Cases and authorities

Criminal law - crown appeal - sentencing - manifest inadequacy - specially aggravated break enter and steal - malicious infliction of grievous bodily harm - standard non-parole period - relative criminality - objective criminality - subjective factors

Criminal Law - Sentencing - Crown appeal - whether sentence of periodic detention manifestly inadequate for offences of drug supplying - young vulnerable offender - whether at risk in custody - failure to find facts - failure to properly take matters into account - exercise of discretion to dismiss the appeal.

CRIMINAL LAW – CONVICTION APPEAL - sexual intercourse without consent in circumstances of aggravation - indecent assault – Longman direction – SENTENCE – whether the effective overall sentence misjudges the actual level of criminality involved

NEGLIGENCE - Appellant injured in car accident as she was attempting to cross a freeway - fence and wall blocking freeway was knocked down to allow access - crossing freeway in this way was common practice in the community - liability of road authority - application of common law duty of care to a statutory authority - duty of care - relationship between obviousness of a risk and the existence of a duty of care - Mawlodi v State Rail Authority of New South Wales [2001] NSWCA 415 distinguished - presence of allurement - causation - contributory negligence. - PRACTICE AND PROCEDURE - Costs - application for a Bullock order. D

LOCAL GOVERNMENT - powers - right of council to recover costs incurred in controlling noxious weeds on appellant's property - validity of notices issued pursuant to s 18 of the Noxious Weeds Act 1993 (NSW) - force and effect of s 18 notice - power of council to issue multiple notices under s 20(3) of the Noxious Weeds Act - application of s 55 of the Local Government Act 1993 (NSW) to a council. - CONTRACT - effect of entering into contract where one party does not comply with statutory requirements - effect of breach by council of requirements of s 55(1) and s 55(2) of the Local Government Act - Haynes v Sutherland Shire Council (1966) 83 WN (Pt 1) NSW 428 and Denton v Ryde Municipal Council (1953) 19 LGR 152 distinguished - whether contract unenforceable by innocent party. - RESTITUTION - claim for quantum meruit - Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 applied - Haynes v Sutherland Shire Council (1966) 83 WN (Pt 1) NSW 428 and Denton v Ryde Municipal Council (1953) 19 LGR 152 not followed. D

Disqualification for apprehended bias - test that fair-minded lay observer might reasonably apprehend the judge might not bring impartial mind to decision - observations which in isolation expressed views on credibility without opportunity for submissions - hypothetical observer is informed, and does not look at matters in isolation - taking into account circumstances in which observations made and totality of what judge said, test not satisfied. D

Negligence - child born with brain damage - failure of obstetrician to attend when first called - condition of foetus deteriorates - delay in calling obstetrician again - inappropriate forceps delivery - nature and cause of brain injury - apportionment

EVIDENCE – Privilege – non-privilege documents communicated to lawyer for advice do not thereby gain privilege – COSTS – where solicitors unsuccessfully maintain claim of privilege in respect of former client’s documents

COURTS - Orders - Construction - extension of time for compliance - no question of principle

PROCEDURE [18] – Courts and Judges generally – Judges – Power to control proceedings – Miscellaneous powers – Representation of party to proceedings by layman - REAL PROPERTY [23] – General principles – Ejectment – Other matters – Circumstances in which judgment for possession will be given although affidavit as to occupiers not furnished.

SUCCESSION - Wills, Probate and Administration - Probate and letters of administration - Application to revoke probate, declare intestacy and appoint plaintiff administrator - Whether plaintiff a de facto spouse of deceased under Wills, Probate and Administration Act 1898, s 61B(3A)(a) and s 32G(1) - Whether in a de facto relationship within Property (Relationships) Act 1984, s 4 - Student living with woman 37 years his senior in a non-sexual relationship - Whether de facto relationships confined to non-married adults in heterosexual or homosexual romantic relationships.

SECURITY FOR COSTS - where application for further security - relevance of findings made on earlier application - whether Court ought to proceed on basis established by earlier decision unless material change of circumstances shown, or fresh evidence relied upon - whether undertakings by solvent plaintiffs in support of impecunious plaintiffs sufficient - where plaintiffs incorporated overseas - whether further security to be ordered when legislative scheme for reciprocal enforcement exists

CORPORATIONS [1208]- Managed investment schemes- Winding up of unregistered schemes- How effected- Proposed transfer of assets and liabilities to new scheme- Problems- Priority of costs among (1) court appointed investigating accountants (2) liquidator of Trustee and (3) liquidator of Scheme- Trustee of Scheme prima facie in breach of trust- Whether entitled to indemnity against assets.

Sentence - offences of murder and maliciously inflicting grievous bodily harm with intent to do so - Form 1 matters - one offender on conditional liberty - standard non-parole periods applied to each offence - pleas of guilty - one offender provided assistance to the authorities - parity

Approved medical specialist - demonstrable error - addressing wrong question - statutory requirements for certificate (including details of matters referred for assessment) - requirement that it addresses the matters relevant for assessment - appeal and role of registrar - the record.

PRACTICE AND PROCEDURE - claim by Deputy Commissioner of Taxation for outstanding income tax and administrative penalties - application for summary judgment - reliance upon notices of assessment in recovery proceedings - conclusive proof in those proceedings - application by defendants that judgment not be given and that proceedings be stayed pending consideration of complaints or objections concerning assessments to the Deputy Commissioner of Taxation - applicable principles on stay application - stay refused - summary judgment granted

Cyclists invited by council to use laneway to gain access to cycleway — blind spot at intersection of laneway and cycleway — fence to right of laneway and tree alongside cycleway as it curves to right — difficult for persons in laneway and cyclists on cycleway to see each other until reaching the curve itself — risk of collision obvious — intersection inherently dangerous and “trap” — duty of care owed — whether duty owed to person who fails to take reasonable care for his or her own safety — risk of collision could not be avoided if council’s invitation to use area is accepted — council not relieved of duty to take reasonable measures to guard against risk — appeal against liability dismissed.

Algae on concrete promenades giving access to council pool over many years because of council's inability to remove it — notice of frequent accidents, some serious — advice given to undertake remedial work — council decides to do nothing. - Presence of algae obvious — risk of serious injury from slipping on it not necessarily obvious — discharge of duty of care to persons invited to use promenades as access to pool required closure of promenades until remedial work completed — appeal against finding of liability dismissed — volenti not fit injuria defence fails — judge finds that plaintiff had not failed to take reasonable care for her own safety, but finds 15% contributory negligence — cross-appeal against contribution allowed. - Plaintiff had relevant pre-existing ailments — judge finds post-accident condition caused solely by accident — appeal against non-economic loss allowed — judge awards future gratuitous attendant care services on the same basis — appeal against award allowed.

NEGLIGENCE - highway - trip and fall on footpath - application for leave to appeal from judgment for plaintiff - consideration of - whether in fact obvious risk - whether issue under Civil Liability Act s.42 - financial and other allocation of resources - observations that reliance on CLAct s.42 or s.45 should be pleaded - on assessment of prospects of success on appeal, leave to appeal refused.

Defamation - separate trial of questions arising in statement of claim - whether matter complained of has capacity to convey imputations pleaded - whether imputations differ in substance - imputations to be pleaded as alternatives but not conjointly

PROCEDURE - stay of proceedings - where liability determined and hearing to take place on penalty - where High Court has heard appeal involving a question that could affect liability in this case - where the decision on liability proceeded on basis of law on that matter as stated by two intermediate appellate courts - where the issue had been discussed by the parties' representatives before the hearing on liability but no question of stay had then been raised - where appeal in any event initiated on question of liability - whether hearing on penalty should be stayed - CORPORATIONS - transition from Corporations Law to Corporations Act

defamation - whether binding agreementas to compromise of proceedings - parties intended to end proceedings and avoid unnecessary expenditure

defamation - internet publication - liability of defendant for publication of another - accessible website within school on equipment supplied by and property of defendant - whether plaintiff has pleaded sufficient facts which if proved would allow a jury to determine whether defendant consented to the publication

PRACTICE & PROCEDURE - subpoena to produce - issuing party's obligation, in principle, to pay reasonable expenses - whether court should make an order requiring payment of reasonable expenses, without quantification, before subpoena is complied with

defamation - proceedings also brought by plaintiff in another jurisdiction - plaintiff ordered to pay costs of proceedings on indemnity basis - costs not paid - power to order payment of security for costs under UCPR - inherent power of court to order security for costs - principles applicable - relevance of delay in application - explanation for delay - alternative application for stay of proceedings pending payment of ACT costs

COSTS - where successful party did not ultimately press its claim on one of several bases pleaded - no clear and distinct substantial severable issue - counsel and parties should not be discouraged by risk of adverse costs order from making responsible judgment not to press every basis of claim pleaded

PROCEDURE – Amendment – to introduce new, statute-barred cause of action – issues which arise on application for leave to amend – whether power to permit amendment – whether amendment futile - relation back of amendments – whether amendment which introduces new cause of action relates back – held, it does. PROCEDURE – Particulars – particulars relating to causation. TRADE PRACTICES – Remedies – Injunctions – Injunctions which affect party in respect of obligations to a third party – Whether court has power to grant injunction which requires party bound to exercise powers as a company director in a particular way – held, it does. WORDS AND PHRASES – “proceedings may not be taken”. WORDS AND PHRASES – “with respect to”.

defamation - internet publication - first plaintiff claims in defamation - second plaintiff claims in injurious falsehood - application for order that amended statement of claim be struck out - whether plaintiff required to plead whole of publication in which matter complained of appears - balance of what was on website now lost - capacity of imputations pleaded to defame plaintiff - form of imputations

Criminal Law - Sentence for child sexual assault offences - Crown appeal - sentences manifestly inadequate - respondent resentenced.

Conviction appeal - Supply of prohibited drugs - alleged agreement to supply drugs found in possession of accused on arrest - Crown case relied on agreement and deemed supply - whether duplicity - whether verdict unanimous - proviso - Sentence appeal - significance of standard non-parole period - inherent fact treated as aggravating feature

Sentence only - aggravated break enter and steal - parity considerations where co-offender sentenced by Childrens Court - relevance of four year difference in age between applicant and juvenile co-offender.

Crime - conviction appeal - robbery in company - miscarriage of justice - direction on a retrial - direction on joint criminal enterprise - incompetence of counsel - whether verdict unreasonable or unsupported - appeal on sentence - manifest excess - failure to find special circumstances - non reference to s.21A by that description

Defamation - Defences - Justification - Fair protected report - Fair summary of protected report - Comment

COSTS - costs of motion for summary judgment - costs for motion to strike out statement of claim - whether indemnity costs appropriate - self-represented litigant - claim in damages

Real Property - Easements - Rear lane privately owned but in common use for many years - Whether easements to allow rear lane access for access to parking for two properties should be granted under Conveyancing Act 1919, s 88K - whether easement “reasonably necessary” - nature of “use” of land - relevance of past use of lane - whether “not inconsistent with public interest” - discretion of court - adequacy and amount of compensation

EVIDENCE – Trial on affidavits – leave to adduce oral evidence in chief – where preferred evidence would raise new issue in defendant’s case which plaintiff would not have reasonable opportunity to investigate

FAMILY LAW - de facto relationships - application by one party for orders adjusting property interests - determination of when relationship began - determination of when relationship ended - determination of dates at which property to be valued - all property owned by defendant - values at various dates agreed - no agreement as to value of land in Queensland - consideration of different views of valuers called by the parties - no agreement as to value of land in Italy - no evidence from which court can decide value of land in Italy - such land left out of account - consideration of parties' respective welfare/homemaker contributions - consideration of plaintiff's claims to have made significant non-financial contribuitions to various businesses owned and operated by defendant - assessment of contributions - decision of what is just and equitable according to holistic value judgment

PRACTICE - subpoenaed documents - claim of confidentiality made - documents concerning which claim made disclosed to solicitors for party issuing subpoena - whether party producing documents to be directed to identify those documents concerning which it maintains its claim for confidentiality

[PRIVILEGE] Secured creditor agrees to fund litigation pursuant to Deed of Company arrangement - whether funder under implied obligation to keep communications with plaintiff's lawyers confidential - whether documents provided to the funder to ensure funding of litigation are privileged pursuant to s 118 and/or s 119 of the Evidence Act 1995 (NSW) - whether common interest between funder and plaintiff so that s 122(2) and s 122(4) of the Evidence Act 1995 (NSW) do not apply

[COSTS] No matters of principle

EVIDENCE - Admissibility and Relevancy - Whether the tender of an agreement to the terms of a deed of settlement and release agreed to after a mediation is governed by the Civil Procedure Act 2005, s 29(2) or the Supreme Court Act 1970, s 110P(4) and s 110P(5) - Whether the Civil Procedure Act 2005, Sch 6, cl 5(1) or cl 10(a) applies - Whether agreement on the deed occurred in the course of the follow-up of the mediation and hence during the mediation session as defined in s 110P(1) - Whether solicitor not instructed to agree to deed had ostensible authority to do so - Whether he should be relieved from mistake or misapprehension under Harvey v Phillips (1956) 95 CLR 235 at 243 - Whether case within first category in Masters v Cameron (1954) 91 CLR 353 at 360-361 - Whether discretion against ordering specific performance should be exercised

CORPORATIONS - winding up - directors' failure to provide report as to affairs and access to company's books and information - whether contravention of ss 530A and 530B should lead to declarations of contravention or mandatory orders - requirements for issue of warrant under s 530C - form of warrant

CORPORATIONS - statutory derivative action - leave previously granted for shareholder to represent company in defending certain litigation and pursuing cross claim - certain undertakings given to court by successful applicant and associate upon grant of leave to represent company - undertakings intended to protect company in respect of costs of the other litigation - other parties to the other litigation obtain therein costs order against company - those parties seek to be joined as defendants in the proceeding in which leave to represent company previously given - they foreshadow application as such defendants to enforce the undertakings - whether joinder should be ordered

CRIMINAL LAW: Sentence - sexual assaults

Numerous claims for relief ("omnibus litigation") - arising out of decisions made and other matters occuring during the period that the plaintiff has been a student with the first defendant - the need for pleadings and a definition of issues - judicial review - discretionary remedy - construction of university policy and rules - discrimination - trade practices - defamation - general attack to unearth error, mistake or inconsistency - lack of precision in articulation of claims - misconceived litigation - lack of evidence and basis for relief - alternative internal appeal procedure and discretion.

CRIMINAL LAW – appeal against conviction – sexual offences – person under the age of ten years – assault – acts of indecency – sexual intercourse – whether erroneous admission of evidence – whether miscarriage of justice occurred – probative value – unfair prejudice – erroneous directions – rule 4 – whether prejudice resulting from not being able to cross-examine – evidence of uncharged incidents – relationship evidence – context evidence – tendency evidence – propensity evidence – guilty passion – unreasonable verdicts – motive to lie – unreliability – inconsistency

CRIMINAL LAW - appeal arising from orders made - prohibition of disclosure of information - national security - whether appropriate balancing and weighing exercise - operational capacity of ASIO - dealings with witnesses - dealings with other intelligence and security services - protective orders - right to a fair trial - open justice - risk of unfair prejudice resulting from need to interrupt hearing and close the court - weight to be given to release of the transcript

CRIMINAL LAW - appeal against severity of sentence - importation of not less than the commercial quantity of heroin - extensive drug importation operation - case in the worst category - ongoing and open ended conspiracy to import heroin - whether a justifiable sense of grievance due to disparity with co-offenders - whether error in failing to take into account unavailability of remissions - whether sentence manifestly excessive - review of decisions in relation to serious drug importation offences

NEGLIGENCE – duty of care - duty of affirmative action between employees – failure to provide safe system of work – police officer leaving other police officer alone during traumatic event – posttraumatic stress disorder - breach of duty of care – past exposure to traumatic events does not prohibit finding of reasonable foreseeability - CAUSATION – tortious conduct a material contribution – whether multiple causes – whether loss divisible - whether injury would have occurred absent the tortious conduct - DAMAGES – assessment of damages for non-economic loss under s151G(2) of the Workers Compensation Act 1987 – refusal to use antidepressant medication prescribed by psychiatrist – failure to mitigate damages