Cases and authorities

DAMAGES – Melbourne/Voyager collision – psychiatric injury – alcohol abuse – whether economic loss a result of collision or voluntary conduct by appellant – intervening act - DAMAGES – predicting future events absent effects of tortious conduct – recovery for loss of a chance of promotion - REASONS – judgment delivered without making orders – further reasons – no breach of obligation to give reasons at time - TORT – continuation of event – conduct of officer of defendant on morning after accident – whether part of tortious conduct

Interim detention of serious sex offender.

Criminal law - conviction appeal - sexual crimes - different jury verdicts - jury verdicts not unreasonable

Negligence – Legal Practitioners – Solicitor – Failure to exercise reasonable care and skill – Immunity from suit – Work out of court concerning conduct of case – Damages – Whether losses sustained were reasonably foreseeable - Contract – Legal Practitioners – Solicitor – Breach of implied term of retainer – Whether loss or damage not unlikely to flow from breach

DEFAMATION – defence of truth – substantial truth – truth of every material part of the imputation - DEFAMATION – defence of contextual truth – no findings made by trial judge – should Court of Appeal determine defence where matters of fact and evaluation involved - JUDGMENTS – adequacy of reasons - expert evidence

CORPORATIONS - reinstatement - application by defendant in building claim proceedings who wishes to obtain apportionment of liability against company - reinstatement opposed by plaintiff in building claim proceedings - whether applicant a person aggrieved by the deregistration - whether Court satisfied that it is just to reinstate registration - whether, in circumstances where company would be in insolvent liquidation if reinstated, leave should be granted to permit cross-claim against the company for apportionment of liability

[CONTRACT] - whether promise to pay a reasonable fee after the service provided, consideration - whether promise to pay the plaintiff a 'reasonable' fee for introducing two companies for purpose of possible merger void for uncertainty - [QUANTUM MERUIT] - whether service required - whether benefit received - whether expectation of fee for introduction

CRIMINAL LAW – detaining a person with intent to obtain an advantage - SENTENCING – appeal against severity of sentence – applicant’s offence motivated by revenge – alleged earlier sexual assault by victim upon applicant – assessment of objective seriousness of the offence – availability of a suspended sentence as an alternative – sentence not manifestly excessive

WORKERS’ COMPENSATION – motor vehicle accident – claim under Motor Accidents Compensation Act 1999 (NSW) - meaning of "damages" under s 149 Workers Compensation Act 1987 (NSW) - "recovery of damages" for s 151Z(1)(c)

COSTS – offers of compromise – offer of compromise by defendant – offer not accepted –costs follow the event – offer made less than 24 hours before commencement of trial – whether offer open for such time as reasonable in circumstances – Uniform Civil Procedure Rules r 42.15, r 20.26 - COSTS – costs of appeal – consequence of offer of compromise made prior to trial – indemnity costs – Uniform Civil Procedure Rules r 42.15 - COSTS – costs follow the event - proportionate on level of success

CORPORATIONS - voluntary administration - extension of convening period under s 439A(6) - where time is needed to clarify complex facts and creditors' rights, so that creditors can be given useful information and expressions of opinion in the administrators' report and at the meeting - whether order should be made under s 447A(1) to permit administrators to hold creditors' meeting within the extended convening period and the 5 business days thereafter

CRIMINAL LAW - serious sex offender - application for continuing detention order - order not opposed.

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – adjudicator’s consideration of a issue not raised by parties – parties denied opportunity to put submissions on issue – whether issue material to determination – whether denial of natural justice – adjudicator’s failure to consider relevant contractual provisions – power of Court to order adjudicator to reconsider adjudication application.

SUCCESSION – Wills – Rectification – Principles for effecting rectification – Standard of proof – Clear and convincing proof of actual intention needed - SUCCESSION – Wills – Construction of will – Inconsistent gifts – Same property given to different beneficiaries in different clauses of will – Testator presumed to have intended both gifts to take effect – Each beneficiary takes a moiety - COSTS – Wills, Probate and Administration – Construction of will – Both parties partially successful – Whether costs should be borne out of disputed property or residue – Testator failed to make his intention clear – Costs to be borne out of residue

FIDUCIARY DUTY - Conflict of duties - Whether real sensible possibility of conflict - Duty to disclose material facts - Whether fact material - FIDUCIARY DUTY - Conflict of duties - Whether causation relevant - SOLICITOR - Acting for multiple parties - Whether conflicting duties - Whether real sensible possibility of conflict - SOLICITOR - Acting for multiple parties - Duty to disclose material facts - Whether reduced risk of legal challenge material fact

CONTEMPT OF COURT - jurors - insulting remarks made after discharge but in presence of jurors - insulting remarks made to media outside court - interference with administration of justice - charges made out.

PARTICULARS - Claims outside scope of pleading - Entitlement of defendant to require appropriate specification - Amendment of defence - Interlocutory relief

WILLS – Testatrix left property by will owned by a company as trustee of a discretionary trust – testatrix controlled trustee – testatrix not named as a beneficiary - TRUSTS – remedies – rectification – whether persons establishing discretionary family trust intended to name herself as an object – whether clear evidence of sufficiently precise intention so that Court can determine the substance and detail of variation ESTOPPEL – estoppel by convention – whether both parties conducted their relationship on the basis of a mutual assumption – whether an act or omission on the part of the trustee led to any action or inaction on the part of the plaintiff – testatrix the controlling mind of the trustee – same assumption in both capacities but no causal link founding an estoppel - EQUITY – equitable estates and interests – discretionary family trust – after rectification testatrix was a member of the class of objects and was the controlling shareholder and director of the corporate trustee – whether testatrix was therefore the beneficial owner of the trust property – trust not a sham – control of trustee with power of appointment coupled with membership of the class of objects does not amount to beneficial ownership

CRIMINAL LAW - Appeals against order dismissing charge of malicious damages to property - appeal on question of law - notices of contention - whether proceedings be remitted to the Local Court due to error of law - error of law established - extent of power of court to make finding of facts available to magistrate - what constitutes damage - interference with functionality alone insufficient - physical interference or alteration to the property - appeals dismissed - notice of contention upheld

Negligence - causation - dancer fell and was injured - tape marking boundaries of dance area - if foot was on tape could have caused fall - no direct evidence that foot was on tape - whether evidence enabled finding that it was - by majority, fall from slipping on tape not shown to be more probable than fall otherwise occurring.

COSTS – costs assessment – party and party costs – failure of costs assessor to disclose costs agreement between other party and solicitor – client legal privilege – procedural fairness - COSTS – scope and operation of indemnity principle – conditional costs agreement – no bill of costs delivered - PROCEDURAL FAIRNESS – practical injustice – effect of unfairness on outcome - WORDS & PHRASES – “practical injustice”

EXTENSIONS of limitation period - ss 60C & 60E

LIMITATION OF ACTIONS - Application to extend time - Not just and reasonable to order where viable case not demonstrated - Uncontested evidence of appropriate treatment received by employee in respect of injury from foreseeable risk - That arrangement for treatment made by employee does not thereby found cause of action in negligence

ADMINISTRATIVE LAW - judicial review - discretionary relief - futility

PRACTICE AND PROCEDURE - DEFAMATION - Notice of motion seeking summary dismissal of proceedings - whether frivolous or vexatious - whether pleading discloses reasonable cause of action - alternatively order striking out pleading - whether defamation claim statute barred - whether the plaintiffs have cause of action able to be properly formulated - repeated failure by the plaintiffs to provide proper particulars - failure to particularise special damage or malice in pleading injurious falsehood - expense and oppression to defendants - further amended statement of claim struck out - notice of motion stood over

BANKRUPTCY - proveable debts s 82 exception in s 82(2) - companies sued former Managing Director for tort damages for amounts of money he had misdirected in payment of false invoices and payroll ghosts - consideration whether claims were not provable in bankruptcy as "in the nature of unliquidated damages" and "arising otherwise than by reason of a contract, promise or breach of trust" - excursus on whether breach of fiduciary duty is "breach of trust" - HELD, claims were liquidated debts in Equity, claims arose by reason of a contract, the debts were provable debts and the proceedings could not be disposed of in the absence of leave of Federal Court under s 58(3)(b).

CORPORATIONS - winding up - creditors voluntary winding up - application for appointment of special purpose liquidator - whether court has jurisdiction to appoint - where significant creditor presents cogent case for investigation of dealings in period immediately before voluntary administration that led on to creditors voluntary winding up - that creditor lacks confidence in existing liquidator - creditor willing to fund investigations if undertaken by different liquidator - need for financial regime to be defined

CRIMINAL LAW - Application to exclude evidence under s 138 of Evidence Act - No illegality or impropriety - Relationship between ASIO and AFP - Crimes Act (C'Wealth) - s 3ZO - Relevant factors under s 138 Evidence Act 1995

CORPORATIONS - inspection of documents by shareholders 247B Corporations Act - Home Unit company directors made arrangements with one member about developing roof garden - proprietors of one unit objected, brought proceedings and established on appeal that the arrangements should not be carried out - large costs incurred by Company - another member who opposed the arrangements and litigation sought information from directors about decisions and legal advice and received responses which in substance were refusals - levies for litigation costs imposed on members - no specific claim against directors and company proposed - consideration of case law on inspection of corporations' documents by members - HELD - order for inspection made.

Privilege - Redacted Funding Agreement - Waiver of Privilege

PRACTICE AND PROCEDURE - cross vesting - interests of justice - appropriate forum - Commercial List - transfer.

CRIMINAL LAW - Sentencing - drug offence - supplying commercial quantity - s21A(2)(n) - Crimes (Sentencing Procedure) Act

CRIMINAL LAW - application for leave to appeal against sentence - robbery while armed with an offensive weapon - finding of special circumstances - diminished prospects of rehabilitation - whether trial judge gave adequate consideration to mental health of applicant - whether sentence and non-parole period manifestly excessive

ASSOCIATIONS AND CLUBS - incorporated associations - tenure of office-bearers - where executive committee members hold office "until the next annual general meeting when they shall retire" - no annual general meeting held - where board of trustees to consist of specified number of members and all but one resign - whether that one can function alone - admission of new members - whether recommendation of executive committee required by rules was made - whether board of trustees admitted new members - general meetings - whether general meeting requested in accordance with rules - whether model rule about requisitioning of general meetings by members applied - whether general meeting convened in accordance with model rule - board of trustees and executive committee purportedly elected at general meeting not duly convened - EQUITY - equitable relief - declaratory relief - discretionary considerations - delay - laches - where proceedings not commenced until two years after new bodies purportedly elected - where those bodies operated during that period - TORTS - interference with contractual relations - whether contract existed - whether alleged wrongdoer had relevant knowledge of contract - whether breach of contract induced by him - whether he interfered indirectly with contractual performance

CRIMINAL LAW - Mental Health - Criminal Procedure (Amendment Act) 2005 - Unfitness to be tried by a Judge alone - Constitutional Law - s 11(1) of the Mental Health (Criminal Procedure) Amendment Act 2005 does not offend the mandatory direction in s 80 of the Constitution - Fitness issue not an essential feature of trial by jury

SUCCESSION - family provision - claim by widow - financial and material circumstances of Plaintiff - obligation upon an applicant for provision to place before Court as fully and as frankly as possible all information concerning her financial and material circumstances - belief of Deceased that Plaintiff would be entitled to a far greater pension than she was, in fact, entitled to receive - whether Plaintiff has been left without adeqaute provision for her proper maintenance - compulsive gambling habit of Plaintiff.

Insurance - Superannuation - Duty of good faith and fair dealing - Total and permanent disability - Contractual construction - Express language - Employer - Causation - Resignation - Insurer's discretion - Regular remunerative work - Allegations of fraud must be clearly proved - Standard of proof

SUCCESSION - family provision - claim by widow - relationship of no more than nine years, characterised by numerous separations and reconciliations - various court proceedings instituted between Plaintiff and Deceased - financial and material circumstances of Plaintiff- whether Plaintiff has been left without adequate provision for her proper maintenance - actual estate of little value - claim against notional estate - prescribed transactions - importance of not interfering with reasonable expectations in relation to property - even if Plaintiff were to receive entirety of available notional estate, Plaintiff would receive no practical benefit, since that amount would go to her creditors

CRIMINAL LAW - bail - jurisdiction to grant - applicant serving sentence for other offence - construction of section 9 of the Bail Act - Court has jurisdiction.

PROCEDURE [101] - Supreme Court procedure - Practice under Uniform Civil Procedure Rules - Amendment - Relevant considerations - Whether dictates of justice may best be satisfied by allowing or refusing amendment – Disruption of trial avoided by order for separate decision of question.

TAXES AND DUTIES - Land Tax - Principal place of residence exemption - Adjoining lots with houses on both - One house uninhabitable - Judicial Member of Administrative Decisions Tribunal found defendants failed as a threshold issue to establish that that lot was used for residential purposes - Judicial Member also found that the exemption could not apply to two residences on residential land constituted by adjoining lots - Appeal Panel of the Administrative Decisions Tribunal held that the Judicial Member erred in law in arriving at the "two dwellings" finding and that it was bound up in or informed his "residential land" finding - Only basis for extension of review to the merits of the case - Appeal to Supreme Court on question of law - Submitting appearances by defendants - Whether the Appeal Panel erred in law in extending the review to the merits

CRIMINAL LAW - bail - murder - accused partial paraplegic - medical needs - meaning of "exceptional circumstances" - bail granted.

NEGLIGENCE – collision between motor vehicle and 10 year 8 month old pedestrian who ran out from behind a stationary school bus at bus stop – when driver proceeding at speed limit of 40 km/h - whether driver failed to take steps to avoid the accident by reference to a perceivable risk - whether driver negligent for failing to keep a proper lookout or for driving at an excessive speed in the circumstances – whether pedestrian guilty of contributory negligence – whether bus driver also negligent for failing to wait until the vehicle passed the bus before permitting the plaintiff to alight – car driver at fault but bus driver not at fault – pedestrian’s contributory negligence assessed at 15 per cent

CRIMINAL LAW - appeal against sentence - obtaining money by deception, fraudulent misappropriation, obtaining money by false or misleading statements - pleas of guilty - whether inadequate recognition given to subjective circumstances and consideration of alternate sentencing options - prosecution did not oppose community service - failure to take into account s 5(1) of the Sentencing Procedure Act and to consider alternatives to a fulltime custodial sentence - lengthy delay in finalisation of the proceedings - sentence quashed and community service ordered.

CRIMINAL LAW - Appeal against conviction - 43 counts of doing an act as an officer of a body corporate with intent to cheat or defraud the body corporate - fresh evidence - credibility of fresh evidence - assessment of impact of fresh evidence upon outcome of trial - evidence not capable of casting doubt - whether failure to give a direction in accordance with Longman v The Queen - not a case of presumed prejudice to the appellant - asserted prejuidice explicitly identified as failure by trial judge to refer to potential disadvantage to the appellant caused by absence of certain documents - issue raised by trial judge but not taken up by counsel - appeal dismissed.

ABORIGINALS — Aboriginal land councils — powers and functions — appointment of administrator to exercise all the functions of Local Aboriginal Land Council — whether members of Local Aboriginal Land Council retained voting function to exercise resolution-making power conferred by provisos to clauses in constitution of company in which Local Aboriginal Land Council held the sole share - STATUTORY INTERPRETATION — characterisation of Local Aboriginal Land Council constituted under Aboriginal Land Rights Act 1983 — authority and capacity as a statutory corporation — statutory functions, duties and responsibilities — role of officers and members.