Cases and authorities

CORPORATIONS and PRACTICE AND PROCEDURE - winding up application not determined within six month period provided in s 459R(1) of the Corporations Act 2001 (Cth) - matter ordered within six month period to be set down to be heard after its expiry - no extension granted under s 459R(2) before expiry - application under Uniform Civil Procedure Rules Pt 36 r 36.17 for order supplementing setting down order by adding order for extension - whether relief available

CRIMINAL LAW - sentence - manslaughter - stabbing - excessive self-defence - accessory after the fact to manslaughter

Admissibility of evidence given by witness as to observations of an object

PRACTICE – costs – costs assessment – appeal from Review Panel – determination as to whether 1987 or 2004 Act applies – jurisdiction of Costs Assessor under 1987 Act relating to "unjustness" – availability of cancellation fees as a matter of law – "reasonableness" of cancellation fees – construction of costs agreements – applicability of GST to barrister’s fees payable by solicitor where client is overseas resident.

STATUTORY INTERPRETATION - workers compensation - defendant's application for limited stay of substantive proceedings - injured worker recovered compensation from his employer as a result of injury caused by the tort of a third party - plaintiff employer seeking indemnity against the defendant tortfeasor for past and future liability or damages under s 151Z of the Workers Compensation Act - injured worker refusing to attend medical examinations arranged by the defendant - whether an employer may require an injured worker not a party to proceedings to attend medical examinations under s 119 of the Workplace Injury Management and Workers Compensation Act 1998 for the purposes of a third party - limits imposed upon demands of medical examination of injured workers- purpose of s 119 is the determination of a claim by an injured worker against an employer - s 119(2) not available either to an employer or a third-party tortfeasor for the purpose of a claim under s 151Z.

Defamation - justification - whether statement of fact or comment - if comment, whether based on true facts sufficiently referred to - whether comment must be reasonable.

Admissibility of affidavit sworn by the accused

CRIMINAL LAW - killing in the course of armed robbery - Sentencing for murder after trial.

CRIMINAL LAW - appeal against conviction and sentence - murder - strangulation of de facto partner - whether conviction for murder unsafe and unsatisfactory - whether evidence only supported a conviction for manslaughter - whether appellant had an intention to kill or cause grievous bodily harm - whether trial judge gave balanced summing up - whether matter fell within middle range of objective seriousness - whether trial judge erred in imposing standard non-parole period

CONTRACT - Vendor - purchaser suit - whether purchaser's conduct amounted to repudiation - Notice to Complete - whether period given sufficient to make time of the essence - right to recover deposit

PRACTICE AND PROCEDURE - Uniform Civil Procedure Rules Pt 7 r 7.4 - representation of concurrent interests - whether requirement that claims of all persons give rise to a substantial common issue of law or fact satisfied - whether discretion should be exercised to order that proceedings no longer be carried on by plaintiffs as representing other members of group - Application to strike out part of claim on basis that no course of action is disclosed - Corporations Law 2001 (Cth) ss 1012A, 1012A(3), 1013C and 1013D - requirements for pleading claim - requirements for pleading loss or damage - Civil Liability Act 2002 NSW - Pt 1A - whether defence of contributory negligence is available to a claim for breach of s 1012A of the Corporations Act

CRIMINAL LAW - Application to disqualify a Trial Judge - Apprehension of bias - Trial Judge involvement in earlier trial involving similar issues.

CONTRACT – express or implied retainer – legal practitioner described as “the family solicitor” in arrangement to transfer property from mother to her sons - COSTS – costs follow the event – cost of issues abandoned at beginning of proceedings – offers of compromise – Uniform Civil Procedure Rules r 42.1 - DAMAGES – loss of chance – assessment of probabilities and possibilities - TORTS – negligence – duty of care –duty of solicitor of testator to intended beneficiary of will – duty of solicitor to third party where performance of duty not in conflict with duty to client

CAUSATION - multiple causes - but for test - CONTRIBUTION - multiple causes - causative potency - culpability - NEGLIGENCE - multiple causes

APPEAL – practice and procedure – powers of the court – remit - CORPORATIONS – winding up - order for reinstatement of a company following voluntary winding up – consequent reinstatement of the company to the register by ASIC – effect of reinstatement – power of the court to order rectification of the register to complement setting aside the order for reinstatement – Uniform Civil Procedure Rules 2005 r 36.15 – Corporations Act 2001 (Cth) s 601AH, s 1322(4) - PROCEDURE – orders of the court - power of the court to set aside an order – requirement of irregularity - Uniform Civil Procedure Rules 2005 r 36.15 – irregularity in failing to disclose to the court – Corporations Act 2001 (Cth) s 601AH(2)(b) – irregularity in denying procedural fairness to affected party – effect of presence of an observing solicitor in court proceedings - WORDS & PHRASES – “rectify”, “rectification”

PROFESSIONS & TRADES [224]- Pharmaceutical chemists- Meaning of "pecuniary interest" in s 25 of Pharmacy Act 1964- Mere shareholding in company that owns and operates a pharmacy insufficient to constitute "pecuniary interest"- Need to ascertain totality of circumstances to determine whether "controlling interest"- Held where shareholder in a position to control and indicates intention so to do, to its probable financial benefit, shareholder holds a pecuniary interest. PROFESSIONS & TRADES [224]- Pharmaceutical chemists- Scope of "grandfather" clause in cl 21(1) of Pharmacy (General) Regulation 1998- Exemption only available for lawful shareholdings held before 5 October 1990- Defendant acquired shareholding on 31 March 2006- Exemption did not apply.

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute - no matter of principle

COMMON LAW - misleading and deceptive advertising in contravention of FTA - question whether avertisements conveyed misrepresentations alleged by the Commissioner - dispute by defendant as to his authorisation of publication of certain parts of advertisements - application for permanent injunction under s 65 FTA - power to grant injunction - exercise of Court's discretion under s 65

Objection to material in accused's interview with police

Cross-examination by Crown of Crown witness upon credibility

NEGLIGENCE - economic loss - whether solicitor requesting Registrar-General to correct lot numbers on strata plan owed duty of care to plaintiffs who later became mortgagees of a strata lot - TORRENS SYSTEM - Registrar-General's power to correct register by correcting references to lot numbers on a plan (s 12(1)(d1)) - whether plaintiffs entitled to claim compensation from solicitor under s 120 - whether plaintiffs entitled to recover compensation from Torrens Assurance Fund under s 129 - whether Court should grant leave nunc pro tunc under s 132(2) for proceedings to be commenced without prior administrative proceedings

Cross-examination by Crown of Crown witness upon credibility

CRIMINAL LAW - appeal against conviction and sentence - multiple counts of indecent assault and sexual intercourse without consent - whether appellant fit to be tried - no application made by defence counsel - whether trial judge erred in failing to grant adjournment for purpose of obtaining medical assessment as to state of mind of appellant - overwhelming Crown case - CRIMINAL LAW - legal representation - conflicting instructions from appellant - application by defence counsel for leave to withdraw - whether trial judge erred by refusing to grant adjournment for appellant to obtain other legal representation - whether lack of legal representation resulted in a miscarriage of justice - CRIMINAL LAW - sentencing - whether sentence manifestly excessive

CRIMINAL APPEAL – appeal against sentence – exercise of sentencing discretion – when appellate intervention warranted – demonstration of error or manifest excess - NON-PUBLICATION ORDER – child victim deceased at time of proceedings – Children (Criminal Proceedings) Act 1987 (NSW) s 11 - SENTENCING – appeal against sentence – manifestly excessive – manslaughter of child – applicant with intellectual disability – anxiety – depression – effect of intellectual disability on assessment of moral culpability – effect of intellectual disability on assessment of general and specific deterrence – consideration of prior offences – previous good character – good prospects of rehabilitation

CRIMINAL LAW - Sentencing - aggravated indecent assault - no question of principle

CRIMINAL LAW - application for leave to appeal against sentence - manslaughter by dangerous and unlawful act - juvenile offender - principles relevant to sentencing young offenders - whether sentencing judge had sufficient regard to offender's youth and immaturity - whether offender acted as an "adult" - considerations of punishment, general deterrence and rehabilitation of young offender - whether sentence manifestly excessive

Defamation – Publications – Television broadcast – Whether capable of conveying defamatory “acquiescence” imputations - Practice and Procedure – Pleadings – Whether leave to be granted to amend pleadings

APPEAL AND NEW TRIAL – Appeal – general principles – points and objections not taken below – when not allowed to be raised on appeal – question not raised in pleadings or in argument – question of law – where statute law changes after trial but before the giving of judgment – where opportunity to bring the change of law to the attention of the judge not taken by legal representatives – where determining appeal on the point prejudicial to other party – Sullivan v Gordon – Civil Liability Act 2002, s15B - APPEAL AND NEW TRIAL – New trial – in general and particular grounds – points and objections not at trial – when not allowed to be raised – other conduct debarring the applicant – other matter – where law changes after trial but before the giving of judgment – where opportunity to bring the change of law to the attention of the judge not taken by legal representatives – where new trial not in the interests of justice – Sullivan v Gordon – Civil Liability Act 2002, s15B - DAMAGES – Measure and remoteness of damages in actions for tort – measure of damages – personal injuries – method of assessment – generally – where “cushion” or “buffer” damages awarded – whether damages should have been assessed at specific rate - TORTS – Negligence – essentials of action for negligence – duty of care – relationship of proximity – builder of premises with defect – injury to member of immediate family of first occupiers of newly built home.

PARTNERSHIP – sale of interest in partnership pursuant to agreement of sale – agreement of sale providing for purchaser to account to vendor for half of debts owing to business at time of completion – claim for money due under agreement – whether agreement on stated and settled account – held yes - LOCAL COURT – jurisdiction – whether proceedings in nature of action for accounts – held no.

NEGLIGENCE - motor accident - intoxicated driver - injury to passenger - s 138(2)(b) of Motor Accidents Compensation Act 1999 - whether respondent guilty of contributory negligence - whether respondent ought to have been aware of driver's impairment - whether ordinary person would have foreseen that accepting a lift from the driver was exposing them to injury

COSTS – failed appeal – whether s.17 of the Criminal Appeal Act applies to preclude an order for costs - CRIMINAL APPEAL – appeal by Crown against reduced sentence – whether an incompetent appeal or abuse of process

Sentence appeal - successful appeal in other sentence proceedings - need to adjust commencement date for sentences in this matter having regard to successful appeal in the other sentence proceedings.

MORTGAGES - competing security interests - distinction between floating charge and fixed charge - nature of "purchase money security" - CORPORATIONS - corporate finance - competing registered charges - whether priority according to time of registration displaced

Contract - Construction and interpretation of contracts - Equity - Rectification - General principles - Requirement of clear and convincing proof of a common intention inconsistent with the words deliberately employed - Evidence - Admissibility of post-contract communications - Admissibility of post-contract admissions - Distinction between evidence admissible upon construction of contract as opposed to rectification - Contract under consideration set out in undertaking given to the Court - Onus of proof

Succession - Executors and Administrators - Proceedings against executors. Accounting on basis of wilful default. Nature of just allowances. Allowance to executors of just allowance for work done by one executor's husband during lifetime of deceased.

Workers compensation – Lump sum compensation – Work injury damages – Whole person impairment – Permanent impairment – Whether acceptance of degree of whole person impairment for purposes of s 66 claim constituted acceptance for purposes of work injury damages claim– Legislative history of claims by injured workers in NSW – Dichotomy between statutory compensation and work injury or common law damages – Estoppel by conduct – Whether party estopped from denying degree of whole person impairment in respect of one claim when it agreed in respect of another.

TORT - motor vehicle accident - personal injury - liability - acceptance of evidence of witness.

PRACTICE AND PROCEDURE - Professional negligence - plaintiff's application for the defendants personally to attend voluntary mediation - whether the Court has power under s 2.1 of the Uniform Civil Procedure Rules to make such order - whether the Court should order mandatory mediation thereby requiring the defendants to participate - inappropriate use of power conferred by s 26 of the Civil Procedure Act - plaintiff entitled to seek Court ordered mediation if voluntary mediation not productive - application refused

Application for costs - vacation of mediation date - application of s 30(4) Civil Procedure Act 2005 - whether facsimile advising intention to cancel mediation admissible.

Evidence of "reconstruction"

ADMINISTRATIVE LAW - Standing to sue not made out - JUDICIAL REVIEW - Review of Commissioner's decision to refuse distribution of newsletter for prisoners - Extent of power under s 232 Crimes (Administration of Sentences) Act and the Crimes (Administration of Sentences) Regulation - Relevant considerations - Irrelevant considerations - COMMON LAW - Right to freedom of communication - CONSTITUTIONAL LAW - Implied freedom of communication concerning government or political matters - EVIDENCE - Admissibility of business records - Paragraph 23 of SCCL 3 Practice Note - Approach to s 11 of the Evidence Act

CONTRACT – agreement to provide engineering advice for obtaining full volume approval to import Porsche motor vehicles complying with Australian design rules and compliance plate approval – whether agreement extended to scheme to import motor vehicles in parts – terms of agreement vague – agreement void for uncertainty – money paid on a consideration that wholly failed - TORT – duty of care – scope and content of duty coextensive with terms of agreement – not possible to determine whether breach occurred

CRIMINAL LAW – Criminal Appeal Act 1912, s 5F - appeal against interlocutory judgment or orders – statutory right of appeal of Attorney General and DPP against interlocutory judgment or orders - PROCEDURE – subpoena for production - legitimate forensic purpose – whether it is ‘on the cards’ that documents will materially assist case

CONTRACTS - general contractual principles - whether contractual relations between appellants and respondents - whether collateral contract entered into on appellant’s behalf by its agent - whether a party acting as agent of the appellant in a limited sense has authority to enter into contracts on behalf of the respondent - whether contractual warranties made - whether contractual warranties breached - TRADE PRACTICES - whether false, misleading and deceptive representations made by appellant or an agent of the appellant to the respondents - whether respondents discharged onus of proof in respect of inaccuracy of representations - whether proof of damage - s 42, s 44 and s 50 Fair Trading Act 1987 - s 52, s 53 and s 55 Trade Practices Act 1974 (Cth) - EVIDENCE - matters relating to proof - onus of proof - where appellant does not admit to a negative proposition in respondent’s pleadings in court below - where appellant has greater means to produce evidence to contradict that negative proposition - whether respondent established sufficient evidence from which negative proposition could be inferred - whether onus shifted to appellant to adduce evidence that tends to show negative proposition incorrect - what is meant by saying onus has shifted to defendant - PROCEDURE - District Court procedure - where appellant filed defence in court below prior to introduction of Uniform Civil Procedure Rules - pleading in District Court then governed by Part 9, Rule 14 District Court Rules - Rule made provision for a denial or non-admission of an allegation in a statement of claim - statement by a defendant that it “does not plead to” an allegation in a Statement of Claim is neither a denial nor an admission - whether statement operated as an admission of that allegation - APPEAL - where trial judge makes no findings in respect of certain matters pleaded - where respondents do not file a Notice of Contention on appeal - consequences on appeal - PROCEDURE - costs - whether any right to nominal damages flowing from a breach of contract would affect order for costs - whether some other legal right would be vindicated by a judgment for nominal damages - PROCEDURE - costs - where appellant succeeds in an appeal on a point taken below and on appeal - appropriate to order respondents to pay costs of the appellant in the court below and on appeal - PROCEDURE - costs - where appellant succeeds in an appeal on a point not taken below - whether entire appellate process necessitated by failure to take point below - whether appropriate to order appellant to pay costs of both parties on appeal - PROCEDURE - costs - where outcome of appeal shows that proceedings at first instance ought to have been dismissed - appropriate to order plaintiffs in court below to pay costs at first instance - WORDS AND PHRASES - "to carry on business"

REAL PROPERTY – conveyancing – contract for the sale of land – notice of rescission – service – address for service – last known business or residential address – possible to have more than one last known address – notice of new address did not displace knowledge that an earlier address was also a valid address for service

TAXES AND DUTIES - Payroll Tax - Assessments to tax under Pay-roll Tax Act 1971 against members of a group - Only one group member sought review by Court - Whether Chief Commissioner entitled to join chief member of group in proceedings or have leave to serve a cross-claim on it - Whether such relief available in terms of the Civil Procedure Act 2005, s 56, s 57 and s 58 - Whether the Taxation Administration Act 1996, Pt 10 is an exclusive code for dealing with reviews - Whether s 103A(1) prevents the court from considering any aspect of the assessment against the chief member of the group in the proceedings before the Court

TORTS - trespass to land - defendant drilling rock anchors in plaintiff's land - defence of consent - onus of consent lies with defendant - CONTRACTS - principal and agent - agent's authority must come from principal