Cases and authorities

Serious sex offender – Crimes (Serious Sex Offenders) Act 2006 (NSW) – application for extended supervision order or continuing detention order – Custody Based Intensive Treatment program not completed by offender – Legislative scheme – the construction of s.17(3) and the nature of the test under that provision – meaning of the word “likely” – standard of proof – high degree of probability – whether offender likely to commit a further serious sex offence – whether adequate supervision would be provided by an extended supervision order – Psychiatric and psychological assessment of offender – whether possible to predict risk of re-offending – actuarial assessment – dynamic risk factors – whether proposed risk management plan adequate – defence barriers

CRIMINAL LAW - Sentence - malicious wounding with intent to do grievous bodily harm - using offensive weapon with intent to prevent lawful apprehension - offender mentally ill - adequacy of evidence of connection between mental illness and offences

APPEAL AND NEW TRIAL- When appeal lies- Error of law- Failure to give adequate reasons for decision- Appeal in negligence action- Appellant raised defences of self-defence, criminal enterprise and contributory negligence at trial- Primary judge largely rejects defences- Judge gives reasons seemingly without aid of transcript- Omits reference to significant parts of evidence- Held judge failed in reasons to properly engage with appellant's case- New trial ordered. TORTS- Negligence - Contributory negligence- How assessed- Primary judge erred in principle- Apportionment of liability revised. TORTS- Negligence- Miscellaneous defences- Illegality of plaintiff's activity- Discussion of Civil Liability Act, s 54- Damages not awarded if plaintiff injured following his committing a serious offence- Injury follows offence if clearly associated with it in time, place and circumstances.

EVIDENCE – expert evidence – differences of opinion accentuated by litigation process – resolution a matter of evaluative judgment EVIDENCE – whether expert evidence relevant to foreseeability of risk of psychiatric injury – where defendant a medical practitioner TORTS – medical negligence – duty of care of medical practitioner to husband of patient – loss of chance due to delay in diagnosis – psychiatric injury to husband due to pain and suffering of wife arising from late diagnosis TORTS – medical negligence – reasonable foreseeability of psychiatric injury – admissibility of expert evidence to establish reasonable foreseeability of psychiatric injury – expert evidence of loss of chance – expert evidence of psychiatric injury – where expert psychiatric evidence based on false or misleading information provided by patient – whether error in trial judge’s rejection of expert evidence

FAMILY LAW AND CHILD WELFARE – De facto relationships – costs – costs of property adjustment proceedings under Property (Relationships) Act 1984 – whether “starting position” in cases under the Act that each party should pay its own costs – HELD – cannot confine discretion conferred by s 98, Civil Procedure Act 2005 and UCPR 42.1 by adopting “starting position” principle – costs should follow the event - PROCEDURE – costs – indemnity costs – offers made did not comply with offer of compromise rules, nor constitute a Calderbank letter – whether party acted so unreasonably as to warrant award of indemnity costs – HELD - no

Amendment application - alleged mistake as to name of defendants - the nature of the power and discretionary considerations

CORPORATIONS – s 588FF(3)(a) of the Corporations Act 2001 (Cth) considered – Leave to amend to correct mistake in name of party sought outside period stipulated in s 588FF(3)(a) – Whether incorrect naming of defendant in originating process a ‘mere misnomer’ so that application under s 588FF(1) deemed to have been made as against that party from date on which originating process filed – Consideration of what constitutes a ‘mere misnomer’ – Held that mistake in name of party a mere misnomer so that application deemed to have been made within time stipulated by s 588FF(3)(a). PRACTICE AND PROCEDURE – Supreme Court procedure – New South Wales –Amendment – Amendment to correct a mistake in the name of a party under ss 64 and 65 of Civil Procedure Act 2005 (NSW) – Where application made within time and Civil Procedure Act applicable pursuant to s 79 of the Judiciary Act 1903 (Cth) – Leave to amend granted.

Contributory negligence - alcohol - manner of driving - seatbelts - expert evidence - sale or supply of liquor - hearsay rule - relief from failure to give notice

COSTS - indemnity costs - offer of settlement - whether genuine element of compromise

DEFAMATION – protected report – report of court proceedings in newspaper article – report inaccurate – newspaper article subsequently discussed on talkback radio – defamatory imputations contained in radio host’s broadcast – whether comments of radio host a fair summary of the protected report for purposes of s 24(3) of the Defamation Act 1974 (NSW) – whether ordinary reasonable listener could differentiate between comments of radio host and content of Herald article - DEFAMATION – report of court proceedings in newspaper article – newspaper article subsequently discussed on talkback radio – defamatory imputations contained in radio host’s broadcast – broadcast material was partly proper material for comment under s 30 of the Defamation Act to the extent it included the content of the protected report – whether imputations represented opinions which might reasonably be held

CONTRACT – construction of contract – identification of parties to loan contract – admissibility of evidence of post-contractual conduct in determining identity of contracting party – whether statements or conduct of one party constitute an admission as to the identity of the other party to the contract.

[CONTRACT/GUARANTEES] - Whether loan agreement dated 18 June 2005 entered into in February 2006 - Whether mortgages provided in respect of that loan agreement - Whether guarantors to earlier loan agreement between different parties discharged - Whether clause in earlier loan agreement in relation to interest rate for late payment a penalty

TRUSTS and TRUSTEES - accounts - entitlement of beneficiaries to accounts and to see trust documents - authority of Schmidt v Rosewood Trust [2003] 2 AC 709 doubted. Trustee resisted beneficiary's claim for accounts and information, asserting confidentiality of income to life tenant - order for accounts.

Statutory construction - levying of contributions - order made under s183 - when it takes effect and when unit entitlement is amended - recording in Register

One proceedings - two separate claims - two judgments - bond moneys and credit - no set-off on cross-claim - costs decision - no error in point of law or mixed question of law and fact

REAL PROPERTY - appointment of trustees on statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) - whether court is empowered to make order on application by beneficiary of land under an incompletely administered estate WILLS, PROBATE & ADMINISTRATION - rights of beneficiary of specific devise in incompletely administered estate - whether beneficiary has standing to seek appointment of trustees on statutory trust for sale

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF COMMONWEALTH CONSTITUTION – Judicial power – “matter” – where claim by Commonwealth for bare declaratory relief – whether justiciable controversy. - EQUITY – Remedies – declarations – discretion where claim for bare declaratory relief where declarations would not resolve whole controversy – whether declaration appropriate. - PROCEDURE – Summary disposal – where only proper exercise of discretion would be to decline final relief on discretionary grounds. - PROCEDURE – Stay of proceedings – where related proceedings involving some common issues between different parties pending in different court – whether one proceeding should be stayed.

[EQUITY] - [BANKING] - Whether employee accessed Bank's confidential records to obtain information to make applications for credit or debit cards using customers' identities without authorisation - Whether cards obtained and used by employee to fradulently withdraw the amount of $1,151,199.94 from customers' accounts

NEGLIGENCE - Melbourne/Voyager Collision - claim for damages - verdict found for plaintiff 2.8.07 - application for indemnity costs - application for the costs of a second junior counsel - application for an order that interest be paid on service of bill - application for a stay pending appeal.

APPEAL – Practice and procedure – Appeal from decision of Associate Judge not to grant summary judgment in proceedings under the Family Provision Act 1982 (NSW) – Whether appeal lies to single judge of a Division of the Supreme Court or to the Court of Appeal – Whether motion in relation to summary judgment constitutes proceedings under the Family Provision Act or Pt 13 Uniform Civil Procedure Rules 2005 (NSW) – Pt 60 r 17 Supreme Court Rules 1970 (NSW), considered

CORPORATIONS – Application by company and its liquidators under s 588FF of the Corporations Act 2001 (Cth) (“the Act”) to recover from the Deputy Commissioner of Taxation payments made under alleged voidable transactions within meaning of s 588FE of the Act – No contest by Commissioner – Commissioner seeks indemnity under s 588FGA of the Act from company’s two directors – Directors contest insolvency and plead defences under subss 588FGB(3), (4) and (6) – Whether insolvency established – Whether defences made out

NEGLIGENCE - Melbourne/Voyager collision - claim for damages - verdict found for plaintiff 2.8.07 - calculation of damages to be awarded - error - correction of error under the slip rule - discount under Malec v J C Hutton P/L - different methods of computation - loss of pension/superannuation rights - no discount for reduced life expectancy.

LEGAL PRACTITIONERS - solicitor - application by plaintiff for appointment of receiver – receiver appointed

TAXES AND DUTIES - Land Tax - The Land Tax Management Act 1956, s 21C(2) provides that a lessee of land owned by a local council is deemed to be the owner of the land and the local council is not considered the owner - Section 21C(1) provides that a local council is not liable for land tax - Plaintiff assessed to land tax - Council executed an instrument in the approved form of lease for 99 years under the Real Property Act 1900, s 53(1) and the lease was registered - Under a schedule to the instrument the plaintiff was required to construct a commercial development - Clause 3.1(1) provided that upon the expiration of a notice period in cl 3.1(2) the Lessor should give and the Lessee should take vacant possession - Clause 3.1(2) provided that the Lessee should grant the Lessor care, control and mangement of the land until it provided one month's notice that it required vacant possession to commence construction - Whether a lease and licence back or merely an agreement for a lease - Whether plaintiff fell within the definition of "owner" in the Land Tax Management Act 1956, s 3(1) - Whether plaintiff was granted the right of exclusive possession - Whether the Real Property Act 1900 applied to render the instrument a lease upon registration

CORPORATIONS - winding up in insolvency - application by creditor on basis of presumption of insolvency - defendant concedes insolvency but seeks exercise by court of discretion to dismiss winding up application - defendant alleges abuse of process - where alleged abuse involves course of conduct beginning before service of statutory demand and continuing to present - no abuse of process allegation raised in relation to statutory demand - whether s.459S precludes such allegation upon hearing of winding up application

CORPORATIONS LAW: - Section 184(2)(a) of the Corporations Act 2001 (Cth) imposing criminal offence where director uses position dishonestly with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation - appellant charged with two charges of dishonest use of his position as a director with the intention of gaining an advantage for two other companies with which through family members he was associated - no detriment to the corporation shown - circumstances involved a lease to the corporation of which the appellant was a director of land owned by the two associated companies of the appellant - leases not shown to be on specially favourable terms but advantage lay in securing certainty that the leases would be granted - effect of reducing the period stipulated for each offence to a time just prior to the coming into force of changes to the Criminal Code (Cth) introducing a new definition of dishonesty differing from that hitherto applicable in relation to the Corporations Act - appeal on ground of failure to give a direction, offered and declined at trial, in terms of R v Ghosh [1982] QB 1053 at 1064 whereby dishonesty is made out according to ordinary standards of reasonable and honest people but also requiring the defendant to know ordinary people considered relevant conduct to be dishonest - distinction between acting improperly and acting dishonestly for purposes of statutory offences - relevance of concealment by the director concerned in indicating dishonesty. - SENTENCING: - appeal against sentence as unduly harsh, manifestly excessive and placing disproportionate weight on need for general and personal deterrence - trial judge’s failure first to consider sentence before considering how sentence was to be served here by way of periodic detention - error in structuring the two sentences for the two offences in terms of giving a longer sentence for second offence than first when relevantly indistinguishable - no error as to deterrence being properly taken into account - re-sentencing according to principles of totality leading to modest reduction in sentence.

CRIMINAL LAW – Crown appeal against sentence – supply ecstasy – husband and wife co-offenders – complaint about departure from the standard non parole period – parity between co-offenders – strong subjective case for wife – objective criminality assessed as “at least mid range” – whether the non-parole period imposed reflected the objective criminality – whether sentence was manifestly inadequate

REAL PROPERTY – Sale or partition – Co-owner seeking sale under s 66G of Conveyancing Act 1919 (NSW) – Grounds for refusing sale or making order for sale on terms so that defendant entitled to purchase plaintiff’s half share at value of half share rather than at half value of property if it were sold as a whole – Estoppel – Whether plaintiff made representation that he would not do anything inconsistent with holding property until rezoning or rezoning and development completed – No unequivocal representation made to such effect – Fiduciary duty – Any fiduciary relationship existing between parties does not extend to imposing obligation to hold property for purpose of rezoning or rezoning and development – Unconscionability – Unconscionability without more not a ground for refusing order for sale – Where detriment suffered by defendant was incurring of personal liability and mortgaging her share of property – Detriment redressed by plaintiff’s undertaking to indemnify defendant for liabilities incurred by mortgage over property – Held that grounds for refusing order for sale or making order for sale on terms not made out.

CORPORATIONS - winding up - creditors voluntary winding up - company sold wine to investors and stored it for them in expectation of future profit making by sale - company often effected such sales for investors' account - after winding up, investors' wine collected and preserved by liquidator as court appointed receiver - some such wine sold by receiver for investors' account - other wine delivered to investors or to new storage facility for their account - receiver (who was also liquidator) developed expertise in selling wine - whether liquidator may now offer selling services to persons to whom wine has been delivered or for whom it is held in new storage facility

CRIMINAL LAW – APPEAL – SENTENCING – unjustifiable discrepancy between co-offenders – categorisation of role in drug supply – insufficient consideration of subjective circumstances of offender – dissociative state.

PRACTICE AND PROCEDURE – costs – costs of application for leave to appeal –offer of compromise – motor vehicle accident – where Opponent made offer of compromise before hearing of application for leave to appeal – where application for leave to appeal dismissed – application for indemnity costs made by Opponent – whether rule 42.15 Civil Procedure Rules 2005 applicable in proceedings for costs under Ch 6 Motor Accidents Compensation Act 1999 – whether indemnity costs recoverable under s 151(2) Motor Accidents Compensation Act 1999 – whether “exceptional circumstances” existed - STATUTES – acts of parliament – construction – statutory definitions – role of statutory definitions in statutory interpretation – substitution of definiens for definiendum – construction by reference to objectives of statute – Motor Accidents Compensation Act 1999, Ch 6 - TORTS – negligence – motor vehicle accident – costs – where court proceedings preceded by assessment under Claims Assessment and Resolution Service – whether indemnity costs recoverable under s 151(2) Motor Accidents Compensation Act 1999 – interrelationship of Ch 6 Motor Accidents Compensation Act 1999 and rule 42.15 Civil Procedure Rules 2005 – Motor Accidents Compensation Act 1999, Ch 6 - WORDS AND PHRASES – “costs in connection with a motor accident” – “court awarded damages” – “exceptional case and for the avoidance of injustice” – “exceptional circumstances” – Motor Accidents Compensation Act 1999, ss 148(1), 151, 153(1)

PARTNERSHIP - dissolution of partnership - whether notice of intention to dissolve was given - whether dissolution terminated employee's employment - employee's covenant not to canvass clients - did so - whether injunction to restrain further breach of covenant - dissolution of partnership does not necessarily terminate employment - did not do so on facts of this case - injunction agreed without admissions - inquiry into damages to be held.

Costs – Indemnity costs – whether defendant unreasonably put to costs – where plaintiff’s claim summarily dismissed as doomed to fail and for invoking wholly inappropriate jurisdiction – where defendant had previously offered plaintiff opportunity to discontinue without costs – Recovery of costs – solicitor litigant – Chorley exception – whether solicitor litigant entitled to profit costs for work done by himself

PROCEDURE - costs - application for assessment on the indemnity basis - where respondents invited applicants to capitulate - where some grounds upon which the invitation was made were found not to have substance and others were not argued

Sentence - Manslaughter by Unlawful and Dangerous act - Maliciously Inflict Grievous Bodily Harm - Joint Criminal Enterprise - Pleas of Guilty - Revenge attack for earlier minor assault upon one offender in public bar of an hotel - Victim of Manslaughter offence struck by bar stool thrown at another - Sentencing considerations where offences of varying objective gravity encompassed by Manslaughter.

ASSET FREEZING ORDER – Whether danger of dissipation or concealment of assets made out.

TAXES AND DUTIES - Land Tax - Whether a decision to which an objection may be made under the Taxation Administration Act 1996, s 86(1) is limited to one affecting a taxpayer's substantive liability to land tax - Whether a decision not affecting substantive liability can be subject to judicial review - Whether the Taxation Administration Act 1996, s 103A(1) prevents judicial review of an assessment in the absence of an objection - Principles in relation to striking out a pleading - Whether fresh facts not before the Chief Commissioner when making a decision can be the subject of an amended objection rather than a fresh application - Whether the objection regime, including the Commissioner's discretion to receive an objection out of time under the Taxation Administration Act 1996, s 90(1) applies to an election with respect to a prinicpal place of residence under the Land Tax Management Act 1956, Sch 1A, cl 12

Prerogative relief - Decision of CTTT - denial of procedural fairness - error of law

Sydney Olympic Park Authority brings proceedings as a statutory corporation representing the Crown in right of New South Wales and in name of State of New South Wales pursuant to Crown Proceedings Act 1988 (NSW) - Claims arise out of construction by Civil and Civic [now Bovis Lend Lease] of pool facilities at Sydney Aquatic Centre in anticipation of 2000 Olympic Games - Proceedings referred for enquiry and report under Part 20 rule 14 of Uniform Civil Procedure Rules 2005 - Cross applications for adoption and rejection of referees report - Principles to be applied - Tort - Duty of care in cases of pure economic loss - Whether duty of care owed by defendant- Concepts of vulnerability and reliance - Circumstances permeated by succession of statutory corporation successors to Homebush Abattoir Corporation being the statutory corporation in which the land vested at a material time which was not a party to the building contract and destined to be dissolved by legislation passed but not yet effective - Statute - Examination of statutory vesting of right to sue

PROCEDURE - Undertakings as to damages - Stay of judgment for approximately US $8.7 million due to the 8th defendant, a foreign bank that dealt exclusively in foreign currencies upon the plaintiff's undertaking as to damages - Inquiry as to compensation - 8th defendant argued would have converted the US dollars to euros if not frozen at greater return on investment - Whether 8th defendant would have done so - Whether the loss of earnings occured but for the order - Whether the natural consequence of the order - Whether in circumstances of which the plaintiff had notice - Whether 8th defendant failed to mitigate its loss - Whether an order for compensation just within the meaning of a usual undertaking as to damages in the Supreme Court Rules 1970, Pt 28 r 7, now Uniform Civil Procedure Rules 2005, r 25.8 - How should quantum of loss be determined

PRACTICE & PROCEDURE - application in nature of show cause - plaintiffs' ability to prosecute proceedings - failure to file lay and expert evidence over extended period - failure to comply with orders to do so - whether proceedings should be dismissed for want of due despatch - prospect of fair and proper determination of issues despite delay

ADMINISTRATIVE LAW – parole authority – limited administrative review – prerogative writ – no error of law demonstrated.

CONTRACTS - building contract - defective or incomplete work - entitlement to costs of rectificiation - if rectification a reasonable course - consideration of principles derived from Bellgrove v Eldridge - relevance of intention to carry out rectification work or whether it will be carried out - REFEREE'S REPORT - approach to consideration of adoption.

TORTS - Contributory negligence at common law as applicable to damages as distinct from applicability to original accident - Availability of apportionment of damages in relation to contributory negligence at common law - Unavailability of s 10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the "1965 Act") as events pre-dated its coming into force - Events concerned collision of VOYAGER and MELBOURNE in 1964 with crew member (the plaintiff/appellant) subsequently bringing an action in negligence against the Commonwealth (the defendant/respondent) for damage including for subsequent psychiatric injury and associated excess alcohol abuse and binge eating - Allegation of contributory negligence on part of the plaintiff/appellant in alcohol abuse being self-induced and not caused by the accident - Jury assessed appellant's contributory negligence at 50% of the overall verdict in circumstances where there was no quantification given to or determined by the jury of damage attributable to the alcohol abuse or the psychiatric injury - Trial judge's directions to the jury challenged as requiring new trial and by reason of trial judge's subsequent erroneous determination after the jury verdict that the 1965 Act applied to require apportionment of damage - availability of new trial or verdict to be upheld. D -

Family Law. Application for adjustment of parties' property interests under s20 of Property (Relationships) Act 1984. Order for adjustment. No matter of principle.

CORPORATIONS - voluntary administration - deed of company arrangement - whether deed terminated by force of s.445C(c) - whether "circumstances" specified in deed "exist" - where "circumstances" are "payment to all Admitted Creditors of the Dividend"

CIVIL PROCEDURE - Civil Procedure Act 2005, s 76 - settlement of proceedings commenced by or on behalf of a person under legal incapacity - plaintiff's application for approval of compromise on liability - application opposed - CIVIL PROCEDURE - Civil Procedure Act 2005, s 56 - overriding purpose to facilitate the just, quick and cheap resolution of real issues in the proceedings

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. Demand varied. No matter of principle.