Cases and authorities

NEGLIGENCE - damages arising from death - damages for nervous shock - son of two plaintiffs killed on school excursion - whether parents suffered mental harm - pre-existing psychiatric conditions - costs of coronial inquest - whether plaintiff entitled to such costs - two plaintiffs sole directors and shareholders of two plaintiff companies - companies make per quod amisit sevitium claim - whether claim falls within exception in Barclay v Penberthy - failure to mitigate

COSTS - security for costs - Bank commences two sets of proceedings against individuals seeking possession of land - proceedings defended by cross-claims - cross-claims rely on dealings between Bank and a company owned by one of the defendants - claim subsequently made by company against bank - company impecunious - commonality of issues amongst all proceedings - separate damages issues relating to the company - whether security should be ordered

APPEAL - civil - leave to appeal - challenge to decision to order separate question

EVIDENCE - witnesses - whether primary judge erred in giving little or no weight to expert evidence on the basis that the scientific or intellectual basis for the expert's conclusions was not established and/or the opinion was equivocal TORTS - negligence - proof of negligence - sufficiency of evidence - whether primary judge erred in failing to make findings as to system of work devised by the employer and whether it was a safe system of work - whether appellant's evidence and/or materials annexed to expert's report established failure of employer to devise and implement safe system of work

PROCEDURE - want of prosecution - no action taken by Plaintiff for more than 12 months - one set of proceedings stayed for non-payment of costs order - Plaintiff bankrupt - deemed election by trustee not to prosecute - Plaintiff contemplates s 179 Bankruptcy Act application - proceedings dismissed

CRIMINAL LAW - sentence - murder - late plea of guilty - where offending occurred in 1992 - necessity to sentence offender according to sentencing practice which applied at that time

DAMAGES - monies in Court - payment out to Plaintiff's trustee for investment

REMEDIES – application for a stay of a writ of possession – whether stay should be granted to allow refinancing

CONTRACT - construction - guarantee - whether second defendant personally liable to plaintiff under contractual guarantees CONTRACT - construction - effect of contractual indemnity - whether costs to be awarded on an indemnity basis

PROCEDURE - Interlocutory orders - Injunctions - where prima facie case agreed - whether to grant interlocutory injunctive on the balance of convenience - whether to grant injunctive relief limited as to subject matter and limited as to time

JUDGMENTS & ORDERS - Judgments - Summary judgment - Requirements for summary judgment - whether to grant summary judgment where defence raised on application for summary judgment not previously pleaded and inconsistent with evidence PROCEDURE - costs - general rule that costs follow the event - whether to award costs of failed application for judgment on admissions where issues raised by defendant were mere smoke-screen

CRIMINAL LAW - bail - unacceptable risk - mitigation of risk - onus of proof

FAMILY PROVISION AND MAINTENANCE - Adult grandson - No issue of principle - Succession Act 2006, ss 59, 60

REAL PROPERTY - possession of land - default judgment - writ issued and executed - mortgagors apply to set aside default judgment and stay execution - no adequate explanations for delay - no order can be made

COSTS - question whether personal costs order ought be made against defendant's legal representatives ought be reserved until the determination of the proceedings - position where matters of a privileged nature would need to be disclosed to the potential prejudice of one party - whether it is desirable for judge to review such privileged material without disclosing it to the other party - desirability of judge who heard oral evidence on adjournment application determining question rather than trial judge

COSTS - indemnity costs - whether the plaintiffs are entitled to an order for indemnity costs of these proceedings - whether the defendant's indemnity in respect of the debt obligations of the first plaintiff covers the plaintiffs' costs of these proceedings.

PROCEDURE - proceedings claiming interest in land and damages or debt - loans alleged to be made before plaintiff bankrupted - plaintiff fails to notify trustee of claim - discharge from bankruptcy - whether cause of action re-vests in plaintiff - proceedings summarily dismissed

PROCEDURE - Discovery - Notices to produce

COSTS - indemnity costs order sought - security to be released to defendant - Calderbank offer - whether rejection of offer was unreasonable - interest - orders made

ADMINISTRATION OF ESTATE OF DECEASED - Amounts claimed by the Plaintiffs, who are named executors of the Will of the deceased to whom Probate granted, as moneys alleged to have been wrongfully withdrawn, by their brother and sister-in-law during the lifetime of the deceased, out of bank accounts conducted by him - Agreement reached at the hearing as to quantum of the amounts withdrawn but not liability of the Defendants, or any of them, to repay any part of, those amounts - Defendants assert authority, oral or in writing, given by the deceased, or otherwise that they were gifts by the deceased to them or alternatively "an advance on inheritance" - Amount that should be repaid to the estate - Whether interest on the amounts withdrawn and to be repaid should be paid, and if so, from what date and at what rate SUCCESSION - CONSTRUCTION OF WILL - Whether the deceased intended to make dispositive provision in Will in favour of his son and daughter-in-law or whether the terms of the Clause explain reasons for making no provision for his son or otherwise SUCCESSION - FAMILY PROVISION - Two of the Defendants make a claim for a family provision order - No dispute as to one Defendant's eligibility as a child of the deceased - Dispute as to eligibility of other Defendant who is the daughter-in-law of the deceased - Also dispute whether there are factors warranting the making of her application - Plaintiffs are the other children of the deceased and the sole residuary beneficiaries named in the Will - No provision made in the Will of the deceased for either Defendant - Estate distributed - Only actual estate may be amount ordered to be repaid - Extension of time required for making of applications - Whether family provision order should be made, and if so, the nature and quantum of the provision to be made

CRIMINAL LAW - Appeal - Appeal against sentence - Procedural Fairness - Practical Injustice - Whether the ordering of an intensive corrections order assessment created an expectation that the imposed sentence would be no greater than 2 years and would be served by way of an intensive corrections order - Whether the applicant was denied the opportunity to make further submissions as to sentence

CRIMINAL LAW - appeal - appeal against sentence - natural justice - procedural fairness - whether finding that gun crimes are on the rise without giving an opportunity to make submissions on the point constituted a denial of procedural fairness CRIMINAL LAW - appeal - appeal against sentence - whether no evidence to support the finding that gun crimes are becoming increasingly prevalent

COSTS - Challenge to costs orders - ss98, 100, 101 Civil Procedure Act 2005 - Failure to demonstrate House v R error in exercise of discretion DAMAGES - General Principles - Mitigation of Damages - Plaintiff's duty to mitigate - Whether there was a failure to mitigate or causation of loss on the part of the respondent - Onus of proof - Relevance of respondents' conduct to their claim for lost profits - Whether the Court erred in reducing awardable damages DAMAGES - General Principles - Part VIA Trade Practices Act 1974 and Part 4 Civil Liability Act 2002 - Proportionate Liability - Concurrent Wrongdoers - Apportionable Claim - Whether a duty of care was owed - Legislation only applies if civil liability arose before 26 July 2004 DAMAGES - Calculation of Damages - Loss of Profits Claim EVIDENCE - General - Whether failure to call witness and to tender certain documents should have given rise to a Jones v Dunkel inference - Whether the inferences for which the respondents contended should have been treated with greater reserve - Principles in Payne v Parker PROCEDURE - Application to adduce additional evidence and make further submissions - s 75A Supreme Court Act 1970 TRADE AND COMMERCE - Consumer Protection - Misleading or Deceptive Conduct - s 52 Trade Practices Act 1974 and s 42 Fair Trading Act 1987 - Whether particular representations made by the appellants were misleading and deceptive - Whether evidentiary hurdle has been satisfied TRADE AND COMMERCE - Consumer Protection - Representations as to future matters - s51A Trade Practices Act 1974 and s41 Fair Trading Act 1987 - Impact of the legislation upon legal or evidential onus of proof - Where representor denies making the representation but also contends reasonable grounds exist - Principles in Sykes v Reserve Bank of Australia - Establishing actual belief on the part of the representor - Distinction between circumstances where the representor is an individual or a corporation

PROCEDURE - pleading - late filing of amended defence raising new issues of law - hearing date imminent - whether Defendant should be permitted to be filed - whether Plaintiff should be permitted to plead a further form of the Statement of Claim to answer new Defences - little or no further evidence needed - leave given to both parties - Amended Defence purports to withdraw deemed admissions to numerous paragraphs of Statement of Claim - no explanation for the making of the admissions nor why they were wrongly made - Amended Defence not permitted to withdraw admissions

STATUTORY CONSTRUCTION - conflict of laws - Appeal from dismissal of charges by magistrate - application of s 310D of the Crimes Act 1900 (NSW) to person fleeing custody of police in Melbourne after warrant issued by Melbourne Magistrates' Court for "extradition" to NSW - effect of s 89(4) of the Service and Execution Process Act 1992 (Cth) on meaning of term "inmate" in s 310D of the Crimes Act.

PRACTICE AND PROCEDURE - application for summary dismissal - whether statement of claim should be summarily dismissed - whether amended statement of claim discloses cause of action - res judicata - parts of amended statement of claim includes parts of a statement of claim that has previously been dismissed by the Court

CRIMINAL - trial for murder - application for verdict by direction with regard to murder and manslaughter - circumstantial case

CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - Evidence Act 1995; ss 135, 137 - prejudicial evidence - whether evidence unfairly prejudicial to accused

APPEAL FROM LOCAL COURT - franchise agreements - master franchise - business consists of right to sell franchises - right to compensation on termination of master franchise - whether amount of compensation includes sale proceeds of three franchises - set-off - whether Local Court can set-off judgment debt determined in separate proceedings against amount owing on claim it determines - notice of contention - relevance to appeal from Local Court restricted to question of law - scope of remittal.

BUILDING AND CONSTRUCTION - statutory warranties in relation to building construction - whether defective building work - whether costs of rectification disproportionate - whether sufficient evidence for court to allow claims for defective building work PROCEDURE - undefended hearing - application of Uniform Civil Procedure Rules 2005 (NSW) r 29.7

REAL PROPERTY – Caveats – existing caveat invalid – whether leave should be granted to lodge a new caveat – balance of convenience – whether leave should be limited to one of three properties – appraisal evidence admitted without objection of value of properties – reliance on that evidence

TORTS - medical negligence - alleged failure to advise plaintiff of risk of pregnancy and need for contraception following endometrial ablation - burden of proof not discharged - evidence of "usual practice" - usual practice supported by defendant's publications. DAMAGES - claim for damages - recovery for out of pocket expenses - damages for various injuries - recovery for additional costs associated with rearing or maintaining a disabled child - causation - Wallace v Kam.

TORTS - negligence - duty of care - pedestrian deviated from footpath and fell sustaining injury - identification of the relevant risk of harm - effect of failure to identify relevant risk on consideration of precautions a reasonable person in the position of the Council would have taken

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 (NSW) - consent orders

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 (NSW) - consent orders

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 (NSW) - consent orders

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 (NSW) - consent orders

CRIMINAL LAW - bail - unacceptable risk of serious offending - whether able to be sufficiently mitigated by conditions - where applicants vulnerable children

CRIMINAL LAW - bail - release application by juvenile - risk of serious offending - risk to safety of community - mitigation of unacceptable risks - onus of proof

CRIMINAL LAW - procedure - witnesses - cross-examination - CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - Evidence Act 1995; s 103(1) - leave to adduce evidence in cross-examination of criminal convictions; application for - otherwise contrary to Evidence Act 1995; s 102 - credibility rule - five dishonesty offences - reliability and credibility of witness

REMEDIES - stay for a writ of possession - whether balance of convenience favours granting a short stay

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 (NSW) - consent orders

CRIMINAL LAW - trial by judge alone - murder - premeditated killing for financial gain - circumstantial case

PROCEDURE - Case Management - Application for interlocutory injunction - Corporation - Oppression or unfair conduct - Dispute resolution procedure - Application for discharge of order for appointment of referee - injunction sought pending hearing of that application - Substantial question to be tried - Balance of convenience - Undertaking as to damages - Security required for undertaking EQUITABLE REMEDIES - Injunctions - Interlocutory injunctions - Jurisdiction - Serious question to be tried - Balance of convenience - Injunctions to preserve status quo and property pending determination of rights - Relevance of case management principles CORPORATIONS - Membership, rights and remedies - Members' remedies and internal disputes - Oppressive or unfair conduct - Relief - Procedure - Court-appointed referee - Breakdown in dispute resolution procedure - Availability of remedies

CRIMINAL LAW - sentence appeal - one count supply commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) - two counts possess a firearm without being authorised by a licence or permit contrary to s 7(1) of the Firearms Act 1996 (NSW) - applicant was denied procedural fairness in that the sentencing judge failed to warn the applicant's representative that he considered the objective gravity of Count 1 to be above the mid range of objective seriousness - sentencing judge did not err in the assessment of the objective seriousness of Count 1 - sentencing judge erred in sentencing the applicant on the basis that his plea of guilty was late - sentence imposed in respect of Count 1 was not manifestly excessive - no other sentence is warranted in law and should have been passed - leave granted - appeal dismissed

PROCEDURE - Appeal from a decision of Associate Judge - Interlocutory decision - Uniform Civil Procedure Rules, r 49.4 - Where proceedings wrongly instituted in Court of Appeal - Remitter to Division of the Supreme Court - Supreme Court Act 1970, s 51(2)

DAMAGES - personal injury - non-economic loss - proportion of a most extreme case - challenge to primary judge's determination of 25% - applicable principles - Civil Liability Act 2002 (NSW) s 16

CORPORATIONS - External administration - winding up - winding up in insolvency - substitution of plaintiffs PROCEDURE - judgment and orders - setting aside - application made within 14 days of entry - where no misconception or other defect established

INTEREST - what is a reasonable period of time for insurer to investigate claim - date from which it was unreasonable for insurer to have withheld payment on claim - application of s 57 Insurance Contracts Act 1984 (Cth)

PROCEDURE – subpoenas – application to set aside sup – relevance – where no objection on grounds of oppression