Cases and authorities

TORTS - negligence - driver of semitrailer from which fuel leaked on to road held negligent in not stopping to check vehicle after hearing and feeling impact of rock or other object - obligation to give warning over two-way radio - causation issues considered

BANKRUPTCY – deed of arrangement – debtor assigns to trustee debtor’s rights under directors’ liability insurance policy – termination of deed of arrangement – whether trustee entitled to maintain proceedings against insurer to enforce indemnity notwithstanding termination of deed of arrangement. - ASSIGNMENT – effectiveness at law of assignment of a chose in action – whether assignment “absolute” for the purposes of s 12 of the Conveyancing Act 1919 (NSW) – application of test that an assignment, in order to be absolute, must be unconditional.

CRIMINAL LAW - sentence - murder and manslaughter - starvation of daughter - worse case category of both offences

CRIMINAL LAW - appeal - application for an inquiry - application rejected

EQUITY – equitable remedies – injunctions – application for interlocutory injunction – application of general principles to facts and circumstances – where plaintiff claims entitlement to beneficial ownership of 100% of shares in company, two-thirds of which shares have been transferred to the defendants

ADMINISTRATIVE LAW – Medical Assessment under Motor Accidents Compensation Act 1999 – error of law in applying the principles of causation – construction of "additional relevant information about injury" for purpose of reference for further medical assessment – errors of law disclosed – orders issued

GUARANTEE AND INDEMNITY - discharge of surety - departure from terms of contract with surety - whether arrangement was guarantee or indemnity - whether the principle in Ankar Pty Ltd v National Westminster Finance applies to indemnities - whether obligation a condition or essential term - whether the condition breached by the party indemnified. COSTS - appeal from Local Court - appeal succeeds on ground not argued in court below - abandonment by appellant of original grounds of appeal - appropriate costs order.

JUDGMENTS – enforcement proceedings – effect of bankruptcy – provable debt – judgment for damages and costs against debtor made before bankruptcy – enforcement only in accordance with Bankruptcy Act 1966 (Cth)

Practice and Procedure - application to vary consent orders providing for a stay of execution of orders until the conclusion of any and all appeals and for the provision of security - subsequent withdrawal of many grounds of appeal - whether jurisdiction to vary consent orders to permit execution of judgments no longer challenged and to allow plaintiffs to reduce their bank guarantee – whether jurisdiction should be exercised

APPEAL – exercise of discretion below – costs – arguable issue of principle – leave refused - COSTS – appeal – ordinary rule that costs follow the event – issue of event – primary judge exercises discretion for perceived unreasonable conduct – leave to appeal refused

COSTS - interest on costs after judgment

CORPORATIONS – Directors – Disqualification from managing a corporation – Whether to grant stay of disqualification orders pending appeal – Stay application not occasion for detailed consideration of merits of appeal – Whether significant repair to damaged reputation worked by granting stay – Whether failure to grant stay would cause significant and irreversible prejudice and damage if appeal succeeded – Stay refused

PROCEDURE – Costs – General rule – Costs follow the event – Remittal of question of costs at first instance to Land and Environment Court – Costs of Appeal – Appellant’s proceedings and appeal against second respondent based on a false assumption that a construction certificate was required to be issued – Departing from the general rule – Where significant amount of costs thrown away due to successful appellant’s conduct of litigation through advancing legally false issue – Evaluation of proportion of costs to be awarded to successful appellant – Entitlement of falsely joined party to costs

INTEREST - where equitable relief or fiduciary relationship - calculation of interest up to judgment

EQUITY - equitable remedies - freezing orders - application to amend existing freezing orders to permit payment of defendant's legal expenses and business expenses - proven legal fees reasonable and freezing orders varied - insufficient material available to provide for variation to freezing orders to allow payment of the defendant's business expenses

PROCEDURE – application for leave to reopen – general principles – whether or not the plaintiff had been heard on the applicability of a reasonable precautions condition and professional services exclusion to Section 2 cover

PROCEDURE - courts and judges generally - judges - dismissal of proceedings for want of prosecution - self executing order made dismissing the proceedings if orders of Court not complied with by specified date - costs on indemnity basis

Family Provison. Application under Family Provision Act 1982 by a son who was left out of the will. Order for small legacy. Costs of the plaintiff capped at amount of legacy. No matter of principle.

CRIMINAL LAW - sentence - attempt to strangle with intent to inflict grievous bodily harm - relevance of nature and extent of injuries caused - moderation of sentence by reason of offender's mental condition - whether sentence manifestly excessive

Criminal law - sentencing - Crown appeal - escape from lawful custody and related offences - "special circumstances" - manner in which sentences structured - application of the principle of totality

CRIMINAL LAW - sentence - malicious wounding with intent to inflict grievous bodily harm - existence of mental disorder and whether judge erred by not taking into account - error in finding mid range seriousness by having regard to injuries that were not wounds - whether sentence manifestly excessive

CRIMINAL LAW - appeal against sentence - offences under Commonwealth Criminal Code and Drug Misuse and Trafficking Act (NSW) - traffic commercial quantity of a controlled drug - supply commercial quantity of a prohibited drug - parity with co-offender sentenced in Queensland - partial accumulation of sentences

ORDERS - additional orders consequent on primary judgment - costs of proceedings below - certificate under Suitors' Fund Act 1951

Practice and Procedure - Late application to amend pleadings - Importance of defendant not being required to respond on the run to pleading amendments - Principled exercise of relevant discretion to refuse the application for leave to further amend defendant's pleadings

PRACTICE AND PROCEDURE – pleadings – whether statutory and common law defences to negligence adequately pleaded - NEGLIGENCE – breach – whether owner and/or occupier negligent where stairs not clearly delineated – whether placement of sign contributed to risk of the plaintiff failing to notice stairs - NEGLIGENCE – whether risk was an obvious risk – whether obviousness of risk under s 5F of the Civil Liability Act is relevant to questions of breach of duty under the common law – whether a finding that the risk was obvious precludes a finding of liability in negligence - NEGLIGENCE – defences – voluntary assumption of risk - NEGLIGENCE – defences – s 5H defence – no proactive duty to warn of obvious risk – whether risk was obvious - NEGLIGENCE – defences – s 5I defence – whether risk was an inherent risk - NEGLIGENCE – defences – s 5K defence – whether activity engaged in was a dangerous recreational activity - NEGLIGENCE – defences – contributory negligence – whether plaintiff contributed to harm by contributory negligence - WORKER’S COMPENSATION – whether employer entitled to indemnity from tortfeasor – whether employer entitled to interest on workers compensation payments made to plaintiff

Plaintiff entitled to Disablement benefit under the Fund Rules from about 15 November 1999, being first decision refusing plaintiff such benefit - this and subsequent decisions of March 2000 and February 2001 set aside due to lack of genuine decision making and declared void and of no effect - refusal of Fund's Trustee to further consider plaintiff's claim for disablement benefit on 24 February 2006 was void and of no effect - Court executes Trust - Trustee subsequently accepting plaintiff's claim to disablement benefit upon receipt of further medical reports - refusal of compound interest as serious misconduct on part of Trustee not established - commercial rates of interest not granted - Plaintiff held entitled to interest at Trustee rate of interest of 8% per annum - Calderbank offer - conduct of defendant not unreasonable - costs awarded on an ordinary basis

EQUITY – general principles – unconscientious dealing – where plaintiff claims transfer of property to defendants at an undervalue of about 15% in return for discharge of defendants’ mortgage brought about by unconscientious dealing – whether plaintiff subject to a special disadvantage – where plaintiff psychotic and depressed, alcoholic and in poor financial circumstances - whether plaintiff unable to conserve his own interests or vulnerable to exploitation – where psychosis not related to transaction – where transaction not complex - whether illness, circumstances and lack of advice exposed plaintiff to exploitation – held: plaintiff not at special disadvantage - EQUITY – general principles – undue influence – where plaintiff claims transfer of property brought about by undue influence – categories of presumed influence – parent/child relationship – whether child continues to be under control of parent – whether child “emancipated” – 38 year-old adult living independently – held: emancipated from mother’s influence - “Proved” relationships of influence – where not established that plaintiff reposed trust and confidence in or relied unquestioningly on advice of defendants – where defendants had power over plaintiff as mortgagee of his property - held: powers of defendants arose from status as mortgagee and not from relationship of influence - EQUITY – Laches and Delay – whether plaintiff had sufficient knowledge of facts founding potential claim for equitable relief - whether plaintiff’s delay in bringing action caused defendants to change position – where defendants would not have provided financial assistance to plaintiff had they known transaction was impugned – held: plaintiff disentitled to equitable relief by laches - EQUITY – Remedies – where prima facie remedy is avoidance of transaction subject to reinstatement of defendants’ mortgage – where prima facie remedy would be inequitable – minimum equity necessary to do justice would be the difference between market value and mortgage debt at date of transaction plus interest.

COURTS AND JUDGES – bias – disqualification – apprehended bias – same judicial officer concluding proceedings after remitter from appeal court – no prejudgment – no basis for reasonable apprehension – only procedural issue remaining

CONTRACTS - General Contractual Principles - Novation - defendant brokers provided services to plaintiff - change to provide services "through" companies - plaintiff treated companies as the service providers and paid commissions to them - whether companies substituted for brokers by novation - whether dual obligations of brokers and companies and services not provided "by" companies - whether brokers or companies liable to pay assessed damages arising from events after companies substituted for brokers - PROCEDURE - Costs - 13 defendants made offer of compromise - offer expired without being accepted - during trial plaintiffs settled with 6 defendants - whether "severance" rendered the offer of compromise ineffective - whether order or judgment less favourable than offer of compromise - whether Uniform Civil Procedure Rules 2005, Pt 20 r 20.26 is the corresponding provision to Supreme Court Rules 1970, Pt 22 r 1A for the purpose of the Civil Procedure Act 2005, Sch 6, cl 10(b) such that the offer of compromise is deemed to have been done under Pt 20 r 20.26 - whether discretion should be exercised against indemnity costs under the Uniform Civil Procedure Rules, Pt 42 r 42.15(2)

CONTRACT – loan – debtor defaults in payment of interest – creditors terminate loan agreement – creditors entitled to judgment for amount of interest payments accrued due before termination and damages for loss of bargain – REAL PROPERTY – claim under s 228 of the Property Law Act 1974 (Qld) (“the Act”) that alienation of property was made with intent to defraud creditors – second defendant and her deceased husband owned real property as joint tenants – deceased transferred his interest to second defendant – transfer records that consideration was natural love and affection – at the time deceased owed plaintiffs significant sum of money – order sought for retransfer to the deceased estate of his interest – second defendant put that order for retransfer would be of no utility because on retransfer deceased share would pass to her by right of survivorship – second defendant also asserts that interest was conveyed to her for valuable consideration and in good faith under s 228(3) of the Act – held transfer with fraudulent intent established – order is of utility – Court can achieve the effect of avoiding the alienation by appropriate measures in the particular case – held second defendant failed to make out transfer was for valuable consideration and in good faith.

EQUITY – equitable remedies – injunctions – application to restrain company meeting from considering resolutions - serious question to be tried – significance of absence of undertaking as to damages – balance of convenience favours rejection of the application – indemnity costs awarded

CRIMINAL LAW - Application for discharge of jury - Publicity in an overseas terrorist trial - Publicity in local trial - Same Solicitor in each trial - Whether a real risk of miscarriage of justice - test of necessity - Whether publicity has to be confined to the particular accused - Whether publicity about a trial with no connection to the accused can warrant a discharge - Jurors' adherence to directions - Trust in Jury system

CRIMINAL LAW – sentencing – summary jurisdiction – Fisheries Management Act 1994 – no issue of principle – fines imposed - CRIMINAL LAW – confiscation of assets – no issue of principle – no order made – hardship, first offence, ordinary usage of goods

EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - remedies upon breach - whether commissions could be withheld for particular breach of employment contract - whether terms implied into employment contract linking acts of performance to payment of commission - obligation of employer to make superannuation contributions - whether a term of the contract of employment - whether a failure by the employer to make contributions results in damage to employee for which damages are payable. PROCEDURE- appeal from Local Court - extension of time for bringing appeal - principles involved.

PROCEDURE – judgments and orders – summary judgment ordered against five defendants – whether the trial judge was entitled to order summary judgment against two of the defendants – whether orders had been sought against two defendants not identified in the amended statement of claim – whether the parties had chosen a different basis at trial to the pleaded issues for the determination of their respective rights and liabilities - PROCEDURE – judgments and orders – whether summary judgment should have been ordered- whether there is sufficient evidence to create a triable issue – whether it was open for the trial judge to make particular findings and inferences in summary judgment proceedings

TRAFFIC LAW – Motor Accidents Compensation Act 1999, s 18 – relief from liability – fraud, misleading or false conduct – financial benefit – purpose of conduct – relief from liability – fresh facts – no benefit obtained – purpose not to obtain financial benefit

[CORPORATIONS] - Registration of charges - Change of responsible entity - Failure to lodge notice in time - Whether failure due to oversight - Whether failure accidental or due to inadvertence - Application for extension of time to lodge notice - Whether prejudice to creditors apparent

CORPORATIONS – deregistered company – action against – reinstatement of deregistered but formerly insured company – company previously in liquidation – need to appoint liquidator – need to ensure liquidator and former director given opportunity to present any relevant submission

EQUITY - equitable remedies - injunctions - ex parte injunction against publication discharged for the plaintiffs' deliberate non-disclosure - temporary stay granted - fresh application for injunction - plaintiffs' claim for injurious falsehood and misleading and deceptive conduct - no serious question to be tried on issues of malice and the application of s 60 Fair Trading Act - in substance a claim for defamation - defendant propses to defend - caution in interfering with defendants' right of free speech by prior restraint - injunction declined.

CRIMINAL LAW - application for leave to appeal against sentence - recklessly causing grievous bodily harm - using a glass as a weapon - whether sentencing judge erred in finding as to objective seriousness - whether sentence manifestly excessive

CRIMINAL LAW – stated case – Companion Animals Act 1998 s 13 – where defendant's dog in a public place not under the effective control of some competent person - where neither the owner of the dog nor another person was present – defendant convicted in the Local Court – conviction set aside on appeal to the District Court - whether District Court judge erred in his interpretation of the section – whether questions of law submitted for determination - whether stated case bad in form and amenable to being struck out – whether case as stated could have additional question added for determination as a question of law "arising on any appeal to the District Court" in accordance with s 5B(1) of the Criminal Appeal Act 1912 – whether form of the Penalty Infringement Notice meant that there was no jurisdiction to determine the case in the District Court on appeal from a magistrate – whether award of costs to defendant to compensate for his time or lost income was erroneous – questions answered – matter remitted to District Court for disposal according to law

APPEAL - practice and procedure - Court of Appeal - stay of orders pending appeal - whether serious question to be tried - whether there was malice for the purpose of the tort of injurious falsehood - whether discretionary procedural decisions of the trial judge should be reviewed

PROCEDURE - Subpoena- Objection to production - Whether legitimate forensic purpose - Statutory privilege given to person served under UCR 1.9(3) and Dictionary read with s 170 of Police Act 1990 - Extent of privilege - Whether copies of documents which were otherwise not privileged attracted statutory privilege if copies made for the purpose of internal police investigation.

Application for a superannuation order - defendant convicted and sentenced in respect of corruption offences whilst an employee of the Commonwealth - repayment by defendant of employer contributions to his superannuation scheme

REAL PROPERTY - torrens title - caveats against dealings - extension of caveat sought - non appearance of defendants - evidence of charge sufficient to support caveat - extension of caveat granted

CRIMINAL LAW - sentence after trial - manslaughter by criminal negligence - parents convicted of manslaughter of nine-month old daughter - omission to obtain appropriate medical treatment - objectively grave offences

SUCCESSION - wills, probate and administration - the making of a will - deceased executed two informal testamentary documents - whether documents were intended by deceased to constitute his wills - whether deceased possessed testamentary capacity at the time of making documents - held that both documents intended to constitute wills - deceased possessed testamentary capacity at the time of making both documents - probate granted in respect of later document.

PROCEDURE - stay of judgment pending application to High Court for special leave to appeal - risk of judgment creditor not being able to give restitution in the event of payment of judgment and the applicant succeeding in the High Court

CRIMINAL LAW - Sentence - Make a document connected with assistance in a terrorist act - Objective gravity of offence not far below worst category - No mitigating factors