Cases and authorities

COSTS – security for costs – prejudice to defendants occasioned by plaintiff’s apparent impecuniosity and income in circumstances where plaintiff continues to receive financial support from family – future conduct of proceedings particularly uncertain – no evidence that order for costs would stultify proceedings – need to take into account disproportionality between costs required to be incurred to defend the proceedings and likely award of damages

EVIDENCE — Admissibility — Exclusion of hindsight evidence by plaintiff under s 5D(3)(b) of the Civil Liability Act — whether applicable civil liability section is the law of forum — Corporate plaintiff — Whether statement by natural person within exclusion — Characterisation of relationship between natural person and corporate plaintiff — Evidence as to relationship inconclusive — Whether “statement made by the person” within the meaning of the Act — Not established that a statement by the witness was a statement by the plaintiff corporation — Evidence admitted.

MENTAL HEALTH – forensic patient – application for extension order pursuant to Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) – whether the defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient – interim extension order imposed

PRACTICE AND PROCEDURE – Amendment of pleadings – application for leave to file an Amended Statement of Claim – procedural motions brought by opposing parties – whether proposed amendments to the Statement of Claim are bound to fail – whether proposed amendments to the Statement of Claim are properly and sufficiently pleaded – appointment of representatives for two estates involved in litigation – who should be appointed to represent the estates – what conditions should be imposed before representatives of the estates are appointed – production of and access to subpoenaed documents – width of subpoenas – whether subpoenas should be set aside.

EVIDENCE — Privilege — Litigation privilege — Communication between solicitor and expert — Report prepared and served but expert no longer proposed to be called — Expert then proposed to be called by other side — Dominant purpose of detailing aspects of expert’s retainer — Dominant purpose not providing professional legal services within s 119 of the Evidence Act — Claim for privilege not made out.

CIVIL PROCEDURE – Service outside Australia – whether to set aside service of originating process – ex parte application for substituted service – duty of candour owed to the court – whether there was a failure to disclose relevant information at hearing of ex parte application PRIVATE INTERNATIONAL LAW – Jurisdiction – service outside of jurisdiction without leave of the court – whether service of originating process valid – whether to set aside service – whether schedule 6 of the Uniform Civil Procedure Rules applies PRIVATE INTERNATIONAL LAW – Jurisdiction – Forum non conveniens – whether to stay proceedings – rule 11.6 of the Uniform Civil Procedure Rules – whether New South Wales is inappropriate forum for the trial of the proceeding – connecting factors

REPRESENTATIVE ACTIONS – property damage arising out of widespread urban flooding from Brisbane River escaping its banks in January 2011 – group defined by reference to ownership or interest in property affected by flooding and whether group members or their insurer signed litigation funding agreement – lead plaintiff owned store affected by flooding – determination of all issues of fact and law affecting lead plaintiff – determination of all issues other than quantum affecting a sample of group members – determination of all issues affecting the respective obligations of the defendants to each other – determination of common questions identified relevant to plaintiff and all or many group members FLOOD MITIGATION – dams located above major metropolitan area – dual function of water supply and flood mitigation – first defendant owner of dam and employer of two flood engineers on duty during flood event – second defendant contractor to first defendant and employer of senior flood operations engineer – third defendant employer of flood engineer – whether first defendant had statutory function of flood mitigation – statutory regulation of interference with watercourses – permissions granted to undertake flood mitigation – approval under statute of manual of flood operations – significance of manual to flood engineers controlling dams before, during and after flood events – manual does not have force of law but governs content of any duty of care and exempts dam owner from any liability if complied with – whether manual required use of rainfall forecasts in conduct of flood operations – whether manual required use of actual or predicted reservoir levels – role of experts in interpretation and application of manual – whether flood operations during previous flood events supported posited interpretation of the manual – relevance of events surrounding drafting of manual to its interpretation and application – whether flood engineers had reasonable belief as to construction and application of manual – whether peer professional practice at other dams permitted releases below full supply level ADMINISTRATIVE LAW – whether regulatory regime permitted flood releases from below full supply level of each dam – validity of approval granted to dam owner to make releases for flood mitigation from below full supply level – role of discretionary bases for refusing relief in determining a collateral challenge to executive action NEGLIGENCE – DUTY OF CARE – dams located above major metropolitan area – dams controlled approximately half of downstream river flows – ultimate control of outflows from dam during flood event retained by dam owner but shared with flood engineers operating under Manual - risk posed to property owners from Brisbane river breaking its banks depending on their proximity to river and elevation – downstream property owners and those with interest in property vulnerable to negligent exercise of control over dams – size of affected class does not render class indeterminate – relevance of fact that rate of flow released is less than peak flow rate if dam not present - alleged inconsistency between posited duty and statute – whether duty imposes inconsistent obligations in favour of persons at different downstream locations – whether duty imposed on flood engineers inconsistent with duties to their employers – scope of duty provided by contractor proving engineering services – held duty owed by dam owner and flood engineers – duty owed by contractor but only in respect of provision of flood management services under contract NEGLIGENCE – DUTY OF CARE – whether duty owned by dam owner or contractor a non-delegable duty – nature of activity conducted on dam owner’s land – conduct of flood operations for ostensible benefit of downstream residents and property holders – not taking advantage of property to engage in dangerous activity – statutory provisions granting permission to dam owner to conduct flood mitigation not exhibiting strict non-delegability – held dam owner did not owe non-delegable duty – held contractor did not owe non-delegable duty VICARIOUS LIABILITY – flood engineers – whether employee “pro hac vice” of second defendant – necessity for high degree of control over performance of duties – not established – whether flood engineers performed independent legal duty such that third defendant not vicariously liable for conduct of flood engineer it employed – whether point properly pleaded – independent legal duty only denies vicarious liability if employee performing duty imposed by statute or by common law – common law imposes duties on those holding office – flood engineers neither performing duties imposed by statute or by common law – held each defendant vicariously liable for flood engineer they employed NEGLIGENCE – STANDARD OF CARE – flood engineers – Civil Liability Act 2003 (Qld); s 36(1) – whether proceeding based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority – whether such exercise was so unreasonable that no such authority could properly consider the act or omission to be a reasonable exercise of its functions – whether section confined to actions for breach of statutory duty – held section not so limited but not engaged in respect of any vicarious liability that the public authority incurs for breach by an employee of a duty of care owed by the employee – whether proceedings “based on” exercise of a “function of a public authority” – requirement for function conferred by governmental authority – held defendants not exercising any such function – Civil Liability Act 2003 (Qld); s 22(1) – no breach of duty by professional if established that “acted in a way that...was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as a competent professional practice” – whether necessary to identify existing practice that was conformed with – practice of flood engineers and flood operations in Australia and overseas – all such practices conditioned by necessity to comply with water control manual – held in the absence of compliance flood engineers did not act in conformity with any practice – held relevant standard was that of the reasonably competent flood engineer NEGLIGENCE – BREACH – allegations of breach governed by ss 9 and 10 of Civil Liability Act 2003 (Qld) – content of flood engineer’s duty involved compliance with the manual – whether allegations of breach tied to necessity for flood engineers to make releases in conformity with counterfactual flood operations proposed by plaintiff’s expert – not possible to comply throughout period of flood event as divergence between reservoir levels and counterfactual increased over time –counterfactuals and their reasoning inform allegations of breach – systemic failure of flood engineers to comply with manual over course of flood event – failure to select strategies and make releases by reference to rainfall forecasts – failure to conduct flood operations in accordance with priorities specified by manual – prioritisation of avoiding inundation of low lying bridges at expense of avoiding risk of urban inundation – breach established NUISANCE – whether release of water from dam inundating plaintiff’s store was an unreasonable interference with its use and enjoyment – relevance of fact that rate of water flow released less than peak river flow rate if dam not present – scope of defence of statutory authorisation and necessity – held unreasonable interference not established – defences would have failed TRESPASS – whether release of water from dam inundating plaintiff’s store was a trespass – necessity for intrusion to be immediate or direct result of defendant’s actions – held trespass not established NEGLIGENCE – CAUSATION – Civil Liability Act 2003 (Qld); s11 – necessity to identify “particular harm” – counterfactual flood operations – plaintiff’s expert accepted – counterfactual simulation identified – use of hydraulic modelling to ascertain depth of flooding at relevant locations using simulated outflows from dam – reliability of modelling – approach to findings at particular locations – necessity to consider all the evidence relevant to each location as model not determinative – future assessments to be conducted by reference to all such evidence but consistent with findings to date and forensic choices made by the parties NEGLIGENCE – CAUSATION – successive tortfeasors causing combined state of affairs that caused harm – s11(1)(a) – material contribution – Strong v Woolworths – “jointly sufficient to account for the occurrence of the harm” – set of conditions necessary to the occurrence of harm – each tortfeasor’s breach may not be sufficient to satisfy but combined effect of breaches of the tortfeasors are sufficient – held s 11(1)(a) established – scope of harm – s 11(1)(b) – whether individual tortfeasor responsible for harm caused by the combination of all such breaches – held attribution of liability for all harm caused appropriate QUANTUM – loss of profits of business – out of date stock – treatment of charitable and similar payments that but for the flooding would not have been paid – grants made Rural and Regional Adjustment Act 1994 – statutory scheme for reimbursement of direct costs associated with flooding – held plaintiff and group members not entitled to recover costs the subject of grant payment - whether commercial cost of volunteers who cleaned plaintiff’s premises and stock recoverable – measure of damage – whether provision of services intended to operate in the interests of the defendant and diminish damages otherwise payable – held costs recoverable at commercial rate – whether plaintiff can recover amount representing commercial cost of free storage provided for damaged stock – not an expense or a true consequential loss – held not recoverable CIVIL PROCEDURE – cross-claims – Civil Liability Act 2003 (Qld); ss 28(1), 31(1), 32A – plaintiff’s claim in negligence is proportionate claim – no claims in contribution maintainable – cross-claim by dam owner against contractor – seeking contractual indemnity for liability to plaintiff and group members as well as costs – contractual exclusion for “indirect and consequential loss” – held exclusion applies – cross-claim fails LIMITATION PERIODS – Limitation of Actions Act 1974 (Qld) – whether institution of representative proceedings in Supreme Court of New South Wales meant that “action...[was] brought” by group members within relevant period – held action brought

CRIMINAL LAW – sentence – where offenders pleaded guilty to manslaughter – where offenders liable on basis of joint criminal enterprise – whether offenders remorseful – whether offenders provoked or acting in self-defence – whether moral culpability of offenders equal – where manslaughter is above the mid-range of objective seriousness – whether need for general deterrence – offenders’ prospects of rehabilitation CRIMINAL LAW – sentence – where offenders pleaded guilty to knowingly conceal a corpse – where offenders liable on basis of joint criminal enterprise – where deceased’s body has not been located – whether failure to disclose location of deceased’s body aggravates objective seriousness of the offence – where offence is above the mid-range of objective seriousness CRIMINAL LAW – sentence – where offenders pleaded guilty to supplying a commercial quantity of methylamphetamine – where offenders supplied different quantities of drug – whether moral culpability of offenders equal – where Form 1 offences also taken into account – accumulation and concurrency of multiple sentences

CRIMINAL LAW – sentence – murder – where the offender stabbed his de facto partner to death in their unit – offender unable to explain the motive for the offending – offender made frank admissions of guilt from the outset and pleaded guilty at the earliest opportunity – some evidence of cognitive deficits but no evidence of a causal link between those deficits and the offending – genuine remorse – low risk of reoffending and good prospects of rehabilitation – no criminal record – consideration given to general deterrence – age of offender taken into account on sentence – offender sentenced to non-parole period of 14 years’ imprisonment – balance of term of four years nine months

MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient – whether extension order can be made with respect to a person who has ceased to be a forensic patient PROCEDURE – civil – appeal pending – interim orders – order required to preserve subject-matter of appeal

CONTRACTS – construction – scope and nature of commitment – defendant agreed to supply security services to plaintiff for the purpose of enabling the plaintiff to carry out head contract – whether defendant promised to provide plaintiff with the opportunity to do certain other work for it

JUDICIAL REVIEW – appeal pending in District Court – criminal jurisdiction – appeals from convictions and imposition of apprehended domestic violence order IN Local Court – review of interlocutory decisions – review of rejection of recusal application PROCEDURAL FAIRNESS – bias – recusal application based on apprehended bias – appeal from refusal – when interlocutory appeal available PROCEDURE – solicitor on record – professional responsibilities – instructions terminated after failed adjournment application – limiting scope of solicitor’s instructions – application of Uniform Civil Procedure Rules 2005 (NSW), Pt 7, div 7

APPEAL – stay of execution of judgment pending determination of appeal – appeal arguable – whether risk that if no stay is granted and appeal succeeds, appellant will be unable to recover from respondent – whether risk that if stay is granted respondent will later be unable to enforce judgment – stay granted

CRIMINAL LAW – appeal – leave to appeal against sentence – intent to cause grievous bodily harm – whether sentencing judge erred in failing to give proper reasons for a finding of fact – whether sentencing judge erred in finding certain facts – whether sentencing judge erred in failing to find provocation as a mitigating factor – whether sentencing judge erred in failing to give proper consideration to applicant’s background as a mitigating factor – grounds of appeal not made out – leave to appeal granted – appeal dismissed

CRIMINAL LAW – sentence appeal – two counts of drug supply – offender on bail for first offence at time of second offence – offender had an extensive criminal record – aggregate sentence of imprisonment for 3 years and 4 months with a non-parole period of 2 years – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

CRIME — Appeals — Appeal against sentence — Child sex offences — Applicant diagnosed with terminal illness after sentence imposed — Whether sentence manifestly excessive — Whether applicant to be re-sentenced based upon fresh evidence — Sentence not manifestly excessive — Fresh evidence admitted — Discussion of principles relevant to subsequent development of illness taken into account at time of sentence — Held by majority that applicant be re-sentenced — Lesser aggregate sentence imposed

EVIDENCE – criminal proceedings – evidence of pre-recorded statement by unavailable witness previously ruled admissible – objection on the basis of s 135 and s 137 of the Evidence Act 1995 (NSW) – allegedly incomprehensible or misleading – objection rejected

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules Pt 7 rr 7.1, 7.2 and 7.3, Civil Procedure Act 2005 NSW s 14 – requirement for a company to have a solicitor on the record in proceedings in the Court – whether Court should dispense with the requirement – where company commences proceedings purporting to be represented by its sole director – where Commercial List Statement makes significant and improperly pleaded allegations of dishonesty on the part of the defendant – where the director has previously been responsible for multiple earlier dismissed proceedings involving substantially the same complaint now made – where the Court has no confidence that the director will behave ethically or responsibly - where the director has significant outstanding orders for costs against him in favour of the defendant – where the Court has no confidence that the proceedings have any prospect of success - HELD that the Court should not dispense with the requirement that the plaintiff be represented by a solicitor on the record

PRACTICE AND PROCEDURE – adjournment of proceedings – application for judicial review of administrative decision of the Minister for Agriculture and Forestry (“the Minister”) to close a Crown road and sell the land comprising the road to adjoining owners – plaintiff is one of the adjoining owners – Minister is the first defendant and has filed a submitting appearance – the other adjoining owner is the second defendant – the Minister’s failure to appear at the hearing makes it more difficult for the Court to determine what material was before the Minister at the time the challenged decision was made – Minister’s assistance sought to accurately determine the scope of the material before the decision-maker – what procedural directions should be undertaken to give the Court clarity about what materials were before the Minister at the time the decision was made.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – where formal requirements satisfied – whether scheme of arrangement should be approved. CORPORATIONS – managed investments – application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – where procedural requirements to obtain approval of unitholders has been satisfied – whether responsible entity would be justified in implementing the proposed trust scheme – whether advice sought should be given.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application for orders approving scheme of arrangement – where formal requirements satisfied – whether scheme of arrangement should be approved.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, approve a proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied.

COSTS – proceedings resolved without a determination on the merits – where plaintiff alleged the existence of an agreement made in 1995 whereby the defendant and plaintiff’s mother agreed to transfer a half share in a property to the plaintiff and his wife – where transfer form signed but not registered – plaintiff commenced proceedings seeking orders for the enforcement of the agreement – where proceedings settled and consent orders entered which required the defendant to facilitate a transfer to the plaintiff with the Summons otherwise dismissed – whether prior to commencement of the proceedings the defendant had unreasonably delayed effecting a transfer – where court not in a position to make findings about the terms of the 1995 agreement – neither party held to have acted unreasonably in the proceedings – orders made that each party pay its own costs

CRIMINAL LAW – EVIDENCE – murder trial – accused persons alleged to be party to joint criminal enterprise – where Crown seeks to rely on lawfully recorded conversation between accused persons as evidence of consciousness of guilt – whether evidence relevant as consciousness of guilt – whether evidence ought be excluded because of competing inference or alternative explanation for parts of conversation – whether evidence “intractably neutral” and incapable of demonstrating consciousness of guilt – whether evidence ought be excluded because of its prejudicial effect – parts of conversation admissible as evidence of consciousness of guilt

MENTAL HEALTH – forensic patient – limiting term – application under the Mental Health (Forensic Provisions) Act 1990 (NSW) – application for interim extension order – preliminary hearing – where the index events involved charges of child sexual abuse – where the defendant was found unfit to be tried and a qualified finding of guilt was made – where the defendant has a limited criminal history – Court satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others – discretion not to impose IEO regardless exercised – application refused

COSTS

CIVIL – Crimes (High Risk Offenders) Act 2006 – preliminary hearing – interim relief – application for appointment of qualified psychiatrists and/or registered psychologists under s 7(4) – application for interim detention order pursuant to ss 18A and 18C – application for interim supervision order pursuant to ss 10A and 10C – principles re preliminary hearings – mandatory considerations – orders

EQUITY — Alleged unconscionable conduct or undue influence — Whether the Court should make interlocutory orders restraining the first defendant from dealing with certain of his assets pending final determination of proceedings for the restoration by the defendant of funds allegedly misappropriated by the defendant to the estate of the parties’ deceased mother — Where it appears the plaintiff has a good arguable case, and the defendant has not satisfactorily explained the disbursement of a substantial part of the deceased’s funds

CONSUMER LAW – misleading or deceptive conduct – loss and damage – representations found to be misleading and deceptive – whether loss claimed was “because of” the fifth defendant’s conduct CONSUMER LAW – apportionment – where apportionment not pleaded

EVIDENCE – credibility evidence – hearsay evidence - criminal proceedings – admissibility of credibility evidence in a murder trial – where the Crown sought to lead second-hand hearsay evidence of an admission allegedly made by the accused – where the sole purpose of that evidence was to bolster the credibility of the witness to the alleged admission – s 102 Evidence Act – no applicable exception to the credibility rule – representation not fresh in the mind of the person making representation - evidence inadmissible EVIDENCE – expert evidence – criminal proceedings – admissibility of expert evidence in a murder trial – where the Crown sought to lead evidence from an expert in mark evidence and comparison – where the expert had furnished a report comparing footprints in blood at the scene of the murder and sole impressions of a number of Trax brand shoes – where evidence adduced at trial suggested that the accused wore a different brand of shoes – where the findings of the report were, at best, equivocal – s 137 Evidence Act – risk of prejudice outweighed probative value of the evidence – evidence inadmissible

CIVIL PROCEDURE – judicial review – vacation of hearing date – amendment of summons in course of hearing – no basis to delay hearing – summons sought to be amended to add challenge to refusal to state a case to Court of Criminal Appeal – no evidence of application nor of a material question of law

APPEAL – corroborative evidence – whether evidence relied upon by primary judge corroborated evidence of the plaintiff which primary judge was not prepared to accept absent corroboration – meaning of corroborative evidence – corroboration by circumstantial evidence UNJUST ENRICHMENT – monies admitted to be owing arising from participation in a “seetu” – admission that at least $100,000 owing – organiser of seetu refusing to pay – claim for monies had and received – restitution properly ordered

COSTS – party/party – appeals – orders seeking declaratory and injunctive relief about a costs order made over three months prior dismissed as the issue was not raised in the appeal proceedings – order seeking variation of the costs order incompetent as filed out of time – Suitors’ Fund certificate granted

EVIDENCE – criminal proceedings – unfavourable witness – s 38 of the Evidence Act 1995 (NSW) – probative value

CORPORATIONS – application for leave to continue proceedings against company in administration – where neither administrators nor receiver have provided consent to continue proceedings – where proceedings challenge the status of creditor’s statutory demand served by company now in administration and receivership – whether such leave should be granted. CORPORATIONS – application to set aside creditor’s statutory demand – where some amounts claimed in demand referenced to invoiced amounts – where amounts claimed pursuant to invoices issued differed from invoiced amounts – where plaintiff admits amounts of outstanding invoices – where other amounts claimed in respect of fees and insurance excesses – where right to claim for amounts relating to fees and insurance excesses not identified – whether there is a genuine dispute as to the amounts claimed in the demand – whether demand should be varied or set aside.

CORPORATIONS – winding up – application to validate appointment of liquidators – where liquidators purported to be appointed by sole director and shareholder – where sole director and shareholder at time was undischarged bankrupt – whether appointment should be validated under s 1322(4) of the Corporations Act 2001 (Cth).

CRIMINAL LAW – trial proceedings – conspiracy to import commercial quantity of a border controlled drug – question of the admissibility of evidence surrounding arrest of accused – exhibits – evidence to establish association between accused and co-conspirator – consciousness of guilt – question of potential prejudicial evidence

COSTS – party/party – general rule that costs follow the event – application of the rule and discretion – where both parties partially successful – where one notice of motion abandoned prior to hearing – no question of principle

CORPORATIONS — Oppression — Where father of plaintiff had business partnerships with defendant — Several American and Australian companies — Defendant had day-to-day control of interests in Australia — Australian shareholdings approximately 50/50 — Father passed away — Heads of Agreement and Shareholders Agreement to govern future management of Australian companies — Long course of non-communication by defendant — Suit prompted by large number of irregular transactions. CORPORATIONS — Oppression — Conduct relevant to finding of oppression — Failure to provide information in breach of Shareholders Agreement — Failure to appoint plaintiff as director in breach of Shareholders Agreement — Failure to pay dividends declared to plaintiff where defendant’s dividends fully paid — Large loans to defendant — Use of company funds for defendant’s private ventures — Irrecoverable loans by defendant brought onto the books of the company — Sale of company property at undervalue to related parties — “Adjustments” to defendant’s loan account said to reflect undocumented historical payments — Some transactions conceded by defendant as oppressive — Declaration of oppression made. CORPORATIONS — Oppression — Defences — Construction arguments raised in defence of breach of Shareholders Agreement — Estoppel by convention — Whether necessary to prove detriment — Delay, acquiescence and laches — Relevance of plaintiff’s conduct — No defence established. CORPORATIONS — Oppression — Remedies — Plaintiff seeks buyout order — Relevance of defendant’s ability to meet such an order — Group of companies whose principal asset is real property — Appropriate valuation methods — Property holding companies valued on the basis of assets held — Trading company valued as going concern —Determining value but for the oppressive conduct — Fefendant maintained spreadsheet with estimated value of companies’ property and investments —Whether spreadsheet as basis for fair value of property and investments — Whether recoverability of loans properly recorded in financial statements — Appropriate method of determining EBITDA where trend in earnings — Buyout order made. EVIDENCE — Rule in Browne v Dunn — Business record demonstrably wrong — Author of document gave oral evidence —Not necessary to put inaccuracy of business record prepared years earlier to witness as a matter of fairness. CIVIL PROCEDURE — Pre-judgment interest — Difference between dividends declared and paid credited to loan account — Loan repayments made from time to time — No consent to treat dividends in this way — Whether “running account” within the meaning of Clayton’s Case — Clayton’s Case not applicable — Interest calculated on balance from time to time from date when debt first arose.

JUDGMENTS AND ORDERS – Orders embodying settlement agreement – Construction. PARTNERSHIP AND JOINT VENTURES – Joint Venture Agreement – Rights and duties between joint venturers.

CRIMINAL LAW – bail – change of circumstances since bail refused – extensive delay – where volumes of material served after matter listed for trial – defence application to vacate trial date refused – prosecution application to vacate trial date granted – inability of applicant to access voluminous material in prosecution brief – show cause requirement – bizarre and disturbing sexual offences – four complainants – degrading and humiliating conduct – issue of consent – where applicant’s knowledge of brief critical to proper presentation of his case – tricky case for trial lawyers – prosecution case not necessarily overwhelming – previous bail breaches – complainants’ fears – whether stringent bail capable of mitigating risk

TORTS – damages – motor vehicle accident – plaintiff sustained lower back injury – whether plaintiff also sustained injury to neck – few initial complaints of neck injury – whether trial judge addressed the significant medical evidence – adequacy of findings of reliability of plaintiff – reasoning insufficient to justify conclusion TORTS – damages – quantification of loss of earnings – calculation of lost earnings based on workers compensation payments – lack of evidence of actual earnings – whether residual earning capacity properly assessed – basis of trial judge’s calculations not specified – matter remitted to District Court

CIVIL PROCEDURE – default judgment – leave to appeal from interlocutory decision refusing to set aside – where dispute concerned unpaid commissions in real estate agency agreement – where defendant failed to file defence – where inadequate explanation for delay – consideration of length of delay and any special prejudice to plaintiff – where primary judge found bona fide defence on the merits – dictates of just, quick and cheap resolution of proceedings – where plaintiff conceded portion of judgment debt not properly supported on grounds argued below – whether unjust to permit plaintiff to retain entirety of default judgment – appropriate costs orders where defendant sought an indulgence and plaintiff had reasonably opposed – default judgment varied

CIVIL PROCEDURE – personal injury litigation –declaration sought by defendant that it is permitted to interview plaintiff’s former treating doctors – resisted by plaintiff on basis of doctor-patient confidentiality – where no relationship of confidentiality between the doctor and the plaintiff existed at the relevant time –defendant entitled to interview doctors – where such interviews vital to efficient conduct of proceedings – declaration made TORTS - Negligence PROFESSIONS AND TRADES – health care professionals – medical practitioners – privilege

PRACTICE AND PROCEDURE – settlement agreement contained release of claims made in proceedings – party alleged to have subsequently breached orders subject of settlement agreement – whether parties can prevent bringing of contempt proceedings by settlement agreement – whether contempt proceedings amount to a breach of settlement agreement and may be restrained by injunction – whether Supreme Court Act (1970) NSW, s 61 appropriate basis for application.

COSTS – departure from the usual rule – application by plaintiffs to vary costs order – where plaintiffs commenced proceedings for specific performance of a contract for sale of land – where plaintiffs later amended claim to seek loss of bargain damages instead – where the plaintiffs were unsuccessful in obtaining relief – whether defendant should pay the plaintiffs’ costs for part of the proceedings – plaintiffs held to have been justified in commencing and maintaining proceedings for a period – order that each party pay their own costs in respect of that period COSTS – departure from the general rule – offers of compromise – Calderbank letters – application by defendant for indemnity costs – defendant made offer of compromise and Calderbank letter in similar terms – neither offer accepted by the plaintiffs – defendant obtains judgment more favourable than offers – whether offers constituted genuine compromises – whether it was reasonable to not accept either offer – offers held to be genuine compromises – indemnity costs ordered

DEFAMATION – where oral communications made by officer of financial regulator to stockbrokers – whether communications conveyed defamatory imputations – where communications expressed regulator’s concern regarding possible manipulation of Australian stock market – whether plaintiffs identified by the communications DEFAMATION – defences – justification – common law qualified privilege defence established – defence of statutory qualified privilege established TORT – injurious falsehood – elements – malice not proved

BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether determination void – jurisdictional error – whether denial of natural justice – whether failure by adjudicator to provide parties with opportunity to make submissions with respect to choice of reference date relevant to payment claim – whether open to claimant to support determination with reference to different reference date than that relied on by adjudicator – whether open to adjudicator to justify determination on basis that it was a determination of a payment claim by reference to other reference date BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) –whether determination void – whether payment claim referrable to work completed after relevant reference date – construction of sections 8 and 13 of the legislation – Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd and other authorities considered – whether payment claim may only relate to work done before reference date in respect of payment claim was served BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether to grant conditional relief – power of court to sever part of determination which is within jurisdiction from that part which is not – recent authority

Adoption – Inter Country