Cases and authorities

HIGHWAYS - pedestrian falls on footpath -no question of principle - ND

Application for stay - effectively stay of order for possession - consideration of merits of proposed appeal - no substance in appeal - stay refused.

TORTS - Motor vehicle accident - Scope of third party insurance - Power of court to award interest and costs - INSURANCE - Indemnity against liability in respect of injury - Whether extends to liability of insured to its own lawyers in defending a claim based on injury - Whether extends to interest.

Workplace injury - unsafe system of work - failure to follow direction to provide light duties - accumulation of injuries - compensation threshold

TRUSTS - trustee goes into administration, then into liquidation - first administrator, then liquidator, does work in administering trusts - basis on which administrator and liquidator remunerated for work in administering trust assets - TRUSTS - inherent jurisdiction of court to permit remuneration of trustee - extends to permit remuneration of person in practical control of corporate trustee - CORPORATIONS - administration and winding up - administrator and liquidator do work in administering trusts of which company is trustee - basis for remuneration of administrator and liquidator - procedure for fixing amount of remuneration which is reasonable and proper

Application to set aside judgment after approval by court - next friend - mistake

SCR Pt 31 r 2 - separate determination of question of whether ex parte order under s76 Service and Execution of Process Act 1992 (Cth) could be set aside by another judge - prerogative relief

Appeal from Magistrate - standard of proof - elements of offences - mens rea - notice of contentions - how dealt with

Crossaction to recover judgment from cross-defendants - indemnity - contract apportionment

BUILDING AND CONSTRUCTION - INTEREST - whether plaintiff entitled to interest from date payments due as determined by referee - where contract provides for date from which interest to run - where plaintiff entitled to interest only at Schedule J rates and not at contractual rate - whether regard had to contract on question of date of accrual of entitlement to interest - where no claim of interest notified until proceedings commenced - whether plaintiff only entitled to interest from date of commencement of proceedings - where defendant had benefit of use and occupation of premises, and known of claim, before proceedings commenced - whether excessive delay in prosecution of plaintiff's claim - COSTS - where plaintiff succeeded for part only of the amount that it claimed - where no dominant issue that led to plaintiff receiving substantially less than the amount of claim - whether plaintiff entitled to costs without reduction

defamation - form of pleaded defences - particularisation of defence of substantial truth - defences as pleaded lacking in clarity - no cause of action is pleaded in cross-claim - admissibility of evidence - parliamentary privilege - order for costs

CRIMINAL LAW: - Application for leave to appeal against sentence - variety of offences over period of about a year - young offender - good prospects of rehabilitation - whether effective sentence excessive

CRIMINAL LAW - EVIDENCE - Appeal against conviction for murder - Defence of self-defence - Evidence given by appellant that he stabbed the deceased in self-defence, when the (unarmed) deceased persisted in aggression and threats to kill him - Trial judge rejected evidence that 23 years earlier the deceased had killed three people, and that a few hours before his death he threatened to kill another person "like I killed the other three people" - Whether that evidence was admissible as tendency evidence or otherwise.

CRIMINAL LAW - Appeal - Manslaughter - Whether evidence sufficient - Whether verdict unreasonable - Whether conduct of appellant dangerous - Whether response of deceased reasonable or proportionate

CRIMINAL LAW - manslaughter - criminal negligence - gross and wilful failure of carer to provide proper care for elderly mother - plea of not guilty - trial by judge alone - appeal against severity of sentence - mental illness - whether manifestly excessive sentence - whether adequate weight given to applicant's psychological condition - Asperger's Syndrome or social dysfunction - issue of personal deterrence and mitigation.

vexatious litigant - application for leave to file notice of motion

Family Law. Application under the Property (Relationships) Act 1984 for adjustment of the parties' property interests. Small adjustment in favour of the plaintiff.

STATUTES - interpretation - statutory provision which creates an entitlement, is expressed to apply to pre-existing cases and is introduced by "Despite section 92(2) and subsection (1)" - "despite" as modern synonym of "notwithstanding" - whether "despite" specification limits the provision to cases of kinds contemplated by the specified sections or ensures its operation in all cases including those contemplated by those sections

DEFAMATION - s7A hearing - capacity to give rise to imputations - whether imputations were alternatives.

[CONTRACT] - Whether the parties agreed that the plaintiff's use of the common property in a high rise apartment block was to be without fee - Whether the signing of and support for the plaintiff's development application constituted a contract between the parties that no fee would be charged for the use of common property. - [MISLEADING & DECEPTIVE CONDUCT] - Whether a letter from the Executive Committee of the defendant contained a representation that no fee would be charged to the plaintiff for the use of the common property - Whether the plaintiff relied upon the alleged representation when it entered into a lease over Retail Space, undertook renovations and opened a retail showroom - Whether the defendant's silence in relation to fees for the use of common property constituted a representation that there would be no fees. - [UNCONSCIONABLE CONDUCT / EQUITABLE ESTOPPEL] - Whether the defendant, in seeking to impose a fee upon the plaintiff for the use of common property, engaged in unconscionable conduct within the meaning of section 51AA of the Trade Practices Act 1974 (Cth) - Whether there was consent to the use of common property and the extent of any consent - Whether there was an expectation in the plaintiff that it would be able to use common property without fee - Whether the defendant is estopped from denying agreement to use the common property without fee. - [TORT - TRESPASS] - Whether the plaintiff's signage on the common property and use of the concrete walls on common property amount to trespass - Whether loss of a commercial fee for use of the common property was the natural and probable consequence of the trespass - Whether injunction should be granted.

Contract - Construction - Proper construction of automatic rescission clause in Contract - Avoidance/Affirmation of Contract - Notification of avoidance of Contract - Waiver of rights to avoid Contract - Notification of extension of time for satisfaction of conditions precedent to Contract

Application for order that the winding-up of a company be terminated - Adequacy of evidence of the financial position of the company - Proposal to postpone debts owed to directors in event of later liquidation of company rather than inject funds as to capital - Failure to serve notice of application on ASIC - Service of notice of application on creditors whose debts would not be discharged by application.

Criminal Law - Summing up - dock identification - whether directions adequate to warn jury of dangers of identification in circumstances of the case.

CRIMINAL LAW - Evidence - relevance - probative value - unfair prejudice - identification - similarity - sufficiency of directions - CRIMINAL LAW - Sentencing - armed robbery - whether sentence excessive - special circumstances - variation of statutory ratio

Criminal law - conspiracy to import heroin - attempting to have in possession prohibited import - Crown appeal against leniency of sentences imposed - ss 16G and 19AG Crimes Act.

COSTS - set off - where respondent has taken no action to recover costs for an extended period - where costs allegedly thrown away as a result of the failure of the appellant to comply with procedural directions - whether costs orders arose out of one set of proceedings

PRACTICE AND PROCEDURE - Costs Assessment - Proportionality between amount of verdict and amount assessed for costs - Application for extension of time within which to apply for leave to appeal - Considerable delay - Argument on appeal not raised below - Where no reasonable prospect of having costs assessment reduced to any material extent. ND

WORKERS' COMPENSATION - Disease of gradual onset - Aggravation of disease - Claim of lump sum for disfigurement - Time of injury - Whether time of incapacity - Whether to be compensated under Workers' Compensation Act 1926 or Workers' Compensation Act 1987.

Contempt - application to vary - procedure

Notice of Motion - application for summary dismissal - malicious falsehood - collateral abuse of process.

Practice and procedure - Part 31 separate question determination - Judgment delivered - Application for reasons for judgment to be reviewed and varied - Principles

CONTRACT - where contract provided for right of rescission if strata plan not registered by particular date, subject to extension of time on certain terms - where vendor sought to extend time - where contract provided that vendor's architect to determine whether vendor entitled to extend registration date - where claim initially assessed by surveyor - where claim subsequently assessed by architect - where purchaser sought to rescind contract - whether purchaser has exercised right to rescind - whether determination by vendor's architect could be made after as well as before extension of time - where no evidence as to basis upon which vendor able to conclude that it would be delayed in causing registration of the strata plan - whether entitlement to extension of time depends upon vendor's actual knowledge

Injunctions - Interlocutory - Assessment of merits of plaintiffs' claim where grant of relief may determine issue as a practical matter - Whether serious question to be tried of breach of trust - Whether serious question to be tried of breach of directors' duties - Balance of convenience - Plaintiffs' standing to restrain conduct alleged to be a breach of directors' duties - Whether injunction may be granted in aid of proceedings to be commenced under s 237 of the Corporations Act for leave to bring proceedings on behalf of the company.

NATURAL JUSTICE - PROCEDURAL FAIRNESS - VOLUNTARY ASSOCIATIONS - Plaintiff a voluntary coach in local sporting body - complaint of child abuse made against her by persons motivated by ill will - complaint tainted by deception - Defendant's disciplinary tribunal bans Plaintiff as member - decision founded on manifest denial of procedural fairness - decision contrary to provisions of Articles and By-Laws - Defendant notifies Commission for Children and Young Persons that Plaintiff has been subject to disciplinary proceedings relating to child abuse - Plaintiff suffers severe emotional illness as consequence - whether Plaintiff's complaint justiciable - discretionary considerations. - CHILD ABUSE - what constitutes - whether notice under s.39(1) Commission for Children and Young Persons Act should have been given - lack of clear and authoritative legislative guidelines for voluntary domestic tribunals as to conduct of relevant disciplinary proceedings which may result in notification of child abuse - lack of supervisory procedure under the Act or Regulations - need for legislative review.

SUCCESSION – Probate – Testamentary capacity – testator aged at date of will – evidence of some irrational behaviour spread over period of years before and after date of will – whether doubt raised sufficient to determine will not valid – requirement for deceased to understand extent of assets – consideration of Banks v Goodfellow test in modern world

CORPORATIONS [195]- Receiver- Remuneration- Not ordinarily to include remuneration for time spent assisting police where one officer of the corporation shoots and kills another in receiver's presence.

PROCEDURE - costs - appeal from Acting Master where no substantive orders were made and the only matter in contention was costs - defendants executors to whom Part 52A rule 42 applied - no evidence to warrant Acting Master's findings of unreasonable conduct

CORPORATIONS - winding up as sequel to voluntary administration - two companies with common characteristics carrying on business in succession - whether assets and liabilities may be pooled in what is effectively single winding up - need for statutory basis - use of s.447A - analogy with arrangement under s.510 - relevance of dissent by one creditor of one company

Leave to amend Statement of Claim - aggravated damages - nervous shock

Crown appeal on manifest inadequacy - failure to reflect gravity of the offence

APPEAL - Alleged error of law in Local Court decision pursuant to s 69(2) Local Courts (Civil Claims) Act 1970 - on appeal firstly to Supreme Court Master - 1) whether a loan contract debt settlement agreement had been finalised between claimant (and claimant's son) and opponent or whether this finding was an error of law - 2) whether claimant's son had (actual or ostensible) authority to enter into settlement agreement on behalf of the claimant or whether this was an error of law - appeal dismissed by Supreme Court Master holding that the Magistrate below did not err in law as to either finding - appeal from Master's decision to Court of Appeal on authority issue - appeal dismissed with costs as inter alia claimant's son had actual and or ostensible authority including power of attorney at the relevant times - judgment debt was paid (with interest) therefore opponent has no further interest in the proceedings.

PROCEDURE - costs - where no determination on the merits - claim that defaulting purchaser company subject to consent order for specific performance be punished for contempt - compliance before motion for contempt heard - immediate claim to remedy of last resort - no statement of charge as required by rules - no personal service - claim that director of defaulting company be punished for contempt - no order against director - contempt claim misconceived - claim for committal or sequestration against director - no personal service - both claims would have failed - conduct of plaintiff unreasonable so as to warrant adverse costs order

CORPORATIONS - winding up - debt owed by company to husband and wife as tenants in common in equal shares - statutory demand by wife alone - no application to set aside statutory demand - no claim for leave under s.459S - BANKRUPTCY - effect of bankruptcy of wife on debt owed to husband and wife jointly - whether annulment of bankruptcy possible after discharge - effect of annulment on interest in debt originally owed to husband and wife jointly - CORPORATIONS - winding up - proceedings by wife based on debt owed by company to husband and wife as tenants in common in equal shares - property proceedings pending in Family Court - husband and wife only shareholders of company - no other creditor supporting winding up application - husband not co-plaintiff - whether winding up proceedings abuse of process

PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Relevant considerations - Whether prejudice may be cured.

PRACTICE AND PROCEDURE - procedure for issuing a certificate for provision of the court's expenses with respect to an examination of witnesses outside Australia

Appeal decision of CTTT - jurisdiction - Supply of goods and services