Cases and authorities

ADMINISTRATIVE LAW - challenge to convictions by magistrate - challenge based on purported right to trial by jury - identical proceedings already determined by Court of Appeal - no different basis shown for present proceedings - application by Defendant to dismiss summarily - proceedings dismissed

COSTS - request for transcription of solicitor's file notes - delay in complying - where no contest that transcription was necessary

PROCEDURE - contempt, attachment and sequestration - contempt of court - where court ordered that parties take reasonable steps to cause all cash takings for businesses to be deposited into bank accounts subject to payments to creditors and employees in cash if "required" - whether respondent had breached court order - whether respondent was an employee or creditor entitled to unpaid wages in relevant period - whether payment in cash was "required" - whether terms of court order were clear and unambiguous - whether respondent held an honest and reasonable belief. WORDS AND PHRASES - "required".

MOTOR ACCIDENT - injury - causation - significance of contemporaneous complaint

MOTOR ACCIDENT - compensation - assessment - what is acceptance

CONTRACT - breach of contract - contract for the sale of land - failure by purchaser to complete - assessment of damages - purchase price partly dependent on extent to which land can be developed

COSTS of substantive proceedings involving determination whether Plaintiff totally and permanently disabled in which Defendants successful

COSTS - indemnity costs - offer of compromise - UCPR where offer not accepted and judgment no more favourable to plaintiff - whether circumstances exist to depart from rule as to costs - whether offer of compromise conformed with UCPR requirements

COSTS - application for indemnity costs following Calderbank letters - application for gross sum costs order

EVIDENCE - admissibility - opinion evidence - worker exposed to asbestos dust during employment - admissibility of statements of workers alleging exposure to asbestos dust - whether identification of dust as asbestos inadmissible as opinion - whether evidence admissible as perception of a fact - whether evidence admissible as opinion based on specialised knowledge - Evidence Act 1995 (NSW), ss 76(1), 78, 79 TORT - joint tortfeasors - contribution between tortfeasors - worker sued statutory authority in negligence - statutory authority settled without admitting liability - statutory authority sought contribution from worker's employer - whether statutory authority liable to worker - whether erroneous apportionment of liability - whether failure to consider relative culpability of parties - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2) TORT - negligence - duty of care - statutory authority regulating stevedoring industry - worker exposed to asbestos dust when employed by a stevedore - worker not a registered waterside worker - whether statutory authority owed a duty of care to persons other than registered waterside workers - functions and powers of the statutory authority- breach of duty - whether evidence established breach - Stevedoring Industry Act 1956 (Cth), ss 7, 8, 17, 18, 28, 29, 33, 39, 41

APPEAL - extension of time - whether arguable case of error - effect of orders under appeal - orders made in absence of applicant - whether arguable case of procedural unfairness - whether orders arguably too broad - grant of leave PRACTICE and PROCEDURE - application for leave to appeal - appeal from orders under Vexatious Proceedings Act - whether leave required to seek leave to appeal - whether orders should be varied to allow applicant to challenge his present incarceration PRACTICE and PROCEDURE - orders under Vexatious Proceedings Act - whether orders prevent appeal against criminal conviction and sentence - weight to be given to conduct in defending criminal proceedings - whether blanket orders justified

EQUITY - assignment or charge of property - appellant engaged agent to organise tour by musical group The Jacksons - agent gave concert venues irrevocable directions to pay part of ticket sale proceeds to the respondent to discharge personal debt - whether agent had authority to deal with ticket sale proceeds on behalf of appellant - whether appellant precluded from withdrawing irrevocable directions to pay - election - whether appellant's conduct in earlier District Court action precluded it from bringing the present proceedings - whether appellant had alternative or cumulative remedies

TORTS - negligence - claim by pedestrian against Nominal Defendant - pedestrian injured by minibus at airport which departed shortly after the accident - whether driver of minibus was negligent - whether fact finding of trial judge glaringly improbable - failure by driver to keep a proper lookout - contributory negligence - failure by pedestrian to keep a proper lookout - apportionment of liability more heavily weighted against driver - whether due inquiry and search established - particular circumstances of accident - meaning of "due" inquiry and search - failure to access to CCTV film within 28 days - appeal allowed in part.

CRIMINAL LAW - Crown application for an adjournment - subpoenaed witness not present - bench warrant issued - possible exclusion of other evidence as a result of unavailability of the witness

APPLICATION to amend - no issue of principle

SERIOUS SEX OFFENDER - application for extended supervision order - Defendant (then aged 20 years) committed sexual offences of utmost objective gravity over nine-month period in 1989 and 1990 - 11 victims of different ages and sexes attacked in variety of circumstances -substantial degree of forethought and preparation - sentenced in 1991 to 24 years' imprisonment with non-parole period of 14 years - Defendant in prison for 22 years before release on parole in 2012 - no evidence of breach of stringent parole conditions or later interim supervision order -Defendant suffering from multiple paraphilias and anxiety disorder - ongoing anti-libidinal medication and psychiatric treatment necessary to reduce risk of reoffending - progress made by Defendant under strict supervision - Defendant (aged 45) still a relatively young man - five year order appropriate - extended supervision order made

PROCEDURE - application for interlocutory injunctive relief - where relief sought under s 26B, Div 2A of the Building and Construction Industry Security of Payment Act 1999 (NSW) - whether serious question to be tried - where relief sought under s 14 of the Contractors Debts Act 1997 (NSW) - whether sufficient evidence that defendant owes unpaid person money under- whether to grant injunction under court's general power where granting relief would be inconsistent with policy of Building and Construction Industry Security of Payment Act 1999 (NSW) - whether to grant injunction under court's general power where no real risk of detriment to applicant.

CRIMINAL LAW - proceeds of crime - forfeiture order

REAL PROPERTY - possession of land - plaintiff entitled to possession against mortgagor/registered proprietor - application by occupier to be joined to proceedings - occupier entered into 20 year unregistered lease with registered proprietor - occupier entered into contract to purchase the land from registered proprietor - contract uncompleted - occupier entered into deed with registered proprietor to crystallise debt owing to occupier for work performed - no stamp duty paid on any agreement - occupier has no legal interest in land - application dismissed

COSTS - application for indemnity costs -Calderbank letter - whether Calderbank offer was a genuine compromise - whether rejection of offer was unreasonable

MEDICAL NEGLIGENCE - experts - joint conferences of experts - where complex issues of breach of duty and causation arise - constitution of conferences dealing with competing opinions derived from differing medical specialties - whether conferences should be divided along lines of expertise or issues

PROCEDURE - submitting appearance entered by mistake - application to set aside judgment refusing leave to withdraw submitting appearance under UCPR 36.16 -whether defendant has an arguable defence - application to set aside final judgment under UCPR 36.15 - whether judgment obtained irregularly or against good faith

ADMINISTRATIVE LAW - cancellation of plaintiff's accreditation - jurisdictional error - failure to take into account a relevant consideration

COPYRIGHT - musical work - alleged infringement - requirements of United States law CONTRACT - novation, assignment or variation of contractual obligations - no proof by plaintiff GOOD FAITH - whether conduct of defendant in failing to exercise its discretion to institute and prosecute copyright proceedings in the United States was honest and reasonable GOOD FAITH - contractual relationship - requirement of good faith has subjective and objective components GOOD FAITH - contractual relationship - no independent good faith obligation outside contract EVIDENCE - Jones v Dunkel inference - not available in the absence of evidence capable of supporting inference EVIDENCE - speculation and conjecture not evidence

SENTENCE - Crown appeal against inadequacy of sentence - breaking and entering and committing a serious indictable offence in circumstances of special aggravation under s 112(3) Crimes Act 1900 - whether sentence inadequate having regard to a number of specified errors - whether due or proper regard given to standard non-parole period for s 112(3) offences

PROCEDURE - slip rule - when to clarify orders - remitting proceedings to the Equity Division - no error shown in the orders - no other basis for modifying the orders

LEGAL AID - pro bono assistance - judicial review of decision of Civil and Administrative Decisions Tribunal - prior referral for assistance - limited referral - related proceedings arising from same incidents and part of the same claim - special reasons

CRIMINAL LAW - appeal against conviction - seven counts of dishonestly obtaining a financial advantage by deception by lodging tax returns which did not disclose all assessable income - where Crown relied on the non declaration of a number of payments said to be income, whether trial judge erred in not directing jury that must be unanimous with respect to payments not disclosed which resulted in financial advantage - whether lodging of a tax return understating taxable income capable of constituting the obtaining of a financial advantage - whether trial miscarried because amended notices of assessment in respect of payments said to be income admitted in evidence - whether trial judge erred in not directing jury that to find financial advantage had to be satisfied beyond reasonable doubt that there were not deductible expenses associated with amounts of income not disclosed - whether verdicts were unreasonable and not supported by the evidence - whether there was a miscarriage of justice because Crown did not call witness who audited financial statements tendered in the appellant’s case

EQUITY - rescission for fraudulent representation - compromise of litigation induced by fraudulent representation in affidavit - test for causation - whether substantial restitutio in integrum possible where separate settlement by representor and other parties not set aside PRINCIPAL AND AGENT - power of attorney under Conveyancing Act 1919 (NSW) s163B - whether agent had authority to enter contract on behalf of principal which was to agent's benefit and not to principal's benefit - actual authority - apparent authority - ratification STATUTORY CONSTRUCTION - "on behalf of" - relevance of style of legislative drafting - relevance of literal meaning and structure of section - relevance of Law Reform Commission report

PROCEDURE - interlocutory applications - notices of appeal filed out of time - summary dismissal sought for incompetence - non-compliance with the Uniform Civil Procedure Rules 2005 (NSW) by not specifying an address for service in NSW - dismissal for non-attendance under UCPR r 13.6

APPEAL - adjournment - whether the primary judge erred in failing to grant an adjournment - whether the primary judge failed to take relevant matters into account APPEAL - rehearing - whether the primary judge erred in failing to grant a rehearing to allow the appellant to put on additional evidence APPEAL - whether the primary judge erred in accepting the uncontested evidence of the respondent in circumstances where the appellants did not appear - whether the primary judge erred in having regarding an unsworn affidavit that was not in evidence PRACTICE - obligation to join all parties directly affected by orders sought - whether the Crown (whether in the right of the State or Commonwealth) is a necessary party in circumstances where a liquidator has disclaimed any interest in personal property the subject of a charge - whether the need to join the Crown can be dispensed with - need to notify the Crown of the proceedings and afford the Crown the opportunity to be joined

ADMINISTRATIVE LAW - judicial review - error of law - tribunal declined to reallocate unit entitlements in strata scheme - appeal to District Court - remittal to tribunal ordered on the basis that there was a failure to give reasons - whether an error of law disclosed in requiring the issue of control of strata scheme management to be considered on remittal REAL PROPERTY - strata titles - management and control - allocation of unit entitlements - power to reallocate units entitlements if original allocation considered unreasonable - relevant considerations - whether the only relevant consideration is "the respective values of lots" - whether control of strata scheme management by a lot is a relevant consideration - Strata Schemes Management Act 1996 (NSW), s 183

TORT - negligence - railway accident - plaintiff fell onto railway tracks at night - driver perceived an object on tracks - applied emergency brakes after realising object was a person - plaintiff struck by train - duty of driver - vicarious liability of railway authority - whether driver failed to keep a proper lookout - whether driver failed to apply emergency brakes in due time - whether breach caused collision - whether railway authority directly liable for failure to provide instructions on applying emergency brakes

CRIMINAL LAW - murder trial - discharge of jury at first trial after significant new evidence came to light - defence application for Basha inquiry concerning two witnesses in advance of second trial - allegations by witness of sexual assault by Accused - Accused not charged with sexual assault - objection by Crown to Basha inquiry involving that witness - factors relevant to decision to order a Basha inquiry and the scope of the inquiry - orders made for Basha inquiry

COSTS - indemnity costs - application for indemnity costs resulting from conduct of a party

CRIMINAL LAW - joint application for an adjournment - subpoenaed witness not present - bench warrant issued - possible exclusion of other evidence as a result of unavailability of the witness

REAL PROPERTY - Section 55 of Conveyancing Act - recovery of deposit - principles applicable SET OFF - set off between judgments - judgment for balance - principles applicable

CRIMINAL LAW - proceeds of crime - restraining orders

PROCEDURE - approval of settlement of proceedings - plaintiff under a legal incapacity - whether settlement beneficial to the plaintiff - risks in the litigation - limited pool of funds to satisfy judgment - settlement approved

TORT - NEGLIGENCE - allegation that police breached duty by not acting as delivery service for documents - no liability - damage said to be failure of criminal appeal and sentence by District Court - no relevant damage

REAL PROPERTY - possession of land - mortgages - default - Contracts Review Act - parents of borrowers gave guarantees and mortgages - transfer of banks by borrowers - parents become borrowers and mortgagors - knowledge of parents - whether kept in the dark by children who benefited from loans - whether change of status explained by lawyers or other persons - improvidence of loan agreements - notice of lender of true position - failure of lender to follow guidelines - effect on lending - mortgage broker - whether agent of lender for purposes of Financial Transaction Act EVIDENCE - proof - inferences - failure of both sides to call some witnesses - whether Jones v Dunkel inference available - effect of such inference

CRIMINAL LAW - appeal against sentence - accessory after the fact to murder - whether sentencing judge erred in failing to backdate the sentence to take into account the applicant's pre-sentence custody - whether sentencing judge erred in assessment of objective seriousness - whether sentence is manifestly excessive - parity

CRIMINAL LAW - proceeds of crime - restraining orders - unexplained wealth order

Agency - sufficiency of evidence of show - goods vendor and financier.

CRIMINAL LAW - juror anxiety with subject matter of trial - juror discharged - whether to discharge whole jury - trial at very early stage - accused and Crown entitled to trial by jury of twelve

PRACTICE AND PROCEDURE - application to file second amended statement of claim - no matters of principle - expert witness - Court appointed costs expert - whether order should be varied

PROCEDURE - application for summary dismissal of plaintiffs' claim under Uniform Civil Procedure Rules 2005 (NSW) r 13.4 - whether proceedings are frivolous or vexatious in nature - where plaintiffs do not have a caveatable interest in relevant land - whether plaintiffs have standing to seek relief under Supreme Court Act 1970 (NSW) ss 65, 66 - whether summons is an abuse of process. REAL PROPERTY - Torrens title - caveats against primary applications - whether lodgement of caveat either expressly or by necessary implication ousts Court's jurisdiction to make orders or grant relief under Supreme Court Act ss 65, 66.

PROCEDURE - summary dismissal - professional negligence proceedings - claim against former solicitors - pleading - embarrassing pleading - no reasonable cause of action disclosed - proceedings dismissed

TRANSFER OF PROCEEDINGS - Civil Procedure Act - motor vehicle injury - jurisdictional gateway not satisfied - other orders available to avoid abuse of process or inconsistent judgments - stay pending judicial review of medical panel