Cases and authorities

APPEAL - Local Court Magistrate - interpretation s 40 Travel Agents Act 1986

PROCEDURE - costs - application for preliminary discovery - no opposition by agent of whom discovery sought - agent unwilling to disclose identity of principal without compulsion - what costs order should be made?

RESTORE MATTER - Whether matter should be restored to the list

CRIMINAL LAW AND PROCEDURE - Multiple offences by husband on estranged wife - Breach of current ADVO - Use of firearm - Sentence - Observation of possible ambiguity where standard non-parole period applies to offence against provision by section number and statute declares same penalty for attempt but determination not required - Error in applying apparently intended concurrency - Appropriate to adjust sentence commencement dates

Criminal law - sentencing - Commonwealth offences - social security fraud - sentence not manifestly excessive

SENTENCE - application for leave to appeal filed out of time - no reasonable explanation for delay - whether sentence for Supply Heroin manifestly excessive - leave refused.

WORKERS COMPENSATION – entitlement to and liability for compensation – respondent worker injured right arm while employed by appellant as sales assistant and pool cleaner – worker suffered agreed 15% permanent loss of efficient use of right arm at or above elbow – appellant terminated worker’s employment – worker obtained part-time work in supermarket – appellant’s insurer paid worker weekly compensation to make up difference in pre- and post-injury wage – at request of appellant’s insurer worker took vocational capacity tests – on basis of results of tests appellant’s insurer reduced worker’s weekly payments to nil on grounds that worker’s ability to earn in some alternative employment was higher than average pre-injury wage – claim by worker for weekly payments during partial incapacity for work under s 40 Workers Compensation Act 1987 – claim for lump sum compensation brought under s 66 Workers Compensation Act 1987 settled – arbitrator of Workers Compensation Commission determined worker had no entitlement to weekly payments under s 40 – appeal – Commission constituted by Presidential member awarded worker weekly payments under s 40 – amount of entitlement subject to injured worker’s ability to earn in “suitable employment” – s 40(3) and s 43A Workers Compensation Act 1987 – results of vocational capacity tests considered – appeal – proper question to be asked in deciding whether worker’s earning capacity is diminished – whether proved incapacity reduced worker’s earning capacity in the labour market as actually available to him below the earnings he would have made if uninjured – necessity of assessing practical realities of injured worker being able to get and keep employment in accordance with factors set out in s 40 and s 43A Workers Compensation Act - APPEAL – appeal to Commission constituted by Presidential member from determination of arbitrator – s 352(2) Workplace Injury Management and Workers Compensation Act 1998 – appeal to Court of Appeal from decision of Commission constituted by Presidential member – s 353(1) Workplace Injury Management and Workers Compensation Act – nature of appeal involved when right of appeal granted to a person “dissatisfied with” or “aggrieved by” a decision of a tribunal “in point of law” – whether powers of Commission constituted by Presidential member to revoke decision of arbitrator and substitute new decision exercisable only when demonstrated that decision of arbitrator affected by some legal, factual or discretionary error - STATUTORY INTERPRETATION – relationship between s 40 and s 66 Workers Compensation Act – entitlement to award of compensation under s 66 does not support inference of entitlement to weekly payments under s 40

WORKERS COMPENSATION - Proceedings to obtain compensation - Declaratory relief - Proceedings for compensation before Workers Compensation Commission constituted by an arbitrator - Appeal lodged to Presidential member to decide on the papers - Parties reach compromise and execute short minutes of order - Presidential member decides appeal awarding compensation different from the short minutes of order - Commission has no record of having received short minutes of order or being informed that the dispute was settled - Declaration sought that parties bound by short minutes of order and appeal decision void - No dispute that parties bound but not as to future rights - Whether no good purpose served by making the first declaration - Whether inference should be drawn that registration clerk carried out instructions and filed short minutes of order - Whether under the procedural tables to the Workers Compensation Commission Rules 2006, PT 4.147 there was finalisation of Commission proceedings by filing the short minutes of order - Whether under the Workers Compensation Commission Rules, r 15.9 there was finalisation in the absence of an order of the Commission in terms of the short minutes of order - Whether the privative provision in the Workplace Injury Management and Workers Compensation Act 1998, s 350(1) prevented the Court making the second declaration - Whether the principles in R v Hickman - Ex parte Fox v Clinton (1945) 70 CLR 598 at 615 satisfied - Whether the plaintiff may ask the Commission to rescind the decision on appeal under s 350(3).

DE FACTO RELATIONSHIPS – Section 20 Property (Relationships) Act 1984 – claim for adjustment of property interests – real estate only joint asset – contributions as homemaker where both parties worked and children of household children of one party only

COMMON LAW - Fair Trading Act - whether defendants' conduct in trade or commerce - whether allegations misleading or deceptive - injurious falsehood - malice - whether threat of publication constitutes improper purpose

CRIMINAL LAW - life sentences redetermined - whether sentences can be backdated.

TRUSTS – constructive trusts – common intention that plaintiff and first defendant each have a half interest in the property – plaintiff acted to his detriment by making financial contributions - REAL PROPERTY – indefeasibility of title – whether registered owner a party to fraud – substantial part of purchase price returned to registered owner – registered owner had notice that plaintiff had some claim to the property – sale kept secret from plaintiff – registered owner failed to appear – sale was collusive and mala fide

ADMINISTRATIVE LAW - certiorari - error of law on the face of the record - what constitutes "the record" - inadequacy - COSTS - certificate for costs - meaning of "relevant facts" and "further relevant facts" - Costs in Criminal Cases Act 1967 - ss 3, 3A - CRIMINAL LAW - PROCEDURE - Costs - application for costs certificate - Costs in Criminal Cases Act 1967 - ss 2, 3, 3A - principles - CRIMINAL LAW - Costs against Crown - discretion to grant certificate - Costs in Criminal Cases Act 1967 - whether trial judge considered relevant facts and further relevant facts - WORDS & PHRASES - "further relevant facts" - "relevant facts"

Local government – Housing development – Development application – State Environmental Planning Policy No 5 (SEPP5) - Professional negligence – Breach of duty in tort and contract – Test to be applied – Whether development application had a reasonable prospect of approval - Misleading and deceptive conduct – Whether reasonable grounds for making representation – Fair Trading Act 1987, s 41 and s 42 - Contract – Parties – Whether party to second contract was corporation where incorporation after first contract

ADMINISTRATIVE LAW – Judicial review of the Industrial Relations Commission of New South Wales – jurisdictional error – Craig v South Australia (1995) 184 CLR 163 - CRIMINAL LAW – Inquiry after conviction – application must be made to Supreme Court – jurisdiction to be exercised by Chief Justice or authorised person – s 78 and s79 Crimes (Appeal and Review) Act 2001

PRACTICE AND PROCEDURE - committal proceedings - appeal from order of magistrate where limited cross-examination of witnesses allowed

COMMON LAW - defamation - defence of qualified privilege - whether plaintiff's reply should be struck out under r 14.28 - whether reply had tendency to cause embarrassment - form of particulars of malice - overriding purpose - request by third defendant for better answers to interrogatories

CRIMINAL LAW: - application for leave to appeal against sentence - driving under the influence of a drug occasioning grievous bodily harm - victim the applicant's partner - loss of unborn child - applicant disqualified driver and on bail for other offences - those factors not relevant to abandonment of responsibility

CRIMINAL LAW – appeal against conviction of maliciously inflicting actual bodily harm with intent to have sexual intercourse – whether specification of a particular injury required – whether trial judge distinguished the need to find actual bodily harm inflicted maliciously as well as intent to have sexual intercourse - CRIMINAL LAW – appeal on directions to jury – requirement that actual bodily harm be inflicted maliciously – adequate directions given regarding the need to find malice – full definition of malice given to jury – whether error - CRIMINAL LAW – appeal against sentence – whether trial judge erred on principles stated in De Simoni - CRIMINAL LAW – appeal against sentence – special circumstances where accumulative effect of sentencing produces a non-parole period in excess of statutory ratio

CRIMINAL LAW AND PROCEDURE - Mental Health - Whether trial of fitness for trial required - Psychiatric assessment and reassessment

Court's Records - Whether Court's order made on 28 May 1986 and entered on 22 March 1988 - Regard to be had to original documents on Court's files - Cogent discretionary factors against granting relief in addition - Refusal to set orders aside

SUMMARY JUDGMENT - separate determination of issues

CORPORATIONS - winding up - insolvent trading - proposed action by creditor under s 588M(3) - need for leave under s 588T(2)(b) to commence such action - where threshold requirement previously established as to alleged debt of $57,917.51 - sufficiency of pleaded claim for leave under s 588T(2)(b) - much superfluous matter alleged - no clear specification of time at which alleged debt incurred - no statement of basis on which elements involving insolvency at time of incurring of debt are alleged

PRACTICE AND PROCEDURE – PRISONERS – application by prisoner for leave to commence civil proceedings – whether the proceedings are an abuse or process – whether there is prima facie ground for the proceedings – prisoner seeks declaratory relief – conditions of custody said to amount to segregated custody

LEGAL PRACTITIONERS - barrister - action against lay client for fees - whether contract with lay client exists - whether costs agreement with lay client exists

APPEAL - Leave to appeal Local Court Decision - Summary Judgment

CRIMINAL LAW - Sentence - Manslaughter - Excessive Self-defence - Intentional infliction of grievous bodily harm with a knife - History of hostility between deceased and offender - History of drug and alcohol abuse

Administrative Law - Rules of Natural Justice and Breach thereof - whether finding against witness a breach of natural justice - Appeal from Consumer, Trader and Tenancy Tribunal - Residential building dispute - whether errors of law by Tribunal - Contracts - Construction and Interpretation of Contracts - Building Contract - whether builder waived rights under contract - whether owners in breach of contract when terminated contract for poor workmanship - Interest - Recovery of Interest under Common Law - whether interest payable on monies expended for rectification of works.

CRIMINAL LAW - conspiracy offences - SENTENCING - purported duplication of sentence on counts on indictment and matters on Form 1 - special circumstances - parity - partial resentencing

COSTS – DISCONTINUANCE – Whether circumstances of case justified departure from ordinary rule that discontinuing party must pay opponent’s costs.

TRUSTS – trustees – breach of trust – intentional breach by trustee company – liability of director who was the controlling mind of the trustee company – liable under both limbs of Barnes v Addy - TRUSTS – trustees – breach of trust – intentional breach by trustee company through a director – liability of a sleeping director – first limb of Barnes v Addy – whether receipt of trust property with knowledge of recipient company or notice of trust – must be aware of receipt – sufficient if an honest and reasonable person would have had knowledge – sleeping director signed share transfer without inquiry – whether put on inquiry because transfer was for nil consideration – no knowledge of trust – no such notice – whether property received for own use and benefit – insufficient that money from sale of shares was received into trustee company’s account - TORTS – injurious falsehood – malice – malice may be shown by some indirect dishonest or improper motive or intention to injure – causation – need for harm of the kind intended or that was a natural and probable consequence of such actions – no loss resulted from notice to ASIC of change to officeholders – loss did result from lodging share transfer notice with company - DAMAGES – exemplary damages – punishment for conscious wrongdoing in contumelious disregard of plaintiff’s rights – disregard not contumelious – compensatory damages sufficient - CORPORATIONS – directors – consent to act – whether consent necessary for person to become a director – an offence to fail to obtain signed consent under s 201D Corporations Act – premise of provision is that person may be a director even though consent not signed - PARTNERSHIPS – whether person knowingly suffered himself to be held out as a partner – no such knowledge where person unaware of matter suggesting partnership – where firm engaged due to pre-existing relationship between client and the ‘partner’ engaged – no credit given on the faith of any representation of partnership - TRUSTS – trustees – breach of trust – equitable compensation – contribution and indemnity – right of trustee to contribution where his breach of trust was fraudulent – unclean hands – equity will not grant relief – same rule applies to accessaries

CONTRACT – AGENCY – Power of Attorney in form of Schedule 7 to Conveyancing Act 1919 (NSW) – s 163B – ambit of authority such a power of attorney confers – meaning of “on behalf of” and “attorney” in s 163B(1) – authority where no limitation in s 163B(2) specified not limited to transactions for the benefit of donor and does not exclude transactions for the sole benefit or partial benefit of donee – UNCONSCIONABILITY – Allegation that loan agreement and mortgage executed under power of attorney procured by unconscionable conduct of defendant – requirements for exercise of jurisdiction to set aside transactions – CONTRACTS REVIEW ACT1980 (NSW) – Allegation that transactions unjust when entered into – whether allegation made out – discretion under s 7(1) to make orders

WORKERS COMPENSATION - meaning of phrase "aggravation, acceleration, exacerbation or deterioration of [a] disease" for ss4(b)(ii), 16(1)(b) and indirectly 9A of the Workers Compensation Act 1987 - Meaning of "appeal ... by way of review" in s353 of the Workplace Injury Management and Workers Compensation Act 1998

EVIDENCE - admissibility - hearsay - whether hearsay representation nevertheless admissible as admission by defendant - representation made by individual - whether pursuant to Evidence Act s 87 representation to be taken to be representation of defendant - where individual was company secretary of defendant - whether company secretary may be taken to be "employee" of company - nature of implied authority of company secretary

CONTRACT - Breach - Loss of bargain damages - ENTITLEMENT TO TERMINATE - Waiver - Breach consists of failure to comply with a time provision - Contract requires notice unless the breach is 'not capable of being remedied' - Breach capable of remedy - No election to affirm may occur before the right to terminate arises - Repudiation - Breach of non-essential term not causative of the breach of the opposite party does not prevent termination - MISREPRESENTATION - Contravention of the Trade Practices Act - Words must be proved with a degree of precision - Circumstances that may render the conduct misleading - Held that representations did not occur and/or were not misleading and deceptive - Reliance not established - No entitlement to rescind - Same considerations apply as per rescission in equity - Estoppel excluded by entire agreement clause - Rule Jones v Dunkel

FAMILY LAW – de facto relationships – property adjustment – greater financial contribution by man – greater non-financial contribution by woman – relevance of expenditure on gambling and alcohol consumption – relevance of superannuation – superannuation relevant to the subsidiary consideration of parties’ needs and means - FAMILY LAW – de facto relationships – property adjustment – costs – costs follow the event – ‘the event’ may be ascertained in a variety of ways – pleadings and settlement offers will assist in determining ‘the event’ – plaintiff did not achieve the degree of adjustment sought by the pleadings – plaintiff’s settlement offer more reasonable – defendant to pay 50 percent of the plaintiff’s costs

CRIMINAL LAW - sentence - robbery with a dangerous weapon - child offenders - significance of age in circumstances of serious offending - established prospects of rehabilitation

SENTENCE APPEAL - maliciously inflict GBH with intent to inflict GBH - assessment of objective gravity of the offence as within the mid-range - departure from the standard non parole period after plea of guilty - serious, permanent and disabling injuries suffered by victim - no lesser sentence warranted at law.

CRIMINAL LAW - sentencing - break enter and steal - maliciously damage property by fire - burglary offences on small business premises in commercial building in regional centre - setting fire to curtain in shop during burglary - resulting fire causes substantial damage to small business premises in building - principles applicable in sentencing arson offender - relevance on sentence of harm and loss to small business persons resulting from arson offences - meaning of "conditional liberty" in s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999 - error in approach to accumulation, concurrency and totality - head sentence excessive - non-parole period not excessive

CONVICTION APPEAL - whether appellant unfit for trial - issue not raised at trial - possibility of unfitness cannot be excluded.

Leave application – Land and Environment Court – Uniform Civil Procedure Rules – Power of the court to set aside or vary judgment or order – Order dismissing proceedings – Discretion not to grant leave

CRIMINAL LAW - sentencing - domestic violence offences - detain for advantage and cause actual bodily harm - detain for advantage - offences committed against offender's domestic partner and partner's teenage daughter - objectively serious offences - bad record for crimes of violence - offences committed whilst offender subject to bail and apprehended domestic violence order intended to protect partner - importance of specific and general deterrence - sentences not manifestly excessive

EVIDENCE - admissibility - tender of documents containing statements of or attributed to second plaintiff - business records - second plaintiff does not intend to give evidence - inability to cross examine - whether use should be limited to proof of words spoken - whether certain business records prepared in contemplation of legal proceedings

CAVEATS – Whether caveator has arguable case for interest claimed – whether application to extend caveat is appropriate vehicle to determine difficult questions of statutory illegality and whether contract unenforceable.

NEGLIGENCE – Civil Liability Act 2002 – Duty of care – Pedestrian – Footpath under management of Council defective – Actual knowledge of risk of harm – Whether defect constituted an ‘obvious risk’ to reasonable person in position of appellant – Defect obscured by shadows – Relation between obviousness of risk and breach of duty – Whether appellant took reasonable care for own safety - EVIDENCE – Interpretation of photographs – Lay opinion - DAMAGES – Future gratuitous attendant care services – Whether need for care arose solely because of injury – Construction of ‘solely’ in s 15(2).

NEGLIGENCE – Civil Liability Act 2002 – Duty of care – Pedestrian – Footpath under management of Council – Communications pit lid defective – Breach of duty of care at construction and/or subsequently – Negligent inspection – Immunity of councils for non-feasance under s 45 Civil Liability Act – Whether Council had actual knowledge of risk of harm – Whether primary judge made finding of actual knowledge - EVIDENCE – Interpretation of photographs by trial judge – Whether photographs may be used as substantive evidence or merely demonstrative evidence

REVIEW - decision of Registrar - WIMWCA

CORPORATIONS - winding up - proof of debt or claim - appeal against liquidators' rejection of proof - where statement of claim proposed to be filed in appeal pleads basis of claim differing from basis stated in proof - whether statement of claim objectionable - where matter central to case sought to be pleaded on appeal was determined on the merits upon appeal against rejection of plaintiff's proof of debt in winding up of company's holding company - exactly the same factual and legal issues - whether pursuit of present appeal therefore represents abuse of process

CRIMINAL LAW - Practice and Procedure - Fitness for trial - Proper interpretation of the Mental Health (Criminal Procedure) Act 1990 (NSW) _ Proper construction for s 20B of the Crimes Acy 1914 (Cth) - Meaning of Prima Facie case - Correct test to be applied - Whether paper evidence can be tendered - Whether Court required to weigh up competing or alternative inferences arising from a circumstantial case