Cases and authorities

Prisoners - segregation - whether segregation direction under s 10 essential - effect of non-compliance - placement in special units - restriction on residual liberty - prison within a prison - leave to commence proceedings - whether administrative law relief available - whether false imprisonment

EQUITABLE REMEDIES – Declarations – where declaration would quell present controversy, though potentially leaving some further issues to be resolved – where failure to intervene would enable to defendant to prevail by default – whether relief should be refused on grounds of hypotheticality, or lack of utility – held, Court should not decline relief – - EQUITABLE REMEDIES – Specific Performance – where order sought that defendant execute a consent to a security – where no contractual obligation to give a consent as distinct from giving the security – where ultimate form of security not established – whether order should be made – held it should not – Defences – Hardship – alleged hardship to defendant’s ex-spouse – Adequacy of damages – where alleged that there would be no damage – Unclean hands – where alleged that one partner seeking relief has committed breaches of fiduciary duty as partner – where other partners seeking relief not implicated – - INSTRUMENTS – Construction – Partnership Deed – where Partners obliged to permit assets to be used a security for specified purposes in certain circumstances – the circumstance that the proposed Lender stipulates for a personal guarantee that defendant cannot be compelled to give does not detract from any obligation he might otherwise have to permit the Assets to be used as security – whether a refinance of existing facilities for the specified purpose is itself for the specified purpose – held, it is – - TRUSTS – Discretionary trusts – nature of interest of member of class of objects – - WORDS AND PHRASES – “Beneficiary” – whether a member of the class of objects of a discretionary trust is a “beneficiary of a trust” within the definition of “related person” in the Duties Act – held, it is not.

PRACTICE AND PROCEDURE – subpoenas – unrepresented plaintiffs – leave to issue.

CORPORATIONS - Supervision, Regulation and Correction - Civil penalty proceedings - Whether announcement to the ASX approved at directors' meeting - Whether minute to that effect subject to statutory presumption under s 251A or s 1305 of the Corporations Law - Whether false or misleading - Whether directors and senior executives acted in breach of s 180(1) of the Corporations Law - Whether in failing to disclose information with respect to a deed of covenant and indemnity (DOCI) there was a breach of Listing Rule 3.1 and s 1001A(2) of the Corporations Law - Whether the directors who executed the DOCI were in breach of s 180(1) - Whether the chief executive officer approved the release of the ASX Announcement and breached s 180(1) - Whether the company breached s 995(2) of the Corporations Law - Whether the company breached s 999 of the Corporations Law - Whether the CEO was in breach of s 180(1) for statements made at a press conference - Whether he was he breach of s 181 of the Corporations Law - Whether the company was in breach of s 995(2) and s 999 - Whether there were breaches of s 180(1), s 181, s995(2) and s 999 for statements made in two subsequent ASX Announcements - Whether the directors were in breach of s 180(1) of the Corporations Act in approving a draft information memorandum to be used in a members' scheme of arrangement - Whether the CEO and secretary and general counsel were in breach of s 180(1) in approving the draft IM and authorising a letter to be sent to the Court - Whether the company was in breach of s 995(2) and s 999 of the Corporations Act - Whether the CEO was in breach of s 180(1) and s 181 of the Corporations Act for statements made in United Kingdom and slides lodged with the ASX - Whether the company was in breach of s 1041E and s 1041H of the Corporations Act - Whether the company was in breach of Listing Rule 3.1 and s 674(2) of the Corporations Act for failing to disclose a restructure of the James Hardie group

Contracts. - Building Engineering & Construction contracts. Application to an Adjudicator under the Building and Construction Industry Security of Payment Act 1988 for correction of an adjudication under s 22(5) of the Act. Held that is one of the fundamental requirements of the Act. Injunction granted to restrain enforcement of part of award.

Criminal Law - Crown appeal - Sexual intercourse with child under 10 years - respondent digitally penetrated 4-year old girl - suspended sentence imposed - whether manifestly inadequate - significance of denunciation in sentencing - whether offence low in scale of offending - whether admission by respondent to police warranted "Ellis discount" - significance of matters on Form 1 - whether discretionary reasons to dismiss appeal.

CRIMINAL LAW - sentence - relevant factors - suspended sentence - time spent in custody

CRIMINAL LAW - SENTENCING - juvenile co-offenders - parity - principle of totality - special circumstances - relevance of principles applicable in the sentencing of children - consideration of difference in chronological ages of co-offenders - duress - whether offence planned - drug addiction as a matter of mitigation

EQUITY - trusts and trustees - proceedings between trustees and beneficiaries or third parties – beneficiary of sub-trust seeks appointment of receiver to property of trustee – defendants propose interim appointment of new independent trustees – balance of convenience favours this course – notice of motion stood over for arrangements to be made - EQUITY - equitable remedies – injunctions – freezing orders sought against the first, second and third – undertakings made by first, second and third defendants to the court – undertakings offered from first and second defendants provide the same protection as freezing orders sought – restraining order made against third defendant - EQUITY - equitable remedies – injunctions – plaintiff seeks order requiring affidavits of discovery –narrower order made subject to the third defendant being entitled to object to making an affidavit on the ground of privilege against self-incrimination or self-exposure to a penalty - EQUITY - equitable remedies – injunctions – mandatory injunction sought that second defendant repay money to first defendant – plaintiff does not point to any loss he will suffer if the relief is not made until final determination – balance of convenience does not favour granting the orders sought

PRACTICE and PROCEDURE - summary dismissal - common mistake - restitution - estoppel - poker machine entitlements

PROCEDURE – costs – jurisdiction – where multiple proceedings - whether costs order should be made against the plaintiff as a non-party to separate proceedings – consideration of UCPR rule 42.3 – application against the plaintiff for costs dismissed – departing from the general rule – unusual case - each party to pay own costs

TORTS - Trespass - trespass to the person - assault - TORTS - Malicious prosecution - essentials of cause of action - malice - absence of reasonable and probable cause - whether purpose of bringing action improper - decision by prosecutor to bring a criminal prosecution, subjective and objective tests - EVIDENCE - Witnesses - plaintiff's credibility - failure to call witnesses - application of rule in Jones v Dunkel, inferences available from failure to call witnesses - DAMAGES - General principles - compensatory damages - exemplary damages

Family Provision. Application by two daughters for further provision. Orders made. No matter of principle.

CORPORATIONS - winding up - appointment of provisional liquidator - foreign company - whether "Part 5.7 body" - grounds for winding up - whether s 462(1) grounds available - s 583 grounds only held to be available - standing to apply for winding up - standing of corporation itself - standing of contributory - who is "contributory" of Part 5.7 body - where corporation itself applies, need to consider decision to apply - whether good prospect that winding up will be ordered - factors relevant to appointment of provisional liquidator - apparent insolvency - apparent regulatory non-compliance in place of incorporation - where creditors and assets substantially in Australia - whether undertaking as to damages should be required

TRAFFIC LAW - appeal from Local Court - speed camera - school zone - evidence - appeal upheld - matter returned to Local Court for further hearing - costs - section 6 of the Suitors Fund Act 1951

PROCEEDS OF CRIME - previous Commonwealth legislation - restraining orders relating to property of first and second defendants - whether orders applicable to sailing vessel - which defendant was beneficial owner of the vessel - whether the restraining order should be disregarded to the extent that it related to the vessel - whether vessel forfeited to the Commonwealth

Construction of Settlement Agreement providing that "plaintiffs release defendants from all claims, actions, suits, demands arising from or in any way connected with the proceedings, the allegations contained in the statement of claim, and of the liquidation of the third plaintiff" - Consideration of meaning of particular phrases and words: "arising out of or in any way connected with" - the word "and" including whether or not it is appropriately read as conjunctive or disjunctive - the phrases "all" and "any"

TRAFFIC LAW - appeal from Local Court - speed camera - elements of offence - evidence - appeal upheld - matter returned to Local Court for further hearing - costs - section 6 of the Suitors Fund Act 1951

Criminal Law - Appeal against sentence - Evidence of psychologist rejected by sentencing judge - whether erroneous - whether brain injury mitigating or whether significance of general deterrence should have been reduced.

CRIMINAL LAW - particular offences - property offences - unauthorised possession of prohibited weapons - dishonest appropriation of Commonwealth property - CRIMINAL LAW - appeal against sentence - whether error in considering evidence of remorse - whether error in accumulation of sentences - whether error in applying discount for plea of guilty - whether sentence manifestly excessive

CRIMINAL LAW – SENTENCING – Crown appeal against sentence – whether sentences manifestly inadequate – whether errors of calculation – whether error in the failure to accumulate sentences and the application of the totality principle – - where failure to appropriately provide partial accumulation – where sentence manifestly inadequate in light of the objective criminality – sentence set aside and re-sentenced – consideration of the principles of accumulation and one criminal enterprise

CRIMINAL LAW - application for leave to withdraw plea of guilty to murder - applicable principles - application refused

PROCEDURE - contempt of court - considerations relevant to punishment discussed

Competing considerations involved in an application to release legal adviser from confidentiality undertaking to permit the disclosure of documents to a party, right of party to litigation to know the case it has to meet and to properly instruct solicitors and counsel

PROCEDURE - application for stay of execution pending appeal - stay to preclude act of bankruptcy - stay refused on respondent's undertaking to consent to adjournment of hearing of creditor's petition.

TORTS - negligence - tractor rolled over - driver instructed to keep rollover protection device lowered - driver injured - whether "injury" within Motor Accidents Compensation Act 1999 - owner at fault in giving the instruction - whether fault in use or operation of tractor - (by majority) the use or operation was being driven - not fault in that use or operation.

MORTGAGES - whether guarantors liable to mortgagee as principal debtors - effect of principal debtor clause - GUARANTEE AND INDEMNITY - discharge of surety - whether variation of mortgage discharged surety - whether principal debtor clause excluded discharge

POSSESSION OF LAND - Claim by mortgagee - Identity of entity with whom borrower dealt - Whether deed necessary to implement loan agreement - Sufficiency of acknowledgement by initials on parts of documents - Authority of solicitor to sign agreement on behalf of lender - Whether mortgage relevantly altered - Incorporation of conditions by reference to memorandum filed in Land Titles Office - Property valuation submitted by borrower now challenged as to assessment - Amount of advance excluding relief under hardship provisions of Consumer Credit Code - Agreement and terms neither unjust in terms of Code or Contracts Review Act - Debit of enforcement expenses to borrower's account - Untenable cross claim - Entitlement of plaintiff to judgment demonstrated

EQUITY - equitable remedies - injunctions – plaintiff seeks a mandatory interlocutory injunction that past trailing commissions due be paid, and that until further order future trailing commissions be paid – consideration of risk of injustice to each party – plaintiff’s claim for loss would prima facie be fully compensated for at trial by judgment for debt and interest – no undertaking as to damages given - evidence suggests that any undertaking as to damages given by the plaintiff would be worthless –lower risk of injustice would not lie with granting the remedies sought - order that notice of motion be dismissed

TAXES AND DUTIES - income tax and related legislation - collection and recovery of tax - unpaid income and other tax - failure to lodge tax returns - penalties - no appearance by defendant - attempts at service - order under Rule 10.14 of the Uniform Civil Procedure Rules 2005 - s.255-45 Schedule 1 of the Taxation Administration Act 1953 (Cth) - prima facie case - judgment in favour of plaintiff - costs

PROCEDURE - application for injunction to restrain television broadcast - foreshadowed claims for trespass, defamation and false and misleading conduct under Trade Practices Act 1974 (Cth) - applicable principles - injunction refused

CIVIL LAW - procedure - summary dismissal - claim by company and shareholder in respect of same loss - application of "Prudential principle" - COSTS - security for costs against impecunious plaintiff company where multiple plaintiffs - one plaintiff a natural person - rule of thumb.

CRIMINAL LAW AND PROCEDURE - Sentence - Deemed supplying of prohibited drug (MDMA) by reason of quantity possessed - No error by judge in failing to consider available sentencing options - No special point of principle

Sentencing - offences of selling and using prohibited firearms - asserted errors in relation to assessment of objective seriousness where standard non-parole period applied - complaint about manner in which sentences structured - whether sentences manifestly excessive

CRIMINAL LAW AND PROCEDURE - Sentence - Multiple offences - Finding of special circumstances - Cumulated sentence resulting in non-parole period proportionately greater than if statutory formula applied - No requirement for general guideline arising from this case - Markedly lenient imposition - Intervention not called for - Comment on overly prolix sentencing remarks

Sentencing - possession of marketable quantity of cocaine and aid and abet importation of marketable quantity of cocaine - pleas of guilty and assistance to authorities - whether factual findings open - whether sentences manifestly excessive - parity

ADMINISTRATIVE LAW – judicial review – generally – supervisory jurisdiction of the New South Wales Court of Appeal – superior court of limited jurisdiction – Industrial Court of New South Wales - INDUSTRIAL LAW – New South Wales – unfair contracts – jurisdiction – whereby a person performs work in any industry – s106 Industrial Relations Act 1996 - STATUTORY INTERPRETATION – acts of parliament – interpretation – rules of construction – contextual interpretation – industrial context – s106 Industrial Relations Act 1996

CIVIL LAW - appeal against Magistrate's decision - recovery of unpaid levies by Owners' Corportion and legal costs - STATUTORY CONSTRUCTION - operation and effect of s 80D of the Strata Schemes Management Act 1996 and Reg 12C of the Strata Schemes Management Regulation 1997 - effect of non-compliance with s 80D - mandatory or directory provisions - position of unit holders and position of third parties - constitution of Annual General Meeting - failure to comply with notice requirements - whether meeting a nullity - APPEAL - matters about which no ruling made by Magistrate - no appeal in relation to conclusions expressed in obiter - COSTS - general rule - costs follow the event - Magistrate departed from the general rule - interference with discretion of court below - irrelevant considerations - offer of compromise - indemnity costs.

Criminal Law - Sentence - Concealing a serious indictable offence - Improperly interfering with human remains.

CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - unlawful possession of a firearm - whether firearm discharged accidentally - dispute between neighbours

REAL PROPERTY - general principles - Administrators of applicant company sought leave to dispose of property owned by the company pursuant to a contract for sale of land – court has inherent jurisdiction, reserved for special or exceptional cases, to order judicial sale of Real Property Act land – order made that there be a sale of land upon the terms of the contract for sale of land

ADMINISTRATIVE LAW - employment - s 170HB of the Workplace Relations Act 1996 (Cth) precludes proceedings under a law of a State (Anti-Discrimination Act 1977 (NSW)) - alleging termination of employment was harsh, unjust or unreasonable (however described) or unlawful when application was made under s 170CE(1)(a) of the Commonwealth Act - Commonwealth Constitution s 109

CIVIL LAW - appeal against Magistrate's decision dismissing charges under Motor Dealers Act 1974 - allegation of interference with odometer - statutory construction - interpretation of s 47A(3) of the Motor Dealers Act - ONUS - whether element or exception - error of law - onus on defendant to prove exception.

ARCHITECTS – Duty - engagement in construction phase limited to selection of finishes and colours – delivery of tile samples for approval – no duty to ensure compliance with technical standards in specification – architects not liable. - TORTS - Negligence – Architects – construction phase – engagement limited to selection of finishes & colours – provision of sample tiles – no responsibility for compliance with technical standards in specification – builder responsible.

CRIMINAL LAW - sentence - murder - killing of former girlfriend by stabbing after period of stalking

Serious sex offender - preliminary hearing - order sought for examination by psychiatrists - application for interim supervision order

Criminal Law - Sentence appeal - Child prostitution - Effect of delay between offences and arrest - relevance of rehabilitation during delay - whether sentencing judge erred in fact finding - whether reference to "sort of sex slave" give rise to error in evaluation of seriousness of offending.

Sentence appeal - several offences committed in the course of abduction - relationship of offences - avoidance of double punishment - need for precision.