Cases and authorities

CRIMINAL LAW AND PROCEDURE - Sentence - Maliciously cause grievous bodily harm - Finding of intent which would elevate crime to one attracting greater punishment - Assessment close to available maximum for actual offence of which offender convicted - Resentence required - Discussion of extent of Crown obligation to tender material touching on prior record - Serious objective facts but sentence must take into account statutory maximum

CRIMINAL APPEAL – CONVICTION – asserted miscarriage of justice – verdict said to be unsafe and unsatisfactory – whether evidence of guilty plea in separate proceedings admissible or unfairly prejudicial – whether failure of counsel to object to evidence said to be inadmissible displayed flagrant incompetence – whether error in trial judge failing to accede to application for view – whether error in disallowing certain cross-examination on prior inconsistent statement and credit - CRIMINAL APPEAL – SENTENCE – application for reduction in sentence – sentence said to be excessive – whether sentence reflected objective seriousness of offence – whether failure to take into account and give credit for co-operative manner in which the trial was conducted by the accused – where wounding with intent to murder and wounding with intent to do grievous bodily harm – Crimes Act 1990 (NSW) ss 27, 33 - EVIDENCE – identification evidence – voice identification – visual identification – admissibility – advantage of trial judge – prior inconsistent statement – credit

Criminal law - sentencing - offences of dangerous driving causing death and failing to stop and assist - Whyte guideline - whether double punishment - whether sentences were manifestly excessive.

Criminal law - length of jury deliberations - unsafe and unreasonable verdicts - circumstantial evidence - inconsistent verdicts - Evidence Act (leave to cross-examine under s38)

CRIMINAL LAW AND PROCEDURE - Sentence - Co-offenders originally dealt with together - Subsequent quashing of sentences on one of them - New sentencing proceedings regarding that offender - New findings by resentencing judge - Appeal by other offender - Parity with co-offender's resentence - Resentence arguably inadequate - No justifiable grievance in the circumstances

Family Provision. Application by fiancee of the deceased. Held no de facto or close personal relationship with deceased. Held part of household and partly dependant. Small estate. Legacy aof $50,000 granted. Plaintiff's costs fixed at $35,000.

CRIMINAL LAW - Application to exclude identification evidence - Breach of s 3ZP of Crimes Act 1914 (Cth) - Failure to have separate photographic arrays - Exercise of discretion under s 138 Evidence Act 1995 - Need for proper training and co-ordination of police during joint operations

NEGLIGENCE – incapacity of plaintiff – approval application for settlement reached – significant issues on liability – discount on damage – plaintiff, bound by agreement, opposes approval – settlement disapproved

CORPORATIONS - winding up - company in liquidation - shareholder seeks leave to bring derivative action on behalf of company - existing application by that shareholder for liquidators to be removed - attitude of liquidators relevant to claim for leave to bring derivative action

CRIMINAL LAW - sentence - manslaughter - jury verdict after trial for murder - offender with borderline personality disorder - intoxication - relevance of mental disorder on sentence - pre-trial offer to plead guilty to manslaughter - rejected by Crown - offender entitled to notional utilitarian value of offered plea

PRACTICE AND PROCEDURE – motion to strike out – no arguable case – deed of release – bar to proceedings – time limit for Contracts Review Act action to set aside deed – no negligence by solicitors then acting – motion granted

SENTENCE APPEAL - Break Enter and Commit Affray - failure to make allowance for time spent in residential rehabilitation program - finding of no prospects of rehabilitation open to judge - no question of principle

Criminal Practice & Procedure - maliciously inflicting grievous bodily harm - use of glass/bottle as weapon - history of similar offences - finding of continuing disregard of the law - whether sentence manifestly excessive.

Corporations law - statutory demand - creditor's change of name - known to debtor - whether use of old name provided "some other reason" to set aside demand.

CONTRACTS [105]- Parties are adjoining owners of land in the Moorebank precinct- Deed entered into with a view to land redevelopment- Defendant agrees to grant easement for the construction and use of a road bridge to plaintiff subject to construction commencing within five years of the date of deed, failing which, the deed may be terminated (clause 9)- Held that on the facts, no construction work commenced on the bridge- Plaintiff's failure to commence not caused by defendant's breach of its Mackay v Dick obligations. REAL PROPERTY [409]- Easement as indicated by plan does not accord with parties' intended location- Whether s 89 Conveyancing Act 1919 confers jurisdiction to move an easement- Held that a relocation of an easement so that it traverses a completely different track is outside the power conferred by s 89- Application under s 88K Conveyancing Act for the grant of a new easement not decided pending the outcome of the Land and Environment Court proceedings and assessment of the appropriate amount of compensation.

SUCCESSION [164]- Plaintiff applies for rectification of codicil under s 29A Wills, Probate and Administration Act 1898- Late application- Whether sufficient cause is shown for the failure to make application in time- Held that the court is reluctant to order rectification out of time given a grant of probate is an order in rem- However, on facts of present case time extended- Consideration of how testatrix's intention should have been expressed- Rectification ordered.

CORPORATIONS - winding up - examination summons - application for order discharging - where liquidator's purpose is to assess viability and worth of causes of action for debt against certain companies and a guarantor of their obligations - whether impermissible purpose - whether discretion to discharge should be exercised

CRIMINAL LAW — Sentencing — Crown Appeal against sentence — Drug Misuse and Trafficking Act s 23A — hardship to offender’s children exceptional

CRIMINAL LAW – Appeal against conviction – Sexual assault – Issues of consent and appellant’s knowledge – Gaps in complainant’s recollection – Whether open to jury to be satisfied beyond reasonable doubt that complainant did not consent and that appellant knew she did not consent.

APPEAL AND NEW TRIAL – Failure to assess significance of certain documentary evidence – Whether document could be regarded as written confirmation of contractual commitment - CONTRACTS – Whether contract of guarantee formed on facts

WORKERS COMPENSATION – COAL INDUSTRY – meaning of the expression “employer in the coal industry” – Workers Compensation Act 1987 (NSW), s 7A – company providing apprentices to industries generally, provided worker to coal mine – whether employer in the coal industry only because an employee of an employer was a coal miner – whether Coal Mines Insurance the relevant workers compensation insurer – commutation and redemption of payments – whether lump sum payment of compensation in pursuance of liability to pay compensation – whether lump sum in redemption of compensation – whether payment of compensation wholly or partially redeemed – whether redemption monies fell within insuring clause – whether effect of Gosper v Christopherson (1986) 160 CLR 423 legislatively overridden – Workers Compensation Act 1987 (NSW), s 15

CRIMINAL LAW – procedure – bail – before trial – respondent’s incarceration in NSW – family ties and legal defence based in Victoria – warrant for respondent’s arrest issued in Victoria – respondent’s appearance at trial in NSW may require application under Prisoners (Interstate Transfer) Act 1982 – whether exceptional circumstances under Bail Act 1978 s 9D

PROCEDURE – costs – multiple issues – plaintiffs substantially the successful party – defendants attained a measure of success also – many issues not severable or distinct – costs award should reflect the parties’ degree of success – impossible precisely to assess proportions – defendants to pay two-thirds of the plaintiffs’ costs - PROCEDURE – costs – indemnity costs – late concession – no significant costs savings – findings of misconduct by primary defendant – misconduct only relevant to costs insofar as it relates to the manner in which the litigation was conducted rather than insofar as it caused the litigation – defendants achieved a measure of success – indemnity costs inappropriate - PROCEDURE – costs – late joinder of some defendants – those defendants were separately represented – separate costs orders made in relation to those defendants - PROCEDURE – costs – costs of preparation of expert report for plaintiffs – report not tendered – other experts used information in the report – defendants put to expense in preparing evidence in response to report – no order as to costs

INTEREST – recoverability of interest – whether post-judgment interest may be awarded on a judgment sum comprising principal and pre-judgment interest – ss 100 and 101 Civil Procedure Act

TAXES AND DUTIES - stamp duty - duty on agreement for sale or transfer of dutiable property - "business asset" - goodwill of business is "business asset" if sale of goods or services made to New South Wales customer of the business within preceding 12 months - identifying goodwill of business - identifying business - identifying customers - concept of sale of services where business is exploitation of intellectual property and rights under master franchise agreement - whether services provided - whether sale of services to customer - whether sale of goods to customer - where goods delivered - WORDS AND PHRASES - "services" - "sale of services" - "customer"

TRAFFIC LAW - appeal from Local Court - speed camera - school zone signage

CRIMINAL LAW - sentence - manslaughter by excessive self-defence - associated aggravated armed robbery

EQUITY [34] – General principles – Fiduciary obligations – General principles – Test of fiduciary relationship – Commercial context.

CORPORATIONS - winding up - creditors voluntary winding up - special purpose liquidator appointed by court - application for orders concerning that liquidator's remuneration and expenses - provisions applicable to fixing of remuneration - committee of inspection - statutory role and responsibility of committee concerning fixing of remuneration - other functions of committee in creditors voluntary winding up

WILLS – testatrix domiciled in New South Wales – will made in Israel disposing of testatrix’s Israeli assets – subsequent wills made by her in Australia containing usual revocation clauses – whether the testatrix affirmatively intended that none of the Australian wills should revoke the Israeli will – whether the revocation clause in any of the Australian wills revoked the Israeli will.

Extended detention and supervision orders - effects of orders - standard of proof of risk of re-offending - use of research and statistics - provisional nature of statistical conclusions

Serious sex offender - application for continuing detention order or, alternatively, an extended supervision order - prisoner incarcerated almost 28 years - provision of psychological services - concurrent evidence by experts.

PERSONAL PROPERTY [21]- Assignment of rights in expectancy- Plaintiff as mortgage originator/manager entered into the "CT Correspondent Deed" with the defendants as mortgage wholesalers, which entitles the plaintiff to commissions for mortgages either originated or managed by the plaintiff under the Deed- Prior to entering into the CT Correspondent Deed, two of the plaintiff's subsidiaries purchased, by entering into the "DC sale agreement", the business of a company "DC" (also previously an accredited originator/manager with the defendants) including its "loan book"- Whether the defendants owe trailing commissions to the plaintiff for the DC loans- Whether there exists an effective assignment of DC's loan book to the plaintiff- Held that the DC sale agreement was not a valid assignment at law within the meaning of s 12 Conveyancing Act 1919- DC's right to commissions under the scheme of its own correspondent deed and pricing agreements not assignable and not affected by subsequent dealings- Plaintiff was a mere delegate of DC.

WILLS – construction – whether assets specifically disposed of or residue available for payment of legacies – effect of Wills Probate and Administration Act 1898, s 46C and Schedule 3, Part II on administration of assets – final clause of will, subject to liabilities, gave “the rest and residue…including…my home at…Concord…” to niece and husband – held, specific gift, not charged with 20% of legacies which could not be paid out of investments.

SOLICITORS – instructions given on behalf of a corporation by a disqualified person – whether retainer invalid – whether retainer satisfied by a subsequent directors’ resolution. - ILLEGALITY – whether proceedings against a former employee of a corporation are “tainted” because instructions were given by a disqualified person allegedly in breach of the Corporations Act 2001 (Cth) – whether breach established – whether legislation prohibits the institution or maintenance of the proceedings

WILLS PROBATE and ADMINISTRATION - proof that document was in fact executed by deceased and duly attested - in earlier proceedings where will was not found and there was evidence of its contents Gzell J on 22 March 2007 [2007 NSWSC 208] refused administration c.t.a. on ground that as original will was not forthcoming revocation should be presumed - LA on intestacy for benefit of five children of deceased - on 5 April 2007 document purportedly deceased's will placed in plaintiff's mailbox in Netherlands by unidentified person - claim for probate of that document - consideration of evidence relating to execution - evidence relating to due attestation - handwriting evidence inconclusive - witnesses' signatures illegible, witnesses could not be identified - HELD - plaintiff had not discharged onus of proof, probate refused. Alternative Family Provision claims dismissed.

CRIMINAL LAW - application to appeal against severity of sentences - imposing on the Commonwealth by untrue representation - dishonestly causing loss to a Commonwealth entity - single parenting payments - employment - plea of guilty - whether applicant suffering from depression and a dissociative behavioural state - expenditure beyond living expenses - hardship in separation from son - requirement for exceptional circumstances not met - whether sentences are manifestly excessive

Criminal Law - Appeal against sentence - Disposing of stolen goods - vehicle re-birthing - whether discount for plea sufficient - effect of delay before trial - whether sentence manifestly excessive.

CRIMINAL LAW - Conviction appeal - Dangerous Driving Causing Death - whether verdicts were unreasonable - Crown case based on excessive speed and management of vehicle - appellant's account admitted excessive speed - jury not bound to accept the appellant's account where evidence of actual speed was indeterminate - Crown appeal against inadeqate sentences - whether judge required to find speed of respondent's vehicle for purposes of sentencing - effect of jury verdicts - erroneous characterisation of respondent's liability based upon momentary inattention - failure to apply guideline judgment re Dangerous Driving.

APPEALS – limited grant of leave to appeal – extension of limitation period – whether Court of Appeal should intervene – Supreme Court Act 1970 (NSW) s 75(6) - COSTS – costs in extension of time application – whether costs should follow “the event” – whether application for extension of time was an “event” – Uniform Civil Procedure Rules 2005 (NSW) r 42.1 - LIMITATION OF ACTIONS – limitation period for breach of fiduciary – whether s 36 of the Limitation of Actions Act 1969 (SA) imposes limitation period for breach of fiduciary duty – Limitation of Actions Act 1969 (SA) s 36 - LIMITATION OF ACTIONS – extension of limitation period – whether, having regard to prejudice caused to appellant by delay, justice of case required order extending time – respondent placed under appellant’s care in boys’ home run by appellant – allegation that appellant breached duty of care by failing to implement system to protect respondent from sexual assaults by other boys and supervisor at home – whether primary judge erred in consideration of prejudice to appellant – absence of evidence due to lapse of 38 years – Limitation of Actions Act 1936 (SA) ss 36, 48 - STATUTORY INTERPRETATION – purposive construction – whether statutory intention to impose limitation period on cause of action for breach of fiduciary duty – Acts Interpretation Act 1915 (SA) s 19 – Limitation of Actions Act 1936 (SA) s 48 - WORDS & PHRASES – “actions” – “damages” – “the event”

Grants in solemn form sought of purported will of 9 December 2006 and as to informal will of 7 December 2006 - Deceased aged 98 - loss of cognitive function due to underlying brain disease - Deceased very ill in hospital and close to death - Combined impact of severe physical illness and loss of cognitive impairment - lack of testamentary capacity - circumstances of suspicion surrounding making of informal will and purported will.

Industrial accident - negligence - liability of contractor and employer - apportionment of liability between contractor and employer - contributory negligence.

Tort - assault on an infant - assessment of damages - non-application of Civil Liability Act 2002

INSURANCE - claim for damages against solicitor for negligence - Plaintiffs' Certificate of Title taken from solicitor's office and used to give mortgage over property - signatures of Plaintiffs forged on mortgage - application for leave to join LawCover to negligence proceedings against solicitor - s.6 Law Reform (Miscellaneous Proceedings) Act 1946 - LawCover opposes grant of leave relying on dishonesty/fraud exclusion under insurance policy - whether Plaintiffs had demonstrated arguable case that solicitor acted negligently but not dishonestly in circumstances giving rise to claim - leave granted to join LawCover

Criminal law - sexual offences - whether miscarriage of justice through witness' allegation that counsel complicit in destruction of documents - counsel and witness at cross purposes - not truly allegation of impropriety or likelihood of prejudice to accused - rational decision by counsel not to apply for discharge of jury or take some other course to negate possible prejudice to accused - whether miscarriage of justice through certain cross-examination by Crown Prosecutor - was relevant and not offensive - had substantial probative value - not outweighed by risk of unfair prejudice.

EVIDENCE – admissibility – evidence of what plaintiff would or would not have done – subjective approach – Civil Liability Act 2002 (NSW), s 5D(3) - INTOXICATED PERSONS – police powers to detain intoxicated persons – whether hospital “responsible person” – Intoxicated Persons Act 1979 (NSW) ss 3, 5 - POLICE – powers to detain intoxicated persons – purpose of detention powers – whether power to require intoxicated person to undergo medical treatment – status of police protocol – Intoxicated Persons Act 1979 (NSW) ss 3, 5 - TORTS – negligence – duty of care – causation – duty of care owed by Ambulance Service and police to plaintiff – plaintiff intoxicated and resisted assistance from ambulance officers – plaintiff taken into custody – whether ambulance officers required to advise police that plaintiff needed to be conveyed to hospital – whether breach of duty on part of police through custody manager failing to comply with police protocol – whether police should have taken plaintiff to hospital when he arrived at police station – whether plaintiff would have accepted medical assessment and treatment from hospital - WORDS & PHRASES – “responsible person”

Contracts - building, engineering and related contracts - the contract. Construction of specification for materials to be used in drainage layer. Whether proposed material complies with requirement in the specification. Held it does not comply.

PRACTICE AND PROCEDURE – leave to amend statement of claim – lapse of time – exercise of discretion – objection for lack of material facts – facts either evidence or particulars – amendment allowed