Cases and authorities

PROCEDURE - varying orders - need for a change of circumstances - no point of principle

PROCEDURE - judgments and orders - stay of enforcement - failure to challenge determination of costs assessor within time - writ of levy of property issued - judgment debtor's intention to seek extension of time for review - stay granted

EQUITY - equitable remedies - injunctions - injunction sought to restrain defendants from carrying out transactions on company's bank account without consent - whether prima facie case or serious question to be tried - whether balance of convenience favours granting injunction - whether lesser relief appropriate. PROCEDURE - order sought for transfer of proceedings to Supreme Court of Victoria - whether the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) is applicable legislation - whether having regard to the interests of justice, it is more appropriate for the proceeding to be determined by another court - whether the court should exercise its discretion to transfer proceedings.

PROCEDURE - judgments - variation of - no point of principle.

PROCEDURE - application for summary judgment - defences not properly verified - affidavit not sworn by defendant - defendant in default - defences not properly certified under s 347 Legal Profession Act 2004 - effect of lack of proper certificate.

CRIMINAL LAW - proceeds of crime - freezing orders - no point of principle.

ADMINISTRATIVE LAW - jurisdiction of the Supreme Court under s 39B of the Judiciary Act - discussion of motion in arrest of judgment - jurisdiction to declare void or quash income tax assessment - application for mandamus and prohibition against Commonwealth officers in collateral attack on criminal proceedings in the Court - discretion where broader rights on appeal are available - whether determination of financial advantage in criminal proceedings was reliant upon tax assessment and as a consequence impermissible non-judicial act inconsistent with the Constitution

CRIMINAL LAW - appeal - sentencing - severity - plea of guilty - import marketable quantity of border controlled drug (heroin) - whether applicant was denied procedural fairness in that the sentencing judge failed to warn that he did not accept the uncontested evidence of duress - whether sentencing judge erred in failing to find that the applicant had acted under duress when he committed the offence for which he stood for sentence - Ground 1 made out - appeal allowed - matter remitted for further hearing in District Court

CRIMINAL LAW - environmental offences - s 118A(2) - Expert witness code - admissibility of expert reports - chain of possession - assumptions - construction of Final Determination of Scientific Committee - beyond reasonable doubt - reasonable certainty - s 194(1)(d) - foreseeability of harm

CRIMINAL LAW - appeal - appeal against conviction - whether excesses in Crown Prosecutor's address to the jury led to a miscarriage of justice - whether appellant entitled to an order of acquittal or a new trial - new trial ordered

CRIMINAL LAW - appeal - appeal against sentence - whether sentence manifestly excessive

APPEAL - civil application to dismiss - summons seeking leave to appeal filed out of time - applicant seriously unwell - whether reasonably arguable grounds of appeal - where proceedings below summarily dismissed - whether failure to set aside would unduly burden respondents - no indication applicant's health likely to improve sufficiently to continue proceedings - summary dismissal not fatal to applicant's interests

CONTRACT - construction - loan agreements - whether loan agreements were intended to be operative in accordance with their terms - whether primary judge made erroneous factual findings or failed to make necessary factual findings.

CORPORATION - winding up - special leave sought under s 488(2) of the Corporations Act 2001 (Cth) for distribution of surplus funds in liquidation - whether creditors' claims have properly been recognised - whether relativities between contributories have been observed.

PROCEDURE - application for security for costs by defendants - where previous application for security for costs resolved by way of guarantee by related third party entity to pay any costs plaintiff is ordered to pay the defendants ("Guarantee") - where subsequent concern by defendants in respect of financial position of third party - where no evidence that Guarantee contained obligation to provide defendants with updated financial information - concerns by defendants as to financial position of third party did not establish to a level of probability that the third party was not in, or will not be in a position to meet obligations that may arise under the Guarantee - no requirement for an order for security from the Court to supplement or replace consensual agreement contained in Guarantee

COSTS - whether an order for costs on the indemnity basis should be made

BUILDING AND CONSTRUCTION - Home Building Act 1989 - Statutory warranties

EQUITY - general principles - equitable charges and liens - whether solicitor's lien extends to costs incurred in enforcing right to costs.

[JUDGMENTS AND ORDERS] - Application to set aside Consent Orders made upon a settlement agreement made during the course of previous litigation [MISREPRESENTATIONS] - whether representations made in affidavit were misrepresentations (fraudulent or innocent) - whether plaintiffs relied upon those representations in deciding to settle the litigation against the party making the misrepresentations

PROCEDURE - criminal - suppression order - inconsistent orders - revocation of earlier order

CORPORATIONS - winding up - liquidators - order sought for authorisation for liquidators to enter into funding agreement - order sought approving retainment of solicitors for the liquidators - whether intervening creditors entitled to be heard in respect of the application in their capacity only as creditors - whether entry into funding agreement is a proper exercise of the liquidators' power. CORPORATIONS - winding up - liquidators - application for judicial advice under s 511 Corporations Act 2001 (Cth) - whether direction would be of advantage in the liquidation - whether utility to such a direction - whether such a direction could potentially displace the need for liquidators to exercise their commercial judgment.

Proceeds of Crime Act - no question of principle.

SUCCESSION - wills, probate and administration - rectification of will under s 27 of Succession Act 2006 PROCEDURE - costs - appropriate costs order in contested rectification suit

PRACTICE AND PROCEDURE - notice of motion - application by first plaintiff to be represented separately to second plaintiff - application for leave to amend statement of claim PRACTICE AND PROCEDURE - application by second plaintiff for leave to file notice of motion in court and make it returnable instanter - application for extension of time to comply with orders for security of costs - application for a stay of the whole proceedings whilst second plaintiff advances a claim against its former solicitors from the Legal Practitioners Fidelity Fund

TAXES AND DUTIES - stamp duties - instrument of transfer of land under Real Property Act 1900 - instrument not lodged for assessment of duty prior to registration - instrument later deregistered by Registrar-General and withdrawn - assessment for duty issued in respect of transfer to plaintiff - plaintiff's objection disallowed - whether instrument of transfer cancelled - whether transfer of dutiable property to transferee occurred - whether no duty payable under s 50A(1) Duties Act 1997 - whether assessment should be set aside

PROCEDURE - Amendment of pleading - need for statement of claim to be clear, concise and unambiguous - whether leave should be granted to file complex pleading - no point of general principle PROCEDURE - Summary dismissal - whether inability to formulate a proper pleading and delay in doing so sufficient reason for summary dismissal - held not - no point of general principle

ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - assessment of damages by claims assessor - whether assessment entailed jurisdictional error - whether open to adopt a buffer approach to assessment of future economic loss

CONTEMPT OF COURT - deliberate obstruction of course of justice - conduct knowingly inconsistent with court order - intention to prevent plaintiff having benefit of judgment - absence of contemnor - discretion to proceed to hearing and sentence - fixed or indefinite term of imprisonment - warrant for committal to a correctional centre.

TORTS - negligence - concrete batching plant - plant collapse onto truck - bin collapse - scope of duty of care - whether risk of harm arising from collapse was foreseeable - exposure to significant risk - constructive knowledge of risk - whether risk ought to have been known - systems of work at the plant - how the plant was maintained - deficiencies in systems - bin support structure required maintenance before collapse - bin support system - expert evidence - s 5B Civil Liability Act 2002 - causation - s 5D Civil Liability Act 2002 - reasonable care was required - plaintiff's injuries - credibility - medical records - expert evidence - damages - physical and psychological injuries - economic losses - orders EVIDENCE - privilege - experts not given access to relevant information - inferences drawn against defendant

CRIMINAL LAW - sentencing - murder - aggravated sexual assault - worst category - no utilitarian discount for guilty plea - whether mental disorder - no remorse - future dangerousness - youth - whether life sentence should be imposed

PRIVATE INTERNATIONAL LAW - UCPR 6.43 and 6.44 - where New York law the proper law - where dispute as to content and application of New York law - foreign law notices - whether plaintiffs' pleaded cause of action known to New York law - whether disputed issues should be referred to panel of adjudicators in New York in accordance with Memorandum of Understanding and/or UCPR 20.14 - whether order can be made in absence of one party's consent

EMPLOYMENT - employee owes a duty of honesty to employer - duty breached by submission of fraudulent timesheets - breach of duty a ground for dismissal.

PROCEDURE - notice of motion - leave sought to file amended defence - withdrawal of admissions - ambiguous statement of claim - additional defences - whether new defences affect the factual dispute between the parties and prejudice the plaintiff - no point of general principle

APPEAL FROM LOCAL COURT - appeal against decision on grounds of denial of procedural fairness - whether mistakenly leading the appellant to believe the existence of a state of affairs is a failure to provide procedural fairness -- no explanation of res judicata or the risk of issue estoppel - proper role of a presiding judicial officer - what relief is appropriate - no point of principle

PROCEDURE - notice of motion - application to reject evidence sworn in an affidavit under ss 61(2)(a) and 61(3)(e) of Civil Procedure Act 2005 and s 192A(a) of Evidence Act 1995- no benefit of advance ruling- not in the interests of justice to compel an admission - no general point of principle

CRIMINAL LAW - Sentence Appeal - whether allowances made for early guilty plea - whether sentences complied with statutory requirements as to commencement date - whether sentences manifestly excessive

CRIMINAL LAW: sentence appeal- whether sentence excessive

CRIMINAL LAW: sentence appeal- drug rehabilitation- institutionalisation at a young age- non-parole period.

CRIMINAL LAW: sentence appeal - riot- fight between warring motorcycle clubs- guilty plea- parity- whether justifiable sense of grievance- offer of guilty plea rejected by Crown- whether discount sufficient.

TORTS - negligence - road accident cases - liability of drivers of vehicles - failure to keep a proper lookout. TORTS - negligence - road accident cases - vehicle parked in emergency lane - whether dangerous situation created. TORTS - negligence - road accident cases - obvious risk - whether duty to warn - Civil Liability Act 2002, ss 5F-H - no duty to warn of obvious risk. TORTS - non-negligent party - whether duty to warn of danger. TORTS - negligence - contributory negligence - plaintiffs crossing roadway without taking reasonable care for their own safety. TORTS - negligence - apportionment of responsibility and damages - apportionment in particular situations and cases - failure to give adequate reasons for assessment of damages - credit issues - matter remitted to first instance court for assessment.

PROCEDURE - Possession List - early judicial directions - no proper defence - no question of principle

SUCCESSION - family provision and maintenance - whether will made adequate provision for proper maintenance, education or advancement in life of plaintiff - factors relevant to quantum of family provision order - relevance of litigation costs to making of family provision order - whether failure to sever joint tenancy in managed fund account is a relevant property transaction under s 75 of the Succession Act 2006

PRACTICE AND PROCEDURE - plaintiff became bankrupt after decision reserved in primary proceedings - proceedings previously stayed until trustee in bankruptcy made election to prosecute or discontinue the action pursuant to s 60(2) Bankruptcy Act 1966 (Cth) - no election made within 28 days after notice of the action served upon trustee as required by s60(3) Bankruptcy Act - trustee deemed to have abandoned action - proceedings dismissed

CONTRACT - enforcement of settlement agreement - no inability to comprehend terms - no duress or intimidation BARRISTER - no failure to advise - no negligence - no conflict in a real and practical sense

TRUSTS - Judicial advice - Commercial Trusts - Prime consideration is the protection of the trust assets - Advice given

Approval of settlement - no question of principle.

PROCEDURE - judgments and orders - amending, varying and setting aside - costs - plaintiff's application to have costs orders made in Local Court set aside and costs orders entered in this Court varied to reflect decision on appeal - whether power under slip rule - whether appropriate in circumstances to exercise discretion

Costs - s 6 Suitors' Fund Act 1951 - concerning whether covers judicial proceedings in decisions of medical assessors or Medical Review Panels under Motor Accidents Compensation Act 1999.

CRIMINAL LAW - murder - sentencing - guilty plea -whether offence is a worst case category - whether sentence of life imprisonment should be imposed - consideration of aggravating and mitigating factors - very serious criminality but falling short of worst case - no general point of principle