Cases and authorities

Appeal from findings of fact by trial judge - ND

TRADE AND COMMERCE - RESTRAINT OF TRADE - respondent purchased appellant's medical practice and required appellant to conduct practice from respondent's centre - restrictive covenant - appellant restrained from rendering medical services at rival centre for five years - whether restraint reasonably necessary to protect the respondent's goodwill - whether variation of sale contract unconscionable due to appellant's specific disabilities at time of negotiation - whether restraint void as a penalty - ND

Appeal against claim to recover damages for injuries suffered at the workplace.

ROADS & TRAFFIC - meaning of "regulates traffic" in Roads Act s 114 - whether roads authority may use powers under Part 6 of Roads Act to carry out traffic control work which regulates traffic for the purposes of Part 8 - whether reversal from turning bay into private garage would contravene Australian Road Rules - - ADMINISTRATIVE LAW - whether decision of roads authority disregarding effects under Australian Road Rules failed to take into account relevant considerations and was invalid - whether decision of roads authority making contravention of Australian Roads Rules likely was unreasonable in the Wednesbury sense

CORPORATIONS - management and administration - creditor with pending proceedings seeking to terminate administration - second meeting of creditors called for a date before those proceedings to be heard - deed of company arrangement to be proposed at second meeting of creditors - company not carrying on business and small number of creditors - order under s 447A adjourning meeting of creditors until after hearing date of application

CORPORATIONS - injunctions - right of shareholder to request general meeting under s249D Corporations Act - whether shareholding is a "sham" - whether restraint would change rather than preserve status quo - effect of applicants' complicity in alleged "sham" on "clean hands" - whether binding agreement that plantiff would not intervene in management of the company - whether applicants should have relief under s 1322(4)(d)

MENTAL HEALTH - protection order - whether defendant incapable of managing affairs - whether defendant's solicitor appropriate applicant for order - EVIDENCE - reports of psychiatrists based on material supplied by solicitor - some material hearsay - some material privileged - opinions of psychiatrists confirmed and restated in court by reference to defendant's conduct in court

Criminal Law - Application for leave to appeal in respect of sentence - whether the sentencing judge properly took into account the Applicant's mental disorder.

Criminal law - appeal - s.5 of Criminal Appeal Act 1912 - special verdict of not guilty by reason of mental illness - availability of appeal - "raising" of mental illness defence - availability of appeal - effect of s.7(4) of Criminal Appeal Act 1912 - consequence if appellant found mentally ill on appeal.

appeal against assessment of damages - evidence to support the assessment - no error of law.

NEGLIGENCE: Liability of employer - Departure (or non-departure) from employer's recommended system of work - Extent of employer's duty to take measures preventative of danger - Inherent risk of injury - Adequacy of trial judge's reasons.

Criminal law - Confiscation of criminal proceeds - Recovery - Hardship - Assessment of assets subject to confiscation order - Interpretation of statute - Criminal Assets Recovery Act 1990 ss24, 25, 26 - Meaning of "will" - Assets forfeiture order - Accused acquitted at trial - Felony-Tort Rule - Quantum of order - Method of calculation - Error in calculation.

Appeal re extending caveats until further order of the Court.

CRIMINAL LAW - Application for leave to appeal against sentence - 7 charges of obtaining a benefit by deception - other charges on a Form 1 - whether sentence excessive

Corporations Law. Application to set aside demand under s 459G of the Corporations Act. Demand set aside. No matter of principle

Corporations Law. Application to set aside a statutory demand under s 459G of the Corporations Act. Agreement for payment by instalments - no consideration fee agreement therefore no genuine dispute. Proceedings dismissed.

Appeal against costs assessor's decision - Estoppel - Charge out rates and GST - Photocopying - Calculation of interest - Costs

Costs - Offer of Compromise - Calderbank offer Consent orders - error in lower court judgment

Personal injury - injury at school - Negligence - breach of duty - duty of care - magnitude of risk

CORPORATIONS - voluntary administration - creditors' resolution approving deed of company arrangement - dissenting creditor seeks interlocutory injunction pending determination of claim to have resolution set aside - INJUNCTIONS - interlocutory injunction - foreign plaintiff with no presence in jurisdiction - onus to support undertaking as to damages not discharged

EQUITY - Equitable Doctrines and Presumptions - Resulting trust presumption - Presumption of advancement - Directors of company in liquidation - Land registered in names of directors - Whether purchase price paid by company - Whether resulting trust presumption arose - Whether presumption rebutted

Leave to commence proceedings - viable cause of action - grossly unsatisfactory explanation for delay - deliberate decision - onus not discharged.

Criminal Law and Procedure - appeal against severity of sentences

Criminal Practice & Procedure - assault on police officer in execution of duty - parity - matter capable of being dealt with in Local Court - whether sentence excessive

Objective seriousness of offence - Factors relevant to exercise of appellate discretion - Delay in charging accused.

APPEAL - negligence of employer - causal connection with injury - back injury - congenital condition

Accumulation of sentences - Discount of non-parole period.

JURISDICTION PRACTICE AND PROCEDURE - Whether Supreme Court has jurisdiction under Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) to decide matters of substance in a proceeding transferred to the Court under s.8(1) - whether and to what extent Supreme Court should consider prospects of success in such a proceeding in order to determine whether it is "in the interests of justice" to transfer the proceeding to another Court - INDUSTRIAL LAW - UNFAIR CONTRACTS - Whether Industrial Relations Commission has jurisdiction under s.106 Industrial Relations Act 1996 (NSW) only in respect of contracts the proper law of which is that of New South Wales - whether conflict between decisions of the Full Bench of the Commission and decision of the High Court - HIGH COURT - INDUSTRIAL RELATIONS COMMISSION - Whether privative clause in Industrial Relations Act has effect of making Full Bench of Commission the supreme authority on extent of Commission's jurisdiction under Industrial Relations Act - UNFAIR CONTRACTS - s.106 Industrial Relations Act - meaning of "work in any industry" discussed - CROSS-VESTING - Whether proceedings sought to be cross-vested have sufficient substance to warrant cross-vesting in the interests of justice - whether Supreme Court of Queensland or Supreme Court of New South Wales is the more appropriate forum - significance of contractual provision requiring parties to submit to exclusive jurisdiction of Courts of Queensland.

Summary dismissal - misconceived application - motor vehicle accident - per quod servitium amisit action - triable questions of fact.

Confiscation of criminal assets: proceeds assessment order.

CORPORATIONS - constitution and legal capacity - amendment of constitution to remove provisions oppressive to unfairly prejudicial or unfairly discriminatory against a member or members - CORPORATIONS - miscellaneous cases - oppression - circumstances in which provision in constitution which is oppressive to, unfairly prejudicial, or unfairly discriminatory against a member can be removed - effect of repeal of statutory provision limiting circumstances in which persons of a particular age can be directors of a corporation, on whether provision of a corporate constitution is oppressive to, unfairly prejudicial or unfairly discriminatory against a member or members - CORPORATIONS - management and administration - directors - age restrictions on election - DISCRIMINATION LAW - age restrictions on election of directors - removal from company's constitution under section 233 Corporations Act

The appellant and respondent had driven into town together, where they had a number of drinks at a hotel. Upon their drive home their vehicle ran off the road and serious injuries ensued. Both parties claimed the other had been driving. The trial judge found there was conflicting evidence, but decided there was sufficient evidence, when expert evidence interpreting the injury patterns to the bodies of the parties was assessed, to suggest that the appellant had been driving when the accident occurred. On appeal the appellant argued the trial judge had given insufficient weight, or failed to consider, vital evidence. TORTS- Personal injury- Whether appellant or respondent driving- Question of fact- Grounds on which trial judge's finding of fact may be overturned- Judicial reasoning- Not practical to state each pertinent factor and address every nuance that affects the finding of fact. (ND)

EVIDENCE - Reliability of plaintiff's evidence at trial - Whether trial judge erred in preferring the respondent's expert to the appellant's expert witness - Whether trial judge erred in rejecting the evidence of an expert witness for the appellant - Whether the trial judge should have disbelieved the respondent entirely where respondent lied about certain matters - NEGLIGENCE - Causation - Whether trial judge erred in finding that the work practices followed by the respondent caused her injuries - DAMAGES - Whether trial judge erred in assessment of damages. ND

CORPORATIONS - voluntary administration - whether winding up proceeding should be adjourned - whether provisional liquidator should be appointed

Longman directions - Purpose - Form and content - No specific form of words required - Credibility evidence - admissibility and relevance.

Applications pursuant to Part 31 Rule 7 for concurrent hearings - Civil penalty proceedings applying the rules of evidence and procedure for civil matters (s. 1317L) - Other proceedings in which a contravention of s 184 "criminal offence" is alleged with "criminal intent"

PROCEDURE - Supreme Court procedure - Dispute between partners of terminated partnership - Appeal from Master refusing leave to file further amended statement of claim, striking out amended statement of claim and dismissing proceedings - Issues decided in other proceedings between co-partners to which appellant not party - Whether an abuse of process - Whether subject to res judicata estoppel as privy - Whether appellant bound by findings as to partnership in earlier proceedings - Claim to set aside judgment on basis of fraud - Whether the evidence was newly found - Whether likely to result in changed judgment - Whether appropriate in proceedings against five co-partners when allegations of fraud limited to two co-partners

Criminal law - sentence - appeal - objective circumstances - multiple offences - cumulation - sentence for one offence excessive - sentence reduced.

Criminal Law and Practice - drugs - ongoing supply for financial or material reward - whether evidence that accused received the financial reward on one of the occasions - whether reasonable inference. - Criminal Law - sentencing - special circumstances - longer non parole period to facilitate rehabilitation - need to show that if such a longer period is allowed, rehabilitation will probably be successful.

Criminal Law - sentencing - co-offenders - parity - applicant 3 months younger than co-offender and with 3 less matters on Form 1 - identical sentences - no disparity.

Criminal Law - sentencing - drive manner dangerous causing grievous bodily harm - rage driving - many people in area - provocation - prior criminal record including similar offences - extenuating circumstances - plea of guilty - prospects of rehabilitation

The appellant was working as a cleaner on her hands and knees near a wall. At knockoff time, she quickly stood up and her head hit a white box protruding from the wall for about 50mm. The appellant sued her employer on the basis that it should have supplied her with an extension tube, which would have permitted her to clean whilst standing. The trial judge dismissed her claim. The appeal was dismissed on the basis that the appellant had not demonstrated that her employer had breached its duty of reasonable care. TORT- Personal injury- Workplace injury- Duty of care- "Reasonable care". PROCEDURAL FAIRNESS- Denial of interpreter- Substitution of poor quality photograph with one of a much better quality. (ND)

BANKING - implied term of good faith conduct - threats of acts which if committed would breach implied term - threats anticipatory breach but not actual breach - CONTRACT - implied term of good faith conduct - threats of acts which if committed would breach implied term - threats anticipatory breach but not actual breach - TORTS - intimidation - threat of unlawful action tortious - breach of contract unlawful - threat of breach tortious - TRADE PRACTICES - unconscionable conduct - agreement by Bank to provide further accommodation on terms - customer had no alternative but to accept - conduct of Bank not unconscionable - s 51AA not contravened

Professional confidential relationship privilege - relationship between Part 36 r 13 Supreme Court Rules and Part 3.10 of the Evidence Act

CORPORATIONS - voluntary administration - procedure for convening of second creditors' meeting - curing late convening of second creditors' meeting under section 1322(4) Corporations Act - curing late convening of second creditors' meeting under section 447A Corporations Law and Corporations Act - ability of order under section 447A to cure past defects - powers of chairperson of second creditors' meeting to adjourn - inappropriateness of Court making declarations concerning matter involving judgment or discretion which has been entrusted to Companies Auditors and Liquidators Disciplinary Board - excusing breaches under section 1318 Corporations Act 2001 - what types of breaches can be excused - relieving from civil liability under section 1322(4)(c) Corporations Act 2001 - what counts as "civil liability" - whether declaration should be made about admissibility or relevance of evidence in proceedings in Companies Auditors and Liquidators Disciplinary Board

EQUITY - plaintiffs make proprietary claims against defendants - Court makes Mareva orders against all the assets of two groups of defendants, subject to proviso to permit expenditure on legal and living expenses - Court makes order permitting one group of defendants to deduct legal expenses from fund created by proceeds of sale of asset -order does not protect recipients from plaintiffs' proprietary claims - whether Court should make order permitting other group of defendants to draw on the same fund for legal and living expenses, when those defendants do not claim any interest in the fund

Separate questions - causes of action in contract and tort for nervous shock - are actions maintainable in Cambodia - what law is applicable - inappropriate forum.