Cases and authorities

CONTRACTS – general contractual principles - construction and interpretation of contracts - assignment of rights in connection with patents – application for patent of further invention – whether failure to assign patent application breached the assignment agreement - CONTRACTS - general contractual principles - construction and interpretation of contracts – agreement to settle litigation– non-disparagement clause - whether breach of the settlement agreement in comments made about efficacy of first invention – legitimate expression of scientific views – no tendency to injure or damage the reputation of the invention - CONTRACTS – penalties –– characterisation of agreed sum owing on breach of agreement to settle litigation - acceleration of payments of deferred settlement upon breach - whether clause characterised as a penalty – objective intention of the parties - clause intended to operate as a deterrent against the breach of the contract by coercing compliance – penalty clause void and unenforceable

FEDERAL JURISDICTION – Federal jurisdiction exercised by State Courts – Admiralty and maritime jurisdiction – matter arising under a law of the Parliament - TORTS - negligence – duty of care – duty of ship owner and operator to stevedore – duty to exercise care in respect of the safety of stevedores coming on board ship in order to undertake loading and unloading – nature and scope of duty - relationship between obligations under the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) and the common law duty of care – no statutory cause of action – impact on duty of care of delegated legislation imposing conformable obligations on another person – Marine Orders Part 32 under Navigation Act 1912 (Cth) – Marine Orders do not terminate the duty of care - TORTS - negligence – breach of duty - breach in failing to sweep the iron ore slurry from the deck – breach in failure to direct use of other side of the deck - breach not a failure to warn - evidence before primary judge supported finding of breach Admiralty Act 1988 (Cth) s 4(3)(c) Judiciary Act 1903 (Cth) – s 79 – s 80 Navigation Act 1912 (Cth) – Marine Orders Part 32 Occupational Health and Safety Act (Maritime Industry) 1993 (Cth) – s11 – s13

APPEAL – civil – appeal from final orders – nature of appeal – rehearing – combination of objective and oral evidence – significance of matters of credibility – de facto relationship – whether open to Court of Appeal to reassess factual findings - FAMILY LAW – de facto relationship – intestate death – grant of letters of administration – relationship of thirteen years duration – evidence of sexual relationship – evidence of business partnership – evidence of infidelity of deceased throughout duration of relationship – evidence of preliminary steps to reduce extent of financial inter-mingling – evidence of deceased’s intention to marry another woman in future – whether deceased and appellant in de facto relationship for period greater than two years at time of death - Probate and Administration Act 1898 (NSW), s 61B – Property (Relationships) Act 1984 (NSW), s 4 - WORDS AND PHRASES – “de facto spouse” – “live together as a couple” – “mutual commitment to shared life”

CONTRACT – vendor and purchaser suit – plaintiff resells property after contract terminated for purchaser’s breach – claims loss on resale – purchaser contends that vendor failed to take reasonable steps in reselling the property – GUARANTEE – director of purchaser provides guarantee for purchaser’s obligations – name of purchaser under the contract left blank in guarantee – whether guarantee void for uncertainty

DAMAGES - motor vehicle accident - damages for commercial domestic assistance - gratuitous assistance currently provided - only slight chance of plaintiff needing commercial assistance as a result of injuries suffered in the accident - whether damages for commercial assistance warranted - Motor Accidents Compensation Act 1999, s128 - DAMAGES - future economic loss - loss of earning capacity - speculative possibility only of plaintiff having earned significant income but for the accident - whether damages for loss of capacity warranted

PROCEDURE – Dismissal of proceedings for want of prosecution – Application for leave to appeal – Whether discretion to dismiss proceedings miscarried – Whether denial of procedural fairness – Where delay gave rise to presumptive prejudice

CORPORATIONS - orders under s 1323 - where civil proceedings under Corporations Act commenced by company - freezing orders made in separate s 1323 proceedings against certain defendants on application of ASIC - application by ASIC for continuation of orders - where those defendants consent to the making of like orders in the separate proceedings commenced by the company - whether it is therefore no longer "necessary or desirable" to make orders sought by ASIC

CONTEMPT OF COURT - defendants restrained by orders of Grove J from contracting for or undertaking residential building work - whether first defendant in breach of those orders

SUCCESSION – FAMILY PROVISION – COSTS – Whether unsuccessful claimant should have costs out of estate or no adverse costs order – whether costs should follow event – principles – discretionary factors – excessive costs incurred – significance of Practice Note SC Eq 7.

CONTRACT – construction – joint venture agreement under which joint venturers in the development of real estate agreed that a company related to one of them will be appointed exclusive agent to market the development – parties appoint the agent to be exclusive for a limited period – one joint venturer proposes additional agent after expiry of exclusive period which other party rejects – whether on the proper construction of the agreement the party rejecting the proposal is in breach – PRACTICE AND PROCEDURE – declaratory relief – both parties claim declarations as to the operation of the agreement – lack of utility – declarations refused - DAMAGES – loss of opportunity – requirements for – plaintiff failed to establish breach or any damage arising from conduct complained of

PROTECTIVE JURISDICTION – COSTS – Plaintiff brings application for protection of elderly and infirm person – allegations of manipulation by third party – Defendant dies before application heard on merits – whether Plaintiff should pay costs of application to Defendant’s estate or have her costs out of estate – discretion – principles.

CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand - whether genuine dispute as to existence of each of several debts referred to in the demand - two debts said to be "as per" letter alleged by defendant to have contractual force - whether letter in terms contractual - whether director of plaintiff had authority to commit to any such contract - plausible contentions in the negative on each matter - genuine dispute therefore established - where debt said to be due under earlier contract - question of construction of that contract regarding the word "acquisition" used in the context of a takeover bid - plausible contentions in support of each of two possible meanings - the question of construction is not suitable for determination on this application - genuine dispute therefore established - where company's response to invoice was to say that it thought relevant work was covered by fees paid earlier and to seek further particulars - no particulars given - genuine dispute therefore established

PRACTICE AND PROCEDURE – defamation – proceedings due to commence for hearing with an estimate of between 10 and 15 days – where plaintiffs represented by solicitors whose retainer is terminated on the morning of the first day of the hearing – where plaintiffs seek adjournment in order to retain new solicitors - where defendants are not implicated in the reasons for the adjournment sought – whether in the interests of justice to grant application – adjournment refused

MISLEADING OR DECEPTIVE CONDUCT – INJUNCTION – whether ex parte mandatory and negative injunctions should be continued.

TORTS - negligence – professional negligence – alleged work accident– appellant’s workers’ compensation proceedings against employer settled - appellant alleged respondent failed to advise him as to his common law rights against his employer – trial judge found that appellant did not sustain a work accident –trial judge found that the appellant’s allegation of a work accident was made fraudulently – trial judge found that where a claim is made fraudulently no damages should be awarded - trial judge’s findings upheld

DEFAMATION – trial by judge alone on all issues – email sent to plaintiff and 14 recipients – defences – justification – whether imputations that the plaintiff was incompetent, dishonest, untrustworthy, and responsible for the school’s low education standard were true – common law qualified privilege – information volunteered – whether reciprocity of interest established – whether occasion of qualified privilege – malice – whether publication actuated by improper motive – fair comment and honest opinion – whether the words were comment or statements of fact – whether aggravated damages – assessment of damages

PROCEDURE – Leave sought to adduce additional evidence – Where evidence available at trial – Where high probability of different outcome not established - SUCCESSION – Family provision and maintenance – No provision made for appellant – Where appellant is son of deceased – Where appellant unilaterally abandoned relationship with deceased – Where appellant displayed hostility toward deceased – No contact between appellant and deceased for 14 years - Whether open to Trial Judge to find no “other special circumstances” present

TORTS - Negligence - workplace incident- bulldozer reversed over worker- whether safe system of work- whether bulldozer driver negligent- whether contributory negligence on part of injured worker- challenge to trial judge's findings. - TORTS - Negligence- road accident- whether bulldozer is a "motor vehicle" for the purposes of the Motor Accidents Compensation Act 1999- by majority it is not- Whether bulldozer is a vehicle determines whether duty of care is of employer to employee or of driver to pedestrian- operation of motor accidents legislative scheme and worker's compensation scheme. - WORDS AND PHRASES- "motor vehicle"- "vehicle".

PROCEDURE - transfer of proceedings - cross-claim in local court proceedings brings matter beyond monetary jurisdiction of local court - consideration of jurisdiction of District Court - sufficient doubt as to whether District Court would have jurisdiction - proceedings transferred to Supreme Court

PROCEDURE - plaintiffs seek stay of orders until determination of appeal - consideration of litigation history - plaintiffs do not have reasonable prospect of success on appeal - application dismissed

EQUITY - equitable remedies - injunctions - application to restrain mortgagee sale of property – no serious question to be tried that plaintiff would be entitled to final relief – inadequacy of undertaking as to damages – balance of convenience does not favour granting injunction – application dismissed

CRIMINAL LAW - Sentence - manslaughter - finding of substantial impairment after trial - gravely affected by depression - general and specific deterrence - denunciation - need for custodial sentence.

Contempt of court — disobedience to court order — scandalising the court — order of superior courts — truth as defence to charge of scandalising the court — real risk as matter of practical reality of interfering with course of justice

COSTS - Appeal from decision of Local Court upholding challenge to retainer of solicitors - leave granted to plaintiff to file Notice of Discontinuance - authorisation of retainer of solicitors obtained between decision in Local Court and hearing of appeal - consideration of operation of UCPR 42.19 - appeal having no prospect of success - authorisation of appointment of solicitors should have been obtained before hearing in Local Court.

Criminal Law - sentences for murder and manslaughter - after pleas of guilty - unrelated offences - relevance of mental health of offender.

SUCCESSION – executors and administrators – rights, powers and duties – obligation of executors to investigate what amount of a loan, if any, remained owing to the testator on his death – insufficient evidence to ascertain what amount of loan was unpaid – obligation of executors to charge rent before sale of property - PROCEDURE – costs – costs on an indemnity basis not appropriate

CRIMINAL LAW - appeal against conviction - robbery in company - whether miscarriage of justice arising from Crown's refusal to call co-offender as a witness - co-offender pleaded guilty to lesser offence - called as witness in defence case - whether evidence admissible of offence to which he pleaded guilty - whether jury should have been discharged after appellant revealed that she had been in custody otherwise than in relation to offence charged

CRIMINAL LAW- appeals - appeal against conviction – fight in a bar between members of a group that entered a hotel and assaulted patrons and bar attendant- assault occasioning grievous bodily harm – CCTV of whole incident including views of the group entering and leaving the hotel tendered in evidence at the trial – where the issue of whether or not the appellant struck the blows that injured the victim remained unclear – whether appellant was a member of the group or associated with the person who appeared to have struck the blows that injured the victim – consequent alteration during trial to Crown case to add alternative count of joint criminal enterprise - whether appellant prejudiced by late change to Crown case – whether trial judge adequately summed-up to the jury on the defence case on the issue of the joint criminal enterprise – summing up did not explain the defence case on this issue – unfairness to the appellant – trial miscarried – new trial ordered.

CRIMINAL LAW - accused charged by ex-officio indictment with murder of his wife - objection to statement provided to police by accused in nature of a missing person's report - statement not tape-recorded - whether at the time accused "was or could reasonably have been suspected ... of having committed an offence" for purposes of s 281 of the Criminal Procedure Act 1986

Magistrates - Practice and Procedure - committal proceedings - cross-examination of witnesses - whether special reasons exist for witnesses to attend.

ADMINISTRATIVE LAW - judicial review - reviewable decisions and conduct - administrative tribunals – whether the Consumer, Trader and Tenancy Tribunal gave an erroneous ruling as to its jurisdiction - prerogative writs and orders – certiorari – no jurisdictional error found - plaintiff had reasonable opportunity to make submissions – no denial of procedural fairness - Chairperson’s decision whether or not to grant a rehearing is final under section 68 Consumer, Trader and Tenancy Tribunal Act 2001

CONTRACTS - General Contractual Principles - Discharge, Breach and Defences to Actions for Breach - contract for sale of business conducted in leased premises - whether plaintiff purchaser in breach of standard term to provide landlord with information - whether plaintiff entitled to rely on special term or standard term to rescind for failure of landlords' consent - whether both provisions conditional upon plaintiff providing the landlord with required information - whether plaintiff's notice of rescission invalid - vendor defendant elects to continue contract and then issues notice of termination - whether entitled to do so - whether defendant cross-claimant entitled to damages including balance of deposit and broker's fees - whether an order should be made in favour of the plaintiff under the Conveyancing Act 1919, s 55(2A)

CRIMINAL LAW - Sentence - Murder - spontaneous joint criminal enterprise to kill - mutilation of victim - markedly above mid range of objective gravity - moral culpability of offender affected by experience of sexual abuse by victim when offender an adolescent - little evidence of contrition - general deterrence - late pleas of guilty.

COSTS – successful appeal to the Court of Appeal – costs of hearing at first instance to be determined by trial judge – no matter of principle – plaintiff to pay the defendants' costs

LIMITATION OF ACTIONS – extension of limitation period – loss of realistic claim in contract against third party – witnesses no longer available or uncooperative – statements no substitute – actual prejudice – extension refused.

APPEAL – interlocutory order – meaning of “order” – whether an answer to a preliminary question of law is an “order” – Crimes (Appeal and Review) Act 2001, s 53(3)(b) - WORDS AND PHRASES - "order"

LEGAL PRACTITIONERS - Solicitors - Obligations of confidence - Plaintiff’s solicitor had acted for other parties against defendant in other proceedings raising similar issues - Those proceedings settled following mediation - Mediation agreement contained promise by parties not to disclose or use confidential information acquired in the course of the mediation - Whether plaintiff’s solicitor owed an obligation of confidence to defendant - Whether there was a threat of breach of that obligation sufficient to justify an injunction against the solicitor acting for the plaintiff - Whether there was a basis for such an injunction in the inherent jurisdiction of the court

TORTS - negligence –collision between a truck and a train at a level crossing – whether the truck driver had a clear view in the direction of the train – whether the truck driver kept a proper look out – the evidence established that the truck driver had a clear view and failed to keep a proper look out - TORTS - negligence –collision between a truck and a train at a level crossing –whether the train drivers should have applied the brakes earlier – the evidence did not establish that there was a reason for the train drivers to think that the truck was a danger or that the truck was not going to give way when the train was 500 metres from the level crossing – the evidence did not establish that the train drivers should have realised that there was a possibility of a collision 350 metres from the level crossing - the train drivers did not breach their duty of care - TORTS - negligence- collision between a truck and a train at a level crossing – stand of trees on the side of the highway before level crossing- whether the RTA breached its duty by omitting to remove the stand of trees – whether the stand of trees interfered with the truck driver’s ability to see the train and react earlier to the presence of the train – whether the stand of trees was a cause of the collision – it was not argued that the RTA had responsibility for removing the stand of trees -the evidence did not establish that the stand of trees was a cause of the accidentTORTS- negligence –collision between a truck and a train at a level crossing - whether the RTA was required to reduce the existing speed limit of the highway on the approach to the level crossing – whether the collision would have been avoided if the speed limit on the approach to the level crossing had been reduced – whether the truck driver would have reduced his speed had the speed limit been lower than it was – the evidence did not establish that reducing the speed limit would have prevented the collision – the evidence established that the truck driver would not have reduced his speed had the speed limit been lowered - COSTS - Bullock order – the appellants ordered to pay the RTA’s costs - whether the appellants should reimburse Pacific National for the RTA’s costs – whether the three conditions required for a Bullock order satisfied – whether the appellants’ conduct was such to make it fair to order the appellants to reimburse Pacific National – appellants’ conduct does not warrant the making of a Bullock order against it

PROCEDURE - vexatious litigant - plaintiff instituted proceedings against defendants despite order having been made restraining the plaintiff from instituting proceedings against defendants in any court without leave of the court - no leave given to institute proceedings - proceedings dismissed - indemnity costs awarded

FAMILY PROVISION – Claim by former de facto – On the evidence, not an eligible person because the relationship ended during the testatrix’ lifetime – consideration of merits of claim – If an eligible person, no provision would have been ordered. - TRUSTS AND TRUSTEES – Claim by former de facto to be entitled to a resulting trust of a half interest in the testatrix’ house failed for want of credible evidence of a contribution to purchase money.

PROCEDURE - costs - indemnity costs - late abandonment of an appeal - failure of successful party to give a warning that the appeal was hopeless - whether relevant delinquency or unreasonable conduct on the part of the appellant.

Contract - Deeds - Whether deed only in writing or alternatively only partly in writing - Mode of execution of document purporting to be a deed - Whether or not document invalid for formal reasons - Plaintiffs alternative case that by one of a number of routes that which purported to be signed as deed of release could simply be treated as a binding and enforceable agreement - Estoppel - Holding out-Masters and Cameron - Whether defendant entitled to have deed set aside or varied pursuant to section 87 Trade Practices Act - Principles informing decision as to whether or not an agreement that parties have entered into is wholly in writing or partly in writing and partly oral

Criminal Law - Conviction appeal - child sexual assault offences - evidence of complainant that conduct occurred whenever mother went out - whether context evidence - whether Judge ought to have given a warning against tendency reasoning - no request for any such warning - whether rule 4 applies - whether verdicts unreasonable.

CRIMINAL LAW - appeal against sentence - applicant pleaded guilty to 2 counts of aggravated dangerous driving causing grievous bodily harm - applicant suffered injuries - whether sentencing judge failed to take into account extra curial punishment of applicant into mitigation - sentencing judge adequately took into account the applicant’s injuries and the effect upon his health and experience in gaol - appeal dismissed

APPEAL – application for leave to appeal from refusal to strike out paragraphs of pleadings – whether refusal consistent with earlier judicial direction

COSTS – indemnity costs – offers of compromise – valid offer made by defendant/appellant prior to trial – damages awarded against defendant/appellant at trial – defendant/appellant successful on appeal – whether costs of trial payable by plaintiff/respondent on indemnity basis – Uniform Civil Procedure Rules 2005 (NSW), r 42.15A