Cases and authorities

COMMON LAW - application to set aside dismissal order - discretionary considerations

WILLS AND PROBATE – informal wills – testator did not sign in the presence of both witnesses – clear that document was intended to operate as a will and embodied the testamentary intentions of the deceased - WILLS AND PROBATE – rectification – clause distributing corpus was removed by testator in preparing a new will without legal advice – clear evidence that testator intended corpus to pass in the same proportions as income – clear evidence that testator intended to remove period postponing distributions of capital stipulated in previous wills – will rectified

Revocation of portion of reasons - Slip Rule

CRIMINAL LAW – grievous bodily harm – intent to cause grievous bodily harm – Crimes Act 1900(NSW) ss 33, 428A-428I – whether inference can be drawn from seriousness of wounds - CRIMINAL LIABILITY AND CAPACITY – intoxication – direction as to intoxication – whether misdirection as to intoxication – Criminal Appeal Act 1912 (NSW), s 6(1) – Criminal Appeal Rules, r 4 - INTOXICATION – capacity to form specific intent.

CRIMINAL LAW – Crown appeal against sentences – Armed robbery – Aggravated car-jacking – Robbery armed with a dangerous weapon – Specially aggravated break, enter and steal – Whether sentences manifestly inadequate and fail to reflect objective criminality – Whether sentencing judge improperly departed from guideline judgment for armed robbery (R v Henry) – Whether aggregate sentence fails to reflect totality of criminality (Pearce v The Queen) – New sentences imposed and start dates adjusted

CRIMINAL LAW – appeal s 5F(3) – demurrer/application to quash counts in indictment – jurisdiction – applicant not arraigned on indictment. - CRIMES ACT – perverting the course of justice – definition s 312 meaning of “administration of the law” in offence in s 319 – statutory interpretation – assumption against extending the scope of a penal statute

SENTENCING – error in sentencing – not corrected by trial judge –inconsistencies in reasons for sentencing – how court of criminal appeal should address error – whether setting lesser sentence warranted in law – Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 – Criminal Appeal Act 1912 (NSW), s 6(3) - SENTENCING – relationship killings – setting of sentence for murder of young child – calculation of non-parole period and balance of sentence on parole – whether special circumstances justify higher balance of sentence – questions of accumulation – questions of totality – whether sentence proportionate to overall criminality – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 - SENTENCING – standard non-parole period – when court should set standard non-parole period – whether offence in middle of range of objective seriousness – whether aggravating or mitigating factors – table of “standard non-parole periods” – whether conditions of imprisonment should be considered – relationship killings – murder of young child – comparison with life imprisonment – Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54, 54A, 54B, Part 4, Div 1A - WORDS & PHRASES – “middle of the range of objective seriousness” – “objective seriousness of the offence” – “standard non-parole period”

Criminal Law - sentencing - special circumstances - extent of adjustment to statutory ratio - sentencing discretion

CRIMINAL LAW – Appeal against conviction – Malicious wounding with intent to inflict grievous bodily harm – Conduct of prosecutor in addressing the jury – Whether prosecutor’s comments were improper and prejudicial – Whether prosecutor’s submission not based on the evidence – Whether prosecutor conveyed personal opinion – Whether prosecutor encouraged impermissible line of reasoning – Whether prosecutor belittled and disparaged the defence case

PROCEDURE – APPEALS – Application for leave to appeal – insufficient prospect of success.

PROCEDURE – COSTS – Preliminary application for discovery – Order for costs against respondent to application – Whether error shown.

JUDGMENT AND ORDERS – Consent order – Application for leave to appeal – Undue influence alleged – Need for separate proceedings.

CRIMINAL LAW – Appeal against conviction – Murder – Whether necessary for trial judge to detail defence case in summing-up – Whether trial judge misstated evidence as to cause of death – Whether trial judge in error in not leaving self-defence and provocation to jury – Not necessary to direct on a particular issue unless raised by the evidence – Whether trial judge failed to properly direct the jury in relation to accident – Distinction between accident and relevant intention – Application of Rule 4 Criminal Appeal Rules – Application of Proviso - CRIMINAL LAW – Appeal against sentence – Whether sentencing judge erred in setting standard non-parole period

PRACTICE AND PROCEDURE - application for expedition of appeal - applicant restrained by injunction from engaging in certain employment said to be in breach of restraint of trade clause - risk of loss of livelihood to applicant if expedition not granted.

EVIDENCE - admissibility and relevancy - client legal privilege under Evidence Act 1995, s 119 - whether lost through disclosure within s 122(2) or s 122(4) - various dealings with privileged document over a period of several years - assessment of those dealings - WORDS AND PHRASES - "disclosed"

PRACTICE AND PROCEDURE - confidential information - objection to expert witness having access to confidential information - whether expert witness prevented from access by likelihood of working for trade rival in future - whether justifiable concern that confidentiality be lost - availability of alternative expert - whether contractual undertaking as to confidentiality sufficient to protect confidential information - whether substantial injustice - form of confidentiality regime - costs.

CRIMINAL LAW - accused charged with murder and arson - inquiry into fitness to be tried - accused fit to be tried

CORPORATIONS - winding up - application for winding up in insolvency - reliance on s 459C(2)(a) presumption of insolvency alone - non-compliance with statutory demand not shown - application for order setting aside statutory demand duly made and undetermined - in any event, alleged non-compliance more than three months before filing of winding up application - winding up application devoid of prospects of success

Practice and Procedure - Costs - Indemnity costs ordered where counsel required to return briefs with new counsel being briefed

SENTENCING – two counts of supply commercial quantity of ecstasy – appeal against sentence said to be disproportionate to comparable co-offender – parity – whether applicant and co-offender truly comparable – whether sentence gives rise to a reasonable sense of grievance – no disparity demonstrated – SENTENCING - offences with common features but separate and distinct in time - whether sentencing judge erred in failing to order that sentences be served concurrently - accumulation of one year –– two separate acts of serious criminality – partial accumulation of one year not erroneous – appeal dismissed

PRACTICE & PROCEDURE – Payment into court – UCPR r 25.3 - PRACTICE & PROCEDURE – Freezing order – UCPR r 25.11 - LOCAL GOVERNMENT – Development consent – Monetary contribution – Payment while application to modify and appeal pending - WORDS & PHRASES – “Fund” – UCPR r 25.3(3)

CONTRACT - whether concluded agreement made - binding agreement although to be later supplemented by refinement or agreement on other matters - on facts, was concluded agreement - DAMAGES - wrongful dismissal - income earned during period for which was entitled to notice - whether onus on employee to prove income as part of proving loss - or on employer to prove - onus on employer.

ADMINISTRATIVE LAW – judicial review – alleged invalidity not made out – relevant considerations – irrelevant considerations – orders refused - TRADE PRACTICES – misleading and deceptive conduct – unconscionable conduct – no loss or damage – no relevant unconscionability

INTERLOCUTORY APPLICATION – interim management of two businesses owned by former couple – where de facto relationship disputed – where one business (OSP) run by corporation (Ativa) in which couple were shareholders and directors and other (DCA) arguably a partnership – where personal relationship has irretrievably broken down – where interlocutory regime already in place for interim management of businesses with female partner having control of OSP and male of DCA – where male partner applies for interim control of OSP – principles applicable on dissolution of partnership – whether female partner had mismanaged OSP and/or failed to conduct it openly and impartially – whether male partner should be given control of OSP – where corporation was insolvent or approaching insolvency – where there was reason to doubt the ability of either partner to manage the business impartially and transparently – where both partners had prima facie preferred his or her own interests to those of corporation and creditors – whether provisional liquidator should be appointed – whether male partner should be required to seek leave before filing further notices of motion – whether sufficient reason to alter current regime for interlocutory management – whether female partner should have greater visibility of DCA business – whether parties should be ordered to release rental bond of premises leased by both businesses to lessor.

CRIMINAL LAW AND PROCEDURE - Application for directed acquittal on two of three counts in indictment

NEGLIGENCE – duty of care – scope – medical practitioner has no duty to beneficiary of will of deceased patient in relation to advice to court of deceased’s capacity - STATUTE OF LIMITATIONS – “negligent” act complete more than six years prior – statute barred - JUDGES AND COURTS – witness immunity – complete indemnity for contents of letters provided by doctor to court or legal practitioner on capacity of deceased patient to execute will - PRACTICE AND PROCEDURE – separate questions answered

Family Law. Costs of application under Property (Relationships) Act 1984. Principles applicable where a party is in default under the duty to disclose their financial circumstances.

ADMINISTRATIVE LAW - appeal or judicial review - decision of the President of the Board declining to accept a complaint - discretionary power

CONTRACT - CONSTRUCTION - compromise of contentious probate proceedings - meaning of clause relating to distribution of proceeds of realisation of estate

INSURANCE – professional indemnity insurance – construction of contracts of insurance – whether loss arose out of design fault or construction work – exclusion of liability - INDEMNITY – whether grant of indemnity an admission of liability - whether payment under co-ordinate policy extinguished rights against underlying insurer - WORDS & PHRASES – meaning of “paid” - PRACTICE & PROCEDURE - duty of parties to co-operate and be clear as to issues in litigation, especially in the Commercial List.

EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience.

SUBPOENA FOR PRODUCTION OF COMPUTER IMAGE – WARRANT ISSUED FOR ARREST OF POLICE OFFICER –subpoena addressed to “South Australia Police” – not a “person named” as required by provisions of Part 3 of the Criminal Procedure Act 1986 – nil return on subpoena – warrant issued by Magistrate for arrest of a police officer invalid – statutory conditions prescribed by s.229 of the Criminal Procedure Act for issue of a warrant not established – not open to Magistrate to be “satisfied” of matters specified in s.229(2)(a) and (b) of the Act – onus of proof with respect to the issue of a warrant for arrest – no application before the Magistrate for the issue of a warrant as required by s.229(1) of the Act – no evidence to establish “no just or reasonable excuse” offered for the failure to comply – provisions of s.229 of the Act require an opportunity to establish “just and reasonable excuse” – Magistrate in breach of requirements of procedural fairness in refusing adjournment sought on behalf of South Australia Police – subpoena not issued in compliance with the Act – warrant for plaintiff’s arrest invalid – order that warrant be quashed.

COMMON LAW - appeals from General Division of Local Court - leave - extension of time - discretion - setting aside default judgment

CORPORATIONS - deregistered company - application for order that ASIC reinstate registration - applicant wishes to pursue proceedings against company in Dust Diseases Tribunal - whether plaintiff may proceed direct against insured without reinstatement of company's registration - not shown that he can - various factors relevant to whether reinstatement "just" - company in liquidation immediately before deregistration - need to re-install liquidator - former liquidator should be appointed unless unable or unwilling to act

CORPORATIONS - winding up - statutory demand - application for order setting aside - Local Court judgment entered following lodgment of certificate of assessment of costs - judgment in favour of two persons - statutory demand issued by one of those persons in respect of debt to that person only - whether genuine dispute as to existence of debt

CRIMINAL LAW – Application for leave to appeal – Refusal by trial judge to sever one count from others in the indictment – Whether possible error shown.

CRIMINAL LAW – appeal - miscarriage of justice – competence of counsel - failure of counsel to object to irrelevant and prejudicial evidence – evidence that portrayed appellant as violent, sexually predatory and a child molester – failure of counsel to seek direction from trial judge in relation to prejudicial evidence – whether omissions were a tactical decision of defence counsel – failure of trial judge to apply the Evidence Act 1995, s 137 – failure to trial judge to direct jury in respect of irrelevant and prejudicial evidence - denial of fair trial amounted to miscarriage of justice – unsafe and unsatisfactory verdict – new trial ordered

Practice and procedure - Plaintiff succeeds in substantial commercial list proceedings obtaining judgment in the sum of $5,000,333 plus interest - Defendant succeeds before Registrar in application to pay judgment debt in instalments over a period of two years under rule 37.3 Uniform Civil Procedure Rules 2005 - Plaintiff applies by notice of motion under rule 37.3 for rescission or variation of instalment order - Proceedings before Court by hearing de novo - Consideration of genealogy of provisions for payment by instalment orders - Principled approach to exercise of relevant discretion - Prima facie entitlement of party having succeeded in obtaining substantial success in major commercial litigation to be in a position to enforce the Court's order - Particularly special circumstances required to be shown to deny a successful party its entitlement to enforce a court order

[CONTRACT] - Contract to develop land into retirement village - lengthy process of preparation - land to be purchased from the Commonwealth - whether Commonwealth entitled to make demands on first defendant - whether first defendant entitled to terminate Heads of Agreement with plaintiff when Commonwealth purported to terminate agreement with the first defendant - whether Commonwealth and first defendant conspired to terminate plaintiff's agreement with first defendant - whether Commonwealth interfered with a contractual relationship between first defendant and the Commonwealth.

CONTRACT - Insurance - Other Disability Income - Workers Compensation, Workcare, Accident Compensation or similar State or Federal legislation - Disability Support Pension - Calculation of Interest - Date from which “it was unreasonable for the insurer to have withheld payment”

STAMP DUTY – Duties Act 1997 – insurance duty – premiums paid to London underwriters – underwriters not registered or authorised under the Insurance Act 1973 (Cth) - restrictive definitions of premium and insurer in Duties Act - no contrary intention disclosed - duty not payable.

CORPORATIONS - bodies corporate other than companies and associations - co-operative registered under Co-operatives Act 1992 - co-operative planning to propose compromise or arrangement between itself and its members - need to submit compromise or arrangement to special ballot of members for approval by special resolution - court asked to appoint date for hearing of application for order approving compromise or arrangement - various questions arising as to formulation of compromise or arrangement and steps to place it before members - whether court should give advisory opinion on those questions

COSTS - Offer of compromise by plaintiff before trial - Judgment reduced on appeal - Reduced judgment greater than offer - Effect of offer on costs of appeal

COSTS - Calderbank offer by defendant before trial - Costs of litigation disproportionate to claim - Defendant successful on appeal - Order for indemnity costs of trial

ASSOCIATIONS AND CLUBS - incorporated associations - application for winding up order on grounds of insolvency - non-payment of one debt only proved - insufficient to establish insolvency - reliance also on just and equitable ground - substratum dissipated

COSTS – indemnity costs claim based on unfairness of behaviour of “model litigant” – no relevant unfairness – claim rejected – claim for costs on unsuccessful claim cross-vested – reasonableness of claim – effective cost savings as a result – claim rejected

COSTS – ordinary rule that costs follow the event – impecuniosity insufficient of itself to overcome general rule – public funds – combination of factors overcome ordinary rule – each party bear their own costs

CONTRACTS - possession of land - mortgages - express and implied terms of contract - whether supply of Lenders Certificate under Exceptional Circumstances Grant Scheme operates as condition precedent - whether failure to supply Lenders Certificate constitutes unconscionable conduct - estoppel

INSURANCE – Home Building Act 1989 – statutory insurance – policy provided indemnity for loss where notification is made within six months of indemnified party becoming aware of such loss, but not after the expiry of the seven year period – whether policy complied with Act - successors in title entitled to benefits of statutory warranties. - DAMAGES – residential building contract – loss arising from construction not in accordance with contract, plans and specifications – rectification – remedial work must be necessary to produce conformity with the contract and reasonable in the circumstances. - PRACTICE – referee’s report – variation – referee’s findings should not be re-agitated in court where conclusion open to the referee on the evidence – whether referee forms an interim or tentative view and proposes to change that view, natural justice requires the parties be informed.

Equity - Application for appointment of a receiver in relation to joint venture for development of land - Principles - Appointment of receiver by interlocutory order - No need for a proprietary interest - Joint venture - Breach of court orders - Breach of interim agreement - Sale of property to related entities - Property of the joint venture in jeopardy - Damages not an adequate remedy - Appointment of receiver not financially ruinous - Impact of receivership on third parties - Parties not cooperating - Specific performance not appropriate - Indemnity costs application