Cases and authorities

CORPORATIONS - insolvent trading - where husband and wife sole directors of company - where defence to claim for indemnity if "good reason" exists for non-participation in management of company - where wife accepted appointment as director at husband's request - what constitutes "good reason" for non-participation in management - directors' duties - standard of care and skill required of directors - irreducible expectation of participation in management - whether relevant to "good reason" defence - Corporations Act 2001 (Cth) s 588FGB - STATUTORY INTERPRETATION - ejusdem generis rule - whether relevant to "good reason" defence - whether denotation of "good reason" altered due to abolition of requirement of two directors - Corporations Act 2001 (Cth) s 588FGB

SUCCESSION - family provision - whether provision made for widow was inadequate - what is a proper provision for widow of wealthy barrister - award should not be niggardly where widow has need and there are no competing claims of children. D

Unlawful detention by constable - subsequent assault - whether evidence of assault admissible - s183 Evidence Act 1995 - meaning of "obtained" - causation - natue of discretion

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Nature of evidence required - Need to fund litigation.

Appeal - Magistrate has regard to material not admitted into evidence - variation of contract of employment - consideration and estoppel.

injury in the course of employment - employment agency agreement - liability of the Bank - cause of collapse of shelf - negligence - foreseeability - preventability - damages - Plaintiff's history - diagnosis - quantification of damages - general damages - out-of pocket expenses - psychological treatment - orthopaedic treatment - general practitioner - future medication - occupational therapy - physiotherapy - future travel - economic loss - superannuation - domestic assistance - modifications to the Plaintiff's home - 1st Cross-claim (amended): the Bank v Adecco - particulars of negligence - contract claim against Adecco - 2nd Cross-claim: Adecco v Commercial Union

Appeal - nuisance - harassment - title to sue - causation - quantum and costs.

Succession - Family Provision - Claim by exnuptial child - Proceedings out of time - Plaintiff a disable person, being intellectually retarded from birth - Financial and material circumstances of Plaintiff - Future needs of Plaintiff - Competing claims of beneficiaries.

Corporations - liquidation - leave to proceed - appeal from Master's discretion - admission and effect of fresh evidence having regard to s.75A of the Supreme Court Act and House v The King - effect of real prospect a proof of debt would be rejected necessitating litigation in any event - large, complex and serious claim - obligation of Court exercising discretion to give reasons that explain the basis of the decision - effect of need for discovery and interrogatories - question of security for costs raised on leave application - appeal allowed subject to conditions - appropriate costs order

CRIMINAL LAW - appeal against severity of sentence - using an offensive weapon with intent to prevent a member of the Police Service from investigating an act reasonably calling for investigation - discharging a firearm in a manner likely to endanger the safety of others - importation of cocaine into Australia. Appeal dismissed.

CRIMINAL LAW - appeal against severity of sentence - Robbery - whether offence of bag snatching of utmost gravity - consideration to age and efforts to rehabilitate.

Crown Appeal - two offenders - same charges - different objective facts in relation to each offender - no question of parity - manifest inadequacy with respect to one offence - delay of Crown in filing appeal - discretionary considerations

Damages - most extreme case - severe electrical burns - gross deformities - amputation - cost of prostheses

Practice - Procedure - Consent to tender of documents - Application to withdraw consent - Power of court - Inherent jurisdiction - Discretion - Criteria for exercise - Interests of justice - Fair trial of action - Status quo - No actual prejudice - No evidence of possible prejudice - Claim as to possible prejudice - Conscious and deliberate decision by experienced and competent counsel - Reasons for exercise of discretion appropriate notwithstanding that the moving party does not require reasons.

CRIMINAL LAW: sentence - attempted murder.

CHURCHES AND RELIGIOUS ASSOCIATIONS - expulsion, suspension and disqualification of members - construction of rules of local church-school community - rule stating that members of community are "only" certain "members" of church - rule stating that certain persons "ineligible for membership" of community - status under rules of existing members later sentenced by church court to excommunication for a period - effect on church membership of church by-laws defining nature and consequences of excommunication - APPEAL - decision of master after referral by judge - whether appeal to Court of Appeal or to single judge - whether subject of referral to master was "trial or hearing of proceedings" or "matter" - APPEAL - extension of time for appeal - appeal instituted within time but by wrong process and to wrong court - correct process filed out of time - whether time should be extended

COSTS - costs in the cause and plaintiff's costs in the cause - general principles - multiple interlocutory applications

Damages - severe burns - plaintiff given light work - light work abandoned before trial

Conveyancing - rectification - ommission in drafting and execution of contract whether common intention as to land to be conveyed - whether land to be conveyed described with sufficient certainty - ND

CORPORATIONS - winding up - unfair preferences - single proceeding against multiple defendants - whether Court should order separate trial or determination of separate question in respect of first defendant only PRACTICE & PROCEDURE - order for separate trial under Pt 8 r 6 - when appropriate

EQUITY [1] - General principles - Rules and maxims of equity - "Clean hands" - Misconduct disentitling party to relief - Must have immediate and necessary relation to equity sued for - "He who seeks equity must do equity" - Rights not related to obligations between parties to action.

Negligence - claim for damages by employee against employer - whether the employee suffered "injury" within definition of "injury" in s3 of the Motor Accidents Compensation Act 1999 - whether, if fault by employer, "injury" was caused during the use of the vehicle by a defect in the vehicle - whether summary determination of issue appropriate.

CORPORATIONS - liquidation and voluntary administration - administration under deed of company arrangement - fund is established under deed but not distributed before company goes into liquidation - whether fund is held solely for deed creditors, or for all creditors including post-deed creditors

CRIMINAL LAW - sentencing - multiple counts of aggravated sexual assault - pleas of guilty after lengthy voir dire - application to withdraw pleas - challenge to evidence on sentence - utilitarian value of guilty pleas - willingness to facilitate the course of justice - no discount for pleas of guilty - whether less severe sentence warranted.

severity of sentences - pleas of guilty - subjective circumstances - application for leave to appeal

CRIMINAL LAW - Crown appeal against sentence - Whether sentence manifestly inadequate - No error of principle in sentencing process. ND

Proceedings in Dust Diseases Tribunal - appeal from Tribunal only in point of law. South Australian parties, tort and venue - appeal if action in South Australian court not so fettered - whether in those circumstances Tribunal had no jurisdiction - or alternatively whether is unfettered right of appeal from Tribunal - distinction between jurisdiction and choice of law - no conflicting exercise of appellate jurisdiction - s118 of Constitution had no relevant application -- in any event appellate rights procedural and South Australian appellate rights did not arise - answers no. Whether New South Wales legislature lacked competence to invest the Tribunal with extra-territorial jurisdiction defined by the limited right of appeal - no offence to federal structure - answer no. Adjournment if proceedings involve a matter arising under the Constitution - whether proceedings in Tribunal did so - whether error in declining to adjourn proceedings - analysis of issue raised - answers no. Application for stay on forum non conveniens grounds - based on inherent jurisdiction - stay declined - on appeal error asserted in exercise of jurisdiction under Service and Execution of Process Act - query whether open so to assert - whether stay should have been ordered - on either basis no error. Forseeability of risk from exposure to asbestos - whether question of exposure to quantities below then accepted exposure standard or question of any low level of exposure - on existing authority, the latter - no error in Tribunal's approach. Findings of breach of duty of care - various findings challenged - not appeal in point of law.

SUCCESSION - WILLS PROBATE AND ADMINISTRATION - probate and letters of administration - rectification of wills - testatrix causes destruction of will mistakenly believing it will cause earlier will to revive

Family Law. Application under Property Relationships Act 1984. Whether plaintiff's conduct in falsifying her evidence distentitled the plaintiff from relief. Held that in the circumstances of this case it did not. Order for adjustment made.

STATUTES - interpretation - Crown immunity - "statutory body representing the Crown" - LANDLORD & TENANT - application of legislation - residential tenancy - WORDS & PHRASES - "statutory body respresenting the Crown"

CRIMINAL LAW - driving offences - Children's Court - findings of guilt - whether "conviction" - power to disqualify from holding driver licence - WORDS & PHRASES - "conviction"

Practice and procedure - whether two causes brought by plaintiff should be heard together - whether separate trials on liability should be ordered in each case - whether jury should be dispensed with.

LEGAL PRACTITIONERS - cancellation of practising certificate - appeal from grant of stay pending appeal against cancellation - where cancellation for taxation offence and failure to notify - where income tax returns not lodged for 20 year period - whether relevant to exercise of discretion under Legal Profession Act 1987 - whether proceedings to strike practitioner off the Roll relevant to Court's discretion on stay application - Legal Profession Act 1987, ss 38FC, 38FD

TAXES AND DUTIES - Income tax and related legislation - Liability of directors to penalty for PAYE deductions not remitted to Commissioner of Taxation - Construction of penalty and defence provisions - Continuing obligation - Income Tax Assessment Act 1936 (Cth), s 222AOB, s 222AOC, s 222AOD, s 222AOJ

PRACTICE AND PROCEDURE - Admission of fresh evidence - Supreme Court Act 1970, ss 75A(8) and 75A(9) - Failure to plead a positive case - The surprise rule. D

TORTS - Negligence - General Matters - Appellant struck when a steel arm attached to a steel mesh garage door broke free - Door attended to from time to time by second defendant - Whether the principle in Wyong Shire Council v Shirt was applied - Whether insufficient weight was given to earlier occasion when chain detached from the door and struck a motor vehicle - Whether defect in chain rendered it unnecessary to establish foreseeability of a risk of injury from a porous weld on the steel arm - Whether the respondent should have sought a second expert opinion - Whether the respondent should have entered into a maintenance agreement with respect to the garage door.

DEFAMATION - express statutory protection under Freedom of Information legislation does not cover original publication to public official - FREEDOM OF INFORMATION - express statutory protection for publication of defamatory matter does not cover original publication to public official

Creditors - Personal guarantee for monies "due and payable" - Deed of Administration - moratorium on enforcement proceedings against company - whether debt still "due and payable"- whether guarantee still operative (D)

NEGLIGENCE - Plaintiff struck by the respondent's vehicle at pedestrian crossing - Whether the appellant was negligent in failing to install supplementary lighting at the pedestrian crossing - Whether the respondent was negligent in driving at 45 to 50 kilometres per hour in dangerous weather conditions - Whether the appellant's negligence caused or contributed to the accident. ND

Practice and procedure - application to dismiss proceedings commenced by statement of claim - pleading defective - application under Pt 13 r 5 SCR and under Pt 15 r 26 - whether summary dismissal appropriate and whether proceedings an abuse of process.

Application for certificate pursuant to Costs in Criminal Cases Act 1967 - applicant pleaded guilty to various offences - charge of murder then "no billed" - meaning of expression "commencement of a trial" in the Act.

MORTGAGE [16]- Equitable mortgage- Promise to grant mortgage- Money actually lent- Interest rate over 60%- Whether excessive- Effect of high interest rate on equity granting specific performance to mortgagee- Significance of repeal of usury laws. MORTGAGE [66]- Marshalling- Bank holding mortgage over land and business- Plaintiff holding mortgage over land only- Doctrine applies.

Short minutes - interest - verdict sum

EQUITY - resulting trust - no general presumption of advancement between siblings - siblings provided purchase moneys - another sibling lived in property - whether presumption of resulting trust rebutted

Knowingly take part in manufacture of prohibited drug - more than transportation must be proved - conviction quashed - deemed supply of prohibited drug in liquid form and not able to be readily supplied - extent of penalty.

PRACTICE AND PROCEDURE - Notice of Motion seeking discharge of judgment of the Court of Appeal - where application effectively seeking review of judgment - where discretion to review to be exercised in accordance with overriding purpose of Supreme Court Rules - where substantive proceedings at interlocutory stage - whether Court should exercise discretion to review judgment.

Subpoena duces tecum - unknown whether documents may assist party issuing - whether fishing - legitimate forensic purpose - accuracy of speed camera - whether documents concerning complaints producible - meaning of "on the cards"

CORPORATIONS - winding up in insolvency - statutory demand - genuine dispute - offsetting claim - need for quantification of claim - imposition of condition that offsetting claim be pursued