Cases and authorities

PROCEDURE – Liberty to apply – where in substantive proceedings Court declared certain terms of equitable lease (including rent) and ordered execution of lease containing those terms and “such other usual and reasonable terms and conditions as may be agreed by the parties and failing agreement determined by the court”, and reserved liberty to apply “in the event of any difficulty arising … in connection with the implementation of these orders including in determining the terms of the lease” – where dispute as to whether lease should contain term obliging lessee to pay outgoings – where evidence at trial shows that declared rent was agreed on basis that lessee would pay certain outgoings – whether resolution within liberty to apply – if not, whether within inherent jurisdiction or slip rule.

CRIMINAL LAW - SENTENCING - CROWN APPEAL - whether sentence manifestly inadequate - whether correct maximum penalty taken into account - offence contrary to s 112(2) of Crimes Act - whether error in characterisation of objective seriousness of offence - whether general deterrence taken into account - whether threatened use of a weapon taken into account as an aggravating factor

CRIMINAL LAW — Sentencing — sentence reduced because of undertaking to provide assistance — assistance not provided — appeal pursuant to s 5DA of Criminal Appeal Act

[PROPRIETARY ESTOPPEL] - Whether the plaintiff established detrimental reliance on assurances - [DETRIMENT] - Where right is foregone - whether plaintiff must show that there was a real chance of achieving a better outcome had right been enforced - [RELIEF] - Whether expected state of affairs should be made good - [FAMILY PROVISION] - Whether deceased's assurances are to be taken into account - whether plaintiff has established an entitlement to provision

CORPORATIONS - winding up application on the just and equitable ground - husband and wife are only members - no suggestion that creditors' interests in jeopardy - proceedings on foot in Family Court with respect to property and otherwise - whether proceedings should be transferred to Family Court

TORTS - negligence - dangerous and injurious things, etc - electric shock - duty of care - neurocognitive and psychological injuries suffered as the result of electric shock - concurrent evidence - damages

Easements - section 88K of Conveyancing Act - satisfaction of sections 88K(1) & (2) - assessment of adequate compensation for loss or other disadvantage - grant of easement sought not likely to have same effect as to use as easement already granted to second defendant

Encroachment on neighbouring property - claims for trespass - order for conveyance of narrow strip of land along boundary - damages and compensation

CORPORATIONS – winding up – Statutory Demand – Demand of 98 pages made demand with different amount and supporting information to that put forward in earlier communications between parties – extreme complexity and ordinary accounting practices not followed – creditor’s evidence conceded some excesses and if brought forward further claims said to show Demand was too low – found, the Demand was prepared for calculated purpose of swamping the recipient with information that could not be well dealt with in the time available, was an abuse of the statutory process and grossly unfair – Statutory Demand set aside

TORTS - negligence - employment relationship - doctor diagnosed with psychiatric condition following attendance at leadership course - was development of psychiatric condition reasonably foreseeable - correct test of foreseeability for psychiatric injury - relevance of "normal fortitude" test - breach of duty - whether evidence of breach properly considered - failure by employer to observe course care protocol - causation - failure to properly analyse expert evidence - failure to provide adequate reasons - insufficient findings of fact to enable choice of law question to be resolved - costs.

TORTS - negligence - road accident cases - diesel oil spill on road - whether motor vehicle being driven at an excessive speed -relevance of advisory speed sign - causation of loss - whether necessary to prove on balance of probabilities that accident would have been avoided if no negligence - TORTS - negligence - road accident cases - claim against Nominal Defendant - inference to be drawn as to origin of diesel oil spill on road

ADJOURNMENT - hearing imminent – defendant's application for referral for pro bono legal assistance – UCPR Part 7 Div 9 – whether grant of application would necessitate adjournment – whether application made in a timely way – previous certificate issued – no explanation of why defendant no longer represented – not in the interests of the administration of justice – no referral ordered – no adjournment granted – hearing dates confirmed.

SUCCESSION - Wills, probate and administration - Construction - Evidence of surrounding circumstances to the making of the will - Evidence of testator’s knowledge of family and beneficiaries - Identification of person referred to in will – Held that on a true construction of the second defendant is the person entitled to the gift in clause 4 of the will. - SUCCESSION- Cross claim for rectification of will under s 29A Wills, Probate and Administration Act 1898- Late application- Whether sufficient cause is shown for the failure to make application in time- Held cross claim does not need to be determined

LESSOR and LESSEE – option to renew lease – formalities of exercise – lease cl 9 provided for giving notice of desire to take a new lease and also service of notice of exercise of option – one notice was given – consideration in detail of meaning and effect of cl. 9, a non-standard term – notices were combined in one document, which was held to be sufficient – provisions of lease authorising giving notices under Conveyancing Act 1919 s 170 were facultative and not mandatory and exercise was not defeated by non-compliance – notice sent by post to lessor was returned unclaimed, notice sent by post to solicitor, who was the Chairman of Directors was perceived by him and treated by him and by lessor as effective – HELD – effective exercise of option to renew. Decision on operation of non-standard clause, not a clause in general use.

Criminal law - appeal - sentencing - maliciously causing a poison to be taken by a person thereby endangering that person's life - victim is applicant's young son - whether sentencing judge sentenced applicant for more serious offence - whether applicant's mental illness appropriately taken into account - delay in disposition of proceedings - whether sentence manifestly excessive

CRIMINAL LAW – sentence – relevant factors – nature and circumstances of offence – need to focus on particular charge – role of offender relevant to sentence for possession charge. - CRIMINAL LAW - sentence - role of Judicial Commission statistics.

Criminal law - sentencing - Crown appeal - malicious wounding with intent to inflict grievous bodily harm - where offence lay on the scale of objective seriousness - whether antecedent criminal behaviour properly taken into account - whether finding of "special circumstances" available

CRIMINAL LAW AND PROCEDURE - Sentence - Supply large commercial quantity MDMA - Rejection by judge of submissions and opinion of psychologist - No error demonstrated - Maximum penalty of life imprisonment - Fourteen years (ten years non-parole) - Standard non-parole period fifteen years - Sentence not manifestly excessive - Parity - Co-offender charged with offence involving vastly lesser quantity - R v Kerr [2003] NSWCCA 234 doubted - Intervention by appellate court not attracted - Special circumstances - No miscarriage of discretion in assessing proportion between non-parole period and total sentence

ADMINISTRATIVE LAW – Appeal to and from administrative tribunal – Government and Related Employees Tribunal Act 1980 – Powers of GREAT on appeal – Appeal from GREAT to Supreme Court – Decision of the Tribunal on a question of law – whether it is sufficient that the Tribunal’s decision manifests resolution of a question of law. - PUBLIC SERVICE – Disciplinary action – Public Sector Employment and Management Act 2002, Pt 2.7 – Dismissal from Public Service – Relevant considerations – Distinction between protective and punitive purposes – Relevance of hardship to employee – Whether period of probation can be imposed – Whether Government and Related Employees Appeal Tribunal has wider powers in disposing of an appeal.

REAL PROPERTY – Compulsory acquisition of land – Compensation – Assessment of particular land and interests – Mines and quarries – Airspace – Whether terms of a Deed giving respondent a right to airspace created by quarrying activities on the acquired land for landfill operations in exchange for an airspace creation payment should have been taken into account for the purposes of assessing compensation – Whether respondent suffered loss of airspace – Whether compensation should be reduced on the basis that respondent was able to recover loss from third party under the Deed – Whether respondent’s obligation under the Deed to make airspace creation payments was relevant to assessment of compensation – Injurious affection of adjoining property – Before and after method of valuation – Whether compensation to respondent ought to have been reduced due to payment made by appellant to third party – Whether third party had a compensable interest in land within the meaning of s 56(2) of the Land Acquisition (Just Terms Compensation) Act 1991 – Comparable sales and discounted cash flow methodologies – Expert evidence should not outweigh commonsense analysis - APPEAL – Right of Appeal – When appeal lies – Error of law – Failure to give reasons for decision – Whether reasons adequate

PROCEDURE – Appeal – Fresh evidence – Application by respondent – Need for notice of contention – Need for timely application.

EQUITY - General principles - Wrongful appropriation - Following freezing orders first and second defendant's consent to judgment in the sum of $730,000 against them on a joint and several basis - Further relief sought by plaintiff with respect to additional sums - Onus of proof in cases involving fraud - Evidence Act NSW section 128 certificate - Retroactive application of section 128 not contemplated by section 128

CRIMINAL LAW - sentence - plea of guilty - felony murder - juvenile offender

PROCEDURE - costs - security for costs - defendant seeking further security for costs - security previously provided by consent - parties agreed that further costs should be ordered - whether further security should have regard to costs incurred since first security provided - further security ordered

CRIMINAL LAW - jury trial - manslaughter by criminal negligence - alleged omission by parents to obtain appropriate medical assistance for infant daughter - photographs of child tendered as exhibit in trial - application by media for release of photographs in exhibit for publication or broadcast during the trial - discretionary considerations - risk of jury being distracted directly or indirectly by reporting of trial accompanied by publication or broadcast of photographs of child - application declined for release of photographs during trial

DAMAGES - measure and remoteness of damages in actions for tort - measure of damages - non-economic loss - Civil Liability Act 2002 s 16 - whether non-economic loss at least 15 per cent of the most extreme case - economic loss - Civil Liability Act 2002 s 13 - award of buffer for future economic loss.

ADMINISTRATIVE LAW - judicial review - reviewable decisions and conduct - orders sought correcting or amending the Births, Deaths and Marriages Register and form of Change of Name Certificate - defendant's notice of motion seeking orders for summary dismissal and in the alternative, that statement of claim be struck out - scheme of Administrative Decisions Tribunal Act 1997 and Freedom of Information Act 1989 considered - proceedings concerned with Registrar's decisions about information retained in the Register and the form of name change certificates - plaintiff's notice of motion seeking leave to amend statement of claim in relation to costs and damages - defendant's claim in contract, not tort - application dismissed - costs

[ASSOCIATIONS] - Structure of defendant organisation - Whether Model Rules form part of the Constitution - Exercise of power to expel - Appellate rights on expulsion - Whether defendant should be restrained from putting the motion for expulsion of the plaintiff before the Congress on 9 and 10 May 2009

Legal practitioners - Plaintiff's solicitors retained by other parties against defendant in proceedings which settled following mediation - Plaintiff's solicitors then approached to act for other clients against same defendant - New proceedings contain virtually identical pleadings to those mobilised in the earlier proceedings - Application by defendant to restrain plaintiff's solicitors from acting for plaintiff in the new proceedings - Various grounds on which order may be made - Whether any ground made out - Threatened breach of duty of confidence in relation to information disclosed during course of mediation and in relation to information disclosed via confidential Deed of Release - Courts inherent jurisdiction to control solicitors to prevent the integrity of the judicial process and the due administration of justice - Threatened breach of implied Harman undertakings to the Court

CRIMINAL LAW — Sentencing — drug offences — whether motive sheer greed — sentence for one offence manifestly excessive — less severe aggregate sentence for all offences warranted

PROCEDURE – Discovery and interrogatories – Discovery and inspection of documents – Production and inspection – Grounds for resisting production – Legal professional privilege – Client legal privilege – What constitutes – Whether party supplied sufficient evidence in support of claim for privilege – Whether primary judge was entitled to inspect documents to determine whether they attracted privilege under the Evidence Act and common law – Identification of the “client” for the purposes of s 119 of the Evidence Act – Whether in-house lawyers of Department provided professional legal services – Waiver of privilege – Implied waiver and disclosure waiver – Whether an objection to answering a specified interrogatory on the basis that this would disclose privileged information can be made at the time the answer to the interrogatory is called for – Whether production of certain parts of a redacted document amounted to implied waiver of the claim for privilege over the redacted parts – Whether disclosure of redacted document created inconsistency or unfairness – Whether the prosecutorial duty of disclosure of documents material to the defence prevented privilege from attaching - COSTS – General rule – Costs follow the event – Whether departure from the general rule justified in the circumstances - EVIDENCE – Affidavits – Use of affidavits – Whether affidavits should have been admitted where deponents not cross-examined - APPEAL – Admission of fresh evidence

COSTS – claim for work injury damages – court proceedings – costs governed by Workplace Injury Management and Workers Compensation Act 1998, s 346 and Workers Compensation Regulation 2003, rr 89-91, 94 – whether power to order costs to be paid on an indemnity basis – whether cl 110 or 113 of the Regulation confers a power to award costs on a basis other than party and party - COSTS – court proceedings to recover work injury damages – worker sues employer and principal contractor – mediation – offer of compromise – whether sufficient compliance with cl 89 and cl 94 of the Workers Compensation Regulation 2003 – whether offer to settle economic loss component of respondent’s claim constituted final offer to settle the claim against all defendants under cl 89 – whether sufficient for purposes of cl 94(a) if offer covers only economic loss component of claim – meaning of “the claim” in cl 94(a) – whether primary judge erred in ordering that respondent’s costs be paid on a party and party basis - WORDS AND PHRASES – “the claim”

CORPORATIONS - statutory derivative action - application for leave to bring on company's behalf second cross-claim in existing proceedings - where company is a defendant in those proceedings and applicant for leave is a director of the plaintiffs - applicant bound as director of plaintiffs to contend for position inconsistent with that sought to be established through company's cross-claim - conflict of duties - not in best interests of company that applicant should have leave - application not objectively in good faith

EXPERT EVIDENCE - s 108C Evidence Act - expert evidence going only to credibility of defendant doctor.

CORPORATIONS – Winding up – Statutory Demand – application s459S for leave to argue validity of statutory demand – demand based on order of Common Law Division for payment on 18 December 2008 of various sums required to be paid under terms of earlier interlocutory orders in Possession proceedings – Possession issues determined and Company evicted by Sheriff but claims and cross-claims for damages by both parties were still pending – ground in s 459S (2) was offsetting claim being pending cross-claim – HELD – cross claim for damages could not be offsetting claim against judgment of the Court for payment of money – subsection 459S(2) was satisfied as the ground was material to determination of the question of insolvency. Leave refused on discretionary grounds: (1) the ground could not succeed. (2) the company was hopelessly insolvent. (3) Procedural failings and late application.

CRIMINAL LAW - accused charged with manslaughter by criminal negligence - alleged omission by parents to obtain appropriate medical assistance for infant daughter - statutory prohibition upon publication of name of child - whether public interest requires publication of name of child - purpose of s.11 Children (Criminal Proceedings) Act 1987 - publication cannot harm deceased child - open justice principle - publication of name of child allowed

Equity. Trusts & Trustees.Express trust created inter vivos. Three properties purchased in the name of another with the purchasers executing a mortgage to secure borrowings. Two properties held to be the subject of an express trust notwithstanding the lack of writing required by s23C of the Conveyancing Act 1919. Third property the subject of a resulting trust in proportion to the contributions. - Contracts. General contractural principles. Illegal and void contracts. Operation of Foreign Acquisitions and Takeovers Act (Commonwealth) 1975. Failure to give notice. Contract not prohibited under Act and held that the failure to give notice did not make contract void.

DAMAGES - Ex parte assessment of damages - brain injured plaintiff - application of Civil Liability Act 2002 - plaintiff unable to care for children - damages for loss of capacity to perform domestic services for children - s15B Civil Liability Act.

PROCEDURE - Supreme Court procedure - New South Wales - defendants seeking further adjournment of hearing - counsel briefed late - opportunity to explore further expert evidence sought - dictates of justice required that application be refused - fair opportunity to arrange legal representation - scant evidence - adjournment refused

CRIMINAL LAW - aggravated break and enter - Crown appeal - sentence manifestly inadequate - undue weight to subjective features of the respondent - appeal dismissed

CRIMINAL LAW - appeal against sentence - parity - robbery in company - appellant received same sentence as co-offender - culpability for offence equal - mental illness rendering custodial experience more harsh a factor warranting lesser sentence - co-offender on bond at time of offence - Crown concession to sentencing judge that appellant had stronger subjective case

ADMINISTRATIVE LAW - administrative tribunals - Administrative Decisions Tribunal (NSW) – appeals against interlocutory decisions of the Tribunal – statutory requirements under Administrative Decisions Tribunal Act 1997 (NSW) as to the proper constitution of the Appeal Panel - an appeal against an interlocutory decision requires leave - leave can be given by one member – balance of the appeal against the interlocutory decision must be heard by three members - Administrative Decisions Tribunal Act 1997 (NSW) s24, s24A, s113

FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Children in need of protection – Proceedings relating to care and protection – Whether child in need of care and protection – Child infected with sexually transmitted disease – Whether child had been sexually abused – Evidence and proof – onus of proof – Whether trial judge failed to place the onus of proving sexual abuse on the balance of probabilities on the Director-General - ADMINISTRATIVE LAW – Prerogative writs and orders – Certiorari – Grounds for certiorari to quash – Error on the face of the record

PROCEDURE - summary dismissal and strike out - questions of law involved - TORTS - tort of misfeasance in public office - whether solicitor acting on behalf of a minister in Administrative Appeal Tribunal proceedings held a public office for the purposes of the tort - TORTS - collateral abuse of process - whether tort capable of being committed by a non-party to proceedings - when purpose is collateral - LEGAL PRACTITIONERS - lawyers - advocate's immunity from suit - whether applicable to intentional torts - whether applicable to the torts of misfeasance in public office and collateral abuse of process

CONTRACTS – building, engineering and related contracts – other matters – grounds upon which an adjudication determination can be reviewed – the existence of a construction contract under s 4 of the Building and Construction Industry Security of Payment Act 1999 is a basic and essential element of the Act – meaning of ‘arrangement’ in s 4 – facts and circumstances giving rise to an ‘arrangement’

CONTRACTS – general contractual principles – offer and acceptance – whether signed document constituted binding contract – whether consideration illusory – whether parties evinced intention immediately to be bound – whether terms sufficiently certain to be enforceable – held that there was a binding and enforceable contract – held, further, that defendants estopped from denying binding contract. - CONTRACTS – general contractual principles – construction and interpretation of contracts – whether on proper construction of the contract obligation to pay “Consultants costs and costs ancillary to consultant’s services” [sic] extended to Council lodgement fees – held that it did not. - CONTRACTS – general contractual principles – discharge, breach and defences to action for breach – whether plaintiff breached obligation to pay consultants’ costs “in a timely manner” – whether plaintiff repudiated of the contract – whether defendants’ purported termination of contract itself amounted to repudiation – held that plaintiff had breached obligation to pay consultants’ fees in a timely manner – held that this breach did not give rise to a right for the defendants to terminate – held no repudiation by plaintiff – held that the defendants repudiated contract by purporting to terminate contract. - MISLEADING OR DECEPTIVE CONDUCT – whether plaintiff engaged in conduct that was misleading or deceptive – whether representation to third party amounted to representation to first defendant – whether first defendant entered contract by reason of the plaintiff’s misleading or deceptive conduct – held that plaintiff did engage in conduct that was misleading or deceptive – held that conduct did not cause first defendant to enter into contract – first defendant did not suffer loss or damage by reason of plaintiff’s conduct. - EQUITY - general principles - fiduciary obligations – whether parties engaged in joint venture – whether defendants owed fiduciary duties to first plaintiff – whether parties were partners – held that parties both joint venturers and partners – held that defendants owed fiduciary duties to plaintiff– held that, on termination of joint venture/partnership, defendants could not arrogate whole benefit of joint venture/partnership to themselves – benefits of joint venture/partnership held on constructive trust on terms of former partnership.

Assessment of Damages - Plaintiff not entitled to interest on past economic loss for impairment of earning capacity as did not come within s 137(4)(a)(i) of Motor Accidents Compensation Act 1999 - Future Medical Treatment and Pharmaceutical Items - Attendant Care Services - Physiotherapy - Cost of Fund Management - Indemnity Costs

PRACTICE AND PROCEDURE – stay - where plaintiff sues for breach of a contract which contains a provision for disputes to be determined by an expert – considerations relevant to grant of stay – CONTRACT – construction of expert determination provision – WAIVER – whether defendant waived or abandoned right to invoke alternative dispute resolution provision – EQUITY – estoppel – whether defendant is estopped from relying on alternative dispute resolution provision on the basis that it represented, induced or participated in an assumption that it would not do so – whether plaintiff relied on defendant’s conduct to its detriment in suing - CONTRACT – operation of exclusive jurisdiction clause where plaintiff sues in Australia for breach of a contract containing a provision agreeing to exclusive jurisdiction of English Courts

PROCEDURE - affidavits filed and served in proceedings - affidavits not read in open court - application for leave to furnish affidavits to police for investigation of crime - release from implied undertaking - public interest considerations - balancing exercise - special circumstances test - application granted