Cases and authorities

TRADE PRACTICES - consumer protection - product liability - statutory defences - manufacturer failed to prove that defect occurred after goods left its control - ND

Contracts - Election - Seeking specific performance - Damages - Exemplary damages - Victim's own wrongdoing - Un-associated third party - Analogy to 'clean hands' - Mitigation - Damages - Exemplary damages - Solicitor assists wrongdoer - Reprehensibility of conduct - Increased when occurs in legal practice - Professional disciplinary hearing - Double punishment - Equity - Relief against forfeiture - Deposit - Unconscionable conduct - Connection and causation - Whether penalty

Criminal Law - appeal against sentence - no question of principle

CONTRACTS [41]- Joint and several contracts- Building contract in one document- Proprietor liable only in fixed percentages- Held several contract only. CORPORATIONS [213]- Setting aside demand- Building contract- Proprietor only liable for 26%- Statutory demand for whole cost- Set aside.

Smuggled cigarettes - "chop chop" - Whether prior proceedings, namely an application before the Local Court of NSW, has resulted in res judicata, issue estoppel and/or abuse of process

ESTOPPEL - where interim arbitral award delivered - issue estoppel - whether interim arbitral award creates issue estoppel - whether determination fundamental to arbitrator's decision - whether bar created by issue estoppel absolute - special circumstances exception to issue estoppel - whether special circumstances exception to issue estoppel in Arnold v National Westminster Bank Plc [1991] 2 AC 93 forms part of Australian law - whether absence of right to appeal constitutes ground for non application of issue estoppel - where deed of release - whether deed of release precludes plaintiff from relying on issue estoppel - whether deed of release precludes plaintiff from relying on conventional estoppel - whether estoppel rule of evidence or rule of substantive law - Anshun estoppel - whether plaintiff precluded by Anshun estoppel from recovering ongoing workers' compensation costs - whether deed of release precluded plaintiff from recovering fee

CORPORATIONS - application by plaintiff in common law proceedings against defendant for order restoring defendant's name to register of foreign companies - name struck off register by ASIC on basis of belief that defendant no longer carrying on business in Australia - ability of plaintiff to pursue common law proceedings in no way dependent on or facilitated by restoration of defendant's name to register - ability of plaintiff to proceed by service on defendant in place of incorporation - plaintiff not aggrieved by striking off - no reason to consider restoration just.

CORPORATIONS - civil penalty proceedings - investigation under ASIC Act - compulsory powers of examination and production of documents under ss 19 & 32A of ASIC Act - extent of powers - whether power spent upon commencement of civil penalty proceedings - contempt of court - whether use of statutory power gives ASIC unfair advantage in penalty proceedings

Building and Construction - Contract - Claim for payment under contract to build earthwork levees - Whether payment claim valid - Cross-claim - Whether lump sum contract - Whether amount properly allowable for provisional variations - Whether practical completion achieved - Whether contractual requirements for progess claim met - Whether any breach of contract in respect of construction of levees - Whether Building and Construction Industry Security of Payment Act 1999 (NSW) applies -Misleading or deceptive conduct in the tender process. - Held: Practical completion not achieved. Contract was lump sum contract containing appropriate conditions for provisional quantities. Council entitled to damages for rectification of certain parts of the levees. Misleading and deceptive conduct established but no damges flow.

Succession. - Family Provision. - Claim by adult son. - Extent of contact between Plaintiff and Deceased. - Statements made by Deceasd in his will. - Financial and material circumstances of the Plaintiff. - Asserted needs of the Plaintiff. - Whether Plaintiff has been left without adequate provision for his proper maintenance. - Competing claim of the Defendant.

Construction of deed - whether right to terminate arbitration - whether reasonable to determine that it was not in the client's best interests for arbitration to continue - whether utility in the appeal. (ND)

NEGLIGENCE - workplace injury - whether finding of contributory negligence justified - whether judge's reasons were adequately stated - assessment of damages. (ND)

PRACTICE - judments and orders - consent orders - consent order settling litigation on terms of payment of money into controlled monies account to abide outcome of other proceedings - application for payment out before other proceedings determined - PRACTICE - costs - security for costs - one natural person plaintiff and one corporate plaintiff - whether unlikelihood of corporate plaintiff meeting costs adequately proved by proof of paid up capital of only one dollar - whether appropriate to order security for costs against corporate plaintiff when natural person is co-plaintiff - whether appropriate to order natural person to guarantee costs obligation of corporate plaintiff

TRUSTS AND TRUSTEES - trustees - appointment of new trustees by court - standing to make application - when appropriate - TRUSTS AND TRUSTEES - trustee de son tort - relief from liability under section 85 Trustee Act 1925 - not available on ex parte application - TRUSTS AND TRUSTEES - appointment of new trustees by court - costs of proceedings

Whether the Financial Industry Complaints Service (FICS) scheme intrudes in an impermissible way upon the exercise of judicial power - Whether such powers of adjudication can only be exercised by a court constituted in conformity with Chapter III of the Australian Constitution

DAMAGES - residual earning capacity - vicissitudes - "usual" deduction of 15% - challenge by appellant to deduction of 25% when no argument advanced at trial as to why "usual" figure should be departed from - CAUSATION - whether proper reasons given - EXPERT EVIDENCE - challenge to expert's report admitted without objection and not contradicted - APPEALS - arguments not advanced at trial sought to be advanced on appeal - where no exceptional circumstances. (D)

CRIMINAL LAW - jurisdiction, practice and procedure - prohibition of publication of verdict - where single indictment but three separate trials ordered - implied jurisdiction of District Court - necessity to serve administration of justice - no implied power to order non-publication of a verdict - COURTS AND JUDGES - proceedings in open court - where order for non-publication of verdict directed at media alone - no power to direct such order to parties unrelated to proceedings

Tort - Nuisance - Flooding caused by continued operation of storm water drainage system following increased urbanisation - Whether appellant was entitled to immunity under the Local Government Act 1993, s733 - Acts done in good faith - Whether s733 protects a council from liability in the form of an injunction directed at future acts or omissions - Appropriate form of a quia timet injunction

Application to re-open the defendants case

Judgment on admission - security for costs

Administrative law - Whether the plaintiff is correct in asserting that FICS is amenable to judicial review or, in the alternative, whether FICS is contractually bound to the plaintiff (Masu) in a way which gives rise to similar duties - Whether FICS bound by the established principles of administrative law in its functions, in particular, the process of procedural fairness, which used to be called natural justice.

COSTS - discretion of the court - principles governing the award of costs - costs to follow the event - where plaintiff partly successful - identifying relevant event - whether event outcome in proceedings or determination on separate issues - Calderbank letter - where letter did not take into account substantial interest that had accrued on total sum

Care Application - s 64 of Children and Young Persons (Care and Protection) Act 1998 - dispensing with service of Care Application on father - paramountcy of safety, welfare and well being of child - rights or interests of parents - mandatory and directory requirements of statute - whether Children's Court had power or discretion to dispense with service.

DEEDS [6][7]- Execution- Informal execution- Binding in estoppel or by ratification even though not executed by other party. EQUITY [389]- Specific performance- Not awarded if other remedies more efficacious.

Employee injured diving into swimming pool - dispute over whether injury in course of or arising out of employment - conflicting accounts of circumstances in which it occurred - judge preferred evidence of employer's witnesses - appeal on ground of error in point of law - error in that judge's reasons inadequate - whether inadequate for failure to refer to parts of evidence of employee's witnesses - judge found their evidence unreliable and accepted employer's witnesses - open to judge to do so - the parts fell with the whole and no inadequacy - whether inadequate for failure to refer to a third party's report of incident - report consistent with evidence of employer's witnesses - not so critical that reference required and no inadequacy. ND

Appeal decision of CTTT - mechanical works - installation of clutch - rehearing

Practice. - Pleading. - Action in contract. - Action in deceit. - Claims grounded upon alleged breaches of the Trade Practices Act 1974 (Commonwealth)and Fair Trading Act 1987 (New South Wales). - Whether pleading discloses a reasonable cause of action. - Whether form of pleading is embarrassing

CRIMINAL LAW AND PROCEDURE - WITNESSES WHO HAD BENEFITED BY REDUCTION OF SENTENCE FOR THEIR OWN OFFENCES - ERRONEOUS LIMIT PLACED ON REVELATION OF DETAIL OF THOSE CRIMES - SPECIAL VERDICT OF LARCENY OR RECEIVING - JURY UNANIMITY REQUIRED - WHETHER NEW TRIAL POSSIBLE FOLLOWING ACQUITTAL ON INDICTED COUNTS

CRIMINAL LAW AND PROCEDURE - SENTENCE - SEXUAL OFFENCE - OFFENDER AGED THIRTEEN - COMPLAINANT AGED SEVEN - ADULT OFFENDER STATISTICS - RESENTENCE CALLED FOR

CRIMINAL LAW AND PROCEDURE - STEAL FROM PERSON AND ATTEMPTED ROBBERY - STATISTICS FOR SIMILAR OFFENCES - PARTIAL CUMULATION - WHETHER RESULTANT SENTENCE MANIFESTLY EXCESSIVE

LIABILITY - injuries suffered when employee slipped on water and mud on worksite en route to where he was to perform his duties as a bricklayer - whether duty of care owed by appellant/ head contractor to first respondent/ employee of negligent sub-contractor for injuries suffered by that employee - extent and nature of duty of care - if breach occurred was it causative of employee's injury - underlying medical condition - Whether breach of regulation 73 of Construction Safety Act 1912. DAMAGES - appeal against damages awarded, both general and, past and future economic loss.

MORTGAGES - Term of mortgage that it be registered as a second mortgage - No first mortgage at time mortgage registered - Whether mortgagee obliged to afford priority to a later mortgage.

INTERNATIONAL ARBITRATION - enforcement of international arbitral award - International Arbitration Act 1974 (Cth) - where defendant claims he was not bound by arbitration agreement - where agent signed agreement on behalf of defendant - whether defendant bound by agreement - credibility of defendant - whether Jones v Dunkel inference should be drawn from defendant's unexplained failure to call wife and son - where defendant claims he was not given proper notice of arbitration proceedings - whether defendant given notice of arbitration proceedings - where defendant claims that final award invalid as it purported to impose joint and several liability where initial award determined joint liability only - whether arbitrator in expressing the liability quantified by final award as joint and several acted consistently with basis of liability found in partial award

PRACTICE AND PROCEDURE - costs - costs of adjournment applications - costs of applications to set aside notices to produce and subpoenae - no issue of general principle

PRACTICE - subpoenas - release from implied undertaking to use documents only for purpose of proceedings - principles applicable

Arbitration. Conduct of Arbitration proceedings. Arbitrator decides major claim on a basis not put or pleaded by the parties. Award set aside and matter remitted for further consideration.

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. Demand reduced as a result of offsetting claims. No matter of principle.

Strike out pleadings - public policy - nervous shock - media

TRUSTS - whether intention to create a trust - whether agreement not to sell, or not to sever, jointly owned property - whether constructive trust imposed pursuant to Baumgartner v Baumgartner (1987) 164 CLR 137 prevails over resulting trust arising from contributions to purchase price - approach to take to application for imposition of Baumgartner trust in circumstances where evidence sparse - REAL PROPERTY - land in co-ownership - application for appointment of trustees for sale - type of evidence required - evidence if trustees to be remunerated - TRUSTS - remuneration of trustees

CRIMINAL LAW - murder - reckless indifference to human life - omission to remove from danger - causation - effect of 000 call - whether trial Judge correct in refusing to direct verdicts of acquittal - directions on murder and manslaughter - whether accompanying mental elements correctly stated - whether causation of death should have been left to the jury - whether verdicts of murder unreasonable - whether open to jury to conclude that the accused, having put the deceased in danger of death, fully realised, at any time before her death, that she would probably die unless they acted to rescue her or procure her rescue - s7(2) Criminal Appeal Act 1912 - whether there should be a new trial on the alternative count of manslaughter - whether sentences for aggravated robbery excessive

Liability for assisting in breach of trust - director of defaulting trustee - no knowledge of breach of trust - finding of deliberate shutting of eyes - whether facts entitled finding - held no - no question of principle. ND

TORT - Negligence - Scope of duty of prison authority to protect the safety of prisoners under its control - Prisoner assaulted by a group of other prisoners - Where prison authority knew that the prisoner was particularly vulnerable to such incidents - Prisoner in low security area - Prison authority relied on trust in work release prisoners and incentives for good behaviour as means of control - Whether degree of supervision of prisoners and protection of the individual prisoner were inadequate. D

LIABILITY - the respondent, while a school student in year 9, significantly injured his knee jumping over an eight foot gap between a railing fence and the ground whilst fleeing from the threat of a 'dead arm' from a fellow student - Whether breach of duty of care of supervising teacher to avert the accident - if breached did it cause relevant accident and consequential damage - Whether a higher percentage for contributory negligence should be substituted for the 15% awarded - Whether the award for future economic loss so excessive as to warrant appellate intervention.