Cases and authorities

TORTS – malicious prosecution – whether appellant demonstrated absence of reasonable and proper cause – whether malice demonstrated – identifying the prosecutor or instigator of the prosecution – collateral abuse of power – whether improper purpose established – whether delay in delivery of primary judgment resulted in unsafe findings

APPEAL FROM LOCAL COURT – forensic procedure – appeal against order that a non-intimate forensic procedure be performed – whether Magistrate erred in determining that the forensic procedure was justified in all the circumstances – delay

CRIMINAL LAW – admissibility of computer aided diagrams

Costs – No issue of principle

COSTS – matter of costs dealt with by way of issues – Calderbank letters – indemnity costs – set off – no reason why opponent should get costs for time that was unnecessarily expended REAL PROPERTY – encroachments to land – easement – dominant and servient tenement - Encroachment of Buildings Act 1922 (NSW)

EMPLOYMENT LAW – Superannuation levy – whether employee may sue if levy paid out of his own entitlement to commission

CONTRACT - lease - construction of remediation clause - where clause required lessee to remove lead contamination from the land and to put the land in a condition suitable for development - where variation of lease inserted new clause qualifying those obligations - whether the lease required the lessee to remediate the land any further than removing lead contamination - notice procedure to trigger obligation - where notice went further than stipulating obligations by providing suggested method of compliance – whether notice valid

GUARANTEE AND INDEMNITY – construction of indemnities – whether a section of a loan application form entitled “Guarantee and Indemnity by Directors”, which was divided into two columns with two signature blocks, gave rise to both a guarantee and an indemnity where only one signature block was signed – whether, therefore, the appellant was bound by the indemnity GUARANTEE AND INDEMNITY – discharge from indemnities – whether a material variation of the terms of the principal obligations discharged the appellant in circumstances where the principal contract contemplated amendment – whether the creditor’s failure to perfect security for the debtor’s indebtedness discharged the appellant – whether the creditor’s unilateral increase of the credit limit and its granting of extensions of time to the debtor discharged the appellant GUARANTEE AND INDEMNITY – discharge from indemnities – whether the appellant’s liability was limited by reference to his time as a director, in circumstances where the appellant signed the indemnity in his capacity as a director

PROCEDURE – costs – security for costs – pending hearing of judicial review application – whether reason to believe failure to provide residential address is with intent to deceive – Uniform Civil Procedure Rules 2005, r 42.21 – whether exceptional circumstances justify order for security for costs Uniform Civil Procedure Rules 2005, r 59.11 – discretionary considerations

PRACTICE AND PROCEDURE – defence – leave to amend points of defence – leave to withdraw admissions – whether reasonable argument contrary to the admissions available to defendant – prejudice occasioned by permitting amendment – delay – where admissions apparently made inadvertently.

CORPORATIONS – winding up – liquidators – distribution of surplus by liquidator – final distribution following prior interim order for distribution – dispensation of requirement to annex a schedule in Form 551

CORPORATIONS – winding up – winding up in insolvency – application for termination of winding up – where company does not trade – whether company can be safely returned to management of directors; CORPORATIONS – liquidators – liquidator remuneration – where amount of remuneration agreed between the parties – costs of application for termination of winding up – where liquidator not required to file evidence or process.

PRACTICE AND PROCEDURE – notices to produce and subpoenae – application to set aside notices to produce and subpoenae – whether notices to produce and subpoenae abuse of process – whether documents sought relevant to issues in proceedings.

PRACTICE AND PROCEDURE – where preliminary discovery order made compelling identification of journalists' confidential sources – application to stay order – where journalists undertaking not to rely on defences of qualified privilege – whether application an abuse of process – proper approach to determination of stay application – modern litigation principles

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 (NSW) - decision of delegate of the Proper Officer – whether there was reasonable cause to suspect that a medical assessment was incorrect in a material respect - decision of Medical Review Panel - whether incorrect test of causation applied - whether procedural fairness denied - whether futile to remit decision – whether possible to set aside only the part of the assessment affected by error

PROCEDURE – civil – cross-claim – findings of fact in earlier judgment – admissions on pleadings – hearing remitted from Court of Appeal – judgment given – no question of general principle

CRIMINAL LAW – appeals – sentencing – whether sentencing judge failed to give effect to finding of special circumstances – sentencing discretion miscarried – whether some other sentence warranted in law – whether finding of special circumstances should be made on resentencing

CRIMINAL LAW – leave to appeal against sentence – whether sentence was manifestly excessive – intensive correctional order – whether intensive correctional order ought to have been considered – whether exceptional circumstances – leave to appeal granted – appeal allowed – applicant resentenced – bond

CRIMINAL LAW - sentencing - assistance to authorities – whether discount for assistance erroneous having regard to level of assistance, risks to applicant and difficult custodial conditions – whether sentences manifestly excessive

CRIMINAL LAW – appeal – Criminal Appeal Act 1912 s 5F(3A) – whether evidence of complainants’ prior sexual experience admissible pursuant to s 293(4)(a) of the Criminal Procedure Act 1986 – whether sexual experience formed part of a connected set of circumstances in which the alleged sexual offences were committed - tendency evidence – coincidence evidence

PRACTICE AND PROCEDURE – discovery – preliminary discovery – applicant’s failure to undertake reasonable inquiries

PROCEDURE – judgments and orders – amending, varying and setting aside – application to set aside order granting letters of administration and order that administrator be at liberty to administer estate on basis of draft short minutes of order – whether solicitor for the applicant knowingly failed to inform court that a submitting party did not consent to those orders – whether application should be made in fresh proceedings

COSTS – indemnity costs – offer of compromise and Calderbank offer – no question of principle

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plan – where non-consenting birth parent signs adoption plan – held non-consenting birth parent signatory may apply for registration of plan. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – dispense with consent of birth parents – whether sufficient notice given – where notice given to birth mother by text message – held, text message insufficient to effect notice – held, notice sent to address of birth mother’s mother as ‘nominated’ by birth mother sufficient – held, appropriate to make consent dispense orders without further notice.

Construction of Deed between cross claimant and cross defendant dealing with obligations in connection with a Contract for Sale and Head Lease - what amounts due - assigned debt - whether assignor of debt was established to be the creditor

SENTENCING – conspiracy to dishonestly cause a loss or risk of loss to the Commonwealth – Criminal Code Act 1995 – s 135.4(5) – conspiracy to deal with property of a value of $1 million or more believing it to be the proceeds of crime – s 11.5 and s 400.3(1) – sentence after long trial – agreement to make false depreciation claims in company tax returns – sham agreements to acquire medical technology as basis for depreciation claims – depreciation claims intended to be used to offset amounts deemed to be received by company as unit holder of various trusts – submission of false material to Australian Tax Office to support claims – extent of loss or risk of loss intended by offence quantified at $135 million – actual loss from commission of offence is delay in obtaining tax assessment- agreement to deal with funds received as unit holder by transfer out of Australia and repatriation – proceeds of crime – personal benefit – sentencing factors – tax fraud in worst category of offence – conspiracy to deal with proceeds of crime very serious example of the offence – strong need for personal deterrence – cumulation and totality – substantial custodial sentences imposed.

PRACTICE AND PROCEDURE – application for leave to amend Statement of Claim – whether proposed claims bound to fail – whether would be futile to grant leave – whether further discovery should be ordered

ADMINISTRATIVE LAW – Judicial review of decision of Claims Assessor, Motor Accidents Authority of New South Wales – Motor Accidents Compensation Act 1999 – Award made by Claims Assessor by way of buffer for future loss of earning capacity – Whether award of damages for future loss of earning capacity made properly pursuant to s 94 Motor Accidents Compensation Act – Plaintiff contended that there was no evidence to support a finding that “the ageing process when compounded with the injuries will mean that he would be most unlikely to be able to work to normal retirement age as a barman/cellar hand” – whether evidence supported the finding other than the finding as to the ageing process compounding the injuries - Whether there was medical evidence to support the award made for future loss of earning capacity – Evidence of ongoing physical impairment - Whether plaintiff denied procedural fairness because above finding was allegedly made by Claims Assessor without prior indication that such a finding may be made – How future loss of earning capacity is to be assessed – Relevance of ongoing physical restrictions in current employment to potential for future economic loss – ‘No evidence’ ground and procedural fairness ground of review dismissed - Appeal dismissed

TORTS – negligence – liability for severe crush injury at work – duty of care owed by an employer to its employee – whether breach of duty of care was within the scope of the employer/employee relationship TORTS – negligence – liability of entrepreneur – liability of head contractor – injury in area of sub-contractors shared responsibility – obligation to implement safe system of work – casual negligence of employees of major sub-contractor DAMAGES – torts – negligence – workers compensation – impact of substantial diminution of earning capacity in determining past and future economic loss DAMAGES – torts – negligence – workers compensation – application of compensatory principle in circumstances where different types of prosthetics available

EVIDENCE – documents – confidential documents client legal privilege – defendant swears affidavit concerning advice by former solicitor – affidavit served for purpose of interlocutory motion to amend pleadings – affidavit not relied on at interlocutory hearing – plaintiff issues subpoena to obtain documents associated with advice – claim for privilege – refusal to allow defendant to litigate issues on which advice given - whether privilege waived – whether documents can be relied on for matters of credit only – privilege not waived

CRIMINAL LAW – sentencing – murder – steal in a dwelling house – late plea – assistance given - identification of the location of the body – undertaking to give evidence against co-accused – offender with long term drug and alcohol abuse – sexual and physical abuse from early childhood – borderline personality disorder – paraphilia and sado-masochism – whether remorse – offender on conditional liberty at time of offending – long criminal record – stealing firearms and re-sale to drug dealer – discount for assistance measure in years rather than percentage – long sentence – percentage discount would result in unreasonably disproportionate sentence

JUDICIAL REVIEW – Local Court – costs in a criminal case – magistrate’s refusal to award costs to a defendant after a charge dismissed – whether the magistrate applied the proper test in determining whether the investigation had been conducted unreasonably or there had been an unreasonable failure to investigate a relevant matter suggesting the defendant might not be guilty

ADMINISTRATIVE LAW – judicial review – prisoner seeks review of decision made by governor of gaol – diligent litigant – natural justice – content determined by statute – whether plaintiff provided with copy of disciplinary charge – whether plaintiff denied opportunity to cross-examine – allegations of malice and improper purpose – where allegations not directed to decision maker – interference with administration of correctional institution

ADMINISTRATIVE LAW – Motor Accident Compensation Act 1999 – role of Proper Officer – “additional relevant material” – whether the Proper Officer’s opinion that a report provided “additional relevant material” was properly formed according to law – report not capable of constituting additional information about the causation of the injury – decision unreasonable or irrational – decision quashed – no point of general principle

PRACTICE AND PROCEDURE – civil – representative proceedings – whether court should exercise jurisdiction to restrain a firm from acting – ultimate controller and majority owner of firm representing plaintiff falls within group members in proceedings – son of ultimate controller of firm is sole director of litigation funder – whether arrangement designed to circumvent prohibition on contingency fees – litigation funder company of limited capital – whether litigation funder has sufficient capital to meet adverse costs order – plaintiff consents to firm continuing to act – plaintiff entitled to a solicitor of their choice – not in interest of justice to deprive plaintiff of their choice of solicitor – motion to restrain firm from acting dismissed

COSTS – general rule that costs follow event – multiple issues – plaintiff successful on some issues – unsuccessful on personal injury claim – otherwise successful in proceedings – whether order for costs should reflect plaintiff’s partial success – defendant to pay plaintiff’s costs of proceedings except for costs related to personal injury claim – plaintiff to pay the defendant’s costs incurred in responding to the personal injury claim

CONTRACTS - general contractual principles - offer and acceptance - whether purported acceptance of tender offer was effective - whether acceptance corresponded to offer - whether essential terms of the contract were agreed CONTRACTS - general contractual principles - offer and acceptance - whether parties intended to be bound upon acceptance of tender offer - agreement contemplating execution of additional document - use of legal context to discern parties’ objective intentions TRADE AND COMMERCE - misleading or deceptive conduct - nature of representation regarding intention to comply with terms of tender - whether subjective intention of tenderer rendered its offer non-conforming TRADE AND COMMERCE - misleading or deceptive conduct - whether silence amounted to misleading or deceptive conduct - where information otherwise publicly available

PROCEDURE – judgments and orders – motion to set aside orders – whether a substantial wrong or miscarriage was occasioned by the primary judge’s error – whether, therefore, the necessary precondition to the Court’s original order providing for limited remitter was satisfied – Uniform Civil Procedure Rules 2005 (NSW), r 51.53

DAMAGES – challenge to awards for non-economic loss and past and future economic loss – alleged failure to mitigate loss - whether failure reflected in award –effect of s 136 of Motor Accidents Compensation Act 1999 (NSW) on award of damages – relationship between ss 126 and 136 STATUTORY INTERPRETATION - Motor Accidents Compensation Act 1999 (NSW), 136 – burden of proving failure to mitigate loss – evidence required to discharge burden - whether burden of proving failure to mitigate loss requires proof of what earnings would have been if loss had been mitigated

ADMINISTRATIVE LAW – renewal of exploration licence under the Mining Act 1992 – where application for renewal was submitted on time – where new front page of application was submitted out of time ADMINISTRATIVE LAW – whether sending of new first page constitutes withdrawal or final disposal of original application under the Mining Act 1992 – whether new first page constitutes new application STATUTORY CONSTRUCTION – meaning of “finally disposed of” in ss 117 and 131 of the Mining Act 1992 – whether application may be withdrawn otherwise than pursuant to s 130 of the Mining Act 1992 – overall scheme of the Mining Act 1992

CRIMINAL LAW - application for leave under s 39 of the Evidence Act

CORPORATIONS – voluntary administration – meeting of creditors – further extension of convening period to permit sale of assets as going concern – whether assets could be sold as going concern upon conclusion of administration – position of employees and creditors under administration.

CRIMINAL LAW – application to discharge jury – witness evidence – witness met accused in gaol – whether jury heard that evidence

EQUITY – consent orders reflecting agreement by parties to compromise proceedings – whether stipulations as to time of the essence – whether waiver of those stipulations; PRACTICE AND PROCEDURE – enforcement of consent orders – whether order should be made requiring plaintiffs to execute transfer of land

EQUITY - Purchaser’s failure to pay full amount of deposit - Whether Vendor entitled to terminate for breach - Whether Purchaser entitled to relief against forfeiture

EQUITY – matrimonial dispute – mortgagee holds securities over two properties including matrimonial property – contract for sale of matrimonial property – possibility of rights of contribution arising in plaintiff – plaintiff did not enter appearance – possibility of prejudice to plaintiff upon property settlement – adjournment of matter for plaintiff’s benefit.

PRACTICE AND PROCEDURE – interlocutory orders – present plaintiff previously obtained interlocutory injunction on condition – present defendant successfully obtained an order discharging that injunction due to plaintiff’s non-compliance with condition – plaintiff brings an application for a second injunction on the same terms one day after the earlier injunction was discharged – no new evidence adduced and no new circumstances arose between the discharge of the first injunction and the application for the second injunction – evidence which the plaintiff relied on in support of the application had also been relied on by it in opposing the defendant’s application to discharge the first injunction – held, dismissing the application, that the Court should not permit the re-ventilation of an interlocutory judgment where no new evidence or circumstances have arisen PRACTICE AND PROCEDURE – interlocutory injunctions – absence of evidence that undertaking as to damages could be satisfied if called on

CRIMINAL LAW – Sentencing - Murder

FAMILY LAW AND CHILD WELFARE – adoption – application to dispense with requirement of parental consent – application made prior to making of any application for adoption order – whether it is in the best interests of the child to override the wishes of the parent – order granted – Adoption Act 2000 (NSW) s 67(1)(c)

EQUITY - Trustee seeking order under s 66G of the Conveyancing Act 1919 (NSW) for sale of the property jointly owned by bankrupt - Issue relating to net proceeds of sale of the property - Deed made at the time of purchase of property between bankrupt and her parents (the other joint owners) with a provision dealing with how the proceeds of sale are to be divided - Contribution - Exoneration - Mutual set off under s 86 of the Bankruptcy Act 1966 (Cth)