Cases and authorities

Interlocutory application - Application by plaintiff to amend its pleadings - Amendment arising out of cross claim filed by defendants to the effect that the defendants were entitled to certain gym equipment left in the premises and that, despite their request, they had been refused access to the equipment and the premises

Incompetent appeal - extension of time - discretionary considerations.

APPEAL AND NEW TRIAL [248] - Appeal - Practice and procedure - Stay of proceedings - Application for special leave to appeal to High Court intended but not instituted - Summons for leave to appeal to Court of Appeal filed - Stay application where appeal to Court of Appeal pending usually dealt with by Court of Appeal or Judge of Appeal rather than Judge in Division - Whether Judge in Division should deal with stay application which is hopeless.

FAMILY LAW - overseas adoption - change of name of infant child - whether "special reasons" shown as per Adoption Act 2000, s.101 - child referred to by alternative name since before placement at five months - original name may be mispronounced by English speakers seeing it in written form

CORPORATIONS - winding up - insolvent transactions - voidable preferences - application for order that Commissioner of Taxation repay moneys said to be voidable preference - whether court may be "satisfied" of relevant matters by admissions

PRACTICE & PROCEDURE - arrangements for taking of evidence on commission overseas - delays in hearing of case - desirability of hearing witnesses in a particular order - efficient conduct of proceedings - whether arrangements should be postponed - no issue of general principle

CONVEYANCING [185] - Land titles under the Torrens system - Caveats against dealings - Form of caveat - Statement of estate or interest - Statement reveals caveator relies on interest which is not caveatable.

LIMITATION OF ACTIONS - action for trespass to the person - action brought by cross-claim against plaintiff - TORT - trespass to the person - limitation period - limitation period for cross-claim alleging trespass to the person

EVIDENCE - client legal privilege - waiver - accounting firm and plaintiff allow defendants to inspect large volume of documents under subpoena to accounting firm - plaintiff then reviews documents to consider privilege claims - copies of some documents are then provided to defendants - later, plaintiff asserts privilege claim in respect of two of those documents - whether disclosure was "knowing and voluntary" under s 122(2) of Evidence Act

EQUITY - Fiduciary Obligations - Whether agent of lender in short term bridging loan market implicated with sufficient knowledge of a breach of duty by the directors of the borrowing companies to justify setting aside the loan and mortgage under the second limb of Barnes v Addy - Whether the loan at 72% pa with a default rate of 102% pa infringed the Consumer Credit (New South Wales) Act 1995 and the Consumer Credit (New South Wales) Code

Criminal law - sentence - appeal - Commonwealth offences - recognizance release order - whether manifestly excessive

PROCEDURE - Motor vehicle accident involving teenaged boys on a rural property owned by the appellant - unregistered vehicle - Whether error in not ordering joinder of Nominal Defendant - whether Motor Accidents Act 1988 (NSW) or Motor Accidents Compensation Act 1999 (NSW) applied - whether appellant in a position to obtain necessary notice to comply with the mandatory requirement of s36(3) of Motor Accidents Compensation Act 1999 (NSW).

PRACTICE AND PROCEDURE - SCR Pt 72 r 2, r 13 - reference - whether referee's report should be adopted - discretion to adopt, vary or reject in whole or in part a report of a referee - whether referee "ignored" evidence - tender of selected portions of evidence that was before referee - whether findings of referee unsupported by evidence - whether referee erred in failing to resolve conflicts in the evidence - whether referee ignored submissions as to credibility - whether referee erred in reaching conclusions that had not been put to relevant witnesses in cross-examination - whether referee reached conclusions that were inconsistent with unchallenged evidence of plaintiff's witnesses - whether referee failed to deal with and consider all aspects of the plaintiff's case

EVIDENCE - whether duplicates of driver logbooks and computer-generated Journey Report produced pursuant to Notice to Produce during RTA audit of defendant, admissible - where RTA prosecution depends on establishing falsity of duplicates through reference to Journey Report - where relevant documents ruled inadmissible by Magistrate on basis logbook duplicates part of Vehicle Movement Record (VMR) and therefore inadmissible in criminal proceedings (s 147(3)), and Journey Report inadmissible on basis of irrelevance - whether evidence supports Magistrate finding duplicates on removal from logbook became a part of the VMR, and therefore inadmissible under s 69 of Road Transport (Safety and Traffic Management Act - whether logbook duplicates admissible as business records under exception to hearsay rule pursuant s 69 Evidence Act - whether Journey Report relevant to issue in proceedings - whether Ocean Marine Mutual Insurance v Jetopay authority for the proposition that in considering questions of admissibility under s 147, a document may not be examined pursuant to s 183 if objection is taken to it - whether Journey Report part of VMR and inadmissible pursuant to s 147(3) as related to, or leading to, criminal proceeding - whether defendant/respondent under obligation to maintain VMR on vehicle registered outside NSW - whether computer-generated data in Journey Report constitutes in effect a VMR. - APPEALS - Appeal from decision of Magistrate rejecting evidence

Apprehended bias - first defendant a barrister and member of a professional tribunal - tribunal so constituted to hear and determine a case prosecuted by plaintiff - first defendant instructed as barrister for another defendant in another professional tribunal - plaintiff the prosecutor in both cases - whether reasonable apprehension of bias of first defendant.

ASSOCIATIONS AND CLUBS [9] - General matters - Other matters - Registered clubs - Allegation about any corrupt or other improper conduct in relation to a registered Club - Inquiry arranged under s 41X of the Registered Clubs Act 1976 by the Director of Liquor and Gaming - Whether inquiry may make finding in terms of corrupt or other improper conduct - Whether Director may determine as a matter that is to be the subject of an inquiry whether or not there has been corrupt or improper conduct by any person.

Employer's liability - Grain auger - Negligence - Breach of statutory duty - Liability of equipment installer - Contributory negligence - Damages.

ASSET PRESERVATION ORDER - Whether sufficient evidence of danger of dissipation of assets to warrant continuance of ex parte injunctions.

EVIDENCE - admissibility - correspondence on settlement negotiations - prima facie inadmissible - whether admissible because of need to "control the conduct of a proceeding" or under exception for "deliberate abuse of power"

EQUITY [424] - Equitable remedies - Accounts and inquiries - Other cases - Inquiry - Question of entitlement to balance of proceeds of sale of a property sold under order of the Court.

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - Building and Construction Industry Security of Payment Act 1999 - whether interlocutory injunction against advancing of adjudication process, pending determination of whether adjudicator has jurisdiction, should be on terms of requiring payment into Court of amount claimed

EVIDENCE - client legal privilege - waiver - disclosure waiver - meetings at which accounting and legal advice was given and a decision was made to commence legal proceeding - whether privilege waived over notes of all communications made at meeting, by production of notes of meetings which masked material relating to legal advice but disclosed statements about legal matters

Application to strike out appeals under s 1321 Corporations Act 2001 (Cth) - whether statutory financial limitations threshold under s 101(2)(r) Supreme Court Act 1970 be determined by amount in judgment (in proceedings involving liquidation) or determined by amount the party can or does pay against such a judgment - Held: Whether statutory threshold of s 101(2)(r) is met is determined by amount on judgment, not amount paid or able to be paid: Oertel v Crocker 75 CLR 261 - Moller v Roy 132 CLR 622 - leave under s 471B Corporations Act 2001 (Cth) not required, leave granted nunc pro tunc: Re Gordon Grant & Grant Pty Ltd (1982) 1 ACLC 196. D

Restraint of trade - employment contract - whether restraint contravenes public policy - whether capable of being read down to give reasonable operation - whether void for uncertainty - scope of injunction - restraint payment - Restraints of Trade Act 1976, s4. - (D)

STATUTORY INTERPRETATION - Whether certain liabilities under insurance contracts are "liabilities in Australia" for the purposes of the Insurance Act 1973 (Cth) - Whether s 31(4) of the Insurance Act 1973 (Cth) was intended to be an exhaustive definition of "liabilities in Australia" - Discussion of general law regarding where a debt is satisfied - Whether s 116(3) of the Insurance Act 1973 (Cth) conferred accrued rights on creditors at the start of a winding up - Whether any such accrued rights were extinguished by s 562A of the Corporations Act 2001 (Cth) - Whether any such accrued rights were extinguished by the replacement of s 116 under the General Insurance Reform Act 2001 (Cth) - Whether contracts of reinsurance are "contracts of insurance" for the purposes of s 562A of the Corporations Act 2001 (Cth). - INSURANCE - Priority created by s 116 of the Insurance Act 1973 (Cth) - Requirement that liabilities of an insurance company in Australia be paid out of assets in preference to other liabilities - Discussion of "insurance", "reinsurance" and "re-reinsurance" - Meaning of "insurance" and "reinsurance" for the purposes of the Insurance Act 1973 (Cth) and the Corporations Act 2001 (Cth) - Discussion between a contract of insurance, a policy accepted in Australia and a policy issued in Australia - Whether an informal policy is a policy for the purposes of s 31 of the Insurance Act 1973 (Cth) - Whether the issue of a policy requires "something bilateral" - Whether the acceptance of a proposal for an insurance policy requires communication for the purposes of s 31 of the Insurance Act 1973 (Cth) - Whether a term regarding payment to a local broker was implied by custom or usage. - WINDING UP - Date at which creditors' rights are to be determined - Whether any accrued rights of priority arose - Effect of winding up on debts of creditors - Effect of change in legislation on creditors' rights. D

PRACTICE AND PROCEDURE - partnership proceedings concluded by final orders - application by receiver and manager of partnership by motion in those proceedings for directions and extension of powers - motion dismissed as incompetent - PARTNERSHIP - application by receiver for advice and for directions - whether application by receiver appropriate

Part 72 references - Costs

PROCEDURE - discovery - legal professional privilege - conclusion stated in counsel's opinion quoted in client's letter to opposing party - whether privilege waived - whether production of opinion will serve legitimate forensic purpose

Admissibility - Relevance of state of mind of investigators - s 55 of Evidence Act

CORPORATIONS - ASIC investigation - asset freezing orders in place - ancillary asset disclosure orders with exception for self-incriminating disclosures - all such orders by consent - orders require filing of affidavit specifying information in respect of which self-incrimination privilege claimed and grounds for claim - whether such procedure consistent with maintenance of privilege - whether existence of investigation and search warrants causes all required disclosures to be inconsistent with privilege - EVIDENCE - Evidence Act s.128 - whether party filing affidavit in compliance with disclosure order is "witness" - whether consent of such affidavit is "evidence"

CRIMINAL LAW AND PROCEDURE - SENTENCE - CROWN APPEAL - RESPONDENT PRESENTED IN CHILDREN'S COURT AND LATER IN DISTRICT COURT - INVALIDITY OF SENTENCE TO ADULT COMMUNITY SERVICE ON ONE COUNT - SUSPENDED SENTENCE - UNUSUALLY LONG DELAYS IN MATTERS BEING DEALT WITH - REHABILITATION IN THE INTERIM - NECESSITY TO RETURN MATTER TO PRIMARY SENTENCING COURT - DISCRETION WHEN DEALING WITH CROWN APPEALS

CRIMINAL LAW: - appeal against sentence - break, enter and steal - co-offender - parity in sentencing - absence of Form 1 matters - lack of remorse - limited intellectual ability of co-offender

CRIMINAL LAW AND PROCEDURE - SENTENCE - SUBSTANTIAL PRE-SENTENCE CUSTODY - SENTENCE DATED FROM IMPOSITION - INCOMPATIBILITY OF TERM WITH FINDING OF SPECIAL CIRCUMSTANCES AND PRE-SENTENCE CUSTODY - NO SPECIAL POINT OF PRINCIPLE

Application for separate trial of "libel / no libel" in pre-s7A action

CORPORATIONS - winding up - application by liquidators for directions - directions sought as to operation of certain statutes upon and in relation to reinsurance contracts - such contracts described only in general terms - no concrete factual circumstance identified - not appropriate case for directions

Appeal against the granting of an adjournment - plaintiff not given an opportunity to be heard - Tribunal did not decide a question with respect to a matter of law - futility of granting relief.

damages for personal injury - negligence - breaches of statutory duty - quantification of damages - whether the 1st defendant owed the plaitniff a duty pursuant to statute in addition to common law duty - whether breaches of statutory duty are established - proportionate liability of defendants - contributory negligence

Criminal Law - Sentencing - detain for advantage - sexual advantage - plea of guilty - statement of agreed facts tendered by consent - applicant gives evidence at variance to agreed facts - not cross-examined thereon - judge sentences on basis of agreed facts - whether erroneous - sentence otherwise excessive

Evidence Act 1995, s138 - Drug Misuse and Trafficking Act 1985, s25A - police informant - controlled purchase of heroin - Law Enforcement (Controlled Operations) Act 1997 - whether evidence obtained illegally or improperly - whether error in exercise of discretion to admit evidence - whether sentence manifestly excessive. -

Dust Diseases Tribunal - whether it has jurisdiction to state a case for the opinion of the Court of Appeal - Supreme Court Act 1970, s48 - Dust Diseases Tribunal Act 1989 - stated case. (D)

WORKERS COMPENSATION - insurance - regulation of premiums - interpretation of Insurance Premiums Order and determination by WorkCover under s.170 - after redefinition of classifications and adoption of ANZIC Code from 30 June 2001 Staging Connections' insurer classified SC (formerly Broadcasting & Television) as Services to the Arts, resulting in increased premiums SC sought WorkCover determination - after extended consideration WorkCover determined Office Equipment Hiring and Leasing without Operators - SC sought judicial review of WorkCovers' application of clause 2(4) of Schedule 1 Interpretation of the Order - WorkCovers' determination was set aside because WorkCover proceeded serially by eliminating some possibly relevant classifications and proceeding to consider others - global consideration of all possibly relevant classifications is required - returned to WorkCover for further consideration.

Prerogative relief - prohibition - Industrial Relations Act 1996, s106 - unfair contract - whether Commission has jurisdiction - whether a contract whereby a person performs work in any industry - whether relief sought related to performance of work in an industry - de minimis non curat lex. (D)

CORPORATIONS - winding up - setting aside statutory demand - whether bona fide dispute exists - no question of principle

Orders to give effect to reasons in Hoobin v Hoobin [2004] NSWSC 705 - Costs - Failure to accept settlement offer in a Calderbank letter - Effect of election under s 61D of Wills, Probate and Administration Act being to pass the burden of costs payable from the estate onto the successful defendants - Where orders for provision under the Family Provision Act and determination of how burden of orders should be borne took account of parties' financial positions on assumption that all costs would be paid from the estate - Whether unsuccessful administratrix should bear portion of costs personally.

PRACTICE AND PROCEDURE - Supreme Court procedure - proceedings on foot to recover allegedly misappropriated property - Mareva orders made and documents obtained under Anton Piller order - privilege against self-incrimination claimed - whether court should order hearing at which defendant would give oral evidence and have potential protection under section 128 Evidence Act 1995 - EVIDENCE - facts excluded from proof - privilege against self-incrimination - proceedings on foot to recover allegedly misappropriated property - Mareva orders made and documents obtained under Anton Piller order - privilege against self-incrimination claimed - whether court should order hearing at which defendant would give oral evidence and have potential protection under section 128 Evidence Act 1995 - EVIDENCE -witnesses - compellability - defendant who claims privilege against self-incrimination

Unfavourable witness - application under s 38 Evidence Act - The changing nature of accounting evidence - - Prejudice and collateral disadvantage