Cases and authorities

PROCEDURE - Supreme Court's inherent jurisdiction to advance administration of justice, including in lower courts - permitting downloading and copying of information stored in electronic control units of motor vehicle involved in fatal accident - conditions for downloading and copying to occur

PROCEDURE [559] - Costs - General rule - Third parties - Cross defendant - Whether costs of cross claim which failed because of plaintiff's failure against defendant should be regarded as "private issues" and therefore not visited on plaintiffs.

PROCEDURE - Contempt, attachments and sequestration - Company director sends an email to Government Minister lobbying for amendment to legislation containing extracts from an affidavit and expert report served on the company by the plaintiffs in their proceedings against it for noise nuisance from Luna Park - He also sends a copy of a newspaper article summarising and quoting from other affidavits served on the company - A third party in lobbying the Minister resends the director's email - The lobbying was successful and amending legislation was passed preventing the bringing of any proceedings or noise abatement action with respect to emissions of noise from Luna Park and declaring the emission of noise not to constitute a public or private nuisance if the noise did not exceed a specified level - Plaintiffs abandon their action - No evidence that director or third party knew of the company's implied undertaking not to use the information for any purpose not directly connected with the conduct of the proceedings - Whether either guilty of contempt by breaching an implied undertaking - Whether guilty of contempt by republishing extracts from affidavits quoted in the newspaper article - Whether guilty of contempt by communications that created a real tendency to interfere with the administration of justice in the proceedings

[LEASES] - [RECTIFICATION] Suit for rectification of an agreement for lease and deed of lease on basis of mutual mistake - plaintiffs claim drafting error - whether the relevant mind is that of the employees of the council or the councillors - whether plaintiffs have established by clear and convincing proof that the parties had a concurrent intention at the time the lease was executed.

ASSOCIATIONS AND CLUBS - incorporated association - winding up - unavailability of both s.459E and s.585(a) of Corporations Act to create presumption of insolvency - PROCEDURE - costs - where defendant served on incorporated association a document purporting to be a statutory demand - where plaintiff pointed out inapplicability of Corporations Act provisions and invited withdrawal of document - no withdrawal - plaintiff compelled to protect position by instituting proceedings - whether defendant should pay plaintiff's costs - whether assessment on indemnity basis should be ordered

CORPORATIONS - winding up - creditors statutory demand - whether genuine dispute as to existence or amount of alleged debt - no question of principle

NEGLIGENCE - slip and fall in common area (toilet) of leased commercial office premises - claim for damages by tenant against owner and managing agent - whether breach of duty of care - whether breach of contract entitling tenant to damages

REAL PROPERTY - Easements - Rights of carriageway - Application for interlocutory injunction to restrain blockage of right of carriageway - Access between public road and properties of plaintiff and first and second defendants afforded by narrow carriageway - First and second defendants engaged in construction works on their property - Plaintiff's use of carriageway impeded by vehicles supplying materials for construction works - Whether serious question to be tried that first and second defendants have substantially interfered with plaintiff's right to use carriageway - Whether balance of convenience favours grant of interlocutory injunctive relief - Injunctive relief granted.

Criminal Law - Sentencing - Bribery - False Statements - Crimes Act s178 BB - s249B (2)(b)

Appeal against sentence – not guilty pleas to eight counts of sexual misconduct with his natural daughter contrary to ss.61O(2), 66A and 61M(2) of the Crimes Act 1900 – whether trial judge erred in determining the maximum penalty applicable under s.66A – whether mis-statement by trial judge, subsequently explicitly corrected, indicates that the judge has fallen into error and applied the wrong maximum penalty – a mis-statement in the remarks on sentence, while regrettable, provides no reason to doubt the express statement made by the trial judge as to the maximum penalty he in fact had in mind at the time of determining the sentence – whether sentence was manifestly excessive – not all offences under s.66A involve an abuse of trust – sentence imposed in relation to Count 4 was manifestly excessive – whilst Count 4 was objectively more serious than Count 2, it was not at a level that could be said to warrant a sentence of approximately three times that imposed in respect of Count 2

Criminal Practice & Procedure - 5 counts of sexual intercourse without consent - not guilty verdicts on 2 counts and rejection of circumstance of aggravation - were verdicts of guilty inconsistent - were verdicts unreasonable.

CRIMINAL LAW - 5F APPLICATION - refusal to order separate trials - refusal to separate indictment - series of murders - several co-accused - applicant alleged to have been driver during one of the shootings - whether offences were part of a series of offences of the same or similar character - whether the matters ought to be heard and determined separately in the interests of justice - whether cross-admissibility was determinative of whether there was a series of offences, whether a risk of guilt by association, whether directions can confine use of the evidence

Standard non-parole periods where plea of guilty - approach to be taken - offences assessed by sentencing judge in the middle range of objective seriousness - relevant matters in assessment - whether gambling and drug addiction relevant and, if so, assessed - whether offer to supply heroin to be treated in the assessment as objectively serious as an actual supply of heroin - in assessment of objective seriousness whether error in taking into account other offences - mitigating factors - whether taken into account - error in relation to special circumstances - such a finding warranted - appeal upheld in relation to the total non-parole period - non-parole period reduced by a period of two years.

NEGLIGENCE – duty of care owed by employer to employee – employee struck in the back by heifer while cattle drenching – suffered serious neck injury – causation –whether failing to employ a third person to assist with drenching caused injury –whether there was contributory negligence on the part of the employee - EVIDENCE – whether file note was a ‘business record’ – whether payments by insurer an ‘admission’ - DAMAGES – whether the award for non-economic loss too great – whether damages should be reduced for board and lodging provided by relatives or friends –whether damages for loss of earning and future domestic care should be proportionately reduced for the possibility of improvement in condition

WORKERS COMPENSATION – assessment of compensation – whether compensation should include payments for children as totally or mainly dependent on the respondent – no reason why child could not be mainly dependent on one parent while also mainly dependent on the other – organisation of financial affairs of parents irrelevant in absence of sham or fraudAPPEAL – no error of law – appeal constituted an attack on findings of fact

APPEAL AND NEW TRIAL - gaol murder - function and duty of trial judge in summing up to jury - trial judge leaves factual basis for conviction to jury which had not been advanced by Crown - whether unfairness to appellant giving rise to miscarriage of justice - adequacy of directions concerning evidence of prisoner witnesses called by Crown - whether "dangerous to convict" direction was required - whether verdict of jury was unreasonable

CRIMINAL LAW - Sentence - four counts under s31 Financial Transaction Reports Act - further matters on s16 BA form - pleas of guilty - assistance to authorities

Torts – Joint tortfeasors – Defamatory publication - Cross-claim by magazine publisher against informants for contribution or indemnity as suppliers of false information – Whether publisher’s conduct reasonable in circumstances – Apportionment of responsibility – Law Reform (Miscellaneous Provisions) Act 1946, s 5

ESTOPPEL - where Court on hearing (including of application for summary judgment) found pleaded cause of action unsustainable, gave reasons and made orders - where plaintiff has not sought to amend summons to allege alternative cause of action - whether parties estopped from contending to the contrary of orders made - whether matter should be reopened pursuant to UCPR 36.16(1) or inherent power of Court

CONTRACT - settlement deed after mediation - claim released by settlement of proceedings excluding cross-claim - same facts pleaded as defence to cross-claim - whether set off or cross-claim - whether release applied to those claims

Appeal from Tribunal - breach of terms of quiet enjoyment and responsibility for repairs - compensation may be ordered for breach of terms (not statute) - non-economic loss.

Applications by Notice of Motion - psychological injury including post-traumatic stress disorder – negligence – contract – defamation - limitation periods - management of affairs – duty of care between university and student

NEGLIGENCE – ORDERS AND COSTS – LIABILITY AND DAMAGES – award of damages including interest – determination of cross claims – costs – note that corrections to the primary judgment have been published

CRIMINAL LAW – Appeal against conviction – whether jury’s verdicts were inconsistent – CRIMINAL LAW – subpoenas – identity of police informers – whether legitimate forensic purpose – CRIMINAL LAW – public interest immunity – police informers – whether defence could show that desired evidence would help demonstrate innocence – EVIDENCE – whether evidence of guns at one location is tendency or coincidence evidence that is probative of knowledge of guns at another location – whether admission of evidence led to a substantial miscarriage of justice – whether to apply the proviso in s 6(1) of the Criminal Appeal Act – EVIDENCE – definition of identification evidence – recognition evidence – whether trial judge’s directions complied with s 116 and s 165 of the Evidence Act.

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether plaintiff entitled to contributions under deed of release - Whether evidence of payment provided - Whether cause of action can be raised by amended summons - Whether defendant should be ordered to instruct its solicitor to pay plaintiff from moneys held in trust account under deed of release - Tacked on claim by amendment to summons for amount due under deed of settlement - No relationship to original claim for removal of caveat - Within the jurisdiction of Local Court - Such amendments to be discouraged - Consideration to transfer of proceedings to Local Court under the Civil Procedure Act 2005, s 146(1) or to deny plaintiff its costs

Leave to appeal from the Local Court - extension of time - relevant conciliations - failure to demonstrate an entitlement to relief.

Succession. Family Provision. Claims by estranged widow and two adult sons (one being a diable person). Financial and material circumstances of each Plaintiff. Whether each Plaintiff has been left without adequate provision for her or his proper maintenance. Each Plaintiff must establish her or his claim upon its own merits. Competing claims of Plaintiffs and another beneficiary. Death of one Plaintiff after hearing and before judgment. Effect of that death upon claims of surviving Plaintiffs.

PROCEDURE - transfer of proceedings from District Court to Supreme Court - no novel statement of principle

CORPORATIONS [256] – Winding up – Conduct and incidents of liquidation – Effect of winding up on other transactions – Other cases – Uncommercial transactions – Meaning of “transaction” - EQUITY [29] - General principles – Priority and notice – Transaction carried out in breach of trust – Whether subsequent recipient of funds on notice of breach of trust or fiduciary duty.

Pleadings - Elements of deceit - Necessity to identify persons who both made the relevant representations and either had knowledge of the representation or acted recklessly as to whether the representation was true or false

Extension of limitation period - ss 60C & E Limitation Act 1969

NEGLIGENCE - POLICE OFFICER STATIONED IN COUNTRY TOWN SENT TO WESTERN TOWN FOR TEMPORARY DUTY - SUMMER MOSQUITO RISK - GENERAL WARNING PUBLICISED IN WESTERN DIVISION OF STATE - NO SPECIFIC WARNING TO OFFICER - BITTEN BY MOSQUITOES WHILE OFF DUTY FISHING - ROSS RIVER FEVER - DUTY OF CARE OF EMPLOYER EXTENDS FURTHER THAN FOUND BY TRIAL JUDGE BUT NO BREACH OF DUTY DEMONSTRATED - (ND)

TORT OF CONSPIRACY - anomalous cause of action - object and purpose of those acting in concert - disclosure of reasonable cause of action - striking out of pleading and summary dismissal.

CONTEMPT - alleged contempt of Police Integrity Commission - where Commissioner "presents ... certificate to the Supreme Court" - whether Commissioner or Registrar is proper plaintiff

PRODUCT LIABILITY - MANUFACTURED PINE DECKING - LIABILITY OF IMPORTER PURSUANT TO TRADE PRACTICES ACT AS DEEMED MANUFACTURER - NO LIABILITY AT COMMON LAW SHOWN - PERSONAL INJURY TO PLAINTIFF WHEN DECKING COLLAPSED - DAMAGES ASSESSED

Charged with a co-offender of maliciously inflicting actual bodily harm on a female with intent to have sexual intercourse with her contrary to s.61K(a) Crimes Act 1900 (NSW) – charged with a co-offender of knowingly having non-consensual sexual intercourse with another female in circumstances of aggravation contrary to s.61JA(1)(c)(iii), those circumstances being that the applicant and the co-offender had deprived her of her liberty – applicant pleaded guilty to both charges – appeal against severity of sentence imposed – whether trial judge considered both delay and hardship as constituting special circumstances for the purposes of sentencing – whether failure to expressly refer to and consider individual matters going to hardship constitutes appellable error – the decision as to whether special circumstances exist in a particular case is first one of fact and secondly one of judgment – the sentencing judge had given thorough attention to the facts said to support a finding of hardship when determining the appropriate sentence – the absence of an express reference to the statutory ratio does not of itself indicate an intention on the part of a sentencing judge to impose a non-parole period in accordance with the statutory ratio – the sentencing judge must demonstrate that they have taken into account pre-sentence custody – the sentence must be expressed in terms which make plain that pre-sentence custody has been taken into account and how it has been taken into account – the sentences should have been backdated to commence from the date when the applicant was taken into custody – the sentencing judge’s failure to consider matters in mitigation based on equivocal evidence did not result in manifestly excessive sentences

Two charges of supply prohibited drug (cannabis) contrary to s.25(1) Drug Misuse and Trafficking Act 1985 (Cth) – possession of prohibited drug (pseudoephedrine) contrary to s.10(1) Drug Misuse and Trafficking Act 1985 (Cth) – directed verdict of not guilty in relation to the possession charge – a plea of guilty entered to both supply charges – appeal against severity of sentence – no error in trial judge characterising the applicant as 'the principal organiser' – agreed facts provided the factual basis of the applicant’s guilty plea and cannot now be departed from – no error in determining the role of the applicant when compared with another co-accused – no error in partial accumulation of sentences as the evidence does not support the view that the applicant was engaged in the same conduct at the same time in relation to both counts of supply – no basis for the Court of Criminal Appeal to interfere with the ratio between parole and non-parole periods – no error demonstrated on the part of the trial judge in the exercise of the discretion to apply a discount for an early plea of guilty – a discount for a guilty plea is a discretionary matter and a particular offender has no entitlement to a particular discount

CRIMINAL LAW AND PROCEDURE - SEPARATE TRIAL ON TWO INDICTMENTS RELATING TO DIFFERENT VICTIMS - RELATIONSHIP EVIDENCE ADMITTED - NO BREACH OF REQUIREMENTS CONCERNING TENDENCY OR COINCIDENCE EVIDENCE - DELAY IN PROSECUTION - COMPLAINT OF MATTERS IN ADDRESS BY CROWN PROSECUTOR - REMEDY AVAILABLE AT TRIAL - ADEQUACY OF DIRECTIONS - SENTENCE - APPEAL ALLOWED TO VARY SENTENCING ORDERS TO ACHIEVE INTENTION STATED BY SENTENCING JUDGE

ENVIRONMENTAL PLANNING - local environment plan - whether proposed development a "community facility" within meaning of Woollahra Local Environmental Plan 1995 - STATUTORY INTERPRETATION - function of definition clauses - WORDS AND PHRASES - community facility".

CRIMINAL LAW - summary criminal proceedings in Local Court - MENTAL HEALTH - whether applicant with "mental condition" should be dealt with otherwise than in accordance with law - s 32, Mental Health (Criminal Procedure) Act 1990 - STATUTORY INTERPRETATION - nature of decision made in exercise of s 32(1)(b) jurisdiction.

Negligence - Hospital - Psychiatric patient - Alleged negligence by triage nurse - No breach of duty - No causative link established.

INCOME TAX - proceedings for collection and recovery of tax - where company does not remit group tax and director is liable to pay penalty - where director's residence indicated by online extracts of ASIC database - whether residence "appears" from ASIC documents under s 222AOF(1) Income Tax Assessment Act 1936 (Cth) - whether residence is that "last known" to plaintiff - where notice is not received - whether notice is served under s 222AOE Income Tax Assessment Act 1936 (Cth) - whether s 28A Acts Interpretation Act 1902 (Cth) applicable - COSTS - where plaintiff breached obligation relating to informal discovery - whether costs should follow the event - whether plaintiff should have the whole of her costs

ASSOCIATIONS AND CLUBS - incorporated associations - winding up - application by association itself on basis of supposed resolution of members to "dissolve" - whether special resolution that association be wound up by the court - whether in any event just and equitable that association be wound up

Sentence only - Assault occasioning actual bodily harm - importance of general deterrence where offence committed in order to re-inforce cultural mores within discrete community.

PRACTICE AND PROCEDURE - unrepresented litigant - whether appellant was denied procedural fairness - role of trial judge in ensuring that litigant receives a fair hearing (ND)

MEDICINE – Medical Practitioners – Challenge to order made pursuant to s64(1) of the Medical Practice Act 1992 (“the Act”) for removal of appellant’s name from Register of Medical Practitioners – “unsatisfactory professional conduct” and “professional misconduct” within s37 conceded – dishonesty - not keeping a drug register – alleged disregard for or non-compliance with conditions on re-registration – observations on extent of appeal right under s90(1) of the Act and in particular as to whether in circumstances appellant could controvert findings of Tribunal on basis that they went to what was the appropriate order rather than the conceded professional misconduct.