Cases and authorities

APPEAL - Review Panel - determination of costs

INJUNCTIONS – EX PARTE APPLICATION – COSTS – Failure to make full and frank disclosure in ex parte application results in costs orders against Plaintiffs.

CORPORATIONS - winding up - proof and ranking of claims - where small credit balances recorded in respect of subscribers to whom telephone services not provided - where relevant contracts pre-dated the "relevant date" of the winding up - where some credits recorded before relevant date and others after - how such credits should be treated by liquidators

CRIMINAL LAW – Sentencing – Factors in aggravation – Prior conviction for cultivating cannabis – Whether "planned or organised criminal activity" – Low level of planning – Whether quality of cannabis properly taken into account by sentencing judge – Whether cannabis for personal use – Whether sentences manifestly excessive

INQUEST - privilege against self-incrimination

CRIMINAL LAW – Sentencing – Murder – Manslaughter – Relevant principles concerning the application of s 61(1) Crimes (Sentencing Procedure Act) 1999 – Whether sentence of life imprisonment should be imposed – Whether offence within worst category – Level of culpability of offender – Potential for dangerousness

APPLICATION FOR INJUNCTION TO RESTRAIN FUNERAL – executors and administrators – sudden death of 14 month old boy – suspicion arising from nature and extent of injuries causing death - police investigations into death not completed at time of hearing - burial – right to arrange funeral – dispute between parents of deceased boy – proposed locations for burial by mother (in Sydney) and by father (on Central Coast) likely to create practical inconvenience for those wishing to visit the grave – deceased living with mother all of his life – no cultural or religious considerations relevant

Summary judgment - Contracts Review Act

CRIMINAL LAW - sentence - Henry guideline - rehabilitation considerations.

CRIMINAL LAW AND PROCEDURE - Sexual offences on male aged under 16 - Trial - Anticipation that complainant will misstate time frame of alleged offences - Prosecution seeks to prove this independently of his evidence - Judge directs jury in terms that time is of the essence - Jury verdicts of guilty not unreasonable on the whole of the evidence

CROWN APPEAL - supply commercial quantity and large commercial of ecstasy - supply to undercover police offer - objective gravity of agreement to supply - delay in lodging Crown appeal

Criminal Law - sentencing - evidence of frontal lobe damage - purposes of sentencing - rehabilitation - sentence not manifestly excessive.

CRIMINAL LAW – conviction appeal – Crown's obligation to call witnesses – allegation of miscarriage of justice – obligation does not extend to investigation of every potential witness or theory raised by defence – no miscarriage of justice – EVIDENCE – evidence of consciousness of guilt – whether properly admitted by trial judge – no error found – APPLICATION FOR EXTENSION OF TIME TO APPEAL – inadequate material to support application – application refused

EXTENSION OF TIME – length of delay – reason for delay – whether applicant has fairly arguable case – prospects of success – prejudice to respondent PROCEDURE – review of decision of Registrar to refuse extension of time to file cross-appeal – where primary appeal dismissed before hearing of review of Registrar’s decision – Supreme Court Rules 1970 (NSW), Part 51, r 18 REVIEW – power to review decision of Registrar – exercise of discretionary powers – no requirement to demonstrate error in decision of Registrar – review not restricted to material before Registrar – Supreme Court Act 1970 (NSW), ss 46 and 121 – Uniform Civil Procedure Rules 2005 (NSW), r 49.19 WORDS & PHRASES – “at any time” – “cross-appeal” – “review”

VALUATION – Valuation of Land – Methods of Valuation – Where land subject to heritage restrictions – Valuation of Land Act 1916 ss 6A, 14G - STATUTES – Interpretation – Mischief rule

APPEAL – decision of Medical Tribunal – appeal against exercise of discretion – principles regarding error in exercising discretion – House v The King [1936] HCA 40 - (1936) 55 CLR 499 – court will not intervene unless a miscarriage of justice also demonstrated – whether error has been demonstrated - COSTS – award of costs – Medical Practice Act 1992 – Medical Tribunal can award costs to such person as it determines – no general costs rule – purpose of award of costs – costs are to indemnify person in whose favour order is made – costs not to punish person against whom order is made – successful party reimbursed for costs absent conduct which make proceedings unjust or unreasonable – whether Medical Tribunal erred in awarding costs to successful party - PROFESSIONS – medicine – complaints against medical practitioner – Medical Board exercised powers under s 54 of Medical Practice Act 1992 to investigate practitioner – Medical Board subsequently convened inquiry under s 66 of Medical Practice Act – s 66 inquiry where Medical Board satisfied action necessary for the purpose of protecting health of members of the public – Medical Board determined practitioner suffering from impairment and also engaged in inappropriate conduct – Medical Board referred matter to Medical Tribunal pursuant to s 66B of the Medical Practice Act – whether matter should have been referred under s 66B or to an Impaired Registrants Panel under s 66C of the Medical Practice Act - UNREPRESENTED LITIGANT – obligations of court or tribunal to unrepresented litigant – unrepresented litigant should understand proceedings and receive a fair trial – whether Medical Tribunal erred in conducting proceedings

EVIDENCE – witness immunity – immunity where conduct sufficiently connected and preparatory to proceedings – statutory analyst undertook analysis of substance– s 37A Poisons and Therapeutic Goods Act 1966 – certificate of analysis issued under Drug Misuse and Trafficking Act s 43 – certificate issued for criminal prosecution – analyst manipulated testing of substance – plaintiff argued testing undertaken at investigative phase not forensic phase - whether analyst protected by principle of witness immunity - EVIDENCE – witness immunity – underlying rationale – ultimate consideration finality of judgments – proceedings would require retrial of evidence of analyst – whether inconsistent with finality of judgment - VICARIOUS LIABILITY – immunity of wrongdoer – employer seeking to rely on immunity of employee – whether immunity extends to protect a person who is otherwise vicariously liable - NEGLIGENCE – duty of care – imposition of duty of care – court would not ordinarily impose duty of care where duty would impose conflicting claims or obligations and indeterminacy of liability - analyst appointed by Minister under statute – proof of substance provided by analyst fundamental to prosecution – whether trial judge erred in finding arguable case that duty of care existed - TRADE PRACTICES – trade or commerce – issue of statutory certificate – certificate issued to prosecuting authorities – certificate certified content of substance for purposes of criminal proceedings – content of certificate related to witness’ evidence – certificate issued for fee – whether certificate issued in trade or commerce - PROCEDURE – summary judgment – inappropriate where real question to be tried

COURTS AND JUDGES – Judges - Application to Recuse for Apprehended Bias – Where Judge had given advice in matter to one party while still a barrister some years earlier – Where nature of proceedings had changed in intervening period such that issues before judge were different from issues before him as a barrister

DAMAGES – General principles – Interest on – Where award of damages altered on appeal - COSTS - Indemnity costs - Offer of compromise – Multiple offers before trial and before appeal for different amounts – Damages altered on appeal

Practice — summary power to terminate action — principles applicable. Defamation — public interest — whether respondent acted in a way which inherently, expressly or inferentially invited public criticism or discussion — whether imputations related to matters of public interest. Defamation — whether contextual imputation differed in substance from plaintiff’s imputation. Defamation — common law pleading — imputations — whether defendant entitled to plead alternative imputations which do not differ in substance from the plaintiff’s meanings. Words & phrases — “public interest” — Defamation Act 1974, ss 15, 16 and 31

CRIMINAL LAW - Sentencing - Assistance to authorities - To be determined on objective and pragmatic basis - No discount for assistance proffered but rejected

Family Provision. Application by son. Estate transferred to grandson of deceased shortly before death. Consideration of whether property could be designated as notional estate. Order for legacy and designation of notional estate.

EQUITY [343] Equitable remedies- Injunctions- Interlocutory injunctions- Undertaking as to damages- How damages ought to be calculated when sales of units frustrated by injunction.

SENTENCE - murder - domestic killing - intent to kill

Summary dismissal - appeal - Local Court - jury trials in civil matters

APPEAL - Local Court - unpaid wages

FAMILY LAW – Domestic relationships other than marriage – same-sex relationships – where parties did not cohabit continuously throughout period – whether de facto relationship – whether close personal relationship – Property adjustment – where no practical union of lives and property of parties – whether approach in Mallet v Mallet and Jones v Grech applicable – where very substantial initial contributions by one party – treatment of initial contributions - consideration of “erosion principle” and reconciliation of Kardos v Sarbutt and Bilous v Mudaliar – where plaintiff’s domestic contributions unremarkable and his stewardship of defendant’s assets poor – where plaintiff obtained substantial countervailing benefits from relationship, financial and otherwise – whether plaintiff debarred from relief under Act by analogy with “unclean hands” by reason of having given false evidence.

Costs

Manslaughter - diminished responsibility - sentence

PROCEDURE - costs of interlocutory applications - previous order that company - be joined "conditionally" as a party "for the purposes of these orders" - whether that company is a "party" for the purposes of UCPR 42.3(1) - company in any event an active participant - whether ASIC as public authority should be ordered to pay costs - CORPORATIONS - winding up - order of application of assets - application for order that costs ordered against company in liquidation "rank in priority to any liability to unsecured creditors" - present statutory scheme differs from that under which such orders were made in nineteenth century - no power for court to alter order of ranking of debts and claims in winding up without statutory authority

Criminal Law - Sentence - Murder - Relevance of Epileptic Seizures to Moral Culpability

Judicial Review - Contract of Employment - Apportionment of Costs

CONTRACTS - various contracts, charges and transfers between solicitor and client or trust company controlled by solicitor and client - whether transfer signed partly in blank - whether charge to secure debt effective under Real Property Act - charge not valid under that Act and not capable of registration - SOLICITORS - lien over documents - whether documents taken by client - claim in conversion - no damage proved

CRIMINAL LAW: sentence - murder - plea of guilty - spontaneous killing - strangulation - circumstances unclear - offender 36 years old - no relevant criminal history

Sentence - manslaughter

[CONTRACT] - Commercial setting - Export of coal from port with inadequate capacity to meet demand - Institution of co-operative arrangements to share the burden of the inadequacy - Whether parties entered into a binding agreement - "In principle agreement" - Meaning in context - [EQUITY] - Whether specific performance should be ordered.

CORPORATIONS - winding up - special purpose liquidator appointed by court in voluntary winding up - application by special purpose liquidator for order compelling third party to produce documents - where documents required in connection with adjourned Part 5.9 examinations - documents related to examinable affairs of company

Judicial review - assessment process - statutory scheme - common law principles - quantum - errors in dealing with evidence - discretion

APPEAL - Local Court - breach of contract

APPEAL - CTTT - refusal of adjournment

SUCCESSION - Family Provision - Intestacy - Claims by two adult sons of a former de facto spouse of Deceased - Whether each Plaintiff has been left without adequate provision for his proper maintenance - Whether there are factors which warrant the making of the applications - Claim by one Plaintiff is out of time - Competing claim of daughter of Deceased, who is entitled to entire estate upon intestacy.

CONTRACT – Which of two defendants made oral contract with plaintiff. - DAMAGES – MITIGATION – Whether plaintiff acted reasonably in incurring costs of replacing marine engines. - DAMAGES – Whether plaintiff entitled to diminution in value of vessel whose engines had been replaced. - DAMAGES – Loss of use – whether plaintiff entitled to damages for loss of use of pleasure craft. - DAMAGES – APPORTIONMENT – CIVIL LIABILITY ACT – Whether contract breaker and tortfeasor causing same loss are concurrent wrongdoers – whether breach of contractual duty to ensure that work done by another is done properly is act or omission causing loss – principles upon which apportionment of responsibility should be exercised discussed.

CRIMINAL LAW - Manslaughter - Sentence

CRIMINAL LAW: application for leave to appeal against sentence - offences of aggravated sexual assault, assault occasioning actual bodily harm and common assault - pleas of guilty - whether applicant affected by mental illness at the relevant time - hardship to applicant's disabled brother and other family members - whether sentences manifestly excessive

TORTS – negligence – breach of duty of care – sport – rugby league – appellant spear-tackled during a game of rugby league – whether, having regard to the speed of the game, the time available for decision-making and the fact that hard tackling was an accepted incident of the game, the second and third respondents were negligent in tackling the appellant in the manner in which they did - REMEDIES – damages – past loss of earning capacity – appellant no longer able to play rugby league as a result of his injuries – appellant a property dealer prior to his injury – substantial increase in earnings from property development after his injury – whether the trial judge erred in having regard to the appellant’s earnings from property dealings – whether the appellant’s increase in earnings from property development came as a result of his own skill and efforts. D

TORTS - NEGLIGENCE - EMPLOYMENT - Scope of duty of care - Causation - Employee injured by being shot by another employee after he left place of employment - Employee had been injured over 18 months earlier in an assault by the other employee at the place of employment - Other occasions of unreasonable conduct by the other employee - Whether employer in breach of duty of care in not dismissing the other employee, or otherwise - Whether injury caused by any such breach, and not too remote.

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - Moral obligation or moral claim - Inadequate provision for proper maintenance - What is "adequate" and what is "proper" to be assessed having regard to objective circumstances, not just circumstances known to deceased - Relevance of "bare paternity".

PRACTICE AND PROCEDURE – Exercise of power to recall or amend reasons – Orders to give effect to reasons have not been entered. - COSTS – of claims and of cross-claims for contribution or indemnity – no question of principle.

BUILDING & CONSTRUCTION – Security of Payment – where no payment schedule – disallowance of amounts apparently not in respect of construction work or related services