Cases and authorities

DAMAGES - whether plaintiff entitled to nominal damages for breach of contract COSTS - plaintiff successful on some issues but unsuccessful overall - whether costs should follow the event

TORTS-malicious procurement of a search warrant-action established where the defendant's lies were actively instrumental in the issue of the search warrant TORTS-malicious procurement of arrest- not made out when insufficient evidence to establish defendant actively instrumental TORTS-malicious prosecution-party whose actions cause prosecution may be a prosecutor-falsity of accusations and collateral purpose demonstrate malice FAMILY LAW-property settlement - interests of justice - significant non-financial contribution DAMAGES-aggravated damages-awarded where plaintiff humiliated DAMAGES-exemplary damages-awarded separately and in addition to aggravated damages where conduct warrants condemnation

ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - damages assessment by claims assessor - whether claims assessor failed to consider medical evidence - whether claims assessor misstated submissions by plaintiff - whether assessor failed to give adequate reasons

APPEAL - competency - when amount in issue not shown to be at least $100,000

ADMINISTRATIVE LAW - natural justice - rule against bias - apprehended bias - test for - actions of Commissioner of Independent Commission Against Corruption in course of a public inquiry - ADMINISTRATIVE LAW - bias by prejudgment - public inquiry by Independent Commission Against Corruption into granting of Mining Exploration Leases - contact between Commissioner and Departments of Government - provision of legal advice by Commissioner to Departments of Government - request by Commissioner that project approval not be granted until report made by Commission - statements by Commissioner that no factual findings yet made - application for injunction against Commissioner by potential beneficiary if Mining Lease granted - INDEPENDENT COMMISSION AGAINST CORRUPTION - significance of broad investigatory and inquisitorial functions and powers - how principles of apprehended bias by a prejudgment apply to such a body - whether contact with government bodies by a Commissioner and provision of advice provided basis for claim of bias by prejudgment - no basis for claim of bias by prejudgment established.

CORPORATIONS - winding up - meetings - order sought by liquidator that resolutions passed at meeting were not invalid by reason of any contravention of the Corporations At 2001 (Cth) - where a partner who believed they were trustee in bankruptcy signed consent form instead of the partner who did hold the position of trustee in bankruptcy - whether can be treated as procedural irregularity - whether the power under s 1322(4)(a) Corporations Act may be exercised.

CORPORATIONS - examinations relating to insolvency - public or private examination - orders sought to vary access and use transcripts and other records of private examinations - circumstances of pending criminal proceedings PROCEDURE - joinder application - order sought for two persons to be joined as applicants - where proposed applicants have not brought an application before the Court.

PRACTICE & PROCEDURE - application for interlocutory injunction - defendant undertakes to keep full records - damages an adequate remedy.

PRACTICE AND PROCEDURE - application for security for costs - impecunious corporate plaintiff - no evidence of potential stultification - co plaintiff provided de facto security - overlapping issues - quantum of security reduced

PRACTICE AND PROCEDURE - review of Registrar's decision - nature of review - whether de novo or requires identification of error - whether subpoena issued as abuse of process - subpoena not issued with a predominant legitimate forensic purpose - subpoena set aside

PROCEDURE-security for costs-factors relevant to the exercise of discretion- delay-whether claim made in good faith- whether order would stultify proceedings - evidence of capacity of creditors to provide security

CORPORATIONS - Winding up - Liquidators - Appeal against rejection of a proof of debt - Whether debts were incurred by a company other than the Plaintiff - Relevance of other rights acquired by Plaintiff. CONTRACT - Parties - Identification of the parties to the contract to be determined in accordance with the objective theory of contract - Whether a change in contracting entity - Whether purchase order documents referring to different entities amount to a change of contracting party - Whether a company had contracted as agent for another company.

CRIMINAL LAW - murder - trial by judge alone - defence of mental illness - special verdict

CONTEMPT OF COURT - Undertaking provided to the Court to stay the execution of the Writ of Possession - Whether undertaking was uncertain, unclear and ambiguous - The proper construction, and subsequent effect, of an undertaking - The proper construction of a charge, or order, of contempt of Court - Whether Plaintiff must prove any state of mind or specific intent to disobey order of Court.

PROFESSIONS AND TRADES - claim against solicitors - professional negligence - Plaintiff retains Defendants following marriage in 2002 - Defendants draft Financial Agreement - Plaintiff and wife execute Financial Agreement in April 2002 - Financial Agreement did not comply with s.90G(1)(b) Family Law Act 1975 (Cth) - Plaintiff retains Defendants again in 2003 - Defendants draft Deed - Plaintiff and wife execute Deed in 2003 purporting to vary 2002 Financial Agreement - Plaintiff and wife separate in 2006 and divorce in 2007 - Federal Magistrates Court declares 2002 Financial Agreement to be non-binding in April 2008 - Plaintiff settles family law proceedings in 2008 on terms considerably less favourable to him than 2002 Financial Agreement - admission by Defendants of breach of duty of care concerning 2002 retainer - contention by Defendants that Plaintiff does not plead loss or damage arising from 2002 breach - denial by Defendants of breach of 2003 retainer - reliance by Defendants on s.5O Civil Liability Act 2002 concerning alleged 2003 breach - Plaintiff entitled to assert loss or damage caused by 2002 breach - Plaintiff establishes breach of 2003 retainer - reliance by Defendants on s.5O fails - Plaintiff establishes entitlement to damages - assessment of damages - verdict for Plaintiff

COSTS - apportionment of costs - apportionment of costs not capable of mathematical precision.

PROCEDURE - judgments and orders - amending, varying and setting aside - setting aside by consent. ESTOPPEL - estoppel in pais - equitable estoppel - proprietary estoppel - defendant invited his daughter and son-in-law, the plaintiffs, to move to and remain at his land - plaintiffs made improvements to that land with the defendant's acquiescence - defendant decided to disinherit his daughter - whethether an estoppel has arisen.

DEFAMATION-application to strike out imputations-whether imputations have the capacity to lower reputation of plaintiff in the estimation of others

CRIMINAL LAW - application for leave to appeal against sentence - assault with intent to rob in company and robbery in company - whether sentencing judge applied the relevant guideline - necessity to have regard to the fact that sentencing judgment delivered ex-tempore immediately following submissions - where factual errors on the part of the sentencing judge were not material - no error in application of guideline - whether applicant had justifiable sense of grievance in light of different non-parole period imposed upon co-offender - differentiating factors present - no breach of parity principle - leave to appeal granted and appeal dismissed

APPEAL - error in process of fact finding - failure to examine all material relevant to central issue - new trial required CONTRACT - whether transaction loan to appellant or investment in third party company - whether respondents' case contrary to compelling inference CONTRACT - post-contractual conduct - letter from respondents' solicitor to third party - whether letter contained admissions adverse to respondents' interests EVIDENCE - whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness - client legal privilege - where respondents gave evidence at trial about solicitor's advice - whether respondents waived privilege by acting inconsistently with maintenance of privilege

[LAWYERS] - where it appears that defendants would be unable to pay costs if ordered to do so - criteria for making an order under s 98 of the Civil Procedure Act 2005 - whether in the circumstances such an order should be made against the lawyers representing the defendants that they pay the plaintiff's costs of these proceedings. [FEES] - where principal lawyer in the USA charging a contingency fee of a percentage of the award of damages in separate proceedings in the USA in respect of which indemnity is sought from the plaintiff in these proceedings - whether principal and agent in Australia have an "interest" in the present proceedings - where principal lawyer in the USA and the agent in Australia not charging fees for legal services provided in these proceedings - whether this amounts to "funding" the litigation. [CONDUCT OF THE LITIGATION] - whether either party behaved unreasonably in the conduct of the litigation - where anti-suit injunctions granted in Australia in respect of proceedings in the USA in which the same relief (for indemnity under policy of insurance) sought - where multiple attempts to obtain anti-suit injunctions in the USA in respect of New South Wales proceedings - where opposition to defendants' application for separate questions - where one party putting the other to proof on allegedly incontrovertible facts. [OFFERS OF COMPROMISE] - whether the rejection of the offers of compromise unreasonable.

CORPORATIONS - winding up - liquidators - orders sought by liquidator to be released as liquidator - where liquidator intends to effect deregistration o two companies after the order of release is made - where application for release is made without a parallel application by the liquidator for an order terminating the winding up or for the deregistration of the company.

CORPORATIONS - winding up - application for leave to bring proceedings in winding up - where company insured against the relevant liability - whether prima facie case.

CRIMINAL LAW - appeal - error in judgment purportedly entered - application to amend judgment pursuant to Rule 50C of the Criminal Appeal Rules - power of the Court to amend orders once entered - effect of Rule 50C - original intention implemented

PRACTICE AND PROCEDURE - application for security for costs

APPEAL - application for leave to appeal - no matter of principle

PROCEDURE - subpoena - notice of motion - order seeking subpoena for production to be set aside - orders sought refused - costs

PROCEDURE - admissibility of a referee's report - whether a referee's report should be, in whole or in part, adopted or rejected - notice of motion sought orders that are not appropriate for a court to make

PROCEDURE - Order sought for payment from moneys held in court on behalf of first defendant for the purpose of paying legal costs - Construction of undertaking as to dealing with assets.

CRIMINAL LAW - procedure - fitness to plead - murder - schizophrenia - mental illness - unfit to be tried

CRIMINAL LAW - application for leave to appeal against sentence - assistance given to authorities - discord between expressed discount and discount applied - no other error asserted - sentence did not comply with s 23 Crimes (Sentencing Procedure) Act 1999 - applicant re-sentenced

CRIMINAL LAW - sentence appeal - attempted sexual intercourse, victim with a cognitive impairment - offender suffering from mental illness - whether sentencing judge assessed offender's moral culpability - need to adjust competing considerations in sentencing exercise - whether appropriate weight given to offender's mental illness - whether sentencing judge treated victim's vulnerability arising from her cognitive impairment as an aggravating feature - whether sentence manifestly excessive.

CRIMINAL LAW - consequential orders pursuant to s 59 of the Crimes (Sentencing Procedure Act) 1999 - sentence appeal allowed - adjustment of starting date of later unrelated sentence

PRIVATE INTERNATIONAL LAW - entitlement to damages for work-related injury - injury suffered out of jurisdiction - choice of law - Victorian law the lex loci delicti - s 134AB Accident Compensation Act 1985 (Vic) - damages only recoverable where a serious injury within the meaning of that section - whether statutory provisions stipulating the steps to be taken to determine whether injury a serious injury applied to proceedings in New South Wales District Court - whether provisions substantive or procedural WORKERS' COMPENSATION - entitlement to damages for work-related injury - injury suffered out of jurisdiction - choice of law - Victorian law the lex loci delicti - s 134AB Accident Compensation Act 1985 (Vic) - damages only recoverable where a serious injury within the meaning of that section - whether statutory provisions stipulating the steps to be taken to determine whether injury a serious injury applied to proceedings in New South Wales District Court - whether provisions substantive or procedural

PROCEDURE - costs - general rule costs follow the event - costs of issues.

CRIMINAL LAW - sentencing - affray - offences committed during large-scale disturbance at Villawood Immigration Detention Centre - relevance of context to severity of offending - relevance of period of immigration detention to sentence CRIMINAL LAW - sentencing - special circumstances - extended period of restricted liberty in immigration detention prior to sentence - finding of special circumstances

INJUNCTIONS - Interlocutory injunctions - applicant must show sufficient likelihood of success to justify injunctive relief - courts will consider the nature of the rights asserted and the practical consequences of the order - injunctive relief inappropriate where damages sufficient to preserve legitimate interests. CONTRACTS - restraint of trade - employment - where defendant prohibited from "approaching, canvassing, soliciting or endeavouring to entice away" - unnecessary to show solicitor initiated contact with the solicitee - sufficient to show solicitor took steps to obtain the services of the solicitee.

REAL PROPERTY - partition of land - statutory trust for sale - motion to appoint trustees for sale for two parcels of real estate in Tasmania - motion consequent upon proceedings in New South Wales decided under the Property Relationships Act 1984 s 20, Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675 - appointment sought in respect of the Tasmanian properties in exercise of the Court's power under Jurisdiction of Courts (Cross Vesting) Act 1987 (s 4(3) - whether court has power to make the orders sought - plaintiff does not appear at hearing of motion - whether plaintiff properly served with notice of motion - on what terms the proposed trustees for sale should be appointed

Particulars - assault occasioning actual bodily harm - necessary to particularise acts causing harm - latent duplicity or ambiguity.

COSTS - whether the liquidator is personally liable to pay costs where the liquidator is a party to the proceedings and "initiates" proceedings - meaning of "initiates"

SUCCESSION - family provision and maintenance - application by adult son for provision from mother's estate pursuant to s 59 of the Succession Act 2006 - will left unequal legacies to three siblings - whether "two-stage" test remains applicable - whether inadequate provision made for plaintiff and, if so, what provision ought to be made

Costs - party withdrawing from hearing and agreeing to abide the result except as to costs - whether entitled to argue merits - usual order appropriate.

Costs - separate question - whether without utility - indemnity costs - mere weakness of case insufficient to justify - costs of successful third party - who should pay - notice to admit facts - disputed - when indemnity costs apply.

CRIMINAL LAW - sentence - causing grievous bodily harm with intent, recklessly inflict grievous bodily harm and affray - prior altercation at house party attended by young people in late teens - victim later apprehended by offenders in public street - possession of weapons not proved beyond reasonable doubt - offenders with no prior criminal records - remorse as a mitigating factor s 21A(3)(i)

TORTS - claim for indemnity under Workers Compensation Act 1987 s 151Z - negligence - near collision between bus and vehicle causing injury to worker as passenger on bus - whether primary judge ought to have drawn an inference that the driver of the car negligently stopped in the intersection - whether incorrectly restricted bus driver's duty of care as limited to avoiding a collision and consequently failed correctly to identify risk of injury - whether failed to give any or sufficient weight to evidence of speed of bus and knowledge of conditions of bus driver - whether primary judge erred in requiring identification of owner and insurer of actual bus and not fleet of buses for purposes of Motor Accidents Compensation Act 1999 (NSW), s 34(1)

CRIMINAL LAW - murder - application for a trial before a judge alone - whether in the interests of justice to grant the order sought - whether issue of intention was one which required the application of community standards - whether the nature and extent of pre-trial publicity was such as to render it in the interests of justice that order be granted for a trial by judge alone - whether potential saving to the community is a relevant factor - where appropriate directions will be given to the jury - where it is assumed that such directions will be applied - application for judge alone trial dismissed

CORPORATIONS - Winding up - Liquidators - Orders sought for appointment of liquidators upon the resignation of liquidators - Whether Court has jurisdiction to make an order to fill the vacancies that will arise upon the resignation of a liquidator - Whether Court has jurisdiction to appoint a liquidator to companies in creditors' voluntary winding up and in a members' voluntary winding up - Whether where two or more persons appointed as liquidator, the functions or powers of the liquidators may be exercised by one alone.

CORPORATIONS LAW - Interlocutory injunction to restrain directors' meeting - lateness of application - Whether serious question to be tried established - Balance of convenience

PRACTICE & PROCEDURE - Injunctions - Interlocutory injunctions - where undertaking as to damages - strength of undertaking assessed against likelihood and quantum of prospective damages.