Criminal law - Sentence - Culpable driving causing death - Whether sentence manifestly excessive.

Criminal law - Murder - Sentence - Elderly offender in poor health - Whether minimum term crushing - Sentence not manifestly excessive.

Building contracts - Standard form contract - Construction - Sub-contractor - No formally executed sub-contract - Progress claims - Formal requirements - Evidence in support of claims - Contract superintendent's reasonable requirements - Proprietor terminating head contract - Main contractor terminating sub-contract - Sub-contractor's action to recover unpaid claims - Main contractor unconditionally admitting existence of sub-contract - Sub-contractor applying for summary judgment - Main contractor seeking to amend defence to plead in the alternative that no sub-contract existed - Leave to amend refused - Incontrovertible facts concerning main contractor's conduct - Effect of suspension of payments - Obligation to issue payment certificates for progress claims - Main contractor's entitlement to equitable set-off for damages for delay and defective workmanship - Desirability of consistency of judicial decisions on standard contract terms - Whether triable issue of law and/or fact - Whether appellate court should resolve complex question of law rather than grant leave to defend without so doing - Australian Standard Contract 4303-1995 cll 42 44

Companies - Preference shares - Selective buy-back - Scheme of arrangement making buy-back compulsory - Special resolution - Meeting - Notice - Voting rights of preference shareholders - Some members holding both preference shares and ordinary shares - Statutory prohibition on a person whose shares were proposed to be bought back voting in favour of buy-back resolution - Whether such a person entitled to vote against resolution - Company's articles giving preference shareholders limited voting rights - Whether resolution contained a proposal to reduce company's share capital - Corporations Act 2001 (Cth) ss 257D 258E.

Criminal law - Sexual offences against children - Evidence - Evidence of complainant only direct evidence of commission of offences - Whether verdicts of guilty on some counts and not guilty on other counts inconsistent - Judge not required to direct jury that doubt as to evidence of complainant in relation to one or more counts must be taken into account in respect of other counts.

Landlord and tenant - Lease - Construction - Option to renew - Condition - Consent of lessor - Statutory authority - Lease of hotel motel on public land - Lessee taking assignment near end of 25-year term - Improvements effected by lessee - Discussions between representatives of lessor and lessee as to future of lease - Lessee's expectation that lessor would consent to exercise of option - Lessee exercising option - Consideration - Promissory content of option - Whether illusory - Time for assessment of consideration - Whether lessor's conduct tantamount to consent - Estoppel - Whether lessor estopped from refusing further term - Implied term - Whether lessor's failure to consent constituted breach - Whether lessor failed to act in good faith - Water Act 1958 (No 6413) ss 33 206A - Water Act 1989 (No 80) ss 1 107(3) 123 132

Criminal law - Defrauding the Commonwealth - Manufacture of tobacco on which excise duty not paid - Conduct of business of manufacturing tobacco over a period of time properly the subject of one count of defrauding the Commonwealth - Crimes Act 1914 (Cth) s 29D - Sentence.

Criminal law - Murder - Circumstantial evidence - Lies as evidence of consciousness of guilt - Whether directions regarding the approach which the jury should take to accused's evidence were unfair - Whether judge's directions concerning circumstantial evidence were unfair - Appeal - Defence of mental impairment not available where not raised prior to nor on appeal - Crimes Act 1958 (No 6231) s 569(4) - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (No 65)

Discrimination - Equal opportunity - Indirect discrimination - Attribute - Parent and carer - Employment - Hansard sub-editor - Requirement to attend work when Parliament in session - Employee desiring to work at home temporarily to care for sick child - Proposal to install modem line and fax machine in employee's home - Proposal not implemented - Resignation of employee - Reasonableness of requirement to attend at Parliament House - Whether reasonable alternative available - Whether alternative equally suitable to achieve desired end - Assessment on a general basis - Failure of impugned requirement to allow for exceptions not determinative - Reasonableness usually a question of fact - Error of law - Tribunal misdirecting itself - Equal Opportunity Act 1995 (No 42) ss 9 14

Criminal law - Sentence - Attempted armed robbery - Hospital security order - Procedure to be followed in making order - Sentencing Act 1991 (No 49) s 93(1)(e) 93(3)

Companies - Administration - Deed of company arrangement - Creation of fund for distribution to specified claimants - Claims for damages for personal injury - Lost earnings - Lost earning capacity - Payment of social security benefits to claimants - Double compensation - Statutory scheme for recovery of benefit payments - Whether payment of claims originating from personal injury claims constituted "compensation" - Social Security Act 1991 (Cth) s 17(2).

Criminal law - Sexual offences against child - Whether trial judge's interventions such as to cause trial to miscarry - Delay in complaint - Full Longman warning not required - Sentence.

Bankruptcy and insolvency - Companies - External administration - Administrator - Removal - Conduct of administrator - Failure to act independently - Lack of impartiality - Administrator's primary motive to secure deed of arrangement - Creditors' first meeting held at offices of solicitors who were themselves creditors - Creditors questioning administrator - Administrator permitting himself to be prompted by representative of solicitors who were also creditors - Failure to carry out duties properly - Administrator purporting to preside over creditors' meeting by telephone - Failure to carry out investigation of company's affairs - Power of court to terminate administration and wind up company - Whether administration should continue or a winding up order should be made - Legislative objects - Public interest - Corporations Act 2001 (Cth) ss 435A 438A 447A

Criminal law - Motor vehicles - Road safety - Breath test and blood alcohol content - Requirement to accompany a police officer to a police station or other place - Belief required of police officer - Police officer must state ground which justifies requirement - Road Safety Act 1986 (No 127) ss 48(1)(b) 49(1)(a) 49(1)(b) 49(1)(e) 55(2)

Taxation - Payroll tax - Exemption - Small business - Grouping - Employers constituting a group - Employee employed solely or mainly to perform duties for or in connection with a business carried on by another person - Service company providing financial and ancillary management services to retail stores - Whether small business exemption applicable - Cross-appeal - Whether leave required - Whether order final or interlocutory - "Business" - Whether singular included plural - Whether contrary intention evinced - Pay-roll Tax Act 1971 (No 8154) s 9A(1A)(c) - Interpretation of Legislation Act 1984 (No 10096) s 37(c) - Supreme Court Act 1986 (No 110) s 17A(3A)(a) 17A(4)(b).

Criminal law - Evidence - Sexual offences against child - Corroboration - Nature of corroborative evidence - Whether corroborative evidence should have been subject to a propensity warning - Sentence - Sentences disproportionate to gravity of offending - Sentencing Act 1991 (No 49) ss 6D 6E.

Criminal law - Sentencing - Obtaining financial advantage by deception and obtaining property by deception - Offender incomplete paraplegic - Whether imprisonment more burdensome due to disability - Criteria to be applied in determining hardship.

Criminal law - Murder - Mental impairment - Evidence - Expert evidence - Conflicting opinions of expert witnesses - Directions as to consideration by jury of conflicting expert evidence - Application of common sense by jury - Sentence - Sentence not manifestly excessive - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (No 65) ss 20 21 25

Criminal law - Murder - Manslaughter - Aiding and abetting - Jury directed on manslaughter by concert as alternative to murder - Whether jury should have been directed on manslaughter by aiding and abetting.

Accident compensation - Transport accident - Benefits - Disability service - Attendant care - Hospital in-patient - Care provided by parent - Overlap with "hospital service" - Whether compensable - Transport Accident Act 1986 (No 111) ss 3 23 60

Accident compensation - Transport accident - Benefits - Rehabilitation service - Long-term accommodation - Paraplegic victim - Special needs - Additional bedroom - Increased rental costs - Whether compensable - Whether "accommodation support" - Transport Accident Act 1986 (No 111) ss 3 23 60

Factories, shops and industrial safety - Employer's obligation to provide and maintain so far as practicable a safe and risk-free working environment - Employer's obligation to provide adequate facilities for welfare of employees - Carbon monoxide poisoning - Employees reporting symptoms - Employer suggesting carbon monoxide poisoning as possible cause of symptoms - Employer giving employees option to continue working after rest break or to go home if symptoms persisted - No provision of first aid or medical treatment - No provision of transport home - Whether failure to provide "adequate facilities" - Companies - Liability of company officer - Offence for officer to consent to company's commission of offence - Requisite state of officer's knowledge of material circumstances - Whether "consent" by officer to company's commission of offence - Occupational Health and Safety Act 1985 (No 10190) s 21(1) 21(2).

Factories, shops and industrial safety - Offences - Procedure - Authority to prosecute - Requirement of written authority - General or particular authority - Adequacy - Particular authority referring only to section under which charge brought - Whether a particular authority had to specify conduct alleged to amount to offence - Occupational Health and Safety Act 1985 (No 10190) s 48(2).

Equity - Unconscionable dealings - Guarantee - Right to set aside - Family relationships - Bank - Loan for speculative share trading - Inherent risk - Surety a volunteer - Associated mortgage security - Debtor and surety - Nature of relationship - Trust and confidence - Scope of recognised categories - Whether limited to intimate family relationships - Bank's obligation to warn surety of risk - Whether bank had requisite knowledge or put on inquiry - Whether surety in position of special disability or disadvantage - Whether special disability known or evident to bank - Surety able to read but not write English and having extensive commercial experience - Surety misled by debtor - Bank obtaining signed acknowledgment of risky nature of speculative transaction - Enforcement of guarantee and mortgage not unconscionable.

Criminal law - Evidence - Sexual offences - Admissibility of similar fact evidence - Test of admissibility - Directions to jury as to use of similar fact evidence - Accused charged with sexual offences against four street prostitutes over a one month period - Direction as to unanimous verdict - Fraudulent procurement - Whether verdict unsafe or unsatisfactory - Crimes Act 1958 (No 6231) s 398A - Juries Act 2000 (No 53) s 46

Criminal law - Sentencing - Restitution order - Stolen parts affixed to motor vehicle - Order that parts be restored by unencumbered transfer of motor vehicle - Person in whose favour order made changing its position without notice of proposed appeal - Leave to appeal refused - Crimes Act 1958 (No 6231) ss 566 567(d) 568(4) 570 572 - Sentencing Act 1991 (No 49) s 84 - Interpretation of Legislation Act 1984 (No 10096) s 45

Criminal law - Murder - Evidence - Accessory after the fact - Whether accomplice warning required - Evidence wrongly admitted that accused had affair with under age girl - Appeal against conviction - Miscarriage of justice and substantial miscarriage of justice - Criterion for application of proviso - Sentence not manifestly excessive - Crimes Act 1958 (No 6231) s 568(1)

Criminal law - Sentencing - Culpable driving causing death and causing serious injury negligently - Whether evidence of events subsequent to sentencing admissible to show sentencing error - Sentence not manifestly excessive.

Testator's maintenance - Application - Grandchild - Ex-nuptial child of testator's son - No provision made for grandchildren - Requirement of moral obligation - Uncertainty as to whether testator knew of grandchild's existence - Application to strike out as not disclosing a cause of action - Whether summary judgment available - Whether cause of action disclosed - Administration and Probate Act 1958 (No 6191) s 91(1) 91(4) - Supreme Court Rules Ch I r 23.01(1).

Testator's maintenance - Application - Procedure - Discovery - Claim by grandchild - Ex-nuptial child of testator's son - No provision made for grandchildren - Requirement of moral obligation - Beneficiary/executrix not disclosing financial position - Whether plaintiff entitled to discovery concerning beneficiary's financial position and benefits received during testator's lifetime - Requirements of relevance and special circumstances - Whether statutory entitlement criteria codified pre-existing law - Administration and Probate Act 1958 (No 6191) s 91(4) - Supreme Court Rules Ch I rr 9.08 29.07(2) - Supreme Court Rules Ch II r 16.07

Stamp duty - Conveyance or transfer of real property - Assessment - Valuation of property - Sale of hotel business and goodwill - Purchaser taking assignment of lease - Expiry of lease - Tenant holding over - Ensuing dispute between owner and tenant compromised - Owner agreeing to sell hotel premises to tenant - Tenant thereafter holding equitable estate in fee simple - Legal effect of transfer of land - Ownership of business not thereby transferred - Consideration for transfer less than the market value - Whether valuation of property should disregard value of business and value of goodwill - Stamps Act 1958 (No 6375) s 63(3)(b)(i)(B)

Contract - Agency - Real estate agent - Exclusive sale authority - Standard form - Agent's fees - Handwritten clause that fees to be "3% of the selling price subject to completion of a sale" - Authority containing standard clause that, if purchaser did not complete sale, commission was to be paid out of forfeited deposit - Sale not completed - Owners reselling property through another agent - First agent's claim for commission - Whether obligation to pay commission had arisen - Whether "subject to completion of a sale" affected right to commission or merely time for payment.

Accident compensation - Workers compensation - Serious injury - Common law proceeding for damages - Application for leave to bring proceeding - Entitlement to damages conditional upon date of injury - Injuries occurring on or after 1 December 1992 - Whether precondition to grant of leave to bring proceeding - Accident Compensation Act 1985 (No 10191) s 135A(2) 135A(4)(b) 135A(6) 135A(19)

Evidence - Admissibility - Discretion - Manner of giving of evidence - Personal injuries litigation - Surveillance film of plaintiff - Cross-examination of plaintiff - Defendant seeking to show film to plaintiff - Defendant declining to provide dates on which plaintiff was subjected to surveillance - Defendant declining to provide film maker for cross-examination - Ruling refusing showing of film to plaintiff - Whether trial judge's discretion miscarried - Whether person depicted in film or person who made film was "maker of the statement" - Evidence Act 1958 (No 6246) s 55(1)(a)

Taxation - Land tax - Owner - Aggregation of land holdings - Trusts - Land held as asset of unit trust - Unit holder's interest in the assets of the trust - Trust deed vesting beneficial interest in the trust assets in the unit holders for the time being - Sole unit holder - Power to bring trust to an end and appropriate assets - Trust established for finite period - Trustee's right to indemnity from trust assets - Whether sole unit holder had "any estate of freehold in possession" - Land Tax Act 1958 (No 6289) ss 3 8 51 52

Taxation - Land tax - Owner - Aggregation of land holdings - Related corporations - Trusts - Land held as asset of unit trust - Unit holder's interest in trust assets - Sole unit holder - Power to bring trust to an end and appropriate assets - Trust deed vesting beneficial interest in trust assets in the unit holders for the time being - Trust established for finite period - Trustee's right to indemnity from trust assets - Whether sole unit holder had "any estate of freehold in possession" - Whether so of one of two unit holders - Land Tax Act 1958 (No 6289) ss 3 8 44 45 51 52

Criminal law - Practice and procedure - Jury empanelment - Juror excused after whole jury sworn - Juror replaced - Fundamental irregularity - Juries Act 2000 (No 53) Pt 6

Trust and trustees - Testamentary trust - Trustees - Right of indemnity out of trust property - Breach of trust claim by life tenant - Agreement between life tenant and remainderman - Life tenant claiming to be entitled absolutely to residuary estate - Trustee refusing to comply with life tenant's direction to transfer estate - Life tenant applying for vesting order - Trustee entitled to rely on indemnity over trust property for costs of defending other hostile proceeding - Trustee Act 1958 (No 6401) s 51

Practice and procedure - Documents produced under coercion - Discovery - Witness statement - Answers to interrogatories - Document containing legal advice - Implied undertaking not to use documents except for purposes of litigation - Rationale of undertaking - Plaintiff's interlocutory application to strike out defence - Defendant's discovered documents tendered in evidence against defendant - Whether implied undertaking brought to an end - Documents created for use at trial - Tender for different purpose - Collateral purpose - Plaintiff's later application for release from implied undertaking - Criteria - Defendant's application for order restraining breach of undertaking.

Evidence - Privilege - Legal professional privilege - Waiver - Imputed waiver during interlocutory proceeding - Whether waiver limited or general.

Accident compensation - Transport accident - Entitlement to bring common law action for damages - Pre-conditions - Requirement that there be an impairment assessment - Requirement that injury be a serious injury - Pre-conditions not satisfied - Injury resulting from transport accident - Injury exacerbated by subsequent surgical treatment - Action against surgeon for alleged negligence - Whether action barred - Whether further injury "a result of a transport accident" - No break in chain of causation - Transport Accident Act 1986 (No 111) ss 3(1) 3(3)(c) 93(1) 93(2)

Trust and trustees - Trustee - Powers - Power to amend trust deed - Exercise - Validity - Employer-sponsored superannuation fund - Amendment not to detract from members' secured benefits - Trust deed entirely replaced by subsequent deed - Replacement deed omitting provisions of earlier deed allowing application of surplus funds - Purported repeal partially ultra vires - Severance - Continuing application of non-repealed provisions - No continuing fund members - Former fund members paid - Surplus in fund - Whether fund had been dissolved - Allocation of surplus under non-repealed provisions - Inconsistency between original and replacement deeds - Earlier provisions prevailing.

Real property - Torrens system - Subdivision - Common property - Title - Body corporate - Unlimited - Proposed plan of re-subdivision of one lot - Creation of additional common property within proposed new lots - Creation of new body corporate - Limited - New common property available only for use by new body corporate members - Registrar of Titles - Refusal to register proposed plan - Reasons for refusal - Whether plan altered boundaries of existing common property - Whether proposed new common property vested in limited or unlimited body corporate - Whether consent of existing lot owners required - Municipal certificate of compliance - Conclusiveness - "Alter the boundaries of the common property" - Competing plausible interpretations of complex statute - Legislative history - Legislative policy - Whether particular interpretation productive of absurd result - Subdivision Act 1988 (No 53) ss 4(1)(d) 5 6 13 22 27 28 32(1) 32(3) 32B - Transfer of Land Act 1958 (No 6399) ss 105 116

Wills and codicils - Validity - Caveat - Testamentary capacity - Criteria - State of testatrix's comprehension - Nature and effect of dispositions - Extent and character of property - Claims on testatrix's bounty - Elderly testatrix - Requirement of vigilant examination where evidence in doubt - Will made in 1987 leaving bulk of estate to testatrix's younger brother and residuary estate to nephews - Will made in 1990 excluding nephews and leaving residuary estate to parochial church - Probable mild dementia at time of execution of later will - Testatrix increasingly physically dependent on brother - Brother assisting testatrix in making will - Brother predeceasing testatrix - Challenge by nephew to validity of later will - Testamentary capacity established by propounder - Whether undue influence exerted by brother - Claim that testatrix dominated by brother - Caveator's circumstantial case not made out.

Practice and procedure - Pleading - Strike-out application - Delayed application - Building and engineering design contracts - Offshore oil drilling facility - Joint venture bid for contract - Pre-bid preparatory design contracts between joint venturers - Joint venture bid successful - Building contract carried out by one joint venturer - Claim by that joint venturer against other joint venturers - Extra costs incurred in performing main contract - Global claim - Inherent weaknesses of total cost claims - Causal nexus between breach of contract and loss not properly pleaded - Claim for damages for negligent performance of contract - Pleading misconceiving differing nature of concurrent duties in contract and tort - Claims for damages for negligent mis-statement - Particulars of falsity - Misconception requiring re-pleading - Particulars of loss and damage - Claim for damages under ss 52 and 53(aa) of the Trade Practices Act 1974 (Cth) - Causal nexus not pleaded.

Practice and procedure - Case management - Specialist lists - Pleading - Purpose - Form - Particulars - Practice - Building Cases List - Complex building project - Complex dispute - Permissible use in pleadings of schedules and subschedules of particulars - Nature and functions of judge in charge of specialist list - Minimising the burden of litigation.