Cases and authorities

JUDGMENTS AND ORDERS - construction of agreement - varied by court orders

ROAD TRANSPORT - appeal on questions of law from dismissal of charge in Local Court - offence of failing to submit to breath analysis under s.15(4) Road Transport (Safety and Traffic Management) Act 1999 - proof of authority by Commissioner of Police to police officer to carry out breath analysis under s.15(2) - delegation by Commissioner of Police to senior police officers to give authority under s.15(2) - whether certificate relied upon by prosecution constituted certificate under s.33(2) - function incidental to delegated function under s.49(4) Interpretation Act 1987 - approach to construction of road safety statute - presumption of regularity - de facto officer's principle

CORPORATIONS - winding up - voluntary winding up - final return lodged by liquidators - application for order postponing deregistration - where liquidators learn of litigation against company not previously brought to their notice

Criminal Law - Sentence - Manslaughter after trial - death of baby due to methodone toxicity - unlawful and dangerous act.

Judicial Review - whether a condition of parole was invalid, denial of procedural fairness

Practice – Court files – Application by non-party (media) for access – Access not to be granted in respect of documents which a judge or registrar considers should be kept confidential, in accordance with Practice Note SC Gen 2 – Principles of “open justice” – Rationale of principle – Maintenance of public confidence in way in which cases heard and decided and aiding understanding of reasons for such decisions – Access refused where no public interest arises so as to outweigh desirability of maintaining confidentiality.

CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand - demand based on alleged judgment debt - no accompanying affidavit - where party serving demand had obtained money judgment against solicitor and declaration that solicitor's insurance responded - whether "judgment debt" owed by insurer to party serving demand

CORPORATIONS - takeover bid - application by bidder for specific performance of substantial shareholder's promise to sell into the bid - whether commencement of proceeding precluded by s 659B of Corporations Act - purpose and proper construction of s 659B - Takeovers Panel's power to make a declaration of unacceptable circumstances in relation to "affairs of a company" - whether conduct in relation to a contract of sale of shares by a substantial shareholder to a bidder relates to the affairs of the target company

CRIMINAL LAW - Appeal against sentence - sexual intercourse by a child on sibling under 10 years - sentenced imposed after breach of s. 9 bond - applicant unable to complete rehabilitative program due to lack of funding - evidence of behavioural and psychological problems

COURTS & JUDGES – disqualification of judge – apparent bias - waiver

Corporations – Management and administration – Duties and liability of officers of corporation – Statutory Duty of Care and Diligence – Standard of care for contraventions under the statutory provisions equivalent to the civil standard – s232(4) Corporations Law - Corporations – Management and administration – Duties and liability of officers of corporation – Statutory Duty of Care and Diligence – The statutory duty set out in s232(4) Corporations Law is a duty owed to the corporation - Corporations – Management and administration – Duties and liability of officers of corporation – Procedural fairness is informed by the context of civil penalty proceedings - Corporations – Management and administration – Duties and liability of officers of corporation – s1317 & s1318 Corporations Act – Appellate intervention in discretionary judgments - Procedure – Judgments and orders – Effect of delay in delivering judgment.

INDUSTRIAL LAW - New South Wales - Appeals and references - Finality of decisions - Industrial Relations Commission — appeals from — operation of privative clause – exception under s179(4) of the Industrial Relations Act – refusal by the Full Bench to give leave to appeal on a jurisdictional matter or refusal to decide a jurisdictional matter amounts to a determination on an “issue of jurisdiction”. - INDUSTRIAL LAW – New South Wales – Unfair contracts – Jurisdiction – s106 (2A) of the Industrial Relations Act does not apply when s19B of Schedule 4 operates to exclude it. - INDUSTRIAL LAW - New South Wales - Unfair contracts - Jurisdiction - Whereby a person performs work in any industry under s105 and s106 of the Industrial Relations Act – contract between proprietor and fellow investors is not a contract for the performance of work in any industry. - ADMINISTRATIVE LAW – Prerogative writs and orders – Prohibition – Grounds on which granted – claimant must be directly affected by the course pursued by a tribunal and show that the tribunal is about to act to his or her detriment in excess of its authority.

TORT – Contributory negligence – liability of RTA for design of highway intersection which had resulted in a number of accidents – collision between two cars at intersection where driver of one was held to be negligent with contributory negligence on the part of the other driver – no interference with that apportionment – RTA liable for defective design in conjunction with primarily liable driver

Appeal – interference with judge’s findings of fact – findings based on credibility of witnesses – whether trial judge erred in resolving conflicts in evidence - Appeal – inconsistency of plaintiff’s evidence with objectively established facts

PROCEDURE – Summary disposal – Pleading – striking-out – Interim payment – whether court can be satisfied that plaintiff will succeed – high degree of certainty required - NUISANCE – incursions of feral animals from defendant’s land onto plaintiff’s land – REAL PROPERTY – whether State can make laws restricting use of land held in fee simple.

Succession. Family Provision. Intestacy. Claims by two soi-disant de facto partners of Deceased and by an adult grandson. One of the alleged de facto partners was the paid carer of Deceased. Status of each Plaintiff as an eligible person. Financial and material circumstances of each Plaintiff. Whether each Plaintiff has been left without adequate provision for his proper maintenance. Factors which warrant the making of each application.

PRACTICE AND PROCEDURE – UCP Rule 29.10 – “no case to answer” – application by cross-defendant, who is also defendant, for judgment on cross-claim – purposive construction – should await conclusion of evidence of other defendants

Administrative Law. Judicial review. Building & Construction Industry Security of Payment Act 1999 (NSW). Whether determination by an adjudicator was a bona fide exercise of power or a denial of natural justice. Held no consideration of submission and determination set aside.

Objection to parts of lawfully intercepted telephone conversations

Appeal from Magistrate - claim for indemnity by managing agent in respect of costs of other proceedings - no error as to point of law.

CORPORATIONS - winding up - examination of officers and others - application for directions as to scope of examinations by special purpose liquidator with limited powers

Discovery - motion seeking further discovery - conclusive nature of affidavit verifying - conflicting affidavits.

CRIMINAL LAW - order for forensic procedures - appeal - plaintiff a suspect - indictable offence - murder - reasonable grounds to suspect plaintiff - grounds for believing forensic procedures might produce evidence to confirm or disprove commission of offence - forensic procedures justified in circumstances - circumstantial case - DNA evidence - appeal dismissed

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

Criminal Law - Sentencing - Drug offences - parity with co-offender - totality - whether manifestly excessive - failure to accord sufficient discount for early plea.

Sentence appeal - admission of "fresh" evidence - whether "fresh" evidence could have been obtained by the exercise of due diligence - whether "fresh" evidence was of such significance that the sentencing judge may have regarded it as having a real bearing upon the decision.

Criminal Law - Sentencing - Crown appeal - robbery with wounding - mentally disordered offender - relationship of Henry guideline with standard non-parole - relevance of mental illness - whether sentence manifestly inadequate.

CRIMINAL LAW - application to appeal against sentences - using offensive weapon with intent to commit indictable offence (assault) - using an offensive weapon to avoid apprehension - six Form 1 offences - agreed statement of facts - lengthy criminal history - subjective circumstances - drug use - mental illness - applicant not called as witness at trial - decision not to call applicant within professional discretion of applicant's counsel - rehabilitation - no pre-sentence report - no miscarriage of justice in absence of pre-sentence report - amphetamine use not mitigating circumstance - no error in sentencing process - sentences within range available for serious offences

CRIMINAL LAW - Appeal against conviction - supply prohibited drug - cocaine - flee to escape arrest - running away from police with drugs - evidence of flight - directions to jury - whether trial judge failed to give directions on evidence of flight - whether flight was evidence of consciousness of guilt

CRIMINAL LAW - application to appeal against severity of sentence - malicious wounding with intent to inflict grievous bodily harm - use of knife - plea of guilty - subjective circumstances - finding of special circumstances - drugs - rehabilitation - attack unprovoked, uncalled for and unjustified - psychiatric and psychological reports - personality disorder - drug induced hallucinosis - finding of no obvious mental disability - no miscarriage of justice resulting from conduct of sentencing hearing by applicant's legal representatives - documents provided by applicant and her mother - not tendered - applicant and mother gave oral evidence - no miscarriage of justice

PROCEDURE – Leave to amend proposed statement of claim under compulsory pre-trial process of s318 of Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) (“WIM”) – Whether applicable to the leave sought where the amendment was to insert claim for liability for misleading conduct in relation to employment under s53B of the Trade Practices Act – Meaning of the expression “for work injury damages” incorporated in s318(1) and in particular whether a contravention of s53B covered by the words “caused by the negligence or other tort of the employer” – No necessity to consider constitutional question of consistency between s318 and s53B of the Trade Practice Act as s318 WIM not applicable – Otherwise no basis for appellate intervention in relation to exercise and of discretion to grant leave to amend.

Evidence — Criminal trial — admissions — discretion to exclude — covertly recorded conversation between accused and complainant facilitated by police —whether conversation constituted breach of accused’s right to silence — whether conversation was the functional equivalent of an interrogation by an agent of the State - Evidence — discretion to exclude evidence — complaint evidence — whether evidence of previous complaints admissible under s 108(3) Evidence Act to restore complainant’s credibility in anticipation of suggestion by defence that complainant’s evidence was a fabrication - Criminal Law and Procedure — whether summing up to jury adequate — whether trial judge discharged obligation to ensure a fair trial of the accused — whether verdict unreasonable and inconsistent with evidence

Building and Construction Security of Payment Act 1999 - Act inappropriate to construction contracts [as defined] forming part of a loan agreement with a recognised financial institution - claim for interlocutory relief - whether statutory scheme can be outflanked by application for declaratory relief - challenge to adjudication determinations under the Act - No serious case shown to justify engaging of balance of convenience parameter

BUILDING AND CONSTRUCTION – Dispute Resolution – Adjudications – Enforcement – stay of execution – where judgment creditor moves to discharge stay granted by consent – where proceedings in which issues will be finally determined are part-heard – where those proceedings have been adjourned because of default by judgment creditor – where judgment debtor has bona fide arguable case that no amount properly due – where judgment debt can be fully secured by deposit of title deeds in court

Criminal law - sentencing - manslaughter by use of a motor vehicle - no less serious a crime - pre-meditation - general deterrence - heavy vehicles - sentence not manifestly excessive.

Criminal Law - Sentencing - application of R v Way - taking into account a prior offence dealt with under s 10 of the Crimes (Sentencing Procedure) Act.

CRIMINAL LAW - application for leave to appeal against severity of sentence - importation to Australia of not less than the commercial quantity of cocaine - previous trial of charges - applicant convicted - successful appeal - new trial ordered - sentence discounted by reason of plea - applicant born in New Zealand - two co-offenders of British origin - Convention on the Transfer of Sentenced Persons - whether transfer of co-offender a ground for parity - parity of sentencing - issue estoppel - no issue estoppel in reasoning of appellate court - finding as to applicant's criminality open to sentencing judge

CRIMINAL LAW AND PROCEDURE — voice comparison — tape recording of accused speaking English — tape recordings of persons discussing crime in foreign language — foreign language accused's native tongue — accused gave evidence — whether jury could compare voice of accused with voices on tapes to determine if he was one of those speaking on the foreign language tapes — whether open to jury to compare a voice speaking a foreign language with a voice speaking English in the absence of expert evidence - SENTENCE — accused convicted of being knowingly concerned in importation into Australia of cocaine equivalent to 102.5 grams pure — sentenced to nine years imprisonment with a non parole period of five years and five months — accused arrested before repeal of s 16G of the Crimes Act 1914 (Cth) but tried and sentenced after repeal — whether sentence should reflect pre-repeal regime — whether trial judge gave any, or any adequate weight, to fact accused attacked in gaol and to delay in Crown bringing the matter to trial — whether sentence manifestly excessive.

Objection to admissibility of lawfully intercepted telephone calls

LANDLORD AND TENANT – Agreement to lease for a term – No acceptance of offer to lease – No intention to be immediately bound by terms of offer to lease – Held that no agreement to lease for a term.

STRATA TITLES - management and control - owners corporation -functions - delegation of functions - whether sufficient handing over of decision-making and control to amount to delegation - whether caretaker agreement - not delegation of decision-making and control functions - agreement not void and unenforceable - Strata Schemes Management Act 1996 ss 13(3), 26

CONTRACT – Exercise of an option to purchase land – Exchange of dissimilar counterparts involving disconformity of description of land where identical plan of the land attached to both counterparts – Disconformity did not infect the bargain – Form of notice of exercise where additional contract requested but not required – Construction of condition precedent to exercise of option and whether condition fulfilled – Specific performance sought and granted

CORPORATIONS - deed of company arrangement - meeting of creditors considers proposed resolution that deed be terminated and company be wound up - majority in number and by value not obtained either for or against - chairperson declined to exercise casting vote - chairperson stated two reasons for this - first, doubts about whether voting entitlements of creditors properly recognised - second, pendency of these proceedings - whether these were considerations relevant to decision whether casting vote should be exercised - chairperson also stated, giving reasons, an inclination otherwise to exercise casting vote against continuation of deed - whether such reasons relevant and rational - whether chairperson should have exercised casting vote in accordance with stated inclination

Possession - forgery, indefeasibility of title - Contracts Review Act - equitable relief

Extension of time to commence proceedings - explanation for delay and prejudice - presumptive prejudice - deliberate decision - change in plaintiff's circumstances - just and reasonable to make an order.