Cases and authorities

Freedon of Information Act 1989, s 39(b) - meaning and application of "administrative functions"

LIMITATION OF ACTIONS - Motor Accidents Act 1988, s 52(4) - Whether it was fair and just to grant leave to commence proceedings out of time - Whether plaintiff or legal representatives demonstrated a lack of diligence in ascertaining and asserting plaintiff's rights - Whether the defendant would suffer significant prejudice by reason of the delay. ND

COSTS - RESERVED COSTS - JUDGMENT "WITH COSTS" - WHETHER INCLUDED - ADJOURNMENT - BURDEN OF COSTS IN PARTICULAR CIRCUMSTANCES

Family Provision. Application by de facto partner who was left a life interest in one half of the matrimonial home. Consideration of competing claim of a son. Small estate insufficient to accommodate all claims.

BANKING - Margin Lending Facility - borrower obtains a guarantor - whether borrower is an agent of the Bank in obtaining surety - shares - cash advances - GUARANTEE - variation of guarantee - "obviously unsubstantial" alteration test - whether guarantor prejudiced - grounds for discharge - CONTRACT - construction - objective manifestation of assent - ascertaining the intention of the parties - rule in L'Estrange v Graucob - operation of the rule - failure to read documents signed - significance of signed documents - signature as a strong indication of intention to be bound - bound by material printed on both sides of pages - MISREPRESENTATIONS - whether guarantors induced into entering into guarantee by fraudulent misrepresentations - whether any misrepresentations were made on behalf of the Bank - EVIDENCE - adverse findings as to credibility of witness - the rule in Jones v Dunkel

Criminal law - appeal against convictions - manslaughter - maliciously discharging firearm with intent to do grievous bodily harm - hearsay evidence - unsworn statement - where deponent did not attend trial - whether warning to jury ought to have been given - where no warning sought - Evidence Act s165 - unreasonable verdict - where jury did not see key witness - Sentencing - excessive self defence - whether sentence manifestly excessive

NEGLIGENCE - whether failure to take certain precautions resulted in breach of duty of care - PRACTICE - whether trial judge's reasons were adequate - s75A Supreme Court Act - ND

MORTGAGE - SOLICITORS - COSTS - INTEREST ACCRUED ON MONEY ORDERED PAID INTO COURT - MOTION BY DEFENDANT MANIFESTLY UNTENABLE

Appeal from evidentiary ruling on committal - exercise of discretion by magistrate - power of this court to intervene.

Corporations Law. Contested application to wind up in insolvency. Case turns on facts. No matter of principle. Summons dismissed.

[REAL PROPERTY] - Whether alienation of property by first defendant to second defendant was with intent to defraud creditors under s 37A Conveyancing Act 1919 (NSW) - Transfers registered 10 months prior to consent declaration pursuant to s 78 of the Family Law Act 1975 (Cth) made by the Local Court exercising Family Law jurisdiction - [BANKRUPTCY] -Whether the Bankruptcy Act 1966 (Cth) "covers the field" for proceedings in respect of alienation of property to defeat creditors where disponor becomes a bankrupt - Whether plaintiff precluded from proceeding under s 37A of the Conveyancing Act 1919 (NSW) - Plaintiff granted leave by the Federal Court to proceed against the first defendant under s 37A of the Conveyancing Act 1919 (NSW) - [ESTOPPEL] Whether plaintiff estopped from pursuing relief when proceedings commenced in Local Court exercising Family Law jurisdiction were "withdrawn and dismissed" by consent - [ORDERS] - Whether orders sought pursuant to s 37A of the Conveyancing Act 1919 (NSW) would be in conflict with Consent Orders made in Local Court.

Customs prosecution - proceeding to recover pecuniary penalties - offences against laws of the Commonwealth - whether should be commenced by indictment - whether trial by jury constitutionally necessary - whether jury trial should be ordered in discretion - application dismissed.

Criminal Law and Procedure - Appeal and new trial - Evidence of applicant entering protection after sentence imposed - whether the evidence should be received - relevance of protective custody to sentencing.

ADOPTION - name of child - overseas adoption - considerations affecting change of name of non-citizen child or child over one year old.

PRACTICE AND PROCEDURE - Notice to show cause (in writing) why orders should not be made - oral submissions disallowed - Repeated refusal to accept rulings - Repeated applications for judges to disqualify themselves on the grounds of apprehended bias - Procedural fairness and natural justice - Proper/improper conduct of hearings in court proceedings - Proceedings dependent on a grant of probate not yet made - - Inherent power of the Court to protect its process from abuse by persons making unwarranted and vexatious interlocutory applications without leave - Claimant restrained from bringing any interlocutory application without leave - Written (not oral) submissions in the event subsequent leave is granted due to the claimant's repeated conduct in court during proceedings. D

APPEAL from Local Court - limited to question of law - principles - CONTRACT - implied obligation on principle of Makay v Dick - express condition of payment - whether fulfilment of the condition was prevented by Defendants or arose from circumstances attributable to the Plaintiff's own unjustified delay

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 interlocutory relief should be granted

Evidence - meaning and ambit of the word "records" in s69 of the Evidence Act 1995 - whether the section applies to an article in a trade journal - application of ss 135 & 136

CORPORATIONS - winding up - presumption of insolvency - whether period for compliance with statutory demand is extended under s 459F(2) where an application to set aside the demand is held to be out of time

Insurance - Whether public liability cover obtained - whether insurance broker arranged cover under its binder with unauthorised overseas insurer - whether there could be an insurance contract when broker represented and insurer understood that cover was Lloyd's - what was effect of misleading insurance certificate - whether insurance agents were negligent - whether breach of Trade Practice Act

ENVIRONMENTAL LAW - endangered ecological community - listing process in Threatened Species Conservation Act - validity of final determination to list community - distinction between initiating mechanisms - assemblage of species - particular area ADMINISTRATIVE LAW - validity of determinations of Scientific Committee - requirement to advertise reasons for determinations - where published reasons restated statutory formula - sufficiency of reasons - certainty of findings in final determination - non-compliance with statutory provision for nominations - availability of alternative power to support listing - whether different consequences of statute under alternative powers - reasonable apprehension of bias PRACTICE AND PROCEDURE - application to reopen case - discretion to allow reopening - where inconsistent tactical decisions and legal claims by both parties - where new evidence on critical matter in proceedings

TRADE PRACTICES- Equity- Estate Agent's commission- Alleged promise by vendor not to take advantage of statute- How far estoppel in face of a statute- How far equity will permit statute to be used as a cloak for fraud- Equitable jurisdiction of District Court examined.

CORPORATIONS - voluntary administration - meetings of creditors - who are creditors - claimants in tort for economic loss - proof or particulars for voting - documents lodged to be considered in context known to decision-maker - rejection where particulars are merely bald assertion - CORPORATIONS - meetings of creditors - notice of meeting - whether any duty upon convenor to seek out creditors except by notices required by legislation - CORPORATIONS - meetings of creditors - whether chairperson may seek direction from court as to admission of proofs for voting - whether chairperson may adjourn meeting unilaterally for such purpose - adjournment and suspension contrasted

Costs - indemnity costs - grounds for awarding costs of the proceedings on an indemnity basis - offer of compromise served by a wholly successful defendant - grounds for awarding indemnity costs consequent upon such an offer of compromise

Criminal law - record of interview of accused tendered by Crown - failure of counsel for accused to cross examine Crown witnesses on assertions in interview - jury instructed it might consider such failure a concession assertions untrue - jury not instructed on other possible explanations for failure to cross examine - accused's right to remain silent - whether trial miscarried.

Criminal Law & Procedure - Protective custody - - Appropriate discount for plea - - Parity - Relevant principles

Criminal Law and Procedure - appeal against severity of sentence - discount allowed by sentencing judge was inadequate and resulted in an excessive sentence.

CRIMINAL LAW: Appeal - redetermination of sentence - assistance to authorities - failure to disclose assistance to sentencing judge - appropriate discount.

Crime - Confiscation of Profits of Crime - when is accused "convicted": when sentenced or when remanded for sentence.

Costs - proceedings resolved without determination of liability in respect of several defendants - whether judge bound to award costs against plaintiff where judgment entered in favour of a defendant - whether judge entitled to assess the reasonableness of the actions of the parties - principles discussed - whether a Calderbank offer as an early stage giving 14 days to respond was reasonable.

Sale of land - whether vendor had right to rescind - whether reference to "caveats" included caveats which were not valid - whether vendor took all reasonable steps to remove caveats - discussion of the practice of the Registrar - General with respect to caveats which were of no effect - Contract - Interpretation - use of the definite article "the" - whether deletion of one condition changes meaning of other conditions apparently dependent on it

CORPORATIONS - miscellaneous cases - oppression - principles for deciding appropriate remedy - principles for deciding time as at which value of share to be decided for compulsory buy-out order - whether adjustments to balance sheet values to allow for selling expenses, and income tax payable on sale of assets, should be allowed - factual matters concerning share valuation - CORPORATIONS - management and administration - construction of Articles allowing remaining directors to fill a casual vacancy - procedure for filling a casual vacancy when only one director remains

WILLS - Construction - gift in will to executor of "right of usage" of house for 10 years followed by distribution to beneficiaries - consideration of construction of will on whole terms - held, the executor was entitled to rent out the house, retain the profits and was to pay the outgoings

ASSOCIATIONS AND CLUBS - Incorporated Associations - Rules - Whether a committee has power to determine that nominations for committee membership will not be put to a general meeting - Whether that power rests in the chairman of the meeting - Whether the court should declare the nominations valid

Drug addiction - self-medication - leniency - parity - discount for plea

Negligence - whether Department of Education and Training owed duty of care to a speech pathologist employed by the Department of Community Services but working in a school - whether duty of care breached - whether duty to protect staff against violence by children - whether duty breached in circumstance that child was autistic with severe intellectual disability - whether breach could be proved in absence of expert evidence - whether s151Z(2) of the Worker's Compensation Act 1987 should be applied to reduce the damages awarded

Judicial Review - Natural justice - whether reasonable apprehension that Magistrate biased

Client legal privilege

PROCEDURE - Adjournments - Unrepresented litigant involved in other proceedings - Request for adjournment in late communication to other party - No communication to or appearance in court - Adjournment refused. - EVIDENCE - Hearsay - Previous written statement by witness called by party - Leave to cross-examine sought and refused - Whether an error vitiating decision.

LANDLORD AND TENANT - allegation of entitlement to renewal of lease on particular rental basis - no question of principle

Inquiry as to profits - Expert evidence - Methodology and calculations - Commission in respect to mortgage origination - Account for profits is a remedy which is notoriously difficult in practice - What is required will not be mathematical exactness, but only a reasonable approximation.

DAMAGES - personal injuries - no point of principle. ND

Ex parte hearing - application for rehearing not granted - no denial of procedural fairness.

statutory construction - who may appear for a corporation in the Local Court - employee.

Contract - whether binding contract exists between the plaintiffs and the defendant - actual or ostensible authority of an agent to conclude agreement - conditions precedent to formation of contract

LEASES AND TENANCIES - failure by landlord to provide appropriate goods lift - failure by landlord to provide adequate kitchen exhaust system - change of owner effected by sale of property - numerous complaints by tenant to landlord and managing agent over years - attempts by plaintiff to resolve matters - claim for specific performance - declaration of breach of lease sought - RETAIL LEASES - statutory regime - provision of dispute resolution procedure under Part 8 of the Retail Leases Act 1994 (NSW) - mediation as condition precedent to litigating complaint (section 68) - whether mediation under the Act is "unlikely to resolve" the dispute or matter - PRACTICE AND PROCEDURE - notices of motion seeking an order staying proceedings pending the outcome of mediation - SEPARATE QUESTION - Part 31 rule 1 Supreme Court Rules - Is the Court satisfied that mediation under Part 8 of the Act is unlikely to resolve the dispute or matter? - large volume of correspondence between the parties and their legal representatives since mid-2000 - failure to resolve issues over long period - mediation unlikely to resolve issues

STAMP DUTIES: Dutiable value of share-sale transaction - Whether sale of shares ex-dividend - Value of consideration - Meaning of word 'consideration'.

Practice and Procedure - application to extend stay of consent orders - applicable principles

CORPORATIONS - winding up - directions to liquidator when bona fides of his action attacked - approval of compromise of debt