Cases and authorities

CRIMINAL LAW - procedure - application for separate trial - delay - bail conditions - estimated length of trial - nature of the Crown case - evidence to be tendered against each accused - no basis for separate trial made out - application dismissed

COSTS - principles - follow the event - two issues - plaintiffs unsuccessful on major issue and successful on minor issue - proportion determined on overall basis, taking account of subsequent proceeding involving only one plaintiff

PROCEDURE - civil - parties - joinder - defendant's application for joinder in possession proceedings REAL PROPERTY - Application by plaintiff pursuant to 74MA(2) of the Real Property Act 1900 that defendants withdraw a caveat

PROCEDURE - civil - pleadings - strike out application - defective pleadings - fail to clearly identify separate causes of action - fail to clearly identify damages or loss flowing from particular causes of action - fail to plead clearly facts amounting to cause of action

Common law - personal injury - liability - pesticide

Summons filed by two Plaintiffs, each of whom is a son of the deceased - the oldest son of the deceased and the executor named in the deceased's Will is Defendant - no provision made for each Plaintiff in Will of the deceased - real issue is nature and quantum of provision, if any, to be made for each Plaintiff - Small estate - Also proceedings commenced in the Common Law Division, in which possession of real estate owned by the deceased was sought - failure by Plaintiffs to comply with orders of the Court in those proceedings - Modest provision to be made for each Plaintiff

Two different proceedings, in which a claim for a family provision order under Chapter 3 of the NSW Succession Act 2006 by two adult daughters of deceased - Proceedings heard together, the evidence in one being evidence in the other - first Defendant is a child of the deceased, and sister of Plaintiffs, and second Defendant is a grandchild of the deceased and son of first Defendant - Whether gift of cash made by the deceased - Whether other property in the estate - whether designation of property as notional estate necessary

JUDGMENTS AND ORDERS - order made when delivering earlier reasons for judgment for parties to confer about orders appropriate to give effect to reasons for judgment, submit draft orders if agreement was possible and make submissions if agreement was not possible - orders not made where further order would allow party to re-open their case and put it on a wider basis - orders not made where further order is too imprecise APPEAL - practice and procedure - court grants leave for further submissions to be made after judgment delivered - submissions may only be made within scope of leave that has been granted CORPORATIONS - oppression - buyout remedy - valuation process - adjustment to market value for expenditure of company funds for litigation - appropriate adjustment is of an amount sufficient to ensure that the purchase price is not affected by the expenditure of the defence costs having occurred CORPORATIONS - Oppression - Buyout remedy - Valuation process - Costs and expenses of the subjects of the valuation - not appropriate for subjects of valuation to pay for valuation or provide cashflow to fund it - exceptions for costs incurred pursuant to specific court orders or directions CORPORATIONS - oppression - buyout remedy - valuation process - when court orders buyout at a valuation in oppression suit, valuation process is part of the working out of that order - liberty to apply concerning specific topics enables further orders to be made which are necessary for the purpose of implementing and giving effect to principal relief that has already been pronounced CORPORATIONS - oppression - buyout remedy - costs of valuation process for buyout - usual order for costs is that the "oppressor" is liable for costs of valuation process - existence of earlier reasonable offer to buy out the minority shareholding where offer became unavailable prior to the hearing is not relevant to the costs of the valuation process - that the conduct of the party suffering oppression has partly caused the situation amounting to oppression is not relevant to the costs of the valuation process JUDGMENTS AND ORDERS - interest on judgment sum - s 101(1) Civil Procedure Act 2005 - where judgment does not reserve the possibility of changing the running of interest from the date of a later judgment, not possible to subsequently order that interest cease to run on judgment sum COSTS - costs of appeal - where appeal successful but specific grounds of appeal abandoned or unsuccessful COSTS - costs of trial - hearing of separate proceedings where no order for consolidation made - whether Notice of Appeal filed for each proceeding - whether desirable to make overall costs order - UCPR 42.1 - costs follow the event - where successful party failed to make out several factual allegations - whether failed factual allegations were clearly dominant or separable

ADMINISTRATIVE LAW - statutory appeals from administrative bodies - Administrative Decisions Tribunal - Appeal Panel - whether Tribunal has jurisdiction to hear and determine application for review of Minister's decision - whether ongoing conduct constitutes a reviewable decision under the Administrative Decisions Tribunal Act 1997 - Appeal Panel erred in its construction of the Administrative Decisions Tribunal Act 1997, s 6(1)(g) - appeal allowed - orders of Appeal Panel set aside APPEALS - no ongoing dispute between parties - appeal moot - circumstances in which the Court will hear an appeal where there is no ongoing dispute

PROCEDURE - civil - entry of judgments and orders - entry occurs when judgment or orders recorded in court's computerised record system - recording of orders requires orders to be set out - no orders entered in circumstances where it was only recorded that orders existed - Uniform Civil Procedure Rules 2005 (NSW), Pt 36, r 36.11 considered. PROCEDURE - civil - consent orders - construction of terms of settlement - power of court to determine questions about compromises and settlements - appropriate to remit matter to District Court to construe terms of settlement and make orders disposing of proceedings - Civil Procedure Act 2005 (NSW), s 73 considered.

CRIMINAL LAW - evidence - judicial discretion to limit use of evidence - flight from scene - consciousness of guilt - no prejudice

CRIMINAL LAW - general matters - ancillary liability - complicity - extended joint criminal enterprise - murder - agreement to assault rivals - weapon used by principal to kill - whether contemplation that a participant might use a weapon is an necessary element of the offence when agreement is to assault

CORPORATIONS - transfer - application for order transferring proceedings to Supreme Court of South Australia - whether having regard to the dictates of justice the proceeding should proceed in this court of be transferred

CROSS-EXAMINATION- Fairness and openness in the conduct of litigation- Section 136 Evidence Act

LEGAL AID - referral for pro bono representation - matters to be considered - Applicant engaged in admitted wrongdoing that resulted in proceedings being brought - limited pro bono resources - application refused.

CONTRACT - whether binding oral agreement for loan established - turns on facts - no question of general principle

TRADE AND COMMERCE - restraints of trade - buy out of one partner in business - restraint on departing partner - whether restraint reasonable in time - appropriate test to be applied - restraint not more than was reasonable for protection of the business.

CRIMINAL LAW – appeal against sentence - whether sentence manifestly excessive – whether inadequate level of concurrence of a drug offence and a firearms offence having regard to principles of totality – appeal allowed in part

CRIMINAL LAW - application for leave to appeal against severity of sentence - offences of armed robbery and maliciously inflicting grievous bodily harm - relevance of motorbike accident leading to drug addiction in assessing offender's culpability for the offences - parity - extra-curial punishment - relevance of reduced civil claim for future loss of earnings due to prison sentence - whether degree of accumulation between individually appropriate sentences resulted in an excessive aggregate sentence

CRIMINAL LAW - appeal against conviction - whether verdicts are unreasonable and cannot be supported by the evidence - whether verdicts are inconsistent with no logical and reasonable basis for the inconsistency - whether verdicts demonstrate compromise - Criminal Appeal Act 1912 s 6(1)

PROCEDURE - civil - leave sought to appeal from the refusal to set aside notice to produce - request for disclosure of personal financial situation in order to pursue stay pending provision of security for costs - substantive issue not addressed by the Court below - leave refused

APPEAL - civil - notice of appeal - leave required to appeal from a decision with respect to costs only - costs dependent upon challenge to substantive judgment - leave to pursue an independent challenge refused

APPEAL - civil - notice of appeal - extension of time to apply for leave to appeal - proceedings brought in behalf of another - other courses open at the date of the challenged judgment to proceed in an alternative way - no clear issue as to law established - not appropriate for a grant of an extension of time - appeal dismissed as incompetent

PROCEDURE - civil - application for adjournment - request for multiple related matters to be heard together - objection by State as to the competency of the appeals and related leave applications to be heard together - no grounds for adjournment

ADMINISTRATIVE LAW - judicial review - challenge to decisions at two levels - existence of statutory appeal - following an appeal availability of judicial review proceedings in respect of the original decision - application of statutory scheme for appeals ADMINISTRATIVE LAW - judicial review - whether Appeal Panel addressed issues raised - obligation to give reasons - adequacy of reasons - challenge to reasons of specialist - purpose of requiring reasons of specialist

DAMAGES - employer's liability - future economic loss - Workers Compensation Act 1987 s 151G - fund management expenses - recoverable DAMAGES - employer's liability - future economic loss - Workers Compensation Act 1987 s 151IA - no recovery for loss of earning capacity after 65 - no bar to fund management expenses after 65 DAMAGES - future economic loss - fund management expenses - expenses not recoverable beyond plaintiff's life expectancy

CORPORATIONS - winding up - winding up in insolvency - application to set aside orders winding up the company - no evidence of solvency

POWERS OF ATTORNEY - Application by attorneys to vary general enduring power - attorneys seek deletion of circumscription on power precluding dealing with real property - propose to sell certain real property to fund nursing home bond - donee of power makes will shortly before giving power - will devises certain real property to son - inappropriate to vary power when contrary to donee's express intentions in will and terms of power.

SECURITY FOR COSTS - Plaintiff gives security of costs - plaintiff's claim successful - plaintiff seeks release of funds - defendants' oppose release on ground that cross-claim pending - security provided for purpose of plaintiff's claim - not releasing funds would appropriate them to a purpose irrelevant to basis for which order for payment made - funds released.

WILLS AND ESTATES - family provision claim - claimant maintained by deceased before death; whether - first claimant was wife of deceased but they had separated about 20 years earlier - disability of claimant - second claimant had serious health issues to take into account - financial resources and needs of claimant -discretionary considerations - forgiveness of debts owed to the estate - evidence of testamentary intention - deceased left a letter of wishes -- large estate

CIVIL PROCEDURE - interlocutory injunctions - application for injunction to restrain the defendant until further order from performing work for a company identified as a direct competitor in the business of the defendant's previous employer - HELD - application dismissed

SUBPOENA - Setting aside of subpoena - Rule 33.4 Uniform Civil Procedure Rules - Oppression - Identifying documents with sufficient particularity

[LAND LAW] - purchase of land at auction - deposit cheque dishonoured - whether vendors affirmed contract - whether vendors entitled to terminate - whether promissory estoppel - relief against forfeiture

PROCEDURE - civil - interlocutory issues - partitioning hearing - severability of issues - application that all issues in relation to liability in the proceedings be heard and determined separately to issues in relation to damages, pursuant to rule 28.2 of the Uniform Civil Procedures Rules 2005

APPEAL - civil - application for leave to appeal against decision of primary judge striking out amended statement of claim and declining to grant leave to replead - application for leave to appeal refused - no issue of principle

CORPORATIONS - interlocutory process - application for expedition of hearing of winding-up proceedings - where parties engaged in litigation in District Court - where plaintiffs allege that they should not be put to cost of pursuing their claim in District Court if the defendant insolvent - whether proceedings abuse of process or attempt to obtain improper collateral advantage - not an abuse of process for party to bring proceedings for the purpose of pursuing them to conclusion to obtain whatever entitlement or benefit the law provides - degree of expedition sought such that defendant would be deprived of an adequate opportunity to defend and claim - interlocutory process dismissed

COSTS - interlocutory decisions - determination of the cost consequences that would follow upon a proposed discontinuance of the proceedings

Application by defendants to vary orders -principles

STATUTORY CONSTRUCTION - the plaintiff was married to a former member of NSW Parliament during his parliamentary career and when he retired at which point the former member became entitled to a pension - the plaintiff and the former member then divorced - they remarried shortly before the former member's death - the plaintiff has not remarried since and seeks payment of a pension as the former member's widow pursuant to s 23(1) of the Parliamentary Contributory Superannuation Act 1971 (NSW) - whether the plaintiff falls within the bracketed exception in s 23(1), ie "(not being a person who became the spouse or de facto partner of the former member after the former member became entitled to that pension)", as a matter of statutory construction

CRIME - Crimes (Serious Sex Offenders) Act 2006 - application for extended supervision order - preliminary hearing - access to court file - application by media for access to written submissions

STRATA TITLE - Whether Strata Management Statement is binding on body corporate - construction of 28V(1)(a) of Strata Schemes Freehold Development Act 1973 (NSW) - registration of Strata Management Statement without special resolution of body corporate CONTRACTS REVIEW ACT - Strata Management Statement is amenable for review under Contracts Review Act 1980 (NSW) - Construction of "unjust" under Contracts Review Act 1980 (NSW) EQUITABLE UNCONSCIONABILITY - Special Disability required for Equitable Unconscionability -non-existence of body corporate cannot constitute Special Disability - whether expert can reapportion shared costs under Strata Management Statement - whether dispute can be relegated to expert will turn on terms of Strata Management Statement

PROPERTY (RELATIONSHIPS) ACT 1984 s20 - Adjustment of interests in property - Financial and non financial contributions

INSURANCE - Fire insurance - losses and claims - damages - retail fashion shop - whether replacement cost should include mark-ups, expenses and profits - stock purchased through wholesale company - retail and wholesale companies no longer trading - mark-ups - expert evidence - experts' view of value of stock - replacement value of stock - fixtures and fittings - business interruption - interest - section 57 of the Insurance Contracts Act 1984 (Cth) - orders

TORTS - negligence - serious workplace injury - employee experienced crane operator - collapse of crane - crane modified for former owner and operator of crane - modification created risk of collapse of crane - serious risk of injury resulted for anyone operating crane once damaged - extension of time to bring proceedings against former employer - expert evidence - analogies drawn with a car - whether company who modified crane owed a duty of care - whether duty breached - whether causation proven - whether former owner and operator of crane owed a duty of care - whether duty breached - whether causation proven - whether former employer breached duty of care - whether causation proven - Occupational Health and Safety Act 2000 regulations - contributory negligence - whether employee's oversight an act done without reasonable care for own safety- contributory negligence not found - cross claims - whether former owner and operator can claim full indemnity - whether former employer owed a duty of care by former owner and operator and company that made modifications - duty of care found - no full indemnity for former employer - all defendants proportionately liable - employees injuries - 15% whole person assessment - back pain result of injuries - employee mitigated his damages - s 151Z of the Workers Compensation Act 1987 applied - DAMAGES - non economic loss - economic loss - past economic loss - future economic loss - future medical expenses - paid domestic assistance

CONTEMPT OF COURT - Failure to comply with Court's orders - Wilful disobedience - UCPR r 40.7

APPEAL FROM LOCAL COURT - application for evidence of admissions to be excluded - admissions not tape recorded - whether s 281 of the Criminal Procedure Act only applies to offences being dealt with on indictment - whether s 281 of the Criminal Procedure Act has application to proceedings conducted in accordance with ss 26-31 of the Children (Criminal Proceedings) Act - discretion to admit evidence under ss 85 and 86 of the Evidence Act

PROCEDURE - CTTT - where application dismissed by Tribunal due to non-attendance of parties at initial hearing - where non-attendance of applicant caused by its solicitor's mistake - where applicant's solicitor sought relisting and offered an explanation for his non-appearance - where Tribunal did not relist the proceedings or respond to the letter - whether denial of procedural fairness - s 28(5)(g) of the Consumer, Trader &Tenancy Tribunal Act 2001 - whether Tribunal had power or jurisdiction to dismiss application at first hearing, as opposed to a "final hearing" - s 28(5)(g) not limited - plaintiff otherwise denied procedural fairness

CRIMINAL LAW - parole - decision of State Parole Authority to refuse parole - application to Supreme Court by offender - limited nature of relief available under s 155 Crimes (Administration of Sentences) Act 1999 - whether decision of State Parole Authority made on basis of false, misleading or irrelevant information -- Incorrect statement regarding timing of previous parole breach not error of substance - Other alleged errors did not form basis of decision - Limited participation in therapeutic programs not irrelevant

JUDICIAL REVIEW - application for certiorari - respondent brought proceedings in Local Court - assessor gave judgment in favour of respondent - applicant appealed to District Court on grounds of jurisdictional error and denial of procedural fairness - appeal dismissed - no relief in relation to Local Court proceedings when relying on same grounds as those in unsuccessful appeal to District Court - (per Giles JA) relief refused as matter of discretion - (per Handley AJA, Young JA agreeing) decision of District Court created binding issue estoppels - no relief in relation to District Court proceedings - (per curiam) no jurisdictional error or error of law on the face of the record.