Cases and authorities

PRACTICE AND PROCEDURE - removal of proceedings into Court of Appeal from Common Law Division - special circumstances.

PRACTICE AND PROCEDURE - concurrent civil and criminal proceedings - application to strike out statement of claim or stay civil proceedings.

CIVIL PROCEDURE - strike out applications pursuant to UCPR rules 13.4 and 14.28 – facts said to be incapable of supporting pleaded allegations – proceedings against second defendant dismissed

APPEAL – natural justice – stay of execution - trial judge not required to grant relief where no application for relief made

EVIDENCE – admissibility of further evidence on appeal – relevance - JUDICIAL REVIEW – assessment of evidence of witnesses who appeared in court below – assessment of credibility – apprehension of bias – views expressed by judge in course of argument – procedural unfairness – failure to produce document - JURISDICTION – review of order of District Court judge – error of law on face of record – jurisdictional error – Supreme Court Act 1970 (NSW) s 69 – District Court Act 1973 (NSW) s 176

CORPORATIONS - winding up - statutory demand - application for order setting aside - requirement under s 459G(3)(a) for affidavit - document not showing on its face that it was sworn before anyone - no extrinsic evidence of swearing - various irregularities asserted - none productive of injustice - allegation of genuine dispute - no facts showing dispute deposed to in supposed affidavit

CONSTRUCTION – CONTRACT – procedure for adjudication under Building and Construction Industry Security of Payment Act 1999 – whether withdrawal of adjudication application valid – whether adjudicator failed to determine adjudication application – whether entitlement to make new adjudication application established – whether claimant estopped from making new application – whether adjudicator’s determination of new application void – statutory construction

COMMON LAW - appeal - claim for commission by real estate agent - alleged errors of law

PROCEDURE - mediation - one party opposes making of order for compulsory mediation - factors indicating desirability of mediation discussed

PRACTICE AND PROCEDURE – strike out application – UCPR 13.44 and 14.28 – proceedings against second defendant dismissed

CORPORATIONS - compromises and arrangements - scheme of arrangement between company and its creditors - application for approval of court - where creditors voted overwhelmingly in favour by number and by value - no opposition to approval - application for leave for certain persons to "administer" scheme - rationale for requirement for leave - case for grant of leave made out in each case

Criminal law - plea of guilty - sentenced to imprisonment - appeal against conviction - whether plea attributable to genuine consciousness of guilt - whether integrity of plea affected by misunderstandings - or other matters - on facts, no miscarriage of justice - freely entered plea - whether sentence excessive - grounds of appeal not made out and in any event no less severe sentence warranted in law.

Certiorari – Application pursuant to s 69 Supreme Court Act 1970 – Common law duty to give reasons for decision – Whether failure to give reasons error of law – Whether failure to give reasons jurisdictional error – Whether party could request primary judge to amend or supplement reasons prior to entry of judgment – Whether primary judge failed to find essential element of charge proven – Whether primary judge misstated burden of proof – Whether Court should exercise discretion to grant relief in nature of certiorari – Considerations for exercise of discretion to grant relief – Whether errors of law should have been submitted as questions of law in case stated from District Court pursuant to s 5B Criminal Appeal Act 1912.

COSTS - Uniform Civil Procedure Rules 2005 r 36.36 - application to set aside or vary a costs order – reopening of judgment or orders - COSTS - awarding or reserving costs of appeal where matter is to be remitted to trial judge - COSTS – calderbank offers – without prejudice correspondence - no specific form required - COSTS – calderbank offers – no specific offer made

COSTS - offer of compromise - indemnity costs - Uniform Civil Procedure Rules 2005 (NSW) Part 42 - COSTS - Sanderson order - whether claim against one defendant must be interdependent with or alternative to the claim against the other defendant - reasonable for plaintiff to join employer - whether conduct of unsuccessful defendant justifies imposing liability for plaintiff's costs against successful defendant - DAMAGES - quantum reduced where worker successful against both employer and another party at trial - reduction not required where employer found not liable on appeal - Workers Compensation Act 1987 (NSW) s 151Z - interest on judgment - RESTITUTION - restitution of interim payment - Uniform Civil Procedure Rules 2005 (NSW) r 51.54 - hardship to plaintiff

STATUTORY CONSTRUCTION - workers compensation - reduction for contributory negligence of workers compensation repayment to employer by worker - Workers Compensation Act s 151Z(1)(b) - Law Reform (Miscellaneous Provisions) Act 1965 Pt 3 - per majority s 10(2) Law Reform (Miscellaneous Provisions) Act 1965 requires court determination of reduction in action between worker and third party - Hodgson JA contra.

Contract - Plaintiff and defendant agreed that they were parties to a consultancy agreement but disagree as to the precise terms - Letter/email later sent by plaintiff purporting to summarise terms agreed upon and seeking signature but never signed on behalf of defendant - Proceedings exemplify difficulties of pressing too far, the classical theory of contract formation based upon offer and acceptance in certain circumstances - Proceedings represent an example of a case where it is necessary to look at the whole of the relationship and not only at what was said and done when the relationship was first formed, it being the case that in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled.

TRUSTS AND TRUSTEES - Judicial advice - three classes of beneficiaries with potentially different interests - another party proposes litigation to establish rights of the respective classes - trustee proposes to consent to be representative defendant for one class only

COMMON LAW - appeal from Small Claims Division - denial of natural justice - assessor informing himself - obligation to warn

COMMON LAW - summary relief - possession - forged mortgage - indefeasibility - entitlement to relief under other legislation - discretionary relief - relevant considerations

CRIMINAL LAW – sexual offences - SENTENCING – appeal against severity of sentence – offences occurred prior to introduction of Sentencing Act – sentencing practice at the date of offending constitutes special circumstances – appeal allowed – sentences quashed.

Criminal law - sentencing - cancellation of an order for periodic detention - failure to set non-parole period

JUDGES - Duty to give reasons - No question of principle

Corporations Law. Application under s459G to set aside Statutory Demand. Demand varied. No matter of principle.

ADMINISTRATIVE LAW - challenge to ex-parte decision of Tribunal - adjournment - ambit of appeal - procedural fairness - reasons and power to correct obvious error

CRIMINAL LAW - Trial by judge alone - charge of murder - whether defence of mental illness proved.

CONTRACTS [120], INTERPRETATION [12] - General rules of construction of instruments - Commercial and business transactions - Regard to relevant terms of agreement - Meaning to avoid commercial nonsense or inconvenience.

[SUBPOENA] - subpoena to produce documents - whether Auditor-General required to produce documents in compliance with a subpoena - whether secrecy provisions in s 38(1) of the Public Finance and Audit Act 1983 prohibit compliance

Contempt - Costs - Jurisdiction - whether provisions of Criminal Procedure Act apply - whether costs should follow the event - whether power to review earlier costs order.

Criminal law - appeal against sentence - offence of maliciously inflicting grievous bodily harm - whether error demonstrated in relation to use of various aggravating factors in passing sentence

SENTENCE APPEAL - Aggravated Sexual Intercourse Without Consent (In Company) - juvenile offender - whether youth an objective factor - whether failure to take account of principles under s 6 Children (Criminal Proceedings) Act 1987 - whether manifestly excessive.

Sentencing - breaking and entering and malicious damage - offender's mother's home - substance abuse and psychiatric problems - objective seriousness below mid-range - strong subjective features - 25 per cent discount for plea - sentence of 5 years 3 months with non-parole period 3 years excessive - substantial progress in rehabilitation - need for supervision following release - resentenced to 3 years 9 months with non-parole period 1 year 9 months.

CRIMINAL LAW – Practice and procedure – Indictments – Conspiracy – Patent duplicity – Latent duplicity – Criminal Code Act 1995 (Cth), s 11.5 - CRIMINAL LAW – Practice and procedure – Indictments – Consent to commence proceedings – Time of commencement of proceedings – Criminal Code Act 1995 (Cth), s 11.5(8) - CRIMINAL LAW – Practice and procedure – Indictments – Conspiracy – Whether a conspiracy to commit a preparatory act is unknown to law – Criminal Code Act 1995 (Cth), s 101.6.

EQUITY – Interlocutory injunctions – Claim for interest in shares transferred to broker on documents giving full title to broker – Claim that entry into transactions induced by misrepresentation that transactions merely gave security over the shares – Claim of notice to bank taking title from broker – Whether serious question to be tried against bank – Balance of convenience – Whether damages a sufficient remedy.

NEGLIGENCE - train/motor vehicle accident at railway crossing - breach of duty by train driver alleged - breach of duty with respect to design and construction of railway crossing alleged - whether truck driver breached Australian Road Rules - Rule 123(d) - and entered the railway crossing without stopping as required - finding that the truck driver in breach of duty entered the crossing without stopping - no breach of duty by train driver or defendants - on cross-claim by first defendant (State Rail) no contributory negligence - no apportionment of liability - DAMAGES - defendant disputing actual repair costs were reasonable - actual costs paid prima facie evidence of reasonableness of costs - evidentiary onus on a defendant - requirement to establish by evidence that costs paid were not within what is a reasonable range for such repairs - nature of the evidence required to establish costs paid were not reasonable costs - claimed benefit to State Rail of deferred expenditure not established

Criminal law - manslaughter by unlawful and dangerous act - extended joint criminal enterprise - sentence - plea of guilty

Statutory interpretation - entry and occupation of development site by State agencies under State Emergency and Rescue Management Act - whether such occupation exclusive - whether power to exclude developer from site and if so the extent of that power - whether developer entitled to possession of development site.

COSTS – costs provisions under the Crimes (Appeal and Review) Act – power of the Court to order costs ‘as it thinks just’ – relevant considerations in exercising this costs power

LIMITATION OF ACTIONS - collision between HMAS Voyager and HMAS Melbourne - extension of time granted - costs of application - reasonableness of conduct of Defendant - just, quick and cheap resolution of real issues in proceedings - model litigant obligations of Defendant

Manslaughter plea - unlawful and dangerous act - Crown case on sentence consistent with intention to inflict grievous bodily harm - obligation upon sentencing judge to accord procedural fairness to offender - application to disqualify for apprehended bias.

CRIMINAL LAW - Sentencing after plea of guilty - manslaughter by reason of provocation

EQUITY - Fiduciary obligations - Partnership land held by company and individual - Share in company held by trustee for beneficiary - Heads of agreement to wind up partnership - Trustee to take surrender or transfer of beneficial interest in share - Claim for specific performance - Whether heads of agreement void under "self-dealing" rule - Whether voidable under "fair-dealing" rule - Whether evidence of offer to purchase the land is admissible as evidence of full value - Whether an offer by a neighbour should be analysed for special elements - Whether heads of agreement void for uncertainty - Whether heads of agreement rescinded

DEFAMATION — nature of— actual disparagement of the plaintiff’s reputation — reputation includes general character and standing and trade, business or professional reputation — DEFAMATION — what is defamatory — requires publication likely to cause ordinary decent folk in the community, taken in general, to think the less of plaintiff — DEFAMATION — nature of injury to business reputation — whether to be determined by reference to whether publication likely to cause ordinary decent folk in the community, taken in general, to think the less of plaintiff — JURY — directions to jury as to standards by which to determine whether an imputation injures plaintiff’s trade, business or professional reputation

[TRADE PRACTICES] – Misleading or deceptive conduct – whether understatement of wages – whether misrepresentation incorporated as term of contract – whether reliance on representations in pre-contractual negotiations – whether reliance on contractual warranty that documents attached to contract accurate and complete – whether causal link between misrepresentation and damage severed – accessorial liability of company director. [CONTRACTS] – Breach of contractual warranty – statements attached to contract not accurate and complete. [DAMAGES] – Principles – difference between price paid for business and true value.

SUCCESSION - will construction - "any monies [sic] held by me in any financial institution at the date of my death" - whether that phrase encompasses certain superannuation entitlements of testator. SUCCESSION - family provision - claim by live-in carer and housekeeper - Plaintiff received significant benefits under will - whether Plaintiff is an eligible person - membership of the same household as Deceased - dependency upon Deceased - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - factors warranting the making of the application - competing claims of other beneficiaries.

Appeal from Small Claims Division of Local Court - challenge to conditions imposed for the setting aside of default judgments and the order for costs - power of Local Court in its Small Claims Division to award costs - power of Local Court in its Small Claims Division to order payment into court as a condition of setting aside a default judgment.

CRIMINAL LAW - detaining a person with intent to obtain advantage - SENTENCING – appeal against severity of sentence – offender suffering from mental disorder – assessment of impact on moral culpability - use of sentencing statistics – no error demonstrated – sentence not manifestly excessive

TRUSTS – resulting trust – gift of half-interest in land to daughter – presumption of advancement – presumption supported by evidence. - TRUSTS – resulting trust – property purchased in joint names of son and mother with mother’s money – presumption of advancement not rebutted. - REAL PROPERTY – conveyancing – agreement to transfer property – power of attorney to deal with specified property and ‘irrevocable authority’ allowing attorney to direct payment of proceeds of sale of property – principal’s consent to power of attorney being exercised for benefit of attorney and a third party withdrawn – consent revocable as no estoppel or consideration.

CRIMINAL LAW - Evidence - Conspiracy rules - Relevance - s 56 Evidence Act 1995