Cases and authorities

Criminal Law - Crown Appeal - Motor vehicle manslaughter - two deaths occasioned by racing vehicles on public streets - Discount for guilty plea - relevance of trial management procedures - Delay - effect of 15 months delay between arrest and sentence - Relevance of criminal record - Nature of manslaughter occasioned through use of motor vehicles - relevance of statutory scheme of offences - Crown's failure to appeal against sentence of co-offender - relevance to exercise of discretion.

CRIMINAL LAW – evidence – admission of new evidence on appeal – whether or not it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty when new evidence contracted the testimony of one eyewitness – whether contradictory witness testimony raises reasonable doubt that the accused was not guilty – whether new evidence is likely to lead to acquittal or a significant possibility of acquittal - CRIMINAL LAW – trial – direction to the jury – failure by trial judge to put the defence case to the jury – whether trial judge is required to put case to the jury in light of section 161 Criminal Procedure Act 1986 – distinction between obligation to summarise evidence and obligation to put the defence case to the jury - CRIMINAL LAW – trial – Rule 4 Criminal Appeal Rules – whether leave should be granted by the Court when no objection to the trial judge’s summing up was taken at trial – whether a failure to put the defence case to the jury is such a departure from the essential requirements of the law that it goes to the root of the proceedings - CRIMINAL LAW – appeal and new trial – whether an order for retrial should be made when the accused has served approximately one quarter of the total head sentence, and less than half the non-parole period

CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - progress claim for amounts the subject of a previous claim - adjudicator's determination that most of previous claim not maintainable - whether further claim precluded by provisions of the Act or principles of estoppel - ESTOPPEL - issue estoppel - adjudication under Building and Construction Industry Security of Payment Act 1999

PROCEDURE - judgments and orders - enforcement of judgments and orders - application for judgment to be stayed - application dismissed

Sentencing - sexual intercourse without consent - Form 1 matters - offence committed whilst on bail - assessment of objective seriousness of offence - whether issue of "special circumstances" properly addressed

PROCEDURE - costs - where no determination on the merits - plaintiff accepts that proceedings must be dismissed - service not effected within necessary period - competing submissions as to costs

CIVIL LAW - mortgage - fraud by broker - loan documents not signed - whether broker signed as agent for borrower - no liability under loan contract - RESTITUTION - mistake: restitution arising from a plaintiff's mistaken actions - recovery of money paid under mistaken belief that loan documents were signed - EVIDENCE - standard of proof in civil case - weight and sufficiency of evidence - inference from circumstantial evidence - inference from failure to give evidence.

Freedom of information - Cl 6 of Sch 1 - personal affairs exemption - unreasonable disclosure of information - ADT has no jurisdiction to consider adequacy of search.

Criminal Law - Sentence - Manslaughter - Unlawful dangerous act - Offender assaulted victim who died of heart attack.

JUDGES AND COURTS - challenge to inferences and findings of trial judge – inferences and findings open to trial judge - appellate inference not required - TORTS - negligence- duty of care owed by occupier- duty to provide instructions to workers – duty owed where instructions might reasonably be thought to be required to secure workers from danger – instructions not required in this case - TORTS - negligence- generalised duty of care- test for foreseeability of risk – simple uncomplicated operations by an employee within the normal system of work – content of duty in this case did not include the provision of instructions - COSTS – offer to fully indemnify party with respect to liability and costs – offer rejected – circumstances in which offer rejected unreasonable – costs not awarded to party who rejected offer

CRIMINAL LAW – plea of guilty entered in the Local Court –application under Criminal Procedure Act 1986, s 207 to withdraw guilty plea – application refused and conviction entered by Local Court – appeal against conviction made to the District Court under Crimes (Appeal and Review) Act 2001, s 12 – conviction annulled pursuant to Crimes (Appeal and Review) Act 2001, s 11A – appeal by the Crown to the NSWCA – jurisdictional error made by District Court in purporting to determine the appeal as an appeal under Crimes (Appeal and Review) Act, s 11A - CRIMINAL LAW – District Court deemed appeal to be an appeal against the Local Court’s refusal of an annulment application pursuant to Crimes (Appeal and Review) Act 2001, s 4 – conviction annulled – appeal by the Crown to the NSWCA – no entitlement to make an application for annulment under the Crimes (Appeal and Review) Act 2001, s 4 – phrase “not in appearance” in s 4 can only mean “does not appear” – jurisdictional error made by District Court in deeming appeal in to be bought under s 11A

APPEAL – appeal from order of Registrar striking out notice of appeal – Registrar’s power to strike out appeal as incompetent – prospects of success where previous leave application – issues raised unresolved in earlier leave application – whether judgment interlocutory or final – where trial judge relied on case subsequently overturned - PROCEDURE – review of Registrar’s decision – criteria for extension of time –self-represented litigant – statutory scheme unclear – attempts to obtain alternative relief – no prejudice asserted by respondent – Supreme Court Rules 1970 (NSW), Pt 61, r 3 – Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 49.20 - PROCEDURE – Registrar’s powers – conferral of powers of single appeal judge – delegation of power – power to strike out incompetent appeal – Civil Procedure Act 2005 (NSW), s 13 – Supreme Court Act 1970 (NSW), s 46 – Supreme Court Rules 1970 (NSW), Pt 51, r 58

APPEAL – appeal – general principles – interference with Judge's findings of fact – functions of appellate court – findings on issue of negligence – where findings based on credibility of witnesses – where findings clearly wrong – particular cases – whether acts causing injury were carried out in self defence – whether contributory negligence established – whether injury occurred following commission of a serious offence by injured party – power to transfer proceedings in the District Court on a claim for damages to the Common Law Division of the Supreme Court – whether the case involves complex legal issues or issues of general public importance

PRACTICE AND PROCEDURE – application to amend pleadings – proposed causes of action under s.42 of the Fair Trading Act 1987 (misleading or deceptive conduct) and s.43 of the Act (unconscionable conduct) – outsourcing of work by first defendant – plaintiff previously employed by first defendant – new contract with outsourcing entity – subsequent dispute between plaintiff and defendants over commercial advantages of outsourcing – alleged misrepresentations by defendants were no made “in trade or commerce” – accordingly, leave to amend should be refused – application dismissed

PROCEDURE - miscellaneous procedural matters - other matters - notice of motions - leave sought to file further amended defence - set off claims - plaintiff seeking summary judgment - whether there is no defence to action - plaintiff's motion declined - leave granted to file further amended defence - costs

Commercial Arbitration Act 1984 - Reinsurance treaties - Application for leave to appeal on questions of law arising out of award - Case management regime permitting combine the argument on application for leave as well as on actual appeal - Principles which inform the jurisdiction to grant leave to appeal from an arbitral award - Proper construction of section 18(B) of Insurance Act 1902 - Arbitral tribunals powers to make determination according to law or as 'amiable compositeur or ex aequo et bono'

Criminal Law - Appeal against sentences - Aggravating factor of gratuitous cruelty under s 21A(2)(f) - whether finding appropriate - Nature of injuries to be considered on a charge of wounding - relevance of maximum penalties in Local Court - Prosecutor's conduct in sentencing proceedings.

CRIMINAL LAW - appeal against sentence - particular offences - conceal serious indictable offence - pervert the course of justice - protection of family member as relevant consideration

CRIMINAL LAW - appeal against sentence - negligent driving causing death - negligent driving causing grievous bodily harm - discretion of sentencing judge to vary automatic period of disqualification

CRIMINAL LAW - appeal against sentence - particular offences - aggravated robbery (in company) - proportionality with sentence of juvenile co-offender - delay in sentencing - juvenile offenders

CRIMINAL LAW AND PROCEDURE - Evidence - Complaint more than three months after last alleged sexual offence - Insufficiency of reasons for finding complaint was "fresh in memory" - Admission by offender to medical practitioner - Challenge to admissibility rejected - Testimony by offender - Failure to put material contradicted by offender to witness - Direction by trial judge concerning credibility of offender - Evidence by Crown explaining failure to call witness - Need for warning against impermissible inference by jury concerning offender not calling that witness - New trial ordered - Crown appeal against sentence not needed to be considered

APPEAL - appeal - general principles - interference with Judge's findings of fact - misapprehension of evidence by primary Judge - adequacy of reasons behind factual finding - whether substantial wrong or miscarriage of justice - APPEAL - new trial - whether court should make findings of fact on disputed matters or order new trial

EVIDENCE – burden of proof, presumptions, and weight and sufficiency of evidence – need to assess evidence by reference to facts in issue – whether trial judge was required to weigh evidence from one witness against conflicting evidence of other witnesses when evidence from all those witnesses was relevant to the one fact in issue – trial judge accepted one witness' evidence before evaluating conflicting evidence of other witnesses – failure to take account of unchallenged conflicting evidence from other witnesses – EVIDENCE – witnesses – credibility and reliability – whether inability of the witness to estimate distances would allow the trial judge to doubt the reliability of a witness’ evidence more generally – TORTS – negligence – essentials of action for negligence – standard of care – whether risk and reasonable response were adequately explained – causation – whether failure to take precaution caused the damage – whether an increase in risk is a sufficient cause – PROCEDURE – courts and judges generally – judges – requirement to give adequate reasons – failure to give reasons in applying the law to the facts – failure to give adequate reasons to support a contingent finding of negligence – APPEAL AND NEW TRIAL – new trial – requirement of a new trial when questions of credibility of witnesses are required

CRIMINAL – sentencing – appeal against the inadequacy of sentence – criminal acts performed under the threat of duress – does not negative the need to impose a sentence that reflects general deterrence - CRIMINAL – sentencing – two offences involving different quantities of the same drug – relevance of quantity of drug to sentencing

CONTRACT – loan "payable on demand in writing" – construction of contract from its terms – debt not payable immediately, but only after service of demand – cause of action accrues when demand first occurs – proceedings in time - PRACTICE AND PROCEDURE – time limitation for debt payable on demand runs from date of advance of money – question of construction of contract – "payable on demand in writing" requires service of written demand – time runs from when demand first served – proceedings not time barred

NEGLIGENCE - LEASES - SUMMARY DISPOSAL OF PROCEEDINGS – plaintiffs/respondents fell from a cliff on reserve land, the reserve being contiguous to the hotel/motel land upon which the respondents entered as visitors – hotel/motel subject to a lease – applicants/first and second defendants – moved for orders striking out proceedings against them – whether arguable case that applicants as owners/lessors under a duty of care to respondents – danger – cliff behind trees on reserve – no fencing, warning signs, illumination - principles on summary disposal applications - liability of lessors to persons other than the tenant - plaintiffs' causes of actions not unarguable - not clear cases for striking out - notices of motion dismissed

Contempt of Court

Family Provision. Application by children of deceased for whom he made no provision. Lack of contact by children with deceased. Whether appropriate to provide for children. - Order for legacies made in favour of children.

MORTGAGE – loan to sister and her husband – extension of time – no issue of principle – facts determine no breach by mortgagee – moneys due and payable – collateral agreement – amount now due – no unconscionability – no remedy available under Contracts Review Act – judgment for mortgage

Contracts - Subscription Agreement pursuant to which Notes in the sum of $750,000,000 were issued - Construction - Rectification - Principles - Right to rectification of Subscription Agreement a chose in action capable of assignment - Whether Indemnity Amounts and Interest Amounts were calculated in good faith and in a commercially reasonable manner as required by contractual documents - Duty of good faith does not require a party to subordinates its own interest so long as the pursuit its of those interests does not entail unreasonable interference with the enjoyment of a benefit conferred by the express contractual terms - Whether Defendant incurred any "currency exchange and basis swap costs associated with the Note Subscriber funding its holding" of the notes "using financial accommodation raised in Euros" - Restitution-Jones v Dunkel-Meaning of "currency exchange and basis swap costs"

PROCEDURE - Supreme Court procedure - New South Wales - procedure under Rules of Court - Application to restrain excessive communication by party to proceedings - power to grant - inherent jurisdiction of the Court - whether conduct an abuse of process - Supreme Court Act 1970, section 23 - Civil Procedure Act 2005, sections 56, 57, 58 & 61

[SUCCESSION] - Construction of wills - Extrinsic evidence as to general intention of testator - Evidence of description of property by testator - Identification of property referred to in will

CORPORATIONS - winding up - recovery proceedings by liquidator - whether application made within period stated in s 588FF(3)(a)(1) - whether application by interlocutory process in winding up proceedings is a nullity - TIME - computation of time - whether 16 January 2009 within period of three years after 16 January 2006

CRIMINAL LAW - sentence - child pornography - CRIMINAL LAW - Crown appeal against sentence - sentence manifestly inadequate - significance of general deterrence in sentencing process

CRIMINAL LAW AND PROCEDURE - Sentence - Crown appeals asserting inadequacy - In the cases of two offenders judge makes specific reductions to qualify them for Drug Court programme - In so doing sentences lowered beneath range - Offenders not qualified for programme in any event - Restoration to assessed sentence before reduction - Third offender dealt with separately for offence which for erroneous cause not dealt with on Form 1 - Adjustment not required - In particular circumstances Crown appeal dismissed

Crown appeal - robbery in company - sentence of periodic detention - Henry guideline -whether manifestly inadequate

Criminal Law - Sentence - Dishonesty offences against employer - relevance of motive - involuntary restitution - whether sentences manifestly excessive.

WORKERS' COMPENSATION – Workers Compensation Commission - review of an Arbitrator’s decision by Presidential Member – task of Presidential member is to decide what is the true and correct decision- Work Place Injury Management and Workers Compensation Act 1998 (NSW) ss 352 and 353 - WORDS AND PHRASES – “review” and "appeal ... by way of review"

PROCEDURE - costs - where plaintiff seeks leave to discontinue - competing applications for costs - plaintiff contends that she should be awarded costs despite rule 42.19 - where realisation that there was no dispute arose on eve of hearing - defendant at that time accepted thee was no dispute after seeing plaintiff's evidence - defendant says dispute would have evaporated earlier if evidence communicated earlier - but correspondence shows that the matters emerging from the evidence were not the only ones that had prevented defendant accepting plaintiff's position

Practice and Prodedure - Evidence - admissibility - intervention by ASIC - whether material subject to rules of evidence - whether material sufficiently convincing to be taken into account

CORPORATIONS - managed investments - constitution - unilateral action by responsible entity of registered scheme to modify constitution - where constitution is in the form of a deed poll - whether instrument other than deed may modify constitution - analysis of responsible entity's limited power of modification under s 601GC(1)(b) - ascertaining corporation's state of mind - meaning of "member's rights" - distinction between rights and interests - meaning of "adversely affect" - meaning of "reasonably considers" - need for evidence showing grounds for decision and rationale for conclusion

CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - inconsistency of laws (Constitution, s 109) - Workplace Relations Amendment (Work Choices) Act 2005 (Cth) s 16 - to what extent Commonwealth law covers the field - CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - inconsistency of laws (Constitution, s 109) - direct inconsistency - effect of temporal distinction in application of Commonwealth and State laws - INDUSTRIAL LAW - the Commonwealth - scope and interpretation of Workplace Relations Amendment (Work Choices) Act 2005 (Cth) - application in respect of claims arising under State law prior to commencement date - INDUSTRIAL LAW - New South Wales - interpretation and jurisdiction - application of Industrial Relations Act 1996 s 106 - effect of Workplace Relations Amendment (Work Choices) Act 2005 (Cth) - INDUSTRIAL LAW - New South Wales - Industrial Court - jurisdiction under Industrial Relations Act 1996 s 106 - claims arising prior to Workplace Relations Amendment (Work Choices) Act 2005 (Cth) - STATUTORY INTERPRETATION - acts of parliament - interpretation - Workplace Relations Amendment (Work Choices) Act 2005 (Cth) s 16

TORTS - negligence - where employee exposed to asbestos dust - whether supplier of asbestos goods negligent in failing to provide warnings and precautions - where breach of statutory duty not dealt with - INSURANCE - employer’s indemnity insurance - statutory workers’ compensation employer’s indemnity policy - scope of insurer’s liability under policy - where policy document not in evidence - onus of proof in relation to contents of cover

CORPORATIONS – winding up – preference recovery proceedings – separate question as to solvency during relevant period – definition of solvency considered – matters pertaining to solvency examined – deed of novation – indemnity clause – whether an on demand debt is a contingent or current liability

CORPORATIONS - winding up - preference recovery proceedings by liquidators - application for extension of limitation period - relevant considerations discussed - extension granted

TORTS – wrongful arrest and false imprisonment - malicious prosecution - absence of reasonable and probable cause for prosecution – whether reasonable basis for prosecutor’s belief - injurious falsehood – conspiracy to injure by lawful means – conspiracy to injure by unlawful means – where first plaintiff arrested following investigation by police into allegations that he was in possession of a bogus certificate of guarantee for 4590 tonnes of platinum – where first plaintiff attempting to sell the certificate – where first plaintiff charged under Crimes Act 1900 s 178BB that he made a statement about the legitimate title to the certificate which he knew to be false or misleading in a material particular – where first plaintiff imprisoned for seven months – subsequently acquitted by magistrate – whether plaintiffs established malice and absence of reasonable and probable cause for prosecution

Property Relationship Act - contributions - increase in value of property - apportionment of increments in value of assets, especially real property - plaintiff providing bulk of purchase price but defendant assuming liability to meet mortgage repayments and having business with income - pre and post separation contributions - child with special needs.

CRIMINAL LAW - guilty plea to offence of forgery - guilty verdict on charge of persuading a witness to give false evidence - separate but interrelated offences - partial cumulation of sentence