Cases and authorities

PRACTICE & PROCEDURE - re-open appeal - Supreme Court Rules 1970, Pt 51 r26 - application for temporary stay pending special leave application -

LIMITATION OF ACTIONS - Motor vehicle accidents - Leave to commence proceedings out of time - Full and satisfactory explanation for the delay - Whether by claimant or persons acting on her behalf - Provision of particulars - Denial of liability - Whether proceedings can be commenced notwithstanding non-supply of particulars.

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - Agreeemnt that terms of General Conditions prevail over terms of Tender - Whether provision for "reasonable rates and prices" in General Conditions displaces quantification in Tender.

PRACTICE AND PROCEDURE - STAY OF PROCEEDINGS - INTERLOCUTORY APPLICATIONS - ABUSE OF PROCESS - Proceedings struck out of list for Plaintiff's default in complying with Court's directions - application to restore dismissed because default had not been rectified - Plaintiff makes second application to restore after default rectified - whether second application is an abuse of process - principles discussed - Nominal Defendant v Manning (2000) 50 NSWLR 139 explained and distinguished. HELD: As a general rule: - (i) when proceedings have been struck out under Part 13 r.3 of the District Court Rules or stayed under Part 33 r.6 of the Supreme Court Rules an application to restore the proceedings or lift the stay should only be made when the Plaintiff's default has been cured - (ii) if an application is dismissed because the Plaintiff's default has not been cured, a second application made prior to the default being cured will usually be dismissed out of hand as an abuse of process because there will have been no relevant change of circumstance since the first application - (iii) a second application made after default has been cured cannot be regarded as an abuse of process because there will have been a change in the circumstance which led to the refusal of the first application - (iv) there may be exceptions to the general rule but, in reality, such cases are difficult to conceive and will necessarily occur very rarely.

No question of principle

CORPORATION - winding up - test of insolvency - proof by evidence of provisional liquidator - plaintiff's reliance on his opinion that an asset was not readily realizable - effect of provisional liquidator's prior involvement in the affairs of the company.

PROCEDURE - costs - assessment of costs by costs assessor - appeal against assessment - PROFESSIONS AND TRADES - legal practitioners - basis of retainer - "pro bono" - "no win/no pay" - right to be paid by client - estoppel - quantum meruit - APPEAL AND NEW TRIAL - nature of appeal by "new hearing" - alternative avenue of review by specialist panel - criteria for leave to appeal

MASTER AND SERVANT - Negligence - services of workman hired out by employer - Workman injured by negligence of hirer. - NEGLIGENCE - Services of workman hired out by employer - Workman injured by negligence of hirer. - D

TOWN PLANING - whether consent from Council and permit from Ministerial Corporation both required - whether development consent valid - whether consent dealt with whole of application - whether Council failed to give consideration to material circumstances - WATER PERMIT - whether permit merely replaced an existing entitlement - whether replacement in part sufficient - JURISDICTION - whether Land and Environment Court had jurisdiction to determine validity of permit granted under the Water Act 1912. D

SALE OF GOODS - Contract for sale of quantity of grain - Contemplated that grain acquired by vendor would be delivered into third party storage depot - Storage agreement provided that grain for storage might be commingled with other grain of same type and grade - Vendor not entitled to receive back grain delivered into storage but entitled to receive or to transfer grain of same type and grade - Purchaser to be entitled to call for delivery of grain by instalments as and when required - Whether property in grain acquired by vendor passed to third party or to purchaser - SALE OF GOODS - Contract for sale of quantity of grain - Purchaser to be entitled to delivery of grain by instalments as and when required - After about forty per cent of grain had been delivered several quantities of contaminated grain were delivered - Whether purchaser could terminate contract for breach D

Criminal law - murder - judge only trial - mental illness defence.

EQUITY - Mareva order - order sought as to funds in bank account without exceptions - evidence shows no other assets available to meet expenses - whether desirable to set weekly maximum for living expenses - order in absolute terms not warranted

PROFESSIONS AND TRADES - auctioneers and agents - right to remuneration - statutory requirements - whether claim on quantum meruit is "remuneration"

Damages - Causation

Family Provision. Application under Family Provision Act by a de facto partner. Effect on s 9 considerations of an agreement not to make a claim. Claim to designate property as notional estate. Effect of an early compromise of the proceedings.

Application for security for costs

EVIDENCE - legal professional privilege - waiver of privilege - whether tender of a single written advice waives privilege with respect to all other advices on the same subject matter - whether voluntary administrator's statement in report to creditors that company had 'good prospects' in litigation waived company's privilege with respect to advice on that subject

CORPORATIONS - Supervision, Regulation and Correction - Penalty for breach of Civil Penalty Provisions - Failure to act honestly - Improper use of position - Relevant principles - Orders for prohibition from managing a corporation - Pecuniary penalty - COSTS - Whether costs should follow the event - Discovery of transcripts of ASIC examinations - Duty to protect witness confidentiality - Limited power to provide transcript to lawyer conducting proceedings - Partially successful and partially unsuccessful - No order

PRACTICE & PROCEDURE - costs - party and party - indemnity basis - refused - PRACTICE & PROCEDURE - order for interim damages - plaintiff unsuccesful - order for restitution.

Imputations - mulitplicity - capacity - form - extraneous, rhetorical material - difference in substance

Professional Negligence List - Supreme Court Rules Part 6, Part 13, Part 14C and Part 33 rule 6 - production of materials by subpoena - access to materials obtained for common purpose

CRIMINAL LAW - sentencing - severity - robbery in company - sentences imposed not expressed in form required by statute - power of Court of Criminal Appeal to re-sentence.

CRIMINAL LAW - appeal against conviction and sentence - perverting the course of justice - corruption - whether indictment bad in law - conduct which forms part of the course of justice - whether duplicity between the charges - whether the requisite mens rea and actus reus were open to the jury - summing up - EVIDENCE - admissibility - poor quality listening device recording - enhanced version of recording - whether enhanced copy is a 'copy' of a 'document' for the purposes of the Evidence Act 1995 - purported transcript of recording admitted on the basis of being an aide-memoire - whether admissible to prove the contents of the conversation - relationship evidence - tendency and propensity evidence - suitable directions to be given to jury - SENTENCING - subjective factors - whether full-time incarceration was appropriate - cumulative sentences - objective seriousness.

Sentencing - supply of commercial quantity of cannabis - actual saleable quantity less but still serious offence - sentence manifestly inadequate - effect of delay since sentencing on re-sentencing

CRIMINAL LAW & PROCEDURE - sentencing - armed robbery - multiple offences - neccessity discrete sentences.

CORPORATIONS - insolvency - taxation assessed and paid by company - whether company was insolvent at the time of payment or if it became insolvent as a result of the payment - unfair preference - Corporations Act, s95A and Part 5.7B - statutory presumption of insolvency - financial records of company - credibility of witnesses - proof of insolvency - a conclusion as to solvency or otherwise can only be made having regard to the total position at the relevant time - whether appropriate to consider a creditor's willingness to defer enforcement action subject to satisfactory arrangements for the reduction of debt. (ND)

CONTRACT - secured loan transaction - Contracts Review Act 1980 - interrelationship of loan agreement and mortgage - "default administration fee" covered indirect costs of default - lender's right to recover direct enforcement expenses unaffected - absence of mortgagor's right to have legal costs assessed not a badge of unjust contract where alternative mechanisms to control unreasonable expenses in place (ND)

NEGLIGENCE - plaintiff employed as truck driver and stagehand - seriously injured when stage platform fell upon him - whether Master improperly exercised the discretion involved in apportionment - whether apportionment was unreasonable or plainly unjust - causation - whether claim of breach of s 52 of Trade Practices Act 1974 (Cth) was statute barred - whether s 52 claim made out - costs - D

LIMITATION OF ACTIONS - Tort - When damage first suffered - Whether actual or merely contingent or prospective - Chance of a loss or loss of a chance - Property encumbered by easement in circumstances where plaintiff had equitable claim to have easement removed.

Tort - negligence - duty of care - plaintiff subcontractor to defendant - plaintiff engaged to install wall cladding - where plaintiff fell from unsecured ladder in course of installation - whether defendant under duty of care to ensure plaintiff's safety - breach - causation - Contract - implied term - whether contract contained implied term not to commit tort of negligence - Tort - breach of statutory duty - industrial safety legislation - Construction Safety Regulations 1950 Regulations 73 and 74 - whether facts disclosed duty - whether facts disclosed breach - D

Criminal law - proceedings before magistrate - onus and standard of proof - reasoning displaying error of the kind referred to in Robinson (1989) 180 CLR 106 - application of s.141 of the Evidence Act 1995 - error of law - question of consequent relief stood over.

possession in public place of loaded firearm - whether a motor vehicle, when in a public place, is or is not itself a public place

defamation - judgment on costs

CRIMINAL LAW -Crown appeal against sentence - Manifestly inadequate sentence - Kidnapping - Objective criminality - Need for general deterrence - matters of aggravation - Form 1 matters- principle of totality - Subjective circumstances must be kept in perspective - sentence so disproportionate to objective criminality that error assumed. - CRIMINAL LAW -Kidnapping - planning of offence - untested statement - offence may have been spontaneous. - CRIMINAL LAW -sentencing - instinctive synthesis approach - two tiered approach - objective criminality - suspended sentence - not permissible to adjust a sentence downwards to allow it to be non-custodial.

Crown appeal - over 3 months conducted business of supplying methylamphetamine and cannabis leaf - was on parole for previous drug offence - sentence 3 years imprisonment and 2 years non-parole period - order for periodic detention - effective sentence of 15 months imprisonment, 7 months period detention and 12 months parole - query whether could order partial periodic detention - sentence manifestly lenient - particular errors in seeing self-interest as contrition and giving credit of 2 months imprisonment for a reporting condtion while on bail - substituted sentence 3 years 6 months full-time custody with non-parole period 2 years 4 months.

MOTOR VEHICLE ACCIDENT - quantum - assessment of damages - past and future domestic assistance - Griffiths v Kerkemeyer - construction of s 72 of the Motor Accidents Act 1988 - loss of earning capacity - whether Griffiths v Kerkemeyer includes the provision of care to an injured persons' pets or a hobby - statutory construction and interpretation generally - D

ARCHITECTS- Copyright in plans- Licence to construction company- Construction company fails- Mortgagee sells- Purchaser from mortgagee builds using plans- Whether architect can succeed in contract or unjust enrichment against purchaser- Held "No" (Young CJ in Eq dissenting on unjust enrichment)- Whether mortgagee's sale transfers licence to use plans- Held "No". PRACTICE- Amendment sought after expiry of limitation period to raise alternative case in breach of copyright on same facts as existing contract case- Refused by District Court Judge- Allegation that judge influenced by fact that applicant's solicitor an alleged persistent offender against good case management- Whether refusal within judge's discretion- Held "Yes"- Whether judge disqualified- Held "No". (D)

Negligence - Breach of Duty - Causation - Medical Negligence - Chiropractic Treatment - Neck and Back Injury

LOCAL GOVERNMENT - development consent - re-tiling of facade of hotel located in a heritage conservation area - validity of order for demolition and compliance - whether adequate reasons for order - merits appeal - whether development consent necessary - D

Succession - Family provision - Claim by adult daughter - Proceedings out of time - Financial and material circumstances of Plaintiff - Plaintiff suffers a serious medical condition and is incapable of employment - Whether PLaintiff has been left without adequate provision for her proper maintenance - Notinal estate - First Defendant was sole beneficiary of testator - First Defendant has largely distributed assets of estate - Those assets have mostly been placed by First Defendant in superannuation funds, where practically they are inaccessible to him until he achieves the age of sixty-five - Property held by testator as joint tenant passed to First Defendant by survivorship - First Defendant sold that property and with proceeds of sale purchased property in joint ownership with Second Defendant - Whether an order should be made designating that property notional estate - Importance of not interfering with reasonable expectations in relation to property - Substantial justice and merits involved in making or refusing to make such an order.

CORPORATIONS - winding up - creditors' voluntary winding up after voluntary administration - Court's power to extend time for holding meeting of creditors - Court's power to waive requirement for meeting of members

TORT - contribution between concurrent tortfeasors - whether decision that plaintiff's action against one alleged tortfeasor should be summarily dismissed because it is time-barred prevents claim for contribution by concurrent alleged tortfeasor - whether Court should defer entry of judgment in favour of first alleged tortfeasor to allow second alleged tortfeasor time to bring summary dismissal application to decision

Crown appeal - aggravated sexual assault - s61J Crimes Act 1900 - asserted leniency of sentence - s22 and s44(2) Crimes (Sentencing Procedure) Act 1999 - plea of guilty - circumstances of aggravation - consistency in sentencing

CONTRACT - Agency - Power of attorney - Purported revocation - Alleged lack of capacity to revoke - Whether revocation void or merely voidable - MENTAL HEALTH - Appointment of guardian and/or manager - Defendant and most of his estate outside NSW - Jurisdiction - Utility - Appropriateness of forum - PROCEDURE - Declaration - Utility - Agents seeking declaration that purported revocations of their appointments void, and also orders providing for the future care of the defendant and management of his estate - Whether NSW proceedings should be stayed.

Pleadings - Amendment

Importation of illegal substance - s 23B(1)(b) Customs Act 1901- whether the sentence was manifestly excessive - whether the non-parole period marks an excessive percentage of the total sentence - appeal allowed.

CONSTITUTIONAL LAW - appointment of judges - power of Governor - no power in Court to compel appointment of non-resident judge to hear case in the Court - CONSTITUTIONAL LAW - independence of judiciary - security of tenure - immunity from interference by executive government - acting judges - annual renewal of commissions - COURTS & JUDGES - apprehended bias - allegations of judge fixing and corruption - whether allegation of apprehended bias on part of all judges of the Court sustainable.