Cases and authorities

WORKERS' COMPENSATION - Injury - Course of employment - Interval - Whether real connection between employment and injury - Whether employment a substantial contributing factor.

Transfer from District Court - continuation of representative action - Task Force BAX

FAMILY LAW - overseas adoption - change of name of infant child - relevant considerations

Appeal decision of CTTT - contract - Consumer Credit Code - jursidiction

Criminal Law and Procedure - Sentencing - Crown Appeal - suspended sentence - manifestly inadequate - trial judge erred in failing to take into account seriousness of firearms offences and in having regard to parity with co-offender on Form 1 matter - discussion as to the effects of revocation of bond under s 12.

WORKER'S COMPENSATION - Injury to security guard - Where security patrol conducted on construction site - Whether duty of care involved employer attending the site - Whether inadequate instructions given by employer - Whether employee should have been given site plan - Whether inadequate lighting - Whether employer should have provided a torch - Whether area in question on site should have been roped off - Contributory negligence - Whether subcontractor of building site owed a duty of care to the employee. ND

Criminal Practice and Procedure - Sentencing for affray - scope of liability of offender for conduct of co-offender - breach of De Simoni principle - findings unsupported by evidence - failure to take into account guilty plea - sentence manifestly excessive.

TRUSTS - intention to create trust - trusts where word "trust" not used - no payment into separate account - commercial transaction - constructive trusts arising from same facts as alleged express trusts - TRUSTS - tracing - bank account divided by client into sub-accounts some of which are in debit - whether tracing through those sub-accounts possible

Evidence - application by defendant for access to documents in possession of plaintiff's investigator - claim for client advice and litigation privilege - asserted imputed waiver

Corporations - Application for an order adjourning examination - Whether use of examination summons an abuse of process - Proposed Federal Court proceedings to set aside summons - Whether comity required adjournment.

Extension of time to commence proceedings, ss 60C & E Limitation Act - alleged medical negligence

COSTS - How costs should be apportioned where successful defendant failed on significant issue.

CORPORATIONS - Whether proposed resolutions for special general meeting of a company void due to ambiguity - Where proposed resolutions would limit the powers of the company - Whether proposed resolutions void for uncertainty - Correct test to be applied to determine uncertainty - EVIDENCE - Whether extrinsic evidence can be used to construe company's constitution. D

PRACTICE AND PROCEDURE - Complex proceedings - Costs of appeal - Orders to be made - Whether proceedings should be remitted to the trial judge or another commercial list judge - Wording of the question to be remitted - Whether leave should be granted to allow enforcement of costs orders. ND

PROCEDURE [4] - Courts and Judges generally - Judges - Disqualification for interest or bias - In general - Ordinary rule - Apprehended bias - Reasonable apprehension entertained by fair-minded observer - Application of test.

Family Provision. Application under Family Provision Act by two grandchildren. Discussion of dependency. Order made for legacies in favour of the plaintiffs.

CORPORATIONS - composite merger proposal involving scheme of arrangement between company and members and alteration of constitutions of managed investment schemes - application by company for order convening meeting of members - applications by responsible entities of registered managed investment schemes for judicial advice - approach to be taken by court at stage where meetings are sought - acceptability of procedure under which several meetings occur sequentially within a larger gathering - adoption of new constitution where full text not sent to members - need for deed poll to bind outsiders to perform

Contracts: Agreement to compromise part of a claim in the Consumer, Trader & Tenancy Tribunal of NSW. Appeal from Tribunal as a matter of law. Held that agreement not as extensive as found by Tribunal. Appeal allowed and matter remitted to Tribunal for further consideration.

Appeal decision of Local Court Magistrate - Breach of Contract - Quantification of damages

CORPORATIONS - management and administration - holding of purported directors' meetings without quorum - whether meetings valid - whether declaration of validity of meetings to be made under section 1322(4)(a) Corporations Act 2001 (Cth) - proceedings on foot in Licensing Court against company arising from failure to have quorum at directors' meetings - whether appropriate to make order under section 1322(4)(c) Corporations Act 2001 (Cth) relieving company from civil liability

Appellant was guarantor for borrower of funds from respondent- whether guarantee discharged by advance made by respondent to borrower- whether indemnity suffered the same fate- whether advance contrary to terms of facility for which guarantee provided

CORPORATIONS - winding up - application under section 459S Corporations Act 2001 (Cth) for leave to challenge statutory demand on a ground not relied on within 21 days after service - adequacy of explanation for failure to raise that ground within 21 days

Appeal from decision of CTTT - s 94 Home Building Act

CRIMINAL LAW - Suspended sentences - s12 bonds - breach by further offences - whether bonds should be revoked - consideration of s98(3) of Crimes (Sentencing Procedure) Act.

CORPORATIONS - miscellaneous cases - examination of person connected with corporate collapse - application for order prohibiting mass media from publishing changed surname of examinee and her children - factors relevant to whether discretion to make such an order should be exercised

Criminal Law and Procedure - Sentencing - Discounts for plea and assistance - impact of assistance on family of offender - whether disparity with sentence for co-offender.

Criminal Law and Procedure - Sentencing - Section 16G of Crimes Act (Cth) - whether repeal should affect current sentencing range - relevance of absence of transitional provisions.

Manslaughter - by criminal negligence - whether falling short of reasonable person's standard of care objectively assessed - what mens rea required - relevance of accused's belief in safety of acts - whether defence of honest and reasonable mistake - effect of Crimes Act s 18(2)(a) - consideration of other aspects of summing-up - consideration of adequacy of sentence. D

Criminal Law and Procedure - Sentencing - Discount for plea of guilty - relevance of matters on Form 1 to total criminality of offences for which sentence was passed.

Appeal decision of Small Claims Division of Local Court - receipt of notice

Practice and Procedure - Access to Court file

Insurance - Meaning of "directly caused" - Fire on power pole - Power surge to premises - Damage to laser - Whether directly caused by fire on power pole within meaning of policy clause

CORPORATIONS - winding up - examination under s.596B - whether examination summons should be issued - whether court should issue letter of request seeking assistance of foreign court in conducting examination - conditions to be met before letter of request is ordered

PROCEDURE [32] - Courts and Judges generally - Courts - Adjournment - Discretion of Court - Late application - Refusal of adjournment likely to lead to defendants being unrepresented in proceedings which are difficult, complicated and technical.

Succession - Family Provision - Claim by adult daughter - Plaintiff is only child of Deceased - By will Plaintiff received income until she attained the age of thirty, and estate then went to a charity - Claim not brought within prescribed period - Whether prescribed period should be extended - Nature of order for provison.

Respondent injured stepping from cabin of truck into pothole - liability -negligence- manner of alighting from truck - whether injury caused by council's negligence - whether duty of care owed by council - whether duty breached

NEGLIGENCE - standard of care - participants in game - inherent danger - respondent (plaintiff) boy aged 12 y.o. took part in motor cross (motorcycle) race organised by appellants (defendants) sporting associations - respondent fell off at jump, lay winded on track and was struck and injured by following rider - Trial Judge found breach of duty of care which required stationing sufficient marshalls in positions to intervene and signal with yellow flag to other riders - sport inherently dangerous - consideration of standard of care (Shirt Calculus) and significance of respondent's knowledge of risk from absence of marshalls and of warning from his father - decisions of Trial Judge on standard of care, breach and causation upheld. - DAMAGES - future economic loss - consideration (by Hodgson JA) of operation of s.13 of Civil Liability Act. - LAW REFORM - further economic loss - Hodgson JA expressed view that s.13 required Parliamentary reconsideration. (D)

ESTOPPEL - general principles - promissory estoppel - propriety estoppel - whether representation sufficiently clear and unambiguous - whether a representation insufficiently clear to found a contractual relationship can instead found a promissory estoppel - whether representation gave rise to an expectation - whether detrimental reliance - whether detrimental reliance is necessary for grant of relief - appropriate relief for detriment. - EQUITY - laches - whether plaintiff acquiesced in seeking redress after realising violation of rights. - REAL PROPERTY - whether representation founding estoppel gave rise to proprietary beneficial interest or indefinite licence. - PRACTICE & PROCEDURE - whether a party who has not asked for relief ought to be granted relief - where no controversy exists between party and respondent

LIABILITY - Motorist injured when the car she was driving collided with a fallen tree on the road which was said to be in sickly condition and collapsed in a storm - Evidence that tree's stability compromised - contest as to this and as to whether obviously so - Whether vehicle which passed fallen tree and failing to stop was Council driven vehicle - Duty of care owed by the appellant to the respondent - specific or ad hoc breach by reason of failure to remove tree - no system breach in failing to have pro-active system to inspect and remove diseased trees - practicality and feasibility of such a system in the country road setting of local shire - Held Council not negligent.

Appellant leased shop for "retail sale of carpets and floor coverings" in home renovation, building products exhibition and bulky goods retain centre-respondent changed use of centre to a womens' fashion direct factory outlet- whether change of use constituted a derogation from grant of lease- whether premises rendered unfit for stated use

EMPLOYMENT LAW - The Relationship of employer and employee - Administrator of employer rejected proof of debt of employee for annual leave, annual leave loading and long service leave - Whether employee a casual or full-time employee - Whether the employee had been paid in cash for his annual leave

FAMILY LAW - adoption - name of child - change of name of child - whether addition of new first name in child's best interests

Amend statement of claim - strick out proceedings - fourth defendant - display of Russian space shuttle

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - practice - two executors with different views about approach to take to plaintiff's claim - who should represent estate for purpose of dealing with plaintiff's claim - whether costs of that dispute should be paid from estate - order for compulsory mediation of dispute sought - case at early stage of preparation - whether appropriate for order to be made