Cases and authorities

ADMINISTRATIVE LAW-procedural fairness-opportunity given to make submissions CRIMINAL LAW-return of seized property-nature of application CRIMINAL LAW-search warrants-legality unaffected by non-service of seizure notice EVIDENCE-public interest immunity- applies to evidence regarding current police investigations

COSTS - whether offer of compromise complies with r 20.26.

EQUITY - promissory estoppel - negative and defensive in substance - does not create rights - necessity for promise that legal right will not be exercised - insufficient if there is merely promise and assumption about conferral of benefit without corresponding promise to refrain from exercising legal right

CRIMINAL LAW - sentence appeal - damaging property with intent to injure a person - reckless grievous bodily harm - applicant set fire to unit whilst victim was asleep inside - whether sentencing judge erred in determination that offender's criminal record was an aggravating factor - partial accumulation

CRIMINAL APPEAL - sentence appeal - cultivation of prohibited plants by enhanced indoor means for commercial purpose - characterisation of objective seriousness - manifest excess

EVIDENCE - witnesses - foreign witnesses - evidence on commission - meaning of "evidence"- power of the court to make an order for foreign evidence - where no evidence that proposed examinees unwilling or unable to give evidence in NSW

Costs - no question of principle.

PRACTICE AND PROCEDURE - whether the third defendant should provide security for costs in respect of costs orders already made against the plaintiff

CORPORATIONS - winding up - meetings - orders sought for authorisation to provide notice of meeting and documents by email - whether the Court can modify the requirements of s 497 Corporations Act 2001 (Cth) where the company is in voluntary liquidation - whether the Court should exercise its discretion to provide the liquidators with a direction that they may provide notice by email.

COSTS - General principles that costs are to follow the event and are not to be assigned to various issues applied

COSTS - Legal practitioner - serious misconduct - preparing letter for client to show third parties advising that Court orders void.

ADMINISTRATIVE LAW - judicial review - stay of proceedings pending determination of summons seeking relief in this Court - whether dictates of justice require that a stay be granted

COSTS - SOLICITOR - application under s 728(1)(a) of the Legal Profession Act 2004 (the Act) - whether power to order itemised bill of costs where refusal by legal practitioner to comply with request pursuant to s 332A of the Act - whether expiry of limitation period to apply for costs assessment under s 350 of the Act precludes order under s 728 being made - circumstances that may arise by reason of s 350 do not act as preclusion but may constitute relevant discretionary factors - whether accord and satisfaction precludes client from seeking itemised bill of costs - no statutory warrant to limit the power of the Court to make a s 728 order where costs have been paid in whole or in part by a client - whether proceedings an abuse of process - finding of an abuse of process requires cogent evidence before an adverse finding can be made - no evidence available to demonstrate that plaintiff had no genuine interest in the proceedings - abuse of process not established - no facts or matters that, as a matter of discretion, would require refusal of the order sought under s 728(1)(a)

COSTS - SOLICITOR - application under s 728(1)(a) of the Legal Profession Act 2004 (the Act) - whether power to order itemised bill of costs where refusal by legal practitioner to comply with request pursuant to s 332A of the Act - whether expiry of limitation period to apply for costs assessment under s 350 of the Act precludes order under s 728 being made - circumstances that may arise by reason of s 350 do not act as preclusion but may constitute relevant discretionary factors - whether accord and satisfaction precludes client from seeking itemised bill of costs - no statutory warrant to limit the power of the Court to make a s 728 order where costs have been paid in whole or in part by a client - whether proceedings an abuse of process - finding of an abuse of process requires cogent evidence before an adverse finding can be made - no evidence available to demonstrate that plaintiff had no genuine interest in the proceedings - abuse of process not established - no facts or matters that, as a matter of discretion, would require refusal of the order sought under s 728(1)(a)

PRACTICE - order for examination of witnesses - UCPR 24.3 - whether aged and frail witnesses should give evidence in advance of the trial - where evidence in chief to be by way of witness statements - where defendants oppose orders sought - where no utility for the orders demonstrated

MOTOR ACCIDENT COMPENSATION - Motor Accidents Compensation Act 1998, s 118 - false and misleading conduct for purpose of obtaining a financial benefit STATUTES - principles of construction - Motor Accidents Compensation Act 1999, ss 118(1) and (2) - "financial benefit" - application of the provisions of s 118(2) in determining the issue of "financial benefit" obtained under a lump sum settlement - approach in determining financial benefit attained - factors in the quantification of the relief to which the defendant insurer is entitled to relief under s 118(2) of the above Act - adverse findings against the plaintiff in terms of s 118(1) of the above Act - impact of such findings in determining plaintiff's credibility - extent to which medical and other evidence provides independent corroboration of plaintiff's impairment and incapacity - basis for assessing true settlement value of the plaintiff's claim - discounting factors to be considered - settlement amount to be reduced - determination of the quantum of the relief to which the defendant insurer is entitled under s 118(2) of the above Act

MORTGAGES - mortgagee's remedies - loan secured by farm property - default by mortgagor - proceedings for recovery of possession by mortgagee - proceedings previously commenced in Supreme Court while mortgage regulated by Farm Debt Mediation Act 1994 - previous proceedings appealed in Court of Appeal - previous proceedings appealed in and determined by High Court - High Court determined enforcement action taken by mortgagee void by reason of plaintiff's failure to comply with a statutory precondition under the Farm Debt Mediation Act 1994 - mortgagor subsequently declared bankrupt - Farm Debt Mediation Act 1994 no longer applicable to mortgage by reason of s 5 of that Act - whether plaintiff precluded from relief sought by reason of s 91 Civil Procedure Act 2005 - whether issue in present proceedings has already been determined on the merits - whether cause of action estoppel at common law arises - judgment of High Court directed to issue of compliance with statutory precondition - only issue determined on the merits was whether enforcement proceedings were valid - remains open for mortgagee to enforce its rights where continuing default by mortgagor - whether mortgagor has standing as bankrupt - mortgagor holds bare legal interest only on behalf of Trustee in Bankruptcy - mortgagor had not established arguable defence - mortgagor had no standing in these proceedings

POSSESSION - default judgment entered and writ of possession issued - writ of possession executed - defendant re-enters property - whether default judgment can be set aside or challenged - certainty and finality of judgments - whether leave to apply for issue of writ of restitution should be granted

PRACTICE AND PROCEDURE - documents seized under a search order - obligation not to use documents otherwise than for the purpose of the proceedings - application for leave to disclose contents of documents for use in foreign proceedings - whether "special circumstances" exist to grant leave

PRACTICE AND PROCEDURE - security for costs - inherent jurisdiction - where first plaintiff bound by freezing order in relation to adverse costs order in other proceedings - whether likely to be difficulty recovering costs ordered in defendant's favour - turns on facts - no question of principle

COSTS - security for costs - impecunious plaintiff - discretionary factors - delay - defendant's contribution to plaintiff's impecuniosity - stultification

REMEDIES - adjudication determination void - jurisdictional error found in respect of only one issue - whether declaration that the determination is void should be made - whether certiorari should be issued setting aside or quashing the determination - whether, instead, that part of funds paid into Court not attributable to the jurisdictional error should be paid out to the claimant

ADMINISTRATIVE LAW - judicial review - whether Registrar's decision to allow appeal to panel error of law - whether panel applied wrong test of causation - whether plaintiff not given opportunity to be heard

ADMINISTRATIVE LAW - judicial review - operation of CTTT Tribunal notice of hearing provisions - when proceedings may be held in absence of party - whether requirements of justice considered

PROCEDURE - summary disposal - application to strike out parts of the cross-claim under UCPR r 13.4 - the fifth cross-defendant claims that the cross-claim discloses no reasonable cause of action against him - whether the pleaded case is available to be made out - whether the case is adequately pleaded - not plain and obvious that there is no issue to be tried - HELD: motion dismissed. PROCEDURE - pleadings - whether knowledge under Australian Securities and Investments Commission Act 2001 s 12GF and s 236 of the Australian Consumer Law sufficiently pleaded - UCPR r 14.28 - HELD: pleadings sufficient - motion dismissed UNCONSCIONABLE DEALINGS - unconscionable conduct and misleading and deceptive conduct - the cross-claimants claim that the first cross-defendant did not disclose a fee payable under a loan agreement and engaged in unconscionable conduct - representation by silence - fifth cross-defendant a director of the first cross-defendant - cross-claim pleads that the fifth cross-defendant was a person knowingly involved in the first cross-defendant's conduct. COSTS - interlocutory decisions - general rule that costs follow event - the fifth cross-claimant unsuccessful on the motion - whether the cross-claimants should have all their costs of the motion - the cross-claimants amended the cross-claim after the strike out motion was filed - HELD: the fifth cross-defendant to pay 75% of the cross-claimants' costs of the motion. COSTS - interlocutory decisions - whether a parties not joined to the motion should have their costs of the motion - the parties had a direct procedural and substantive interests in the outcome of the motion - HELD: the fifth cross-defendant to pay the costs of the third and fourth cross-defendants on the motion.

PROCEDURE - adjournment application on the basis of new facts arising out of production of documents - whether non disclosure of information amounts to 'ambush litigation' - whether adjournment facilitates the just, quick and cheap resolution of the real issues in dispute in the proceedings.

REAL PROPERTY - application for mesne profits PROCEDURE - civil - application heard in the absence of the defendant

PROCEDURE - judgments and orders - possession of property - consent judgment - leave to issue writ of possession

CORPORATIONS - winding up - liquidators - liquidators' remuneration - whether allegations of unsatisfactory conduct by the liquidators impact on calculation of appropriate remuneration

PRACTICE - transfer of proceedings from District Court - Civil Procedure Act 2005 s 140(3)(b)(ii) - whether "some other sufficient reason" to do so

TORTS-negligence-damages-non economic loss-evidence of hypothetical future intentions--future economic loss-difficulty in determining future capacity-buffer awarded-past domestic assistance

APPEAL - appeal from decision of Local Court - leave to appeal - whether issues raised questions of mixed fact and law - agency - ostensibly authority - whether principal bound by representations of third party made with ostensible authority

CIVIL LAW - examination orders pursuant to Proceeds of Crime Act (Cth) - whether examination order should be stayed because of pending criminal charges - whether principle in Hammond v Commonwealth applicable - whether there is any basis upon which to order stay - stay refused

CRIMINAL LAW -Crown appeal-order for trial by judge alone- whether discretion miscarried; CROWN APPEAL- order for trial by judge alone- racial prejudice- order made without evidence- jury prejudice- procedures available to identify and excuse prejudiced jurors- directions to jurors to promote impartial decisions; APPLICATION FOR ORDER FOR TRIAL BY JUDGE ALONE - apprehension of prejudice from facts of case- whether order justified- whether expert evidence complex- whether complexity of evidence justified order.

CORPORATIONS - management and administration - meetings - orders sought to modify means of dispatch of the notice of a second meeting of creditors - where the company had in the ordinary course communicated with its customers and its consultants by email - where substantial probability that the company will transition to a voluntary liquidation at the time of the second creditors' meeting - whether mailing notice of the second creditors' meeting would be a substantial expenditure - whether appropriate to extend an order allowing electronic communication forward to a liquidation of the company.

CORPORATIONS - statutory demands - application to set aside a creditor's statutory demand - where seek to set aside a costs order from a 2006 judgment - whether genuine dispute about the debt - whether an offsetting claim exists - whether, if demand not set aside, the company will be wound up and therefore unable to pursue its appeal against earlier judgment.

EVIDENCE - prior consistent statement - whether admissible under s108(3) Evidence Act 1995 (NSW) - whether it was suggested to the witness that his evidence had been 're-constructed' EVIDENCE - s135 Evidence Act - whether the probative value of the statement is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff

COSTS - Whether to apportion costs

CONTRACTS - general contractual principles - uncertainty of contractual terms - requirements of writing ESTOPPEL - estoppel in pais - effect of estoppel - appropriate remedy to give effect to expectation induced by estopped party - relevance of benefits already had by claimant to quantum of relief

CONTRACT - claim for damages by plaintiff manager against defendant owner for repudiation of contract for project management of subdivision development - no question of principle - whether contract had been discharged by agreement - whether manager was in default under contract - whether manager had failed to comply with directions of owner - whether warranty by manager that it had the skill, experience, competence and ability to manage the project was not true and correct CONTRACT - cross-claim for repayment of money advanced under contract JOINT OBLIGATIONS - whether necessary to join all joint obligors

ADMINISTRATIVE LAW - judicial review of a decision of a medical appeal panel constituted under s 328 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether jurisdictional error or error of law on the face of the record - whether reasons of the panel inadequate WORKERS COMPENSATION - worker exposed to sunlight in course of employment - claim for compensation for permanent impairment - whether any portion of the worker's impairment was "due to any pre-existing condition or abnormality" for the purpose of s323 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether early exposure to sun constitutes a "pre-existing condition" for the purpose of s323. WORDS AND PHRASES - "pre-existing condition"

TORTS - negligence - dangerous recreational activities - gliding - accident on landing - striking powerlines - whether plaintiff properly instructed - whether obvious risk - volunteers - whether gliding club vicariously liable

PROCEDURE - civil - application for stay pending application for special leave - whether exceptional circumstances shown

DAMAGES - torts - negligence - "just and equitable" apportionment between three tortfeasors - where one party owned and operated faulty crane and employed plaintiff - where one party carried out modifications to crane which created risk - where one party sought out modifications - impact of contractual allocation of liability - s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) TORTS - negligence - breach - scope of duty owed by modifier of crane to crane operator - risk of catastrophic failure of crane if mechanism not activated - whether duty required warning operator of risk - whether duty required instalment of failsafe mechanism - where familiar with crane structure and operation and aware that failure to activate mechanism would stress crane TORTS - negligence - whether former crane owner breached duty of care to crane operator - where it sought modifications which created risk - where it was a commercial operator of mobile cranes - non-manufacturing distributor - no expertise in designing, constructing or installing modifications TORTS - negligence - causation - whether appellants' negligence "necessary condition" of harm suffered - where three consecutive and related acts of negligence by three separate parties TORTS - negligence - causation - negligent conduct by multiple parties - whether tortious conduct of each broke causal chain between negligence of others and harm - whether subsequent negligent conduct reasonably foreseeable - where all negligent acts of same kind TORTS - negligence - whether plaintiff contributorily negligent - where plaintiff failed to activate mechanism required for safe operation of crane - where plaintiff not warned of possible consequences of failure

TORTS - negligence - personal injury - psychiatric/psychological harm - appellant bullied and harassed by other pupils at high school - whether cross-appellant aware that cross-respondent was being bullied - whether inadequate implementation of bullying policies - whether primary judge erred in finding that cross-appellant breached duty of care towards cross-respondent

PROCEDURE - no point of principle

CORPORATIONS - winding up - winding up voluntarily - orders sought terminating voluntary winding up under s 482(1) and 511(1)(a) Corporations Act 2001 (Cth) - whether the company would be solvent if the winding up is terminated - whether any public interest reason why the winding up should not be terminated.

PROPERTY - mortgagee seeks judgment for possession of real property - property mortgaged to secure all amounts outstanding on a loan agreement - loan principal not repaid - judgment for possession entered. PROCEDURE - mortgagor made bankrupt before the hearing of the claim for a judgment for possession - whether appropriate in the circumstances for the Court to grant judgment for possession - effect of Bankruptcy Act 1966 s 58(3) and the exception under Bankruptcy Act 1966 s 58(5) for a secured creditor to realize or otherwise deal with his or her security - whether mortgagee seeking a judgment for possession attempts to "realize or otherwise deal with his or her security" - no claim for money judgment made - HELD - seeking a judgment for possession falls within the scope of Bankruptcy Act 1966 s 58(5). PROCEDURE - whether UCPR r 36.8 applies - whether judgment for possession may be given or entered against the defendant - the trustee in bankruptcy - the bankrupt absent during the hearing of the application for judgment for possession - purpose of UCPR r 36.8 discussed - whether the requirement of service on all persons in occupation of the land in UCPR r 36.8 satisfied - affidavit of service read stating that the bankrupt confirmed at the time of service that no other persons were in occupation of the land - HELD: UCPR r 36.8 satisfied and judgment for possession may be entered.

CRIMINAL LAW - application to address on lies as consciousness of guilt - lie identified with precision - possibility that jury be satisfied of the tests in Edwards v The Queen - Crown permitted to rely on lie as consciousness of guilt

CORPORATIONS - Corporations Act 2001 (Cth) Pt 5.31A, ss 439A, 447A(1) - voluntary administration - extension of period for the convening of second meeting of creditors