ANNUAL REVIEW 2004

Supreme Court of New South Wales ISSN 1321-4586, Sydney 2005 CONTENTS

FOREWORD BY CHIEF JUSTICE OF NSW 2

1 2004: AN OVERVIEW • Notable judgments 4 • Court operations 4 • Education and Public Information 4 • CourtLink and Uniform Civil Procedures legislation update 4 • Consultation with Court users 4 • Other judicial activities 4

2 COURT PROFILE • The Court’s jurisdiction and Divisions 6 • Who makes the decisions: the Judges, 10 Masters and Registrars - The Judges 10 - Appointments, Retirements and Resignations 12 - The Masters 12 - The Registrars 12 • Supporting the Court: the Registry 14

3 CASEFLOW MANAGEMENT • Overview by jurisdiction 16 • Regional sittings of the Court 21 • Alternative dispute resolution 22

4 COURT OPERATIONS • Time standards 24 • Overview of operations by jurisdiction 24

5 EDUCATION & PUBLIC INFORMATION • The Supreme Court of NSW Annual Conference 28 • Judicial officer education initiatives 28 • The role of the Public Information Officer 29 • Pro Bono Scheme 29 • The Court’s public education programme 29

6 OTHER ASPECTS OF THE COURT’S WORK • CourtLink 31 • Law Courts Library 31 • Admission to the Legal Profession and appointment of Public Notaries 32 • Admission under the Mutual Recognition Acts 34 • Administration of the Costs Assessment Scheme 34

7 APPENDICES i. Notable judgments - summaries of decisions 36 ii. Court statistics - comprehensive table of statistics 53 iii. The Court’s Committees and User Groups 58 iv. Other judicial activity: Conferences, Speaking 64 Engagements, Publications, Membership of Legal and Cultural Organisations, Delegations and International Assistance, and Commissions in Overseas Courts

1 FOREWORD BY CHIEF JUSTICE OF NSW

This Review provides information of the Court’s The full detail of the court’s contribution exists stewardship of the resources made available to it. in the volume of documentation produced - The primary measure of the Court’s activity must encompassing tens of thousands of pages be qualitative: fidelity to the law and fairness of its of judgments and hundreds of thousands of processes and outcomes. This Review sets out in pages of transcript. The bald figures of filings, short summary a few of the cases decided in the disposals and pending caseload upon which year 2004. They are a small sample of the 2,000 this Review reports cannot reflect the richness or so separate substantive judgments delivered by that is contained in the considerable volume the 51 judicial officers of the Court. of documentation which the court’s judicial officers and registrars generated in the course of the year. The Review also contains information of a quantitative kind relevant to the efficiency with Nevertheless, some indication of the contribution which the Court deals with its caseload and the made by the court and the effectiveness and speed with which litigants have their disputes efficiency of its procedures can be gleaned from resolved. the Review. I am quite confident that during 2004 the Court operated at as high a level as it has The judicial officers and the staff of the Court take ever done. a collective pride in the substantial contribution which the Court makes to social stability and the economic prosperity of this State. Without the rule J J Spigelman AC of law, administered by judges with a high level of independence, impartiality and integrity neither personal freedom nor economic progress would be possible. Participants in the legal system, both judges and practitioners, are well aware that its efficacy depends on the high level of trust that the public has in the operations of the courts. Public confidence in the administration of justice cannot be taken for granted. It is a trust which must be continually earned so public confidence can be continually replenished. The manner in which that trust has been earned during the course of this year has depended on the participation by members of the public in the entire process of the administration of justice, whether as parties, witnesses, or jurors. That participation cannot be adequately reflected in a Review of this character.

2 1 2004: AN OVERVIEW

• Notable judgments

• Court operations

• Education and Public Information

• CourtLink and Uniform Civil Procedures legislation update

• Consultation with Court users

• Other judicial activities Notable judgments CourtLink and uniform civil procedures During 2004, the Court of Appeal handed down legislation update 478 judgments, and the Court of Criminal Appeal The CourtLink system is a significant development delivered 475. At first instance, a total of 1,288 for the Court. The NSW Attorney General’s judgments related to the Court’s criminal and civil Department is managing the project in close trial work. Some judgments were particularly consultation with the Court’s Judges and staff to notable, either for their contribution in developing ensure that CourtLink delivers improved services the law, their factual complexity, or the level to Court users. A single system – CourtLink – with of public interest they generated. Summaries linked databases for each NSW Court of a selection of these judgments appear in jurisdiction, will mean greater ease of access for Appendix (i) to this Review. Court users. Implementation of CourtLink will enable time standards to be adopted for all of the Court operations Court’s work. The Attorney General’s Department The avoidance of excessive delay remains a also worked closely with the Court during priority for the Court. The Court’s efficiency was 2004 in drafting legislation designed to increase subject to some media and public scrutiny in cross-jurisdictional uniform civil processes. 2004. In most areas of its work, the Court has Further details about the Court’s involvement in either been able to consolidate upon gains the CourtLink and uniform civil procedures achieved in recent years, or at least maintain its projects during 2004 can be found in the chapter position. However, some areas could not realise Other aspects of the Court’s work. their expected outcomes during 2004 or improve upon their achievements in 2003. The Court Consultation with Court users operations chapter outlines the specific time In 2003 the Court continued to work closely standards set by the Court, and provides with Court users through a number of different detailed analysis of the results achieved in processes. Registry managers and staff met each jurisdiction. This chapter should be read in regularly with different groups of Court users and conjunction with Appendix (ii) which contains also attended meetings with the legal profession comprehensive statistical data regarding the and justice agencies. A number of Court Court’s caseload during 2004. committees seek to improve the Court’s systems and procedures to give effect to suggestions Education and public information made by Court users. A list of the Court’s The Court organised several conferences and Committees and User Groups forms Appendix (iii) seminars during the year for its judicial officers to this Review. that aimed to enhance awareness of recent developments in the administration of justice Other judicial activities domestically and abroad. The Public Information The Judges of the Court participate in a wide Officer provides reliable information about range of activities other than the administration of contentious issues or proceedings before the justice, including judicial education, speeches and Court to the media and thus the community. the publication of articles and books (generally In addition, regular court talks delivered by on legal matters), and involvement in a wide range Registrars provide student and community groups of community organisations. The practices, with a unique insight into the work of the Court procedures, structures and systems of NSW and its place in the State’s legal system. The new courts are of interest to court officials in other chapter Education and public information details countries, especially those in the Asia-Pacific the Court’s judicial education and public region. The Court’s Judges are committed to information programme during 2004. providing appropriate assistance within the region, as evidenced by the delegations hosted by the Court and the international work undertaken by the Court’s Judges. Such other judicial activity is set out in Appendix (iv).

4 2 COURT PROFILE

• The Court’s jurisdiction and Divisions

• Who makes the decisions: the Judges, Masters and Registrars

• Supporting the Court: the Registry THE COURT’S JURISDICTION AND DIVISIONS

The Supreme Court of New South Wales: Court of Appeal our place in the court system The Court of Appeal is responsible for hearing The court system in New South Wales is appeals in civil matters against the decisions of the structured on a hierarchical basis. The Supreme judicial officers of the Supreme Court, other courts, Court is the superior court of record in New South commissions and tribunals within the State, as Wales and, as such, has an inherent jurisdiction prescribed in the Supreme Court Act 1970. in addition to its specific statutory jurisdiction. The Supreme Court has appellate and trial Court of Criminal Appeal jurisdictions. The appellate courts are the: The Court of Criminal Appeal hears appeals from • Court of Appeal, and criminal proceedings in the Supreme Court, the • Court of Criminal Appeal. Land and Environment Court, the District Court and the Drug Court, challenging convictions or The work of the first instance criminal and civil sentences imposed upon indictment, or in the jurisdictions, is divided between two Divisions: trial court’s summary jurisdiction. Appeals from • Common Law Division, and committal proceedings in the Local Court may • Equity Division. also be heard in certain circumstances. Sittings of the Court of Criminal Appeal are This structure facilitates the convenient despatch organised on a roster basis whilst taking into of business in accordance with the provisions account the regular judicial duties and under section 38 of the Supreme Court Act 1970. commitments of the Judges who form the Court’s Section 23 of the Supreme Court Act 1970 bench. The Judges who sit in the Court of provides the Court with all jurisdiction necessary Criminal Appeal are the Chief Justice, the for the administration of justice in New South President, the Judges of the Court of Appeal, Wales. The Supreme Court has supervisory the Chief Judge at Common Law and Judges of jurisdiction over other courts and tribunals in the the Common Law Division. During 2004, the State. The Court also has appellate jurisdiction. Court sat during each week of law term. The Court generally exercises its supervisory jurisdiction through its appellate courts. The Industrial Relations Commission of New South Wales and the Land and Environment Court of New South Wales are specialist courts of statutory jurisdiction. The Judges of these courts have the status of Supreme Court Judges. The District Court of New South Wales is an intermediate court whose jurisdiction is determined by statute. The Local Court sits at the bottom of the hierarchy of New South Wales courts, and has broad criminal and civil jurisdictions. There are also a number of tribunals and commissions in New South Wales with statutory powers similar to the District and Local courts. Figures 2.1 and 2.2 overleaf illustrate the court hierarchy in New South Wales and the gateways to appeal in the criminal and civil jurisdictions.

6 Common Law Division Equity Division The Division hears both criminal and civil The Equity Division exercises the traditional Equity matters. The Court hears all homicide offences. jurisdiction dealing with claims for remedies other Other matters involving serious criminality or than damages and recovery of debts, principally in the public interest may be brought before respect to contractual claims, rights of property, the Court with the approval of the Chief Justice. disputes relating to partnerships, trusts, and The Judges of the Division also hear bail deceased estates. The Division hears applications applications, matters concerning proceeds of brought under numerous statutes, including the crime, and post-conviction inquiries. Corporations Act 2001 (Commonwealth), the Family Provision Act 1982, and the Property (Relationships) The Court deals with all serious personal injury Act 1984. The Division also handles a diverse range and contractual actions, in which the Court has of applications in the areas of Admiralty law, unlimited jurisdiction. The civil business of the Commercial law, Technology and Construction, Division also comprises: Family Law, Probate and the Court’s Adoption and • claims for damages; Protective jurisdictions. • claims of professional negligence; • claims relating to the possession of land; • claims of defamation; • administrative law cases seeking the review of decisions by government and administrative tribunals; and • appeals from Local courts.

7 FIGURE 2.1 NSW COURT SYSTEM – CRIMINAL JURISDICTION

High Court of Australia

Court of Criminal Appeal

Supreme Court Land and Environment Court of NSW of NSW

District Court Drug Court of NSW of NSW*

Local Courts

Note: the above diagram is a simplified representation of the appeal process in NSW. Actual appeal rights are determined by the relevant legislation. * Some appeals are made to the District Court of NSW.

8 FIGURE 2.2 NSW COURT SYSTEM – CIVIL JURISDICTION

High Court of Australia

Court of Appeal

Supreme Court Industrial Relations Commission Land and Environment Court of NSW of NSW

District Court of NSW Dust Diseases Tribunal

GREAT Consumer Trader (Government and Administrative Workers Local Court and Tenancy Related Decisions Compensation Tribunal Employees Tribunal* Commission* Appeal Tribunal)

Note: the above diagram is a simplified representation of the appeal and judicial review process in NSW. Actual appeal rights are determined by the relevant legislation. *Some claims may instead be made directly to the Court of Appeal pursuant to Section 48 of the Supreme Court Act 1970. 9 WHO MAKES THE DECISIONS: THE JUDGES, MASTERS AND REGISTRARS

The Judicial Officers of the Supreme Court of New As at 31 December 2004 the Judges, in order of South Wales are its Judges and Masters. The seniority, were as follows: Registrars of the Court have limited judicial powers. Chief Justice The Judges The Honourable James Jacob Spigelman AC The Governor of New South Wales appoints the Judges of the Court on the advice of the Executive President Council. Judicial appointments are made on the The Honourable Justice Keith Mason AC basis of a legal practitioner’s integrity, high level of legal skills and the depth of his or her practical Judges of Appeal experience. The Honourable Justice Kenneth Robert Handley AO The Governor appoints judges pursuant to section The Honourable Mr Justice 25 of the Supreme Court Act 1970. Section 25 Charles Simon Camac Sheller AO specifies that the Court will include: a Chief Justice, a President of the Court of Appeal and, The Honourable Justice such other Judges of Appeal, and Judges, as the Margaret Joan Beazley Governor may appoint from time to time. The The Honourable Justice Governor is also empowered to appoint qualified Roger David Giles persons as Acting Judges of Appeal or Acting The Honourable Justice Judges when the need arises. David Hargraves Hodgson The Honourable Justice The Chief Justice is, by virtue of his office, a Judge Geza Francis Kim Santow OAM of Appeal, and the senior member of the Court of Appeal. The other members of the Court of Appeal The Honourable Justice are the President, and the other Judges of Appeal. David Andrew Ipp The Judges of the Court are assigned to specific The Honourable Justice Divisions, and ordinarily confine their activities Murray Herbert Tobias AM RFD to the business of those Divisions. In certain The Honourable Justice circumstances, the Chief Justice may certify that a Ruth Stephanie McColl AO particular Judge should act as an additional Judge The Honourable Justice of Appeal in a certain proceedings before the Court John Purdy Bryson of Appeal. Chief Judge at Common Law The Supreme Court Act 1970 also provides The Honourable Justice that the Chief Justice may appoint Judges to James Roland Tomson Wood AO administer a specific list within the Common Law or Equity Divisions. Details of the Judges assigned Chief Judge in Equity to these lists in 2004 can be found in the chapter The Honourable Mr Justice entitled Caseflow Management. Peter Wolstenholme Young AO

Judges The Honourable Mr Justice Michael Brian Grove RFD The Honourable Mr Justice Timothy James Studdert The Honourable Mr Justice Brian Thomas Sully The Honourable Mr Justice Bruce Meredith James The Honourable Mr Justice William Victor Windeyer AM RFD ED 10 The Honourable Justice The Honourable Justice David Daniel Levine RFD John David Hislop The Honourable Mr Justice The Honourable Justice John Robert Dunford Richard Weeks White The Honourable Mr Justice The Honourable Justice Robert Shallcross Hulme Clifton Ralph Russell Hoeben AM RFD The Honourable Justice Carolyn Chalmers Simpson Acting Judges The Honourable Justice The following persons held commissions as Harold David Sperling Acting Judges of Appeal or Acting Judges of the The Honourable Justice Court during 2004, and sat from time to time: Peter John Hidden AM The Honourable John Edward Horace Brownie QC The Honourable Justice (Acting Judge & Acting Judge of Appeal) Graham Russell Barr 1 January 2004 to 31 December 2004 The Honourable Mr Justice The Honourable Jane Hamilton Mathews John Perry Hamilton (Acting Judge & Acting Judge of Appeal) The Honourable Justice 1 January 2004 to 20 December 2004 Clifford Roy Einstein The Honourable Peter David McClellan The Honourable Justice (Acting Judge & Acting Judge of Appeal) Gregory Reginald James 1 January 2004 to 31 December 2004 The Honourable Justice The Honourable Jerrold Sydney Cripps QC Michael Frederick Adams (Acting Judge & Acting Judge of Appeal) 1 January 2004 to 20 December 2004 The Honourable Justice David Kirby The Honourable Jeffrey Allan Miles AO (Acting Judge & Acting Judge of Appeal) The Honourable Justice 1 January 2004 to 26 November 2004 Robert Peter Austin The Honourable Rex Foster Smart QC The Honourable Justice (Acting Judge) Patricia Anne Bergin 1 January 2004 to 31 December 2004 The Honourable Justice The Honourable Kenneth John Carruthers QC Virginia Margaret Bell (Acting Judge) The Honourable Justice 1 January 2004 to 9 May 2004 Anthony Gerard Joseph Whealy The Honourable Peter James Newman RFD The Honourable Justice (Acting Judge) Roderick Neil Howie 1 January 2004 to 31 December 2004 The Honourable Justice The Honourable Thomas Swanson Davidson Reginald Ian Barrett (Acting Judge) The Honourable Justice 1 January 2004 to 31 December 2004 George Alfred Palmer The Honourable James Charles Sholto Burchett QC The Honourable Justice (Acting Judge) Joseph Charles Campbell 1 January 2004 to 31 December 2004 The Honourable Justice The Honourable David Louthean Patten Terence Lionel Buddin (Acting Judge) The Honourable Justice 15 November 2004 to 31 December 2004 Ian Vitaly Gzell The Honourable Paul Leon Stein AM The Honourable Justice (Acting Judge & Acting Judge of Appeal) William Henric Nicholas 2 February 2004 to 31 December 2004 The Honourable Justice The Honourable Mahla Pearlman Robert Calder McDougall (Acting Judge & Acting Judge of Appeal) 2 February 2004 to 31 December 2004 11 The Honourable William Harwood Knight Applications that arise before trial include: (Acting Judge) For detailed 15 November 2004 to 31 December 2004 • applications for summary judgment; information regarding The Honourable Michael William Campbell • applications for dismissal of proceedings; • applications for extensions of time to commence the Court’s Caseflow (Acting Judge & Acting Judge of Appeal) Management 5 February 2004 to 31 December 2004 proceedings under various Acts; and • applications for the review of decisions procedures, refer to the chapter Appointments, Retirements and Resignations of Registrars. entitled Caseflow Appointments In the Common Law Division, Masters conduct Management. • Justice John Purdy Bryson was appointed trials of actions for personal injury and possession a Judge of Appeal on 17 March 2004 of property. Masters do not hear jury trials. • John David Hislop QC was appointed The Common Law Masters also hear other a Judge of the Court on 23 March 2004 trials (without a jury) that are referred to them • Richard Weeks White SC was appointed by a Judge or the Court of Appeal, in addition a Judge of the Court on 27 April 2004 to appeals from the Local Court and various • Clifton Ralph Russell Hoeben SC AM RFD tribunals. The Masters also handle appeals was appointed a Judge of the Court on against the determinations of cost assessors. 16 August 2004. In the Equity Division, Masters deal with proceedings under the Family Provision Act 1982 Retirements and the Property (Relationships) Act 1984, and • The Honourable Justice Roderick Pitt Meagher applications for the winding up of companies under retired as a permanent Judge of Appeal on 16 March 2004. the Corporations Act 2001 (Commonwealth). They also deal with inquiries as to damages, or accounts • The Honourable Justice Barry Stanley John referred to them by the Equity Judges or O’Keefe AM retired as a permanent Judge of Court of Appeal, along with applications relating the Supreme Court on 22 March 2004. to the administration of trusts, and certain • The Honourable Justice John Robert Arthur probate matters. Dowd AO retired as a permanent Judge of the Supreme Court on 23 August 2004. As at 31 December 2004, the Masters were as • The Honourable Justice Jeffrey William Shaw follows: resigned as a permanent Judge of the • John Kennedy McLaughlin Supreme Court on 12 November 2004. • Bryan Arthur Malpass The Masters • Richard Hugh Macready • Joanne Ruth Harrison The Governor appoints Masters of the Court pursuant to section 111 of the Supreme Court Act Grahame James Berecry, Registrar in Equity, 1970. The Masters are usually assigned to held a commission as an Acting Master of the perform work within either the Equity or Common Supreme Court throughout 2004. Law Division. Masters may, however, be asked to work outside the confines of these Divisions in the interests of flexibility. The work of the Masters generally involves hearing applications that arise before trial, certain types of trial work and work on proceedings that a Judge or the Court of Appeal may refer to them.

12 The Registrars Deputy Registrars are also rostered to act as Duty Registrars are appointed by the Governor Registrar and provide procedural assistance to pursuant to section 120 of the Supreme Court court users in the Registry each day. They also Act 1970. Registrars are allocated to work within attend to the issue of court orders, writs of the Court of Appeal, or to each Division; however, executions and other miscellaneous matters. they are permitted to work outside these As at 31 December 2004, the Registrars were as boundaries, if required. follows: Registrars are afforded limited judicial powers under the Supreme Court Rules, and undertake Chief Executive Officer and some of the duties formerly performed by Judges Principal Registrar and Masters. Megan Greenwood The work of the Registrars commonly includes: Manager, Court Services and Prothonotary Jerry Riznyczok • defended applications in relation to security for costs, discovery, interrogatories, provision Registrar of the Court of Criminal Appeal of particulars and subpoenas; Jerry Riznyczok • costs disputes if the amount in question is unlikely to exceed $20,000; Registrar of the Court of Appeal Peter Schell • unopposed applications for the removal of cases to, or from, the District Court; Registrar in Equity • conducting examinations under various Acts, Grahame Berecry including the Corporations Act 2001 (Commonwealth) and the Proceeds of Crime Registrar in Probate Jonathan Finlay Act 1987 (Commonwealth); • dealing with applications for orders under Assistant Registrar at Common Law many of the provisions of the Corporations Act Bruce Howe 2001 (Commonwealth), such as the winding up of companies; Senior Deputy Registrars Deborah Robinson • handling trials as referred to them by a Master; • issuing court orders and writs of execution; and Paul Studdert • entering default judgments. Nicholas Flaskas Phillippa Wearne Registrars are assigned specific powers under the Supreme Court Rules 1970 that permit Deputy Registrars them to directly assist the Judges in caseflow Emoke Durkin management. For instance, in the Court of Appeal, Geoffrey Haggett the Registrar deals with most interlocutory Bhaskari Siva applications, excluding applications to stay Suzin Yoo judgment pending an appeal; in the Common Law Leonie Walton Division, the Registrar conducts status and final conferences in the Differential Case Management List, and also assists the Possession List and Professional Negligence List Judges. The Registrars may also be called upon to mediate cases. During 2004, ten of the Court’s Registrars were qualified mediators and available to conduct mediations throughout the year on a rostered basis.

13 SUPPORTING THE COURT: THE REGISTRY

The Work of the Registry How the Registry is Managed The Court operates with the support of four The Chief Justice directs the priorities to be pursued registries. There are two general registries for civil by the Registry. In general, the priorities reflect the claims and criminal matters, and one specialist central aim of meeting the expectations of Court registry each for the Court of Appeal and the Court users, whilst servicing their needs with competency, of Criminal Appeal. Generally, each Registry efficiency and professionalism. provides administrative and clerical support to Day to day management of the Registry is handled each jurisdiction. by the Chief Executive Officer and Principal Staff in the civil registry are responsible for: checking Registrar of the Court. In addition, the Chief and accepting documents filed at the Court; Executive Officer is responsible for securing and securing the custody of court documents including managing the resources provided to the Court by exhibits and documents produced under the NSW Attorney General’s Department, providing subpoena; listing matters for hearing; issuing court executive support to the Judges and Masters and process; attending to the information needs of the developing strategies for improving service delivery Court’s users by providing procedural guidance; to the Court and its users. The Chief Executive maintaining the Court’s physical files and computer Officer undertakes these duties in close records, and ensuring that all the necessary facilities consultation with the Chief Justice, other judicial are available for hearings. In addition to the above officers, key professional bodies and other users of duties, staff in the criminal registry provide support the Court. in processing committals, bail applications, applications under 474D of the Crimes Act 1900 and Common Law Division criminal summary jurisdiction proceedings. The Court of Appeal Registry provides specialist support and procedural guidance to the Court of Appeal’s judges, litigants and their representatives, as well as performing the general administrative tasks outlined above. Staff of the Court of Criminal Appeal Registry provide similar support to the Court of Criminal Appeal’s judicial officers and users, and also enforce orders concerning the custody of prisoners.

14 3 CASEFLOW MANAGEMENT

• Overview by jurisdiction

• Regional sittings of the Court

• Alternative dispute resolution INTRODUCTION OVERVIEW BY JURISDICTION

The Court manages the flow of its cases from Court of Appeal inception to completion in a number of different New appeal cases are initially scanned for You can view the ways, and is continually looking to improve its competency and, if necessary, referred back to Supreme Court processes and outcomes in this regard. legal representatives to either substantiate the Rules and Practice claim of appeal as of right, or seek leave to appeal. Notes online by Caseflow management strategies are reflected Applications for leave to appeal are examined to visiting the Supreme in the Rules of the Supreme Court and detailed ascertain whether they are suitable for hearing Court’s website. in the Practice Notes issued by the Chief concurrently with the argument on appeal. Go to the “Practice Justice. The Judges, Masters and Registrars work and Procedure” area: together to ensure that cases are resolved as Appeals are allocated a directions call-over date efficiently and justly as possible. before the Registrar when a notice of appeal http://www.lawlink. is filed. At that call-over, the appeal may be listed nsw.gov.au/sc Commonly, cases will be allocated to Registrars for hearing if the appellant has filed written to establish the core arguments in dispute and submissions and the red appeal book. Case determine when cases should progress to hearing management may be ordered with respect before a Judge or Master. A Registrar makes to lengthy or complex appeals. directions to ensure that the case is properly prepared for hearing. If an issue arises that falls The Registrar case-manages and lists most outside the specified duties of a Registrar, the appeals and applications for leave to appeal, Registrar may refer that case to the attention of however some cases may be referred to a Judge a Master or Judge. of Appeal for special case management. Urgent cases are expedited and can be heard at short notice, if appropriate. The Registrar in the Court of Appeal also deals with most interlocutory applications, except applications to stay judgments pending an appeal. Mediation is offered to parties in appeals identified as capable of resolution by this process. Detailed statistics regarding the number of matters referred to mediation can be found in Appendix (i).

Court of Criminal Appeal Case management begins in the Court of Criminal Appeal when an appeal or application is filed in the registry. The appeal or application is listed for callover within three weeks of filing. Callovers are held fortnightly, although special callovers can be held in urgent matters. At the callover, the presiding Registrar will fix a hearing date and make directions for the filing and serving of submissions by the parties. Generally, three Judges hear an appeal or application. The Chief Justice may also direct that more than three Judges sit on an appeal or application, particularly in matters involving an important issue of law. In some circumstances, the Chief Justice may direct that two Judges hear an appeal against sentence. A single judge hears sentence appeals from the Drug Court of New South Wales, and also deals with bail applications and other interlocutory applications in the Court.

16 Since 1 July 2002, pre-appeal management Common Law Duty Judge List procedures have been implemented for sentence The Duty Judge is available each day to hear and conviction appeals to the Court of Criminal urgent applications, including applications for Appeal. Accused persons may initially lodge a interlocutory injunctions, during and outside Notice of Intention to Appeal, without specifying normal Court hours when required. Judges of the their grounds of appeal. The Notice of Intention Division are rostered to act as the Duty Judge to Appeal allows the accused person six months for a week at a time during law term. A Vacation (or such longer time as the Court grants) to file Judge is rostered during the court vacation to an actual appeal. Transcripts and exhibits are perform this same role. now provided to accused persons free of charge The Duty Judge also conducts an applications list to facilitate the preparation of an actual appeal. each Monday. The applications in this list are Since 1 July 2002, pre-appeal management matters that cannot be determined by a Master procedures have been implemented for sentence or a Registrar. These matters include appeals from and conviction appeals to the Court of Criminal the Local Court under the Crimes (Local Courts Appeal. Appeal and Review) Act 2001, applications for The impact of these pre-appeal management restraining orders, applications for declaratory procedures on disposal rates can be seen by relief, and applications to dispense with a jury. comparison with previous years. For detailed Matters are initially listed at 9am before a registrar statistical analysis of the effects these procedures to determine whether the application is ready have had on disposal rates, refer to the chapter to proceed. The Duty Judge may specially fix entitled Court Operations. matters that cannot be heard on a Monday to later that week. Common Law Division The Duty Judge determines interlocutory Case management in the Division begins when applications restraining assets and issuing a summons or statement of claim is filed in the examination orders under the Confiscations of registry. Each Summons or Statement of Claim Proceeds of Crime Act 1989, Criminal Assets (with the exception of default matters) is given Recovery Act 1990, and Proceeds of Crime Act a return date before a Judge or Registrar and 1987 (Commonwealth). The Duty Judge also placed in a List. A Judge is appointed to manage considers, in chambers, applications seeking each List, whilst the Common Law List Judge authorisation of warrants, such as those made monitors all matters listed for hearing before a under the Listening Devices Act 1984. Judge. Registrars of the Division handle default matters administratively. Masters’ List The Masters in the Common Law Division deal with Common Law List Judge statutory appeals from the Local Court (except The List Judge manages the progress of cases under the Crimes (Local Courts Appeal and from Call-up until a trial judge is appointed. Review) Act 2001), the Consumer Trader and Judges and Registrars refer matters to the Call-up Tenancy Tribunal, and against cost assessors. that are ready for hearing and a hearing date The Masters also deal with applications for allocated. At the Call-up, the List Judge considers summary judgment and dismissal, applications a number of factors, including the availability of for extension under the Limitations Act 1969, as Judges, the type of matters, and estimates well as opposed applications to transfer matters of duration, before listing matters for hearing. from the District Court. The Masters may deal with The List Judge also hears any applications for other matters as outlined in Schedule D of the adjournment. Supreme Court Rules 1970. Justice Bell was the Common Law List Judge Matters allocated to the Masters’ List are case in 2004. managed by a Registrar daily at 9am. The Registrar refers applications to a Master when ready for hearing.

17 Lists of the Division The arraignment procedure involves counsel at an In addition to the above, the work of the Division is early stage of the proceedings. This allows both also distributed amongst a number of specialised the prosecution and defence to consider a range Lists. These Lists (in alphabetical order) are: of issues that may provide an opportunity for an • Administrative Law List; early plea of guilty, or shorten the duration of the • Bails List; trial. The procedures for arraignment are detailed • Criminal List; in Practice Note No 112. • Defamation List; Justice Barr was responsible for the management • Differential Case Management List; of the Criminal List during 2004. • Possession List; and • Professional Negligence List. Defamation List Section 7A of the Defamation Act 1974 sets out The Chief Justice appoints a specific Judge to the respective functions of the Court and jury in be responsible for the management of a List defamation proceedings. An initial hearing is held throughout the year. The Judges responsible before a jury to determine whether the matter for the management of a list during 2004 are complained of carries the imputation alleged and, detailed below. if it does, whether the imputation is defamatory. A separate, subsequent, hearing takes place before Administrative Law List a Judge to determine whether any defence can be The Administrative Law List reviews decisions established and if damages are payable. This second of government, public officials and administrative hearing is only required if the jury determines that tribunals such as the Consumer Trader and the matter complained of was defamatory. Tenancy Tribunal. The Administrative Law List operates in accordance with the procedures The Defamation List was managed by Justice outlined in Practice Note No 119. Nicholas during 2004. A Registrar assists by case-managing matters listed for directions. In 2004, Mr Justice Dunford was responsible for Practice Notes Nos 14 and 114 govern the the management of the Administrative Law List, operation of the List. with the assistance of Justice Adams. Differential Case Management (DCM) List Bails List This List comprises all civil cases commenced by Applications for bail or to review bail determinations Statement of Claim that cannot be included in can be made to the Supreme Court under the Bail the Administrative Law, Defamation, Professional Act 1978 by any person accused of an offence, Negligence or Possession Lists. It includes money even if the trial will not be heard in the Supreme claims, personal injury claims, claims for Court. These applications are listed throughout possession (excluding land), breach of contract, the year, including during the court vacation. personal property damage, malicious prosecution, Common Law Division Judges are rostered on and claims under the Compensation to Relatives a weekly basis to determine these applications. Act 1897. These cases are case-managed by a Registrar who conducts status conferences, Criminal List and final conferences. At the status conference, Arraignment hearings are held each month during the Registrar gives directions to ensure the case Law Term. The aim of the arraignment procedure is ready for hearing by the compliance date. is to minimise the loss of available judicial time The procedures associated with the running of this that occurs when trials are vacated after they are List are set out in Practice Note No 120. listed for hearing, or when a guilty plea is entered immediately prior to, or on the day of, the trial’s The DCM List was managed by Justice Hoeben commencement. from 30 August 2004.

18 Possession List Expedition List The Possession List deals with all proceedings In 2004, the List was assigned one Judge only for the recovery of possession of land. The as delays in general Equity matters allocated management of the List encourages early to the callover were reduced considerably. resolution of cases through mediation, other The Expedition List Judge heard all applications alternative dispute resolution processes, or for expedited hearings in 2004. A case is settlement. Case management is also used to expedited when sufficient urgency is shown. clarify the real issues in dispute. Practice Note When the application is granted, the Judge gives No 106 applies to cases in this List. directions and monitors the preparations for hearing. The same Judge hears the case when Justice Greg James was responsible for the it is ready to proceed. management of the Possession List during 2004. Justice Gzell, was the Expedition List Judge Professional Negligence List during 2004. Claims against medical practitioners, allied health professionals (such as dentists, chemists and One Day List physiotherapists), hospitals, solicitors and barristers Cases in this List are fixed for hearing before a are allocated to the Professional Negligence List. Judge when judicial time becomes available at Specialisation in the List allows the parties to focus short notice. A Registrar maintains this List, which on the real issues under dispute in these types includes cases that will be ready for hearing with of claims. A Registrar monitors cases at regular three days’ notice. These are mostly cases of a conference hearings. Conference hearings less complex kind that can usually be disposed of provide an opportunity for parties to discuss within one day. outstanding issues in the case, and provide The One Day List was suspended in 2004, and a forum for mediation between the parties. matters were instead allocated to the Expedition The Professional Negligence List Judge hears List on the last Friday of the month. applications and makes directions according to the specific needs of each matter. Equity Duty Judge List Mr Justice Studdert managed the List during The Duty Judge mainly hears urgent interlocutory 2004 with the assistance of Justice Sperling. applications, and uncontested or short cases, sometimes outside normal court hours. Judges of Equity Division the Division act as Duty Judge on a roster system, Several general lists operate in the Equity Division for two weeks at a time. to assist in managing the Division’s caseload: There is provision for the Duty Judge to fix an early • Expedition List; hearing date for a case and engage in pre-trial • One Day List; management of that case. The Duty Judge would • Equity Duty Judge List; make use of this provision if he or she considers • Masters’ List, and that an early final hearing would result in a • General List. substantial saving of the Court’s time. The work carried out by the Duty Judge is extremely varied and may include urgent applications by the Department of Community Services to intervene where a child’s welfare is involved, or property and commercial disputes.

19 Masters’ List Adoptions List The work of the Equity Division Masters includes This List deals with applications for adoption dealing with contested procedural applications orders and declarations of the validity of foreign and conducting inquiries as directed by Judges. adoptions under the Adoptions Act 2000. Most Their work also includes the hearing of most applications are unopposed. Once all supporting applications under the Family Provision Act 1982, affidavits are filed, a Judge will deal with the the Property (Relationships) Act 1984, and certain application in the absence of the public, and provisions of the Corporations Act 2001 without the attendance of the applicants, or their (Commonwealth). lawyers. Unopposed applications require close attention for compliance with formal requirements, A Master conducts a monthly callover of matters, but there is little delay. A small number of at which time a hearing date (usually in two contentious hearings take place in court in the months’ time) is allocated. A Master also handles absence of the public. Most of these relate to weekly referrals from the Registrar, determining dispensing with consent to adoption. The Registrar those that can be dealt with immediately, and in Equity deals with requests for information under adjourning the balance. The Registrar only refers the Adoptions Act 2000. matters where the hearing time is not expected to exceed an hour. More complex matters are listed Justice Palmer was the List Judge during 2004. in the next call-over of proceedings in the Masters’ List. Urgent referrals, such as the extension of a Commercial List caveat, may be made at any time. The Commercial List is concerned with cases arising out of transactions in trade or commerce. Lists of the Division The caseflow management strategy applied to the The Equity Division’s caseload is also managed running of this List aims to have matters brought by allocating certain matters to specific Lists on for hearing quickly by: according to the nature of the claim. These Lists • attending to the true issues at an early stage; are set out below in alphabetical order: • ensuring witness statements are exchanged • Admiralty List; in a timely manner; and • Adoptions List; • intense monitoring of the preparation • Commercial List; of every case. • Corporations List; • Probate List; There is also adherence to the allotted hearing • Protective List; and dates, and hearings are continued to conclusion, • Technology and Construction List. even though time estimates may be exceeded. Justice Bergin was the List Judge during 2004. The Chief Justice appoints a Judge to each of these Lists to bear responsibility for monitoring the Corporations List List throughout the year. The Judges allocated to A Judge sits each Monday and Friday to hear each List during 2004 are noted below. short applications under the Corporations Act 2001 (Commonwealth) and related legislation. The Admiralty List Registrar may refer applications to the Judge, with The Admiralty List deals with maritime and urgent applications to be heard on Friday. shipping disputes. It is administered in the same manner as the Commercial List (see below). The Judge will give directions and monitor preparations for hearing in longer matters, as well Justice Palmer had responsibility for this List as in other complex corporate cases. Cases in 2004. managed in this List are generally given a hearing date as soon as they are ready. The Corporations List Judge during 2004 was Justice Austin, assisted by Justice Barrett.

20 Probate List proceedings, with a minimum of formality. More information on The work performed by the Judges and the However, when there is a dispute which cannot be mediation can be Probate Registry consists of both contentious solved in this way, it is decided according to law. accessed if you visit and non-contentious business. The majority of The Deputy Registrar dedicated to the Protective the “Practice and non-contentious cases are dealt with by the List sits in court one day a week and almost all Procedure” section of Registrar and Deputy Registrars. This includes cases are listed in front of her. The Deputy Registrar the Court’s website at: the granting of common form probate where may submit a case to be determined by the Judge www.lawlink.nsw. applications are in order and unopposed. without further appearance or adjourn a case into gov.au/sc Both the Probate List Judge and the Registrars the Judge’s list. A Judge sits once a week to deal have procedures whereby some supervision is with any referred cases. Most cases are considered kept over executors in the filing of accounts, and on the Judge’s usual sitting day as soon as the ensuring beneficiaries are paid. This supervision is parties are ready. Longer cases, however, are usually by way of “spot checks” or upon receiving specially fixed, usually within one month. a complaint. The Protective List Judge meets with the Deputy The Registrar sits in court twice each week to Registrar each month to discuss the efficient consider routine applications, and applications working of the List. Mr Justice Windeyer was the concerning accounts. Should a routine application Protective List Judge during 2004. require a decision on a matter of principle, the application is referred to the Probate List Judge. Technology and Construction List Previously known as the “Construction List”, the The Probate List Judge sits once a week to deal alteration to the List’s name was made in 2001 to with complex applications. If an application can be reflect the increasing number of cases involving dealt with quickly, it is usually heard immediately. complex technological issues. These cases, Others are set down for hearing, normally within as well as disputes arising out of building or a month. engineering contracts, are administered by the Contentious business is monitored by either same Judges and in the same manner as the the Registrar or a Judge. Contentious business Commercial List. commonly includes disputes as to what was a testator’s last valid will. When these cases are ready to proceed, they are placed in the call-over list to REGIONAL SITTINGS OF THE COURT receive a hearing date before an Equity Judge. The Probate List Judge meets with the Registrars The Court of Criminal Appeal sat in Lismore on a regular basis to discuss the efficient working in August 2004, and several first instance of the List. Mr Justice Windeyer was the Probate criminal trials were conducted during the year List Judge during 2004. in the following regional locations: Armidale, Bathurst, Dubbo, East Maitland, Gosford, Griffith, Protective List Katoomba, Lismore, Newcastle, Orange, The work of this List involves ensuring that Queanbeyan and Wollongong. Criminal trials the affairs of people deemed incapable of looking will continue to be held in regional venues on after their property, or themselves, are properly a needs basis. managed. The List also deals with appeals Demand for civil hearings at regional venues from the Guardianship Tribunal of NSW, continued to decline and, except for the Riverina along with applications (in chambers) by the district, there was insufficient work in regional Protective Commissioner for advice regarding the areas to warrant proceeding with the scheduled administration of estates. civil circuits in 2004. The Court heard two civil Often, the issues under dispute in the Protective proceedings in Wagga Wagga whilst on circuit in List are of a highly sensitive nature. The Court the Riverina region. Additional civil proceedings acknowledges this situation, and endeavours to were specially fixed for hearing during the year at be as flexible as permissible in handling these Wagga Wagga, Lismore, Newcastle, Young, East

21 Maitland and Coffs Harbour. From 2005, the Court Law and Equity Divisions. Parties may derive the will hear matters in regional venues by special following benefits from mediation: Go to the “Practice fixture and will no longer conduct civil circuits on • an early resolution to their dispute; and Procedure” account of the declining workload. • lower costs; and section of the Court’s website to read All proceedings are managed from Sydney • greater flexibility in resolving the dispute as Practice Note No 125 irrespective of where the proceedings the solutions that may be explored through and find out more commenced or the venue for hearing. mediation are broader than those open to the Court’s consideration in conventional litigation. information about the Joint Protocol Even where mediation fails to resolve a matter www.lawlink.nsw.gov. ALTERNATIVE DISPUTE RESOLUTION entirely and the dispute proceeds to court, the au/sc impact of mediation can often become apparent at Alternative dispute resolution (ADR), is a broad term the subsequent contested hearing. Mediation often that refers to the means by which parties seek to helps to define the real issues of the proceedings resolve their dispute, with the assistance of a and this may result in a reduction in eventual court neutral person, but without a conventional time and, consequently, lower legal costs. contested hearing. The two alternative dispute resolution processes most commonly employed Arbitration in Supreme Court proceedings are mediation While arbitration involves adjudication of a dispute and arbitration. by a third party, this adjudication is not conducted by the Court. Determination of a dispute Mediation regarding recovery of damages through arbitration The option of dispute resolution through mediation is permitted under Section 76B of the Supreme is available for most civil proceedings pursuant to Court Act 1970. Arbitrations are conducted under Part 7B of the Supreme Court Act 1970. the Arbitration (Civil Actions) Act 1983. Mediation is not available in criminal proceedings. The Chief Justice appoints experienced barristers A matter may proceed to mediation at the request & solicitors as arbitrators following a nomination by of the parties, or the Court may refer appropriate their respective professional associations. cases to mediation, with or without the consent of Arbitrators generally hold their appointment for parties. If the Court orders that a matter be referred two years and the Chief Justice may also to mediation, there are several ways in which a reappoint the arbitrator. mediator may be appointed. Firstly, parties may be By contrast with a mediator, an arbitrator imposes in agreement as to a particular mediator. Secondly, a solution on the parties (an award) after listening the Court may appoint a specific mediator, who to the arguments and evidence presented. may also be a Registrar of the Court. If parties A decision of an arbitrator becomes a final cannot come to an agreement, the Court is judgment of the Court 28 days after the award is responsible for appointing a qualified mediator given. Any party to the arbitration may apply for a from a prescribed list. rehearing, upon which, the matter is then reheard The role of the mediator is to assist parties in before a Judge. resolving their dispute by alerting them to possible solutions, whilst allowing the parties to choose which option is the most agreeable. The mediator NEW MEDIATION PROCEDURES does not impose a solution on the parties. The Court made ten of its qualified Registrars and Significant changes to the Court’s mediation Deputy Registrars available throughout 2004 to referral procedures took effect from 1 January conduct mediations at specified times each week. 2004. The changes involve the implementation of Settlement of disputes by mediation is encouraged a Joint Protocol designed to assist the Court in in the Court of Appeal, and both the Common appointing mediators when parties cannot, or will not, appoint a mediator of their choosing. Practice Note No 125 details the new procedures in full. 22 4 COURT OPERATIONS

• Time standards

• Overview of operations by jurisdiction TIME STANDARDS

FIGURE 4.1 Since 2000, the Court has set time standards for The Court has determined that it will report on the COURT OF APPEAL cases dealt with in the Court of Appeal, Court of age of pending cases for the civil work of the ACHIEVEMENTS AGAINST TIME Criminal Appeal and the Criminal List. Those Common Law and Equity Divisions once the STANDARDS FOR standards have been reviewed each year and, in CourtLink system is available to provide precise DISPOSALS some cases, adjusted to reflect changes in and timely statistics on the age of these cases. Standard in 2004 Achieved in 2003 circumstances, such as changes in the work Currently the Court’s civil workload comprises Achieved in 2004 flowing to the Court. approximately 7,500 pending cases, excluding 100%

non-contentious probate applications. 98% 94%

Other courts and organisations also report on 90% 86% case disposal times but statistics are not 82% necessarily comparable. Filings and disposals OVERVIEW OF OPERATIONS may be dealt with in different ways. To cite criminal BY JURISDICTION 50% 36% cases as an example, the District Court of New 32% South Wales measures the time between Court of Appeal committal and commencement of the trial, while Since 2000, there has been approximately 11 per the Australian Bureau of Statistics produces cent growth in the overall work handled by the national statistics that measure the time from Court of Appeal. Although the Court has committal to acquittal or sentencing. maintained a high level of disposals since 2001, commencement

The Court has determined that future reporting of the amount of work on hand has grown during Within 12 months Within 18 months timeliness in case handling will not use case that time by 20 per cent. In the last two years there Within 6 months of finalisation times but will instead use the age of has been a 17 per cent increase in filings of pending cases (a measure similar to the “backlog appeals and applications for relief, cases that indicator” used by the Productivity Commission in typically demand more of the resources of the its national reports). In the Criminal List: Court of Appeal. More appeals and applications • the counting unit will be defendants (not trials); for relief were disposed of by judgment than by • cases awaiting sentence will be included other methods this year compared with last year (under the previous reporting used by the (72 per cent compared with 65 per cent). Court, cases were excluded once a verdict Although the amount of work on hand has grown, had been reached or plea entered); and the age profile of the pending caseload remains • if a trial has been started in a case but has in a good position. The pending caseload’s age subsequently collapsed, that trial time will was monitored throughout 2004 and at the end be included. of the year the position was: For the Court of Appeal, the Court of Criminal Position at Age of pending cases end of 2004 Appeal and the Criminal List, the court will report the percentages of pending cases that are within Percentage of cases younger than 12 months 90 per cent Percentage of cases younger than 24 months 99 per cent 12 months of age and within 24 months of age. By measuring changes in the age of the pending For the Court of Appeal, the time standards caseload, a current position will be shown that referred to the time taken to dispose of appeals reflects the effectiveness of delay reduction (including any preceding application for leave strategies and helps identify factors influencing the to appeal), summonses (for other relief) and management of future cases. This contrasts with applications for leave to appeal where an appeal use of case finalisation times, which may be does not follow. Figure 4.1 illustrates the misinterpreted. For example, when a large achievements against time standards in 2004 and number of old cases has been finalised, longer provides a comparison with the previous year. finalisation times are reported – this is commonly The increased number of substantive appeal interpreted as indicating entrenched delay for matters that required judgment to be reserved future cases; the correct interpretation is, however, may have contributed to the small decrease in the that the Court has finalised a large number of its 12-month and 18-month categories. Also, the older cases. reduced disposal rate for leave applications, which

24 FIGURE 4.2 COURT OF are generally finalised at significantly younger ages a bench warrant. If a trial has been started in a case CRIMINAL APPEAL than are substantive appeal matters, is likely to but has subsequently collapsed, that trial time is ACHIEVEMENTS AGAINST TIME have influenced the change in performance in the included. At the end of 2004 the position was: STANDARDS FOR DISPOSALS six-month category. Position at Age of pending cases end of 2004 Standard in 2004 Achieved in 2003 Court of Criminal Appeal Percentage of cases younger than 12 months 59 per cent Achieved in 2004 The impact of the changes, commenced on 1 July Percentage of cases younger than 24 months 91 per cent 2002, to criminal appeal procedures, has now

100% largely stabilised. The filing and disposal rates While the reduced number of filings has assisted 95% 93% 90% 88% 2004 are comparable with the figures for 2003. to bring down the number of pending cases, the 76%

66% However, the number of cases finalised by hearing achievements have decreased marginally in some 60%

54% of the substantive issues increased by 11 per cent categories. This is because there were fewer pleas during 2004, compared with the previous year. of guilty entered at trial and because some very long trials were run during 2004. These factors The age profile of the pending caseload was increased the listing delay for some criminal cases. monitored throughout 2004. During the year it The Court used its acting judges to enable more continued to shift as the number of “old system” hearing time to be allocated for criminal trials cases diminished. By the end of 2004 there during 2004 and 2005 to contain the increase in were only seven “old system” cases remaining listing delay.

commencement (representing three per cent of all pending criminal Within 12 months Within 18 months Within 6 months of appeals). At the end of the year the position was: There were fewer adjourned or collapsed trials Position at during 2004 and, for the fourth year in succession, Age of pending cases end of 2004 FIGURE 4.3 no criminal trial has been “not reached”. Where ACHIEVEMENTS Percentage of cases younger than 12 months 89 per cent there are early indications that a trial might not run, AGAINST TIME STANDARDS FOR Percentage of cases younger than 24 months 97 per cent the Court will consider listing a reserve trial. THE DISPOSAL OF Supreme Court trials generally involve murder CRIMINAL CASES IN THE COMMON The standard applied to disposals within 6 months and manslaughter charges and any unsuccessful LAW DIVISION of commencement for Court of Criminal Appeal over-listing can create emotional and financial Standard in 2004 matters was tightened for 2004, and there was a stress for the family of the victim and for Achieved in 2003 Achieved in 2004 significant improvement in disposal times across witnesses. It also has a financial impact for the the other time standards. Figure 4.2 illustrates the community, which funds the various agencies 100%

96% achievements and improvements in disposal involved in bringing criminal cases to trial and 95% 94% 92% 90% 85% 83% times during 2004. supporting the criminal justice system. 75% 60% 56%

51% Common Law Division criminal cases Common Law Division civil cases The number of criminal cases filed during 2004 The civil work of the Common Law Division can be was 26-33 per cent lower than in years between separated into two groups: defended cases 2000 and 2003. The acting judge program (including the specialist case-managed lists) enabled disposals to be maintained at 2002 and currently representing about 60 per cent of the 2003 levels and this, together with the low filing cases on hand, and administratively handled rate, resulted in an 18 per cent decrease in the cases (such as cases proceeding to default pending caseload. judgment and applications dealt with by commencement Within 12 months Within 15 months Within 18 months

Within 9 months of Registrars and Registry officers). The age profile of the Criminal List, for trial and sentence cases, is presented based on the new The volume of Common Law Division civil filings counting rules for the Criminal List. These figures has fluctuated over the last five years – the count the number of defendants (not the number of number of cases filed in 2004 was 25 per cent trials) and do not include applications made under higher than that in 2003 (and only three per cent s474D Crimes Act. The age of criminal cases is below the peak seen in 2001). Numerically, most measured from the date of committal, presentment of the increase is within the cases that proceed of an ex-officio indictment, referral of a case from to default judgment, Importantly, however, there the Mental Health Review Tribunal, or execution of has been a 23 per cent increase in the filing

25 of cases that proceed as defended matters. have been re-opened after finalisation of the Increased judicial resources and improved substantive issues. This problem is expected to caseflow management have led to a 27 per cent diminish when the CourtLink system becomes decrease in the pending caseload over the past available for civil cases. Meanwhile, however, five years. Each of the defended lists has reduced trends can be inferred from significant patterns of its pending caseload over the past five years. change over time. The largest list, the Differential Case Management There were 312 cases heard to conclusion before List has achieved a 44 per cent reduction since Judges or Masters during 2004. Among cases 2000. These reductions help to reduce delay for listed for hearing before Judges and Masters, cases that are waiting to be heard. the settlement rate improved by five per cent. There was a decrease in the settlement rate Typically, about half of the disposals within the among cases listed for hearing, and the proportion Equity Division are achieved in the Registrar’s lists of hearings “not reached” returned to the 2002 (and most of those would have not required any level of five per cent after a record low of two listing before a Judge or Master). per cent in 2003. As well as hearing defended civil As with the Common Law Division civil work, no cases, the judges of this Division hear all work time standards were set for Equity Division case in the Criminal List. Additionally, the bench disposals during 2004. Median case finalisation constituted in the Court of Criminal Appeal usually times have either improved or been maintained at includes two, and often three, judges from the a good level. The apparent large increase in Common Law Division. median finalisation time for Admiralty List cases In most lists, median finalisation times have either is not of concern – volatility in statistics is expected improved or been maintained. Significant in small lists. The improvement within the increases in median finalisation time occurred Technology and Construction List is substantial in the Differential Case Management List and the and reflects prompt finalisation of many of the Professional Negligence List – these increases cases making up the increased filings for the year reflect the finalisation of old cases during the in that List. year rather than an expectation of increased delay Registrars deal with the uncontested applications for cases on hand. For criminal cases in the relating to probate matters. A total of 22,506 Summons List, the median waiting time is not applications were filed during 2004. Where an indicative of delay because many of these cases application for a grant of probate, letters of have dormant periods between separate administration or re-seal (of a probate grant) examinations concerning proceeds of crime. meets all procedural requirements, the grant is usually made within three working days. Equity Division For the fourth year in succession the filings in Use of alternative dispute resolution the Equity Division have increased. During 2004 The number of cases referred to court-annexed the increase was eight per cent, principally in mediation has continued to grow, with a large the Corporations List and the General List. The increase of 43 per cent during 2004. The Court’s disposal rate has also shown a trend of increase Registrars conducted 90 more mediations in 2004 and the 2004 increase was five per cent. than in 2003 and continued to achieve a healthy Filings outnumbered disposals in 2004 and, percentage of settlements. consequently, the pending caseload has increased again over the year. There has been a 12 per cent Fewer cases were referred to arbitration this year, growth in the cases on hand since 2000. compared with last year. The number of suitable cases for arbitration has been significantly limited The figures for disposals and pending cases in since 1997 when the District Court’s jurisdiction the Division’s two largest lists, the General List and expanded to include most of the work that had Corporations List, are not considered to be fully typically been arbitrated in the Supreme Court. reliable because these lists cannot be monitored sufficiently to eliminate counting of cases that

26 5 EDUCATION & PUBLIC INFORMATION

• The Supreme Court of NSW Annual Conference

• Judicial officer education initiatives

• The role of the Public Information Officer

• Pro Bono Scheme

• The Court’s public education programme THE SUPREME COURT OF NSW JUDICIAL OFFICER EDUCATION ANNUAL CONFERENCE INITIATIVES

The 2004 Annual Conference was held in Bowral On 22 October 2004, Mr Luke Grant from from 20 to 22 August. The Right Honourable the New South Wales Department of Corrective the Lord Walker of Gestingthorpe provided the Services addressed the judges of the Court Keynote Address on the issue of constitutional about current approaches to the rehabilitation changes in the United Kingdom’s justice system. of offenders in custody. Lord Walker later spoke to some of the On 17 November 2004, the Honourable Court’s judicial officers about the issue of Justice McClellan, Chief Judge of the Land dishonesty and unconscionable conduct in and Environment Court, presented a seminar commercial life, particularly Accessory Liability and to judicial officers entitled “Concurrent evidence – Knowing Receipt. Dr Grant Lester, Consultant developments in the Land and Environment Psychiatrist at the Victorian Institute of Forensic Court”. His Honour talked about the method Mental Health, also addressed the Conference on by which expert evidence is now taken in the topic of Understanding and Managing the the Land and Environment Court, involving Difficult Litigant. Professor Peter Cane of the experts on the same topics giving evidence Australian National University delivered a speech concurrently. The seminar described the process on tort law developments; Professor Michael and Justice McClellan's observations of its Furmston of Bristol University spoke regarding benefits to the resolution of complex expert Universal Terms in Contract and Professor Larissa issues in civil litigation. Behrendt addressed Issues Involved in the Sentencing of Aboriginal Offenders. Judges of the Court also gave papers at the Conference on such issues as recent developments in criminal trials, and civil penalty proceedings.

28 THE ROLE OF THE PUBLIC PRO BONO SCHEME INFORMATION OFFICER

The Court’s Public Information Officer (PIO) is the The Pro Bono Scheme under Part 66A of the principal media spokesperson for the superior NSW Supreme Court Rules was established in 2001 courts and provides a professional court-media with support from the NSW Bar Association liaison service. and the Law Society of NSW. The scheme enables unrepresented litigants, who have been The major role of the position is to provide the considered by the Court to be deserving of media with information about court proceedings assistance, to be referred to a barrister and/or in the NSW Supreme Court, the Land and solicitor. Ten referrals were made during the year; Environment Court and the Industrial Relations seven of these referrals were made in Common Commission of NSW and the District Court of NSW. Law matters, two were made in the Equity Division The PIO works with the media to ensure that and one in the Court of Appeal. judicial decisions are correctly interpreted and The Scheme’s success depends upon the reported to the community, and that initiatives continued goodwill of barristers and solicitors, and taken by the courts to enhance access to justice the Court gratefully acknowledges those who give are widely promoted. of their time so freely in supporting the Scheme. The PIO is also responsible for ensuring that media outlets are alert to any suppression orders PUBLIC EDUCATION PROGRAMME issued in proceedings, and that they are familiar with the terms and impacts of these orders. The distribution of, and adherence to, suppression During 2004, Registrars of the Court addressed or non-publication orders is critical as the media’s more than 70 secondary school and community failure to acknowledge them in their coverage groups regarding the Court’s jurisdiction and daily could compromise proceedings. operations. These talks culminate in the groups For the first time in 2004, statistics were kept for a being escorted to an appropriate courtroom sample period on the demand for information from where they witness an actual Supreme Court trial the PIO. During the trial three month period: in progress. • 349 media inquiries were completed In 2004, the Court’s public education programme at an average of 34.9 per week; also extended to participating in Law Week 2004: • 83% of inquiries related to Supreme Opening the Door to the Law, the National Trust’s Court matters; Heritage Week, the History Council of NSW’s • 13% of inquiries related to District Court History Week and the Historic House’s Trust matters; and Sydney Open Day. The activities provided by the • 4% of inquiries related to other courts and Court ranged from architectural tours of the King including the Land and Environment Court and Street Complex to free educational displays of the Industrial Relations Commission of NSW. historic court documents.

29 6 OTHER ASPECTS OF THE COURT’S WORK

• CourtLink

• Law Courts Library

• Admission to the Legal Profession and appointment of Public Notaries

• Admission under the Mutual Recognition Acts

• Administration of the Costs Assessment Scheme COURTLINK LAW COURTS LIBRARY

The CourtLink project represents a significant Organisation of Business development for the Court. Unnecessary The NSW Attorney General’s Department and the differences in the Supreme, District and Local Federal Court of Australia jointly fund the Law courts have been identified and flagged for Courts Library. There are two committees that elimination. For example, upon Parliament passing oversee the operations of the Library. These the Courts Legislation Amendment Bill 2004, the committees are the Operations Committee and number of criminal forms was reduced from more the Advisory Committee. than 600 to less than 100. With regard to civil The Operations Committee comprises an equal proceedings, work on the Uniform Civil Procedure number of representatives from the NSW Attorney Bill continued during 2004 with the aim of General’s Department and the Federal Court introducing common rules and procedures for of Australia. The Operations Committee is all three New South Wales jurisdictions sometime responsible for setting budget priorities, revenue, in mid-2005. business planning and Library policy. The Advisory Although the NSW Attorney General’s Department Committee consists of three Judges from the manages the CourtLink project, judicial officers of Federal Court of Australia and three Judges the Court, and key Registry staff, have been from the Supreme Court of NSW. The Advisory actively involved since the project’s inception. The Committee consults with the Operations work of the CourtLink Steering Committee and the Committee on matters of budget, collection Uniform Civil Procedure Working Party has proven development and service provision. During 2004, particularly valuable in ensuring that CourtLink the Supreme Court representatives on the will meet the needs of the Court. Both bodies Advisory Committee were: are initiatives of the NSW Attorney General’s The Honourable Mr Justice Sheller AO Department, and include representatives from the The Honourable Justice Ipp Supreme, District and Local Courts. The following judicial officers and Registry staff represented the The Honourable Justice Austin Supreme Court during 2004: Library Services The Honourable Justice Ipp (until July) The Law Courts Library acts as a legal resource The Honourable Mr Justice Hamilton and information centre to the Judges, Masters The Honourable Justice Greg James and Registrars of the Court and provides the The Honourable Justice Howie (from August) following services: The Honourable Justice Gzell (from August) • Legal reference and research services and Master Macready guides; • Access to a comprehensive range of electronic Ms Megan Greenwood, Chief Executive Officer and Principal Registrar resources and services via the Library Homepage; During 2004, CourtLink was implemented in • Guides to the Library’s collections two areas of the Court: the Court of Criminal and resources; Appeal and the Common Law Division’s criminal • Legal research training using hard copy, jurisdiction. Implementation of the CourtLink system electronic databases and internet resources; into the Court of Appeal and civil jurisdictions has • Document delivery and inter-library been postponed until early 2006. loan services; • On-line index to Hansard including details of first and second reading speeches, and assent and commencement dates for NSW and Commonwealth legislation; and • On-line current awareness service.

31 ADMISSION TO THE LEGAL PROFESSION AND APPOINTMENT OF PUBLIC NOTARIES

The Legal Practitioners Admission Board is a The Board will consider Mr Riley’s findings self-funding statutory body established under and recommendations in 2005. the Legal Profession Act 1987. The Board is • The Board contributed to the drafting of responsible for making rules for and approving admission-related sections of the Legal applications for the admission of legal Profession Act 2004 and to a review of the practitioners and the appointment of public Public Notaries Act 1997. The subsequent notaries. Once admitted as a legal practitioner, legislation will necessitate extensive revision a person may apply to the Law Society of NSW of the Board’s rules and forms in 2005. or the NSW Bar Association for a practising certificate as either a solicitor or barrister. • In co-operation with the Law Extension The Board comprises the Chief Justice, three Committee of the University of Sydney, other Judges of the Supreme Court, a nominee of the Board continues to provide access the Attorney General and key members of the to academic legal qualifications at a legal profession. considerably lower cost than universities. Table 6.1 below summarises the Board’s The Board maintains a close working relationship workload in recent years. with the Supreme Court in other respects, by TABLE 6.1: providing officers to assist in the administration Summary and comparison of the Legal Practitioners of admission ceremonies, maintaining the Rolls Admission Board’s workload of Legal Practitioners and Public Notaries, and 2002 2003 2004 liaising with the Court’s Registry about New Legal Practitioners Admitted applications made under the Mutual Recognition by the Board 1,748 1,843 1,965 Acts. In addition, five Judges of the Court provide Certificates of Current Admission important policy input by maintaining positions on produced by the Board 682 691 534 the Boards' committees. Public Notaries appointed by During 2004, the members of the Legal the Board 34 34 51 Practitioners Admission Board were: Students-at-Law registrations 861 965 920 The Honourable the Chief Justice Legal Qualifications Committee The Honourable Mr Justice Windeyer AM RFD The Legal Qualifications Committee is constituted ED (Presiding Member) under the Legal Practitioners Admission Rules to The Honourable Mr Justice Sully (Deputy superintend the qualification of candidates for Presiding Member) admission and to advise the Board in relation The Honourable Mr Justice Studdert to the accreditation of academic and practical Professor D Barker training courses. The Committee performs its Mr R Benjamin work largely through its sub-committees and Mr C Cawley reviews decisions of these sub-committees at the Mr J Feneley request of unsuccessful applicants. Mr J Gormly SC During 2004 the members of the Legal Professor C Sappideen Qualifications Committee were: Mr P Taylor SC The Honourable Mr Justice Dunford (Chairperson) Executive Officer and Secretary: (until 30 June) Mr R Wescombe The Honourable Justice Barrett (Deputy Chairperson) (Chairperson from 1 July) The Board’s work during 2004 The Honourable Justice Kirby (from 1 July) • In 2004, commissioned by the Board, The Honourable Justice Palmer Mr Frank Riley, reviewed all Board-accredited Mr R Benjamin practical training courses, evaluating them Mr C Cawley against the national framework of Competency Standards for Entry Level Lawyers. Mr J Fernon SC

32 Mr M Fitzgerald During 2004, the members of the Examinations Associate Professor A Goh Committee were: Mr R Harris (from 1 July) The Honourable Justice Simpson (Chairperson) Associate Professor A Lamb The Honourable Justice Campbell Associate Professor K Maxwell (from 1 July) (Deputy Chairperson) Associate Professor G Monahan (until 1 July) Mr R Anderson Ms J Oakley Mr F Astill Ms R Pepper (until 1 April) Mr R Benjamin (until 30 June) Ms G Ramensky Mr M Christie Dr K F Sin (until 1 July) Mr J Dobson (from 30 June) Mr D Toomey (from 1 April) Associate Professor G Monahan Executive Officer and Secretary: Executive Officer and Secretary: Mr R Wescombe Mr R Wescombe

Work during 2004 Work during 2004 The number of applications from overseas • The Committee commenced a project lawyers seeking recognition of their legal to involve the Board’s examiners in the qualifications has diminished in the past year. specification of its curriculum. Table 6.2 below provides a comparison of the This project will continue in 2005. number of applications processed in 2004 against previous years. • The number of Students-at-Law sitting

TABLE 6.2: for the Board’s examination sessions has Applications considered by the Legal Qualifications increased for the third successive year. Committee Table 6.3 details the type and number of 2002 2003 2004 applications considered by the Committee Applications for Academic in recent years. Exemptions 433 525 424 TABLE 6.3: Applications for Practical Three-year comparison of the Examination Training Exemptions 254 281 212 Committee’s workload 2002 2003 2004 Examinations Committee Examination subject enrolments The Examinations Committee, formed in July by Students-at-Law 4,866 5,303 5,693 2002, is constituted by the Legal Practitioners Approved applications to sit examinations in non-scheduled Admission Rules to oversee the content and venues 48 44 39 conduct of the Board’s examinations and the Approved applications for candidatures of Students-at-Law. It has three special examination conditions 22 14 13 sub-committees. The Performance Review Student course applications Sub-Committee determines applications from determined by the Examinations students seeking to avoid or overcome exclusion Committee 308 392 322 from the Board’s examinations. The Curriculum Students-at-Law applications liable for exclusion from the Sub-Committee, in consultation with the Board’s Board’s examinations 299 393 400 examiners and revising examiners, plans the curriculum for the Board’s examinations, and the Quality Sub-Committee oversees the quality of examinations and marking.

33 ADMISSION UNDER THE MUTUAL RECOGNITION ACTS

The management of applications from legal costs consultants and representative of the practitioners for admission under the Mutual Office of the Legal Services Commissioner. Recognition Acts forms another aspect of the From 1 January 2004 to 31 December 2004 there Registry’s work. The Registry liaises with the Legal were 2,203 applications lodged. Of these, 1,592 Practitioners Admission Board in performing this (72 per cent) related to costs between parties, 220 task. In 2004, 304 interstate and New Zealand (10 per cent) were brought by clients against practitioners were enrolled under Mutual practitioners, and 355 (16 per cent) were brought Recognition Acts, compared with 330 in 2003 by practitioners. The remaining applications were and 317 in 2002. Although the number of 36 applications lodged between legal practitioners practitioners enrolled under Mutual Recognition for assessment of costs either instructing Acts is generally trending downwards under the practitioners against retained practitioners and the influence of recent legislation that permits reverse. The review process, which is relatively practitioners in one State to practise in another, informal in nature, is carried out by two senior there is still a significant number of practitioners assessors of appropriate experience and seeking such enrolment. expertise and is conducted along similar lines to that used in the original assessment process. The ADMINISTRATION OF THE COSTS review panel can vary the original assessment and ASSESSMENT SCHEME is required to provide a short statement of its reasons. During 2004 there were 160 applications filed for review of costs assessments. There is still The Costs Assessment Scheme commenced on provision to appeal the review panel’s decision to 1 July 1994. It is the process by which clients and the Court, as of right on questions of law and practitioners determine the amount of costs to be otherwise by leave. These appeals are heard by paid in two principal areas: between practitioners Masters in the Common Law Division and form and their clients and party/party costs. Party/Party part of the Division’s civil caseload. There were costs are costs to be paid when an order is made nine appeals filed in 2004. from a Court (or Tribunal) for unspecified costs. The Costs Assessment section of the Registry undertakes the day-to-day administration of the Costs Assessment Scheme. The Costs Assessment Scheme is the exclusive method of assessment of legal costs for most jurisdictions. A costs assessment application enables an assessor to determine costs disputes between practitioners and clients, between practitioners and practitioners or between parties to legal proceedings. Applications under the Scheme are determined by external assessors appointed by the Chief Justice. All assessors are members of the legal profession and educational seminars are arranged for them each year by the Costs Assessors’ Rules Committee. Mr Robert Benjamin, solicitor, is the current Chair of the Costs Assessors’ Rules Committee. In conjunction with the Costs Assessment Rules Committee, a Costs Assessors Users’ Group meets on a quarterly basis to discuss issues in costs assessment from a user’s perspective. The Costs Assessors Users’ Group is chaired by Justice Barrett and consists of court assessors,

34 7 APPENDICES

35 APPENDIX (i): NOTABLE JUDGMENTS - SUMMARIES OF DECISIONS The Court’s full text judgments are accessible online at: http://www.lawlink.nsw.gov.au/lawlink/caselaw/ll_caselaw.nsf/pages/cl_sc

1. Adler v Director of Public Prosecutions supplied products containing asbestos that were This appeal was brought against the refusal of the used in the construction of the power station. 1. Where there are trial judge, Mr Justice James, to permanently stay Rolls Royce and Pacific Power cross-claimed separate civil and the prosecution of the appellant on the grounds against James Hardie for contributions to the criminal proceedings of abuse of process because of exposure to damages each became obliged to pay to Mr Hay. sharing a commonality double jeopardy. The appellant submitted that Each obtained an order for a contribution of 50 of facts, there is no he had already been punished for the conduct per cent from James Hardie. James Hardie exposure to double that was subject to criminal prosecution, by virtue cross-claimed against the State of New South jeopardy if the of earlier civil proceedings brought by ASIC. Wales for an order for contribution towards any elements of the He argued that it was the commonality of facts sum it might be ordered to pay by way of offences are not in both proceedings, not the elements of the contribution to Rolls Royce and Pacific Power. identical offence, which were relevant to the rule against It contended that the State negligently failed to double jeopardy. exercise its powers under the Scaffolding and Lifts Act 1912 (NSW) by not adequately inspecting the The Court of Criminal Appeal held that the site at which Mr Hay was working and not giving prosecution was not an abuse of process. Their appropriate directions as to the dangerous Honours found that the criminal offences were manner in which the work was being carried out. different in important respects from all of the causes of action in the civil proceedings. Eventually, after further litigation concerning In particular, the findings and orders made in the James Hardie’s claim against the State, it was the civil proceedings were based on a civil standard subject of a judgment by the High Court, the result of proof and the elements were not identical. being that the matter was remitted to the Court The situation of the appellant was thereby of Appeal to consider whether the claim should fail distinguished from the situation in The Queen v on the ground that the State owed no duty of care Carroll (2002) 213 CLR 635, where a perjury to Mr Hay. indictment for denials made at trial was manifestly The Court of Appeal drew a number of inconsistent with an acquittal for murder. Further, propositions from the leading authorities dealing the ‘double jeopardy’ that was the focus of Carroll, with negligent performance of statutory duties. involved multiple prosecutions, that is, repeated In particular, it noted that, generally, a public jeopardy of criminal punishment for the one authority, which is under no statutory obligation incident. The appellant’s case did not involve to exercise a power, owes no common law duty repeated prosecutions. of care to do so. A duty of care does not arise Bench: Mason P; Grove J; Barr J. merely because an authority has statutory Judgment citation: Adler v Director of Public powers, the exercise of which might prevent harm Prosecutions [2004] NSWCCA 352 to others. The existence of statutory powers and Judgment date: 15 October 2004 the prior exercise of those powers from time to time do not, without more, create a duty to 2. AMACA Pty Ltd exercise those powers in the future. Knowledge (Formerly known as James Hardie & Coy Pty that harm may result from a failure to exercise Ltd) v The State of New South Wales & Anor statutory powers is not itself sufficient to create Mr Hay, while employed by Rolls Royce when it a duty of care. An authority may by its conduct, was constructing the Wallerawang Power Station however, attract a duty of care that requires the for the Electricity Commission of New South Wales exercise of power. The Court of Appeal identified (now Pacific Power), was exposed to asbestos several categories in which the duty of care may dust and fibre and, some 30 years later, be attracted by a statutory authority, one being contracted mesothelioma. He brought an action of particular relevance to the case, namely, where for damages against Rolls Royce and Pacific an authority exercises control, generally, over any Power (the owner and occupier of the power situation that contains with it a risk of harm station). Rolls Royce and Pacific Power consented to others. to judgment in favour of Mr Hay. James Hardie (AMACA’s previous name) manufactured and

36 Applying these principles to the facts of the case, the purposes of the legislation. During the course 2. Knowledge that the Court of Appeal noted that the circumstances of its judgment the Court of Criminal Appeal harm may result from were not exceptional. The State was not the sole considered the factors that would increase the a failure to exercise entity with knowledge of the potential dangers moral culpability of a high range PCA offender. statutory powers of the site. Its control over the site was limited. The Court of Criminal Appeal held that in an is not in itself There was a tier of commercial entities in whom ordinary case of the offence the following factors sufficient to create control over the activities of Mr Hay and the would be present: the offender had prior good a duty of care hazardous products with which he was required character with little or no traffic record; the to work were vested. The practical capacity of offender pleaded guilty; there was little or no risk the State to prevent danger to Mr Hay was of re-offending and there would be a significant substantially less than that of the others involved. inconvenience to the offender by loss of licence. 3. For serious high The acts of the State did not increase the risk of The presence of the factors would not themselves range PCA offences, harm to Mr Hay. Recognition of a duty of care justify an order dismissing the charge under imprisonment of would render the State liable to a massive section 10 nor would they amount to good some kind will obligation. Accordingly, the State owed no duty reasons for reduction of the automatic licence generally be the of care to Mr Hay. disqualification period. Nor could a conviction appropriate penalty; Bench: Mason P; Ipp JA; McColl JA. be avoided by the use of section 10 simply for other high range Judgment citation: AMACA Pty Ltd because the offender had attended, or was to PCA offences, (Formerly known as James Hardie & Coy Pty Ltd) attend, a driver’s education or awareness course. dismissal of charges v The State of New South Wales & Anor and reductions to The guideline judgment also details circumstances [2004] NSWCA 124 the automatic in the commission of the offence that would Judgment date: 17 May 2004 disqualification period increase the moral culpability of a high range PCA would rarely offender. These factors include: the degree of 3. Application for a Guideline Judgment be appropriate intoxication above 0.15; erratic or aggressive Concerning the Offence of High Range driving; a collision between the vehicle and any Prescribed Concentration of Alcohol other object; competitive driving or showing off; The Attorney General for New South Wales made the length of the journey at which others are an application to the Court of Criminal Appeal exposed to risk and the number of persons pursuant to section 37 of the Crimes (Sentencing actually put at risk by the driving. In such cases, Procedure) Act 1999 for a guideline judgment with an order under sections 9 or 10 would very rarely respect to the offence of driving with a high range be appropriate. Where several aggravating factors PCA, a summary offence generally dealt with are present to a significant degree, imprisonment in the Local Court. The Attorney General of some kind would usually be the appropriate submitted that sentences imposed for that sentence. offence were generally inadequate and, in particular, that there was too much use being In relation to sentencing for second or subsequent made of a provision permitting a court to dismiss offences, the guideline states that orders under a charge notwithstanding that the offence was section 9, whereby sentence is deferred on the found proved, see section 10 of the Crimes offender being placed on a bond, or under section (Sentencing Procedure) Act 1999. The Attorney 10 would rarely be appropriate. For such an General also submitted that the courts were too offence, a community service order would frequently reducing the automatic period of generally be inappropriate. disqualification that applied following conviction In the most serious cases, where not only is the for that offence. offence a second or subsequent offence, but the The Court of Criminal Appeal delivered a guideline offender’s moral culpability is also increased by judgment that indicated, in general terms, the one or more of the aggravating factors referred to options available to a court when sentencing for above, the guideline indicates that imprisonment an offence of high range PCA depending upon the of some kind would generally be the appropriate moral culpability of the offender and whether the sentence. Further, where any number of offence was a “second or subsequent offence” for aggravating factors are present to a significant

37 degree, or where the prior offence is a high range authority of the licence or any other financial PCA offence, full-time imprisonment should benefit or financial advantage from the carrying 4. Poker machine generally be the sentence imposed. on of the business whether the entitlement arose entitlements are at law or in equity or otherwise. Section 19(6) a distinct type Bench: Spigelman CJ; Wood CJ at CL; Grove J; provided that a person was not to be considered of property and Dunford J; Howie J. as having a financial interest by reason only of the interests in the Judgment citation: Application by the Attorney person being the owner of the hotel. entitlements are General under Section 37 of the Crimes separate from (Sentencing Procedure) Act for a Guideline The Board had concluded that Jabetin did not interests in hotelier’s Judgment Concerning the Offence of High have a financial interest in the hotelier’s licence and licences Range Prescribed Concentration of Alcohol approved the transfer of some of the entitlements; Under Section 9(4) of the Road Transport the Court affirmed the Board’s decision, rejecting (Safety and Traffic Management) Act 1999 Jabetin’s application for judicial review. The Court [2004] NSWCCA 303 held that section 19(5) was an exhaustive Judgment date: 8 September 2004 definition. The concept of financial interest in section 19(3)(c) was of wide import, section 19(5) 4. Benwine Pty Ltd v Jabetin Pty Ltd and referred to specific categories, also of wide import, Liquor Administration Board NSW; Jabetin and section 19(6) excluded a specific category Pty Ltd v Liquor Administration Board & Ors suggesting that the word “taken” in section 19(5) Two proceedings were heard together. A dispute was not intended to add further categories to had arisen between lessor (Jabetin Pty Ltd) and those included in the natural meaning of a financial lessee (Benwine Pty Ltd) over the transfer of poker interest but, rather, was intended to define what machine entitlements. During the course of were financial interests for the purpose of section proceedings, the Court considered the nature 19(3)(c). of poker machine entitlements and the validity The Court held that Jabetin had no interest in of the Liquor Administration Board’s approach to the goodwill of the business. Goodwill was the the transfer of entitlements following Jabetin’s legal right or privilege to conduct a business application for judicial review. in substantially the same manner and by Jabetin Pty Ltd leased its hotel to Benwine Pty substantially the same means that had attracted Ltd. Benwine purchased the business, goodwill custom to it. Goodwill arose from Benwine’s and furniture of the hotel, including a number conduct under the hotelier’s licence. Jabetin was of poker machines. Benwine held the hotelier’s entitled to enforce covenants in its lease but licence. When the New South Wales government those were not entitlements at which section 19(5) froze the number of gaming machines that could was directed. Its categories were entitlements to be operated in a hotel, 15 poker machines had benefits derived from the carrying on of the been acquired and maintained by Benwine. business. Jabetin was confined to receipt of Fifteen poker machine entitlements were allocated periodic rent. in respect of the licence. Benwine sought a The Court also held that poker machine declaration from the Court that Jabetin Pty Ltd did entitlements were property. They had a clear not have a financial interest in the hotelier’s licence. identity, were recognisable by third parties, were The Gaming Machines Act 2001 required the transferable to third parties and had a degree of approval of the Liquor Administration Board to permanence, and as such, a resulting trust in a transfer of poker machine entitlements. Section favour of Benwine would arise in respect of any 19(3)(c) required the Board to be satisfied that of the 15 poker machine entitlements held upon the transfer was supported by each person who, the expiry or earlier determination of the lease. in the opinion of the Board, had a financial interest Bench: Gzell J. in the hotelier’s licence. Section 19(5) provided Judgment citation: Benwine v Jabetin; that a person was taken to have a financial interest Jabetin v Liquor Administration [2004] NSWSC 995 if the person was entitled to receive any income Judgment date: 1 November 2004 derived from the business carried on under the

38 5. British American Tobacco Australian rather than to material which may lead to 5. Consideration of Services Limited v Sharon Y Eubanks for the discovery of evidence. The history of the the principles the United States of America; Australian legislation implementing the Hague applicable when the Nicholas Basil Cannar v Sharon Y Eubanks Convention on the Taking of Evidence Abroad Court is requested to for the United States of America; in Civil or Commercial Matters, as well as the take evidence for use British America Tobacco (Investments) desirability of internationally uniform interpretation in foreign judicial Limited v Sharon Y Eubanks for the United of such a treaty, indicates that British cases proceedings States of America Findings in judgment No 1 drawing a distinction between evidence and discovery should generally be followed in Australia. The government of the United States commenced The terms of a letter of request are not conclusive. proceedings in the USA against a number of In this case the letter of request sought evidence tobacco companies, alleging a conspiracy to for the purpose of the US proceedings within the deceive customers into smoking. A letter of meaning of the Act. A general determination of the request for international judicial assistance was apparent relevance of the evidence is all that is issued to the Registrar of the New South Wales required. It is not necessary for the Supreme Court Supreme Court asking that the New South Wales to be satisfied that the evidence sought by a letter Supreme Court obtain evidence from Mr Cannar, of request is both admissible and will be admitted a former senior solicitor of one of the tobacco in the foreign proceedings before making an order companies in both the UK and Australia, in relation pursuant to section 33 of the Act. to certain matters identified in the letter of request. Leave to appeal was otherwise refused. The Court Orders were made for Mr Cannar’s evidence to be held that her Honour was correct to exercise her taken in ex parte proceedings pursuant to section discretion to give effect to the letter of request. Her 33 of the Evidence on Commission Act 1995 Honour was entitled to exercise the discretion (NSW) (“the Act”). notwithstanding that it may expose Mr Cannar to Mr Cannar sought to have the orders set aside civil or criminal proceedings. Section 33 of the Act on a number of grounds including that the letter operates subject to section 34 of the Act, which of request sought an examination of a character contains a comprehensive regime to protect the which went beyond obtaining “evidence” within privilege of witnesses. Similarly, the Court held that the meaning of the Act and therefore the Court her Honour had committed no error of principle in lacked jurisdiction or power to make the orders. rejecting the tender of certain evidence. British American Tobacco Co (UK) (“BATCo”) In relation to the BATCo application, leave to claimed that certain exhibits attached to the letter appeal was refused. Justice Bell’s reasons for of request were the subject of legal professional rejecting the application made by Mr Cannar did privilege and could not be adduced into evidence, not indicate that her Honour had relied on the notwithstanding that the documents in question material that was the subject of the privilege claim. were already in the public domain, including being As such, the result would have been no different fully accessible on the internet. British American if the particular exhibits had not been tendered. Tobacco Australia Services Limited (“BATAS”), the Furthermore, BATCo had lost whatever privilege Australian affiliate of BATCo, sought to be joined it may have had in the documents under section as a party to the proceedings, on the basis that it 122(4) of the Evidence Act 1995 (NSW), because had a right to confidentiality and legal professional the substance of the evidence had already been privilege in information known by its former legal disclosed with the express or implied consent officer. Her Honour Justice Bell rejected all three of BATCo to claim privilege. BATCo had impliedly applications and Mr Cannar, BATCo and BATAS consented to the disclosure of the documents each sought leave to appeal. to the public by voluntarily entering into a consent In relation to the Cannar application, leave to judgment that put in place a procedure whereby appeal was granted in relation to the jurisdiction such documents could be made public if BATCo’s and power issue but the appeal was dismissed. objections, which were allowed by the procedure, The Court held that the word “evidence” in the were unsuccessful. Consent under section 122(4) Act refers to material to prove or disprove facts of the Evidence Act is not determined by the fact

39 that the claimant of legal professional privilege notified to the Commission. The plaintiff’s health does not want the documents made public. was seriously affected by the trauma. 6. Wrong finding of 'child abuse' by a In relation to the BATAS application leave to His Honour Justice Palmer held that the plaintiff sporting association appeal was refused. Her Honour was entitled to had been denied procedural fairness and had and its effect under refuse BATAS’s application to be joined. There is been denied her rights to a hearing in accordance the Commission for no general rule requiring the joinder of a third party with the organisation’s constitution and rules. Children and Young where a person is ordered to disclose confidential The Court set aside the finding and directed the People Act 1998 information or documents belonging to that defendant to notify the Commission of the result. third party. Her Honour had indicated that BATAS His Honour found that the Court’s intervention in could attend the examination and assert its claim the conduct of disciplinary proceedings leading to to privilege. notification under section 39 of the Commission 7. The Commonwealth Bench: Spigelman CJ; Handley JA; Bryson JA. for Children and Young People Act was not Constitution authorised Citation: British American Tobacco Australian contrary to any express or implied provision in the an interstate witness Services Limited v Sharon Y Eubanks for Act but was, instead, necessary when an injustice to be compelled to give the United States of America; Nicholas Basil had been done. evidence in a criminal Cannar v Sharon Y Eubanks for the United investigation Justice Palmer endorsed the observation of States of America; British America Tobacco Mr Justice Young, Chief Judge in Equity, in (Investments) Limited v Sharon Y Eubanks for the Hedges v Australasian Conference Association United States of America [2004] NSWCA 158 Ltd [2003] NSWSC 1107 to the effect that the Judgment date: 18 May 2004 burden borne by voluntary organisations to police child abuse under the Commission for Children 6. Carter v NSW Netball Association and Young People Act may well be too heavy. This case highlighted the serious injustice which Justice Palmer concluded that the circumstances can result when a voluntary organisation, such as of the present case demonstrated that the a sporting club or charity, conducts its own notification procedure under section 39 required investigation into alleged child abuse and its urgent review by the legislature. finding is then recorded under section 39 under the Commission for Children and Young People Bench: Palmer J. Act 1998 (NSW). The investigation or disciplinary Judgment citation: Carter v NSW Netball hearing may be inadequate or flawed or may deny Association [2004] NSWSC 737 the accused person procedural fairness, yet the Judgment date: 17 August 2004 finding will be entered without further scrutiny in the Commission’s records and can thereafter 7. Dalton v NSW Crime Commission seriously affect the accused person’s employment This appeal concerned the validity of leave to prospects and general standing in the community. serve a summons upon the plaintiff, resident in Victoria, to attend and give evidence before the The plaintiff was a netball coach and president New South Wales Crime Commission, granted by of a voluntary sporting club. She was accused Justice Greg James pursuant to section 76 of child abuse by a group of opponents in the Service and Execution of Process Act 1992 (Cth). club’s organisation. The organisation appointed The appeal was dismissed (by majority). an investigator who took evidence only from the accusers’ witnesses and refused to take The critical question was whether section 76, in evidence from the plaintiff’s witnesses. The club’s so far as it extended to interstate summons to disciplinary committee did not follow the attend a commission of inquiry, was supported procedural requirements for a hearing under the by s51(xxiv) Constitution, which confers on the organisation’s constitution. The plaintiff was found Commonwealth the power to make laws with guilty of “child abuse” although the charges respect to “the service and execution throughout amounted to no more than that the plaintiff had the Commonwealth of the criminal and civil process engaged in excessively enthusiastic coaching and the judgments of the courts of the States.” of netball teams. The finding of child abuse was

40 Chief Justice Spigelman (Justice Wood, Chief Prior to pursuing the first appeal Mr Dyktynski’s 8. The indemnity Judge at Common Law, agreeing) adopted a solicitors wrote to him asking him to sign a costs principle should be broad and purposive construction of the words agreement. The covering letter explained that the applied to ensure “civil and criminal process”, holding that placitum appeal had been brought in his name, that he that a real party with (xxiv) extended to the authorisation of federal laws would not be required to pay any legal costs an interest in the designed to facilitate and ensure the efficacy whatever the outcome and that this was because litigation can recover of the enforcement of the criminal laws of the the proceedings did not stand to benefit him in the costs incurred in State. Accordingly, section 51(xxiv) encompasses any way but were brought to determine a legal proceedings brought compulsory attendance to give evidence in principle for the assistance of the firm. The costs in another’s name a criminal investigation by a statutory authority. agreement provided that Mr Dyktynski would “not have to pay any costs or disbursements to us in Justice Mason (dissenting) decided that the relation to the proceedings”. placitum did not extend to a subpoena issued by a commission of inquiry into criminal conduct. In the first appeal the Court of Appeal held that His Honour’s view was that the phrase “civil and Mr Dyktynski was entitled to interest on costs: criminal process” does not extend beyond Dyktynski v BHP Titanium Minerals Pty Limited process associated with the establishment of legal [2001] NSWCA 54; (2001) 50 NSWLR 710. rights or the enforcement of the criminal law. The Court of Appeal ordered the respondent to pay Mr Dyktynski’s costs of the first appeal and Bench: Spigelman CJ; Mason P; Wood CJ at CL. of the motion in the Compensation Court. In an Judgment citation: Dalton v NSW Crime assessment of costs pursuant to section 202 Commission [2004] NSWCA 454 of the Legal Profession Act 1987 (NSW), the costs Judgment date: 15 December 2004 assessor concluded that the indemnity principle operated to preclude Mr Dyktynski recovering the 8. Dyktynski v BHP Titanium Minerals Pty Ltd costs of the first appeal. The costs assessor’s This case concerned the question of whether decision was affirmed on review and by Master an agreement between the appellant and his Malpass on an appeal pursuant to section solicitor which provided that the appellant would 208L of the Legal Profession Act 1987 (NSW). not have to pay any costs or disbursements This appeal was brought, by leave, against the to his solicitors in relation to Court of Appeal orders made by Master Malpass. proceedings brought in his name but for the solicitors’ benefit (the “first appeal”), precluded The Court of Appeal concluded from a review the appellant from recovering the costs of the of authorities that courts have consistently held appeal from the unsuccessful respondent. that a nominal plaintiff, whether one who had not Resolution of the issue turned on the ambit of the incurred any liability for costs or who had received indemnity principle which is that, as party/party an express indemnity in respect of such costs was costs are an indemnity for costs incurred by the entitled to a costs order even though the benefit client, a successful party cannot recover costs if of that costs order enured to a third party with an he or she is not liable to pay them to the solicitor. interest in the litigation. Such a result was just because, historically, “costs” were understood as Mr Dyktynski brought proceedings in the an indemnity to the real party bringing the action Compensation Court against the respondent. without regard to the liability of the nominal party, An award was made in his favour. The respondent whose name must necessarily appear on the was ordered to pay Mr Dyktynski’s costs. record. In such cases the indemnity principle The solicitors for the parties agreed those costs. operated on the substance rather than the form The respondent paid the agreed costs soon after to produce a sensible and just result. the agreement, approximately 11 months after the costs order was made. Mr Dyktynski’s solicitors The Court of Appeal said that the nominal sought interest on the costs. The respondent plaintiff cases were based upon the proposition refused to pay interest. Mr Dyktynski’s application that costs have been incurred by the “real” not the in the Compensation Court for an order for the “nominal” party and that costs are a “necessary interest was refused. The appellant appealed to consequence of a party having created litigation in the Court of Appeal (the “first appeal”). 41 which he has failed.” The cases recognise that subsidiaries. The provable claims against the the indemnity principle must be “reasonably companies if a winding up occurred would be 9. By order, the understood and applied.” Applying the indemnity small. The directors, after receiving advice, wished Court protected principle to ensure that a real party with an interest to continue to pay all current claims until the directors of a trust for in the litigation can recover the costs incurred in inquiry released its report and they had time to asbestos victims from proceedings brought in another’s name accorded study it, which they estimated to be approximately the consequences with the proposition that “it is just and reasonable two months. They also took the view that, with of meeting current that the party who has caused the other party to their knowledge and experience, they should stay claims incur the costs of litigation should reimburse that in office to administer the companies and the party for the liability incurred”. trust. The directors could not secure insurance covering the risk of personal claims being made The Court of Appeal observed that the principle against them, and were concerned that they that a Court was empowered to order costs in would become personally liable if they continued favour of a nominal party secured against a costs to pay current claims in full. order by a “real party” was mirrored by the Court’s power to order costs against the “real party” to The directors sought relief under section 1318 of a suit as considered in Knight v F P Special Assets the Corporations Act 2001 (Cth) to excuse them Limited [1992] HCA 28; (1992) 174 CLR 178. from liability for taking this action. MRCF sought judicial advice under section 63 of the Trustee Act Bench: Mason P; McColl JA; Davies AJA. 1925 (NSW) to the effect that it was justified in not Judgment citation: Dyktynski v BHP Titanium seeking the appointment of a provisional liquidator Minerals Pty Ltd [2004] NSWCA 154; 60 to the subsidiaries. The applications were referred NSWLR 203 to the Court of Appeal. Judgment date: 14 May 2004 The Court of Appeal dismissed the Trustee Act application on the basis that it was inappropriate 9. Edwards & Ors v Attorney General & Anor to give the judicial advice sought. There was doubt Two subsidiaries of James Hardie Industries Ltd as to whether the trust was in fact a charitable traded in asbestos products. It was likely that trust and it was inadvisable to assume the facts as injury would be caused to their workers and to presented by the applicants. There may have others over a period of forty years. There was been an elision of roles. The problem had arisen in no way to identify possible claimants. Estimates the subsidiary companies and was the concern of the amount likely to be claimed were made. of the directors of the trustee company in their A company, Medical Research and Compensation capacity as directors of the subsidiaries. Foundation (MRCF), became the holding company for the two former subsidiaries. MRCF The Court of Appeal held that section 1318 of the was the trustee of a trust under which the two Corporations Act permitted the Court to protect subsidiaries were to continue in operation and directors from claims made by third parties. pay their debts, including claims for asbestos The Court of Appeal also held that section 1318(2) related injury. James Hardie had provided MRCF had no prospective operation. It was foreseeable with funds intended to meet these liabilities. that claims to be made against the assets of the The instrument creating MRCF described the trust subsidiaries would exceed those assets. People as a charitable trust. Proceedings were instituted who have not yet suffered injury are neither by MRCF as trustee of the trust and by the prospective nor contingent creditors of those directors of MRCF, who were also directors of companies and would gain nothing by the the subsidiaries. appointment of a provisional liquidator or by any winding up process. At the time of the hearing an inquiry was being conducted into the problems connected with The Court of Appeal held that in all the claims against James Hardie. The directors circumstances the course adopted by the became aware that there were potential claims plaintiffs, i.e. to pay current claims and stay in against the companies which would considerably office to administer the companies and the trust, exceed the assets of MRCF and the two was the reasonable course.

42 The Court of Appeal made orders that each of the The situs of the debt created by a deposit in a $US 10. A foreign bank directors be relieved from any negligence, default, account in Sydney was Sydney, the discharge of situated in Sydney breach of trust or breach of duty in their capacity that debt was governed by the proper law of the remained liable under as directors of MRCF and the subsidiaries arising contract which was the law of New South Wales, contract to repay out of payments made by those companies for and the funds could only be attached in Sydney. a deposit even debts, including debts arising in respect of Bench: Spigelman CJ; Handley JA; Santow JA. though authorities asbestos-related liabilities, up until the date of Judgment citation: European Bank had purported to judgment. The Court of Appeal gave liberty to Ltd v Citibank Ltd [2004] NSWCA 76. seize the funds in the plaintiffs to apply for a similar order until a date Judgment date: 25 March 2004 the USA approximately two months after the expected date of publication of the inquiry’s report. 11. Fatimi Pty Ltd v Bryant & 2 Ors Bench: Spigelman CJ; Mason P; Young CJ in Eq. In 1994 the appellant, a judgment creditor of Citation: Edwards & Ors v Attorney General Rylegrove Pty Ltd, registered a writ of execution & Anor [2004] NSWCA 272 against the title of a block of vacant land which Judgment date: 6 August 2004 was the debtor’s only unencumbered asset. In July 1995 it filed and served a summons for the 10. European Bank Ltd v Citibank Ltd winding up of the debtor based on its failure to The appellant made a US dollar deposit with comply with a statutory demand. In that month the respondent in Sydney. The funds were a bank also obtained judgment against Rylegrove transferred to the respondent by the appellant’s and on 11 August it too served a statutory demand. correspondent bank in New York, which made The company was wound up on 7 September. a payment to the respondent’s correspondent On 8 August 1995 the company entered into bank in New York. The contract between the a contract to sell its vacant block of land on appellant and the respondent for the US dollar terms that were extremely advantageous to deposit in Sydney contained a Force Majeure the purchasers, and it transferred the land the clause which protected the respondent if its same day without receiving the purchase price. performance of an obligation was prevented or The liquidator had the transfer set aside. hindered due to reasons beyond its reasonable control. The appellant brought an action for conspiracy against the directors of the company, a former A United States District Court warrant, directed director, the purchaser and its directors. The trial to the United States Marshal which purported judge held that the defendants had not acted for to seize the appellant’s funds in the respondent’s the predominant purpose of injuring the appellant account with its correspondent bank in New but to protect the property from the company’s York, was served in New York on the creditors for the benefit of its shareholders. correspondent bank. The correspondent bank He also held that, for this reason, a conspiracy paid $US8,110,073.30 to the United States to injure the appellant by unlawful means had not Marshal and debited the respondent’s account been established. The appellant also failed to with this payment. When the appellant sued the establish that the conspiracy had caused it any respondent in Sydney to recover its deposit, the loss because the judge found that the bank would respondent relied on the Force Majeure clause. have acted to prevent it completing its execution The trial judge upheld this defence and dismissed and retaining the proceeds for its own benefit. the action. Judgment was therefore given for the defendants. On appeal, the Court of Appeal held unanimously The plaintiff appealed contending that a that $US funds in a bank account in Sydney held conspiracy to injure by unlawful means had been with the respondent could not be attached in the established and sought awards of compensatory United States. The Court of Appeal held that the and exemplary damages. funds paid into the respondent bank’s own The Court of Appeal held that the tort of account in New York were its own funds and not conspiracy to injure by unlawful means does not those of the depositor. require proof that the defendants intended to harm

43 the plaintiff. It will be sufficient that the conspiracy them and was seen as conferring no more than and the unlawful means were aimed at the plaintiff a right to remove at the end of the licence term. 13. Damages are not and where this is established it will not matter that There was no valid analogy with tenant’s fixtures. recoverable by the defendants’ predominant motive was not to His Honour also held that the licence conferred no a disabled child who injure the plaintiff but to further or protect their own more than the Crown’s permission to occupy for would not have been interests. the stated purpose and that the plaintiff lacked born at all if parents a leasehold or other possessory right of the kind had been warned The majority also decided that unlawful means for necessary to resist trespass. The decision of the of the facts which the purpose of a civil conspiracy to defraud English Court of Appeal in Manchester Airport plc caused the disability included any fraudulent or dishonest conduct v Dutton (2001) recognising the right of a mere which attracted a civil remedy which could include licensee to sue in ejectment was regarded as the equitable remedies of an account of profits or inconsistent with High Court authority and was not rescission, and statutory remedies under section followed. Common law rights of the public to use 37A of the Conveyancing Act and section 596 the tidal foreshore, recognised in English cases, of the Corporations Act setting aside alienations were seen as attenuated by Crown lands of property in fraud of creditors. legislation in New South Wales. The plaintiff’s The Court of Appeal held unanimously that claims based on alleged trespass by the second exemplary damages could be awarded for the tort and third defendants were dismissed. of conspiracy but only where compensatory Bench: Barrett J. damages were recoverable. Judgment citation: Georgeski v Owners Bench: Handley JA; Giles JA; McColl JA. Corporation SP49833 [2004] NSWSC 1096 Judgment citation: Fatimi Pty Ltd v Bryant Judgment date: 22 November 2004 & 2 Ors [2004] NSWCA 140. Judgment date: 6 May 2004 13. Harriton (by her tutor) v Stephens; Waller (by his tutor) v James & Anor; 12. Georgeski v Owners Corporation Waller (by his tutor) v Hoolahan SP49833 & Ors The appellants, Alexia Harriton and Keeden Waller, The case concerned the rights of a licensee were each born disabled to a catastrophic degree. of Crown land which was the site of a jetty and They claimed damages for the harm they suffered a slipway on a bank of the Georges River. by being born in their disabled condition. They did The plaintiff owned a residential property bounded not contend that the respondents had brought in part by the mean high water mark of the about their disabled condition. Rather, they Georges River. The plaintiff held a licence from asserted that had the respondents, prior to their the Crown to use adjoining Crown land below the birth, diagnosed the circumstances that resulted high water mark, including the jetty and slipway. in them being born disabled, their suffering She sought declarations that a right of footway and loss would not have materialised. This is granted to the owner’s corporation of a nearby because, in the case of Alexia, her mother would strata scheme (first defendant) over part of her have terminated the pregnancy and, in the case land was not a right of access to the jetty or of Keeden, his parents would have ensured that slipway. That claim was not opposed and the relief he would not have been conceived. was granted. The appellants argued that the respondents The plaintiff also sought injunctive and declaratory owed them a duty of care that required each relief against two lot owners in the strata scheme, respondent to take reasonable steps to provide the maintaining that unauthorised entry by them on respective mothers or parents of the appellants the jetty and the slipway was trespass. Justice with information upon which they could base a Barrett held that the structures were fixtures and decision about whether to prevent the appellants therefore part of the Crown land. A clause of the from being born. The appellants argued that they licence declaring them to be “the property of” the had sustained legally cognisable damage caused plaintiff operated in the context of comprehensive by the respondents. contractual restrictions on her right to deal with

44 The appellants’ arguments were rejected by 14. John Fairfax Publications Pty Ltd & 14. By the application a majority of the Court. Chief Justice Spigelman Anor v District Court of NSW & Ors of the principle of said that it was not and has never been the law Following a trial in the District Court, Mr Fisher, open justice, the that a person who suffers foreseeable harm the director of a group of companies, was found District Court attributable to the negligence of another should guilty of six breaches of the Corporations Law. had no power to receive compensation. A duty of care must reflect The Crown proposed to indict Mr Fisher on twelve prevent publication ethical values generally, or at least widely, held additional charges, involving breaches of the of the verdict in a in the community. The duty asserted by the Corporations Law and the Crimes Act 1900 (NSW), criminal trial appellants should not be accepted as it does not in two subsequent trials. During the first trial, reflect such values. An action by a child, as distinct District Court Judge Norrish made a number from an action by the parents, involves an of suppression and non-publication orders, assertion by the child that it would be preferable including an order suppressing publication of any if she or he had not been born. This proposition is material revealing the jury’s verdict in the first trial. not a widely accepted ethical principle. The claimants sought declarations and orders quashing the non-publication orders, on the basis Justice Mason dissented. He held that a doctor either that a judge of the District Court had no who treats a woman who is pregnant or seeking power to make such orders, or alternatively, that to become pregnant owes her an undoubted duty the matters upon which His Honour relied in of care which extends to the care of the foetus making the orders were insufficient in law to and which is enforceable by the child if he or she warrant them. is born alive. The contention that the appellants cannot prove any loss because they cannot The Court of Appeal held that the principle of open demonstrate the monetary value of non-existence justice is a most fundamental aspect of the offends the principle that a wrongdoer bears the system of justice in Australia and exceptions to the evidential onus of establishing the existence and principle are few and strictly defined. An aspect value of offsets and collateral advantages said of the principle of open justice is the entitlement to stem from the wrong. of the media to report on court proceedings. Justice Ipp said that the question whether The District Court, as a statutory court, has only a relevant duty was owed cannot be decided such powers as are expressly conferred on it or without determining whether the harm each are necessarily implied from the express conferral appellant suffered is recoverable in law. That harm of jurisdiction upon, and grant of powers to the was not so recoverable as there is no comparator Court. The District Court has no express power against which the appellants’ damages can be to make a non-publication order of the kind made calculated. Negligence and damage must co-exist by the trial judge. Nor could such a power be to constitute a cause of action. As the appellants’ implied by the conferral of criminal jurisdiction on damages are not capable of measurement, the the District Court. The test of implication is a test damage claimed is not actionable and no duty of necessity. Where, as here, the implication of of care arises. The interests of the appellants do a power conflicts with the principles of open not attract the protection of the law and policy justice the test of necessity must be strictly considerations do not justify the recognition of the applied. It could not be said that the power to duty of care. make a non-publication order was necessary to ensure a fair trial of the accused because this The decision of the trial judge dismissing the could be achieved by means of adjournment or claims was upheld. stay. Although the District Court possessed a Bench: Spigelman CJ; Mason P; Ipp JA. limited power to make non-publication orders in Judgment citation: Harriton (by her tutor) a number of well-established categories, such as v Stephens; Waller (by his tutor) v James to protect the identity of an informer or witness, & Anor; Waller (by his tutor) v Hoolahan the suppression of a verdict did not fall into any [2004] NSWCA 93 – (2004) 59 NSWLR 694 such category. In any event, the particular order Judgment date: 29 April 2004 made by Judge Norrish should not have been made. It was directed to persons wholly unrelated

45 to the proceedings and the matters relied upon Rather, whether a patient’s right of confidentiality in making the orders were insufficient in law to had been waived depended upon whether, in 15. In applications warrant them. the circumstances of the particular case, the seeking waiver person alleging waiver had made out a prima facie of doctor/patient Bench: Spigelman CJ; Handley JA; case that a fair trial could not be had unless the confidentiality, the Campbell AJA. right of confidentiality was treated as waived. applicant must prove Citation: John Fairfax Publications Pty Ltd The same test also decided whether an action that, without the & Anor v District Court of NSW & Ors should be stayed until the plaintiff consented to his waiver, their chance [2004] NSWCA 324 treating doctors talking with the defendant’s of a fair trial is Judgment date: 15 September 2004 lawyers. His Honour was not satisfied that the compromised defendant had made out such a case. Hence the 15. Kadian v Richards defendant’s application was dismissed. The plaintiffs were a 6 year old boy, Ankur, and his parents. Ankur had been born with a congenital The case has already been described as heart defect which had not been detected until an “important judgment” by Professor Pattenden he was some months old. The plaintiffs sued in her web page updates to “The Law of a doctor who had treated Ankur during the first Professional Client Confidentiality” (Oxford few months of his life, alleging that the doctor’s University Press 2003). failure to discover the heart defect was negligent Bench: Campbell J. and that the lateness in discovering it had reduced Judgment citation: Kadian v Richards the chances of successful treatment. After the [2004] NSWSC 382 defect was discovered, Ankur had been treated Judgment date: 22 June 2004 by a different heart specialist. When the final hearing of the case was still at 16. Khan & Anor v Khan & Anor any early stage of preparation, the defendant This case concerned actual undue influence by made application for (a) a declaration from the a religious leader upon a vendor under an alleged Court that by commencing the proceedings Ankur contract for the sale of land. The plaintiffs were had waived his right to confidentiality from his purchasers under an alleged contract for the sale present treating doctors, and (b) an order that of a residential property. The defendants, Mrs Sadiq the proceedings be stayed unless and until the and Mr M R Khan, as owners of the property, were plaintiffs authorised Ankur’s present treating the vendors. All the parties were Muslim. doctors to discuss Ankur’s medical condition and Following agreement on a price between Mr M R history with the lawyers for the defendant. Khan and the plaintiffs, Mr M R Khan arranged A Canadian case decided in 1990, Hay v for solicitors to prepare a contract for sale. University of Alberta, had held that a patient’s right However, the co-owner, Mrs Sadiq refused to to confidentiality from his medical advisers ceased sell to the plaintiffs. The parties subsequently whenever the patient put his health in issue by agreed on a higher price and the plaintiffs’ claiming damages in a lawsuit. The defendant solicitors forwarded to the defendants’ solicitors submitted that the NSW courts should follow Hay. the executed counterpart of the contract. When Hay had been followed in some Canadian cases Mrs Sadiq again refused to sell, Mr M R Khan but not in others, and also had been referred to arranged a meeting with the parties and the Imam without disapproval in some decisions in England of the Green Valley Mosque. At the end of the and Ireland. meeting, an informal memorandum of sale was signed by both Mr M R Khan and Mrs Sadiq. Justice Campbell examined the extent to which Hay had been followed, or not followed, in various Justice Barrett found that the Imam had attended common law jurisdictions. He examined the the meeting with the consent of all the parties. The source of a doctor’s obligation of confidentiality, Imam was not a beneficiary of the prospective the principles according to which a right (such as transaction, but offered religious advice to assist a right to confidentiality) can be waived, and resolution of the parties’ differences. The Imam concluded that Hay should not be followed in NSW. advised that all the parties were required by an

46 Islamic precept of honourable conduct to give arising by prescription – that is, by usage over time effect to the oral bargain and to enter into as in this instance – no details of entitlement have and complete a contract for sale. Mrs Sadiq been formalised. then signed the memorandum. Based on the The use which is actually made of the site of memorandum, the plaintiffs sought an order for the easement, and which gives rise to the specific performance of the alleged contract. prescriptive easement, should define the scope. The court found that Mrs Sadiq, as a Muslim This should not be described too precisely, but woman, regarded the Imam as a person of allow for those activities which conform in nature authority, particularly in relation to matters to the existing use. Any use which falls within that of Islamic law or duty, and as capable of affecting not-too-precise description is then permitted by the her prospects in the ‘after life’. The Imam’s advice prescriptive easement, even if it is not precisely the that she must sell thus represented a religious same as the use which gave rise to the easement. instruction or, at the least, a religious exhortation However, a change in the nature of the use is not to do something she was not legally obliged to permitted. do, did not wish to do and had actively resisted. Justice Campbell held that the scope of an Mrs Sadiq was held to have been under the easement arising by prescription can be decided religious influence of the Imam when she signed by seeking to apply reasoning used in past cases. the memorandum. By their presence at the meeting, the plaintiffs had notice of that influence Bench: Campbell J. and the effect of it upon Mrs Sadiq’s will. By asking Judgment citation: Maher v Bayview Golf Club that the memorandum be prepared and signed [2004] NSWSC 275 before the parties dispersed, the plaintiffs took Judgment date: 4 June 2004 advantage of what they knew to be the religious influence of the Imam. Consequently, the bargain 18. R v TS* was unconscionable and unenforceable against On 30 August 2000 the complainant, was Mrs Sadiq’s will. accosted by a group of five youths on an afternoon suburban train. She was coaxed by Bench: Barrett J. them into accompanying them to what she was Judgment citation: Khan & Anor v Khan & Anor told would be a marijuana-smoking session. The [2004] NSWSC 1189 complainant was escorted to a toilet block in a car Judgment date: 10 December 2004 park at Bankstown. There she was raped by four of the five youths including, on the Crown case, 17. Maher v Bayview Golf Club the appellant. For many years Mr Maher, his family and visitors, had gained access to his home by crossing land After this series of rapes, the complainant was, belonging to the golf club. The golf club accepted in effect, passed on to other groups of assailants. that this use of its land gave Mr Maher the legal In each of four discrete incidents occurring right, by prescription, to an easement over its land. at various other locations the complainant was The problem arose as to how extensive the raped by various combinations of assailants. easement was: could it be used only during The appellant was not charged with any offence daylight hours; was it one which could be used related to any of those four further episodes of only for the benefit of one dwelling (and not by any serial rape. No evidence of those further episodes extra houses which might be built on Mr Maher’s was led at the appellant’s trial. land if he subdivided it); was it only wide enough The appellant on appeal was granted a separate to allow one vehicle to cross at a time; and, trial from the other offenders. The trial of the was it limited to use by non-industrial and other offenders had reached the point where the non-commercial vehicles? jury was considering its verdict. The trial of the When there is a grant of easement, the scope appellant was due to commence immediately of the activities permitted by the easement is after the jury considered its verdict. The appellant expressed. However, when there is an easement applied to the trial judge initially for a stay of six

47 months and then, subsequently, a temporary stay. do so, to persuade her to remain in the park until The trial judge refused each application. Bilal Skaf and the other men, with whom he had been in constant communication by mobile phone, The Court by majority (Justice Mason and Justice arrived in the park to seize her. Wood ) found that the trial judge should have discharged the jury as a result of prejudicial media A key issue at Bilal Skaf’s trial was whether he was coverage during his trial; and, a miscarriage properly identified by Ms D as the man who first of justice arouse as a result of prejudicial media sexually assaulted her and whether he was coverage during the trial. A new trial was ordered. present when the second (unidentified) man did so. The Court held that the directions given to the jury The adequacy of the lighting at the park was in the appellant’s trial did not remove the prejudice relevant. to a degree that enabled the trial to be not The day before verdict, the jury went home early. compromised. A conviction was not inevitable and The foreman called one of the other jurors and the circumstances left a risk of substantial they decided to visit Gosling Park. They arrived miscarriage of justice. The feelings of anger, at the park at about 8.15pm and spent about revulsion and general hostility to young Lebanese 15-20 minutes at the park determining visibility men that emanated from the media coverage at various points. of the earlier trial would have lingered heavily in the atmosphere of the appellant’s trial. Its fairness and Bilal Skaf’s appeal was successful on one ground: the appearance of its fairness were undermined to That misconduct of the jurors caused the trial to an unacceptable degree due to the unnecessary miscarry. Bilal Skaf argued that “the trial miscarried decision to direct back-to-back trials. by reason of a juror attending the scene of the alleged crime and informing himself as to the state Bench: Mason P; Wood CJ at CL; Sully J. of the lighting at the scene of the alleged crime”. Judgment citation: [2004] NSWCCA 38 *section 11 of the Children (Criminal Proceedings) The Court of Criminal Appeal found that, although Act 1987 prohibits general publication of the full the jury had been sent out to consider their judgment citation in this matter verdict, the Gosling Park experiments could not Judgment date: 4 March 2004 be considered part of the jury’s deliberations. Information obtained by the two jurors was not 19. R v Bilal Skaf, R v Mohammed Skaf evidence in the trial or properly put to them by Bilal Skaf was convicted of two counts of the judge with the knowledge of the parties. aggravated sexual intercourse without consent. Also, the evidence was obtained in circumstances His brother, Mohammed Skaf, was convicted amounting to procedural unfairness (denial of of one count of being an accessory before the fact natural justice) as the accused were unable to test to his brother’s two counts. The victim of each the material in any way. count was Ms D. The two counts of aggravated Bench: Mason P; Wood CJ at CL; Sully J. sexual intercourse without consent occurred Judgment citation: R v Bilal Skaf, at Gosling Park, Greenacre on 12 August 2000. R v Mohammed Skaf [2004] NSWCCA 37 Given the nature of this charge, the Crown had Judgment date: 6 May 2004 to prove that Mohammed Skaf knew that his brother was intending to have sexual intercourse 20. R v Studenikin without consent and in company of at least one This was an application for leave to appeal to the other person. In addition, the Crown had to prove Court of Criminal Appeal by Mr Studenikin who that he encouraged and assisted Bilal Skaf to had been sentenced in the District Court for carry out that crime. offences including the importation of ecstasy, an offence against the Customs Act (Cth). The issue The Crown case was that Mohammed Skaf’s raised by the application concerned the effect part in his brother’s crime was to entice Ms D to of the repeal of section 16G of the Crimes Act accompany him in a car, then take her to Gosling 1914 (Cth) on the sentencing of Federal offenders. Park, then seek to induce her to engage in sexual activity and then, when she proved unwilling to

48 Section 16G was enacted in order to overcome absence of remissions. The effect of the repeal 20. Since the repeal the disparity in the length of sentences to of section 16G was that the courts were no longer of s16G of the be served by Federal offenders in different authorised to take this matter into account and, Crimes Act 1914 jurisdictions within the Commonwealth depending therefore, could no longer reduce a sentence (Cth), NSW courts upon whether prison remissions were available because of it. The courts have no power, absent do not have the or not in the jurisdiction in which the offender a statutory warrant to do so, to reduce a sentence power to discount was sentenced. The section required courts, in imposed according to law. Any increase in the sentences a jurisdiction where remissions of sentences were sentences following the repeal of the section was, of Federal offenders not available, to take into account that fact and therefore, a direct consequence of the repeal to “adjust the sentence accordingly”. This State had of the provision. abolished prison remissions in 1989. The effect The Court held that the repeal of section 16G of the section was to reduce the otherwise should not result in a mathematical formula being appropriate sentence for Federal offenders by applied to the range of sentences existing at the a period equivalent to the maximum earned for time the section was operating in order to derive remissions for good behaviour; that is by a period a particular sentence or range of sentences to be of up to one third. The repeal of the section was imposed after the repeal of the provision. A court to operate from the date it came into effect should simply sentence a Federal offender in regardless of when the offence was committed. accordance with general sentencing principles The applicant came to be sentenced after the and the provisions of the Crimes Act 1914 (Cth). repeal of section 16G. The sentencing judge However, the Court commented that, if a imposed a sentence of imprisonment upon the sentencing court were minded to look at the range applicant without regard to the fact that sentences of sentences that were imposed when section previously had been reduced by section 16G. 16G applied, it had to bear in mind that the range The sentence imposed was about 50 per cent had factored into it a sentence discount that was higher than sentences imposed when section 16G no longer applicable. was in operation. Mr Studenikin’s principal Bench: Grove J; Howie J; Newman AJ. argument was that the repeal of the section Judgment citation: R v Studenikin should not result in courts in this State increasing [2004] NSWCCA 164 sentences for Federal offenders because that was Judgment date: 21 May 2004 not the intention of the repeal of the provision. It was argued that sentences should remain within 21. Robb Evans of Robb Evans & the range of sentences established as being Associates v European Bank Limited appropriate prior to the repeal of section 16G as Evans was the receiver of Benford Ltd, a company there was no suggestion that those sentences incorporated in Vanuatu. He was appointed were inadequate. It was submitted that the pursuant to the Federal Trade Commission sentence imposed was manifestly excessive when Act (US). European Bank conducted banking compared with the range that had been operations in Vanuatu and received funds into established for offences of the kind committed a deposit account in the name of Benford. Those by the appellant before the repeal of the section. funds were proceeds of fraud perpetrated by The Court of Criminal Appeal rejected the the controllers of Benford in the United States. applicant’s argument. It noted that generally the During 1998 fraudulent debits had been made to availability or otherwise of remissions was about 900,000 US credit card accounts of about irrelevant in determining the appropriate sentence US$47.5 million of which about US$7.5 million to impose for an offence, as the regulations was transferred to the Vanuatu account. European of prison sentences was a matter for the executive Bank subsequently placed those funds in its own head of government. The effect of section 16G Citibank account in Sydney. had been, however, to require the courts not only Rather than sue on the debt in Vanuatu, where the to take the unavailability of remissions into Government had raised the prospect of forfeiture account, but also to reduce the otherwise under proceeds of crime legislation, the receiver appropriate sentence to compensate for the

49 brought proceedings to recover the funds in the Equitable relief in personam was not available Citibank account, on the basis of an equitable against European Bank. The receiver had not 21. An Australian court interest in them. European Bank throughout established that his right to claim the funds in will enforce a foreign acknowledged its liability on the debt situated Vanuatu was at risk. regulatory statute in Vanuatu. At first instance, European Bank where the proceedings The appeal was dismissed with costs. (Special successfully resisted the claim on two grounds. are designed to leave to appeal to the High Court was refused.) First, that the NSW Supreme Court lacked compensate victims jurisdiction to entertain an action for the Bench: Spigelman CJ; Handley JA; Santow JA. of fraud enforcement of a foreign penal or public law. Citation: Robb Evans of Robb Evans Secondly, European Bank was found not to be & Associates v European Bank Limited constructive trustee for Benford. Evans appealed [2004] NSWCA 82 both findings. Judgment date: 25 March 2004 On appeal the Court accepted the exclusionary 22. Rufo v Hosking rule: i.e Australian courts will not enforce The appellant was diagnosed with lupus in foreign laws whose operation would secure January 1992 and began receiving corticosteroids a governmental interest, in the sense of the under the care of a specialist paediatrician. When exercise of “powers peculiar to government”. that specialist became unavailable in February of The Court held that not all statutes serving the that year, the respondent paediatric immunologist public interest fall within this concept. Whether took over the appellant’s treatment. The appellant a public interest enforced by a statute has the proved to have severe lupus, and her dosage relevant character depends upon the nature, of corticosteroids was varied over time, but scope and purpose of the provisions being remained at a very high level. In June, in the sixth enforced and the substance, rather than the form, month of corticosteroid therapy, the respondent of the proceedings. substituted the type of corticosteroid prescribed, The Court held that the Federal Trade Commission effectively increasing the dose to what was Act relevantly had the effect of putting in place determined to be a heavier than appropriate a mechanism, under that Act, by which those dosage. No steroid sparing medication was defrauded could be reimbursed for their loss. introduced. The appellant was admitted to The claim was not, as a matter of substance, hospital in August 1992 with sudden back pain a law asserting a governmental interest and, from spontaneous vertebral microfractures, which therefore, the exclusionary rule did not apply. had caused kyphosis of the spine. The osteoporosis, which led to the fractures, was On the trust issue the Court held that Benford held caused by the high dosage of corticosteroids. the stolen funds on a presumed or resulting trust for the defrauded persons. For the purposes The primary judge found that the respondent of the duty to get into the trust estate such a trust breached his duty of care by increasing the should be equated with an express trust. dosage and by not introducing a ‘steroid’ sparer. As receiver for Benford the receiver’s duty to get However it was held that the breaches did not, into the trust estate did not confer upon it an on the balance of probabilities, cause or materially equitable right to trace into and claim European contribute to the fracture injury. Bank’s deposit with Citibank. That deposit was It was accepted, in principle, that loss of a less not a substitute or transformation of Benford’s than even chance could be compensable. deposit with European Bank and did not represent The issue on appeal was whether that principle traceable proceeds of the defrauded funds. applied to the circumstances here. Was there Further, European Bank did not receive the a less than even, but still appreciable, chance that, Benford deposit for the purposes of the “knowing but for the negligence, the fractures would not receipt” principle of accessorial liability in dealing have occurred? That question was answered with the trust property. Nor did it use the Benford in the affirmative notwithstanding the difficulty that deposit in a manner inconsistent with the some level of corticosteroid treatment was trust of which it had constructive knowledge. necessary and appropriate. If it had been given

50 at the appropriate doses, with steroid sparer, there to commercial contracts whose primary parties 23. The Court of would still have been a probability greater than fifty are corporations. The issue whether the Appeal had percent that the appellant would have developed Commission has jurisdiction to avoid or vary such jurisdiction to prohibit osteoporosis and suffered vertebral fractures in contracts depends upon it being found that proceedings in the consequence. It was concluded, however, that the contract was one “whereby a person Industrial Relations this risk would have been appreciably lower with performs work in any industry”. In Mitchforce Pty Commission of New appropriate treatment than with the treatment Ltd v Industrial Relations Commission of New South Wales before she actually received, although those risks had South Wales (2003) 57 NSWLR 212 the Court a decision was made not been quantified. There was also the question of Appeal discussed the limits of that jurisdiction. of how the appellant’s other health problem Orders under section 106 may be challenged on (coeliac disease), which is known to be associated appeal within the Commission by appeal to the with osteoporosis, affected that assessment. Commission in Court Session. However, section 179 of the Act precludes the Supreme Court 24. Whether a As to the appellant’s coeliac disease, the primary (including the Court of Appeal) from entertaining development judge should have approached the assessment an appeal or from reviewing any “decision or is permissible or on the basis of presumptio hominis, which places purported decision of the Commission”. prohibited under the onus on the respondent to show that her injury a Local Environmental had other causes. This had not been shown. In Solution 6 the Court held that section 179 did Plan is a jurisdictional not preclude an order by way of prohibition, based While the effect of the corticosteroids were fact and is not upon threatened excess of jurisdiction, where the cumulative and dose related, it did not produce determined by Court of Appeal was approached before any an injury that was ‘indivisible’ and not dose related the opinion operative step was taken or order made in the in the sense that once triggered, the disease did of the Council proceedings in the Commission. The case not vary in severity according to the victim’s involved a share sale agreement whereby the exposure history. Medical science could do no purchaser bought all of the shares in a company more than assert that there was a very substantial on condition that the vendor would enter into risk of the adverse result, that this risk was an employment agreement with that company. materially increased by the negligence and that The Court of Appeal held that the sale agreement the adverse result was the realisation of the totality did not attract the jurisdiction of the Industrial of the risk; and provide some basis for quantifying Relations Commission because it did no more the chance that the adverse result would have than lead to the performance of work in an been avoided if the negligence had not occurred. indirect, remote or consequential manner. The appeal was allowed and the matter remitted Bench: Spigelman CJ; Mason P; Handley JA. for the primary judge to assess the chance and Judgment citation: Solution 6 Holdings Limited to assess damages on the basis of the evidence & Ors v Industrial Relations Commission of NSW at trial. & Ors [2004] NSWCA 200, 60 NSWLR 558. Bench: Hodgson JA; Santow JA; Campbell AJA. Judgment date: 21 July 2004 Judgment citation: Rufo v Hosking [2004] NSWCA 391 24. Woolworths Ltd v Pallas Judgment date: 1 November 2004 Newco Pty Ltd & Anor On 20 January 2003, Ashfield Municipal Council 23. Solution 6 Holdings Limited & Ors granted development consent to an application v Industrial Relations Commission by Woolworths Limited to use an existing building of NSW & Ors on Parramatta Road as a drive-through liquor The Industrial Relations Commission has outlet. A number of conditions were attached to jurisdiction to declare wholly or partly void or the grant of consent. Under the Ashfield Local vary “any contract whereby a person performs Environmental Plan 1985, development that was work in any industry” if the Commission finds that permissible with consent within the subject zone the contract is an unfair one (Industrial Relations included “drive-in take-away establishments”. Act 1996, section 106). In recent years this jurisdiction has been resorted to with respect

51 In April 2003, Pallas Newco Pty Ltd made an application for a declaration that the development consent was void and of no effect, as well as an order that Woolworths be restrained from acting on it, in the Class 4 jurisdiction of the Land and Environment Court. Justice Talbot made the declaration and order sought. His Honour held that the characterisation of the nominated permissible use for which development consent was sought and granted involved a jurisdictional fact, and that the proposed development was not a “drive-in take-away establishment”. His Honour also held that the decision should be overturned on the basis of unreasonableness. Woolworths appealed from Justice Talbot’s decision. For this case, a court of five was constituted to hear an application to reconsider Londish v Knox Grammar School (1997) 97 LGERA 1 in light of later, arguably inconsistent, Court of Appeal decisions. All five judges held that it is for the Land and Environment Court, not the approving council, to determine whether or not a development is permissible with consent or prohibited. In other words, the matter is a jurisdictional fact. Fresh evidence on the topic may be called in the Court. However, proceedings must be initiated within three months as required by the legislation. Bench: Spigelman CJ; Mason P; Handley JA; Sheller JA; Cripps AJA. Judgment citation: Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422 Judgment date: 19 November 2004

52 APPENDIX (ii): COURT STATISTICS – COMPREHENSIVE TABLE OF STATISTICS

• Filings, disposals and pending cases • Performance against time standards in 2004 • Age of pending cases at 31 December 2004 • Waiting times (where time standards are not set) • Use of alternative dispute resolution

TABLE 01: FILINGS, DISPOSALS AND PENDING CASES1 “n/a” – figures not available or not separately reported / “-” – item not applicable / “0” – zero count 20002 2001 2002 2003 2004

COURT OF APPEAL3 Filings appeals and applications for relief4 483 504 446 485 516 applications for leave to appeal 299 256 314 330 287 total new cases5 n/a 679 710 761 760 Disposals appeals and applications for relief 517 627 494 443 497 applications for leave to appeal6 301 314 264 317 273 total disposals7 656 852 707 703 728 Pending cases at 31 December appeals and applications for relief 460 337 289 331 350 applications for leave to appeal 143 112 162 175 189 total 603 449 451 506 539

COURT OF CRIMINAL APPEAL8 Filings 867 940 516 538 539 Disposals 907 923 998 578 564 Pending cases at 31 December 750 767 284 264 239

COMMON LAW DIVISION - CRIMINAL Criminal List Filings9 127 125 124 136 91 Disposals to verdict/plea or other final disposal10 107 130 112 113 112 Pending cases at 31 December11 95 69 83 105 86 Bails List Filings 2,257 2,531 2,315 2,691 2,756 Disposals 2,306 2,509 2,272 2,679 2,753 Pending cases at 31 December 143 165 209 212 240

COMMON LAW DIVISION - CIVIL Administrative Law List Filings 89 74 108 112 118 Disposals 96 97 96 125 114 Pending cases at 31 December 63 40 57 49 60 Defamation List Filings 72 63 45 50 57 Disposals 107 102 64 65 73 Pending cases at 31 December 162 122 112 105 92

Differential Case Management List12 Filings 68413 746 438 213 288 Disposals 625 461 626 527 442 Pending cases at 31 December 1,415 1,339 1,190 896 794

53 TABLE 01: FILINGS, DISPOSALS AND PENDING CASES CONTINUED 20002 2001 2002 2003 2004 Possession List14 Filings 195 129 142 91 132 Disposals 62 159 117 97 103 Pending cases at 31 December 135 89 102 76 93 Professional Negligence List Filings15 127 259 111 101 117 Disposals 423 255 236 204 157 Pending cases at 31 December 539 550 487 423 389 Summons List Filings 498 618 622 527 629 Disposals 680 934 624 505 690 Pending cases at 31 December 573 442 418 425 379

Cases proceeding by default and other applications16 Filings 2,512.17 3,143 2,662 2,829 3,545 Disposals 3,950 3,369 2,709 2,419 3,232 Pending cases at 31 December 1,217 1,153 912 1,210 1,375

Related issues cases filed before February 199418 Disposals 3,624 308 17 4 0 Pending cases at 31 December 612 304 287 283 283

COMMON LAW DIVISION TOTALS - Civil Filings 4,177 5,032 4,128 3,923 4,886 Disposals 9,567 5,685 4,489 3,946 4,811 Pending cases at 31 December 4,716 4,039 3,565 3,467 3,465

EQUITY DIVISION Admiralty List Filings 94163 Disposals 18 11 4 3 4 Pending cases at 31 December 104254 Adoptions List Filings 150 143 170 151 207 Orders made 152 129 176 75 195 Pending cases at 31 December 54 41 38 38 23 Commercial List Filings 174 196 216 181 193 Disposals 139 173 203 203 175 Pending cases at 31 December 207 217 234 218 233 Corporations List Filings 2,316 3,148 3,113 3,289 3,460 Disposals19 n/a 2,455 2,872 2,777 2,903 Pending cases at 31 December n/a 702 569 633 684 Protective List New applications 107 91 74 77 67 Disposals n/a 89 76 63 39 Pending cases at 31 December 443915

54 TABLE 01: FILINGS, DISPOSALS AND PENDING CASES CONTINUED 20002 2001 2002 2003 2004

Technology and Construction List20 Filings 45 56 69 72 93 Disposals 38 29 76 56 110 Pending cases at 31 December 68 100 93 116 98 General List Filings 1,803 1,966 2,020 2,219 2,493 Disposals n/a 2,984 2,290 2,607 2,839 Pending cases at 31 December n/a 2,212 2,391 2,436 2,956 Probate (Contentious Matters) List Filings 101 124 132 202 168 Disposals 129 136 143 174 177 Pending cases at 31 December 92 83 72 100 91

EQUITY DIVISION TOTALS Filings 4,705 5,728 5,795 6,197 6,684 Disposals 34721 6,006 5,840 6,159 6,442 Pending cases at 31 December 3,680 3,363 3,402 3,555 4,104

PROBATE APPLICATIONS (Non-Contentious)22 Applications received 20,672 20,825 21,895 21,966 22,506

TABLE 02: PERFORMANCE AGAINST TIME STANDARDS IN 2004 Standard Achieved

COURT OF APPEAL23 Disposals within 6 months of commencement 50% 32% Disposals within 12 months of commencement 90% 82% Disposals within 18 months of commencement 100% 94%

COURT OF CRIMINAL APPEAL24 Disposals within 6 months of commencement 60% 66% Disposals within 12 months of commencement 90% 93% Disposals within 18 months of commencement 100% 95%

COMMON LAW DIVISION - CRIMINAL25 Disposals within 9 months of commencement 60% 51% Disposals within 12 months of commencement 85% 83% Disposals within 15 months of commencement 95% 90% Disposals within 18 months of commencement 100% 94%

55 TABLE 03: AGE OF PENDING CASES AT 31 DECEMBER 2004 Standard Achieved

COURT OF APPEAL Total pending 539 Cases within 12 months of age 483 90% Cases within 24 months of age 531 99%

COURT OF CRIMINAL APPEAL Total pending 239 Cases within 12 months of age 212 89% Cases within 24 months of age 231 97%

COMMON LAW DIVISION - CRIMINAL1 Total pending 125 Cases within 12 months of age 75 60% Cases within 24 months of age 114 91%

TABLE 04: WAITING TIMES (WHERE TIME STANDARDS ARE NOT SET) Median finalisation time (unless otherwise indicated) 2000 2001 2002 2003 2004

COMMON LAW DIVISION - CRIMINAL Bails List – usual delay (weeks) 1-2 1-2 1-2 1-2 2-3

COMMON LAW DIVISION - CIVIL Administrative Law List (months) 6.3 7.0 4.6 5.6 4.8 Defamation List (months) 30.2 19.4 22.6 19.1 16.2 Differential Case Management List (months) n/a n/a 23.1 25.1 27.1 Possession List (months) n/a n/a 8.5 9.5 6.7 Professional Negligence List (months) 49.2 32.1 28.1 30.6 39.9 Summons List –civil matters (months) n/a n/a 2.4 3.8 2.6 Summons List – criminal matters (months) n/a n/a 8.2 7.0 15.2 Cases proceeding by default (months) 6.8 6.8 5.3 5.6 5.6

EQUITY DIVISION Admiralty List (months) n/a n/a 18.3 5.7 14.4 Adoptions List – usual finalisation time (weeks) n/a n/a 8-12 4-5 4-5 Commercial List (months) n/a n/a 10.4 14.0 10.4 Corporations List (months) n/a n/a 1.6 1.5 1.6 Probate (Contentious Matters) List (months) n/a n/a 5.0 1.7 2.8 Protective List – usual time for orders to be made (weeks) 1-8 n/a 3.5 3.5 3 Technology and Construction List (months) n/a n/a 14.0 21.9 5.4 General List (months) n/a n/a 11.3 10.1 10.3 Probate applications (Non-Contentious) – usual time for grant to be made (working days) 2 2 2 2 3

56 TABLE 05: USE OF ALTERNATIVE DISPUTE RESOLUTION 2000 2001 2002 2003 2004

Court-annexed mediation referrals Common Law Division n/a 6 8 19 7 Equity Division – not probate cases 26 143 165 133 180 284 Equity Division – probate cases n/a n/a 6 8 7 Court of Appeal27 - - 23 11 10 Percentage of cases settling at mediation 70% 60% 64% 65% 67% Arbitration referrals Common Law Division 44 21 58 44 15

1 The figures for pending cases will include cases that have been 14 This List commenced on 1 February 2000. The statistics relate to re-opened after judgment. For this reason, the figures for pending cases not proceeding by default. Cases proceeding by default are cases will not always reconcile with associated filing and disposal reported separately in this table. figures reported in this Appendix. 15 Additionally, there were 184, 50 and 47 cases transferred to this List 2 Statistics for the civil lists do not include cases where a venue other in 2000, 2001 and 2002, respectively. than Sydney was nominated for hearing. 16 This includes applications under the Mutual Recognition Act, 3 Holding notices of appeal and holding summonses for leave to Trans-Tasman Mutual Recognition Act and applications for appeal are not included in these figures. production orders. 4 This includes appeals filed pursuant to a grant of leave to appeal. 17 This figure does not include those cases in the Differential Case 5 Where an appeal is filed pursuant to a successful application for Management List that proceeded by default. Improvements to leave to appeal, this is counted as a single continuous case (not two reporting enabling this distinction to be made did not occur separate cases). until 2001 18 6 This includes applications where parties elected to have a These are cases against Dow Corning & 3M. concurrent hearing (ie where, if leave to appeal were granted, 19 These are the Registrar’s disposals only - disposals by Judges or hearing of the substantive appeal would immediately follow). The Masters are included with the General List cases. figures include all disposed leave applications, regardless of whether 20 Before 1 January 2002 this List was called the Construction List. an appeal followed. 21 This figure is incomplete because disposal figures are not available 7 Where a finalised appeal was preceded by a successful application for the Corporations, Protective and General Lists. for leave to appeal, this is treated as a single continuous case (not 22 These applications are dealt with administratively by the Registry. two separate cases). A small proportion of these applications are contested and dealt with 8 New criminal appeal procedures commenced on 1 July 2002. Filings by a Judge. The number of contested applications appears in for 2002 and 2003 are not comparable with those for earlier years. the Equity Division under the heading “Probate (Contentious 9 Includes committals for trial/sentence, ex officio indictments, re-trials Matters) List”. ordered by the Court of Criminal Appeal or High Court, separate trial 23 The measurement is from commencement to the date of judgment, granted for one or more accused, referred matters from the Mental settlement, discontinuance or striking out. Commencement is the Health Review Tribunal, transfers from the District Court, re-activated date of filing the substantive notice of appeal or, if leave to appeal is matters (eg bench warrant executed) and includes applications required, the application for leave to appeal. made under s 474D of the Crimes Act. 24 The standards from 2002 were continued for 2003, subject 10 ”Other finals disposal” outcomes are no bill, order for a bench to assessment of the impact of the new criminal appeal procedures. warrant to issue, referral to the Mental Health Review Tribunal, 25 The measurement is from the date of committal to the plea of guilty, transfer to another court, discharge of jury and order for retrial, death the verdict or other final disposal. of the accused, final judgment or order (in applications under s474D of the Crimes Act). The figure for the Disposals to verdict/plea or 26 Any referrals of admiralty, commercial or construction matters were other final disposal is the sum of all the Crime Time Standards not recorded for 2000. disposals for the year to date plus all the s 474D application 27 Before 2002 the Court of Appeal did not refer matters to mediation. disposals for the year to date. 11 Includes applications under s474D of the Crimes Act . 12 The statistics relate to cases not proceeding by default (except as indicated in endnote 10). Cases proceeding by default are reported separately in this table. 13 Not all of the 684 cases proceeded as defended cases. During 2000, it was not possible to separately report defended cases from those proceeding by default.

57 APPENDIX (iii) THE COURT’S COMMITTEES AND USER GROUPS

Chief Justice’s Policy and The Honourable Justice Bergin Planning Committee Mr M J Slattery QC The Committee meets each month to determine (NSW Bar Association) (from 7 May) strategic policy to be adopted by the Court, Mr P L Johnstone (Law Society of NSW) particularly in relation to legislative, procedural or Secretary: Mr S Jupp administrative changes that are likely to affect the Advisings Officer: Mr N Flaskas Court and its users. The Policy and Planning Committee is one of only two Court Committees Education Committee with decision-making responsibilities, the other The Supreme Court Education Committee is being the Rule Committee. responsible for the continuing education of the Caseload management remained an important Judges and Masters of the Court. It meets three focus throughout the year. Particular attention was or four times each year, primarily to discuss given to the refinement of time standards, and the arrangements for the Court’s Annual Conference. application of Acting Judge resources. The Committee also considered policy and Members during 2004 procedural initiatives submitted by the Court’s The Honourable Justice Ipp (Chairperson) other Committees detailed in this Appendix. The Honourable Justice Giles The Honourable Justice Santow OAM Members during 2004 The Honourable Mr Justice Studdert The Honourable the Chief Justice (Chairperson) The Honourable Justice Kirby The Honourable the President The Honourable Justice Bell The Honourable Justice Handley AO The Honourable Justice Gzell The Honourable Justice Giles Master McLaughlin The Honourable Justice Wood AO Ms M Greenwood The Honourable Mr Justice Young Secretary: Ms R Windeler Secretary: Ms M Greenwood (Judicial Commission of NSW)

Rule Committee Building Committee The Rule Committee meets each month to The Committee meets approximately every two consider proposed changes to the Supreme months to discuss matters affecting the buildings Court Rules with a view to increasing the efficiency within the Darlinghurst and King Street court of the Court’s operations, and reducing cost and complexes, and the Law Courts Building in Phillip delay in accordance with the requirements Street. The Committee submits recommendations of access to justice. The Committee is a statutory to the Chief Justice through the Policy and body that has the power to alter, add to, or rescind Planning Committee concerning maintenance any of the Rules contained in, or created under, and restoration work, including the desired the Supreme Court Act 1970. The Committee’s outcome from the work. The Committee also membership is defined in section 123 of the Act, identifies facilities that are required to support and includes representatives from each Division courtroom operations and the needs of Court of the Court and key organisations within the legal users. Court security remained a focus for the profession. Committee during 2004 as arrangements for the implementation of perimeter security at the Law Members during 2004 Courts Building were finalised. The Committee also The Honourable the Chief Justice (Chairperson) continued to focus on enhancing the courtroom The Honourable the President resources in King Street and monitoring the The Honourable Justice Hodgson Complex’s ongoing renovation program, as well The Honourable Mr Justice Young AO as the refurbishment of the Law Courts Building. The Honourable Mr Justice Bruce James The Honourable Mr Justice Hamilton 58 Members during 2004 Alternative Dispute Resolution The Honourable Mr Justice Sheller AO Steering Committee (Chairperson) The Alternative Dispute Resolution (ADR) Steering The Honourable Justice Giles Committee meets every two months to discuss The Honourable Justice Wood AO the Court’s ADR processes and consider ways in The Honourable Mr Justice Dunford which they might be improved. The work of the Committee is guided by the principal aims The Honourable Justice McDougall of encouraging the use of ADR (particularly Ms M Greenwood mediation) in solving disputes and ensuring Mr G Byles (Sheriff of NSW) that the Court has adequate infrastructure to Mr W Brown (Asset Management Services, provide this service. The Committee makes Attorney General’s Department) recommendations to the Chief Justice in pursuit Mr M Talbot (Corporate Services, of these objectives, occasionally in consultation Attorney General’s Department) with other courts and external organisations. Mr A Kuti (Financial Services, During 2004 the Committee reviewed the level Attorney General’s Department) of protection and immunity accorded to mediators Secretary: Ms E Stockdale in court. After examining the practices of other Australian supreme courts and the published views of relevant bodies, the Committee made Information Technology Committee recommendations to amend the draft Civil The Information Technology Committee meets Procedure Bill so that the level of protection is every three months to assess the information increased to that of a judicial officer exercising technology needs of juridical officers and their functions as such. In August 2004, the Committee staff, and to review the implementation of IT convened a productive review meeting with the six services. During the year, the Committee mediation organizations that participate in the developed a new standard operating Court’s mediation referral protocol. environment. It also continued to refine its proposed improvements to the CaseLaw system Members during 2004 to increase the database’s value as a research The Honourable Mr Justice Sheller AO tool. Lastly, the Committee engaged in successful (Chairperson) negotiations with the Attorney General’s The Honourable Justice Bryson Department for the provision of litigation support software to assist in meeting the Court’s needs The Honourable Mr Justice Studdert with respect to transcription services. The Honourable Justice Greg James Master Harrison Members during 2004 Ms M Greenwood The Honourable Justice Beazley (Chairperson) Mr G Berecry The Honourable Justice McColl AO Secretary: Ms J Highet The Honourable Justice Simpson The Honourable Justice Einstein Master Macready Ms M Greenwood Mr P Cutbush (Reporting Services Branch, NSW Attorney General’s Department) Mr J Mahon (Information Technology Services, NSW Attorney General’s Department) Ms L O’Loughlin (Law Courts Library) Secretary: Mr W Millar

59 Library Committee Court of Criminal Appeal/Crime User Group The Supreme Court Library Committee meets as The joint Court of Criminal Appeal/Crime User required to provide advice on the management of Group convened for the first time in 2004. the Judges’ Chambers Collections and Supreme Previously, the user groups targeting Court of Court Floor Collections. In 2004, the Committee Criminal Appeal and the Common Law criminal approved a major review of subscription titles in jurisdiction had met separately. The single, unified the Floor Collections and a review and updating group provides improved communication of the text collections. between the Court, its users and justice agencies, and helps ensure that the needs of all users are Members during 2004 addressed. In 2004, the Group focussed on The Honourable The President ensuring that Court of Criminal Appeal procedures The Honourable Justice Ipp (Chairperson) work effectively within the required time frames. The Honourable Mr Justice Young AO Members during 2004 The Honourable Mr Justice Sully The Honourable Justice Wood AO (Chairperson) Ms M Greenwood Ms M Greenwood Mrs L O’Loughlin (Law Courts Library) Mr J Riznyczok Secretary: Ms E Drynan (Law Courts Library) Ms N Ubrihien Jury Task Force Mr C Craigie (Public Defenders Office) The Task Force was formed by the Chief Justice Mr C Smith (District Court of NSW) in 1992 to examine and report on matters relating Mr D Barrow (Legal Aid Commission of NSW) to the welfare and wellbeing of jurors. The Task Mr D Frearson (Office of the Director Force met regularly during 2004 to discuss issues of Public Prosecutions NSW) affecting juries and jury service referred to it by Ms D Kelly (Office of the Director the Chief Justice, a head of jurisdiction, or the of Public Prosecutions NSW) Attorney General. The Task Force monitors areas Ms G Drennan (Office of Director of policy concerning jurors with disabilities, the of Public Prosecutions Cth) Sheriff’s power to disclose the identity of a juror Ms J Mathieson (Reporting Services Branch, in the event of jury tampering, and exemptions NSW Attorney General’s Department) from jury service. Ms S Archer (Reporting Services Branch, NSW Attorney General’s Department) Members during 2004 The Honourable Justice Greg James (Chairperson) Ms M Goodwin (Legal Aid Commission of NSW) The Honourable Justice Buddin Mr M Day (Office of the Director (Chairperson – December only) of Public Prosecutions NSW) His Honour Judge Shadbolt (District Court) Mr P Gibson (Law Society of NSW) Mr G Byles (Sheriff of NSW) Mr P Ryan (Aboriginal Legal Services) Ms J Atkinson Mr N Guy (NSW Department (Senior Policy Officer, Legislation and Policy of Corrective Services) Division, Attorney General’s Department) Mr P Broderick (Manager, Major works, Attorney General’s Department) Ms L Anamourlis (Manager, Jury Services) Secretary: Mr R Escott

60 Common Law Civil Users’ Committee Legal profession representatives The Committee provides a forum for discussing Mr R G Forster SC and addressing matters of concern or interest Mr C (Robert) Newlinds SC in the administration of the Common Law Mr R Harper SC Division’s civil trial workload. The Committee meets Ms A Kennedy quarterly to discuss matters including: caseload Mr J Martin management; listing practice and delays; specialist lists; jury issues, and regional hearings. Mr B Miller Ms J A Needham SC Members during 2004 The Honourable Justice Wood AO (Chairperson) Corporations List Users’ Group The Honourable Justice Hislop The Group promotes open and regular discussion The Honourable Justice Hoeben between judicial officers and legal practitioners regarding the Corporations List, and assists Ms M Greenwood in ensuring that the List is conducted in a fair Mr J Riznyczok and efficient manner. The Group met quarterly Ms N Ubrihien during 2004 to consider and discuss various issues concerning the Court’s work in Legal profession representatives corporations matters including Court procedures, Mr P Deakin QC listing arrangements, and application of the Ms N Goodman Corporations Rules. Mr P Johnstone Ms S Fernandez Members during 2004 Mr R Ishak The Honourable Justice Austin (Chairperson) Ms A Sullivan The Honourable Justice Barrett (Secretary) Mr T Hewitt SC The judicial officers of the Equity Division Mr G Berecry Equity Liaison Group Legal profession representatives This Group commenced during 2001 and met Mr C (Robert) Newlinds SC quarterly during 2004. The Group was established to promote discourse between the legal Mr M B Oakes SC profession and representatives of the Equity Mr G Cussen Division upon matters of interest and importance Mr M Hayter to the operation of the Division. The Group is Mr J Johnson informal and the meetings facilitate candid Ms L Johnson discussions about the operations of the Division. Mr D McCrostie Typically these discussions encourage cooperation Ms M O'Brien between the judges and legal profession in developing suggested improvements to the Mr J Thomson Division’s operations. Other members Ms G Hayden (Australian Securities Members during 2004 and Investments Commission) The Honourable Mr Justice Young AO Mr H Parsons (Insolvency Practitioners (Presiding Member) Association of Australia) The Honourable Justice Bergin Ms J Redfern (Australian Securities and Investments Commission) Mr K Rennie (Ernst & Young)

61 Commercial List Users’ Group Solicitors The Group provides a forum for discussion Ms S C de Jersey amongst Judges who sit in the Commercial List Mr R J Drinnan and the Technology and Construction List, and Mr R K Heinrich legal practitioners who practise in those lists. Mr M R Hughes The Committee met by arrangement during 2004 Ms L E Johnson to discuss various issues concerning the administration of the lists. Typically the Group Mr R G Johnston considers matters of procedure and practice Mr P J Keel in relation to the lists and the potential for revision Mr H D Keller to ensure that the lists operate as efficiently Mr D J Kemp as possible. Mr S H Klotz Mr S R Lewis Members during 2004 The Honourable Justice Clifford Einstein Mr G A McClellan The Honourable Justice Bergin (Chairperson) Mr S A McDonald The Honourable Justice McDougall Ms N K Nygh Ms M A Pavey Legal profession representatives Ms R S Persaud Barristers Mr R W Schaffer Mr T Alexis SC Mr G P Standen Mr M A Ashhurst Mr M W Watson Mr T F Bathurst QC Mr S D Westgarth Ms E A Collins Probate Users’ Group Mr L V Gyles The Group meets quarterly to discuss matters Mr N C Hutley SC concerning the operation of the Court’s Probate Mr J C Kelly SC work. The Group considers improvements to Mr G C Lindsay SC practices and processes and makes Mr R B Macfarlan QC recommendations to the Rule Committee when appropriate. The Group also discusses specific Mr G T Miller QC issues pertinent to probate matters and deceased Ms E M Olsson SC estates generally. Ms R P Rana Mr S D Rares SC Members during 2004 Mr S D Robb QC The Honourable Mr Justice Windeyer AM RFD ED Mr M G Rudge SC Ms M Greenwood (from April 2003) Mr R M Smith SC Mr J Finlay Professor R Croucher (Macquarie University, representing NSW law schools) Ms R Edenborough (Perpetual Trustee Company, representing corporate trustees) Mr R Neal (Law Society of NSW) Mr P Whitehead (Public Trustee NSW) Mr M Willmott (NSW Bar Association) Secretary: Mr P Studdert

62 Media Consultation Group Civil Registry Users’ Group The Media Consultation Group was established The Civil Registry Users’ Group meets approxi- in 2002 to promote open discussion between key mately every four months to facilitate open representatives from the courts, legal profession discussion between the Court and key users and media. The aim of the Group is to identify regarding the delivery of civil registry services. issues affecting the reporting of court proceedings The Group was established to assist the Court by the media. Some of the issues considered by in identifying and meeting the needs and the Group included access to court records and expectations of its users. In 2004, the Group the implications for the media when a suppression considered and analysed the results of a or non-publication order is issued. The Group comprehensive client satisfaction survey of civil meets on a needs basis. The Group met once registry users. during 2004 and will convene as required in the future. Members during 2004 Ms M Greenwood Members during 2004 Ms N Ubrihien The Honourable Justice McColl AO (Chairperson) Mr R Rosman (Law and Order) The Honourable Justice Wood AO Ms L Allen (Minter Ellison) The Honourable Justice Kirby Ms D Hallet (Blake Dawson Waldron) The Honourable Justice Nicholas Ms K Davidson (Deacons Lawyers) Her Honour Judge Karpin (District Court of NSW) Mr D Willoughby (Thomson) Ms S Zadel (Public Information Officer, NSW superior courts) Ms K Ashbee (Media Manager, NSW Police; until November) Mr P Zahra SC (Senior Public Defender) Ms N Ferraz (AAP Sydney Bureau Chief) Mr R Coleman (Fairfax Legal) Mr S Collins (ABC Legal) Mr M Cameron (News Ltd Legal) Mr D Smith (Channel 7 Reporter) Mr A Stewart (Channel 9 Legal) Secretary: Ms S Palagummi

63 APPENDIX (iv): OTHER JUDICIAL ACTIVITY

As well as hearing and determining cases, Judges and Masters actively contribute, both in Australia and overseas, in matters touching upon the law and legal education. Their contribution includes activities such as presenting papers and speeches at conferences and seminars, submitting articles for publication, giving occasional lectures at educational institutions, meeting judicial officers from courts around the world and hosting delegations. Many Judges and Masters also serve as members of boards, commissions and committees for legal and cultural organisations within the community.

The Judges’ and Masters’ activities during 2004 are summarised below:

THE HONOURABLE J J SPIGELMAN AC, CHIEF JUSTICE OF NEW SOUTH WALES Conferences 18 Sept Australian Institute of Judicial Administration Annual Conference, Sydney 1 – 3 Oct Judicial Conference of Australia Colloquium, Adelaide 7 – 8 Oct Criminal Law Congress, Canberra Speaking Engagements 2 Feb Law Society Opening of Law Term Dinner 21 Feb Our Common Law Heritage – Address to the Joint Study Institute, Australian Law Librarians’ Group 15 Mar Address on the retirement of the Honourable Justice Meagher 21 Mar Opening of the Art Spiegelman Exhibition, Jewish Museum, Melbourne 29 Apr The Integrity Branch of Government – the First Lecture in the 2004 National Lecture Series for the Australian Institute of Administrative Law, Sydney 28 May Occasional Address, Law Graduation Ceremony, University of Sydney 31 May Launch of Beckett & Henry, Crypt St Mary’s Cathedral 16 Jun Tort Law Reform in Australia – Address to the Anglo-Australian Lawyers Society & The British Insurance Law Association, London Great Britain 6 Jul Tort Law Reform in Australia – Address to the London Market at Lloyds 5 Aug Jurisdiction and Integrity – the Second Lecture in the 2004 National Lecture Series for the Australian Institute of Administrative law, Adelaide 15 Aug Victory in the Pacific Commemoration Service, Sydney 24 Aug Opening Ceremony Court of Criminal Appeal Lismore 2 Sep Integrity and Privative Clauses – the Third Lecture in the 2004 National Lecture Series for the Australian Institute of Administrative Law, Brisbane 14 Sep The New Liability Structure in Australia – Swiss Re Liability Conference 18 Sep Address Annual Graduate Dinner, University of Sydney 28 Oct Blackstone, Burke, Bentham and the Human Rights Act 2004(ACT) , Criminal Law Congress 28 Oct Federal Law Review 40th Anniversary Dinner 29 Oct Occasional Address Graduation Ceremony Policing Studies, Charles Sturt University 3 Nov Opening Address Asian Arbitration Conference, Sydney Publications • Becket & Henry: The Becket Lectures, The St Thomas More Society, Sydney 2004 • “Murder in the Cathedral”, Quadrant January – February 2004 • “The Truth Can cost Too Much: The principal of a fair trial” (2004) 78 ALJ 29 • “Commercial Causes Centenary”, (2004) 42 (1) Law Society Journal 70 • “Open Justice and the Internet”, Judicial Officers Bulletin, Vol 16 No 1 February 2004 • “The Hon Justice R P Meagher”, Bar News, Winter 2004 p54 • “The Integrity Branch of Government” (2004) 78 ALJ 724; Quadrant July – August 2004 Delegations and International Assistance 12 Mar Delegation from Indonesia led by Mansur Kartayasa, Justice of the Supreme Court 17 Mar Pro Dr H Bagir Manan, Chief Justice of the Supreme Court of Indonesia 6 Aug Prum Sokha, Secretary of State Ministry of Interior, Kingdom of Cambodia 9 Aug Delegation from National Judges College, China led by the President of the College, Huai Xiaofeng, Vice President of the Supreme People’s Court 3 Sep Delegation from Supreme People’s Court of Vietnam led by His Excellency Dr Nguyen Van Hien, Chief Justice of Vietnam 7 Sep Delegation of judges from Shandong Province, China led by Wang Yanjun, Deputy Chief Justice, Shandong Provincial High Court

64 Delegations and International Assistance continued 29 Oct Delegation from UK Civil Justice Council led by the Right Honourable Lord Philips of Worth Matravers, Master of the Rolls 1 Nov Constitutional Affairs Committee, Parliament of the United Kingdom, led by the Right Honourable Alan Beith MP, Chairman of the Committee 10 Nov Delegation from Shanghai, led by Judge Ma Xusheng, Deputy Director Shanghai Putuo District Court

THE HONOURABLE JUSTICE MASON AC, PRESIDENT OF THE COURT OF APPEAL Conferences 25 – 29 Jan Supreme and Federal Court Judges’ Conference, (Auckland, New Zealand) 17 – 18 Dec “Fusion: The Interaction of Common Law and Equity in Commercial Law”, Sydney Speaking Engagements 26 Feb Sir Maurice Byers Lecture “What is wrong with Top Down Legal Reasoning?” 13 Apr Presentation to District Court Judges’ Conference “Recurring Issues in the Court of Appeal” 29 – 30 Apr AIJA Appellate Judges Seminar “On Dust and Ashes” 16 Jun NSW Bar Association Continuing Legal Professional Development Program “Tort in the Classroom” 1 Sep Keynote address at Local Court Conference “Impartial, Informed and Independent” 7 Oct Book Launch – Peter Hall, “Investigating Corruption and Misconduct in Public Office” 16 Dec Fusion Conference, “Fusion: Fallacy, Future or Finished” Publications • “What is Wrong with Top Down Legal Reasoning?” (2004) Vol. 78,ALJ 574 • Mason and Handler eds, Wills, Probate and Administration • Preface to Radan, Meyerson and Croucher Law and Religion: God, the State and the Common Law, Routledge 2005 • Foreword to Anne Twomey, The Constitution of New South Wales, Federation Press 2004 Membership of Legal, Cultural or Benevolent • Chancellor, Anglican Diocese of Armidale • Board of Reference for Macquarie Christian Studies Institute Commissions in Overseas Courts 10 – 21 May Sat as a judge in the Supreme Court of Fiji

THE HONOURABLE JUSTICE HANDLEY AO Conferences 25 – 29 Jan Supreme and Federal Courts Judges’ Conference (Auckland, New Zealand) Speaking Engagements 15 Nov Lecture to Chancery Bar Association and Anglo-Australasian Lawyers “Exploring Election” (Lincoln’s Inn, London) Membership of Legal, Cultural or Benevolent Organisations • President Cranbrook School Bellevue Hill Sydney

THE HONOURABLE MR JUSTICE CSC SHELLER AO Conferences 25 – 29 Jan Supreme and Federal Courts Judges’ Conference (Auckland, New Zealand) 1 – 3 Oct Judicial Conference of Australia Colloquium (Adelaide) Membership of Legal, Cultural or Benevolent Organisations • Chairman of Judicial Conference of Australia

THE HONOURABLE JUSTICE BEAZLEY Conferences 9 – 13 May International Association of Women Judges VII Biennial Conference (Uganda) Speaking Engagements 19 – 20 Nov Hunter Valley Family Law Conference, De Facto Property Rights

THE HONOURABLE JUSTICE R D GILES Conferences 19 - 25 Jan Supreme Court and Federal Court Judges’ Conference (Auckland, New Zealand) Membership of Legal and Cultural Organisations • Chair of the Law Advisory Committee of the School of Law and Justice at Southern Cross University • Member of the Editorial Board of the Insurance Law Journal

65 THE HONOURABLE JUSTICE HODGSON Conferences 19 - 25 Jan Supreme Court and Federal Court Judges’ Conference (Auckland, New Zealand) Speaking Engagements 27 Mar Property Law Seminar conducted by NSW Young Lawyers, opening address, Practitioners Judges and CLE Memberships of Legal, Cultural or Benevolent Organisations • Part – time Commissioner, NSW Law Reform Commission • Supreme Court Representative on the Faculty of Law at the University of NSW • Member of Professional Category Selection Panel for Churchill Fellowships NSW

THE HONOURABLE JUSTICE SANTOW OAM Conferences 7 Aug The University of Sydney – Reaching out SUGUNA Conference 2004 (Tampa, Florida) Speaking Engagements 5 Mar 50th Anniversary Dinner “Science Foundation for Physics” “The importance of the Professor Harry Messel International Science School to the University” 12 May Eulogy Emeritus Professor John Atherton Young 10 Jun Unveiling of University Portrait of Vice-Chancellor Professor Gavin Brown “Portraiture” 29 Jun Emeritus Professor Alice Erh-Soon Tay (1934-2004) Memorial 29 Jul “Professor Jonathon Stone – Unveiling a portrait” 7 Aug The University of Sydney – Reaching out SUGUNA Conference 2004 (Tampa, Florida) 17 Aug Opening of Larsen & Lewers “New Work” “Tribute to an enduring partnership” GIG Gallery Glebe 25 Aug Malcolm Sargent Cancer Fund for Children in Australia – 21st Birthday dinner Freehills Keynote Address Membership of Legal, Cultural or Benevolent Organisations • Chancellor University of Sydney (includes ex officio membership of various Sydney University Charitable Foundations and other affiliated bodies – none commercial) • Board member, VisAsia – Art Gallery of NSW • Member, The Takeovers Panel, Commonwealth Government (Australia) • Board member, UK Friends of Bundanon (London) • Member of International Council, Institute of Advanced Legal Studies, University of London

THE HONOURABLE JUSTICE DAVID ANDREW IPP Conferences 19 – 25 Jan Supreme Court and Federal Court Judges’ conference (Auckland, New Zealand) Speaking Engagements 1 Mar Address to visiting Indonesian Judges “Human Rights in Practice”, Judicial Commission of NSW (Sydney) 23 Mar Opening Commentary - Litigation Master Class, University of NSW Continuing Education Programme (Sydney) 1 May Oration – Annual Scientific Meeting Australian & New Zealand College of Anaesthetists “Personal Responsibility in Australian Society and Law: Striving for Balance” (Perth) 23 Jun Presentation – Meeting of NSW Society of Anaesthetists (Randwick), ”Personal Responsibility in Australian Society and Law: Striving for Balance” 11 Aug Presentation at session for visiting Chinese Delegation, National Judges’ College, “Human Rights Law in Practice – The South African Experience” (Judicial Commission of NSW, Sydney) 26 Aug Opening, conference University of NSW Continuing Legal Education, Faculty of Law on Civil Remedies (Sydney) 11 & 19 Oct Seminars organised by the National Judicial College, Beijing, China and Shanghai Judicial College, Shanghai China Paper: “Judicial Bias”, Paper: “Ethical Problems with Judicial Activism”, Paper: “The Trial Judge’s Duties from an Appellate Point of View” Publications • “ Taking responsibility”, Quadrant, September 2004 Memberships of Legal, Cultural or Benevolent Organisations • Chair of the Standing Advisory Committee on Judicial Education (Judicial Commission of NSW) • State Representative, Law Courts Library Advisory Committee • Committee Member, Admiralty Rules Committee • Member, Court of Arbitration for Sport – Appeals Division, Oceania Registry • Part-time Commissioner NSW Law Reform Commission (resigned August) • Member, The International Association of Judges (Australian Section) 66 THE HONOURABLE JUSTICE RUTH MCCOLL AO Conferences 20 Feb Constitutional Law Conference Gilbert & Tolbin – Centre for Public Law UNSW Faculty of Law (Sydney) 11 – 12 Jun The University of Melbourne – Centre for Comparative Constitutional Studies Melbourne Law School – Global Dialogue on Federalism, Theme 3 : Legislative and Executive Governance Australia Roundtable (Melbourne) 1 – 3 Oct Judicial Conference of Australia Colloquium 2004 (Adelaide) 27 Nov The University of Sydney – Annual conference of the Australian Association of Constitutional Law (Sydney) 16 – 18 Dec The University of New South Wales Centre for Continuing Legal Education Faculty of Law – Fusion Conference – The Interaction of Common Law and Equity in Commercial Law

Speaking Engagements 20 Feb Centre for Public Law UNSW Faculty of Law – 2004 Constitutional Law Conference, “Unfinished matters – The Federal Court and State Courts on Constitutional Law: The 2003 Term” 6 May The University of Sydney Faculty of Law ,“Women in the Legal Profession” 18 Sep NSW Young Lawyers, “Evidence Act for Young Advocates” 27 Nov The University of Sydney – Annual Conference of the Australian Association of Constitutional Law, “Judicial Appointment” Publications • Introduction to “The origins and development of the protective jurisdiction of the Supreme Court of NSW”: The 2003 Francis Forbes Lecture, by PE Powell AM QC • Contribution to the University of New England Law Students’ Society Careers in Law Guide • “Unfinished matters – The Federal Court and State Courts on Constitutional Law: The 2003 Term”, The University of New South Wales Law Journal, Vol 27 No 3 Memberships of Legal, Cultural or Benevolent Organisations • Treasurer of the Judicial Conference of Australia • Member of the NSW Rhodes Scholarship Selection Committee • Part-time Commissioner of the New South Wales Law Reform Commission • Member of the Public Education Council

THE HONOURABLE JUSTICE WOOD AO, CHIEF JUDGE AT COMMON LAW Conferences 8 – 12 Aug International Society for the Reform of Criminal Law Conference, Keeping Justice Systems Just and Accountable: A Principled Approach in Challenging Times (Montreal Canada) 30 Jul The Australian Institute of Judicial Administration: Child Witnesses – Best Practice for Courts, District Court of NSW, Parramatta Speaking Engagements 8 – 12 Aug International Society for the Reform of Criminal Law Conference, Keeping Justice Systems Just and Accountable: A Principled Approach in Challenging Times (Montreal, Canada). Presentation of paper: In the Wake of the Royal Commission into the NSW Police Service 30 Jul The Australian Institute of Judicial Administration: Child Witnesses – Best Practice for Courts, District Court of NSW, Parramatta Presentation of paper: Child Witnesses: The NSW Experience 19 Oct National Judicial Orientation Program : Assessing the Credibility of Witnesses – Commentary on the Presentation of Dr Peter Shea (Sydney) Memberships of Legal, Cultural or Benevolent Organisations • Member, Australian Institute of Judicial Administration • Member, Australian Academy of Forensic Sciences Delegations and International Assistance 13 – 14 May Led the Australian delegation for the Workshop on the Protection of Human Rights of Prisoners and Detainees in Xian, China, by invitation of the Human rights and Equal Opportunity Commission 3 Mar Indonesian Judicial Training Programme: Judicial Commission of New South Wales Lecture/presentation in Sydney: “The Criminal Justice System in Australia” Commissions in Overseas Courts 1 Oct – 12 Nov Sat as Judge of Court of Appeal in Fiji

67 THE HONOURABLE MR JUSTICE YOUNG AO, CHIEF JUDGE IN EQUITY Conferences 23-27 May Annual Conference, International Academy of Estate & Trust Law (Prague, Czech Republic) Speaking Engagements 10 May Seminar on Civil Procedure with Professor A. Zuckerman, Law School, University College London (United Kingdom) 11 May Presided over the Atkin Society Moot, Magdalen College, Oxford (United Kingdom) 18 May Seminar on Civil Procedure with Justice Moynihan (Supreme Court of QLD), Professor Zuckerman and Professor Scott, University College Oxford (United Kingdom) 27 Oct Practice and Procedure in Commercial Litigation Conference A Judge’s Perspective, Sydney 17 Dec The University of New South Wales Centre for Continuing Legal Education Faculty of Law – Fusion Conference – The Interaction of Common Law and Equity in Commercial Law Publications • “Monthly Current Topics” and “Recent Cases” sections, Australian Law Journal (2004) Vol. 78, 587 Membership of Legal, Cultural or Benevolent Organisations • Vice Patron, Motor Neurone Disease Association • Patron, Bus & Truck Museum of NSW • Honorary Secretary, Shore School Council • Deputy Chair of Committees: General Synod Anglican Church of Australia

THE HONOURABLE MR JUSTICE WINDEYER AM RFD ED Membership of Legal, Cultural or Benevolent Organisations • Supreme Court representative on Steering Committee for Supreme Court and Federal Court Judges’ Conference

THE HONOURABLE JUSTICE DAVID LEVINE RFD Membership of Legal, Cultural or Benevolent Organisations • Chairs the Friends of the State Library of New South Wales • President of the Arts Law Centre of Australia until November 2004

THE HONOURABLE JUSTICE CAROLYN SIMPSON Conferences 8 – 13 Aug International Society for Reform of Criminal Law (Montreal, Canada) Speaking Engagements 10 Jun Visit by Tranby College students to Banco Court Membership of Legal and Cultural Organisations • Chair of the LPAB Examinations Committee

THE HONOURABLE JUSTICE DOWD AO Conferences: May Chaired the Executive Committee meeting of the International Commission of Jurists (Geneva) Membership of Legal, Cultural or Benevolent Organisations • President, Australian Section International Commission of Jurists • Chancellor, Southern Cross University • Chair, Executive Committee, International Commission of Jurists Geneva • Goodwill Ambassador, Spastic Centre • Patron, University Buddhist Education Foundation

THE HONOURABLE MR JUSTICE HAMILTON Conferences 23 – 27 Feb Uniform Civil Procedures Rules Conference (Sydney) 5 – 7 Apr Uniform Civil Procedures Rules Conference (Sydney) 1 – 2 Jul Judicial Commission of NSW Judgment Writing Workshop 23 – 27 Aug Uniform Civil Procedures Rules Conference (Sydney) 17 – 19 Sep AIJA Conference (Sydney) 1 – 3 Oct The Judicial Conference of Australia’s Colloquium 2004 (Adelaide) Speaking Engagements 19 Sep The NSW Civil Procedure Bill 2005 and the Uniform Civil Procedure Rules – Panel Presentation on harmonising and unification of Court Rules at AIJA Conference (Sydney)

68 Membership of Legal, Cultural or Benevolent Organisations • Anglo – Australasian Lawyers Society • Australian Institute of Judicial Administration Inc • Australian Mining & Petroleum Law Association • Commonwealth Magistrates and Judges Association • Australian Chief Justices’ Rules Harmonisation Committee

THE HONOURABLE JUSTICE C EINSTEIN Conferences 25 – 29 Jan Supreme Court and Federal Court Judges (Auckland, New Zealand) Speaking Engagements 11 Mar Building and Construction Disputes, The University of New South Wales, Chairman 21 Jul College of Law, St James Centre, Speaker, “The commercial litigation landscape including aspects of opinion evidence, discovery orders in relation to computers, deep memory, time limits for cross-examination and other recent developments” 25 Aug Building and Construction Disputes, Risks & Security of Payment, The University of New South Wales, Opening Remarks and commentary 10 – 12 Oct The National Judges College, conference “ Joint Seminar on Comparative Research of Primary Courts”. Presentation of papers, Judicial Conduct (In Court perspective), Judicial Conduct (Out of Court perspective), An Examination of the Application of the General Principles of the Rule of Law to the Court Structure and Judiciary of the State of New South Wales 18 – 19 Oct The High Court of Shanghai, conference, Presentation of paper, Judicial Conduct (In Court perspective), Judicial Conduct (Out of Court perspective), An Examination of the Application of the General Principles of the Rule of Law to the Court Structure and Judiciary of the State of New South Wales Membership of Legal, Cultural or Benevolent Organisations • Member of the International Commission of Jurists • Member of the International Association of Judges • Associate Member of New South Wales Bar Association • Member of the Judicial Conference of Australia • Member of the Australian Institute of Judicial Administration Delegations and International Assistance 9 – 10 Aug Delegation from the National Judges’ College, Beijing, People’s Republic of China

THE HONOURABLE JUSTICE GREG JAMES Speaking Engagements 6 Mar College of Law – Day of Criminal Law - Chair 24 May Institute of Criminology Seminar -No imprisonment- mandatory imprisonment - Chair 7 Jun Sydney Centre for International Law & Global Law Seminar – The Trials of Saddam Hussein and David Hicks - speaker 14 Sep Sydney University Law School Moot 15 Sep Inner West Law Society – Mediation Protocol - Chair 19 Oct Sydney University Law School – Lecture to Post Graduate Students in Criminology 20 Oct University of NSW – Beginners Mooting Competition Membership of Legal, Cultural or Benevolent Organisations: • International Society for the Reform of the Criminal Law • Australian Law Reform Commission - Consultant • Law Reform Commission – Part time Commissioner • Scouts Australia – Member of the Executive • Scouts New South Wales – Member of the Branch Executive

THE HONOURABLE JUSTICE ADAMS Speaking Engagements 20 Mar NSW Young Lawyers’ Annual Criminal Law Seminar (later published in (2004) 78 ALJ 587; see below) 30 Jul Legal Practitioners Admission Board, Occasional Address Publications • “Heroes and heresy: Myth meets legal fundamentalism” (2004) 78 ALJ 587 Membership of Legal, Cultural or Benevolent Organisations • Chair, Law Reform Commission of New South Wales • Board Member, College of Law

69 THE HONOURABLE JUSTICE AUSTIN Conferences 18 – 20 Jun Business Law Section Corporate Law Workshop (Terrigal) 17 Dec The University of New South Wales Centre for Continuing Legal Education Faculty of Law – Fusion Conference – The Interaction of Common Law and Equity in Commercial Law Speaking Engagements 9 Feb Law Council of Australia, Business Law Section Workshop for Committee Chairs, Deputy Chairs and Members of Section Executive, Address “Some Reflections on Managing Corporate and Commercial Cases” 26 Feb Superannuation Lawyers Association of Australia Conference – Speaker “The Incorporated Superannuation Trustee” 4 Jun Regulating Conflicts of Interest within the Commercial World, University of Sydney, Faculty of Law - Commentator Publications • Co-author, Ford’s Principles of Corporations Law (looseleaf) (Lexis Nexis Butterworths) Membership of Legal, Cultural or Benevolent Organisations • Lecturer (Part-time) in Law, University of Sydney Master of Laws degree courses in Takeovers and Reconstructions and Corporate Fundraising • Member, The Takeovers Panel, Australian Government • Member, Editorial board, International and Comparative Corporate Law Journal • Member, Editorial board, Company and Securities Law Journal

THE HONOURABLE JUSTICE VIRGINIA BELL Conferences 18 Sep 22nd AIJA conference (Sydney) Speaking Engagements 18 Sep 22nd AIJA conference (Sydney) – Convenor of session Proportionality Membership of Legal, Cultural or Benevolent Organisations • Chairperson Aboriginal Cultural Awareness Committee, a joint committee of the Judicial Commission of NSW and the Australian Institute of Judicial Administration. Visited Walgett and met with members of the Aboriginal community as part of the Aboriginal Cultural Awareness Programmme • Committee member of Child Sexual Assault Pilot Project Team • Council member and Board member, Australian Institute for Judicial Administration

THE HONOURABLE JUSTICE WHEALY Conferences 19 – 25 Jan Supreme Court and Federal Court Judges’ conference (Auckland, New Zealand) Speaking Engagements 29 Jun LexisNexis Health and the Law – Reviewing the impact of Tort Reform on a State and National Level 25-26 Nov 2004 Grundig LIV Annual Medicine and Law Conference – Reviewing the impact of Tort Reform on a State and National Level

THE HONOURABLE JUSTICE HOWIE Conferences 25 – 29 Jan Supreme Court & Federal Court Judges’ Conferences (Auckland, New Zealand) Speaking Engagements 13 – 14 Apr District Court Annual Conference “Criminal Law Update 2004” (Bowral) 13 – 14 Apr Crown Prosecutors’ Conference “Sentencing Workshop” ( Wollongong) 11 Aug Judicial Protection of Human Rights Seminar for Chinese Delegation “Overview of the Criminal Justice System” (Sydney) 20 Aug National Judicial College of Australia “The Commonwealth Criminal Code” (Sydney) Publications • Consulting Editor for the Criminal Law News (Published by Lexis Nexis) • Co-author of Criminal Practice and Procedure (Lexis Nexis Looseleaf) • “Criminal Law Update 2004” The Judicial Review, Vol. 7 No. 1 September 2004 • “Relevance of Voluntary Intoxication to Criminal Liability – Part 11A Crimes Act 1900” Judicial Officers’ Bulletin Vol. 16 No. 8 September 2004 Membership of Legal, Cultural or Benevolent Organisations • Chairman of the Model Criminal Code Officers’ Committee

70 THE HONOURABLE JUSTICE BARRETT Conferences 4 Jun Regulating Conflicts of Interests in the Commercial World (The University of Sydney) 18 – 20 Jun Law Council of Australia 2004 Corporations Workshop ( Terrigal) Speaking Engagements 18 Feb Directors’ Duties seminar, opening remarks, University of New South Wales, Faculty of Law 17 May Law and Finance 4th Annual Insolvency Practice Symposium, Keynote Address, Sydney Publications • “Current Topics and Recent Cases”, 78 Australian Law Journal, July 2004, 423,445 Membership of Legal, Cultural or Benevolent Organisations • Member, Editorial Board, Company and Securities Journal

THE HONOURABLE JUSTICE PALMER Conferences 29 Sep – 2 Oct 31st Annual Conference of Maritime Law Association of Australia & New Zealand (Adelaide) 16 Dec The University of New South Wales Centre for Continuing Legal Education Faculty of Law – Fusion Conference – The Interaction of Common Law and Equity in Commercial Law (Sydney) Speaking Engagements 28 Feb Opening Address, NSW Young Lawyers’ Seminar “Our system of Law in a Multicultural Society” 24 Mar The Judges’ Series 2004, CLE seminar for College of Law: “Court Etiquette and ‘Preparation’ of Witnesses” (with Tamberlin J) 16 Dec Chair – Fusion Conference – The Interaction of Common Law and Equity in Commercial Law, The University of New South Wales Centre for Continuing Legal Education Faculty of Law Membership of Legal, Cultural or Benevolent Organisations • Maritime Law Association of Australia and New Zealand

THE HONOURABLE JUSTICE TERRY BUDDIN Conferences 5 – 6 Mar National Judicial College of Australia – presenter of session on Sentencing at Judicial Education Conference (Hobart) 22 Oct National Judicial College of Australia – Chair of session – Litigants in person National Judicial Orientation Program Membership of Legal, Cultural or Benevolent Organisations • Consultant to Australian Law Reform Commission – reference – Protection of Classified and Security Sensitive Information • Attorney General’s Sexual Assault Offences Taskforce – Member • National Judicial Orientation Program Steering Committee – Member Delegations And International Assistance From Sep Host of Masaki Takasugi, Assistant Judge, Chiba District and Family Court Japan

THE HONOURABLE JUSTICE GZELL Conferences: 25-29 Jan Supreme & Federal Courts’ Judges’ Conference (Auckland) 23-27 May The International Academy of Estate and Trust Law Conference (Prague, Czech Republic) 1-2 Aug Judgment Writing Workshop with Professor James C Raymond (Sydney) 16-17 Oct Business Law section, Law Council of Australia, Taxation Workshop Speaking Engagements: 22 Aug Supreme Court Annual Conference, Civil Penalty Proceedings 2 Oct Launch Robert Macklin, War Babies 16 Oct Occasional Address on Life as a Tax Practitioner Membership of Legal, Cultural or Benevolent Organisations: • Member, Executive Council, The International Academy of Estate and Trust Law • Member Australian Institute of Judicial Administration Steering Committee for 2005 Annual Conference in Wellington New Zealand • Committee for 2005 Annual Conference in Wellington New Zealand • Patron, Regional Arts New South Wales • Honorary Member, Taxation Committee of Business Law Section of Law Council of Australia • Member, Editorial Board, Law Book Company, “Australian Tax Practice”

71 THE HONOURABLE JUSTICE NICHOLAS Conferences 25 –29 Jan Supreme and Federal Courts Judges’ Conference, (Auckland New Zealand) Membership of Legal, Cultural or Benevolent Organisations • Chairman, St Paul’s College Council • Director, NSW Cultural Management Ltd (Sydney Theatre) • Chairman, Kimberley Foundation Australia • Honorary Councillor, Royal Agricultural Society of NSW • Trustee, McGarvie Smith Institute • Member, Court of Arbitration for Sport, Oceania Registry Speaking Engagements 25 – 29 Jan Supreme and Federal Courts Judge’s Conference “Cross Examination: Art, Science, or a Waste of Time” (with A J Meagher SC) (Auckland, New Zealand) Feb Royal School for Judges and Prosecutors, “Procedure in Commercial Disputes; Alternative Dispute Resolution in Commercial Matters” (Phnom Penh, Cambodia) Mar University of NSW CLE Seminar; Defamation Law Update Delegations and International Assistance Aug Met with H E Prun Sokha, Secretary of State, Cambodia

MASTER MCLAUGHLIN Conferences 2 – 5 Jul Australian Bar Association Conference ( Florence, Italy) Publications • “The Role and Function of the Master”, Law Society Journal (2004) Vol.42 No. 3 • Book Reviews: J.M Bennett, “Lives of Australian Chief Justices, Sir James Cockle; Sir John Pedder, Australian Law Journal (2004) Vol.78, 243

MASTER MACREADY Speaking Engagements 29 Oct Law Council of Australia and Queensland Law Society Seminar ,“The uniform management and disposition of construction cases in Australia” Delegations and International Assistance 10 Mar Delegation from Supreme Court of Japan on management of judicial documents 26 Oct Hosted visit by the United Kingdom information technology delegation

MASTER HARRISON Conferences 29 Mar NSW State Legal Conference Speaking Engagements 29 Mar “Professional Negligence” NSW State Legal Conference Memberships of Legal, Cultural or Benevolent Organisations • Part-time Commissioner , NSW Law Reform Commission • Member, Alternative Dispute Resolution Steering Committee

72

Supreme Court of New South Wales

Law Courts Building 184 Phillip Street Sydney NSW 2000 Australia

GPO Box 3 Sydney NSW 2001 Australia

DX 829 Sydney

Phone: + 61 2 9230 8111 Fax: + 61 2 9230 8628 Email: [email protected] Internet: www.lawlink.nsw.gov.au/sc