Cases and authorities

Professional Negligence - whether psychiatric treatment was negligent - whether treatment caused plaintiff's inability to earn - damages

EVIDENCE - Opinion evidence - Experts - Whether a professional can give an opinion as to what a careful and competent professional would do in specified circumstances.

On admissibility of MFI 264 - provisional relevance - T7895

Objection to evidence of Ferdinando Dominelli - relevance - T7876

On defendant's application for adjournment - unforeseen indisposition of counsel - trial management - T7872

NOTICE OF APPEAL - did not identify proper basis for appeal - abuse of process - inherent power to strike out.

CORPORATIONS - Directors - Reimbursement of expenses - Proceedings brought by one director against company - In what circumstances entitled to payment of costs by company

Workers Compensation. - Application for leave under s 151D(2) of the Workers Compensation Act. - Application granted.

PROCEDURE [81] - Supreme Court procedure - Practice under Supreme Court Rules - Preliminary rules and generally - Overriding purpose of Rules - Just, quick and cheap resolution of real issues.

ROYAL COMMISSION (CTH) - summonses and search warrant - whether related to Terms of Reference - SEARCH WARRANT - Royal Commission (Cth) - failure to accurately specify matters into which Commission inquiring - validity.

BANKRUPTCY - standing - whether the plaintiff has standing to bring a claim in respect of property no longer vested in him but in his trustee in bankruptcy - PRACTICE AND PROCEDURE - application for amendment of summons - whether application futile

SUCCESSION [48]- Informal will- Draft written out before deceased took long journey by air- Whether intended only as stop gap- On balance, probate granted.

CORPORATIONS - winding up - claims for post-liquidation interest in winding up - preference - litigation for recovery of money paid as preference settled - whether entitlement to claim for post-liquidation interest on moneys paid under deed of settlement - whether releases in deeds of settlement precluded claims for post-liquidation interest - post-liquidation interest rate

Review of Registrar's ruling - proceeds of crime legislation - ambit of statutory examination - purposes of restraining order - meaning of "affairs" in Criminal Assets Recovery Act.

Practice and Procedure - Application to strike out sections of defence to first cross-claim - Second cross-claim - Necessity to gain leave to file second cross-claim - When plaintiff can further plead a cross-claim against a defendant - Matters appropriately pleaded as cross-claim - Matters appropriately included as amendment to statement of claim - Second cross-claim not necessarily inappropriately pleaded. - Practice and Procedure - Limitation periods - Applicability of limitation period to second cross-claim - Approach of Court to submission that leave to file second cross-claim should be refused because it is out of time - Leave not refused on grounds that second cross-claim is out of time. - Practice and Procedure - Pleadings and particulars - Specificity of pleading - Necessary particulars for a claim under s75B of the Trade Practices Act 1974 - Need to plead knowledge of essential matters under s75B - Need to particularise provenance of knowledge with specificity - Where effect of allegation of knowledge comes close to allegation of fraudulent intention particulars of knowledge may often be necessary - Particulars not sufficient.

Defamation - application to amend Statement of Claim by adding fresh imputations - substantial and contextual truth - determining whether newspaper articles complained of are capable of conveying a particular imputation - questions of delay and prejudice - (ND)

Appeal dismissed for want of prosecution - Part 51 r24 Supreme Court Rules - failure to comply with earlier court directions caused hearing date to abort - failure to prosecute with due diligence - no present default - undue hardship placed upon the respondent - (ND)

EVIDENCE - Legal professional privilege - Legal advice to company disclosed to director - Whether communications affecting rights - Whether disclosed to another person.

DEFAMATION - justification - public interest - offences by plaintiff as a juvenile.

Equity - Husband and wife - Wife as guarantor for husband’s debts - Claim to set aside guarantee - Equity in Garcia v National Australia Bank - Necessity for wife to gain adequate understanding of transaction - Misunderstanding of wife must be material to liability - Whether creditor must show that they had reasonable grounds for believing that wife did have adequate understanding - Knowledge of solicitor of creditor amounting to reasonable grounds is to be imputed to creditor. - Equity - Receivers - Whether privately appointed receiver is a fiduciary - Duties of privately appointed receivers - Whether receiver has a duty to disclose all matters to mortgagor - Whether receiver has a duty to pursue the best price - Whether receiver’s sale may be upheld when there is a relationship between receiver, mortgagor and purchaser. - Equity - Mortgagees - Duties of mortgagees effecting a power of sale - Interference by mortgagee in performance of receiver’s duties - Whether mortgagee is then subject to the same set of duties of receiver. - Equity - Receiver and mortgagee - Whether duties of receiver and mortgagee extend to guarantor of the mortgagor’s debt. - Contract - Banker and Customer - Clause modelled on clause in Dobbs v National Bank of Australasia - Conclusive effect of ‘Dobbs Clause’ - Ability of Bank to rely on conclusive effect - Exception in the case of ‘manifest error’ - What constitutes a ‘manifest error - Whether necessary for ‘statement’ or ‘certificate’ to be issued. - Trade Practices - Misleading and deceptive Conduct - Whether liability may attach to a representation to negotiate - Whether representation to negotiate is too vague or uncertain - Meaning of ‘negotiation’ - Whether a representation to negotiate inherently includes a representation to negotiate in good faith - Requirements of a negotiation in good faith. - Trade Practices - Misleading and deceptive conduct - When silence can be misleading - Whether acting inconsistently with an invitation not accepted or rejected is misleading and deceptive conduct. - Trade Practices - Unconscionable conduct within the meaning of the unwritten law - Whether breach by receiver is unconscionable conduct within the meaning of the unwritten law. - Practice and Procedure - Award of interest - Principles on which interest to be awarded prior to the date for judgment. - Practice and Procedure - Award of interest - Whether claim for interest merged in the judgment - Circumstances in which interest after the date of judgment may be awarded at rates other than the prescribed rate. -

Assessment of damages - general damages - economic loss

PRACTICE - Mareva injunctions - Plaintiff's claim of property in defendant's assets - Use of assets for defendant's costs - Security for costs.

NEGLIGENCE - 'trip and fall' - appeal against finding by trial judge that the defendant constructed and laid footpath pavers which the plaintiff contended were defective and caused her injuries when she tripped against a grate held by the pavers - whether defendant constructed the pavers and had control over the land where the plaintiff fell - whether the condition of the pavers at the time the plaintiff's cause of action arose was caused by an intervening event rather than the negligence of the defendant - defendant omitted to call any evidence to prove who laid the pavers or whether there had been any third party interference with the pavers. - Held on appeal that it was open to the trial judge to find on the evidence that it was the defendant who laid the pavers. D

Copyright - Aboriginal designs - whether reproduced - whether claim precluded by the principles of Res Judicata and issue estoppel.

Contracts Review Act 1980 - third party mortgage - whether circumstances of mortgage unjust or unconscionable - enforcement by transferee - no notice by transferee of circumstances - indefeasibility of transferee's title - operation of s 7 Contracts Review Act 1980 and s 42 Real Property Act 1900 - whether underlying debt satisfied on transfer of mortgage - whether mortgagor in position of material inequality - whether mortgagor a volunteer.

PROCEDURE — CORPORATIONS — Amending pleadings to enable corporation to sue directly when previously shareholders suing for loss in respect of their shares — Whether permissible after trial commenced — Effect of limitation period — Joinder under Pt 8 and effect of Pt 8 r11(3) whereby takes effect not from original pleading but from joinder — Permissibility of recourse to Pt 20 r4 — Justice of the case and its relevance — Jurisdiction of court to allow and its exercise — Preferable course statutory derivative action under s236 and s237 of Corporations Law or fifth exception to rule in Foss v Harbottle — Which applies in relation to accrued rights — Is removal of common law derivative action by statutory derivative action procedural or substantive — In any event retroactive as a remedial statute — Effect of overriding purpose of SCR "just, quick and cheap" on construction of rules and in particular Pt 20 r4 — Costs.

Criminal law - trial - judge alone - mental illness - special verdict

Administrative Law - whether budget impasse in relation to retirement village - nature of application to the Court from ruling of Residential Tribunal on question of law - whether application limited to error of law - whether provisions of Code to be given a technical or a substantive effect.

No question of principle

Trust - whether resulting, constructive or implied trust - whether property purchased in the name of another - whether shareholder was a gratuitous transferee - whether misleading conduct - whether breach of fiduciary duty

Tender of MFI 240 - "long" statutory declaration of plaintiff dated 25 November 1998 - Exhibit 21 John Maynard statutory declaration 29 July 1996 - T7620

Motor Accidents - leave to commence proceedings - principles governing exercise of discretion - shether Salido v Nominal Defendant consistent with Brisbane South Regional Health Authority v Taylor

Trespass to land - Trespass to person - False imprisonment

Trespass to land - Trespass to person - False imprisonment

MOTOR ACCIDENTS - leave to commence proceedings out of time - whether extension of time would prejudice defendant

CORPORATIONS — PROCEDURE — Unfair preference — What is effect of 1993 Harmer amendments to Corporations Law if order made to have recovered preference paid to "the company and liquidator" rather than to the company alone — Is such order "under s588FF" for the purposes of indemnity to Tax Commissioner pursuant to s588FGA — Effect of intervening charge on recovered preference payment — Kratzman principles — Construction of court order by reference to forensic context against background of legislation.

PROCEDURE [81] - Supreme Court procedure - Practice under Supreme Court Rules - Preliminary rules and generally - Overriding purpose of Rules - Parties' duty to assist the Court to give effect to overriding purpose.

Indemnity costs - court's costs powers - costs of overseas principal - costs incurred overseas

De Facto relationship - Adjustment of interests of parties in property - Defendant moved into residence in house property owned by Plaintiff - Subsequently Plaintiff transferred that property to himself and the Defendant as joint tenants - Plaintiff was principal breadwinner - Defendant was not in employment, but had investment income - Respective contributions of parties to improvement of house property - Contributions by Defendant as homemaker - Loan by Defendant to Plaintiff - Relationship was of a short duration.

Contract - Arbitration - Abandonment of arbitration - Contract of abandonment - When conduct may be taken to amount to a contract to abandon arbitration - Difficulty of contract of abandonment when arbitration is considerably advanced over substantial period of time. - Equity - Interlocutory injunction - Balance of convenience - Records of one party lost - Delay on the part of applicant - Strength of the applicant’s case

MURDER - appeal on conviction - compellability of spouse - statutory interpretation - common law presumptions - s 18 Evidence Act 1995 - s 407 Crimes Act 1900 - whether jury misdirected - representations of what accused told witness not evidence of truth of those representations - Lee v The Queen - s 6 Criminal Appeal Act 1912 - whether accused denied fair chance of aquittal - 'accepting' the accused's evidence - failure to discharge jury - MURDER - appeal on sentence - maximum sentence - worst category - parity of sentencing

WORKERS COMPENSATION - statutory right of indemnity - entitlement to statutory interest - D