Cases and authorities

COSTS - Security for costs - factors to be considered in exercising the discretion - where plaintiff is resident outside the jurisdiction - whether plaintiff suing for his or her own interests - distinction between commercial litigation funder and third party funding litigation to put plaintiff in a position to meet a debt to it EVIDENCE - witnesses who are not compellable - taking evidence on commission

CORPORATIONS - external administration - approval of liquidator compromising a debt - Corporations Act, s 477(2A), s 477(2B) - application opposed by sole creditor - nature of opposition to compromise - whether in all the circumstances the compromise of the debt is a reasonable step to take - commercial merits or compromise generally a matter for the liquidator - factors in favour of approval - factors against approval - interests of creditors a guiding light

REAL PROPERTY - Easements - costs - Conveyancing Act 1919 s 88K (5)

CRMINAL LAW - sentence - conviction by jury - affray - maliciously damage property by fire - juvenile offender - dealt with according to law - discharge of loaded firearms as a feature of the affray - objectively a particularly serious example of affray - whether a victim impact statement should be received by the Court

CRIMINAL LAW - sentence - affray - juvenile offenders - dealt with according to law - discharge of loaded firearms as a feature of the affray - objectively a particularly serious example of affray - whether a victim impact statement should be received by the Court

CRIMINAL LAW - sentence - conviction by jury - manslaughter - affray - each offence considered high

CRIMINAL LAW - sentencing - excessive self defence manslaughter

COSTS - General rule - No hearing on the merits - Application resolved by consent orders where issues agreed were substantially different from application in original form - Whether Plaintiff has substantially abandoned a claim in the form originally sought in proceedings which would not have been granted.

PROCEDURE - notice of motions - orders seeking dismissal of proceedings or in the alternative striking out the statement of claim - order seeking default judgment against defendant - defendant former solicitor for the plaintiffs - whether plaintiff failed to commence proceedings on time - consideration of s 14(1), s 55 and s 63 of the Limitation Act 1969 - plaintiff to be given an opportunity to replead - motions dismissed - orders made - costs

EVIDENCE - client legal privilege - waiver of privilege - where service of expert's report refers to report of another expert whose report is not served - whether privilege waived by the plaintiff - privilege not waived

WILLS, PROBATE AND ADMINISTRATION - statutory will - application for making of statutory will - application for order for alteration of will by beneficiary - where testator now lacks testamentary capacity - application to alter beneficiaries to prevent plaintiff from acquiring assets that would be available to satisfy judgment debt if unsuccessful in defending Federal Court proceedings against him - court to be satisfied of certain matters before making order - whether alteration reasonably likely to have been made by testator if he had testamentary capacity - additional requirement for order to be appropriate - consideration of policy of law - held not appropriate for court to authorise alteration of will in order to defeat creditors - Succession Act 2006 (NSW) s 22 PRACTICE AND PROCEDURE - procedural fairness - where application for statutory will - application for alteration of will where testator now lacks testamentary capacity - statutory requirement that adequate steps taken to allow representation of all persons with legitimate interest in the application - whether order would adversely affect interests of third party - Succession Act 2006 (NSW) s 18(e)

CRIMINAL LAW - appeal against sentence - knowingly take part in the manufacture of a large commercial quantity of ecstasy (MDMA) - discount applicable to sentence - whether the trial judge erred in the approach to the applicant's mental disorder - whether the trial judge erred in the approach to the applicant's assistance

Criminal Law - appeal - sentencing - aggravated break enter and steal - whether extension of time to appeal should be granted - parity - whether sentence manifestly excessive - no likelihood of appeal succeeding - extension of time refused.

CRIMINAL LAW - appeal against conviction - sexual intercourse without consent -whether unreasonable verdict - whether trial miscarried by denial of procedural fairness

CONSTITUTIONAL LAW - issue of notices of a constitutional matter - whether Court satisfied that there is a real and substantial constitutional issue - whether Court has an obligation to consider whether notices should be issued - whether intention to raise constitutional issue held in good faith - whether arguable constitutional point could be raised - Judiciary Act 1903 (Cth), s 78B CRIMINAL LAW - appeal - appeal from interlocutory judgment - leave to appeal - whether paucity of judicial consideration of provision warrants grant of leave - whether proposed appeal raises important questions warranting grant of leave - Criminal Appeal Act 1912 (NSW), s 5F(3AA) and (3AB) CRIMINAL LAW - procedure - issue of subpoena - power of District Court to issue subpoena - provision under which subpoena issued - whether general grant of criminal jurisdiction confers powers necessary or appropriate to the exercise of criminal jurisdiction - Criminal Procedure Act 1986 (NSW), Ch 4, Pt 3; District Court Act 1973 (NSW), s 166; District Court Rules 1973, Pt 53, Div 2 CRIMINAL LAW - procedure - jurisdiction of District Court - whether Court has jurisdiction in respect of criminal proceedings between indictment and arraignment - whether construction consistent with structure of statute and powers of Court - whether Court has power to issue subpoena between indictment and arraignment - Criminal Procedure Act 1986 (NSW), ss 17, 20-21, 122, 127, 129-132; District Court Rules 1973, Pt 53, r 10D CRIMINAL LAW - procedure - sexual assault communications privilege - subpoena in respect of protected confidence issued without leave of court or notice to confider - whether non-compliance with statutory requirements leads to invalidity - whether production of documents invalid - Criminal Procedure Act 1986 (NSW), ss 295-306 STATUTORY INTERPRETATION - Criminal Procedure Act 1986 (NSW), ss 295-306 - requirement of leave and notice prior to issue of subpoena - whether failure to obtain leave and give notice leads to invalidity STATUTORY INTERPRETATION - Criminal Procedure Act 1986 (NSW), s 130 - whether s 130 a complete statement of jurisdiction of District Court with respect to indictable proceedings - need to consider structure of statute and context of powers conferred on Court

CRIMINAL LAW - sentence appeal - sexual intercourse without consent - no failure to identify and assess objective seriousness - no failure to identify and assess subjective features - whether intoxication relevant to sentence - sentence not manifestly excessive

MOTOR ACCIDENTS - collision at intersection - plaintiff's vision obscured by the sun - defendant found to be liable but plaintiff contributorily negligent - whether findings were erroneous - whether finding that plaintiff's responsibility was 55 per cent was erroneous - whether damages in respect of loss of earning capacity and attendant care services correctly assessed.

CORPORATIONS - creditor's statutory demand - application to set aside - Corporations Act s 459G - whether genuine offsetting claim exists - whether sufficient evidence adduced to allow the court to be satisfied as to the amount of the claim

CONTRACT - employment - restraint of trade - "directly or indirectly" - providing services through newly established company - company is "one-man band" with short history - overall context and evident purpose and object of "trade in competition" - phrase "indirectly" covers circumstances of defendant's close connection with new company CONTRACT - employment - restraint of trade - legitimate interest - protection of confidential information - severance of connection between defendant and clients of plaintiff CONFLICT OF LAWS - proper law of contract - closest and most real connection - place of formation of contract only one factor determining applicable system of law - location of head office of employer influential STATUTORY INTERPRETATION - Competition and Consumer Act 2010 (Cth) - cartel provisions and restraints of trade - s 51(2)(b) exception - evident purpose to protect restraints on trade in employment contracts

[LANDLORD AND TENANT] - retail and commercial tenancies - breach of lease - whether defendant breached various provisions of the lease - whether plaintiff validly terminated the lease.

FAMILY PROVISION - Succession Act 2006 - application for the setting aside of a family provision order in favour of a son of the deceased under UCPR 36.16(3A) - claim by defendant for orders enforcing the Court's order for vacation of the estate property

EQUITY - equitable remedies - trusts and trustees - plaintiff R.S.L. Club claims to have funded the acquisition of three properties adjacent to Club premises - the three properties purchased in the names of trustees of the local Sub-Branch of the NSW R.S.L. - whether the three properties are held by the trustees on resulting, express or constructive trust for the plaintiff Club - whether plaintiff entitled to relief under Real Property Act, s 45D or in promissory estoppel in respect of the three properties.

[INDEMNITY] - [LIQUIDATORS] - "general rule" in relation to indemnity for liquidators' costs in defending removal proceedings - whether conduct in defending proceedings for removal a basis for denial of indemnification for costs of the litigation.

CRIMINAL LAW - sentence - manslaughter - early guilty plea - multiple stab wounds - mutilation - depressive illness - aggravating matters - mitigating matters - remorse - 25% utilitarian discount - special circumstances

CORPORATIONS - Winding up - Corporations Act 2001 (Cth) ss 479(3) and 511 - Application for directions in relation to matters arising under winding up - Pooling - Whether liquidators can pool all or some of client segregated accounts - Foreign currency - Whether foreign currency should be converted to Australian dollars for pooling - Entitlement - Basis for client entitlement to be paid money from client segregated accounts - Recovered funds - Where recovered funds should be deposited.

JUDICIAL REVIEW - Local Court appeal - contracts - construction of Real Estate Institute of NSW's standard agency agreement - whether agreement provides for payment of multiple commissions in relation to the sale of a single property -no finding made that agent "effectively introduced" vendor and purchaser - whether defendant required to file cross appeal or any notice of contention - Anshun estoppel - costs.

PRACTICE AND PROCEDURE - subpoena to non party - claim for legal professional privilege and common interest privilege - onus of establishing matters relevant to either claim - whether either claim made out

PROCEDURE - courts and judges generally - disqualification - bias - apprehended bias

Subpoena service outside Australia - Whether power to grant leave - If so, whether, as a matter of discretion, power should be exercised

WORKERS COMPENSATION - Workers Compensation Commission - Arbitrator's decision - appeal to Presidential Member - error of law - whether no evidence to support finding that respondent injured while working for appellant - whether arbitrator answered wrong question in situation where possibility injury occurred at two workplaces WORKERS COMPENSATION - procedure - s 354 Workplace Injury Management and Workers Compensation Act 1998 - procedures before Commission not governed by rules of evidence - arbitrator required to draw conclusions from material that is satisfactory in probative sense - where respondent's credit impugned - whether arbitrator entitled to rely on expert reports where medical history respondent gave experts differed from evidence accepted by arbitrator WORKERS COMPENSATION - procedure - procedures before Commission not governed by rules of evidence - Workers Compensation Commission Rules -evidence required to be logical and probative, relevant to facts in issue and issues in dispute, not based on speculation or unsubstantiated assumptions, not in form of unqualified opinions - not a reintroduction of rules of evidence STATUTORY INTERPRETATION - s 354 Workplace Injury Management and Workers Compensation Act 1998 - procedures before Commission not governed by rules of evidence - Workers Compensation Commission Rules - evidence required to be logical and probative, relevant to facts in issue and issues in dispute, not based on speculation or unsubstantiated assumptions, not in form of unqualified opinions - rules not to be construed in manner inconsistent with statute

LIMITATIONS - Limitation Act 1969 ss 58, 60G - applicant seeks extensions of time to bring proceedings against general practitioners and radiologist - whether primary judge erred in refusing to grant extensions sought - whether "just and reasonable" to grant extensions - whether primary judge entitled to take into account that damages likely to be minimal against one practitioner - whether general practitioners would be prejudiced in defending proceedings by absence of clinical notes and inability to recall consultations - whether radiologist would be prejudiced by absence of x-ray request form

TAXES AND DUTIES - Payroll Tax - plaintiff sells snacks through vending machines - engages independent contractors to store, transport and restock, remove goods past use by date, collect money and deliver to cash handling companies - whether amounts paid to contractors exempt from tax under the Payroll Tax Act 2007, s 32(2)(d)(i) and Pay-roll Tax Act 1971, s 3A(1A)(a) because plaintiff is supplied with services ancillary to the conveyance of goods by means of a vehicle provided by the person carrying them

CRIMINAL LAW - appeals against conviction and sentence - offence of aggravated people smuggling (at least five persons) - elements of offence - whether trial judge erred in directing jury that prosecution need not prove that appellants knew intended destination was part of Australia - whether miscarriage of justice - whether order for re-trial appropriate - Migration Act 1958 (Cth) ss 232A, 233C

CRIMINAL LAW - appeal - sentence - disparity in non-parole period between co-offenders - no question of principle

PROCEDURE - Court of Appeal - care proceedings in respect of child - orders made by President of Children's Court and in Equity Division of the Supreme Court - purported appeals against such orders - whether leave to appeal needed re Supreme Court orders - whether appeal against order made by President of Children's Court lies to Court of Appeal or Equity Division - all appeals struck out as incompetent

ADMINISTRATIVE LAW - failure to take into account relevant considerations - whether evidence of witness a mandatory consideration - whether failure to take into account evidence expressly addressed in judgment APPEAL - subject-matter limited to determination in point of law - passage in reasons indicating legal error - whether error material where assessment of loss accorded with principle POLICE - officer hurt on duty - psychological injury - certification of date of injury by Commissioner - whether pre-existing injury - whether causes of impairment properly apportioned WORDS & PHRASES - "in point of law" - District Court Act 1973 (NSW), s 142N WORKERS COMPENSATION - lump sum compensation for psychiatric injury - transitional provisions require reduction in compensation for events occurring before amendment - whether events occurring before amendment reduce whole person impairment - whether plaintiff suffered previous injury - Workers Compensation Act 1987 (NSW), Sch 6, Pt 18C, cl 3(1); Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323

CRIMINAL LAW - murder, robbery in company - fitness of accused to be tried - no question of principle

CORPORATIONS - creditor's statutory demand - whether application made out of time

CORPORATIONS - securities - insider trading investigation - travel restrictions submitted to by first defendant - undertaking given to court by fifth defendant to surrender passport in support of application of first defendant to travel to China - first defendant has not returned from China - fifth defendant seeks to be released from undertaking - nature of undertakings to court - whether utility in continuing undertaking

PRACTICE & PROCEDURE - evidence - leave to rely on expert evidence at late stage - factors considered

CONTRACT - Written agreement - Interpretation - Manner in which commercial contracts should be interpreted - Expert valuation clause - Whether valuation mechanism failed - Whether expert valuations binding on parties. CONTRACT - Damages - Quantification of damages - Mitigation of loss. PARTNERSHIP - Breach of partnership agreement - Conduct of partner of referring function inquiries to alternative business - Whether default. EQUITY - Fiduciary duties - Breach of duty - Obligations of partners in fiduciary relationship - No profit rule - No conflict rule - Scope of duties - Whether duties extended to function business of restaurant - Breach of no profit rule - Whether defences of informed consent, waiver or ratification established. EQUITY - Fiduciary duties - Knowing assistance. REMEDIES - Equitable compensation - Account of profits - Entitlement to election between remedies after judgment.

TORT - robbery at Post Office - post office employee arrested - whether wrongful arrest and false imprisonment - s 352(2) Crimes Act 1900 - whether arrest for the purpose of questioning wrongful - whether reasonable cause for suspicion that offence committed TORT - malicious prosecution - whether reasonable and probable cause - whether material warranted putting the processes of the criminal law in motion COURTS - disqualification of judges for apprehended bias - efforts of judge to clarify plaintiff's case and to ensure that experts addressed all relevant issues in the proceedings did not give rise to an apprehension of bias

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

LIMITATION OF ACTIONS - medical negligence - proceedings against general practitioner - extensions of time sought to join two specialists (the respondents) - failure to show viable causes of action and adequately explain delay - whether "just and reasonable" to extend time - whether applicant satisfied gateway provisions under Limitations Act 1969 (NSW) ss 60E(1) and 60I - no error by primary judge in refusing extensions

CORPORATIONS - Vesting of 'PPSA security interests' - Corporations Act 2001 (Cth) s 588FM - Application for extension of time for registration - Collateral not registered within 20 day period due to error of solicitor.

MORTGAGES - claim for possession of land, recovery of amount outstanding on loan - application by plaintiff for summary judgment for possession - no arguable defence on that issue

CORPORATIONS - Jurisdiction of court to grant leave to bring derivative proceedings under Corporations Act 2001 (Cth) s 237 nunc pro tunc - Whether absence of leave is a matter which goes to jurisdiction - Whether leave should be granted under Corporations Act 2001 (Cth) ss 236 and 237 - Satisfaction of court as to whether a serious question to be tried exists.

PRIVATE INTERNATIONAL LAW - stay of proceedings - foreign jurisdiction clause - incorporation to be determined by law of the forum - clause to be given wide and expansive interpretation - where exclusive jurisdiction clause incorporated - where no strong countervailing reasons established to preclude cross claimants from being held to their bargain - cross claim stayed permanently PRIVATE INTERNATIONAL LAW - stay of proceedings - whether clearly inappropriate forum - considerations

LIMITATION OF ACTIONS - personal injury claim - whether just and reasonable to extend limitation period - where presumptive prejudice largely ameliorated by availability of statements obtained during WorkCover investigation LIMITATION OF ACTIONS - recovery under s 601AG of the Corporations Act - where insurer substituted for deregistered insured as defendant in personal injury proceedings after expiration of second bar - whether jurisdiction to extend limitation period as against insurer WORKERS COMPENSATION - application for leave to bring proceedings for damages out of time - whether fair and just to grant leave - whether employer precluded from recovering contribution from other tortfeasors - whether prejudice arising due to claims by employer for indemnity under s 151Z(1)(d) being statute-barred