questions of law decided by Tribunal - new point of law cannot be entertained on appeal. - RES JUDICATA - issue estoppel from dismissal limited to the actual ground for dismissal. - RES JUDICATA - action for price of work and labour - judgment for proprietor - no cause of action or issue estoppel against action by proprietor for breach of warranty.

SUCCESSION – INTERIM DISTRIBUTION – Sole beneficiaries agree on distribution of estate – dispute as to scope of mutual releases – further proceedings would not diminish estate – no reason to delay interim distribution.

CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand dismissed - plaintiff seeks extension of time for compliance on basis of intention to appeal - whether arguable case on appeal shown - absence from demand of warning obviously addressed to recipient company and drawing attention to need to deal with statutory demand - particular demand dealt with by recipient company within time - argument that injustice will be occasioned to all companies if particular defective demand not set aside - no arguable case on appeal - extension of time for compliance refused

TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - misleading and deceptive conduct - absence of development consent - contravention of Environmental Planning and Assessment Act 1979 - contravention of s 42 (1) and s 45 (1) (b) Fair Trading Act 1987 - apportionable claim under Part 4 of Civil Liability Act 2002 - no impediment under s 35 (1) (a) Civil Liability Act 2002 to judgment against the second defendant in the sum of $322,767.

PROCEDURE – costs – application for security for costs – relevance of proportionality – proper approach to preparing commercial litigation – early involvement of counsel to reduce costs considered

BUILDING AND CONSTRUCTION - Building Services Corporation Act 1989 - statutory insurance scheme - indemnity for loss where notification of defects - referee's report - time limitations - whether notification of defects sufficient - SUMMARY JUDGMENT - payments made under mistake - fraud - defence of change of position in reliance - good faith - onus of proof of awareness - sufficiency of defence

CRIMINAL LAW AND PROCEDURE - Sentence - Murder - Two killings for different motives - Whether second killing of child in worst case category

MORTGAGES - loan to husband and wife secured by mortgage over home - claim for possession of land - alleged mortgage default - whether loan and mortgage required interest payments during first three years of loan - whether breach of condition established - whether wife a volunteer who did not receive proper information about purport and effect of transaction - Plaintiff entitled to relief against husband and wife

EQUITY - unconscionable dealing - guarantors under a special disability by reason of dependence on advice of longstanding accountant - interest of accountant in transaction unknown to guarantors - disability of guarantors sufficiently evident to financier - exorbitant interest rate

VENDOR – PURCHASER – Contract for Sale of Land – vendor/plaintiffs issued Notice to Complete addressed to the first and second defendants as purchasers – failure to complete purchase on specified date – notice of rescission by vendors’ solicitors – proceedings by vendors for breach of hearing – no attendance by either first or second defendant at hearing – orders made against them include order for damages in favour of the plaintiff – PRACTICE and principles – applications to set aside orders – discretionary power – relevant matters – successful application by second defendant to set aside judgments and orders – subsequent application by first defendant to set aside judgments and orders – on basis of an arguable defence that Notice to Complete involved and of no effect being addressed to both first and second defendants when second defendant had made out arguable defence that she was never a party to the contract – on the application held no arguable case – principles concerning the form and efficacy of Notices to Complete considered – application to set aside judgments and orders refused but order dismissing second cross-claim by first defendant against former solicitors set aside

Family Provision. Application by step-son. Estate passed on intestacy to only son. Order for provision made. No matter of principle.

CRIMINAL LAW - sentence - murder - unsuccessful defence of substantial impairment by abnormaility of mind - relevance of state of mind at time of offence - reduced moral culpability and emphasis on general deterrence - ten year delay from offence to sentence - favourable subjective case - protective custody

LEGAL PRACTITIONERS – solicitor and client – duties and liabilities - liability for negligence in respect of litigation – liability for breach of contract of retainer in respect of litigation – advocates’ immunity applies against suit in negligence in respect of the conduct of litigation - immunity extends to any cause of action in civil proceedings where cause ‘intimately connected’ with litigation or preliminary to decisions about the conduct of litigation - tests in Giannarelli v Wraith [1988] and D’Orta-Ekenaike v Victoria Legal Aid [2005] applied – NEGLIGENCE – professional negligence – test to be applied – EVIDENCE – witnesses - failure to call expert evidence – for judge to act as expert witness would be a denial of procedural fairness – CROSS-CLAIM - payment of moneys sought based on contract of retainer – cross claimants entitled to recover in accordance with costs agreements

CORPORATIONS - voluntary administration - deed of company arrangement - requirement that company's public documents and negotiable instruments carry words "subject to deed of company arrangement" after company's name where first appearing - power of court to dispense with requirement - precondition that court be satisfied that dispensation will not result in any significant risk to interests of creditors - need for positive case for dispensation to be made - purpose of court's power may be gathered from Parliamentary and law reform materials - power exercisable for benefit of company - no basis for exercise shown where concern is that of sole director for reputations of himself and related and associated inerests

PROCEDURE [105] – Supreme Court procedure – Practice under Supreme Court Rules – Directions – Power to make directions to facilitate just, quick and cheap disposal of real issues between parties – Order that party obtain copies of its taxation documents from ATO and furnish them to opposing party.

Costs - no question of principle

CRIMINAL LAW - trial - manslaughter by criminal negligence - directions to jury concerning reasonable person test

PROCEEDINGS FOR DAMAGES - disease contracted by conditions of employment - proceedings statute barred - no tenable evidence of causation - summary dismissal

PROCEDURE - costs and consequential orders - no issue of principle

SALE OF GOODS – TITLE – RETENTION – CONTRACT – Whether statements on face of invoice were contractual terms – whether printed conditions on back of invoice were incorporated into contract – whether inconsistency – whether retention of title clauses authorised on-sale by dealer under floor plan with passing of title.

PROCEDURE – Supreme Court Procedure – application under rule 13.4(1) Uniform Civil Procedure Rules – summary dismissal of claim on the basis that pleadings disclose no cause of action – whether claims manifestly hopeless – whether proceedings frivolous or vexatious – whether proceedings abuse of process – claims held to be manifestly hopeless – proceedings summarily dismissed - PROCEDURE – Supreme Court procedure – application for leave to amend pleadings – no form of pleading provided to Court – ample time – leave denied

CRIMINAL LAW — Supreme Court summary jurisdiction — sentencing — Public Health Act s 61B — displaying of tobacco advertisement

PROCEDURE – UCPR 21.7(1) – implied undertaking - application for leave to disclose - where discovered documents subpoenaed for use in Federal Court proceedings – where recipients of subpoena unwilling to produce documents without leave of the Court – whether implied obligation yields to subpoena as a requirement of curial process in other litigation - whether leave necessary – whether application warranted