Cases and authorities

TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - contract for services - services to be rendered with due care and skill - recreational activity - risk warning given - whether s 74(2A) of the Trade Practices Act picked up and applied s 5M of the Civil Liability Act 2002 FEDERAL JURISDICTION - federal jurisdiction exercised by State Courts - matter arising under a law of the parliament - s 80 Judiciary Act 1903 (Cth) - whether s 74(2A) of the Trade Practices Act 1974 (Cth) picked up and applied s 5B of the Civil Liability Act 2002 - whether s 5B of the Civil Liability Act not inconsistent with s 74(1) of the Trade Practices Act TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - exclusion clauses - recreational services - whether the exclusion clauses are rendered void by s 68B of the Trade Practices Act TORTS - negligence - contributory negligence - subsequent action taken by appellant - whether primary judge's assessment of relative culpability unreasonable - where s 74(2A) of the Trade Practices Act picked up and applied s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 TORTS - negligence - damages - non-economic loss - where primary judge focussed on respondent's pre-accident fitness - whether primary judge's assessment was manifestly excessive

APPEAL - when appeal lies - from interlocutory decision - leave to appeal from summary dismissal - proposed appeal devoid of merit - leave refused

CONTRACTS - general contractual principles - construction and interpretation of contracts - acknowledged contract for provision of services by the appellant to the respondents - dispute as to terms of contract - various challenges to primary judge's findings of fact relevant to that matter - no question of general principle

PRIVATE INTERNATIONAL LAW - foreign judgments - effect and enforcement - interest - calculation of interest up to time of registration of judgment - admissibility of expert opinion evidence COSTS - security for costs - application for security for costs in proceedings under Foreign Judgments Act 1991 (Cth)

REAL PROPERTY - mortgages - loan secured by farm property - Farm Debt Mediation Act - whether enforcement action taken by mortgagee void by reason of failure to comply with legislation - whether construction of legislation provides for alternate satisfaction of statutory requirements. APPEAL - Local Court - default of loan - application to set aside judgment - question of fact and law. PROCEDURE - whether current Summons should be resubmitted - whether plaintiff should have opportunity to apply for pro bono legal assistance.

PRACTICE AND PROCEDURE - application by Defendants to dismiss proceedings for want of prosecution - claim by Plaintiff under s.219 Law Enforcement (Powers and Responsibilities) Act 2002 for delivery of property to him - police seized $702,000.00 in cash from Plaintiff - claim by Plaintiff for return of money - history of non-compliance by Plaintiff with court orders - whether proceedings should be dismissed for want of prosecution - exceptional remedy declined - orders made to progress litigation - Plaintiff to pay Defendants' costs of Notice of Motion by way of gross sum costs order

CONTRACT - Specific performance - parties agree on terms of settlement to partition certain industrial land - Council requirements create unforseen expenses in the performance of the parties' settlement agreement - parties seek supplementary orders to give effect to their original agreement - but the parties are at issue as to the precise orders to be made.

Children and Young Persons (Care and Protection) Act - Decisions of Children's Court and, on appeal, District Court - Appeal to District Court pending - Application for Judicial Review - Application for stay of District Court proceedings refused - Assignment of business within Supreme Court

APPEAL - challenge to findings of fact - failure to address inconsistencies in evidence - issues not resolved by findings as to credibility and reliability - need to address failure of four practitioners to observe key element of melanoma relied on by plaintiff - retrial required NEGLIGENCE - medical practitioner - whether melanoma misdiagnosed as a plantar wart - whether breach of duty - whether finding that melanoma had probably metastasized before failure to diagnose supportable on the evidence

ORDERS - Suppression order - order necessary to prevent prejudice to the proper administration of justice.

CORPORATIONS - Winding up - Application for adjournment of winding up pursuant to (Cth) Corporations Act 2001 s 440A(2) on basis that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up - satisfied in interests of company's creditors for company to continue under administration.

PRACTICE AND PROCEDURE- application to re-open case- inconsistent with overriding purpose and guiding principles DEFAMATION- s 9 Defamation Act 2005

ADMINISTRATIVE LAW- apprehension of bias- application for disqualification of trial judge- evidentiary rulings- exchanges between bar and bench

EVIDENCE - admissibility of witness statement to police - whether evidence about the temperament of the horse known as "Dargo" should be excluded pursuant to s135 Evidence Act 1995 (NSW)

EVIDENCE - tender in re-examination of document cross examined upon - no question of principle.

PROCEDURE - application for the review of registrar's decision - application to vacate hearing date - application for extension of time to file evidence PROCEDURE - judgments and orders - in general - whether previous orders of the court have been complied with - whether the defendant has carried out remedial work

SPECIFIC PERFORMANCE - construction of contractual term - where obligation in contractual term susceptible of more than one meaning - intended meaning of contractual term in context of contract - whether defendants required to execute transfer granting easement.

CRIMINAL LAW - whether extension of time should be granted - hopeless appeal - no arguable grounds - application to change plea- no error in refusal - whether sentence manifestly excessive or otherwise affected by error - no error in reasoning or result - extension of time refused

APPEAL - Crown appeal against sentence - offence of dishonestly using position as employee of a corporation with intention of gaining advantage - "rolled up" charge - plea of guilty - suspended sentence with two year good behaviour bond - whether sentence manifestly inadequate - whether sentencing judge erred in allowing factors of delay and mental illness to displace principle of general deterrence in imposing a non-custodial sentence - whether sentencing judge's discretion with respect to issue of mental illness miscarried - mitigatory effect of delay based on consequences of delay to offender - sentence failed to reflect gravity of offence - sentence failed to adequately reflect principle of general deterrence - appeal allowed - sentence quashed - sentence substituted

ADMINISTRATIVE LAW - prerogative relief - jurisdictional error - procedural fairness - District Court appeal - criminal proceedings - where applicant self-represented

PRACTICE - application for leave to appeal - proposed challenges to factual findings - proposed challenge to costs discretion based on "walk-away" offer by defendant - no substantial prospects of success - leave refused

PROCEDURE - judgments and orders - stay of execution - where primary judge gave reasons for refusing adjournment after hearing the substantive matter - where no House v The King (1936) 55 CLR 499 error alleged - whether apprehended bias revealed by those reasons - whether applicant denied procedural fairness

DAMAGES - assessment of workplace injury damages - whether primary judge erred in failing to find that respondent had not taken all reasonable steps to mitigate his damages for lost earning capacity - whether primary judge erred in assessing respondent's pre-injury earning capacity - no question of principle

WORKERS COMPENSATION - appeal from decision of Presidential member of the Workers Compensation Commission upon appeal from a decision of the Commission constituted by an arbitrator - appeal to the Court of Appeal is available to a party aggrieved by a decision of the Presidential member in point of law - Presidential member declined to admit further evidence - whether decision that non-admission would not occasion substantial injustice entailed error of law - whether reliance on a particular medical report entailed error of law.

CRIMINAL LAW - admissibility of tendency evidence - preliminary ruling - evidence of past abuse of deceased by accused

SUCCESSION - family provision - argument as to the form of final orders - Helen Peipi awarded a statutory legacy as a de facto spouse of the deceased - Jessica Hilaney successful on her family provision claim as the deceased's daughter - main asset of the estate is a property in which the deceased and Ms Peipi lived - Ms Peipi desires to live in the property - whether the NSW Trustee and Guardian should be appointed as administrator of the estate - whether an independent person to act at no fee proposed by Jessica's mother should be appointed - Ms Peipi agrees to the appointment of this independent administrator if she receives a first option to buy the property at valuation - whether such an option might restrict the administrator's efforts to maximise the value of the estate by auction.

AMENDMENT - application to amend defence to plead plaintiff's bad reputation - material relied on not in same "sector" as reputation said to be imperilled by imputations - application refused.

PROCEDURE - application to amend list statement - addition of new claims after expiry of limitation period - whether defendants suffer prejudice by reason of inability to bring cross-claims against third parties in respect of plaintiff's further claims.

PROCEDURE - slip rule - application of slip rule to correct error resulting from misapprehension of counsel's position.

CRIME - sentence - offender convicted of murder after a trial - where Crown alleging intention to cause grievous bodily harm, not to kill - unplanned but vicious attack - dysfunctional domestic relationship

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - offers of compromise - Calderbank offer - whether genuine offer of compromise - whether unreasonable for defendant not to accept offer of compromise - where offer required entry of consent orders in similar terms to Statement of Claim in exchange for payment of $10,000 - offer contained minimal element of compromise - not unreasonable for defendant not to accept offer

CRIMINAL LAW - sentencing - murder - parity - extended joint criminal enterprise - finding of special circumstances

CRIMINAL LAW - sentencing - murder - parity - finding of special circumstances

APPEAL - orders seeking to set aside determination of the Lifetime Care and Support Authority - order seeking to restrain Authority from considering further applications - whether 2007 or 2012 Guidelines apply to application for participation in the Scheme - STATUTORY INTERPRETATION - meaning of s 9 and s 16 Motor Accidents (Lifetime Care and Support) Act - summons dismissed

EVIDENCE - expert evidence - early determination - application to reinstate rejected evidence - need to reconsider earlier judgment - power to re-open and re-hear - whether misapprehension of fact or law PROCEDURE - application to serve further expert reports after trial well advanced - whether a re-casting of the case - case management principles - no explanation for delay in serving reports DAMAGES - loss of chance - absence of evidence of value of chance - whether court must do its best to assess damages

EVIDENCE- admissibility of expert report- whether expert can opine as to safety of product without testing- expert can reason as to qualities based on experience- whether reasons sufficient to support conclusions- whether expert biased- opinion based on experience

WILLS, PROBATE AND ADMINISTRATION - Costs - Departure from usual rule that costs follow the event - Whether litigation caused by testator or reasonable to inquire into circumstances

COSTS - substantive proceedings resolved - no question of principle.

SUCCESSION - wills, probate and administration - lack of testamentary capacity - application seeking order authorising a will to be made on behalf of a protected person under s 19 Succession Act 2006 (NSW) - whether a number of possibilities as to the contents of the will the protected person would make exist - whether one possibility is "reasonably likely".

COSTS - offer of compromise - whether offer invalid for uncertainty - indemnity cost consequences - discretion to "order otherwise" - whether court should "order otherwise" - whether to apportion costs - whether to award interest on costs.

TORTS - negligence - duty of care - public authority - appellant suffered spinal injury jumping into river using rope swing - accident occurred on Australia Day near events organised by Council - Council aware of presence of rope - whether Council breached duty of care in failing to remove rope or to prevent use of it TORTS - negligence - personal injury - whether risk of harm that materialised an "obvious risk" within Civil Liability Act 2002, s 5F(1) - whether appellant engaged in a "dangerous recreational activity" within s 5K - whether Council not liable by reason of s 5L(1)

PROCEDURE - application for referral for pro bono -assistance STATUTES - acts of parliament - interpretation - Farm Debt Mediation Act - where deed of settlement regarding a farm mortgage entered into following mediation of dispute - whether a new farm mortgage came into existence by virtue of that deed - whether Act applies where a creditor's petition has been lodged pursuant to the Bankruptcy Act

CORPORATIONS - Application for extension of time in which to apply for order discharging examination summons - where extension amounts to four business days - no prejudice arising from delay - extension granted. CORPORATIONS - Application for leave to inspect affidavit filed in support of application for issue of examination summons - access to affidavit would not assist in illuminating purpose of its issue - access declined. CORPORATIONS - Whether examination summons an abuse of process - obtaining information about whether trustee has breached its duty and whether there are viable causes of action against it clearly within the examinable affairs of the company - examination summons not an abuse of process. CORPORATIONS - Application for order setting aside order for production - order for production not oppressive.

DEFAMATION - tender of reader response on web page to content identical to matter complained of - no question of principle.

PROCEDURE - costs - application for gross sum costs order - application made more than 14 days after entry of costs orders - power of court to make gross sum costs order when previous order made for costs as assessed or agreed - principle of finality of litigation - whether principle offended by making gross sum costs order when order for costs already made - construction of r 36.16(3) of the Uniform Civil Procedure Rules 2005 - use of words "except so far as" in r 36.16(3) - whether gross sum costs order alters substance of existing costs order - scope of dispensing power under s 14 of the Civil Procedure Act 2005 - interest on costs - application for interest on costs made more than 14 days after entry of costs orders - power to make order for interest on costs - meaning of order "as to costs" in s 98(3) of the Civil Procedure Act - stare decisis - binding effect of judgment of a single Judge of Appeal sitting alone pursuant to s 46 of the Supreme Court Act 1970

SECURITY FOR COSTS APPLICATION - defendants seek security for costs in 35 separate but substantially similar actions commenced by plaintiff - claim against one of the defendants taken as representative example - future conduct of the proceedings and court management uncertain at present - acceptance by plaintiff that it could not meet costs orders made against it in main proceedings in relation to all 35 defendants - whether there are discretionary reasons not to make an order for security for costs - likely length of time allocated by court to hearing - whether costs already incurred by defendants to be included in security.

PROCEDURE - summary judgment - bank loan and mortgage - default by reason of provision of incorrect information to bank - whether incorrect information provided by agent of borrower - forgery alleged - forgery supported by handwriting expert - factual and credibility issues - summary judgment refused

APPEAL - application for leave to appeal summary dismissal of proceedings - whether Governor-General under a legal obligation to remove and replace Director-General of Security - proposed appeal devoid of merit - leave to appeal refused JURISDICTION - investment of federal jurisdiction in Supreme Court by Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) - special federal matter - obligation to notify Attorneys General JURISDICTION - conflict between investment of jurisdiction by Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and exclusion of jurisdiction by Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether implied repeal of latter by former - observations of the Full Court of the Federal Court not followed - Supreme Court has invested jurisdiction STATUTORY INTERPRETATION - statement of operation of statute "notwithstanding anything contained in [any other] Act" - implied repeal by later Act - effect of Note to section referring to a later Act - Administrative Decisions (Judicial Review) Act 1977 (Cth) WORDS AND PHRASES - "special federal matter" - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 3(1)

PROCEDURE - application by former solicitor for payment of costs out of fruits of proceeding - application made by motion in the appeal - application treated as summons in Equity Division and remitted for determination COURTS AND JUDGES - nature of Supreme Court, Court of Appeal and Divisions of Court - assignment of proceedings within Supreme Court

TORTS - negligence - appellant carpenter injured when he fell through unfinished floor on building site - floor joists lacked one supporting strut - how and why appellant fell not established - causation of injuries by assumed negligence not established - whether builder negligent in not installing a temporary floor given that appellant was an experienced tradesperson