Cases and authorities

CIVIL LAW - judicial review - amended points of claim - excessive material placed before duty judge - ridiculous estimates as to length of case - President Lincoln - "surprise rule" - application to points of claim - relevance in matters of construction

CIVIL LAW - radical title - native title - removed case to High Court - removed case to Privy Council - costs order

PLEADING - defective statement of claim - no question of principle.

EQUITY - Commercial leases - Breach of a lease - Failure to rectify defects in accordance with obligations under the lease - Defendant admitted failure to rectify leaks was a breach of the lease - Failure to repair car park was a breach - Damages - Claim for loss of profits - Erroneous calculation of loss - Failure by plaintiff to establish loss - Insufficient evidence to support claim - Alternative assessment of damages - Loss not assessable on available evidence

EQUITY - Succession - claim for family provision order under Succession Act s 59 - Where applicant is an adult child of deceased - Where applicants are eligible persons - Where deceased did not make provision for applicant in will - Whether adequate provision made for proper maintenance, education and advancement in life of applicants - Considerations under Succession Act s 60(2) - Estrangement

MALICIOUS PROSECUTION - whether institution and maintenance of criminal proceedings for illegal clearing of native vegetation in the Land and Environment Court and by a case stated to the Court of Criminal Appeal was malicious and without reasonable and probable cause - misfeasance in public office - negligent misrepresentation - interference in trade or business - principle in Jones v Dunkel - claim of client legal privilege - whether plaintiffs exempt from the need to obtain development consent prior to clearing native vegetation - whether clearing part of "designated development" under s 12(f) Native Vegetation Conservation Act 1997 - whether plaintiffs entitled to rely on "rural structures" or "farm dam exemption" - whether any valid or conforming application under Part 8 of the Water Act 1912

Restraints of trade - Validity and reasonableness - Vendor of business - Purchase price payable by instalments and adjustable depending on trade experience - Restraints held invalid

FAMILY LAW - Adoption - Consent to order and dispensing with consent - When consent dispense order will be made before application for adoption order - Relevance of earlier consent dispense order when adoption order ultimately sought - Adoption Act 2000, ss 67(1)(a), 70(1)(a)

JUDGMENTS AND ORDERS - construction of orders - consent orders providing for entry of judgment and payment of interest in certain circumstances - dispute as to appropriate orders to be made

CORPORATIONS - External administration - winding up - liquidator's applications - application for directions - liquidator's remuneration - entitlement to remuneration out of assets held by company on trust - fixing remuneration

CORPORATIONS - membership, rights and remedies - derivative action - application for grant of leave by shareholders to commence and defend proceedings in name of relevant company under Corporations Act 2001 (Cth) s 237 - whether it is probable that company will not bring or defend the proceedings - whether applicants are acting in good faith in bringing or defending proceedings - whether in the best interests of company that applicants be granted leave - whether proposed proceedings involve serious questions to be tried - whether leave should be on terms that company be indemnified from costs - whether appropriate notice has been provided to company. EQUITY - equitable remedies - application for variation of freezing orders - where there have been subsequent variations to initial freezing order - where no additional material is relied upon by defendants in application for variation - where relevant monies are held by relevant defendant partly as agent for company - whether basis for further variation of freezing orders has been established - whether proposed variation accords with interests of justice.

PROCEDURE - parties - identity of proper defendant - claim for debt owing by deceased person - deceased dies intestate - estate insolvent - next of kin do not apply for Letters of Administration - creditor commences proceedings against NSW Trustee and Guardian claiming debt - whether Trustee is the proper defendant. SUCCESSION - whether the Trustee has the obligation or duty to apply for Letters of Administration - whether the Trustee has any obligations by virtue of s 61 Probate and Administration Act - whether the Trustee is proper defendant in a claim in personam where there is no representation in the estate.

ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - further medical assessment - judicial review of decision of Proper Officer - jurisdictional error - constructive failure to exercise jurisdiction -whether Proper Officer's decision was illogical or irrational - Wednesbury unreasonableness

CRIMINAL LAW - sentence - disseminate false information likely to induce persons to dispose of financial products - offender publishes hoax media release purportedly by ANZ Banking Group announcing withdrawal of facility to mining company - offender an activist against mining project - share price in mining company drops - investors lose money - offender admits hoax a short time later - whether offender intended damage to shareholders - offences involving market manipulation - whether imprisonment appropriate

PRACTICE AND PROCEDURE - Costs - Costs of appeal - General rule - Costs follow the event - Departing from the general rule - Where there has been a mixed outcome in the proceedings - Global view of the outcome of proceedings should be taken PRACTICE AND PROCEDURE - Costs - Costs in the Court below - General rule - Costs follow the event PRACTICE AND PROCEDURE - Costs -Interest under s101(4) Civil Procedure Act -Entitlement

COSTS - Application by successful respondent to appeal for indemnity costs of trial, indemnity costs of appeal and interest on its costs - no application for indemnity costs made to trial judge - no challenge to costs orders made by District Court in the appeal - dispute as to form of Offer of Compromise made before trial - possibility that evidence may have been called if indemnity costs raised in District Court - claim for indemnity costs of appeal - no offer made in appeal proceedings - reliance placed on offer made in court below - no indication to other party of intention to rely upon pre-trial offer in appeal proceedings - application for interest on costs not raised in District or on appeal - raised for first time after appeal judgment - respondent's application refused.

SEX OFFENDERS - application for an extended supervision order - long history of sexual and violent offences - orders made - no question of principle.

CIVIL LAW - MORTGAGES - claim by mortgagee for possession of land - notice of motion - writ of possession issued - application for stay of execution of writ of possession - attempts to refinance - multiple applications for stay - relevant hardship

PROCEDURE - judgments and orders - satisfaction and set-off of judgments - no power for Deputy Registrar to order under state legislation that a judgment in respect of unpaid tax debt be paid by way of instalments - Commonwealth legislation provides a comprehensive regime for the collection and recover of tax-related liabilities and other amounts - state provisions not "picked up" by Commonwealth legislation - no relevant difference between current regime and regime considered in previous decisions

CRIMINAL LAW - criminal assets Recovery act - restraining orders - Ancillary orders - Whether ancillary orders should be made ex parte - refusal of ancillary orders ex parte - whether ex parte applications should be dealt with in chambers

CRIMINAL LAW - criminal assets Recovery act - restraining orders - Ancillary orders - Whether ancillary orders should be made ex parte - refusal of ancillary orders ex parte - whether ex parte applications should be dealt with in chambers

CRIMINAL LAW - high risk offenders - consent orders - interim supervision orders - sexual offences - psychological assessment

EQUITY - Succession - Claim for family provision - Plaintiff not an eligible person - Plaintiff not a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death - Plaintiff not a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death - Plaintiff not wholly or partly dependent on the deceased person

CORPORATIONS - External administration - winding up - winding up in insolvency - creditor's statutory demand - validity - where accompanying affidavit does not verify debt claimed - whether non-compliance with s 459E(3) renders demand ineffective - held, it does - service - by registered post - whether Evidence Act s 160 applies to service of demand - held, it does

PROCEDURE - amendment - application to amend cross-claim - whether amended cross claim pleads causes of action barred by limitation periods - whether amendments based upon evidence that goes beyond what has been exchanged - whether proposed form of cross-claim is deficient

PRACTICE AND PROCEDURE - motion to dismiss proceedings to have defendant declared a vexatious litigant - challenge to retainer of Crown Solicitor - whether legal representation should be provided for defendant - whether proceedings should be stayed because of defendant's ill health - refusal of adjournment application by defendant - defendant's motion dismissed with costs.

CRIMINAL LAW - appeal - sentencing - discount for guilty plea - discount for assistance to authorities - whether error in calculation CRIMINAL LAW - appeal - sentencing - parity between co-offenders CRIMINAL LAW -appeal - sentencing - whether failure to take into account relevant considerations - remorse - delay - rehabilitation

PROCEDURE - application for adjournment sought pending appeal against refusal of legal aid - matter set down for ten days - applicant had represented to the court that he was ready for hearing - special circumstances - does not appear that the appeal is bona fide

CIVIL LAW - unrepresented plaintiff - summary judgment - summary dismissed - application for summary dismissal refused.

CIVIL LAW - enforce foreign judgments - enforce judgment from United States District Court - ex parte - consent to jurisdiction - consent to foreign jurisdiction - settlement agreement - fixed debt - United States jurisdiction

PRACTICE AND PROCEDURE - Applications - Leave to appeal against dismissal of an application to extend a stay of execution of writ of possession - Ground of hardship - Whether arguable that the primary judge erred in the exercise of his discretion

APPEAL - proceedings struck out for want of prosecution - leave required - no explanation for failure to prosecute claim in timely manner - no evidence as to response to objections, lack of which constituted the basis for striking out claim PRACTICE AND PROCEDURE - extension of time to seek leave to appeal - whether arguable ground of appeal - lack of explanation of delay

APPEAL - competency - appeal brought purportedly as of right from summary dismissal of proceedings - Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 not followed - appeal dismissed as incompetent COSTS - objection to competency brought after 28 day period in UCPR r 51.41 - costs of objection to competency governed by that regime - prejudice to appellant by reason of delay - no order as to costs

TORT - negligence - breach - motor vehicle accident - fatal collision with pedestrian - finding at trial of driving at excessive speed - whether there was a failure to take reasonable care in respect to pedestrians - failure to reduce speed as a precaution to avoid the risk of harm - Civil Liability Act 2002 (NSW), s 5B TORT - negligence - causation - motor vehicle accident - excessive speed found at trial to have caused collision - whether trial judge erroneously relied on hindsight in determining causation - error alleged in establishing causation from the speed at which the collision could have been avoided - Civil Liability Act 2002 (NSW), s 5D TORT - negligence - contributory negligence - motor vehicle accident - pedestrian crossing against red pedestrian light despite oncoming traffic - whether reduction of damages for contributory negligence at trial inadequate - general principles - relative culpability of the parties - whether a driver is more culpable because conduct potentially more dangerous - consistency with the standard of care under the Civil Liability Act for determining negligence - Civil Liability Act 2002 (NSW), ss 5B, 5R

PRACTICE AND PROCEDURE - variation of orders - respondent incurred disbursements enforcing orders after applicants commenced judicial review proceedings - stay of orders granted conditional on bank guarantee from applicants for costs incurred - applicants successful - allowance made for disbursements incurred by respondent enforcing orders in light of prejudice caused by delay by applicants - whether allowance extends to disbursements incurred after proceedings commenced - Uniform Civil Procedure Rules 2005 (NSW), r 36.16 PRACTICE AND PROCEDURE - application of slip rule - scope and nature of slip rule - discretion in exercising power under slip rule - whether appropriate to exercise power - variation proposed involves substantial alteration of parties' rights - Uniform Civil Procedure Rules 2005 (NSW), r 36.17 - power to waive requirement as to formal notice of motion - Civil Procedure Act 2005 (NSW), s 14

TORT - negligence - breach of duty - psychiatric injury caused by death of mother - mother hospitalised and unable to consent to medical treatment - appointed legal guardian (appellants' father) consented to palliative treatment - whether advice to guardian negligent - whether medical treatment to mother was negligent - whether consent to treatment by legal guardian valid PRACTICE AND PROCEDURE - conduct of trial judge in relation to self-represented litigants - allegation of bias against self-represented litigants - whether trial judge improperly interfered and prevented examination of witnesses

SUCCESSION - family provision and maintenance - application by two applicants for family provision order under Succession Act 2006 (NSW) s 59 - where applicants are adult children of deceased - where defendant, as adult child of deceased, is sole executor and beneficiary under estate - where deceased did not make provision for applicants in will - where applicants are eligible persons - whether adequate provision made for proper maintenance, education and advancement in life of applicants - considerations under Succession Act s 60(2) - whether orders for family provision should be made in applicants' favour.

CRIMINAL LAW -special hearings -statutory interpretation -whether s 19 Mental Health (Forensic Provisions) Act 1990 creates limitation period within which special hearing must be conducted.

PROCEDURE - judgments and orders - contempt - civil contempt - ex parte suppression order - defendant published matter, including on the internet, in breach of the order - whether publication in contempt of court.

SUCCESSION - Two Plaintiffs, each a child of the deceased, makes a claim for a family provision order - No dispute as to eligibility - Some provision made for each Plaintiff in the Will of the deceased - Legacy to third child of the deceased - The Defendant and two grandchildren of the deceased are residuary beneficiaries - Small estate -Whether family provision order should be made for either Plaintiff, and if so, the nature and quantum of the further provision to be made - Order for provision for each Plaintiff - Necessary to make adjustment order under s 66 of the Act

REAL PROPERTY - possession of land - application for a stay of a writ of possession - dispute about formation and terms of settlement deed - whether in interests of justice to stay writ of possession so that dispute can be litigated

COSTS - professional negligence - verdict for the defendant - general rule that costs follow the event under UCPR 42.1 - whether court should order otherwise - whether order should reflect plaintiff's partial success - whether plaintiff should be awarded nominal damages

PRACTICE - pro bono referral - novel questions of statutory construction of general application - referral ordered

PRACTICE AND PROCEDURE - stay of writs for possession pending appeal - appeal reasonably arguable - common ground appropriate case for stay - issue as to appropriate amount of interest payments for duration of stay - relevance of delay by judgment creditor occasioning prejudice to appellant - proper basis for stay made out

ESTOPPEL - former adjudication - issue estoppel - matters necessary to the decision - identity of parties - whether the Fair Work Ombudsman was the privy of the respondent employee in earlier proceedings - whether the issue of the respondent's employment by the appellant had been decided in the earlier proceedings EMPLOYMENT LAW - the relationship of employer and employee - whether the respondent was an employee of the appellant - whether that relationship was affected by a company inter-positioned between the appellant and respondent

ADMINISTRATIVE LAW - judicial review - appeal from the Local Court to the District Court in respect of a conviction for an offence under the Public Health Act 1991, s 13 dismissed - whether jurisdictional error established ADMINISTRATIVE LAW - procedural fairness - bias - apprehended bias - whether a bias or apprehended bias - observation not supported by evidence - whether observation matter of judge's personal opinion - whether observation available as a matter of common experience - whether relief should be granted - matter remitted to the District Court

CRIMINAL LAW - Accused charged with murder - Basha inquiry in advance of trial - Crown application that witness give evidence at Basha Inquiry by CCTV and in closed court - powers of Court under s.26 Evidence Act 1995 - application allowed

CORPORATIONS – winding up – winding up in insolvency – where corporation is subject to voluntary winding up – application by voluntary liquidators in order to provide standing for proceedings to recover dispositions

CORPORATIONS - deregistration - reinstatement under Corporations Act (2001) Cth s 601AH(2) - whether plaintiff is a person aggrieved by deregistration of a company - whether just to reinstate the registration of a company - whether company is insolvent - whether a liquidator could be appointed to company.