Cases and authorities

WORKERS' COMPENSATION - entitlement to compensation - worker injured at party held on work premises - party held to farewell work colleague and to celebrate birthdays of persons having no connection to employer - employer provided no food, drink, entertainment or security for party - worker attended party to meet clients, make a good impression and join in with work team - whether sufficient connection between injury and employment

ADMINISTRATIVE LAW - judicial review - apprehended violence order - Local Court dismisses application for apprehended violence order and makes costs order against applicant - appeal by applicant to District Court dismissed - applicant seeks review of District Court's decision by Court of Appeal - scope of review limited to jurisdictional error - function of District Court on appeal by way of rehearing - no jurisdictional error with respect to decision on making of apprehended violence order - failure to address statutory pre-condition to existence of power to make costs order - jurisdictional error established in relation to the costs order.

SECURITY FOR COSTS - litigation concerning charitable trust - litigation stemming from community religious dispute - public and community interest involved in proceedings - overriding interest in just, fair and expeditious resolution of dispute - inappropriate to order security

[COSTS] - general rule that costs follow event; exceptions to the - costs assessed on the indemnity basis - interest on costs - whether "event" in favour of the plaintiff - whether delinquent conduct to justify the making of an order for costs on the indemnity basis - whether interests of justice demand that interest should run on costs.

CORPORATIONS - external administration - application by liquidators for judicial advice - Corporations Act s 511 - whether liquidators justified in pursuing legal action on behalf of the company - where prosecution is not certain to improve position of company and creditors - where prosecution will assist in resolution of proceedings essential to completion of the winding up

[CONTRACT] - whether employment contract terminated without cause or terminated for serious misconduct - whether compliance with process for termination for serious misconduct - whether proper grounds for termination for serious misconduct - justification - whether conduct discovered after purported termination struck at the root of the employment contract - whether such conduct would justify a loss of trust and confidence in the relationship

ASSOCIATIONS - whether property held on trust for unincorporated association is now held on trust for incorporated association - whether unincorporated association is "former association of the incorporated association" - whether Associations Incorporation Act 1984 only provides one mechanism for replacing unincorporated association with incorporated association - held that it does not.

ADMINISTRATIVE LAW - judicial review - discretion to refuse relief - application filed 8 years after decision complained of - whether lapse of time explained or justified - whether risk of prejudice if complaints were remitted - whether complaints would be remitted MEDICAL PRACTITIONERS - professional misconduct - practitioner's addiction to narcotics affected practise - Medical Tribunal found that practitioner had engaged in professional misconduct and was impaired - whether findings inconsistent - whether manifest error of law PROCEDURE - judicial review - summary dismissal - want of due despatch - application filed 8 years after impugned decision - whether want of due despatch in prosecution of the proceedings includes delay in commencement - whether appropriate to invoke uniform rule in judicial review proceedings where relief is discretionary - Uniform Civil Procedure Rules 2005 (NSW), r 12.7 WORDS & PHRASES - "prosecute the proceedings" - Uniform Civil Procedure Rules 2005 (NSW), r 12.7

ADMINISTRATIVE LAW - judicial review - challenge to validity of departmental guidelines - whether challenge only available in respect of a particular decision or exercise of statutory power APPEAL - leave to appeal - significant issues of principle - availability of mandatory injunction for threatened negligent conduct - conditions of incarceration - whether leave to appeal should be granted CONSTITUTIONAL LAW - jurisdiction of Supreme Court - State Act purported to require felons in custody to obtain leave to commence civil proceedings - whether jurisdiction of Supreme Court limited by the principle of attainder - whether limitation arose under the general law in 1901 - Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531; Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 discussed - Felons (Civil Proceedings) Act 1981 (NSW), s 4 COSTS - costs of appeal - whether appropriate to depart from usual order as to costs - whether constitutional argument raised by applicant extended hearing of matter - whether resolution of factual issue on appeal affected outcome of case COSTS - costs of trial - prisoner sought to challenge conditions of incarceration - whether appropriate to order costs against unsuccessful prisoner raising issue with wider consequences - whether order of primary judge within available discretion PROCEDURE - judicial review - whether person serving sentence for serious indictable offence requires leave to commence proceedings in relation to the terms and conditions of incarceration - Felons (Civil Proceedings) Act 1981 (NSW), s 4 REMEDIES - mandatory injunction - applicant sought quia timet relief - whether injunction available for threatened negligent conduct - whether respondent in breach of legal duty - whether statutory duty or duty arising under the general law - whether distinction between judicial review of discretionary decision and quia timet relief - Civil Liability Act 2002 (NSW), ss 43 and 43A; Crimes (Administration of Sentences) Act 1999 (NSW), ss 10-13 STATUTORY CONSTRUCTION - Felons (Civil Proceedings) Act 1981 (NSW), ss 3 and 4 - requirement that person in custody as a result of conviction for a felony obtain leave to commence civil proceedings - whether leave requirement applies to applications for relief in accordance with public law principles - whether leave requirement now applies to any person in custody as a result of a conviction for a serious indictable offence - whether appropriate to refer to repealed provision to assist in construction of unrepealed provision - Crimes Act 1900 (NSW), ss 580E-580F WORDS AND PHRASES - "civil proceedings"

CORPORATIONS - external administration - unreasonable director related transactions - voidable transactions - Corporations Act, s 588FDA - Corporations Act, s 588FE - Corporations Act, s 588FF - whether transactions benefited company - where funds applied to recover funds expended by directors on legal fees on behalf of company - where funds applied by directors to repay director's mortgage - whether transactions benefited company - whether reasonable person in the company's circumstances would not have entered into transactions

EQUITY - Equitable remedies - Injunctions - Injunctions to preserve status quo or property pending determination of rights - Mareva injunctions - whether the evidence establishes prima facie risk of dissipation of assets

PRACTICE AND PROCEDURE - parallel proceedings in Supreme Court and Dust Diseases Tribunal - discontinuance of Supreme Court proceedings PRACTICE AND PROCEDURE - extension of time to bring cross-claim PRACTICE AND PROCEDURE - costs

WILLS, PROBATE AND ADMINISTRATION - executors - application for removal of executor - allegations that executor mismanaged affairs of estate - where funds were paid into working account of company owned by executor - no authorisation for executor to mix estate moneys with his own - executor concealed movement of money by wrongly describing payments made - where accountant and financial advisor appointed as executor and trustee of will - clause in will authorising right to charge professional hourly rate "in connection with the trusts in this Will" payable from the estate - executor withdrew moneys on account of such remuneration in advance of the doing of work for which invoices were later rendered - time sheets provided were not contemporaneous - amounts charged were excessive - whether estate as been put into jeopardy by reason of breaches of duty WILLS, PROBATE AND ADMINISTRATION - letters of administration with the will annexed - appointment of administrator - proposed trustee company declined to act - where plaintiffs sought order that chartered accountant be appointed as administrator - where no evidence of fitness to be appointed as executor nor of experience as trustee or executor of will - no evidence of knowledge of ongoing dispute between beneficiaries - no evidence of willingness to be appointed if not entitled to charge - appointment of the NSW Trustee and Guardian pursuant to NSW Trustee and Guardian Act 2009, s 22

SECURITY FOR COSTS - application by defendant for security for costs - applicable principles - where at least one plaintiff has sizeable asset in the form of land holding - defendant estimated large costs - application for security granted PLEADINGS - application for leave to amend statement of claim - agreement between parties - plaintiffs to amend statement of claim within 28 days

PRACTICE AND PROCEDURE - proceedings commenced in the Supreme Court of New South Wales - application by defendants to have proceedings transferred to the Supreme Court of Queensland - whether in the interests of justice to transfer proceedings - proceedings transferred

TORT - negligence - motor vehicle accident - consecutive collisions - whether appellant was in her vehicle at time of second collision - credit findings by trial judge - rejection of appellant's evidence and acceptance of evidence of witnesses of respondent - whether evidence of respondent's witnesses had been contaminated by post-accident discussions and the conduct of an investigator - whether "incontrovertible facts" inconsistent with his Honour's findings existed - whether his Honour's findings were "glaringly improbable" or "contrary to compelling inferences" - whether content of an expert report should have been specifically referred to by his Honour - no basis for interfering with the decision of trial judge established.

COSTS - where executor proposed to carry out all work required to obtain probate and administer estate on payment of remuneration in lieu of commission - executor sought agreement of beneficiaries - where majority of beneficiaries agreed to proposal - executor believed issue of remuneration should be resolved before final distribution - executor not justified in withholding partial distribution of estate -held costs follow the event COSTS - Uniform Civil Procedure - executor acted for own benefit rather than benefit of the estate - executor not entitled to indemnity out of estate

SUCCESSION - The Plaintiff makes a claim for a family provision order - Plaintiff a child of the deceased - Defendant also one of the children of the deceased and the executrix appointed in the Will of the deceased, to whom Probate was granted - Two other Plaintiffs, also children of the deceased brought proceedings that were settled - Whether family provision order should be made for remaining Plaintiff and if so nature of the order

CORPORATIONS - Statutory demand -defects -substantial injustice - whether omission of warning required by Corporations Regulations 2001, form 509H, occasioned substantial injustice CORPORATIONS - Statutory demand -genuine dispute as to indebtedness - plausible contention that the wrong creditor is named in the demand - whether demand should be set aside

EQUITY - trusts and trustees - vesting orders, conveyances and transfers - consent orders PROCEDURE - costs - departing from the general rule - offers of settlement more favourable to the defendant - misapprehension by the defendant - self-represented litigant - costs not assessed on indemnity basis

PRACTICE & PROCEDURE - leave to discontinue - plaintiff seeks leave to discontinue application to wind up in insolvency for failure to comply with creditor's statutory demand - factors to be considered when granting leave to discontinue - where there is no evidence of solvency of the defendant

CRIMINAL LAW - appeal from Local Court - whether Magistrate erred in law in holding that plaintiff was on inclosed lands - whether s 3(2) of the Inclosed Lands Protection Act 2011 applicable - where plaintiff was situated on a road - where authority barricaded road pursuant to s 115 of the Roads Act 1993 and erected fencing over nearby parkland - plaintiff was not located on a "road" for the purposes of s 3(2), the land not being a public thoroughfare at the time of the incident

COSTS - offer made before trial - offer not accepted - indemnity costs to run from day after offer served on defendant

[PROCEDURE] - civil - interlocutory issues - equity - fiduciary duties - breach - whether defendants have neglected and breached their fiduciary duties - whether defendants diverted aspects of the plaintiff's business opportunities.

PRACTICE AND PROCEDURE - leave to amend pleadings - futility or abuse of process - discretion

PRACTICE AND PROCEDURE - Judgments and orders - Uniform Civil Procedure Rules 2005 (NSW) r 36.17 - Slip rule - Whether error identified may properly be corrected under slip rule.

PRACTICE AND PROCEDURE - Sufficiency of discovery, discovery not relevant to any fact in issue, amendment of statement of claim, ss56-58 Civil Procedure Act 2005,

CIVIL - procedure - disqualification application - refused - application for trial by jury - previously heard and refused - application - application that summons be dismissed - application previously heard and refused - directions - direction under s 62(3) that submissions be in writing

ADMINISTRATIVE LAW - judicial review - claim for declaratory and injunctive relief - plaintiffs serving police officers - elaborate statutory scheme for consideration of promotion applications - scheme allows for final review of decision as to ranking on promotion list - review by Promotions Review Committee - ground for review confined to "ground that the person has been disadvantaged by a failure to comply with the procedural requirements at the previous stage of the review process" - whether implied incidental function of Commissioner's delegate to consider whether review application disclosed a permissible ground - whether implied or incidental gatekeeping or screening function open as a matter of construction - whether grant of relief futile if relevant error established - error demonstrated - no implied or incidental gatekeeping or screening function - grant of relief futile - patently clear that plaintiffs' grounds not within permitted statutory ground - relief refused

ADMINISTRATIVE LAW - proceedings by unrepresented plaintiff by way of appeal from interlocutory decision of Administrative Decisions Tribunal - no statutory right of appeal to Supreme Court - whether proceedings might be recast as application for prerogative relief - whether such proceedings are bound to fail

SERIOUS SEX OFFENDER - Application for extended supervision order - conditions - electronic monitoring

DEFAMATION - entitlement of non-trading corporation to maintain claim - shelf company sharing name of business conducted by another company within the same corporate group - other company not entitled to sue - publication plainly directed at the business of the other company DEFAMATION - identification - whether plaintiff named in matters complained of - whether particulars of identification required - whether particulars provided capable of sustaining claim

NEGLIGENCE - solicitor - preparation of lease - mistake in formula for rent calculation - restaurant on crown land administered by local council - destruction of building by fire - different premises rebuilt - tenant advantaged by paying lower rent as a result of mistake - whether agreement on rental would not have been reached having regard to stances in negotiation - significant loss demonstrated but not amenable to precision in calculation - informed estimation - rulings on isolated other heads of damage - reasonableness of plaintiffs incurring large costs in pursuit of rectification suit when was destined to fail - damages assessed

APPEAL - from Local Court - offence of assaulting officer in the execution of duty - meaning of "execution of duty" - protection of person from self-injury - reasonableness of police actions

CONVEYANCING - Conveyancing Act 1919, Section 66G(4) - "more beneficial" - not solely referable to comparative economic benefit CONVEYANCING - Conveyancing Act 1919, Section 66G(4) - exercise of discretion - planning issues capable of being resolved under process set out in Section 66G(5) do not prevent order under Section 66G(4) CONVEYANCING - Conveyancing Act 1919, Section 66F(3) - "equality money" - meaning and purpose - no application to facts CONVEYANCING - co-owners of property - "occupation fee" - meaning and purpose - only available where one co-owner is in sole occupation CONVEYANCING - Conveyancing Act 1919, Section 66G(3) - at least two individual trustees required for statutory trust for partition PRACTICE AND PROCEDURE - adoption of referee's report - approach to be determined according to nature and circumstances of the case - appropriate to correct clear mistakes - whether evidence before referee supported finding made COSTS - Civil Procedure Act, 2005, Section 98(4) - appropriate case for making gross and fixed sum costs order - factors relevant

CONTRACT - where plaintiff has failed to prove terms of contract - where plaintiff has not pleaded any breach - contractual claim must fail. ESTOPPEL - proprietary estoppel by encouragement - where plaintiff does not plead essential elements of estoppel - where plaintiff has not identified assumption upon which she relied and detriment suffered because of this reliance - estoppel claim fails. TRUSTS - remedial constructive trust - principle in Baumgartner v Baumgartner - failure to prove defendants retained any benefit from contributions made by plaintiff - no constructive trust.

CRIMINAL LAW - appeal and new trial - appeal against sentence - mental condition of offender and general deterrence - whether accumulation of sentence resulted in a total term that was unreasonable

CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - parity between co-offenders - difference in sentences insignificant

CRIMINAL LAW - Appeal against conviction - Sexual assault, aggravated sexual assault and aggravated indecent assault - Challenge to jury verdicts - Whether verdicts unreasonable and not supported by evidence - Whether on whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that accused was guilty - Court undertakes independent assessment of evidence. CRIMINAL LAW - Appeal against conviction - Sexual assault, aggravated sexual assault and aggravated indecent assault - Context evidence - Correctness of directions - Risk that jury might use as propensity evidence - Separate consideration of counts - Whether directions adequate - Whether conviction dangerous - Significance of complainant's evidence as to dates - Whether new trial appropriate. EVIDENCE - Application to adduce new evidence - Principles governing the admissibility of new evidence - New evidence sought to be adduced not of such cogency as to cause the court to entertain a reasonable doubt as to appellant's guilt - Application dismissed.

CRIME - appeal against conviction - obtain money by deception - obtain money by false or misleading statements - whether charges on indictment consistent with offence in respect of which appellant surrendered for extradition - whether trial judge should have directed acquittal - whether miscarriage of justice - whether trial judge failed to direct jury on limb of indictment - whether jury verdicts unreasonable, unsafe or unsatisfactory - whether tendency direction should have been given - s 97(1) Evidence Act - appeal against sentence - whether non-parole period uncertain - whether failure to consider special circumstances - whether allowance for rehabilitation - whether manifestly excessive - totality principle.

CRIMINAL LAW - appeal - sentence - causing grievous bodily harm with intent to cause grievous bodily harm - plea of guilty - juvenile offender - unprovoked attack upon innocent stranger - victim punched repeatedly to the face - prone victim then kicked and stomped on the head - victim sustains traumatic brain injury - permanent cognitive impairment - applicant had no prior criminal history - troubled and dysfunctional background - head sentence of seven years with three year non-parole period - whether head sentence manifestly excessive - objective gravity of offence - relevance of youth, rehabilitation, specific and general deterrence - head sentence not manifestly excessive - appeal dismissed

ADMINISTRATIVE LAW - judicial review - jurisdictional error - review of dismissal of appeal against conviction for making false statement to obtain financial advantage - applicant sought to simultaneously submit question of law to Court of Criminal Appeal - whether concept of jurisdictional error wider than error of law - whether alternative relief available - whether relief should be refused on discretionary grounds - Crimes Act 1900 (NSW), s 178BB; Criminal Appeal Act 1912 (NSW), s 5B; Supreme Court Act 1970 (NSW), s 69; District Court Act 1973 (NSW), s 176 ADMINISTRATIVE LAW - judicial review - jurisdictional error - review of refusal of primary judge to submit question of law to Court of Criminal Appeal - whether question formulated was question of law - whether jurisdictional error - Criminal Appeal Act 1912 (NSW), s 5B; Supreme Court Act 1970 (NSW), s 69; District Court Act 1973 (NSW), s 176 CRIMINAL LAW - appeal - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether question formulated was question of law - whether abuse of process to pursue relief pursuant to s 5B and judicial review simultaneously - whether duty of primary judge to submit a question arose - whether delay in formulating question warranted CRIMINAL LAW - making false statement to obtain financial advantage - whether obtaining a loan on ordinary commercial terms is a financial advantage - whether disadvantage must be suffered by owner of property or lender - whether dishonest intent required - Crimes Act 1900 (NSW), s 178BB WORDS AND PHRASES - "question of law" - Criminal Appeal Act 1912 (NSW), s 5B

REAL PROPERTY - Torrens system - easements -- easement created when both dominant and servient tenements held under Old System title - all land later converted to Torrens title and subdivided - current folio relating to servient tenement issued in 2008 - folio notes as an affecting encumbrance or interest "Easement affecting the land shown so burdened in Vol 6451 Fol 53" - that immediately preceding folio contains a short description of the easement but does not identify any dominant tenement - general description of benefited land available from an earlier folio identified in the immediately preceding folio - whether easement "recorded in" the current folio - whether easement "omitted" - WORDS AND PHRASES - "recorded in"

ADMINISTRATIVE LAW - judicial review - jurisdictional error - whether incorrectly deciding Transport Appeal Board empowered to extend time limit for appeal involved jurisdictional error ADMINISTRATIVE LAW - jurisdiction - preconditions for the exercise of jurisdiction - whether compliance with time limit a jurisdictional fact PROCEDURE - documents or pleadings - notice of appeal - timing - whether notice of appeal received outside statutory time limit "lodged" within time STATUTORY INTERPRETATION - principles - words to be given ordinary and grammatical meaning having regard to context and legislative purpose - whether Full Bench erred in imputing policy to legislature STATUTORY INTERPRETATION - Transport Appeal Boards Act 1920 s 13 - whether compliance with time limit a pre-condition to valid appeal STATUTORY INTERPRETATION - words and phrases - "lodged"

PROCEDURE - contempt, attachment and sequestration - breach of interlocutory injunction - appropriate order - order for payment of indemnity costs forthwith

Joint venture - disqualification - final form of orders - no question of principle.