Cases and authorities

Dismiss statement of claim - duty of care between University and student

PRACTICE AND PROCEDURE - Interlocutory injunction - Claim to enforce restraints in agreement for sale of shares - Mareva injunction - Injunctions refused on basis of undertakings proffered.

CORPORATIONS - winding up - examination of officers - rights to inspect written record of question and answers made under s.597(13) - whether s.597(14A) creates rights or is merely concerned with payment of fees - distinction between "records of the examination", "written record made under subsection (13)" and "transcript of an examination" - whether direction under s.596F(1)(e) may deny s.597(14A) right to inspect - WORDS AND PHRASES - "subject to"

Statutory trust for sale. Discretion of Court. Asserted agreement inconsistent with statutory sale. Challenge to validity and efficacy of asserted agreement and to transfer of property into co-ownership. whether Defendant was in a position of special disadvantage in relation to Plaintiff. Unconscionable conduct. Whether asserted agreement was unjust. Inferences which the Court may draw from failure of a party to call a witness.

Letter written to Police Minister by defendant imputing that plaintiff not a fit and proper person to hold gaming licence or to be associated with holder of such licence - Police Minister directs investigation into allegations made in letter - defamation action based on letter - defendant pleads defences of truth and qualified privilege - malice pleaded in answer to qualified privilege - - - - At trial plaintiff seeks to tender five judgments of Licensing Court and report of investigation into defendant's allegations all rejecting those allegations, of which defendant was aware, as evidence of malice by defendant's persistence in asserting truth of his allegations in face of their constant rejection by authorities - tender rejected by trial judge as unfairly prejudicial to defendant, as strength of findings in favour of plaintiff such that jurors unable to put them out of mind when considering defence of truth - Evidence Act 1995, s 135 - error by judge - - - - At trial plaintiff seeks to amend by adding to particulars of malice and supplying particulars of aggravated damages - judge rejects on principles of case management- similarity of issues in malice and aggravated damages - error by judge - - - - Judge rules that, after withdrawal of defence of truth and in absence of particulars of aggravated damages or of falsity, no issue of truth or falsity arose - discussion of relevance of truth and falsity in defamation - error by judge

NEGLIGENCE - Professional Negligence, Medical (Obstetrician) - appellant challenged findings of Grove J which led to judgment for defendant on claim of medical negligence where plaintiff born in emergency Caesarian with catastrophic injuries and cerebral palsy - alleged negligence in permitting pregnancy to continue beyond 42 weeks - review of factual findings and events in management of plaintiff's mother including EDC (estimate date of confinement) - factual findings confirmed, appeal dismissed.

CORPORATIONS - voluntary administration - extension of time for completion of second meeting of creditors - CORPORATIONS - voluntary administration - fees of administrator accruing during lengthy adjournment 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

Contractual claim for call upon member levied pursuant to constitution - duty to disclose and estoppel - leave to appeal on mixed question - relevant considerations.

LIMITATION OF ACTIONS - extension of time - whether plaintiff unaware of nature and extent of personal injury - whether plaintiff unaware of connection between personal injury and act or omission of defendant - whether just and reasonable to grant an extension of time - whether fair trial possible.

PROCEDURE - Costs - Whether notice to admit essential facts after affidavit proving the facts filed and served enlivens entitlement to indemnity costs of proof under Supreme Court Rules 1970, Pt 52A r 19 - Whether refusal to agree upon statement of facts warrants order for indemnity costs - Whether costs of prolongation of hearing due to handing up submissions additional to those directed to be swapped and raising new arguments should be borne by plaintiff

Deemed supply of heroin and methylamphetamine - proposed sale of methylamphetamine to pay for heroin for personal use - no statement of principle

STATUTORY DUTY - mere licensing provision - specific precaution for the safety of others not required - actionable statutory duty not created - STATUTORY DUTY - condition in statutory licence - actionable statutory duty not created - STATUTORY DUTY - administrative direction by public official - actionable statutory duty not created - D

MENTAL HEALTH - guardians, committees, administrators, managers and receivers - power of court to permit resignation of private manager of estate of protected person - power of court to appoint another manager when previous manager resigns

Motion to restrain solicitors acting against a former client - Whether confidential and relevant information - whether duty of loyalty - Whether solicitors should be restrained on public policy grounds

CUSTOMS PROSECTION - penalty - offences of - smuggling - evading payment of duty - intentionally making a false statement to a customs officer reckless as to the fact that the statement was false in a material particular

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - revoking probate to one of two executors - applicable principles - SUCCESSION - FAMILY PROVISION AND MAINTENANCE - practice - one of two executors wishes to bring Family Provision Act proceedings against estate - whether possible while probate remains unrevoked - who should be named as defendant in such proceedings - SUCCESSION - EXECUTORS AND ADMINISTRATORS - administration - entitlement to intermediate income of a specific devise - SUCCESSION - EXECUTORS AND ADMINISTRATORS - proceedings against executors and administrators - entitlement of beneficiary to question reasonableness of expenses incurred by executor in defending litigation - SUCCESSION - FAMILY PROVISION AND MAINTENANCE - practice - whether rule requiring plaintiff to serve administrator with notice of eligible claimants applies when one of two executors is the plaintiff

PRACTICE AND PROCEDURE - Application to transfer proceedings to another state - Liquidator's claim against directors for insolvent trading - Liquidator is in NSW - Finance and management functions of company performed in Western Australia - Likely witnesses resident in WA - Liquidator contends case against directors is largely documentary - Corporations Act ss 588G, 1337H, 1337L, 1337M - Proceedings in NSW would cause substantial personal hardship to the applicant defendants - Held that justice is best served by transferring the proceedings to WA.

MENTAL HEALTH - legal proceedings by person whose estate has Protective Commissioner as receiver and manager - whether such a person has capacity to bring proceedings other than by the manager of his estate

CRIMINAL LAW - appeal against conviction - sexual intercourse without consent - whether the verdict was unreasonable and cannot be supported having regard to the evidence

appeal against severity of sentence - malicious wounding - assault occasioning actual bodily harm - pleas of guilty - victim impact statements - subjective circumstances - special circumstances - whether sentences manifestly excessive - starting point of sentence just below statutory maximum - no finding that offence a "worst case" - accumulation of sentence

application for leave to appeal against sentence - aggravated break, enter and commit a serious indictable offence - plea of guilty - standard non-parole period - standard non-parole period applicable to sentencing after trial - departure from standard non-parole period - finding of special circumstances - failure to give effect to finding of special circumstances - discount for plea of guilty - whether offence middle of the range of gravity of offences of its kind - element of the offences wrongly taken into account as a circumstance of aggravation - whether sentence manifestly excessive

CRIMINAL LAW - Appeal against severity of sentence - parity

s 5F appeal against refusal to grant temporary stay - risk of prejudice

Possession of prohibited imports (MDMA) - sentence - departure from usual proportion between head sentence and non parole period - Assistance and plea of guilty - discount.

Workplace injury - rolling rocks off roadway - found unsafe system of work because no instruction on what rocks to remove manually and when to call for a loader - whether system of work required removal of rocks even if not blocking path of dump truck - whether plaintiff was rolling large rocks - whether contributory negligence - apportionment between "labour hire" employer and hirer of labour - whether plaintiff's costs also apportioned. D

Appeal from Consumer Trader and Tenancy Tribunal - issue of law - absence of reasons - no issue of law able to be identified.

EQUITY - undue influence - unconscionable conduct - sale of house at undervalue by longstanding client to prostitute - whether conduct by her such as to attract intervention of equity - CONTRACTS - statutory remedies - unjust contracts - CONVEYANCING - conveyance - deposit not paid - whether obligation to pay deposit merged on completion

CRIMINAL LAW - sentence - murder - plea of guilty as being a principal in the second degree

Setting aside of default judgment - validity of notice before suit - service of statement of claim and other notices - bona fide defence on the merits - default, delay and explanation.

CONTRACT - contract of settlement of worker's compensation proceeding - whether contract was incomplete or uncertain, or lacked intention to be bound, where settlement required execution of Terms, Release, Admissions and Agreed Facts which had not been settled - whether it could be implied that defendants' solicitors would draft documents to contain no unreasonable demands on the plaintiff, forms called "settlement packs" used by the defendant being in existence - principles relating to uncertainty and incompleteness of contract - circumstances in which an apparently incomplete term could be read as implying a provision of reasonableness so as to give it sufficient clarity of meaning - effect on agreement to settle section of worker's compensation legislation forbidding contracting out

CRIMINAL LAW - sentence - plea not guilty to murder - verdict of guilty of manslaughter - substantial impairment by abnormality of mind (Crimes Act 1900 (s23A)) - severe depression

Building and construction - Practice and procedure - Proceedings by head contractor against subcontractor seeking to impugn an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW) - Agreement to the effect that plaintiff would refrain from seeking injunctive relief to prevent determination registration and would pay funds into Court on the basis that in the event defendant succeeded in upholding adjudication determination, subject funds would be released to defendant forthwith upon it filing the adjudication certificate as a judgment in a court pursuant to the Act - District Court proceedings to determine the parties respective legal rights on final basis - Decision of Supreme Court that adjudication determination valid - Plaintiff opposes release to defendant of funds held by Supreme Court contending that defendant's financial position demonstrates substantial risk that it would be unable to repay funds in event plaintiff succeeded in establishing that the funds should not have been paid on final determination of the parties legal rights - Holding as to level of risk of prejudice to constitute a ground for refusal to pay out funds to defendant - Interim injunction said to be pursued in the absence of claim to final relief - Contract - Specific performance

CONVEYANCING [63] - Relationship of vendor and purchaser - Matters arising between contract and conveyance - Time - Time of the essence - Generally - By notice - Efficacy of notice - Notice expiring on Good Friday.

Sentence - supply of commercial quantities of prohibited drugs - assistance to the authorities - partial accumulation of sentence

Criminal Law - Sentencing - Taking into account a matter being an element of an aggravated form of the principal offence - delay - whether sentence manifestly excessive.

COSTS - pre-trial offer of compromise - specific principal offer and costs offer made - Pt 19A District Court Rules - consequences of failing to accept compromise offer - Pt 39A District Court Rules - court's discretion as to costs - "an exceptional case" - "avoidance of substantial injustice" - APPEAL - indemnity costs - court's discretion as to costs - s.76 Supreme Court Act - relevance of parties' conduct of proceedings - s.48A Defamation Act

Conviction - Contempt of Court - Acting as barrister whilst not the holder of a current practising certificate.

CONVEYANCING [187] - Land titles under the Torrens system - Caveats against dealings - Lapse, removal and withdrawal - Generally - Extension - Application for - Discretion of Court - Balance of convenience - Whether damages adequate remedy.

PROPERTY - appointment of manager of the estate of a missing person under Protected Estates Act 1983 (NSW) - evidence required for appointment - procedural aspects of obtaining an order - scope of dealings permitted pursuant to an order - FAMILY LAW AND CHILD WELFARE - appointment of manager of the estate of a missing person under Protected Estates Act 1983 (NSW) - evidence required for appointment - procedural aspects of obtaining an order - scope of dealings permitted pursuant to an order - RECEIVERS AND MANAGERS - appointment of manager of the estate of a missing person under Protected Estates Act 1983 (NSW) - evidence required for appointment - procedural aspects of obtaining an order - scope of dealings permitted pursuant to an order - WORDS AND PHRASES - "missing person" - "it is not known whether the person is alive" - "usual place of residence" - "best interests" - "relative" - "all reasonable efforts"

PRACTICE AND PROCEDURE - subpoena - documents produced - whether inspection ought be permitted - apparent relevance - privacy considerations - relevance of implied undertaking not to disclose contents for unrelated purpose

BUILDING AND CONSTRUCTION – Adjudication determination was made on progress payment pursuant to the Building and Construction Industry Security of Payments Act 1999 – party requested a review of the Master Building Association’s nomination of adjudicator on the basis of apprehended bias because of a previous “dispute” – whether there was apprehended bias in the circumstances – whether party is estopped from now seeking an order in the nature of certiorari – whether party made an election by continuing with the adjudication process – whether there was a waiver to the right of objection on the basis of apprehended bias. - Held that there was apprehended bias and that determination was void.

NEGLIGENCE - contractor injured while making deliveries to occupier's premises - whether primary judge erred in the formulation of the occupier's duty of care - whether contributory negligence established on the facts - DAMAGES - whether primary judge erred in the calculation of non-economic loss - whether primary judge erred in assessment of future earning capacity (D)

CATCHWORDS - NEGLIGENCE - council liability for negligent failure to maintain streets and footpaths - non feasance rule - limitation period- whether plaintiff was ignorant of limitation period - change in the state of the law - where plaintiff waits for a favourable change in the law before instituting proceedings - whether circumstances justify an extension of time - prejudice to right to a fair trial - s 60C, s 60E(1) Limitation Act 1969. - (D)

DEFAMATION - Pleading - Contextual imputation - Whether rhetorical - Whether sufficiently specific and precise - Whether less specificity and precision required than for plaintiff's imputations - Applicability of considerations of practical justice - Relevance of particulars of facts and circumstances relied on to establish truth