Cases and authorities

PRACTICE AND PROCEDURE - application by Defendant to dismiss proceedings for want of prosecution - order of dismissal made

CRIMINAL LAW - appeal under s.5F Criminal Appeal Act 1912 - ruling by District Court Judge that s.306I Criminal Procedure Act 1986 applied to special hearing - tender by Crown of audio-visual recording of evidence of complainant at earlier trial - ruling on admissibility of evidence - not interlocutory judgment or order - s.5F appeal incompetent

PROCEDURE - pleading - application for leave to amend statement of claim - whether claim that one set of contractual provisions superseded or altered another untenable - whether claim that transfer of shares was by way of security untenable - whether claim that statutory response to statutory inquiry about share ownership created trust untenable - whether claim of existence and breach of fiduciary duty untenable - whether alternative bases for pleading misleading or deceptive conduct should be permitted - whether allegation based on existence of relevant inerest in shares requires allegation of factual circumstances making up relevant interest - adequacy of pleading of knowledge in Barnes v Addy claim - adequacy of pleading knowing involvement in statutory misconduct - whether estoppel adequately pleaded

PRACTICE AND PROCEDURE - application for leave to appeal from civil judgment in General Division of Local Court - claim of denial of natural justice and other errors - application for leave refused

ADMINISTRATIVE LAW – orders in the nature of certiorari and mandamus – jurisdictional error – determination that Local Court did not have jurisdiction to quash declaration of habitual traffic offender after severity appeal to District Court – jurisdiction possessed by court that convicts – severity appeal does not affect jurisdiction of Local Court - TRAFFIC OFFENCE – declaration of habitual traffic offender – application to quash – jurisdiction possessed by court that convicts – in this instance jurisdiction possessed by Local Court, notwithstanding severity appeal to the District Court

Corporations Law. Application to set aside statutory demand under s 459G of Corporations Act. Genuine dispute and off-setting claim alleged. No sufficient evidence to establish an off-setting claim. Genuine dispute as to denial of natural justice in adjudication under Building & Construction Industry Security of Payment Act 1999 fails as plaintiff had lost proceedings to set aside the adjudication.

SUCCESSION - family provision - claim by de facto widow - entire estate, other than family home, was left to Plaintiff - family home was left to the three children of Plaintiff and Deceased, being infants of tender years - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - Defendants recognise right of Plaintiff to reside with her infant children in family home - Plaintiff claims family home absolutely - Court must be scrupulous and zealous in protecting the interests of those persons who are not capable of protecting their own interests.

Criminal law - Social Security fraud - discount for plea of guilty

AGENCY - appointment of attorney by deed - scope of attorney's authority - need for authority to execute deed to be created by deed - DEEDS - what amounts to a deed - purported deed between named company and each person "identified from time to time in the Annexure to this Deed" - where no "annexure" physically attached to deed - whether unattached electronic record may be "the Annexure to this Deed" - DEEDS - form and execution - need for signing, sealing and delivery - statutory deeming of sealing where there is signing and attestation - need for delivery contemporaneously with or after signing and attestation - purported delivery by attorney ineffective in absence of signing by principal or principal's attorney - CORPORATIONS - corporate finance - securities lending - elements of "lending" that is "compliant with" s 26BC Income Tax Assessment Act 1936 (Cth) - where subject matter is ASX listed shares held under CHESS system - whether "borrower" obliged to restore the shares "lent" or to transfer identical shares - whether "lender" by lending acquires any interest in shares owned or held by "borrower" - CONTRACTS - construction and interpretation - effect of provisions allowing mortgagee to dispose of mortgaged property - MORTGAGES - equity of redemption - rule against clogging - whether rule against fetter upon equity of redemption is an absolute rule or applicable only in cases of unconscionability - held unconscionability is a necessary element - whether unconscionability shown in the circumstances of this case

CONTRACTS - property maintenance and caretaking contract for home unit block - owners corporation may terminate for "misconduct" of caretaker - relevant concept of "misconduct" discussed - whether particular episodes and matters amount to "misconduct" - CONTRACTS - right to assign with consent - consent not to be unreasonably withheld - content of qualification discussed - whether withholding of consent to assignment was unreasonable - WORDS AND PHRASES - "misconduct"

CRIMINAL LAW – appeal – sentencing – discount for plea – manifest excess – finding of fact – objectively serious offence – allowance for provocation and protective custody – sentence within range – re-sentence to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999, otherwise appeal dismissed

EVIDENCE - Client Legal Privilege - Documents produced in answer to a subpoena - Objection that privileged documents for purpose of Uniform Civil Procedure Rules 2005, r 1.9(3) - Legal professional privilege abrogated under James Hardie (Investigations and Proceedings) Act 2004 (Cth), s 4(1) in relation to James Hardie material which includes books and information of which ASIC requests or requires production or provision - Civil Procedure Act 2005, s 68 provides that a court may by subpoena order a person to produce any document to the court - Whether the documents were not James Hardie material because produced by court order and not at request or requirement of ASIC

LIMITATION OF ACTIONS – extension of limitation period – prejudice to the defendant – prejudice at the "time of the application for extension" – whether the time of the application is the time of filing or the time of the determination - LIMITATION OF ACTIONS – extension of limitation period – whether just and reasonable to extend – onus of showing - LIMITATION OF ACTIONS – extension of limitation period – prejudice to the defendant – damaged evidence – decision by the plaintiff not to sue – delay – inability to locate witness – witness unable to remember - LIMITATION OF ACTIONS – extension of limitation period – effect of expiration of limitation period - EVIDENCE – witnesses – inability to locate witness – whether solicitor has made satisfactory effects to locate – onus of showing that efforts were not satisfactory – impact of the tendering of a statement when witness is unavailable - EVIDENCE – documentary evidence – destruction of documents - APPEAL AND NEW TRIAL – appeal – general principles – error of fact – whether material error of fact has occurred

PROCEDURE – Costs – Security for costs – Company appellant – Review of Registrar’s decision – Grounds of review – Whether onus on company to prove means of persons who stand to gain from litigation – Whether impecuniosity caused by other party – Public policy.

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether application made in conformity with s 459G - whether affidavit is "an affidavit supporting" the application - where affidavit confined to bald assertion

Crown appeal - consideration of s 92 of the Road Transport (General) Act - use of vehicle at the relevant time - scope of employment or agency.

DEFAMATION – Supreme Court Act 1970 s 89 – jury trial – application to dispense with jury – relevant considerations

CRIMINAL LAW - Appeal against conviction on child sexual assault offences - Whether error in Black direction - Whether error in the admission of tendency evidence - Adequacy of Longman direction - Suggestion to jury to approach counts in the indictment sequentially - appeal dismissed.

LIMITATION OF ACTIONS – application to extend time to bring personal injuries claim – choice of law – Queensland law applies – findings of prejudice – extension of time should not have been granted – motion filed to join a party to existing proceedings but no amended pleading filed – "action" not brought within time

APPEAL – duty to give reasons – conflicting expert opinion – experts not called – duty not discharged

LIMITATION OF ACTIONS – effect of service of pre-filing statement – claim for work injury damages – suspension of time - resumption of Workers Compensation Act 1987 (NSW) s 151DA - PROCEDURE – service of pre-filing statement – was a pre-filing statement defective or incomplete – whether claimant can file successive pre-filing statements – withdrawal of pre-filing statement – Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 315(1), 316, 317, 318 - WORDS AND PHRASES – “defective pre-filing statement”

ASSOCIATIONS AND CLUBS – occupier of licensed premises – duty to patron – club security standard operating procedures – policy that all parties to dispute evicted without assessment of aggressor’s identity – whether club delegated responsibility for security of patrons to security firm - TORTS - negligence – duty of care owed by occupier of licensed premises to patron – assault by another patron – breach of duty of care – plaintiff and third defendant evicted from club through separate entrances after altercation – whether reasonably foreseeable that third defendant might return and assault plaintiff – security guards’ assessment of third defendant’s condition – additional steps available but not taken – whether conduct unreasonable

EXCISE PROSECUTION - costs

CRIMINAL LAW - Sentence - Terrorism offence - Recklessness- Principles applicable - Protection of the community

CONTRACTS – PENALTY – PROVISION FOR ACCELERATION OF EXISTING DEBT NOT PENALTY - PARTNERSHIP – SHARE OF FORMER PARTNER – EQUITABLE DEBT ALTHOUGH NOT ASCERTAINED

CRIMINAL ASSETS CONFISCATION - s 10 of the Criminal Assets Recovery Act 1990 – whether plaintiff's evidence disclosed reasonable grounds for a suspicion that the defendant had engaged in a serious crime related activity

WORKERS' COMPENSATION – alternative rights against employer and third party – where worker who suffered a work-related injury from a heart condition received compensation from employer – where worker later claimed damages from his medical practitioner for breach of duty in his treatment of the worker’s cardio myopathy and ventricular failure - Workers Compensation Act 1987 s 151Z(1) – UCPR rule 28(2) – separate determination of question whether worker's injury for which compensation was payable under the Act was caused under circumstances creating a liability in the medical practitioner to pay damages in respect of the injury

APPEAL AND NEW TRIAL – criminal appeal – miscarriage of justice – unfair trial – hostility between trial judge and counsel – incompetence of counsel – instructions withdrawn - CRIMINAL LAW – particular offence – sexual intercourse without consent – accused’s belief as to consent - CRIMINAL LAW – practice and procedure – counsel’s brief withdrawn – adjournment application – application to discharge jury - CRIMINAL LAW – practice and procedure – agreement as to fact - agreement challenged - inconsistent verdicts - Evidence Act 1995 (NSW), s 191 - EVIDENCE – cross examination – questions of complainant disallowed – Criminal Procedure Act 1986 (NSW), s 275A

COSTS – enforcement of foreign judgment – proceedings stayed to await foreign appeal – costs of motion for stay to be costs in the cause

PROCEDURE - costs - upon adjustment of interests in property under s 20 of Property (Relationships) Act 1984 - no matter of principle

PRACTICE AND PROCEDURE – appeal from judgment striking out defence – exercise of discretion not to be subject to interference unless error of principle – failure of party to comply with directions as to filing evidence did not allow striking out of defence – appeal allowed

ADMINISTRATIVE LAW – appeal from Chief Mining Warden – issue of injunction by Warden’s Court – inunction held to be interlocutory – no error, except failure to issue reasons – order directing reasons be issued

PRACTICE AND PROCEDURE – motion to strike out – cause of action in negligence previously dismissed summarily – nothing left in proceedings – alternatively, witness immunity applies – proceedings dismissed - COSTS – follow the event – orders made

COSTS – successful motion to set aside default judgment – principles – “misconduct in litigation” includes failure to file defence – defendant to pay costs – solicitor’s default matter between client and solicitor

SUCCESSION - family provision - claim by widow aged 79 - Plaintiff after marriage obtaining for 57 years was left less than one third of estate - other two thirds were left to the two children of the marriage - financial and material circumstances of Plaintiff - competing claims of other two beneficiaries - asserted extravagence and financial irresponsibility of Plaintiff - even if established, such assertions are not determinitive of whether Plaintiff has been left without adequate provision for her proper maintenance - Court should not be diverted from the clear words of the statute.

COSTS – principle that costs follow event – broad discretion – costs ordered, but not to be enforced against tutor for compelling discretionary reasons

CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applicant convicted of doing an act with intent to influence a witness - sentence manifestly excessive - Crimes Act 1900 s 323(a)

CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applications to reduce sentence - when granted - offences against the person - whether applicant's mental illness was causally connected to the commission of the offence - whether trial judge erred in approach to special circumstances - whether discount for plea sufficient whether sentence manifestly excessive

CRIMINAL LAW – Conspiracy – Conspiracy to money launder – Fault element – At common law and under statute - CRIMINAL LAW – Conspiracy – Fault element – "Recklessness" and “knowledge” – Whether sufficient for prosecution to prove that accused was reckless with respect to physical element of the substantive offence– Criminal Code Act 1995 (Cth), ss 5.4, 11.5, 400.3

Criminal Practice & Procedure - appeal against sentence - home invasion and assault - matters of aggravation - whether double punishment to use violence to aggravate home invasion and charge assault - vulnerability of victim - victims in early 60's - revocation of parole - whether sentence should be backdated - whether sentence manifestly excessive.

CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - improper admission or rejection of evidence - aggravated indecent assault and aggravated sexual assault - evidence of complaint - where maker available - whether asserted fact fresh in the memory of the person who made the representation - whether evidence of complaint wrongly admitted - whether admission of evidence unfair - whether evidence admissible to re-establish complainant's credit - compelling Crown case

EXCISE PROSECUTION – averment of facts – evidence in rebuttal – onus not discharged

PRACTICE AND PROCEDURE - permanent stay of proceedings - abuse of process - no prospect of conviction - duplicitous charges - criminal prosecution - misleading conduct relating to sale of food - infant formula - inclusion of nutritive substance - false description - labelling - miscalculation of energy content - meaning of nutritive substance - use of extrinsic material - Australia New Zealand Food Standards Code - Food Standards Australia New Zealand Act 1991 (Cth) - Food Act 2003 (NSW)

EQUITY [49]- First and second defendants act as joint executors, guardians and attorneys for elderly plaintiff- First and second defendants in financial difficulties with reverse mortgage on their property- Plaintiff allegedly made a monetary gift to the first and second defendants so that they can purchase back their property in their names in return for them caring for the plaintiff- Plaintiff never received independent legal advice- Held on facts that the transaction must be set aside for equitable fraud and undue influence.

CRIMINAL LAW – Crimes Act, s 38 - administering a stupefying drug with the intention of committing an indictable offence – drink spiking - CRIMINAL LAW – admissibility of coincidence evidence – s 98 Evidence Act – circumstantial case – principles as stated in O’Leary v R – question of joint or separate trials in respect of multiple counts arising out of six separate incidents – directions to jury – probative value of coincidence evidence did not outweigh prejudicial effect – no miscarriage of justice in ordering joint trial - CRIMINAL LAW - Crimes Act, s 61I sexual assault without consent – complainant impaired by stupefying drugs – co-offenders charged with drink spiking – question of individual and separate trials in respect of sexual assault counts – no miscarriage of justice in ordering joint trial of individual offenders - CRIMINAL LAW – Sentencing – statutory ratio between non-parole and parole periods – appealable error - CRIMINAL LAW – Sentencing – parity between co-offenders convicted of sexual assault to separate complainants – appealable error

CRIMINAL LAW – Murray direction – whether Murray direction required – some corroboration of complainant’s evidence - some inconsistencies in corroboration evidence – lack of full corroboration and or some inconsistency not determinative of whether Murray direction is required – where solicitor had identified discrepancies to jury – no miscarriage of justice - CRIMINAL LAW – Murray direction – terms of direction - jury informed by trial judge that direction is given as a matter of law - CRIMINAL LAW – relationship evidence – directions to jury – relationship evidence not required to be proved beyond reasonable doubt

CRIMINAL LAW – s 70 Crimes Act (Cth) – former Commonwealth officer communicate contents of document which under duty not to disclose – departure from particulars - no unfairness in the manner trial conducted – misdirection of law – application of proviso - EVIDENCE – s 70 writing placed on a document – by-line in newspaper article – not within exception

CRIMINAL LAW – Appeal against conviction – Discharging firearm in public place – Whether miscarriage of justice - CRIMINAL LAW – Evidence – Evidentiary matters relating to witnesses – Admission of evidence – Availability of witnesses – Evidence Act 1995 s 65 – Whether witness unavailable – Witness claimed to be unable to recall subject events – Not relevantly ‘unavailable’ – Whether evidence would have otherwise been admissible – No miscarriage despite error – Prior inconsistent statement – Credibility rule – Crown application to cross-examine own witness – Evidence containing admissions by appellant – Whether impermissible hearsay evidence – Whether jury should have been allowed to take certain exhibits into jury room – ‘Swamping effect’ of evidence – Whether verdict unreasonable and insupportable by the evidence

CRIMINAL LAW - successful and unsuccessful appeals against conviction - certain sentences quashed - variation of commencement dates of remaining sentences under s.59 Crimes (Sentencing Procedure) Act 1999

CRIMINAL LAW - appeal against Drug Court sentences - break, enter and steal - supply heroin - pleas of guilty - break, enter and steal dealt with summarily - whether judge could determine starting point in excess of two year limit for Table 1 offence before reduction for plea - whether sentence for supply heroin and overall sentence manifestly excessive