Cases and authorities

COSTS – whether costs available under insurance contract – apportionment of costs according to time spent on matters and terms of contract - EMPLOYMENT LAW – characterisation of work relationship – whether relationship of employer-employee or principal-independent contractor – distinction between exercise of control and contractual right to control carrying out of work – control and supervision – financial and tax arrangements – mutuality of obligations – whether employee or independent contractor entitled to compensation - INSURANCE – insurance for liability to independent contractors – employees excluded – whether insured indemnified for costs where no liability – written consent to defend claim – restrictions on types of matters for which costs can be obtained

Third party injured as a result of alleged breach of duty by cleaner - Contractual obligation of cleaner considered - Quantum of damages - Consideration of pre-existing back condition, and capacity - Percentage of a most extreme case and earning capacity considered - Bullock order for costs

LESSOR and LESSEE - construction of lease - unclear description of leased area inserted by alteration - objective evidence of parties' intention in their conduct at the time of the alteration - other construction questions on obscure document - no question of principle.

Criminal Practice & Procedure - sentence - joint enterprise murder - suggested equivalent contract killing - whether life sentence warranted - standard non parole period - parity or proportionality with co-offender.

CONTRACTS - sale of laser machine - scope of contract - whether breach of contract - whether plaintiff entitled to damages - TRADE PRACTICES - misleading conduct - whether contravention of Fair Trading Act 1987 s 42 and Trade Practices Act 1974 (Cth) s 52 - turns on facts, no question of principle

Appeal against severity of sentence - supply prohibited drug - consideration of principles of consistent sentencing as opposed to parity of sentencing

SENTENCING - application to redetermine life sentence - imposed in 1987 for murder - application refused - direction that applicant not reapply for redetermination for a period of 20 years - application for leave to appeal from fixing of 20-year preclusion period - nature of appeal to Court of Criminal appeal - factors relevant to fixing of preclusion period - protection of the community - public interest - heinous offence - relevance of sentences for other offences - no patent or latent error in exercise of discretion in setting preclusion period

CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - one count of aggravated indecent asault - one offence of possessing child pornography on Form 1

Sentence - Crown appeal - drug dealing - significance of assistance - manner of calculating discount

DEFAMATION – damages – whether manifestly inadequate – assessment of damages – compensatory damages – gravity of imputations – importance of injured feelings - DEFAMATION – assessment of damages – aggravated damages for failure to apologise where no apology solicited by plaintiff - PRACTICE AND PROCEDURE – appeal – grounds of appeal – scope of review of primary judge’s decision – whether Court should interfere with primary judge’s findings on evidence - STATUTES – s 46A Defamation Act 1974

MINING – mining leases – prohibition on grant over surface of land on which there are improvements – s 62 of the Mining Act 1992 – relationship of dispute mechanism under the Schedule to the prohibition. Service of notices under s 383 of the Mining Act. - STATUTORY INTERPRETION – whether s 75V of the Environmental Planning and Assessment Act 1979 impliedly repeals s 62 of the Mining Act

MOTOR ACCIDENTS COMPENSATION - dismissal then reinstatement of claim under Motor Accidents Compensation Act 1999 section 110 - whether "full and satisfactory explanation" for delay - relevant factors - mistake by solicitors. - PRACTICE AND PROCEDURE - appeal - review of findings of fact by trial judge sitting alone - findings based on credibility of witnesses.

DAMAGES – Whether damages awarded were excessive – Whether primary judge erred in awarding aggravated and exemplary damages – Whether aggravated and exemplary damages were excessive - LIMITATION OF ACTIONS – Whether cause of action barred – Whether primary judge erred in extending limitation period pursuant to Limitation Act s 60C – Evidence of plaintiff and solicitor as to reasons for delay – Whether judge had proper regard to matters listed in s 60E - MISCARRIAGE OF JUSTICE – Failure of plaintiff to particularise allegations – Allegation of incompetence of trial counsel – Failure of trial counsel to ask that statement of claim be struck out as embarrassing – Absence of defendant from trial during evidence of plaintiff - TORTS – Physical and sexual assaults and batteries

Costs - appeal upheld on ground raised by Court - order made at trial not authorised by relevant statute - no claim to different order on basis of judge's findings - whether findings correctly made not decided - disposition of costs on appeal and at trial - no orders for costs.

COSTS – costs of appeal and cross-appeal – where Appellant served on Respondent Offer of Compromise under the Uniform Civil Procedure Rules and a Calderbank offer – application of r 42.14 UCPR to proceedings in Court of Appeal – where Appellant obtained result no less favourable to it than the terms of the offer it made – where Appellant neither succeeded nor failed on new argument run on appeal – whether indemnity costs appropriate – costs of proceedings in court below – where Appellant made Calderbank offer to Respondent on day before trial – where Appellant served Offer of Compromise under the UCPR before second tranche of hearing – where result of appeal is that Appellant ought to have succeeded in court below on basis other than that run at trial or extensively on appeal

CRIMINAL LAW - Commonwealth offences - social security fraud - female offender with young child - Mothers and Children's Programme within Department of Corrective Services - no assessment of suitability of offender for Programme

EQUITY – equitable remedies – equitable compensation – value of shares – appropriate date for assessing equitable compensation is the date of orders

CRIMINAL LAW - murder - not guilty due to mental illness

EXTENSION of time - Appeal costs assessor's decision

PROCEDURE - application to strike out pleadings and/or summary dismissal of amended statement of claim - where amended statement of claim alleged no new material facts - where application made three months before final hearing and defendant made no objection to the original claim in preceding eighteen months - whether amended statement of claim filed irregularly - whether causes of action and material facts sufficiently pleaded - whether certain pleadings alleging that defendant held certain interests on trust untenable pursuant to Conveyancing Act 1954, s 54A - whether certain pleadings inconsistent and embarrassing - whether any such prejudice to defendant from minor deficiencies justifies dismissal/striking out at this late stage.

PROCEDURE – ADMISSIONS – application to withdraw admission that document was executed and delivered by defendants to plaintiffs – whether admission wrongly made – where prima facie reading of document discloses facts as pleaded and admitted – necessity for evidence indicating that admission is wrongly and/or inadvertently made – where first defendant maker of document not giving evidence in proceeding – whether admission inadvertently made – balance of prejudice.

JUDICIAL REVIEW - remedial action - teacher

APPEAL - CTTT - refund of fee for cancellation of gym membership

ADMINISTRATIVE LAW – judicial review of tax decisions – scope of privative clause – Taxation Administration Act 1996 (NSW), s 103A - PROCEDURE – alteration of grounds of appeal – Taxation Administration Act 1996 (NSW), s 100 - PROCEDURE – interlocutory appeal – summons – striking out misconceived claims – whether curable by amendment – whether proceedings of trial court should be interrupted by interlocutory appeal - TAXES AND DUTIES – land tax – objections to land tax assessments – procedure for out of time objections – whether refusal to allow objection to be lodged out of time is reviewable – election of principal place of residence – Land Tax Management Act 1956 (NSW) s 10(1), Schedule 1A, cll 2, 12 – Taxation Administration Act 1996 (NSW) ss 86, 97 - WORDS & PHRASES – “decision” – “objection”

CONTRACTS [105]- Implied terms- Construction of introduction agreement- Agreement expressed two situations in which commission is payable, only one of which expressly included an element of causation- Whether implied term for the situation that does not expressly require causation that commission only payable if defendant's introduction an effective cause of transaction- Held that no such term is implied given inconsistency with express agreement. WORDS & PHRASES- "Carrying on business"- Single transaction ordinarily does not amount to carrying on business. WORDS & PHRASES- "Negotiate"- Held that introducing a party or transaction does not amount to negotiation for the sale, purchase or exchange or any other dealing with or disposition of businesses or professional practices.

Strike out defence, stay of proceedings

CRIMINAL LAW - Jury misconduct - directions given to a jury - examination of jurors on oath - contravention of s68C of the Jury Act - discretion to discharge a jury

CRIMINAL LAW – SENTENCING – Crown appeal against sentence – whether sentence is manifestly excessive – conviction for attempted possession of commercial quantity of unlawfully imported drugs – over seventy four kilograms of ecstasy involved – storage of ecstasy at respondent’s residence - participation in enterprise over a short duration of less than one day - PRACTICE AND PROCEDURE – correction of technical error regarding pre-sentence custody

Criminal law - sentencing - possession of child pornography - sentence not manifestly excessive

CRIMINAL LAW - appeal against conviction - malicious wounding causing grievous bodily harm of a police officer in execution of duty - self-defence - response to lawful conduct under ss 418 and 422 of Crimes Act

PRACTICE AND PROCEDURE - application for leave to appeal from costs judgments - whether reasons given for departure from principle that costs follow event - whether applicant heard - relevance of r 36.11 Uniform Civil Procedure Rules 2005 - whether error of law or questions of fact not warranting re-examination by grant of leave - whether inconsistency between principal judgment and findings on application for costs - where questions of issue estoppel may be raised

CRIMINAL LAW AND PROCEDURE - Sentence - Juvenile - Multiple serious offences - Sentencing judge expressly structures sentences to enable minimum term to be served in juvenile detention - Consequent leniency - Intervention to reduce term refused

CONTRACT – offer and acceptance – whether the delivery of unsigned lease and lessor’s disclosure statement constituted an offer – whether the return of the lessor’s disclosure statement signed but with alterations constituted acceptance – no contract formed - ESTOPPEL – equitable estoppel – no assumption that defendant was legally obliged to enter into the lease – acts of detrimental reliance only minimal – not unjust for defendant to depart from assumption made by plaintiff – no estoppel

TORTS – DAMAGES – whether assessment of damages for personal injuries excessive – past and future economic loss and contributory negligence - STATUTES – meaning of “proceedings”.

COSTS – legal practitioner personally liable for costs – costs on indemnity basis – joinder of party – whether reasonable prospects of success – whether material available for making claim against party – uncertainty about involvement of a party – investigations to ascertain party’s involvement – purpose of costs order against legal practitioner – risks involved in litigation relating to costs orders against legal practitioners – Legal Profession Act 2004 (NSW) ss 345, 347, 348 - LAWYERS – costs of litigation – costs payable by lawyers for unsuccessful party – Legal Profession Act 2004 (NSW) s 348 - STATUTORY INTERPRETATION – without reasonable prospects of success – provable fact – purposive interpretation – Legal Profession Act 2004 (NSW) ss 345, 348 - WORDS & PHRASES – “provable fact” – “without reasonable prospects of success”

PROCEDURE [110] - Supreme Court procedure – Procedure under Rules of Court – Trial – Application under Uniform Civil Procedure Rules r 29.10 for judgment for third defendant generally – Test to be applied as to whether on the evidence judgment for the plaintiff could not be sustained – On this test plaintiff’s evidence to be taken at its highest.

CONTRACTS – INSURANCE – construction of exclusion clause – construction of “arising from” – whether claim arose from insolvency of insurer – whether claim arose from failure of duty to advise on suitability of insurer – whether the failure to advise needed to be established as an objective fact.

GAMING AND WAGERING - s81 Totalizator Act 1997 – whether Minister’s approval of credit betting facility valid – whether facility offered to customer within terms of approval – whether obligations of debtor secured or guaranteed – restitution – whether bets accepted in contravention of s81 void – whether guilty knowledge or intent necessary – causative mistake – quantification of restitution – defences – change of position – estoppel.

MORTGAGES - marshalling - Kalls mortgaged properties in Rose Bay and Pyrmont to NAB on two "all moneys" mortgages - Kalls gave 2M over Rose Bay to Mr Hill and 3M to Across Australia - Kalls gave 2M over Pyrmont to Across Australia and Hill had no security over Pyrmont - 2MM and 3M unregistered and lacked effective power of sale - Across Australia sued for judicial sale and as empowered by the Court sold Rose Bay and NAB took all the proceeds, leaving Hill without effective security - Across Australia then as empowered by Court sold Pyrmont and NAB took most of the proceeds and was then thus paid - balance of proceeds of Pyrmont held by Across Australia's solicitor under undertaking to comply with Court's directions - HELD Mr Hill entitled to marshall against balance proceeds of Pyrmont - apportionment as if NAB had taken same percentage (93%) of proceeds of each security - 7% of proceeds of Pyrmont available for Mr Hill - Consideration of marshalling, apportionment, claims by Across Australia for costs of judicial sale proceedings. Parties to make calculations to give effect to decision.

COSTS - Discontinuance

COSTS - indemnity principle - subrogation - RES JUDICATA - final orders for costs not open to challenge in other proceedings

PRACTICE & PROCEDURE - joinder of parties - civil penalty proceeding against legal adviser to eight transactions asserting liability for involvement in contraventions by directors who caused the companies to enter into those transactions, and also against the directors for breaches of their duties - whether plaintiff is entitled to join adviser and director defendants in a single proceeding under Part 6 rule 19(1) - whether, in absence of entitlement, court should grant leave to permit joinder - relevant discretionary factors

COSTS - death of party - no decision on the merits - HELD refuse to make costs orders against deceased estate - no appointment of LPR or representative under UCPR 7.10.

COSTS - Payable forthwith - Mediation

COSTS – UCPR 42.19 - application by plaintiff for leave to discontinue proceedings – supervening event likely to resolve some issues in dispute between plaintiff and defendant – reasonableness of commencement of proceedings - whether plaintiff should pay costs of the defendant or the court should otherwise order – no basis shown to vary the statutory order – plaintiff to pay costs

COSTS – Plaintiff successful at first instance, and defendant successful on appeal – Offer of compromise by defendant at first instance, but not on appeal – Whether offer complied with rules – Whether it was an offer of a genuine compromise, where acceptance would leave plaintiff with no appreciable compensation – Whether court should order otherwise as regards costs at first instance – Whether court should order indemnity costs of the appeal.

WORKERS COMPENSATION - Disease of gradual process – Commutation under s 51 (now repealed) of the Workers Compensation Act 1987 (the Act) – Determination that liability of the employer in respect of the worker’s skin cancer redeemed and commuted by a lump sum payment, and agreement by the worker that the lump sum removed liability under Division 4 of Part 3 – Following amendment of Division 4, worker claims a lump sum for permanent impairment for skin cancer – Whether deemed date of this injury the date of the claim, pursuant to s 15 of the Act – Whether liability for this injury removed by the commutation and lump sum payment – Whether removal of liability applied to the amended division 4.

DEFAMATION - second stage defamation trial after 7A trial - three imputations - Four Corners - publication throughout Australia 1995 - defences of justification, qualified privilege (common law and statutory) - fair comment - NSW and interstate equivalent provisions - improper purpose or malice - damages including aggravated damages - causation of damage - other aspects of programme also damaging to reputation but not sued on - whether loss of career as public speaker caused by imputations - claim for exemplary damages.

INJUNCTIONS - management agreement for kebab shop - defendant purports to terminate for plaintiff's failure to operate business in proper and pleasing condition, in alleged breach of agreement - whether injunction to restrain acting on notice of termination would force parties to continue in personal relationship - whether it would involve continuing superintendence of the performance of the contract - relevance of lack of mutuality

PROCEDURE - orders to give effect to judgment - whether particular form of interference with contractual relations was pleaded - undertaking as to damages given when interlocutory order made - whether cross-claimant "affected by the operation of" the interlocutory order