Cases and authorities

DAMAGES - injury whilst operating rubber tyre gantry - challenge to credit findings - significance of inconsistent histories given to medical practitioners. - REASONS FOR DECISION - extent of obligation to give reasons.

EQUITY - rule in Otter v Vaux - extended to guarantors - prevents guarantor keeping first mortgage alive against second mortgage he has guaranteed. - EQUITY - subrogation - unconscionable conduct - guarantor paying off first mortgage - first morgagee holding surplus - not unconscionable for first mortgagee to transfer surplus to second mortgagee where second mortgage also guaranteed. - GUARANTEE - subrogation - guarantor paying off first mortgage - not entitled to subrogation in priority to second morgage guaranteed by himself. - MORTGAGE - rule in Otter v Vaux - guarantor pays off first mortgage - rule extended to prevent guarantor keeping first mortgage alive against second mortgage guaranteed by himself.

PROCEDURE – Costs – Public interest litigation – Need for additional factors if successful defendant to be denied costs – Whether costs should be ordered in this case.

CORPORATIONS - capital raising - convertible note issue - whether misleading or deceptive conduct by lead manager, underwriter and broker before issue of the prospectus - whether draft prospectus misleading or deceptive - whether misleading or deceptive conduct in relation to securities after issue of prospectus and before issue of securities - CAUSATION - where company board relied on representations by due diligence committee and resolved to issue securities - whether but for contraventions the note issue would not have proceeded and the appellants would therefore not have sustained loss - whether appellants can recover in circumstances where they were not misled - DAMAGES - whether appellants entitled to recover damages for issue purchases as well as on market purchases - whether appellants have proved their loss - whether appellants were locked in to their investments - whether rule in Potts v Miller applies - PRACTICE AND PROCEDURE - pleadings - surprise rule - materiality - requirement to expressly plead materiality - dishonesty - requirement to expressly plead dishonesty - PRACTICE AND PROCEDURE - trial - failure by trial judge to deal with argument - where trial judge and parties agreed that case would be decided on the pleadings - argument previously pleaded but abandoned in later pleading - whether argument raised in pleadings - PRACTICE AND PROCEDURE - appeals - argument not made at trial - whether fair to allow argument to be raised on appeal

CRIMINAL LAW - appeals against convictions in Local Court for affray, assault AOBH - admissibilty of recorded police interviews - evidence illegally obtained - contravention of LEPRA requirement to notify ALS of Aboriginal persons in custody - whether convictions should be set aside without remitter to Local Court - as to one plaintiff, whether conviction supported by the evidence

CORPORATIONS [7]- Right of occupation granted to shareholders- Whether rights conferred include rights to reside in unit properties as a domicile- Plaintiff's articles of association created no right to reside except as a caretaker's residence in Unit 5 for the second defendant- No equitable defence of acquiescence made out. LANDLORD & TENANT [56]- Use and occupation- Plaintiff company the lessee of marina incorporating subject unit properties- Head lease confers the "right to occupy and use premises" for inter alia, marina facilities and caretaker's residence purposes- Held that occupation does not necessarily imply residence. WORDS & PHRASES- "Occupy".

PRACTICE AND PROCEDURE – amended defence – proportionate liability – must be pleaded in manner that discloses the cause of action and damage as if initiating process – amendments disallowed – leave to re-plead

PRACTICE – Criminal Law – Public interest immunity – Open justice principle – Application in relation to confidential affidavits read on voir dire and information derived from those affidavits.

TORTS - negligence - where employee garbage collector sustained severe back injury whilst dragging fallen heavy garbage bin in order to remove driveway obstruction - where employee aware of weight of garbage bin - where certain directions given to employees by employer concerning clean-up of spillages and removal of obstructions and movement of heavy garbage bins - whether directions given sufficient

Contract - right of first refusal - right to occupy stands at Sydney Markets - grant of right of first refusal in 1996 - whether void because an assignment forbidden by statute - whether ineffecive because right to occupy stands not capable of assignment - whether present right to occupy stands under new legislative regime not caught by right of first refusal - consideration on a purchase pursuant to the right of first refusal was a stated amount or the price at which the stands would be sold to another purchaser - if the former, whether void as a restraint upon alienation - whether could contend on appeal that it was - whether pursuant to the right of first refusal a deemed offer was made and accepted - construction of deed recording right of first refusal - consideration of construction or correction to avoid absurd or uncommercial result.

Costs - interim discovery - leave to inspect subpoenaed material - losing parties actively opposed both orders - relevance of claimed confidentiality - usual costs order appropriate.

EQUITY [68] – General principles – Mistake – Effect on contracts – Mistake connected with subject matter of transaction – Compromise of litigation – Error in provision as to time of payment of costs – Reasonable solicitor likely to be aware of mistake – Orders embodying error set aside.

Interim order made by Children's Court placing one child under parental responsibility of the Minister - final order in respect of one child - proceedings commenced by parents seeking their return - parens patriae jurisdiction to be exercised only in exceptional circumstances where Children's Court proceedings have been commenced - claim for certiorari - claim for judicial review of removal decision - application for summary dismissal - proceedings dismissed

CRIMINAL LAW - appeal against sentence - six counts of assault with an act of indecency with a child under 16 years - one count of sexual intercourse with a child above the age of 10 and under the age of 16 - one count of sexual intercourse with a child under 10 years - whether sentencing regime at time of offences resulted in generally lower sentences than presently imposed - specification of non-parole period for offences committed prior to the introduction of Crimes (Sentencing Procedure) Act 1999 - partially accumulated sentence

PROCEDURE - Courts and judges generally - Courts - Dismissal of proceedings - Appeal from decision of Associate Judge dismissing proceedings - Whether Associate Judge erred in dismissing proceedings for want of prosecution or as an abuse of process - Whether dismissal on grounds of abuse of process precluded by existence of viable claim - HELD: No error made by Associate Judge in exercise of discretion to dismiss proceedings.

TORTS - malicious prosecution - absence of reasonable and probable cause for prosecution - where evidence given by investigating police officer to Police Royal Commission that his evidence that the appellant had made admissions demonstrating guilt was fabricated - nature of subjective belief required from prosecutor concerning case to be prosecuted - whether reasonable basis for prosecutor’s belief - whether material capable of forming reasonable basis limited to that admissible in evidence EVIDENCE - rule against hearsay - business records exception - exclusions from exception - whether statement made in the course of evidence before Police Royal Commission excluded from exception as a “representation” “obtained” “in connection with” “an Australian proceeding” - general discretion to exclude evidence - whether discretion should have been exercised to exclude evidence of statement

WORKERS COMPENSATION- Opponent worker claims work injury damages- Opponent did not make a claim for lump sum compensation before or at the same time as required by s 280A WIM Act 1998- Whether primary judge in error in finding that the opponent did not have to comply with s 280A and Ch 7 procedural provisions because he had no entitlement to lump sum compensation- Whether primary judge in error in finding that in any event, the opponent had abandoned any such lump sum claim- Held that in the light of Sch 6 Pt 18C Workers Compensation Act, Ch 7 procedural provisions apply equally to existing claims prior to 2001 amendments- Legislative scheme is focussed on the making of a claim, rather than on one's entitlement or likelihood to succeed- Section 280A acts as gateway to ensure work injury claims cannot succeed unless the plaintiff has suffered permanent impairment in excess of 15%- Statutory obligation to make a claim cannot be avoided by abandonment.

MORTGAGE – indefeasibility of title – forgery – mortgagee sale not satisfying debt – liability of defrauded mortgagor - PRACTICE AND PROCEDURE – res judicata – issue estoppel – capacity to challenge mortgage other than as interest in land without setting aside judgment for possession

Criminal Practice & Procedure - manslaughter by excessive self defence - use of a knife - 16 year old offender - immaturity a factor.

NEGLIGENCE – alleged breach of duty by State in providing plaintiff with access to knife – damage claimed loss of liberty in limiting term imposed by court on plaintiff for stabbing another – no duty of care to prevent such damage – no causation – lawful imposition of limiting term not damage – Civil Liability Act – contributory negligence

CRIMINAL ASSETS CONFISCATION - s 10 of the Criminal Assets Recovery Act 1990 invests in the Supreme Court the power to issue an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances as are specified in the order – order made – reasons for decision

CONTRACT - construction of written agreement - Parties to Joint Venture (Partnership) owned and operated Belmore Hotel - purchased Albion Hotel Cootamundra for dominant purpose of controlling and transferring poker machine entitlements - Albion Hotel purchased with funds of partnership - Boyded owned 2/3 share of partnership and registered proprietor of 2/3 share as tenant in common of both hotels - by 2 contemporaneous agreements (1) Boyded sold its share in real property and partnership at Belmore to three companies (2) dissolved partnership and released assets to new partners being Bitannia (continuing partner) and those three ocmpanies - neither document specifically mentioned Albion Hotel - HELD Albion Hotel passed on general disposition of partnership assets. Decision on non-standard contract documents.

Legal practitioners — assessment of costs — Legal Profession Act 2004 s.384 and s.385 — appeal from assessment panel whether global approach to assessment by panel — whether sufficient reasons given by panel

CORPORTIONS - Application to extend time under s 459G of the Corporations Act 2001 (Cth) - Whether application filed within 21 days of service of statutory demand.

APPEAL – s 39 Local Court Act 2007 and s 75A Supreme Court Act 1970 – whether question of law – where Magistrate decided that a guarantor was estopped from disputing the indebtedness of the principal debtor as the result of its failure to contest a statutory demand resulting in an order for the company to be wound up – HELD – no issue estoppel – error of law found – matter remitted to the Local Court for determination

CORPORATIONS - directors duties - allegation that sole director of one company caused that company to make gratuitous transfer of assets of that company to another company of which he was also the sole director - first company in liquidation - proceedings by first company and liquidator against the director - plaintiffs fail to show that the assets were assets of the first company as distinct from a wholly owned subsidiary of the first company

ROADS - construction of current C.T. which referred to Crown Grant and Parish Map to determine whether reserved road passing through rural property was part of the plaintiffs' land: HELD on construction of C.T. Crown Grant and plan, it was not. Road was dedicated in 1926 but long disused - contentions that Council was estopped from asserting it was still a public road or was obliged to apply to Minister to close it - HELD - no contractual obligation or estoppel bond Council to take action to close road.

CRIMINAL LAW - sentence - murder - motor vehicle used as weapon - offence within mid range - standard non-parole period

PROCEDURE – Application for dismissal of proceedings on grounds of abuse of process – whether alleged inability to obtain a fair trial can be dealt with in the context of a summary dismissal application - whether earlier proceedings between different parties creates an "Anshun estoppel" or attracts similar principles

Application for transfer from District Court - equitable defence - promissory estoppel - no jurisdiction in District Court - s 6 Law Reform (Law and Equity) Act 1972 - s 134 District Court Act 1973 - costs uneccessarily incurred because of professional discourtesy - should be paid by legal practitioner

PRACTICE AND PROCEDURE – costs – security for costs – plaintiff ordinarily resident in both Vietnam and Australia – extreme difficulty in enforcing costs order in Vietnam – sufficient Australian assets to meet costs order – plaintiff not shown to be lacking commercial probity – delay by defendant in bringing motion – application refused

WILLS - construction - whether interest in property is vested or contingent - meaning of 'vest'

FOREIGN JUDGMENT – default judgment obtained in United States – enforcement – allegations of fraud and denial of natural justice – appeal lodged and written arguments delivered – arguable defence available – proceedings for enforcement of judgment stayed until appeal determined

Criminal law - sentencing - whether error in failing to find psychiatric diagnosis mitigated offending - or in regarding offending as "objectively most serious" - or in failing to give greater concurrency to sentences for a number of offences - psychiatric report did not support moderation of culpability or less need for denunciation or general deterrence - sentencing judge meant to emphasise seriousness and was correct - offences involved significant independent criminality and no error in discretion when deciding concurrency and accumulation - leave to appeal granted but appeal dismissed.

REAL PROPERTY – Valuation of land – Compulsory acquisition – Betterment of other land by reason of the public purpose – Whether there was probative evidence of value of betterment – Identification of the public purpose – Market value – Highest and best use – Valuation techniques available where no comparable sales –Construction of ss 55 and 56 of Land Acquisition (Just Terms Compensation) Act 1991 – Whether market value under s 55(a) is the minimum compensation. - PROCEDURE – Appeal – Question of law – Point not taken at first instance – Whether point should be considered on appeal.

APPEALS – assessment of damages – whether Court of Appeal should assess damages for itself or remit to lower court – where case already remitted twice before – just, quick and cheap resolution of real issues in proceedings – Civil Procedure Act 2005 (NSW), s 56(1) and (2) - DAMAGES – loss of a chance – burden of proof – intervention and treatment for post-traumatic stress disorder – assessment of loss of a chance of a “better outcome” – assessment of degree of likelihood of better outcome – where harm resulted from initial exposure to trauma and, through defendant’s negligence, not ameliorated by appropriate care and treatment – likelihood of plaintiff revealing intensity of feelings and responses – what treatment would have been offered – chance of accepting treatment – likely effect of treatment – where aetiology of plaintiff’s condition uncertain – effect better outcome would have had on plaintiff’s financial loss - EVIDENCE – experts – intervention and treatment for post-traumatic stress disorder – evaluation of medical experts’ evidence – where experts’ evidence imprecise – whether earlier treatment leads to better outcome – whether “compulsory debriefing” would have assisted or hindered plaintiff – utility of relying on studies - PRACTICE & PROCEDURE – remittal – nature of court’s jurisdiction on remittal – scope of order remitting for damages to be assessed on loss of a chance basis – whether trial judge bound to accept assumptions underlying order of remitter as factually correct or whether entitled to depart from them – whether statement of claim should have been amended to allege with greater precision better outcome – whether terms of remitter required fresh finding as to liability - WORDS & PHRASES – “remitter”

CORPORATIONS – constitution – interpretation – directors’ powers – retirement deed – whether board of directors had authority to enter into retirement deed with director – whether board had to adopt scheme or plan before conferring retirement benefits on director - CORPORATIONS – directors – retirement benefits – conferral without member approval – whether retirement deed contravened provisions relating to termination payments in Part 2D.2 of Corporations Law – qualification of prohibition in s 200B on giving retirement benefits by s 200G – payment limit fixed by s 200G(2) – whether payments to third party for provision of director’s services constituted part of director’s total remuneration – definition of “remuneration” by reference to disclosure requirements in accounting standard (AASB 1017) – whether remuneration to be calculated by reference to period during which recipient was an officer of corporation – Corporations Law, ss 200B, 200G - INTEREST – pre-judgment interest – whether third party should be paid interest on amount ordered – whether proceedings for specific performance were “proceedings for the recovery of any money” – whether order that money be paid involved “amount for which judgment is given” – whether judgment referred only to judgment in action at law – Civil Procedure Act 2005 (NSW), s 100 - REMEDIES – standing of plaintiffs to seek relief – where specific performance sought – whether director and third party provided consideration for variation deed - STATUTORY INTERPRETATION – accounting standards – purposive interpretation – interpretation of “remuneration” in Corporations Law by reference to accounting standard (AASB 1017) – Australian Securities and Investments Commission Act 1989 (Cth) ss 224, 228 – Corporations Law, s 9 - STATUTORY INTERPRETATION – correction of typographical error – Corporations Law, ss 200B - WORDS & PHRASES – “action” – “indirectly” – “may be effected” – “otherwise made available” –“payment limit” – “remuneration”

PROCEDURE – Amendment – Leave to appeal sought – Whether error of law – Whether leave to appeal should be granted – Finality of litigation.

DAMAGES – negligent design of waterproof concrete slab by an engineer – measure of damages for breach of contract – whether terms of contract required a waterproof slab that would last for the life of the building or one that included a membrane requiring periodic repairs – whether primary Judge’s findings of fact on life expectancy of membrane and repairs to slabs were correct – whether owners of building entitled to damages for diminution in value of building where repairs had been satisfactorily completed

SENTENCING – appeal – when Court of Criminal Appeal should decline to intervene where error established – whether s 6(3) permits Court of Criminal Appeal to form opinion about aggregation of sentences passed – whether ‘sentence’ in s 6(3) means aggregation of sentences or individual sentence – Criminal Appeal Act 1912 (NSW) ss 6(3), 7(1A) - SENTENCING – early plea of guilty – whether judge gave utilitarian discount for pleas of guilty – whether trial judge had to quantify the discount or specify an undiscounted starting point - SENTENCING – multiple offences – totality – whether excessive sentence for escape from lawful custody – whether sentencing judge sentenced for accumulation of sentences, rather than for each offence – questions of total concurrency of sentences – whether sentences, as accumulated, failed to make sufficient allowance for totality – whether sentencing judge gave proper weight to offences contained on Form 1 – whether there was double counting by judge for offences committed whilst on parole – Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3, 44, 45 - STATUTORY CONSTRUCTION – sentence – whether singular imports plural – whether ‘sentence’ in s 6(3) means aggregation of sentences or individual sentence – Criminal Appeal Act 1912 (NSW) ss 6(3), 7(1A) - WORDS & PHRASES – “sentence”

CRIMINAL LAW - Practice and Procedure - Scope of application for discharge of jury - Misconduct of a member of the public - Threats to jurors

DEFAMATION - capacity to convey imputations - consecutive radio broadcasts - spearate publications - differ in substance

PRACTICE AND PROCEDURE - application for extension of time to appeal from decision of Associate Judge summarily dismissing certain claims - Plaintiff determined not to appeal from decision but to replead - Defendants move to strike out parts of amended pleading - motion heard by Judge - Plaintiff then decides to appeal from decision of Associate Judge before decision announced on strike-out motion - whether extension of time ought be granted to allow appeal to be brought - extension of time refused

[CONTRACT] - contracts between telecommunications companies for the provision of telecommunications services from certain countries to Vanuatu - whether subject matter of contract extended to telecommunications services in circumstances where the services were not provided from, to, or through Vanuatu - whether agreement reached between the parties on the amount to be paid for audiotext traffic - [CONVERSION] - use of telephone numbers without legal authority - whether intangible property can be the subject of a suit in conversion

LIMITATION OF ACTION - application for extension of time - action for damages for personal injury - material fact of decisive character - plaintiff's means of knowledge - commencement of action occurs upon commencement of substantive proceedings - statement of claim not filed - power of the court to give retrospective effect to orders - orders nunc pro tunc - extent of plaintiff's psychiatric condition - discretionary power to grant extension - plaintiff required to establish duty of care and breach causing injury - Limitation of Actions Act (Qld) s 31, UCPR Pt 36.4(3) - CONSTITUTIONAL LAW - whether the Constitution recognises the free exercise of religion subject to state legislation - whether a law interfering with the confidentiality of religious confession is made invalid by s 116 of the Constitution - PRACTICE AND PROCEDURE - excess documents put before the court - excessive photocopying - delay - cost order

PARTNERSHIP – accountants – where one partner of a firm promotes investment schemes for clients of the firm – co-partners unaware of single partner's activities – schemes promising returns of 50 per cent per annum – client invests US$4.5M by deposit into a "custodian account" operated by single partner or under his control – loss of all monies – whether in any event single partner resigned from partnership before inducing clients to participate – whether losses recoverable from innocent partners – whether breach of contract or breach of trust by those partners – ss 5 and 11 Partnership Act 1898

COSTS – order obtained against Commissioner under s588FF of the Corporations Act 2001 – Commissioner sought indemnity under s588FGA(2) of the Act – whether indemnity under s588FGA(2) for "any loss or damages" includes recovery for money paid under a costs order.

CONVEYANCING – Contract for sale of land – Whether contract validly terminated – Notice to complete given before completion date, as properly construed, had expired – Whether Vendors otherwise entitled to terminate by reason of repudiation or fundamental breach – Whether Vendors unable to rely on notice to complete due to Vendors’ breach – Whether Vendors ready willing and able to complete - HELD: Notice to complete invalid – No repudiation or other breach justifying termination by Vendors – Wrongful termination by Vendors itself constituted repudiation. - TIME, WEIGHTS AND MEASURES – Particular words and expressions – Completion date defined as the day “12 months after the date of this contract” – meaning of that expression – HELD: completion date as defined means the day immediately following the expiration of the period of 12 months commencing with the day following the date of the contract.