Cases and authorities

Action under the Excise Act 1901 and the Excise Tariff Act 1921 - allegation of blending petrol and diesel without a licence - evading duty - penalties on each offence - two offenders, one knowingly concerned - evasion - second defendant died after conviction and before penalty hearing - whether liability abated - intention of legislature in statute - award of reparation to be shared equally.

Sentence - contempt of court - application of normal sentencing principles.

Insurer seeks to have insured join a third party (alleged by insurer to be a tortfeasor liable to insured), or alternatively, to itself cross claim - Insurer not permitted to require joinder until it has accepted liability for insured's claim - no right in insurer to cross claim against third party - Construction of subrogation clause and consideration of whether insurer had accepted insured's claim

CRIMINAL LAW AND PROCEDURE - Acquittal of accused by direction at trial arising out of alleged misconduct as chief operating officer of insurance company (FAI General) - Further charge alleging different misconduct - Different co-accused on each set of charges - No abuse of process

CRIMINAL LAW - APPLICATION UNDER S 78 - third application made - whether trial judge's ruling erroneous - whether applicant denied procedural fairness - whether grounds raise a question of doubt as to guilt - strong Crown case

RES JUDICATA – cause of action estoppel – issue estoppel – merger – Anshun estoppel – no inconsistency in verdict or remedy – not same cause or essential facts – Anshun estoppel and cross-claim – not reasonable to require cross-claim in earlier proceedings – no estoppel - APPEAL – Consumer, Trader & Tenancy Tribunal – no error – appeal dismissed - CONTRACT – inappropriate to sue for damages for defective work while contract on foot.

No denial of procedural fairness by CTTT - adjournment refused - insufficient evidence produced to support application - Rehearing refused due to lack of sufficient evidence - No question of general principle - case turns on its own facts

CORPORATIONS - winding up - company limited by guarantee operating as a sporting club - surplus on winding up - members empowered by memorandum of association to determine destination of surplus - whether members' determination must be by meeting of members under articles of association - if so, whether social members may attend and vote at such a meeting

ADMINISTRATIVE LAW – victims compensation – prerogative writ – findings of fact not challenged – no error of law – proceedings dismissed.

CRIMINAL LAW - appeal against conviction - attempted murder - whether victim's injuries self-inflicted - whether jury verdict unreasonable

TORT – negligence – duty of care – linesman employed by power company injured by electric shock from power line dislodged from supporting pole when struck by aircraft – whether duty of care owed by employer – whether duty of care owed by pilot of aircraft – whether operator of aircraft vicariously liable for actions of pilot – whether direct application of notion of proximity is a safe guide to when duty of care exists – whether causal connection between impact and injuries – whether finding of causation is consistent with finding of no duty - AVIATION – Statutory liability of owner and operator of aircraft for personal injury caused by aircraft in flight – s 10 and s 11 Damage by Aircraft Act 1999 (Cth) – construction of expression “caused by” in s 10(1)(d) Damage by Aircraft Act – whether narrow construction of provision appropriate – whether common law concept of causation applicable – whether voluntary assumption of risk available as defence to action for damages under s 11 – whether contributory negligence available as complete defence or defence to action for damages under s 11 – whether circumstances falling within s 10(1) of Act amount to a “wrong” within s 8(a) Law Reform (Miscellaneous Provisions) Act 1965 – whether s 5A, s 5R, s 5S Civil Liability Act 2002 applicable to proceedings – circumstances in which defence of contributory negligence available at common law in respect of action to recover damages for injury, loss, damage or destruction caused by a wilful act of the defendant – whether owner and operator of aircraft can recover contribution from employer of linesman towards their liability to pay damages under the Act – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 - STATUTORY INTERPRETATION – Second reading speech – aid to construction – s 15AB Acts Interpretation Act 1901 (Cth) - JURISDICTION, PRACTICE AND PROCEDURE – Jurisdiction – Federal jurisdiction – claim for damages arising under Commonwealth Act – s 76(ii) Constitution – s 39(2) Judiciary Act 1903 (Cth) – whether provisions as to contributory negligence under State legislation applicable by State court exercising federal jurisdiction – Law Reform (Miscellaneous Provisions) Act 1965 – Civil Liability Act 2002 – s 79 Judiciary Act 1903 (Cth)

COSTS – application for indemnity costs against successful party – whether disentitling conduct on the part of the successful party – alleged unwillingness by the successful party to negotiate – manner in which successful party pressed his claim

CONTRACT - Mistake - Rectification - Contract for sale of land at $2,050,000 - Whether common intention that price was $2,050,000 plus GST - Whether unilateral mistake by vendor to the knowledge of purchaser and with intention to conceal mistake

APPEAL – decision of Local Court – whether erroneous in point of law – whether question of mixed law and fact – basis for preference of defendant’s witnesses over plaintiff’s witnesses – alleged failure to examine ‘objective’ evidence – alleged inadequacy of reasons

CORPORATIONS - share capital - redeemable preference shares - cumulative dividends at fixed rates - dividend instalments not paid - some shares not redeemed at time fixed by terms of issue - company in voluntary administration - whether non-payment of dividend or redemption sum caused shareholder to be "creditor" of company for purpose of voluntary administration provisions

CORPORATIONS - voluntary administration and winding up - leave to proceed with common law proceeding for damages for personal injury and common law cross-claim - voluntary administrator appointed shortly before scheduled commencement of four-week hearing - relevant considerations

Equity - General Principles - Trusts. - Property purchased by two persons. Deductions as to proportional ownership and findings as to an account of mortgage repayments and outgoings on the property.

CRIMINAL LAW - appeal against sentences - possession of commercial quantity of ecstasy which was reasonably suspected of having been imported - supply of commercial quantity of ecstasy - fresh evidence as to role relative to co-offender - whether fresh evidence undermined sentencing judge's findings on objective criminality - whether sentences manifestly excessive - combined discount for assistance to authorities taking into account conditions of custody and plea of guilty - considerations of parity

CRIMINAL LAW - Sentencing - Periodic Detention of Prisoners Act 1981 - original sentences longer because order for periodic detention made

CRIMINAL LAW - Sentencing - open to sentencing judge to make finding of fact adverse to applicant beyond reasonable doubt

CRIMINAL LAW – SENTENCING – appeal against severity of sentence – applicant pleaded guilty to four offences under Crimes Act 1900 – offence in midrange of objective seriousness – juvenile offender – immaturity as a significant factor in the commission of the offence – sentence held manifestly excessive

CRIMINAL LAW - appeal against conviction - attempt to possess trafficable quantity of methylamphetamine - whether trial judge erred in failing to direct verdict of acquittal - whether act was merely preparatory - whether trial judge erred in directions regarding control of property - whether jury verdict unreasonable

Appeal - Sentence appeal for supplying drugs - comparison with sentences for co-offender - parity with sentence imposed after Crown appeal.

ADMINISTRATIVE LAW – exercise of discretion by review panel – exercise of professional judgment by review panel - ADMINISTRATIVE LAW – grounds of review – scope of review – whether review panel restricted to considering matters identified in application for review – whether composition and nature of review panel affects scope of powers - MOTOR ACCIDENTS – medical assessment – powers of review panel under the Motor Accidents Compensation Act 1999 (NSW), s 63 – purpose and structure of Act – whether review panel restricted to considering matters identified in application for review – comparison of schemes for resolution of medical disputes by approved medical specialists under the Motor Accidents Compensation Act 1999 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Motor Accidents Compensation Act 1999 (NSW) Part 3.4, s 63 – Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 326, 327 - STATUTORY INTERPRETATION – delegated legislation as an interpretation tool – whether guidelines on review procedures affect the scope of review panel’s powers - WORDS & PHRASES – “review”

PRACTICE AND PROCEDURE – application brought on Notice of Motion in proceedings in Court of Appeal seeking leave to appeal – where final hearing has taken place and application for leave to appeal rejected – circumstances in which relief can be obtained in proceedings after final relief has been decided – application to set aside costs order of Associate Justice in proceedings below – where no application to appeal against order made – contention that Judge in proceedings below erred in arriving at quantum of costs order – where leave to appeal against that decision sought but not granted – review sought of decision of bench of two judges by a single judge – whether open on authorities to make such an order – whether contrary to appellate structure – review sought of order of Registrar dismissing motion seeking to vary costs orders in Court of Appeal and court below and review of orders of Court of Appeal – where costs order cannot be enforced as a matter of law until assessed – where orders made in specific amounts to avoid need for costs assessment – where no procedural course open in this Court to challenge refusal of leave to appeal – application for stay of costs orders in proceedings below – whether jurisdictional basis for order – where no application made for leave to appeal from judgments

PRACTICE AND PROCEDURE – application for stay of judgment pending appeal – principles for grant of stay – whether serious question to be tried – where no legal error alleged in judgment below – where proceedings below involved significant credit issues – where applicant unable to identify anything tending to show trial judge’s findings contrary to incontrovertibly established facts or uncontested testimony or that trial judge failed to use or palpably misused his advantage or that finding glaringly improbable or contrary to compelling inferences – balance of convenience – whether respondents would be unable to repay the judgment if appeal were to proceed and succeed – whether denial of stay would stifle appeal – where respondents have served applicant with bankruptcy notice – where applicant has costs order against him in favour of the respondents arising from cross-claim in proceedings below – where respondents have applied for assessment of costs of cross-claim – where reasonable to infer that applicant will seek review of cost assessment – where no material before Court to make out basis for concluding that such application would be concluded before hearing of appeal

CONTRACT - joint venture conducting practice of Radiology and related services at 34 clinics - restraint period applies where a partner leaves the business - applicability of restraint period where the Trust terminates the agreement on notice - construction of ‘the Business’ - restraint binding on Trust not binding on Partnership or partners - admissibility of prior contractual arrangements - unreasonable restraint of trade - construction of ‘competitive business’ - express and implied duties of good faith - agreement to cooperate constitutes an agreement to agree and is unenforceable

CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - intoxication and underlying brain damage - prospects of rehabilitation - finding of special circumstances

PROCEDURE [101]- Amendments to statement of claim- Late amendments- Generally amendments should be allowed unless there is sufficient prejudice to other parties which could not be compensated- This is subject to the Court's duty to give effect to the overriding purpose of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings- Lack of explanation as to lateness of amendments- Proposed amendments are prolix, convoluted and contain questionable propositions.

PRACTICE AND PROCEDURE – application for leave to appeal – whether proposed appeal has sufficient prospects of success to warrant grant of leave – whether arguable case that primary judge made appealable error – costs of application for leave to appeal – where respondents seek order under r 42.25 Uniform Civil Procedure Rules that costs of application not be paid out of trust assets – where question of whether proceedings brought in proper execution of trust will depend on outcome of ultimate proceedings

CORPORATIONS - winding up - statutory demand - application for order setting aside - alleged offsetting claim - not rational quantification of that claim - no matter of principle

DEFAMATION - assessment of damages - defamatory imputations arising from two publications by defendant - operation of statutory cap - whether statutory cap for damages applicable to each cause of action - jury finding of malice - whether malice affected harm sustained by plaintiff - whether aggravated damages available - falsity of imputations - failure to offer apology - whether conduct of trial may aggravate plaintiff's damages

Criminal Law - Sentence - Murder - Plea of guilty - offence below mid range seriousness.

DEFAMATION - defence of qualified privilege for provision of certain information - whether conduct of defendant in publishng matter was reasonable - whether question for judge or jury

Criminal law sentencing - parity - justifiable sense of grievance - re-sentence

CRIMINAL LAW - appeal against sentence - whether sentence manifestly inadequate - supply of a prohibited drug - prospect of rehabilitation - special circumstances

CRIMINAL LAW - Practice and Procedure - Subpoenas - Legitimate forensic purpose - Public interest immunity claimed by ASIO and AFP

CRIMINAL LAW - Practice and Procedure - Subpoenas - Absence of legitimate forensic purpose - Public interest immunity claim

CRIMINAL LAW AND PROCEDURE - Trial without jury - Murder and malicious wounding - Unanimous psychiatric opinion supporting special verdicts

SUMMARY JUDGMENT - whether the Police owed a duty of care to family of missing person

PARTNERSHIP [37]- Dissolution- Whether goodwill ought to be considered in settling the accounts of a dissolved partnership- Goodwill generally has no existence independent from the conduct of the business- Former partners continuing to trade, but now as two separate firms- One new firm apparently making use of components of goodwill of former partnership- Nonetheless goodwill of former partnership must have nil value when taking accounts of former partnership.

CORPORATIONS AND SECURITIES INDUSTRY - principal sued for activities of authorised representative - various alleged contraventions - INSURANCE - indemnity insurance - policy exclusions - whether applicable to any liability of principal

EQUITY – trusts and trustees – administration of trust upon bankruptcy of original trustees – sale of trust property – right of trustee in bankruptcy to retain proceeds of sale – whether proceeds of sale a trust asset – whether valid resignation by original trustee – whether trust fund vested in new trustee prior to bankruptcies – right of trustee in bankruptcy to indemnity from trust funds in respect of trust debts – whether indemnity extends to contingent liabilities – trustee in bankruptcy’s equitable lien over trust property

SUCCESSION [55] [[143]- Whether on the whole of the evidence the testator intended for a later will to revoke an earlier will- Evidence indicates that the earlier will is to apply to Australian property and the later will to apply to Fijian property- Construction of phrase "my 50% share in H B Singh (Fiji) Pty Ltd"- Evidence shows the intention of the testator is for the phrase to mean 50% of my shares" subject to the trusts of the will. WORDS & PHRASES- "Properties".

Statute - Construction - Proper construction of s 241(1)(c) Corporations Act - Section 241 Corporations Act allows the Court to make any orders and give any directions in relation to these proceedings

Practice & Procedure - leave reserved to apply if plaintiff assessed for tax on money awarded for loss of chance and interest in 2001 - whether power to amend - ambiguity - whether interlocutory.

Equity. Trusts. Resulting trusts in respect of use by mother of son's interest in property. - Family Provision. Application by son. Majority of estate transferred to another son before date of death. Order for provision and designation of property as notional estate.

PRACTICE AND PROCEDURE – INTERNATIONAL ARBITRATION – enforcement of foreign award under International Arbitration Act 1974 (Cth) – whether contractual agreements are arbitration agreements for the purpose of the Act – whether the Singaporean award is a foreign award for the purpose of the Act – formalities imposed by the Act for recognition of foreign awards