Cases and authorities

PROCEDURE - Supreme Court procedure - New South Wales - notices of motions - further amended defence to be struck out for want of prosecution - refused - self executing order made - transfer of proceedings sought to District Court - transfer declined

PROCEDURE - costs - departing from the general rule that costs are payable on the ordinary basis – whether the plaintiff should pay the costs of the defendants on an indemnity basis because they had imprudently and unreasonably rejected offers of settlement – held that the non-acceptance of the defendants’ offers did not warrant indemnity costs, as they did not involve a real and genuine element of compromise - whether indemnity costs should be awarded because the plaintiff had maintained proceedings that had no real prospects of success or should have been seen to be hopeless – held that plaintiff’s two claims against the defendants for engaging in unconscionable conduct, but not the plaintiff’s third claim for inducing breach of contract, had no real prospects of success and should have been seen to have been hopeless - that indemnity costs should be awarded in respect of them – INTEREST – interest on cost orders – s 101(4) of the Civil Procedure Act (NSW) 2005 – purpose of interest is to compensate successful party for prior payment of costs and disbursements in the conduct of the proceedings – order for payment of interest on costs awarded

TAXATION AND DUTIES - Payroll Tax - whether Chief Commissioner entitled to group administration and transportation service providers with a chicken processing partnership - whether s 16C(a) of the Pay-roll Tax Act 1971 prior to amendment by the Pay-roll Tax Legislation Amendment (Avoidance) Act 2002 only operated to group entities if there was a single business in which employees were engaged - whether s 16C(b) only operated to group entities if an agreement with respect to one party's business is also an agreement with respect to the performance of duties by the other party's employees - whether the Chief Commissioner should have determined that the service providers were not members of a group under s 16B(1) on the basis that they carried on businesses, or their businesses were carried on, substantially independently of the other members of the group in terms of s 16C(3) and s 16C(4) - whether the Supreme Court may on a review under the Taxation Administration Act 1996 make a decision in place of that of the Chief Commissioner under s 101(1) or whether its powers are limited to the principles for an appeal under the Income Tax Assessment Act 1936 (Cth) discussed in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 or on appeal from the exercise of the discretion as discussed in House v The King (1936) 55 CLR 499 - Affinity Health Ltd v Chief Commissioner of State Revenue [2005] NSWSC 663 followed

CONTRACTS [134] - General contractual principles - Discharge, breach and defences to action for breach - Repudiation and non-performance - Election and rescission - Loss or waiver of right to rescind - Party having right to terminate contract or alternative right to insist on performance - General principles of doctrine of election - To constitute election statement or conduct must be unequivocal. - EVIDENCE [216] - Witnesses - Cross examination - When permitted and in general - By whom - Evidence of witness proposed to be contradicted by adversary – Duty to cross examine - When duty arises. - TRADE AND COMMERCE [1074] - Consumer protection - Misleading or deceptive conduct or false representation - Particular cases - Advertising and related publications - False impression conveyed by advertisement as whole.

Practice and Procedure. Review of Registrar's decision. Matters not raised before Registrar. Whether any relevant error on the part of the Registrar. Application for review dismissed.

CRIMINAL LAW - Sentence - terrorism offence - need for punishment, deterrence and protection of the community - qualification where mental illness is involved - schrizophenia - discount for plea where accused becomes fit for trial.

CRIMINAL LAW - sentence - appeal against severity - standard non-parole period - objective seriousness of offence - totality principle - reduction in accumulation of sentences.

Appeal - Criminal law - sentencing - assault with intent to rob in company - significant criminal history - treatment of guideline judgment in R v Henry - whether sentence manifestly excessive

CRIMINAL LAW AND PROCEDURE - Blackmail - Sentence - Medical conditions of offender - Evidence before sentencing judge - Care during confinement by Justice Health

APPEAL – when appeal lies – statutory requirements – appeal from District Court – appeal against award of the Court in point of law – failure to give adequate reasons – whether capable of grounding appeal – District Court Act 1973 (NSW), s 142N - WORKERS' COMPENSATION – impairment due to psychological infirmity – entitlement under amendments commencing on 1 January 2002 – incidents giving rise to psychological infirmity occurred prior to commencement of amendments – 'notional' date of injury certified to be 10 November 2005 – whether notional date valid – whether reduction necessary on account of pre-amendment incidents – Workers Compensation Act 1987 (NSW), ss 15 and 16, Sch 6, Pt 18C – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323 – Workers Compensation Legislation Amendment Act 2001 (NSW) - WORKERS' COMPENSATION – police officer discharged on medical grounds – entitlement to compensation – post-traumatic stress disorder and depression developed through employment in police force – whether disease – gratuity for permanent impairment due to psychological infirmity – Police Regulation (Superannuation) Act 1906 (NSW) s 12D - WORDS AND PHRASES – "permanent impairment" – "post-traumatic stress disorder" – "previously non-compensable impairment" – "psychological infirmity"

COSTS – costs of appeal – Sanderson Order – two respondents to appeal – both respondents necessarily joined – whether any basis upon which unsuccessful respondent could be found responsible for the joinder of other respondent - COSTS – costs of trial – Sanderson Order – plaintiff alerted to possibility of proceedings against successful defendant through conduct of unsuccessful defendant – enquiry made as to whether plaintiff contemplating proceedings against successful defendant – denial of liability – provision of information to plaintiff – whether conduct constituted sufficient inducement or was otherwise unreasonable - COSTS – two issues on appeal – issues severable – respondent successful on one issue – respondent ordered to pay appellant’s costs of appeal – whether order for costs should reflect respondent’s partial success

ADMINISTRATIVE LAW – apprehension of bias – association between Acting Commissioner of Land and Environment Court and party to dispute – no direct pecuniary interest – professional and research-related collaboration between Acting Commissioner and local council – whether capable of giving rise to reasonable apprehension of bias – whether decision afflicted by reasonable apprehension of bias can be set aside – Land and Environment Court Act 1979 (NSW), s 14 - APPEAL – erroneous decision of Court below on question of law – evaluative judgment on correct legal principle not made – factual assessment necessary – more than one conclusion reasonably open – whether matter to be remitted – Land and Environment Court Act 1979 (NSW), s 57 - PROCEDURE – Land and Environment Court – challenge to decision of Commissioners after statutory appeal dismissed – original order made irregularly, illegally or against good faith – apprehension of bias – Uniform Civil Procedure Rules 2005 (NSW) r 36.15 - WORDS AND PHRASES – "reasonable apprehension of bias"

CORPORATIONS - breaches of civil penalty provisions - whether exoneration appropriate - whether prohibition orders should be made - degree of responsibility of particular defendants

CORPORATIONS – winding up – application to terminate winding up – consideration of company’s solvency and company’s assets and liabilities – winding up stayed to allow deed of release to be entered into in order to discharge a liability of the company to its director with a view to the winding-up being terminated

EQUITY - equitable remedies - injunctions - application to extend stay on injunction against publication - limited stay previously granted - short further stay granted to protect plaintiffs' appeal rights.

EQUITY – equitable remedies – injunctions – injunction sought to restrain plaintiff from exercising voting right attached to share at meeting of company – whether serious question to be tried – balance of convenience does not warrant interfering with proposed meeting – interlocutory process dismissed

CONTRACTS - general contractual principles - offer and acceptance - whether contracts formed between plaintiff and first or second defendant - whether breach of confidentiality or non-solicitation provisions of contracts - held that contract formed between plaintiff and second defendant - held that second defendant had breached confidentiality and non-solicitation provisions of contract - EQUITY - general principles - obligations of confidence - whether first or second defendant owed equitable obligation of confidence to plaintiff - whether breach of obligation of confidence - whether third defendant liable as principal of first or second defendant or otherwise - held that first defendant owed and breached equitable obligation to plaintiff - held that third defendant not liable as principal as relevant acts outside scope of agency and s 917B Corporations Act inapplicable

APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of court below - discretion to order costs - failure to give reasons for order - PROCEDURE - costs - departing from the general rule - whether unsuccessful cross defendant liable to indemnify defendant/cross claimant for plaintiff's costs

PROCEDURE - costs - costs of cross-claims - settlement of cross-claims whereby judgment entered for each of the Cross-Defendants - who should pay the costs of the cross-claims - whether cross-claims should have been maintained after amendments to defence - whether costs of cross-claim should include Cross-Defendant's costs of Plaintiff's claim against Cross-Defendant.

COSTS – unsuccessful application to join insurer as a defendant - where plaintiff’s cause of action defective – where insurer allegedly aware of defect – whether insurer either withheld information or whether its conduct brought about the proceedings – plaintiff in possession of relevant information but proceeded in any event – plaintiff ordered to pay costs of the motion

CORPORATIONS - statutory demand - application to set aside a statutory demand - no genuine dispute as to existence or amount of the debt - application dismissed

CONTRACTS – variation – whether contract varied to provide for sale of home practice – breach – whether defendant’s conduct of home medical practice in breach of contract – whether within scope of contractual exception – whether sufficiently serious breach of a non essential term to allow termination – termination – whether contract validly terminated – plaintiff able to rely on reason for termination other than that given to defendant at the time of termination.

CONTRACTS - employment - scope of fiduciary relationship - scope of contractual duty of fidelity - whether opportunity pursued in competition with employer - whether existing or maturing business opportunity of employer - whether breach of duty of confidentiality - whether confidential information identified with sufficient specificity - whether information actually confidential or capable of being learned through experience - whether information misused - whether knowing assistance or knowing procurement of breach of fiduciary duty - whether fraudulent and improper design. - COMPANIES - directors - whether first defendant shadow director of fourth defendant - no question of principle.

REAL PROPERTY - conveyancing - property held in co-ownership - statutory trust for sale - application to appoint trustees for sale. SUCCESSION - family provision - claim by mother, aged 93 - whether an eligible person - dependency upon Deceased - proceedings out of time - financial and material circumstances of applicant - rural property held by applicant in co-ownership with Deceased - whether applicant has been left without adequate provision for her proper maintenance - factors warranting making of application - whether applicant should be dispossessed of her home of past 73 years - needs of applicant.

CRIMINAL LAW - appeal and review - costs - successful appeal against convictions - failure of police to observe LEPRA requirement relating to Aboriginal persons - whether investigation conducted in improper manner

CRIMINAL LAW - sentence - robbery in company and steal from the person - whether parity with juvenile co-offender - whether sentences manifestly excessive - partial accumulation warranted where offences committed against separate victims.

Practice and procedure. Review of Registrar's decision on discovery. No matter of principle. Application dismissed.

TORTS – negligence – breach of duty – standard of care for a statutory authority – whether a court should take account of the budgetary constraints and competing priorities of a statutory authority – distinction between policy and operational decisions – relevance to whether a decision can be made that a roads authority failed to take reasonable care - TORTS – negligence – breach of duty – standard of care – nature of the question of whether there has been a failure to exercise reasonable care – question must be one that can be answered by a jury – relevance of the fact that the statutory authority carries out activities with no private analogue – relevance of budgetary constraints and competing priorities - TORTS – negligence – duty of care – whether duty of care of a roads authority extends to the taking of reasonable care to prevent harm to motorists resulting from the criminal conduct of others – whether duty of care is owed in the exercise of a statutory duty - TORTS – negligence – breach of duty – section 42 Civil Liability Act 2002 – whether the section prohibits allegations of negligence in general or particular allegations of negligence – nature of the particular allegation of negligence prohibited – meaning of “functions” – meaning of “general allocation” – meaning of “resources reasonably available to the authority” - TORTS – negligence – breach of duty – section 43A Civil Liability Act 2002 – type of “reasonableness” involved – need for a “special statutory power”

PROCEDURE - security for costs of appeal - appeal would be stultified if security ordered

TORTS - negligence - proof of negligence - workplace accident - onus of proof - what was the nature of duties owed - how injury occurred not established - existence of hazard not established - no foreseeable risk - claim dismissed - cross claims dismissed - EVIDENCE - concurrent evidence - challenge to expert evidence - risk of slipping - collision between expert and other evidence considered

MORTGAGES – whether certain representations made by mortgagee – whether loan agreement breached by mortgagee by failing to give repayment holiday – whether loan agreement breached by failing to keep interest rate lower than competitors – whether mortgagee entitled to order for possession

Corporations Act. Application to set aside statutory demand under s 459G of Corporations Act. Demand set aside. No matter of principle

CRIMINAL LAW - Application for discharge of jury - Publicity in an overseas terrorist trial - Whether a real risk of miscarriage of justice - test of necessity - Jurors' adherence to directions

Corporations Law. Application to set aside statutory demand under s 459G of Corporations Act. Whether a genuine dispute can exist or an off-setting claim can be found notwithstanding a judgment for progress payments under the Building & Construction Industry Security of Payment Act 1999. Held it can.

EQUITY - equitable remedies - injunctions against publication - party seeking an injunction ex parte - duty of candour to make disclosure of material matters - issue of what are material matters - matters not disclosed are material - discretion to discharge orders obtained through non disclosure - non disclosures deliberate and serious - injunction discharged.

CRIMINAL LAW - sentence - murder - guilty plea - Aboriginal offender - single stab wound - case falls below the mid range of objective seriousness

CRIMINAL LAW – Appeal against conviction – Charge of attempt – Whether sufficient that accused intended that every element of offence occur, and does acts sufficiently proximate to intended commission of crime – Charge of attempting to possess a border-controlled drug which had been unlawfully imported – Whether conviction available where drug intended to be imported seized and retained in Venezuela.

LAND AND ENVIRONMENT - Pollution of waters - Prosecution - Employee carrying out explicit instruction - Unaware of unlawfulness and reasonable grounds for so thinking - Assistance to authority - Intervention to quash disproportionate penalty - Penalty to reflect culpability of individual offender

EVIDENCE - admissibility and relevancy – tendency evidence – global objection to tendency evidence on basis of prejudice– no requirement that trial judge examine each piece of evidence individually when counsel did not deal with the objection in that fashion - EVIDENCE - admissibility and relevancy – tendency evidence – jury directions – adequacy of directions of what use could be made of tendency evidence – adequacy of directions in relation to other criminal activity and bad character - CRIMINAL LAW – appeal against sentencing – factors against leniency - Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A – effect of offences committed after offence under sentencing – drug offences - totals accumulated to get to commercial quantity from separate supplies – whether sentence manifestly excessive – leave to appeal granted – appeal dismissed - Crime (Sentencing Procedure) Act 1999 (NSW) – s 21A - Evidence Act 1995 (NSW) – s 97 – s 101

TRUSTS – SUPERANNUATION – REMUNERATION – Whether trustee justified in amending trust deed of superannuation fund to provide for remuneration of trustee.

PROCEDURE - costs - application to vary costs order - application made outside the time reserved for leave to make application - whether court has power to grant application - Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133 applied - application dismissed

COSTS – conduct of parties – orders made on appeal which neither party sought – whether factors present justifying award of costs - JUDGMENT – payment as condition of stay pending appeal – capital and interest payable increased on appeal – apportionment of payment between interest and capital

TORTS - negligence - economic loss - issue of subdivision certificate - liability of local council as principal certifying authority for the subdivision - misexercise of statutory power - non-compliance with a requirement for a certificate of compliance by water supply authority - purchase of lot from subdivider - purchasers suffer economic loss having to comply with requirements of water supply authority - whether duty of care owed by principal certifying authority to purchasers in relation to issue of subdivision certificate - APPEAL - decision of Local Court - jurisdiction of appellate court - appeal against judgment or order "but only as being erroneous in point of law" - decision that no duty of care owed - whether decision erroneous in point of law

PROCEDURE - stay of judgment the subject of appeal - no issue of principle

[CONTEMPT] - Penalty hearing - Special circumstances warranting lenient approach

CORPORATIONS – investigation by ASIC - application to restrain third defendant from leaving Australia or obtaining passport – no charges laid against third defendant and no material about which ASIC presently wishes to question third defendant – low risk that third defendant would not return if allowed to depart – third defendant proffers undertakings to the court – application dismissed

TRADE AND COMMERCE – other regulation of trade or commerce – restraints of trade – employment contracts for Chief Executive Officer and Chief Technical Officer – validity of employment contracts – allegation of breach of non-solicitation and confidentiality clauses – whether restraints of trade were defective – whether the restraints of trade were breached – calculation of damages for breach of non-solicitation clause - EQUITY – equitable remedies – injunctions – cross claim for damages arising out of interlocutory injunction which ought not have been granted because the plaintiff’s undertaking as to damages was worthless

Order for the production of documents - specification of particular documents - sufficient particularity - obtaining evidence on commission - particular documents specified in the order - oppression - can subpoena be remoulded - request from foreign court

EVIDENCE – expert evidence – single expert appointed – communication took place between appointed expert and party which should not have occurred – significant differences in opinion between appointed expert and expert separately engaged by the defendants - leave to adduce further expert evidence

REAL PROPERTY - caveat against dealing - application for order extending operation of caveat - estate or interest claimed in caveat described as "equitable instrument" - no such estate or interest known to the law - if a misprint for "equitable interest", then description insufficient and caveat not supportable - not clear, in any event, that instrument put forward as source of estate or interest created or operated as security affecting relevant land