Cases and authorities

SENTENCING – Crown appeal against sentence on the basis that the sentences were manifestly inadequate – respondent convicted of three separate offences – allegation of leniency arises by reason of both the leniency of the sentence imposed for the offence of armed robbery and of the concurrency of the sentences imposed – commencement date of sentences precluded punishment beyond the punishment imposed for the first offence – error of principle affecting the structure of the sentences imposed in the District Court and inadequate allowance made for the objective criminality of the offence of break, enter and steal and the offence of use offensive weapon to prevent lawful detention justification for appellate intervention

Leave to appela against severity of sentence. Guilty plea - no obligation to spell out mathematical calculation - psychiatric condition - adjustment disorder with depressive mood - not sufficient to diminish principles of general and specific deterrence - delay in sentencing - sentence not manifestly excessive.

CONTRACTS – Franchise Agreements - contractual notices – notice of breach and notice of intention to terminate – whether notices technically valid – requirements of notices - Franchising Code of Conduct, regs 21, 22, 23

Criminal Practice & Procedure - convicted sexual intercourse 9 year old daughter - isolated act - offence involves person under age 10 - whether fact 9 years and isolated act took out of mid range - issues when standard non parole period - error in approach.

CRIMINAL LAW - stated case pursuant to s 5AE Criminal Appeal Act 1912 - prosecutions pursuant to ss 118D and 175B of the National Parks and Wildlife Act 1974 - whether proceedings taken by person authorised in that behalf - PRACTICE AND PROCEDURE - defect in substance or form - whether capable of cure by s 16(2) Criminal Procedure Act 1986 - LOCAL GOVERNMENT - statutory protection to employee of council if acts in good faith - s 731 Local Government Act 1993 - whether s 731 applies to criminal prosecutions

Criminal Practice & Procedure - appeal against severity of sentence - discount for plea of guilty - negotiations with Crown - fresh indictment - assistance - relevance of sentences of co-offenders where no parity - whether manifestly excessive.

Costs - discontinuance of appeal - appellant to pay costs unless order otherwise - application for order otherwise - no reason shown for order otherwise - no question of principle.

DEFAMATION – defamation action in District Court by solicitors against clients who defamed them in communications to 1) Aussie Home Loans 2) their receptionist in front office 3) officer of Legal Services Commission – damages awards totalling $80,000 – leave to appeal sought on numerous grounds relating to – Common Law Qualified Privilege – conduct of trial re order of going into evidence on issue of malice – statutory absolute privilege in communication with Legal Services Commission DAct s.17J – determination by jury of issues accepted by counsel which did not include publication – excessive damages – other complaints – CA concluded poor prospects of success and no substantial departure from due administration of justice – consideration of discretion to grant leave to appeal – refused (ND)

Contribution between tortfeasors - where damage divisible - assessment of "the same damage" for which contribution to be made - error in point of law by Dust Diseases Tribunal in apportioning the whole of the damages payable - whether Court of Appeal could or should make fresh apportionment - or should be remission to Tribunal - consideration of nature of error in point of law and powers if error in point of law shown.

CAVEATS – COSTS – Defendant sought order for removal of Plaintiff’s caveat – application failed – Defendant then lodged lapsing notice – whether conduct unreasonable.

REAL PROPERTY – Land under Torrens Title – Caveats – BUILDING AND ENGINEERING CONTRACTS – Residential Building Contracts – in what circumstances can residential building contract create caveatable interest - Home Building Act 1989, s 7D – whether s 7D(3)(c) defines terms of permissible charge or event precedent to enforceability – whether judgments obtained by registration of adjudication certificates under Building and Construction Industry Security of Payment Act are judgments that payments of moneys due under the contract be made within s 7D(3)(c) – whether caveatable interest can be created by estoppel when creation by contract prohibited.

CORPORATIONS - examinations under Part 5.9 - orders for production - procedure for resolving disputed claims for privilege EVIDENCE - client legal privilege - applicable legal principles - inspection of disputed documents by court

PRACTICE & PROCEDURE – Freezing orders – Plaintiff entered into contract with corporate group – Corporate group included first and fourth defendants – Contract stipulated that plaintiff entitled to 15 per cent of dividends paid by fourth defendant to another company within corporate group – Whether good arguable case that plaintiff entitled to 15 per cent of profits distributed by fourth defendant to other companies within corporate group – Whether dividends paid by fourth defendant – Meaning of dividend considered – Whether contract subject to implied term of good faith prohibiting directors of fourth defendant from exercising powers for purpose of depriving plaintiff of benefits of contract – Good arguable case demonstrated – Whether freezing order should be made – Whether danger that any judgement against first defendant will be unsatisfied due to removal of assets from Australia – Freezing order made.

Criminal Law - Sentencing - Appeal - Crown appeal against sentence - whether fully concurrent sentence inadequate - relationship between s 3A of Crimes (Sentencing Procedure) Act and principle of totality - vulnerability under s 21A(2)(1) of Crimes (Sentencing Procedure) Act

Sentencing - plea of guilty - whether sentenced contrary to indication of likely sentence prior to plea - whether sentence manifestly excessive - no question of principle.

Criminal Law - Appeal - Jurisdiction to resentence on revocation of s.12 Bond - Capacity to appeal - Error of law - Compliance with s.44 and s.45 of Crimes (Sentencing Procedure) Act - Exchanges during sentences - Relevance of SUmmary Disposal - No manifest excess

LIMITATION OF ACTION – Motor Accidents Compensation Act 1999 (NSW), s 109(3) & s66(2) – dilatory conduct on the part of the applicant’s solicitor – who had onus of proof in the application for extension of time – whether “full” explanation included explanation for the conduct of the solicitor – whether “full” explanation required applicant to explain knowledge of the limitation period – whether the solicitor’s conduct was necessary for the explanation given to be an explanation of “satisfactory”

BUILDING AND CONSTRUCTION - where practical completion achieved - where contract provides for partial release of security at principal's discretion - whether principal entitled to retain all security until amount owing in final payment schedule paid - whether principal has a duty to act in good faith or reasonably - whether principal complied - where contract provides for superintendent's assessment of final claims at expiration of defects liability period - whether void by s 34 of Building and Construction Industry Security of Payment Act 1999

Sentence - murder - whether mid range objective seriousness - role of each offender - whether acting in concert or aiding and abetting - robbery in company - intoxication drugs and alcohol - commencement date when serving existing sentence.

PROCEDURE - costs - Property (Relationships) Act proceedings - where circumstances such as to make award in favour of plaintiff woman virtually inevitable - whether any concept or "success" applicable - choice between matrimonial causes analogy and partnership analogy in approaching costs - reasons why matrimonial causes analogy to be preferred in this case - whether offers of compromise unreasonably rejected - aspects of plaintiff's conduct in conduct of case warranting some costs adjustments against her

GAMING – Offences – Licensing Court – appeal conviction of an offence under s.133(2) Gaming Machines Act 2001 (NSW) – connection fault between licensee’s gaming machine and the Central Monitoring System (CMS) via a Gaming Interface Card (GMIC) to Data Monitoring Services (DMS) (part of TAB Limited) – nature and extent of the obligation on plaintiff licensee to ensure connection where the connection fault was in the GMIC. - ACTS OF PARLIAMENT – Gaming Machines Act 2001 (NSW) – Interpretation – interpretation and application of s.132(1) and s.133(2) of that Act – the term “ensure” in this context creates an obligation or liability in the nature of strict or absolute liability – whether, however, such obligation requires a hotelier to ensure the continued transmission of electronic data to the CMS licensee - there is by the terms of those provisions a more limited obligation to ensure approved arrangements are in place, however, even if there can be said to be an ambiguity in s.132(1) and s.133(2) when read together - as the nature of such obligation or liability is quasi-criminal and the terms of s. 132(1) and s.133(2) are not plain, the principles of interpretation applicable to criminal legislation are relevant to determining the meaning and operation of the provisions.

MORTGAGES - mortgage given by elderly father over home to secure loan for daughter's business - default under mortgage - claim for possession and to recover money payable under mortgage - judgment given in favour of Plaintiffs against daughter under guarantee - claim by father for relief under Contracts Review Act 1980 by way of indemnity from daughter - relief granted to father

INTERLOCUTORY PROCEEDINGS – INTERLOCUTORY DECLARATION – whether the Court can, or should, make an interlocutory declaration of right as to the construction of a contract.

Leave to appeal - Appeal of Local Court Magistrate - res judicata

COSTS – Indemnity costs – Calderbank letter.

CRIMINAL LAW: - murder trial - controlled operation - misleading police media release - admissibility of telephone intercepts - whether recorded conversations capable of amounting to admissions - whether media release improper - whether admission of the evidence unfair to accused - whether public policy required rejection of the evidence

DECLARATIONS AND ORDERS

EVIDENCE – expert evidence – admissibility – Evidence Act 1995 (NSW), s 79 – car stolen despite engine immobiliser – expert had no experience in immobilisers – based opinion on internet materials and investigations – whether expert had relevant expertise – whether expert expressed relevant opinion – whether opinion based on expertise – whether opinion expressed in admissible form - JURISDICTION – appeal from Local Court under Local Courts (Civil Claims) Act 1970 (NSW), s 69(2) – whether appeal against the rejection of an expert report was an appeal “in point of law” – expertise a question of fact – whether alleged error material to the outcome

CORPORATIONS - statutory derivative action - application by 35% shareholder/director to bring derivative proceedings after company's assets were transferred to a company from which the applicant is excluded - inadequacies of proposed points of claim - whether those inadequacies prevent the court from determining the application under s 237 - distinction between personal and derivative claims - whether court is satisfied concerning good faith, best interests of company and serious question to be tried - ancillary order for applicant to indemnify company with respect to costs of derivative proceedings - considerations relating to the bringing of derivative and personal claims in single proceedings

COSTS - Supreme Court proceedings dismissed - self-executing costs order in District Court proceedings - operation of Part 42.20 Uniform Civil Procedure Rules in Supreme Court proceedings - unrepresented litigant - no duty to advise litigant how to conduct case

CRIMINAL LAW - EVIDENCE - Appeals - Appeal against conviction - Charges of sexual assaults against female child - Evidence of conduct of sexual nature against complainant which was not the subject of a charge - Corroboration of that incident by complainant's mother - Admitted as relationship evidence - No objection taken at trial - Directions by judge against use as tendency evidence - Whether evidence was in substance used as tendency evidence - Whether error shown in admission of evidence or directions - Application of rule 4.

CORONER'S COURT - DEATH POSSIBLY OCCURRING IN COURSE OF POLICE OPERATIONS - POLICE OFFICER WITNESS - PRIVILEGE - CIVIL PENALTY - EXPOSURE TO PENALTY IMPOSED OTHER THAN BY A COURT - PROVISIONS IN CORONERS ACT REGARDING CLAIMS FOR PRIVILEGE - MATTERS REQUIRED TO BE CONSIDERED - CONSTRUCTION OF PROVISIONS - INCOMPLETENESS OF PROTECTION OFFERED BY CERTIFICATE GRANTED PURSUANT TO THOSE PROVISIONS - DISCRETION MISCARRIAGE IN INSTANT CASE

PROCEDURE [585]- Costs- Proceedings to remove executor- Commenced by principal object of discretionary trust where discretionary trust was beneficiary under the will- Proceedings amended- Order made that first defendant pay whole costs of suit- Application made under slip rule that no order for costs should be made before amendment or at all as after amendment, first defendant filed submitting appearance- There is a guideline that normally a submitting party is immune from any liability for costs, however it is significant here that this litigation was part of a complex set of proceedings heard together- First defendant took a more active role than is usual for a submitting appearance- The order that the first defendant pay the plaintiffs' costs should not be varied.

PRACTICE AND PROCEDURE - costs - application for access to subpoenaed documents, resisted unsuccessfully on grounds of legal professional privilege - subpoenaed persons not otherwise parties to the proceedings - whether they became parties by appearing in answer to the claim for access and resisting it - whether subpoenaed persons abused process of court

Stay of foreign judgment

Criminal Law - Sentencing - Judge incorrectly applies standard non-parole period - application of s 19 of Children (Criminal Proceedings) Act.

Criminal Law - Sentencing - Parity with co-offender - No matter of principle.

CORPORATIONS – winding up – statutory demand – no application made to set aside statutory demand – before hearing of winding up application, litigation seeking a declaration that debt on which statutory demand is based is not owing brought on for hearing – finding that debt not owing – whether appropriate to make a declaration to that effect – CONTRACT – formation of contract – whether contract to compromise claimed debt had been entered – decision on this topic turns on own facts

REAL PROPERTY - claim by mortgagee for possession of land following alleged default under mortgage by mortgagors - property used as fish farm - commercial fish hatchery for supply of fish to pet shops and aquariums - whether a "farming operation" under the Farm Debt Mediation Act 1994 - use of dictionary meaning as aid to statutory interpretation

MORTGAGES - claim by mortgagee for possession of land following default by mortgagor - default judgment entered and writ of possession issued - application for stay of execution of writ of possession - factors relevant to application for stay

CONTRACT - whether parties entered into a contract for the delivery of goods - appellant accepted delivery of goods - whether intention to create a legally binding contract existed - application of objective test. D

WILLS PROBATE AND ADMINISTRATION - construction of will - intention of deceased to give residue to charitable organisation - charitable organisation does not now exist in previous form - gift to organisation now incorporated