Cases and authorities

DEFAMATION - Appeal - Finding of jury that defamatory letter was published in circumstances such that the plaintiff was unlikely to suffer harm - Whether finding appealably unreasonable.

ORDER – party barred by the court from bringing new proceedings in same cause of action or claim for relief – construction of barring order – whether new proceedings were “concerning any cause of action or the whole or any part of any claim for relief” that arose in earlier proceedings – new proceedings against entities not in existence previously – previous proceedings broad enough to encompass new proceedings - ABUSE OF PROCESS – courts inherent power to prevent abuse of its processes – proceedings brought without costs being paid for first action

CRIMINAL LAW AND PROCEDURE - SENTENCE FOLLOWING CONVICTION AT TRIAL - MURDER - STANDARD NON PAROLE PERIOD - ABORIGINAL AUSTRALIAN OF EXTREMELY DEPRIVED LIFE OPPORTUNITIES - REASONS FOR MITIGATING STANDARD NON PAROLE PERIOD

CORPORATIONS - winding up - discretion under s 467 - agreement between defendant in Commercial List proceeding and creditor of plaintiff, under which creditor took proceeding to wind up plaintiff prior to hearing of Commercial List case - relevant considerations

Sentencing - manslaughter - provocation - offender pleading guilty to manslaughter - domestic violence - relationship between offender and de facto characterised by violence and abuse - offender stabbed de facto following a confrontation

Appeal decision of CTTT - prerogative relief - termination of lease

CORPORATIONS – External administration – administration under deed of company arrangement – special purpose administrator – whether court has power to appoint special purpose administrator to investigate conduct of original administrators – nature and role of special purpose administrator – whether investigation and supervision of administrator is part of administration - whether order appointing special purpose administrator to investigate conduct of original administrators is an order as to how Part 5.3A is to operate in a particular case under s 447A – whether duty of liquidator or administrator extends to investigating own conduct in the administration – where no allegation that corporation would be better off if investigation conducted – whether failure to perform such investigation could be relevant prejudicial management for purposes of s 447E – whether court has inherent jurisdiction to appoint special purpose administrator for purpose of investigating conduct of deed administrator - whether power to appoint special purpose administrator, if it exists, could appropriately be exercised on the plaintiff’s case taken at its highest – where special purpose administrator inapt remedy and other appropriate and orthodox statutory remedies are available – held, taking plaintiff’s claim at its highest, no power to grant relief sought, but if there were power, it would be manifestly unreasonable to grant that relief - (Cth) Corporations Act, 2001, ss 236, 237, 241, 447A, 447E, 536, 1321.

CRIMINAL LAW - EVIDENCE ACT - sexual assault - appeal against conviction - indecent assault - homosexual intercourse - act of gross indecency - offences committed 18 years ago occurring over a period of two years - whether evidence of contemporaneous complaint admissible as prior consistent statement - evidence admitted as a response to prior inconstant statement damaging to complainant’s credit - inconsistency inferred from conduct - Crown Prosecutor’s address - whether inappropriate comments caused a miscarriage of justice - comments seeking to confine the impact of warnings given to jury in summing up - invitations to speculate in absence of evidence - personal opinion - breach of obligations to present Crown case in impartial and fair manner - impact of closing address by defence counsel and trial judge’s summing up - whether directions on caution regarding complainant’s evidence because of delay and lack of corroboration - whether trial judge’s words diminished significance of warnings given

Criminal Practice & Procedure - appeal against sentence - convicted sexual intercourse without consent - fresh evidence that mentally ill at time of offences - admissibility - relevance of mental illness to sentence - issue of dangerousness - special circumstances.

CRIMINAL LAW - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - murder - undiagnosed cancer - symptoms evident at time of sentencing - whether to allow fresh evidence of medical condition - re-sentencing in light of fresh evidence - whether imprisonment will be more onerous - risks of recurrence of cancer - whether a lesser sentence warranted in law

CRIMINAL LAW – SENTENCING – application for leave to appeal against sentence – whether error in the standard non-parole period – whether any lesser sentence is warranted in law pursuant to s.3 of the Criminal Appeal Act 1912 (NSW) – error in the approach taken to the application of the standard non-parole period – sentence not excessive – significance of error in the application of the standard non-parole period not such as to move the Court to form the statutorily required positive opinion that some other sentence is warranted in law.

PERSONAL PROPERTY – ownership and possession – right to immediate possession – property owned by a corporation – rights of directors, managers and sole shareholders in respect of corporate property – bailment – possessory title – de facto possession – TORTS – TROVER AND DETINUE – possession or right to possession – what constitutes conversion

PROCEDURE – miscellaneous procedural matters – orders of the Court – form – construction – effect – whether orders capable of retrospective effect – limitation periods – whether proceedings brought out of time – whether proceedings still on foot

Ruling on admissibility of evidence - Evidence Act s108

Damages. Assessment of damages for a claim for private nuisance. Defendant removed cattle yards over which the plaintiff had the benefit of an easement. Whether there was any betterment when cattle yards were replaced. Claim for damages for stress and anxiety. Held such a claim not available in a claim for private nuisance.

CORPORATIONS - public companies - management and administration - directors - constitution requires retirement of directors at each annual general meeting - meeting not held - whether offices become vacant at conclusion of year - holder of church position declared by company's constitution to be director ex officio - whether subject to annual retirement - purported action by three directors when two of them no longer in office - effectiveness of participation by third - where constitution permits continuing director to act - effect of failure to maintain minimum number of directors required by Corporations Act - whether act in which one director only participated within s.1322(4)(a) - whether validating order should be made - where no explicit application for such order - whether purported appointment of representative under s.250A defective in form - proceedings at member level in single member public company - passing of resolutions by paper based procedure under s.249B - whether such procedure available where Corporations Act requires meeting - whether right of directors to be given notice of general meetings indicates that meeting must be held to pass resolutions affecting directors - whether right of auditor to be given notice of general meetings and to attend and speak on matters relevant to auditor indicates that meeting must be held to pass resolutions omitting from constituition requirement that accounts be audited - where efficacy of documents depends on signing in particular order - availability of presumption of regularity where evidence shows all signed on one day but does not indicate order

Negligence – medical negligence – patient repeatedly expressed anxiety about family history of cancer and the possibility that he had symptoms indicative of bowel cancer – general practitioner made arrangements with specialists for tests in relation to the symptoms – patient’s anxiety escalated – general practitioner diagnosed patient’s delusion beliefs as “psychotic” – general practitioner prescribed an anti-psychotic drug – patient suffered catastrophic but rare side-effects from the anti-psychotic drug – patient was hospitalised and underwent significant treatment for the side effects – whether the general practitioner was negligent in diagnosing psychosis

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - order extending caveat made ex parte - whether to be set aside

Whether a purported complaint under the Health Care Complaints Act 1993 (NSW) was a complaint under the Act - if so, whether it was verified as required by former s.23(3) prior to that provision being omitted by the 2004 amending legislation - the meaning of the phrase "verifies the complaint" - what constitutes "verification" - whether breach of the requirement to verify a complaint constituted jurisdictional error invalidating the investigation of the complaint - the decision to prosecute the complaint before the Pharmacy Board and the decision to refer the complaint to the Pharmacy Board - the extent of the retrospective operation of the 2004 amending Act expressed to apply to "a complaint whether made on or after the commencement of the amendment" and whether the amendment applied to a complaint already investigated prior to the amendment

Practice and Procedure - Amendment of defence - Template set by part 6 of Uniform Civil Procedure Act analysed with respect to application to amend pleadings

CORPORATIONS LAW - insolvent trading - claim against directors established - CORPORATIONS LAW - unfair preference - settlement of claim against Commissioner of Taxation - settlement of claim by Commissioner against one director under s588FGA of the Act - claim against other director order to indemnify Commissioner made - CORPORATIONS LAW - director - whether person not appointed as director is director within s9 of the Act as acting in the position of a director

PROFESSIONS - barristers - professional misconduct - unlicensed practitioner - meaning of "wilfully and without reasonable excuse" - absence of evidence or an explanation for actions the subject of findings is germane to the issue - purpose and function of egulatory regime relating to practising certificate - STATUTES - legislation - operation and effect of statutes - repeal - savings and transition provision - interpretation - JURISDICTION - power to make a declaration - signficance of declaration in circumstances where barrister struck from the Roll of Practitioners - whether such declaration woudl be of public interest.

LEGAL PRACTITIONERS – SOLICITORS – COSTS – where solicitor restrained on application of plaintiffs from continuing to act for defendants – where solicitor resisted application at request and on instructions from defendants/former clients – where application had sought costs only against solicitor – whether solicitor was amenable to costs order – whether defendants were amenable to costs order – where defendants and solicitor appeared by common counsel to resist motion – whether solicitor entitled to be indemnified by former clients in respect of costs liability – held, solicitor to pay plaintiffs’ costs of motion for his removal, and defendants/former clients to pay solicitor’s costs, including the costs which he is liable to pay plaintiffs.

COSTS – Where plaintiff succeeds in gaining relief sought but fails on five of six grounds argued – where the five grounds on which the plaintiff failed did not have reasonable prospects of success – where provisional costs order made that each party bear its own costs, reserving leave to apply for a different order – where plaintiff applies out of time for different costs order – where, if extension granted, leave would be required to proceed because defendant in administration – where application would in any event fail.

Criminal Practice & Procedure - appeal on severity of sentence - claim imported drugs for personal use - MDMA - civil onus on accused - rejected by Judge - whether gave reasons or sufficient reasons.

Accused charged with detain female for advantage, namely to assault her - his counsel allows evidence of his response to the complainant's plea to be allowed to leave, that he had "just got out of gaol five days ago, you'll dog me to the cops" - counsel elicits evidence of accused's criminal record to prove that he had no convictions for violence towards women, emphasising the length of his record, his lack of success as a criminal and his propensity for street offences, and describing him as a "property crim" - no rational or reasonable explanation for eliciting more than no such convictions and reasons for being in gaol (for only two weeks following a conviction for shoplifting) - trial necessarily unfair - miscarriage of justice. - Prasad direction - co-accused acquitted by jury - danger of giving direction in circumstances where there may be a problem for the jury in understanding the real nature of the Crown case.

NEGLIGENCE – employer and quasi-employer – risk of deliberate criminal conduct by others – duty of care – obligation to take reasonable steps to protect employees – need to show that steps would have prevented injury – need for expert evidence - ND

COURTS AND JUDICIAL SYSTEM - appeals against findings of fact - role of demeanour findings - witnesses from different cultural and ethnic backgrounds - role of probabilities and consistency with other evidence - failure to examine all material facts relevant to an issue - adequacy of reasons - explaining demeanour findings. D

Sentence appeal - incorrect use of Form 1 offences by sentencing judge - whether sentences manifestly excessive - applicability of guideline judgment in R v Henry - use of statistics - broad discretion of sentencing judge.

COURTS AND JUDGES - application to vary or vacate and replace orders - whether judge who made order should disqualify himself from hearing application, on ground of apprehended bias - judge made statements at later directions hearings expressing his intention in making the orders and making application

Witness with a speech impediment - evidence given via audiovisual link - criminal trial

RESTRAINT OF TRADE – Employer and employee – sales manager – confidential information – whether information relating to plaintiff’s internal costs, pricing rates and parameters, marketing strategies, and features of special equipment is confidential – held, they are at least “know-how” of the quality that can be protected by a confidentiality covenant – Validity – whether restraint on solicitation of customers protects a legitimate interest of plaintiff in confidentiality of its pricing parameters and marketing strategies – held, it does - whether restraint also protects legitimate interest of plaintiff in customer connection - held, it does – Reasonableness – whether restraint excessive insofar as it prohibited dealing with customers other than those with whom employee personally dealt – where restraint on solicitation of customers is supported by protection of confidential information as well as by protection of customer connection - held, it can legitimately prohibit solicitation of existing clientele whether or not defendant serviced them and whether or not they were customers prior to defendant’s departure - Duration – whether excessive – where restraint supported by legitimate interest in protection of whole of customer connection a significant proportion of which would take a year to establish relationship with replacement employee, and also in protection of confidential information which might remain useful for up to twelve months, and parties had agreed on twelve month restraint – held, 12 months is reasonable – Non-recruitment or anti-poaching covenant – covenant prohibits employee from soliciting other employees of plaintiff after his departure – whether a prohibition on recruiting desirable staff is a restraint of trade – held, it is – whether such restraint supportable by a legitimate interest of employer – held, it protects legitimate interest in confidential information, and also in staff connection - Restraints of Trade Act applied to limit scope of non-recruitment restraint.

EASEMENTS – rights of carriageway – construction – admissibility of evidence of surrounding circumstances – whether grant of right of way appurtenant to lot A extends to permit dominant owner to authorise persons to use right of way to access dominant tenement and then proceed to remoter adjacent properties of dominant owner (lot B) – rule in Harris v Flower – right of way “for all purposes” – where parties to grant contemplated that dominant tenement would be a means of access to remoter properties.

CRIMINAL LAW AND PROCEDURE - MURDER - CONVICTION FOLLOWING TRIAL - SENTENCE

Criminal Law: revocation of s 12 bond where sentence originally imposed contrary to law - whether Magistrate exercising power under s 43 Crimes (Sentencing Procedure) Act 1999 when imposing different sentence after revocation - whether revocation appealable under s 11 Crimes (Local Courts Appeal and Review) Act 2001

VARIATION OF ORDER made in judgment [2005] NSWCA 392 dated 15 November 2005

VENDOR and PURCHASER - agreement for sale of interest in land - no written memorandum under Conveyancing Act s.23C or s.54A - part performance by payments - brother and brother made oral agreement for sale of half interest as tenant in common held by vendor in common with sister - agreement operated as present declaration of trust - consideration whether compliance with s.23C necessary for enforcement - consideration whether compliance with s.54A necessary for enforcement - held that it is necessary - Doctrine of Part Performance considered - whether part payment to vendor and arrangement for third party to pay off mortgage for which vendor was liable constituted Part Performance - held they did not - consideration of history of Part Performance in applying Statute of Frauds - payments are not acts of Part Performance - appeal allowed.

Knee injury - made degenerative changes symptomatic - would have become symptomatic in any event - whether error in accepting medical opinion - whether gave sufficient reasons - no error shown and reasons sufficient - not enough for appellant to point to evidence which could have supported different finding - no question of principle. ND

Dust Diseases Tribunal - jurisdiction in proceedings for damages in respect of dust-related condition - relevantly meaning lung condition attributable to dust - plaintiff contracted nasal cancer from dust exposure - surgery brought consequential lung condition - whether lung condition attributable to dust - whether proceedings claiming damages were in respect of dust-related condition - lung condition attributable to dust - although cause of action for all consequences of dust exposure, jurisdiction by virtue of claim to damages in respect of lung condition.

DAMAGES – appeal – reassessment – no question of principle - DAMAGES – motor accidents – Motor Accidents Compensation Act 1999 s 126 – most likely future circumstances – multiple findings permissible - ND

CROWN APPEALS AGAINST SENTENCE – Co-offender served with harsher sentence – Parity principles – Not applicable because co-offender had greater involvement, extensive criminal record, on bail and Form 1 matters – Sentence unduly lenient but not greatly outside allowable discretionary range.

PRACTICE & PROCEDURE - pleading - whether cross-examination testing defendant's evidence amounted to a new, unpleaded case - probative value of challenged evidence - whether danger of unfair prejudice to defendants

Contract - Claim for damages of $100,000,000 for breach of contract and for loss and damage occasioned by misleading and deceptive representations - Contract for provision of plaintiff to defendant's hospitals and health care facilities of food procurement, catering and associated eProcurement services - Whether parties entered into legally binding relations - Masters v Cameron issues - Certainty - Authority to bind corporation - Construction

Claim for restoration of dividing fence - destroyed by deliberate act - distinction between fence and retaining wall - fence may have other functions - legislative changes - intention of the legislature - indemnity costs and leave.

CONTEMPT- of Police Integrity Commission - where witness falsely asserts lack of recollection - where witness not provided with particulars - where application for adjournment to put on medical evidence refused on incorrect and irrelevant grounds - whether witness denied opportunity to show cause - where hearing on the merits has now occurred - whether proceedings should be stayed permanently - whether lack of recollection was feigned, deliberately false and intended to or did obstruct Commission’s inquiry - whether witness is guilty of contempt of Commission under s 118(1) (h) of Police Integrity Commission Act 1996

TAXES AND DUTIES - Income Tax - Directors' resolution that dividend be paid on specified date - Whether a declaration and debt arose on resolution under the Corporations Act 2001(Cth), s 254V(2) or a determination and debt arose on payment under s 254V(1) - Notice served on company by Commissioner of Taxation under the Income Tax Assessment Act 1936 (Cth), s 255 requiring retention of money coming to it on behalf of specified non-resident shareholders - Subsequent equitable assignments by the shareholders to another non-resident not within the scope of s 255 who gives an irrevocable direction to the company to pay the dividends to another - Non-resident shareholders give notice to company of the assignments - Whether legal assignments under the Property Law Act 1974 (Qld), s 199(1) - Whether effect of equitable assignments is that when debt for dividends arise, there is a moment when legal title to the dividend vests in the non-resident shareholders such that s 255(1) operates or whether the equitable title arises eo instanti with no scintilla temporis in the assignee and s 255(1) has no operation - Whether the assignors or assignee can sue for the dividends - Whether the assignor is a necessary party to a suit for the dividends - Whether the company was liable to pay money to the non-resident shareholders thereby enlivening s 255(2) - Whether s 255(1)(b) limits the requirement to retain to moneys coming to the company on behalf of the non-resident shareholders and does not apply to a dividend paid from the company's own money - Under historical analysis, s 255 was aimed at payments of royalties to non-residents

Customs Act prosecutions - defendants did not appear at hearing - judgment entered - application to set judgment aside - whether the defendants have an arguable case - whether the defendants have a reasonable explanation for not attending hearing

INDUSTRIAL LAW – Industrial Relations Commission – Discretion to award costs – When not in Court Session – Against party who unreasonably fails to accept settlement offer – Determination as to unreasonableness not jurisdictional – Industrial Relations Act 1996, ss 181, 191. - WORDS AND PHRASES – “objective” – “subjective” – “only if”.

CONSTITUTIONAL LAW – COMMONWEALTH – Judicial power of the Commonwealth – Investiture in courts of the States – Whether federal jurisdiction can be vested in the Administrative Decisions Tribunal – Whether Administrative Decisions Tribunal a court of the State – Court must be composed of judges – Commonwealth Constitution, s 77(iii) - TRADE PRACTICES – Practice and Procedure – Whether Administrative Decisions Tribunal has power to determine claims under the Trade Practices Act 1974 (Cth) – Whether Administrative Decisions Tribunal a court of the State – Whether federal jurisdiction can be vested in Administrative Decisions Tribunal – Commonwealth Constitution, s 77(iii) – Trade Practices Act 1974 (Cth), s 86(2) - WORDS & PHRASES - "court", "court of a State"