Cases and authorities

PRACTICE AND PROCEDURE - review of a decision by single Judge of Appeal refusing to extend time to appeal because no real prospects of success - whether reviewable error - material error of fact - Supreme Court Act 1970 (NSW), s 46 PRACTICE AND PROCEDURE - application to extend time to appeal - delay in commencing appeal - prejudice to the applicant if application refused - prejudice to respondent if application granted - prospects of success of proposed appeal

CONTRACT - general contractual principles - offer and acceptance - where offer and acceptance analysis is neither necessary nor sufficient - whether contract made and if so on what terms CONTRACT - general contractual principles - offer and acceptance - the use of post contractual conduct and admissions - whether post contractual conduct may be relevant to prove whether a contract was made - whether post contractual conduct may be relevant to prove the terms of a contract - whether post contractual conduct may be relevant to prove an admission of the existence of a contract or the terms of a contract - whether a general manager has authority to make admissions with respect to the existence or terms of a contract - whether a director has authority to make admissions with respect to the existence or terms of a contract CONTRACT - general contractual principles - construction and interpretation of contracts - construing the terms of a contract from the whole of the material - construing terms of a contract where it is partly written and partly oral CONTRACT - breach of contract - damages - calculating damages for loss of benefit of a contract

LEASES - forfeiture - re-entry by landlord - relief against forfeiture

HEALTH LAW - patient treatment - request to cease life-sustaining treatment - validity of request

COSTS - where motion dismissed - whether to otherwise order - where applicant achieved modicum of success JUDGMENTS AND ORDERS - leave to pay by instalments

DEFAMATION - imputations - whether capable of arising - item available on the internet - particulars of publication - whether required.

ADMINISTRATIVE LAW - declaration that the decision of the Medical Appeal Panel involved an error on the face of the record and jurisdictional error - denial of procedural fairness - decision of the Medical Appeal Panel quashed - consent orders - matter remitted to the Registrar of the Workers Compensation Commission for consent orders to be filed

DEFAMATION - whether imputation capable of arising - reasonable grounds for suspecting - no question of principle.

REMEDIES - injunctions - interlocutory injunctions - ex parte application - summary of applicable principles

CRIMINAL - evidence - admissibility of evidence - joint trial - whether evidence more prejudicial than probative - whether prejudice can be cured through appropriate jury directions - application for view -Evidence Act 1995 s 53 - whether view necessary in the circumstances - application granted

CORPORATIONS - winding up - statutory demand - application to set aside a creditor's statutory demand under Corporations Act 2001 (Cth) ss 459G and 459H - whether a genuine dispute has been established - whether a offsetting claim has been established - whether sufficient evidentiary material to allow quantum of offsetting claim to be calculated.

CORPORATIONS - winding up - voluntary winding up - where declaration sought that funds paid by passengers of company into accounts were held on trust - whether monies in account were held on trust - application by liquidators for approval to enter into deed settlement and release with plaintiff - whether entry into deed is a proper exercise of power by liquidators - whether distribution of monies can properly be made in specified manner - whether interim payment can be made to plaintiff subject to undertaking.

PRACTICE AND PROCEDURE - APPEAL - JURISDICTION - whether appeal within s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) - subject-matter of appeal includes proper exercise of discretion as to costs - underlying proceedings involved exercise by State Court of federal jurisdiction under the Family Law Act 1975 (Cth) - s 117 of Family Law Act 1975 confers and describes discretion as to costs - whether an appeal seeking relief by way of re-exercise of that costs discretion involves a matter arising under the Family Law Act 1975

PRACTICE AND PROCEDURE - application to join insurance company as a defendant to the proceedings in a personal injuries claim - multiple defendants - whether there is an arguable case against the insured and an arguable case that the insurance policy responds; CONTRACTS - insurance company seeks to rely upon an exclusion clause relating to workers compensation - whether there is an arguable case that the plaintiff was not employed by the defendants - whether employee is suing employer at common law - whether exclusion clause will be applicable; INTERPRETATION - interpretation of exclusion clause - exclusion clause capable of more than one interpretation - exclusion clause to be construed contra proferentem

PROCEDURE - miscellaneous procedural matters - contests about the form of final orders - whether declarations should be made - whether on the pleadings and the Court's findings an award of damages for breach of contract, or in relation to oppressive conduct is available against defendants other than the second defendant - appropriate form of orders on the first plaintiffs' claim under Industrial Relations Act s 106 - application to amend reasons before entry of judgment - interest - whether discretionary award of interest should be reduced on account of plaintiffs' delay and the balance sheet of the second defendant.

CRIMINAL LAW - trial - application for directed verdicts - accused charged with murder and aggravated sexual assault - whether the evidence capable of establishing the elements of each offence - test to be applied at the close of the Crown case EVIDENCE - LIES BY ACCUSED - statements made by accused alleged by the Crown to be lies evidencing a consciousness of guilt - statements relied upon as part of the Crown's circumstantial case - whether relevant test met

CORPORATIONS - external administration - administration - validity of appointment of administrators - application for declaration of validity under s 447C - whether appointment invalid by reason of exclusion of an alleged director from s 436A meeting - whether opinion as to insolvency genuinely held - if not, whether appointment should be validated under s 447A CORPORATIONS - external administration - administration - supervision of administrators - whether proposed acts prejudicial within s 447E

EVIDENCE - admissibility - credibility - leave to lead evidence of prior consistent statements

CORPORATIONS - winding up - liquidators - where company is trustee of a discretionary trust - where office of trustee vacated on liquidation and no replacement trustee appointed - liquidator appointed as receiver of trust assets

DEFAMATION - default judgment - approach - imputations.

DEFAMATION - costs - transfer to District Court - no question of principle.

DEFAMATION - default judgment - whether issues in plaintiff's case truly in dispute - dispensing with filing of defence - transfer of proceedings to District Court.

DEFAMATION - striking out defence - no question of principle.

FAMILY LAW AND CHILD WELFARE - Children - Guardianship - Application for judicial review of Children's Court decision - Application for exercise of parens patriae jurisdiction - Application made notwithstanding right of appeal to District Court - Summons dismissed

DEFAMATION - transfer of proceedings to District Court - approach - factors.

CORPORATIONS - external administration - liquidation - application for winding up sought where company already in voluntary liquidation - necessary to point to some justification for such an order - no sufficient justification proffered - no order made

CORPORATIONS - generally - corporations liquidation - proceedings - transfer of proceedings PROCEDURE - miscellaneous procedural matters - transfer of proceedings

CRIMINAL LAW - application for review of bail - no presumption for or against bail - serious offence alleged - history of violence against complainant - history of breach of bonds and an Apprehended Domestic Violence Order - concern for safety of complainant - bail refused

CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - progress towards rehabilitation contrasted to negative assessment at time of sentence - lesser sentence warranted - appeal allowed

CRIMINAL LAW - application for leave to appeal against sentence - whether Judge failed to give proper attention to the fact that the applicant was the mother of a very young baby - whether juvenile detention appropriate if offender has a very young baby - error found - applicant re-sentenced

CRIMINAL LAW - appeal against sentence - hindering discovery of evidence under s 315(1)(b) Crimes Act 1900 - whether sentence manifestly excessive

APPEAL - appeal on a question of law -compensation for compulsory acquisition of land - primary judge rejected appellants' claim for relocation costs on the basis of s 61 of the Land Acquisition (Just Terms Compensation) Act 1991 relating to market value assessed on potential of land - consideration of the proper construction of s 61 of the Act - primary judge erred on questions of law in construing and applying s 61 of the Act - primary judge's assessment of loss attributable to disturbance - primary judge erred on questions of law in assessing amount of compensation for lost profits - primary judge reached conclusions that were without evidentiary foundation and constructively failed to exercise jurisdiction - appeal allowed - matter remitted to court below to be determined according to law - costs follow the event

CORPORATIONS - insolvency - voidable transactions - Corporations Act 2001, s 588FF - whether only one application may be made under s 588FF(3)(b) for an extension of time - whether UCPR, r 36.16(2)(b) is picked up by the Judiciary Act 1903, s 79 - whether UCPR, r 36.16(2)(b) permits an order made extending time to be varied so as to permit a extension of time. PROCEDURE - Uniform Civil Procedure Rules, r 36.16(2)(b) - whether the Court has the power to vary an order that has been made in the absence of a person affected by the order, when the absent party is not a party on the record.

JUDGMENTS AND ORDERS - effect of judgment - setting aside conviction and imposing order under Crimes (Sentencing Procedure Act 1999 (NSW), s10- Crimes (Appeal and Review) Act 2001 (NSW), s20 APPEAL - powers of the NSWCA - jurisdictional error - discretionary orders

CORPORATIONS - voluntary administration - deed of company arrangement - application by deed administrator for directions in respect of the proper distribution of funds held in an account under Corporations Act 2001 (Cth) s 447D - where an account was established by company prior to entering into administration to hold retention monies for subcontractors - whether monies in account was held on trust for subcontractors - whether distribution of mixed funds in account should be made on a pro-rata basis - whether administrator's remuneration, costs and expenses should be payable from account - whether remaining parties' costs in relation to proceedings should be payable from account.

DEFAMATION - defences - contextual truth - where plaintiff pleads an imputation as an alternative to another imputation - whether open to defendant to plead the alternative imputation as a contextual imputation - objections as to form of contextual imputations

EQUITY - trusts and trustees - charitable trusts - application for judicial advice - Charitable Trusts Act 1993, ss 5, 6, 10 and 13 - 1998 gift by will treated as void for uncertainty so 1999 Deed of Trust provides substitute trust arrangements - by 2013 substitute trust arrangements become unworkable - whether gift by will is void - whether gift exhibits a general charitable intention - whether cy-pres scheme should be ordered - whether the Attorney General should be ordered under Charitable Trusts Act, s 13 to establish a scheme to administer the funds dedicated to charitable purposes.

APPEAL - appeal from decision of Local Court Magistrate pursuant to s 39 or s 40 of the Local Court Act 2007 (NSW) - whether her Honour erred in making a finding of "no evidence" on a key issue in dispute - whether her Honour gave adequate reasons for this finding

PRACTICE - Default judgment - Application by solicitor in respect of fees - Need to demonstrate no statutory impediment to suit - Legal Profession Act 2004 (NSW), s 331

LIMITATION OF ACTIONS - choice of law where the negligence is of the same character but took place in more than one jurisdiction - whether separate hearing appropriate for plaintiff's application for extension of time under the Limitations Act 1969 - just, quick and cheap resolution of the proceedings - whether separate hearing would result in significant overlap of issues and witnesses - where defendant proposes separate hearing and plaintiff opposes

POLICE - legitimate exercise of powers - searches and detention of persons - whether suspicion was reasonably formed - presence of hire car in area known to police to be connected with drug use and supply, in circumstances where a person got into the passenger seat of a motor vehicle and then got out again within a short period of time - whether Parliament intended power to detain to amount to an arrest

TAXATION - Payroll tax - Employment agency contracts - Whether taxpayer procured the services of contractors for clients - Contracts and arrangements between taxpayer, contractors and clients - Whether contracts were employment agency contracts - Relevance of pre-contractual discussions and arrangements between contractors and clients - Whether "relevant contracts" provisions engaged - Whether request for refund required Chief Commissioner to make a reassessment - Payroll Tax Act 1971 ss 3A, 3AA, 3C, 6, 7, 8 - Payroll Tax Act 2007 ss 6, 7, 31-36, 37-40 - Taxation Administration Act 1996 ss 9, 14, 17

PROCEDURE - civil - interlocutory issues - separate question - whether order for determination of separate question would cause undue delay, expenses and uncertainty of outcome - whether of no benefit - whether would facilitate the just, quick and cheap resolution of the proceedings - no point of general principle

PROCEDURE - civil - interlocutory issues - limitation of actions - extensions of time - Statute of Limitations 1623 (Imp) - Limitation Act 1969 (NSW) s 58, s 60gG - whether separate question or determination at trial - whether "just and reasonable" to extend time - whether separate determination would best advance the overriding purpose of the Civil Procedure Act 2005

APPEAL - criminal - interlocutory appeal - certification by primary judge of appropriateness of appeal - Criminal Appeal Act 1912 (NSW), s 5F PRACTICE AND PROCEDURE - interlocutory appeal - setting aside subpoena to Medicare for personal records - whether production of documents prohibited -- prohibition on disclosure of information to "any person" considered - legislative history - National Health Act 1953 (Cth), s 135A WORDS AND PHRASES - "any person" - "court" - whether "any person" includes a court - National Health Act 1953 (Cth), s 135A

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - name change - where adoption order made approving name of child in circumstances where child's current wishes inadvertently not before the court - order corrected under slip rule PROCEDURE - slip rule - where order made approving name of child in circumstances where child's current wishes inadvertently not before the court - question is whether, had the matter overlooked been drawn to the attention of the Court or the parties at the relevant time it would have been corrected as a matter of course - order corrected

CORPORATIONS - winding up - orders sought for termination of winding up - whether winding up should be terminated - whether solvency established

SEPARATE DETERMINATION - whether breach of duty and causation should be separated from damages

CORPORATIONS - examination - relating to insolvency - who may apply - PROCEDURE - courts and judges - where related proceedings in Federal Circuit court - forum conveniens - transfer of proceedings - stay of proceedings