Cases and authorities

COMMON LAW - appeal from Local Court - alleged misdirection - sale of goods - were issues raised - acceptance and loss of right of rejection

Crown appeal - manifest inadequacy of sentences imposed in Local Court for offences against s 53 of the Road Transport (General) Act 2005 - severe risk breaches - consignor of goods - discrete errors giving rise to questions of law - considerations to be taken into account on sentence - totality - second or subsequent offence - consideration of principle in O'Hara v Harrington - re-sentence.

[OPTIONS] - whether plaintiffs' pleaded method would have amounted to valid exercise of option - whether method would have been achievable in the circumstances - [COMMERCIAL AGREEMENTS] - whether agreement to enter into "similar" agreement in context of a suite of complex arrangements and agreements would have been achieved and/or enforceable/enforced - [NEGLIGENCE] - breadth of lawyers' retainers/duty of care - whether lawyers breached retainers/duty of care - [EVIDENCE] - expert evidence in professional negligence suits against lawyers - reasons therefor - scope of duty/standard of care

MISCARRIAGE OF JUSTICE – late introduction of expert evidence containing new material of a technical and specialist nature – unfair trial - CRIMINAL LAW – grievous bodily harm – really serious injury – whether facial fracture amounted to grievous bodily harm - CRIMINAL APPEALS – Criminal Appeal Act 1912, s 8(1) – miscarriage of justice – judicial discretion to order new trial – factors to be taken into account – discretion exercised against making an order for new trial

CONVEYANCING [151] - Land titles under the Torrens system - Powers of Court - New South Wales - Order that the Registrar General make a recording in a folio of the Register – Order to record a second mortgage lodged in registrable form.

SUCCESSION [335] – Family provision – Practice – Costs.

FAMILY LAW AND CHILD WELFARE [108] - Child welfare other than under Family Law Act 1975 (Cth) - Wards of Court - Supreme Court - Inherent jurisdiction to protect infants - Orders for Court’s consent to medical treatment of infants in lieu of parents’ consent - Whether order for wardship necessary.

CRIMINAL LAW - sentence - conceal serious offence - assault occasioning actual bodily harm - mitigating factors - assistance to the authorities - s 10 and s 10A Crimes (Sentencing Procedure) Act

ADMINISTRATIVE LAW - judicial review - decision of Former Liquor Administration Board - lease of hotel premises - poker machine entitlements - sale of business - application for approval for transfer of poker machine entitlements - whether transfer requires support of lessor - whether lessor has financial interest in hotelier's licence - whether poker machine entitlements purchased by lessee - transfer approved - grounds of review - whether misdirection as to effect of s 19(7) - whether irrelevant considerations taken into account - whether decision manifestly unreasonable - meaning of "purchased" in s 19(7) - whether contract for sale of business included sale of poker machine entitlements - right of lessee to sell poker machine entitlements - subjective intentions of parties to a contract - summons dismissed

Criminal law - identification - unreasonable verdict

CRIMINAL LAW – Appeal from sentence – Malicious wounding with intent to do grievous bodily harm – Whether sentence excessive – Whether sentencing judge erred in approach to standard non-parole period – Relevance of standard non-parole period when offender has pleaded guilty – Whether sentence was appropriate despite error – Whether special circumstances present – Applicability of principles in R v Fernando in relation to Aboriginality of the offender

CRIMINAL LAW – Appeal against conviction – Common assault – Sexual assault – Domestic violence – Prescribed sexual offence proceedings – Whether judge erred in allowing alternative arrangements for giving of evidence by complainant – Whether judge erred in declining to give a direction on circumstantial evidence – Whether verdict of jury unreasonable in the circumstances – Whether fresh evidence obtained after proceedings evinced a miscarriage of justice – CRIMINAL LAW – Appeal against sentence – Whether sentence in respect of common assault count excessive – Whether accumulation of sentences inappropriate considering Pearce v R

BAIL - review of trial judge's decision to grant bail following conviction before sentence

CRIMINAL LAW – corporate criminal liability – whether company capable of committing an offence – effect of section 16 of the Crimes (Sentencing Procedure) Act 1999 – meaning of section 10(1) of the Criminal Procedure Act 1986 - CRIMINAL LAW – corporate criminal liability – rules of attribution of criminal responsibility to a company – rejection of vicarious criminal liability absent statutory intervention – statutory construction of the offence of assault – whether assault an offence of absolute or strict liability - CRIMINAL LAW – corporate criminal liability – rules of attribution of criminal responsibility to a company – application of Tesco Supermarkets Ltd v Nattrass [1972] AC 153 – directing mind and embodiment of a company – whether admission of vicarious liability also an admission as to directing mind and embodiment – relevance of company purpose - CRIMINAL LAW – criminal offences – assault and battery – elements of assault and battery - EVIDENCE – credibility findings – failure to identify basis of adverse credibility findings - TORTS – intentional torts – assault and battery – defences – self-defence – Civil Liability Act 2002 – section 52(2) – onus of proof – elements of self-defence – two-stage inquiry – relevance of intent to injure to a claim of self-defence - TORTS – intentional torts – assault and battery – where injury occurred following the commission of separate offences by the plaintiff and defendant – Civil Liability Act 2002 – approach to section 54 – section 54(1) – whether conduct constitutes a serious offence – section 54(2) – onus of proof – section 53 – failure to explain why the failure to award damages would be harsh and unjust.

Costs - Indemnity costs - Principles

CRIMINAL LAW: - trial by judge alone - murder - circumstantial case

NEGLIGENCE – duty of care – failure to provide safe system of work – undercover police officer sustained psychiatric injury in the course of her undercover work – retired hurt on duty - allegation that defendant breached its duty of care by, inter alia, failing to train the plaintiff, failing to provide adequate counselling, exposing the plaintiff to excessive periods of undercover work or failing to re-integrate the plaintiff into mainstream policing in an appropriate way – admitted causal connection between that work and the psychiatric injury but breach of duty denied - no breach of duty found – CAUSATION – whether causal connection between plaintiff's psychiatric injury and any breach of duty – injury caused absent the allegedly tortious conduct – LIMITATION OF ACTION – extension of limitation period by reason of psychiatric condition – s 52 Limitation Act 1969

DEFAMATION - order sought for dismissal of proceedings as an abuse of process - repetition and republication - joint tortfeasors - whether damages previously recovered in respect of the same damage - distinction between "damage" and "damages" - recovery of additional damages precluded under s 5(1)(b) of the Law Reform Miscellaneous Provisions Act 1946

CIVIL LAW - Injunction to restrain media from publishing a broadcast on its national news program - Contempt of Court - Principles applicable to restrain threatened contempt of Court.

PRACTICE AND PROCEDURE – application to stay proceedings – wife’s interest in matrimonial home forfeited to the Commonwealth under Proceeds of Crime Act – principal proceedings brought by Commonwealth seeking appointment of trustees for sale – collateral proceedings instituted by applicant – basis of relief that would justify a stay not presently sought on summons in collateral proceedings – policy of the Act is that forfeited property is to be disposed of as soon as practicable – no prejudice to Commonwealth – stay granted conditional upon applicant amending relief sought to include ground justifying stay

Criminal law - sentencing - break, enter and commit serious indictable offence contrary to s 112(1) Crimes Act 1900 - pursuit of domestic partner - attack on partners father - sentence not manifestly excessive.

CHURCHES AND RELIGIOUS ASSOCIATIONS – internal investigation into sexual misconduct allegations in respect of children – whether denial of natural justice in investigation of complaints – whether procedural fairness required to effect valid dismissal - CONTRACTS – breach of contract – whether breach because of termination without reasonable notice – whether breach of implied term of good faith, mutual trust and confidence through conduct of investigation relating to sexual assault allegations in respect of children – whether absence of face-to-face interview with principal witness constituted breach of contract - CONTRACTS – oral employment contract – whether implied term of good faith, mutual trust and confidence – whether implied term extends to manner of dismissal and actual dismissal - COSTS – whether costs follow the event – appellant successful on some issues at trial, but not on appeal – where no application made to trial judge - DAMAGES – heads of damage – causation – remoteness – whether costs of unfair dismissal proceedings in Industrial Relations Commission recoverable – whether costs of hiring public relations consultant recoverable – whether damages available for the manner of a wrongful dismissal and distress – whether damages for injury to reputation, humiliation and injury to feelings recoverable –definition of injury to reputation – difference between damages for breach of contract and for tort – Industrial Relations Act 1996 (NSW) s 181(2)(c) - DAMAGES – mitigation – where mitigation costs higher than damages for loss flowing from breach – whether Industrial Relations Commission proceedings reasonable attempt at mitigation – whether proceedings directly related to breach of contract – whether hiring public relations consultant reasonable attempt at mitigation – Industrial Relations Act 1996 (NSW) s 181(2)(c) - EMPLOYMENT LAW – oral employment contract – terms of employment – whether implied term of good faith, mutual trust and confidence – content of implied term – whether implied term breached through constructive dismissal - EMPLOYMENT LAW – termination – differences between statutory relief for unfair dismissal and common law test for summary dismissal – proceedings before Industrial Relations Commission – whether termination of employment without reasonable notice – Child Protection (Prohibited Employment) Act 1998 (NSW) ss 6, 8 – Commission for Children and Young People Act 1998 (NSW) Part 7 - OMBUDSMAN – responsibilities – scope of mandate – monitoring steps taken in relation to sexual misconduct allegations in respect of children – Ombudsman Act 1974 (NSW) ss 25A, 25B, Part 3A - WORDS & PHRASES – “injury to reputation”

PROCEDURE – Review of decision of single judge of appeal – Whether error shown.

CRIMINAL LAW AND PROCEDURE - Application by Crown to cross examine prosecution witness

COMMON LAW - extension of time and stay - denial of natural justice

CIVIL LAW - Injunction to restrain media from publishing a broadcast on its national news program - Contempt of Court - Principles applicable to restrain threatened contempt of Court.

PRIVATE INTERNATIONAL LAW – Stay of proceedings – Claimant sought order for specific performance of alleged agreement for sale of manuscript copy of Holy Koran – claims in alternative for breach of warranty of authority and negligent misstatement – Opponents filed Notices of Appearance – Choice of law – lower court found proper law of alleged contract and law governing claim in tort was law of Brunei – Art 84B Constitution of Brunei conferred immunity from suit on the Sultan in a personal and official capacity and on persons acting on behalf or under the authority of the Sultan in an official capacity – Court declined to exercise jurisdiction on grounds of clearly inappropriate forum – appeal – source of power of the Court to stay proceedings – power of court to dismiss proceedings which are oppressive, vexatious or an abuse of process – meaning to be attributed to “oppressive” and “vexatious” – relevant connecting factors – legitimate personal or juridical advantage – s 67 Civil Procedure Act 2005 – r 11.7 and r 12.11 Uniform Civil Procedure Rules – Part 10 r 6A and Part 11 r 8 Supreme Court Rules 1970 – whether r 11.7 UCPR imports principles of forum non conveniens as articulated from time to time in Australian law – whether constitutional immunity substantive or procedural for choice of law purposes – relevance of purposes for which distinction between substantive and procedural is made for choice of law purposes – significance of expert evidence as to substantive nature of immunity under law of Brunei – whether history and rationale of immunity is such that it has no relevant application outside the Courts of Brunei – whether unavailability of alternate forum for bringing proceedings was a decisive consideration against a finding of clearly inappropriate forum – whether unavailability of alternative forum amounts to legitimate juridical advantage – whether likelihood that substantive proceedings would require interpretation of a foreign constitution was a factor weighing against continuation of proceedings – legitimacy of bringing the substantive proceedings in New South Wales

EQUITY – Fraud committed on plaintiff by third party – Proceeds of fraud impressed with trust – Proceeds of fraud received by defendant – Whether defendant bona fide purchaser for value without notice – What interest in proceeds acquired when value given without notice – Effect of subsequent notice before full beneficial interest in proceeds acquired. - BILLS OF EXCHANGE – Cheques – Effect of crossing cheque “not negotiable” – Whether defendant acquires rights of a holder in due course.

Workplace Injury Management and Workers Compensation Act 1998 - Assessment of Whole Person Impairment - Leave to Appeal sought from Medical Assessment Certificate of Approved Medical Specialist out of time - Meaning of "Special Circumstances" in s 327(5) - Meaning of "additional relevant information" in s 327(3)(b) - Relief under s 69(4) of Supreme Court Act directed to Registrar - Court not to assume role of decision maker - Registrar decides issues of special circumstances and whether prima facie or arguable case of assessment being made on basis of incorrect criteria having regard to AMA5 Guides under 2 327(3)(c) - No arguable case of demonstrable error on the face of the certificate.

CORPORATIONS – remedies – compulsory buy-out order – valuation of shares – factual matters concerning share valuation - CORPORATIONS – remedies – compulsory buy-out order – valuation of shares – relevance of offer – offer exceeded market value – offer relevant even though not capable of acceptance giving rise to a binding contract – full circumstances regarding offer unclear due to defendant’s conduct – valuation made on the basis of value contained in offer - CORPORATIONS – remedies – compulsory buy-out order – valuation of shares – relevance of capital gains tax liability – underlying asset would incur substantial CGT upon sale – valuation to be made on the basis of a notional realisation of the company’s assets – future CGT liability to be taken into account

FORENSIC PROCEDURE - whether reasonable grounds exist to believe that proposed procedure might produce evidence tending to confirm or disprove that suspect committed offence - whether magistrate applied correct test - whether magistrate gave adequate reasons for decision

Murder - specially aggravated kidnapping - two victims - dispute about offender's role - pleas of guilty - standard non-parole period - question of totality - consideration of sentence imposed on co-offender

Employee misappropriates funds of employer and places these funds in joint bank accounts held with husband from whom she is separated - Husband's access to statements of account and control of accounts - Whether benefit to him - Whether failure to look at bank statements constitutes fault, rendering him liable to reimburse the employer

TRADE & COMMERCE [143]- Plaintiff as financier and lessor entered into agreements with various defendants leasing pizza ovens and associated equipment for the term of 60 months- Plaintiff bought lease property from suppliers who falsely represented to the defendants that there is a "6 month trial period"- An ineffectual deed of assignment proffered later- Defendants after 6 months sought to be released from their obligations- Trade Practices Act 1974 (Cth) s 73- Whether plaintiff as "linked credit provider" is liable- Suppliers must be corporations- Prices of two separate identical items in one single transaction ought not be aggregated in determining whether it is a consumer sale- Inference drawn that supplier regularly referred persons to the plaintiff for credit- Section 73 does not empower the court to rescind the lease- Defendants' loss suffered is the amount payable to the plaintiff under the lease.

Contract - Construction - Express obligation to take reasonable steps to give effect to agreement and to provide reasonable assistance - Obligation the same in substance as an obligation to use ‘best endeavours’ - Obligation to use 'best endeavours' does not require person who undertakes obligation to go beyond the bounds of reason but requires that he do all he reasonably can in the circumstances to achieve the contractual object, but no more - Content of obligation to provide 'reasonable assistance' - Interdependent contractual provisions - Derivation of duty to cooperate - What is reasonable will turn on the particular circumstances - Implied obligations of good faith - Causation

CRIMINAL LAW - application under s 78 Crimes (Appeal and Review) Act 2001 - Federal offence - conspiring to import commercial quantity of cocaine - scope of power under s 79(1) concerning Federal offence - whether ground raises question of doubt as to guilt

AMINISTRATIVE LAW - Workers Compensation - judicial review - medical dispute - assessment of permanent impairment - Medical Assessment Certificate - proportion of permanent impairment attributable to previous injury - 100% deduction for previous injury - rights of appeal against assessment by approved medical specialist - demonstrable error - role of Registrar - Registrar satisfied that ground of appeal made out - meaning of "demonstrable error" - whether failure by delegate to give proper or adequate reasons - appeal to Appeal Panel - review of decision by the Appeal Panel - fresh Medical Assessment Certificate - 10% deduction for previous injury - test to permit appeal and role of Registrar under amended s 327(4) - no error on the face of the record - no jurisdictional error - summons dismissed

PRACTICE AND PROCEDURE - Plaintiff amends pleading after Associate Judge summarily dismisses several pleaded claims - Court hears application to strike out amended pleadings - judgement reserved - application made for Court to defer giving reasons and to adjourn proceedings - Plaintiff now wishes to appeal from decision of Associate Judge - Court declines to defer delivery of reasons on strike-out application - adjournment refused

CRIMINAL LAW – Crown Appeal – Criminal Code 1995 (Cth) – Dishonestly obtaining a financial advantage from a Commonwealth entity – Challenge to direction by sentencing judge that offender be released on recognizance – Whether period of imprisonment before recognizance release manifestly inadequate – Relationship between head sentence and period provided in recognizance release order

CRIMINAL LAW - appeal against sentence - relationship between non-parole and parole periods under s44 Crimes (Sentencing Procedure) Act - comparison of sentences of co-offenders

CRIMINAL LAW – Serious sex offender – Application for continuing detention order – Crimes (Serious Sex Offenders) Act 2006 (NSW) – Whether primary judge erred in finding adequate supervision could be provided by an extended supervision order – Conditions of supervision order directed attendance at counselling if available – Whether judge erred in concluding funds were available for community based treatment – Whether order depended on availability of treatment – Whether supervision order will provide adequate protection for the community is a decision for the Court – Court will assume Executive will not make an irrational decision in relation to funding treatment in the circumstances – Whether judge erred in providing for supervision order when amenability to anti-libidinal treatment uncertain

COMMON LAW - summary dismissal of appeal from Local Court

PRACTICE - application for summary dismissal - whether Plaintiff's claim discloses a reasonable cause of action - whether release of a fiduciary also effects a release of a person who knowingly participates in the wrongful conduct of the fiduciary - constructive trust - indefeasibility of title to land.

PRACTICE AND PROCEDURE - claims in Statement of Claim under Trade Practices Act 1974 (Cth), Fair Trading Act 1987 and Contracts Review Act 1980 summarily dismissed by Associate Judge - Plaintiff thereafter given leave to serve Amended Statement of Claim - Defendants contend that repleaded claims constitute abuse of process - repleaded claims said to re-agitate dismissed claims - other paragraphs said to disclose no reasonable cause of action - "in trade or commerce" - internal communications - challenged paragraphs of amended pleading struck out

ADMINSTRATIVE LAW - denial of procedural fairness - discretionary remedy

CORPORATIONS - winding-up in insolvency - company clearly insolvent - no question of principle

Conviction appeal - sexual assault offences - circumstantial case as to identity of offender - alleged admission by accused to acquaintance - acceptance beyond reasonable doubt of that witness essential to proof of guilt - whether comment suggesting that the witness had "no axe to grind" capable of being understood by the jury as "Why would he lie?" - whether summing up compounded alleged error.

CRIMINAL LAW - appeal against verdict after special hearing - maliciously wound with intent to inflict grievous bodily harm - maliciously inflict grievous bodily harm - special hearing under s 19 of the Mental Health (Criminal Procedure Act) - whether misdirection in respect of specific intent - appellant suffering from mental illness - whether verdict unreasonable and/or unsupported by evidence - appeal dismissed

Family Provision. Costs of previous application. Calderbank offer. Need to provide sanctions for such offers particularly in small estates.