Cases and authorities

PROCEDURE – judgments and orders – federal offences – pleas of guilty – defendant committed – defendant released on recognizance under s 20(1)(a) Crimes Act 1914 (Cth) – further offences – information alleging breach of recognizance – defendant suffering mental illness – recognizance order revoked under s 20A(5)(b)(ii) Crimes Act – magistrate purported to set aside conviction – charges dismissed – s 20BQ Crimes Act – no jurisdiction in magistrate to set aside convictions – orders made by magistrate quashed in relation to offences subject to recognizance – no action to be taken on breach of recognizance - APPEAL – practice and procedure – powers of court – construction and applicability of s 20BQ does not arise for determination – correctness of Morrison v Behrooz does not arise for determination – inappropriate exercise of judicial function to review legislation and correctness of decision of court of commensurate jurisdiction that does not arise for determination

CRIMINAL LAW - appeal against sentence - supply commercial quantity MDMA and four counts of supply prohibited drug - whether individual sentences and aggregate sentence manifestly excessive - no question of principle.

PROCEDURE – inferior courts – New South Wales – claims in nuisance and negligence – hearing on all issues – liability and damages – evidentiary material rejected – defendant liable to plaintiff in nuisance and negligence – decision by magistrate to permit further hearing on damages – appeal by leave – denial of procedural fairness – whether discretion under UCPR r 28.2 available to magistrate - APPEAL – leave to appeal granted – order set aside – direction to further conduct

CORPORATIONS - voluntary administration - deeds of company arrangement – whether creditors’ resolution to appoint deed administrator as liquidator was valid – deed administrator not disqualified by reason of being an officer of the company due to resolution of creditors – following winding-up deed administrator is a creditor of the company for work done as deed administrator due to statutory right to remuneration - leave of the court required for creditor to accept appointment and to act as liquidator – retrospective leave granted - CORPORATIONS - voluntary administration - deeds of company arrangement – whether deed fund is held solely for creditors who are entitled to participate under the deed or for all creditors of the company

Procedure - courts and judges generally - courts - concurrent jurisdiction of different courts - transfer of proceedings under cross-vesting legislation - proceedings to be transferred to the Supreme Court of Victoria - costs

PROCEDURE - judgments and orders - amending, varying and setting aside - leave sought to file a notice of appeal to set aside Medical Tribunal judgment - vexatious litigant - whether these proceedings are vexatious - allegations of bias - no prima facie grounds in relation to allegations of bias - application for leave refused - costs

EQUITY – trusts and trustees – resulting trusts – wife provided entire purchase price for matrimonial home acquired in names of husband and wife as tenants in common in unequal shares – whether presumption of resulting trust rebutted – held that presumption rebutted. - REAL PROPERTY – joint tenancy and tenancy in common – property held by husband and wife as joint tenants – whether joint tenancy severed by conduct or agreement in course of separation and informal division of property – held that joint tenancy severed by conduct. - SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – whether inadequate provision made for deceased’s wife – entire estate left to minor grandchild – relevance of separation and informal division of property shortly before death – considerations finely balanced – held that inadequate provision made – modest legacy ordered.

EQUITY – trusts and trustees – applications to the court for advice and authority – whether executors would be justified in making interim distribution of half of legacies – substantial estate – executors engaged in potentially lengthy and costly litigation in Israel – unknown potential additional costs in realising and administering estate – consideration of duties of executors to consider and to make interim distributions – consideration of undertakings, indemnities or security which might be provided by legatees – held that executors would be justified in making interim distribution of half of legacies, subject to provision of undertakings by legatees.

PROCEDURE - costs - security for costs - application for security for costs seven years after commencement of proceedings - part-heard after 21 days - changed financial context affecting corporate plaintiff - not disputed that corporate plaintiff impecunious - whether security should be ordered for past costs - whether security should be ordered for future costs - where new owners of corporate plaintiff offer to the court an undertaking to meet adverse costs order up to stated amount

CORPORATIONS - administration under deed of company arrangement - 13 related companies - deeds create pooling arrangements - surplus after completion of administration - no provision in the deeds for distribution of surplus - administrator seeks order under s 447A(1) so that upon effectuation and termination of deeds, companies will automatically pass into members' voluntary liquidation and administrator and his partner well become liquidators - whether s 447A(1) empowers court to make such an order - whether there are good reasons for doing so - whether all proper parties have been notified of the application - whether the most appropriate form of order is to amend reg 5.3A.07 so that it applies - inadvertent error in amendment of reg 5.3A.07 in 2007 - amendment of reg 5.3A.07 under s 447A(1) to achieve appointment of liquidators

ADMINISTRATIVE LAW – judicial review – improper purpose – irrelevant consideration – Minister’s opinion – briefing note – establishing purpose of decision-maker – whether Minister’s opinion formed for improper, collateral purpose – consequences of Minister’s opinion – whether briefing note evidence of improper purpose – whether Minister failed to ask himself correct question or failed to take account of mandatory relevant consideration – whether Minister considered whether development “only of local environmental planning significance” – State Environmental Planning Policy (State Significant Development) 2005 (NSW), cl 6, Sch 1, cl 14 - ENVIRONMENT AND PLANNING – State significant development – nature of Minister’s opinion – marina – validity of Minister’s opinion that development State significant – application of repealed legislative scheme to development pending – basis on which application made – whether Minister or council consent authority – whether Minister’s opinion applies to development application as amended – whether original development application withdrawn or amended – Environmental Planning and Assessment Act 1979 (NSW), s 76(7) – Environmental Planning and Assessment Regulation 2000 (NSW), cl 8J – State Environmental Planning Policy (State Significant Development) 2005 (NSW), cl 6, cl 52, cl 55, Sch 1, cl 14 - STATUTORY INTERPRETATION – transitional provisions – purposive approach – reading words in Act – legislative history – futility – application of repealed State significant development scheme to development pending – “opinion that development is State significant development” – where term/phrase appears several times in provision – Environmental Planning and Assessment Act 1979 (NSW), s 76(7), Sch 6 – Environmental Planning and Assessment Regulation 2000 (NSW), cl 8J(7) - WORDS AND PHRASES – “opinion” – “that”

CORPORATIONS - voluntary administration - deed of company arrangement - remuneration of deed administrator - representations by deed administrator to parties holding 97% of shares and 90% of debts that he would draw remuneration from a particular fund only - whether representation conditional on deed being varied - whether representation gave rise to contractual promise - whether representation gave rise to promissory estoppel - whether order should be made under s 447A to prevent departure from representation

CORPORATIONS - winding up - whether winding up order should be deferred or stayed - where company to be wound up is one of several defendants in other proceedings brought by present plaintiff - hearing of those proceedings to begin in two weeks - fear that need for leave to proceed against defendant in liquidation might cause hearing dates to be lost - insufficient basis for deferral or stay - choice of liquidator - various considerations discussed

SUCCESSION – PROBATE – INFORMAL CODICIL – Whether document in handwriting of deceased was intended to have immediate testamentary effect – question of fact.

CRIMINAL LAW – appeal – indispensable intermediate facts and circumstantial evidence – directions to jury – whether the trial judge erred in refusing to give a direction in accordance with Shepherd v R [1990] HCA 56 - (1990) 170 CLR 573 - CRIMINAL LAW – appeal – indispensable intermediate facts and circumstantial evidence – whether verdicts unsafe and unsatisfactory, insofar as they are unreasonable and cannot be supported having regard to the evidence - CRIMINAL LAW – appeal – orders made by Court of Criminal Appeal – orders reopened after factual errors discovered in judgment – some grounds appealed to the High Court – case remitted to the Court of Criminal Appeal from the High Court – whether remitter includes grounds not appealed to the High Court - CRIMINAL LAW – appeal – evidence – witnesses – further cross-examination under the Evidence Act 1995, s 38 - whether the trial judge erred in permitting further cross-examination of particular witnesses by one party after cross-examination by the other party of those witnesses - CRIMINAL LAW – appeal – note from juror to trial judge- whether note reveals irregularity during the jury’s deliberations – whether the trial judge erred in giving a direction in accordance with Black v R [1993] HCA 71 - (1993) 179 CLR 44 – whether the trial judge erred in not discharging the jury – whether the trial judge erred in failing to enquire whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance - CRIMINAL LAW – appeal – sentence – life imprisonment for murder – whether the trial judge erred in imposing a sentence of life imprisonment

ABORIGINALS – land rights under legislation – New South Wales – Claim to Crown land – needed or likely to be needed as residential lands – proposed subdivision of Crown land for residential purposes – development application made – whether Crown Lands Minister held opinion at time of claim - ABORIGINALS – Aboriginal land claim – permissible use of evidence of events and conduct post-dating claim – whether such events and conduct irrelevant considerations - APPEAL – appeal from Land and Environment Court – right of appeal – when appeal lies – error of law – error in decision on a question of law – correct articulation of legal principle by trial judge – whether no other conclusion available upon basis of facts as found - WORDS AND PHRASES – “needed or likely to be needed”

WORKERS' COMPENSATION - alternative rights against employer and/or third parties and consequences thereof - rights of and against third parties – Workers Compensation Act 1987 (NSW) – s 151Z – successive injuries where second injury causally related to the first injury - third party liable for both injuries and compensation payable under Workers Compensation Act by employer– operation of s 151Z – deductions from judgment to value past paid compensation and future payable compensation- whether principles in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 correctly applied by trial judge –consideration of conduct of proceedings below - deductions to be dealt with consistent with how submissions were put below – appeal dismissed - WORKERS' COMPENSATION - liability of employer – successive injuries where second injury causally related to the first injury – responsibility for second injury - second injury occurred in conformance with work restrictions suggested by employer – no negligence by employer in relation to second industry - WORKERS' COMPENSATION - assessment and amount of compensation - Workers Compensation Act 1987 (NSW) – s151H and s151Z

EQUITY – equitable remedies – notional occupation fee set off against claim for contribution from co-owner in respect of mortgage payments - REAL PROPERTY - estates and interests in land – co-owners – co-owners in a de facto relationship – breakdown of relationship – whether departure of one co-owner constitutes ouster by the other - REAL PROPERTY - breakdown of relationship – departure of one co-owner from the property co-owned – claim for contribution by co-owner remaining – whether the departed co-owner is entitled to occupation fee

WORKERS COMPENSATION - claim for work injury damages - determination of separate questions - application for summary dismissal - injury suffered in 1981-3 - proceedings commenced in 2007 - Chapter 7 of WIM Act - 2006 Guidelines - whether plaintiff must show at least 15 % WPI

CORPORATIONS - winding up - foreign company as "Part 5.7 body" - standing to apply for winding up order - standing of body itself - whether body made a valid decision to apply - standing of sole director/shareholder as contributory - grounds for winding up under s 583 - inability to pay debts and just and equitable ground - relevant considerations

TORTS – negligence – dangerous premises – duty of care – slip and fall in shopping centre – whether occupier’s duty of care discharged by steps taken by subcontractor cleaners to warn of wet floor and to mop wet areas – relevance of entrant’s inadvertence TORTS – negligence – causation – whether causal link between occupier’s duty of care and entrant’s slip – occupier’s conduct materially contributed to entrant’s injury TORTS – negligence – contributory negligence – where entrant did not notice three warning cones on ramp, caution sign or cleaner STATUTES – acts of parliament – enforcement of statutory rights and remedies - whether cl 34 and cl 36 of Occupational Health and Safety Regulation 2001 confer private causes of action on members of public – whether such contrariety between Civil Liability Act 2002 and Occupational Health and Safety Act 2000 and Regulation as to constitute implied repeal – whether claim for breach of statutory duty which is in substance a claim for damages for harm resulting from negligence to be determined in accordance with Civil Liability Act EVIDENCE – admissibility and relevance – opinion evidence – medical reports – admitted without objection - weight of evidence APPEAL AND NEW TRIAL – appeal – excessive or inadequate damages – review of primary judge’s conclusion as to severity of non-economic loss – general principles

CORPORATIONS - voluntary administration - deeds of company arrangement - creditor seeks orders setting aside resolution for execution of deed of company arrangement and terminating deed - various aspects of s 600A discussed - all positive votes were votes of related creditors, company officers or nominees holding debts purchased and paid for by director related entity - aspects of prejudice to non-assenting creditors discussed - fertile ground for examination of possible related party recoveries by liquidator

CRIMINAL LAW - Accused charged with murder - Inquiry into fitness to be tried - Accused unfit to be tried

Orders in the nature of certiorari - District Court - Error on the face of the record Children and Young Persons (Care and Protection) Act (1998) - Sections 9, 60, 71, 72 and 90 - care orders - paramount considerations

APPEAL – procedure – application to sever issues – complaints about conduct of counsel – whether separate hearing would promote just, quick and cheap resolution of real issues - LEGAL AID – legal assistance schemes – referred to pro bono panel – Uniform Civil procedure Rules 2005 (NSW) Pt 7, Div 9

SUCCESSION – WILLS – RECTIFICATION – Whether the evidence justified the inference that the testator intended at the time of executing his will to provide a gift over of a half share of the estate – whether intention miscarried by mistake.

Building & Construction. Final hearing of claim after an adjudication determination. Defendant fails to appear. Judgment for plaintiff.

Criminal Law - Sentence - Manslaughter - substantial impairment due to the effects of dementia - stabbed wife to death - offender aged 76 - Plea of guilty after found fit to plead - effects of dementia on sentence - discount for plea in exceptional case.

CRIMINAL LAW – sentencing – applicant pleaded guilty to social security fraud committed over 28 year period involving creation of false identity and in excess of $200,000 – applicant 77 years old and suffering from progressive optic atrophy, hypertensive nephrosclerosis and lumbo sacral degeneration - effective non-parole period of 2 years 8 months for all counts to be served concurrently – whether sentencing judge erred in failing to consider legislative change concerning s 29D of the Crimes Act 1914 (Cth) and s 135.1(2) of the Criminal Code Act 1995 (Cth) – whether insufficient weight given to applicant’s medical condition and disabilities – whether sentences manifestly excessive – no error found.

CRIMINAL LAW - appeal against sentence - contempt - refusal to take oath or affirmation - refusal to answer questions - whether sentence excessive - whether appropriate weight given to appellant's medical condition - appeal dismissed

TORTS - negligence - duty of care - whether employer breached duty of care to employee - causation - whether causal link shown between breach of duty and injury - matter of inference - distinction between inference and speculation.

SUCCESSION – STATUTORY WILL – Examination of historical antecedents – correct approach to interpretation and application of statutory will legislation in New South Wales – whether authorities in other jurisdictions of assistance – categories of application – “lost capacity” case – “nil capacity” case – “pre-empted capacity” case – the proper approach in each category. - PRACTICE AND PROCEDURE – What evidence is required – when intervention by the Court is justified – procedure in unopposed applications.

CONTRACTS – rectification – whether agreements between the plaintiffs and defendants should be rectified to include a higher commission rate and an entitlement to ‘telephone diversion leads’ – held that there was no intention on the part of the defendants to include such terms in the contracts - general contractual principles - discharge, breach and defences to action for breach – whether the defendants breached express and implied terms of agreements between them and the plaintiffs – whether the defendants’ termination of the agreements was valid and effective – defendants cross-claimed that the first plaintiff had breached express terms of the agreement between the parties – held that the first plaintiff had breached a term of the agreement but that the defendants had not established that any loss flowed from that breach - construction and interpretation– held that the defendants’ construction of terms of the agreements between them and the plaintiffs was to be preferred as it accorded with the words used, and gave the terms a ‘reasonable and sensible’ meaning - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation – whether the defendants had engaged in deceptive or misleading conduct or conduct likely to mislead or deceive in breach of s 52, in relation to the contents of agreements between the plaintiffs and the defendants and whether the first plaintiffs had established that it had suffered any damage as a result of any such conduct - whether the defendants had engaged in unconscionable conduct in breach of s 51AC, through engaging in misleading and deceptive conduct and failing to comply with disclosure requirements under the Franchising Code of Conduct - enforcement and remedies – whether the first plaintiff had proved any damage flowing from any misleading or deceptive, or unconscionable conduct on the part of the defendants - DAMAGES - assessment where the parties fail to provide raw material to which reference can be made to assess loss - STATUTES - by-laws and regulations – construction – whether the agreements entered into by the defendants and the plaintiffs were ‘franchise agreements’ under cl 4(1) of the Franchising Code of Conduct – whether the first plaintiff had voluntarily abandoned a franchise business or relationship under cl 23(c) of the Franchising Code of Conduct.

CORPORATIONS - winding up - special purpose liquidator - assessment and funding of special purpose liquidator's expenses

CORPORATIONS - winding up - winding up by the court - surplus after payment of debts in full - basis on which surplus should be distributed to members - unanimous agreement of members to adopt some other basis - whether liquidator may proceed in accordance with agreement

LEGAL PRACTITIONERS - wasted costs orders under Legal Practitioners Act 2004 ss 345 and 348 and Civil Procedure Act 2005 s 99 – claim for damages for breach of contract – alleged agreement for Hire Car company to lease and pay for motor car and customer to buy the car and pay costs when she had proceeds of Divorce settlement - customer died without obtaining Divorce settlement and her executor refused to buy the car or pay the costs - claim for damages failed because (1) court did not accept evidence that agreement had been made and (2) if it had been made, condition for completion and payment had not been fulfilled and there was no breach – plaintiff ordered to pay executor’s costs on indemnity basis and applied for orders for payment by his solicitors: HELD - no reasonable prospects of success - application refused in exercise of discretion after review of events in litigation and plaintiff’s participation in causes of adverse result

Criminal Law - Sentence - Manslaughter - Unlawful and dangerous act - Infliction of knife wound to the chest of the deceased.

PRACTICE AND PROCEDURE - application by Plaintiff for summary judgment on part of claim - application to strike out parts of Defence - embarrassing pleadings - summary judgment declined - strike-out application granted

Criminal law - sentencing - on-going supply of methylamphetamine and supply methylamphetamine - possession of a prohibited weapon without a permit - significance of factual error in Agreed Statement of Facts - whether remarks on sentence disclosed error - whether sentence manifestly excessive

CRIMINAL LAW – sentencing– appeal against severity of sentence – eight counts of obtain financial advantage by deception – bank officer in a position of trust involving sums in excess of $3.7M – total non-parole period of 5 years for all counts plus "global" balance of term of 3 years imposed – no facility for doing so – sentences not in accordance with principles in Pearce v R - whether manifestly excessive – applicant re-sentenced to 6 years with a non-parole period of 5 years.

Criminal law - sentencing - sexual intercourse with a child under the offender's authority (x4) - pattern of sentencing for offences committed in 1997 - whether sentences manifestly excessive - whether the sentencing judge gave adequate weight to applicant's mental condition - whether sentencing judge failed to find good prospects of rehabilitation and unlikelihood of re-offending

TAXES AND DUTIES - income tax and related legislation - collection and recovery of tax - recovery of penalty from director of companies - notices sent to director - when plaintiff gave defendant the notices required to be served, when notices posted or when received - construction of section 222AOG of the Income Tax Assessment Act 1936 (Cth) - judgment in favour of plaintiff - costs

APPEAL - valuation of land - valuations - heritage restricted - valuation methodology - assumption of new building or actual building in its existing condition

ABORIGINALS – Land rights under legislation – New South Wales – Claim to Crown land – Lawfully used or occupied – Claimed land was nature park containing flora and fauna – Claimed land reserved for the preservation of native flora – At date of claim nature park had been closed to allow reversion of land to woodland area – Maintenance activities and upkeep of fauna continued on land – Whether claimed land lawfully used or occupied at date of claim – Whether use or occupation to a more than notional degree established or was required to be established – Whether primary judge applied correct test of lawful use and occupation – Whether intended cessation of use or occupation relevant to determining whether actual use or occupation at date of claim – What is required for use or occupation of Crown lands reserved for a public purpose - APPEAL – Appeal from Land and Environment Court – Right of appeal – When appeal lies – Error of Law – What is – Difference between question of law and question of fact – Powers of Court of Appeal to determine questions consequential upon finding error of law

PROCEDURE - costs - identification of "event" - offer of compromise - whether non-acceptance unreasonable - particular position of subject companies in a dispute over buy-out and winding up orders

Sentence - co-offenders - one guilty of murder - other guilty of manslaughter - lethal stab wound - uncertainty as to who actually stabbed - each sentenced on basis that other stabbed