Cases and authorities

SUMMONS - LITIGANT IN PERSON - "DEFUNCT" UNINCORPORATED ASSOCIATION - DECLARATORY REMEDIES SOUGHT - PROCEEDINGS MISCONCEIVED

WILLS AND ESTATES - forfeiture rule - whether object of discretionary trust receives benefit for purposes of rule - causal connection between beneficiary's conduct and deceased's death - admissibility of evidence of decision at criminal trial that accused was not guilty due to mental illness

CORPORATIONS - liquidators in creditors' voluntary winding up appoint themselves as voluntary administrators, with leave - deed of company arrangement executed - whether execution of a deed automatically terminates winding up - whether Court should terminate winding up under s 482 - whether deed releases debts owing to secured and related party creditors - relevance of potential tax losses

WORKERS COMPENSATION - LIMITATION OF ACTIONS - plaintiff sued 20 months out of time for damages for industrial injury and applied for extension of time- Workers Compensation Act 1987 s.151D(2)- plaintiff was advised by counsel 7 months after injury not to sue - his condition later worsened - after change of solictors and of advice- he brought proceedings- no possible dispute of liability- District Court (Goldring DCJ) considered Itek Graphix Pty Ltd v Elliot and granted extension - defendant claimed leave to appeal- leave to appeal refused as suggested errors not well based on facts before Goldring DCJ- no question of principle. ND

Appeal against severity - taking into account pleas of guilty - matter could have been brought before Local Court - manifest severity

Criminal law - sentence - appeal - sentence asserted to be manifestly excessive - no question of principle.

Family Provision. Application by two stepchildren in respect of an intestate estate which passed to the deceased's siblings and their children. Discussion of whether it was appropriate for a child to expect to receive the deceased's house. Orders for legacies for the children.

Subpoenas - unrepresented party requires leave to issue - appeal - ground of appeal that trial judge declined to hear witnesses - whether leave to subpoena one of the witnesses to give evidence in the appeal - basis on which the witness would give evidence in the appeal - leave refused.

LIMITATION OF ACTION - extension of time - exercise of discretion by court - claim for extension of time to seek rescission of dismissal of case involving extensive delays - no adequate explanation for delay - appeal from District Court allowed

prior appeal to Court of Criminal Appeal - jurisdiction - no second appeal to Court of Criminal Appeal

Courts and Judges - Bias - Principles - Procedures to determine claims that a judge should recuse for apprehended bias - Whether reasonable apprehension of bias - Final hearing of proceedings continued for one and a half years - Proceedings then dismissed for failure to comply with security for costs orders - Defendants motions seek a gross sum costs order - Plaintiff opposes trial judge hearing motions on grounds of apprehended bias relying upon comments as to reasonableness of defendants legal expenditure in resisting the proceedings made on various occasions during determination of sundry interlocutory applications - Refusal to withdraw - Costs - Application for gross sum costs order pursuant to Part 52A rule 6 (2) (c) of the Supreme Court Rules 1970 (NSW)

Procedure - evidence - subpoenas - too wide - lack of legitimate forensic purpose - client legal privilege - waiver - implied consent to disclosure - material directly relating to matters in issue in subsequent proceedings

Criminal Law - appeal against conviction - sexual intercourse with a child - use of relationship evidence otherwise than as evidence of tendency - standard of proof - adequacy of directions

ERROR OF LAW - Error of fact - No evidence to sustain factual finding of trial judge - Distinction between primary and ultimate findings of fact - Wrong primary finding of fact not an error of law - Section 32 of Compensation Court Act 1984 - Power of court to review decisions flawed in point of law only

NEGLIGENCE - Duty of care of tow-truck operator - Breach of duty - Use of vehicle-owner to assist. - CONTRIBUTORY NEGLIGENCE. - DAMAGES - Serious injury - Good recovery but ongoing disability - Whether assessment of 33% of a most serious case appropriate - Future economic loss - Impact of injury upon remaining working life - Whether buffer appropriate.

INSURANCE - exclusion clause - true character of the claim - whether claim for bodily injury - substance of claim is decisive - whether note incorporated into contract - contra proferentem rule. (ND)

ERROR OF LAW - APPEAL - Government and Related Employees Appeal Tribunal - Failure to determine whether statutory provision applied - Power to "stand down" police officer - Failure of Tribunal to determine a source of power to stand down police officer - Question whether action is authorised by statutory provision is a question of law - Question not deferrable to lay opinion - Section 11A of Workers Compensation Act 1987 - Section 8(3) of the Police Act 1990.

DISABILITY INSURANCE - claims of total disability and alternatively partial disability - consideration of medical issues - claims failed on the facts.

CORPORATIONS - arrangements - deed of company arrangement - application to discharge examination summonses and orders for production - whether part of champertous litigation funding agreement - whether outside proper purpose of deed administrators - s596B Corporations Act

COSTS - principle giving discretion to order indemnity costs on the basis of some relevant delinquency on the part of the unsuccessful party - high-handed or impudent reliance on defence known to be untrue - order made.

ADMINISTRATIVE LAW - Prerogative Writs and Orders - Whether an order in the nature of certiorari lies against an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999 - Whether certiorari should be granted when judgment had been entered for the adjudicated amount - Whether s 25 of the Act rendered an order in the nature of certiorari futile

CORPORATIONS - just and equitable ground for winding up - standing of creditor - appointment of provisional liquidator on just and equitable ground - discretionary considerations

COSTS - offer of compromise - application for indemnity costs in relation to application for leave to appeal. (D)

Duty of care - public authority - deceased killed by falling tree- whether breach due to inadequate inspection of tree by Council officer - higher standard of care due to professed expertise - whether Council officer in fact attended property

Annulment of conviction - absence from court due to illness - meaning of s100K(2) Justices Act 1902 - failure to give reasons - delay in delivery of judgment

NEGLIGENCE - Personal injury - Plaintiff injured at building site - Unsafe method of work - Casual act of negligence. ND

CORPORATIONS - voluntary administration - costs of administrator - whether costs may be fixed by Court under s 449E after administration ends - whether a direction to the liquidator with respect to the administrator's fees and expenses is appropriate under s 479(3) - priority of administrator's fees and expenses under s 556

Basha enquiry - proper scope and extent - - s 128 of Evidence Act: Interests of justice - is there a limit? - - Credibility: s 103 of Evidence Act - - Substantial probative value - what is it?

[CORPORATIONS] - Civil penalty proceedings under the Corporations Law as it existed in 1996 and 1997 relating to the preparation and publication of the statutory accounts of a public company and its subsidiaries - Application of sections 232, 318, 292, 295A, 298 and 1002G - Standing of the Australian Securities and Investments Commission to commence civil proceedings in its own name for an alleged breach of section 1002G. -Whether expert evidence required as to the 'materiality' of inside information for the purposes of section 1002G - [PRACTICE AND PROCEDURE] - Prosecutorial fairness in civil penalty proceedings against unrepresented defendants - Whether fairness achieved in prosecuting a claim for alleged contraventions of both section 232 (5) and section 1002G in respect of share trading - Application of Briginshaw standard in one but not the other case - Whether plaintiff's failure to provide a copy of transcript of a voluntary interview of a witness called by first defendant before witness was called rendered unfair the reliance on evidence in cross-examination admittedly inconsistent with that interview - [DIRECTORS] - Whether directors' conduct dishonest - Whether directors exercised appropriate degree of care and diligence - Whether circumstances existed to alert executive and non-executive directors to make further enquiry - Whether reliance can be placed on others in circumstances where there is knowledge that profits not real and/or there are circumstances that should have caused further enquiry as to nature of certain fees and profits.

Succession - Family Provision - Claim by adult granddaughter - Whether Plaintiff was partly dependent upon Deceased - Financial and material circusmtances of Plaintiff - Lack of frankness on part of the Plaintiff - Whether Plaintiff has been left without adequate provision for her maintenance, education and advancement in life - Whether there are factors which warrant the making of the application - Proceedings out of time - Competing claim of beneficiary.

Guarantee - Release of security - When constituting discharge of guarantee - Calculation issues - Appropriate orders - Costs

CORPORATIONS - voluntary administration - extension of period for holding adjourned meeting of creditors - Court's power under s 447A - discretionary considerations - consequences of failure to hold adjourned meeting

Longman direction - sufficiency - warning - comment - counsels' adddresses - propriety - s159 Criminal Procedure Act

Criminal Law and Procedure - Appeal against severity of sentence - reference to an irrelevant guideline judgment - whether breach of De Simoni principle - whether any lesser sentence should have been imposed.

Criminal Law - conviction appeal - no legal representation at trial - Dietrich v The Queen

Motor vehicle accident - liability - credibility of witnesses - admissibility of witness statements - s135 Evidence Act - non-economic loss - separate medical assessment certificates - whether entitled to aggregation of psychological/psychiatric injury impairment and physical injuries impairment - meaning of s133(3) Motor Accidents Compensation Act 1999

Negligence - slipping case - appellant slipped on steep and wet driveway - slipperiness obvious - few occasions of slipping over many years - no need to use driveway - whether error in finding respondent had failed to take reasonable care. ND

PRACTICE AND PROCEDURE - application for rehearing of arbitration - whether Pt 51A r 10 of the District Court Rules 1973 (NSW) imposes a duty on the Registrar to endorse the date of sending on the award - whether time commences to run for the purposes of Pt 51A r 10 and s 63A(5) of the District Court Act 1973 (NSW) where the Registrar fails to endorse the date of sending on the award - where appellant's solicitor under a misapprehension as to when time commenced to run - administration of justice.

Development consent - use as warehouse clearance outlet - within listed non-permitted development of a shop - not otherwise listed - whether a development "not referred to" in the instrument - construction of LEP - injunctive relief stayed for 28 days - whether miscarriage of discretion in declining to grant longer stay.

LANDLORD & TENANT [89] Relief against forfeiture- Non payment of rent- Landlords also relied on appointment of receiver by themselves- Whether causing a breach- Whether s 129 notice may be withdrawn- Significance of windfall profit to landlords if relief not given. EVIDENCE [72]- Privilege- Conflicting evidence as to why report commissioned- Decision as to whether it was predominantly for current litigation a question of fact- Evidence Act 1995, s 119.

Extension of limitation period - viable cause of action - delay and explanation for delay - prejudice and fair trial.

Contract - Letters of comfort/support - Whether creating legal obligations - Whether intent to contract - Australian trading arm of foreign owned group of companies operating under aegis of letters of comfort/support - Letter of support signed by ultimate overseas parent company - Letter confirming (1) that it would provide the financial support that may be necessary to enable its wholly owned Australian holding company and its controlled entities to meet financial commitments as and when they fall due and providing (2) that the letter would not be withdrawn before the Australian holding company and its controlled entities have sufficient means to meet their obligations without the support of the parent entity - Reliance upon letter of support for purpose of (1) directors' declaration recording that financial statements are prepared on a going concern basis on the assumption that parent entity will continue to provide the necessary financial support to enable the company to pay its debts as and when they become due and payable and (2) Australian trading company being committed to continue to trade at all - Whether intent to contract - Whether letter contained promissory undertaking - Construction of letter - Identification of promisee - Objectivity - Alternative claim that benefit of promise held by Australian holding company on trust for Australian trading company - Trade Practices Act - Misleading and deceptive conduct - Evidence - Admissibility of extrinsic evidence/surrounding circumstances - Admissibility of evidence on intent to contract issue - Admissibility of evidence on construction issue

PROCEDURE [735]- Costs- Preparation of bundle- How costs of copies allocated- General consideration of costs where multiple counts.

Appeal from review panel - questions of costs of assessment - decision as to a matter of law arising in the proceedings to determine the application for assessment referred to in s 182.