Cases and authorities

EMPLOYMENT – contract of employment – implied duty of good faith – implied duty on employer not, without proper or reasonable cause, to conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties – employer’s right to dismiss where reasonable risk of damage to children in its care. - DAMAGES – reasonable damages in mitigation – costs of proceedings in Industrial Relations Commission – not available as reasonable expenses in mitigation of damage from wrongful dismissal.

Sentence appeal - fradulent tax returns submitted by tax agent - whether relevant psychiatric condition - proportion of non-parole period to overall sentence - usual case - appropriate range 60% - 66% for Commonwealth offences

CRIMINAL LAW - Appeal against sentence - three charges of receiving stolen property - motor vehicle re-birthing enterprise - whether sentencing judge considered alternatives to full time custody - no express reference to periodic detention - whether periodic detention available

CRIMINAL LAW - Appeal against conviction - conviction for murder on the basis of joint criminal enterprise - use of firearm by a companion to avoid arrest - error in directions to jury on joint enterprise murder - contemplation of an intention to kill or inflict serious bodily harm - whether further oral directions can cure written directions - whether trial judge ought to have left alternate verdict of manslaughter to the jury

Workers Compensation – procedure – Arbitrator – whether decision affected by actual bias – Arbitrator formulated case for claimant, then found it proved – whether guilty of prejudgment - Procedure – Arbitrator required to act in accordance with equity, good conscience and the substantial merits of the case – not bound by the rules of evidence – whether finding constituted an error of law – principles considered. (D)

CORPORATIONS - winding up - insolvent transactions - recovery of preferences - claim by liquidator against Commissioner of Taxation - Commissioner joins company's sole director as third party - no contest by Commissioner - director puts liquidator to proof of insolvency - whether insolvency established - principles on which interest should be included in order for payment made against Commissioner - whether director can be subjected to separate order for payment of interest - principles on which costs should be awarded where no contest by Commissioner and director declined to admit insolvency ultimately proved

Contract - Construction and interpretation of contract - Admissibility of extrinsic evidence to assist in interpretation of contract - Construction of general release - Release to be read down to conform to contemplation of parties at execution

CRIMINAL LAW - sentencing - manslaughter by unlawful and dangerous act - juvenile offender

DAMAGES: - rate of interest on past general damages - interest on costs - costs of earlier application for extension of time - costs in proceedings generally

Appeal from Local Court - logging operations - offence of failure to comply with request - structure of Regulation - proviso - individual request - costs

JUDGMENT AND ORDERS - default judgment - possession of land - application to set aside - writ of possession executed - what needs to be proved - no arguable defence - no basis for order setting aside default judgment

Family Provision. Application under the Family Provision Act for provision by de facto partner of deceased. Order made. No matter of principle.

NEGLIGENCE – Claimant owner of house – claimant’s signature forged on mortgage documents – liability of solicitor acting for claimant on mortgage – liability of solicitor who attested the forged signatures – duty of care of solicitors in those circumstances – whether policy of insurance issued by Lawcover responded to claim by solicitor attesting the forged signatures – apportionment of liability between solicitors – causation under s5D of the Civil Liability Act (2002) (NSW).

Appeal from CTTT: whether acceptance of letter of offer constitutes a contract, interpretation - "reason to believe" s 11(2) of the Consumer Credit Code

Landlord and tenant – mortgage of leasehold – whether lessor entitled to forfeiture without the notice required under agreement with mortgagee – whether lessor’s notices of termination to lessee valid – construction of deed of consent to mortgage of lease – meaning of “successors” and of “assigns”

EQUITY – Estoppel – Proprietary estoppel – where plaintiff with encouragement of defendant transfers property to defendant in reliance upon assumption known to defendant that plaintiff will have lease of other property of defendant at reduced rental – held, equitable proprietary estoppel made out resulting in equitable leasehold estate – CONVEYANCING - Leases – termination – default in payment of rent - EQUITY – Relief against forfeiture - whether lessee entitled to relief against forfeiture – where aspect of wilfulness in default – where previous flexible relationship between parties – where long history of reliable payment of rent – where lessor amply protected against future default – where forfeiture would produce great windfall benefit to lessor – where lessee did not admit breach – whether admission of breach essential precondition to grant of relief against forfeiture – COSTS – Relief against forfeiture.

PROCEDURE [93] – Supreme Court procedure – Procedure under Rules of Court – Summary disposal – Summary dismissal – Summons on face clearly not tenable.

CORPORATIONS - winding up - winding up in insolvency - non-compliance with statutory demand - defendant company carrying onus to prove solvency - reliance on report and opinion of chartered accountant - report and opinion disclose no satisfactory basis for conclusion stated - plaintiff adduces evidence of substantial debts due and payable not taken into account in report and opinion - defendant's onus not discharged - submission that making of winding up order should be de deferred - no basis for deferral particularly where company trading and incurring debts

EQUITY - ESTOPPEL - COSTS - Form of order following finding of proprietary estoppel - Appropriate order for costs.

APPEAL - grounds - failure to give reasons - whether trial judge failed to give reasons or to give adequate reasons - failure to consider evidence - whether trial judge failed to give consideration to relevant evidence - whether new trial should be ordered. D

TORTS – NEGLIGENCE – LIABILITY – whether trial judge incorrect in finding that the appellant was negligent in not replacing an open grate in a drain into which the respondent accidentally placed his foot and subsequently tripped and fell - TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – apportionment – whether the negligent contribution of the respondent determined by the trial judge was too low - DAMAGES – quantification – whether trial judge took into account pre-existing conditions of the respondent that affected both the award for general damages and past and future economic loss

Alleged Calderbank letter. Indemnity costs refused after consideration of all the circumstances

CRIMINAL LAW - application under s.138 Evidence Act 1995 to exclude entirety of evidence of Crown witness - Accused contends that evidence improperly obtained - contention that police investigators acted improperly in circumstances where witness gives induced statement and receives use derivative use undertaking under s.9(6) Director of Public Prosecutions Act 1983 (Cth) - no impropriety established - application refused

CRIMINAL LAW - admissibility of evidence obtained under telephone intercept warrants and search warrant - whether evidence improperly obtained under s.138 Evidence Act 1995 - defence contention that false and misleading information included in warrant applications - defence contention that senior Australian Taxation Office officer deliberately and intentionally provided false and misleading information to police officers making warrant applications - held that some information in warrant applications was inaccurate - held that inclusion of inaccurate information was not deliberate, intentional or reckless - whether inadvertent inclusion of inaccurate information was improper for the purposes of s.138 - held that impropriety not established - application refused

CONTRACTS – Unjust contracts – where mortgage of pensioner's sole asset to secure refinance of earlier mortgage in default was an unjust contract - whether as a matter of discretion relief should be granted – EQUITY – Unconscionable dealings – whether mortgage was unconscionable dealing - CONTRACT – Termination – accrued rights where mortgagee had agreed with mortgagor’s son to release mortgagee upon provision by son of alternative security – where alternative security provided but other obligations of son not performed - whether mortgagee obliged to release mortgagor – accrued contractual right before termination - Privity – whether release enforceable at the suit of mortgagee - whether trust of benefit of contractual promise in favour of a third party – where son obliged in contract and in equity to procure release. - COSTS – where plaintiff ultimately succeeds by reason of success on one issue but fails on issue occupying much of trial.

CRIMINAL LAW - Crown appeal - driving in a manner dangerous causing grievous bodily harm - plea of guilty - periodic detention - degree of moral culpability - unlicensed driver - unregistered vehicle - respondent on conditional liberty - alcohol - public road - gravity of injuries to victim - whether periodic detention appropriate - aggravating factors - youth - no previous convictions - delay between offence and sentence - established rehabilitation - discount for plea of guilty - utilitarian value of plea - additional materials - discretion not to intervene

Crown appeal against sentence

Criminal Law - Sentence - Effect of sentences exceeding the maximum penalty for the offence - Assessment of seriousness of offence of aggravated break enter and steal - whether offence above mid-range of seriousness - Totality - whether sentences ought to have been concurrent - whether any lesser overall sentence was warranted.

Crown Prosecutor's obligation to call witnesses

Criminal Law - Sentencing - Factors in aggravation - "planned or organised criminal activity" - accumulation of sentences - finding special circumstances - no reduction in non-parole period - no lesser sentence warranted.

Appeals against sentence - offences of on-going supply and deemed supply of amphetamine, possession of a prohibited weapon and conducting drug premises - Form 1 offences - appropriate discounts for pleas of guilty and assistance to the authorities - whether sentences manifestly excessive

CONTRACTS — Building, engineering and related contracts - Payment schedules under s 14 of the Building and Construction Industry Security of Payment Act 1999 — Whether a payment schedule is properly provided if it is not referred to in a cover letter — Whether a payment schedule prepared and signed by an agent without express authority can be said to have been provided by the principal - CONTRACTS — particular parties — principal and agent — authority of agents — construction and extent of authority — authority created by other means — acts incidental to effective execution of express authority

Appeal decision of CTTT - relocation of house

CORPORATIONS - winding up - statutory demand - application to set aside - whether plaintiff has offsetting claims greater than amount of statutory demand

PROCEDURE [97] – Supreme Court procedure – Practice under UCPR – Pleadings – Defence – Whether partial defence should be allowed.

CORPORATIONS - winding up - special purpose liquidator appointed to consider whether viable causes of action arose from particular events - application by special purpose liquidator for issue of examination summonses - application by prospective examinees for leave to be heard on hearing of liquidator's application - whether liquidator's ability to pursue potential proceedings despite time bars may be preserved by agreements not to rely on such bars - particular bar created by s.588FF(3) of Corporations Act - where extended period fixed within three year period - whether court may order further extension

REAL PROPERTY - Claim by mortgagee for possession of property used as a fish hatchery for supply of fish to pet shops and aquariums - Whether a farming operation within the Farm Debt Mediation Act.

Judicial review - appeal by application to the Registrar - test to be applied by Registrar - conflicting authority - demonstrable error - incorrect criteria - failure to discharge onus.

Appeal decision of Local Court Magistrate - contract, breach, damages

Sentence appeal - ongoing supply of ecstasy - whether exceptional circumstances necessary before imposing less than full time custody where substantial dealing - desirability of expressing extent of utilitarian discount

sentence appeal - supply of amphetamines and cannabis - whether additional aggravating factor of disregarding public safety under s25A(2)(i) Crimes (Sentencing Procedure) Act 1999 should be taken into account - whether disregarding public safety inherent feature of offence - need to avoid double counting

CRIMINAL LAW - sentencing - standard non-parole period - application to appeal against severity of sentence - aggravated sexual assault - plea of guilty - prior criminal record - current bond to be of good behaviour - discount for plea of guilty - special circumstances not found - whether error in failing to find special circumstances - determination of special circumstances discretionary - whether error in failing to impose parole period in statutory proportion to the head sentence - no requirement to give reasons for sentence in which the balance of term is less than one third of the non-parole period - changes in sentencing legislation - course of legislative amendment - court required first to set non-parole period and secondly to set a balance of term - grant of parole not automatic - no statutory requirement that non-parole period first be determined - whether sentence imposed manifestly excessive - sentence within range legitimately available

Criminal law-sentencing-voluntary disclosure of offences-imminence of discovery-degree of leniency

COSTS – where plaintiff succeeds in obtaining equitable relief on lesser scale than originally claimed but not pressed at trial – where solicitor certified original claim – where costs increased by plaintiff’s failure diligently to prosecute proceedings due to ill-health and frailty

CORPORATIONS – Winding-up – Winding-up in insolvency – Statutory demand – Application to set aside statutory demand – Plaintiff and defendants entered into contract in which defendants agreed to market plaintiff’s property for sale – Contracts for sale of property exchanged – Defendants requested payment of “selling fee” payable under contract – Plaintiff paid half of selling fee – Sale of property collapsed – Defendants served plaintiff with statutory demand in respect of balance of selling fee – Whether s 36 Property, Stock and Business Agents Act 2002 (NSW) applicable to debt in respect of which statutory demand served – Where s 36 applicable – Whether documents sent by defendants to plaintiff on date of purported sale constituted a statement of claim satisfying s 36 – Where documents not a statement of claim satisfying s 36 – Whether debt not “due and payable” for failure to satisfy s 36 – s 459E(1) Corporations Act 2001 (Cth) considered – Re Elgar Heights Pty Ltd (No 1) [1985] VR 657 considered – Held that debt not “due and payable” – Order that statutory demand be set aside.

CORPORATIONS - reinstatement of registration - immediate winding up - appointment as liquidator of person who is already liquidator of associated company seeking reinstatement and winding up

Criminal Law - Commonwealth Offences - Sentences not manifestly excessive - Non-parole period exceeding normal ratio - Absence of reasons