Cases and authorities

CORPORATIONS - management and administration - meeting requisitioned under section 249D Corporations Act 2001 (Cth), and amendment to proposed requisitions foreshadowed under section 249N Corporations Act 2001 (Cth) - later events mean purpose of holding meeting has now gone - ability of Court to order that meeting not be held - CORPORATIONS - management and administration - "oppression" provision - scope of provision under Corporations Act 2001 (Cth) - STATUTES - ACTS OF PARLIAMENT - interpretation - use of heading of Part as aid to interpretation

Defamation- Summary Dismissal of action- SCR Pt 13 r 5- absolute privilege claimed.

NEGLIGENCE - employment injury - floor plate at foot of ladder on tug boat removed - plaintiff descends ladder and misses footing - falls below floor level into bilge - floor plate removed by servant or agent of third party - liability of third party - liability of employer - non-delegable duty - apportionment of responsibility between employer and third party - NEGLIGENCE - contibutory negligence - employee pre-occupied with his duties - whether guilty of contributory negligence - EMPLOYMENT LAW - relationship of employer and employee - number of companies in group - which the employer - indicia to identify employer - DAMAGES - assessment of.

Criminal Practice & Procedure - sentence - whether sentence for assault with offensive weapon excessive - health of offender - special circumstances.

WELFARE OF CHILD - joinder of father to Supreme Court proceedings - where real risk to safety of mother and child - Children and Young Persons (Care and Protection) Act 1988 - natural justice - proper contradictor - where question in Supreme Court was one of law - whether service would pre-empt decision of Children's Court

LAND AND ENVIRONMENT COURT - North Sydney Local Environmental Plan 2001 - development application refused - definition of 'apartment building adaptation' - meaning of 'within' - whether denial of procedural fairness

DAMAGES - Assessment - Non-economic loss - Need to demonstrate appealable error - Damages for gratuitous attendant care services - s.15 of Civil Liability Act 2002 (NSW) - Construction - Meaning of "solely because of the injury to which the damages relate".

Medical Practice Act 1992, s36 - unsatisfactory professional conduct - seeking order of certiorari quashing decision of Medical Tribunal - whether decision vitiated by lack of procedural fairness - Parker warning - consent to orders made by Tribunal (ND)

PARTNERSHIPS - Dissolution and Winding Up - Whether work in progress of each party introduced as partnership assets of equal value - Partners retention of files after dissolution - Receiver's report based on sample of files - Whether report should be accepted or an account and inquiry taken by Master - Whether parties liable to damages for misleading or deceptive conduct by misrepresentation inducing each to enter into partnership under the Fair Trading Act 1987, s 68(1) - Whether any additonal loss or damage arose from alleged breach of fiduciary duty

Medical Negligence - nervous shock to doctor in hospital witnessing trauma to wife - loss of earning capacity - chance that may have become specialist

CORPORATIONS - winding up - insolvency - statutory demand served but not received - whether for purposes of s 459S, company "could have" relied on genuine dispute as to debt and formal defects in demands, when it did not receive them within time - whether plaintiff's debt due and payable - whether court should decline relief on discretionary grounds where administrator supports a vague proposal for a deed of company arrangement

Separate hearing and determination of liability

PRACTICE - stay on forum non conveniens grounds - principles - a claim in NSW proceeding duplicates claim in an existing proceeding actively pursued in Jordan - Jordanian law the lex causae - proceeding relates to Jordanian joint venture involving Jordanian citizens and corporation and operations in Jordan and Iraq - Supreme Court of NSW a clearly inappropriate forum - reference to the manner in which such an application should proceed.

CRIMINAL LAW - Appeal - Application to re-open after disposal of appeal - Perfection of order - Whether there is jurisdiction to re-open where grounds of appeal not dealt with, or procedural fairness denied - CRIMINAL LAW - Crown's duty of disclosure - Principles governing duty - Consequences of breach of duty - Whether onus on Crown to show no real chance of acquittal lost.

Criminal law - sentence - leave to appeal non-parole period - special circumstances - whether further allowance should be made when fixing non-parole period for factors taken into account when fixing full term - necessity for proper reasons in such a case - necessity for non-parole period to reflect objective gravity of offence - even if error in reasoning shown court may affirm sentence in the result.

Agreement for procuring finance - brokerage fee payable if procured - exclusivity - if another party engaged and found finance, brokerage immediately payable - whether on construction of agreement merely accelerated payment - whether unenforceable as a penalty - held no and no. D

Limitation period extended - Prejudice - Systemic negligence distinguished from individual acts of police officers contrary to duty.

Appeal decision of CTTT - costs

BAILMENT - bailee for reward - breach of bailment - burden of proof - whether bailee discharged burden of proof - whether evidence excludes likely or possible cause of loss consistent with negligence or default on part of bailee - DAMAGES - quantification of loss - whether plaintiff acted reasonably - whether plaintiff entitled to full cost of replacement crane - whether plaintiff entitled to "new for old" - whether crane could have been repaired

[INSURANCE] - Claims that insurer liable to pay the plaintiff "terminal illness benefits" - Plaintiff diagnosed with cancer - Policy responds upon the "occurrence" of a "terminal illness" defined as a condition "highly likely" to result in death within 12 months - Construction of "highly likely"- Whether "terminal illness" relates to the prognosis of disease at diagnosis with treatment or without treatment-Whether the "occurrence" of a terminal illness relates to the time of diagnosis or to when the insured first suffers symptoms. - [NEGLIGENCE] - Claims insurer and insurance brokers negligently failed to inform plaintiff of insurer's acceptance of proposal - Exclusion clause if insured event occurred within 90 days of policy start date - Whether plaintiff notified of acceptance on 21 January 2002 or only on 25 February 2002- Effect of delay in notification. - [WORDS & PHRASES] - "occurrence" - "terminal illness" - "highly likely".

CONFIDENTIAL INFORMATION - doctor-patient confidentiality - sources of obligation of confidentiality - content of obligation - whether obligation waived by patient commencing litigation which puts his or her health in issue - whether proceedings should be stayed unless plaintiff consents to interview taking place between defendant's lawyers and plaintiff's present treating doctors - PROFESSIONS AND TRADES - medical and related professions - doctor-patient confidentiality - sources of obligation of confidentiality - content of obligation - whether obligation waived by patient commencing litigation which puts his or her health in issue - whether proceedings should be stayed unless plaintiff consents to interview taking place between defendant's lawyers and plaintiff's present treating doctors - PROCEDURE - miscellaneous procedural matters - stay of proceedings - when appropriate - PROCEDURE - Supreme Court procedure - claim for declaration that right had been waived - need for person affected by that right to be party to the litigation - EVIDENCE - proof of a negative proposition - onus of proof

PROCEDURE - application by plaintiffs to re-open hearing on costs - allegation by plaintiff that defendants failed to put relevant material before court at original hearing - reasons why plaintiffs did not adduce particular evidence on hearing of costs argument - whether defendants will suffer prejudice not compensable by costs order

DEFAMATION - Defences - Contextual imputation - Whether capable of being carried - Whether "another imputation" - Whether "swamps" plaintiff's imputation - Maisel and Polly Peck defences - Aggravated damages - What particulars required.

TORTS - NEGLIGENCE - Reasonable foreseeability - Obvious danger - Warning - Uneven footpath - Dangerous situation - Creation of - Distraction - JUDGES - BIAS - Application to disqualify for bias - Reasonable apprehension bias - Prejudgment - Extra-judicial publications - Published article

WORKERS COMPENSATION - Finding of "functional overlay" - No claim of psychological or psychiatric contribution to respondent's incapacity for work made in application, evidence or submissions - Whether procedural fairness denied - Whether finding available on the evidence.

CONVEYANCING - land titles under the Torrens system - defaulting vendor not complying with order for specific performance - transfer executed by Deputy Registrar in Equity - whether vesting order should be made - order for replacement of folio of register and issue of new certificate of title - order for payment of balance of purchase moneys into court - orders allowing purchasers to recoup costs of proceedings out of moneys paid into court

Criminal law - bail - s.8A Bail Act - onus on applicant - standard varying for offences to which section applies dependent on seriousness of offence - statutory maximum penalty and likely penalty - application of s.32(6) - proffered undertakings to be taken into consideration when considering s.32 criteria and whether bail should be refused under s.8A.

PRACTICE AND PROCEDURE - determination of separate questions - after unsuccessful application for determination of separate questions in proceeding to invalidate deed of company arrangement, plaintiffs take new proceeding seeking recovery of debt on basis that deed is ineffective - whether it is appropriate to make orders for determination of separate questions in new proceeding - whether order for determination of separate questions should be made in either proceeding, where questions are limited to exclude discretionary factors

Review of Registrar's decision to set aside default judgment

Admissibility of evidence of valuation report when valuer not available for cross-examination - Limitation of use of report - Not as evidence of the truth of the facts stated in report or evidence of facts about the existence of which opinions stated in report.

TRUSTS AND TRUSTEES - implied trusts - whether vendor's solicitors holding deposits under contracts for sale of lots in subdivision became trustee of such moneys for second mortgagee - whether Quistclose trust or other resulting trust arose - whether constructive trust arose because of unconscionability

PARTNERSHIP [17]- Receivership- Dispute as to whether partnership existed, but if it did, it was clearly terminated- One partner seeks to sell asset- Whether receiver should be appointed.

District Court - plaintiff in default - show cause hearing - plaintiff's lawyer detained elsewhere - dismissal on application of defendants pursuant to Pt 18 r 3 of the Rules - plaintiff not on notice of dismissal on application of defendants, as distinct from on court's own motion - difference in consequences - former dismissal not reversible on application under Pt 1 r 7A of Rules - latter dismissal is reversible - denial of procedural fairness. D

POLICE - Hurt on duty - Discharge - Cause of infirmity - Determination of Commissioner - Appeal from Compensation Court - Application of Workers Compensation Act - ss 1(2) & 10B(3) Police Regulation (Superannuation) Act 1906 - ss 4 & 9A Workers Compensation Act

Orders for disclosure by affidavit of assets and funds removed from bank account - whether basis in proceedings or sufficient evidence warranting making orders - procedure described in Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538 followed - affidavit to be delivered to judge with notice of motion claiming privilege against self-incrimination - whether procedure infringed privilege - procedure disapproved. D.

CRIMINAL LAW AND PROCEDURE - INTERLOCUTORY APPEAL - A REFUSAL BY A TRIAL JUDGE TO ALLOW CROSS EXAMINATION OF A WITNESS AS UNFAVOURABLE UNDER s38 OF THE EVIDENCE ACT IS NOT A RULING ON ADMISSIBILITY OF EVIDENCE WITHIN THE MEANING OF THE CRIMINAL APPEAL ACT s5F(3A)

Companies - Winding-up application - Statutory demand for payment - Whether a genuine dispute as to existence of debt - Evidence admissible an issue of genuine dispute - Whether grounds of dispute precluded by supporting affidavit - Application to be substituted as creditor - Company presumed to be insolvent but debt genuinely disputed - Substitution refused.

Appeal decision of Local Court Magistrate - refusal to grant an adjournment application

PRACTICE AND PROCEDURE - joinder - Supreme Court Rules - Pt 8 r 8(1)(b) - whether company should be joined as a second defendant - whether there is an effective contradictor - whether plaintiff would be prejudiced by joinder - where plaintiff might have to pay the costs of two defendants rather than one - condition imposed on joinder

Estoppel exception to general rule that judgment does not bind non parties

CRIMINAL LAW: Appeal against conviction - charges of homosexual intercourse and related charges - two complainants - whether evidence relating to each admissible in the case of the other as tendency evidence - whether other evidence available as confirmatory of complainants' evidence - adequacy of judge's directions about confirmatory evidence. - Application for leave to appeal against sentence - whether sentence on one count in compliance with Pearce v The Queen. Whether special circumstances should have been found in applicant's subjective case.

Criminal Appeal Act 1912, s5F(3A) - appeal against ruling on admissibility of evidence - whether ruling eliminated or substantially weakens the prosecutions case - Evidence Act, ss55, 137 - whether evidence relevant - whether probative value outweighed by danger of unfair prejudice - Crown should identify challenges to its case before commencement of the trial. (ND)

CRIMINAL LAW - sentencing - accumulation - taking conveyance without consent - robbery in company inflicting grievous bodily harm - discount for guilty plea - purpose for which vehicle stolen - disparity with co-offender's sentence

COURTS AND JUDICIAL SYSTEM - Dispute between experts - Where expert evidence accepted on the basis that the particular expert was "impressive" and "eminent" - Judicial obligation to give reasons when deciding as between experts - Duty of judge to inform parties of matters within judge's personal knowledge when judge contemplates taking those matters into account - D

Alleged jurisdictional error in District Court hearing an appeal against a refusal to annul a conviction in the Local Court - Whether refusal to annul a conviction pursuant to s 100D of Justices Act 1902 was an order capable of appeal pursuant to s 120 of Justices Act - Whether leave of District Court required to appeal pursuant to s 123 of Justices Act - "rights of appeal" under Pt 4A of Justices Act - Whether proceedings under Pt 4A are an appeal against a conviction, order or sentence in summary proceedings - Whether a decision to decline an application to annul pursuant to s 100D is an interlocutory or final order

CORPORATIONS - Voluntary administration - Summons for examination of employees of proposed defendant - Proposal for litigation funding - Whether proposed arrangement champertous - Whether summons for proper purpose.