Cases and authorities

Negligence - Motor Vehicle Accident - whether within MACA Act - damages

EMPLOYMENT - contract of employment - termination by employer on payment of five weeks salary in lieu of notice - inadequate notice - period of reasonable notice - whether employees conduct involved actual or potential conflict of interest - whether employees conduct amounted to breach of contractual, fiduciary, and statutory duties - whether employer entitled to resist claim for damages for unfair dismissal. DAMAGES - whether employee entitled to pro rata bonus - long service leave - calculation of "ordinary pay" under s 3(1) Long Service Leave Act 1955 - whether the amount of the worker's average weekly wage under s 3(1)(b) includes superannuation contributions.

COSTS of substantive proceedings in which Plaintiffs successful in recovering funds payable to the estate of the deceased and where first Defendant successful in obtaining a family provision order out of deceased's estate but where Defendants otherwise unsuccessful INTEREST - Whether interest payable on lump sum ordered to be paid - If so, at what rate pursuant to s 100 Civil Procedure Act before judgment and at what rate pursuant to s 101 of Civil Procedure Act FREEZING ORDER - Whether freezing orders made earlier in the proceedings and continued until further order should be continued until balance of judgment debt satisfied

TORTS - heavy loads - worker injured - liability of contractor for contractee's employee - duty of care - joint tortfeasors - insurer of liquidated company - applicability of policy exclusions

PROCEDURE - discovery and interrogatories - discovery and inspection of documents - whether to order discovery of documents which are not relevant to the issues as they appear from the pleadings - whether to order discovery of documents where property the subject of the order was not disclosed in the particulars COSTS - general rule that costs follow the event - where requests made by motion were overly ambitious - where argument justified - whether to order costs in favour of party who had substantial success on the application

PRACTICE AND PROCEDURE - interlocutory applications - application for one of four applicants for leave to appeal to be separately represented - application opposed by all other active parties - application refused

REAL PROPERTY - easements - short form "easement to drain water" in Pt 3 of Sch 8 to the Conveyancing Act 1919 (NSW) - construction of proviso requiring the owners of the dominant tenement to restore the land to its "original condition" - whether proviso breached LIMITATION OF ACTIONS - contracts, torts and personal actions - when time begins to run - whether the cause of action was founded on contract, quasi-contract or tort - whether the cause of action was founded on a deed owing to s 36(11) of the Real Property Act 1900 (NSW)

TRUSTS - rights of beneficiaries - one of two adult beneficiaries directs trustee to transfer half of a parcel of 50% of shares in a private company - other beneficiary opposes transfer - nature of "rule" in Saunders v Vautier - nature of power of adult beneficiary with absolute vested and indefeasible interest in trust property - exception where "special circumstances" - irrelevance of trust being a trust for sale with a power of postponement - irrelevance of duty of impartiality - no quantified prejudice to remaining beneficiary - no relevant prejudice merely in splitting parcel of shares with a measure of control - no sound basis to depart from existing line of long-standing authority in relation to parcels of shares TRUSTS - trusts and trustees - judicial advice under s 63 Trustee Act 1925 (NSW) - nature and history of application for advice - appropriateness of review of long-standing authorities on an application for advice - nature of appeal from giving of judicial advice

PRACTICE AND PROCEDURE - appeal - decision of Appeal Panel of Administrative Decisions Tribunal - application to extend time - notice of intention to appeal filed out of time - summons seeking leave to appeal filed shortly out of time - summons not served until a month after filing - no explanation of delay - whether prejudice to respondent from delay - whether applicant has a fairly arguable case - Uniform Civil Procedure Rules 2005, r 51.9

EQUITY - CO-OPERATIVES - where member of community radio station expelled at special general meeting - where proper notice of meeting but inadequate particulars provided and only at request of member - whether resolution to expel sufficiently precise - whether one or two stage approach necessary in light of Battle v Bundagen Co-Operative Ltd - whether plaintiff given reasonable opportunity to be heard - whether breach of natural justice COSTS - whether costs should follow the event - proper exercise of discretion to order otherwise in case of successful plaintiff - where offer made by plaintiff totally unworkable - where breach of confidentiality by plaintiff in relation to settlement negotiations - where solicitors for plaintiff rejected mediation as unsuitable - whether factors taken together sufficient to order otherwise than that costs should follow the event

PROCEDURE – civil – r 31.20 and r 31.26 UCPR – application to prevent plaintiff relying upon expert evidence – three joint reports from separate conclaves already prepared – whether new expert evidence will affect existing reports – not just to deprive plaintiff of adducing further evidence – no delay to proceedings – application dismissed

CORPORATIONS - voluntary administration - application by administrators for directions under Corporations Act 2001 (Cth) s 447D - where relevant company and its subsidiaries have amounts of monies that are overdue or immediately due - whether administrators would be justified in procuring the company to enter into, and draw down under, a facility agreement - whether administrators would be justified in procuring the company to lend monies to subsidiaries under relevant intercompany loan agreements. CORPORATIONS - management and administration - orders sought for modification of operation of Corporations Act s 443A for limitation of company's and administrators' personal liability in respect of relevant borrowings - whether interests of company's creditors best served by administrators' actions - whether creditors of company are prejudiced or disadvantaged by orders sought. CORPORATIONS - management and administration - meetings - application for extension of convening period for second meeting of creditors - whether extension in best interest of company's creditors - whether prejudice caused to any party.

PROCEDURE - civil - judgments and orders - summary judgment for plaintiff mortgagee - leave to issue Writ of Possession granted - plaintiff in possession of land - auction campaign commenced - offers for purchase received - whether mortgagee's exercise of power of sale is lawful - whether reasonably arguable question as to whether service of Notice pursuant to s 57(2)(b) Real Property Act was effected - Conveyancing Act 1919; s 170 - two occasions of service asserted - service by post to property - service on occupiers of property - whether Court should exercise its residual discretion to restrain sale - delay likely to cause financial detriment to mortgagee - balance of convenience

EQUITY - appropriate date for interest under Insurance Contracts Act 1984 - whether costs should be apportioned - whether indemnity costs should be ordered - where validity of offer of compromise not challenged - whether reasonable for defendant not to accept plaintiff's offer - whether interest on costs should be awarded

EVIDENCE - admissibility and relevancy - facts relevant to facts in issue - whether highly confidential commercial documents can be tendered to assist interpretation of a contract clause - whether the tender purpose is relevant to the proceedings - tender rejected principally on lateness

COSTS - Application for Security for Costs - no issue of principle

EQUITY - trusts and trustees - application for judicial advice pursuant to s 63 of the Trustee Act 1925 - Judicial advice given to an administrator of an estate in respect of the commencement of proceedings in connection with a claim made by a beneficiary as to an interest in a trust asset.

REAL PROPERTY - possession of land - default under mortgages - admissions by defendants in defences of all matters pleaded - defences struck out

CIVIL - appeal from a decision of an Associate Judge - claim in professional negligence arising from failure properly to pursue claims founded upon a personal injury - whether the costs are limited by the costs limitation provision contained in s 338 of the Legal Profession Act 2004 - construction of the meaning of "personal injury damages" imported into s 338 from the Civil Liability Act - construction of the phrase "relate to"

CONTRACT - formation - oral agreement said to be partly evidenced in writing - binding agreement not established

PROCEDURE - civil - pleadings - application to strike out amendments to List Response - where List Response amended to identify further potential "concurrent wrongdoers" in "apportionable claim" under Civil Liability Act 2002 (NSW), Pt 4, s 34 - where amendments not properly pleaded or particularised - whether delay in amending List Response caused substantial prejudice to plaintiffs TORTS - proportionate liability - whether claims for contribution by defendants against other potential concurrent wrongdoers precluded by operation of Civil Liability Act 2002 (NSW), s 36

APPEAL - appeal from the Local Court - discretion to exclude improperly or illegally obtained evidence - common law restrictions on the power to arrest - whether citizens arrest by a transit officer improper or in contravention of an Australian law - adequacy of magistrate's reasons - ex tempore reasons

CRIMINAL LAW - summary jurisdiction - multiple offences - Road Transport (General) Act 2005 - Road Transport (General) Regulation 2005 - offences by company - offences by directors - offences by schedulers - breaches of heavy vehicle driver fatigue management requirements - standard work hours - driving while fatigued - guilty pleas CRIMINAL LAW - sentencing - Road Transport (General) Act 2005 - Road Transport (General) Regulation 2005 - breaches of statutory requirements - significant potential for injury, loss or damage - whether 'one person company' - whether multiple offences were products of a single act of criminality - principle of totality - levels of seriousness of criminality - offences committed without regard to public safety - no previous convictions - good character - unlikelihood of re-offending - discount for guilty pleas - fines imposed

ADMINISTRATIVE LAW - judicial review - grounds of review - Building and Construction Industry Security of Payment Act 1999 (NSW) - adjudication determination - whether identity of parties to construction contract a jurisdictional fact - whether decision by adjudicator as to identity of contracting parties reviewable for jurisdictional error - distinction between determination of a jurisdictional fact with binding legal effect and the formation of an opinion by an administrative body in relation to a jurisdictional fact - whether denial of natural justice - whether adjudicator took into account all relevant factual matters

COURTS - jurisdiction - proceedings in Supreme Court to enforce settlement of matrimonial cause embodied in consent orders of Family Court - whether appeal lay to Court of Appeal - first duty of courts to determine jurisdiction - nature of proceeding to enforce settlement of dispute arising under federal law - proceeding was a matter arising under Family Law Act - prohibition on commencing appeal other than in Full Court of Family Court in Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied - appeal dismissed

BAIL - grant of bail after court reserved decision on appeal against sentence - special or exceptional circumstances - unacceptable risk.

CRIMINAL LAW - sentence appeal - two counts of supply a commercial quantity of a prohibited drug - whether sentencing judge relied upon cases infected by "Muldrock error" - no "Muldrock error" in reasoning of sentencing judge - whether sentence manifestly excessive - sentence while heavy not unreasonable or plainly unjust - no basis established for interfering with discretion of sentencing judge - leave to appeal granted but appeal dismissed.

CRIMINAL LAW - appeal and new trial - appeal against conviction - jury convicted on counts 2 and 3 and failed to reach a verdict on count 1 - lengthy trial - alleged lack of clarity in Crown case and judge's summing up on counts 2 and 3 - complaint not made at trial - no substance in complaint - leave refused CRIMINAL LAW - appeal and new trial - appeal against sentence - sentence already served in full prior to appeal being heard - no prospect of s 19B Crimes Act 1914 (Cth) being satisfied - leave to appeal refused.

DEFAMATION - Defamation Act 2005 - pleadings - imputations - Uniform Civil Procedure Rules 2005 , r 14.30 - whether imputations differ in substance - imputation too vague and imprecise - imputation bad in form

EVIDENCE - relevance - tendency

CRIMINAL LAW - application for inquiry into conviction - Crimes (Appeal and Review) Act 2001 (NSW), Part 7 - whether there is a doubt or question as to the convicted person's guilt - allegation that trial judge was asleep and jury was distracted as a result - whether this can found "a doubt or question" pursuant to s 79(2) - consideration of the nature and scope of the test contained in s 79(2)

EVIDENCE - admissibility - opinion; lay -whether lay opinion regarding positioning of a sign falls into the lay opinion exception s 78 Evidence Act 1995 (NSW)

ADMINISTRATIVE LAW - whether seriously arguable that certiorari lies to quash interim care order of Children's Court - whether reasons part of record FAMILY LAW AND CHILD WELFARE - Parens patriae jurisdiction - whether exceptional circumstances warranting intervention - Children's Court order granting interim parental responsibility to the Minister stayed - earlier order reflected need for baby and mother to bond - no rational ground to rescind that order

EQUITY - Trusts - Property purchased in name of defendant as residence for both defendant and plaintiff - Arrangement not reduced to writing - Plaintiff funded bulk of purchase price with defendant borrowing supplementary funds - Whether plaintiff intended his contribution t o be an outright gift to the defendant - Whether defendant held property on trust for the plaintiff and himself in equal shares - Parties purchased property as owners in equal shares - Relief granted

PROCEDURE - application for leave to file amended cross-claim - joinder of additional parties to cross-claim - whether proposed pleadings state the claim with sufficient clarity - whether aspects of pleadings seek to reagitate matters previously addressed in appellate judgment - whether relevant pleadings are seriously arguable as a matter of law - whether permitting additional issues to be raised in these proceedings would facilitate the just, quick and cheap resolution of real issues in proceedings - principles of case management.

EVIDENCE - admissibility - relevance

EVIDENCE - view; application for - whether view appropriate

FAMILY LAW AND CHILD WELFARE - surrogacy arrangement - application for parentage order under Surrogacy Act 2010 (NSW) - whether preconditions in Division 4 of Part 3 of the Act are satisfied - parentage order made

BUILDING AND CONSTRUCTION - Practice and procedure - application for stay of order that money paid into court for interlocutory relief be paid to defendant - whether to grant application for stay where risk that defendant may become insolvent before final relief granted - whether to grant application for stay where plaintiff considering whether to challenge earlier decision on appeal. PROCEDURE - costs - whether to make an order as to costs in respect of cross-claim where cross-claim essentially defensive - whether to make an order as to costs where issues raised by cross-claim not yet decided

CRIMINAL LAW - sentence - sexual intercourse with a child - appeal against sentence - crown appeal - manifestly inadequate - residual discretion on re-sentencing - discount for late plea - social deprivation - new sentence imposed.

CRIMINAL LAW - Appeal - Practice and procedure - Offence of having sexual intercourse without consent - Where matter referred to the Court of Criminal Appeal following an application under the Crimes (Appeal and Review) Act 2001 - Where referral made on single ground of Muldrock error - Where appellant sought to raise additional grounds - Whether appellant required an extension of time and leave of the Court in order to be able to rely upon such grounds - Where unnecessary to determine that question in light of error found in respect of the ground which was the subject of the referral CRIMINAL LAW - Appeal - Muldrock error - Where sentencing judge engaged in two-stage process of sentencing - Error made out - Necessity to consider the remaining three grounds in determining whether some other sentence was warranted in law and should have been passed CRIMINAL LAW - Appeal - Where legislation made provision for alternative bases on which jury could be satisfied of the appellant's knowledge of lack of consent on the part of the victim - Where Crown submitted on sentence that a finding should be made that the appellant knew that the victim was not consenting to sexual intercourse - Where no contrary submission was made by counsel for the appellant on sentence - Whether sentencing judge had an obligation to consider the remaining alternatives CRIMINAL LAW - Appeal - Where sentencing judge did not specifically refer to low risk of re-offending - Where specific reference to such risk in Pre-sentence report - Where sentencing judge obviously aware of report - Necessity to make allowance for the fact that reasons were delivered ex tempore immediately following sentence proceedings CRIMINAL LAW - Appeal - Where error found - Where appellant sentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years - Whether some other sentence warranted in law - Nature of offending - Where appellant misrepresented to victim that he was able to assist her career ambitions - Where offending not planned - Where statements made by victim along with her demeanour clearly indicated a lack of consent - Where appellant forced intercourse in any event - No other sentence warranted

CRIMINAL LAW - appeal - conduct of prosecution - closing address to jury - general comments made about the credibility of children - whether prosecutor improperly suggested having a particular expertise with respect to the testimony of children - whether prosecutor improperly invited the jury to rely on a lie told by accused - prejudicial effect considered - failure by defence to object at trial - whether audio recording of address should be tendered CRIMINAL LAW - appeal - whether defence counsel incompetent - failure to lead evidence - complainants said accused was kneeling during sexual intercourse - failure to call medical evidence regarding accused's difficulties kneeling - whether trial miscarried CRIMINAL LAW - appeal - unreasonableness of verdicts - separate counts of indecent assault against two children - one count of sexual intercourse with a child - accused found guilty of one charge of indecent assault and charge of sexual intercourse with same child - acquittal on other charges - unreasonableness alleged on lack of consistency between verdicts and unreliability of evidence - possibility of concoction EVIDENCE - tendency - direction to jury - whether judge should have warned against tendency reasoning - use of acts alleged against one child as potential tendency evidence for acts against the other child - prosecution not seeking to rely on tendency - direction that each offence should be considered separately - no objection raised at trial about failure to give warning EVIDENCE - appeal - ground alleged failure by defence counsel to call medical evidence at trial - test of miscarriage objective - counsel's reasons for conduct of trial irrelevant - evidence from counsel inadmissible

CRIMINAL LAW - sentence appeal - importing a commercial quantity of cocaine - s 166 certificate offences - guilty plea -whether sentencing judge failed to give appropriate weight to applicant's subjective case - whether sentence manifestly excessive

CRIMINAL LAW - appeal against conviction - unrepresented appellant - incompetence of counsel - mistaken introduction of incriminating statements to police - consciousness of guilt - prosecution disclosure - intervention of trial judge - bias - complainant's sexual history

CRIMINAL LAW - sentencing appeal - s 53A Crimes (Sentencing Procedure) Act 1999 (NSW) - requirement to "indicate" individual sentences not complied with - neither ultimate sentence nor degree of accumulation excessive

PRACTICE AND PROCEDURE - judgments and orders - freezing orders - application for extension of time of assets freezing orders - orders sought to enable plaintiff to pursue enforcement of previous orders - application granted

APPEAL - Land and Environment Court - leave to appeal - decision of a judge of the Land and Environment Court on a s 56A appeal - whether to grant leave to appeal under s 57(4) of the Land and Environment Court Act 1979 - need to identify question of law material to decision sought to be impugned - no error of law in dispositive reasoning - leave refused

APPEAL AND NEW TRIAL - Appeal - Interference with primary judge's findings of fact - Finding by primary judge that contract not unjust - Functions of appellate court - Appellate review to accord with principles for an appeal by way of rehearing - Appellate court able to determine whether contract was unjust based on proper inferences to be drawn from established facts - Principles in Fox v Percy and House v The King apply - Whether primary judge's findings were inconsistent with incontrovertible facts or uncontested testimony, or were glaringly improbable or contrary to compelling inferences CONTRACTS - General contractual principles - Harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980 s 7 - Unjust contracts - Whether the funding agreement was substantially unjust - Whether the contract was merely a "risk free loan", offensive to community standards, or improvident JUDICIAL REVIEW - Grounds of review - Procedural fairness - Hearing rule - Nature of Hearing - Whether appellant was denied the opportunity to make submissions - Whether primary judge made findings that were not open on the evidence nor pleaded by either party

CRIMINAL LAW - Evidence - s 26 (a) Evidence Act - Child Witness - Evidence of Children - Recorded Interview