Cases and authorities

Criminal Law - Trial practice and procedure - amendment of indictment during Crown case - whether resulted in a miscarriage of justice.

STATUTORY INTERPRETATION – Whether definition of “injury” covers vehicle-loading and unloading operations under the Motor Accidents Compensation Act 1919 (NSW) (“MACA”). - NEGLIGENCE - Whether compensation received as a result of a back injury suffered by employee removing heavy trailer ramp in confined space due to vehicle overhang after ramp had been used to load utilities onto a semi-trailer was governed by the statutory insurance scheme under MACA or by the statutory scheme under the Workers Compensation Act 1987 (NSW) – Whether injury caused by an unsafe system of work – Whether injury the result of and caused during the use or operation of a vehicle by a defect in that vehicle – Whether any defect in the vehicle in its use or operation – Discussion of causation. - PROCEDURE – Issue estoppel. - COSTS – Whether Bullock order should have been awarded

PROCEDURE - application for order striking out originating process where no supporting affidavit filed - only affidavit sworn some months later did not clearly articulate plaintiff's case - CORPORATIONS - procedure - where Corporations Act claims and general law claims advanced in single proceeding - whether two proceedings required - source of Supreme Court's jurisdiction in Corporations Act matters - whether proceeding in which Corporations Act relief claimed may include claim for other relief - PROCEDURE - costs - application for costs order against plaintiff's solicitors - whether costs incurred improperly or without reasonable cause in circumstances for which solicitors responsible

CRIMINAL LAW AND PROCEDURE - APPEAL AGAINST CONVICTION FOLLOWING PLEA OF GUILTY - CLAIM THAT PLEA WAS BASED ON FLAWED ADVICE NOT ON CONSCIOUSNESS OF GUILT - DISPUTE THAT CLAIMED ADVICE WAS GIVEN - EVIDENCE HEARD IN THE APPEAL AND REASONS FOR REJECTION OF APPELLANT'S CLAIM GIVEN - SENTENCE - NO ERROR IN ASSESSMENT BY PRIMARY JUDGE

CRIMINAL LAW AND PROCEDURE - SENTENCE - MURDER - SERIOUSNESS OF CONDUCT PUTTING OFFENCE INTO WORST CATEGORY - LIFE SENTENCE APPROPRIATE BUT FOR YOUTH OF OFFENDER AND PLEA OF GUILTY - ERRORS BY SENTENCING JUDGE - SETTING NON PAROLE PERIOD AND INDEPENDENTLY SETTING BALANCE TERM LONGER THAN EQUIVALENT OF ONE THIRD OF THAT PERIOD - TAKING INTO ACCOUNT PROSECUTION EXPENDITURE OF TIME AND EFFORT WHEN ASSESSING DISCOUNT FOR EARLY PLEA OF GUILTY - WHETHER LESS SEVERE SENTENCE SHOULD HAVE BEEN PASSED

CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand - allegations of genuine dispute and offsetting claim - originating process also includes claims for relief involving determination of the dispute and the offsetting claim - whether those claims may be advanced in the proceeding in which order setting aside statutory demand is sought

PRACTICE AND PROCEDURE - application by First Defendant for summary dismissal of proceedings - First Defendant entered into composition under Part X of the Bankruptcy Act 1966 (Cth) - whether claims by Plaintiff against First Defendant are provable debts under s.82 of the Act - whether claims fall within fraud exception in s.153(2)(b) of the Act - meaning of "fraud" in s.153(2)(b) - held that triable issues exist on these questions - application for summary dismissal refused

Criminal law - sentencing - armed robbery in circumstances of special aggravation - aggravated sexual intercourse without consent in company - whether sentencing judge erred in regarding particular features as aggravating criminality - whether sentencing judge erred in findings of fact - parity - whether sentences manifestly excessive

CRIMINAL LAW – Appeal – Against Conviction – s86(2)(b) of the Crimes Act 1900 – Detaining victim with intent to obtain advantage – Whether verdict unreasonable – Whether a circumstantial case on intent requires particulars of sexual intercourse to be separately supported by separate evidence - CRIMINAL LAW – Practice and Procedure – Whether complaint evidence properly admitted – Purpose for which evidence from a victim of attempted sexual assault as to what s/he believed was happening is admissible

application for leave to appeal against sentence - plea of guilty - whether plea of guilty taken into account - discount for utilitarian value of plea of guilty - break, enter and steal - prior criminal record - subjective circumstances - whether evidence of matters in mitigation was taken into account - remorse - prospect of rehabilitation - special circumstances - protective custody - accumulation of sentences - whether sentence manifestly excessive

Sentence only - s178BA offences - manifestly excessive

Criminal law - breaking entering and committing the serious indictable offence of robbery in circumstances of special aggravation - sexual intercourse without consent in company with deprivation of liberty - inciting complainant of sixteen years of age to commit an act of indecency - Criminal law - evidence of accomplice - whether direction to jury adequate - whether trial judge obliged to direct jury that evidence uncorroborated - Criminal law - Crown opening - in opening to jury Crown Prosecutor mistakenly misstated the effect of witness’ evidence - whether trial judge ought to have discharged jury - whether miscarriage of justice - Criminal law - whether evidence identifying appellant wrongly admitted - Criminal law - obligation of counsel objecting to admission of evidence to identify legal basis of objection and evidence relevant to that basis - Criminal law - whether prior inconsistent statements of Crown witness wrongly admitted - Criminal law - irrelevant evidence wrongly admitted - whether proviso should apply - Criminal law - remarks of Crown Prosecutor - whether miscarriage of justice - Criminal law - whether verdicts unreasonable and inconsistent with evidence - Criminal law - sentencing - whether sentencing judge erred in treating elements of offences as aggravating criminality - whether judge erred in finding circumstances aggravating criminality - Criminal law - sentencing - whether sentences increased beyond what was proportionate to criminality to extend period of protection of society from offender’s recidivism - Criminal law - sentencing - whether sentences manifestly excessive

Criminal law - juror complains about asserted out-of-court acts of accused - whether juror biased - whether complaint appropriately dealt with - Criminal law - whether juror biased - whether irregular to receive verdicts without further enquiry - whether miscarriage of justice - Criminal law - defence counsel prevented from cross-examining complainant on her general sexual experience - Crown Prosecutor submitted in closing that complainant appeared to lack sexual experience - whether miscarriage of justice - Criminal law - delay in complaint - whether substantial - whether warning required about effect of delay on accused's ability to defend themselves - Criminal law - whether convictions unreasonable and unable to be supported by the evidence

LOCAL GOVERNMENT – development consent – conditions – consent orders – whether breach – construction of development consent – use of premises – whether premises used for “storage” or other use – distinction between “storage” and “use” of transport vehicles - WORDS AND PHRASES – meaning – “storage”

Professional indemnity insurance - breach of duty by investment adviser - advice to invest in a third party's development - adviser had himself invested - was to receive fee of $50,000 and interest on his investment upon successful completion of development - whether had "entitlement or other financial interest" in "fund scheme arrangement or entity" in which he advised investment, within exclusion in policy - purpose to exclude cover when advice given in position of conflict - had entitlement or other financial interest in scheme being the development. ND

CORPORATIONS – As a result of a misunderstanding, plaintiff sought winding-up orders in breach of compromise reached with the defendant company – Winding-up orders made in absence of defendant company – Whether winding-up orders obtained through fundamental irregularity – Discretion to set aside winding-up orders – Section 482 of the Corporations Act 2001 (Cth) – Rules 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) – Whether applicant entitled to have winding-up orders obtained through fundamental irregularity set aside as of right – Whether applicant obliged to show solvency or arguable case of solvency to have winding-up orders obtained through fundamental irregularity set aside.

PROCEDURE - Supreme Court procedure - ECM court - Electronic case management systems - CourtLinkNSW - Hearing of proceedings before an ECM court - Hearings conducted in the absence of the public other than hearings conducted for the purpose of receiving oral evidence - Form of order

Application for specific performance of an agreement alleged to have been made at a meeting between the parties without the presence of their solicitors - whether binding agreement reached.

Review decision of Costs Assessor and Review Panel

Feud between families - property joint ventures - challenge to decisions of Local Court - the scope of the appeal - not a de novo review of magistrate's findings and the evidence - no error in point of law - no mixed question of law and fact - leave considerations.

Murder - Standard non-parole period

CORPORATIONS - arrangements and reconstructions - Part 5.1 scheme of arrangement between company and creditors - where scheme will cause liquidators to become first scheme administrators and provide for such administrators to be remunerated - where form of proxy made available to creditors contemplates that chairman of meeting may be appointed proxy - where earlier order requires one of liquidators to be chairman - whether prohibition on casting of positive proxy vote by person who will derive remuneration out of company's assets should be relaxed

CONVEYANCING [151] - Land titles under the Torrens system - Powers of Court - New South Wales - Order for cancellation of certificate of title and issue of new certificate - Circumstances in which order made for issue of new certificate of title.

PROCEDURE - where plaintiff's claims made out except in one respect so that proceedings must be dismissed - whether declarations in terms of intermediate findings should be made - PROCEDURE - costs - whether unsuccessful plaintiff should have costs order against successful defendant on issue-by-issue basis

PROCEDURE – Amendment – where amendment will raise new claim against party who has died since proceedings commenced, but where claim could be brought against estate in separate proceedings without leave – where new defence raises only a question of law – Pleading – where reply raises allegations of fraud which had been disallowed in amended statement of claim, after death of defendant – where those allegations are properly made in reply, death does not preclude their being raised – Separate questions – whether there should be separate inquiry as to compensation – where plaintiff will have to elect between remedies – Evidence – Notices to Produce – where it appears from documents and admissions that not all documents caught have been produced – “excluded document”

Speed camera - digital speed noted on photograph - no verification no. on photograph - no evidence to suggest speed noted on photograph wrong - Magistrate not bound to convict.

CONTRACTS - settlement negotiations for legal proceedings - whether solicitors for parties reached a concluded agreement

Criminal Law - Accused found not guilty on the ground of mental illness

WORKERS’ COMPENSATION [14], [230] – Entitlement to compensation – Persons entitled to compensation – Who is a “worker” or “employee” – Generally – Whether contract of employment with one employer terminated – Whether contract of employment entered into with new employer – Whether worker temporarily lent or let on hire – Whether lending established – Necessity for privity between lender and borrower.

TORTS – passing off – second, third and sixth defendants used plaintiffs’ business name and domain name – plaintiffs’ consent expired or withdrawn – whether plaintiffs entitled to sue in passing off – whether plaintiffs entitled to damages or an account of profits – whether fourth and fifth defendants liable as joint tortfeasors or accessaries – whether plaintiffs entitled to injunctions restraining further use of plaintiffs’ business name and domain name – whether plaintiffs entitled to order of re-transfer in relation to plaintiffs’ domain name - CONTRACTS – Interpretation – Implication of terms – Whether third defendant purchased domain name, internet protocol addresses and autonomous system number - TRADE & COMMERCE – misleading or deceptive conduct – defendants contended they purchased plaintiffs’ domain name, internet protocol range and autonomous system number – representations to this effect made to internet registrar – whether representations in breach of s 52 of the Trade Practices Act 1974 (Cth) – whether plaintiffs entitled to damages under s 82 or orders under s 87 of the Trade Practices Act - EQUITY – equitable remedies – second, third and sixth defendants used plaintiffs’ internet protocol range and autonomous system number – whether plaintiffs entitled to injunctions restraining further use of plaintiffs’ internet protocol range and autonomous system number – whether plaintiffs entitled to order for re-transfer - TORTS – conversion – detinue – defendants used plaintiffs’ domain name, internet protocol range and autonomous system number – whether rights to domain name, internet protocol range and autonomous system number are intangible property rights – whether plaintiffs entitled to sue in conversion for interference with intangible property rights - TORTS – conversion – detinue – second to fifth defendants used plaintiffs’ computer equipment – plaintiffs’ consent expired or withdrawn – whether second plaintiff entitled to sue in conversion where no proof of ownership – whether second defendant entitled to plead res judicata following dismissal of appeal from deed administrator’s rejection of proof of debt - CORPORATIONS – deeds of company arrangement – second defendant entered into deed of company arrangement – whether deed a defence to relief sought against second defendant – construction of s 444D of the Corporations Act 2001 (Cth) – effect of Part 5.3A of the Corporations Act - CONTRACTS –first plaintiff and fourth and fifth defendants made “in principle” agreement as to first plaintiff’s equity in proposed new company – whether parties negotiated binding contract – whether first plaintiff entitled to equitable relief notwithstanding the parties’ failure to negotiate valid contract – principles of equitable estoppel - DAMAGES – exemplary and aggravated damages – whether plaintiffs entitled to exemplary or aggravated damages against any defendant.

Criminal Law - Accused found not guilty on the ground of mental illness

[LEASES] - whether a permitted use of "warehousing and distribution" includes distribution by sale - definition of "warehouse or distribution centre" in a Local Environmental Plan - whether the plaintiff was in breach of its lease - whether s 129 of the Conveyancing Act 1919 applies to the lease - periodic tenancies - timing of assessment of "term" for the purposes of s 129(6) of the Conveyancing Act 1919 - injunctive relief

Separate determination of issues - bushfires

Criminal Law - Trial of child sexual offences - video-recorded evidence of deceased child witness admitted - whether admissible as "context" evidence - whether the evidence should have been rejected under s 137 - whether direction as to use to be made of the evidence appropriate - failure to give warnings re video-taped evidence.

LEGAL PROFESSION ACT 1987 - certification requirement under s198L(2) - certificate not provided - consequence of breach - whether proceedings void ab initio - whether failure to provide certificate can be cured by subsequent provision - whether s198L(2) is a condition precedent to commencement of proceedings - legislative purpose of s198L

CONTRACTS – Unjust contracts – Determination that a contract “unjust” – Appellate review – Nature of decision appealed from – Conclusion that “unjust” – Whether discretionary – Whether reviewable – Discussion – Contracts Review Act 1980, s7. - CONTRACTS – Unjust contracts – When contract “unjust” – Courts to apply contemporary standards of what is “unjust” – Court cannot be constrained by other decisions as if they were rules – Relevant circumstances – Where money borrowed for investment – Purpose of the loan– Lender’s indifference to purpose of loan– Lender’s failure to adhere to its own lending guidelines.

Parole - nature of proceedings before Parole Board - offender represented by solicitor - no attack made on certain factual assertions in report - whether Supreme Court should determine those facts - appropriate directions