Cases and authorities

TRAFFIC OFFENCES – speeding offence – speed limit sign – appeal on question of law alone – Australia Road Rules, Rule 20 and Rule 21 – appeal allowed, matter remitted

COSTS – notice of motion for discovery – plaintiffs successful or substantially successful – no reason to depart from ordinary order that costs follow the event and be payable at conclusion of proceedings – costs orders made

PROCEDURE – Application for leave to appeal – Whether open to primary judge to order filing of a statement of claim – Whether open to primary judge to order substitution of a party.

INTERPRETATION – Motor Accidents Compensation Act 1999 – meaning of “motor accident” – plastic extrusion machine falling in the course of being moved by a forklift – whether a “motor accident” in the Motor Accidents Compensation Act 1999

SUCCESSION - wills, probate and administration - construction and effect of testamentary disposition - legacies and devises - where will contained occupancy requirement and maintenance requirement - where defendant did not comply with occupancy requirement - where acquiescence by plaintiff - SUCCESSION - family provision and maintenance - practice - time for making application - extension of time - where leave to make claim granted - principles upon which relief granted - application of adult son

CRIMINAL LAW - murder - manslaughter - sentencing - joint criminal enterprise - conflict in evidence - difficulty in determining role - some convicted murder, others manslaugher - murder: below mid range - youth and immaturity - parity of co-offenders - offer plead to manslaughter - discount - special circumstances - whether serve in juvenile detention centre

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis

PROCEDURE - Strike out reply - Leave to file amended reply - Whether prosecutions brought without reasonable and probable cause - Whether same burden and onus of proof - Whether between same parties - Whether issue estoppel applies

VENDOR and PURCHASER - Notice to Complete - Contract authorised notice to complete of 14 days - notice required completion at 2.00 pm on 14th day - HELD the notice was not a 14 day notice as authorised by the Contract but in the circumstances in fact allowed reasonably sufficient time Deposit - forfeiture - relief under Conveyancing Act 1919 s55(2A) - Purchaser could not complete in time because of delays by his Mortgage Broker - Vendor did not contribute to causes of Purchser's default - on review of facts, relief against forfeiture refused.

COSTS – whether costs order should follow the event – two plaintiffs successful on one of two claims – plaintiffs’ unsuccessful claim was a major part of the action – apportionment of costs to reflect outcome

SUCCESSION - family provision - deceased fails to sever joint tenancy before death - claim that testator's interest in joint property is Family Provision Act s 6 "notional estate" - alleged testator agreed not to sever the joint tenancy - order for provision sought out of notional estate - COSTS - beneficiary appearing in addition to executor on Family Provision Act issues seeks costs out of estate - HELD - no agreement not to sever joint tenancy - testator's interest in joint property designated notional estate - beneficiary ordered to pay her own costs of Family Provision Act issues

DAMAGES - Contract - Breach of restraint of clause - calculation of damages for loss of the benefit of a distributorship agreement - loss of a chance - whether Plaintiff failed to mitigate its loss.

REAL PROPERTY - whether receivers appointed by mortgagee to mortgagor’s leasehold interest (and acting in their capacity as mortgagor’s agent) are entitled to possession of premises as against third party claiming under unregistered agreement to sub-lease - injunction sought by party claiming interest as sub-lessee to restrain receivers’ interference with occupation or possession of premises - HELD - declaration as to receivers’ entitlement to possession refused - serious question to be tried concerning the existence of a binding sub-lease agreement between mortgagor and alleged sub-lessee (and as to claim that mortgagor estopped from denying sub-lease) - balance of convenience considered - interlocutory injunction (subject to undertakings) granted to restrain receivers (acting in their capacity as agents of mortgagor but not otherwise) from interfering with possession by alleged sub-lessee pending determination of substantive proceedings or further order

ADMINISTRATIVE LAW – Motor Accidents Compensation Act – referral for medical re-assessment – decision of Proper Officer to refer – jurisdictional fact – role of Proper Officer – unavailability of certiorari – availability of prohibition and mandamus to restrain or require further assessment

SUCCESSION - family provision - claim by widow - financial and material circumstnaces of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - right of residence is not appropriate provision for widow in situation of Plaintiff - assertion by the Defendants of matrimonial disharmony between Plaintiff and Deceased - Defendants do not assert conduct disentitling - order capping costs of Defendants

EQUITY – equitable remedies – declarations – when not appropriate – where declaration would convert non-essential conclusions into res judicata – where matter already res judicata by reason of earlier judgment of another court – where declaration would be hypothetical – PROCEDURE – judgments and orders – amending, varying and setting aside – where pronounced or terms reserving opportunity to apply for different orders – COSTS – no question of principle

CRIMINAL LAW – sentence appeal – De Simoni principle and manifest excess – no issue of principle – no basis for submission – no identifiable or manifest error – appeal dismissed

CRIMINAL LAW - sentence - unauthorised possession of firearms in aggravated circumstances - applicant a collector - no criminal intent - relevance of previous convictions for possession of firearms - whether sentence manifestly excessive

APPEAL AND NEW TRIAL – application for leave to appeal – unreliability of oral evidence found by primary judge – primary judge’s findings based on objective factors - TORTS – deceit – whether elements proved – whether signature appended to contract of sale of property fraudulently and without authority of beneficial owner - DAMAGES – assessment of damages – tort of deceit – whether primary judge erred in awarding compensatory and exemplary damages - PROFESSIONS – solicitor – wrongfully witnessing X signing Y’s name as witnessing Y’s signature – responsibility for litigation

EQUITY - equitable remedies - injunctions - interlocutory injunctions - whether injunction should be varied - whether material change of circumstances since injunction granted - whether injunction too widely framed - construction of the order made - form of order clarified and varied.

CORPORATIONS - previous orders made by Barrett J for confidentiality of evidence and reasons given on application by special purpose liquidator in respect of appointment and entry into agreements - application by committee of inspection for access to confidential evidence and reasons - application to stay and set aside orders - issues should be determined by Court of Appeal - removal of proceedings to Court of Appeal under Uniform Civil Procedure Rules, r 1.21 - relevant proceedings for removal under r 1.21

PROCEDURE - legal professional privilege - advice given by in-house solicitor - both legal advice, commercial advice and comment - independence of solicitor - legal advice privileged, commercial advice and comment not privileged - communication between defendants and solicitor used as basis for affidavit sworn by solicitor to defend plaintiff's claim for summary judgment - waiver in defendants' communication thereby established

DE FACTO RELATIONSHIP - Property adjustment - Contributions of other family members - Constructive trust claimed over share of property held by Defendant's brother

Workers Compensation — Workplace Injury Management and Workers Compensation Act 1998 — medical assessment certificate — whether failure by approved medical specialist to give reasons — whether constructive failure to exercise jurisdiction

PROCEDURE - vexatious litigant - notice of motion seeking leave to file amended statement of claim in District Court proceedings

Procedure - transfer of proceedings from District Court to Supreme Court - whether relief available in District Court

PRACTICE AND PROCEDURE - notice of motion seeking summary judgment - loan - guarantee - whether clauses in guarantee agreement preclude set-off - whether any triable issues - whether plaintiff entitled to summary judgment - whether cross claim should be struck out.

CAVEAT – DEFECT – whether caveator’s claimed interest as equitable mortgagee by subrogation sufficiently described in caveat as “constructive trust” – whether defect fatal. - LEAVE UNDER s 74O – whether new caveat would be abuse of caveat procedure – no evidence from caveator’s director – two previous and contradictory statements of director as to transaction. - PROCEDURE – whether, at conclusion of hearing, adjournment should be granted to allow new evidence.

PROCEDURE - adjournment - defendant's financial position - whether any likelihood of his obtaining funds - hearing in eight days time - no preparation by defendant in two months available - adjournment refused

Family Provision. Application by daughter of first marriage. Small estate passes by survivorship to second husband who was with deceased for 37 years. Application dismissed. Consideration of husband's conduct in contrast to a long marriage.

TORT - damages - Anshun estoppel - abuse of process.

COSTS - Contempt proceedings initiated but subsequently withdrawn - Respondent initially failed to comply with subpoena - Indemnity costs order in favour of Plaintiff.

CRIMINAL LAW AND PROCEDURE - Sentence - Assault occasioning actual bodily harm and affray - Offences arising out of same events - Election by Director of Public Prosecutions to remove from Local Court - Inhibition on so doing in respect of one charge by reason of plea and tender of facts in Local Court - Error in perception that sentence restricted to jurisdictional limit of Local Court on elected charge - No requirement for restraint to Local Court level of available maximum to avoid double punishment - Significantly high level of objective criminality

CRIMINAL LAW - sentence appeal - drug offence - availability of sentence other than full time custody.

CRIMINAL LAW - sentence appeal - escape from custody - consideration of claim for discounts for remorse, assistance and ill health.

CORPORATIONS - statutory derivative action - application under s 237 Corporations Act 2001 (Cth) for leave to bring proceedings on behalf of two companies by way of cross-claim - grant of application would have given rise to conflict of duties - grant of leave not in the best interests of the companies - APPEAL - whether appeal lies as of right - order dismissing application under s 237 Corporations Act 2001 (Cth) for leave to bring proceedings on behalf of two companies - statutory derivative action - lower court decision interlocutory - leave to appeal required

CONTRACT – Franchise agreement – Franchise fees in certain circumstances based on “reasonable estimates” by franchisor – Whether franchisor established its estimates were reasonable.

PROCEDURE - judgments and orders - amending, varying and setting aside - leave sought by Fourth Cross Defendant to amend defence - question of proportionate liability - concurrent wrongdoer - whether Part 4 of the Civil Liability Act applies - proportionate liability provisions do not apply - failure to plead reliance on these provisions in defence - Part 4 of the Civil Liability Act must be pleaded by defendant - late amendment - leave refused - TORTS - negligence - apportionment of responsibility and damages - PROCEDURE - costs - departing from the general rule - conduct of parties - orders made

CRIMINAL LAW - procedure - fitness to plead or be tried - charge of murder - Accused suffering from Treatment-resistant Schizophrenia - Accused unfit to be tried.

PLEADINGS - Application to strike out claims alleged to be the subject of findings in previous proceedings - whether plaintiff entitled to bring a claim under s 1324 of the Corporations Act - various other claims

ESTOPPEL - estoppel in pais - equitable estoppel - general principles – ESTOPPEL - estoppel in pais - matters against which estoppel does not prevail - statutory provisions – where by statute council can consent to erection of structures on a public road but consent is revocable at any time and for any reason – consent cannot be made irrevocable by estoppel – ESTOPPEL - estoppel in pais - application of doctrine to public authorities – roads authorities – ESTOPPEL - estoppel in pais - who are bound – authority of defendant’s agent – within reasonable limits, those to whom a party entrusts the conduct of negotiations must be treated as having the authority, which, within the course of the negotiations, they purport to exercise

CONTRACT - claim for damages for breach of contract, deceit and misleading and deceptive conduct under the Fair Trading Act 1987 - claim by builder against alleged guarantors of building contract - denial that guarantees provided - held that guarantees provided - whether guarantors entitled to deny or reduce claim upon basis available to principal debtor - principal debtor a company in liquidation and not party to proceedings - Plaintiff entitled to compensatory damages - no basis for denying or reducing award of compensatory damages - claim for exemplary damages - whether conduct of Defendants demonstrated contumelious disregard for rights of Plaintiff - exemplary damages awarded

ADMINISTRATIVE LAW - Judicial review - Workers compensation - Assessment of impairment - Appeal against decision of registrar, approved medical specialist and medical appeal panel

CRIMINAL LAW - procedure - miscellaneous powers of courts and judges - suppression orders - non-publication of information identifying deceased child and siblings

PRACTICE – Appeal – Application for security for costs – Whether special circumstances shown.

PROCEDURE – Application to reopen appeal and for stay – Application refused.

JURIES – defamation – issue of identification of plaintiff as a person referred to in the matter complained of – counsel's address to jury – use of evidence given by plaintiff of conversations with a series of people on the day of publication – where counsel addressed to suggest plaintiff identified by such evidence – whether submission available in light of earlier discussion concerning conduct of the trial – EVIDENCE – defamation - issue of identification of plaintiff as a person referred to in the matter complained of - admissibility of evidence of declarations made out of court for the purpose of identification – application for correcting address or direction to jury refused.