Cases and authorities

CONTRACTS REVIEW - Orders to vary principal sum in mortgage COSTS - defendants substantially succeeded - entitled to costs although not successful on some arguments

PRACTICE AND PROCEDURE - application for security for costs of appeal - whether appellant had shown security would stultify appeal - whether appellant able to meet costs if unsuccessful on appeal - whether liability to pay judgment debt part of assessment of likely ability to pay costs - Corporations Act 2001 (Cth), s 1335

PRACTICE AND PROCEDURE - security for payment of debt pending appeal - judgment debt set aside on appeal - foreshadowed application for special leave to appeal to the High Court - whether security should be continued pending special application - whether arguable case for obtaining special leave - balance of potential prejudice - applicant to meet cost of security if further appeal unsuccessful

PRACTICE AND PROCEDURE - application to release money - applicants ordered to pay into District Court money for possible damages - damages awarded below amount paid into Court - no challenge to adequacy of damages -jurisdiction to make orders with respect to money held in District Court

APPEAL AND NEW TRIAL - competency of appeal - appeal from judgment of District Court determining an appeal against an assessment of costs under Legal Profession Act 2004 (NSW) - right of appeal from District Court extends only to an "action" - whether an appeal under Legal Profession Act is an "action" - District Court Act 1973 (NSW), s 127 PRACTICE AND PROCEDURE- judicial review - judgment of District Court - extension of time to file summons for judicial review - whether such proceedings would constitute an abuse of process - referral to Full Court - Uniform Civil Procedure Rules 2005 (NSW), r 59.10

ADMINISTRATIVE LAW - traffic offence - disqualification from holding driver licence by order of District Court - proceedings for review in supervisory jurisdiction - effect of statutory stay - Supreme Court Act 1970 (NSW), s 69C CRIMINAL LAW - traffic offence - whether disqualification from holding driver licence stayed by application to review judgment and order of District Court - whether order part of a sentence PRACTICE AND PROCEDURE - effect of statutory stay pending determination of proceedings - declaration of effect of stay - whether interlocutory order

APPEAL AND NEW TRIAL - challenge to findings of fact - photographs of arrest - whether police deleted images on camera - failure of trial judge to make a finding as to whether images were deleted - relevance of images to applicants' case - issue of credibility of police - other findings based on acceptance of police evidence challenged APPEAL AND NEW TRIAL - appeal - interference with findings of fact - questions of credibility to be resolved - need for new trial - whether substantial wrong or miscarriage - Uniform Civil Procedure Rules (NSW), r 51.53 PROCEDURE AND PRACTICE - leave to appeal - requirement for leave to appeal where likely award of damages is below limit - District Court Act 1973 (NSW) s 126 POLICE - actions for wrongful arrest, trespass, assault and battery - conduct of police when arresting - use of physical force by police officers to restrain an offender - use of force to prevent commission of further offence - reasonableness of force used - whether trespass to person justified POLICE - rights, powers and duties - powers of police short of arrest to stop or prevent commission of offence - conduct of police when exercising such authority

PRACTICE AND PROCEDURE - defamation proceedings - misleading and deceptive conduct claim sought to be added to statement of claim - leave to appeal refused except in relation to the striking out of one alleged imputation

CRIMINAL PROCEDURE - interlocutory issues - application for verdict by direction

CORPORATIONS - scheme of arrangement - judicial advice - transaction effecting internalisation of management of two listed managed investment schemes - second hearing - where the requirements for convening and conducting the scheme meeting are met - where overwhelming support for proposal by security holders - where no security holder appeared in opposition - advice given

PROCEDURE - notice of motion - orders under rule 28.2 of the Uniform Civil Procedure Rules 2005 for the separate determination as to who is the appropriate insurer - consent orders made

EQUITY - trusts - purported distribution of asset revaluation reserve - proper construction of resolution of trustee - whether distribution effected - whether trust indebted to deceased estate of beneficiary. EQUITY - discretionary trust - vesting date - whether a resolution had effect of varying vesting date retrospectively EQUITY - discretionary trust - construction - whether distribution for benefit of beneficiaries - whether the trustee required to give notice to all beneficiaries LIMITATION OF ACTIONS - whether cross-claim statute barred - whether debt payable on demand - whether cause of action arose at time of advance - whether cause of action confirmed - whether more than one bar to cause of action.

CORPORATIONS - external administration - deregistration and reinstatement - application by former liquidator for reinstatement of company - whether just to order reinstatement - where purpose to bring claims against directors - where potential claims came to light in course of disciplinary proceedings against liquidator - where directors will retain ability to apply to stay or dismiss proceedings - question is justice of reinstatement, not of proposed proceedings - held, reinstatement would be just - whether former liquidator automatically resumes office - held, former liquidator does not automatically resume office on reinstatement - whether former liquidator should be reappointed - held, in the circumstances of this case, not appropriate to reappoint former liquidator - new liquidators appointed.

DEFAMATION - defences - defence of qualified privilege at common law - email headed "letter to the editor" concerning conduct of developer sent to about 70 email addresses including newspapers, politicians and environmental groups - whether to be inferred that recipients opened and read email - whether email published on an occasion of qualified privilege - defence of contextual truth - whether defendant's contextual imputation concerning political donations proved substantially true DEFAMATION - damages - where plaintiff did not give evidence or attend any part of hearing - whether entitled to any award for hurt to feelings or any aggravated damages

APPEAL - nature of appeal from decision to set aside deed of company arrangement CORPORATIONS - deed of company arrangement - application to set aside - Corporations Act 2001 (Cth), s 600A - whether contrary to interests of creditors as a whole - whether unreasonable prejudice to creditors voting against resolution - construction of s 600A - "interests of creditors" considered - applicability of UK decisions - "interests of creditors as a whole" considered PRACTICE - leave to proceed against company in liquidation - leave to appeal from winding up order - Corporations Act 2001 (Cth), ss 471B and 482 - appeal would also require orders under s 447A - change of circumstances - no explanation for change of attitude by applicants - leave refused

PRACTICE AND PROCEDURE - leave to appeal - less than $100,000 at issue - not sufficient to show arguability of appeal - leave refused

CORPORATIONS - Application for leave to proceed against a company subject to a Deed of Company Arrangement pursuant to section 444E Corporations Act - Reasonably arguable grounds to support grant of leave - Whether would be futile or premature to grant leave to proceed EQUITY - Trusts and trustees - Liability of beneficiaries to indemnify trustee - Hardoon v Belilios principle PROCEDURE - When appeal lies - By leave of court - Threshold monetary value less than $100,000 - Failure to comply with filing of notice under r51.22 Uniform Civil Procedure Rules - Right of appeal to Supreme Court under Section 101(2)(r) of the Supreme Court Act

ADMINISTRATIVE LAW - content of obligation to accord procedural fairness - review panel reviewing medical assessment under Motor Accidents Compensation Act - whether denial of procedural fairness - where review panel confronted applicant and gave opportunity to respond to inconsistencies - whether review panel obliged to grant adjournment, give opportunity to applicant to consult with her solicitor and then address panel - no practical injustice - no obligation to give warning by analogy with Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 - no denial of procedural fairness - Motor Accidents Compensation Act, s 61(4). MOTOR VEHICLE LAW - medical assessment certificate - power of court to reject certificate for denial of procedural fairness - no denial of procedural fairness established

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - children in need of protection - guardianship of children - whether care order should have been made

PROCEDURE - judgments and orders - right to appeal - whether notice of appeal competent

TORTS - negligence - dangerous premises - injuries to persons entering premises - whether hotel proprietor and security provider liable

CRIMINAL LAW - sentence - murder - plea of guilty - offender persuaded by partner, ex-wife of deceased, of deceased's alleged wrongdoing - offender attempts to abduct and rob deceased - offender kills deceased when deceased attempts to defend himself - multiple blows to the head with hammer - Ellis discount - police unaware deceased was murdered or any involvement of offender - offender voluntarily confesses four years later - offender of low intelligence and with personality problems - whether a specific arithmetical discount should be given for Ellis principle

CORPORATIONS - winding up - liquidators - final distribution of assets - liquidator's remuneration - whether in specie distribution can be made

CORPORATIONS - associations - soccer club expelled from district association - two groups each claim to be valid committee of club - both groups lodge applications for readmission of club - urgent interlocutory relief sought as to which group may make readmission application REMEDIES - injunction - soccer club expelled from district association - two groups each claim to be valid committee of club - both groups lodge applications for readmission of club - urgent interlocutory relief sought as to which group may make readmission application - balance of convenience

PRACTICE AND PROCEDURE - Application for separate determination of issues - whether there is a clear dividing line between issues - whether there is risk of overlap of witnesses - whether separate determination will be quicker and cheaper - Uniform Civil Procedure Rules 2005 (NSW), r 28.2 - Civil Procedure Act 2005 (NSW) s 56.

PRACTICE AND PROCEDURE - Security for costs - Application by insurer -Discretion - whether appropriate to analyse strength of claim - whether insurers are in a different position with respect to obtaining security for costs - whether proceedings would be stultified - Uniform Civil Procedure Rules 2005 (NSW), r 42.21(1)(d) - Corporations Act 2001 (Cth) s 1335.

CRIMINAL LAW - application for continuing detention order or extended supervision order - defendant previously convicted of murder - sentence served - assessment of risk of re-offending PRACTICE AND PROCEDURE - applications brought pursuant to the Crimes (High Risk Offenders) Act 2006 - necessity to bring application in a timely manner - necessity to avoid procedural unfairness being visited upon a defendant

CLASS ACTIONS - case management - obtaining information from a third party in relation to composition of the class - steps to be taken to contact remaining members of the class - costs of third party of attending in response to proposed orders.

COSTS - no question of principle.

APPEAL - appeal from decision of Local Court Magistrate pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) -criminal-matter determined in chambers before adjourned date for hearing without notice to prosecutor-contravention of fundamental principles

COSTS - set off - whether costs in other proceedings may be set off - whether costs and damages in other proceedings may be set off

PROCEEDINGS FOR DAMAGES - conversion - bank taken possession of mortgaged property - allegation the bank wrongfully disposed of goods stored on the property - no question of principle

PRACTICE AND PROCEDURE - search orders - ex parte application - whether breach of duty to disclose material facts - confidential affidavits - whether search orders and orders for confidentiality should be set aside.

COSTS - indemnity costs - adjournment and vacation of hearing date resulting from conduct of a party - costs payable forthwith

PROCEDURE - pleadings - amendment - where defendant seeks leave to file amended defence - where hearing is due to commence and there have been lengthy delays - whether leave for proposed amendments should be refused on case management grounds - whether plaintiff will suffer prejudice in addressing amendments. EVIDENCE - request to call witnesses - application for order compelling plaintiff to call a witness under Evidence Act 1995 (NSW) ss 167, 169 - where plaintiff refused to comply with request - whether defendant should have leave to make request outside time limit - whether plaintiff's refusal to comply with request made without reasonable cause - matters to be considered in exercise of Court's discretion to order party to comply with request to call a witness.

DEFAMATION - imputation - form - whether imputation substantially different - whether lifted from broadcast - whether capable of arising - no question of principle.

DEFAMATION - imputations - whether capable of being conveyed - ridicule of plaintiff by television broadcast - whether broadcast capable of conveying what it literally stated and depicted - wide imputation as to plaintiff's character -imputation as to whether plaintiff's conduct justified the ridicule.

PRACTICE AND PROCEDURE - interlocutory application - review under Supreme Court Act 1970, s 46(4) of refusal to grant stay of execution pending appeal - no error of principle - no offer to pay acknowledged, presently owing, secured indebtedness - application dismissed

PRACTICE AND PROCEDURE - adjournment application - inadequate material in support - no issue of principle

CONTRACT - Whether employment contract terminated without cause or terminated for cause for serious misconduct - Whether election was made between available grounds for termination - Whether subsequent conduct amounted to a withdrawal of termination - Whether compliance with process for termination for serious misconduct - Whether non-compliance rendered the asserted termination for cause invalid and of no effect - Whether proper grounds available on the facts for termination for serious misconduct - Whether employee had an accrued right which remained even if terminated for cause EVIDENCE - Standard of Proof - Briginshaw Standard - clear and cogent proof of serious allegations EVIDENCE - Standard of Proof - s140(2) Evidence Act - gravity of the matters alleged - clear and cogent proof of serious allegations HUMAN RIGHTS - Discrimination - Sex Discrimination - Sexual Harassment - s28A Sex Discrimination Act - Whether incidents relied upon constituted sexual harassment

DEFAMATION - application to dismiss proceedings by reason of failure to comply with Court orders - no question of principle.

PROCEDURE - civil - judgments and orders - application to set aside 1986 orders - notice of motion - notice of motion brought in original 1986 proceedings - bad in form - matter dealt with on numerous occasions by other judicial officers - vexatious - abuse of process - no attention to the principle of finality of litigation PROCEDURE - civil - parties - applicant not a party - no standing - vexatious - abuse of process

SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased - Deceased left no Will - No provision for the Plaintiff under the rules of intestacy - Very small estate - Whether adequate and proper provision not made for the Plaintiff and, if so, the nature and quantum of the provision to be made - Order for lump sum

PROCEDURE - motion - whether proceedings should be transferred to Court of Appeal - refused - whether proceedings should be aborted - refused - whether proceedings should be stayed for abuse of process - refused - natural justice - refusal to grant an adjournment - whether arbitrary time limits were imposed on the defendant - courts and judges - apprehended bias - conduct of litigant during proceedings - refusal of party's applications for legal assistance and adjournment - alleged abuse of process - application for stay of proceedings denied CONTEMPT OF COURT - alleged contempt before the Local Court proceedings - vexatious litigant - procedures to be followed in contempt proceedings - whether contempt alleged is civil or criminal - application of Criminal Procedure Act 1986 and Civil Procedure Act 2005 in contempt proceedings

CRIMINAL LAW - PROCEDURE - application for forensic procedure - whether each plaintiff an "untested former offender" for the purposes of the Crimes (Forensic Procedures) Act 2000 STATUTORY CONSTRUCTION - necessity to construe provision conformably with the words of the statute - whether appropriate to resort to extrinsic material to determine the meaning of the provision WORDS AND PHRASES - "is served"

TORTS - professional negligence - legal profession - where employed solicitor privately agreed to draft statement of claim after his employer's retainer had been terminated - advocate's immunity - whether available where not expressly raised as a defence - scope of solicitor's duty of care in drafting statement of claim - whether informed by agreement to provide services on a pro bono basis - whether causes of action in defamation and unconscionable or misleading or deceptive conduct ought to have been included in the pleading - whether solicitor undertook to represent plaintiff at the hearing of the pleaded claim - whether plaintiff lost chance of succeeding on pleaded claim - whether plaintiff lost chance of succeeding on causes of action omitted from pleading - value of any lost chance

CRIMINAL LAW - sentence appeal - sexual intercourse without consent - whether sentence imposed was manifestly excessive - two episodes of digital penetration following a savage physical assault, one charged and one on a Form 1 - intercourse not driven by need for sexual gratification but to demonstrate domination and inflict humiliation - importance of specific and general deterrence - sentence not shown to be "unreasonable or plainly unjust" - leave to appeal granted but appeal dismissed.

CRIMINAL LAW - appeal against sentence - guilty pleas not necessarily indicative of remorse - "guarded" prospects of rehabilitation - appellate intervention narrowly confined in regards to weight given to remorse and rehabilitation at trial - finding of "special circumstances" for single sentence not applied to overall sentence - aggregate non-parole period reflects criminality of offences - advanced age did not warrant lesser sentence - error in commencement dates for individual sentences immaterial - error in statement of maximum penalty for offence immaterial - leave to appeal refused

ADMINISTRATIVE LAW - judicial review - denial of procedural fairness - jurisdictional error ADMINISTRATIVE LAW - prerogative writs and orders - certiorari

CONTRACTS - contracts for the benefit of a third party - specific performance thereof - whether promisor's obligation contingent on payment by promisee - whether damages can be awarded when specific performance has been ordered