Cases and authorities

Sentence - offence of manslaughter - partial defence of substantial impairment by abnormality of mind

CORPORATIONS - foreign company - winding up - whether Part 5.7 body - business no longer carried on in Australia but foreign company registration extant - no assets or activities in Australia - company dissolved in place of incorporation - application by creditor for winding up order - whether of any utility - where cogent basis for claims against former directors - sufficient to activate discretion to order local winding up despite dissolution

APPEAL - Local Court Magistrate - whether guarantee was a personal one

CORPORATIONS - PRACTICE AND PROCEDURE – Orders for production – setting aside for oppression – respondents appointed special purpose liquidators (“the liquidators”) of first defendant company with specific powers and functions (“the appointment order”) – orders for production made, ancillary to summonses for examination issued pursuant to ss 596A and 596B of the Corporations Act 2001 (Cth), on ex parte application of liquidators (“the Orders”) – applicants seek to set aside Orders in whole on the basis of oppression, or in part either on the basis that the Orders go beyond the authority given to the liquidators by the appointment order or on the basis that they compel production of privileged documents – procedure for claiming privilege where orders for production made ancillary to summonses for examination issued pursuant to ss 596A and 596B of the Corporations Act 2001 – Uniform Civil Procedure Rules 2005 (NSW) Pt 1 rr 1.8 and 1.9 considered – Meteyard v Love as Receivers and Managers of Southland Coal Pty Ltd (2005) 65 NSWLR 36 applied – Orders set aside

CRIMINAL LAW - murder - not guilty due to mental illness

Plaintiff seeks default judgment against defendants, officials of Peoples Republic of China - intervention of Attorney General (Cth) not opposed - Foreign States Immunity Act 1985 (Cth) - admissibility of s 40 certificate - whether defendants immune from jurisdiction of court.

Family Provision. Effect of abatement of claim under Family Provision Act 1982 when plaintiff dies during the course of the hearing. Order for interim provision made during course of hearing. Order made for payment of costs of interim provision. Order refused for costs of the hearing generally.

SEPARATE DETERMINATION

PROFESSIONS – MEDICAL PRACTITIONERS – Unsatisfactory professional conduct – Change in definition – Transitional provisions – Whether Medical Tribunal addressed statutory question – Whether reasons adequate.

CONTRACT LAW – refurbishment of façade of building premises comprising strata scheme – whether oral agreement by owners corporation to reimburse building developer for cost of refurbishment works – whether terms of relevant conversation created binding agreement – whether strata managing agent representative had authority to bind owners corporation – whether actions of representative ratified by owners corporation - STRATA SCHEMES – powers and functions of owners corporation executive committee and strata managing agent – delegation of executive committee powers and functions to strata managing agent

Equity and Equitable Estates. - Property purchased by parents with son's name on title to enable a loan to be obtained. - Whether presumption of advancement rebutted in circumstances. - Held: presumption rebutted and property held on resulting trust for the parents.

EXTRADITION - Treaty - United States of America - construction - description of facts supporting extradition request - reasonable grounds for believing offence committed by person sought - whether sufficient information available to Court to satisfy test - whether sufficient information before Court to satisfy test in respect of ingredients of offence under United States law - whether submission with evidentiary implications can be made to Court when submission not made to Magistrate.

APPEAL- Decison on fact- Powers of review by appellate courts discussed. - SUCCESSION- Appellant seeks revocation of probate or provision under Family Provision Act on basis of "compelling inferences"- Trial judge declines to draw inferences and dismisses claims- Held judge did not commit appealable error in so doing.

DEFAMATION – Whether imputations of and concerning appellant – Whether imputations conveyed by matter complained of – Report of consultant engineer in relation to work of appellant as professional engineer – Whether imputations were defamatory of appellant – Imputations disparaging of appellant in professional context – Publication – Whether imputations were published by first respondent – First respondent parent company of employer of report’s author – Whether employer of report’s author was agent of first respondent – Whether first respondent and employer of report’s author were in partnership – Whether first respondent vicariously liable for publication by employer of report’s author - CORPORATIONS – Group of companies – Whether parent company and wholly owned subsidiary in partnership – Whether parent vicariously liable for publication of report by subsidiary – Whether subsidiary was agent for parent in publishing report – Whether ‘corporate veil’ should be pierced/lifted as between parent and subsidiary - PROCEDURAL FAIRNESS – Self-represented litigant – Whether primary judge afforded appellant fair and just opportunity to prepare and present case – Appellant claimed to be unaware certain issues were to be determined – Alleged failure of primary judge to explain court processes to appellant – Alleged failure of primary judge to properly assess totality of submissions put by appellant

EQUITY [38]- Misrepresentation alleged to have effect of avoiding deed dealing with termination of business- Held on facts no misrepresentation.

Whether there existed an agreement to transfer interest in a business - Effect of absence of clean hands if entitlement otherwise established

Contract – retainer of mortgage broker with commission – loan approval – retainer agreement contained conditions which were not fulfilled – loan approval did not correspond with application – held no entitlement to commission – caveat removed – initial payment recovered – decision on facts and non-standard document.

COSTS - Inquiry as to damages under [2003] NSWSC 122 and [2007] NSWSC 1323 - offers of compromise - large claims and small results - exercise of discretion on instant facts.

Criminal Law - Sentence for manslaughter after trial.

CRIMINAL LAW – sentencing for the offence of manslaughter by unlawful and dangerous act – revenge attack – long criminal history – exercise of discretion by trial judge – sentence within appropriate discretionary range - CRIMINAL LAW – sentencing – totality – offender on conditional liberty at time of offence – accumulation of sentence on earlier sentence imposed for different offence – partial accumulation would not adequately reflect objective criminality of offence

Criminal Practice & Procedure - failure to fix non parole period in standard non parole period offence - indictment with Form 1 - multiple victims - preferable to have Form 1 for each victim - whether sentences child sex offences excessive - parity - no lesser sentence warranted (s 6(3)) - need to restructure sentence.

CRIMINAL LAW - appeal against conviction - supply large commercial quantity of heroin - Appellant drove co-offender to area where supply to occur - Crown case that both engaged in joint criminal enterprise to supply heroin - heroin supplied to third party - fingerprints of Appellant and co-offender found on plastic wrapping enclosing heroin - circumstantial case - whether verdict unreasonable and not supported by the evidence - whether error in directions to jury - verdict was reasonable and supported by evidence - no error in directions to jury - appeal dismissed

INTEREST - trial judge's damages reduced on appeal - agreement that plaintiff entitled to interest - judgment on appeal taking effect on date of trial judge's judgment - interest entitlement under s 101 Civil Procedure Act - interest not included in substituted judgment - COSTS - offers of compromise - application of UCP Rules concerning offers in Court of Appeal - offer to party A that party B pay $X - can not be accepted by party A - ineffective - same offer to party B - need to take interest into account - offeror bettered offer - no occasion for order otherwise - indemnity costs from date of offer.

[CONTRACT] - contract of employment - termination of employment - whether contract included a provision fixing period of notice for termination without cause - whether termination was "a redundancy"

EVIDENCE [56] - Admissibility and relevancy - Opinion evidence - Expert opinion – Report to contain facts and assumptions of fact on which opinion based - Qualifications of witness - Compliance with expert witness code of conduct - Dispensation with compliance.

TORT - Medical negligence - Endoscopic surgery - Bolam principle - distinction between diagnosis and treatment, and warning of risks - res ipsa loquitur

SENTENCE - De Simoni error - repeat domestic violence offence

INDUSTRIAL LAW – Occupational health and safety – Offences – Interpretation of offence creating provision – Whether jurisdictional error – Occupational Health and Safety Act 1983, s 17 - PROCEDURE – Appeal from acquittal by single judge of the Industrial Court – Powers of the Full Bench on appeal – Whether power to remit – Industrial Relations Act 1996, s 196, s 197A - PROCEDURE – Appeal from acquittal by single judge of the Industrial Court – Powers of the Full Bench on appeal – Failure to exercise power – Jurisdictional error

APPEAL - Local Court - whether parties intended to enter into legal relations

SUMMARY JUDGMENT - Strike out summons

SERIOUS SEX OFFENDER - application for extended supervision order - preliminary hearing - order sought for examination by psychiatrists - Defendant on parole - requirement under s.6(3)(b) for supporting documentation to include a psychological report assessing likelihood of committing further serious sex offences - whether current and specific report required for that purpose - order for examination made

CONTRACTS - offer and acceptance - whether parties had entered into binding contract to settle proceedings - whether objective intention immediately to be bound - HELD no common intention immediately to be bound.

CRIMINAL LAW - sentence - plea of guilty to manslaughter in satisfaction of murder indictment - excessive self-defence

PROCEDURE - Rules of court - whether provision for administration of interrogatories in criminal proceedings - Part 75 rule 11 Supreme Court Rules 1970 - STATUTORY INTERPRETATION – Clear statement principle – integrity of the system of criminal justice – need for a clear statement before parliament will be taken to authorise a contempt of court – section 37 (1)(o) and (q) Food Act 2003 - PROCEDURE - Contempt - what constitutes – not mere advantage – improper interference with legal proceedings – exercise of statutory power to obtain documents and answers to interrogatories – section 37 (1)(o) and (q) Food Act 2003 - STATUTORY INTERPRETATION - Abridgement of the accusatory system – clear statement required to authorise steps to compel an accused to provide information for purposes of proceedings – role of derivative use – section 37 (1)(o) and (q) Food Act 2003

CRIMINAL LAW (C’wlth) – Sentencing – mental illness – power to deal with offender otherwise than in accordance with law – Federal power and State power – whether State power applied as surrogate Federal law under s 68 of the Judiciary Act. - FEDERAL JURISDICTION – Criminal law – mental illness – power to deal with offender otherwise than in accordance with law – Federal power and State power – whether State power applied as surrogate Federal law under s 68 of the Judiciary Act.

CRIMINAL ASSETS CONFISCATION – Restraining orders – Criminal Assets Recovery Act 1990 (NSW), s 10 – Whether primary judge erred in concluding affidavit of authorised officer disclosed reasonable grounds for the relevant suspicion – Whether primary judge erred in failing to give reasons in relation to orders - CONSTITUTIONAL LAW – Judicial power of Commonwealth – Ch III of the Commonwealth Constitution – Vesting of Federal jurisdiction in State courts – Whether s 10 invests Supreme Court with a power repugnant to or incompatible with its exercise of Federal judicial power – Whether the practical effect of s 10 is to require Supreme Court to make restraining order in ex parte proceedings - EVIDENCE – Whether certain paragraphs of affidavit improperly admitted – Essential to identify purpose for which evidence is admitted – Adducing evidence in interlocutory proceedings - PRACTICE AND PROCEDURE – Whether primary judge erred in entertaining proceedings without an identified defendant – UCPR 6.1A – Whether primary judge erred in entertaining proceedings in the absence of compliance with Schedule J of the Supreme Court Rules - WORDS AND PHRASES – "Reasonable grounds for suspicion" – "Reasonable grounds for belief"

LIMITATION OF ACTIONS – Application for extension of time - Consideration of strength of claim - Delay - Prejudice - discretionary factors under Limitation Act 1969 - EQUITY - Fiduciary duty - Whether conduct constituting assault capable of constituting a breach of fiduciary duty – Alleged sexual abuse of child by employees of Department of Community Services

Procedure -subpoenaed documents - use for collateral purpose - implied obligation - need for leave - preliminary discovery - application of r 5.3 UCPR.

PROCEDURE - defendants apply for security for costs - proceedings initiated by liquidator - potential personal liability of liquidator for costs - liquidator party to litigation funding agreement - funder's promise to indemnify liquidator against costs orders - agreement terminable by funder - liquidator willing to undertake to court to inform defendants of termination or threatened termination - whether liquidator should also give undertaking to ensure defendants have benefit of indemnity

PROCEDURE - miscellaneous procedural matters - solicitor's retainer - challenge to retainer on basis that no valid corporate action of corporate party - whether determination of challenge should be deferred - onus of proof - CORPORATIONS - title to shares - shares bequeathed by will - who may be recognised by company as entitled to become holder in place of deceased holder - CORPORATIONS - internal management - purported meeting of members resolves to remove a director and appoint another director - only one member participating - whether valid resolution - whether purported appointment non-existent or merely defective - SUCCESSION - devolution of shares in company on death of registered holder

CORPORATIONS - winding up - statutory demand - two demands by same alleged creditor - applications for orders setting aside demands - originating process contains claim for order in respect of one demand and claim for order in respect of other demand - single alleged offsetting claim advanced as ground for both orders - whether procedure regular

LEGAL PRACTITIONERS - readmission to practice - after being struck off - whether fit and proper person to be readmitted - where plaintiff has not discharged debts to Fidelity Fund to extent of full capacity to do so

CRIMINAL LAW - appeal against severity of sentence - pleas of guilty - armed robbery - knowingly deal in proceeds of crime - conduct dealings to avoid reporting requirements - whether presence of firearm treated as aggravating factor - whether failure to sentence in accordance with s 44(1) Crimes (Sentencing Procedure) Act 1999 - whether manifestly excessive - failure to comply with s 44(1) directive a technical error - sentence re-formulated - appeal dismissed

CRIMINAL LAW - appeal against severity of sentence - series of offences - use false instrument - disposal of stolen property - additional offences - obtaining benefits by deception - stealing - pleas of guilty - discount for past assistance against co-offenders - no discount for offered future assistance - fresh evidence of significance of the assistance - whether allowance should have been made for future assistance - magnitude of offending - leave granted to appeal - appeal dismissed

INTERLOCUTORY JUDGMENT - admissibility of evidence - whether tendency evidence - appeal by Crown against exclusion of evidence - Criminal Appeal Act 1912, s 5F(3A)

CRIMINAL LAW - appeal against severity of sentence - supply prohibited drugs - pleas of guilty - objective seriousness of the offence - whether insufficient weight given to subjective circumstances - utility of statistics on sentencing - appeal allowed

CRIMINAL LAW - Practice and Procedure - Use of Road Map or Chronolgy - Documents that may be presented to Jury during Crown opening - Unfairness to accused in Crown opening - Judge's Direction to Jury at commencement of a trial - Whether it is appropriate to give the Jury written directions at the outset - Directions re Terrorist Act