Cases and authorities

TAXES AND DUTIES - Income Tax - Judgment of United States Tax Court against executrix of estate of deceased for deficiencies of Unites States tax - Application for determination of question whether the executrix free to distribute estate without regard to tax debt under Supreme Court Rules 1970, Pt 68 r 2 or for order barring the claim under the Wills Probate and Administration Act 1898, s 93 - No entry of appearance by Commissioner for Internal Revenue of the United States - Whether leave to proceed under the Uniform Civil Procedure Rules 2005, r 11.4 should be granted - Whether proper service under the Foreign States Immunities Act 1985 (Cth) established - Whether deceased had adopted a domicile of choice in the United States or whether he died domiciled in New South Wales for the purpose of the Uniform Civil Procedure Rules 2005, Sch 6, item (o) - Whether a foreign tax claim will be enforced by Australian Courts - Whether the judgment of the United States Tax Court can be enforced in Australia - Whether the claim of the Commissioner should be barred

EQUITY [379] - Equitable remedies - Specific performance - The jurisdiction in general - General principles - Enforcement by vendor.

Objection to cross-examination of Crown witness upon his antecedent conduct

Appeal - interest and costs - discretionary powers - leave

Application - interim continuous detention order - interim extended supervision order - sex offender - legislative purpose - protection and rehabilitation - standard of proof - whether defendant requires supervision - procedural fairness - psychologist's evidence - actuarial risk assessment - sexual recidivism risk - participation in treatment programs.

SUCCESSION - family provision - date from which interest should run on legacy - MEDIATION - desirability of mediation in proceedings under Family Provision Act

CORPORATIONS - voluntary administration - administrators seek substantial extension of convening period for second meeting - complex group of companies with substantial assets presenting potential for advantageous dealing - extension granted

EQUITY [332] – Equitable remedies – Injunctions – Interlocutory injunctions – Jurisdiction and generally- Repeated application – Further application for same relief after refusal may be entertained only if material change in circumstances.

Building - contract for engineering design - negligent performance - defective design - whether contract to produce a result or for provision of professional services - application of Bellgrove v Eldridge (1954) 90 CLR 613 - measure of damages - turns on own facts

CRIMINAL LAW – SENTENCING – Attempted robbery armed with an offensive weapon – s 97(1), s 344A Crimes Act 1900 (NSW) – mental disorder as a mitigating factor – lengthy and unexplained delay on part of prosecuting authorities – application of Regina v Henry (1999) 46 NSWLR 346 – whether sentence manifestly excessive

COSTS – indemnity costs – offers of compromise – whether indemnity costs should be awarded - COSTS – interests on costs – whether the Supreme Court had power to award interests on costs under the Civil Procedure Act 2005 (NSW), ss 100 and 101

PLEADING - notices of motion to strike out amended statement of claim - claims statute barred - claims in tort - no viable cause of action pleaded - prior order striking out proceedigns against fifth defendant - Amended Statement of Claim deficient

Prisons - revocation of parole - review by Parole Authority - whether error in law in not rescinding revocation - whether material before Authority false, misleading or irrelevant.

PROCEDURE - Application for extension of time to bring cross-appeal - Relevant considerations

Courts - Jurisdiction-Practice - Contract-Construction - Expert determination - Arbitration - ‘Wise Man’ Dispute Resolution mechanism - Commercial deed providing for appointment of "Wise Man" to have plenary powers to resolve in binding and final fashion disputes of any nature - Deed identifying a range of candidates for appointment as Wise Man all being former justices of Supreme Court of New South Wales or of Federal Court of Australia - Whether deed constituted appointee an arbitrator or an expert - Whether if appointment be that of an expert, agreement to that extent would be contrary to public policy and void as an ouster of the jurisdiction - Commercial Arbitration Act 1984 - Application for leave to appeal from arbitration - Manifest error of law - Whether strong evidence that Wise Man made an error of law and that determination may add or may be likely to add substantially to the certainty of the commercial law

SENTENCING - application to redetermine life sentence imposed in 1988 - abduction, sexual assault and murder of victim - offences committed whilst on parole for sexual assault offences - applicant committed other offences of abduction and sexual assault in month prior to murder - lengthy determinate sentences imposed for other offences - whether offence constituted a "most serious case of murder" - application of totality principle where life sentence imposed together with lengthy determinate sentences - later incident of sexual assault in prison in 1993 - relevance of later incident to redetermination application - preservation of safety of community - offender with dangerous propensity to commit offences of abduction and sexual assault in 1980s - assessment of prospects of rehabilitation and risk of reoffending - public interest - application refused - applicant precluded from making further application for seven years

Criminal Practice & Procedure - sentence - accessory after the fact to murder - plea of guilty - assisting to cut up and dispose of body and clean up - offender well affected by alcohol - whether offence aggravated by being in company - strong subjective case.

TRADE AND COMMERCE [28] - Trade and commerce generally - Restraint of trade - Restraint by agreement - Enforcement of agreement - Remedies for breach of agreement - Right to injunction - Interlocutory injunction - Whether injunction may be granted to restrain contact with clients of former employer based solely upon contractual restraint of use of confidential information.

Criminal law - Sentence - Ratio of sentence to maximum term of imprisonment - Effective overall sentence.

CRIMINAL LAW - Crown appeal against sentences - six counts on indictment - four Form 1 offences - assault with intent to rob whilst in company - robbery in company - Henry guideline - pleas of guilty - subjective circumstances - multiplicity of offences - five offences committed whilst on bail - four offences involved gratuitous actual violence - discount for pleas of guilty - double counting - statutory proportions between head sentence and non-parole period - sequential offending - need for some accumulation - jurisdiction of Court of Criminal Appeal to resentence on Crown appeal - patent error alone insufficient - need to show sentence manifestly inadequate - comparison with sentences imposed in unrelated but parallel cases - Court's discretion to dismiss Crown appeal where error established - onus on respondent - parity with co-offenders - sentences outside range legitimately available - resentencing - principles applicable to resentencing after Crown appeal - youth of respondent - short duration of time over which offending occurred - fixed terms in respect of five offences - no useful purpose served by specifying non-parole period in relation thereto

Criminal law - Sentence - Parity.

Criminal law - whether a direction inviting the jury to consider whether the complainant had a motive to lie and whether she and her mother had a motive to conspire to lie was capable of correction - whether direction effectively corrected. Criminal law - whether verdicts inconsistent

Appeal from Local Court - error in point of law - misdirection as to issues - sufficiency of reasoning process - extension of time.

CRIMINAL LAW - application for inquiry or referral under s.78 Crimes (Appeal and Review) Act 2001 concerning sentence - applicant pleaded guilty to being knowingly concerned in importation of a commercial quantity of ecstasy contrary to s.233B(1)(d) Customs Act 1901 (Cth) - unsuccessful appeals against sentence to Court of Criminal Appeal and High Court of Australia - unsuccessful prior application for inquiry or referral under s.474D Crimes Act 1900 - scope of power under s.79(1) concerning federal offence - application based upon applicant's assistance to law enforcement authorities since sentence passed in District Court and appeal dismissed by Court of Criminal Appeal - application to Commonwealth Executive for release on licence under s.19AP Crimes Act 1914 (Cth) is appropriate avenue and not application under s.78 Crimes (Appeal and Review) Act 2001 - application refused

TAXES AND DUTIES - Stamp duties - Statute vested NSW rail network, including rail infrastructure facilities in Rail Infrastructure Corporation which entered into a rail access agreement with the plaintiff - Statute provided that RIC could by such an agreement grant access to such facilities even if situated on land owned by others - Whether the agreement was one by which a right to use land in New South Wales was conferred or acquired by a person within the meaning of the term "lease" in the Duties Act 1997, s 164A(b)

Further refusal for medical assessment - function of s329 - jurisdiction of the Court - no basis for relief made out - demonstrable error.

CORPORATIONS - order to be made under s.600C that resolution that deed of company arrangement be terminated and company be wound up be deemed passed - whether court should then consider pending application for court ordered winding up - whether good reason for voluntary winding up to be superseded - question of choice of liquidator

CONTRACT - REPUDIATION - TRIAL OF ACTION - FACTUAL DISPUTES BETWEEN PARTICIPANTS - CONDUCT OF CAFE IN FACILITY "TAKEN OVER" FOR OLYMPIC GAMES - EJECTION OF CAFE OPERATORS - DAMAGES ASSESSED - COSTS - INTEREST UP TO JUDGMENT

GUARANTEE AND INDEMNITY — indemnity — deed of indemnity — indemnity by company of officer — indemnity of all liabilities incurred by the officer as an officer — officer gives media interview as part of his duties — publication of extracts from interview in context allegedly defamatory of the officer — where officer undertook defamation proceedings against publisher — construction of indemnity — whether officer indemnified for loss of reputation — whether officer indemnified for costs incurred in pursuing defamation proceedings - GUARANTEE AND INDEMNITY — indemnity — indemnity under general law — nature of indemnity by company of officer under general law — where officer undertook defamation proceedings against third party — whether officer acting in performance of office - CONTRACTS — general contractual principles — construction and interpretation of contracts — contract of indemnity — indemnity to be construed strictissimi juris in favour of the indemnifier where indemnity ambiguous - CORPORATIONS — officer of corporation — legislative limits on corporation granting officer indemnity — Corporations Law ss 241, 199A - Corporations Act 2001 (Cth) s 199A - EVIDENCE — confidentiality — admission of confidential deed of settlement — confidentiality orders restricting use of contents of confidential deed of settlement - PRACTICE — confidential evidence — whether court should be closed — confidentiality orders restricting use of contents of confidential evidence

Damages payable to person injured carrying out work in accordance with Community Service Orders Act 1979 — Tort law reform restricting damages to be awarded in common law claims effected by Workers Compensation Legislation Further Amendment Act 2001 — Transitional provision applying provisions of that Act to existing rights before its commencement, but not in cases where litigation started before that commencement. - Barrister retained by plaintiff so injured to advise on commencement of proceedings unaware of applicability of these provisions — Proceedings commenced 14 days after legislation commenced — Plaintiff’s claim dismissed — Barrister found to be negligent. - Professional indemnity policy — Known circumstances excluded from policy included any fact, situation or circumstance which a reasonable person in the insured's professional position would have thought, before the policy began, might result in someone making an allegation against insured in respect of a liability that might be covered by policy — Meaning of exclusion clause — Whether barrister's claim for indemnity excluded.

SUCCESSION - Family Provision and Maintenance - Failure by testator to make sufficient provision - Testator left entirety of a relatively small estate to his defacto partner with gift over to her daughter by another marriage if she predeceased him - She did - The daughter's income barely covered her expenses and her assets were minimal - The deceased treated his defacto partner and her daughter as a surrogate family - He had no contact with his former wife and children and left them to care for themselves - The disable adult son of the deceased, whose needs were great, sought his entire estate - He had no contact with the deceased since he was 6 a period of 36 years - Whether the applicant was left by the deceased without adequate provision for proper maintenance, education and advancement in life

CONTRACTS - General Contractual Principles - Offer and Acceptance - Defendant Solicitor at meeting of plaintiff, mother and brother explained that mother wished to transfer one property to the brother and another property to the plaintiff if he would pay the stamp duty or would devise the property to him by will - Plaintiff elected to take the transfer and pay the stamp duty - Transfer abandoned because of adverse effect on mother's pension - Her will devised the property to the plaintiff -The solicitor did not draw up any agreement between the parties - The mother subsequently altered her will and left the property to the children of the brother - Whether the defendant was in breach of an express retainer, an implied retainer or a duty of care independent of a retainer or guilty of misleading or deceptive conduct

Objection to cross-examination of two Crown witnesses upon their prior convictions

EVIDENCE - Admissibility

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Income protection policy of insurance - Sickness benefit less than injury benefit - Sickness defined to include total disablement from injury that did not start within 30 days of injury - Whether total disablement started within that period - No new principles

ASSOCIATIONS AND CLUBS - incorporated association - application for winding up in insolvency - features of special statutory regime - proof of inability to pay debts - where association also registered under Industrial Relations Act 1996 - whether such registration relevant to winding up application

Objection to tender of statement of Crown witness

DEFAMATION - Imputations - Whether jury's findings unreasonable - Qualified privilege - Response to an attack - Whether privilege attaches to a riposte to a response - Whether privilege lost by endorsement of response - Privilege under s.22 of Defamation Act 1974 - Defence of comment - Adequacy of judge's reasons.

Summary judgment - amend defence and cross claim - set aside default judgment

Application for extension of time - s 60C of the Limitation Act 1969 - explanation of delay - evidence of cause of action - prejudice - just and reasonable to extend limitation period.

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – Offer and Acceptance – pre-contractual negotiations – contracts evidenced other than by offer and acceptance – where “letter of intent” and formal agreement executed simultaneously – where letter of intent covers additional matters – whether parties intended to be bound by letter of intent – significance of commercial context and conduct of parties – Construction and Interpretation – where letter of intent contemplated further agreement on specific matters – where no such agreement reached – whether letter of intent required that offer of further agreement contain terms covering such matters – Discharge and Breach – repudiation – repudiatory intent not lightly to be inferred – where defendant had resiled from any repudiatory stance before termination. - TRADE PRACTICES – Misleading and deceptive conduct – where representation made to recipient in circumstances that it was foreseeable it would be relied on by related party – where representation made to other party merely stated negotiating position of first party – whether statement of position if misconceived is misleading. - TORTS – NEGLIGENCE – Economic loss – whether duty of care owed to third party not to cause economic loss by repudiating contract with second party – where third party related to second party – where relationship between first and second parties regulated by contract. - INDUSTRIAL LAW – Unfair work contracts – whether contract one “whereby” person performed work in an industry – whether impugned provisions related to performance of work in industry – whether contract unfair by reason of imprecision. - DAMAGES – assessment – no question of principle.