Cases and authorities

Negligence - Duty of care owed by occupier of land when terminating a licencee's licence to enter.

TORT - negligence of employer in failing to have a proper or adequate system of work for workplace injury to back suffered in handling and moving heavy frames when they became misaligned - circumstances included unwillingness to provide additional assistance and urgency of work - no known susceptibility to back injury - employer liable to employee.

Defamation - Counsel's address to jury - Whether jury should have been discharged - Whether direction to jury was adequate.

EVIDENCE - admissibility of documents - admissibility under s 1305 of Corporations Act - admissibility as business records under s 69 of Evidence Act - discretionary considerations under ss 135 and 136 of Evidence Act - application of ASIC v Rich [2005] NSWSC 417 to additional categories of documents

Leave to appeal decision of Local Court Magistrate - evidence

Family Law. De facto relationship. Whether or not parties were in a de facto relationship. Parties were having an affaire, but were not living together as a couple. Trusts. Constructive trusts. Plaintiff made significant financial contributions towards property of Defendant. Whether a constructive trust should be imposed upon that property (or upon proceeds of sale thereof). Money Claims. Defendant received financial benefits in consequence of payments of various amounts which Plaintiff had not authorised. Plaintiff entitled to be repaid those amounts as moneys had and received by the Defendant to the use of the Plaintiff.

EQUITY [97]- Joint bank account- Account held by de facto couple- Plaintiff had legal title to lotto winnings- Placed winnings into joint account- Whether de facto relationship and plaintiff's acquiescence meant that winnings were legal property of each- Whether plaintiff lacked intention to share winnings with defendant which gave rise to resulting trust in his favour. ESTOPPEL [43]- Estoppel by acquiescence- Whether plaintiff's silence as to how defendant spent money from joint account could raise estoppel- Silence can only raise estoppel where there is a duty to speak. FAMILY LAW AND CHILD WELFARE [105]- De facto relationships- Existence of relationship- Parties lived together in same house for 12 years- Conflicting evidence as to whether relationship existed. PERSONAL PROPERTY [5]- Lotto ticket- Plaintiff purchased ticket- Purchaser has legal title - Defendant claimed that preexisting arrangement with plaintiff regarding ticket purchases meant she received a share in winnings- Whether subsequent conduct of purchaser gave rise to creation of other beneficial interests in ticket winnings.

Review decision of Registrar - access to documents

TORT- Defamation- Whether matter fact or comment- Whether material supporting comment. TORT- Defamation- Qualified privilege- Whether "Lange defence" available when judicial officer allegedly defamed.

Appeal decision of Local Court Assessor - Small Claims Division

CRIMINAL LAW: Sexual assault trials - back to back - same accused - order prohibiting publication of evidence in first trial - whether order should be revoked

Procedure - Costs - Circumstances in which Administrator may be ordered to pay costs personally

TAXES AND DUTIES - Goods and Services Tax - Plaintiffs' proceedings for declarations as to liability under A New Tax System (Goods and Services Tax) Act 1999 (Cth) - Commissioner's application for summary termination - Whether proceedings raised a matter for the purpose of the Judiciary Act 1903 (Cth), s 39(2) - Hearing reopened to allow production of signed copies of notice of assessments under the Taxation Administration Act 1953 (Cth), s 22 and a declaration under A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 165-40(a) - Privative provision in the Taxation Administration Act 1953 (Cth), s 59 that production of signed copies of notices of assessment and declarations conclusive evidence that properly made and accept in proceedings in Federal Court or AAT under Pt IVC that amounts and particulars are correct - Whether the copies invoked the privative provision - Whether the notice of assessments was tentative - Whether the privative provision excluded the ingredients making up the net amounts in the tax periods - Whether ingredients included the position under A New Tax System (Goods and Services Tax) Act 1999 (Cth) of related companies, the non-receipients of notices of assessment or declarations - Whether in exercise of discretion the Court should decline to deal further with the matter

SUCCESSION - Wills, Probate and Administration - Probate and letters of administration - Probate in solemn form - Whether deceased lacked testamentary capacity - Earlier statement of wishes - Whether a testamentary disposition in terms of the Wills, Probate and Administration Act 1898, s 18A - No principles involved

APPEAL - decision adopting report of referee - error established - respondent entitled to raise new point of law relevant to exercise of Court's powers - BUILDING & ENGINEERING CONTRACTS - "Plain English Building Agreement" - 11th ed of Housing Industry Association - clause 6 - extensions of time - D

CRIMINAL LAW - application for leave to appeal against sentence - concurring in the making of a false instrument to obtain a benefit - making and using a false instrument - applicant a solicitor - whether adequate allowance for pleas of guilty and assistance to authorities - desirability of quantifying discount

Misleading and deceptive conduct - s 52 Trade Practices Act 1974 - breach of fiduciary duty - purchase of a business - financial advice - loan application - bank customer - accounts - burden of proof - credibility-based finding - Abalos principles - failure to respond as conduct in breach of s 52 Trade Practices Act - certification of accounts - failure to inform purchaser that accounts had not been certified - arms length relationship - scope of accountant's retainer - due diligence. (ND)

Negligence - occupier's liability - duty of care of Neighbourhood Association - Shirt calculus - ex tempore judgments - appeal dismissed.

Equity - specific performance - whether agreement entered into as a result of economic duress - whether plaintiff ready, willing and able to perform agreement for purchase - specific performance refused. - Family law - application under Property (Relationships) Act 1984 for adjustment of parties property interests - consideration of classification of funds provided by parents of a party - orders for adjustment.

PRIVATE INTERNATIONAL LAW - injunctions - where first plaintiff sought to restrain proceedings commenced by defendant in Victorian Magistrates' Court - where second plaintiff sought to restrain proceedings commenced by defendant in Victorian County Court - whether first plaintiff and defendant bound by terms of licence agreement between second plaintiff and defendant - where licence agreement contained arbitration clause and exclusive jurisdiction clause - antisuit injunctions - nature of power to grant antisuit injunction - whether antisuit injunction should be granted in exercise of equitable jurisdiction - whether court clearly inappropriate forum - whether Victorian proceedings vexatious and oppressive - discretionary factors - whether existence of alternative remedy affords basis for refusing relief - whether comity affords basis for refusing relief - whether arbitration and exclusive jurisdiction clauses continue to bind parties after purported termination for breach - whether claims in Victorian proceedings fall outside scope of arbitration and exclusive jurisdiction clauses - whether s 21 of Service and Execution of Process Act prevents grant of antisuit injunction based on exclusive jurisdiction clause

LANDLORD & TENANT [22]- Commercial lease- Construction- Sensible commercial operation- Whether landlord's repairs to roof "reasonably necessary" for safety and preservation of building- Whether repairs still "reasonably necessary" if alternatives available- Principle that specific provisions in lease override general or implied provisions. LANDLORD & TENANT [31]- Commercial lease- Breach of covenant for quiet enjoyment- Substantial interference with quiet enjoyment is a question of fact- Whether "demised premises" included use of arcade adjacent to restaurant- Whether quiet enjoyment extended to arcade. LANDLORD & TENANT [31]- Commercial lease- Difference between covenant for quiet enjoyment and obligation not to derogate from grant- Outcome the same whichever is applied. WORDS & PHRASES- "Reasonably necessary".

Family law - application under Property (Relationships) Act 1984 for adjustment of parties property interests - orders for adjustment.

ADMINISTRATIVE LAW - where defendant set up Independent Panel of Inquiry - where Panel interviewed plaintiff's representatives - where defendant's board adopted Panel report recommending suspension of plaintiff - where defendant's board suspended plaintiff without hearing further from it - natural justice - content of rules of natural justice - whether Panel denied plaintiff natural justice - whether board denied plaintiff natural justice by not providing opportunity to be heard on adoption of report - whether board denied plaintiff natural justice by denying opportunity to be heard on penalty

PROPERTY (RELATIONSHIPS ACT) - whether an adult son, instead of claiming under the Family Provision Act against his father's estate, could allege he cared for his father within a "domestic relationship" as defined in the Property (Relationships) Act - unavailability of such a claim unless commenced in father's lifetime - construction of Property (Relationships) Act - CONTRACT - allegation of contractual right of son against deceased estate arising under agreement to care for father in old age - principle requiring very careful scrutiny of claim against deceased - whether legally binding contract intended between father and son - circumstances where binding promise was found - whether alternative restitutionary claim lay if contract was unenforceable

Workplace injury - proceedings brought earlier than the 6 months in s 151C Workers Compensation Act 1987 - application for leave to appeal - whether proceedings a nullity - whether non compliace with s 151C capable of waiver - leave refused - recent decision in Gordon v Berowra Holdings Pty Ltd (2005) NSWCA 27 - not sufficiently arguable that was erroneous.

NEGLIGENCE - Occupier - guest child aged 7 injured on trampoline which was accessible while children were without adult supervision - consideration of - foreseeability - breach in not preventing children from going to trampoline while unsupervised - reasonable response to foreseen risks to children in home and in care of parents - contributory negligence of child of 7 (held, none) - Civil Liability Act 2002 re contributory negligence, assumption of risk, obvious risk. Finding of liability upheld. - DAMAGES - personal injury - non-economic loss - Civil Liability Act 2002 - percentage of most extreme case - loss of sensation in thumb and 2 fingers, numbness paraesthesia and weakness in R dominant hand - 28% of most extreme case set aside, 20% substituted.

COSTS - TRIAL - offer of compromise made pursuant to Pt.19A District Court Rules - whether offer was genuine - consequences of failure to accept compromise offer - Pt.39A r.25 District Court Rules - whether court should exercise discretion not to award solicitor/client costs - COSTS - APPEAL - compromise offer made during trial but not renewed before appeal - whether fresh offer should be made to secure claim for indemnity costs on appeal - offer at trial not binding on appeal

PRACTICE and PROCEDURE - abuse of process - delay - plaintiff injured in motor accident in 1965, disable person, sued highway authorities in 1994 - defendants applied for strike-out under Pt.15 r.26 on ground that fair trial was impossible due to delay - review of evidence and findings on whether a fair trial was possible - found that it was not - proceedings stayed permanently.

NEGLIGENCE - Motor Accident - plaintiff, girl aged 14, accompanied woman 17 and man 19 by car from Lakemba, reached club at Parramatta, stayed from 12.30 am to 4 am, left to return to Lakemba, car driven by intoxicated man and collided with tree - severe injuries - liability admitted - Trial Judge found contributory negligence 12% - consideration of contributory negligence where passenger accepts lift from intoxicated driver, contributory negligence of young person - finding 12% affirmed. - DAMAGES - future economic loss - findings on limited future employment prospects even if not injured in view of plaintiff's other disabilities - Trial Judge assessed $100,000 - held, sum not consonant with findings on future employment prospects, $200,000 substituted, damages award increased by $88,000.

Appeal decision of CTTT - repudiation

EVIDENCE - admissibility and relevancy - discretion to exclude under section 135 Evidence Act 1995 - MENTAL HEALTH - management and administration of property - proceedings for revocation of protection order - admissibility of hearsay evidence

PRACTICE AND PROCEDURE - abuse of process of court - no question of principle

Appeal decision of Local Court Magistrate - TPA - reliance

Stay of order - summons seeking orders pursuant to Jursidiction of Courts (Cross-Vesting) Act - order dismissing proceedings - application for special leave to appeal to the High Court - extraordinary circumstances - plaintiff facing imminent death - detriment to plaintiff if stay is granted - detriment to defendant if stay is refused.

Statutory Interpretation - Whether regard should be had to interstate offences for purposes of penalty provisions in Road Transport legislation.

Family Law and child welfare - Child welfare other than under Family Law Act 1975 and related Acts - Supreme Court - Parens patriae jurisdiction in relation to welfare of children - Blood transfusion for child over 16 years of age - Orders sought by hospital to administer blood transfusion to a Jehovah's Witness child-Whether order should be made in opposition to parents and child's wishes - Significance of express opposition of child to treatment - Supreme Court Rules - Orders for appointment of tutor to disable person

PRACTICE AND PROCEDURE - Costs - Application for indemnity costs and a costs order against the solicitor for the defendant - Intemperate correspondence and refusal to mediate - Whether conduct complained of was conduct of the defendant as litigant - Court's supervisory jurisdiction over its officers - Held inter alia that indemnity order is inappropriate where the plaintiff has not been wholly successful.

Family provision - application under Family Provision Act 1982 by a former wife who received a property settlement - held no factors warranting the making of the application under s 9(1) of the Act - proceedings dismissed - comments on the amount of costs in Family Provision Act matters.

Non-intimate forensic procedure - whether plaintiff a "suspect" - reasonable grounds for suspicion.

PRACTICE AND PROCEDURE - summary dismissal - default in complying with Court orders - PRACTICE AND PROCEDURE - discovery before particulars - not available without evidence where plaintiff liquidator had the benefit of examinations in the winding up after service of statement of claim - D

Costs - plaintiff's application for Bullock order - application made after judgment and costs orders - costs orders entered - whether power to vary costs orders by Bullock order - power under slip rule - whether order should be made - no conduct making it fair to impose the additional costs on the unsuccessful defendants. ND

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) - cross vesting - Dust Diseases Tribunal - asbestos exposure - mesothelioma - specialist nature of the Tribunal - plaintiffs residents in South Australia - plaintiffs were employed in South Australia - Supreme Court of South Australia - connecting factors - natural forum - application for transfer to South Australian Supreme Court - interests of justice - evidentiary procedural powers under Dust Diseases Tribunal Act - saving time and cost.

Sentence - aggravated entry with intent to commit a serious indictable offence - aggravating factors where matter is an element of offence - utilitarian value of plea - "special circumstances".

CRIMINAL LAW - MANSLAUGHTER - born alive rule - meaning of words "born alive" - whether baby breathing with assistance of ventilator is 'alive' - whether the existence of a heartbeat is sufficient for baby to be born alive - whether evidence of brain function is necessary for baby to be born alive - whether statutory definition of 'death' in s33 of the Human Tissue Act is relevant to definition of life for purposes of born alive rule.

LEGAL PROFESSION - whether costs order properly made against solicitor pursuant to s 198M Legal Profession Act 1987 - whether case that solicitor provided legal services on a claim for damages without reasonable prospects of success - NATURAL JUSTICE - procedural fairness - failure to give full and sufficient notice of basis on which costs order might be made against solicitor - failure to give full and sufficient opportunity to respond to question whether costs order should be made to have regard to principles of natural justice - PROCEDURE - mode of making s 198 M costs application - procedure devised to deal with question whether a s 198M order should be made should have regard to principles of natural justice - JUDICIAL OFFICERS - exercise of judicial power - obligation to give reasons - STATUTORY INTERPRETATION - construction of Part 11, Division 5C of the Legal Professional Act 1987 - WORDS AND PHRASES - "without reasonable prospects of success" (D)

PROCEDURE - Summary disposal - Proceedings struck out as abuse of process - Whether proceedings thereby finalised - For clarity, final chance given to seek leave to file appropriate process, otherwise proceedings dismissed

FAMILY LAW - De facto relationships - Statutory power to make orders adjusting property interests of parties - Matters to be considered - Initial contributions of parties - Contributions during relationship - Relevance of both benefit and cost of contributions - Need for findings as to contributions - Sufficiency of reasons

COURTS AND JUDGES - reasons for decision - requirement that critical evidence be analysed - duty to give reasons for preferring one case over the other - Court of Appeal - orders - new trial - whether appellant's case was adequately considered by primary judge - whether "substantial wrong or miscarriage of justice" - Supreme Court Rules 1970 Pt 51, r 23. (ND)