Cases and authorities

Limitation Act 1969 - earlier case refused extension - new particulars of negligence - whether can make new application or renew old application - extension of time refused

CRIMINAL LAW - murder - sentence - intention to inflict grievous bodily harm - slightly below mid-range of objective gravity - paucity of subjective material

CRIMINAL LAW - Application for discharge of jury - Impact of extensive publicity in another trial - Propensity for interstate publicity to prejudice New South Wales proceedings

CRIMINAL LAW - sentence - plea of not guilty to charge of murder - jury trial commenced - re-arraignment - plea of not guilty of murder but guilty of manslaughter - plea accepted in full discharge of indictment - stab wounds - excessive self-defence - use of weapon an aggravating factor - episode initiated by deceased - remorse - plea of guilty to manslaughter offered earlier but declined by Crown - special circumstances

ADMINISTRATIVE LAW - prerogative writs and orders - certiorari – application of s 69(3) and (4) of the Supreme Court Act 1970 – construction of ‘ultimate determination’ and ‘the record’ – claim for certiorari dismissed - FAMILY LAW AND CHILD WELFARE - child welfare under State legislation – Magistrate found to have erred in his assessment of risk of harm to children – in exercise of parens patriae jurisdiction, orders made for children to remain in care, custody and control of Minister for Community Services

Criminal law - conviction appeal - summary offence included on indictment - conviction quashed - Crown appeal - particular offence - knowingly take part in the manufacture of a prohibited drug - whether standard non-parole period applies - consideration of assessment of utilitarian discount for plea - departure from standard non-parole period - offences on Form 1 - considerations of parity - sentence manifestly inadequate

DEFAMATION – privilege – qualified privilege – statements made in respect of a duty or interest – on matters of public interest – what constitutes privileged occasion, communication or conduct – whether the occasion of a communication between a candidate and a non-candidate who had expressed contrary political views in the context of an election campaign attracts qualified privilege – whether an ulterior motive of a non-candidate for campaigning against a candidate is relevant to the occasion of qualified privilege – rebuttal of privilege by malice – whether recklessness without evidence of wilful blindness is sufficient to establish that a publication is actuated by malice - fair comment – foundation of fact

PROCEDURE - Notices of motion to review of decision of the Registrar - filing of cross appeal out of time - potential prejudice to the appellant - leave granted to file cross appeal

POWERS OF ATTORNEY - attorney authorised respondent to direct portion of loan moneys to a bank to enable completion of a purchase by him - ambit of Attorney's authority - Powers of Attorney Act 2003 s.12 - whether benefit conferred on Attorney - whether Attorney possessed ostensible authority to act on appellants' behalf

PRACTICE AND PROCEDURE - reasons for decision - plaintiff's adjournment granted - late joinder application - documents produced by newly joined defendant to be considered - failure to comply with Court directions - costs

PROCEDURE - order sought pursuant to Rule 13.1 of the UCPR or, in the alternative, Rule 14.28 of the UCPR

NEGLIGENCE - duty of care - strike out application - no reasonable cause of action - proceedings dismissed

NEGLIGENCE – motor vehicle accident – collision between semi-trailer and car when the steering in the semi-trailer failed without warning – accident occurred as the result of a mechanical failure - breach of duty properly to maintain the steering mechanism so as to keep it in a serviceable condition admitted – steering failure caused by wear in a pinch bolted universal joint – CAUSATION – whether defect discoverable upon ordinary reasonable inspection – whether proper service and maintenance would have revealed the defect in the absence of a specific problem with the steering mechanism – more than visual inspection required – proper service and maintenance would have revealed the defect – accident caused by breach – PRODUCT LIABILITY – whether manufacturer of semi-trailer liable for defective design of universal joint – alternative welded joint available – where no previous indication of problems with component – where steering mechanism in the semi-trailer recognised as the industry norm – interference with adjustment of the pinch bolt by third party – failure caused by wear resulting from incorrect adjustment – no obligation on manufacturer to produce a product that was accident proof or which would not wear out – no basis for conclusion that conformity by manufacturer to normal practice fell short of what reasonable care required – no breach of duty by manufacturer – TRADE PRACTICES - Trade Practices Act 1974 – ss 75AD and 75 AE – cross-claim for contribution by negligent owner of semi-trailer against manufacturer – cross-claim dismissed - no defect and loss related to workers’ compensation under s 75AI.

LIMITATION OF ACTIONS – date on which cause of action “discoverable by plaintiff” – whether plaintiff aware that injury “caused by fault of the defendant” – whether injury was “sufficiently serious to justify the bringing of an action on the cause of action” – meaning of “fault” – comparison of s 50D with extension of time provisions and similar provisions in other jurisdictions – objective test – key factors necessary to establish legal liability – whether taking all reasonable steps includes obtaining medical and legal advice and information – Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) – Limitation Act 1969 (NSW), ss 50C, 50D, 50F, 57B, 60A, 60G, 60I – Limitation Act 1980 (UK), s 14 – Limitation of Actions Act 1958 (Vic) ss 27D, 27F - LIMITATION OF ACTIONS – defences – onus of proof - LIMITATION OF ACTIONS – minor with capable parent – s 50D assessed by reference to knowledge of minor’s parent or what parent would have known – Limitation Act 1969 (NSW), s 50F - PROCEDURE – when proceedings commenced – Civil Procedure Act 2005 (NSW), s 19(1) – Uniform Civil Procedure Rules 2005 (NSW), r 6.2 - STATUTORY INTERPRETATION – “discoverable” – “fact” – “ought to know” – purposive interpretation – statutory framework – objective test – use of cases from other jurisdictions interpreting similar provisions of Limitation Acts – comparison with extension of limitation periods provisions – Limitation Act 1969 (NSW), ss 50D - WORDS AND PHRASES – “discoverable” – “fact” – “knowledge” – “ought to know” – “proceedings commenced” – “take all reasonable steps”

DE FACTO RELATIONSHIPS – claim by M under Property (Relationships) Act – review and decision on numerous controversies relating to particular assets – proceedings brought (by leave) more than five years after separation – M had re-established himself in business, F retained assets at separation but of small value as most had been lost in M’s bankruptcy – F’s asset position mostly derived from estate of her mother who made her will and died over a year after separation – Grand Piano valued by M at $10,000, by Court at $1,000 – adjusting order required F to deliver Grand Piano to M – no order as to costs.

CONTRACTS – general contractual principles – parties – identification of parties – whether plaintiffs are parties to loan agreement as lender – plaintiffs carrying on business under business name registered in the name of a third party – loan agreement describes lender by business name – held that plaintiffs are parties to loan agreement as lender – parties intended lender to be whomever was actually carrying on business under business name - REAL PROPERTY – Torrens title – indefeasibility of title – exceptions – fraud – whether plaintiffs’ equitable charge over property survived transfer to defendants – whether transfer affected by equitable and/or statutory fraud – whether a colourable sale intended to deprive plaintiffs of benefit of equitable charge over property – held that there was no equitable or statutory fraud.

PRACTICE AND PROCEDURE - application to set aside judgment - whether original judgment summary or default judgment - irregularity - interpretation of Rule 36.16(3A) - explanation for failure to defend proceedings - whether arguable and bona fide defence on the merits exists - agreement - estoppel

TRUSTS and TRUSTEES – Aymkone, Licensed Securities Dealer, received US$310,000 with instructions to invest which identified true owners as Camm and Therrien – reference to Therrien was fictitious – true owner was plaintiff Powell and moneys were impressed with trust for Powell – all funds were paid out on Camm’s instructions – Powell claimed he initiated investment by telling Pooley (principal of Aymkone) on the telephone that Powell was sending the money and limiting the way it was to be invested – on the facts, there was no telephone call to Pooley, Aymkone had no notice of the trust for Powell and was not accountable to him. Proceedings dismissed.

CHURCHES AND RELIGIOUS ASSOCIATIONS [32]- Church property- Orthodox Church- Relationship between diocese and parish- Scope of authority of Bishop. EQUITY [185]- Trusts- Church trust- Orthodox Church- Parish trustees- Objection to Bishop's activities- Whether breach.

Criminal law - possession of child pornography - cumulative sentences

CRIMINAL LAW - Crown appeal - order under s11 Crimes (Sentencing Procedure) Act 1989 - armed robbery - plea of guilty - respondent a young woman with difficult background and intellectual disability - whether order appropriate to assess her prospects of rehabilitation - whether full time custodial sentence inevitable

Criminal Law - standard non parole period offences - whether above the mid-range - cat burglar moving through high rise - need take account of diverse nature s112(2) indictable offences and circumstances of aggravation - gambling - whether a mitigating factor - circumstances of aggravation - multiple victims - whether sentences manifestly excessive - strong subjective case.

CRIMINAL LAW — Sentencing — Crown appeal against sentence — malicious wounding with intent to cause grievous bodily harm — joint criminal enterprise

Criminal Assets Recovery Act 1990 – reasonable legal expenses – restraining order.

CORPORATIONS - voluntary administration - second meeting of creditors - extension of convening period - whether case for long extension made out - where special factors relevant to sale of business as going concern - one extension already made under s 439A(6) - whether s 439A(6) available to effect second extension - consideration of amendments made by Corporations Amendment (Insolvency) Act 2007 - continued availability of s 447A

PRACTICE AND PROCEDURE – Costs – Application for order for future costs – Where applicant a corporation limited by guarantee dependent upon donations – Issues of frustration and delay – Exercise of discretion – UCPR r42.21 – s 1335(1) Corporations Act 2001 (Cth)

PARTNERSHIP - agreement for dissolution - part of one partner's interest held by nominee company - other partner held sole share in the company on trust for the first partner - whether on dissolution of the partnership the other partner was required to give "fair value" to the first partner for the surrender of his beneficial interest in the company share - TRUSTS - "fair -dealing" rules of equity relating to the purchase of trust property by a trustee from a beneficiary - applicability in the context of the partnership dissolution in this case.

Contracts - breach results in payment of damages - interest recoverable under common law - calculation of interest - Costs - "calderbank offer" - whether rejection before hearing unreasonable - appeal but no further offer of compromise

BANKRUPTCY [209] - Fraudulent disposition of property - Conveyancing Act 1919 s 37A - Proof of intent to defraud - Proof that alienation not to a purchaser in good faith not having notice of the intent to defraud - Onus of proof - EQUITY [35] – General principles – Fiduciary obligations – Conflict of interest and duty – Attorney under power sells to self.

CONTRACTS – building, engineering and related contracts – plaintiffs had contracted with first defendant builder for it to renovate the plaintiffs’ house – plaintiffs claim against first defendant for breach of contract on the basis that work was defective - DAMAGES – plaintiffs entitled to damages for particular breaches of contract being the amount required to bring the work into conformity with the building specifications - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation – plaintiffs also claim that builder engaged in misleading and deceptive conduct by representing that it had home warranty insurance which it required under the Home Building Act 1989 (NSW) when it did not and that second defendant was a person knowingly involved in the contravention – plaintiffs establish misleading and deceptive conduct and knowing involvement by second defendant but fail to establish they suffered any loss by the conduct complained of

Family Provision. Application under Family Provision Act by a de facto who had lived with deceased for 30 years. Consideration of appropriate provision. Bequest of house ordered in lieu of legacy of $10,000.

PROCEDURE [110] – Supreme Court procedure – Procedure under Rules of court – Trial – Application to proceed with penalty and costs hearing in absence of defendant who has had notice of hearing.

SUCCESSION - wills, probate and administration - probate caveat placed over deceased estate such that no grant could be made without prior notice to caveator - caveator did not challenge validity of will - order that caveat cease to be in force

Criminal law - sentencing - aggravated sexual intercourse without consent - actual bodily harm inflicted - whether offence fell into worst category - whether sentence was manifestly excessive

CRIMINAL LAW – appeal against severity of sentence – plea of guilty to two counts of supplying a prohibited drug and one count of ongoing supply of prohibited drug – grounds for interference – parity – whether error in lack of disparity between sentences of co-offenders – where significant disparity in circumstances of co-offenders – whether error in finding offence committed for financial gain was aggravating factor – where financial gain element of offence – whether error in finding offences aggravated by being part of planned or organised criminal activity – where no planning or organisation established beyond what is inherent to offence – errors established – appeal allowed and upheld – sentences set aside – applicant re-sentenced

Criminal law - sentencing - robbery in company - sentence manifestly excessive

CRIMINAL LAW — Sentencing — aggravated breaking and entering and committing a serious indictable offence — erroneous assessment of level of objective seriousness — sentencing discretion impermissibly confined

CRIMINAL LAW – sentence – manslaughter – no issues of principle – degree of seriousness depends on facts of particular offence – material considerations – no identifiable or manifest error – leave granted, appeal dismissed

PROCEDURE – Costs – Discontinuance – Default provision for costs in UCPR 42.19 – Need for reason for departing from the default provision – Primary judge makes costs order in favour of discontinuing plaintiff – Whether decision vitiated by error – Re-exercise of discretion – Whether appropriate to determine outstanding questions of costs prior to considering costs order to be made on discontinuance – Whether circumstance that discontinuance was not tantamount to capitulation justified departing from the default provision – Reasonableness of commencement of proceedings challenged by defendant, and not resolved because of plaintiff’s decision to discontinue – Relevance of late application by defendant to amend defence.

TORTS – negligence – essentials of action for negligence – damage – causation –appellant’s injury due to collision with fence – respondents failed to erect sign warning of fence – whether respondents’ breach of duty caused injury in circumstances where appellant saw the fence before he would have had an appropriate sign been erected - EVIDENCE – interpretation of photographs

EQUITY - plaintiffs'contribution to improvement of defendant's property pursuant to joint relationship or endeavour, the substratum of which is later removed without attributable blame - whether it would be unconscionable for defendant to retain plaintiffs' contribution - appropriate remedies to give effect to plaintiffs' equity - effect of subsequent agreement between the parties

MORTGAGE – construction of mortgage – irregular drafting – held that the mortgage according to its terms did not secure any money to the mortgagee. BANKRUPTCY – avoidance of preferences – consideration of operation of s 120, s 122 and s 123 on irregularly drafted mortgage, granted shortly before bankruptcy to secure debt owed by person other than the mortgagor – HELD – the mortgage was a transfer of property. It was not void under s 122 because the mortgagee was not a creditor of the mortgagor. It was void under s 120

CROSS VESTING - Jurisdiction of Courts (Cross-Vesting) Act 1987 – s 5(2)(b)(iii) and s 8(1) – application for proceedings pending in the Dust Diseases Tribunal of New South Wales to be removed into the Common Law Division of the Supreme Court of New South Wales and when removed to this Court to be transferred to the Supreme Court of Victoria - whether it is in the "interests of justice" under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state – whether Victoria is the forum with the most real and substantial connection to the proceedings – document destruction allegations – whether allegations had a particular connection to Victoria – evidence taken by trial judge at bedside hearing in Texas – potential significance of observations made by trial judge as to credit, credibility and demeanour – summons dismissed

CORPORATIONS - winding up - application for winding up in insolvency - statutory demand served but not received - defendant seeks leave to amend notice of appearance to rely on defect in statutory demand and deficiency in accompanying affidavit - whether precluded by s 459S - whether leave should be granted under s 465C - PROCEDURE - subpoenas - whether subpoena too wide

MORTGAGES – claim that informal arrangements among brothers gave purchase of 50% interest in land by one brother (Gerard) and wife the character of a mortgage which the other brothers could redeem – on extended consideration of the facts, the transaction was a purchase by Gerard and wife of 50% share as beneficial owners – further disputes of fact relating to character of later disposition and transfer by owner of 25% (Vito) to Gerard and wife and whether Vito could require reconveyance – found he could not. Factual disputes relating to accounting for proceeds of rent. Consideration of liability of a co-owner to account.

CRIMINAL LAW - aggravated sexual assault - appeal against sentence - fresh evidence on mitigation rejected as relevant but not cogent - sentence not in error

CRIMINAL LAW - appeal against sentence - drug offences - cultivation of prohibited plants - alternatives to full time custody

CRIMINAL LAW - appeal against conviction - malicious wounding - finding of no intent to murder not inconsistent with finding of intent to inflict grievous bodily harm

TORTS - negligence - general matters - whether duty of cared owed - Civil Liability Act 2002 ss 5K and 5M - whether dangerous recreational activity - where respondent injured knee while performing lunges - whether risk warning - whether breach of duty - CONTRACTS - general contractual principles - construction and interpretation of contracts - exclusion clauses - whether clause an effective exclusion clause.