Cases and authorities

NEGLIGENCE - personal injury - damages assessment challenged on appeal - general damages - future economic loss (ND)

Appeal against sentence - discount for plea of guilty - matters of aggravation under s21A Crimes (Sentencing Procedure) Act.

CRIMINAL LAW AND PROCEDURE - SENTENCE - AMBIGUITY AS TO WHETHER PRE-SENTENCE CUSTODY TAKEN INTO ACCOUNT - FINDING BY SENTENCING JUDGE OF POWERFUL SUBJECTIVE CASE - PLEA OF GUILTY ON SCHEDULED TRIAL DATE - COORDINATION OF FINDINGS AND ULTIMATE IMPOSITION

PROFESSIONS AND TRADES [169] - Lawyers - Liens - Possessory lien - When lien arises - Costs not yet assessed - Principles applicable.

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Call option to purchase land - Whether optionee can lodge caveat against land said to be servient tenement to land the subject of option - Land subdivided and one parcel transferred to local council for use as public car park - Whether right of way over car park for access to retained portion arises by implication from common intention - Claim that agreement for sale of car park by local council void - Community land reclassified by local council under the Local Government Act 1993, s 27 - Whether s 32 an exclusive code for reclassification of land dedicated to a local council under the Environmental Planning and Assessment Act 1979 - Whether optionee has standing

PROPERTY LAW - EQUITY - poker machine entitlements under Gaming Machines Act - rights of lessor and lessee under hotel lease - requirement of approval of Liquor Administration Board to transfer of entitlement - opinion of Board as to financial interest in hotelier's licence - effect of provision for additional rent related to liquor purchases - whether lessors were in breach of implied term of lease or trust obligation in refusing to support transfer of entitlements

Costs - the procedure provided by rule 22 - discretionary power to award indemnity costs - revisiting and vacating earlier costs orders.

Negligence - employee injured removing computer from car boot - failure to make risk assessment - failure to instruct - foreseeability - Shirt calculus - conduct of trial - adequacy of reasons.

Planning - application for variation to development consent - application of s79C(1) and s96 of the Environmental Planning and Assessment Act 1979 (NSW) - whether addressing non mandatory consideration demonstrated error of law - whether proposed imposition of fee for first two hours of parking would have an "economic impact" on the "locality"

MENTAL HEALTH - declaration or finding of incapacity - application for revocation of order for management of estate of plaintiff - meaning of "capable of managing his or her own affairs" - what count as "affairs" - relevance of willingness to take advice to capacity to manage own affairs - relevance of vulnerability to exploitation to capacity to manage own affairs - onus of proof - standard of proof - types of matters appropriate to take into account in deciding whether standard of proof has been met - whether any discretion exists concerning making of an order

TAXATION - Telecommunications - Application to compel Telstra to supply plaintiff with an unrestricted service - Plaintiff refused to pay GST component of his telephone bill - Plaintiff claimed that Telstra was not liable for GST - No challenge to validity of legislation - Claim dismissed.

RESTRAINT OF TRADE - Application for an interlocutory injunction restraining former employee from working on Telstra account while employed by competitor of plaintiff Term in employment contract restraining employee from contacting or dealing with plaintiff's clients - Plaintiff makes specialised software for a small pool of clients - Launch of new product and tender with Telstra pending - Employee provided technical assistance to sales team and was possessed of information which would be very valuable to a competitor - Evidence that confidential information was disclosed to the new employer - Whether Restraints of Trade Act applies Construction of clause with reference to business carried on by plaintiff - Held that restraint clause was prima facie reasonable - Balance of convenience favours the plaintiff - Injunction granted.

Criminal Law - Sentence - Resentencing after successful appeal on less serious charge - taking into account time served - finding facts after charge bargain.

NEGLIGENCE - Occupier's liability - No breach of duty of care. ND

CONTRACT - accord and satisfaction - whether terms of settlement amounted to accord and satisfaction of claims under building contract - effect of accord and satisfaction - discharge of original cause of action - WAIVER - whether filing of defence and cross-claim constituted waiver - PRACTICE AND PROCEDURE - amendment of pleadings to accord with basis upon which reference conducted -APPEAL - Referee's report - appeal from adoption of referee's report - whether judge erred in ordering report be adopted. (D)

CONTRACTS - illegal and void contracts - whether resulting trust may be recognised where illegal partnership provides part of purchase moneys and of partnership property

Lower back injury allegedly suffered by reason of moving cases of beer - issues of fact - no question of principle.

Negligence - wilful acts of vilification - breach of contract of employment - resulting psychiatric illness - employee placed under authority of customer's manager - misconduct by manager - misconduct prohibited - liability of manager's employer - liability of employee's employer - effect of failure to complain - vicarious liability of each employer - aggravated and exemplary damages

Appeal against decision of Local Court Magistrate - camera speeding offences - reliability of camera and speed measuring devices - statutory scheme to prove reliability - certificates - presumption of continuance - misdirection as to statutory scheme - proper plaintiff.

PROCEEDS OF CRIME - proceedings under Criminal Assets Recovery Act 1990 - admissibility of telephone intercept material - meaning of "employee of the carrier" in s.47(b) Telecommunications (Interception) Act 1979 (Cth) - irregularity in execution of warrant - discretion to admit evidence under s.75 Telecommunications (Interception) Act 1979 (Cth) - evidence admitted.

STATUTORY INTERPRETATION - WORDS AND PHRASES - "INDIVIDUAL" - Whether "individual" in Regulation 20(1)(c) Children and Young Persons (Care and Protection) Regulations, 2000 (NSW) includes "corporation".

CORPORATIONS - Winding up - Application to set aside statutory demand - Whether affidavit incorporated into originating process sufficient - Whether hearsay evidence without statement of source admissible notwithstanding Evidence Act 1995, s 95 - Whether the court can dispense with the rule under Supreme Court Act 1970, s 82(1)(a) - Minimum requirement for affidavit in support of offsetting claim under Corporations Act 2001, s 459H(1)(b) - No evidence of quantum of offsetting claim in supporting affidavit - Whether evidence as to quantum outside 21 day period admissible

ADOPTION - change of name - where adopting parents wish to give child western first given name - where proposed first given name was the original surname of the child - whether s 101(5) applies - whether special reasons within the meaning of s 101(5) exist

Arbitration - Commercial Arbitration Act 1984 s 46 - dispute arising under construction contract - whether arbitration agreement exists - whether grounds for termination of arbitration or removal of dispute into court - whether inordinate or inexcusable delay - whether a substantial risk of unfair trial - whether the delay likely to cause, or to have caused, serious prejudice - power of court turns on own facts

PRACTICE AND PROCEDURE - Application to extend injunction restraining elderly woman from dealing with her property - Plaintiff's son apprehends that other son living with mother may take advantage of her - Jurisdiction of court to make orders for the protection of persons from improper pressure - Serious question to be tried as to whether defendant is incapable of managing her affairs - No real threat that defendant may dissipate her own property - Held that evidence of risk is very slight - Injunction dissolved.

TORT - Injurious falsehood - Second defendant established blog website under a name disparaging of second plaintiff and invited comments - Prima facie case of malice and intention to cause damage - Whether serious question to be tried that second defendant was the author or publisher of comments posted to website - Serious question whether statements or imputations conveyed were false. - PRACTICE AND PROCEDURE - Interlocutory injunctions - Whether special rule in relation to the restraint of defamatory publications applicable - Balance of convenience - Form of injunction - Injunction continued.

SUCCESSION [320] - Family provision - Principles upon which relief granted - Applications of children - Adult children generally - Further provision made by way of a legacy for one of two sisters.

APPEAL - Challenge to factual findings of primary judge - Whether glaringly improbable - Whether vitiated by error

COSTS - offer of compromise in District Court - defendant offered sum greater than judgment in District Court - formal offer under DCR Pt.39A - defendant recovered costs from date of offer as in Pt.39A r.25 - an appeal, no offer was made and plaintiff as appellant recovered higher award but still below offer - appellant recovered costs of appeal.

INSURANCE - Liability to pay under group life contract held by trustee of retirement fund - Whether the incapacity of the "insured person" satisfied the definition of "total and permanent disablement" as required by the policy - Whether employee the "insured person" - Whether insurer was under a duty of good faith and fair dealing vis-à-vis employee as well as the trustee - Whether if there was such a duty of good faith it was breached so far as the employee was concerned - Basis for extending duty to person not a party to insurance contract who only indirectly benefited from it in that the insurance money funded the trustee's payout to employee and the payout depended on it - Content of duty of good faith where lack of procedural fairness to employee. - CONTRACT - Privity - Incremental extension of Trident principles.

CONTRACT - proper interpretation of contract between the Association and the Authority - Whether breach of obligation to take out public liability insurance - Whether any direct and proximate relationship between the accident and "the Event" to enable public liability insurance "for the Event" (as the contract provided) to cover two individuals attending "the Event" when they fell into a culvert (not on the car park nor on the path to the car park) en route to their car, parked in an adjoining car park under control of the Authority.

Slipping case - brick pavers at entrance to hospital emergency department - mossy substance (cryptogams) between and above bricks - fall in rain and at night-time - plaintiff unable to identify which paver she slipped on - plaintiff's husband next morning saw cryptogams "scattered" over area where plaintiff fell - whether particular cryptogams slippery when wet - examination of area by expert long time after event - evidence that conditions of cryptogams the same both times - whether open to judge to find wet cryptogams cause of slip - main contributing factors to slipping accidents - whether wet cryptogams obvious risk.

PROCEDURE: Statutory liability of Nominal Defendant where bus driver could not be identified but ownership of bus known to be State Transit Authority of New South Wales ("STA") - STA not a party to original proceedings or appeal - consequences for court orders and costs.

Corporations - application to set aside judgment debt under s 459G of the Corporations Act. Judgment debt following on adjudication under the Building & Construction Industry Security of Payment Act. Whether such judgment was on the merits and created a res judicata sufficient to prevent the raising of a genuine dispute. Held genuine dispute could be raised.

NEGLIGENCE - ADDITIONAL ALLIED CAUSES OF ACTION PLEADED - RECREATIONAL HORSE RIDING ALONG NATURE TRAIL - REACTION OF HORSE TO INTERFERENCE BY ANOTHER ANIMAL - ABSENCE OF BREACH OF DUTY BY OPERATOR OF RIDE - SEPARATE TRIAL OF LIABILITY

PRACTICE AND PROCEDURE - Interlocutory application for an injunction to restrain the defendant lessor from interfering with the plaintiff lessee's use or occupation of the leased premises - Notice of termination of lease served by leaving at premises early in the morning - Lessee placed in administration later that day - Locks changed by lessor - Serious question to be tried about whether defendant's possession is contrary to s 440C of Corporations Act - Undertaking as to damages offered only by company in administration - Whether legislature intended s 443B to confer on administrator a grace period of 7 days and no further undertaking should be required - Corporations Act s 440C, 441F, 443B - Held that the usual requirement to give an undertaking of some worth had not been displaced - Application refused.

COSTS - ADMINISTRATIVE LAW RELIEF - PARTICIPATION AS A CONTRADICTOR BY DISPUTE RESOLUTION TRIBUNAL - SUBSTANTIAL SUCCESS BY PLAINTIFF BUT FAILURE ON SIGNIFICANT ISSUES LITIGATED - LITIGATING TRIBUNAL TREATED AS ORDINARY PARTY ON MATTER OF COSTS

Statutory interpretation - transitional provisions - summons - court attendance notice - issue and filing of court attendance notice - "any act, matter or thing" - "a thing" - "an expression" - corresponding provision

CORPORATIONS - winding up - just and equitable ground - application by creditor - whether plaintiff is creditor with standing - companies shown to have engaged in fabricated transactions - principals banned for life from acting as investment advisers - just and equitable ground made out

SENTENCING - Manslaughter - plea of guilty - involvement in extended joint criminal enterprise - prospect of deportation not relevant on sentence - finding of "special circumstances" based upon onerous nature of imprisonment.

EQUITY - Undue Influence and Duress - Plaintiff an 83 year old dependent personality emotionally dependent upon female defendant - Presumption of undue influence accepted - Female defendant wrote cheques in excess of $500,000 on plaintiff's bank account - Whether presumption rebutted - No new principles - Forensic evidence from indentations on cheques disproving defendants' contentions - Whether fraud established - Unnecessary to decide

CRIMINAL LAW - SENTENCE APPEAL - Where Accused leads new evidence to displace the finding of Trial Judge - CRIMINAL LAW - SENTENCE APPEAL - Subjective Circumstances - Where accused addicted to drugs from an early age - Where accused avoided rehabilitation - CRIMINAL LAW - SENTENCE APPEAL - Whether sentence manifestly excessive - CRIMINAL LAW- SENTENCE APPEAL - Special Circumstances - Need for supervision - Where accused has made unsuccessful attempts at drug-rehabilitation.

Criminal Law - Sentencing - Sentencing of a juvenile of sexual assault offence after conviction - no matter of principle.

Criminal Law - Sentence - Social Security fraud - short custodial sentences imposed - whether evidence of effect of sentence upon applicant's retarded daughter so exceptional as to require non-custodial sentences - no error in exercise of judge's discretion.

Negligence - employer's duty of care to employee - hazardous task - failure to take reasonable steps to provide safe system of work - failure to provide sufficient instruction in relation to the extent and nature of the hazards involved - Contributory negligence - requirement of some level of understanding of the dangers involved. (ND)

CORPORATIONS - cross-border insolvency - letter of request directed by High Court of Justice of England and Wales to Supreme Court of New South Wales - application by English company and its provisional liquidators for orders in aid of English court - auxiliary jurisdiction under Corporations Act, s.581, considered - recognition, as a matter of comity, of English order appointing provisional liquidators - whether "external administration matter" shown to exist - availability of general equitable remedies in aid of English court - whether declaratory relief appropriate where no lis inter partes - whether declaratory relief of any utility - whether final injunctive relief should be granted ex parte against persons generally - whether comity requires making of orders of a kind made by English court in generally reciprocal circumstances - whether auxiliary jurisdiction extends to replication of orders made by courts in the United States and Ireland