Cases and authorities

Medical neglience - Standard of care - Breach of duty - Causation - Warning of complications of treatment

NEGLIGENCE - personal injury - public authority - BMX bike club - BMX cycle track - access to public - unfenced starting ramp - lack of warning signs - whether negligent - plaintiff riding down ramp at speed - dislodged at first hump - whether negligent - contriburoty negligence - 14 year old girl - dare by friend - DAMAGES - assessment of - brain damage - employability - cost of care - capacity to care for baby born since accident - cost of funds management - how calculated and applied

Delay of 41 years - alleged significant prejudice - fair trial.

CORPORATIONS - voluntary administration - application to extend convening period under section 439A(6) Corporations Act 2001 (Cth) - available where validity of appointment of administrators in question - desirability of an order extending convening period to a fixed date rather than to a date ascertainable by inquiring whether other events have occurred

Joint Tenancy Agreement - Property Transfer - Mortgage Repayment

Appeal from Master - Discretion of Master - Security for costs

CORPORATIONS - reinstatement of registration after deregistration - transitional regime where deregistration effected under pre-1998 Corporations Law - company acted as trustee - reinstatement application by beneficiary - whether company had ceased to be trustee before deregistration - trust property vested in ASIC subject to trusts and other third party interests - ASIC's power to apply for order appointing new trustee - whether applicant beneficiary aggrieved by deregistration

Appeal decision of Local Court Magistrate - application to set aside default judgment

CORPORATIONS - winding up - statutory demand - whether affidavit accompanying demand defective - where affidavit made by solicitor contains key statements not attributable to creditor - whether demand defective because debt not payable in Australia - whether genuine dispute because foreign judgment grounding demand not registered in Australia

LANDLORD AND TENANT - leases - option to renew - whether alleged subsisting breaches and failure to pay GST prevented valid exercise of option - effect of s 133E Conveyancing Act. - EQUITY - specific performance - provision of guarantee under previous lease by then-directors of lessee - lessee not party to guarantee - relevance of readiness and willingness of lessee to perform obligation. - STATUTES - interpretation - s 133E Conveyancing Act 1919 - requirement for valid notice.

Appeal decision of CTTT - whether same Tribunal Member should conduct rehearing

CRIMINAL LAW - SENTENCING - Crown Appeal - Whether sentence manifestly inadequate - Armed robbery - Guilty plea - Prior criminal history - Offence committed in company - Intrusion in victim's home - Offence committed during parole period - Offence partially planned - Where possibility that sentence would not impose futher punishment.

Significant delay by the trial judge in giving judgment - approach on appeal to findings by the trial judge.

CONTRACT FOR INSURANCE - compulsory insurance in relation to residential building under the Home Building Act 1989 - Pt 6A (insolvent insurer) - head contractor's right to indemnity from respondent (Building Insurer's Guarantee Corporation) under Pt 6A after subcontractor abandoned performance of subcontract and subcontractor's insurer became insolvent - whether a subcontractor required under Part 6 to enter into contract of insurance for benefit of head contractor - whether respondent bound to stand behind insolvent subcontractor's failed insurer - statutory interpretation

Criminal law - interlocutory appeal by Crown - challenge to ruling on admissibility - not a judgment or order - appeal incompetent.

Succession. Family Provision. Claim by adult son. Financial and material circumstances of Plaintiff. Absence of contact by Plaintiff with Deceased. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claims of beneficiaries (who are children of the Plaintiff).

Appeal from decision of Local Court Magistrate - procedural fairness

CORPORATIONS [291]- Proof of debt- Successful appeal from rejection- Proper order for costs.

RESTRAINT OF TRADE - Whether a restraint of trade clause against soliciting, interfering with, or endeavouring to entice away employees of the employer for twelve months after termination of employment is too wide and therefore against public policy - Restraint on solicitation of employees of any description too wide to be enforceable - Period of restraint too long - Restraint applies to employees who joined the plaintiff after the defendants' termination of employment and to employees in other states - Unenforceable at common law - Application for a declaration that defendants are restrained from responding to an approach by an employee of the plaintiff - Declaration can only be made by having regard to individual circumstances of employment. - CONTRACT - Restrictive covenant - Breach - Whether enforceable - Whether the restraint was reasonable at the time the contract was entered into - Covenant cannot be read down - Unreasonable restraint of trade. - EMPLOYMENT LAW - Novation of contract of employment - Employee post-employment restriction - Employee bound by a twelve month restraint of trade term against poaching employees of his former employer - Post-contractual restraint not a "condition of employment". - TRADE AND COMMERCE - Where plaintiff seeks to enforce a restraint of trade provision in an employment contract - Whether employer has a legitimate interest in being protected against his employees or contractors being enticed to work for the former employee - Whether the restraint goes no further than is reasonably necessary to protect the employer's legitimate interest - Held to be an invalid restraint of trade.

EVIDENCE - expert opinion evidence - reasoning in ASIC v Rich [2005] NSWSC 256 reviewed

Threshold requirements - significant prejudice - fair trial and experts' code of conduct.

PRACTICE AND PROCEDURE - interlocutory application - where plaintiff purportedly held extraordinary meeting appointing new strata managing agent - where plaintiff sought interlocutory orders against former strata managing agent providing for delivery up of documents and payment of trust moneys to it - where plaintiff gave notice under s 105 of the Strata Schemes Management Act - whether extraordinary general meeting validly called - balance of convenience - where alternative dispute mechanism available under Act and not utilised by plaintiff - no question of principle

SENTENCING - break, enter and commit serious indictable offence in circumstances of aggravation - extent of discount for early plea of guilty and finding of remorse - determination of objective seriousness of offence - use of pre-2003 statistics in sentencing for standard non-parole period offence.

CRIMINAL LAW AND PROCEDURE - SENTENCE - AGGRAVATED ROBBERY - MALICIOUS INFLICTION OF GRIEVOUS BODILY HARM BY APPELLANT - PARITY WITH CO-OFFENDER WHO WAS MARKEDLY LESS INVOLVED NOT REQUIRED - JUDGE DECLINES TO DEPART FROM STATUTORY FORMULA WHEN SETTING NON PAROLE PERIOD - NO OBLIGATION SO TO DO - ERROR NOT IMPLIED BY ABSENCE OF ELABORATION

SENTENCING - malicious wounding in company - parity - whether justifiable sense of grievance given sentence imposed on co-offender - applicant released on bail pending hearing of application for leave to appeal against sentence - whether Court may have regard to evidence of applicant's conduct on bail to make order under s.28A(2) Criminal Appeal Act 1912 where appeal otherwise dismissed.

CASE STATED - APPEAL TO DISTRICT COURT FROM LOCAL COURT - PROSECUTION FOR OFFENCE PURSUANT TO NOXIOUS WEEDS ACT 1993 - INFORMATION LAID BY EMPLOYEE OF SHIRE COUNCIL - FINDING THAT OFFENCE PROVED AND ORDER FOR PAYMENT OF COSTS IN LOCAL COURT SET ASIDE - REFUSAL OF COSTS IN FAVOUR OF SUCCESSFUL APPELLANT IN DISTRICT COURT - RESTRICTION ON AVAILABILITY OF COSTS BY s 70 OF CRIMES (LOCAL COURTS APPEAL AND REVIEW) ACT 2001 - WHETHER EMPLOYEE OF SHIRE COUNCIL ACTING IN PRIVATE CAPACITY WHEN INSTITUTING PROCEEDINGS - "APPELLANT WHOSE CONVICTION IS SET ASIDE" INCLUDES APPELLANT WHOSE SENTENCE WITHIN EXTENDED DEFINITION IN THAT ACT IS SET ASIDE - DISCUSSION OF ADEQUACY OF FORMULATION OF QUESTIONS OF LAW IN CASE STATED

Issue raised on appeal as to whether the appellant may have been unfit to be tried - approach to be taken by Court of Criminal Appeal.

LOCAL GOVERNMENT - development consents - s.94 Environmental Planning and Assessment Act - financial contributions paid by developers to council - whether moneys paid held in trust by council - whether developers entitled to refund of financial contributions not expended by council - LOCAL GOVERNMENT - Development Control Plan - whether schedule of works incorporated into terms of development consent - question of construction whether schedule incorporated - LOCAL GOVERNMENT - Contributions Plan - whether council entitled to abandon works contained in Contributions Plan - discretion of council as to expenditure of financial contributions - money paid under s.94 to be assessed in accordance with Contributions Plan in respect of which payment is required

CHEQUES - Liability of signatory - Dishonoured cheques - Name of drawer printed on cheques - Drawer a firm - Cheques signed by appellant - Whether appellant personally liable on the cheques pursuant to s 75 of Cheques Act 1986 (Cth) - Whether apparent on the face of the cheques that appellant did not sign intending to become liable - Whether appellant signed as representative of drawer

PRACTICE and PROCEDURE - Dismissal of application for adjournment - dismissal of proceedings for failure to comply with rules - whether Health Care Complaints Commission peer review report available for tender - whether appellant's case hopeless and incurably hopeless - whether trial judge's discretion miscarried by reason of error - whether self executing order for dismissal appropriate.

MALICIOUS PROSECUTION - whether charges brought with reasonable and probable cause - whether malice - on facts, judge's findings not shown to be in error - FALSE ARREST - whether arrest unlawful because for extraneous purpose - whether judge failed to consider evidence - error not shown - observations on mode of arrest - FAILURE TO PRODUCE SUBPOENAED DOCUMENTS - whether miscarriage of the trial - whether in interests of justice that there be new trial - not shown - DELAY IN JUDGMENT- observations on appellate approach. D

ADMINISTRATIVE LAW - Judicial review - Privative clauses - Allegation of denial of procedural fairness - Whether s 101 of Environmental Planning and Assessment Act 1979 is a bar to challenge to validity of development consent on ground of denial of procedural fairness - Operation of the threefold Hickman principle - Breach of "imperative duty" or "inviolable restraint" - Whether procedural fairness is an "inviolable limitation or restraint". - ADMINISTRATIVE LAW - Judicial review - Jurisdictional facts - Validity of construction certificate - Requirement that there to be no inconsistency between construction certificate plans and development consent plans - Whether question of inconsistency was a jurisdictional fact. - COSTS - Whether costs orders in Court below should be disturbed - Costs where both sides partially successful on appeal.

Fitness to be tried hearing - minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice - whether open to the jury on the evidence before it to be satisfied on the required balance of probabilities that the appellant was unfit to be tried.

CONTRACT - CONSTRUCTION - INDEMNITY COSTS ORDER - No question of principle.

Appeal decision of Review Panel - two bills of costs - the second one being for a higher amount - adequacy of reasons

Appeal - Discrimination - Nature of discrimination - Jurisdiction of Anti Discrimination Tribunal - Continuing discrimination commenced before Act - Requirements for valid complaint - Indirect and direct discrimination - Appropriateness of comparison with non disabled workers.

Costs - Doomed application to cross-appeal - conduct of proceedings - power to award indemnity costs - power to award costs against legal practitioner - whether specific provision of rules limits ambit of Act.

Application for leave to appeal against sentence. No error but manifestly excessive. No point of principle.

CRIMINAL LAW - APPEAL OF CONVICTION - Whether verdict unreasonable having regard to the evidence.

NEGLIGENCE - psychiatric illness - post-traumatic stress disorder - alcohol dependency and/or abuse - causation - reasonable foreseeability - substantial wrong or miscarriage - judge's treatment of witnesses - evidence not properly taken into account - shifting evidentiary onus - expert opinion. (ND)

REAL PROPERTY - Property held as tenants in common - Sale of property by auction - Where either party may wish to bid at the auction, but is barred by statute - Appointment of trustees for sale - Property, Stock and Business Agents Act (2002) NSW s 66(1), (2) - Conveyancing Act (1919) NSW s 66G

Contract - Trade Practices Act - Assessment of damages - Principles where difficulties of assessment arise - Contract for provision of oil rig - Overlapping of damages to which corporate defendant liable across two causes of action - Several liability of individual defendant

CRIMINAL LAW AND PROCEDURE - SENTENCE - ONGOING SUPPLY OF DRUGS - ONGOING SUPPLY OF PISTOLS - FURTHER OFFENCE OF SUPPLY OF LARGE COMMERCIAL QUANTITY OF PROHIBITED DRUG - TOTAL CRIMINALITY REQUIRED SUBSTANTIAL SENTENCE - NO ERROR BY TRIAL JUDGE IN ASSESSMENTS INCLUDING APPELLANT'S SUBJECTIVE CASE

Criminal law - sentencing - mentally ill person - custodial sentence - significance of mental illness in sentencing - continuing danger to the community by reason of applicant's mental condition

Whether open to jury to reject the version given by the accused - whether open to jury to be satisfied beyond reasonable doubt that the accused was guilty - whether a Liberato direction was required - relevance of absence of Liberato direction to quality of evidence before jury.

EMPLOYMENT - employee or independent contractor - Commonwealth authority operating courier business - Owner/Driver Agreement requiring driver to provide truck and pay all expenses associated with its operation and maintenance - Prescribed Payment System tax deducted from driver's earnings - No sick leave or holiday pay paid to driver - driver permitted to engage substitute driver (D)