Cases and authorities

Family Law - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - assets held by Plaintiff were acquired entirely from direct and indirect financial contributions of Defendant - significant contributions of Plaintiff as homemaker and mother - the Court should not be diverted from the clear wording of the statute, which looks to past contributions actually made by the parties - the Court cannot proceed upon some conjectural basis grounded upon the assumption that contributions which were not made by a party might, or should, have been made.

EQUITY - Equitable Estates and Interests - Whether a resulting or constructive trust arose - Agreement to contribute $50,000 - Whether contribution made - Whether on failure to contribute, defendant entitled to purchase property herself

EVIDENCE - client legal privilege - litigation - notice to produce documents relating to availability or willingness of witness to give evidence - statement of evidence proposed to be given by witness served - witness did not give evidence at trial - whether documents attracted privilege - whether privilege waived - consent - imputed consent - whether unfair or inconsistent to keep documents hidden - inspection of documents required - Evidence Act 1995 s 118, s 119, s 122

CORPORATIONS – winding up – application for winding up on ground of insolvency – ground made out and undisputed – relevance of allegation of lack of impartiality on part of provisional liquidator – relevance of allegation of lack of consultation between liquidator and shareholder director – no evidence adduced in support of allegations – no application made for adjournment to put on evidence – relevance of claim that winding up application was an attempt to circumvent a shareholders’ agreement – no application made for injunction to enforce shareholders’ agreement – whether appropriate to make order for winding up in court vacation – costs

MORTGAGES - remedies of the mortgagee - default judgment for possession of property obtained - second application for stay of writ of possession - no evidence of how value of mortgaged property compares to mortgage debt - extension granted on basis of hardship

Serious sex offender - continuing detention order.

CORPORATIONS - winding up in insolvency - standing to bring proceedings as creditor in reliance on assignment of debt - service of notice of assignment and originating process - abuse of process - scope of "premature publication rule" - solvency, where arrangements have been made with creditors and company relies on unsecured loans by related parties

REAL PROPERTY - caveats - application for withdrawal of caveats - application to restrain lodgement of further caveats - contracts for sale of land exchanged - whether appropriate to order removal of caveat when caveator not served - whether appropriate to make declaration that defendant has no caveatable interest in the land

CORPORATIONS - winding up - application to restrain winding up - Goods and Services Tax assessment - Income Tax assessment - appeals to Federal Court pending - whether appeals can be fairly argued

Application for judicial inquiry into conviction - fourth application - matter fully dealt with previously - no special facts or special circumstances.

CORPORATIONS - winding up - application to set aside order for winding up - court order made on basis of fundamental error

MORTGAGES - default under mortgage - order for costs relating to enforcement of mortgage - reasonableness of mortgagee’s conduct - whether mortgagee disentitled to amount for enforcement costs - mortgage includes covenant allowing recovery of enforcement costs on basis different to that upon which courts would ordinarily order costs to be paid - MORTGAGES - circumstances in which mortgage will be void for uncertainty

PRACTICE AND PROCEDURE - application for stay of judgment pending appeal - whether refusal of adjournment amounted to denial of natural justice - whether Magistrate's reasons insufficient - whether Magistrate failed to consider whether prejudice to plaintiff could be remedied by costs order and new procedural directions - whether allegation that Magistrate compelled withdrawal of cross-claim goes to correctness of judgment given - whether new legal issues may be raised on appeal

JOINT VENTURE - accounts - calculation of shares of profits

MORTGAGES - remedies of the mortgagee - order for possession made - application for stay pending appeal - - various alleged deficiencies in order for possession considered - applicant unsure of what mortgage judgment based on - contract alleged on stay application to be in dispute - alleged irregularities in transcript below - lack of consent of mortgagor to judgment - alleged denial of natural justice - effect of entry of contract for sale by mortgagor of mortgaged property - failure of mortgagee to follow dispute resolution procedures of Matthew 18 - effect of trial not being by jury - effect of reference to applicant as a “person” - alleged invalidity of appointment of judges - alleged contravention s.116 Constitution - procedure to be used to decide challenge to Court’s jurisdiction

ADMINISTRATIVE LAW - whether Liquor Administration Board acted beyond power in approving Social Impact Assessments under Liquor Act 1982 and Gaming Machines Act 2001 - meaning of "trading hours" under the Regulations to the Liquor Act - whether proposed trading hours exceeded the trading hours of the former premises - whether clause 33 of the Gaming Machines Regulation 2002 requires transferee hotel to be an existing licensed hotel - Winners Circle Pty Ltd v Liquor Administration Board [2007] NSWSC442 followed.

LIABILITY - Negligence of employer and contractor - accident within steelworks between oversize dump truck and domestic vehicle - failure by employer to provide safe system of work - failing to properly co-ordinate movement of traffic within steel works - failure to properly co-ordinate interaction of oversize and domestic vehicles on narrow stretch of road - CAUSATION vicarious liability of contractor for actions of truck driver failure of driver to stop when confronted with potentially dangerous situation - duty of haulage contractor to other drivers within the steelworks - whether breach of duty established - CONTRIBUTORY NEGLIGENCE - apportionment of liability between defendants. - DAMAGES - C5 quadriplegic - future physiotherapy needs - future psychological treatment - future hospitalisation - additional costs for holidays - future care - loss of capacity to care for children - application of s 15B of Civil Liability Act - fund management.

Sentence appeal - robbery - excessive use of force but no injury - accumulation of sentences - utilitarian discount - need to ensure reflected in overall sentence

CRIMINAL LAW – Appeal – miscarriage of justice – Circumstances not involving miscarriage or in which miscarriage not substantial – improper rejection of evidence – witnesses – cross-examination – where cross-examination of complainant’s actual response given to a question in an intercepted conversation disallowed – where complainant should have been cross-examined - CRIMINAL LAW – Appeal – miscarriage of justice – Circumstances not involving miscarriage or in which miscarriage not substantial – where cross-examination disallowed but should have been permitted – no substantial miscarriage of justice - CRIMINAL LAW – Appeal – miscarriage of justice – Circumstances not involving miscarriage or in which miscarriage not substantial – other irregularities – permitting improper cross examination – improper comment – where comment framed as an irrelevant question – where some questioning framed improperly – where some questioning relevant - CRIMINAL LAW – Appeal – miscarriage of justice – Circumstances not involving miscarriage or in which miscarriage not substantial – where taken as a whole questioning did not involved a substantial miscarriage of justice - CRIMINAL LAW – Appeal – particular grounds – unreasonable or insupportable verdict – where appeal dismissed

CRIMINAL LAW – appeal against conviction – miscarriage of justice – fair trial – material irregularity – jury irregularities – test in Marsland – juror misconduct – juror inquiries – internet research – discussing trial with persons other than fellow jurors – prejudicial material – departure from rules of evidence and procedure – trial judge directions and warnings – Proviso – substantial miscarriage of justice

Charges of murder and maliciously inflict grievous bodily harm with intent. Correct directions as to extended joint enterprise for murder and manslaughter. Directions given deficient. Challenges to admission of identification evidence rejected. Identification evidence strong. No unfair prejudice in its admission. Duong Hai Nguyen as the shooter and principal offender correctly convicted of murder. Overlooking of jury note and not answering request for further directions or telling parties of note. New trials ordered for alleged other offenders. Sentence. Offence of murder of Duong Hai Nguyen classified as mid-range and not substantially above mid-range. Sentence reduced accordingly. Sentences for murder and maliciously inflict grievous bodily harm with intent partially cumulative. No special circumstances other than accumulation. Parole period one-third of total non-parole periods.

DEFAMATION – whether answers of jury perverse or unreasonable – whether error in directions of trial judge to jury – identification – ordinary reasonable reader – adoption or endorsement of defamatory allegation by publisher. - JURISDICTION – right of appeal from civil jury trial in District Court – application for new trial – District Court Act 1973, ss 126 and 127 – Supreme Court Act 1970, s 75A, Part 7. - PROCEDURAL FAIRNESS – refusal to permit right of reply – discretion of trial judge – Uniform Civil Procedure Rules 2005, r 29.6. - WORDS & PHRASES – “Judge’s judgment or order” – “decision of a Judge” – District Court Act 1973, s 127.

CONTRACTS - General contractual principles - Construction and Interpretation of Contracts - Implied terms - Terms essential to enable performance - Employment contract - Whether trial judge erred in finding additional implied terms - DAMAGES - Measure and remoteness of damages in actions for tort - Mental and nervous shock - Failure to provide safe place of work - Whether double compensation for breach of contract and tort - DAMAGES - Exemplary damages - Focus upon conduct of wrongdoer - Whether trial judge erred in awarding exemplary damages - s 151M of Workers Compensation Act 1987 and Pt 33 r 8A of Supreme Court Rules 1970 - whether trial judge erred in awarding interest - LIMITATION OF ACTIONS - Contracts, torts and personal actions - Personal injury cases - Workers Compensation Act 1987 s 151D - Whether trial judge erred in granting leave to bring proceedings - Fairness underlying principle as to whether to allow action - TORT - Negligence - Essentials of action for negligence - Where nervous shock or mental disorder - Common law - Reasonable foreseeability of damage - As between employer and employee - Workplace bullying and racial taunts - TORT - Negligence - Essentials of action for negligence - Duty of Care - Special relationships and duties - Employer and Employee - Where employee is subcontracted to workplace where bullying occurs - Third party’s duty to provide safe place and safe system of work - TORT - Negligence - Liability for other’s negligence - Contractors - Direct liability of employer for actions of site supervisor - TORT - Negligence - Apportionment of responsibility and damages - Liability of employer and contracting party - Whether trial judge erred in apportionment - TORT - Negligence - Vicarious liability - Sufficient connection with duties and responsibilities as employee - Site supervisor bullied and intimidated contractor under his control - Whether conduct in course of employment - TORT - Intentional tort - Mental and nervous shock - Requires intention or reckless indifference

CORPORATIONS - Civil penalty orders - multiple declarations of contravention - Application of Pearce v R (1998) 194 CLR 610 to civil penalty orders considered - banning orders prohibiting personal defendants from managing corporations - pecuniary penalties.

LEGAL PRACTITIONERS - cancellation and suspension of practising certificate - application by solicitor for stay of cancellation of practising certificate - balancing exercise - protection of public paramount - whether fruits of successful appeal would be lost if stay not granted.

Sentenced to imprisonment for a non-parole period of 15 years commencing 28 July 2006 and concluding 27 July 2021, the balance of term being a further 5 years expiring on 27 July 2026 - eligible for release on 27 July 2021.

DAMAGES – personal injury – costs of funds management – arises where injury precludes plaintiff from managing own affairs – principal sum to be managed is a question of fact – in this case excludes only repayment to Medicare and Centrelink

CORPORATIONS - winding up - statutory demand - application for orders setting aside - validity of service of application and supporting affidavit - supporting affidavit served by facsimile before filing - application transmitted by facsimile before filing and then in a broken facsimile after filing, not seen until outside the 21 day period - application also transmitted by email, not seen until after the 21 day period

CRIMINAL LAW - sentence - manslaughter - excessive self defence - extraordinary hardship to offender's family by reason of his incarceration

CTTT APPEAL – error of law – expert evidence – Makita principles – whether failure to disclose adequately reasoning by expert – building valuation report – valuation of strata title units – failure to have evidence of actual value of units - ADMINISTRATIVE LAW – standing – whether party a "person".

Criminal law – collecting documents connected with preparation for a terrorist act – doing an act in preparation for a terrorist act – possessing a thing connected with preparation for a terrorist act - Criminal law – indictment – particulars – whether indictment lacked particularity - Criminal law – indictment – duplicity – whether indictment duplicitous - National security information – orders prohibiting disclosure – risk of prejudice to national security – whether test for risk of prejudice usurps judicial power – whether test unconstitutional - Admissibility of evidence – evidence of association of accused person and trained terrorist – whether evidence had probative value – whether inference of intent available from association – whether risk of unfair prejudice outweighed probative value - Admissibility of evidence of identification by photograph of a person not the accused – fairness of identification procedure – whether risk of unfair prejudice outweighed probative value - Evidence adduced on appeal – whether fresh – whether cogent - Collecting documents connected with preparation for a terrorist act – doing an act in preparation for a terrorist act – possessing a thing connected with preparation for a terrorist act – whether Crown must prove that at the time of the collection, the action or the possession the accused has determined when how where or by whom the terrorist act might be carried out - Terrorism – culpability for preparatory acts short of attempt - Sentencing - acts preparatory to terrorist acts - protection of the community - Criminal law – sentence - whether assessment of objective seriousness of offence flawed - whether sufficient weight given to custodial conditions – whether head sentence should have been reduced – whether sentence manifestly excessive

CRIMINAL LAW – appeal against conviction – specially aggravated break, enter and commit serious indictable offence – meaning of “break” – entry by co-offender through window left partly open – co-offender further opened window – window left open by arrangement – no evidence appellant opened window – no evidence of breaking – conviction quashed

CRIMINAL LAW – Appeal – particular grounds – unreasonable or insupportable verdict – where appeal dismissed – whether jury should have had a reasonable doubt – whether appellant participated in offence – where argued that evidence on the timing of the offence could not accommodate appellant’s participation

Serious sex offender - application for continuing detention order - likely to commit further serious sex offence - no onus to establish that the offender is of the very worst case - application not an abuse of process - lack of consideration of potential conditions of release under supervision - further interim detention order.

ORDERS – Whether costs order should be made against Commissioner for costs incurred after he admitted liability – whether stay should be ordered pending appeal – whether enquiry into Liquidators’ conduct should proceed.

CRIMINAL LAW – Crown appeal against sentence – sentence manifestly inadequate – sentences failed to reflect objective gravity of offences – whether error in imposing concurrent sentences – specially aggravated detain for advantage – aggravated break enter and steal – obtain financial advantage by deception – cultivate prohibited drug CRIMINAL LAW – Crown appeal against sentence – discretion of Court in re-sentencing in Crown appeal – principle of restraint in re-sentencing in Crown appeal – double jeopardy SENTENCING – Crown appeal against sentence – sentence manifestly inadequate – sentences failed to reflect objective gravity of offences – whether error in imposing concurrent sentences – principle of totality - specially aggravated detain for advantage – aggravated break enter and steal – obtain financial advantage by deception – cultivate prohibited drug SENTENCING – Crown appeal against sentence – discretion of Court in re-sentencing in Crown appeal – principle of restraint in re-sentencing in Crown appeal – double jeopardy

DEFACTO RELATIONSHIPS - agreement between former defacto partners - principle in Balfour v Balfour [1919] 2 KB 571 and Cohen v Cohen [1929] HCA 15 - (1929) 42 CLR 91 no longer applicable - TRUST - intention to create - bilateral transaction for consideration - test objective

CORPORATIONS - winding up - application for appointment of provisional liquidators - evidence of lack of financial records and financial statements, and mismanagement - discretionary considerations

DAMAGES - Defamation Act 2005 - imputations of criminality

CRIMINAL LAW - conviction appeal - drug importation - r 4 - guilty verdict upheld.

CRIMINAL LAW – appeal from sentence – whether sentence manifestly excessive – principle of parsimony – legitimate range of sentences – exercise of discretion of sentencing judge – Criminal Appeal Act 1912 (NSW), s 6(3) SENTENCING – whether sentence manifestly excessive – principle of parsimony – legitimate range of sentences – exercise of discretion of sentencing judge – Criminal Appeal Act 1912 (NSW), s 6(3) WORDS & PHRASES – sentence “warranted in law”

APPEAL - re-opening proceedings to correct errors - re-sentencing.

NEGLIGENCE - duty to provide safe system of work - promotion procedures in Police Force - no duty of care to prevent psychiatric injury - NEGLIGENCE - statutory powers of Commissioner in management of Police Force - exercise of powers not justiciable - POLICE - powers of Commissioner in management of Force - exercise of powers not justiciable

DAMAGES — Personal injury — plaintiff with psychiatric disorder partly caused by sequelae of workplace injury and partly by marriage breakdown — real probability that had workplace injury had not occurred plaintiff might have suffered from a mental illness or condition that might have caused him pain and suffering and prevented him from improving his qualifications — failure by primary judge to evaluate the increased likelihood that plaintiff would have suffered pain and suffering, as well as economic loss, due to his psychiatric disorder even if workplace injury had not occurred material error warranting re-assessment of damages

COSTS - whether costs should depart from general rule that costs follow the event where appellant abandons two grounds of appeal and fails on one.

LEGAL PROFESSION – negligence – conveyancing transaction – where defendants retained by plaintiffs on conveyancing transaction – where plaintiffs purchaser of land – where owner-builder work undertaken on land prior to sale – where contract for sale required certificate of insurance for owner-builder work to be attached – where certificate of insurance for owner-builder work not attached to contract – where plaintiffs had a right to rescind contract due to absence of certificate of insurance for owner-builder work – where defendants failed to ensure that contract for sale had certificate of insurance for owner-builder work attached – where defendants failed to advise plaintiffs of right to rescind contract – where owner-builder work on land defective – where plaintiffs obtained pre-purchase inspection report – where defendants admitted breach of duty - TORTS – negligence – causation – purchase of land – whether plaintiffs would have proceeded with purchase had they known of right to rescind contract – where plaintiffs purchased property to redevelop and sell in short term – where vendors in straitened financial circumstances - TORTS – negligence – damages – measure of damages – solicitor negligence in conveyancing transaction – whether plaintiffs able to recover cost of rectifying defects in owner-builder works – whether measure of damages amount that would have been recoverable under insurance policy for owner-builder work – whether damages limited to diminution of value of land – whether measure of damages amount by which plaintiff could have negotiated reduction in purchase price for absence of certificate of insurance for owner-builder work - TORTS – negligence – contributory negligence – whether plaintiffs ought to have obtained more detailed pre-purchase inspection report - TORTS – negligence – failure to mitigate – where plaintiff failed to sell property upon discovering defects – where plaintiff failed to sue vendors – where vendors unable to be located - EVIDENCE – admissibility – torts – negligence – causation – where factual causation dependant on what plaintiff would have done if properly advised – inadmissibility of statements by plaintiffs regarding what they would have done if properly advised – whether evidence by non-plaintiff as to what he would have done but for the defendant’s negligence admissible – Civil Liability Act 2005, s 5D(3)(b)