Cases and authorities

CORPORATIONS - deed of company arrangement - whether deed administrator was in a position of conflict of interest - whether deed should be terminated on ground that its purposes have failed

FAMILY LAW AND CHILD WELFARE - Child Welfare other than under Family Law Act 1975 and related Acts - Crimes and offences by and against children - Plaintiff accused of inappropriate behaviour against a child - Plaintiff employed by Department of Education and Training - Injunction sought restraining Director General of Education and Training from notifying any other entity in purported exercise of statutory functions - Whether Director General should be restrained from reporting under the Ombudsman Act 1974, s 25F or the Commission for Children and Young People Act 1998, s 39

ABORIGINALS AND TORRES STRAIT ISLANDERS - local Aboriginal land council constituted under State law - authority and capacity as a statutory corporation - statutory objects, functions, powers, duties and responsibilities - CORPORATIONS - statutory corporations - delineating authority and capacity by reference to objects, functions and powers - duty to administer property within confines of statutory scheme - whether ultra vires to transfer property to charitable trust benefiting relevant Aboriginal group - whether transfer authorised by appropriate corporate action - TRUSTS AND TRUSTEES - charitable trusts - property held on trust for purpose of benefiting Aboriginal group "by doing" certain acts - extent to which purpose charitable - whether application of funds to enterprises is within charitable purpose - whether power to apply and distribute income and capital permits loans to enterprises - CORPORATIONS - voluntary administration - whether directors formed genuine opinion as to insolvency or likely insolvency - whether resort to Part 5.3A for improper purpose

CORPORATIONS - winding up - application by liquidator for leave to appoint himself as administrator - concurrent application for order excusing sole director from furnishing report as to affairs in the administration - concurrent application for stay of winding up

Appeal decision of Local Court Magistrate - non-appearance - Statement of Claim struck out

CORPORATIONS – Winding-up – Applications for winding-up – Substitution of applicants – Defendant company appointed applicants as receivers and managers of assets of third company – Defendant agreed to indemnify applicants for moneys payable to them as remuneration to extent such remuneration not recovered from assets of third company – Applicants claim status as creditors of defendant – Applicants seek order substituting them as applicants for winding-up of defendant – Where applicants have not recovered any remuneration from third company – Whether applicants are creditors of defendant – Held that defendant in breach of obligation to indemnify applicants – Held that defendant’s liability is in unliquidated damages, not debt – Applicants contingent creditors only – Contingent creditors not entitled to order for substitution without leave of Court – Where no leave sought – Application dismissed.

NEGLIGENCE - assault on inmate in prison yard - whether prison authority breached its duty of care - whether general supervisory measures for inmates in the prison yard were adequate - causation - State of New South Wales v Bujdoso (2005) 80 ALJR 236 applied. - PRACTICE AND PROCEDURE - errors in fact and law by trial judge. ND

PRIVACY LAW – PRIVACY AND PERSONAL INFORMATION ACT 1998 (NSW) – Scope of Information Protection Principles – Public agency is not responsible for use or disclosure of personal information by employee acting for a purpose extraneous to any purpose of the agency - COMPANY LAW – Regulatory framework – Rules of attribution – Employee acting for a purpose extraneous to any purpose of the company

Workers compensation - judicial review of Registrar's determination not to refer medical assessment for appeal

Strike out statement of claim - malicious prosecution does it extend to cover administrative decisions - misfeasance in public office

TORTS – NEGLIGENCE – Dangerous Premises – Occupier’s Liability – Home unit body corporate – common areas – tiled landing at front entrance – whether failure to remove carpet off-cuts on which plaintiff tripped negligent – held, in the circumstances it was not – whether failure to provide external slip-resistant doormat on tiled landing on which plaintiff slipped negligent – held, in the circumstances it was – contributory negligence – assessment of damages.

Appeal decision of CTTT - non receipt of notice of hearing

Corporations Law. Application under 459G of the Corporations Act 2001 to set aside statutory demand. Formal defects in the affidavit in support a reason for setting aside the demand. Genuine dispute and off-setting claim established. Demand set aside.

CRIMINAL LAW: - application for leave to appeal against sentence - break enter and steal - applicant sentenced to same term as co-offender - relativity of sentences - whether applicant entitled to be dealt with more leniently than co-offender - whether justified sense of grievance.

Sentence - murder - Crown appeal - intent to cause grievous bodily harm - whether less serious than intent to kill - associated sexual assaults on different victim - inextricably connected offences - protection of community - dangerousness - no prior offences involving violence - offence itself evidence of dangerousness - life sentence

NEGLIGENCE – Employer’s liability for – Non-economic loss, future economic loss – Superannuation – Impact of Workers Compensation Act 1987 and Civil Liability Act 2002 (ND)

PROCEDURE - Costs - Whether barrister and solicitor should be ordered to pay portion of the costs the defendant was ordered to pay to the plaintiff under the Civil Procedure Act 2005, s 99 - Defendant waives client legal privilege - Defendant advised by counsel not to defend - Defendant failed to comply with directions notwithstanding Associate's telephone calls - Plaintiff complied - Barrister and solicitor involved in proceedings for defendant before Administrative Appeals Tribunal - Plaintiff's counsel informed that Supreme Court proceedings unlikely to be defended - Court not informed and no variation or stay of the directions sought - Defendant requests no order be made against barrister or solicitor - Barrister and solicitor apologised to Court

CORPORATIONS – Share capital – Shares – Issue of shares – Validity – Plaintiff holds 2/5 of issued shares in first defendant (“the company”) – Second and third defendants directors of company – Second and third defendants resolved that company would issue 200,000 ordinary shares – Plaintiff seeks interlocutory injunction to restrain issue of shares – Whether serious question to be tried that second and third defendants do not have power to cause shares to be issued – Whether serious question to be tried that second and third defendants exercising power with improper purpose of diluting plaintiff’s shareholding in company – Where serious question to be tried – Balance of convenience – Where plaintiff’s position can be protected by orders to be made at final hearing – Application for interlocutory injunction refused.

CORPORATIONS - winding up - statutory demand - application to set aside - whether genuine dispute as to existence of debt - CORPORATIONS - authority of officers - secretary of company conducting medical practice - whether ostensible authority to purchase 325 internet domain names - things "customarily" done by secretary of "similar company"

Family Law. Application for property adjustment under Property (Relationships) Act 1984. Whether global or asset by asset approach should be adopted. Date of separation used for adjustment purposes

CORPORATIONS - statutory derivative action - member already plaintiff in action against defendant - member seeks leave under s.237 to have company now in liquidation proceed against defendant in same proceeding - whether defendant should be heard on s.237 application - where defendant served with notice of motion and participated in hearing until late objection by applicant - statutory factors to be considered on leave application - applicant fails to show he is acting in good faith

CORPORATIONS – Winding-up – Applications to Court by liquidator for directions – Company carried on business of buying, selling, leasing and managing vending machines – Liquidator seeks directions pursuant to s 511 Corporations Act 2001 (Cth) as to basis on which he should deal with vending machines in company’s possession - SALE OF GOODS – Passing of property – Company in liquidation sold vending machines to claimants – Claimants entered into management agreements with company upon paying purchase price – Company kept inadequate records of vending machines purchased, sold, leased and managed – Where specific vending machines can be matched to specific contracts and there is only one claimant – Liquidator justified in treating such claimants as legal owners – Where specific vending machines are claimed by multiple claimants and it is possible to identify order of sale – Liquidator justified in treating last purchaser as legal owner – Where specific vending machines are claimed by multiple claimants and it is not possible to identify order of sale – Liquidator justified in selling vending machines and distributing proceeds to claimants pari passu – Where not possible to identify ownership of specific vending machines – Liquidator justified in selling vending machines and distributing proceeds to claimants pari passu – Where claimants entered into buy-back contracts with company and contracts not capable of specific performance – Liquidator justified in acting on basis that claimants have no lien over vending machines.

Summary judgment on part of claim - dishonoured cheque

CORPORATIONS – Application for leave to proceed against company in liquidation – Company deregistered – Proceedings pending in Industrial Court of New South Wales – Leave refused.

REAL PROPERTY – easements – grant of easement under section 88K Conveyancing Act 1919 – costs – PRACTICE – costs – Calderbank letter inclusive of costs

CORPORATIONS - company title home unit company - resolutions of shareholders related to extension and refurbishment of building - application for interlocutory injunction restraining company from acting upon resolutions - whether serious questions to be tried as to compliance with procedure for passing special resolution and adequacy of information given to members - whether resolution approving project properly within province of members - whether resolution setting price at which certain shares "might" be bought back in future has any immediate operation - where balance of convenience lies

Contract - plaintiffs seek consolidation of proceedings in Supreme Court - whether proceedings in NSW District Court ought be removed into Supreme Court under s 140 Civil Procedure Act 2005 - whether proceedings in Magistrates' Court in Victoria ought be removed into Supreme Court under Jurisdiction of Courts (Cross Vesting) Acts - discretionary factors and interests of justice.

[MISLEADING OR DECEPTIVE CONDUCT] - Sale of Property for $11 million falsely represented to be 1,366 square metres (only 1,108 square metres) with waterfrontage, foreshore and uninhibited access to the Harbour (no waterfrontage, foreshore or uninhibited access) - Property as sold valued at $11 million at time of exchange and $10.9 million at time of settlement - [DAMAGES] - Whether plaintiff entitled to damages calculated on pro-rata basis per square metre - Whether plaintiff entitled to damages equivalent to value of "missing" foreshore area with attributes of waterfrontage and access - "Rule" in Potts v Miller only a guide - Time of assessment of loss or damage - Whether assessment of loss or damage should be on the basis of the difference between the value of the Property as purchased and the value it would have had if the representations had been true.

TRUSTS -- discretionary trusts -- nature of rights of property in -- TRUSTS -- power of court to approve advantageous dealings -- whether ever able to be used in a way which alters beneficial interests -- whether applicable to amendment of the Trust Deed -- whether power able to be used to extend vesting date of discretionary trust -- syntactic structure of section 81 Trustee Act 1925 (NSW) -- consideration of elements of section 81 Trustee Act 1925 (NSW) -- WORDS AND PHRASES – “expedient”

CRIMINAL LAW: administration of prisons – habeas corpus – plaintiff sentenced to term of imprisonment with non-parole period – parole order made by sentencing court – transferred to hospital under s97, Mental Health Act – forensic patient – non-parole period expired – procedure under s86, Mental Health Act yet to be undertaken – whether the plaintiff is entitled to release by virtue of parole order

TORTS – TRESPASS – trespass to land – implied non-contractual license – notice needed to terminate license – manner of calculation of mesne profits – PRACTICE – proceeding with trial in absence of plaintiff

CORPORATIONS – Winding-up – Application to set aside statutory demand – Plaintiff received advance by way of loan from trust of which defendant is trustee – Loan evidenced by written contract signed by director of plaintiff – Signing of written contract preceded by discussions between director of plaintiff and appointor of trust – Discussions suggested repayment schedule materially different from that stipulated by written contract – Defendant sought repayment of loan by plaintiff – Defendant served statutory demand on plaintiff – Whether debt owed by plaintiff presently due and payable – Whether seriously arguable that discussions between director of plaintiff and appointor of trust brought about immediately binding agreement for loan – Where discussions included no reference to rate of interest – Whether relevant that director of plaintiff did not carefully read written contract – Whether relevant that defendant did not initially demand adherence to repayment schedule stipulated by written contract – Whether seriously arguable that defendant estopped from calling up loan as a result of representations by appointor of trust – Where defendant has not acted unconscionably – Held no genuine dispute that debt owed by plaintiff was not presently due and payable – Application to set aside statutory demand dismissed.

CORPORATIONS – Practice and procedure – Proceedings on behalf of company by members – Second plaintiff seeks leave pursuant to s 237 Corporations Act 2001 (Cth) to bring proceedings on behalf of fifth plaintiff, a company – Second plaintiff alleges first and second defendants breached fiduciary and statutory duties owed to fifth plaintiff – Whether probable that fifth plaintiff will bring proceedings itself – Whether second plaintiff acting in good faith by seeking to commence proceedings – Best interests of fifth plaintiff – Whether leave should be granted – Leave granted on terms - PRACTICE & PROCEDURE – Discontinuance by co-plaintiffs – Three co-plaintiffs seek leave to discontinue – Where co-plaintiffs do not sue on causes of action held jointly – Leave to discontinue granted.

CONTEMPT - of Police Integrity Commission - where contempt is of serious nature - where requirement for deterrence and denunciation - whether no penalty other than imprisonment is appropriate under s 5(1) Crimes (Sentencing Procedure) Act 1999 - whether aggravating or mitigating factors present under s 21A(2), (3) of the Act

RESTRAINT OF TRADE – Employer and employee – Newspaper advertising manager – construction – business “in competition with” that of employer - validity – legitimate protectable interests - confidential information – where employee has knowledge of customers and discount arrangements and information about circulation and distribution – where employer is not shown to have taken measures to assert or maintain confidentiality of some such information during employment - knowledge of commercial strategy – customer connection – where employee has little customer contact - staff connection – where employee is in leadership role - reasonableness – Restraints of Trade Act, s 4(1) – time for determination of reasonableness - INJUNCTIONS – interlocutory injunctions – where interlocutory determination will practically determine outcome of case – balance of convenience

Criminal Law - Criminal Appeal - competency of appeal - appeal from determination on admissibility of evidence - appeal from an interlocutory order - ruling on evidence not an interlocutory order - competency of stated case

Sentence - Crown appeal - Dangerous Driving Occasioning Death - duration of dangerous driving in curcumstances where respondent was inexperienced and unsupervised learner drive - finding of low moral culpability not reasonably open.

Supply of prohibited drugs (x2) - offender drug dependent - significance of time spent in Odyssey House - significance of Form 1 matters - whether pleas of guilty taken into account - whether necessary to have regard to finding of "special circumstances" in respect of both sentences - whether offender in fact on a bond

Sentence - fraud - importance of objective circumstances - perverting course of justice

Sentence - Crown Appeal - Failure to assess objective gravity of offences - Undue emphasis on theoretical availability of summary disposition

CRIMINAL LAW – Appeal – Jurisdiction to reopen appeal – Where orders of previous appeal not perfected – Whether leave to reopen should be granted – To be determined by reference to the dominant consideration of avoiding a miscarriage of justice - CRIMINAL LAW – Appeal – Jurisdiction – Whether Court of Criminal Appeal can hear appeal from a recommendation that prisoner never be released – Whether recommendation a “sentence” – Where recommendation subsequently given effect by legislation – Recommendation not an “order of the court of trial” – Criminal Appeal Act 1912, s 2 - CRIMINAL LAW – Appeal – Against sentence – Life Sentence – Where recommendation that prisoner never be released – Where recommendation given subsequent legislative effect – Court cannot consider appeal on the basis that the consequences of the life sentence are significantly more onerous as a result of subsequent legislation – It would be an inappropriate exercise of judicial power to remove the legislative criterion upon the basis of which Parliament enacted constitutionally valid legislation - WORDS & PHRASES – “order”, “order made by the court of trial”, “sentence”

FAMILY PROVISION – adult son – poor relationship with mother (testatrix) – telephone communication but no visits for 13 years – Estate about $1.4 million (family house) left to sister who had strong claims on testatrix’s bounty – testatrix, difficult personality, left long letter of grievances to explain making no provision for son – son invalid after heart attack when aged about 39, now aged 58, owned home unit in poor condition, receives disability support pension, bank accounts $10,000, otherwise assets of small value. Trial Judge ordered provision of $78,000 being $40,000 dental work, $28,000 repairs and renovations, $10,000 other provision: increased on appeal to $168,000. Consideration of significance of poor relationship and hostility.

MINES AND MINERALS – Coal mining – Coal mining legislation – Underground mining operations – “Second Workings” - Longwall mining – Subsidence – Crown approval to control and regulate – Deed of release – Covenant to refrain from objecting to “second working” applications if duly notified under Coal Mines Regulation Act 1982 – Change in departmental practice in granting approval under Act subsequent to deed – Whether affects deed. (ND)

COSTS - successful party pays unsuccessful party's costs - son of testatrix defeated claims for provision out of notional estate by a widower and adult daughter by proving transaction for value between testatrix and himself for transfer of half her shares in family company and alteration of articles to deprive remaining shares of rights on her death - transaction kept secret, false returns to Corporate Affairs and Transfer of Shares not stamped or registered - son's evidence produced at last minute and Transfer stamped only on Day 4 of the hearing - son succeeded but Trial Judge awarded part costs to widower against son - leave to appeal refused.

APPEAL AGAINST SENTENCE – Imprisonment – Drug misuse and trafficking – Whether failure to take into account subjective factors and special circumstances – Post-traumatic stress and depression – History of drug use – Low recidivism risk – Whether sentence should have been partly cumulative.

CRIMINAL LAW - APPEAL AGAINST CONVICTION - larceny - robbery - malicious damage - identification evidence - directions - warning - unreliability - whether directions were given with authority of the court - judicial imprimatur - experience of the courts