Cases and authorities

Sentencing - offences of manslaughter, accessory after the fact to manslaughter and malicious wounding - multiple offenders in a joint criminal enterprise - question as to appropriate basis upon which offenders to be sentenced - discount for pleas of guilty offered but not accepted by Crown - consideration of principles of totality - partial accumulation - special circumstances - parity

Exhibition of animals - periodic permits - effect of renewal of cancelled permits after time of original permit expired - powers of Local Court - no jurisdiction to order new permits.

Indemnity Costs

CORPORATIONS - deregistered company - application for reinstatement and validation of transaction, and for appointment of provisional liquidator - plaintiff's standing - discretionary considerations

TRUSTS - Charitable Trusts - Named corporate trust institution ceasing to exist

PRACTICE AND PROCEDURE - Crown appeal against ruling on evidence - s 5F(3A) Criminal Appeal Act - exclusion of evidence must substantially weaken prosecution's case - jurisdictional requirement - whether that can be found when no current trial - what constitutes prosecution's case when trial is a future matter - court does not consider credibility or reliability of evidence in prosecution's case - whether there can be substantial weakening if evidence apart from excluded evidence, if accepted, would establish commission of offence - would be substantial weakening. TENDENCY EVIDENCE - whether error in holding probative value does not substantially outweigh prejudicial effect - involves exercise of discretion or evaluative judgment - no error shown.

Criminal law - sentencing - accessory after the fact of fraud - pleas of guilty - assessment of objective seriousness - parity - assistance to authorities - special circumstances - no loss attributable to applicant's conduct - application of s 10A of Crimes (Sentencing Procedure) Act 1999

CORPORATIONS [1487]- Statutory demand- Application to set aside demand- Alleged dispute as to indebtedness- Partnership debt, but only one partner the subject of the demand- Default assessment of GST- Plaintiff fails to object to notices of assessment preceding demand- Liability for GST arises prior to issue of assessment- Plaintiff's failure to object to assessments does not mean debt must be undisputed- Possibility that debt may be successfully challenged sufficient reason to set aside demand. CORPORATIONS [1493]- Statutory demand- Application to set aside demand- Whether when debt is owed to Commonwealth, Deputy Commissioner has authority to issue statutory demand- Held demand properly made.

CORPORATIONS - voluntary administration - application under s 447A for administration to be brought to an end - plaintiff claims that the company is solvent and the provisions of Part 5.3A are being abused - insufficient evidentiary foundation for plaintiff's claims - no issue of principle

Children's Court - care application - evidence of previous removal of child other than child the subject of the application - construction of s 106A - whether it provides a ground for a finding of care - who may rebut presumption - question of discretion - certiorari

DISCIPLINARY ORDERS – taking account of criminal penalty – protective purpose – imposing conditions on right to practise – relevance of controls under child protection legislation MEDICAL PROFESSION – unsatisfactory professional conduct – professional misconduct – conviction for a criminal offence – possession of child pornography MEDICAL PROFESSION – not of good character – failure to provide Medical Board with accurate information of circumstances of offence – privilege against self-incrimination PROFESSIONAL DISCIPLINE – formulation of complaints – scope of appellate jurisdiction – Medical Practice Act 1992 (NSW), s 90 WORDS & PHRASES – “good character” – “not of good character”

PROCEDURE - costs - application for order setting aside statutory demand - application successful - application should have been seen by defendant from the outset as irresistible - indemnity costs awarded to plaintiff

PROCEDURE [553] - Costs - Costs of whole action - Generally - Where action settled - Usual rule - Exception when it is plain one party would have succeeded had matter been fully tried – Whether matter will be tried to determine costs application.

Murder - specially aggravated kidnapping - two victims - principal in the second degree - pleas of guilty - assistance to the authorities - standard non-parole period - question of totality

CRIMINAL LAW – Jurisdiction, Practice and Procedure – Miscellaneous powers of courts and judges – Crimes (Appeal and Review) Act 2001 (NSW) – Absence of express or incidental power to order costs for an appeal from a directed acquittal - CRIMINAL LAW – Jurisdiction, Practice and Procedure – Miscellaneous practice cases – Costs in criminal jurisdiction – Criminal Appeal Act 1912 (NSW) – provision stating no costs shall be allowed is applicable to this proceeding.

Applications for non-publication and pseudonym orders - jurisdiction to make such orders - evidence given at trial of co-accused who is to be tried separately - whether publication of that evidence may give rise to unfair prejudice to applicants - whether test of necessity satisfied

WILLS, PROBATE AND ADMINISTRATION - Succession - Executors and Administrators - Commission - Review of decision of Registrar - Approach to review

CORPORATIONS - Commissioner of Taxation's action against directors under s 588FGA - directors resident overseas - whether service overseas should be confirmed - whether court should enter judgment against defendants in their absence

Practice and Procedure - Separate question orders - Principles - Application of principles

Practice and Procedure - Strike out application - Leave to amend - Equity - Implied duty of good faith - Content of duty - Leases - Whether implied duty of good faith is breached if defendant shown to have acted for an ulterior collateral motive

CRIMINAL LAW - jurisdiction - powers of courts and Judges - superior court - statutory court - inherent jurisdiction - jurisdiction of Local Court - implied power - implied power of Local Court - test of necessity - necessary to secure the proper administration of justice - touchstone of reasonableness - non-publication order - pseudonym order - suppression of identity, name or personal identifiers - identity of witness or victim - open justice - exception to principles of open justice - well established categories - informer, blackmail, national security, extortion - unacceptable consequences - intense media scrutiny, media attention, publicity - person in high public office - CRIMINAL LAW - apprehended violence order - apprehended personal violence order (APVO) - apprehended domestic violence order (ADVO) - Crimes Act 1900 (NSW) Pt 15A s 562ZK - Local Courts Act 1982 (NSW) Pt 6 - application proceedings - non-publication - Civil Procedure Act 2005 (NSW) ss 4, 72, Sch 1 - Local Courts Act 1982 (NSW) Pt 6

CONTEMPT – Civil contempt – failure to comply with order of court for production of documents – where defendant present in court when order made – personal service of order with notice to party bound endorsed dispensed with – where contempt motion served on defendant’s receptionist – where no objection to sufficiency of service – personal service of motion dispensed with – whether plaintiff must prove specific intent to disobey order of court – whether breaches established – whether no more than casual, accidental or unintentional

TAXES AND DUTIES - Duties on lease instrument - Lease defined by the Duties Act 1997 s.164A to include "an agreement ... by which a right to use land in New South Wales is conferred on or acquired by a person" - Statute vests NSW rail network and rail infrastructure facilities in a statutory corporation, and provides that this corporation could by agreement grant access to such facilities, even if situated on land owned by another statutory corporation - Whether agreement granting such access was one by which a right to use land was conferred on or acquired by the grantee.

DEFAMATION - Privilege under s.22 of Defamation Act 1974 - Interest in having information - Publication of matter in the course of giving information - Reasonableness of publisher's conduct.

CRIMINAL LAW – Appeal and new trial – appeal against conviction – particular offences – drug offence – possession of prohibited substance – presumption of supply – whether verdict unreasonable – circumstantial case – lack of positive evidence on possession of drugs – whether jury should have had reasonable doubt

COSTS - costs in proceedings [2007] NSWSC 1266

Mining Lease Applications (MLAs) - land surfaces - Correct construction of s 62 of Mining Act 1992 - whether improvements substantial and valuable - whether procedure in s 62 and Schedule 1 has to be followed for prohibitions in s 62(1)(c) to apply - effect of not following such procedures and adhering to time limits - Whether cleared pasture land a substantial and valuable improvement within s 62(1)(c) - Methods of service of notices of MLAs - correct construction of s 383 of Mining Act - Whether notices may be served at place of business and do not have to be served at corporation's registered office - History of Mining Legislation - Meaning of "land" in s 62(1) of Mining Act - Map required to accompany application and notice - technical defects did not invalidate application - Compensation provisions - Effect in declaring Moolarben Coal Project one to which Pt 3A of Environmental Planning & Assessment Act (EP&A Act) applied - Effect of approval of Minister for Infrastructure & Planning - Operation of s 75V of EP&A Act - single assessment and approval process - relationship between Pt 3A of EP&A Act and Mining Act - once approval of Minister of Infrastructure & Planning given, mining lease cannot be refused. - Relief would not be refused on discretionary grounds but refused on substantive grounds

Practice. Reference by Court. Report of referee. Application to adopt to adopt report. Function and obligations of referee. Duty to observe rules of natural justice and procedural fairness. Duty to act impartially. Communications between referee and one party, unbeknown to other party. Integrity of the process thereby compromised. Apprehended bias. Ground for not adopting report.

Transfer to Administrative Decisions Tribunal - summary judgment

Applications for discharge of the jury - applications made whilst jury deliberating - lengthy period of deliberations - various interruptions to the deliberation process because of illness to jurors

CRIMINAL LAW – Crown Appeal – Sentencing – Misapplication of guideline judgment – Aggravated robbery – Discount for plea – Remorse – Special circumstances – Manifest Inadequacy – Appeal allowed – Defendant re-sentenced.

CRIMINAL LAW – Appeal – Sentencing – Murder of witness – Interference with administration of justice – Lack of sufficient disparity with co-offender – Insufficient regard to the value of assistance to the authorities and effect of assistance on accused – Appeal allowed – Appellant re-sentenced.

CRIMINAL LAW – Crown appeal against inadequacy of sentence – offences of aggravated robbery and knowingly being carried in a stolen conveyance – non custodial sentence imposed based on strong subjective circumstances – whether error in assessing objective seriousness of offence – whether non custodial sentence for offence of robbery inappropriate in circumstances of aggravation – respondents sentenced to period of community service – sentences already commenced – common law principle against double jeopardy - exercise of residual discretion of Court not to interfere - appeal dismissed

CRIMINAL LAW: Successful appeal against sentence - appellant re-sentenced - technical defects in re-sentencing order - proceedings re-opened

EASEMENT - Torrens System - Construction - Extrinsic evidence not admissible - EASEMENT - Right of carriageway - Excessive user - EASEMENT - Development application by dominant owner - Reasonably necessary for exercise of rights of dominant owner - Servient owner bound to consent - TORRENS SYSTEM - Easement - Construction - Extrinsic evidence not admissible

PROCEDURE - intervention in proceedings - where originating process filed but not served - pending application by plaintiff for extension of time for service - whether named defendants should be heard on that application - CORPORATIONS - winding up - special purpose liquidator - pending application by special purpose liquidator for order varying functions and powers - whether certain persons should be granted leave to be heard on that application

CRIMINAL LAW - Mental illness - M'Naghten rules - accused not knowing what he was doing was morally wrong

PROCEDURE - application for extension of time for service of originating process - relevant factors considered

EQUITY - injunction - to restrain completion of sale by mortgagee - mortgage moneys not tendered or paid into court -sale said to be at undervalue - not possible so to conclude - in any event damages or equitable compensation is adequate remedy

LANDLORD AND TENANT - lessee commits single act offence against the person on shop premises after trading hours - lessor alleges breach of lease covenant forbidding doing of anything "dangerous, annoying, offensive or illegal" - lessor serves notice requiring breach to be remedied - lessor moves to terminate lease - whether serious question to be tried as to existence of grounds to terminate - lessee offers undertaking to offer business for sale and to stay away from shopping centre until further order - interlocutory injunction restraining interference with tenant's enjoyment granted

NEGLIGENCE – contributory negligence – plaintiff failed to leave nightclub when asked by security guard – plaimtiff's elbow broken by security guard in course of being ejected – whether failed to take reasonable care for his own safety – held no - NEGLIGENCE – contributory negligence – whether defence of contributory negligence available in the case of an intentional tort – principles discussed - DAMAGES – assessment – whether excessive award for non-economic loss and economic loss – awards flawed by primary judge’s failure to appreciate significance of plaintiff’s decision not to resume pre-injury work - damages re-assessed - COSTS – costs of trial – indemnity costs – Calderbank offer of settlement expressed to be inclusive of costs – whether such an offer can be the basis of an award of indemnity costs – no rule that offers inclusive of costs unable to be the basis of such an award – depends on circumstances of the case.

Appeal from Consumer Trader & Tenancy Tribunal - ambit of appeal - importation of contractual term - breach and assessment of damages.

Costs - Indemnity costs - Calderbank offers - Principles

Whether disputed dividends purportedly made to trustee companies during life of a director of the payer companies were validly declared – whether meetings of directors and members of companies held – whether such minutes of meetings as exited established that meetings were in fact held at which resolutions declaring dividends were allegedly passed – what constitutes a “meeting” – whether dividends purportedly declared that did not conform with the constitutions of the companies were paid – what constitutes “payment” of dividends – whether crediting of dividends in loan accounts constituted payment of dividends to deceased director – whether crediting loan accounts gave rise to a liability on the part of the payer companies – whether dividends and their payment ratified or confirmed loans granted by deceased director to company for amounts equal to disputed dividends paid by companies – deceased director ultimate beneficiary of the income of the group of companies – what amounts to payment of dividends – crediting by book entry intended to reflect payment of dividends – whether pre-existing cross liabilities between companies paying dividends and recipient necessary – whether there was agreement underlying mutuality of liabilities which the book entries were treated by all relevant parties as settling – doctrine of unanimous consent – cross-claim – whether as an issue of fact dividends had been declared or determined prior to director’s death for 2002 year – circumstantial evidence – drawing inferences – subsequent conduct of directors or omission to act.