Cases and authorities

ADMINISTRATIVE LAW – procedural fairness – duty to give notice – Transport Administration (Staff) Regulation 2000 (NSW), cl 32. - ADMINISTRATIVE LAW – procedural fairness – obligation to give reasons - content of the obligation dependent upon nature of the power and circumstances in which the power is exercised – no general law assumption that there is an obligation for an administrative decision-maker to give reasons. - ADMINISTRATIVE LAW – estoppel – no function of Court exercising powers of judicial review to make findings of fact as to the merits of the claim – a statement of facts in a judgment in judicial review proceedings does no more than identify the background - Supreme Court Act 1970 (NSW), s 69 - ADMINISTRATIVE LAW – Wednesbury unreasonableness – principle applicable to discretionary decision-making – findings of fact open to a Tribunal not to be disturbed for unreasonableness

WORKERS COMPENSATION – Appeal from decision of Presidential Member – Point of law – Reliance on medical opinion allegedly unsupported by reasons – Whether opinion inadmissible or of no rational probative value – Whether error of law in deficiency of reasons of Presidential Member.

APPEAL – civil – question of law – construction of statute – Administrative Decisions Tribunal Act 1997 (NSW), s 119 - HUMAN RIGHTS – discrimination on ground of homosexuality – defences – religious bodies – Anti-Discrimination Act 1977 (NSW), s 56 - PROCEDURE – civil –non-publication order – protection of identity of children - STATUTORY INTERPRETATION – whether words used in ordinary meaning – reading individual words in structure of provision - WORDS AND PHRASES – "act or practice" – "adherents of that religion" – "appointment" – "doctrines" – "in any capacity" – "religion" – "religious susceptibilities"

APPEAL– statutory appeal – Dust Diseases Tribunal Act 1989 (NSW) s 32 – right of appeal to Supreme Court on point of law - EVIDENCE – admissibility – expert opinion – whether witness had relevant expertise to measure dust concentration of work environment – qualification as to the difficulty of precise measurement did not destroy validity of opinion - EVIDENCE – weight or sufficiency – uncontradicted evidence – legitimacy of drawing conclusion that evidence of uncalled witness would not have been of assistance to that party’s case - DUST DISEASES TRIBUNAL – legitimacy of judge drawing on experience and position in specialised court - COSTS – indemnity costs – offers of compromise – offers more favourable than judgment obtained – whether exceptional case and necessary for avoidance of substantial injustice - COSTS – assessment – capped costs

CORPORATIONS - winding up - statutory demand - application by party wishing to serve a statutory demand for an order for substituted service of the demand - held: court cannot make such an order

CRIMINAL LAW – appeal against sentence – discount for guilty plea – manslaughter by unlawful and dangerous act – offender struck victim with fatal blow to the head – open to sentencing judge to set discount - CRIMINAL LAW – appeal against sentence – considerations – application of R v Fernando in weighing personal subjective circumstances against objective seriousness of the offence – sentence not manifestly excessive

CORPORATIONS - examination of officers and others - written record of examination - to what extent admissible in evidence to prove facts stated - EVIDENCE - admissibility - hearsay - where deponent repeats in current affidavit statements made in an earlier affidavit - whether excluded by hearsay rule - EVIDENCE - admissibility - proceedings by company against director alleging breach of duty - whether defendant thereby exposed to penalty relevant to admissibility of evidence - EVIDENCE - admissibility - written record of examination - application of hearsay rule - statutory exception in Corporations Act

PROCEDURE - Costs - Discontinuance of proceedings - Substantive proceedings, including cross-claim, not proceeding to final determination - Whether Plaintiff's conduct in commencing proceedings reasonable - Whether defendant's conduct prior to commencement of proceedings unreasonable - UCPR r 42.19 - Turns on facts - No question of general principle

Banking - Series of defences put forward by defendants including claims that loan contract was unenforceable or void or voidable - Non est factum doctrine - Unconscionability/undue influence - Duties of care owed by the Bank - Ordinarily a duty of care will not be imposed in a Banker/Customer relationship

CONTRACTS - General Contractual Principles - Offer and Acceptance - whether admitted loan by plaintiff to defendants was repayable if and when they obtained refinance, or within 14 days - whether loan was subject to an up-front amount as interest or was interest free - whether mortgage that failed to state its secured the loan should be rectified - whether the mortgage was subject to interest even though not claimed therein - whether a fixed amount should be paid in lieu of costs

CRIMINAL LAW - sentencing - breach of Rail Safety Act 2002 - whether causal link between death of railworkers and breach - whether offence objectively serious - whether offence involved grave risk of death - whether defendant remorseful - whether specific deterrence called for

TRUSTS - Express trusts - resulting trusts - constructive trusts - requirements of writing - EVIDENCE - Documents - where lost - admission of secondary evidence - need to have personal knowledge of contents - admissions as to contents - admissions contained in later contract

CRIMINAL LAW - sentence - murder - premeditated - offending in upper end of upper range of objective seriousness - plea of guilty entered at conclusion of evidence in trial

PROCEDURE - Supreme Court procedure - New South Wales - jurisdiction generally - stay of proceedings

CRIMINAL LAW - procedure - confiscation of proceeds of crime - restraining or freezing order - reasonable grounds for suspicion of authorised officer - correct test to be applied - earlier affidavit of authorised officer in respect of offences later withdrawn - authorised officer knew of withdrawal before swearing further affidavit concerning his suspicion - whether suspicion reasonably held.

CONTRACT - express and implied terms - duty to co-operate and to ensure other party gets the benefit it was intended to get from performance and achievement of purpose of contract - breach consisting of taking of steps which prevented other party from becoming entitled to consulting fee.

TRUSTS - Judicial advice to trustee as to whether he would be justified in paying share in deceased estate to person who claimed to be the beneficiary described in deceased's will as "Marianna Ioos who resides in the USSR" - consideration of problematical evidence of identity - not necessary to prove identity to standard that would apply to support a finding of fact in adversial proceedings.

CRIMINAL LAW - particular offences - offences against the person - homicide - murder - act of stabbing by accused caused death of uncle - intention to cause grievous bodily harm - CRIMINAL LAW - general matters - criminal liability and capacity - defence matters - insanity and mental impairment - disease of the mind, mental disease or mental infirmity - accused suffering from schizophrenia - acted in response to auditory hallucinations - CRIMINAL LAW - procedure - trial had before judge without jury - election by accused - consent by prosecutor

PRACTICE AND PROCEDURE – appointment of representative of defendant’s estate under UCPR 7.10 – form of final orders for relief - COSTS – whether general rule that costs follow event should be displaced – where case on which plaintiff succeeded not pleaded until late amendments to pleadings allowed – where defendant made offer of compromise in previous proceedings and rejected by plaintiff – where additional claims for relief in previous proceedings not brought in present proceedings – no order as to costs

REAL PROPERTY - Registration of interests - Real Property Act s 43A - whether interest immediately registerable - priorities - withdrawal of caveat - PRACTICE AND PROCEDURE - Requirement that all necessary parties be joined to proceedings

EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees – indemnity – where trustees successfully defend application by some beneficiaries for removal – EQUITY - trusts and trustees - applications to the court on originating process – EQUITY - trusts and trustees - applications to the court for advice and authority – whether trustee of discretionary trust would be justified in funding defence of proceedings to which it was not a party – whether burden should be borne by plaintiff beneficiaries in context of discretionary trust - whether advice that certain approach to future distributions would be justified should be given, absent knowledge of all relevant circumstances when discretion falls to be exercised – EQUITY - trusts and trustees - proceedings between trustees and beneficiaries or third parties – costs – where beneficiaries’ claim against trustees dismissed – ordinary position – whether hardship to beneficiaries justifies departure from ordinary rule

CORPORATIONS - rectification of registers - whether documents transferring shares and resigning as director and secretary signed - factual inquiry - no matter of principle - CORPORATIONS - winding up - just and equitable ground - breakdown in relationship - no matter of principle - EQUITY - rectification - whether common intention proved to differ from content of instrument - no matter of principle

SUCCESSION - Family provision - adult son - adult daughter - costs order where plantiff only partially successful.

TRADE AND COMMERCE – misleading and deceptive conduct – Fair Trading Act 1987 (NSW) ss 42(1), 61, 68(1) – the first defendant (“the Council”) publicly invited expressions of interest (“EOI”) in purchasing and developing a supermarket development site – the plaintiff (“Woolworths”) and the second defendant (“Coles”) were short-listed and the Council accepted a conditional offer from Woolworths – while it was negotiating with Woolworths the Council also negotiated with Coles – whether the Council’s deliberate failure to tell Woolworths that it was negotiating with Coles (or a third party) was misleading and deceptive, or likely to mislead or deceive – alternatively, whether the Council’s failure to tell Woolworths that the Council was not, or was no longer, negotiating exclusively with Woolworths was misleading and deceptive, or likely to mislead or deceive – accessorial liability on the part of Coles – whether Coles was knowingly involved in that contravention – LOSS – whether Woolworths suffered any loss by the conduct – on the balance of probabilities, firstly, whether Woolworths would have shifted position and secondly, whether the Council would have sold to Woolworths – HELD – the Council’s conduct was in the circumstances misleading or deceptive or likely to mislead or deceive – held further that Woolworths had not established any loss by that conduct – held further that it was not established that Coles knowingly participated in the contravention

CRIMINAL LAW - particular offences - offences against the person - homicide - murder - intention to kill - CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offence - unplanned killing in victim's home - provocation not accepted - standard non-parole period - gravity of offence just below mid-range - co-operation with authorities - prior good character - remorse - reasonable rehabilitation prospects - hardship in serving sentence as foreign national - finding of special circumstances would involve double counting of features taken into account in overall sentence assessment

APPEAL - Local Court - Civil Liability Act - s 102 Roads Act 1993 - Contribution

EXTENSION of limitation period - ss 60 C & E Limitation Act 1969 - dental treatment

DAMAGES - inquiry consequent upon usual undertaking as to damages given by Plaintiff - undertaking by Defendant in terms equivalent to injunction - whether Defendant has suffered any loss consequent upon its undertaking - loss of opportuniy of Defendant to sell subject- matter of its undertaking - impecuniousity of Defendant - foreseeability of any alleged loss.

TORTS – duty of care – duty of council to users of public pathway – whether appellant owed duty of care in circumstances where it installed an obstruction along a public pathway - TORTS – duty of care – scope of duty – scope of duty to be determined objectively - TORTS – breach of duty of care – Civil Liability Act 2002, s 5B – principles in Wyong Shire Council v Shirt [1980] HCA 12: (1980) 146 CLR 40 – whether the Civil Liability Act 2002, s 5B substantially restates the principles at common law - TORTS – contributory negligence – Civil Liability Act 2002, Division 8 – determined objectively - TORTS – obvious risk – Civil Liability Act 2002, Division 4, ss 5F-I – whether installation of a chain across a public pathway constitutes an obvious risk - PRACTICE & PROCEDURE – Civil Liability Act 2002 – actions to be determined by reference to the Civil Liability Act 2002

CORPORATIONS – winding up – court approval for liquidator’s litigation funding agreement – ex parte hearing – confidentiality orders – right to be heard – major creditors – committee of inspection – creditor seeking removal of liquidator. - NATURAL JUSTICE – right to be heard – necessity for relevant right, interest or expectation – must exist in fact – no freestanding right to be heard.

DEFAMATION – damages – jury verdict on liability and defence – six imputations proved true and two further imputations not proved true – reputation still damaged – jury verdict that article still defamatory – effect of true imputations to reduce damages significantly – more than nominal damages awarded

CORPORATIONS - statutory derivative action - statutory criteria - meetings of members - whether general meeting purporting to remove director validly convened and held - no matter of principle

CORPORATIONS - application for leave to bring action pursuant to s 237 of Corporations Act 2001 (Cth) - consideration of factors in establishing that the applicant is acting in good faith (s 237(2)(b)) - whether action in best interests of the company - whether serious question to be tried

CRIMINAL LAW - conviction appeal - officer of a corporation convicted of making available to the Australian Stock Exchange information that was false or misleading in a material particular - whether evidence capable of establishing knowledge of provision of information and of its alleged false or misleading character - CRIMINAL LAW - evidence - minute of directors' meeting admitted into evidence for a purpose other than proof of the truth of the assertions contained in it - part of minute not admissible for that other purpose - real chance that the jury misued that part of the minute

DEFAMATION - application under s 23 of the Defamation Act 2005 for leave to bring further proceedings - whether leave may be given retrospectively - DEFAMATION - appliction for extension of time within which to bring proceedings - substantive law applicable - whether "not reasonable in the circumstances" for plaintiff to have commenced an action within the limitation period - where plaintiff had limited access to funds - where complaint made under defendant's internal complaints process

CORPORATIONS - winding up - winding up by the court - application of assets by liquidator - order of application - TRUSTS - court previously recognised company in liquidation as holding land on trust for third party - funds remaining with company and liquidator in accordance with order - whether third party a creditor of company for rates and taxes on land paid by him - if so, whether secured or unsecured - whether third party beneficiary bound to indemnify company as trustee for rates and taxes

CRIMINAL LAW - juvenile convicted of manslaughter - application to serve prison term in juvenile centre - whether special circumstances as defined - HSC courses not offered by adult gaols - order that juvenile remain in juvenile centre to complete education

PRACTICE AND PROCEDURE – application under Civil Procedure Act, s 140 for transfer of proceedings from Local Court to Supreme Court and to be heard with existing Supreme Court proceedings – proceedings relate to same general transaction – application refused – no satisfactory explanation for delay in making application – no evidence that damages claim exceeds Local Court jurisdictional limit – different parties to proceedings – Local Court proceedings would not give rise to res judicata or issue estoppel binding parties to Supreme Court proceedings – prejudice arising from further delay to proceedings

EQUITABLE CHARGE – moneys misappropriated by first defendant from plaintiff applied in reduction of mortgage over properties of first and second defendants – title to each property transferred without consideration by both defendants to second defendant – second defendant not a purchaser for value and without notice – title subject to charge in favour of plaintiff.

SUCCESSION – where deceased died intestate – where plaintiff and deceased chose to live together for small part of each week – whether plaintiff was de facto spouse within meaning of Property (Relationships) Act 1984, s 4 and entitled to estate and grant of letters of administration – whether plaintiff and deceased were living together as a couple – consideration of all of the circumstances of relationship – importance of common residence to existence of de facto relationship

DEFAMATION - admissibility of transcript of television broadcast - DEFAMATION - identification - application for dismissal of proceedings after conclusion of evidence for plaintiffs - whether there was evidence upon which the jury could decide that the matters complained of identified the second plaintiff

SUCCESSION – where testator bequeathed farm to plaintiff – on construction of will whether bequest of property included water licence – admissibility of surrounding circumstances to construe will – where water licence initially granted under Water Act 1912 – where new statutory regime under Water Management Act 2000 replaced licence entitlements under Water Act 1912 – construction of statutory entitlements of testator and plaintiff under Water Act 1912 and Water Management Act 2000 – meaning of “occupier”

PROCEDURE - Supreme Court procedure - New South Wales - application for leave to re-open - where defendant sought leave to re-open its case after principal judgment delivered

CORPORATIONS - voluntary administration - administration under deed of company arrangement - summons for examination issued under s 596B - applicant for summons an "eligible applicant" by virtue solely of ASIC authorisation - no time limit express or implied to "eligible applicant" status - deed of company arrangement terminated before any examination appointed or conducted - whether summons may be enforced and examination conducted after termination of deed - CONSTITUTIONAL LAW - judicial power of the Commonwealth - court empowered by Commonwealth law to order that person submit to examination about affairs of company subject to deed of company arrangement - examination inquisitorial in nature and of itself not judicial - whether power to compel examination incidental to judicial power - whether court given general supervisory jurisdiction with respect to company subject to deed of company arrangement

TRUSTS AND TRUSTEES – discretionary trust – powers of trustees – legitimacy of accounting approach – trustee entitled to treat unrealised gain on investments as “income” – permissible practice according to commercial accounting standards and principles – trustee validly determined to treat unrealised gain as “income” – acquiescence in annual financial accounts - WORDS AND PHRASES – construction of trust deed – “income”

CONTRACT – vendor and purchaser dispute – whether contract validly terminated by either party – where purchaser alleged misrepresentation or misleading or deceptive conduct by vendor to induce entry into contract – no misrepresentation or misleading or deceptive conduct established – purchaser not entitled to rescind contract - CONTRACT – where contract contained special condition for completion to be conditional on development approval – construction of contract to determine time for completion – whether vendor entitled to serve notice to complete and terminate contract – determination of damages recoverable for breach of contract - CONTRACT – where real agent joined as cross-defendant to cross-claim by purchaser – whether agent entitled to be indemnified by vendor for costs of proceedings – whether agent claimed costs arising from proper performance of powers, duties or authorities

CRIMINAL LAW - procedure - bail - grounds for granting or refusing bail - before trial - charges of murder, manslaughter, supply a prohibited drug (cocaine) x 4 and possess a prohibited drug.

BUILDING AND CONSTRUCTION - owners corporation claim against developers and builder for breach of statutory warranties - assessment of damages for breach - HELD - various breaches of statutory warranty established - were breaches causative of loss – reasonableness of rectification sought - LIMITATIONS - whether developers’ cross-claim against builder was statute barred - HELD - developer’s claim for equitable contribution was not statute barred - APPORTIONMENT of liability as between developers and builder