Cases and authorities

ADMINISTRATIVE LAW - judicial review - jurisdictional error - plaintiff challenges the decision by a Proper Officer pursuant to s 62 of the Motor Accidents Compensation Act 1999 - declaration that decision vitiated by error of law and matter remitted

CORPORATIONS - Winding up - Statutory demand - Application to set aside statutory demand - Whether genuine dispute established - Whether offsetting claim established - Whether there is some other reason to set aside statutory demand.

LANDLORD AND TENANT - rent - abatement - mitigation of loss by lessor - damages - set-offs for lessee

WORKERS COMPENSATION - damages for past and future economic loss - history of intermittent employment of appellant - history and future plans of appellant to engage in small business - balance of demonstrated earning capacity with future vicissitudes of small business

COPROPATIONS - external administration - termination of deed of company arrangement - whether liquidator should be appointed

EVIDENCE - statement of an accused - accused cautioned by police - caution expressed to be subject to unstated conditions, failure to comply with which may result in the commission of an offence - whether statement properly obtained for the purposes of the Evidence Act s 139 - whether to exclude evidence pursuant to the Evidence Act s 138 EVIDENCE - statement of an accused - privilege against self incrimination - accused indicated that he did not want to answer questions - persistent questioning by police - accused made admissions - whether to exclude evidence of admissions CRIMINAL PROCEDURE - power of police pursuant to the Law Enforcement (Powers and Responsibilities) Act s 11 and 12 to request a person's identity - whether privilege against self-incrimination a "reasonable excuse" for the purposes of s 12

EVIDENCE - whether late notice of intention to adduce evidence of certain witnesses would cause prejudice to plaintiff - whether evidence ought to be excluded

CORPORATIONS - creditors statutory demand - where company is presumed to be insolvent - company seeks to oppose appointment of liquidator on grounds it is solvent - evidence required to prove solvency - whether evidence adduced by company is fullest and best evidence CORPORATIONS - creditors statutory demand - where company is presumed to be insolvent - Corporations Act, s 467(1) - discretion to adjourn winding up application - where there is some prospect of realising assets of the company by auction sufficient to satisfy creditor's debt

CRIMINAL LAW - fitness to plead - murder - accused no longer fit to be tried - orders

PROCEDURE - costs - motion for summary dismissal and/or strike out of statement of claim - application for leave to re-open - costs of re-opening - defendant successful in having part of claim summarily dismissed - whether costs should be payable forthwith.

CRIMINAL LAW - sentence appeal - robbery in company - no exceptional circumstances - no failure to give appropriate weight to mitigating factors - no error in failure to suspend sentences - sentence not manifestly excessive CRIMINAL LAW - sentence appeal - robbery in company - finding of no exceptional circumstances evaluative judgment - whether error to be determined in accordance with House v King principles

CRIMINAL LAW - sentence appeal - aggravated break enter and steal - no error in not obtaining pre-sentence report - whether double counting by taking Form 1 offences into account - no error in taking possession of safebreaking instrument on Form 1 into account - whether full-time custody manifestly excessive - whether sentence manifestly excessive

CRIMINAL LAW - interlocutory appeals - appeal by accused under s.5F(3) Criminal Appeal Act 1912 against refusal of a permanent stay - appeal by Crown under s.5F(3A) against evidentiary ruling excluding certain evidence - aggravated sexual assault and car stealing charges arising from incident in 1991 - 70-year old complainant - cold case investigation in 2011 after DNA match made linking accused to offences - videotaped interview with complainant (then 90-years' old) in January 2011 - accused charged in March 2011 - complainant dies in April 2011 - ruling by trial Judge that complainant's account of incident given in 1991 and 2011 was admissible under s.65(2)(c) Evidence Act 1995 - application for permanent stay based upon inability of Crown to call complainant at trial and loss and destruction of certain physical and documentary evidence - Crown case dependent upon DNA evidence - accused not able to demonstrate any realistic prejudice arising from inability to cross-examine complainant and loss and destruction of evidence - no error demonstrated in refusal to grant permanent stay - appeal by accused dismissed - ruling by trial judge excluding evidence concerning one count under ss.135 or 137 Evidence Act 1995 - two answers in complainant's 2011 interview held to render evidence on that count misleading or confusing - error demonstrated - two answers to be considered in light of all evidence on that count - factual issue for a properly instructed jury - evidence should not have been excluded under ss.135 or 137 - Crown appeal allowed

TORT - negligence - motor vehicle accident - collision at night between bicycle and car - whether driver was keeping a proper lookout - whether driver was travelling at excessive speed - whether driver should have seen cyclist - whether bicycle was carrying reflectors - whether cyclist was keeping a proper lookout

[CONTRACT] - whether parties entered into binding agreement - whether Deed of Release drafted by Appellant's solicitors reflected a binding agreement - whether agreement subject to execution of the Deed

TORTS - occupier's liability - negligence - where plaintiff tripped in the darkness on a piece of wire mesh situated on the front lawn of defendant - whether risk of injury foreseeable - whether duty of care breached - usual case that lawns have upon them various objects and obstacles - ordinary homeowner would not be expected to remove or illuminate all potential obstacles to free progress on his or her lawn - s 5B(1)(c) Civil Liability Act not satisfied - defendant not negligent

PROCEDURE - application to amend defence - whether point raised is sufficiently arguable to justify the grant of leave

PROCEDURE - judgments and orders - application to reopen - where counsel understood that there was a concession on calculation of an item of damages - interests of justice are better served by allowing the application DAMAGES - measure of damages for breach of fiduciary duty - deduction from damages of benefits previously agreed upon between plaintiff and defendant PROCEDURE - costs - general rule costs follow the event - where plaintiff obtains considerably less than he claimed but r 42.34 does not apply - where plaintiff has not failed on some separate issue - no basis for reduction of costs awarded

CIVIL - procedure - disqualification application - refused

CONFLICT OF LAWS - choice of law - conflict between English law and Australian law - lex causae - assignment of chose in action - voluntary and involuntary assignment - lex situs - lex loci actus CONFLICT OF LAWS - foreign judgment - conditions for recognition of foreign judgment CONTRACTS - construction - insurance

CONTRACT - settlement - variation - post-contractual conduct - debt - specific performance

EQUITY - estoppel - need for clear and unambiguous representations EVIDENCE - proof of uncorroborated statements attributable to deceased person - need for caution and scrutiny WILLS AND ESTATES - family provision order - entitlement of grandchildren - absent special circumstances, generosity by grandparent including payment of school fees does not give grandchildren entitlement to share of estate WILLS AND ESTATES - adequate provision for proper maintenance, education or advancement in life - necessity for evidence to enable evaluative process to be undertaken - need to consider position of defendant WILLS AND ESTATES - family provision order - continuing importance of freedom of testamentary disposition

PROCEDURE - judgments - setting aside - judgment after hearing - claim against medical practitioner for negligence - no expert's report pursuant to r 31.36 - judge orders proceedings to be dismissed - whether judgment given against good faith - whether given irregularly - whether denial of procedural fairness - failure of Plaintiff to rectify default - earlier motion to set aside dismissed - judgment not set aside.

PRACTICE AND PROCEDURE - application for extension of time for leave to appeal - no question of principle

APPEAL - application for leave to appeal - whether arguable case - no matter of principle

INTERLOCUTORY ORDERS - No question of principle - stay of judgment - long and complex trial - separate judgments on liability and quantum - adoption of referee's report on quantum - large sum of damages ordered - liability appeal hearing expedited - real and substantial issues on appeal - respondent in administration - stay ordered

[PROCEDURE] - civil - interlocutory issues - discovery - application to cross-examine on the affidavits of and relating to discovery - whether insufficient attention to discovery obligations - whether evidence given in support of discovery is so manifestly implausible that the Court should be required to permit cross-examination on it. [COSTS] - whether there should be some costs order other than that would follow from the relevant event.

CRIMINAL LAW - sentence - manslaughter - provocation

JUDICIAL REVIEW - Administrative law - decision of Parole Authority to grant parole - whether jurisdictional error or error on face of record - what constitutes record - whether failure to consider mandatory relevant consideration - whether Authority's Operating Guidelines constituted mandatory consideration - whether Authority otherwise obliged to consider issue of deportation - statutory obligations to give reasons - whether reasons inadequate - whether Parole Authority a "tribunal" within meaning of s 69 of Supreme Court Act 1970 - whether failure to provide reasons entitles Attorney General to an order in the nature of certiorari - costs.

REAL PROPERTY - Lease - Sub-lease - Application for orders for the vesting of property rights in certain retail premises - Oral agreement - Complete and enforceable lease agreement - Whether certainty of essential terms, parties, the identity of the leased premises, the commencement and duration, and the rent to be paid has been established by the evidence - Whether oral agreement established - Whether agreement is established by an admission in the pleadings - Whether agreement could be implied from the parties' conduct.

MORTGAGES - mortgages and charges generally - accounts - duty to account after mortgagee exercises power of sale - duty to account dependant on surplus - fact of surplus not pleaded - summary dismissal of proceedings

PRACTICE & PROCEDURE - amendment of defence - out of time and on eve of proposed trial - court's discretion to allow amendment taking into account circumstances of the request - consideration of Civil Procedure Act - no adequate explanation for delay - low chance of success as defence - prejudice to plaintiffs - amendment refused TORTS - proportionate liability - whether contributory negligence provides a basis for limiting a defendant's damages under s 35 Civil Liability Act 2002 - legislative policy precludes inclusion of contributory negligence with the meaning of "concurrent wrongdoer" TORTS - proportionate liability - where surveyor negligently represented incorrect benchmark levels on survey plan in flood-prone land - where house subsequently constructed in accordance with incorrect levels refused occupation certificate - whether alleged negligence of plaintiffs sufficient to establish proportionate liability - whether a plaintiff can be proportionately liable with respect to his or her own loss - distinction between "concurrent wrongdoer" and contributory negligence - a plaintiff who has negligently contributed to his or her own loss is not a "concurrent wrongdoer" TORTS - proportionate liability - where surveyor negligently represented incorrect benchmark levels on survey plan in flood-prone land - where house subsequently constructed in accordance with incorrect levels refused occupation certificate - whether builders concurrent wrongdoers with surveyor - insufficient evidence to establish realistic prospect of breach of duty by builders or causation of damage

EVIDENCE - witnesses - credibility - plaintiff employed by contractor on cotton farm - plaintiff driving vehicle on farm which collided with culvert and overturned - primary judge made a factual finding that the owner and operator of farm had breached its duty of care by failing to mark the culvert as a hazard - factual dispute as to presence of warning flags - appellant argued primary judge had been in error in preferring the evidence of witnesses who stated that there were no flags against evidence of other witnesses who said that flags were present - no error demonstrated - primary judge's reasoning based on demeanour in cross examination, objective indicia and expert evidence - appeal dismissed EVIDENCE - photographs - limitations on use of photographs in fact finding - photographs used to evaluate explanations given by various witnesses - permissible use

[CONTEMPT OF COURT] - civil contempt - application that the statement of charge be struck out or quashed - whether statement of charge sets out all the requisite elements of the particular contempt it seeks to allege - whether defendant failed to comply with its obligations under the Court orders - whether contempt alleged deliberate or wilful - whether statement of charge defective.

CRIMINAL LAW - sentence - accessory after the fact to murder - convicted following not guilty plea - assistance in disposal of body - claim of duress rejected

DEEDS - construction - release in deed of settlement - whether release includes claim for costs awarded in later proceedings - cautionary principle to be applied in approach to construction ADMINISTRATIVE LAW - judicial review - jurisdictional error - utility of granting discretionary relief where alleged denial of procedural fairness involved question of law determined against the plaintiff in this court

[PROCEDURE] - civil - whether court should order the separate and prior determination of the question of the existence of a duty of care - all relevant factual material before the court. [BUILDING AND CONSTRUCTION] - strata titles - whether defendants owed a common law duty of care - whether duty of care alleged is inconsistent with principle - whether appropriate for a trial judge to determine a common law duty of care owed to an owners corporation - whether decision in Bryan v Maloney (1995) 182 CLR 609 is authority for the existence of a duty of care.

LEGAL PRACTITIONERS - removal from the Roll of local lawyers - application to have legal practitioner struck off the Roll - legal practitioner convicted of defrauding the Commonwealth and obtaining financial advantage by deception - whether guilty of professional misconduct - whether fit and proper person - whether of good fame and character - Legal Profession Act 2004

LEAVE TO APPEAL - no question of principle - application for leave - applicant bankrupt - trustee elected not to continue proceedings - no standing in applicant - no bankruptcy jurisdiction in Supreme Court

PRACTICE AND PROCEDURE - Motion for separation of question of liability from determination of damages in proceedings - Determination of common questions of law and fact - Appropriate exercise of court's discretion - Whether common questions of fact and law have been properly identified - Whether liability and quantum should be separated - Whether "test cases" should be ordered.

CORPORATIONS - external administration - removal of liquidator - grounds for removal of liquidator - whether "cause shown" - whether removal of liquidator would be for the better conduct of the liquidation or the best interests of the liquidation - mere loss of confidence is insufficient - whether liquidator is required to be a "model litigant" - need for particularised allegations - whether reasonable apprehension that the liquidator would not approach making decisions about the Plaintiffs' proofs objectively and impartially CORPORATIONS - external administration - removal of liquidator - whether liquidator improperly failed to defend proceedings by first ranking mortgagee to recover property - where no tenable defence was available - where property was the only asset of value to satisfy debts - whether liquidator obstructed attempts to avert mortgagee sale CORPORATIONS - external administration - removal of liquidator - where liquidator commenced proceedings for an account of the plaintiff's mortgage - where evidence as to quantum and basis of claimed debt was scanty CORPORATIONS - external administration - Inquiry into liquidator's conduct - where liquidator took possession of plaintiff's chattels located on association property - where plaintiff was required to prove ownership of chattels - whether liquidator treated property of others as property of the association - whether liquidator entitled to insist on proof of ownership of chattels on association property - whether liquidator improperly sold property of the plaintiff CORPORATIONS - external administration - application for inquiry into liquidator's conduct - whether there are sufficient matters prima facie calling for further investigation - Corporations Act, s 536 CORPORATIONS - external administration - leave to sue liquidator for damages for conversion - whether applicant's claim has sufficient merit - where evidence does not rise above mere assertion

CRIMINAL LAW - APPEALS - conviction appeal - sexual intercourse without consent - whether verdict unreasonable, or cannot be supported having regard to the evidence - whether complainant's evidence credible despite inconsistencies - whether trial judge gave erroneous directions to jury - whether judicial bias shown CRIMINAL LAW - APPEALS - sentence appeal - sexual intercourse without consent - aggregate term of imprisonment of nine and a half years with six and a half years non-parole period - whether sentence manifestly excessive - whether objective seriousness of offences to be assessed having regard to previous relationship between offender and complainant and their ongoing intermittent sexual relationship - whether sentencing failed to conform with principles in Muldrock v R

CORPORATIONS - application for leave by creditor to commence and prosecute proceedings on behalf of a corporation -inherent jurisdiction of the court - proposed proceedings against director for breach of duties and breach of fiduciary duties - criteria informing exercise of the jurisdiction - whether proposed proceedings have solid foundation - views of the liquidator

SUCCESSION - statutory wills - s 18 Succession Act - application for leave to make application heard with application for substantive relief - where testator lacks testamentary capacity - where proposed will is unexecuted - whether proposed will is one which the testator is reasonably likely to have made had she had testamentary capacity - consideration of actual, or reasonably likely, subjective intention of incapacitated person - HELD - leave granted - application granted

EVIDENCE - expert evidence - whether report concerning potential value of a business in the future and its expected income admissible - discussion of role of expert in opinion for determining value of hypothetical business - held report admissible.

ADMINISTRATIVE LAW - procedural fairness - requirements of procedural fairness where member of club facing expulsion CORPORATIONS LAW - oppression

EQUITY - loan agreement - specific performance

TORTS - negligence - causation - 12 year old respondent injured when he fell from stairs in unit block owned and managed by the appellant - stair railing capping held by respondent dislodged when he was descending the stairs quickly and looking over the railing for his friend - primary judge found breach of duty of care by appellant in failing to provide secure capping - whether breach of duty was a cause of the respondent's injury - whether primary judge erred in preferring evidence of one expert witness over another - whether primary judge's findings were inconsistent with incontrovertible facts, glaringly improbable or contrary to compelling inferences

WORKERS COMPENSATION - worker injured whilst undertaking site rehabilitation at a coal mine where operations had been discontinued - whether worker was a "coal miner" for the purpose of Pt 18 Clause 3(1) of Schedule 6 to the Workers Compensation Act 1987 - whether site of employment was a "mine" to which the Coal Mines Regulation Act 1982 applied - whether mine had been abandoned - whether rehabilitation of site occurred "in connection with mining" for the purpose of the definition of "mine" in s 5(1)