Cases and authorities

TORTS - professional negligence - breach of duty - solicitors instructed to make work injury damages claim - instructions given long after expiry of limitation period - failure to give advice and prosecute claim TORTS - professional negligence - causation - failure to address as element of cause of action likely instructions based on legal advice as to comparative value of compensation entitlements and damages TORTS - professional negligence - damages - assessment of likely recovery at notional trial date - allowance for chance of not obtaining extension of time - notional advice as to comparative value of compensation entitlements and damages - value of medical benefits

REAL PROPERTY - application for appointment of trustees for sale Conveyancing Act 1919 s 66G - property owned by six siblings in equal shares - whether service of the Summons on all co-owners proved - one of the co-owners bankrupt - whether, and if so how, the trustee in bankruptcy should be joined as a party - outstanding dispute between the parties in relation various property related payments made by two of the co-owners - potential promissory estoppel claim by one of the co-owners.

CONSUMER CREDIT - Appeal from Consumer, Trader and Tenancy Tribunal - prerogative relief sought under section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 - Supreme Court able to make findings of fact as are necessary in order to establish whether Tribunal had jurisdiction to determine the application - plaintiff purchased vehicle from third defendant and obtained "interest-free" loan from second defendant contemporaneously - loan contract secured by bill of sale over vehicle - second and third defendants both wholly owned subsidiaries of fourth defendant - evidence that sale price of vehicle included an additional amount above the "retail market value" - evidence that third defendant provided a "management fee" to second defendant for each "interest-free" loan provided to customers of third defendant - whether Consumer Credit (New South Wales) Code 1995 applied to loan contract and bill of sale - Tribunal determined that no charge was or may be made for the provision of credit to the plaintiff pursuant to s 6(1)(c) of the Code therefore Code did not apply - no requirement by Code that charge must be imposed by the credit provider or that charge must be made under a credit contract - alternatively, if requirement that charge made under a credit contract; sale contract, loan contract and "management fee" arrangement between plaintiff, second and third defendants constituted a single deemed credit contract pursuant to Schedule 1 of the Code - sale price of vehicle included an amount in the nature of a charge pursuant to s 6(1)(c) under the single deemed credit contract - Tribunal had jurisdiction to hear and determine plaintiff's application

TORTS - negligence - duty of care of local government authority to sporting cyclist exiting from a cycleway - early morning collision with closed boom gate customarily placed in the open position by day under an informal arrangement between the council and a neighbouring sailing club - boom gate constructed to exclude/prevent anti-social driving of vehicles in carpark - arrangement between Council and Club for Club to close and open the boom gate - the arrangement did not provide for a fixed timetable specifying mandatory opening times - overall discretion as to closing/opening times conferred upon the Club under its arrangement with Council - duty of care - duty in the Council in respect of cyclists as known users of the cycleway - BREACH OF DUTY - breach of duty by the Council - high level of cycle use known to Council and use of boom gate entrance as an exit - previous accident - failure to investigate and identify visual perception problems when gate closed - failure to modify gate to enhance its visibility as occurred following the accident - failure to re route the cycleway exit as undertaken subsequent to accident - failures by Council causally contributed to the plaintiff's cycling accident - Club not in breach of its duty of care having regard to the limited scope of its duty and the discretionary arrangement it had with the Council - CAUSATION - causal nexus between Council arrangement with the Club and failure to investigate and adopt available preventative measures which measures, if adopted, were likely to have prevented the plaintiff's accident - CIVIL LIABILITY ACT 2002 - ss 5F and 5G "obvious risk" - no obvious risk from cycling, s 5P - taking "precautions against a risk of harm" - a matter to be considered objectively by reference to the circumstances - factors in s 5B(2) did not outweigh those in s 5B(1); ss 5K and 57 - "Dangerous recreational activity" - no evidence of plaintiff's cycling constituting such a dangerous activity - s 42 - Council failed to adduce evidence to establish applicability of s 42(a) and (b) - Section 43A: "special statutory powers" - whether Council had exercised or failed to exercise a "special statutory power" under provisions of the Roads Act 1993 - sections 87, 114 and 115 of the Act - the failure to open the boom gate, or leaving the boom gate in the closed position was not the exercise or failure to exercise a special statutory power within s 43A

PRACTICE AND PROCEDURE - application to summarily dismiss proceedings - plaintiff failure to adhere to orders for service of expert evidence - plaintiff failure to follow Practice Note SC CL 7 - plaintiff failure to acknowledge overriding purpose of the Civil Procedure Act - application stood over in the interests of justice.

PROCEDURE - Vexatious Proceedings Act 2008 - application for leave to appeal to the District Court from the Local Court - whether there are prima facie grounds for leave sought to appeal - whether predominant purpose of leave to appeal is to harass, annoy or cause detriment. CRIME - appeal under s 84 of Crimes (Domestic and Personal Violence) Act 2007 - application of the rights of appeal and procedure under the Crimes (Appeal and Review) Act 2001.

PROCEDURE - unrepresented plaintiff - power to dismiss frivolous or vexatious proceedings - no reasonable cause of action - abuse of process where proceedings foredoomed to fail - no point of principle

FRAUD - whether the first defendant has committed fraud and forged the first plaintiff's signature on the transfers of real property, the pre-testamentary disposition document and on other documents - whether transfers of property were forged by the first defendant - whether the first plaintiff was complicit in the forgery or consented to the transfer REAL PROPERTY - claim for compensation out of Torrens Assurance Fund EVIDENCE - consideration given as to whether a Jones v Dunkel inference can be drawn in a civil case

PRACTICE AND PROCEDURE - dispute regarding sale of property held in co-ownership - performance of settlement agreement - abandonment of original settlement agreement - determination of the terms of the subsequent settlement agreement - contribution for outstanding fees - no issue of general principle

CONTRACT - contractual construction - whether the defendant is in breach of subleases with the plaintiff in entering into a sublease with a third party that permits the sublessee to sell by wholesale or retail, whether for export or not, live seafood of any description, frozen seafood or bait and berley

DEFAMATION - whether interlocutory injunction should be granted restraining the publication of defamatory material CONTEMPT OF COURT - whether there is a serious question to be tried - whether the defendant is in contempt for breaching the implied undertaking, publishing material seeking a reprisal against the plaintiff and for scandalising the court - whether injunction should be granted requiring the defendant to cease publishing the offending material

ADMINISTRATIVE LAW - judicial review - claim under Motor Accidents Compensation Act 1999 - medical assessment of claimant determined total body impairment of less than 10 per cent - application for review by medical review panel - controversy over relevant causation of shoulder injury - panel confirmed conclusion of medical assessor - application for judicial review by the Supreme Court - asserted error on the face of the record and jurisdictional error - whether panel properly applied itself to question of indirect causation from primary injury - decision of panel indicated that it found presence of shoulder injury was not sufficiently established - question of causation from accident consequentially irrelevant - sufficiency of reasons of administrative decision makers defined by purpose of function and scope of relevant matter

ADMINISTRATIVE LAW - judicial review - claim under Motor Accidents Compensation Act 1999 - claim legally and factually complex - multiple applications by insurer for exemption of claim from assessment - applications refused by assessor - jurisdictional error and error of law on the face of the record asserted - asking wrong question asserted - unreasonableness asserted - decision does not demonstrate patent error - decision not one that could not be reached by a reasonable decision maker - no requirement that assessor must reconsider each criteria in Assessment Guidelines when determining successive applications for exemption

ADMINISTRATIVE LAW - judicial review - claim under Motor Accidents Compensation Act 1999 - medical assessment of claimant determined degree of permanent impairment of more than 10 per cent on basis that asthmatic condition exacerbated by accident - patient history incorrect in material respect - general assessment proceeded - claims assessor independently considered causation of asthma -application by insurer for judicial review by the Supreme Court - asserted error on the face of the record and jurisdictional error - whether assessor erred in finding medical assessment certificate conclusive for all purposes - whether error in granting award of gratuitous care - whether denial of procedural fairness or failure to exercise statutory duty -conclusion of conclusiveness incorrect but immaterial to independent finding that asthma was exacerbated by the accident - sufficient evidence to make finding - no denial of procedural fairness - no duty on general assessor to refer certificate for further assessment - not open to insurer to complain about award for gratuitous care when conceded before claims assessor - principle of finality - error not established in any event

PRACTICE AND PROCEDURE - application for separate hearing of liability - prejudice to plaintiff - no benefit of court interest on judgment if assessment of damages deferred- decreased prospects of settlement if liability and damages heard separately

PRACTICE AND PROCEDURE - civil - interlocutory application - security for costs - whether reason to believe plaintiff would not be able to meet an adverse costs order - discretion to order security - relevant considerations in exercising discretion - quantum

PROCEDURE - three interlocutory motions - determination of separate questions as to a complete defence to plaintiff's claim - motion to summarily dismiss proceedings. PROCEDURE - motion to amend statement of claim - many previous amendments - late amendment sought - no justification for additional amendments to statement of claim provided - exercise of judicial discretion to allow or disallow amendments - parties must address issues in proceedings comprehensively and in a timely manner - overriding purpose of the Civil Procedure Act 2005 is not attained. LAWYERS - negligence - advocates' immunity - attaches to acts and omissions and extends to conduct of instructing solicitor - held immunity applies. EVIDENCE - witness immunity - whether witness has immunity for advice provided in expert report - whether alleged loss which accrued due to settlement was assisted by expert report - held immunity applies

PRACTICE AND PROCEDURE - determination of separate questions - questions to be determined under r 28.2 of the Uniform Civil Procedure Rules 2005 in advance of all other questions. REPRESENTATIVE PROCEEDINGS - State of NSW vicariously liable for conduct of police officers. TORT - claim for damages against State of NSW for wrongful arrest, false imprisonment and assault. STATUTORY INTERPRETATION - whether s 50 of the Bail Act 1978 provides a complete defence to wrongful arrest, false imprisonment and assault

ADMINISTRATIVE LAW - Mandamus - NSW Police - whether s 6 Police Act 1900 (NSW) establishes an enforceable duty - Discretionary consideration

DAMAGES - Tort - Personal injuries -Assessment of damages - Non-economic loss - statutory method of evaluation under s 16 of Civil Liability Act 2002 - when maximum damages may be awarded - No point of general principle. DAMAGES - Tort - Assessment of life expectancy - Use of prospective Actuarial Life Tables - No point of general principle. DAMAGES - Tort - Permanent disablement - Economic loss - Measure of damages available in respect of gratuitous services - No point of general principle. DAMAGES - Tort -whether a claim for funds management fee is appropriate - plaintiff has permanent disablement and moderate intellectual disability - inability to manage sums of money necessitates Funds Management - No point of general principle.

TRAFFIC LAW - motor accident legislation - liability - deemed denial of liability by insurer - applications for claim to be exempt from assessment - subsequent admission of fault but denial of liability - whether subsequent admission of fault supersedes deemed denial of liability - whether admission of an element of liability an admission of liability for part of claim - whether judicially reviewable error in determination of applications for exemption - meaning of "liability", "wholly denies liability" and "admits liability for part only of the claim" STATUTORY CONSTRUCTION - "Every section of an Act has effect as a substantive enactment without introductory words" - construction of statute as a whole - use of dictionaries

LEGAL PROFESSION - construction of costs agreement - no question of principle

COURTS AND JUDGES - apprehended bias - claim for prerogative or appellate relief following refusal by Magistrate to disqualify himself - publication in newspaper of articles reporting criticisms by Aboriginal Legal Service ("ALS") of sentencing in Local Courts in north-west New South Wales - Magistrate thereafter wrote letter to national newspaper and gave interview to journalist - Magistrate commented on range of topics including incidence of domestic violence in Aboriginal communities and the plea of not guilty rate for persons represented by ALS - newspaper published articles reporting Magistrate's comments - Plaintiff an Aboriginal person charged with and pleading not guilty to breach of apprehended domestic violence order - Plaintiff represented by ALS - application that Magistrate disqualify himself on ground of apprehended bias - application refused by Magistrate - factors relevant to disqualification application - material known to fair-minded bystander - relevance of Guide to Judicial Conduct - relevance of judicial oath - relevance of judicial statements concerning domestic violence in Aboriginal communities - relevance of comments made by Magistrate in peremptorily dismissing disqualification application in another matter - comments of Magistrate in letter and interview expressed in vehement and trenchant terms - cumulative effect of matters complained of - errors of law in decision refusing application - apprehended bias established - prohibition granted

MORTGAGES - Plaintiff seeks in substantive proceedings judgment for possession and amount outstanding under a loan to defendant - loan funds used to discharge prior loan defendant had with prior lender - defendant alleges loan and mortgage with plaintiff unjust and unconscionable - plaintiff seeks to be subrogated to prior lender's rights under prior loan and mortgage - defendant pleads subrogation unavailable because prior loan and mortgage also unjust and unconscionable - present application by plaintiff to file and serve further amended statement of claim - further amended statement of claim joins prior lender as defendants in the proceedings claiming restitution of monies advanced to discharge prior loan and mortgage - plaintiff pleads that its mistake as to enforceability of prior loan and mortgage gives rise to claim in restitution - prior lender opposes application -whether prior lender correct defendant in restitution claim by plaintiff - whether defences available to prior lender - whether plaintiff's restitution claim should, in effect, be summarily dismissed or struck out - not appropriate for summary dismissal or strike out - application of restitution principles ought be made at final hearing where findings of fact can also be made

PRIVATE INTERNATIONAL LAW - Application for leave to serve subpoena for production of documents in Hong Kong - Principles of comity - consideration of the Hague Service Convention and the Hague Evidence Convention

CRIME - sentence appeal - drug supply - large commercial quantity - whether primary judge erred in placing too much weight on quantity of drugs - whether sentence manifestly excessive

CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth pursuant to s 29D and s 7 of the Crimes Act 1914 - whether misdirection in summing up to jury - whether misdirection by the trial judge in relation to mistake, the rule in Browne v Dunn and the taxation of foreign residents. CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth - whether error from prejudice regarding the admission of tendency and coincidence evidence. CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth - application of proviso in s 6(1) of the Criminal Appeal Act 1912 - whether error by trial judge such as to make it inappropriate to apply s 6(1). CRIMINAL LAW - appeal - sentencing - considerations - whether trial judge failed to take into account or give sufficient weight to delay - severity of sentence.

BUILDING AND CONSTRUCTION - builder's duty to subsequent owner - latent defects in common property - duty to owners' corporation of commercial premises STATUTORY INTERPRETATION - scope of duty of care under common law - responsibility of builder of commercial building - significance of statutory warranties with respect to residential building work TORTS - negligence - claim for pure economic loss - duty of care for latent defects in commercial premises - liability to owners' corporation with respect to common property - vulnerability as necessary element of duty

REAL PROPERTY - caveats - application to extend operation of caveats - where caveats not stamped - whether caveats sufficiently identify the nature of the estate or interest claimed

APPEAL - failure to prosecute appeal - application by Crown for dismissal

REAL PROPERTY - Torrens Title - Caveat against dealings - application for extension of Caveat - Real Property Act 1900, ss 74K and 74J - whether caveatable interest

CORPORATIONS - company in liquidation - proceedings commenced against insurer without liquidator's consent - second plaintiff a director of the company - whether leave should be granted to second plaintiff to pursue proceedings on behalf of the company

PROCEDURE - plaintiff seeks to amend her statement of claim by adding claims based on Succession Act 2006 s 27 and promissory estoppel - defendant seeks to strike out the whole claim. SUCCESSION - plaintiff is the niece of the deceased - deceased made representations that he would buy a property for the plaintiff - no property purchased when deceased alive and plaintiff not provided for in the will - whether Succession Act 2006 s 27 will rectification claim manifestly groundless where no instructions preceding the will to which the will does not give effect pleaded - whether any deceased's instructions subsequent to the will may allow rectification under Succession Act 2006 s 27. EQUITY - whether promissory estoppel claim manifestly groundless where the only detriment pleaded by the plaintiff is effort to find an appropriate property for purchase and incurring a $1,200 rent increase.

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 the husband of the deceased and the father of the Plaintiff - Deceased left Will - No provision for the Plaintiff - 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

TORTS - defamation - judicial officer suing in respect of criticism of her performance of her judicial function - defence of truth - Uniform Civil Procedure Rules 2005, r 1.21 - questions referred to Court of Appeal - whether the defence of truth is precluded by the principle of judicial immunity - consequences for the proceedings TORTS - defamation - judicial officer suing in respect of criticism of her performance of her judicial function - defence of truth - Uniform Civil Procedure Rules 2005, r 1.21 - questions referred to Court of Appeal - whether the defendants defence of truth constitutes an abuse of process as inconsistent with the principle of finality TORTS - defamation - whether a judicial officer is barred from bringing defamation proceedings with respect to defamatory publications relating to criticism of the performance of a judicial officer's judicial function CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - Uniform Civil Procedure Rules 2005, r 1.21 - questions referred to Court of Appeal - whether the principle of judicial immunity is consistent with the implied freedom of political communication - whether discussion about the discharge by a judicial officer of the judicial function in a particular case is a discussion concerning political or governmental matters PROCEDURE - questions referred to Court of Appeal before trial - amendments to pleadings in appeal court - whether questions should be answered

CONTRACT - permits the principal to call on a guarantee when it has an arguable claim to entitlement to moneys - recourse to security before final determination of the claim does not interfere with the operation of the Building and Construction Industry Security of Payment Act 1999 (NSW) or a prior adjudicator's determination

CORPORATIONS - Dissolution - Deregistration - Reinstatement - Who can apply - Whether just to reinstate the registration of a company - Corporations Act 2001 (Cth), s 601AH

CRIMINAL LAW - forfeiture orders - instrument of a serious crime

Evidence - admissibility - whether opinions expressed were admissible - whether discretion to exclude should be exercised.

CIVIL- professional negligence- damages- breach of duty of care-

SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - testamentary note lacking express words of gift to first defendant - construction or rectification of statement that first defendant will "not receive" part of the estate despite indication of intention to benefit first defendant - validity of restraints on alienation - distinction between restraint on alienation by condition subsequent imposed on gift and by terms of trust

TORTS - negligence - appellant bullied and harassed by other pupils at high school -whether psychological harm caused by school's failure adequately to address bullying behaviour - whether primary judge's award of damages adequate

PROCEDURE - security for costs - costs of appeal - no special circumstances

REMEDIES - ex parte interlocutory injunction - whether breach of disclosure obligation by moving party - where no final relief sought - where moving party claimed to be protecting integrity of Court's processes by preventing self-help by plaintiff - where no undertaking as to damages - where other party subsequently consented to continuation of injunction - where other party later sought dissolution of injunction ab initio so as to cause alleged contempt for failing to comply with injunction to fall away - whether subsequent consent relevant to dissolution motion PROCEDURE - civil - judgments and orders - contempt - whether proceedings relate to contempt under s 101(5) Supreme Court Act 1970 so as to obviate requirement for leave to appeal - where injunction granted to forestall plaintiff's alleged contempt in nature of self-help or abuse of court's processes - where second alleged contempt in failing to comply with injunction PROCEDURE - civil - judgments and orders - whether orders of Supreme Court as superior court of record valid until set aside - whether such orders can be dissolved ab initio - whether failure to comply with such orders contempt, regardless of their correctness

PROCEDURE - Plaintiff sought order first defendant deliver up books and records - orders for substituted service made - first defendant failed to appear but provided medical certificate stating he is suffering from severe depressive disorder and is not currently fit to engage in any legal process - plaintiff sought to issue subpoenas to obtain additional evidence as to medical condition of first defendant because concerned first defendant incapable of managing his affairs so that appointment of tutor would be required for matter to proceed - instead of investigating medical condition of first defendant, where service in compliance with the orders for substituted service is established, more appropriate to make final orders which can be served on the first defendant with leave reserved to apply to set them aside.

CORPORATIONS - LIQUIDATION - Distribution of assets in matters 2011/58775 and 2004/182152 pursuant to (Cth) Corporations Act 2001 s 479(3) and approval of liquidators' remuneration in matters 2011/58775, 2004/182152 and 2001/58777 pursuant to s 1322(4).

CRIMINAL LAW - Jury Act 1977 - juror misconduct - Internet research - discharge of juror - examination by judge of jurors not suspected of misconduct

PROCEDURE - unrepresented plaintiffs - notice of motion to strike out statement of claim - incomprehensible pleadings do not disclose cause of action - no issue of principle

CRIMINAL LAW - juries - application to discharge whole jury - whether research of discharged juror contaminated whole jury - no risk of substantial miscarriage of justice

CRIMINAL LAW - application for inquiry into conviction - s 78, Crimes (Appeal and Review) Act 2001 - applicant convicted of import prohibited import - child pornography files - whether doubt or question as to guilt or mitigating circumstance - application refused