Cases and authorities

Trade and commerce - Trade practices - Misleading or deceptive conduct - Representations - Setting aside of consent order discontinuing proceedings - Damages for loss of opportunity to prosecute discontinued proceedings - Likelihood of success of discontinued proceedings - Fiduciary duties - Whether necessary to demonstrate ability to pursue opportunity appropriated by errant fiduciary - Laches - Entitlement to rescission - Necessity of knowledge of legal right to rescind - Affirmation - Restitutio in integrum - Intervention third party rights - Agency

INSURANCE - double insurance - contribution - whether sufficient to only show reasonable compromise - whether common insured an "owner" of vehicle - whether "injury" established - whether compromise reasonable so as to entitle Plaintiff to contribution - recoupment.

LIMITATION OF ACTIONS - application for extension of time under Limitations of Actions Act 1958 (Vic) - whether plaintiff able to rely upon s27J of the Act - if not whether plaintiff entitled to discretionary extension of time under s27K and 27L of the Act - reasons for delay on part of plaintiff- extent of prejudice to defendant - absence of actual prejudice - time within which cause of action was discoverable - requirement that extension of time be "just and reasonable" - whether deliberate decision by plaintiff to let limitation period expire - effect of possible availability of cause of action against previous solicitors - delay in advising defendant of possibility of bringing proceedings against it - extension of time granted.

CRIMINAL - Appeal - sentence - driving in a manner dangerous causing death - s 52A(1)(c) Crimes Act 1900 (NSW) - whether primary judge erred in regarding death as an aggravating feature.

CRIMINAL LAW - Sentence appeal - unauthorised possession of a prohibited firearm - whether sentence was manifestly excessive - parity - whether there is a justified sense of grievance arising out of sentence imposed on another offender in relation to same firearm - differences in nature of the offences and personal circumstances

CRIMINAL LAW - appeal against sentence - cultivate commercial quantity of cannabis - parity principle - different roles of co-offenders - where sentence of co-offenders inadequate - whether sentence manifestly excessive.

PROCEDURE - summary disposal - claims struck out because no reasonable cause of action shown - nature of test to be applied - relevance of "just, quick and cheap" provisions of Civil Procedure Act 2005 - whether claims should be allowed to proceed to trial - EMPLOYMENT LAW - the contract of service - whether term of mutual trust and confidence arguably implied by law - where employment heavily regulated by statute - whether implication of term inconsistent with statutory scheme - CONTRACTS - claim by employee for damages for breach by employer of implied term of mutual trust and confidence - employee dismissed - whether arguable claim - DAMAGES - damages claimed by dismissed employee for loss of future earnings and earning capacity - whether such damages precluded by Addis v Gramophone Co Ltd [1909] AC 488 - TORTS - negligence - whether duty of care arguably owed by employer to employee in relation to dismissal from employment

EQUITY - fiduciary duty - accountant - whether fiduciary obligations owed - breach - whether loss suffered TRADE AND COMMERCE - misleading and deceptive conduct - ss 51A, 52 Trade Practices Act 1974 - ss 41, 42 Fair Trading Act 1987 - representations as to future matters - whether reasonable grounds for making representations - whether loss suffered in reliance COSTS - Sanderson order - principles and application

RESTITUTION - appellant paid moneys to respondent - claim to recover as paid under a mistake of fact or for total failure of consideration-alleged paid under an agreement for transfer by respondent of an interest in a restaurant business - agreement alleged to have been made by agent - agency and agreement denied - respondent used moneys to discharge liabilities - whether unjust for respondent to retain payment

PROFESSIONS AND TRADES - health care professionals - medical practitioners - disciplinary proceedings - professional misconduct - failure by practitioner to maintain approved professional indemnity insurance - finding by Medical Tribunal of professional misconduct - suspension from practice - finding of professional misconduct not challenged on appeal - practitioner seeks reduced suspension or fine - practitioner draws comparison with another case said to be similar and submits that that case indicates need to mitigate order of Medical Tribunal - observations on very limited value of comparison with other cases when formulating protective orders - relevance of lack of dishonesty - relevance of passage of time since events in question

PRACTICE AND PROCEDURE - interlocutory issues - injunctions - application to restrain defendant from acting on purported termination of agreement - no serious question to be tried that defendant not entitled to give notice of termination under agreement between parties - interlocutory injunction to restrain plaintiff from holding out she has a current agreement with defendant and using defendant's intellectual property

BAIL - importation and sale of 150 Glock pistols - charges under (inter alia) ss.51B and 51D Firearms Act 1996 - presumption against bail under s.8B Bail Act 1978 - bail refused

CORPORATIONS - Winding up - Application for order to terminate members' voluntary winding up

Costs of the proceedings - Defendant seeks costs, calculated on the ordinary basis; or, in the alternative, an order that the Plaintiff should pay 90 per cent of those costs - Plaintiff seeks an order that there be no order as to costs

PROCEDURE - judgment and orders - final orders - whether Council should be restrained from considering the report, given the order that the report be quashed - restraining order made PROCEDURE - costs - general rule costs follow the event - Sanderson type order sought - no departure from usual rule - defendant sought costs orders in relation to contempt motions and suppression motion - no departure from usual costs order in relation to contempt motions - plaintiff to bear costs of suppression order

PRACTICE AND PROCEDURE - judgments and orders - consequential orders - no issue of principle

COSTS- damages claim- central issue validity of covenant in restraint of trade- appellant succeeds on that issue but fails generally- insufficient grounds to prevent usual order that appellant pay total costs- indemnity costs ordered below- appellant unsuccessful in appeal- order not disturbed. DECLARATION- whether appropriate to make a declaration as to the validity of covenant- declaration is within court's discretion but generally should not be granted if it serves no useful purpose- not ordinarily appropriate to make declarations as to "intermediate conclusions" of a court leading to a final order- declaration not granted.

CRIMINAL LAW - procedure - verdict - Prasad direction - whether circumstances appropriate to give such direction

EQUITY - injunctions - auxiliary jurisdiction - to restrain party assisting in breach of contract - settlement of proceedings by confidential deed - breach by one party to deed - intention of television station to broadcast material in breach of deed - whether broadcast would amount to further breach - whether serious question to be tried.

CONTRACT - agreement for sale of fixtures - breach of warranty of ownership - assessment of damages - no questions of principle

COSTS - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether "an appeal" within the meaning of Criminal Appeal Act 1912 (NSW), s 17 - whether costs can be ordered CRIMINAL LAW - appeal - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether appropriate for trial judge to identify findings of fact other than those identified in the judgment - whether extension of time to submit stated case should be granted CRIMINAL LAW - appeal - sentencing - application pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 - whether failure to consider facts relied upon by applicant or other relevant matters amounted to an error of law - whether failure to make factual findings and consider submissions amounted to an error of law - whether failure to consider mitigating factors specified in Crimes (Sentencing Procedure) Act, s 21A amounted to an error of law - whether s 10 is available to a person charged with a strict liability offence CRIMINAL LAW - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - trial judge in declined to proceed with matter under Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 - whether issue not proffered for determination by the District Court can form the basis of a stated case - whether question of law arises

DAMAGES - contract - negligent breach of contract - failure to exercise due care and skill - whether Civil Liability Act 2002 (NSW), Pt 1A applies - whether analysis under Civil Liability Act 2002 (NSW), s 5D incorporates policy questions - whether loss was reasonably within the contemplation of the parties as the probable result of the contract DAMAGES - tort - negligence - failure to exercise due care and skill - whether Civil Liability Act 2002 (NSW), Pt 1A applies - whether analysis under Civil Liability Act, s 5D incorporates policy questions - whether loss was reasonably foreseeable - whether differing outcomes in tort and contract justified DAMAGES - misleading and deceptive conduct - whether Civil Liability Act 2002 (NSW), Pt 1A applies to claim under Fair Trading Act 1987 (NSW), s 42 - whether elements of cause of action for misleading and deceptive conduct include negligence - whether position differs under Trade Practices Act 1974 (Cth), s 52 - whether losses resulting from representations that involved same consequences as simultaneous claims in tort and contract are recoverable

ORDERS - interest - no question of principle

APPEAL - civil - where matter in issue amounting to $100,000 or less - appeal from District Court judgment for $59,562 in dispute over early termination of licence - no reasonable prospects of success in overturning finding of primary judge - arguable alternative case on appeal - would require retrial - expense of retrial and continuing litigation not commensurate with amount in dispute - application for leave to appeal dismissed

LAWYERS - negligence - advocates' immunity - allegations of negligent conduct of District Court proceedings - loss of compensation and opportunities - basis for immunity in finality of judicial determination - discussion of D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 - whether loss of opportunity to respond to the possibility of an offer of settlement falls outside the scope of the immunity PROCEDURE - civil - pleadings - application to dismiss the proceedings generally - whether no reasonable cause of action is disclosed - whether there is a real question to be tried - interaction of requirement that court facilitate the just, quick and cheap resolution of the real issues with the approach in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, 112 CLR 125 - whether requirement limits the circumstances in which the court might be inclined to refuse relief on discretionary grounds - Civil Procedure Act 2005 (NSW), s 56; Uniform Civil Procedure Rules 2005 (NSW), r 13.4

APPEAL - civil - where matter in issue amounting to $100,000 or less - amount in issue, excluding costs, approximately $17,000 - arguable case for appeal against primary judge's conclusions of law - leave to appeal not ordinarily granted merely for arguable case - no question of principle

PROCEDURE - Costs - successful defendants - plaintiffs companies of straw - sole shareholder funded proceedings and paid security for costs - whether sole shareholder should pay defendants' costs on the indemnity basis

CONTRACT - existence of contract - whether plaintiff has failed to prove the agreement upon which it sues. LIMITATION OF ACTIONS - whether there has been a confirmation for the purposes of s 54 of the Limitation Act 1969 - whether there has been a relevant acknowledgement - whether alleged acknowledgment has been signed - where no signature in the ordinary sense of the word.

PRACTICE AND PROCEDURE - Repetitious applications - Alleged abuse of process.

TORTS - Appeal - negligence - common law duty of care - s 33 Companion Animals Act 1998 (NSW) - whether local council owed a duty to residents to declare a dog "dangerous" - Stuart v Kirkland-Veenstra - whether a special statutory power - relationship between council and residents created by special statutory power - degree of control exercised by council - vulnerability of those who depend on proper exercise of statutory power. TORTS - Appeal - negligence - breach of duty - whether hunting dogs inherently "dangerous" for the purposes of s 33 Companion Animals Act 1998 - whether hunting dogs had previously attacked "without provocation" - s 43A Civil Liability Act 2002 - exercise of "special statutory power" - whether dogs had "repeatedly" threatened to attack or "repeatedly" chased people - Wednesbury unreasonableness standard - whether council's failure to declare dog(s) dangerous so unreasonable no authority possessed of special statutory power could properly consider omission to be reasonable - s 44 Civil Liability Act 2002. DAMAGES - Appeal - s 15 Civil Liability Act 2002 - meaning of "dependents" - s 15B(2)(a) Civil Liability Act 2002 - whether services needed to be provided to a class of dependents to claim gratuitous domestic services.

CORPORATIONS - Corporations Act 2001 (Cth) - application to terminate winding up proceedings pursuant to s 482(1) of the Corporations Act 2001 (Cth) - no response from ASIC at the time of the application - certain creditors to be paid - winding up stayed

Common law - Evidence on commission - application of secrecy provision

Criminal assets recovery - whether relevant suspicion based on reasonable grounds - whether interest in property is "serious crime derived property" - whether such interest has ceased to become "serious crime derived property"

REAL PROPERTY - Claim for possession of land - Mortgage default - Order for possession made - Judgment against mortgagor and guarantor - No issue of principle

CRIMINAL LAW - appeal against sentence - importing marketable quantity of heroin - Nigerian national - whether sentence manifestly excessive - whether proper consideration given to duress and hardship.

APPEAL - leave to appeal - no question of principle and no issue of general public importance - small amounts involved - leave refused

CIVIL PROCEDURE - pleadings - whether State permitted to raise limitation defence - Limitation Act 1969, ss 50C and 50D LIMITATION OF ACTIONS - negligence - date on which cause of action "discoverable by plaintiff" - whether plaintiff aware that injury "caused by fault of the defendant" - meaning of "fault" - whether Baker-Morrison v State of New South Wales correctly interpreted the meaning of "fault" for the purposes of the Limitation Act 1969, s 50D(1)(b) - cause of action not discoverable until plaintiff received advice that defendant legally liable for injury STATUTORY INTERPRETATION - Limitation Act 1969, s 50D - "fault"

TORTS - NEGLIGENCE - medical practitioner - duty to warn patient of material risks inherent in proposed surgery - multiple material risks - whether warning was required TORTS - NEGLIGENCE - medical practitioner - causation - whether failure to warn of material risk that did not eventuate causally connected to injury - Civil Liability Act 2002, s 5D

PRACTICE AND PROCEDURE - summary judgment - vicarious liability - principle in Wickstead v Browne - preliminary question - separate hearing on liability.

CRIMINAL LAW - Murder - Mental Illness

GUARANTEE AND INDEMNITY - action against surety - specific performance of contract of guarantee - bankrupt surety - specific performance available if bankruptcy commenced after contract has been entered into and guarantee has been called on

PROCEDURE - Striking out Portions of Pleadings - agreement for sale of shares - upfront payment and "earn out" based on how well business performed after sale - high and low limits for adjusted sale price - whether implied term that business would not be operated to achieve low adjusted sale price

Detailed rulings as to specific applications to tender documents.

PUBLIC INTEREST IMMUNITY - s 130(1) Evidence Act - Balancing test - Police Guidelines for Negotiation - Negotiation Incident Form

PRACTICE AND PROCEDURE - judgments and orders - stay of execution pending leave to appeal - consideration of strength of application for leave to appeal -- no ground established for obtaining leave - no demonstration of hardship suffered through execution of judgment APPEAL - civil - leave to appeal from decision of Local Court - leave required -summons alleged error of fact not question of mixed law and fact - nothing in application to show magistrate erred in final decision - whether leave to appeal within overriding purpose of facilitating just, quick and cheap resolution of issues - inappropriate to remit matter back for further hearing having regard to amount at stake.

PRACTICE AND PROCEDURE -summary judgment - whether any arguable defence

DEFAMATION - strike out application - whether matter complained of capable of conveying imputations pleaded by plaintiff - local council meeting - bane and antidote

CRIMINAL LAW - Murder - Conspiracy to murder