Cases and authorities

DEFAMATION - assessment of damages - where decision at first instance overturned by Court of Appeal and matter remitted back for assessment of damages - restaurant review found to be defamatory of three plaintiffs in respect of two different restaurants operated by them - whether findings made at first instance can support plea in mitigation of damages - findings made at first instance as to statements of opinion of restaurant reviewer are not findings of fact - such findings had no notoriety until judgment at first instance delivered - such findings are not evidence of bad reputation of the plaintiffs - whether plaintiffs entitled to aggravated damages - article removed after Court of Appeal judgment but later restored - continued internet publication after Court of Appeal judgment increased harm caused by original publication - such conduct by first defendant was "unjustified" in light of circumstances of case - aggravated damages awarded

Defamation - assessment of damages - whether aggravated damages available - failure to apologise - falsity of imputations - persistence in defences of truth - defendants' conduct of the trial

PRACTICE AND PROCEDURE -application for summary dismissal -no arguable cause of action disclosed -abuse of process -constitutional writs impermissibly sought for review of determination of superior judicial court -impermissible collateral attack on final decisions JURISDICTION -special federal matter - cross-vesting -special reasons for Supreme Court to determine proceedings TORTS -no actionable duty of care owed by State or Commonwealth in respect of judicial decisions -'judicial oppression' not a tort known to law -Law Reform (Vicarious Liability) Act 1983 -no intention to derogate from judicial immunity or render Crown liable for conduct of judges in court

FAMILY LAW -effect of parenting orders where no adoption order TORTS -negligence -whether surgery negligent -whether post-operative review and discharge was negligent -whether advice to bring patient in to Emergency Department where health deteriorated was negligent -contributory negligence -effect of subsequent bereavement on assessment of non-economic loss DAMAGES -Compensation to Relatives Act 1897 -assessment of damages -whether subject to s 15 of Civil Liability Act -whether quasi-adoption ought be regarded as reducing or extinguishing loss in same way as remarriage

SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is a daughter of the deceased - Deceased left Will - No provision for the Plaintiff - Small estate - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made

COSTS - no issues of principle

ESTOPPEL - residential tenancy agreement between plaintiff and defendants for 12 months duration - plaintiff tenant alleged that defendants were estopped from terminating lease after 12 months - whether defendants' real estate agent made representations to plaintiff that lease would continue for more than 12 months - no question of principle.

ADMINISTRATIVE LAW - STATUTORY CONSTRUCTION - interlocutory relief - alleged inconsistency between two State statutes or subordinate legislation - regime to be implemented involved abrogation of rights otherwise held - orders issued.

PRACTICE & PROCEDURE - application to amend Scott Schedule - whether statute barred

DEFAMATION - form of imputation - where act or condition allegedly attributed to the plaintiff by the matter complained of is expressed as "a possibility"

BAIL - Bail Act s 9(4) - applicant in custody subject to revocation of parole - bail refused

APPEAL - appeal from Local Court - error of law - error of law and fact - whether Magistrate erred at law

CONTRACT - judgment entered by consent in proceedings under Criminal Assets Recovery Act 1990 (NSW) - motion under Contracts Review Act 1980 (NSW) to set aside consent orders PROCEDURE - civil - application for leave to appeal - adjournment sought to obtain legal aid - legal aid refused for trial - unlikely prospect of grant of legal aid - application for legal aid belated PROCEDURE - civil - application for leave to appeal - parties - tutor required for applicant under 18 years of age - conflict between interests of proposed tutor and child applicant - child applicant to obtain no benefit from success of application - child applicant removed as applicant and joined as respondent

PROCEDURE - application for leave to appeal from summary dismissal of claim - claim foreclosed by High Court decisions with respect to immunity of witnesses and immunity of legal representatives from suit for conduct in the course of litigation - statement of claim revealing no arguable case - inappropriate vehicle for challenge to judgments of High Court TORTS - negligence - alleged failure of court appointed expert in proceedings in the Family Court to disclose opinion contained in confidential letter to judge - failure of lawyers acting for children to disclose offer made by mother inconsistent with opinions expressed by expert in report - proceedings dismissed on basis of immunity of expert and lawyers with respect to such claims - matter in fact considered by trial judge in Family Court - Family Court orders subject to appeal to the Full Court of the Family Court - whether claim arguable

ENVIRONMENT AND PLANNING -unauthorised structures and an accumulation of motor-related equipment and other material on the appellants' property - respondent council issued notices to the appellants to demolish or remove these structures and a notice to remove and dispose of rubbish and refuse on the property - Council obtained orders of the Land and Environment Court enforcing the orders - no error established on appeal

CORPORATIONS - management and administration - Corporations Act 2001 (Cth), ss 128, 129 - guarantee executed by respondent company signed by two directors - signature of one director forged - whether appellant able to rely on assumption in s 129(5) that guarantee signed in accordance with s 127(1)(a) - whether appellant had "dealings" with respondent company - whether person dealing on behalf of company required to have actual or ostensible authority to enter into transaction which is the subject of the assumption

COSTS - notice of motion to vary costs order - no basis for different order for costs demonstrated

LIMITATION OF ACTIONS - Limitation Act 1969, s 50D(1)(b) - applicant injured when fell down stairwell - applicant did not believe her employer and respondent were separate legal entities - believed building owned and occupied by her employer and respondent - stairwell in fact under care and control of respondent as occupier of building owned by employer - whether applicant knew or ought to have known the identity of the defendant during period more than 3 years prior to commencement of cause of action - whether primary judge erred in holding claim brought outside 3 year post discoverability limitation period

JUDICIAL REVIEW - Local Court appeal - respondent undertook earthmoving work for appellant - whether reasons of Magistrate inadequate - scope of obligation to provide reasons supporting finding of fact - whether Magistrate erred in rejecting tender of surveyor's report - interest.

EQUITY - claim for equitable contribution between joint debtors - all parties were previously guarantors of a debt of a company managed by the defendant -company defaulted - the plaintiffs commenced proceedings to set aside their guarantees - proceedings ultimately settled in 1995 - the parties jointly took out a loan from a credit union to pay the settlement sum - the parties repaid the loan in agreed proportions for 16 years - in 2011 the defendant stopped making repayments and the plaintiffs repaid the balance to avoid default to the credit union - whether the plaintiffs entitled to equitable contribution in relation to the repayments to the credit union - whether the plaintiffs lost any part of their right to contribution because of their conduct of the settled proceedings or because of the circumstances in which the defendant executed the 1995 loan. PROCEDURE - self-represented litigant - Defence filed in the proceedings included various factual statements - order made treating the Defence as the defendant's evidence in chief.

CRIMINAL LAW – application for separate trial – s 21(2)(b) Criminal Procedure Act 1986 – circumstantial case – where Crown proposes to lead evidence against co-accused which is inadmissible against applicant – whether evidence highly prejudicial to applicant – whether potential prejudice can be quarantined by directions to jury – where scope for potential prejudice is limited – application dismissed

ADMINISTRATIVE LAW - appeal from Local Court - application to quash orders made by magistrate - s 14 Criminal Procedure Act 1986 - whether common informer can prosecute proceedings pursuant Home Building Act 1989 - whether Home Building Act "expressly conferred" authority to prosecute proceedings on specified person or class of persons - meaning of "expressly conferred" - whether prosecutorial powers can be "expressly conferred" by implication on a specified person or class of persons - where no express conferral of prosecutorial powers - where error of law established

SUCCESSION - Family Provision - effect of some potential claimants declining to challenge will

PROCEDURE - subpoenas - application for subpoena to be set aside - where subpoena is for contracts containing commercially sensitive information - where party issuing subpoena a member of the same industry - whether the production of confidential information would assist with the matter in issue - whether a legitimate forensic purpose for the subpoena - whether proposed analysis of subpoena documents falls within the proper scope of the valuation evidence - whether Practice Note SC 11 is applicable.

PROCEDURE - possession - notice of motion - summary judgment for possession - leave to issue writ of possession granted PROCEDURE - pleadings - notice of motion - leave sought to file amended defence and amended cross-claim - leave granted

DAMAGES - what loss has been occasioned to Charltons by virtue of the established breaches of the defendants in performing work for former clients of Charltons in the Restraint Period and in performing work for "shadow clients" whilst still employed by Charltons

CONTRACT - enforcement of deed of guarantee - whether conduct of mortgagee unconscionable for the purpose of section 12CC Australian Securities and Investments Commission Act 2001 (Cth)

CORPORATIONS - winding up - liquidators receivers released funds - interim distribution to creditors - proofs of debt

PRACTICE AND PROCEDURE - application for stay pending appeal - where one ground of appeal is plainly arguable but if successful would not improve applicant's position - where other grounds of appeal marginal - where balance of convenience does not favour the granting of a stay - stay refused

PROCEDURE - costs - where the appellants succeeded on only a limited number of the grounds of appeal that they had raised - where multiple issues raised - where substantive case not finally decided - whether costs of the appeal should follow the event PROCEDURE - costs - where application for indemnity costs on the basis of a rejected offer of settlement - whether failure to accept the offer in all the circumstances warrants departure from the ordinary rule as to costs PROCEDURE - costs - whether leave required on the issue of costs pursuant to 119(1A) Administrative Decisions Tribunal Act, 1997 (NSW)

DAMAGES - calculation of interest - date from which interest should be calculated where damage sustained over a period - date at which damage first suffered varied on appeal. COSTS - application for indemnity costs - Defamation Act 1974, s 48A - whether offer of compromise compliant with Uniform Civil Procedure Rules, r 20.26 - whether offer of compromise should be given effect as a Calderbank offer.

CORPORATIONS - management and administration - officers of corporation - directors - fiduciary duties of directors - whether use of funds credited to company loan account was a breach of fiduciary duty where no entitlement to the funds. ESTOPPEL - former adjudication - whether issue estoppel - whether existence of issue estoppel precludes the reception of further evidence - whether issue estoppel may be waived. LIMITATION OF ACTIONS - proceedings for equitable relief - application of Limitation Act 1969 by analogy - whether any analogous limitation proceeding - whether Limitation Act, s 47 or s 14 applies to a fraudulent breach of fiduciary duty - whether Limitation Act, s 52 applies to a company in receivership. APPEAL AND NEW TRIAL - appeal - general principles - whether appellate court will entertain a point not raised below - where evidence could have been given.

REAL PROPERTY - Torrens title - indefeasibility of title - fraud exception -agency. REAL PROPERTY - Torrens title - indefeasibility of title - fraud exception - co-ownership - joint tenants - whether fraud of one joint tenant in taking of title affects other joint tenant - where first joint tenant later transferred his interest to other joint tenant. REAL PROPERTY - Torrens title - indefeasibility of title - proceedings for the possession or recovery of land - proceedings brought by a person deprived of land by fraud - Real Property Act 1900, s 118(1)(d). ESTOPPEL - former adjudication - whether issue estoppel - whether privy in interest - co-ownership - joint tenancy. APPEAL AND NEW TRIAL - appeal - general principles - Supreme Court Act 1970, s 75A - appeal by way of rehearing - Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 - whether inference of agency should be drawn.

PERSONAL PROPERTY - assignment of bare right to damages constituted by rights arising under or out of a lease - assignee a beneficiary under a discretionary trust which indirectly owned shares in assignor company - whether assignee had a "genuine commercial interest" in the rights - Trendex Trading Corporation v Credit Suisse [1982] AC 679 - whether necessary for the existence of a relevant genuine commercial interest that the assignee has a pre-existing legal right against the assignor

LANDLORD AND TENANT - retail lease - obstruction of sightlines to lessee's premises - whether Tribunal erred in finding obstruction constituted unconscionable conduct on part of lessor - whether Tribunal applied wrong test in finding unconscionability - whether a finding of unconscionability against a corporation requires a finding of dishonesty or bad faith against individual officers or employees of the corporation - whether Tribunal adopted erroneous approach to determining causation - whether Tribunal denied parties procedural fairness in assessing damages on basis not put to parties - whether appeal raised questions of law

FAMILY LAW - de facto relationships - adjustment of property interests - whether primary Judge addressed correct issues - whether primary Judge's discretion miscarried - whether primary Judge failed to provide adequate reasons - whether discretion in relation to costs miscarried

APPEAL - erroneous fact-finding - whether appeal court can substitute its own findings - whether substantial miscarriage warranting retrial DAMAGES - torts - negligence - motor vehicle accidents - future economic loss - past domestic care - future domestic care - challenges to assessment at trial EVIDENCE - admissibility - opinion; expert report - assumptions - opinions based on measurements and calculations EVIDENCE - witnesses - cross-examination - objection - rejection of cross-examination - whether topic of cross-examination covered by particulars in pleading PROCEDURE - inadequacy of pleading - failure to particularise - no request for particulars - no notice before trial of objection to pleading - objection by ambush at trial procedurally unfair - refusal to grant adjournment to address amendment TORTS - negligence - contributory negligence - challenge to findings of fact at trial - failure to address key elements of the comparison of responsibility of plaintiff and defendant

ADMINISTRATIVE LAW - judicial review, application for further assessment of medical dispute refused - whether preconditions in Motor Accidents Compensation Act 1999 (NSW), s 62 are jurisdictional facts - whether preconditions is the opinion of the proper officer, formed in accordance with law - identification of jurisdictional fact a question of statutory construction - whether opinion of the proper officer determined according to law TORT - motor vehicle accident - determination of medical dispute - application for further assessment based on additional relevant information - application refused by proper officer of Motor Accidents Authority - whether decision should be set aside WORDS & PHRASES - "additional relevant information" - "capable of having a material effect" - Motor Accidents Compensation Act 1999 (NSW), s 62

ADMINISTRATIVE LAW - judicial review - alleged improper conduct by jurors - application to Sheriff to investigate - refusal by Supreme Court to approve request for investigation - whether judicial or administrative function - whether judge required to give reasons CONSTITUTIONAL LAW - conviction for federal offence - alleged misconduct of jurors - whether Sheriff can investigate under State law - whether power within scope of jurisdiction conferred by Constitution, s 80 - whether provisions of Jury Act 1977 (NSW) inconsistent with federal law CRIMINAL LAW - federal offence - control of jurors - post-trial request to NSW Sheriff to investigate improper conduct of jurors - undetermined appeal extant - whether approval/refusal of investigation ancillary to exercise of judicial function - whether exercise of appellate federal jurisdiction STATUTORY INTERPRETATION - whether statute creating offence in relation to soliciting information from juror displaces general law prohibition - power of Sheriff to investigate jury irregularities - Jury Act 1977 (NSW), s 68A and 73A - whether evidence of irregularities admissible on appeal

ADMINISTRATIVE LAW - judicial review - whether juror in criminal trial ineligible - application to Sheriff to investigate - refusal by Supreme Court to consent to investigation - whether exercise of judicial or administrative function - whether ancillary to the exercise of judicial power - whether judge required to give reasons CRIMINAL LAW - immunity of jury from investigation - effect on deliberations - power to investigate miscarriage in relation to conviction of federal offence JURISDICTION - conviction for federal offence - request to NSW Sheriff to investigate improper conduct of juror - no appeal available against conviction - possible application under Part 7 of Crimes (Appeal and Review) Act 2001 (NSW) - whether exercise of federal jurisdiction PROCEDURE - whether leave required to institute proceedings - leave not required under Felons (Civil Proceedings) Act 1981 (NSW), s 4 WORDS AND PHRASES - "improper conduct" - Jury Act 1977 (NSW), s 73A

PROCEDURE- withdrawal of an offer of compromise - suspicion of fraud - costs -indemnity costs

PRACTICE AND PROCEDURE - civil - Courts - concurrent jurisdiction of different Courts - transfer of proceedings under cross-vesting legislation CONTRACT - construction - licence agreement - whether "lend its name... to promote the success of any proceedings" means that the first defendant be joined as a second plaintiff if required by plaintiff - meaning of costs and disbursements clause in agreement

EVIDENCE - on facts fresh evidence illegally obtained and in any event excluded by privilege

SUCCESSION - Intestacy - De facto relationship - Where deceased was in a friendship with a man - Where they did not reside together - Where man did not describe himself as de facto partner - Whether de facto relationship existed - Probate and Administration Act 1898, s 32G - Property (Relationships) Act 1984, s 4. SUCCESSION - Administration - Application for advice - Where order sought according to Re Benjamin [1902] 1 Ch 723 - Scope of Court's consideration - Trustee Act 1925, s 63.

WILLS, PROBATE AND ADMINISTRATION - informal testamentary document - no dispute that undated document not executed in accordance with s 6 Succession Act 2006 - No dispute that the undated document purports to state the testamentary intentions of a deceased - Deceased familiar with the formal requirements for the making of a valid will - Whether Court satisfied that the deceased intended the undated document to form a Will - Consideration of circumstances in which the document was made - No dispute that if Court not satisfied should be grant of Letters of Administration with formal 2007 Will annexed to independent solicitor agreed to by the parties

COSTS - defendant leased industrial premises to the plaintiff - defendant issued a statutory demand in relation to lease related invoices - plaintiff wrote to the defendant disputing part of the claim and relying on a cross claim - parties unsuccessfully tried to resolve the dispute by correspondence - on the day the demand was expiring the plaintiff filed originating process to set it aside - defendant then withdrew the statutory demand - whether the defendant should pay the plaintiff's costs or whether each party should bear its own costs - costs discretion when there has been no hearing on the merits - whether the defendant has acted unreasonably - whether the defendant would certainly have failed on its claim.

PRACTICE AND PROCEDURE - vexatious litigant - application for judicial review of decision of Medical Tribunal in 2009 - nature of jurisdiction - no need for oral hearing - no prima facie ground - unexplained delay - leave refused

PRACTICE AND PROCEDURE: Transfer of proceedings -cross-vesting scheme -interests of justice