Cases and authorities

Limitation Act - Statement of Claim not disclosing cause of action - futility of extension of time - whether actual prejudice - effect of availability of alternative action against former solicitors.

Local Court prosecution - status of police prosecutor - whether leave to appear for informant should be granted - relevant considerations - effect of s36 Criminal Procedure Act 1986

CORPORATIONS - administration - winding up - service - provisional liquidator - standing to apply - whether beneficiary of trust is a creditor of trustee - whether beneficiary of trust may be "contingent creditor"

WORKERS COMPENSATION - coal miners - Schedule 6 Part 18 Workers Compensation Act 1987 (NSW) - Coal Mines Regulation Act 1982 (NSW) - whether respondent a "coal miner" - whether respondent employed "in or about a coal mine" - STATUTORY CONSTRUCTION - relevant principles - whether words should be implied into a statutory provision - Schedule 6 Part 18 Workers Compensation Act 1987 (NSW)

Admissibility of admissions not tape-recorded originally - admissions subsequently adopted in ERISP - "reasonable excuse" why admissions not tape-recorded - whether unfair to accused to use the evidence - whether probative value outweighed by unfair prejudice

Criminal Law - Sentencing - Crown appeal - Sentence imposed after trial for two counts of dangerous driving causing death - car chase through suburban streets - impact caused by driver of other vehicle - concurrent sentences - insufficient weight given to culpability of respondent - appeal allowed - respondent resentenced.

CRIMINAL LAW - Indictment - Invalidity - Not signed by authorised person - Application of de facto officers principle

CONSTITUTIONAL LAW - freedom of interstate intercourse - freedom of interstate trade and commerce - test to be applied where interstate intercourse occurs in the course of trade or commerce - whether Tow Truck Industry Act contravenes S92 constitution - STATUTORY INTERPRETATION - proper interpretation of reg 69(1) Tow Truck Industry Regulation - meaning of "towing work"

BANKING AND FINANCIAL INSTITUTIONS - Leave to appeal from District Court judge's refusal to order summary judgment in favour of Westpac - merchant facilities arrangement approved by bank on terms and conditions - payment for solicitor's services from client's credit card - was there a contractual arrangement with the bank or an implied term - was there a genuine dispute that some of the transactions unauthorised - position of a bank in disputes between cardholders and merchants - power to charge back transactions - bank's entitlement to recover monies from merchant.

Related companies - debt restructuring - resolutions that debt owed to company A by company B be replaced by debt owed by company C - journal entries later made - whether transaction in breach of directors' statutory and fiduciary duties - whether an uncommercial transaction within s 588FB of Corporations Law - whether company A became insolvent because of the transaction - whether transaction given effect by making the journal entries and company A insolvent at that time - consideration of whether voluntary assistance from related companies material to insolvency - and of scheme for avoidance of insolvent transactions within s 588FC of the Law. D

CORPORATIONS - managed investment schemes - merger proposal involving stapling of units of two managed investment schemes to existing stapled securities each consisting of a share in a company and a unit of a managed investment scheme - applications for judicial advice by responsible entities of the three managed investment schemes and for convening of scheme meeting of members of company - exporpriation of all existing units in both of the managed investment schemes to be added - applicability of Gambotto principles - contracts to give effect to arrangement - same company as responsible entity of the two managed investment schemes to be added - whether it may contract with itself in different capacities - voting rights of holders of interests in managed investment scheme - whether such interests "quoted" as referred to in s.253F(a) when stapled securities of which they form part are quoted on financial market

PRACTICE AND PROCEDURE - INTERLOCUTORY INJUNCTIONS - CONSENT ORDERS - Contractual basis for consent orders for interlocutory injunctions - meaning and effect of consent order for interlocutory injunction "until further order" - who bears burden of satisfying Court as to continuance of interlocutory injunction - usual rule. - FRAUD - FREEZING ORDER - whether sufficient evidence of complicity of defendant in fraud to warrant continuation of freezing order.

Leave to appeal decision of Local Court Magistrate - issue of a subpoena

Practice and Procedure - Overriding Purpose Rule - Security for costs - Application to strike out pleadings - Application for separate determination of liability and quantum - Principles

REAL PROPERTY - Leases - Lessor terminated lease by re-entering leased premises for lessee's default in respect of rent payments - Deed of variation allowed setting off a proportion of expenses incurred in pursuit of a development application against rent payable - Obligation to pay rent an essential term of the original lease - Whether arguable that time made inessential by deed of variation - Dispute about amounts set off and essentiality of time for payment - PRACTICE AND PROCEDURE - Application to extend interlocutory injunction restraining lessor from taking physical possession of the leased premises - Serious question as to whether lessee is entitled to relief against forfeiture - Whether lease has been determined and status quo is that lessee is not entitled to possession - Held that lessee's right in equity to revive his interest in the property did not end at termination - Balance of convenience favours the lessee - Injunction extended on terms.

Sentencing - proper approach to standard non-parole period - - Sentencing - aggravating factors.

Costs - offer of compromise made under Part 39A r25 (6) of the District Court Rules - whether offer applies to costs of appeal - payments made under s151B of the Workers Compensation Act 1987 - possibility that such payments may exceed ultimate award at new trial in the District Court - whether sufficient reason to depart from normal rule of costs follow the event of the appeal

Oral arrangement to pay money and acquire equity in land - written option agreement - option not exercised - rectification, estoppel and equitable charge.

PROCEDURE - Miscellaneous procedural matters - Amendments - Numerous amendments of statement of claim sought at trial - Civil Procedure Act 2005, s 58 - Overriding purpose of just, quick and cheap resolution of real issue to be taken into account - Objects of case management to be taken into account - Whether interests of plaintiff in having all issues determined outweighs other considerations

Criminal law - sentencing - parole period - whether, in fixing a parole period, the court may have regard to the manner in which the sentence is to be served.

INSURANCE - Motor Accidents Compensation Act 1999 (NSW) - Reinstatement of claim under s 110 - Failure to commence proceedings within three-month notice period - Full and satisfactory explanation for failure. D

Corporations Law. Application under s 459G of the Corporations Act to set aside a statutory demand. - Demand set aside. No matter of principle.

application for leave to appeal against sentence - aggravated breaking and entering a dwelling - serious indictable offence of assault occasioning actual bodily harm - circumstance of aggravation knowing that a person was present - plea of guilty - finding of special circumstances - subjective circumstances - the use of actual violence taken into account as an aggravating factor - previous discharge without conviction - prior offence treated as aggravating factor under s21A(2) - use of testimonial evidence - inadequate attention to subjective case - prospects of rehabilitation - whether material misdirection as to availability of means by which sentence might be served - basis for court to form a s6(3) opinion

Negligence - failure to provide a safe system of work - failure to warn employee of risks of transporting heavy farm machinery - failure to instruct employee on course of action if load shifted during transport - contributory negligence

SOLICTOR - COSTS - lien - delivery of former client's papers to new solicitor - Solicitors Rules- whether solicitor's undertaking satisfactorily secured payment of former solicitor's costs and disbursements (D)

Limitations - extension of time to commence proceedings under Motor Accidents Act 1988 - whether a fair trial could be reasonably anticipated - whether prejudice suffered as a result of delay - whether lost opportunity to cross-claim against a third party - expiry of time to make cross-claim under s26 (1)(d) of the Limitations Act 1969

Workers compensation - assessment of damages - hairdresser suffered injury as a result of defective chair for customers that was fixed too high - whether discrepancies in histories recorded in expert medical reports justified their rejection - section 151G of the Workers Compensation Act 1987 (NSW) - determination of severity of non-economic loss as a percentage of 'a most extreme case'

Assessment of damages - paraplegia, life expectancy, services to be performed by wife, chance of marriage not lasting, need for hydrotherapy pool.

Appeal decision of costs review panel - s 208D: "unjust"

CORPORATIONS - administration - leave to proceed against company in administration - whether necessary when the company in administration is the plaintiff and a subsidiary application for security for costs is made against that plaintiff

Application for rehearing - plaintiff and her solicitor fail to attend arbitration hearing - failure to satisfy that there was good reason for non-attendance - court need not make an order - discretionary power and legislative intention.

STOCK - branding and earmarking of cattle - Hormonal Growth Promotant HGP - four prosecutions against auctioneer relating to sale of stock treated with HGP without tags failed for lack of identification of stock in sale with stock to which evidence of HGP treatment related - charges under Stock Medicines Act 1989 s 46 (wilfully contravene order) and Stock Diseases (General) Regulation cl 16A (sell stock not identified as prescribed) failed for lack of proof of approval by Director General of type and specification of transaction identifiers - charge under SD(G) Reg cl 16G (sell stock knowing transaction identifiers removed) failed for lack of proof of participation of auctioneer in removal - charge under Stock (Chemical Residues) Act 1975 s 12D(2)(b) failed for lack of proof that auctioneer gave false or misleading information - decision of Dowd J on appeal under Justices Act 1902 s. 102 (4) affirmed.

Commercial Law - Contract Performance Bonds - Proper construction - Commercial purpose of certification procedure - Whether Surety under any obligation to satisfy itself as to the existence of circumstances justifying demand for payment made under the Performance Bonds

Family Law. Application under the Property (Relationsips) Act 1984 for adjustment of the parties' property interests under s 20 of the Act. Orders made. No matter of principle.

Plaintiff dismissed from employment - appeal to Transport Appeal Board - appeal disallowed - employer was State Rail Authority - employee breached code of workplace standards - sexual harassment - plaintiff claims declaratory and other relief - error of law on the face of the record - irrationality - jurisdictional error

Contract - Construction - Rectification - Masters v Cameron - Abandonment - Specific performance - Discretionary considerations - Corporations Law - Corporations claiming to have held informal directors meetings - Principles concerning essential requirements of valid meetings of directors - Minutes of meetings - Whether later meetings purporting to affirm or ratify or approve fictional minutes of purported earlier meetings had or may have had any and if so what effect at law - Categorisation of 'notation' analysis as opposed to 'imprimatur' analysis - Retrospective alteration and backdating of minutes - Company directors - Authority - Fiduciary obligations - Requirement to take into account interests of particular company in group in relation to proposed transaction - Subjective and objective tests

PRACTICE AND PROCEDURE - Application to withdraw admission in pleadings - Where issues reasonably arguable if admissions withdrawn - Where party resisting amendment did not adduce specific evidence of evidence having become unavailable - Where party seeking amendment adduced no evidence of reasons for making admissions or why they were sought to be withdrawn - Withdrawal of admissions likely to lead to adjournment of hearing - Held that admissions made formally and deliberately by party legally advised should prima facie not be permitted to be withdrawn unless party seeking to withdraw them can point to an error when admissions were made or a relevant change of circumstance.

Extension of time in which to bring appeal - default and delay - explanation - relevance of quantum and interests of the public - question with respect to a matter of law - misconception as to what was done by Tribunal.

Importation of anabolic steroid contrary to Customs Act - sentencing - Crown appeal against leniency of sentence - emphasis on intention of respondent - insufficient weight given to objective criminality and general deterrence.

CRIMINAL LAW - sentence - crown appeal - offence of knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants - guilty plea - assistance provided by the respondent - the respondent was not at the lowest level of the organisation but was, at least, at some intermediate level - whether sentence imposed was manifestly inadequate

Criminal law - Sentencing - Appeal - Parity - Aboriginal descent - Justifiability of grievance - Aggravating factors inherent in offence - Prior record

COURTS AND TRIBUNALS - Administrative Decisions Tribunal - Retail Leases Division - Unconscionable Conduct Claims - Whether Tribunal validly constituted - Whether decision of Tribunal invalid because of participation of non-judicial members - Whether invalidity saved by s81(3) Administrative Decisions Tribunal Act 1997 - STATUTES - Validating Acts - Retrospectivity - Application of retrospective Act to pending proceedings the subject of an appeal by way of rehearing - RETAIL LEASES - Unconscionable Conduct Claims - Unconscionability under s62B Retail Leases Act 1994

EQUITY [205]- Trusts- Advice to trustees- Nature of advice given. SUCCESSION [175] [214]- Surrender of life interests- Whether remainders accelerated- Whether acceleration advances date on which class closes. WORDS & PHRASES- "Next of kin being determined in accordance with laws of distribution on intestacy".

Corporations Law. Application to set aside demand under s 459G of the Corporations Act. Demand reduced. No matter of principle.

Prosecution proceedings brought in the Local Court - direction that written submissions be filed and served by both parties prior to proceedings - prosecution provided a copy of written submissions to plaintiff - right to address a court - magistrate is judge of both fact and law - procedure of filing written submissions (but not serving them) was not capable of creating disadvantage or prejudice - discretionary power in a magistrate to determine the manner or form of procedure.

Contract - Long term Pay Television License Agreement - Dispute between two content aggregators of horseracing content in Australia - Equity - Express negative contractual stipulation - Event of default - Obligation to give notice requiring material bridge to be remedied - Contracting party may be said to have a right to the performance of the contract by the other contracting party