Cases and authorities

Criminal Law - Sentence - Crown Appeal - Correction of sentence imposed to achieve the Court's intention.

CRIMINAL LAW: - Application for leave to appeal against sentence - robbery while armed with a dangerous weapon (four counts) - same incident - disparity from sentences passed on co-offender

PRACTICE - CRIMINAL LAW - Public interest immunity - Whether public interest immunity can apply to evidence given in court - Open justice principle - Exceptions to open justice principle - Whether preservation of confidentiality of police methods can be such an exception - Whether necessary for the administrtion of justice.

PROCEDURE [107] – Supreme Court procedure – Practice under Supreme Court rules – Separate decision of questions – When appropriate.

CORPORATIONS - directors - removal of directors by members - one of five directors of listed public company summoned meeting of members to consider resolution to remove the other four and appoint one other - he did not comply with procedure in Corporations Act s 203D(2) (two months' notice to the company) - constitution of company empowered removal of directors by resolution of company but made no procedural requirement like those in s 203D - Held, compliance with s 203D was necessary, consideration of resolutions for removal restrained. Allied Mining & Processing Ltd v Boldbow Pty Ltd (2002) 26 WAR 355 not followed.

Admissibility of interviews with AFP - prior improper conduct by ASIO - whether ASIO conduct criminal - false imprisonment - kidnapping - meaning of "oppressive" - onus of proof

ADMINISTRATIVE LAW – APPEAL – CONSUMER, TRADER & TENANCY TRIBUNAL – residential lease – summary dismissal of appeal – waiver/election – unequivocal inconsistency of rights – bias – incautious remarks at conclusion of proceedings – no pre-judgment or prejudice

CORPORATIONS - winding up - preference recovery proceedings - separate question as to solvency during relevant period - definition of solvency considered - matters pertaining to solvency examined

Food Act 2003 - authorised officers - functions of authorised officers - contempt of court - use of statutory power to obtain advantage in pending proceedings not obtainable under rules of court

CRIMINAL LAW – restraining order – s 10 Criminal Assets Recovery Act 1990 (NSW) – serious crime related activity – reasonable grounds for suspicion – larceny – money withdrawn from account after an automatic banking malfunction – knowledge of conditions placed on withdrawal and ban on account – elements of larceny satisfied – money withdrawn serious crime derived property - CRIMINAL LAW – restraining order – s 10 Criminal Assets Recovery Act 1990 (NSW) – serious crime derived property – reasonable grounds for suspicion – property in hands of other persons – person suspected of having engaged in serious crime related activity transferred money to partner, partner’s children and partner’s companies – application for restraining order not required to prove property has ceased to be serious crime derived property – whether sufficient evidence to establish reasonable grounds for suspecting claimants’ property was serious crime derived property - CRIMINAL LAW – restraining order – s 10 Criminal Assets Recovery Act 1990 (NSW) – orders restrained interests in property acquired directly or indirectly from funds drawn or provided by person suspected of having engaged in serious crime related activity – Commission may apply to restrain “specified interest” or “specified class of interests” in property of another person – “specified interest” is in narrower terms than “specified class of interests” – whether order of sufficient specificity for identifying property - WORDS AND PHRASES – “specified class of interests”, “specified interests”

COSTS – offers of compromise – Uniform Civil Procedure Rules 2005 (NSW) r 20.26 – offer made under Rules – alternatively Calderbank offer – offers rejected – offer required order for possession and judgment for a specified sum – court rejected offeror’s claim for possession and judgment sum – judgment for offeree no less favourable than offer of compromise – costs follow the event unless other order appropriate – no evidence offeree brought inappropriate claims or unnecessarily protracted trial

CRIMINAL LAW – assets forfeiture order – requirement that it was more probable than not that a person engaged in serious crime related activity within six years of application for order – whether precondition for assets forfeiture order satisfied - CRIMINAL LAW – assets forfeiture order – restraining order – whether interest in property sufficiently specified - PRACTICE AND PROCEDURE – adjournment – proceedings sought to be adjourned pending application for leave to appeal – whether trial judge’s discretion erred in refusing adjournment

CRIMINAL LAW – statutory construction – criminal conduct may constitute more than one offence – s 6(2)(d) of the Criminal Assets Recovery Act 1990 (NSW) does not refer to specific offences but categories of offences – perjury may satisfy the concept of perverting the course of justice – failure to establish defendant made false statement with intent to pervert course of justice – real question to be tried – error in ordering summary judgment - EVIDENCE – witness immunity – exceptions – statements made in the course of judicial proceedings – immunity otherwise applicable – whether Criminal Assets Recovery Act 1990 (NSW) provided an exception to the immunity – application under the Act not typical civil suit or criminal prosecution – intention of legislature – Act concerned with conduct not liability or potential liability to punishment - PROCEDURE – summary judgment – r 13.1 Uniform Civil Procedure Rules 2005 (NSW) – inappropriate where real question to be tried - PROCEDURE – application for summary judgment – defendant did not adduce evidence on application – trial judge made adverse credit finding and drew Jones v Dunkel inference from failure to call witness – whether trial judge’s reasoning was consistent with principles governing summary judgment

CRIMINAL LAW – committal proceedings – direction under section 91 of the Criminal Procedure Act 1986 (NSW) – “substantial reasons” – insufficient reasons – requirement to have regard to effect on trials

PROCEDURE - costs - whether costs should follow the event - no matter of principle

CRIMINAL LAW: - Sentence - stabbing - young offenders - one found guilty of murder at trial - other pleaded guilty to manslaughter

Small Claims Division - appeal on grounds of jurisdiction and denial of natural justice

DAMAGES – 24-hour care – contingency – vicissitudes – calculations – orders made TRADE PRACTICES – indemnity to seller by manufacturer – limit to indemnity – indemnity not applicable

Insurance: Other indemnity insurances. - Procedures: Supreme Court procedure. - Whether an appeal from a refusal of consent to an extension of time under the former insurance scheme under the Home Building Act lies to the Supreme Court. - Held that it does when it concerns an amount over $500,000.

PROCEDURE – Production of documents on subpoena – Appellant (father of respondent) gives instructions on behalf of respondent to respondent’s solicitor –Whether solicitor’s file notes of those instructions are “privileged documents” – Where investigator retained by solicitor for respondent takes draft statement from appellant – Where draft statement later settled in conference by counsel for respondent – Whether draft statement is a “privileged document” – Where appellant on own account instructs solicitor in relation to police inquiries – Whether file notes of those instructions are “privileged documents”. - EVIDENCE – Client legal privilege – Whether file notes and settled draft statement record confidential communications – Whether in any event file notes and settled draft statement are confidential documents. - EVIDENCE – Loss of client legal privilege – Related communications and documents – “Proper understanding” – Question, whether one document, is “reasonably necessary to enable a proper understanding” of another document, to be answered taking into account circumstances in which and purposes for which that “proper understanding” is required and other information available.

CONVEYANCING [185] - Land titles under the Torrens system - Caveats against dealings - Form of caveat - Statement of estate or interest - Statement reveals caveator relies on interest which is not caveatable – Caveat was third caveat lodged claiming same interest.

CATCHWORDS – Building and construction adjudication pursuant to s 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) – Whether adjudicator breached basic and essential requirements of the Act to consider all submissions duly made – Whether adjudicator failed to make a bona fide attempt to exercise his powers under the Act – Whether plaintiff denied measure of natural justice required under the Act – Nature, gravity and effect of adjudicator’s error relevant

CONTRACT - Construction - whether vague and uncertain - meaning of "prudential requirements and commitments" - whether default of any such requirements and commitments - DAMAGES - Whether damages alleged were caused by alleged breach

PROCEDURE [487] – Judgments and orders – Amending, varying and setting aside – Correction under slip rule – Accidental omission of words from order.

FAMILY AND CHILD WELFARE - De Facto Relationships - Legislation - Whether a sexual relationship of 14 years' duration constituted a de facto relationship - Parties maintaining separate houses and separate investments - No financial dependence or interdependence - Whether just and equitable to adjust the interests of the parties in property

CORPORATIONS - liquidation - unfair preferences - in June 2005 the company (hardware store) renegotiated repayment of its debt to its major supplier of hardware stock - about $300,000 owing: repayments $7,000 per week and stock purchases COD - weekly payments thereafter meant that debt was falling but ageing - additional charges for franchise fees interest and services but not for goods - administration on 21 February 2006, liquidation on 21 March 2006, claim to recover weekly payments from 22 August 2005 onwards $140,000 as unfair preferences - issues of insolvency and suspicion of insolvency as of June 2005 and later - decision on facts - judgment for $140,000 as unfair preference.

Succession. Family Provision. Intestacy. Claim by widow. Marriage of nine years. Plaintiff and Deceased lived seperately for last two and a half years of Deceased's life. Plaintiff entitled to entirety of estate upon intestacy. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for her proper maintenance. Competing claim of Defendant. Deceased made a will in favour of Defendant. Will revoked by Deceased's marriage to Plaintiff. Notional estate. Agreement between Deceased and his former wife that their son, the Defendant, should receive home unit. Deceased became joint tenant of home unit with Defendant. Whether failure of Deceased to sever joint tenancy constituted a prescribed transaction. Whether home unit should be designated notional estate. Valuable consideration for agreement between Deceased and his former wife. Agreement between Deceased and Defendant regarding Deceased's occupancy of home unit. Valuable consideration for agreement between Deceased and Defendant. Importance of not interfering with reasonable expectations in relation to property. Substantial justice and merits of case.

Judicial review - incorrect criteria - allegation of lack of reasons given by AMS - review sought in respect of decision by Delegate - no challenge available on merits - role of Registrar

Practice and procedure - stay of proceedings if costs of prior proceedings unpaid - whether proceedings on the same or substantially similar cause of action - meaning of cause of action - whether claim to declaration a cause of action - nature of claims under contract of insurance - essential facts on which claimant relied in the two proceedings were different - not the same or substantially similar cause of action - no stay.

COSTS - appellants succeed on point not taken in District Court - 7-day trial in District Court unlikely to have taken place if point relied on there - overwhelmingly strong point based on clear High Court authority - review of discretionary considerations - each party left to bear own costs in District Court and Court of Appeal.

PRACTICE - Costs - Appeal - Where different orders appropriate in respect of parties with the same legal representation

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Nature of evidence required – Standard of proof - EVIDENCE [216] - Witnesses - Evidence in chief – Evidence of conversations – Form in which evidence may be given.

TORTS [230] – Trover and detinue – Remedies – Action of detinue – Goods held after term purchase agreement terminated – Order for delivery.

CONTRACTS – Joint venture – Agreement relating to property development – Dispute over net proceeds and order of distribution – Where joint venture relationship constituted by joint venture agreement and associated agreements – Intention of parties – Construction and effect of agreements – Where inconsistency between agreements – Whether breach of obligations under joint venture agreement – Whether damage proved to have been caused.

CORPORATIONS - jurisdiction in respect of property of "relevant person" where ASIC investigation in progress - application by ASIC for freezing orders in respect of property of two "relevant persons" and property of two other persons - where ASIC alleges that "relevant persons" have equitable interests in property owned by the other persons - whether the other persons may be subjected to orders under s.1323 - consideration of interests of "aggrieved persons" - where investigation in progress for 20 months - whether asset disclosure orders should be made in support of freezing orders

Family Provision. Claim by daughter. No matter of principle.

COSTS - Of successful application for permanent stay of proceedings - Where discrete issues - Costs apportioned - No question of principle.

[HOME BUILDING ACT] - Whether definition of "residential building work" in Home Building Act 1989 applicable to Insurance Policy provided by defendant under that Act - [SEPARATE QUESTIONS] - As to identity of person who did "residential building work" and gave warranties under the Act - As to whether the Policy responds to plaintiffs' claims.

PROCEDURE - costs - application for winding up on the just and equitable ground - finding by court that grounds exist - court's discretion exercised in favour of deferring winding up for six months - upon resumption, winding up consented to - whether plaintiff should have costs

CRIMINAL APPEAL - SENTENCE - NO QUESTION OF PRINCIPLE

Criminal Law - Sentencing - application of standard non-parole period after plea of guilty - whether used as starting point rather than reference point - relevance of criminal record - applicant resentenced.

EVIDENCE – request to call witnesses – Evidence Act 1995 (NSW), s 167 – documents sought to be relied on as evidence of sham transactions – previous representation – authenticity, identity or admissibility of document or thing – operation of s 167(c) Evidence Act not limited to exceptions to hearsay rule EVIDENCE – reasonableness of request to call witnesses – reasonable refusal to comply with request to call witnesses – Evidence Act 1995 (NSW), s 169 – exercise of Court’s discretion to order party to comply with request to call witnesses TAXATION – adequacy of pleadings – statement or averment in statement of claim prima facie evidence of matter averred – no reversal of legal burden of proof – Tax Administration Act 1953 (Cth) s 255-50 TAXATION – income tax – failure to make deductions from prescribed payments – liability of eligible paying authority – payees provided payee declarations varying prescribed payment deduction to nil – payees allegedly mere agents or conduits for third parties not entitled to deduction variation to whom payments were in fact due –Income Tax Assessment Act 1936 (Cth) s 221YHDA, s YHH(1) WORDS & PHRASES – “authenticity” – “identity – “previous representation” – “representation”

EQUITY [333] – Equitable remedies – Injunctions – Interlocutory injunctions – Serious question to be tried – Generally - Serious question not established.

CONTRACT - building contracts - termination of contract - right to terminate - whether repudiatory breach - whether termination notice valid - election - waiver - whether defective work CONTRACT - construction - variation of contract - extension of time - notice to complete ADMINISTRATIVE LAW - appeal from CTTT - question of law or fact - "with respect to" an error of law - errors of law - remitted to CTTT APPEALS - right of appeal - decision - order - judgment ADMINISTRATIVE LAW - natural justice - whether denial of natural justice - rules of evidence and Tribunals - right to cross-examine

CORPORATIONS – Liquidators – Company trustee of trust – Whether liquidator of company can be appointed new trustee of trust – Possibility of there being a real prospect of a conflict of interest should not be assumed – Company removed as trustee and liquidators appointed as trustees in their personal capacity. - PRACTICE AND PROCEDURE – Costs – Proceeding ceased without hearing – Reasonableness of conduct of parties – Distinction between surrender and supervening events rendering proceeding moot.

Sentence - manslaughter - unlawful and dangerous act - chronic schizonphrenic illness - not causally related to offence

HABEAS CORPUS – principles – lawful custody – application to process appeal more easily – application misconceived – not grant, other than in exceptional circumstances, if to do so would be inconsistent with order of a court with jurisdiction to imprison.

CONVEYANCING [189] - Land titles under the Torrens system - Caveats against dealings - Removal – Jurisdiction – Discretion of Courts – Provision of substitute security – Determination of amount.