Cases and authorities

Criminal law - supply of prohibited drug - whether accused knew drug in bag - appeal against conviction - no deficiency in directions concerning circumstantial evidence - open to jury to be satisfied of guilt beyond reasonable doubt - appeal against sentence - sentence within available range - no question of principle.

CRIMINAL LAW – appeal against conviction – leave to appeal required as ground of appeal not raised at trial – r 4 Criminal Appeal Rules – whether trial judge erred resulting in a miscarriage of justice such that accused may have lost chance of being acquitted – misdirection to jury as to use to which confession to third party could be put to jury - EVIDENCE – hearsay evidence – admissibility of witness’ prior inconsistent statements relating to an accused’s confession – prior inconsistent statements admissible only in relation to witness’ credit – evidence of prior inconsistent statements regarding a confession not to be used as evidence of the truth of alleged confession - whether trial judge erred in directing jury as to use of witness’ prior inconsistent statements

Criminal law - trial of four co-accused - separate indictments presented - infringement of "one trial one jury" rule - trial contrary to law - conviction and sentence quashed and new trial ordered.

CRIMINAL LAW – aggravated sexual intercourse without consent – aggravated indecent assault – offence committed in company – plea of not guilty – directions given by trial judge – successful appeal by alleged co-offender – ground of appeal available to appellant – “why would the complainant lie?” – intoxication possibly relevant to consent – appellant’s denial of sexual intercourse – consent not an issue

CRIMINAL LAW AND PROCEDURE - SENTENCE - COMMONWEALTH OFFENCES - DISHONESTLY OBTAINING SOCIAL SECURITY BENEFITS - ORDER FOR SERVICE OF IMPRISONMENT BY PERIODIC DETENTION - OBLIGATION TO MAKE RECOGNIZANCE RELEASE ORDER - APPROPRIATE POWER TO MAKE SUCH ORDERS - MISTAKEN REFERENCE TO STATUTE OF NO CONSEQUENCE - SENTENCE NOT MANIFESTLY EXCESSIVE

Limitations - Voyager/Melbourne collision - whether error in extending limitation period - leave to appeal refused on issue of awareness of psychiatric injury and connection with collision - appellant did not raise issue at trial - by majority, no error in exercise of discretion to extend limitation period - reference to commonality of issues in many Voyager/Melbourne collision extension cases and whether appellant's current approach should continue.

CONTRACTS - Guarantees - Discharge of guarantors by dealings with principal debtor - Unjust contracts under the Contracts Review Act 1980 - Whether guarantees unjust because liability not limited to advances in compliance with lender's contract with the principal debtor - Relevance of "all monies" clause - Whether lender's conduct unconscionable - Whether Contracts Review Act, Schedule 1 cl.3, authorises orders protecting corporate co-guarantors from increased liability.

Appeal from Local Court - determined on findings of fact - arguments put by plaintiff fell outside the scope of the Summons - no error in point of law

Length of "combination" - construction of clause of regulation - "design" is an additional requirement

Practice and Procedure - Costs

FAMILY LAW – Adoption – jurisdiction - whether court can make order allocating parental responsibility when court refuses to make adoption order - consent to adoption – grounds for revocation of a consent dispense order – grounds for making consent dispense order – whether serious cause for concern for welfare of child – trans-racial adoption – where child of African parentage securely attached to white proposed adoptive parents for nearly four years – where birth mother’s consent subsequently declared ineffective - undesirability of child being raised apart from natural mother family culture and ethnicity – undesirability of disrupting secure attachments – significance of birth mother’s parenting capacity – relevance of birth mother’s wishes – whether adoption in best interests of child – whether adoption clearly preferable to all other alternatives - contact – benefits of contact in reducing sense of abandonment and loss of mother and culture – change of name – where no adoption order but proposed adoptive parents to have parental responsibility - relevant considerations

Natural justice - application for apprehended domestic violence order - refusal to adjourn on first mention date - dismissal of application - extent of jurisdiction - constructive failure to exercise jurisdiction.

TORT – NEGLIGENCE – personal injury – duty of care – claim for damages – plaintiff injured in the course of employment as bricklayers’ labourer – permanent incapacity – apportionment of liability between defendants - DAMAGES – as against the first defendant: non-economic loss – past out of pocket expenses – future out of pocket expenses – past wage loss – past loss of superannuation – future wage loss – future loss of superannuation – Fox v Wood – past domestic assistance – future domestic assistance - DAMAGES – as against the second defendant: past economic loss – future economic loss - PRACTICE AND PROCEDURE – medical evidence – duty of legal representatives – excessive material tendered – costs incurred not to be recoverable

EVIDENCE – voir dire – admissibility of evidence – request for documents pursuant to subpoena and notice to produce – failure to comply – evidence sought to be tendered through witness – whether evidence should be rejected on discretionary grounds under s 135

DEFAMATION – pleadings – whether contextual imputations capable of arising – specificity of contextual imputations – sufficiency of particulars in support of contextual imputations – whether contextual truth defences should be struck out under r 14.28 or summarily dismissed under the court’s inherent jurisdiction – Civil Procedure Rules 2005 s 56, s 57, s 60, s 64 and s 91(1) – UCPR r 14.28(1), r 14.31(2)(b), r 14.33(2), r 15.1(1), r 15.21(1)(c), r 15.23(2), r 15.25, r 28.2

Workers Compensation - judicial review - failure of Appeal Panel to give reasons - error on the face of the record.

DEFAMATION - pleadings - defences and reply - defences of comment, common law fair comment, statutory fair comment - grounds of defeasance - sufficiency of pleadings in reply - whether reply should be struck out - UCPR r 14.14(2)(b), r 14.28(1), r 14.38(1)(c)(ii) and (iii), r 15.1(1), r 15.28(1)(c), 15.31(1)(b)

Criminal Law - Sentence - Conviction of murder after trial.

PLEADING – defendant’s notice of motion for summary judgment – plaintiff’s notice of motion for leave to amend statement of claim – application to add WorkCover Authority as second defendant – claim for damages for personal injury – claim against employer determined in District Court – verdict for employer – claim against employer’s insurer – frivolous and vexatious proceedings – no reasonable cause of action pleaded – abuse of process – attempt to re-litigate unsuccessful proceedings – proposed claim against WorkCover – no reasonable cause of action disclosed – leave to amend statement of claim refused

CRIMINAL LAW - trial on indictment before Supreme Court - Crown witness retained solicitor for advice in 2000 - witness then considering whether to provide induced statement to investigating police - after legal advice, witness gives induced statement to police - witness gives evidence for Crown at committal proceedings and trials with benefit of an undertaking under s.9(6) Director of Public Prosecutions Act 1983 (Cth) - subpoena directed to former solicitor of witness seeking production of solicitor's file - claim of client legal privilege - whether client legal privilege existed under s.118 Evidence Act 1995 - whether client legal privilege lost by operation of s.122 Evidence Act 1995 - witness gives evidence in 2001, 2005 and 2007 and volunteers otherwise confidential communications - relevance of witness not being informed of his right to object under s.132 Evidence Act 1995 - held that client legal privilege lost

Criminal Law - Practice and Procedure - Prosecutor's appeal from a finding of no prima facies case and dismissal of informations - whether error of law - finding that prosecution failed to prove a fact that was not an element of the offence - error as to standard of proof at prima facie level - costs order against prosecutor unreasonable.

PRACTICE AND PROCEDURE – VACATION OF HEARING DATE – INDEMNITY COSTS – Plaintiffs’ former solicitor misled the Court as to readiness of the Plaintiffs’ case for trial.

BUILDING AND CONSTRUCTION - Security of payment - Authority of solicitor to sign payment claim on behalf of claimant - Progress payments - Payment claim served on defendant - Failure of defendant to provide payment schedule within time limited by the Act - Plaintiff serves notice of intention to make adjudication application - Whether plaintiff thereby made any election - Whether open to plaintiff to withdraw any election made.

CRIMINAL LAW - trial on indictment before Supreme Court -subpoena directed to Commonwealth Director of Public Prosecutions - seeks production of notes of conferences between prosecuting counsel and solicitors and Crown witnesses - claim of legal privilege upheld

CRIMINAL LAW - application for an order under s474D Crimes Act 1900 - Special Hearing "conviction" for manslaughter 1988 - appeal to CCA refused - earlier appn under s474D dismissed - whether grounds already determined at trial, or appeal or in reasons for refusing previous application - whether DNA tests now available - whether grounds raise a question of doubt as to guilt.

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters – Apprehension of dissipation - Nature of evidence required – Standard of proof - PROCEDURE [574] - Costs - Departing from the general rule - Orders for costs on indemnity basis - Relevant considerations - Calderbank letter – Failure to accept offer - Whether offeree’s conduct reasonable.

Appeal Panel - scope of review - natural justice - adequacy of reasons - significant departure from assesment of AMS

[EQUITY] - joint venture - fiduciary duty - breach - remedies - alternative remedies of equitable compensation and account of profits available - whether plaintiff entitled to "split election" of alternative remedies as between different defendants (principal and accessories) - whether agreement to "provide" capital contribution should lead to increase in quantum of compensation - whether accessory liable to disgorge profits made from new joint venture - whether plaintiff's entitlement limited to percentage of interest in original joint venture

Appeal from Local Court - plaintiff instructs solicitor to make an adjournment application only - application refused and hearing proceeds in absence of the plaintiff - practice of the Court - lack of merits

DEFAMATION – Defamation Act 1974 - words spoken at public meeting by parliamentarian about local developer – imputations that plaintiff was a thug and a bully and manipulated the system by bringing proceedings to stifle public protest – defences – substantial truth - common law qualified privilege – malice – comment of defendant - comments or statements of fact - proper material for comment - public interest - unlikelihood of harm - damages

PROCEDURE [574] - Costs - Departing from the general rule - Order for costs on indemnity basis - Factors relevant to exercise of court’s discretion – “Calderbank” letter – Four days for acceptance of offer – Whether plaintiff’s non acceptance of offer reasonable.

Service in accordance with s 109X Corporations Act 2001 (Cth) and s 31 Building and Construction Industry Security of Payment Act 1999 - effect - whether determination of adjudicator void

Summary procedure - time limit for commencement of proceedings for an offence contrary to Road Transport (General) Act 2005.

Succession. Family Provision. Claim by two adult grandchildren. Whether Plaintiffs are eligible persons. Whether Plaintiffs, who as infants resided with the Deceased for short periods, were partly dependent upon the Deceased. Whether there are factors warranting the making of the application. Financial and material circumstances of each Plaintiff. Competing claims of beneficiaries.

Notice of motion seeking leave to proceed against defendant company in administration pursuant to s 440D Corporations Act 2001 - Administrators appointed to defendant company part-way through hearing - Factors relevant to determination of whether Court should grant leave under s 440D

CRIMINAL LAW - Appeal against conviction - Procedure - Amendment to charge during trial - Amended charge read out to accused and plea taken - Whether necessary for jury to be resworn - Note from jury asserting observation of coaching of one defence witness by another - Direction to jury to disregard observation - Whether jury should have been discharged

CRIMINAL LAW - Sentencing - Appeal against sentence - Revocation of good behaviour bonds - Imposition of periodic detention - Whether breach trivial - Suspended sentence and periodic detention - General and specific deterrence

CRIMINAL LAW – appeal against conviction and sentence – one count of assault with intent to rape, act of indecency with a child under 16 years, assault with an act of indecency, two counts carnal knowledge, one count buggery - victim 14 years of age at time of offences – whether miscarriage of justice at trial due to evidence not produced by the appellant’s legal representatives, appellant’s legal representatives failing to act on instructions or directions given by the appellant, false or misleading evidence allegedly given by police, media influence, particularly at sentencing stage - admission of fresh evidence on appeal – whether less severe sentence warranted in law due to appellant’s age and ill health

PRACTICE - Costs - Assessment - Certificate taking effect as judgment - Whether appeal against assessment still available - Whether costs assessor can determine questions of construction of a costs agreement - Whether condition of conditional costs agreement, depending on recovery of monies, satisfied.

Interrogatories sought by plaintiff in claim for malicious prosecution - "special reasons" test - application of "necessity" test.

Local Court proceedings brought against a Court appointed liquidator - "in the course of his duties as liquidator" - no cause of action disclosed - no prior leave - pleading struck out - interlocutory decision - leave to appeal

EQUITY [341]- Equitable remedies- Injunctions- Interlocutory injunctions- Covenant in hotel lease against lessees acting to affect value of business- Defendant lessees wish to sell three poker machine entitlements- Plaintiff lessor claims this is breach- Damages only suffered at end of long lease- Whether interlocutory injunction should be granted- Principles considered- Injunction granted. LANDLORD &TENANT [45]- Covenant- Hotel lease containing covenant against diminishing value of business- Proposed disposal of three poker machine entitlements by lessees- Whether breach- Whether interlocutory injunction should go.

PROCEDURE - Cross-vesting - Interests of justice - Principles involved - Allegations of breach of fiduciary duty and breach of confidence by employed real estate agents resident and working in Queensland - Contracts of employment governed by Queensland law - Individual defendants subsequently employed by corporate defendant with head office in New South Wales but individual continuing to work in Queensland - Plaintiff's head office moved from Queensland to New South Wales - Plaintiff's witnesses mainly resident in New South Wales - Defence witnesses mainly resident in Queensland - Plaintiff's solicitors in New South Wales, defence solicitors in Queensland - Inference that alleged breaches occurred in Queensland

COSTS - interlocutory application - application that costs be payable forthwith - discretion - circumstances - relevant factors

VOLUNTARY ASSOCIATIONS – POLITICAL PARTIES – Dispute as to election of appointees to Selection Committee - construction of Party’s Constitution – justiciability of disputes – whether discretion to grant declaratory relief should be exercised. - WORDS – Meaning of “by” considered. - HELD – Dispute justiciable - relief should be granted.

PROCEDURE - UCPR 14.28 - Applications to Strike Out Amended Statement of Claim - Application by plaintiffs to join a party - Prolix and repetitious pleadings.