Cases and authorities

Liability - negligence - delay - no question of principle.

COSTS - longstanding dispute over various discovery issues - plaintiff asserted no obligation to obtain documents in possession of third parties for discovery to defendants - consent orders made giving substantial success to defendants - whether plaintiff should be required to pay defendants' costs of application - whether plaintiff should reimburse defendants for their costs and expenses liabilities to a third party

Dismissal from civic office - irregularity in the manner of election to office

Succession - Family Provision - Intestacy - Claim by adult son - Financial and material circumstances of Plaintiff - Conduct of Plaintiff constituted a direct financial contribution to the Deceased, and also to the value of the estate - Competing claims of other persons entitled to share intestate estate - Such persons are widow and infant exnuptial child of Deceased - Additional provision for Plaintiff should be borne by the share of residue to which the widow is entitled upon intestacy - A claim under the Family Provision Act is not an administration suit in respect to the estate of the Deceased.

PRACTICE AND PROCEDURE - CONTRACT - COMMERCIAL ARBITRATION - Application for leave to appeal Arbitrator's Award - Whether manifest error on face of Award - Whether requirement of s 38(5)(b)(i) met - HELD - Leave refused - Order summons be dismissed - Whether Referee's report should be adopted by Court - HELD - Report adopted Pt 72, r 13(1)(a)

Crown appeal against refusal to make forfeiture order - respondent found in possession of cash - convicted of serious drug offences - appeal allowed.

Appeal - negligence alleged - primary facts as found by trial judge not in issue - ground of appeal asserting lack of sufficient reasons withdrawn - two friends drinking and playing poker machine at RSL Club for several hours - jackpot! - verbal argument about sharing winnings - closing time - doorman escorted them from premises - each man lived within walking distance of Club - appellant's friend let argument drop and started walking away - appellant ran after him, swung a punch and missed - appellant lost balance and fell to ground injuring himself - Club employees had no reason to believe verbal argument might escalate - whether Club was negligent - appeal continued after and despite South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 - hopeless appeal. (ND)

Relationship of solicitor and client - Return of documents at request of client - Non-compliance with client's instructions - Solicitor de son tort - Vicarious liability - Mitigation of damages - Onus on appellant to prove possibility and efficacy of mitigatory conduct - Doubtful litigation not required to be embarked upon.

Contracts- Meaning of "successful"- Conditions to a contract- Construction of commercial contracts- Rules of legal interpretation- When pre-contractual material is admissible to aid construction of a contract- When post-contractual material is admissible to aid construction of a contract- Significance of substitution of contracting parties- "Surrounding circumstance" evidence regarding contracts- Dictionary principle- Frustration of contract. Inducing breach of contract- Companies controlled by common directors- Whether in same position as conspiracy between company and its directors- Held analogy inappropriate- Mere failure by common directors to take steps which might prevent a breach of contract does not constitute inducing a breach. Damages- Gross uncertainty regarding damages due to the absence of evidence should be resolved adversely to the party who could and should have called that evidence- Calderbank letter- How far relevant when one party succeeds as to 80%- Indemnity costs- Cross claim for costs. (D)

TRADE PRACTICES AND RELATED MATTERS - Consumer Protection - Whether "in" trade or commerce in s 42(1) of the Fair Trading Act 1987 requires present commercial activity - Whether prospective commercial activity is sufficient - PROCEDURE - Supreme Court procedure - Principles applicable to appeal from a Master to a single Judge - Appeal from decision not to strike out portion of statement of claim - Application for leave to amend statement of claim to allege present commercial activity

Criminal law - committal proceedings concerning prescribed sexual offences - whether evidence of sexual experience of complainant admissible - Criminal Procedure Act, s 105 - requirement for attendance of complainant and witnesses for cross examination at committal - whether "special reasons" and "substantial reasons" exist - Justices Act, s 48E(2)(a) and (2)(b) - necessity for reasons to be expressed.

SUCCESSION - Executors and Administrators - Title and estate of - Official Trustee in Bankruptcy as administrator of bankrupt executor's estate wishing to sell land - Whether land devised to executor held executorially or beneficially before executor declared bankrupt - Whether mechanisms in the Wills, Probate and Administration Act 1898, s 46E(1)(a) and s 83(1) and the Trustee Act 1925, s 11(1) permissive only - Whether mechanisms apply where executor and beneficiary are one and the same

Interest on judgment when lengthy period between accrual of cause of action and commencement of proceedings - costs - jury's verdict lower than amount stipulated in Pt 52A r 33(2)(e) - whether that rule applies - whether the plaintiff had sufficient reason for continuing proceedings in the Supreme Court - jury's verdict lower than defendant's Calderbank offer - whether plaintiff's failure to reject offer was unreasonable - plaintiff ordered to 50 percent of defendant's costs on a party and party basis.

Practice and Procedure - subpoenas - public interest - whether public interest in privacy of blood donor identity outweighed by plaintiffs right to bring their actions -

Corporations - directors - breach of fiduciary duties - Corporations Law, s232(6)-Corporations Act 2001, s182 - money transferred to company in which directors had an interest - knowing receipt within Barnes v Addy (1864) LR 9 Ch App 244 - personal and proprietary remedies - remedial constructive trust - whether rescission necessary (D)

appeal against conviction - Crown appeal against inadequacy of sentence - intending to induce potential witness to give false evidence in a judicial proceeding - periodic detention

Defamation - jury rejects all pleaded imputations - appeal - whether findings perverse - extent of new trial (ND)

MOTOR ACCIDENTS ACT 1988 - Section 52(4) - Commencing proceedings out of time - Whether the claimant provided a full and satisfactory explanation for delay - Whether the claimant demonstrated a lack of forensic diligence - Whether it would be unjust to the opponent to allow the matter to be pursued anew. ND

Costs of Appeal- Rejection of pre-trial offer of compromise- Does offer at trial continue to have cost consequences for an appeal- Supreme Court Rules Pt 52A r11- Discretion as to costs- Damages appeal- 16 heads- Appellant succeeds on half- Substantial reduction. (D)

Wills, probate and administration - contested probate proceedings - costs - testator suffered stroke - whether party unsuccessfully opposing probate should have costs out of estate. (D)

Immaterial averment - imputations - republication - particulars of aggravated damages

Contract - Construction - Conditions precedent proper versus conditions subsequent to performance - Uncertainty - Incompleteness - Relief - Declarations - Utility

Defamation - issues for jury - s7A Defamation Act 1974 - issues of fact in respect of republication not for jury

Tort - Duty of care - liability of Department of Corrections for injuries caused following escape of prisoner from gaol - reasonable foreseeability - policy - special relationship - special knowledge - control

Discovery - issue of falsity of imputations going to aggravated damages - SCR Pt 23 - the "Tabe" discretion

Offences against Financial Transaction Reports Act - offender a practising chartered accountant and registered tax agent - woman knowingly concerned in husband's offences - favourable subjective circumstances - appeal against severity of sentence of full-time imprisonment dismissed.

CRIMINAL LAW - application for leave to appeal against interlocutory orders - refusal to grant permanent stay of retrial - refusal to order production of documents on subpoena - relevant considerations on stay application

Court - apprehended bias - administrative review of ICAC decision - whether issues suitable for acting judge to hear (ND)

Conduct of trial judge after reservation of judgment - Reasonable apprehension of bias - Judge's wife shareholder in firm of which plaintiff's solicitor was director.

Defamation - defence of contextual truth - form of contextual imputations - capacity - whether differ in substance from plaintiffs' imputation - whether capable of satisfying s16(2)(c) - causing additional harm to plaintiffs' reputation - determining that issue by reference to particulars of truth rather than contextual imputation

Procedure - adjournments - principles - application allowed - Costs - application for costs to be paid forthwith - application refused

Criminal law - Evidence - Cross-examination of accused - Matters collateral to facts in issue - Where beyond bounds of legitimate cross-examination to credit

EASEMENTS AND RIGHTS OF WAY - right of way appurtenant to church property granted in 1856 - obstruction of right of way by closing of access, creation of gardens, construction of garage door, and parking of vehicles - whether evidence showed that right of way was abandoned at general law or should be extinguished under s 89(1)(b) Conveyancing Act - RIGHT OF WAY - EXTINGUISHMENT - whether right of way should be deemed obsolete so as to justify extinguishment under s 89(1)(a) Conveyancing Act - RIGHT OF WAY - REASONABLE USER - whether continued existence of right impeded reasonable user of servient tenements without securing practical benefit to the owner of dominant tenement, so as to justify extinguishment under s 89(1)(a)

EQUITY [424]- Remedies- Administration suit- Whether court can authorise interim distribution pending litigation- Duties of trustees.

Personal injury - contributory negligence - assessment

De facto relationship - commencement of relationship - factors determining - nature of relationship - significant financial contributions by one party - both parties employed during relationship - no children of relationship - non-financial contributions - whether defendant worked for plaintiff's company - post separation contributions - exclusive occupation by one party - whether a contribution by other party - resulting trust - whether common intention established to rebut the presumption

Courts Practice & Procedure - Administrative Law List - Practice Note No. 119 - power of judge to order decision maker to provide reasons for decision - validity of Practice Note

CRIMINAL LAW - sentencing - Crown appeal - supply prohibited drug (cannabis)

SENTENCE APPEAL - offence under Rural Fires Act 1997 - offender diagnosed with psychiatric conditions - "special circumstances" under s44(2) of the Crimes (Sentencing Procedure) Act 1999 - length of non parole period - the existence of "special circumstances" justified further shortening the non parole period.

ATTEMPT TO INTIMIDATE COMMONWEALTH OFFICER - INGREDIENTS OF OFFENCE - TRIAL - APPROPRIATE DIRECTIONS TO JURY - UNTENABLE GROUNDS OF APPEAL - NO SPECIAL POINT OF PRINCIPLE

Removal of practitioner's name from medical register - Capacity to practice - Unsatisfactory professional conduct - Apprehension of bias - Errors of law - Errors of fact - Procedural unfairness.

NEGLIGENCE- challenge to Trial Judge's findings of fact - causation - contributory negligence - duty and standard of care of a highly experienced cyclist - NEGLIGENCE - assessment of damages - whether Trial Judge's discretionary assessment of damages should be set aside

Corporations Law - Application for leave to cross claim against company in liquidation - Discretion to grant leave - Associated curial proceedings

Corporations Law. Application to set aside statutory demand. Demand set aside. No matter of princiiple.

TRUSTS - constructive trusts - arising on termination of de facto relationship - effect of payments being made from joint bank account for purposes for which both parties approve - effect of one partner owning property prior to commencement of relationship, the equity of which is increased during the relationship - whether constructive trust can be imposed on property not the home in which parties lived - effect of improvements being made to home in which parties lived - FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - other matters - imposition of constructive trust on termination of relationship - EQUITY - equitable estates and interest - joint bank account - rights of account holders to money in account, money withdrawn from account, and property purchased with money drawn from account - EVIDENCE - miscellaneous matters - Browne v Dunn (1893) 6 R 67 - effect of failure to cross examine on evidence contained in affidavit served on opposite party before trial, and replied to by that party

PROCEDURE - miscellaneous procedural matters - Anton Piller order - form of order - need for Supervising Solicitor - need for plaintiff to be able to obtain person to act as Supervising Solicitor - other matters relevant to form of order