Cases and authorities

Criminal Law - appeals - whether use of standard non-parole period was inappropriate - parity - whether sentences manifestly excessive

CORPORATIONS - members' voluntary winding up - application for determination of question arising in winding up - whether jurisdiction should be exercised to resolve disputed factual claim - CONTRACT - binding determination by counsel - effect

CHILDREN'S COURT - CARE PROCEEDINGS CONCERNING FOUR INFANTS - APPOINTMENT OF GUARDIAN AD LITEM FOR PARENT OVER OBJECTION - ABSENCE OF JURISDICTIONAL ERROR - NO BREACH OF REQUIREMENT FOR PROCEDURAL FAIRNESS - REMEDY IN RESPECT OF INTERLOCUTORY ORDER AVAILABLE IN CHILDREN'S COURT - COSTS

Criminal Practice & Procedure - murder trial - Judge sitting alone - judgment on verdict - victim strangled - elements of murder - whether substantial impairment by abnormality of mind - morbid jealousy - history drug abuse - victim defended herself with knife - whether accused suffered acute anxiety disorder - no substantial impairment.

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - orders made for accounting questions to be decided by referee - application for interlocutory injunction pending referee's report - whether necessary to prove irreparable injury - no undertaking as to damages proffered - whether any general principle that no undertaking as to damages needed for interlocutory injunction granted under Property (Relationships) Act 1984 - whether any general principle that undertaking as to damages not needed if applicant is impecunious or in straitened circumstances - INJUNCTIONS - interlocutory injunctions - whether proof of irreparable injury for which damages will not be an adequate compensation is always needed - role of undertaking as to damages - whether any principle that undertaking as to damages not needed if applicant is impecunious or in straitened circumstances - PRACTICE - role of legal practitioner attending on taking of judgment

DAMAGES - Action for damages for personal injury - applications after verdict - when judgment should take effect - whether costs orders in interlocutory proceedings should be re-considered

WORKERS COMPENSATION – Workplace Injury Management and Workers Compensation Act 1988 (NSW), ss 250 and Chapter 7 – meaning of “work injury damages” – extended definition of “worker” – whether nervous shock suffered by a spouse resulting from the death of her husband who died in the course of employment is “work injury damages” – whether compliance with Chapter 7 required

Criminal Practice & Procedure - Crown appeal - supply cannabis leaf - gave assistance - given bail - 8 months later charge of cultivation of cannabis commercial quantity - allowance for plea and assistance - assistance no relevance to second charge - sentence inadequate - re-sentence.

NEGLIGENCE - respondent injured while riding on a T-bar ski lift - whether operator of ski resort negligent - rope connecting T-bar to spring-box snapped - whether an adequate system of inspecting for rope frays existed. - PRACTICE AND PROCEDURE - absence of findings of crucial primary facts by trial judge - errors in fact-finding - failure to give adequate reasons. ND

CORPORATIONS - voluntary administration - deed of company arrangement - plaintiff seeks order terminating or avoiding deed - alleges actual or apprehended bias of deed administrators and material deficiencies in information given to creditors - administrators concede deficiencies to some extent and seek adjournment so that they may put corrected and updated information to affected creditors and call meeting to resolve future status of deed

EVIDENCE - defendants' witness gives evidence of the existence of certain documents - plaintiff calls for production of documents - whether court should decline to require production on discretionary grounds

CRIMINAL LAW - application for inquiry under s.474D(1) Crimes Act 1900 subsequent to conviction - applicant pleads guilty to armed robbery and sexual assault - DNA evidence implicating applicant - approach to s.474D application where applicant pleaded guilty - no doubt or question as to guilt - application refused

Criminal law - sexual assault - effect of delay in complaint on appellant's ability to mount a defence - whether direction adequate

SENTENCING - Crown appeal - domestic violence offences - pleas of guilty to multiple offences committed against three victims over eight-year period - offender with record for offences of violence - principles applicable in sentencing repeat domestic violence offenders - importance of specific and general deterrence - relevance of mental illness - whether sentence manifestly inadequate

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - appeal - application under s 20 of the Property (Relationships) Act 1984 for an adjustive property order - whether Master erred in failing to identify and evaluate parties’ direct and indirect contributions to acquisition of property - relationship of two years eight months in three periods over approximately 4 years - one child of relationship - appellant entered relationship with substantially greater asset backing than respondent - significance of that financial strength in assessing appellant’s financial contribution to respondent’s acquisition of property - evaluating contribution incapable of mathematical precision.

Interest - Costs

Waiver of client legal privilege - Letter of instruction to expert

Banker and customer - Claim by Pioneer Park Pty Ltd [previously "Domino Mining Equipment Pty Ltd"] that ANZ and New Zealand Banking Group Ltd wrongfully placed the company into administration and then liquidation in breach of terms and conditions of the banking agreements which regulated their relationship - Contract - Documenting of loan facilities - Whether certain facilities were provided for a fixed term or at least until an annual review date - Bank gives 30 days notice of termination of facilities expressly pursuant to provision dealing with right to review facilities - Notice impotent and misconceived - Subsequent notice demands immediate payment of amount said to be due - Shepherd v Felt & Textiles (1931) 45 CLR 359 - Whether ANZ entitled to rely upon validity of either or both notices in terms of other bases by way of events of default now said to have been available - Contract - Proper construction of facilities agreements - Reasonableness of opportunity to comply with demand - Good faith and reasonableness - Whether imported as implied terms into banker customer relationship - Trade Practices - Fair Trading - Misleading and deceptive conduct - Estoppel - Insolvency - Events of default - Gearing ratio formula - Whether particular failures to perform contractual obligations were remediable - Evidence - Jones v Dunkel - Principles - Dobbs Clause

WORDS AND PHRASES – “undertakes” – whether contractual – INJUNCTIONS – covenant to provide information about operations of a proprietary company – whether damages an adequate remedy – INJUNCTIONS – discretionary basis for refusal of injunction that object of covenant not able to be obtained – EQUITY – equitable defences – laches – mere delay

CORPORATIONS - external administration under deeds of company arrangement - parties intended that creditors would be no worse off than in a liquidation - defendant was insured in respect of plaintiff's claim for damages - in liquidation plaintiff would have access to insurance proceeds under s 562 - deed of company arrangement extinguished defendant's liability to plaintiff and arguably destroyed insurance claim - proposal for rectification of deed to put creditors including plaintiff in equivalent position to s 562 - whether court had jurisdiction to make a rectifying orders under s 447A

VENDOR AND PURCHASER – rescission of contract of sale of land – S.C.45, not a standard clause, authorised rescission by either party if vendor unable to provide registered lease and discharge of covenant by “completion date” – whether “completion date” was actual time of completion or completion date as stated by terms of contract – held, the latter. Consideration of questions relating to the effect of steps taken by parties in reliance on conflicting positions on effect of purchaser’s termination for non-compliance with S.C.45. Observations on significance of notice period before termination became effective.

BUILDING AND ENGINEERING CONTRACTS - Progress payments - Payment claims - Whether successive payment claims, claiming the same amount, can be served - Payment schedules - Time limit for provision of payment schedules - Whether adjudication application can be made if payment schedule provided outside the time limit - Whether s.109X of the Corporations Act 2001 (Cth) applies to provision of payment schedule to a corporation - Effect of s.29 of the Acts Interpretation Act 1901 (Cth) - Whether "provide" means anything different from "serve" in the Building & Construction Industry Security of Payment Act 1999, and is governed by s.31 of that Act.

EMPLOYMENT – termination – non-standard contractual terms dealing with termination and notice - Respondent employed on two-year contract as Manager Maintenance, Deniliquin was dismissed without notice for alleged breach in failing to give information required by employer about its affairs and property - Clause 36.2.8 provided "Termination of employment by MIL shall not be harsh, unjust or unreasonable" – clause 17 provided for payment of three months’ wages in lieu of notice "… except in cases of acts of delinquency or incompetence." - respondent refused to give information because information asked for was relevant to criminal charges which Police had brought against him - held that in the circumstances insisting on information and terminating for breach was harsh, unjust or unreasonable and was in breach of contract - employment was terminated but employer was liable to damages for failing to give three months’ notice - consideration whether respondent entitled to damages for loss of prospects of further employment after expiry of current two-year contract - held that he was not.

ADOPTION - step parent adoption of adult child - child aged 35 and residing separately with her husband and children - child's close family relationship with the birth parent and step parent - whether step parent lived with birth parent and child at date of application -proposal for law reform

Defamation - non-compliance with orders of Registrar to provide particulars - proceedings stayed - order for costs.

Appeal from Local Court - unfitness for trial - relevant considerations - whether diversion under s32 Crimes (Sentencing Procedure) Act 1999 appropriate - relevant considerations

RESTITUTION – prior to the appeal Appellant agreed to pay the amount of the judgment debt to the Respondent on certain conditions – appeal successful – order made to repay money in terms not inconsistent with the agreement

CORPORATIONS - voluntary administration - successful application for adjournment of winding up proceeding - creditors later approve deed of company arrangement - whether company should be ordered to pay the plaintiff's costs of winding up proceeding - whether plaintiff's costs should include costs of unsuccessfully resisting adjournment application

COSTS: - costs assessment – taxation out of time – particulars to be included in an bill of costs – assessment made without jurisdiction – costs assessor’s determination binding – resubmitted bills of costs – costs assessment administrative not judicial – procedural fairness – discretionary relief

Highly defamatory segment broadcast on Australian mainland during prime viewing time alleging sexual misconduct on the part of Head Coach of Australian Swimming towards a pupil - Two imputations not justified, one justified on basis of letter written although not followed up - effect and permissibility of contextual imputations - whether imputations statements of fact or comment - Defence of comment - different legal considerations in NSW and other States - publication determines what law applies as to entitlement to damages - If item published in different States law of those various States applies to publication in such States - entitlement to exemplary damages is a matter of substantive law – Conduct of defendants entitled plaintiff to aggravated damages – No entitlement to exemplary damages in NSW but remedy available in other States – Entitlement to special damages for costs of attempting to mitigate damages – amendment of reasons.

PRACTICE – amendment of pleadings – PRACTICE – interlocutory injunction – scope of undertaking as to damages – EQUITY – interlocutory injunction – scope of undertaking as to damages

Appeal decision of Local Court Magistrate - unpaid instalments, liability to pay call

Costs - extension of limitation period - whether opposition - whether indulgence - relevance of failed opposition in other cases

Interlocutory proceedings - application by plaintiffs for disqualification on grounds of apprehended bias.

Sentence appeal - parity - effect of totality reduction on sentence of co-offender

criminal trial - jury - unlawful administration and supply of drug to procure miscarriage - manslaughter - interlocutory rulings on questions of evidence - whether Crown ought be permitted during opening to provide contentions of law in writing - construction of "unlawfully" in Crimes Act 1990 s83 - proportionality - test of proportionality objective - manslaughter by criminal negligence - duty of care to child once born alive - unfavourable witnesses - evidence relevant to credibility of accused and to asserted facts - Crown permitted to cross examine prosecution witnesses - evidence of medical opinion as to whether baby born alive - whether expertise established - use of medical report prepared for Health Care Complaints Commission - whether evidence from report admissible - evidence of medical practitioner admissible - whether disclosure of report unlawful - consciousness of guilt - conduct of counsel in trial not available to be used to found inference that instructions to counsel reflected a consciousness of guilt - discharge of one juror on medical evidence - order that trial proceed with jury of eleven

PROCEDURE – STAY OF PROCEEDINGS – whether on facts of case the Defendant had demonstrated that New South Wales Court was clearly inappropriate forum for trial.

Merger and waiver - liquidated damages treated as part of balance purchase monies - part not paid on completion - recoverable thereafter.

dispute whether payment loan or gift - jurisdiction - defendant's assets in New Zealand - competing accounts of transaction

Cross-vesting - significance of jurisdiction clause in contract - relevant considerations

defamation - oral publication - telephone conversation - form of imputations pleaded - different entities nominated - true innuendo - specificity of imputations - accusations made by defendant of plaintiff non specific - whether imputations differ in substance

Unincorporated association - representative parties - judgment entered against non-legal entity - judgment not supported by finding and contrary to basis on which it had been conducted.

Late service of statements - alleged denial of natural justice.

defamation - preliminary discovery - foreshadowed defamation action - documents that might provide plaintiff with further cause of action - documents that might enable evaluation of potential defences to claim - what plaintiff needs to establish - nature of relief - what constitutes reasonable inquiries - purpose of UCP r 5.3

PROCEDURE - miscellaneous procedural matters - pre-trial directions for serving of affidavits - defendant seeks dispensation with a view to deciding after cross-examination of plaintiff whether to lead certain evidence - such evidence not material to making of case by plaintiff - knowledge such evidence may prompt tailoring of evidence