Cases and authorities

CONSTITUTIONAL LAW – external affairs power – terrorist organisation offences under Commonwealth Criminal Code – whether geographic externality is sufficient of itself to enliven power – CRIMINAL PROCEDURE – whether terrorist organisation offences require a specific terrorist act to be particularised – Criminal Code, Division 102, s 102.5 – EVIDENCE – admissions – lay opinion – whether ruling as to admissibility of evidence is amenable to appeal under s 5F of the Criminal Appeal Act 1912.

[COSTS] Application for indemnity costs - Calderbank letter - whether genuine offer of compromise - whether rejection of offer unreasonable - whether interest to be awarded.

Family Law. De facto relationship. Duration of relationship. Parties still living under same roof. Whether relationship has come to an end. Admissions on pleadings. Adjustment of interests of parties in property. Jointly owned property. Respective contributions of parties to acquisition, conservation or improvement of property and as homemaker.

Appeal and leave to appeal decision of Local Court Magistrate

CORPORATIONS - voluntary administration - voluntary winding up - resolutions at meeting of creditors fixing remuneration of administrator and liquidator - resolutions carried on casting vote of beneficiary of resolutions - whether exercise of casting vote entailed breach of fiduciary duty - where all creditors voting were given notice of application for remedial orders - where certain creditors opposed at meeting made positive decision not to oppose making of remedial orders - nature of remedial orders appropriate to the circumstances

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute - no matter of principle

CRIMINAL LAW - indictment alleging offences under ss.29D, 70 and 73 Crimes Act 1914 (Cth) - discharge of jury unable to agree at first trial - Crown determines to proceed by way of retrial - application before second trial to stay or quash s.29D count on basis that it is foredoomed to fail - nature of test on foredoomed to fail ground - argument by reference to evidence adduced at first trial and decisions made by judge at first trial - use of decisions made at first trial in determining application to stay or quash before second trial - held: s.29D count not foredoomed to fail - application to stay all counts on grounds of abuse of process - applicable principles - held: permanent stay refused - application to quash s.29D count on duplicity ground - s.29D count based upon single criminal enterprise - held: s.29D count not bad for duplicity

CORPORATIONS – WINDING UP – PREFERENCE – Preference recovered from Commissioner of Taxation – Commissioner seeks indemnity from director – whether company insolvent – whether director had reasonable expectation that company would be solvent – whether Commissioner entitled to indemnity for Commissioner’s own costs of defending preference recovery action.

PROCEDURE - costs - where no determination on the merits - whether there should be departure from principle that costs lie where they fall

ADMINISTRATIVE LAW – immunity of judicial officers - whether Principal Registrar of the Licensing Court attracts common law immunity when exercising jurisdiction of Licensing Court – whether Principal Registrar attracts immunity under Judicial Officers Act 1986 – whether immunities extend to disciplinary processes under the Public Sector Employment and Management Act 2002.

CORPORATIONS - voluntary administration - powers of administrator - power to discontinue part of company's business and dispose of part of company's property - whether constrained by provision of constitution requiring company to promote relevant activity and to maintain property devoted to that activity

Interrogatories - whether plaintiff has demonstrated "special reasons" for order under Rule 22.1 - loss of photographs and paucity of clinical notes

CORPORATIONS - winding up - examinations by liquidator - application for access to s.596C affidavit - need to show arguable case in favour of setting aside of examination summons - no arguable case of abuse of process

EVIDENCE & PROCEDURE – whether evidence of cross-examined expert could be preferred – whether rule in Browne v Dunn infringed – whether cross-examination was prematurely stopped - NEGLIGENCE – damages – whether rehabilitation expenses required under the Workers Compensation Act were “reasonably necessary”

MALICIOUS PROSECUTION – pleadings – elements of the tort – who is the prosecutor – what is the required belief of the prosecutor – whether defects in pleading incapable of correction – “rolled up” pleadings

PROCEDURE - APPEAL - STAY - Arguable appeal - Possibly rendered nugatory - Need for undertaking as to damages.

RESTRAINT OF TRADE – Application for interlocutory injunction – whether serious question to be tried as to existence of contract of employment – whether employer had a protectable interest based on employee’s connection with clients – whether restraint sought is reasonably necessary to protect employer’s interest

DE FACTO RELATIONSHIPS – financial contributions – relevance of inheritance – relevance of capital gain – appropriate date for valuation – weight to be given to initial and post acquisition contributions - D

BUILDING AND CONSTRUCTION - where adjudicator found that project management services were "related goods or services" under the Building and Construction Industry Security of Payment Act 1999 - where project management fee might be discharged by transfer in specie of real estate - whether s 7(2)(c) of Act applicable - whether consideration was to be calculated by the value of services - whether open to adjudicator to reach factual conclusion - whether reviewable error - application of Brodyn v Davenport (2004) 61 NSWLR 421

Family Law. De facto relationship. Duration of relationship. Two periods of cohabitation, each of less than two years. Child born of relationship. Proceedings not commenced within two years after end of first period of cohabitation. Adjustment of interests of parties in property. Respective contributions of parties to acquisition, conservation or improvement of property and as homemaker and parent.

Appeal from Local Court alleging errors in construction of Listening Devices Act 1984 - whether visual images from video tape admissible where prosecution not relying upon conversation captured by video recording device.

PRACTICE & PROCEDURE - Adjournment - Administrator of defendant sought adjournment of plaintiffs' application for winding-up of defendant - Adjournment sought to allow administrator opportunity to investigate possibility of deed of company arrangement - Whether adjournment would serve interests of defendant's creditors - Where plaintiffs are defendant's only creditors - s 440A(2) of Corporations Act 2001 (Cth) considered - Application for adjournment refused.

PRACTICE AND PROCEDURE - procedural fairness - court makes orders for appointment of receiver which give the receiver access to trust assets for payment of remuneration and expenses - order varied shortly afterwards to exclude access to trust property - receiver not notified of application to vary

Further strike out, dismissal application - water releases from Hume Dam

Sentence appeal - sentencing for multiple offences - concurrency and accumulation - proper treatment of Form 1 matters - report pursuant to s11 of the Criminal Appeal Act.

Sentence appeal - Crown appeal - need to give reasons for departing from standard non-parole period s54B(4) Crimes (Sentencing Procedure) Act 1999 - discretion of sentencing judge in determining what is a mid-range offence - inadequate accumulation - restraint to be exercised in Crown appeal.

Sentence appeal - discount for plea of guilty - failure to backdate sentences - change in family circumstances after sentence - discount for assistance to police.

CRIMINAL LAW AND PROCEDURE - SEXUAL INTERCOURSE WITH PERSON AGED BETWEEN TEN AND SIXTEEN YEARS - ALLEGATION OF INCOMPETENT REPRESENTATION AND FAILURE TO CARRY OUT INSTRUCTIONS AT TRIAL - EVIDENCE HEARD ON APPEAL - ALLEGATIONS REJECTED - POLICE INTERVIEWERS NOT BOUND TO DISCLOSE THEIR KNOWLEDGE TO SUSPECT - SENTENCE - NO DEPARTURE FROM APPROPRIATE PATTERN - FURTHER OFFENCE INVOLVING DIFFERENT VICTIM - IMPOSITION NOT EXCESSIVE

CRIMINAL LAW AND PROCEDURE - DRUG COURT - CROWN APPEAL AGAINST FINAL SENTENCE - RESPONDENT "GOLD MEDAL" GRADUATE FROM DRUG COURT PROGRAMME - NON CUSTODIAL IMPOSITIONS - SUCH IMPOSITIONS NOT MANDATORY BUT NO MISCARRIAGE OF SENTENCING DISCRETION IN SO ORDERING - DISCUSSION CONCERNING APPEALS FROM DRUG COURT

SENTENCING – Back dating of original sentence by consent.

NEGLIGENCE - Civil Liability Act 2002 (NSW) s5B - duty of care - concept of risk as "not far-fetched or fanciful" changed to "not insignificant" - significance of change

PRACTICE & PROCEDURE – Mareva orders – Parties involved in proceedings before Consumer, Trader and Tenancy Tribunal – Plaintiff sought asset preservation orders to protect his position if successful in proceedings before Tribunal – Whether plaintiff able to demonstrate prima facie case in Tribunal – Whether plaintiff able to demonstrate danger that defendants intend to deal with assets in way which would defeat execution of any judgment by plaintiff – Mareva relief refused – Summons dismissed - No question of principle.

Costs - Stay pending appeal - Need for assessment of prospects of appeal - payment out of funds paid into Court as security for costs

ORDERS SOUGHT - AVAILABILITY OF WITNESS FOR CROSS-EXAMINATION - proof of location of an internet server - person resident of United State of America - whether should be required to come to Australia - whether order for audio or audio visual link appropriate interests of the administration of justice - nature and complexity of issues

[STATUTORY CONSTRUCTION] whether the expression "indemnity against liability to another person" in s 241(2) of the Corporations Law includes a liability for legal costs in the light of s 241(3) of the Law. [DEEDS - INDEMNITIES] whether the indemnity in the Deeds between the parties provides indemnity for the plaintiff's legal costs in defamation proceedings in respect of defamatory imputations published of and concerning the plaintiff in the performance of his duties.

MEDICINE - medical practitioners - whether Medical Tribunal erred in law in finding patient's complaints proved to requisite standard of proof - whether conduct proved properly characterised as professional misconduct - EVIDENCE - effect on patient's general credibility of rejection of her evidence in respect of one complaint - use of similar fact evidence to assist conclusion second complaint established - APPEAL - error of law - challenge to Tribunal's reasoning process.(D)

Conviction appeal - inconsistent verdicts - Crown address raising motive to lie and lies told by appellant as consciousness of guilt - admission of videotaped interview with complainant as exhibit in trial - refreshing memory from document.

SENTENCING – appeal against sentences – whether manifestly excessive – role of appellant more serious than that of co-offender – sentences appropriate given seriousness of offences - SENTENCING – parity – sentencing judge gave same effective sentence to appellant and co-offender – sentencing judge erred in not considering additional offence committed by co-offender separately – regard must be had to questions of parity in determining sentences – no interference with sentences

SENTENCING – prisoner to serve custodial sentence in protective custody – no evidence as to future custodial circumstances at time of sentencing – sentence actually being served in protective custody – no other sentence warranted in law - SENTENCING – commencement date of sentence – where delay in sentencing process – whether commencement date should be date of arrest or charge – principle of totality – no other sentence warranted in law

Motor Accidents Compensation Act - scheme for assessment of claims prior to court proceedings - assessments of liability for the claim and the amount of damages for that liability - when assessment of the amount of damages for the liability is binding on claimant and insurer - whether binding on insurer independently of acceptance of liability under the claim. D

DEFAMATION - 7A(3) Defamation Act 1974 - whether jury's determination only one of fifteen imputations of which the appellant complained was conveyed was one no reasonable jury could reach - HELD - jury's determination that imputations 1(a) - (c), 2(a) - (c), 3(a) - (c) and 3(f), (g) and (h) were not conveyed were decisions no reasonable jury could reach.(D)

Personal injury - joint tortfeasors - apportionment between them - whether s 151Z of Workers Compensation Act means proportionate liability to plaintiff - labour hire organisation - duty of care when employee injured by unsafe working conditions - breach of non-delegable duty of care - and of direct duty in failing to instruct - challenges to assessment of damages. D

RES JUDICATA – merger – building contract – breach by builder – judgment for proprietor on cause of action – second claim against builder – claim barred - STATUTE – construction – Parliament mistakes existing law – existing law not necessarily changed - D

Sentence - manslaughter - excessive self-defence - maliciously cause grievous bodily harm - gross violent provocation by victims - intentionally producing terror - loss of control - significantly reduced culpability

CORPORATIONS - statutory duties of executive officers of corporations - contraventions by all defendants of statutory duty of care - contraventions by one defendant of statutory duty of honesty - civil penalty provisions - form of declarations of contraventions - disqualification orders - whether defendants fit and proper persons to manage a corporation - whether contraventions serious - pecuniary penalty orders - compensation order - causation

Principal/agency, breach of contract, deceit

CRIMINAL LAW AND PROCEDURE - SENTENCE - LARGE COMMERCIAL QUANTITY MDMA - OFFENDER ENGAGED AS "LABOURER" IN ILLICIT FACTORY - UNSUPERVISED - CLAIM OF DURESS ACCEPTED BY SENTENCING JUDGE - SEPARATE PREVIOUS ACTIVITY IN GROWING CANNABIS TAKEN INTO ACCOUNT ON FORM 1 WITH OTHER OFFENCES - CROWN APPEAL - MANIFEST INADEQUACY DEMONSTRATED