Cases and authorities

CRIMINAL LAW – appeal against conviction and sentence – whether trial judge erred by failing to give jury an Edwards direction – whether trial judge failed to put defence case to jury in summing up – whether trial judge’s directions on attempt were adequate - whether trial was unfair by reason of counsel’s failure to apply for and trial judge’s failure to grant separate trials on separate counts – whether trial judge erred in directing jury that Commissioner of Taxation was a Commonwealth entity – further grounds of appeal submitted after hearing of the appeal - whether abuse of process - grounds of appeal futile in any event – appeal against conviction dismissed – CRIMINAL LAW - appeal against sentence – whether trial judge erred in not sentencing separately – whether sentences inappropriately accumulated – whether the offences were stale - whether sentences manifestly excessive – appeal against sentences dismissed

CRIMINAL LAW – sentencing – appeal – aggravating feature – inherent in elements of crime – no lesser sentence warranted – no manifest excess – disqualification from driving – term fixed by judge identical to automatic disqualification period but from future date – power to fix shorter or longer period – original intent given effect – longer period fixed expiring 3 years after conclusion of non-parole period - TRAFFIC LAW – offence – disqualification – method of fixing non-automatic period of disqualification – need to have shorter or longer period – method corrected

Criminal Law - appeal against sentence - sexual intercourse without consent (x2) - significance of applicant's mental condition - whether sentences manifestly excessive

Leave to file further Amended Statement of Claim - Principles

COSTS - mortgage agreement - contractual entitlement to indemnity costs - court's discretion as to costs - pleadings - late withdrawal of defence and cross-claim - indemnity costs

PRACTICE AND PROCEDURE - strike out application - advocates immunity.

Civil Law - action by bank on a Guarantee - whether representation and collateral contract.

CRIMINAL LAW - application for leave to withdraw plea of guilty - Crown to call as witnesses on application the previous counsel and solicitor of applicant - extent of waiver of client legal privilege

DAMAGES – failure to mitigate loss. - VALUATION – value of land – offer by intending purchaser admissible. - VENDOR AND PURCHASER – Vendor not willing & able to perform contract – not entitled to recover price.

PROCEDURE - miscellaneous procedural matters - other matters - amendments to further amended statement of claim - section 64 and section 65 of the Civil Procedure Act 2005 - amendments to take effect from date on which proceedings commenced

CORPORATIONS - winding up - application for winding up in insolvency - plaintiff has benefit of presumption of insolvency - defendant seeks to prove solvency - onus not discharged - no matter of principle

SUCCESSION - family provision - claim by adult daughter - financial and material circumstances of Plaintiff - degree of estrangement between Plaintiff and Deceased - statements by Deceased concerning his relationship with Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claim of Defendant (principal beneficiary).

COMMON LAW - CONTRACTS - variation - mortgagor gave undertaking to Land and Environment Court - whether mortgagee could demand compliance with undertaking as a condition of advancing progress payment - whether mortgagee could impose further conditions at its sole discretion - COMMON LAW - CONTRACTS - breach - whether mortgagee's refusal to advance progress payment amounted to breach of contract - COMMON LAW - CONTRACTS - offer and acceptance - whether there was a binding renewal of loan - COMMON LAW - CONTRACTS - construction and interpretation of contracts - effect of incorporating letter of offer into mortgage - whether letter of offer constituted a series of discrete offers or whether single approval and settlement process was contemplated - COMMON LAW - PRACTICE AND PROCEDURE - refusal of application to amend pleadings

CRIMINAL LAW - conspire to commit an armed robbery - appeal - evidence - specialised knowledge - Pig Latin evidence - probative value and prejudicial effect - police identities to be kept private - at a time or soon after - sentencing

Criminal Law - sentence - possession of a precursor intended to be used in the manufacture of methylamphetamine - theft of property as a clerk - whether features of the case impermissibly used as aggravating factors - parity - totality

Criminal law - sentencing - possession of child pornography (x3) - whether various matters wrongly taken into account as aggravating factors - whether imposition of maximum penalty warranted - whether sentences manifestly excessive

CRIMINAL LAW - stated for determination - child pornography - in a sexual context

CRIMINAL LAW AND PROCEDURE - Interlocutory appeal by Crown - Rejection of evidence by trial judge - Finding that unfair prejudice outweighed probative value - No ground for appellate intervention shown

CONVEYANCING - conditions of sale - claims by purchaser - whether entitlement to claim extended to claim in respect of pre-contractual misleading and deceptive conduct - CONVEYANCING - order for return of deposit under Conveyancing Act s 55(2A) - relevance of vendors' higher resale price - whether misleading and deceptive conduct by vendors - relevance of such conduct

Leave to appeal from interlocutory order for costs.

APPEAL – appeal – general principles – interference with discretion of court below – re-exercise of discretion - CORPORATIONS – winding up – winding up voluntarily – liquidators – supervision of liquidators by the court – inquiry under s 536(1)(a) Corporations Act 2001 (Cth) – faithful performance of duties - CORPORATIONS – winding up – winding up voluntarily – liquidators – supervision of liquidators by the court – inquiry under s 536(1)(b) Corporations Act 2001 (Cth) – complaint – whether a complaint was made - CORPORATIONS – winding up winding up voluntarily – liquidators – supervision of liquidators by the court – inquiry under s 536(3) Corporations Act 2001 (Cth) – liquidators to answer an inquiry - CORPORATIONS – winding up – liquidators – duties and liabilities – in voluntary winding up – factors relevant to the discretion to ordering an inquiry under s 536 Corporations Act 2001 (Cth) – size of anticipated return to creditors – position of creditors – proportionality between cost and recovery – failure to apply for directions before commencement of the proceedings – litigation funding - STATUTORY INTERPRETATION – acts of parliament – interpretation – s 536(1)(a), s 536(1)(b), s 536(3) Corporations Act 2001 (Cth)

EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - duration and termination of employment - Plaintiff seeks interlocutory injunction to restrain members of defendant company from voting to terminate his employment as rabbi – a serious question to be tried that an implied term of the contract is that the plaintiff is entitled to life tenure – a serious question to be tried that the plaintiff at final hearing would be entitled to specific performance or an injunction to restrain the termination of the contract without the parties first having had the dispute determined in accordance with Jewish law – damages would not necessarily be an adequate remedy - balance of convenience favours grant of interlocutory relief

EVIDENCE - whether affidavits and witness statements filed and served in previous Federal Court proceedings are privileged – the documents lack confidentiality as defined in s 117 of the Evidence Act 1995 and as required by s 119 of the Act – further, the documents were not prepared for the dominant purpose of the client being provided with professional legal services as required by s 119 of the Act – hence the documents are not privileged

Family Provision. Application by widow who was left a life estate. Discussion as to whether life estate appropriate. Held not appropriate and plaintiff to receive whole estate.

PROCEDURE - vexatious litigant - applications for leave to institute proceedings - proceedings seek to set aside judgments as being procured by fraud - allegations of perjury by witnesses and parties in proceedings before Supreme Court and Medical Tribunal - necessary for Defendant to establish prima facie ground for proposed proceedings and that proceedings not abuse of process - applications refused

Family Provision. Claim by adult son whose benefit under the will was postponed. Order for acceleration of benefit.

Consumer, Trader and Tenancy Tribunal Act 2001 - Anterior proceedings brought before District Court - Construction of section 22 (7) of Act

PROCEDURE - miscellaneous procedural matters - power under UCPR to set aside dismissal of proceedings under r 12.9 - MAGISTRATES - appeals and review - jurisdiction and procedure generally - adequacy of reasons in ex tempore judgment

FAMILY LAW AND CHILD WELFARE - Parens patriae - Scope of power - Where 15-year-old child has extensive history of serious self-harming, violent and anti-social behaviour – Where experts strongly support preventative confinement of child in secure accommodation to facilitate treatment plan – Where Director-General seeks order authorising indefinite involuntary detention of child in secure accommodation unit – Whether such order may be made in parens patriae jurisdiction – Relevance of child’s human rights under Convention on Rights of the Child

[REFEREES] - Development of practice of referring the whole of proceedings to retired judicial officers - [REFEREES' REPORTS] - Principles applicable to review of referees' reports in which errors of law are alleged - challenge to conclusions reached upon arhcitects responsibility in respect of building which leaked - whether report should be adopted - [PROCEDURAL FAIRNESS] - whether referee should have provided opportunity to affected party to make submissions in relation to approach taken by referee outside aspects of pleaded case

ARBITRATION - plaintiff sought to enforce Chinese arbitral award against the defendants – defendants contended that to enforce award would be contrary to public policy – enforcement found to not be contrary to public policy

Family Provision. Application by widow from second marriage. Option to purchase deceased's share in family home given to widow. Held appropriate provision requires that she receive the deceased's half share of the family home.

CONTRACT - appeal from Local Court - whether purported agent had ostensible authority - no agency established

APPEAL – interlocutory practice and procedure in District Court – provision of particulars – ground of appeal previously addressed - PROCEDURE – particulars – order for further and better particulars in s 151Z(1)(d) indemnification proceedings – applicability of r 15.12 – Uniform Civil Procedure Rules 2005 (NSW), r 15.12 - WORKERS' COMPENSATION – nature of indemnification proceedings – burden of proving damages payable by putative tortfeasor – Workers Compensation Act 1987 (NSW), s 151Z(1)(d)

CORPORATIONS - winding up - statutory demand - application for order setting aside - plaintiff alleges demand not served - that is not a ground for setting aside - by resorting to s 459G, plaintiff accepts that statutory demand was served - plaintiff alleges statutory demand is an abuse of process - where another demand for same judgment debt and unassessed costs previously served - that demand withdrawn three day service of this demand - no abuse of process

Review of Registrar’s interlocutory orders – pursuant to Part 49 Rule 49.19, Uniform Civil Procedure Rules 2005 – report for local council (former employer of plaintiff) allegedly defamatory of plaintiff – financial loss alleged – directions granting second defendant access (subject to first right of access to plaintiff) to file of Industrial Relations Commission (IRC) concerning litigation between plaintiff and former employer – not a “fishing” exercise – no requirement for second defendant to specify in advance documents on IRC file before access to file – file potentially relevant to losses claimed by plaintiff in defamation proceedings – no basis for an order setting aside subpoena re IRC

CRIMINAL LAW - general matters - criminal liability and capacity - defence matters - insanity and mental impairment - disease of the mind, mental disease or mental infirmity

Administrative Law - appeal from decision of Transport Appeal Boards to reinstate RailCorp employee - judicial review - grounds of review - error of law in exercising discretion - Wednesbury unreasonableness - examining reasons given by lay tribunal - failure to take account of relevant considerations - irrelevant considerations - procedural fairness.

MEDICAL PRACTITIONERS - deregistration - where Recommendation by Professional Standards Committee for deregistration – where plaintiff told by Medical Board legal officer incorrect information about time for lodging appeal – where order made by Chairperson of Medical Tribunal for deregistration – whether lost opportunity to appeal before order under s.63(3) of the Medical Practice Act 1992 made - whether made in breach of procedural fairness requirements - whether order of Chairperson should be stayed and plaintiff’s registration reinstated pending appeal – lodging of appeal before the order of the Chairperson made had no effect on making of the order for deregistration – no denial of procedural fairness before Professional Standards Committee – no denial of procedural fairness otherwise under the statutory scheme under the Medical Practice Act – summons dismissed

CRIMINAL LAW - appeal against conviction - particular grounds of appeal - misdirection or non-direction - whether jury misdirected as to fault element of physical element of offence - whether jury confused by directions of trial judge

CRIMINAL LAW - appeal against conviction - sexual assault - direction to jury - relationship evidence or context evidence - convictions quashed

Criminal law - sexual intercourse with a child aged between 14 and 16(x3) - appeal against conviction following pleas of guilty - pleas entered on basis of existing state of law - miscarriage of justice established when state of law altered

CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - robbery in company - grounds for discrimination between co-offenders on parity principles

Criminal Law - Sentence - Manslaughter - death arising in armed robbery offence - offender not the killer.

PROCEDURE - Contempt - contempt by influencing a witness – whether hearing of motion alleging contempt should precede, accompany or follow the substantive hearing - where there is no significant overlap of issues – contempt hearing should, if possible, precede the substantive hearing

PROCEDURE - Service of Process –substituted service - whether impracticability of current method of service established - whether method of substituted service proposed is reasonably likely to bring proceedings to defendant’s notice

Security for costs - undertakings offered by principal person behind company to be responsible for defendants' costs but no evidence of his financial position - combination of undertakings offered and ordering of security.

COSTS – Bullock or Sanderson order – whether conduct of the first defendant made it fair to impose liability upon him to pay the costs the second defendant – whether reasonable to join the second defendant – plaintiff not entitled to Bullock order

PROCEDURE - judgments and orders - amending, varying and setting aside - notice of motion - application sought to vary self executing order - plaintiffs failure to comply with self executing order - short delay in filing evidence - no explanation given - orders sought refused - costs

Landlord and tenant - no subsisting tenancy - lawfully terminated - consideration of ss 85(1)(d) and 127 of Conveyancing Act 1919 - futile to order re-hearing of strike out application on natural justice grounds as decision of Associate Judge correct.