Cases and authorities

Workers Compensation- Personal injury- Workers Compensation Act 1987, s 10- Journey provisions- Detour- Deviation- Interruption- Material increase in the risk of injury- Onus of proof to disprove material increase in risk on worker- Prima facie case that no material increase in risk then onus shifts to employer to prove there was an increase- Injury in NSW on return journey to place of abode in Queensland- Areas of knowledge in which the Workers Compensation Court has "expert knowledge"- Rules of evidence for Workers Compensation Courts. (D)

PRACTICE AND PROCEDURE - fundamental difficulty with notice of appeal - no jurisdictional basis for relief sought - PRACTICE AND PROCEDURE - fundamental difficulty with pleadings - relevant party not joined to proceedings - where even if relief could and should be given unable to do so because the relevant party not joined - ENVIRONMENTAL AND PLANNING LAW - whether requirement that the person making a report on site contamination be independent - whether any requirement in the Environmental Planning and Assessment Act or Regulations - whether any requirement in ANZECC or EPA guidelines - whether any requirement in condition attached to development consent - COSTS - where claimant wholly successful at first instance - whether conduct at relevant time disentitled the successful claimant to an order for costs in the case at first instance - whether claimant's actions amounted to disentitling conduct

CORPORATIONS [318] - Supervision, regulation and correction - Examinations - Scope of examination - Matters for inquiry - To establish whether if litigation were successful money or property may be recoverable.

PRACTICE & PROCEDURE - COMMERCIAL ARBITRATION - JUDICIAL DISCRETION - whether leave to appeal Arbitrator's Award should be granted pursuant to s 38(4)(b) of Commercial Arbitration Act 1984 (NSW) - whether Arbitrator failed to properly construe terms of Award - whether Arbitrator erred in law - whether Arbitrator failed to give any or adequate reasons - whether manifest error on face of Award under s 38(5)(b)(i) - whether leave should be refused on discretionary grounds - HELD - leave to appeal refused

RESTITUTION - whether Defendant developer was unjustly enriched - "free acceptance" - where Plaintiff's services were neither volunteered nor provided "officiously" - whether Defendants, as reasonable persons, would have realised that the Plaintiff expected to be paid - Referee's conclusion supported by chain of correspondence - CONTRACT - Responsibility for payment to third party power supplier - Plaintiff's obligations under Design and Construction Contract-where Defendant purported to make payment on behalf of Plaintiff - whether Defendant was entitled to deduct that amount from its total payment to Plaintiff - PROCEDURAL FAIRNESS - whether unjust to now allow Defendants to raise claim - where matter already addressed by Plaintiff before Referee and ruled upon in Defendant's favour - mathematical oversight of Referee

EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience - Injunction to restrain picketing - Form of restraints.

CRIMINAL LAW: Appeal against sentence - affray - agreed facts - whether sentencing judge influenced by matters not in evidence - young offenders - whether sentence excessive - whether special circumstances should have been found.

Workers' Compensation - error of law - Commissioner and later trial judge found that an alleged assault in the workplace had not taken place and that the appellant was not suffering from post traumatic stress disorder - new hearing ordered on the basis that the Commissioner had failed to address the broader case that the appellant was suffering from general psychological injury due to the nature and circumstances of work - Court of Appeal in obiter stated the question of assault and post traumatic stress disorder could not be revisited in the new hearing - in new hearing judge considered himself bound by earlier statements of the Court that questions of assault and post traumatic stress disorder would be excluded from consideration in the new hearing - whether judge erred in failing to consider and determine the appellant's claims in regards to assault and post traumatic stress disorder - whether s17(1) and (4) of the Compensation Court Act mandated a hearing of all the appellant's claims - appeal dismissed with costs. ND

DEFAMATION - malice - answer to public attack - media's knowledge of falsity of answer and malice of target capable of establishing malice in media - DEFAMATION - qualified privilege - television station orchestrating confrontation entitled to derivative privilege of target

Negligence - failure to repair leaking roof after severe storm damage - effect of Defendant's reliance on agent to investigate complaints - Plaintiff slipping on wet stairs - question of fact - no contributory negligence

Appeal decision of Local Court Magistrate - Averment under Excise Act

ENVIRONMENTAL LAW - LOCAL GOVERNMENT - Town planning - Existing use - Description of existing use - Relevance of definition of "large marina" in subsequent planning instrument - Generality of description - Whether use as marina excluded by use as public waterway - Extent of actual and physical use, where large area required for use but less than that area physically occupied at any one time.

Appeal decision of Local Court Magistrate - insurance - wilful misconduct

APPEAL FROM LOCAL COURT - DETERMINATION BY MASTER - ABSENCE OF CONFERRAL OF JURISDICTION - VALIDATION BY SUPREME COURT ACT - FURTHER APPEAL TO SINGLE JUDGE - COMPETENCY - WHETHER ISSUE BEFORE MAGISTRATE A QUESTION OF FACT

CORPORATIONS [228]- Winding up- Application not heard within six months- Power to excuse default in not applying for extension- Operation of s 459R of the Corporations Act 2001. PROCEDURE [487]- Slip rule- Inherent power akin to slip rule to deal with matters overlooked by solicitors- Whole history of case to be considered when exercising power to excuse.

Negligence - Damages - Allowance for care

LOCAL COURT - COMMITTAL HEARING - SUPPRESSION OF DEFENDANT'S NAME AND/OR PUBLICITY - SUPERVISORY JURISDICTION OF COURT - ORDERS SOUGHT UNAVAILABLE

CONVEYANCING - matters between contract and completion - contract conditional on vendors obtaining building certificate - previous finding that vendors did not take all reasonable steps and that their breach caused non-issue of certificate - further evidence upon re-opening after judgment - judgment shown to have proceeded on factual misapprehensions as to Council's position and requirements - finding of causation no longer justified

Customs and Excise - Prosecution - Stay of proceedings

Application for leave to appeal - s151C Workers Compensation Act - applicant sought to have proceedings dismissed on the basis of failure to disclose a reasonable cause of action - leave refused - ND

CRIMINAL LAW - BAIL - CONVICTION IN DISTRICT COURT - INTENTION TO APPEAL - BAIL ACT 1978, S30AA - "special or exceptional circumstances" - appeal must be most likely to succeed - intended appeal not of this category - bail revoked (ND)

CONTEMPT OF COURT - restraint of pre-trial publicity - protection of fairness and integrity of criminal trial - interlocutory relief - refused - leave to appeal refused

NEGLIGENCE - Vicarious liability - Liability of independent contractor - Failure to prove that the person who caused injury was an employee or independent contractor. ND

LEAVE TO APPEAL - Small amount of damages - Serious factual dispute - Difficulties with proving the claimant's case at trial - No important point of principle - Summons dismissed. ND

Evidence - Report of events at a meeting - Section 135, Section 136 discretionary provisions

Admission by conduct - assessment of damages - unreliability of testimony - exaggeration - failure to mitigate.

PROCEDURE - summary dismissal - whether plaintiff's claims devoid of substance - CONTRACT - offer and acceptance - course of correspondence - whether lapsed offer could be regarded as renewed - whether specified manner and form of acceptance could be found to be non-compulsory

LOCAL GOVERNMENT [125]- Council- Stormwater pipe- Right to maintain drainage works. REAL PROPERTY [409]- Quasi easement- Consent of predecessor in title- Drainage scheme. STATUTES [15]- Confiscatory Act- How construed. TORTS [169]- Nuisance- Defence of necessity- Coming to the nuisance. WORDS AND PHRASES- "Installed"- "Watercourse"- Difference between a watercourse and a stream or river.

Succession - Family Provision - Intestacy - Claim by infant son (aged sixteen) - Financial and material circumstances of Plaintiff - Plaintiff suffers from muscular dystrophy - Special needs of Plaintiff - No other person entitled upon intestacy advances a competing claim to that of Plaintiff.

FAMILY PROVISION ACT - orders - interpretation of order in [1999] NSWSC 1165

CHARITIES - Charitable purposes generally - trust to be performed in foreign country - gift in will "to pay the net proceeds ... to my niece DM of Jerusalem, Israel, for the purpose of setting up a trust recognized by Israeli law for the neurologically impaired and the communicatively handicapped" - on the evidence, if the money were paid to the niece the purpose was enforceable in Israeli law - no purpose beneficial to public of NSW was necessary - executor was entitled to rely on receipt by niece.

Assessment of damages - workplace injury - subject to ss 151G and 151H of Workers Compensation Act - claimed against all three defendants - only one likely to have been employer - judgment should have been against only one - should have been agreement on or determination of which was liable - judge assessed 22 per cent of a most extreme case - said from "the table" meant damages of $32,500 - table with those figures not a table as to percentages of extreme case - was table of degrees of permanent impairment - judge's reasoning could not be seen - but on probabilities there was flawed arrival at 22 per cent - return for correction under slip rule not available - new trial as to damages.

Actions for personal injuries brought in District Court - one defendant not properly named - statements of claim found not to have been served on defendants - actions not prosecuted in timely manner - no praecipes for trial filed - deemed dismissals under Pt 12 r 4C of the District Court Rules - applications to rectify position as to parties and service and rescind dismissals - whether statements of claim had been served - whether validity of statements of claim for service should be extended - whether dismissals should be rescinded - test of whether fair and just - overwhelming prejudice to defendants in defending plaintiff's claims - applications should be dismissed. D

Proceedings in District Court - orders that particulars be provided - failures to provide particulars - dismissal orders under Pt 18 r 3 of the rules - preliminary dismissal orders open to be set aside under Pt 1 r 7A(5) - applications made but after the 28 day period in the rule - orders made - appeals by leave by two defendants - cross-defendant made late application seeking to appeal - standing of cross-defendant - whether should be permitted to appeal - should be permitted because would not put plaintiffs further at risk - whether time properly extended - whether orders setting aside dismissal orders properly made - discussion of significance in application under Pt 1 r 7A(5) of explanation excusing the original failures - and in application for extension of time - held error not shown in exercises of discretion. D

Administrative law - Practice and procedure - Application to strike out part of statement of claim - Denial of natural justice - Ambit of judicial review

FAIR TRADING ACT - STATUTORY INJUNCTION - FOREIGN CORPORATIONS AND INDIVIDUALS FORWARDING MAIL TO NEW SOUTH WALES - DECEPTIVE AND MISLEADING CONTENT - INTERCEPTION OF MATERIAL - PREVENTION OF LOSS BY POTENTIAL VICTIMS - DECLARATORY RELIEF - UTILITY OF FURTHER ORDERS

CORPORATIONS - unregistered managed investment scheme - moneys paid to operator of unregistered managed investment scheme still held as unpresented bank cheques when winding up of operator commenced - liquidators of operator also appointed liquidators to wind up scheme - whether bank cheques or quarantined proceeds should be restored to investors - where no contracts had been made with would-be investors - where contracts had been made with investors - contraventions of managed investment scheme provisions and of prohibition upon soliciting investment in debentures without disclosure document - whether liquidators justified in proceeding on basis of past fraudulent misrepresentation - statutory illegality - restitution

PROCEDURE - Supreme Court procedure - application for advance payment under s.76E of Supreme Court Act - whether declaration that defendant liable to pay to plaintiff under contract a sum calculated in a specified way was made in "proceedings for the recovery of damages" - meaning of "damages" - distinction between damages and debt

REAL PROPERTY - strata and related titles and occupancy - air conditioning unit servicing one lot - some components within lot others within common property - District Court action by lot owner against persons allegedly responsible for defects in air conditioning system - need for owners corporation as party to proceedings - CORPORATIONS - bodies corporate other than companies and associations - owners corporation constituted by strata titles legislation - applicability of "proper plaintiff rule" - whether Supreme Court can make orders enabling lot owner to pursue derivative claim for owners corporation in District Court - auxiliary equitable jurisdiction - imperfect analogy with company - imperfect analogy with trustee - fifth "justice" exception to Rule in Foss v Harbottle

CONVEYANCING - alleged breach of contract - whether contract supplemented by oral term that vendor would deliver original letter from Council to purchaser before completion - whether oral agreement to defer date fixed for completion - no question of principle

Evidence - Procedure - Legal professional privilege - Evidence Act 1995 section 122(2), 122(3) - Waiver of client legal privilege by employee or agent - managing director makes disclosure under cross examination - Counsel for party fails to apply to have non responsive answer stating substance of the advice struck out - Party held to have knowingly and voluntarily disclosed substance of the evidence

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - whether agreement reached for settlement of litigation - significance of statement to court that litigation settled

appeal against severity of sentence - factual error - sentence imposed manifestly excessive - benefit for a plea of guilty - "top-down sentencing"

CRIMINAL LAW - Appeal against conviction and sentence - murder - whether evidence of mental disorder relevant to intent - whether sentence excessive - examination of pattern of sentence for "relationship" murder

application to appeal against severity of sentence - proportionality - "double punishment" - sentences manifestly excessive

appeal against sentences - plea of guilty

Summary judgment - Secutiry for costs

Appeal - review of decision of Senior Deputy Registrar - whether plaintiff should provide or propose evidence from witnesses

Pleadings - whether summons should be stayed or dismissed - declaratory orders