Cases and authorities

LEGAL PRACTITIONERS - application by current client to restrain solicitors from acting for other parties in court proceedings - various grounds on which order may be made - whether any ground made out - whether implied consent by client

Real Property-Torrens Title - Easements - Right of carriageway - Dominant tenement owners seeking to co-join with the right of carriageway, a part of the land owned by them for the purpose of creating a turning or manoeuvring area, the right-of-way being insufficient in itself to permit the entirety of the manoeuvring area to be constructed - Proceedings for an order that the servient tenement owners sign a consent to the making of a development application to the Council for the making of alterations to the driveway constructed on the right-of-way - Proper construction of the easement - Practice and procedure - Overriding purpose rule

COSTS – indemnity costs – plaintiffs failed to prove case on damages – cross-claimant failed to prove case on causation – no question of principle. - CORPORATIONS – company in liquidation joined as cross-defendant pursuant to leave of Court – company makes further cross-claims whether party seeking joinder should indemnify company for all costs incurred or payable by it.

CRIMINAL LAW - sentence for murder - murder of partner after night of drinking - application of standard non-parole period - aggravating and mitigating factors.

SUCCESSION - Family provision and maintenance - whether testatrix made adequate provision for applicant - no competing claims - applicant in a comfortable asset position - applicant estranged from testatrix - adequate provision for applicant in will.

CONTRACT - limitation of liability - whether limits liability for damages for repudiation.

COSTS – costs of application for extension of limitation period – costs of trial and retrial – costs of appeal – whether costs of first trial should be dealt with in same way as costs of second trial – whether successful party should be deprived of costs relating to issue on which successful party lost- whether issue dominant or separable – effect on costs of appeal of Calderbank offer made at time of trial but not renewed for appeal – effect on order for costs of trial of Calderbank offer made by three plaintiffs jointly to settle for $X to be paid to them jointly, when on appeal two plaintiffs recover more than $X and a new trial is ordered concerning the third plaintiff

APPEAL – leave to appeal – notice of discontinuance filed – no need for leave – liability of applicant for costs to date of discontinuance - COSTS – offer of compromise – comparison with judgment – inclusion of interest to date of offer – no part of costs to be included - COSTS – offer of compromise – change in costs consequences flowing from non-acceptance – application of rules applicable at date of offer – power to otherwise order - PRACTICE AND PROCEDURE – replacement of District Court Rules by Uniform Civil Procedure Rules – power to dispense with requirements of uniform rules – Civil Procedure Act 2005 (NSW) Sch 6, cl5 - PRACTICE AND PROCEDURE – summons filed out of time – power to extend time repealed – effect on existing liability – Interpretation Act 1987 (NSW), s 30 – dispensing power – Civil Procedure Act, ss 14 and 16

CORPORATIONS - winding up - appeal against liquidator's rejection of proof of debt - no evidence to warrant proof of debt - no question of principle

CONTRACT – refusal to continue to provide services – whether repudiation – exclusion clauses – whether sufficient to exclude liability for damages for repudiation.

FAMILY PROVISION AND MAINTENANCE - claim by husband - short period of marriage - consideration of character and conduct of eligible person - whether life estate for surviving spouse appropriate - COSTS - Family Provision Act claim - amount of costs - lack of proportionality

Family Provision. Application by widow and former wife. Widow left $600,000 in will of deceased. Estate approximately $1m. Widow's claim dismissed as sufficient provision made in will. Former wife's claim refused as insufficient explanation for delay in making application.

CORPORATIONS - winding up in insolvency - statutory demand - application for order setting aside - genuine dispute - no matter of principle

FAMILY LAW - de facto relationships - existing orders of District Court adjusting parties' interests in property under Property (Relationships) Act - one such order that jointly owned property be sold and proceeds be applied in stated manner - plaintiff unable to obtain benefit of order - jurisdiction of Supreme Court to act in aid of and be auxiliary to District Court in matters under Property (Relationships) Act - REAL PROPERTY - land in co-ownership - orders appointing trustees for sale - variation of statutory trusts for sale

MORTGAGE - application for possession by mortgagee - mortgagors elderly with limited English - whether capable of understanding transaction - Contracts Review Act 1980 - whether contract unjust - undue influence - unconscionable bargain - Powers of Attorney Act 2003 - security document executed by co-owner pursuant to powers of attorney granted by other co-owners - whether valid or procured by fraud - unjust enrichment - restitution - order for possession granted

Defamation – Defences – Qualified privilege – Common law – Reciprocity of duty or interest between publisher and recipient – Whether recipient is ‘interested in’ the information – Reciprocity of duty or interest within an ethnic community – Whether publication actuated by improper motive – Malice – Express malice – Whether qualified privilege destroyed by malice – Delay between events subject of defamation and defamatory publication – Damages – Single sum of damages assessed in respect of multiple publications – Whether damages were excessive

Costs - defendant's offer of compromise - made under Pt 19A District Court Rules - at the time, consequences of plaintiff's failure to accept offer and then not bettering it under Pt 39A District Court Rules - prior to finalisation of proceedings Uniform Civil Procedure Rules came into force - different consequences under Pt 42 r 5 - costs would substantially eat up damages - whether a relevant consideration - discretion miscarried - whether order dispensing with UCP rule - or order otherwise under UCP rule - order made as if under District Court Rules.

ADMINISTRATIVE LAW – Freedom of information – access to documents – exempt documents – whether documents exempt from production by reason of legal professional privilege – sufficiency of proof of prima facie privilege – whether non-disclosure of exempt matter constitutes breach of procedural fairness – s 55 Freedom of Information Act 1989 –whether documents produced for improper purpose – whether sufficient evidence to raise prima facie case of improper purpose – whether Administrative Decisions Tribunal Appeal Panel erroneously made a finding that there was no evidence of improper purpose – whether Appeal Panel erred in law in declining to remit matter to Tribunal in circumstances where Tribunal had made an error of law – sufficiency of reasons of Administrative Decisions Tribunal and Appeal Panel - PROCEDURE – Supreme Court procedure – whether leave required to appeal from decision of Administrative Decisions Tribunal Appeal Panel – whether decision of Appeal Panel was an interlocutory or final decision – s 119(1A) Administrative Decisions Tribunal Act 1997 - STATUTES – Interpretation – whether legal professional privilege exemption in legislation should be construed narrowly – Sch 1, cl 10(1) Freedom of Information Act 1989 – meaning of “from production in legal proceedings” – whether exemption should be upheld only in circumstances where claim of privilege would be upheld by a court in legal proceedings – application of “general policy of disclosure” enshrined in Act to construction of exemptions contained in Act – distinction between procedural and evidentiary rules within which court determines whether matter has characteristics needed to make it privileged from production and the characteristics required of privileged documents - STATUTES – Interpretation – construction of Acts forming scheme of legislation – proper to have regard to each Act for the purpose of construing expressions used in any one of them – s 73 Administrative Decisions Tribunal Act 1997, Sch 1, cl 10(1) Freedom of Information Act 1989 - EVIDENCE – witnesses – whether effect of decision in Jones v Dunkel is to compel the drawing of inferences when a witness is not called

No denial of procedural fairness or jurisdictional error on the part of Greyhound and Harness Racing Appeals Tribunal - Duties of specialist Tribunal acting on its own specialist knowledge and its capacity to draw inferences

Pre-judgment interest - Costs - Interest on costs

FAMILY PROVISION AND MAINTENANCE - claim by stepdaughter of deceased - small estate - lack of continuing close relationship - whether factors warranted the marking of the application - whether plaintiff would be regarded as natural object of testamentary recognition

ACCESSORY AFTER THE FACT TO MURDER - Plea of guilty - Sentence

TORT – Negligence – Personal injuries – Appeal as to quantum of damages – Whether error by primary judge shown – Adjustment of past economic loss.

Damages - solicitor's negligence - sale of adjacent properties - failure to advise to make contracts interdependent - purchaser sought to complete on one only - eventually did not complete on either - loss on re-sale - whether loss caused by negligence - assessment of loss according to the possibilities or probabilities - contract price as correct starting-point for assessment of loss on re-sale - discretionary interest.

FAMILY PROVISION AND MAINTENANCE - claim by daughter of second marriage - estate to son and daughter of first marriage - consideration of what is proper provision - COSTS - Family Provision Act claim - amount of costs - lack of proportionality

CRIMINAL LAW AND PROCEDURE - Sentence - Crown appeal - Manifest inadequacy demonstrated - (per Hulme J) - 20% discount for utilitarian value of plea of guilty involved miscarriage of discretion - Little mitigation in offender's gambling addiction - (by the Court) - Material since sentence including illnesses of respondent - Residual discretion to dismiss Crown appeal invoked

SENTENCE - Crown appeal - Break, enter and commit serious indictable offence in company - resondent traverses his plea during cross-examination - Judge proceeds to sentence on erroneous basis - sentence set aside and matter remitted to District Court for re-determination - observations re manifest inadequacy of sentence imposed.

CRIMINAL LAW – appeal against severity of sentence – series of offences – common assault – assault occasioning actual bodily harm – aggravated indecent assault – malicious wounding – pleas of guilty – whether sentencing judge erred in assessment of culpability, weight given to prior good character, finding of gratuitous cruelty, calculation of non-parole period – whether becoming a “registrable person” is extra curial punishment so as to reduce sentence – indecent assault not committed for sexual gratification does not render the offence less heinous – prior good character does not preclude finding of gratuitous cruelty – starting point of sentence beyond maximum applicable – non-parole period properly determined given overall criminality

CRIMINAL LAW – Forensic procedure – hair sample taken from serious indictable offender in periodic detention – police officer performing procedure purporting to act under authority of order made under s 70 Crimes (Forensic Procedures) Act – whether taking of hair unlawful – proper construction of s 70 of Act – whether s 70(1)(c) or s 70(2)(c) of Act applicable in the circumstances – proper construction of s 62(1) and s 74(3) of Act – whether failure to comply with s 71 of Act because hair sample could have been taken pursuant to court order under s 74(3) – relevance of privilege against self-incrimination – whether right to natural justice arises – whether compliance with s 73 of Act – whether compliance with s 73 is a precondition for the validity of an order made under s 70 – whether if in circumstances taking of hair sample was unlawful Act would require destruction of sample and information derived from sample - STATUTES – Interpretation – whether definition of “order” in s 3 Crimes (Forensic Procedures) Act applies to s 70 of Act – s 6 Interpretation Act 1987 - APPEAL – whether appeal from a final decision of an Associate Justice lies to a single judge or to the Court of Appeal - PROCEDURE – costs – appeal from decision of Associate Justice brought in incorrect tribunal – respondent awarded costs of motion on indemnity basis – appeal – whether conduct of appellant has degree of delinquency concerning conduct of proceedings to warrant order for indemnity costs

CRIMINAL LAW AND PROCEDURE - Sentence - Dangerous driving causing death - Victim a passenger in heavy vehicle driven by appellant - Finding of genuine remorse at loss of partner - Relevance of fact that victim not a stranger - Victim pregnant but no evidence that appellant aware of this - Death of foetus and relevance to fatal injury to mother carrying unborn child where causing that injury is element of offence - Whether assessment excessive - Allowance for pre-sentence quasi custody in residential rehabilitation

SUCCESSION - Family provision and maintenance - whether testator made adequate provision for applicant - modest estate with competing legitimate claims - entire estate left to ex-wife - ex-wife had returned from Philippines and provided care for testator - promise by testator to leave estate to ex-wife.

Criminal Practice & Procedure - objection to listening device - relevance - whether unfair prejudice - discretion to exclude.

PROCEDURE - appeal from decision of Associate Judge - whether certain claims in statement of claim precluded by prior adjudication - prior orders by consent on settlement of proceedings - application to have settlement and consent orders set aside because settlement allegedly procured by deceptive conduct - damages for deceptive conduct also claimed - whether damages claim and claim to have settlement and consent orders set aside may proceed together - whether claims replicating those settled and dealt with by the consent orders may also be progressed but contingently on consent orders being set aside - effect of consent orders in creating estoppel - whether rules of court in force when orders made allow re-agitation of settled claims despite consent orders

TORT - Apportionment of liability - Breach of duty - Causation - Contributory Negligence - Duty of care - Moving in hazardous conditions - Moving in hazardous circumstances - Negligence - Oversize vehicle - Reasonable warning - Road Transport (Safety and Traffic Management (Road Rules) Regulation 1999 - What constitutes - Flashing lights - Hazard lights - WORDS AND PHRASES - "moving in hazardous circumstances" - "moving in hazardous conditions"

OCCUPATIONAL HEALTH AND SAFETY – obligation to provide safety induction training – Occupational Health and Safety Act 2000 (NSW) s 39A – Occupational Health and Safety Regulation 2001 (NSW) reg 213 - TORTS – negligence – duty of care of principal contractor to subcontractors – building and construction work – duty of principal contractor to maintain safe workplace – duty to take reasonable care to ensure safety of subcontractor – whether non-delegable duty – failure to ensure subcontractor underwent safety induction training – extent of direct supervision of sub-contractors - TORTS – negligence – contributory negligence – obligation of plaintiff to take reasonable steps for own safety - TORTS – negligence – contribution between joint tortfeasors

APPEAL - Local Court Magistrate - whether there was a fair trial

CRIMINAL LAW – Sentence – solicit to murder – plea of guilty – exceptional case – level of discount for assistance to authorities – interference with administration of justice – lesser role than principal – psychological factors – 60 percent discount for plea and assistance – special circumstances – unreasonably disproportionate punishment.

VENDOR and PURCHASER - exchange of contracts - informal exchange by solicitor acting for V and P - copy signed by V complete, copy signed by P did not contain 9 printed pages including alterations and Cooling-off Statements - HELD - no contract formation, alternatively P entitled to rescind because of absence of Cooling-off Statement - Sindel v Georgiou distinguished as in this case there was no earlier consensus which would ground rectification.

SUCCESSION - claim by three adult sons under Family Provision Act - attempt to bring in as notional estate home that passed to de facto partner by survivorship - plaintiffs seek interlocutory restraint on dealing with home until trial - plaintiffs' claims weak to marginal - de facto partner elderly - has lived there for a long time - no threat to dispose of property

APPEAL - Costs Assessor

Strike out application - Appeal Local Court Magistrate - recovery of levies under the Rural Lands Protection Act

CORPORATIONS – Winding up in insolvency – Failure to pay statutory demand – Presumption of insolvency – During hearing associated party and company enter into loan agreement and moneys advanced to place company in a position to meet debt subject of statutory demand but not intended to be paid over to creditor because company disputes liability – No application pursuant to s 459S of the Corporations Act 2001 (Cth) to rely on any matter other than proving solvency – Whether loan funds to be taken into account in assessment of company’s solvency – Failure to provide “fullest and best” evidence of solvency – Failure to rebut presumption of insolvency

CRIMINAL LAW — Sentencing — Manslaughter — victim a young child — offender responsible for her care — element of deterrence

CRIMINAL LAW - murder by stabbing - plea of guilty - mid range of objective seriousness - prior criminal record - mitigating factor of youth - finding of special circumstances

COMMON LAW - Local Court appeal - vicarious liability of employer - authorised or independent act - power to enter verdict for successful appellant

TORTS AND CONTRACTS - prior findings of liability of both defendants for breach of contract and negligence - whether claims "apportionable claims" under Civil Liability Act - whether defendants "concurrent wrongdoers" under Civil Liability Act - principles to be applied in apportioning liability among concurrent wrongdoers - assessing respective degrees of responsibility - relevance of "unjust enrichment" - unavailability of contribution and indemnity among concurrent wrongdoers

LIMITATION OF ACTION - Ultimate statutory bar of thirty years - Findings on claim for suspension by reason of disability if that bar inapplicable

CRIMINAL LAW - Practice and Procedure - Fitness hearing before Judge alone. - CRIMINAL LAW - Mental Health (Procedure) Amendment Act 2005 - Transistional provisions - Meaning of. - CRIMINAL LAW - Practice and Procedure - ss 121 and 130 of Criminal Procedure Act 1986 - Commencement of criminal proceedings by filing and presentation of indictment - Commencement of criminal trial - Ascertainment of commencement date.