Cases and authorities

NEGLIGENCE - child struck by another child with glass while in care of childcare worker at picnic - whether inference of a failure to provide reasonable care open - DAMAGES - calculation of future economic loss - calculation of future out of pocket expenses - PRACTICE AND PROCEDURE - nothwithstanding error has been demonstrated, whether some substantial wrong or miscarriage of justice has been thereby occasioned pursuant to Part 51 r 23 of the Supreme Court Rules

Judicial review of medical assessment - determination to be made by Registrar barrier to the proceeding of the appeal - nature of the determination.

CONTRACT - Interpretation - Pre-emptive rights - Construction ejusdem generis - Whether conditional call option a disposition or alienation of an interest in property - Whether a party wishing to deal with its interest obliged to give a transfer notice - Whether provision merely facultative.

STRIKE OUT - BUILDING CONTRACT - CONSTRUCTION - Whether arguable case that contract not an "entire contract".

CORPORATIONS - COSTS - non-party - whether power to order costs against non-party to proceedings under Corporations Act 2001 (Cth) - proceedings under this Act - "party to the proceedings" - relationship between Corporations Act 2001 (Cth) s1335(2) and Civil Procedure Act 2005 (NSW) s 98 and Uniform Civil Procedure Rules 2005 (NSW) r 42.27 - whether examinees party to proceedings.

CORPORATIONS - voluntary administration - extension of time for completion of second meeting of creditors - CORPORATIONS - voluntary administration - fees of administrator accruing during lengthy adjournement of second meeting of creditors - whether order to be made allowing administrator to be paid fees from time to time, provided committee of creditors approves

Appeal - plaintiff identifies issues relied on in opposing application before Tribunal - alleged jurisdictional question and discretionary error - matters not ventilated before Tribunal - alleged error in fact findings.

PROCEDURE - Judgment obtained after hearing in absence of defendant - Absence of defendant due to gross default of solicitor - Judgment set aside - Onus on defendant to show defence on the merits - Whether affidavit verifying defence is evidence in support of such defence - Relevance of prejudice to plaintiff and principal of plaintiff - Appropriate conditions on setting aside such a judgment.

Proceedings in Industrial Commission - application to Supreme Court for prerogative relief - contended that Commission acted beyond jurisdiction - whether stay of proceedings in Commission pending hearing of application - for reasons including right of appeal to Full Bench and doubt that any error went to jurisdiction, in exercise of discretion, stay refused.

CRIMINAL LAW - Crown appeal against interlocutory judgment - admission of evidence - stay granted

Family Provision. Application by daughter, the only eligible person, who was omitted from the will. Order for provision. No matter of principle.

FAMILY LAW - adoption - name of child - change to name of child - whether adoption under Adoption of Children Act 1965 or Adoption Act 2000 - whether any need to dispense with notice to, and consent of, an alleged guardian of the child

COSTS - LEAVE TO DISCONTINUE - Plaintiff seeks leave to discontinue against Second Defendant - Second Defendant joined in consequence of defence of First Defendant - First Defendant in liquidation - whether leave to discontinue should be granted on terms that the Plaintiff pay the Second Defendant's costs.

PRACTICE & PROCEDURE application to reconsider rulings on admissibility of an expert's report, on the ground that a "definitional" paragraph was not taken into account - application dismissed - no issue of general principle

PROBATE - letters of administration - application to revoke ex parte grant of letters of administration ad litem - incorrect statements included in affidavit in support of ex parte application - full disclosure not made - whether misstatements material to decision to make the grant.

CORPORATIONS [229]- Application for winding up in insolvency- Company under administration- Whether in creditors' interests for company to continue under administration or be wound up.

PROBATE action - costs

Criminal Law - Evidence - Prior Conduct - Tendency and Coincidence - Relevance - Principles to apply - Material to be considered - Time at which Judgment to be made - Exercise of discretion by trial judge - Common Law as a guide to Evidence Act - Weighing of probative value and prejudicial effect

Negligence - prisoner injured carrying out plumbing work - not an employee - duty of care - foreseeability - Shirt calculus - adequacy of reasons.

CONTRACT - confidentiality - doctor/patient relationship - whether party to proceedings entitled to insist upon the right to confidentiality with third party - relevant principles - whether maintaining party's right to confidentiality inimical to the public interest and the administration of justice - CONTRACT - confidentiality - waiver - relevant principles - whether party has taken up two inconsistent positions in relation to claim - PRACTICE AND PROCEDURE - stay of proceedings - court's inherent power to make orders necessary to prevent injustice - s.23 Supreme Court Act - discretion as to whether power should be exercised - whether refusal to grant stay would result in unfair trial - whether party has opportunity to defend matter should stay be refused

Practice. Summary judgment. Judgment on admissions. Summary dismissal of cross-claim. Striking out of pleading.

PROCEDURE - Uniform Civil Procedure Rules - notices to produce - time for compliance - whether order required abridging time if notice served requiring production in less than 14 days - whether notice to produce can be valid in part - onus of proof concerning reasonableness of time for production of documents pursuant to notice to produce - relevance of immediately pending trial to reasonableness of time period for production of documents pursuant to notice to produce

Contract - mistake - whether mutual or unilateral - effect - whether assent of solicitors to a proposed draft involves a contract to accept a document in that precise form and execute it - effect of a mistake (as to whether a draft contained a particular provision and whether the provision was in dispute) upon an agreement to refer disputes as to the form of the draft for expert determination - effect of Court's control of contract that is subject to an order for specific performance - power of Court to refuse to enforce a compromise - whether Court has a similar power with respect to an expert determination of a question arising in the specific performance of a contract under a Court order where determination affected by mistake - interests of justice in the circumstances.

PRACTICE AND PROCEDURE - Application to have part of the pleadings struck out - Plaintiff pleads tort of conversion in respect of intangible property - Applicant argues that the claim is untenable - No material advantage in preparation or conduct of the case if impugned allegations struck out - Issue is whether claim is reasonably arguable at an appellate level - Application dismissed.

LIMITATION OF ACTIONS - extension of time - HMAS Voyager - HMAS Melbourne collision - construction and application of ss.60G and 60I Limitation Act 1969

MORTGAGES - Claim for money owing under guarantees - Application for writ of possession for mortgaged land - Cross-claim seeking to set aside guarantees of loan obligation - Whether breach of loan contract discharged sureties - Allegation that lender was obliged to lend on terms other than the written contract - Loan contract construed - Whether advice given to wife allows lender to enforce guarantee under principles of Garcia v National Australia Bank Ltd - Whether otherwise unconscionable for lender to enforce guarantees - Held that plaintiff could enforce guarantees.

CAVEAT - INJUNCTION - ORAL AGREEMENT - PART PERFORMANCE - Whether sufficient evidence of part performance of oral agreement for sale of land to justify extension of caveat or injunction - whether any interest pursuant to oral agreement vested in official receiver on Plaintiff's bankruptcy.

REAL PROPERTY [432], [435], [436] - Restrictive covenants - Interpretation - General principles - Covenant that no building be erected "more than two storeys in height" - Meaning - Whether uncertain for ambiguity - Rule to be applied to resolve ambiguity - Proceedings to extinguish, modify or discharge restriction - Restriction obsolete - Meaning of obsolete - No substantial injury to person entitled - Meaning of substantial injury

Professional negligence - State of mind interrogatories - Objections to Interrogatories - Whether interrogatories where necessary for fair trial - Meaning of "necessary"

Customs Prosecution - Smuggling - Crimninal Law - Taxes and Duties - Customs and Excise - Evasion of Duties - Penalty Provisions - Guilty Plea - Agreement between the parties - Making false statements

Drug addict supplying prohibited drug (methylamphetamine) in small quantities - failure to remain drug free during remand - sentence not excessive

Two counts of supplying heroin involving multiple individual acts of supply - Relevance of comparison with co-offenders sentenced for "ongoing supply" - No breach of "De Simoni" principle - Powerful subjective circumstances justifying reduction of non parole period.

COSTS - costs orders on written submissions after judgment [2005] NSWCA 20 - no question of principle.

murder conviction 1990 - application for review of conviction - Crimes Act 1901, Part 13A - whole case referred to Court of Criminal Appeal - to be dealt with as an appeal under Criminal Appeal Act 1912 - evidence of admission by appellant given by police officer in trial - denied by appellant - appellant alleged confessional evidence fabricated - appellant alleged participation in interview not voluntary - admissibility of confessional material - other uncontested evidence of admissions by appellant - fresh evidence - evidence given to the Royal Commission into the NSW Police Service - credibility of police witnesses at trial - police officer charged with refusing to submit to breath analysis, proved but dismissed - whether capable of affecting credibility of police officer at trial - police officer alleged to have taken part in assault - whether capable of affecting credibility - alleged inadequate or corrupt investigation of different murder - whether capable of affecting credibility - whether fresh evidence meets established tests - impact of Evidence Act 1995 on admission of evidence relevant only to credibility - no doubt or disquiet about conviction - appeal dismissed

Speed measuring devices and camera recording devices - whether certificates conclusive - sections 46 and 47 of Road Transport (Safety and Traffic Management) Act 1999 - whether evidence sufficient to rebut presumption in sections 46 and 47 whether Local Court Magistrate had excessively intervened in conduct of proceedings.

NEGLIGENCE - employer's duty of care - non-delegable duty - contractor - late-night cleaner at a hotel - armed robbery - hostage at gun-point - adequacy of security measures - psychiatric injury - consequent physical injury - special vulnerability - absence of instructions - voluntary human intervention - coordinating role of the Hotel - causal relation of motor accidents to psychological injury - interest on non-economic loss - general damages at common law - s151M, s151Z Workers Compensation Act 1987 - apportionment of damages as between employer and Hotel. (D)

Family Provision. Application by husband and daughter of deceased. Only asset held by a company of which deceased was the main shareholder. Half of her shares in company transferred to her son during her lifetime and other half converted on her death to valueless preference shares. Whether transfer perfected and whether full valuable consideration given. Held no prescribed transaction and therefore both summons dismissed.

Criminal law - admissibility of evidence - armed robbery of bank - images of robber captured by bank's security cameras - photo developed published in newspaper - evidence of recognition by appellant's sister - whether admissible.

Criminal law - sexual intercourse without consent - intercourse subsequent to perceived threat to report complainant for shoplifting - whether such perceived non violent threat vitiated consent for offence charged against s 61I of the Crimes Act.

Special hearings under Mental Health (Criminal Procedure) Act 1990 - charges of sexual offences - election for determination by judge alone - whether hearings miscarried because judge did not enquire into understanding of nature of election - R v Minani required judge be satisfied that person's barrister or solicitor be satisfied person properly understood - no enquiry into this - judge's determinations quashed - whether charges of sexual intercourse without consent with person under 16 unreasonable and inconsistent with evidence - consideration of evidence as to complainant's age at the time of the alleged offences - open to judge to be satisfied beyond reasonable doubt - observations as to nomination of limiting terms under Mental Health (Criminal Procedure) Act - cumulation where multiple offences - can not nominate limiting term if commencement after the time of nomination - legislative attention deserved.

CONTRACT - interpretation of ISDA Master Agreement - administrator and liquidator appointed - occurrence of event of default - whether party in default must pay outstanding amounts and interest on those amounts to trigger additional termination event - whether amounts other party required to pay to avoid the occurrence of an additional termination event include outstanding amounts and interest on those amounts - determination of period over which interest should be calculated upon occurrence of an early termination date

EQUITY - Remedies - Injunctions - Mareva order - when made against third party

ACTION FOR DAMAGES FOR PERSONAL INJURY - Voyager/Melbourne collision - claim for psychological injury and consequent economic loss

REAL PROPERTY [436]- Easements- Extinguishment or modification of right of way- Right of way on title since 1921- Semi-rural farmland- Right of way gives access to main road- Not used in long time- New public roads built giving alternate access to main road- Part of right of way no longer needed- Substantial improvements needed for right of way to be used for intended purpose- Whether new roads establish change in neighbourhood- Whether difficult test of abandonment overcome- Whether any reasonable use of servient tenement possible without extinguishment or modification- Whether substantial injury to person benefiting from easement if modified or extinguished- Easement partially extinguished.

Encroachments on land - trifling - discretion of Court - disputes between neighbours

PROCEDURE - Legal Professional Privilege - Whether letter from client to solicitors and letter from solicitors to client's auditors protected as privileged - Legal advice privilege - Whether letters prepared for dominant purpose of providing legal advice to client - Whether auditors were agents of client for purpose of receiving legal advice - Litigation privilege - Whether letters prepared for dominant purpose of client being provided with professional legal services - Evidence Act 1995 ss 118, 119

Negligence - Collision of pantechnicon and right turning B-Double at intersection - Rules 32 and 143 of Australian Road Rules - Adequacy of reasons.

DEFAMATION - Justification - whether finding that imputation of dishonesty not substantially true was erroneous - held - no - Comment - whether finding that imputation of dishonesty was statement of fact not comment was erroneous - held - no - Common law qualified privilege - whether finding matter complained of not published on occasion of qualified privilege erroneous - held - no - s 13 Defamation Act - whether rejection of defence that matter complained of was published in circumstances where plaintiff was unlikely to suffer harm was erroneous - held - no - DAMAGES - s 46A Defamation Act - whether damages excessive - held - no (D)

Negligence - Pedestrian fell and sustained injury on footpath - Sufficiency of evidence to establish breach of duty and causation - Relevance of expert evidence.

Developer and sub-contractor - liability to obtain insurance - denial of procedural fairness (plaintiff unaware of issues decided by Tribunal).