Cases and authorities

EVIDENCE - witnesses - expert witness - witness not provided with Expert Witness Code of Conduct prior to embarking on task of opinion formation - expert provided with Code before report completed, and report states that it complies with Code and witness undertakes to be bound by Code - whether evidence to be rejected under Part 36, rule 13C Supreme Court Rules - whether evidence to be rejected under Section 135 Evidence Act 1995

CHILDREN'S COURT - CHILD IN FOSTER CARE - CONTACT VISITS BY PARENTS - NO POWER FOR CHILDREN'S COURT TO ORDER DIRECTOR GENERAL OF COMMUNITY SERVICES TO PAY TRAVEL AND ACCOMMODATION EXPENSES OF PARENTS EXERCISING THAT CONTACT

REAL PROPERTY - leaseholds - when lessor's obligations run with the reversionary estate under s 118 - meaning of reversionary estate - scope of s 118 - relationship of s 118 with indefeasibility rules - whether registered proprieter holds land subject to equitable tenant's interest

CORPORATIONS - voluntary administration - liquidators seek leave to appoint themselves administrators to progress deed of company arrangement proposal - matters to be considered - dispensing with first meeting of creditors in new administration

Legal Practitioner - Barristers - Removal from the Roll of Legal Practitioners - Professional misconduct - Fit and proper person - Failure to lodge tax returns - Where orders consented to and findings made

A solicitor pleaded guilty to importing a trafficable quantity of cocaine and served a sentence of imprisonment. The Prothonotary of the Supreme Court of NSW applied to have her removed from the Roll of Legal Practitioners on the grounds that her conviction constituted professional misconduct within the meaning of s 127(1)(b) of the Legal Profession Act and that she was not a fit and proper person to remain on the Roll of Legal Practitioners. The Court found that the solicitor had been drug free for almost five years and that the factual matrix of the case was such that the solicitor was not a risk to the public. LEGAL PRACTITIONERS- Legal professional standards- Good fame and character- Professional misconduct- Application to have solicitor struck off the Roll- Criminal offence- Punished for her crime- Was the solicitor a fit and proper person to remain on the roll of Legal Practitioners- Protection of the community and the profession- Rehabilitation from addiciton to illicit drugs- Five years since commission of offence- Period of self-imposed suspension- Substantial character evidence from referees fully aware of the facts of the matter.

TORT: False imprisonment - Position of executive government - Causation - Damages for false imprisonment - RES JUDICATA: Issue estoppel - reasonableness ADMINISTRATIVE LAW: Ministerial decision making - Automatic or self-executing decisions

ADMINISTRATIVE LAW - LOCAL GOVERNMENT - validity of development application - validity of development consent - dual occupancy housing - strata subdivision - delegation - assessment and determination

Challenge to judicial findings of fact.

CORPORATIONS - Miscellanous Cases - Application for reinstatement of deregistered company - Reimbursement of workers' compensation payments from an uninsured corporate employer dependant upon notice served on company - Reimbursement from directors dependent upon liability of company to reimburse - Whether company should be reinstated to allow notice to be served - Whether plaintiff aggreived by deregistration when it had no claim against the company at that time - Whether plaintiff's powers of recovery are in the public interest - Whether it is in the public interest for powers of recovery to be exercised promptly - Whether discretion should be exercised against plaintiff becasue of its delay

REAL PROPERTY [407] [415] [434]- Easements- Right of footway- Old System land- Deed creating easement not effective at law because not created by mortgagee, who had legal estate- However, when deed recorded on register then this conferred indefeasibility- Difference in juristic natures of easements and restrictive covenants- What constitutes abandonment of an easement- How to determine a terminus ad quem- Whether easement should be extinguished.

Practice and Procedure - interlocutory issue - whether interim payment of damages should be ordered - applicable principles

Aggravated driving occasioning death - Dangerous driving occasioning death - Extension of time to appeal - appeal against conviction - appeal against sentence - Withdraw guilty plea - whether miscarriage of justice - Whether sufficient evidence to substitute lesser verdict

STATUTES - ACTS OF PARLIAMENT - interpretation - Building and Construction Industry Security of Payment Act 1999 - time within which application for adjudication must be made - CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - Building and Construction Industry Security of Payment Act 1999 - time within which application for adjudication must be made

SUCCESSION - Family Provision and Maintenance - Plaintiff non-resident son of deceased - 'Affiliato' to Italian couple - Whether adopted or fostered - Adopted child entitled to inheritance in Italy, 'affiliato' not - Plaintiff registered to property in Italy by succession at law to Italian 'affilianti' - Whether proceedings should be summarily dismissed - Whether plaintiff should provide security for costs - Estate of deceased largely distributed to sister as sole residuary beneficiary - Application by plaintiff to have property designated as notional estate - Whether sister should be enjoined from dealing with property

LIQUOR LAW - Magistrate's order under section104A Liquor Act 1982 for temporary closure of premises - police refuse to provide person bound by the order with evidence on which order was obtained - serious question to be tried about breach of natural justice frustrating rights of appeal or review of the order - serious question to be tried about whether decision made without jurisdiction

PRACTICE AND PROCEDURE - re-opening of decision by trial judge - when appropriate - decision made that defendant liable for breach of contract, and reference to Master to assess damages proposed in judgment already delivered - defendant alleges that recovery of damages would involve plaintiff recovering damages for loss of profits which could only have been earned in circumstances of plaintiff acting illegally - plaintiff also puts claim for loss of damages on alternative basis to loss of profits, namely loss of capital item - DAMAGES - general principles - recoverability of damages for breach of contract for loss of profits which could only have been earned by plaintiff acting in circumstances involving illegality

CORPORATIONS - winding up - application for appointment of provisional liquidator - companies already subject to Mareva orders and undertakings to court to preserve assets - jeopardy pending trial not shown

MORTGAGES - Whether the bank was bound by an informal contractual agreement - Did correspondence between the bank and the mortgagee constitute a binding agreement - Did the bank breach the informal contractual agreement by demanding repayment - Whether the acceptance of the agreement was conditional - Can formal mortgages be varied by informal documentation

Costs - offer of compromise - Calderbank offer - exercise of discretion - settlement negotiations - reasonableness of offer - time to consider offer - application of Rules of Court

Appeal - question of law - whether Tribunal had jurisdiction to hear and determine matter - whether purchase of house for parents is a 'personal' purpose - construction of the Consumer Credit Code

Criminal law - drug offences - sentence - parity - co-offender

CONTRACTS - General Contractual Principles - Discharge, Breach and Defences to Action for Breach - Standard provision that vendor could terminate contract for sale of land for breach in an essential respect - Standard provision that, subject to other provisions, time was fixed but not essential - Whether special provision for lodgement of a development application by a fixed time was essential - Whether special provision to keep vendor fully informed was essential - Whether special provision to act with due diligence and use best endeavours was essential - Whether notice of termination for such alleged breaches was effective - PROCEDURE - Miscellaneous procedural matters - Whether amendment should be allowed after evidence and addresses to add a claim that notice terminated for repudiation as distinct from termination for breach of an essential promise

CHARITIES - administration and control by Court - settlement of cy près scheme - permissible extent of departure from the testator's expressed intention

Medical Negligence

Criminal Practice & Procedure - parity - comparison with ring leader who was child - comparison with adult

CORPORATIONS - Liquidators - winding up of reinsurance company - priority of claims under Insurance Act 1973 and Corporations Law and Corporations Act - whether s116(3) of Insurance Act subject to direct or implied repeal by Corporations Act - whether priority rights under Insurance Act rights or obligations under s8 of Acts Interpretation Act 1901 (Cth) - whether rights to be determined at commencement of winding up CORPORATIONS - rights of creditors - application of and construction of s562A of the Corporations Act - interaction between that section and s116(3) of the Insurance Act - CORPORATIONS - Liquidators - costs and expenses of liquidation - out of which funds payable - INSURANCE - insurance companies insolvent insurance company subject to winding up - priorities under s 116(3) of Insurance Act 1973 - whether repeal and renactment of s116 operated to bear on existing rights and obligations - whether contrary intention expressed by amending Act - meaning of liabilities in Australia under s116(3) and s31 of the Insurance Act

The respondent worked as a runner on a recycling truck. Whilst working an accident occurred and the respondent was found on the highway unconscious. Although no one saw exactly what happened, and the respondent could not remember what happened, the trial judge inferred that a tree branch was likely to have knocked the respondent off the truck, which was travelling too fast. EVIDENCE- No direct evidence- Whether sufficient evidentiary basis for inferences drawn- Grounds on which tribunal of fact entitled to draw inference.

PROFESSIONAL NEGLIGENCE - Duty of care of solicitor in absence of retainer - Purported disclaimer of responsibility - Whether solicitor merely performing limited task of reproducing an earlier document - Reliance of respondent on solicitor - Conflict of interests - Failure to advise respondent that solicitor could not protect respondent's interests and to obtain independent legal advice - Misrepresentation constituting a breach of Fair Trading Act, s 42 - Whether respondent contributorily negligent by not obtaining independent legal advice. D

Appointment of tutor - allegation of conflict of interest - appropriateness of appointment

Review - belated application to strike out pleading - pleading over and joinder of issue - delay, explanation for delay and prejudice.

CORPORATIONS - winding up - earlier order setting aside statutory demand subject to condition - condition not fulfilled - whether earlier order may be varied to overcome non-fulfilment

MORTGAGES - remedies of the mortgagor - interlocutory injunction to restrain exercise of power of sale - mortgagee well secured for debt - power of sale accrued - possible availability of injunction to restrain mortgagee's sale as an incident to judicial sale - availability of injunction based on equitable right to redeem - need for payment into court of amount claimed as precondition for interlocutory injunction to restrain exercise of power of sale

Appeal - intention to create immediate binding agreement - authority - no error of law.

CONTRACT [126]- Share sale agreement- Whether still enforceable- Whether frustration by insolvency of subsidiaries- Abandonment- Elements.

Crown appeal against sentence - effect of delay in commencement and hearing of appeal - asserted errors and effect on sentence - whether sentence is manifestly inadequate

CRIMINAL LAW: Application to extend time to appeal against conviction and sentence - 46 years out of time - sentence long since served - whether interests of justice required leave.

Criminal law - appeal - sentence - special circumstances - non-parole period - failure to find particular matters as special circumstances - whether amounting to legal error - failure to specify shorter non-parole period - whether legal error - necessity for appeal court to be persuaded some other sentence is warranted in law and should have been passed.

PRACTICE AND PROCEDURE: Litigants in person - District Court Rules Pt 45 - Test of incompetence - Guardians ad liteus

Practice and Procedure - whether appropriate to grant leave to amend statement of claim outside limitation period - application of Pt 17 r4 District Court Rules (NSW) - 'relation back' principle - Conflict of laws - applicability of State rules relating to procedure or practice to Federal statutes - whether Pt 17 r4 a valid exercise of District Court rule-making power - validity of Pt 17 r4 as surrogate Federal law under s79 Judiciary Act 1903 - whether material inconsistency (D)

Damages - interpretation of special condition in Crown lease - whether compensable damage sustained - "loss" - whether diminution in value - whether costs recoverable for restoration of land (ND)

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS - property - section 50 Minors (Property and Contracts) Act 1970 - authorisation of lease of minors' property - whether real property of minors to be vested in trustees upon whom a general power of leasing is conferred

ASSOCIATIONS & CLUBS [25]- Expulsion or suspension- Natural justice- Prosecutors acting as judges- Suspension invalid. CORPORATIONS [101]- Meetings of directors- Requirement of notice- Proper notice of agenda required- Need for proper minutes.

Practice and procedure - Abuse of process - Maintenance and champerty - Approach to be taken to litigation funding - Third party funder with no interest in outcome other than repayment and profit from the litigation - Special factors disclose abuse of courts process - Representative proceedings - General principles-Whether persons whom plaintiffs purport to represent have the "same interest" in the proceedings - Power to substitute another plaintiff in the place of a named plaintiff who had given up rights of action by settling with tobacco wholesalers before commencing proceedings purporting to be representative proceedings - Discovery - Discovery for the purpose of ascertaining the identities of those falling within class sought to be represented - Power of Supreme Court to order discovery for this purpose - Plaintiff tobacco retailers suing defendant tobacco wholesalers in actions for moneys had and received to recover amounts paid from 1 July 1997 to 5 August 1997 following the decision of the High Court of Australia in Roxborough v Rothmans of Pall Mall Ltd (2001) 208 CLR 516 - Principle of law established in Roxborough - Proceedings purporting to be representative proceedings commenced on the day prior to being statute barred - Attempt by funder to obtain Court directions permitting service upon target opt-in group of notices inviting participation in proceedings upon the non-negotiable basis that funder to receive 33 1/3 percent on amounts recovered from retailers-Members of proposed target opt-in group unable to commence their own proceedings by reason of expiry of limitations period - Funder with monopoly over the means of access to recovery held to be trafficking in the retailers litigation

statutory charge - application of section - status as claimant - futile exercise - liability to pay damages or compensation - discretionary power and onus - proscription - entitlement to disclaim.

PROCEDURE [676]- Contempt- A statement by a director of a losing litigant that it lost because of bias of the Judge is a contempt.

Personal injury: assessment - paraplegic

CORPORATIONS - DEED OF COMPANY ARRANGEMENTS - use of words "subject to d.c.a." - administrator of company in voluntary administration applied for order under s.447A enabling the company to enter deed of company arrangement and trade without using words "subject to deed of company arrangement" on documents - in opinion of directions who proposed d.c.a. use of those words would make it unlikely that the company would trade successfully - business was provision of telecommunications services to customers most of whom prepaid and maintained a float - minimum $50 - held - it was not just to allow trade without using the words required by subs.450E(2) - the risk to persons dealing with the company under d.c.a. would not be balanced out by new capital brought in or in any other way - order under s.447A refused.

CRIMINAL LAW - appeal against conviction - assault with an act of indecency - attempted sexual intercourse without consent - Murray direction - whether adequate directions given to jury.