Cases and authorities

Appeal against conviction - extension of time for filing Notice of Appeal - objections to evidence - whether trial unfair.

LIMITATION OF ACTIONS – personal injury tort – psychological injuries arising from collision between HMAS Melbourne and HMAS Voyager in 1964 – whether applicant knew he suffered a personal injury – whether he was unaware of the connection between the personal injury and defendant’s act or omission – when he ought to have become aware – whether just and reasonable to extend time – Limitation Act 1969 (NSW), ss60I(1)(a) and (b) and 60G

RESTRAINT OF TRADE - Employer and employee - Construction of restraint - Where aim of restraint stated to be protection of confidentiality of business operations - Whether statement of aim limits words of restraint protecting customer connection.

LIMITATION OF ACTIONS – personal injury tort – psychological injuries arising from collision between HMAS Melbourne and HMAS Voyager in 1964 – urged by wife to seek help – whether applicant knew he suffered a personal injury – when he ought to have become aware – whether just and reasonable to extend time – Limitation Act 1969 (NSW), ss60I(1)(a) and (b) and 60G

PROCEDURE - undertakings to this court - claim by plaintiff that funds constituting defendants' sole assets held on trust for plaintiff - one defendant a trustee - consensual regime under which defendants undertake to court not to deal with such funds except by applying up to specified amount in paying expenses of proceedings - defendants seek increase in amount available for legal expenses - whether court may vary party's undertaking - whether court should discharge undertaking - need for opportunities for defendant trustee to seek judicial advice and for plaintiff to seek Mareva relief - defendants seek mandatory order that their bank pay cheques regularly drawn and presented up to certain amount - whether bank may be regarded as having notice of trust as distinct from undetermined (and unpredictable) claim

Costs Application

Succession. Family Provision. Claim by adult son. Financial and material circumstances of Plaintiff. Contribution by Plaintiff to maintenance and improvement of rural property of Deceased. Competing claim of Defendant, who is sole beneficiary of Deceased.

ENVIRONMENTAL LAW - LOCAL GOVERNMENT - Development - State significant development - Whether criteria satisfied - Whether Minister the consent authority - Whether whole or part of development prohibited - Effect of transitional provisions - Whether transitional provisions valid.

order for security for costs - security for costs applications - costs of interlocutory applications - joint representation

Sentence appeal - parity - principle of equal justice even though offences not identical.

CRIMINAL LAW: Application for leave to appeal against sentence - parity of sentence - aggravating features - accumulation of sentence - special circumstances

SENTENCE - pleas of guilty - offence under s.112(2) Crimes Act 1900 of aggravated (in company) break, enter and commit serious indictable offence (malicious damage to property) - separate offence of malicious damage to property under s.195(a) Crimes Act 1900 - relevance of standard non-parole period for s.112(2) offence - assessment of gravity of s.112(2) offence on range of objective seriousness - error by sentencing judge in having regard to plea of guilty (and its timing) in assessing objective seriousness of s.112(2) offence - relevance of motive for offences - whether sentence for s.112(2) offence manifestly excessive - sentence imposed for s.195(a) offence approached maximum penalty for offence - whether sentence for s.195(a) offence manifestly excessive.

POLICE - Conditions of service - Hurt on duty - Appeal to GREAT - Whether "injury" through aggravation of disease - Whether incapacity caused by that injury - Whether GREAT addressed these questions - Whether error of law shown.

PRACTICE AND PROCEDURE - pleadings - amendment to pleadings - proposed amendment not complying with rules of pleading - impossibility of pleading to it - leave to amend refused

CONTRACTS - construction and interpretation of contracts - whether particular provisions of contract gave rise to entitlement to payment of a profit or gain - no entitlement to benefit arises. - LIMITATION OF ACTIONS - contracts - when cause of action arises - period passed - whether dicta of Deane J in in Hawkins v Clayton extends to a breach of contract - no obligation to inform contracting party of breach - Hawkins v Clayton distinguished - claimed barred by Limitation Act

Criminal law - Bilal Skaf - aggravated sexual intercourse without consent (in company) - Mohammed Skaf - aiding and abetting the principal offence committed by Bilal Skaf

LANDLORD & TENANT – Termination of tenancy – Relief against forfeiture – Plaintiffs in possession of commercial premises pursuant to lease – Lease terminated for failure to pay rent – Plaintiffs excluded from premises – Whether plaintiffs entitled to interlocutory injunction in aid of relief against forfeiture – Where plaintiffs offer no undertaking to pay outstanding rent plus interest and costs - LANDLORD & TENANT – Fixtures and fittings – Plaintiffs installed various fixtures and fittings in leased commercial premises – Pursuant to lease agreement, defendants made contribution to cost of fit-out of premises – Lease agreement gave defendants right to sell or dispose of plaintiffs’ property if lease terminated for failure to pay rent – Lease terminated for failure to pay rent – Plaintiffs excluded from premises – Dispute between parties as to ownership of fixtures and fittings – Defendants intend to re-let premises with existing fixtures and fittings if desired by new tenant – Whether serious question to be tried that fixtures and fittings are property of plaintiffs – Whether serious question to be tried that defendants not entitled to re-let premises with existing fixtures and fittings – Whether plaintiffs entitled to interlocutory injunctive relief restraining defendants from re-letting premises with existing fixtures and fittings – Injunctive relief granted.

Partnership. Inquiry. Indebtedness of one partner to other partners. Entitlement to interest by partner who contributes more than his share to partnership.

Defamation - defence of truth - contextual truth - availability of Polly Peck defence for interstate publication - injurious falsehood - special damage

REAL PROPERTY – Caveats – Plaintiff lodged caveat in respect of land owned by company in which he was 50 per cent shareholder – Caveat lapsed – Plaintiff sought to lodge further caveat – Registrar-General gave notice that further caveat in breach of s 74O Real Property Act 1900 (NSW) – Whether plaintiff entitled to leave to lodge further caveat – Where plaintiff’s only interest is as shareholder of company which owns land – No caveatable interest shown – Plaintiff’s summons dismissed.

PRACTICE & PROCEDURE – Plaintiffs obtained judgment against first defendant in proceedings 4284/04 – Consent orders stipulated that execution of judgment stayed upon certain conditions – Conditions included that defendants proceed expeditiously with foreshadowed cross-claim and comply with earlier orders of Court – Consent orders only partially complied with – Further consent orders stipulated that defendants’ cross-claim stayed until provision by defendants of security for plaintiffs’ costs and compliance by defendants with earlier orders of Court – Further consent orders not complied with – Application by defendants for end of stay on cross-claim and for stay on enforcement of judgment obtained by plaintiffs against first defendant – Whether stay of defendants’ cross-claim should be lifted or varied – Whether plaintiffs prevented from enforcing judgment – Defendants’ applications dismissed - CORPORATIONS – Winding-up – Plaintiffs (2534/06) sought winding-up of defendant – Whether service of statutory demand or winding -up application was in breach of consent orders staying execution of judgment obtained in proceedings 4284/04 – Order that plaintiffs entitled to proceed with winding-up application – Application to set aside statutory demand not proceeded with - Whether defendant entitled to leave pursuant to s 459S Corporations Act 2001 (Cth) to oppose winding-up application on grounds that could have been relied upon if an application had been duly made to set aside statutory demand– s 459S considered – Grant of leave to defendant refused.

CORPORATIONS - winding up - whether leave to proceed against company should be granted - proceedings upon company's causes of action against its landlord - such causes of action assigned - where landlord claims unpaid rent against company - whether claim for rent alone can be proved - nature of subject matter of assignment of causes of action having regard to set-off at commencement of winding up

CRIMINAL LAW AND PROCEDURE - MURDER - DIRECTIONS TO JURY ON MOTIVE - MOTIVE NOT RELIED ON AS PROOF OF GUILT BUT IN SUPPORT OF TESTIMONY OF ACCOMPLICE - NO ERROR SHOWN - LEAVE TO CROSS EXAMINE WITNESS NOT MAKING GENUINE ATTEMPT TO GIVE EVIDENCE - FINDING BY TRIAL JUDGE - NO REQUIREMENT OF CONTEMPORANEITY BETWEEN EVENTS AND MAKING OF STATEMENT UPON WHICH WITNESS CROSS EXAMINED - DIRECTIONS ON TELLING OF LIES NOT ERRONEOUS - SENTENCE - OFFENDER AND VICTIM BOTH AGED 17 - ASSESSMENT WITHIN DISCRETIONARY RANGE

CONTRACTS – Construction and Interpretation – “deal with” – application of copulatio verborum principle – whether “deal with” confined to alienation.

NEGLIGENCE - vicarious liability- liability of nightclub owner and licensee - security officer assaulted first respondent after removing him from nightclub premises - whether security officer was acting within the scope of his employment - New South Wales v Lepore (2003) 212 CLR 511 applied. D

WORKERS COMPENSATION - Uninsured Liability and Indemnity Scheme - recovery by WorkCover Authority from uninsured employer - extent of discretionary power of WCC under s.145 of WCAct - Worker recovered award against uninsured employer and WorkCover Authority - WorkCover paid compensation and served notice on employer under s.145(1) requiring reimbursement - employer applied under s.145(2) to WCC for determination as to liability and Presidential Member decided not to enforce the notice but to relieve employer from liability - consideration of whether power of WCC under s.145(4) ("... make such determination ... as the Commission thinks fit") is a discretion to formulate determination in whatever terms WCC thinks fit to give effect to rights of parties or a wider discretion to decide what the rights of the parties should be - consideration of - nature of entitlements conferred by Pt.4 Div.6 of WCAct - effect of earlier proceedings between same parties in Compensation Court - held that the discretion is a wide discretion and extends to power to relieve uninsured employer from liability - appeal dismissed.

FAMILY LAW – COSTS – De facto relationships – costs of property adjustment proceedings where amount recovered is less than jurisdictional limit of Local Court – costs of property adjustment proceedings where neither party can be said to have been wholly or substantially successful or to have bettered offer – “substantial success” - APPEAL – effect of substituted judgment.

Family Provision. Claim under the Family Provision Act 1982 by a stepson left out of the will of the deceased. Order for provision made. No matter of principle.

PRACTICE AND PROCEDURE – DERIVATIVE ACTION – Where there is a prima facie good cause of action the plaintiff will not be guilty of abuse of process merely because of hostility towards the defendant. - ANSHUN ESTOPPEL – Whether issue now sought to be raised ought to have been raised in earlier part of proceedings. - CROSS CLAIM – STATUTE OF LIMITATIONS – Whether leave to cross claim should be granted where cross claim, if brought in new proceedings, would be statute barred – whether concealed fraud.

Criminal law - expert evidence as to the subject matter of conversations being drug supply - whether such evidence should have been admitted - criminal law - expert evidence - sufficiency of summing up.

CRIMINAL LAW - unlawful imprisonment - appeal against conviction - joint and several offences - validity of indictment for unlawful imprisonment - common law offence - inconsistencies in complainant’s evidence - whether open to the jury to accept complainant’s evidence - whether necessary to be against the will of the complainant - meaning of constraining and restraining - directions on element of intent - relevance of complainant’s state of mind - whether direction on drawing of inferences necessary - whether directions correctly addressed actions of an individual not part of the joint criminal enterprise - parental discipline - whether evidence available on each separate count was adequately distinguished from evidence not available - EVIDENCE - whether document, which the complainant had not adopted, ought to have been admitted - re-examination of the complainant - CRIMINAL LAW - unlawful imprisonment - Crown appeal against sentence - objective gravity - general deterrence - unusual offence - whether mitigating factors were ‘double-counted’ - special circumstances - parental difficulties as mitigating factors - complainant’s age and condition as aggravating factors - impact of periodic detention - discretion not to intervene

Sentence Appeal - maliciously inflict grievous bodily harm with intent to do grievous bodily harm contrary to s33 of Crimes Act 1900 - finding of special circumstances and ratio between head sentence and non-parole period - whether offence was in mid-range of seriousness for offences of that kind for purposes of standard non-parole period - aggravating features section 21A(2)(d) and (g) Crimes (Sentencing Procedure) Act.

CRIMINAL LAW – application for leave to appeal against sentence – murder – whether appropriate discounts given – plea of guilty - past assistance – future assistance – willingness to give evidence in trial of co-offenders – need to serve sentence in protection – contrition – whether sentence was manifestly excessive – totality of criminality – degree of criminality

CONTRACT - sale of subdivided land - contract subject to registration of plan - operation of clause 28 of 2000 Edition of the Standard Contract for the Sale of Land - rescission by vendors - whether vendors did "everything reasonable" to have the plan registered by the registration date - whether rescission by vendors unconscientious - express agreement to terms of rescission by parties - Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 applied. D

PRACTICE & PROCEDURE – Plaintiff made application to punish first and third defendants for alleged contempt of earlier orders of Court – Evidence that defendants not served with sealed copy of earlier orders – Plaintiff indicated that if Court would not allow contempt application to proceed without service of sealed copy of orders, plaintiff would instead seek orders in same terms as earlier orders – Plaintiff in substance asking Court to express view in advance of hearing of contempt application – Whether Court should express provisional view – Expression of provisional view could create reasonable apprehension of pre-judgment or bias – Plaintiff entitled to proceed with contempt application without expression of provisional view – Orders made requiring first and third defendants’ attendance to answer charge of contempt.

ADMINISTRATIVE LAW - plaintiff prevented from entering any correctional centre in New South Wales for 36 months - plaintiff attempted to introduce a mobile phone into a correctional centre - whether the decision by the defendants to prohibit the plaintiff was properly made.

EQUITY – Equitable remedies – Injunctions – Interlocutory injunctions – Parties entered into commercial contract for the mixing and packaging by defendant of goods produced by plaintiff – Goods defective – Plaintiff alleged defects arose through fault of defendant – Plaintiff refused to pay defendant’s invoices – Defendant refused to release plaintiff’s other goods – Whether balance of convenience favours grant of interlocutory injunction mandating release of plaintiff’s goods – Interlocutory injunction granted – No question of principle.

Family Provision. Application by two children left out of the deceased's will. Consideration of circumstances surrounding the contact between the plaintiffs and deceased in last 12 years of his life. Held testator responsible for such difficulties. Order for provision made.

Alleged sexual assaults - four counts - events in one episode - verdicts of guilty on two counts and not guilty on two counts - whether inconsistent verdicts - whether logical and reasonable explanation for differentiation - whether direction required that if reasonable doubt in relation to one or more counts that must be taken into account in assessing complainant's truthfulness and reliability generally - accused's counsel failed to put instructions on certain matters to complainant - Crown Prosecutor's cross-examination of accused included questions about not putting the matters - implicit that accused's evidence of those matters was made up - whether cross-examination permissible - whether warning required that may be explanation for failure to put instructions which did not reflect upon accused's credibility. D

Failure to take reasonable care - bus passenger slipped and fell on banana in aisle - whether established failure - when and how banana came to be there - no higher than conflicting inferences of equal probability - not established. ND

NEGLIGENCE – Under statute – Civil liability legislation – Plaintiff’s participation in dolphin watch cruise – Whether a “dangerous recreational activity” – Whether travelling on foredeck posed “obvious” risk – Whether risk of rogue wave “inherent” – Civil Liability Act 2002, ss 5F, 5I, 5K and 5L. - NEGLIGENCE – Personal injury – Damages – Economic loss – Assessment – Plaintiff to show diminution in earning capacity productive of financial loss – Civil Liability Act 2002, s 13. - CONTRACTS – Exclusion clause – Incorporation by signature – Whether intended to affect legal relations – Whether for purposes of head count only – Sufficiency of notice – Construction – Contra proferentem.

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - husband's application - husband has begun another relationship, but continues to live in a domestic relationship with testatrix and provide substantial care to her - no questions of principle - REAL PROPERTY - general principles - joint tenancy - severance - no novel question of principle

ADMINISTRATIVE LAW - Judicial review - whether Registrar and Medical Appeal Panel correctly exercised their functions under the Workplace Injury Management and Workers Compensation Act 1998 - obligations of Registrar under s327(4) - admission of fresh evidence by Medical Appeal Panel - relationship between s324 and s328(3) - exercise of court's discretion.

SUCCESSION - Wills, Probate and Administration - whether testatrix approved of the contents of her will - whether suspicious circumstances by reason of alleged fraudulent misrepresentation by principal beneficiary - undue influence

CORPORATIONS - winding up - liquidators - attempt to invoke court's supervisory jurisdiction over liquidators in what are really questions of case management - exercise of liquidator's powers - whether abuse of process

REAL PROPERTY – LEASE – OPTION – OFFER AND ACCEPTANCE – Whether oral agreement to extend option to renew lease had been made – whether agreement resulted in an offer and acceptance of new lease – whether offer and acceptance analysis appropriate. - AGENCY – OSTENSIBLE AUTHORITY – Whether CEO had ostensible authority to accept offer of new lease. - STATUTE OF FRAUDS – “THEREUNTO LAWFULLY AUTHORISED” – Whether authority of agent to sign Memorandum of Agreement required by s.54A Conveyancing Act must be actual authority or may be ostensible authority. - DAMAGES – MITIGATION – Whether Plaintiffs had failed to take reasonable steps to mitigate losses.

Mental Health (Criminal Procedure) Act 1990 - s.24(1)(b) - s 27(b) extent of power - whether discretion to make an order - whether Court can make order that part only of a limiting term be served in custody or detention.

CRIMINAL LAW – Crown appeal against sentence – robbery – affray – assault student at a school – intimidating a member of staff at a school – partially accumulated sentences – substantially concurrent with sentences being served for prior offences – whether sentences reflected objective seriousness of offences – subject to good behaviour bonds at time of offences – whether sentencing judge ought to have adjusted commencement date of sentences – subjective factors – offender’s anticipation of release – principle of double jeopardy – limit to additional period of imprisonment