Cases and authorities

Criminal law - Sentencing - Weight given to duress - No error demonstrated.

CRIMINAL LAW AND PROCEDURE - CONVICTION - MALICIOUSLY INFLICTING GRIEVOUS BODILY HARM BY DRIVING VEHICLE AT POLICE OFFICER - TRIAL PROCESS - DISCHARGE OF ILL JUROR - RULINGS BY TRIAL JUDGE - NO MATTER OF PARTICULAR PRINCIPLE

WORKERS COMPENSATION – notice of injury – nature of notice required under s 151C(1) of the Workers Compensation Act 1987 – effect of non-compliance with s 151C(1) – whether conduct of case gave rise to Verwayen estoppel – whether question of notice is capable of determination as a separate issue – interaction between the Workers Compensation Act 1987 and Workplace Injury Management and Workers Compensation Act 1998

DEFAMATION - Defence of qualified privilege under statute and at common law - four imputations defamatory of plaintiff found pursuant to Defamation Act section 7A - whether conduct of publisher was reasonable - seriousness of imputations - extent of inquiry before publication - accuracy of article - reputation of plaintiff - assessment of compensatory damages - whether aggravated damages should be awarded.

Detailed examination of accounts - mixing of moneys of plaintiff's predecessor with those of administrator over many years - sources of money for purchase of assets - application of moneys received - loose accounting and banking practices - no question of principle involved.

PROCEDURE [553] - Costs - Costs of whole action - Generally - Where action settled - Usual rule - Exception when it is plain one party would have succeeded had matter been fully tried.

TRUSTS [92]- Express trusts created by will- Gift by mother to daughter of interest in joint account- Note attached to will instructing daughter as to distribution of funds in joint account- Note communicated to daughter and acquiesced in by her before mother's death- Instructions partly fulfilled- Beneficial gift or creation of trust- Whether "precatory trust"- Held daughter holds balance of account on trust as per note.

CORPORATIONS - voluntary administration - resolution at s.439A meeting that deed of company arrangement be executed - deed not executed - subsequent meeting of creditors resolves that company execute different deed - steps taken to implement the alternative deed - whether s.447A available to validate alternative deed - whether s.447A order should be made - PROCEDURE - corporations - ex parte application for validating orders - sufficient notice to all creditors - one creditor expresses willingness to be contradictor if assured in advance of full costs on indemnity basis - communication by creditor accordingly with plaintiffs and judge's associate - inappropriate manner of communication with court

ADOPTION – whether children should be adopted or left in foster care – whether any general rule that adoption is preferable to foster care – relationship between Adoption Act and Children and Young Persons (Care and Protection) Act – whether adoption clearly preferable to long term fostering in the present case – whether consent of birth mother to adoption should be dispensed with.

Contract - breach - claim for restitution - evidentiary deficiencies - whether affidavits were received in evidence - failure to deal with alternative claim

FAMILY LAW AND CHILD WELFARE - adoption - name of child - change of name of child

CRIMINAL LAW - CRIMINAL APPEAL - sentence appeal - balance between general deterrrence and rehabilitation where applicant suffers from intellectual disability - no manifest excess in sentence

CRIMINAL LAW AND PROCEDURE - SEXUAL OFFENCES - SENTENCE - CROWN WITHDRAWS INDICTMENT AND SUBSTITUTES ANOTHER - IMMEDIATE PLEAS OF GUILTY TO COUNTS IN NEW INDICTMENT - UTILITARIAN VALUE OF PLEAS - "DISCOUNT" OF 10 PERCENT INADEQUATE TO CIRCUMSTANCES - OTHER GROUNDS NOT SUSTAINED - NOT INVOLVING ANY SPECIAL POINT OF PRINCIPLE

CRIMINAL LAW – Appeal – Against Conviction – s418(2) & s421 of the Crimes Act 1900 – Whether judge’s repeated references to alternative verdict led jury to believe that a complete acquittal was not reasonably open to it. - SENTENCING – Appeal – Manslaughter – Protean character of manslaughter as an offence – It is necessary to establish a trial judge’s discretion miscarried in the House v King sense.

CRIMINAL LAW - CRIMINAL APPEALS - sentence appeal - wounding with intent to murder - malicious wounding - malicious infliction of grievous bodily harm - proper method or use of standard non-parole period - use of special circumstances - principles of sentencing misapplied - manifest error - misuse of prior convictions

CRIMINAL LAW - CRIMINAL APPEAL - sentencing appeal - sexual assault - discretion to treat as an adult - discretion to treat as a child under Children (Criminal Proceedings) Act - no manifest excess

CRIMINAL LAW – Jurisdiction, practice and procedure – Powers and duties of prosecution – Delay in disclosure to defence of evidence in possession of Crown. - CRIMINAL LAW – Appeal – Whether a miscarriage of justice – Material withheld not of “sufficient relevance”. - EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused – Cross-examination of sexual assault complainants – Significance of surrounding detail to reliability of memory of assault.

CRIMINAL LAW AND PROCEDURE - SENTENCE - OFFENDER ALLOWS HIS PREMISES TO BE USED FOR AMPHETAMINE MANUFACTURE - HIMSELF AN ADDICT - WHEN ARREST IMMINENT OFFENDER ACCIDENTALLY CAUSES LABORATORY TO EXPLODE - SERIOUS INJURIES (BURNS) SUFFERED - LONG TERM CONSEQUENCES - EXTRA CURIAL PUNISHMENT - NO PRINCIPLE DENYING THAT MITIGATION AVAILABLE EVEN IF INJURIES SELF INFLICTED AND CONNECTED WITH OFFENCE - OTHER GROUNDS INVOLVING NO POINT OF PRINCIPLE - EXCESSIVE TOTAL TERM BUT NON PAROLE PERIOD IRREDUCIBLE

CRIMINAL LAW AND PROCEDURE - SENTENCE - CANNABIS CROP CULTIVATION - LARGE COMMERCIAL QUANTITY - ROLE OF PARTICIPANT - SEPARATE MATTERS ON FORM 1 - INADEQUACY - MAJOR CRIMINAL ENTERPRISE - SENTENCE INCREASED

ADOPTION – CONSENT – NOTICE – CONSTRUCTION – PROCEDURE – where child between twelve and eighteen years consents to adoption, whether consent of birth parents required – whether notice of adoption application can be given before application is filed – what is “reasonable notice” – rights of parents whose consent not required – contents of notice under s.54(1)(c).

CORPORATIONS – Fundraising – Offers of securities – whether loan agreement was “debenture” within Corporations Act, s 9, and “security” for purposes of Chapter 7 - whether offer to enter into loan agreements was offer of securities for purposes of Part 6D.2 – whether offers to enter into loan agreements required disclosure under Part 6D.2 – conditions of availability of s 708(10) exemption - licensee’s satisfaction on reasonable grounds of matters in s 708(10)(b) is condition and requires that licensee sufficiently investigate experience of investor to form relevant opinion - whether advertisement of offers prohibited if disclosure not required by reason of s 708(1) – whether to make singular personal approach to acquaintance is to “publish” a statement referring to an offer – whether Corporations Act s 79 available to impose accessorial civil liability in respect of provisions which are not civil penalty provisions – Carrying on financial services business without a licence - “financial services business” - “financial service” - “financial product advice” – “financial product” – whether loan agreements were financial products - whether by issuing loan agreements, corporation issued, and thereby dealt in, financial products – whether corporation was carrying on a financial services business - whether licensee under old legislation pursuant to transitional provisions was to be treated as if it held an Australian Financial Services Licence under new legislation for purposes of s 708(10) - Misleading and deceptive conduct – where corporations engaged in misleading and deceptive conduct by publishing advertisements and distributing brochures – whether director “knowingly concerned” - where evidence does not implicate director in any relevant conduct after he is shown to have knowledge of matters which falsify representations - Directors duties – whether breached by director authorising, permitting or failing to prevent contraventions by corporation of provisions of Corporations Act (not being civil penalty provisions) – ss 180, 181 and 182 are not concerned with any general obligation owed by directors at large to conduct affairs of company in accordance with law generally or Corporations Act in particular, but with duties owed to company - relevant considerations – whether s 181 duty of good faith is contravened in absence of deliberate conduct known to be not in interests of company - where corporations were closely held proprietary companies in which interests of directors and shareholders were identical, director was young and inexperienced and his role was to provide building and construction expertise while others were responsible for fund-raising role and directors obtained legal and accounting advice - Disqualification orders – when operation of s 206D is attracted – Consent orders – effect of agreement of parties on Court’s discretionary powers – Injunctions – whether appropriate to make orders prohibiting respondent from engaging in conduct that is misleading or deceptive or which is likely to mislead or deceive – Declarations of contravention – duplicity - whether declarations of contravention should treat as a single contravention of s 180, and as another single contravention of s 181, whole course of conduct as director of Group of companies over period, rather than particular acts or omissions – whether appropriate to make declarations of involvement (under s 79) in contravention by corporations (being contraventions of provisions which are not civil penalty provisions and do not make provision for accessorial civil liability) – Disqualification orders – relevant considerations.

ADMINISTRATIVE LAW – Appeals from Administrative tribunals – Administrative Decisions Tribunal (NSW) – Appeal on questions of law – Meaning of “no evidence”. - LANDLORD AND TENANT – Retail and commercial tenancies legislation – s34 Retails Leases Act 1994 (NSW) – meaning of “genuine proposal” – availability of damages for non-compliance. - LANDLORD AND TENANT – Covenants – Actions for breach of covenant - LANDLORD AND TENANT – Leases and tenancy agreements – Construction and interpretation – Implied Obligations. - LANDLORD AND TENANT – Leases and tenancy agreements – Construction and interpretation – s133B(2) Conveyancing Act 1919 (NSW) – meaning of “improvements”.

Malicious prosecution - practice and procedure re application to amend pleadings - conditional leave to amend granted to rely upon allegations of fabrication of evidence and the giving of false evidence at committal and trial - vicarious liability of the Crown - allegations of unlawful agreement relevant to elements of reasonable and proper cause and malice.

CONTRACTS [31]- Offer- Application for 45 day credit account to purchase goods- Guarantee in incomplete form accompanies offer- Offeror told 14 day account opened- No other communication of any acceptance- Whether acceptance implied from conduct of parties- Trading then commenced- Held guarantee not part of contract governing trade- Guarantee not binding. - EQUITY [76]- Rectification- No power to rectify when no contract actually brought into existence- Rectification of one party deed where person signing same made no mistake- Whether gross negligence a defence to rectification.

CONTRACTS - General Contractual Principles - Offer and Acceptance - Draft agreement forwarded by post - Later agreement different in terms forwarded by letter stating that on receipt of duly signed and witnessed agreement an identical copy duly signed witnessed and dated would be returned - Duly signed and witnessed agreement posted - Letter sent and received before receipt of duly signed and witnessed agreement - Whether the postal acceptance rule applied - Whether the letter sent before its reciept was a notice of revocation of offer - First agreement and not second agreement signed, witnessed and returned - Whether plaintiff entitled to declaration of a subsisting agreement

Criminal Law - offence under s 578B(2) of the Crimes Act - possession of child pornography - images on hard drive of computer - charge dismissed in Local Court - whether appeal on ground involving question of law alone - nature of "film" under s 578B(2) - whether includes viewing image on computer monitor - no error of law.

COSTS - where plaintiff failed to withdraw caveat after her undertaking to the Court to do so was enlivened - where defendant seeks indemnity costs - whether plaintiff's inaction unreasonable - whether events establish "relevant delinquency" - where defendant seeks to vary earlier costs order - whether subsequent events establish "relevant delinquency" - no question of principle

Criminal Law - Sentencing - Knowingly take part in supply - relevance of amount of drug supplied.

Criminal Law - Sentencing - Crown appeal - supplying commercial quantity of methylamphetamine - relevance of standard non-parole period after plea of guilty - failure to identify the level of offending - failure to give reasons for departing from standard non-parole period - sentence manifestly inadequate.

Criminal law - sexual intercourse with a person under the age of ten years - indecent assault of a person under the age of ten years - whether open to jury to be satisfied beyond reasonable doubt of guilt of appellant - Criminal law - whether trial counsel incompetent - Criminal law - whether evidence correctly admitted - Criminal law - whether accused raised good character - whether discretion to allow Crown to adduce evidence in rebuttal of good character miscarried.

APPEAL – leave to appeal from interlocutory decision – error by trial judge - TRUSTS – property held on trust for a specific purpose – restraint of use for costs of on-going litigation - INJUNCTIONS – trust property – other property claimed to be held on trust – balance of convenience – balance in favour of restraining use of property - JUDGE – interlocutory order

MENTAL HEALTH - habeas corpus - relationship between the criminal justice system and the mental health system - order by Magistrate that respondent be released on expiration of non-parole period - respondent transferred to hospital under s 97 of the Mental Health Act 1990 (NSW) - by virtue of the transfer respondent became a forensic patient - discussion of the definition of forensic patient under the Mental Health Act - expiry of non-parole period - discussion of the meaning of parole - whether respondent is entitled to be released by virtue of the Magistrate's order - source of power to detain a person following transfer under s 97 - nature of power under s 97 - nature of power under s 86(4) of the Mental Health Act - relationship between ss 86(4) and 97. D

PROCEDURE – Procedure under Civil Procedure Act – Default – Remedies – Striking out and dismissal – Whether justified in denying party hearing on merits for procedural defaults - Dictates of justice – Summary judgment – need for evidence of belief in absence of defence.

CORPORATIONS - winding up - statutory demand - demand based on judgment debt - order for payment of judgment debt by instalments made after service of demand - whether execution of judgment debt stayed - whether "some other reason" to set aside statutory demand

PARTNERSHIP [35] – Dissolution and winding up – By the court – Other matters – Costs – General rule.

[INTEREST ON COSTS] - Whether interest should be paid on costs awarded to the plaintiff - whether delay in bringing an application precludes an award - whether interest should be paid on costs awarded to the plaintiff (a barrister) in respect of work he did in the proceedings described by the costs assessor as work of "junior counsel" - whether the lengthy delay by the costs assessor in providing the certificate should reduce the award to the plaintiff.

Tort law - Medical negligence - Birth injury - No breach of duty - Causative link not established.

EQUITY - Trusts - Constructive trust - Common intention - Proprietary estoppel - family farming enterprise - ownership of properties on which family business conducted - extent of beneficial interests of family members in the properties and business

NEGLIGENCE - boy rendered paraplegic after diving off bridge - duty of care owed by Council as Road Authority for public road under Roads Act 1993 (NSW) - miscellaneous defences - obviousness of risk - fourteen year old boy - Civil Liability Act 2001 (NSW) s 5F. - NEGLIGENCE - duty of care owed by RTA - consequences of RTA's predecessor designing and building bridge - knowledge of RTA of allurement and dangers constituted by bridge - signs prohibiting diving - signs ineffective for many years - RTA's knowledge that signs not achieving purpose - situation was "accident waiting to happen" - whether different signs should have been installed - whether bridge should have been modified to make diving more difficult - the justifiability of policy decisions in cases of negligence involving statutory authorities - availability of resources and competing priorities - causation - contribution negligence. D

PRACTICE AND PROCEDURE - COSTS - interlocutory proceedings – appropriate costs orders where proceedings dismissed without proceeding to final determination - Civil Procedure Act 2005 s98 - Uniform Civil Procedure Rules 42.19 and 42.20 (D)

Entitlement to summary dismissal - indefensible process - entitlement to a jury trial under s85 Supreme Court Act 1970 - indemnity costs.

ENVIRONMENTAL LAW – Building and town planning – scope of development consent – construction by reference to existing activities – incorporation by reference of material extrinsic – when reference to extrinsic material permissible. - ENVIRONMENTAL LAW – Noxious and offensive trades and premises – licensing under environmental protection legislation – aluminium processing plant – licence permitting reprocessing of by-product conditional upon development consent – variation of licence – whether power to vary subject to s 50(2) - Protection of the Environment Operations Act 1997 (NSW), ss 50(2), 58, Environmental Planning and Assessment Act 1979 (NSW), s 91

CRIMINAL LAW – drug offences – importation – guilty verdict – bail extended until sentencing hearing – appeal against grant of bail – BAIL APPLICATION – Crown appeal – principles

Customs prosecution - smuggling - evade payment of duty - knowingly make false declaration

PARTNERSHIP AGREEMENT: – joint venture agreement – dissolution of agreement– continuing liabilities and obligations after dissolution – calculation and distribution of profits – winding up partnership – implied authority to deal with asset – costs incurred in winding up reasonable or necessary

Plea of guilty to "felony-murder" - young offender - assistance to the authorities - departure from standard non-parole period

CORPORATIONS - examination of officers and others - examination of administrator of deed of company arrangement (and staff) to be undertaken by representative of major shareholder and creditor - application for access to s.596C affidavit - whether arguable case for setting aside examination summonses shown