Cases and authorities

CRIMINAL APPEAL - two offences - detain without consent with intent to obtain sexual gratification contrary to s 86(1)(b) of the Crimes Act and indecent assault - sentenced to a total non-parole period of four years with an overall sentence of six years imprisonment - submission that manifestly excessive rejected - commission of offence whilst on conditional liberty - offence serious requiring a significant sentence

Nuisance - claim for injunction to restrain - approval of development and drainage works in 1970s and 1990s - pipes discharged onto and at boundary of plaintiff's land - whether a nuisance - whether defendant liable for nuisance - in particular whether works without regard for landowner's interests - consideration of liability for works carried out under statutory power - whether defence by virtue of s 241 Local Government Act 1919 - whether "good faith" defence under s 733 Local Government Act 1993.

PROCEDURE - Costs - Husband's claim to division of shares and interests in trusts held by either or both of his wife and himself - Wife held one share in each of two companies with trust interests - Proceedings commenced in Supreme Court for declarations that wife held no beneficial interest in shares or trusts - Intervention in Family Court proceedings seeking similar relief - Husband consented to declaration in Family Court that wife had no beneficial interest in the shares or trusts - Offers to terminate Supreme Court proceedings including no orders except consequent upon an argument on costs rejected by husband - Cross claim filed by him alleging proceedings an abuse of process - Consent orders subsequently made granting leave to discontinue, dismissing the cross claims and standing over the question of costs - No principles involved

application for leave to appeal against severity of sentence - malicious wounding - assault occasioning actual bodily harm - pleas of guilty - whether sentences in total are manifestly excessive - whether offence justified a sentence near the statutory maximum - mental and emotional disorder and the sentencing process - sentencing disparities - concurrence of sentences - accumulation of sentences - aggregate of sentences manifestly excessive

Criminal Law - Sentence - Importation - offer of assistance refused by police - offer not recorded by police in statement - not known by prosecutor at sentencing hearing - whether there should be a discount for assistance.

LEGAL PRACTITIONERS – Removal from Roll – Professional misconduct – Unfitness, fame and character – Grounds for order – Obtaining money by deception – Misappropriation of moneys – Where orders consented to – declarations as to unfitness and professional misconduct made (ND)

Cross-claim - judgment obtained by plaintiff against State of NSW - cross-claim by State of NSW against police officer - application of Law Reform (Vicarious Liability) Act and Employees' Liability Act to cross-claim - apportionment.

TAXATION – Respondents appointed trustees for sale of land – Land was a development site containing a disused house – Respondents described sale as a taxable supply in contract – Beneficiary claimed sale was not a taxable supply and claimed equitable compensation for breach of trust – Whether trustees for sale carried on an enterprise – Whether sale was of residential premises to be used predominantly for residential accommodation and input taxed – A New Tax System (Goods and Services Tax) Act 1999, ss 9-5, 9-30, 40-65(1) considered. - TRUSTS AND TRUSTEES – Whether respondents acted with due care and diligence – Whether respondents acted in breach of trust – Respondents’ claim for remuneration considered.

Plaintiff contends the defendant has practised as a barrister without holding a current practising certificate - contravention of the Legal Profession Act - wilfully and without reasonable excuse - plaintiff seeking a declaration that the defendant is guilty of professional misconduct - plaintiff seeking an order restraining defendant from practising as a barrister in contravention of the Legal Profession Act - practice as a barrister - work or services provided by the defendant - whether the defendant gave legal advice - town planning advice - distinction between work or specialist barristers in areas of local government, planning and environmental law and that of town planners - Jones v. Dunkel inference - defendant and his wife were not called to give evidence - "must not practice as a barrister or solicitor"

CORPORATIONS - unregistered managed investment scheme - bank cheques delivered by would-be investors with view to entering into loan deed with operator of scheme - whether loan contract made - whether bank cheques or quarantined proceeds held by liquidators of operator on trust for would-be investors

PROCEDURE – Miscellaneous procedural matters – liberty to apply – liberty to apply is not a carte blanche to a party to apply without giving reasonable notice to the other of the relief to be sought.

PRACTICE AND PROCEDURE – jurisdiction of Industrial Relations Court (NSW) to hear appeal – alleged offence under s17 of the Occupational Health and Safety Act 1983 (NSW) – status of Inspector who institutes proceedings on behalf of WorkCover by ‘application for summons’- whether the Crown was a party to the proceedings - CRIMINAL APPEAL - appeal by prosecution - Full Bench assumed jurisdiction under s5F of the Criminal Appeal Act 1912 (NSW) - subsequent alternative view expressed by Full Bench of s5F – whether Full Bench should have reopened earlier decision - whether Full Bench had jurisdiction under Industrial Relations Act 1996 (NSW) and s5C of the Criminal Appeal Act 1912 (NSW) – whether information was ‘quashed’ – whether there was an application made under s4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) - whether the Full Bench had jurisdiction to hear the appeal – consideration of whether s179 of the Industrial Relations Act 1996 (NSW) precluded the relief sought

Criminal Law: Audio Visual links in Terrorism cases - Principles to be applied s. 15YV - Crimes Act (Commonwealth)

CORPORATIONS - directors and officers - disqualification - bankruptcy and related disabilities - application for leave to manage particular corporation - application supported by company's sole shareholder - responsible conduct by applicant - leave granted - conditions imposed

CORPORATIONS - winding up - proposed compromise by liquidator - whether relevant claim "debt" - no need to determine precise nature of claim - compromise proposed on advice of lawyers - liquidator in any event without funds - approval granted and direction made

Costs judgment

Succession. - Family Provision. - Claim by adult daughter. - Financial and material circumstances of Plaintiff. - Whether Plaintiff has been left without adequate provision for her proper maintenance. - Competing claims of other beneficiaries. - Statutory declaration by Deceased concerning reasons for her testamentary dispositions. - Nature of relationship between Plaintiff and Deceased. - Relevance of such relationship to Plaintiff's claim. - Only significant asset in estate is house property, which was left to Defendant. - Any order for provision in favour of Plaintiff will require sale of house property.

CORPORATIONS - winding up - application for termination of winding up - financial stability to be restored through deed of company arrangement - deed not operative until conditions satisfied - two conditions unsatisfied - application adjourned

CRIMINAL LAW - SENTENCING - offence under s23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) - Crown appeal under s5D(1) of the Criminal Appeal Act 1912 (NSW) - cultivation of large commercial quantity of cannabis plants - whether sentencing judge failed to impose an adequate sentence - role in the cultivation - determination of appropriate starting point for calculation of sentence - consideration of the manner in which the contents of a 'Form 1' should be taken into account - consideration of appropriateness of periodic detention - assistance provided to authorities - consideration of s23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) - whether mandatory considerations in s23(2) taken into account - whether sentence unreasonably disproportionate to the nature and circumstances of the offence

PROCEDURE [429] – Discovery and interrogatories – Discovery of documents – Generally – Release from implied undertaking – Court will not release undertaking save for special circumstances – Release for use in prosecution of serious criminal offences.

PROCEDURE - Supreme Court procedure - opposed application to vacate hearing date - basis of application is to enable plaintiff to take overseas holiday arranged after date was allocated - effect of Civil Procedure Act 2005 on such an application

Litigant in person in Local Court - rehearing - no entitlement to rehearing - validity of assignment not placed in issue - attempt to challenge its validity and the finding of the magistrate on appeal - evidence may have been led if placed in issue - amount involved not significant - not expedient or in the interests of justice to allow challenge to be agitated in the appeal - duty of court to litigant in person.

FAMILY LAW & CHILD WELFARE - Child welfare other than under Family Law Act 1975 – Adoption - Dispensing with consents of natural parents - Consent dispense order necessary in respect of non-citizen child - “reasonable inquiry” for the purpose of deciding whether to make consent dispense order - Where child relinquished for adoption at birth - Where anonymity conferred on parents by Korean procedures - Dispensing with consent of Korean guardian - Consent dispense order with respect to Korean guardian not required – Name - Given name - Where approval sought for name including additional (third) Anglo-Saxon forename - Whether additional forename is change of forename - Special circumstances

WILLS PROBATE AND ADMINISTRATION - s18A - document not complying with formal requirements of a will - where document not signed or dated - document not admitted to probate

appeal against conviction - jury verdict - malicious wounding - complainant shot in calf during fracas involving a number of men and the use of three guns - whether verdict unreasonable - tendency evidence - credibility of prosecution witnesses - whether evidence of unrelated ammunition in the appellant's home was admissible - evidence wrongly admitted - no miscarriage of justice arising - directions to jury on identification evidence - unreliable evidence - directions to jury as to "the real issues" - directions as to credibility

Criminal law - sentence - specially aggravated kidnapping - applicant's (Williams') offer to plead guilty - same sentence imposed on the applicant (Williams) and the co-offender - applicant (Williams) argued there should not have been a parity of sentences - whether sentence was manifestly excessive

Crown appeal - conviction by jury - maliciously inflicting grievous bodily harm with intent to do so - whether sentence manifestly inadequate - aggravating factors - victim a police officer - whether previous convictions amount to an aggravating circumstance - whether disregard to public safety an aggravating feature - whether actual use of a weapon is an essential element of offence - subjective circumstances - evaluation of objective seriousness of offence

application for leave to appeal against sentences - two counts of soliciting to murder - pleas of guilty - subjective circumstances - offences held to exceed mid-range of seriousness - prospects of rehabilitation - finding of special circumstances - relationship between the mental condition of the applicant and the commission of the offences - whether applicant's depression relevant to the sentencing process - objective seriousness of offences

plaintiff's claim for damages - Compensation to Relatives Act 1897 - death of patient following cardiac surgery - intensive care unit - cause of death - professional negligence - breach of contract - hospital - surgeon - intensive care specialist - career medical officer - adequacy of hospital staffing levels - whether surgeon under any obligation to ensure staffing levels adequate - whether intensive care specialist under any obligation to ensure staffing levels adequate - - failure of hospital staff to observe or act upon signs of blood loss - failure by career medical officer to observe or act upon signs of blood loss - failure of surgeon to observe or act upon signs of blood loss - vicarious liability of hospital - non-delegable duty of care - hospital not able to contract out of obligation to exercise due care and skill in provision of medical services to patient - hospital liable for negligent acts of career medical officer - - employment relationship between hospital and career medical officer immaterial - damages - prediction of earning capacity of deceased - likely career path - method of calculation of damages - potential earnings - services provided by deceased to family - dependency - life expectancy

Appeal from Magistrate - speed camera - meaning of text on photograph - mere question of fact - opinion as to identified vehicle - expertise required

EQUITY [99] – Trusts and trustees – Classification of trusts in general – Implied trusts – Resulting trusts – Where intention presumed – Rebuttal of implication – Intention to benefit – Evidence of common intention.

Appellate grounds raise matters not in issue before Local Court - challenge to adequacy of reasons - error in quantum of judgment - judgment entered in favour of defendant for lesser sum.

COSTS – CORPORATIONS – Members’ remedies – Oppression – Where director caused company to oppose winding up despite legal advice that it was inevitable – Court may make order requiring person to do a specified act under s 233(1)(j) Corporations Act 2001 – More comprehensive than normal costs under s 76 Supreme Court Act 1970 – Costs order made requiring director to indemnify company – Appeal against – Whether appeal lies as of right – Application of s 101(2)(c) Supreme Court Act requiring leave where appeal is as to costs only – Held not to apply to costs indemnity orders made under Corporations Act s 232.

NEGLIGENCE – commercial van used tyres with load carrying capacity below manufacturer’s specifications – whether issuer of safety inspection certificate breached its duty of care – whether issuer should have identified defect - TRADE PRACTICES – s42 of the Fair Trading Act 1987 (NSW) - whether the issuing of a safety inspection certificate constituted a representation that the vehicle was roadworthy in relevant respects – implied representation to owner only – representation temporally limited - DAMAGES – assessment of life expectancy – use of historic tables or prospective tables – whether a most extreme case under s79A of the Motor Accidents Act 1988 (NSW) – amounts paid under s45 of the Act – whether amounts should be reduced on account of contributory negligence

PROCEDURE [602] – Supreme Court Procedure – Practice under Uniform Civil Procedure Rules - Costs – Interlocutory proceedings – Costs in the cause – Interlocutory proceedings settled.

Confusion as to order made by magistrate in chambers - appeal from interlocutory order (to grant a stay of proceedings) brought out of time - alleged denial of natural justice and lack of reasons - extension of time and leave.

LEGAL PRACTITIONERS - costs - application for costs order against barrister and solicitor - s 198M of the Legal Profession Act 1987 (NSW) - discussion of determination that an appeal was "without reasonable prospects of success" - Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 applied. D

ADMINISTRATIVE LAW – challenge to development consent issued under Environmental Planning and Assessment Act 1979 (NSW) – measures taken to ensure pedestrian safety included in private deed between council and developer – measures did not constitute legally enforceable obligations – conditions imposed on development – whether conditions invalid for uncertainty – whether possibility of a significantly different development - whether conditions invalid for non-compliance with the s79C of the Act – whether there was a lack of time to consider the development application properly – whether the Council failed to apply its ‘collegiate mind’ to the application – whether the Council failed to consider the impact of the development upon the School - constructive failure to exercise the power

COSTS – delay filing affidavit evidence – delay preventing progress of trial – costs order not sought – reasons for costs order not given – order that plaintiff pay all respondent costs until affidavits served – whether costs order punitive – purpose of costs orders – principles

NEGLIGENCE - liability of occupier of private land - liability of employer - whether duty of care was breached - discussion of factors relevant to duty or to breach - whether defendants breached various statutory duties under the Construction Safety Regulations 1950 (NSW) - contributory negligence - availability of contributory negligence as a defence for a claim based on a breach of statutory duty - the extent to which Part 1A of the Civil Liability Act 2002 (NSW) is retrospective - s 5A of the Civil Liability Act 2002 (NSW) - INSURANCE - standing of an insurer on appeal to argue issues between a plaintiff and an insured defendant that could result in the insurer being liable to provide an indemnity - whether insureds breached conditions of the insurance policies - STATUTES - effect of s 22 of the Occupational Health and Safety Act 1983 (NSW) on the application of Division 1 of that Act to civil claims. D

PRACTICE AND PROCEDURE – Whether relevant limitation period suspended – Limitation Act 1969 (NSW) s11 and s18A - Whether evidence absent that relevant disease or impairment of opponent’s mental condition existed for a continuous period of 28 days or upwards having regard, inter alia, to his close involvement in litigation - whether nature of disability sufficient to suspend limitation period - Whether evidence sufficient in relation to physical disability to satisfy s11(3).

BAILMENT [13]- Negligence- Bailee's duty to take reasonable precautions against theft- Whether breach of the hire purchase agreement terminates bailment. BIAS [5]- Judges- Undisclosed communication between counsel and judge pending delivery of reserved judgment.

NEGLIGENCE – liability – Employee suffered back injury manoeuvring heavy pallets on the back of truck - Claim against contractor/ occupier of premises (claim against employer settled) – Whether reasonable to expect contractor/occupier would not create situation for unloading that might foreseeably pose risk of injury and would assist in that unloading notwithstanding that no request was made by the injured plaintiff to do so – causation – whether award of damages excessive.

Public interest community claims - supboena - setting aside - legitimate forensic purpose

National Security Information (Criminal and Civil Proceedings) Act 2004 - National security - Public Interest Immunity - Appointment of Special Counsel to assist in assessment of claims

Administrative law - s 63(3) Motor Accidents Compensation Act 1999 - non referral to review panel - no reviewable error established.

Contract - construction of terms of contract and its variation to determine amount of rent payable. - Penalties. Held that clauses merely provided for payments of past monies due and thus not a penalty. - Discharge. Did various breaches give a right to terminate? Whether such breaches were waived. - Damages. Whether a claim for damages for loss of bargain in respect of a lease arose. - Landlord and Tenant. Construction of use and occupation covenants. - Termination of Tenancy. Whether there was a surrender of sub-lease and creation of new tenancy as a result of sub-tenant deciding to pay half the holding over rent. - Guarantee and indemnity. Discharge of surety. Failure to include a term required by the principal contract to be included in a guaranteed sub-lease discharged surety. Held that it did. - Indemnities. Whether indemnity responded to situation where the need for indemnity arose from a breach of contract by the person entitled to the benefit of the guarantee. Held that it did not. - Construction of term of operation of guarantee.