Cases and authorities

TORTS – negligence – duty of care – workplace injury –duty of principal to independent contractor – duty arising from need for direction and coordination of activities – whether duty to control system of work of independent contractor – role of foreman – safe work method statements – no assumption of responsibility to supervise – no knowledge of dangerous use of equipment – no duty owed to control system of work - TORTS – negligence – breach of duty - workplace injury – non-delegable duty of employer owed to employee – failure to provide safe system of work - TORTS – negligence – contribution between defendants – apportionment of liability - misdirection in exercise of discretion – failure to give sufficient weight to non-delegable duty of employer to employee - TORTS – negligence – contributory negligence – experienced tradesperson – responsibility of employer to prepare safe work method statement – no error in assessment of contributory negligence - TORTS – negligence – damages – gratuitous attendant care services – Civil Liability Act 2002 (NSW) s 15 and Schedule 1 Part 11 – Civil Liability Legislation Amendment Act 2008 (NSW) – whether proceedings had been “determined” – amended provision applies – no evidence to satisfy the requirements of s 15 to allow award of damages for attendant care services - COSTS – Bullock order – maintenance of cross-claim – creation of uncertainty in identity of defendant – no error in exercising discretion

ABORIGINALS – land rights under legislation – claim to Crown land – whether lands needed or likely to be needed as residential lands or for essential public purpose of nature conservation – whether lands lawfully used or occupied – Aboriginal Land Rights Act 1983 (NSW), s 36(1) - ADMINISTRATIVE LAW – judicial review – jurisdictional error – conclusive certificates issued by Crown Lands Minister – decision based on briefing note – whether wrong question asked – whether mandatory relevant considerations taken into account – whether certificates void – Aboriginal Land Rights Act 1983 (NSW), s 36(8)

ADMINISTRATIVE LAW - premises licensed under Liquor Act 2007 - making of regulation which had effect of adding to conditions under which those premises could operate - judicial review - alleged irrationality in decision-making process leading up to making of regulation - whether irrationality and Wednesbury unreasonableness established - whether decision of Director General subject to judicial review on Wednesbury unreasonableness grounds - whether judicial review of regulation available on Wednesbury unreasonableness grounds.

TORTS - negligence - personal injury - defective concrete footboard - ankle injury - pre-existing injury - rice cultivation - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) - DAMAGES - whether damages assessed at common law or under the Civil Liability Act

CORPORATIONS - winding up in insolvency - statutory demand - claim for contract variations - proper construction of building contract - genuine dispute established - no issue of general principle

LIMITATION OF ACTIONS – postponement of the bar – extension of period – personal injury and compensation to relatives claims arising out of ship collision – solicitor’s failure to identify the relevant limitation period – no prejudice to the defendant – consideration of policy underlying limitation period

EQUITY – trusts and trustees – resulting trusts – where mother provided almost entire purchase price for property purchased in the name of her son – whether or not the presumption of advancement is rebutted – held that the presumption is rebutted - BAILMENTS – gratuitous bailment – where personal property placed with the defendant to be sold – failure to account for items sold – failure to return items not sold

CONVEYANCING - the contract and conditions of sale - other particular conditions - right to rescind if one party dies or becomes mentally ill - meaning of "become mentally ill" - purpose of clause - purchaser with long history of mental illness - mental illness known to purchaser but not disclosed at the date of contract - mental illness not impairing capacity - purported rescission by purchaser invalid - penalty - whether reduction in occupation fee if no default under contract was a penalty.

COSTS — application for findings of contempt of court — contempt by disobedience to court orders — contempt by scandalising the court — whether costs of interlocutory proceedings be payable forthwith

EQUITY – general principles – fiduciary obligations – fiduciary relationship arising between investment adviser and advisee – whether investment adviser has breached his fiduciary obligation when failing to properly advise about an investment in which he had a conflict of interest - CONTRACTS – loan agreement, dispute as to parties to and terms of agreement – agreement to invest funds in return for a ‘profit share’, dispute as to parties to and terms of agreement – agreement for payment of commission for assistance in sale of property, dispute as to terms of agreement, whether s 60 of Real Estate and Business Agents Act 1978 (WA) applicable – agreement by third party to pay or guarantee legal fees, dispute as to terms of agreement – agreement to purchase horse and share profit upon sale, dispute as to the purchase price and the sharing of costs - LIMITATION OF ACTIONS – claim for equitable damages for breach of fiduciary obligations – whether limitation period applies by analogy pursuant to s 23 of the Limitation Act 1969

INTERLOCUTORY INJUNCTION – BUILDING CONTRACT – BANK GUARANTEE – Defendant entitled to call on guarantee if it becomes entitled to exercise rights to security – serious question to be tried on construction of contract and whether Defendant entitled to exercise rights – balance of convenience favours grant of interlocutory injunction.

CRIMINAL LAW - sentence - child pornography - special circumstances

PROCEDURE – judgments and orders – amending orders – application to amend orders from dismissing appeal to allowing appeal – inherent jurisdiction of Court to correct order – Uniform Civil Procedure Rules 2005 (NSW), 36.17

ADMINISTRATIVE LAW – procedural fairness – hearing rule – cross-summons filed prior to hearing – whether reasonable opportunity to contest cross-summons – inconsistent pleadings – concession of existence of lease by claim that it should be set aside – denial of existence of lease – whether prejudice suffered by the appellant - COSTS – general rule – cross-summons partly successful – costs awarded against cross-defendant – serious allegation of improper conduct – relief in cross-summons awarded without examination of allegation – no finding of misconduct in making allegation – whether grounds for interfering with exercise of discretion - LANDLORD AND TENANT – leases and tenancy agreements – special conditions of lease – conditions highly favourable to tenant – tenant to become beneficial owner of two-thirds interest in leased property – tenant entitled to rental rebates for various services – whether conditions unjust in the circumstances – Contracts Review Act 1980 (NSW), s 7(1) - PROCEDURE – application to re-open hearing – application for equitable set-off and defence – not field or served prior to day of judgment – whether application ought to have been entertained - WORDS AND PHRASES – "residential tenancy agreement" – "special conditions"

Contempt - Penalties - Good Behaviour bonds appropriate - Costs - No usual rule that indemnity costs payable - In circumstances Defendants to pay costs of Plaintiffs on the ordinary basis - Defendants jointly and severally liable for such costs

INJUNCTIONS – Interlocutory injunctions – variation – where interlocutory injunction restrains completion of contracts for sale to third party – where contracts not impugned in proceedings – where seriously arguable case for final relief, but not final injunction to like effect to interlocutory injunction - where third party has issued notice to complete – where preservation of proceeds of sales will sufficiently protect plaintiff’s position.

AMENDMENT TO PLEADINGS – Application to amend Cross-Claim by guarantors (defendants) against lenders/mortgagees (cross-defendants) – issue as to whether the cross-claimant guarantors were to receive the benefit of the loan – relevant to relief sought under Contracts Review Act 1980 – true purpose of loan sought to be raised under proposed amendments – contrary to purpose disclosed in principal affidavit of first cross-claimant – APPLICATION RE EVIDENCE – to adduce new or additional evidence to explain circumstances in which a contrary or contradictory version as to the purpose of the loan was given by first cross-claimant in unrelated proceedings at an earlier time – issues of delay and need to recall witnesses and likelihood of a prolonged hearing resulting – application refused – principles enunciated in Aon Risk Services Australia Limited v Australian National University applied – EVIDENCE – whether certificate under s.128, Evidence Act 1995 may be given where potentially incriminating evidence sought to be led in cross-examination or re-examination – whether such evidence can be considered to be given under objection or willingly by the witness – held a s.128 certificate may not be given with respect to such evidence as foreshadowed on the application for leave

SUCCESSION - wills, probate and administration – declaration sought under s 18A Probate and Administration Act 1898 that document apparently signed by deceased is a testamentary document – document said to be written by friend of deceased and signed by deceased – experts identified dissimilarities between propounded signature and specimen signatures of deceased – forgery not established but suspicion not allayed – not satisfied that deceased intended propounded document to be his will – whether absence of alleged duplicate of will creates presumption of revocation in any event – application dismissed

BUILDING AND ENGINEERING CONTRACTS – construction – terms to be implied where contractual documents limited – whether implied term of fitness for purpose – performance – whether design defective – whether caused damage to constructed premises – whether subcontractors made representations to the principal – whether resultant liability of sub-contractors – remedies – damages – quantification – apportionment of damages between defendants – mitigation – whether plaintiff mitigated loss. - TORT – whether duty of care owed – whether plaintiff relevantly vulnerable – scope of duty – whether damage to building properly characterised as economic loss – causation – whether loss complained of caused by design or representations made by defendants – whether plaintiffs’ amendments to design a novus actus interveniens.

NEGLIGENCE – duty of care – plaintiff alleges he was injured whilst exercising at a gym under the supervision of a personal trainer– standard of care owed by the reasonable personal trainer and reasonable personal training studio – NEGLIGENCE – breach – whether exercises requested by trainer unreasonable in the circumstances – whether trainer was adequately supervised – whether program devised for plaintiff was unsafe and unsuitable – NEGLIGENCE – general principles – application of s 5B Civil Liability Act – NEGLIGENCE – causation – general principles – factual causation – application of s 5D Civil Liability Act – EVIDENCE – expert evidence – failure of expert to disclose reasoning by which conclusions were reached

PRACTICE AND PROCEDURE – application to transfer several proceedings from the District Court to the Supreme Court – where similar issues arise in proceedings in different courts – whether sufficient reason for hearing the proceedings in the Supreme Court – where the interests of justice are best served by transfer of the proceedings to the Supreme Court

DAMAGES - medical negligence - failure to diagnose heart condition leading to heart transplant - plaintiff's life expectancy after heart transplant - which statistics should be used - whether deduction for vicissitudes - economic loss - earnings of business - how contribution of wife should be treated - deduction for vicissitudes - non-economic loss.

CORPORATIONS – external administration - voluntary administration – deed of company arrangement – application by deed administrator for judicial advice – where administrator seeks permission to convene meeting to vary or terminate deed of company arrangement – whether appropriate to give advice sought – where conditions for termination under (CTH) Corporations Act 2001, s 445C(b), not satisfied – where variation would be amenable to challenge in adversarial litigation – held, inappropriate to give advice

CRIMINAL LAW – procedure – sexual assault against children– admissibility of evidence – application to cross examine complainant about sexual experience – evidence of other sexual activity over period of offences - Criminal Procedure Act NSW 1986 (NSW) s 293(4)(a) – “connected set of circumstances” – whether motivation to fabricate allegations - whether miscarriage of justice – prejudice given corroborative nature of evidence – matter not argued in terms below – no miscarriage of discretion in refusing to admit evidence - CRIMINAL LAW – procedure – sexual assault against children– admissibility of evidence – application to cross examine complainant about sexual experience – evidence of other sexual abuse by another adult - Criminal Procedure Act 1986 (NSW) s 293(4)(a) – whether sexual activity occurred “at or about the time” – whether temporal requirement question of fact that should be left to jury – temporal requirement to be assessed by judge and finding made – no miscarriage of discretion in refusing to admit evidence - CRIMINAL LAW – appeal against conviction – sexual assault - comments of Crown to jury in contradiction with evidence inadmissible under Criminal Procedure Act 1986 (NSW) s 293 – whether trial unfair – s 293 rulings should not be used to create misleading factual and evidentiary framework for jury – substantial miscarriage of justice – appeal allowed - Criminal Procedure Act 1986 (NSW) – s 293

COSTS - proceedings involving s 151Z Workers Compensation Act 1987 - appropriate costs orders on cross-claim by third party against employer for joint tortfeasor contribution - whether third party entitled to costs of cross-claim - whether cross defendant employer should contribute to costs payable by third party to worker - whether Offer of Compromise entitled employer to costs on indemnity basis in separate proceedings brought against third party for indemnity in respect of workers compensation payments made to worker

PROCEDURE - judgments and orders - summary dismissal - strike out of pleading - claim by former student at TAFE against teachers and supervisors - claim based on breach of TAFE policies - tort of privacy - misfeasance in public office.

CONTRACTS - whether contract of guarantee and security formed - turns on own facts - no question of principle

ADMINISTRATIVE LAW - judicial review - role of proper officer of Motor Accidents Authority of NSW on application for review of medical assessment

CRIMINAL LAW - sentence - murder - killing of 2 year old child by mother - disposal of body in a pond

APPEAL AND NEW TRIAL - appeal - whether appeal raises questions of law - sale of goods - whether claimed transactions established - documentary evidence - section 183 of the Evidence Act 1995 - Jones v Dunkel inferences - whether nemo dat quad non habit rule arose - appeal dismissed

PROCEDURE - funds in court - application for payment of funds out of court - two applicants - matters to be established - some matters not yet made out - no order for payment made

ENVIRONMENT AND PLANNING – development control – prohibited development – shops prohibited by zoning table – proviso to definition of shop – proviso consisting of building or place elsewhere specifically defined or place used for land use elsewhere specifically defined – general store defined as type of shop – whether general store falls within scope of proviso - STATUTORY INTERPRETATION – environment and planning – overall context of planning instrument – identification of coherent theme or policy underlying instrument – whether anomaly in interaction of definitional and substantive provisions – whether operation of definition should be denied within specific substantive provision - WORDS AND PHRASES – "building or place" – "general store" – "prohibited development" – "shop"

EQUITY - General Principles and Maxims of Equity - rectification of lease variation - provision defining outgoings "in the lease commencing 1 February 2006" - lease commenced 1 February 2005 - whether common intention of parties that earlier date applied - whether subsequent oral agreement that later date applied - whether obligation to pay outgoings to be implied and as an essential term - CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - whether change in shareholding of plaintiff lessee without consent of defendant lessor in breach - whether keeping a dog on premises in breach - whether refusal of access to a building inspector in breach - whether failure to take out insurance policies approved by defendant in breach of essential term - LANDLORD AND TENANT - Termination of Tenancy - defendant restrained from re-entry for breach - whether acceptance of rent and outgoings and insistence on taking out insurance policies in accordance with lease a waiver of notice under the Conveyancing Act 1919, s 129 - calculation of rent and outgoings in arrears difficult - whether an account to be taken by an Associate Judge - whether plaintiff should be relieved from forfeiture of lease

Family Provision. Application by an 18 year old daughter who had little contact with deceased after age of 3 months. Order for provision varying results on intestacy to also increase provision for two other daughters of deceased.

PROCEDURE - miscellaneous procedural matters – application for separate determination of liability and causation from the other issues in the trial pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 - TORTS - negligence - essentials of action for negligence - where economic or financial loss - careless advice, statements and non-disclosure - particular persons and situations - professional advisers – general - first plaintiff claims she was not advised pregnancy was at high risk for Down syndrome and deprived of the opportunity to discontinue the pregnancy

[REFEREES] - Adoption of Report - Whether Referees' applied inappropriate test - Whether Referees' erred in rejecting expert evidence

ADMINISTRATIVE LAW - prerogative writs and orders – certiorari – error of law – operation of sections 61 and 62 of the Motor Accidents Compensation Act 1999 - whether the Claims Assessor of the Motor Accidents Authority of New South Wales should consider the question of procedural fairness when making a determination whether to refer a matter for further medical assessment - the decision of the Claims Assessor was vitiated by jurisdictional error - Matter remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law

[EQUITY] - [BUILDING SCHEMES] - Whether common building scheme exists in Estate - Whether breach of covenant - Whether plaintiff entitled to relief

Practice and Procedure - Late application to rely on new affidavits out of time - Aon Risk Services provides the relevant touchstone

APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of court below - appeal from Local Court Order pursuant to ss 6, 7 and 8 of the Dividing Fences Act1991 - ss 39, 40 and 41 Local Court Act 2007 - QUESTION OF LAW - question of procedural fairness - mixed question of law and fact - leave to appeal a question of mixed fact and law refused - no denial of procedural fairness - appeal dismissed

Corporations Act. Application to set aside statutory demand under s 459 G of the Corporations Act. Debts for another related creditor included in demand. Demand varied.

TORTS – joint tortfeasors – successive defamation proceedings by plaintiff against different defendants – first proceedings settled in plaintiff's favour and judgment satisfied – second proceedings dismissed as abuse of process – whether claim in second proceedings brought in respect of “damage” claimed in first proceedings – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(b) - STATUTORY INTERPRETATION – acts of parliament – interpretation – meaning of “damage” – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(b) - STATUTORY INTERPRETATION – regulations – whether second proceedings abuse of process where defendant in second proceedings does not assert plaintiff fully recouped loss through settlement of first proceedings – Uniform Civil Procedure Rules 2005 (NSW), 13.4(1) - APPEAL – appeal – points and objections not taken below – trial conducted on common ground that second proceedings were an abuse of process if s 5(1)(b) applied – whether appellant should be permitted to repudiate that position on appeal - APPEAL – appeal – right of appeal – whether dismissal of proceedings as abuse of process final or interlocutory judgment – whether appeal involved matter amounting to $100,000 or more – Supreme Court Act 1970 (NSW), s 101(2)(r) - WORDS AND PHRASES – “damage”

ADMINISTRATIVE LAW - procedural fairness - application in the Administrative Decisions Tribunal for leave to proceed with complaint of racial vilification - misunderstanding of Tribunal's decision by complainant - whether Tribunal denied complainant procedural fairness

COSTS AND SUBSEQUENT ORDERS - parties submitted proposed orders - whether proposed orders appropriate - directions hearing required to determine appropriateness of orders

INDUSTRIAL ARBITRATION (NSW) – conciliation – member of Commission attempting conciliation – Full Bench giving directions in aid of conciliation by one member – other members had not attempted conciliation – not disqualified – Industrial Relations Act s 173. - JUDGES – disqualification – judge attempted conciliation – Full Bench giving directions in aid of conciliation by one member – other judges not attempting conciliation – other judges not disqualified – Industrial Relations Act s 173.

CONTRACTS - terms of a commercial agreement recorded in a handwritten note - whether parties signing the note intended to conclude an enforceable bargain - significance of a statement that a solicitor would have to draft an agreement properly - whether the parties needed agreement as to all terms necessary to conclude a contract

Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Act. No dispute established. Proceedings dismissed. No matter of principle.