Cases and authorities

PRACTICE - pleadings - application to strike out statement of claim - whether statement of claim discloses a reasonable cause of action.

COMMON LAW - leave to file a cross-claim - application for summary judgment with the damages to be assessed.

CONTRACT – Construction – whether on proper construction of Transaction Implementation Deed (“the Deed”) and Termination Deed break fee payable – Plaintiff proposed to take over Diagnostics Businesses owned by defendant’s subsidiary – Deed provided for payment of break fee if the transaction did not proceed in specified circumstances one of which was if a Competing Proposal was announced “prior to the date” of defendant’s general meeting which was to consider transaction and that proposal was ultimately completed – date was set for meeting to be held but after adverse tax rulings the meeting was cancelled and the parties agreed to terminate the Deed – Competing Proposal had been announced before the date the meeting was to be held and was ultimately completed – question of construction whether “date of” the meeting meant date the meeting took place or date for which it was scheduled to take place but did not – Termination Deed had provisions that break fee provisions survive termination of the Deed – effect.

PROCEDURE – where plaintiff and defendant were former partners in business ordered by the Court in 2004 to give an account of partnership assets – where parties have sold jointly owned property and moneys have been paid into Court – where proceedings have lengthy history of in excess of 110 interlocutory adjudications and non-compliance of Court directions by parties – where plaintiff no longer legally represented – where length and cost of proceedings is disproportionate to final relief claimed and available – where plaintiff granted postponement of final hearing on two earlier occasions – where plaintiff alleged that he has been precluded by the Court from adducing evidence – where plaintiff left court room on day appointed for hearing – whether account should be stayed – disposition of outstanding proceedings.

ADMINSTRATIVE LAW - Judicial review of decision of the Board - grant of approval of Social Impact Assessment

CRIMINAL LAW - application for leave to appeal against sentence - break, enter and steal (4) - pleas of guilty - various criticisms of remarks on sentence not made out - no question of principle

Criminal Law - sentencing - aggravated kidnapping - inadvertent failure to properly backdate sentence - not a crushing sentence - totality principle not applicable not serving existing sentence - limited finding of special circumstances - no error - circumstances of unlawful detention aggravated by actual use of violence and real threat of violence - presence of a weapon - offences on Form 1 - sentence within the upper end of an appropriate range - not manifestly excessive.

CONTRACT – Agreement to purchase property at auction on behalf of another – Whether principal or agent repudiated agreement.

CRIMINAL LAW - appeal against sentence - sentence manifestly excessive - application of guideline judgment - subjective circumstances

COSTS – whether usual order as to costs – whether costs of the court proceedings be costs in the remitted proceedings in the Tribunal – indemnity certificate under the Suitors’ Fund Act sought

CONTRACT - breach of contract - assessment of damages - no question of principle

PROCEDURE- discovery - preliminary discovery - inability to obtain "sufficient information to decide whether or not to commence proceedings" - where explicit threat of particular proceedings already made

EQUITY - undue influence - transfer of interest in property by aged mother to daughter - no consideration given - daughter admits mother was reliant on her and reposed trust and confidence in her - undue influence established - no evidence of adequate legal advice to mother - onus on daughter not discharged - property to be restored to mother

TRUSTS – relationship of accountant and client – professional fees owing to accountant/cross-defendant at time of agreement to purchase shares – proposal by client (cross-claimant) to buy shares on a “tip” that same would escalate in value in two weeks – profit to be credited – no trust created – contract made conferring a benefit on the client as distinct from a company controlled by him

DAMAGES - interim payments - proportion of likely assessment - not limited to fulfilling current needs - derivative claims - need to show more than probability of success

ARBITRATION - whether defendant's cross-claim must be stayed and referred to arbitration under s 7(2) International Arbitration Act 1974 (Cth) - whether "arbitration agreement" - whether whole of cross-claim comprehended by arbitration agreement - whether plaintiff's claims against defendant could be accommodated within arbitration under ICC rules - permitted scope of conditions on order under s 7(2)

INSURANCE - application to sue insurer directly - dispute as to whether policy which appears to respond renewed or agreement to policy in new wording made - arguability - leave granted

Criminal Practice and Procedure - sentencing - murder - jury verdict - mental illness - provocation - general deterrence - specific deterrence - departure from standard non-parole period

LEAVE TO APPEAL - against order for costs

PROCEDURE – Entry of judgment and orders – procedure for entry of judgment and orders under r 36.11 Uniform Civil Procedure Rules 2005 – Variation or setting aside of judgment or order following entry – variation or setting aside of judgment or order made but not entered – general law principles – statutory authority to reopen entered orders – r 36.16(3A) UCPR – time limits - COSTS – proper matters to be taken into account – late provision of defence – whether lateness made difference of substance to proceedings – whether proposing an issue to a court known by party to be wrong may be taken into account – whether Calderbank offer made on basis inclusive of costs capable of resulting in order for indemnity costs

Real Property :- Community titles legislation - Whether unregistered development applications and plans are incorporated in development consents referred to in registered development contracts and statutory covenants - Whether such plans form part of the development contracts - Whether continuation or completion of community scheme has become impracticable and, if not, whether community scheme should be varied - Whether specific performance should be ordered of original proprietors' obligations under development contracts and statutory covenants - Whether original proprietors in breach of development contracts - Damages for breach of development contracts.

CRIMINAL LAW - Application to remove fixed glass screen from dock area - Prejudice - Ability to have a fair trial - Directions to cure prejudice.

CRIMINAL LAW - Application to exclude evidence of alleged co-conspirator - Whether evidence inadmissible because of hearsay rule (s 59 Evidence Act 1995) - Whether evidence should be excluded because of incompetency to give evidence - s 61 of Evidence Act 1995 - Whether evidence should be excluded under ss 135 and 137 Evidence Act 1995 - Whether evidence should be excluded under s 90 Evidence Act 1995

CRIMINAL LAW - Evidence - Evidentiary certifictes under ss 18(1) and 61(1) of the Telecommunications (Interception) Act 1979 - Validity of evidentiary certificates - Alleged failure to certify facts within the meaning of the s 18(1) of the legislation.

PERSONAL INJURY – negligence – LIABILITY – breach of duty by occupier – where defendant’s employee asked plaintiff to assist in unloading goods and plaintiff injured in course of unloading – where defendant directed the plaintiff where to park his vehicle for unloading – DAMAGES – economic loss claim – domestic services claim – where plaintiff worked long hours for modest remuneration

CRIMINAL LAW - Search Warrants - Requirements for validity of search warrants - The Australian Security Intelligence Organisation Act 1979 (ASIO Act) - Validity of warrants issued by ASIO - Failure to specify offence or offences - Failure to specify the precise nature of the security matter the subject of the warrants - Whether ASIO warrants are invalid.

CRIMINAL LAW - Conspiracy charge - principles relevant to proof of a criminal conspiracy - The nature of evidence limited as to the existence and scope of conspiracy - Evidence Act 1995 - Whether s 87(1)(c) of Evidence Act substantially alters the common law position - Evidence Act - Scope of admission - Tender of circumstantial evidence for a non hearsay purpose - Admissions with authority.

CONTRACT – Resident Agreement for occupancy of aged care premises – requirement to disclose assets – concessional status granted on basis of limited assts – inaccurate information – failure to disclose title/ownership to home unit – contractual provision that concessional status no longer applies if inaccurate information provided – - STATUTORY INTERPRETATION – prospective or retrospective operation of amendments to the Aged Care Act 1997 (Cth) – changes to the aged care system by the Aged Care Amendment (Transitional Care and Assets Testing) Act 1005 – determinations made by Secretary of Department of Veterans’ Affairs pursuant to amendments granting concessional status after defendant entered into aged care facility– whether amendments operated retrospectively such that Secretary’s determinations applied from date of entry – whether amendments override existing contractual rights – no retrospectivity – Secretary’s determinations did not disentitle the plaintiff to residents fees and interest on accommodation bond otherwise payable – calculation of damages re such contractual entitlements

PROCEDURE – Application for leave to amend statement of claim – sought to delete part of pleadings – amendments in question held separable - Application to rely on subpoenaed documents produced by defendants in different proceedings – documents totalling 350 folders – cost effective to allow access to existing documents

CORPORATIONS - winding up - liquidators' application for examination summons - persons concerned resident in London - letter of request to High Court of Justice of England and Wales to act in aid of, and be auxiliary to, this court in conducting examination - availability to liquidators of alternative and direct procedure under UK law adopting UNCITRAL Model Law on Cross Border Insolvency

CRIMINAL LAW - Practice and Procedure - Application to set aside calls for production of material - Legitimate forensic purpose - Alleged absence of attention by Secretary of Telecommunications carrier to matters required under Statute - Statutory interpretation - Meaning of s 18(1) Telecommunications (Interception and Access) Act 1979 (Cth).

PROCEDURE - cross-vesting - transfer of proceedings - whether it is in the interests of justice that the proceedings be determined by the Supreme Court of Queensland

CONTRACTS – Vendor and purchaser – whether contract for sale of land – agreement in principle – exchange of counterparts in non-identical terms – whether unenforceable oral agreement – whether vendors’ solicitor had authority to exchange on vendors’ behalf – intention of parties – whether parts differed in material respect – where counterpart signed by purchasers amended clause containing purchasers’ warranty – where vendors may have to run and win legal argument to have benefit of warranty – whether course of negotiation of contract admissible aid to construction – whether comparison of counterparts only way of identifying terms agreed on – whether availability of rectification a pre-requisite before contract can be found to have been entered where materially different parts exchanged – where rectification unavailable in District Court – s 134 District Court Act 1973 – whether counterpart signed by purchasers was agreement in writing or memorandum or note of that agreement within s 54A Conveyancing Act - REAL PROPERTY – sale of land – Notice to Complete – whether contract validly terminated by process started by service of Notice – whether vendors discharged onus of proof – time at which service of Notice deemed to be effected when served by post – reasonable time to complete – whether 10 days sufficient – where contract contains additional clause deeming 14 days to be reasonable time – general principles – s 25(7) Judicature Act 1873 (Eng) – s 13 Conveyancing Act – application to District Court proceedings – circumstances in which breach of term in contract as to time gives rise to right to terminate – where pre 1873 equity court would not have intervened to grant relief concerning termination - EVIDENCE – witnesses – variant of Jones v Dunkel principle – where party calls witness who could have given direct evidence on particular topic refrains from asking questions that would elicit information on that topic – permissible inferences – admissions – whether judge is justified in treating statements made by a litigant-in-person from the Bar table as of evidentiary force - APPEALS – whether open on appeal for person who was defendant in court below to submit that evidence did not make out essential element of cause of action sued on - COSTS – where successful party in appeal appeared in person in court below – entitlement to indemnity for out of pocket expenses

PROCEDURE [674] – Whether contempt proceedings criminal or civil in nature – Whether mediation may be ordered under s 26 of the Civil Procedure Act 2005.

CRIMINAL LAW AND PROCEDURE - Pre-trial ruling sought to exclude particular evidence

SUBPOENA - Objection by recipient Crown - "Fishing" by accused due to face trial

MORTGAGES - cross-claim by mortgagor against finance broker - mortgagor induced to mortgage home to assist employer to obtain high interest rate bridging finance for business purposes - default under mortgage - claim of being induced by misleading or deceptive conduct and/or negligent misrepresentation to mortgage home - representation made that long-term finance had been arranged - no reasonable basis for representation - relief granted

PROCEDURE – ADMISSIONS – application to withdraw admissions made in amended defence – where admissions made with legal advice and in pursuit of narrowing issues in dispute – whether admissions wrongly and/or inadvertently made – where admissions made whilst defendant changing solicitors – where withholding leave to withdraw admissions would result in matter proceeding on false factual basis and preclude defendant from pleading a viable defence – balance of prejudice – whether prejudice occasioned to plaintiff irreversibly detrimental – whether withholding leave to withdraw admissions in the interests of the “just, cheap and quick” resolution of the dispute.

INJUNCTIONS - interlocutory injunctions to enforce restrictions in employment contract - whether serious question to be tried as to breach or apprehended breach

CRIMINAL LAW – Procedure – Subpoena – Public interest immunity privilege.

Drug importation - charge of conspiracy to import - prohibited import "namely ... [MDMA] ... not less than the commercial quantity" - whether prosecution had to prove agreement or intention to import not less than the commercial quantity - or the particular quantity imported - quantity not a necessary ingredient in offence of importation - on construction of s 11.5 Criminal Code, not made ingredient of conspiracy offence - consideration of leave under r 4 Criminal Appeal Rules - jury not erroneously directed to "put aside" certain evidence - conviction appeals dismissed.

CRIMINAL LAW - inadmissibility of a witness statement taken through an interpreter - admissibility of evidence under s65 Evidence Act when the maker is not available - unavailability of persons

CRIMINAL LAW - appeal against severity of sentence - attempted robbery armed with a dangerous weapon - unauthorised possession of a shortened firearm - pleas of not guilty changed after defence of duress withheld from the jury - grounds of appeal - whether trial judge erred in failing to find that the applicant acted under duress - principle of parity - whether manifestly excessive - appeal dismissed

CRIMINAL LAW: - joint applications for leave to appeal against sentence - aggravated break, enter and steal (2) - in one case, additional charge of aggravated enter with intent to steal - whether pleas of guilty taken into account - whether adequate distinction in sentence because of offenders' different roles, subjective cases - in one case, whether assistance to authorities taken into account - whether overall sentence after accumulation reflected finding of special circumstances - whether lesser sentences warranted

COSTS – judicial review proceedings – whether costs follow the event –respondent submitting “save as to costs” – whether respondent required to act as model litigant – whether just and reasonable for respondent to pay part or whole of costs of successful applicant – Civil Procedure Act 2004 (NSW) s 98 – Uniform Civil Procedure Rules 2005 (NSW) rr 6.11, 42.1 - STATE OWNED CORPORATION – State Rail Authority – functions of State Rail Authority – State Rail Authority as part of the executive government – application of model litigant principles – State Revenue and Other Legislation Amendment (Budget) Act 2007 (NSW) Schedule 4[11] – Transport Administration Act 1988 (NSW) s 4, Schedule 8 - WORDS & PHRASES – “model litigant”

APPEAL- appeal to Court against decision of Workers Compensation Commission "in point of law"- Workplace Injury Management and Workers Compensation Act 1998, s 353. - APPEAL- internal appeal "by way of review"- appeal against decision of arbitrator- whether necessary to establish error- Workplace Injury Management and Workers Compensation Act 1998, ss 352, 354. - WORDS & PHRASES- "appeal"- review"- "in point of law"- claim". - WORKERS COMPENSATION- jurisdiction of Commission to resolve dispute- whether "claim" must be made- whether failure to make claim excused- whether claim inadequate or not a claim at all- Workplace Injury Management and Workers Compensation Act 1998, s 260.

Unit levies - expenses of recovery can be claimed in subsequent proceedings. - Default judgment - money paid on garnishee order - judgment set aside - whether payment can be recovered - money had and received at common law - Local Court has jurisdiction to order repayment.

CORPORATIONS- [305]- Costs- How costs are to be borne where a section 1323 order is obtained ex parte, later extended by consent and subsequently lapses- Order obtained to aid ASIC investigation- 8th defendant acted reasonably without contesting the order- Held that ASIC must pay the costs of the 8th defendant.

ADMINSTRATIVE LAW - denial of natural justice by Tribunal - written request for adjournment - no attendance before the Tribunal