Cases and authorities

TORT - Negligence - Breach of statutory duty - Post-traumatic stress disorder (PTSD) - Police officer exposed to traumatic crime scenes over many years - Whether his PTSD caused by employer's negligence - Concealment by police officer of symptoms - Contributory negligence - Whether damages should be discounted because of chance that PTSD could have become entrenched in any event.

APPEAL - s234(1)(a) Customs Act - leave to appeal granted - definition of "owner" of relevant goods - definition of "import" relevant goods - orders of Court below set aside - remitted to Court below.

TORTS - malicious prosecution and false imprisonment - malicious criminal proceedings - essentials of cause of action generally - termination of proceedings in Plaintiff's favour and innocence - when proof of Plaintiff's innocence necessary - Plaintiff convicted by jury - retrial ordered on appeal - Director of Public Prosecutions decides to proceed no further on the charges - whether the decision amounts to a nolle prosequi - effect of entry of a nolle prosequi - need for the Plaintiff to prove innocence on those counts. CRIMINAL LAW - procedure - indictments - status where appeal court quashes conviction and orders re-trial - nolle prosequi - when may be entered

REAL PROPETY - Torrens Title - caveats against dealings - application for extension of caveat - Real Property Act 1900, ss 74K and 74J - whether caveatable interest - HELD: caveatable interest established.

CONTRACT - indemnity given by defendant in favour of plaintiff for loss incurred by plaintiff if guarantee called upon - claim made out by plaintiff - no appearance by defendant - default judgment.

LEGAL PRACTITIONERS - solicitor's retainer - client's retainer of solicitor terminated - client seeks transfer of file to new solicitor - solicitor claims possessory lien for unpaid fees - whether solicitor or client terminated retainer - HELD: solicitor terminated retainer.

CRIMINAL LAW - murder - judge alone trial - defence of mental illness

CORPORATIONS - uncommercial transaction - whether requirement that transaction be at an undervalue - where related parties control corporate entities - whether transaction at arms length - whether transaction designed to defeat creditors - Corporations Act 2001 (Cth) Section 588FB CORPORATIONS - voidable uncommercial transaction - voidable insolvent transaction - Corporations Act 2001 (Cth) Section 588FF CORPORATIONS - directors - whether person "shadow director" - whether person "de-facto director" - Corporations Act 2001 (Cth) Section 9 DECLARATIONS - requirement for controversy - whether controversy need be ripe - effect as issue estoppel or res judicata - relevance to future proceedings

DECLARATIONS - nature of - absence of hearing on merits - when declaration may be made by consent COSTS - whether payable in absence of hearing on merits - distinction between capitulation and compromise SEPARATE QUESTION - whether separate question an "event" from which costs may follow - success in totality of proceedings not required - Civil Procedure Act 2005 (NSW) Section 98 COSTS - payable forthwith - when departure from rule justified - identifiable and discrete issue - "just, quick and cheap" resolution of the real issues - courts obligation to identify separate issues to expedite resolution - Civil Procedure Act 2005 (NSW) Section 56 - Uniform Civil Procedure Rules Rule 42.7

ESTOPPEL - proprietary estoppel - arising by representation or acquiescence - oral representations - whether any representations made - whether plaintiff acted to detriment.

ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - two successive motor accidents - claimant suffering permanent psychiatric impairment arising from both motor accidents - referral to Medical Assessor - Review Panel revokes certificates of Medical Assessor and issues its own certificates - inconsistency between certificates and finding of psychiatric permanent impairment - error by Review Panel in interpreting Permanent Impairment Guidelines - failure by Review Panel to apportion impairment between the two motor accidents.

SUCCESSION - family provision - proper maintenance and advancement in life - Family Provision Act 1982, ss 7 and 9 - claims by adult children - whether adequate provision for proper maintenance and advancement in life - whether plaintiffs should receive legacies in lieu of provision made for them in the will - provision to be made by way of additional legacies leaving gift in will untouched

APPEAL - civil - fact-finding based on credibility - breach of rule in Browne v Dunn - failure to object to breach of rule does not amount to waiver of it - primary judge erred in assessment of factors fundamental to adverse finding of credit of witness. EVIDENCE - proof - inferences - allegations of dishonesty - need to prove allegations to Briginshaw standard - Evidence Act 1995 (NSW), s 140 considered - inference of dishonesty or deliberate concealment of error not able to be drawn to Briginshaw standard in circumstances where witness not cross-examined on issue. PROCEDURE - Court of Appeal - filing of supplementary material after hearing beyond terms of leave - Court entitled to disregard supplementary material.

CRIMINAL LAW - evidence - circumstantial evidence to prove an accused was the user of a particular telephone - probative value outweighed by danger of unfair prejudice

CRIMINAL LAW - evidence - credibility - prior inconsistent statements - admissibility of notes taken by a police officer of information from an accomplice prosecution witness - notes not evidence of a prior inconsistent statement - hearsay - admissibility - not relevant to assessing credibility of the witness

PRACTICE AND PROCEDURE - medical negligence claim - reconvened breach of duty experts' conference to take place - application by Plaintiff's legal representatives for leave to discuss breach issues with Plaintiff's experts before reconvened meeting and provision of final joint breach experts' report - relevant discretionary factors - leave refused

CIVIL - claim for damages via contract and tort law regarding properly dealing - Deregistered corporation - Application for reinstatement of registration - Section 601AH Corporations Act 2001 - Applicant aggrieved as deregistration precludes legal proceedings - Just to preserve potential to access company's insurance policy - Application granted.

CONTRACTS - particular parties - vendor and purchaser - contract for sale of land in residential estate - contract annexes management plan for estate - vendor lodges later development application which is inconsistent with management plan - whether express or implied term in contract not to develop the estate inconsistently with management plan - whether collateral contract not to develop estate inconsistently with management plan - whether breach of such term or of a collateral contract - whether injunction should go to restrain the vendor from pursuing its later development application - HELD - no term of the kind alleged is implied into the contract - no collateral contract to the effect alleged - but lodgement and pursuit of the later development application is a breach of an express term of contract regulating the operation of the Management Plan - but the contract is subject to operation of local and state planning instruments which determine whether what would otherwise be a breach of contract has any effect - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - whether vendor providing management plan to purchaser represented that it would not carry out development inconsistent with the management plan - HELD - representation alleged was made but was modified by terms of contract before being acted upon by purchasers - final representation was to comply with contract and no more - ENVIRONMENT AND PLANNING - environmental planning - planning schemes and instruments - both the Ballina Local Environmental Plan 1987 and the SEPP (Affordable Rental Housing) 2009 provide for the suspension or non-application of covenants agreements and instruments which impose restrictions on the use of land - whether these two planning instruments suspend provisions of the contract restricting development of the estate to that with the management plan - HELD - the two planning instruments do suspend the provisions of the contract restricting development of the estate.

Leave to amend pleadings - Surprise - Appropriateness of new counsel being granted leave to amend - Case management

PROCEDURE - civil - interlocutory issues - application to restrain a solicitor from acting for defendant is sought by a former client of the solicitor on grounds of conflict of interest or breach of fiduciary duty or confidentiality.

APPEAL - appeal under s 39 of the Local Court Act 2007 - leave sought to carry on proceedings pursuant to s 500(2) of the Corporations Act 2001 (Cth) - leave under s 40 of the Local Court Act 2007 - adequate reasons for decision not given - architectural services provided for the reconstruction of a guest house - whether claim decided in contract or quantum meruit - credit findings - terms of agreement reached - whether agreement reached as to fixed fee on implied term that reasonable sum would be paid - appeal upheld - decision below set aside

COSTS - departing from the general rule - nature of the discretion to order otherwise - Rule 42.15 of the Uniform Civil Procedure Rules 2005 - whether it was impossible to advise plaintiff about the offer received - not established - no evidence that offer was properly considered or assessed - whether defendant ought to have admitted liability - whether time and money wasted on unjustified defence - whether defendant ought to have abandoned Limitation Act 1969 issue - defendant ought to have admitted liability and conceded Limitation Act point promptly - whether expert evidence ought to have been called - defendant to bear plaintiff's costs on a party/party basis up to the time that the offer lapsed - plaintiff to bear defendant's costs on indemnity basis thereafter other than 75% costs of hearing and costs thrown away in preparation of Limitation Act point PROCEDURE - judgments and orders - amending, varying and setting aside - future treatment expenses - deferral sought by defendant - no basis for departing from conclusions reached in earlier judgment

Statutory demand - defect in the demand arising from specification of two different amounts for the debt claimed - offsetting claims.

CRIMINAL LAW – conviction – substantial delay in complaint of alleged sexual offences – direction did not satisfy the requirements of Longman v the Queen.

CORPORATIONS - s 237 Corporations Act 2001 (Cth) - application for leave to bring derivative action - leave refused where evidence discloses no possible claim - leave granted where requirements of s 237 Corporations Act 2001 (Cth) satisfied

EMPLOYMENT LAW - The Relationship of employer and employee - whether details of recipients of solicitation letters sent by the employee after termination of his employment were taken from client lists of the employer

COSTS - costs for work injury damages - where plaintiff succeeded against work injury damages defendant - where actions against other defendants were under the Civil Liability Act 2002 - reg 109 Workers Compensation Regulation 2010 - costs under the Civil Liability Act 2002 - justice of the case - making of 'Sanderson' order considered

NEGLIGENCE - prison authority - assault by fellow prisoner in visiting area - whether authority in breach of duty - social utility of contact prison visits - no question of principle.

CONTRACT - contract for supply of insulation batts - failure by purchaser to perform obligations under supply contract - enforcement of guarantee and indemnity given by director of purchaser - claim made out - failure of defences - damages awarded in accordance with terms of guarantee.

LIMITATION OF ACTIONS - claim in tort - medical negligence - extension of time to join two specialist medical practitioners (the respondents) - issues as to scope of duty, breach and causation - evidence required to satisfy the "gateway" provisions under s.60E(1) and s.60I(1) of the Limitation Act - delay - applicant held knowledge of matters relevant to statutory criteria under "gateway" provisions - the "just and reasonable" test not satisfied - applicant's burden of proof re same not satisfied - not shown to have evidence available to establish elements of a cause of action in tort or for breach of duty - not shown to have a viable cause of action.

The Plaintiffs appeal the decision and orders made by Guardianship Tribunal for financial management and guardianship in respect of the third Plaintiff, made by the fourth Defendant - Tribunal made orders pursuant to which the third Defendant was appointed financial manager of third Plaintiff's estate, and the second Defendant was appointed guardian of the third Plaintiff.

PROCEDURE - Directions giving effect to final orders previously made.

CONTRACT - Interpretation - Provision of finance for development - Whether on true construction of contract principal repayable. PROCEDURE - Pleading - Need to avoid surprise.

COSTS - appeal - costs before primary judge - exception to rule that costs follow the event - failure of both sides to recognise the limited nature of the appeal. COSTS - costs of appeal following offers of compromise - claim for indemnity costs on appeal leading to remittal - reasonableness of the offers of compromise - not accepted - likely outcome on remittal in respect of parties' liability.

CORPORATIONS - statutory demand - application to set aside statutory demand - where presumption of insolvency has already arisen - where no utility in the present proceedings - proceedings stayed until further order

CORPORATIONS - deed of company arrangement - application for termination of deed of company arrangement and winding up under Corporations Act 2001 (Cth), s 445D - where material contravention of deed and deed cannot be given effect to - where company insolvent - if deed not terminated interests of post administration creditors would be unfairly prejudiced - order pursuant to s 445D that deed of company arrangement be terminated - administrator appointed as liquidator of the company

PRACTICE - application to amend list statement - whether proposed amendments would promote the just, quick and cheap resolution of the real issues in the proceedings - application refused.

STATUTES - acts of parliament - operation and effect of statutes - Registration of Interests in Goods Act 1986 ("the Goods Act") - Registration of Interests in Goods Regulation 2004 - plaintiff has a registered mortgage interest in goods under the Goods Act which has priority over the defendant's registered interest in the same goods - plaintiff takes possession of the goods and seeks the exercise of its power of sale - goods unsaleable if offered for sale subject to defendant's subsequent registered interest - plaintiff offers an undertaking to the Court to pay to the defendant any surplus proceeds of sale of the goods, if the defendant's registered interest is cancelled in the register - no statutory mechanism exists under Goods Act to permit a sale free of the defendant's subsequent interest - whether Court can direct the cancellation of the defendant's interest.

Oral agreement - Terms of contract - Credit - Assessing documentary evidence - 'without prejudice' proposal - section 131(2)(e) Evidence Act 1995 (NSW) - section 131(2)(f) Evidence Act 1995 (NSW) - section 131(2)(g) Evidence Act 1995 (NSW) - Exceptions to 'without prejudice' rule - Voir dire

CONTRACT - construction - Law Society and Real Estate Institute standard form contract for sale of business 2000 edition - content of vendor's promises, cl 10. CONTRACT - breach - causation - vendors' promise that business "has complied" with regulatory requirements - vendors had not been enforcing limit on number of patrons - whether breach of condition caused loss to purchaser when limit subsequently enforced - past breach not causally connected to loss. CONTRACT - construction - need to give commercial contracts businesslike construction - no warrant for reading into words a wider body of meaning as a substitute for an absent provision. APPEAL - civil - raising of new points on appeal - parties should not be permitted to raise new arguments where those arguments could have been met by evidence below - Suttor v Gundowda considered.

TORTS - negligence - motorcycle accident - whether unidentified vehicle caused plaintiff's accident APPEAL - appellate review of findings of fact - whether errors in process of fact-finding - where primary judge rejected plaintiff's version of accident and accepted independent witness' account -whether primary judge's findings glaringly improbable or contrary to compelling inference EVIDENCE - use of police diagram - whether used impermissibly as direct evidence EVIDENCE - business record - whether diagram drawn by police officer a "business record" - whether admissible to prove the existence of a fact - ss 59(1) and 68, Evidence Act 1995

MEDICAL PRACTITIONERS -Complaints of unsatisfactory conduct and impairment - complaints found proved by Medical Tribunal - deregistration of practitioner ordered - whether denial of procedural fairness in Tribunal not making known its observations of practitioner in relation to impairment - observations of practitioner as witness - confirmatory of matters on which expert witness had diagnosed psychiatric condition - not necessary that Tribunal specifically draw them to practitioner's attention - whether Tribunal failed to engage with medical reports on which practitioner relied - no failure - if any error, was not error in point of law - whether open to make deregistration order - Tribunal failed to address whether impairment such that practitioner not competent to practice medicine - impairment likely to impact on practice of medicine "sooner or later" - finding of present incompetence to practice medicine not open - deregistration order could not be made - matter remitted to Tribunal for reconsideration of orders.

APPEAL - Jurisdiction of District Court on appeal from Consumer Trader and Tenancy Tribunal - claim in the Tribunal against three defendants as parties to a contract - order against one defendant only - appeal to the District Court under s 67(1) Consumer Trader and Tenancy Tribunal Act 2001 (NSW) - District Court found that the proceedings in Tribunal had been on the basis that all three defendants were parties to contract - whether the Tribunal had decided a question with respect to a matter of law - (per Allsop P, Giles JA) there was an implicit decision that the Tribunal had fully exercised its jurisdiction - this was a decision on a question with respect to a matter of law - (per Basten JA) there had been no question in Tribunal as to disparate liability of defendants - there was no decision of a question with respect to a matter of law - District Court made an order against all three defendants - whether the District Court exceeded its jurisdiction in finding that all three defendants were parties to contract - (per Allsop P, Giles JA; Basten JA not considering) the District Court engaged in fact-finding beyond its jurisdiction - but the fact-finding was not material to the order it made. WORDS AND PHRASES - "decision", "question": Consumer Trader and Tenancy Tribunal Act 2001, s 67(1).

DAMAGES - Solicitor's negligence - but for negligence client would not have entered into loan transactions as borrower - damages assessed at amount currently owed to lender - whether failed to recognise benefit to client of repayment from loan moneys of existing loan to third party guaranteed by client - comparison of client's position having entered into transactions with position if had not entered - finding that third party would have paid out the existing loan - client would not have been called on to pay as guarantor - client now liable for corresponding amount and called on to pay - damages currently included the corresponding amount and interest. COSTS - Proceedings by lender against client settled - order made "no order as to costs" - loan remained on foot - whether order prevented lender from debiting costs of proceedings to loan account - did not prevent it. PRACTICE AND PROCEDURE - Amendment - application after reasons published to amend to claim apportionment with concurrent wrongdoer - leave to amend refused - refusal correct - no question of principle.

WORKERS COMPENSATION - sole working director of respondent killed in cycling accident - claim for death benefits compensation - injury was in course of employment - Commission found employment concerned not a substantial contributing factor to the injury (Workers Compensation Act 1987, s 9A(1)) - whether erroneous decision in point of law in so finding - Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324 - whether approached from perspective of the cycling rather than of the employment concerned - consideration of causal linkage between employment and injury - no erroneous decision in point of law - injury in course of employment does not lead to finding of employment being substantial contributing factor to injury. APPEALS - need to identify erroneous decision in point of law.

JURISDICTIONAL ERROR - Applicant applied for reinstatement in Industrial Relations Commission pursuant to Workers Compensation Act 1987 s 242 - reinstatement where worker receives an injury for which the worker is entitled to receive compensation: s 240 (2) - whether Industrial Relations Commission had jurisdiction to determine entitlement to receive compensation - or whether it was within the exclusive jurisdiction of the District Court (as coal miner matter) - effect of Workplace Injury Management and Workers Compensation Act 1998 s 105 - entitlement to receive compensation subsisted without court or tribunal determination - Industrial Relations Commission had jurisdiction to determine it

PROCEEDINGS FOR DAMAGES FOR PERSONAL INJURY - application by 2nd defendant for leave to file cross-claim against 1st defendant - proceedings settled between plaintiff and 1st defendant on the basis that judgment to be given to 1st defendant

PRACTICE AND PROCEDURE - strike-out application - defective and embarrassing pleading - pleading struck out - whether proceedings should be dismissed for want of prosecution - dismissal premature - leave to replead granted