Cases and authorities

DAMAGES - Motor Accidents Compensation Act - Claimant sues insurer for non-payment of assessed damages and costs whilst insurer seeks judicial review of assessment - question of abuse of process - INTEREST - whether claimant can recover interest in action for recovery of unpaid damages and costs assessed under Motor Accidents Compensation Act

CRIMINAL LAW – particular offences – driving offences – practice and procedure – sentencing – automatic disqualification period – driving unlicensed contrary to s 25A(1)(a) of Road Transport (Driver Licensing) Act 1998 - prior conviction for contravention of s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 – whether a “second or subsequent offence” for the purposes of s 25A(10)(b), Road Transport (Driver Licensing) Act 1998 - STATUTES – acts of parliament – interpretation – meaning of “second or subsequent offence” under s 25A(10)(b) of the Road Transport (Driver Licensing) Act 1998 – whether the definition of “second or subsequent offence” in s 25A(6)(b) applies to “second or subsequent offence under subsection (1), (2) or (3) (a)” in s 25A(10)(b) - TRAFFIC LAW – licensing of drivers – New South Wales – disqualification, cancellation and suspension of licences – relevant automatic disqualification period under s 25A(10)(b) of the Road Transport (Driver Licensing) Act 1998 - WORDS & PHRASES – “second or subsequent offence” – “for the purposes of this section” – “in this section”

CRIMINAL LAW - particular offences - offences relating to administration of justice - interference with witnesses or jurors

Family Provision. Application by stepdaughter. Whether she was part of household and partly dependent. Order made for provision. - Costs. Whether costs should be capped due to small legacy and uplift factor.

Family Law. Application for property adjustment under s 20 of Property (Relationships) Act 1984. Order for provision. No matter of principle.

PROCEDURE - declaration sought that litigant vexatious - whether proceedings instituted "habitually and persistently" - whether proceedings "vexatious" - collateral purpose

DEFAMATION – privilege – qualified privilege – statements made in respect of a duty or interest – particular statements – on matter of public interest – what constitutes privileged occasion, communication or conduct – whether respondent had an interest in making the defamatory statements and the audience had a reciprocal interest in receiving them – if so, whether the defamatory statements were connected to the occasion of qualified privilege - fair comment – in general – foundation of fact

COSTS - work injury - mediation - offers of compromise - damages less than claimant's/appellant’s final offer and more than defendant's/respondent’s final offer at the conclusion of mediation - costs governed by Workplace Injury Management and Workers Compensation Act 1998, s 346 and Workers Compensation Regulation 2003, rr 89-91, 93

CORPORATIONS - voluntary administration - deed of company arrangement - deed provides for creation of creditors' trust and execution of related implementation deed and charge - all such steps taken immediately after deed became binding - creditor applies for order under s 445D terminating deed of company arrangement - but deed already terminated by s 445C(c) upon completion of specified steps - no capacity to terminate again - reliance by plaintiff on s 447A in submissions in reply - claim for order terminating deed ab initio - whether new case can be mounted in submissions in reply - whether, in any event, s 447A order could have effect of terminating deed of company arrangement ab initio - where independently created rights and obligations have arisen from creditors' trust and related implementation deed and charge - comment on use of Part 5.3A to create scheme of administration outside Part 5.3A

SUCCESSION [178] – Wills, probate and administration – Construction and effect of testamentary dispositions – Generally – Gifts to a class – What is a class – Class gift principle applies to a group whose members do not have sufficient connection to constitute a class if it is to be inferred that testator intended gift to be tantamount to a class gift.

INJUNCTIONS - Freezing orders - whether danger that a prospective judgment will be wholly or partly unsatisfied - REAL PROPERTY - Application to extend caveats - Second Defendant guarantor in respect of loan by Plaintiff to First Defendant - Question of whether mortgage created an equitable interest of Plaintiff in land owned by Second Defendant not the subject of the mortgage

TRUSTS - unincorporated association - representatives of members of Lodges became members of NSW Masonic Schools Welfare Fund established in 1923 - constitution establising trust - Executive elected annually - identification of trustee - control over funds - members of association or the Executive - particular obligations imposed on Executive to manage and administer "the affairs and business" of the Fund - powers and functions of the Executive - control over monies constituting the Fund in the Executive subject to prescribed obligations - whether subsequent conduct in adopting a Deed of Trust (1926) which referred to property "belonging to the Welfare" was a statement or admission that the member of the association held all trust property as trustees was evidence that members were trustees - decision preceding Deed to purchase real estate

EVIDENCE – admission – compelled by s 173 of Road Transport (General) Act 2005 – compulsion not itself basis for exclusion of admission - TRAFFIC LAW – offences – evidence and procedure – admission required by s 173 of Road Transport (General) Act 2005 – compulsion not itself basis for exclusion of admission

Valuation of land - appeal against decision on a question of law - whether error in regard to comparable sales - finding sales not comparable did not involve question of law - whether "retail demographic evidence" wrongly rejected - sale found comparable subject to same demographic influences - no error in rejection - whether error in adjustment of comparable sale by not deducting "value of leases" - deduction of value of income stream from leases - or deduction of value of lease income for a letting-up period - former not required, latter did not involve a question of law.

CRIMINAL LAW - appeal against sentence - maliciously inflicting grievous bodily harm - whether aggravating factor was an inherent characteristic of offence

Adoption of children - parental responsibility order - application for extension of interim parental responsibility order by Director-General in his favour - relevant considerations

COSTS – application for costs order – defendant's contention that proceedings commenced in wrong jurisdiction – whether costs in Supreme Court are more substantial than equivalent costs in District Court - COSTS – indemnity costs – offer of compromise – whether circumstances when offer made different to circumstances prevailing at hearing – circumstances different – indemnity costs refused

PROCEEDS OF CRIME - Proceeds of Crime Act (Cth) - Property of applicant restrained under s19 - proceedings for forfeiture under s49, examination of applicant under s180 - applicant not charged with any offence - whether proceedings under the Act should be stayed until it is determined whether he should be prosecuted.

SENTENCE — perjury — perverting the course of justice

CRIMINAL LAW AND PROCEDURE - Sentence - Indecent assault and procuring children for pornographic purposes - Three female victims of various offences aged eight years - No error in approach or assessment by sentencing judge

Criminal Law - Evidence - telephone intercepts - police cease monitoring calls for period - whether further intercepts unlawful - whether evidence inadmissible under s 137 Evidence Act. Practice and Procedure - failure to give Jones v Dunkel direction against Crown - whether miscarriage of justice - Verdict - evidence of accomplice - whether verdict unreasonable. Appeal - Certificates by trial judge under s 5(1)(b) of Crown Appeal Act - purpose of granting certificate. Sentence - Crown Appeal - Solicit to murder - failure to making finding as to objective seriousness of offence where standard non-parole period - error in finding motive mitigating - sentence manifestly inadequate.

Criminal Law - Sentencing - Factor in aggravation: Position of trust - Discount for plea of guilty - Application of totality principle.

LEGAL PROFESSION – lawyers – retainer – challenge to – proper procedure for a challenge to retainer – whether a challenge to retainer can be pleaded by way of defence – whether a separate motion is needed to mount a challenge to retainer – circumstances where a challenge to retainer can be litigated together with a final hearing – onus of proof of showing that solicitor lacks authority – PROCEDURE – courts and judges generally – proper procedure for a challenge to retainer – inherent power of a court to stay proceedings as an abuse of process – PROCEDURE – judgments and orders – effect of judgments – effect of pleading an argument by defence – difference between outcome of a defence and a notice of motion – difference between estoppel by judgment and stay or striking out of action – PROCEDURE – courts and judges generally – effect of pleadings alleging technical language with no legal content – PROCEDURE – Supreme Court procedure – New South Wales – bringing an action by tutor – meaning of “person under legal incapacity” – EQUITY – general principles – unconscientious conduct – special disability – lack of capacity to understand the effect of transactions – whether evidence shows problems with cognition and language – EVIDENCE – witnesses – failure to call witness due to problems with cognition and language – whether Jones v Dunkel inference should be drawn – whether absence of witness is unexplained – - WORDS AND PHRASES – “estoppel by judgment” – “challenge to retainer” – “challenge to solicitor’s retainer” – “person under legal incapacity”

LIMITATION OF ACTIONS – extension of limitation period – nature of the decision whether it is “just and reasonable” to extend the limitation period – proper approach to assessing the factors in Limitation Act 1969 section 60E(1) – role of “reasonableness” in assessing reasons for delay - LIMITATION OF ACTIONS – extension of limitation period – prejudice to the defendant – effect of the death of a witness – witness died outside the limitation period but after the filing of the originating process - LIMITATION OF ACTIONS – extension of limitation period – effect of extension of limitation period - APPEAL AND NEW TRIAL – appeal – general principles – proper approach to appellant intervention concerning a decision whether to extend a limitation period – nature of the first instance decision – whether application for extension of limitation period is a discretionary decision – whether principles which apply for appellate intervention of a discretionary decision apply to non-discretionary decisions - TORTS – negligence – whether a decision that a duty of care has been breached is a discretionary decision – proper approach to appellate review for a decision that a duty of care has been breached - LEGAL SYSTEM AND LAWYERS’ REASONING – use of ostensive definition

CONTRIBUTION - joint and several tortfeasors - apportionment of liability - TORTS - negligence - injuries to passengers - duty of care owed to pillion passengers - TORTS - negligence - injuries to passengers - duty of care owed by motorcyclists to other motorcyclists - DAMAGES - two defendants - use of same expert

CONTRACTS - construction contract - Building and Construction Industry Security of Payment Act 1999 - payment schedule - whether contract required a time for provision of payment schedule - contractual payment schedule replied to contractual progress payment claim - not to statutory payment claim - stated time was not for provision of statutory payment schedule.

CONSTITUTIONAL LAW – judicial power – Chapter III of the Constitution – whether conferral of jurisdiction with respect to s 151Z(1)(d) indemnification proceedings invalid – limits on parties’ ability to assess non-party – effect on court’s ability to adjudicate matter – imbalance – institutional integrity – Kable principles - PROCEDURE – stays – whether appropriate to order – whether s 119 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provides vehicle for order – requirement under Pt 23 of Uniform Civil Procedure Rules 2005 (NSW) for party to submit to medical examination in certain circumstances – common law power to stay proceedings unless plaintiff submits to medical examination - STATUTORY INTERPRETATION – purposive interpretation – whether use of s 119 in s 151Z(1)(d) indemnity proceedings extraneous to statutory purpose of s 119 – whether capricious or unjust – legislative history of s 119 – interpretation of Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW) together – Workers Compensation Act 1987 (NSW), ss 2A(2), 4, 151Z(1)(d) – Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 60, 119, Ch 4 - STATUTORY INTERPRETATION – WorkCover Guidelines on Independent Medical Examinations and Reports (2006) – whether s 119(4) defines or controls operation of s 119(2) – whether Guidelines restrict operation of s 119 – whether Guidelines prevent use of s 119 in s 151Z(1)(d) proceedings - WORKERS' COMPENSATION – indemnification proceedings – rights and liabilities created by s 151Z(1)(d) – extent of indemnity – preconditions to s 151Z(1)(d) – purpose of s 151Z – legislative history of s 151Z – Workers Compensation Act 1987 (NSW), s 151Z(1)(d) - WORKERS' COMPENSATION – indemnification proceedings – whether employer and putative tortfeasor can use s 119 of the Workers Compensation Act 1987 (NSW) to obtain medical assessment of worker for purposes of s 151Z proceedings – purpose of ss 119 and 151Z – legislative history of s 119 – scope of s 119 – s 119 relates to claims for compensation – Workers Compensation Act 1987 (NSW), s 151Z(1)(d), Ch 4 – Workmen’s Compensation Act 1897 (UK), s 6, Sch 1(11) – Workman’s Compensation Act 1906 (UK), s 6, Sch 1(14) – Workman’s Compensation Act 1910 (NSW), s 17(2), Sch 2(9) – Workers’ Compensation Act 1926 (NSW), ss 51(1), 64(b) – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 119 - WORDS AND PHRASES – “under this section”

ADMINISTRATIVE LAW - judicial review - s 69 of the Supreme Court Act 1970 - two complaints - racial vilification broadcasted on air - whether Tribunal applied wrong test to determine whether leave to proceed with the complaints should be granted - whether Tribunal denied plaintiff natural justice - obligation imposed on plaintiff to establish 'substantial reasons' for leave to be granted - error warranting review established - natural justice denied - orders

PRIVATE INTERNATIONAL LAW - anti-suit injunction - plaintiff suffers injury in Fiji - plaintiff brings proceedings in NSW - shipping company seeks declaration in High Court of Fiji - application for injunction to restrain Fiji proceedings - whether foreign proceedings vexatious or oppressive - whether foreign proceedings raise same issues as local proceedings - whether relief sought in foreign proceedings not available in local proceedings.

Contract - Principles of construction - Claims for declaratory relief - Channel Supply Agreement entered into between The Movie Network Channels [CSA] and Optus Vision providing for the supply by TMNC to Optus Vision of pay TV channels containing movie content for use on Optus Vision's pay TV service - Meaning of the words 'Optus Vision retail price for the Movie Channels' - Critical Clause affecting the calculation of the licence fee payable by Optus Vision - Claim by TMNC including interest of approximately half $1,000,000,000- Parole evidence rule - Whether conversations said to have taken place during suite of anterior negotiations admissible - Attribution of corporate knowledge-Principles - Agency theory of attribution - Directing Mind theory of corporate attribution

EQUITY - practice and procedure - application to have proceedings transferred from Local Court to Supreme Court - whether sufficient reasons for hearing proceedings in higher court - whether reasonable grounds for arguing that an oral partnership agreement existed

PROCEDURE - judgments and orders - construction of orders made by the Court of Appeal

Equity - Specific performance of contract for sale of unit. - Vendor and purchaser. Whether it would be necessary for time to be of the essence to ground specific performance. - Held not necessary.

Civil Law - limitation of action - action against father for sexual assault - and against doctor for failure to report - limitation period - whether personal injury - disability - whether limitation period suspended.

TRADE PRACTICES – claim for damages for conduct alleged to be misleading or deceptive within s 42(1) Fair Trading Act 1987 (NSW) – allegation that defendant individuals represented that plaintiff was dealing with a particular entity and that defendant individuals represented they had authority to commit particular entity to a licensing agreement with the plaintiff when in fact they did not – claim that third defendant company was a person involved in the contravention – claimed that plaintiff suffered damages being commitments that it undertook in conducting a business having believed it obtained the rights under the licensing agreements to do so – held that individual defendants’ conduct was in the circumstances not misleading or deceptive because it was not capable of misleading the plaintiff – held no damages suffered because plaintiff did not rely on the alleged inducement and in any event no damage proved – held that company defendant was not knowingly involved in any event because its guiding minds were not aware of the material facts constituting the contravention even if there was one

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute as to existence of debt - whether "some other reason" - whether purported s 459E affidavit is affidavit - whether sufficient for solicitor to depose to matters of which he has no first-hand knowledge

APPEAL – exercise of discretionary power – basis of appellate intervention – whether trial judge gave sufficient reasons for failing to be satisfied that testator’s provision inadequate or failed to give appropriate weight to factors – Family Provision Act 1982 (NSW), s 9(2) - COSTS – payment out of estate – costs consequences for different categories of eligible person – whether costs necessarily follow event – where order for provision in favour of eligible person – costs of executors defending estate – Family Provision Act 1982 (NSW), s 33 - SUCCESSION – family provision and maintenance – “eligible person” – whether application warranted – whether testator made adequate provision for applicant’s maintenance and advancement – whether further provision should be made – size of estate – community standards – stepdaughter/stepfather relationship – early and later years of relationship – whether additional provision to benefit applicant or creditors and children – applicant’s financial circumstances – whether appropriate to interfere with testator’s exercise of testamentary powers – consequences for residuary beneficiaries – Family Provision Act 1982 (NSW), ss 6, 7, 9 - STATUTORY INTERPRETATION – assumption that Family Provision Act 1982 (NSW) applies as in force at date of trial – Act repealed at time of appeal – whether assumption applies in relation to costs provisions – Interpretation Act 1987 (NSW), s 30(1)(b) – Succession Act 2006 (NSW) Ch 3 – Succession Amendment (Family Provision) Act 2008 (NSW) - STATUTORY INTERPRETATION – competing costs provisions – s 33 of Family Provision Act 1982 (NSW) substitute for s 98 of Civil Procedure Act 2005 (NSW) and Part 42 of Uniform Civil Procedure Rules 2005 (NSW) - WORDS AND PHRASES – “advancement” – “eligible person” – “inadequate” – “maintenance” – “provision”

CORPORATIONS - winding up - members voluntary winding up - proof of debt based on judgment debt - whether liquidator may go behind judgment to seek debt - approaches in bankruptcy considered - whether applicable to insolvent company winding up - whether applicable to solvent company winding up

CORPORATIONS - winding up - alleged insolvency through non-compliance with statutory demand - defendant intends to prove solvency - application for leave to defend on grounds that could have been asserted on application to have statutory demand set aside - relevant considerations examined

PRACTICE AND PROCEDURE - Subpoena - costs of responding to subpoena - matters relevant to such consideration - what conduct is relevant - when recipient of subpoena subsequently becomes a party to the proceedings - COSTS - subpoena - entitlement to costs of party answering subpoena - what considerations should be taken into account - what conduct is relevant - when recipient of subpoena subsequently becomes party to proceedings.

PROCEDURE [482] – Judgments and orders – In general – Other matters – Whether inclusion in declaration of a statement that moneys were misappropriated was justified.

TAXES AND DUTIES - customs and excise - the importation of tobacco - smuggling - evading payment of duty - penalty provisions

ADMINISTRATIVE LAW - declaratory relief - roads - whether lands are public roads - whether plaintiff had claimed interest in the roads - whether Council failed to notify plaintiff in accordance with s 224(3) of the Local Government Act 1919 - effect of section 45A of the Real Property Act 1900 - no title in roads established by plaintiff - effect of registration of Council's interest - orders sought declined

Possession proceedings - application for adjournment - order for possession - grant of stay on terms

Application by plaintiff for leave to reopen - Principles - Defendant had made forensic decision now not able to be undone

Criminal law - Sentencing - Money Laundering - whether breach of De Simoni principle - relevance of assistance of no value.

CRIMINAL LAW - appeal against sentence - sexual intercourse with a child - circumstances of aggravation - child under authority of offender - whether special circumstances exist because of first custodial sentence

TORTS - trespass - whether findings of trial Judge that there was no trespass should be set aside

TORTS – negligence – damages – Civil Liability Act 2001 section 15B – meaning of "dependant" – whether relationship of dependency exists between grandparent and grandchild while child’s parents alive and not estranged from child – nature of factual enquiry to establish dependence – relevance of legal obligation to support to whether relationship of dependence exists - TORTS – negligence – damages – Civil Liability Act 2001 section 15B – meaning of "gratuitous domestic services" – whether services "benefited persons in respect of whom damages could not be awarded" – meaning of "benefit" – determining to whom services were provided – whether need for services was "reasonable in all the circumstances" – meaning of "persons in respect of whom damages could not be awarded under subsection (2)" - STATUTES – Acts of parliament – interpretation – permissible use of Second Reading Speech – whether "capable of assisting in the ascertainment of the meaning of the provision" - STATUTES – Acts of parliament – interpretation – use of consequences of legislation as an aid to construction - PROCEDURE – costs – indemnity costs – Calderbank offers – whether indemnity costs available on appeal in absence of new offer of settlement

CRIMINAL LAW - sentencing - murder - plea of guilty - Aboriginal offender - history of domestic violence