Cases and authorities

APPEAL FROM LOCAL COURT - error of mixed fact and law - appeal out of time - leave to set aside default judgment

PRACTICE – Application further to amend statement of contentions – adequacy of statement of contentions – whether statement notifies opposing party of the case to be made against it. - DAMAGES – “Prudential” principle – shareholders cannot recover damages reflective of a loss suffered by a company – shareholders may recover damages for a loss which the company would not have sustained itself – shareholders in their capacity as guarantor of a company’s obligations may recover damages for loss. - DAMAGES – Conspiracy – actual pecuniary loss must be established to recover damages – damages for injury to reputation can not be awarded in an action for conspiracy – plaintiff may recover damages for physical injury where conspiracy is proved.

SUCCESSION - TESTAMENTARY CAPACITY - testatrix gravely ill in hospital - while in hospital will made changing previous will - whether testatrix had testamentary capacity

Criminal law - direction to jury on lies evidencing consciousness of guilt - where not part of prosecution case - risk of misunderstanding by jury - necessity to eliminate risk of circular reasoning.

Criminal law - Statutes - whether proceedings statute barred - Statutes - interpretation - legislative history of Police Act 1990 - rules of construction - mischief to be remedied - consideration of extrinsic materials - Second Reading Speeches

CRIMINAL LAW – Sentencing – Crown appeal – Manifest inadequacy of sentences – Sexual intercourse with child under 16 – Acts of indecency with child under 16 – Possession of child pornography – Using child for pornographic purposes – Sentences imposed to be served concurrently and partially concurrently – Whether structuring of sentences failed to reflect number and seriousness of offences – Whether total effective sentence reflected totality of criminality involved in offences

CRIMINAL LAW – Appeal against sentence – Manslaughter – Robbery armed with a dangerous weapon – Principle of totality – Guideline judgment R v Henry – Discount for voluntary disclosure of offence R v Ellis – Delay in sentencing process – Special circumstances by reason of mental illness – Principles relevant when sentencing offender who is suffering from mental illness – Prior ‘criminal history’ of accused – Whether sentencing judge erred in taking into account previous verdicts of not guilty by reason of mental illness – Whether previous verdicts of not guilty by reason of mental illness capable of disclosing continuing disobedience to the law – Utilitarian value of guilty plea – Characterisation of seriousness of robbery offence – Whether robbery could be characterised as a planned offence – Whether lesser sentence warranted in law

SENTENCING - malicious wounding - robbery in company - co-offender - partial accumulation - disparity - applicant's psychological condition

WORKERS' COMPENSATION - Alternative rights - Whether damages recovered - Whether rights to compensation lost

COURTS AND JUDGES – bias – disqualification – apprehended bias – positive finding of credit in liability hearing – did not disqualify judge on assessment

CORPORATIONS - winding up - application for appointment of provisional liquidator - whether "urgency" - whether "suspicious circumstances" - whether intrusive appointment warranted

CRIMES (SERIOUS SEX OFFENDERS) ACT: - application for continuing detention order - only issues length of order, terms of conditions

TRADE AND COMMERCE - sale of business - misrepresentation - whether misrepresentations made - whether plaintiff relied on misrepresentations - defendant liable - damages assessed

CASE MANAGEMENT – orders consequential upon an application by several plaintiffs in related proceedings further to amend their statements of claim – on plaintiffs' application order pursuant to UCPR rule 28.2 for separate hearings on questions of liability and quantum

NEGLIGENCE - child struck by car - driver does not stop - claim against Nominal Defendant and Local Council - hearing as to liability only - content of duty of care - whether breach of duty of care established - causation.

CRIMINAL LAW - Detention of accused for the purposes of a terrorism offence - Procedures involved in making application for an extension of time of detention period - Whether false information had been provided to a Magistrate in support of an application for an extension of the investigation period - Whether the police failed to inform.the accused of his right to speak with a Magistrate in connection with the extension application - Whether police failed to comply with the provisions of s 23E(4) and (5) of the Crimes Act 1914 (Cth) - Applications for extension of time under s 23D or 23DA by telephone - Whether a person under arrest must be informed of his or her right to make representations to the judicial officer prior to the making of the application or prior to its being heard - Proper construction of s 23E(2) of Crimes Act 1914 (Cth) - Further requirement that the judicial officer who extends the investigation period must notify the investigating official of the day and time when the extension is granted - Whether s 23E(4) requires the investigating official to complete and return to the judicial officer a document that accords with the order made by the judicial officer - Consequences of non-compliance with legislation. - CRIMINAL LAW - S 138 of Evidence Act 1995 - Principles applicable to exercise of discretion to exclude evidence obtained in circumstances where there has been a breach of the requirements of the Commonwealth Crimes Act 1914.

CHURCHES AND RELIGIOUS ASSOCIATIONS [32]- Trust devoting property for church- Whether may be altered by subsequent practice- How far, if at all, acquiescence by another archbishop can bind successor.

CRIMINAL LAW - Application to exclude statement made by accused at time arrest - Admissions influenced by oppressive conduct - Principles applicable to construction of s 84 Evidence Act 1995 (NSW) - Meaning of oppressive conduct.

CORPORATIONS – insurance company – definition of insolvency – whether insurance liabilities are debts within the meaning of s 95A - whether a liability to pay unliquidated damages is a debt within the meaning of s 95A – conflict of authority – bound to hold that liability to pay unliquidated damages is not a debt within the meaning of s 95A – contingent debts within s 95A even where s 459D does not apply - CONTRACT – reinsurance policies - indemnity – nature of liability under an indemnity – whether always a liability to pay unliquidated damages for failure to protect indemnified party from loss – indemnity in respect of paid losses in respect of a quantified sum – in certain circumstances the pre-Judicature Acts remedy was on a common count for money paid rather than damages – liability lies in debt - CORPORATIONS – solvency – use of hindsight to value insurance liabilities – insurance liabilities were debts within meaning of s 95A – reinsurer insolvent

CRIMINAL LAW - Applications for separate trial - Principles applicable to application - Circumstances where one accused has evidence admitted against him which is not admissible against the others.

CRIMINAL LAW - Application to exclude admissions made by accused on the basis of oppressive police conduct - Proper construction of s 84 Evidence Act 2005. - CRIMINAL LAW - Application to exclude from trial items removed during execution of a search warrant - Suggested breaches of ss 3K(3)(a) and (b) of Crimes Act 1914 (Cth) - Failure to notify the occupier of the premises from which items have been removed of the place and time at which the subsequent examination will be carried out - Failure to allow the occupier or his representative to be present during the subsequent examination - Proper construction of section. - CRIMINAL LAW - Breaches of ss 3K(3B) and (3C) - Failure to make application for extension of time in the name of the executing officer - Failure by executing officer to give notice of the extension application to the occupier - Failure to give adequate notice to occupier's solicitor - Proper construction of ss 3K(3B) and (3C) of Crimes Act 1914 (Cth). - CRIMINAL LAW - Alleged failure to give a copy of search warrant to a person in the position of alternate occupier - The requirements of s 3H of the Crimes Act 1914 (Cth) - Proper construction of section. - CRIMINAL LAW - Alleged breach of 3P of Crimes Act 1914 (Cth) - Failure to allow occupier or alternate occupier to be present during the search - Proper construction of section in circumstances where occupier has been arrested, detained and taken away from the premises. - CRIMINAL LAW - Proper construction of s 23G of the Crimes Act 1914 (Cth) - Failure to allow an arrested person to communicate with friend, relative and legal practitioner - Whether alleged failure capable of amounting to oppressive conduct - Whether any breaches of the accused's rights under the Crimes Act 1914 (Cth) had any bearing on his making the statement sought to be excluded. - CRIMINAL LAW - Applicability of ss 135 and 137 and 90 of Evidence Act 1995 - Whether statements should be excluded as being unfairly prejudicial or unfair to the accused. - CRIMINAL LAW - S 138 Evidence Act 1995 - Ambit of discretionary considerations and matters relevant to decision as to whether evidence should be excluded where breach has been established.

TRADE PRACTICES ACT – s52 misleading and deceptive conduct – sale of property – agent for vendor passed on representations that higher offers had been made – representation was false - whether agent liable – implied disclaimer

COSTS - No question of principle.

Mareva injunction - Freezing orders - Bankrupt - Trustee - Orders in personam - Reasonable legal expenses

CRIMINAL LAW - aggravated sexual assault in company - claim of miscarriage of justice from refusal to discharge jury - claim that trial judge left possible basis for conviction to jury which had not been relied upon by Crown - alleged error in refusal to withdraw picture identification evidence from jury - no error demonstrated - appeal against conviction dismissed - suggested error in use of evidence concerning appellant's psychiatric condition on sentence - no error established - appeal against sentence dismissed

CRIMINAL LAW - appeal against sentence - accumulation of sentences - Certificate under s166 Criminal Procedure Act

DEFAMATION – trial – whether jury determination that imputation the plaintiff was demented was not defamatory was one no reasonable jury could reach – whether jury determination that imputations not conveyed by publication was one no reasonable jury could reach – Defamation Act 1974 s 7A(3) - APPEAL AND NEW TRIAL – misdirection by trial judge – whether primary judge misdirected jury on the test for determining whether an imputation is defamatory – whether alleged misdirection led to a substantial wrong or miscarriage of justice – Uniform Civil Procedure Rules 2005 Pt 51.53 - APPEAL AND NEW TRIAL – non-direction by trial judge – whether substantial wrong or miscarriage of justice sufficient to warrant new trial order where trial judge did not direct jury on case not raised by party – Uniform Civil Procedure Rules 2005 Pt 51.53 - APPEAL AND NEW TRIAL – whether primary judge’s directions sufficient to cure submissions by respondents’ counsel – Uniform Civil Procedure Rules 2005 Pt 51.53 - LEGAL PRACTITIONERS – duty to the court – misdirection as ground of appeal – duty of counsel to specify at trial part of summing-up complained of and redirections sought. (D)

PRACTICE AND PROCEDURE – statement of claim – appeal from order striking out – pleading confusing, disjointed and unsupported by material facts – whether proceeding should be summarily dismissed – second plaintiff’s cause of action depended upon his beneficial ownership of property that remained vested in his trustee in bankruptcy – first plaintiff had previously not utilised an opportunity to replead and had no independent interest in the proceeding – proceeding dismissed - PRACTICE AND PROCEDURE – courts and judges – disqualification for bias – whether a fair-minded lay observer might apprehend that the judge might not bring an impartial mind to the disposal of the case on its merits – judge clearly right not to disqualify himself

LIMITATION OF ACTIONS - limitation period under Div 6 of the Limitation Act - construction of ss 50C and 50D - whether plaintiff knew or ought to have known the identity of party at fault - test to be applied - negligence

PROCEDURE [104] - Supreme Court procedure - Procedure under Rules of Court - Medical examination, inspection of property, etc - Ambit of material of which inspection should be permitted.

CRIMINAL LAW - Criminal Appeal Act s SF - Appeal against interlocutory judgment or order Kidnapping - Application for permanent stay of proceedings - Whether evidence was capable of constituting the elements of the offence of kidnapping - Detain for advantage – Whether victim was 'detained' - Whether necessary for victim to be aware that he or she is detained - Victim was unconscious - Whether victim's liberty was restrained - 'Detained' includes causing a person to remain where he or she is - Offence capable of being committed where victim is denied the assistance of other persons or where accused prevents other persons from rendering assistance -Whether offence proved on the facts a matter for jury

CRIMINAL LAW – Sentencing – Crown appeal – Manifest inadequacy of sentences – Assault with intent to rob s 97(1) Crimes Act – Sentenced to periodic detention – Whether delay in committal and trial process justified mitigation of sentences – Whether length and conditions of bail justified mitigation of sentences – Whether sentencing judge placed disproportionate emphasis on rehabilitation – Whether sentencing judge undervalued need for personal deterrence – Whether sentencing judge erred in finding age of offenders would lead to hardship if fulltime imprisonment imposed – Consideration of guideline judgment in R v Henry – Present offences at least as serious as those contemplated in guideline judgment

CONTRACT – Cost-plus contract – Authorised subcontractor – Where subcontractor a related company – Cost of services by subcontractor - DAMAGES – Claim in tort of deceit and misleading conduct – Loss pursuant to contract only – Relevance of contractual loss to breach of tort or statute - PRACTICE AND PROCEDURE – Referees’ report – Review and adoption of report – Exercise of discretion – Appeals – Principles to be applied

Motor traffic – driver licence – suspension – validity of notice of suspension – ambiguity. - Statutory instrument – validity – ambiguity – notice suspending driver licence – whether two periods of suspension specified.

SUCCESSION – family provision and maintenance – whether adequate provision made for widow – widow provided with a right of residence and the right to income from one-third of the estate until she marries or enters into a de facto relationship – widow has scant personal resources – widow contributed substantially as a homemaker – normally appropriate for widows to take house in fee simple – clearly inadequate provision - SUCCESSION – wills – construction – restraint of marriage – whether restraint was effective – gift of personalty – gift over – restraint effective

Leave sought by Attorney-General of the Comonwealth to appear in proceedings as intervener - if sucessful, application to set aside default judgment - circumstances in which intervention is permitted - whether service effective under the Foreign States Immunities Act 1985 (Cth) - default judgment obtained illegally or irregularly

Family Law. Application for adjustment under s 20 of the Property (Relationships) Act 1984 and a claim for maintenance under s 27 of the Act. - Order for adjustment made. No order for maintenance. No matter of principle.

CONVEYANCING [269]- Judgment debtor transferred certain property to family members prior to bankruptcy- Judgment creditor seeks to set aside transaction under s 37A Conveyancing Act 1919- Application made after debtor released from bankruptcy- Whether judgment creditor is a person prejudiced by transaction- Trustee in Bankruptcy lodged caveat to protect his position under ss 120 and 121 Bankruptcy Act 1966 (Cth)- Caveat not followed up- Whether caveat sufficient to trigger avoidance under s 37A- Held "No"- Transaction only defeasible if proceedings are taken to avoid it.

[INSURANCE] - [BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999] - construction of insurance policy - provision requiring insured to take reasonable precautions to safeguard subject matter insured from loss or damage - whether such provision is a construction contract between the insured and insurer

SUMMARY JUDGMENT - Constracts Review Act defence

APPEAL - Local Court Magistrate - money due under rental agreement - misrepresentation

STRIKE OUT - time to pay enforcement orders - Fines Act

CRIMINAL LAW - sentence appeal - conspiracy to import commercial quantity of prohibited drug - effect of discounts for assistance and plea of guilty - part played by applicant in conspiracy - whether applicant withdrew from conspiracy before arrest - parity principles - whether other sentence warranted in law.

PRACTICE AND PROCEDURE – Supreme Court procedure – where appellant seeks review of interlocutory decisions made in a Division of the Supreme Court in the Court of Appeal – where appellant does not seek leave to appeal in accordance with s 101(2)(e) Supreme Court Act 1970 – where appellant seeks to bring proceedings in the nature of a “case stated” – whether statute or general law entitled court to hear “case stated” – where appellant alleges judgments obtained by fraud – whether continuation of proceedings an abuse of process – where appellant seeks order varying or discharging decision of single judge of Court of Appeal – whether appellant pointed to error in decision – where appellant seeks other orders – where orders sought could only be made by Court of Appeal as ancillary to proceedings properly on foot

ENVIRONMENT LAW – Approval by Minister of concept plan pursuant to s 75O of the Environmental Planning and Assessment Act 1979 – Whether mandatory for Minister to consider the public interest – Whether mandatory for Minister to consider the principles of ecologically sustainable development – Whether approval void.

CARRIAGE BY AIR – carriers’ liability – Warsaw Convention – Montreal Convention – jurisdiction – meaning of “place of destination”

Family Law. Application for adjustment of property interests under Property (Relationships) Act 1984. Order for purchase and adjustment. No matter of principle.

PROCEDURE [497]- Interest on costs- Held that for interest on costs to be ordered there must be evidence of a very real loss on the part of the applicant being out of pocket for moneys advanced to its lawyers for a period of time-Lack of such material in present case- Decline to order interest. PROCEDURE [585]- Costs- Whether the successful defendant/cross-claimant should get costs of expert report- Report not relied on at trial- Contents of report inadmissible- Held that the costs of the report ought not form part of the successful defendant/cross-claimant's costs and that plaintiff/cross-defendant should have its costs of meeting that report. PROCEDURE [665]- Security for costs- Whether bank guarantees provided by plaintiff/cross-defendant as security for costs of trial should be released- Appeal forecast- If appeal is successful, there would be continuing possibility of a call on the bank guarantees for costs at first instance- Bank guarantees should remain in place pro tem.

CRIMINAL LAW - sentence - manslaughter - accessory after the fact to manslaughter - form 1 matters - entering dwelling house in company with intent to steal