Cases and authorities

PROCEDURE – Miscellaneous procedure matters – other matters – inherent jurisdiction of Supreme Court – non-publication order – grounds for non-publication – disclosure not in the public interest – public interest immunity – weighed against proper administration of justice – open justice principle – where information previously disclosed in open court – maintaining integrity of police investigations and safety of officers – whether real risk if non-publication refused

CRIMINAL LAW – application for leave to appeal against sentence – whether sentence manifestly excessive – whether discount for plea of guilty and remorse excessive – discount for assistance to authorities

PRACTICE AND PROCEDURE - amendment to defence - prejudice to plaintiff.

WILLS PROBATE AND ADMINISTRATION - probate - application for revocation of common form grant of probate - whether deceased lacked testamentary capacity - soundness of mind, memory and understanding - insane delusion - evaluation and discrimination requirement - officiousness - consideration of relevance - WILLS PROBATE AND ADMINISTRATION - practice and procedure - caveats - by administrative error caveat not cross-referenced to summons and grant made in error - consideration of proper action

PROCEDURE – Whether trial judge should ordinarily deal with application for stay of enforcement of costs order.

PROCEDURE [552] – Costs – Jurisdiction – Other cases – Costs of interlocutory proceedings – Where applications abandoned – Late and repeated applications for amendment.

Corporations Law. Application to set aside statutory demands under s459G of the Corporations Act. Whether defects in demand and affidavit in support. No genuine dispute established. Proceedings dismissed.

INDEMNITY COSTS – CAVEAT – Caveat incurably bad in form – settlement of contracts imminent – caveator offers to withdraw caveat when proceedings threatened – order for removal made – whether costs reasonably incurred – whether costs should be ordered on indemnity basis.

NEGLIGENCE – prospective purchaser granted licence to live and work at caravan park – duty of care – instructed to perform work – unreasonable want of care – owner/occupier knew or ought to have known of danger – breach of duty – contributory negligence.

CRIMINAL PRACTICE & PROCEDURE - sentence - relevance of similar convictions for later crimes - dangerousness and protection of community - should the sentence be a life sentence? - was it in the worst class of case? - criminality similar to contract killing - determinate sentence.

PROFESSIONS – medicine – complaints against medical practitioner – delegates of NSW Medical Board conducted inquiry for the purposes of s 66 Medical Practice Act 1992 – s 66 inquiry where Medical Board satisfied action necessary for the purpose of protecting health of members of the public – determination by Medical Board to suspend registered medical practitioner – whether plaintiff was denied natural justice – whether Medical Board made misrepresentations to the plaintiff – right to legal representation – whether Medical Board failed to take into account proportionality and period of suspension – whether Medical Board had insufficient regard to facts – whether determination of the Medical Board illogical or irrational – whether Medical Board improperly took into account “mere concern” of “possible” impairment – whether referral to Health Care Complaints Commission properly made

Practice and procedure - Security for costs - Significance of delay in seeking security for costs - Importance of legal practitioners clarity in communications with one another as to whether or not undertakings are sought and if so, given

AMENDMENT - New claim for damages - Claim outside scope of measure - Futility to grant

LICENCE TO OCCUPY PREMISES – claim for possession of premises – defence based on Residential Tenancies Act s 71 – meaning of "residential tenancy agreement" – where licensee let into possession in exchange for agreement to forebear to sue licensor for moneys alleged to be owing to her – whether forebearance to sue within expression "for value" in definition – proceedings dismissed

CRIMINAL LAW - case stated - prosecution by public body - application of s 173 and s 174 Criminal Procedure Act 1986 - whether local council entitled to bring prosecution proceedings in its corporate name - use of court attendance notice - requirement to obtain registrar's signature prior to commencing private prosecution proceedings - meaning of "public officer"

COSTS - no objection to competency of appeal made and appeal held to be incompetent - parties had equal prospects of success on merits of appeal - Uniform Civil Procedure Rules 2005 (NSW), r 42.1, r 51.41

COMMON LAW - summary judgment - claim for possession - alleged Independent Sovereign State - jurisdiction

CORPORATIONS - winding up - members voluntary winding up - application by liquidator for determination of question arising in the winding up - where insurance company entered into arrangements with another insurer for transfer of engagements - arrangements resting in contract only - liquidator seeks direction premised on effectiveness of arrangements to substitute second company as obligee under first company's insurance contracts - second company not a party and not before the court - direction refused.

CRIMINAL LAW - Sentencing - no question of principle

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. No matter of principle.

COSTS – appeal to Supreme Court from Local Court exercising summary jurisdiction – costs follow the event – Commonwealth to pay costs of the appeal.

LIMITATION OF ACTIONS - extension of time - collision between HMAS Voyager and HMAS Melbourne - admissibility of psychiatric opinion evidence concerning normative limb in s.60I(1)(b) Limitation Act 1969 - construction of application of ss.60G and 60I Limitation Act 1969

DEFAMATION - s 7A trial - corporate plaintiff not identified by corporate name in matter complained of only by business name - no evidence matter complained of published to anyone who knew its corporate name - jury directed to answer question whether plaintiff had established identification in the negative - HELD - primary judge erred - there was evidence arguably establishing the plaintiff's identity upon which the jury could reasonably find in its favour.

Appeal from Local Court - suspension of licence - notice specifies two dates - whether void for ambiguity - whether question of law alone.

CRIMINAL LAW AND PROCEDURE - Solicitation to murder - Intended victim a Crown witness in a trial of appellant's son - Payment of "deposit" by appellant to undercover policeman pretending to be willing to kill victim - No error demonstrated in remarks of sentencing judge - Intention not only to kill but cause the victim significant ante-mortem suffering - Stern sentence appropriate - Relevant guidance from prescription of standard non-parole period

Criminal law - sentencing - break, enter and steal (x3), take and drive a conveyance (x2) and other offences of dishonesty - accumulation of sentences - whether manifestly excessive

Equity - specific performance - contract for sale of land - contract not completed after almost fifteen years - whether contract has been abandoned - whether discretionary relief should be refused because of Plaintiff's delay in bringing proceedings.

CRIMINAL LAW – application for inquiry or referral under s.78 Crimes (Appeal and Review) Act 2001 concerning sentence – applicant pleaded guilty to being knowingly concerned in the importation of not less than a trafficable quantity of cocaine contrary to s.233B(1)(d) Customs Act 1901 (Cth) – unsuccessful appeal against sentence to Court of Criminal Appeal – statutory scheme for review – perjury and investigative illegality alleged by applicant

PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Client legal privilege – Whether documents privileged – Dominant purpose for creation of documents – Whether two directors of company each equally entitled to maintain claims for privilege on behalf of company – Director defending claims on behalf of company entitled to maintain claims for privilege on behalf of company – Where retainer of solicitor by company invalid because director who retained services of solicitor on behalf of company acted ultra vires – Whetherbelief that retainer exists sufficient to support privilege – Privilege available where client bona fide believed on reasonable grounds that the solicitor was retained as its solicitor – Held that director with authority to defend proceedings on behalf of company entitled to maintain claim for privilege, on behalf of company, over certain communications with solicitor which were created when company believed retainer existed.CORPORATIONS – Orders previously made for inspection of documents by a director – Supplemental orders made for purpose of making more efficacious the principal orders.

MORTGAGE – claim for possession of land – mortgagor illiterate and intellectually disabled – whether capable of understanding transaction – non est factum – Contracts Review Act 1980 – whether contract unjust – unconscionable bargain – agency – whether mortgage broker agent of mortgagee – restitution – moneys advanced on basis of mistake – unjust enrichment – restitution ordered notwithstanding defence of non est factum

MENTAL HEALTH - application for revocation of management order - matters to be considered

CRIMINAL LAW — Sentencing — Commonwealth offence — pre-sentence custody — willingness to facilitate the course of justice — strength of Crown case

CRIMINAL LAW - appeal against conviction - whether verdict unreasonable or incapable of being supported by the evidence - majority verdict - whether trial judge erred in directing jury - jury - voting figures - whether appropriate to disclose - application for leave to appeal against sentence - whether sentence excessive - whether disparity in sentences

EQUITY – equitable mortgage – joint venture agreement for purchase, rezoning and development of rural property – whether lender entitled to an equitable mortgage over the property – whether mortgage created by agreement and/or deposit of certificate of title with lender – principles considered – whether one party agreed to transfer its interest in the property to the other if rezoning unsuccessful – whether claim to beneficial interest in the property established – construction of joint venture agreement

TORTS - negligence - Sport - rugby league - scrum collapse - catastrophic injury - where plaintiff sixteen years old - where plaintiff playing hooker - where plaintiff playing in unrestricted age competition - where plaintiff younger, smaller and lighter than opposing front row players - where plaintiff had long, thin neck - where plaintiff’s physical characteristics made him more susceptible to scrum injury - where plaintiff suffered tetraplegia upon scrum collapse - liability of Country Rugby League - where Country Rugby League administered sport in relevant part of New South Wales - whether Country Rugby League should have required medical examinations prior to registering players - whether Country Rugby League failed adequately to warn players of risk of injury - whether Country Ruby League failed adequately to disseminate information to participants about the risk of injury to players with certain characteristics who play in certain positions - whether Country Rugby League liable for failure to disseminate information to participants about neck-strengthening exercises - whether Country Rugby League ought to have prevented players of certain physiques from playing in certain positions - where evidence that de-powering scrums significantly reduces risk of scrum injury - whether Country Rugby League liable for failure to de-power contested scrums earlier - whether Country Rugby League ought to have instructed referees to de-power scrums - whether Country Rugby League owed plaintiff a non-delegable duty of care - whether Country Rugby League ought to have changed rules of rugby league - where plaintiff’s coach unaccredited - whether Country Rugby League ought to have allowed team to participate only if coach accredited - AGENCY - Imputed knowledge - whether Country Rugby League could acquire knowledge of a player’s bodily characteristics by reason of the coach’s knowledge - WARNINGS - Whether Country Rugby League had a common law duty to warn player or his parents of risk of spinal injury in rugby league games

NEGLIGENCE – motor vehicle accident – collision between sedan and semitrailer – plaintiff’s sedan crosses onto wrong side of road at site of new roadwork – plaintiff loses control on gravel – road scheduled to be swept on day of accident - whether accident caused by fault of council or its contractor in placing or failing to remove excess gravel – adequacy of precautions and warning signs - CONTRIBUTORY NEGLIGENCE – speed limit of 40km/h – plaintiff travelling in excess of 60km/h immediately prior to loss of control – plaintiff 15% at fault - EVIDENCE – photographs taken at scene of accident – question of whether photographs depict presence of excess gravel or windrows – differing lay and expert opinions – extent to which court may interpret photographs when disagreement exists - CONTRACT – indemnity – obligation upon contractor to indemnify council secured by insurance – whether contractor assumed responsibility for liability of council to plaintiff even if caused by fault of council – council not at fault – issue discussed but unnecessary to decide - INSURANCE – Insurance Contracts Act s 48 – contractual obligation on contactor to effect insurance – whether council an assured within terms of policy

Statutory construction - Meaning of word 'employer' in the former section 158 of Workers Compensation Act 1987 (NSW)

CONTRACT – Sale of franchise business – Contingent conditions – whether contract conditional on grant to franchisor of new head lease of business premises – where contract conditional on grant to purchaser/franchisee “on or before completion” of franchise including licence to occupy premises – where completion has not taken place – whether condition failed so as to entitle purchaser to rescind prior to completion. - CONTRACT – Mistake – Rectification – where no common intention of parties that contract be conditional on grant to franchisor of new head lease – where unilateral mistake by purchaser, in which vendor was in no way implicated, that contract was conditional in that way – whether rescission or rectification available. - EQUITY – Remedies – Specific performance – vendor’s suit for specific performance of contract for sale of franchise business – where reasonable market for such franchises in which vendor could resell and substantial probability that damages would be slight – whether damages inadequate remedy –where serious risk that contingent condition will not be satisfied – where specific performance would have practical effect of requiring purchaser to work franchise and maintain commercial relationship with franchisor with whom it was in suit on cross-claim – where contract entered into under unilateral mistake by purchaser in which vendor was not implicated – where specific performance would impose burden disproportionate to inconvenience of leaving vendor to remedy in damages – whether even if damages inadequate remedy specific performance should be refused on discretionary grounds – where specific performance refused as damages sufficient remedy – whether damages to be ascertained by assessment or inquiry. - TRADE PRACTICES – Misleading and deceptive conduct – where franchisor’s employee represented that he did not anticipate any difficulty in obtaining new lease, and that letter from lessor’s agent contained terms upon which he expected new lease would be granted – whether also represented that there would be no problems in obtaining a new lease, or that there would be or was in place a new lease – whether such representations as made were misleading – where purchaser’s solicitor proposed amendments to contract and proceeded to exchange not in reliance on belief that there would be or was in place a new lease but on misconceived basis that contract protected purchaser’s position in event that new lease was not forthcoming – whether purchaser suffered damage by any misleading or deceptive conduct.

PRACTICE - Subpoenas - Subpoena of documents concerning counselling sessions with a witness - Whether inspection should be granted - Legitimate forensic purpose - Reasonable chance of supporting defence - Whether test different where forensic purpose concerns credibility only.

Criminal law - sentencing - offences of break and enter and other dishonesty - pre-sentence report ordered but not obtained - accumulation of sentences

CORPORATIONS - winding up - insurance companies - application of insurance proceeds in winding up pursuant to Corporations Act 2001, s 562A - where reinsurance contract became subject to negotiated termination - whether sum paid on termination within s 562A(1)(b)

CONTRACTS - requirement for writing under Statute of Frauds - contract for sale or other disposition of interest in land - where grantor of option to purchase land allegedly made oral promise to pay money to grantee if grantee surrendered its option entitlement by allowing a third party to purchase - whether alleged contract entailed "disposition" of "interest in land" - whether contract "for" such disposition - CONTRACTS - consideration - where written contract refers to consideration of $10 "the receipt of which is hereby acknowledged" - where no evidence of payment or receipt of $10 - whether contract fails for lack of consideration - CONTRACTS - formation of contract - conversation between individuals representing companies - whether words spoken created contract between companies

CONTRACTS - oral agreement for commissions to sub-agent - head agency contract wrongfully terminated - substitute agreement either oral or written for percentage of judgment sum in accordance with share entitlements in the second defendant - plaintiff had no shares and accordingly no claim.

PROCEDURE - costs - departing from the general rule - where plaintiff recovered damages of $223,000 upon claims quantified at $924,000 - where mixed outcome in various respects - whether feasible to judge outcome according to issues, matters or heads of controversy - resort to matters of impression and evaluation - whether rules of court in force at inception but no longer applicable should be considered relevant

CONTRACTS - construction - provision for particular matter to be resolved by expert determination if not agreed by parties - whether determination of expert validly and effectively made in accordance with the provision

REAL PROPERTY - easements - construction of bare easement - matters to which the Court may have regard - extrinsic material other than physical characteristics of tenements not relevant. - REAL PROPERTY - easements - modification of easements - s 89(1)(c) Conveyancing Act not intended to be used to benefit dominant tenement.

GAMING AND WAGERING - lottery authorised by statute - effect of statutory provisions and rules governing Oz Lotto - where ticket cancelled without consent of holder - whether holder nevertheless entitled to prize - EQUITY - equitable remedies - claim for rectification of computer records of Lotteries Corporation - whether context of pre-ordained rules giving supremacy to computer records admits of rectification - CONTRACTS - claim by ticket holder for breach of contract by Lotteries Corporation and ticket selling agent - where ticket cancelled without holder's consent - TORTS - negligence - whether duty of care owed by Lotteries Corporation and ticket selling agent to ticket holder in relation to processing of order and cancelling of ticket - whether duty of care breached - CONTRACTS - exemption clauses - approaches to construction - whether applicable to claims in contract and tort - DAMAGES - for breach of contract and negligence in cancelling ticket attracting large prize

DAMAGES – reduction for uncertainty – Malec v Hutton – damages in the past for probable course – mistake in the calculation of interest - COSTS – indemnity costs awarded – Offer of Compromise – costs of medical expert qualified by plaintiff attending interstate an examination by the defendant’s experts.

CRIMINAL LAW - appeal against conviction - objections not taken at trial - evidence of complaint - miscarriage of justice - DNA evidence - jury making a finding of guilt on one or more counts in the indictment when considering any other count in the indictment

CONYEYANCING - Land Titles under the Torrens System - Indefeasibility of Title - Cross claimant first registered mortgagee by transfer - Whether mortgages ceased to secure any indebtedness - Whether mortgages were a sham - Whether registration obtained by fraud within exception to Real Property Act 1900, s 42(1) - Whether earlier transfer of mortgages voidable as alienation with intent to defraud creditors under Conveyancing Act 1919, s 37A