Cases and authorities

PARTNERSHIP – joint venture syndicate of six owners of trotting horse “Lost in the Park” – four members appointed manager, took control of horse, raced it and exported it to NZ then USA without allowing two members (the plaintiffs) to participate – no written records of dealings – HELD – defendants were accountable for prize money their manager collected, export of the horse was not authorised and defendants were accountable to syndicate for value at time of export – accounts settled and judgment for plaintiffs, entitlement – decision on facts, no question of legal principle.

CRIMINAL LAW - appeal against conviction - sexual assault offences - complainant a concert pianist student of Appellant - relevance of anecdotal evidence of lay witnesses concerning difficulty in performing as a concert pianist when under stress - claims of unfairness against Crown Prosecutor - claim that acquittal on one count rendered convictions unreasonable - claim that trial miscarried through failure to provide simultaneous headphone translation facilities - no error established - rational basis for different verdicts - no miscarriage of justice demonstrated - appeal against conviction dismissed

CRIMINAL LAW – SENTENCING – Crown Appeal – manifest inadequacy of sentence – manufacture and supply of prohibited drugs – offences committed while on parole – sentences imposed to be served concurrently – whether structuring of sentences failed to reflect number and objective seriousness of offences – whether sentences inappropriately backdated - whether trial judge erred in double counting mitigating factors including early guilty pleas and provision of assistance to authorities - appeal allowed – sentences on three counts quashed - new sentences imposed

CRIMINAL LAW - appeal against conviction - sexual assault offences - complainant a concert pianist and student of appellant - whether Crown was obliged to call expert evidence concerning impossibility of performing as a concert pianist when under stress - whether verdicts unreasonable or not able to be supported having regard to the evidence - whether inconsistent verdicts - claim that trial miscarried through failure to provide simultaneous headphone translation facilities - alleged inadequacies in trial Judge's directions - alleged bias of trial Judge - alleged incompetence of Counsel - alleged wrongful admission of evidence of admissions - alleged wrongful admission of hearsay evidence - character - no error established - rational basis for different verdicts - no miscarriage of justice demonstrated - appeal against conviction dismissed

SEXUAL OFFENCES - joinder of counts involving two complainants - risk of prejudice - evidence not admissible as tendency or coincidence - uncharged acts

CRIMINAL LAW - application for leave to appeal against sentence - supply methylamphetamine, possess prohibited firearm - further offences on Form 1 - sentencing judge's approach to assessing significance of Form 1 matters - partly cumulative sentences - proportion of effective non-parole period to aggregate sentence

CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - prejudicial evidence - whether evidence of armed robbery and proposed flight should have been admitted as evidence of accused's consciousnes of guilt for murder - whether the proviso should be applied - s 137 Evidence Act 1995 - s 6(1) Criminal Appeal Act 1912 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - misdirection and non-misdirection - whether trial judge misdirected jury as to how evidence of armed robbery and proposed flight could be used as evidence of consciousness of guilt - whether the proviso should be applied - s 6(1) Criminal Appeal act 1912 - CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - prejudicial evidence - whether admission of evidence that accused owned hunting knives should have been admitted - whether the proviso should be applied - s 137 Evidence Act 1995 - s 6(1) Criminal Appeal Act 1912

CRIMINAL LAW - trial by judge alone - murder - defence of mental illness

SERIOUS SEX OFFENDER - application for continuing detention order or extended supervision order - standard of proof - categories of serious sex offences under the Crimes Act where victim is an adult - relevance of static and dynamic risk factors - mental disorder - custody-based vs community-based treatment in administration of anti-libidinal medication

EQUITY [328] – Equitable remedies – Injunctions – Considerations upon which court exercises discretion – Futility of remedy - Whether remedy futile.

FAMILY PROVISION AND MAINTENANCE – claim by adult son – criminal history – little contact with testatrix – impecuniosity due to forfeiture of assets following criminal conviction – brother’s competing claim – held plaintiff not entitled to order for provision

MEDICAL NEGLIGENCE - failure by surgeon to administer an anticoagulant following Achilles tendon repair operation - content of duty of care owed by surgeon - breach of duty by surgeon and hospital - application of section 5O Civil Liability Act 2002 - causation - whether administration of anticoagulant would have prevented pulmonary embolism - late application to amend Statement of Claim.

SUCCESSION - family provision - claim by adult son and adult daughter - will gives half of residue to first Plaintiff and nothing to second Plaintiff - financial and material circumstances of each Plaintiff - obligation upon an applicant for provision to disclose as fully and as frankly as possible all information concerning the applicant's financial and material circumstances - whether each Plaintiff has been left without adequate provision for that Plaintiff's proper maintenance - extent of contact between first Plaintiff and Deceased - absence of contact between second Plaintiff and Deceased - statement by Deceased setting forth reasons for excluding second Plaintiff from any testamentary benefit in his estate.

CRIMINAL LAW — Sentencing — alleged lack of parity or appropriate disparity — no error

TORT – Negligence – Motor vehicle accident – Standard of reasonable skill and care – Whether breached when car hit pedestrian on the road at night.

COSTS - indemnity costs offer of compromise under the Rules

Alleged misconduct - conduct committee - independent investigation - procedural fairness - failure to provide contradictory statements - failure to fairly inquire - decision vitiated.

ASSOCIATIONS AND CLUBS - incorporated association - disputes about internal affairs - applicability of model rule requiring internal disputes to be referred to mediation - whether proceedings should be stayed pending mediation

Child pornography - cartoon figures modelled on "The Simpsons" - whether depict a "person" within s 474.19 (1)(a)(i) of the Criminal Code Act 1995 (Cth) and s 91H(3) of the Crimes Act, 1900

TORTS - negligence - police detective sergeant injured back whilst moving desk in police station - commonplace activity not forming part of employee's regular duties - no breach of duty by employer

PRACTICE AND PROCEDURE - appellant's defence struck out - entry of monetary judgment for respondent - power of magistrate to give judgment for specific amount - lack of evidence of existence and quantum of debt - Uniform Civil Procedure Rules 16.3(2), 16.6, 12.7(2) - Civil Procedure Act 2005 s 61(3)(c), s 14 - affidavit in support - point at issue not taken below - whether prejudicial to respondent

APPEALS – interlocutory appeal – leave requirement – appeal “in point of law” – complaint about manner in which Presidential member of Workers Compensation Commission dealt with inferences drawn and facts found by arbitrator – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353 - WORKERS’ COMPENSATION – application to vary award – calculation of income from cleaning business which constituted worker’s earnings – whether legal error in approach adopted by arbitrator – further steps identified to allow for relevant calculation - WORKERS’ COMPENSATION – scope of appeal from arbitrator to Presidential member of Workers Compensation Commission – procedural powers available to arbitrator and Presidential member – whether requirement that Presidential member identify error – power of Presidential member to review findings made and inferences drawn by arbitrator – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – ss 352, 354

TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and related legislation – consumer protection – whether certain conduct misleading or deceptive or likely to mislead or deceive under s 52 of the Trade Practices Act 1974 – plaintiffs invested in funds managed by the third defendant, including a fund described as the Global Technology Fund (“GTF”) – second and third defendants also held units in GTF, a fact known to the plaintiffs – in February 2001, third defendant decided to (“the decision”) and subsequently did redeem its units in GTF – the third defendant did not disclose to the plaintiffs either the fact of the decision (“the conduct complained of”) or its redemption – from late 2000 to late 2001 value of units in GTF deteriorated significantly – plaintiffs allege that by the conduct complained of the third defendant engaged in conduct that was misleading or deceptive or likely to mislead or deceive, and that had the third defendant disclosed the decision to the plaintiffs they would have redeemed their units in GTF and invested all of the proceeds in other funds – held that the conduct complained of was not misleading or deceptive or likely to mislead or deceive and accordingly that the plaintiffs’ claim fails – whether non disclosure of information must be “deliberate” to be liable to be conduct that is misleading or deceptive or likely to mislead or deceive – held that it need not be deliberate, following the decision of the Victorian Court of Appeal in CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd (2005) ATPR 42-042 - DAMAGES – whether plaintiffs would have redeemed their units in GTF had they been told of the decision – objective features of the plaintiffs’ behaviour and attitude at the relevant time does not support plaintiffs’ oral evidence that they would have redeemed their units – held that even had plaintiffs been told of the decision, they would not have redeemed – whether if the plaintiffs had been told of the decision and had redeemed, they would have invested all of the proceeds into other funds or whether they would have firstly used the proceeds to discharge margin loans – held that the plaintiffs would have firstly used the proceeds to discharge margin loans

FAMILY LAW AND CHILD WELFARE [517] - Child welfare under state legislation - Whether Supreme Court ought exercise parens patriae jurisdiction where unappealable interim order has been made by Children’s Court.

CORPORATIONS - winding up - presumption of insolvency because of non-compliance with statutory demand - application for leave to rely on alleged dispute about existence of debt - whether that matter material to proof of solvency

GUARANTEE AND INDEMNITY [37] – Indemnities – Construction of contract – Bank guarantees – Special rules as to construction – Absolute not conditional liability.

VENDOR and PURCHASER – purchaser’s lien for payment of part of purchase money – on a sale for $180 000 Special Clause 35 provided:“The vendor acknowledges that he has received $138,000 towards the purchase price from the purchaser in full satisfaction of the judgment obtained by the purchaser against the vendor in proceedings Number 5827/01 issued out of the District Court in Sydney. - Consideration of purchaser’s lien. HELD – purchaser’s lien exists throughout until completion even if no entitlement to repayment has arisen – consideration of Ex Parte Lord [1985] 2 Qd R 198 at 201 – purchaser’s lien for $138, 000 arose on exchange – on assessment of competing equities, an alleged unregistered mortgagee did not have a better equity than the purchaser.

CRIMINAL LAW - Sentence - Murder - Consideration of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999

SERIOUS SEX OFFENDER - application for extended supervision order - Defendant subject to continuing detention order between June 2007 and October 2008 - Defendant completed CUBIT program - extended supervision order made - factors relevant to fixing duration of order - factors relevant to setting conditions requiring wearing of electronic monitoring equipment and a curfew - public interest in fair and balanced reporting of proceedings under Crimes (Serious Sex Offenders) Act 2006

CRIMINAL LAW — Sentencing — sexual assault offences — aggravated robberies — whether manifestly excessive

Criminal Law - appeal against conviction - directions on mental elements of offences of maliciously inflict grievous bodily harm with intent and maliciously inflict grievous bodily harm - injuries inflicted by single blow - whether directions adequate

CONTRACTS - construction - lease of city premises - whether rental determined pursuant to rent review clause payable only in respect of period commencing once that determination completed

CONTRACTS - non-completion of share sale agreement - theoretical bases of anticipatory breach principle - whether termination by acceptance of anticipatory breach requires assent of all parties - whether termination for failure of purchasers to complete

DAMAGES – Appeal – Personal injury – Assessment of past economic loss – Assessment of future economic loss – Assessment of future medical expenses – Failure to award interest on past economic loss

ADMINISTRATIVE LAW – judicial review – jurisdiction - federal jurisdiction of the Land and Environment Court – s 39 Judiciary Act 1903 (Cth) - ADMINISTRATIVE LAW – judicial review – jurisdiction – ancillary jurisdiction of the Land and Environment Court – s 39 Judiciary Act 1903 (Cth) – s 16(1A) Land and Environment Court Act 1972 - ADMINISTRATIVE LAW – judicial review – standing to institute proceedings - CONSTITUTIONAL LAW – acquisition of property on just terms – s 51(xxxi) Constitution – validity of Commonwealth statutes providing for grants of financial assistance to the States under s 96 and regulating water use – whether the Commonwealth statutes are laws with respect to the acquisition of property - CONSTITUTIONAL LAW – operation and effect of the Commonwealth Constitution – Restrictions on Commonwealth legislation – s 100 Constitution – laws made under trade and commerce power - CONSTITUTIONAL LAW – operation and effect of the Commonwealth Constitution – restrictions on Commonwealth legislation – s 51(xxxi) Constitution – whether Commonwealth employed a circuitous device - STATUTORY INTERPRETATION - joint Commonwealth and State legislative schemes – agreement between Commonwealth and State – whether the existence or validity of an agreement has an effect on validity of State Act and State plan

ABORIGINALS – Protection of Aboriginal heritage – Director-General of National Parks and Wildlife – Proposed residential development – Issue of consent to destroy, deface or damage Aboriginal objects – Meaning of ‘Aboriginal objects’ – Whether cultural significance of land enhanced by asserted relation between objects and spiritual beliefs or historical events - ADMINISTRATIVE LAW – Environmental law – Judicial review – Grounds of review – Relevant consideration – Whether test of ‘proper, genuine and realistic consideration’ of relevant issue appropriate – Inter-generational equity – Whether decision maker misdirected self in relation to meaning of inter-generational equity – Cumulative impact of development on local Aboriginal heritage – Relevant matters considered and not merely adverted to – Dangers of impermissible merits review

CORPORATIONS - winding up - company in liquidation - liquidators commence proceedings claiming order for payment of money to company by reason of voidable transaction - proceedings commenced after expiration of s 588FF(3) limitation period - PROCEDURE - liquidators seek leave to amend - amendment to substitute company as plaintiff to pursue different cause of action based on same facts - whether such amendment within provisions with respect to amendment - CORPORATIONS - liquidators - personal liability for costs - costs "properly incurred" recoverable out of property of company - whether costs "properly incurred" where proceedings should have been seen to be doomed to fail

EQUITY [102] - Trusts and trustees - Constitution and classification of trusts generally - Classification of trusts in general - Implied trusts - Constructive trusts - Independent of intention - General principles – Whether transfer of real estate procured by overreaching conduct – Son made signatory on aged parents’ bank account and given power of attorney – Whether authority given by parents for him to use funds for his own benefit.

PROCEDURE - costs - security for costs - proceedings brought by company in liquidation with negligible assets - company shows strong basis for asserting right to recover significant sum - apparent non-compliance by one defendant with order of court - discretion should be exercised against grant of security for costs

INSURANCE [11]- Insured plaintiff makes numerous claims under income protection policy- Defendant insurer paid some claims but not others- Clause 15 of the policy provides that the policy automatically ends within its 12 month operation period if insured is no longer employed in full-time paid work- Defendant continued to accept renewal premiums after the plaintiff had ceased full-time work- Held that no claim is payable after such time but premiums ought to be refunded.

SENTENCING - one count of supply and one count of ongoing supply of methylamphetamine - appeal against sentence upon basis was disproportionate to comparable co-offender - appeal dismissed

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 refused

PARTNERSHIP- construction of partnership agreement – where partner makes a cross-claim for contribution from other partner under indemnity clause – indemnity clause operates in relation to claims that extended beyond the partnership period - PARTNERSHIP – construction of deed of dissolution - release held to protect the parties from any claim, past, present or future that one partner might have had under its right of indemnity - DUST DISEASES – causation – party is liable if its negligence was a cause of, or contributed to the harm suffered - DUST DISEASES – Dust Diseases Tribunal – jurisdiction to hear claims and cross-claims made in respect of allegations of a dust-related condition

TORTS - negligence - duty of care - occupier of display home - invitee injured after not noticing steps - foreseeability of injury - DAMAGES - whether redundancy payment to be credited against damages