Cases and authorities

Parties sue in Local Court alleging breaches of partnership agreement - no taking of account - no causes of action - no jurisdiction - misdirection and other errors in point of law (including failure to give sufficient reasons)

WORKERS COMPENSATION – Proceedings to obtain compensation – Appeal from Arbitrator to Presidential member – Nature and scope of appeal by way of review – power of Presidential member to review – s352 Workplace Injury Management and Workers Compensation Act 1998 - WORKERS COMPENSATION – Injury - Principles of causation – Principles of compensation – role of the eggshell psyche principle – perception and psychiatric arising out of or in the course of employment – s4 Workers Compensation Act 1987

DEFAMATION – defamatory imputation – alleged defamatory imputation arising from newspaper article – article contained allegations of guilt and allegations of police suspicion of guilt – capacity of matter complained of to convey defamatory imputation – whole of the published matter to be considered – whether the trial judge erred in finding that the imputation was not capable of being conveyed

TORTS – negligence – duty of care of road authority to motorist – motorist affected by alcohol – confusing nature of road works and signs TORTS – negligence – causation – contributory negligence – motorist affected by alcohol

Equity - Fraud committed on plaintiff by third party - Proceeds of fraud automatically impressed with trust - Proceeds of fraud received by defendant - Whether defendant bona fide purchaser for value without notice - Barnes v Addy - Constructive trust - Lease contract between plaintiff and defendant executed subsequent to defendant acquiring notice - Contract - Whether an informal license or tenancy arrangement arose upon third party taking up possession of defendant’s premises - Want of consideration for the cheque received by the defendant - Defendant’s decision to allow tenant into possession was not the quid pro quo for the funds the defendant received

Appeal decision of Costs Review Panel - res judicata, issue estoppel

Appeal decision of CTTT - termination of tenancy - procedural fairness

CRIMINAL LAW – appeal – sentencing – error not shown – not inappropriate sentence in circumstances.

APPEAL – appeal from jury verdict – application for new trial – fresh evidence. APPEAL – review of decision of Registrar – Supreme Court Act 1970 s 46(4) – Supreme Court Rules Pt 61 r 3 – Uniform Civil Procedure Rules r 49.19. SECURITY FOR COSTS – special circumstances – jurisdiction to vary order of Registrar – Supreme Court Act 1970, ss 106, 75A. WORDS AND PHRASES – meaning of “review” in Supreme Court Rules Pt 61 r 3 – meaning of “special circumstances” in Supreme Court Rules Pt 51 r 16.

APPEAL – APPEAL AS OF RIGHT – MONETARY THRESHOLD – NON-MONETARY ISSUES - ADOPTION – ADOPTION OF ADULT – BY STEP-PARENT - STATUTE – CONSTRUCTION – WHEN WORDS CAN BE IMPLIED

Negligence – running down case – no question of principle.

REAL PROPERTY – Strata and related titles and occupancy – validity of special by-law created pursuant to s 43 Strata Schemes Management Act 1996 - special by-laws created right in favour of one lot proprietor to use or occupy part of lot owned by another to store small watercraft - STATUTES - Statutory Construction - expressum facit cessare tacitum – whether only available source of power to create right purportedly created by special by-law was s 88B, Conveyancing Act 1919 - STRATA TITLES AND RELATED TITLES AND OCCUPANCY – Strata Schemes Management Act 1996 s 43 – whether special by-law “appropriate to the type of strata scheme concerned” or inconsistent with Management Act or any other Act or law - REAL PROPERTY – land titles – registration – whether interest sufficiently recorded on the register if folio states the registration of the dealing creating it and identifies the interest.

Search warrants - Validity - Announcement before entry - Delay and impropriety - Extension of warrant - Application for fresh warrant - Telephone warrant - Night warrant - Disclosure of information - Consent - Occupier's notice

Succession. Family Provision. Claim by adult brother. Obligation upon applicant to provide as fully and as frankly as possible all information concerning his financial and material circumstances. Whether Plaintiff has been left without adequate provision for his proper maintenance. Statements by Deceased in her will and other documents regarding Plaintiff and any claim which he might make. Factors warranting the making of the application. Competing claims of Defendants.

WORKERS’ COMPENSATION – Liability to pay compensation – liability of employer – other cases – liability of insurer – where employer became self-insured – where injury degenerative over time – whether injury a disease – Workers Compensation Act 1987, s 16 - ADMINISTRATIVE LAW – Judicial review – grounds of review – procedural fairness – determining matter on the papers – whether Commission required to notify parties of decision to determine matter on the papers – having regard to material beyond the record of Arbitration – Workplace Injury Management and Workers Compensation Act 1998, s 354(6) - ADMINISTRATIVE LAW – Judicial review – grounds of review – jurisdictional matters – whether Arbitrator acted outside jurisdiction in determining claim – where claim for compensation non-compliant with WorkCover Guidelines – whether proceedings a nullity – Workplace Injury Management and Workers Compensation Act 1998, s 260 – WorkCover Guidelines - ADMINISTRATIVE LAW – Judicial review – procedure and evidence – evidence – whether no evidence to support findings of fact

Appeal from Local Court, solicitor's lien, garnishee order

EQUITY - application for interlocutory injunction - where no claim for final relief - no serious question to be tried - applicants guilty of very substantial delay - relief refused

COSTS – plaintiff’s claim for indemnity costs order against unsuccessful insurer – whether court should otherwise order under Pt 42 r 42.14 – whether successful trustee should pay plaintiff’s costs – whether departure from usual rule justified – whether trustee entitled to indemnity costs order against plaintiff – whether circumstances justify making of Bullock order against unsuccessful insurer to pay costs of successful trustee

CORPORATIONS - winding up - statutory demand - application for order setting aside - default assessments for superannuation guarantee charge - allegation of genuine dispute as to existence of debt - whether grounds sufficiently raised in supporting affidavit - evidentiary effect of notices and certificate issued by Deputy Commissioner of Taxation

MORTGAGE – estate and interest of mortgagor and mortgagee – registered proprietors of land were joint tenants – registered mortgage document and housing loan contract forged by one joint tenant – registration of mortgage gave indefeasible title in respect of mortgaged interest - whether any moneys owing under the loan contract or registered mortgage were secured upon innocent party’s interest in property - WORDS AND PHRASES – “means and includes”

Leave to amend statement of claim

MORTGAGES – mortgagor's application to stay execution of a writ of possession – five previous applications – application made at eleventh hour - proposal by mortgagor to refinance – adequacy of evidence to support the proposal – no question that if security property sold mortgagee would be repaid in full – two month delay – further stay granted

PRINCIPAL AND AGENT – Authority of agent – Implied grant of authority to deal with execution page where page signed and delivered on its own by principal to fourth defendant. - CONTRACTS – Unconscionability – Unjust contracts – Borrower in position analogous to that of surety – Contract unjust where terms were not explained and borrower did not understand nature of obligations assumed – No steps taken by first defendant to ensure that contract explained to borrower – Relevance of principles of unconscionability at general law – Question of whether enforcement of contract unjust distinguished from question whether entry into contract unconscionable – Held that contract was unjust in circumstances in which it was made within meaning of Contracts Review Act 1980 (NSW) although other party did not act unconscionably – Purpose of remedy under Contracts Review Act to avoid unjust consequence or result – Held that just to hold borrower to substance of transaction as he understood it to be. - PRINCIPAL AND AGENT – Authority of agent – Scope of actual authority – Ostensible authority – Agent signed parents’ names - Agent with actual authority to mortgage shares but not to enter into contract imposing personal obligations on principals – No ostensible authority where no express representation by principals as to scope of agent’s authority and no usual actual authority of child permitted to negotiate and contract on parents’ behalf in relation to shares owned by parents – Agent purported to enter into contract on behalf of parents granting mortgage over shares and imposing personal obligations upon them –Whether principals bound to extent that provisions within agent’s authority – Where personal obligations not severable – Held that principals not bound by contract. - ESTOPPEL – By conduct – Where beneficial owner of shares represented that he had authority to deal with shares on behalf of bare trustee – Representation of authority induced first defendant to provide finance– Beneficial owner of shares estopped from denying that his signature effective to deal with shares – Held that bare trustee bound by representations of beneficial owner to extent that beneficial owner had actual authority to deal with shares and representation was within scope of authority as agent. - PRINCIPAL AND AGENT – Liability of agent to third persons – Execution of contract by son in name of parents constituting misleading and deceptive conduct –Fair Trading Act 1987 (NSW) s 42 – No requirement that representation constituting misleading and deceptive conduct be made to party claiming loss – Breach of warranty of authority – Measure of damages. - (NSW) Fair Trading Act 1987, ss 42 and 68 - (NSW) Contracts Review Act 1980, ss 7 and 9

Abalone fishery - validity of management charges - statutory construction and jurisdictional error - discretionary defences

WORKERS COMPENSATION – uninsured employer – relevant considerations to be taken into account by Workers Compensation Commission in making an order – Workers Compensation Act 1987 s 145

CRIMINAL LAW – Appeal against sentence – severity – where custodial sentence imposed – plea for suspended sentence – alternative sentences – factors to be taken into account – where criminality agreed – relevance of crime being motivated by drug dependency – disparity – co-offenders – where lesser criminality alleged – Crimes Act 1900, s 313

CRIMINAL LAW – Appeal and new trial – appeal against conviction - CRIMINAL LAW – Appeal and new trial – practice and procedure – appeal against conviction out of time – extension of time to file notice of appeal sought – where appeal against sentence heard and determined two years before application for appeal against conviction – application unopposed – duplication of legal and judicial resources – practice deprecated

Constitutional law – Operation and effect of the Commonwealth Constitution – Trial by jury – Whether finality of a verdict of acquittal is an essential characteristic of trial by jury – Double jeopardy – s 80 The Constitution - Constitutional law – Quasi-constitutional character of Judiciary Act 1903 – Purpose of Judiciary Act 1903 – s 68(2) Judiciary Act 1903 - Criminal law - Appeal & New Trial – Appeal against acquittal – Crown’s inability to appeal against an acquittal a fundamental common law principle – Retrospectivity – s 107 Crimes (Appeal and Review) Act 2001 - Criminal law – Jurisdiction, practice and procedure – Notice of Appeal – Validity under s 107(3) Crimes (Appeal and Review) Act 2001 - Criminal law – Elements of statutory scheme – Whether meaning of a technical legal term is a question of law – Meaning of “federal judicial proceeding” – Meaning of “question of law alone” – s 31 Crimes Act 1914 (Cth) - Criminal law – Particular offences – Offences relating to the administration of justice – Connection between federal character of the judicial proceeding and “knowledge” – s 39 Crimes Act 1914 (Cth) - Statutes – Acts of Parliament – Interpretation – Construction, particular classes of statute – Codifying Statutes – Reference to the common law - Statutes – Acts of Parliament – Interpretation – Construction, particular classes of statute – Penal Statutes – Ambiguity and general words – Retrospective operation - Statutes – Acts of Parliament – Interpretation – Construction, particular classes of statute – Penal Statutes – General principles – Clear statement principle - WORDS AND PHRASES - "question of law alone" and "federal judicial proceeding"

CRIMINAL LAW: Sentence - Commonwealth and State offences of a fraudulent nature - sentencing judge's approach to setting non-parole periods - no lesser sentence warranted

Strike out proceedings - set aside default judgment as against first defendant

EVIDENCE - Business records - Opinion evidence - Whether s69 Evidence Act enables opinion evidence contained in a business record to be admitted - Whether UCPR r31.23 enables Court to reject opinion evidence otherwise admissible under s69 if no acknowledgment of code of conduct.

NEGLIGENCE – employer’s liability – lifting – whether worker had viable cause of action arising from injury suffered when supporting 10kg beam. - NEGLIGENCE – professional liability – whether solicitor retained to advise on workers compensation claim obliged to advise on potential common law rights and effect of accepting permanent loss compensation – where common law claim had fair prospects only and might have left worker better or worse off – content of appropriate advice. - DAMAGES – personal injuries – whether Griffiths v Kerkemeyer damages available for provision of support and encouragement. - DAMAGES – economic loss – loss of a chance – where first solicitor failed to advise worker of common law potential and consequences of accepting permanent loss compensation – where second solicitor failed to commence proceedings against first solicitor within time – evaluation of prospects of success of employer liability claim – whether value of workers compensation benefits to be deducted before or after discount for risk – date as at which workers compensation benefits to be valued – whether known facts in respect of workers compensation benefits subsequent to valuation date may be considered – vicissitudes to be applied to future workers compensation benefits – whether workers compensation top-up insurance payments to be deducted – evaluation of prospects of success of professional liability claim against first solicitor – risk factors – risk that properly advised plaintiff would not have brought employers liability claim

Negligence - intoxicated plaintiff struck by defendant's vehicle whilst plaintiff standing in darkness in middle of road - whether speed excessive in circumstances and whether defendant failing to keep a proper look-out - defendant not negligent.

CRIMINAL LAW - application by Crown for leave to cross-examine witness under s.38 Evidence Act 1995 - evidence unfavourable to Crown - prior inconsistent statements made by witness - factors relevant to exercise of discretion - s.38(6) and s.192 Evidence Act 1995 - s.137 Evidence Act 1995 - application granted concerning seven specified topics

Appeal decision of Local Court Magistrate - abuse of process

APPEAL – leave required to reopen earlier decision of Court – factors relevant to grant of leave - WORKERS COMPENSATION – deemed worker – independent contractor – recovery of common law damages by deemed worker – application of restrictions on recovery of damages – Workers Compensation Act 1987 (NSW) Part 5 – Workplace Injury Management and Workers Compensation Act 1998 (NSW) Schedule 1 and Chapter 7 - Words and Phrases – “deemed worker” – “for the purposes of the Act”

PARTNERSHIP – rights and duties of partners inter se – where one partner is also lessor of partnership premises – where separate interest of partner as lessor conflicts with interests of partnership – whether fiduciary duty as partner prevents exercise of rights as lessor – LIQUOR AND GAMING – poker machine entitlements – whether lease prohibits lessee from alienating poker machine entitlements – whether court can order person having financial interest in license who is bound by contract or in equity to do so to “support” a transfer – EQUITY – unclean hands – whether doctrine attracted by a mere breach of contract

Strike out defence, summary judgment - money due

EVIDENCE – Subpoenas – Confidentiality & Disclosure – restricted material – information obtained under Telecommunications (Interception & Access) Act – where transcripts have already been given in evidence in an exempt proceeding – whether audio tapes may now be given – Privilege – statutory privilege – information obtained or produced pursuant to New South Wales Crime Commission Act - COSTS – discretionary considerations – where successful objection only raised on second day of hearing – costs exacerbated by both parties – distinction between costs of compliance with, and costs of unsuccessful application to set aside, subpoena

TORRENS SYSTEM – Caveat – Whether unregistered mortgage has sufficient interest when mortgage taken after all advances made – Whether forbearance to sue is sufficient consideration for grant of mortgage.

CRIMINAL LAW - driving in manner dangerous - appeal against conviction - jury verdict not unreasonable - no failure by jury to give proper consideration to the evidence - Crown appeal against sentence - no material error of fact finding by sentencing judge - appellate discretion.

Claim by a barrister against solicitor for unpaid fees - original memoranda of fees altered at solicitor's request - whether compliance with sections 192, 194 of the Legal Profession Act 1987 and regulation 22A of the Legal Profession Regulations 1994 - whether barrister's memoranda of fees was "signed" - effect of acceptance by solicitor of unsigned memoranda of fees.

TORTS – MEDICAL NEGLIGENCE – FAILURE TO WARN – EXTENSION OF TIME FOR SERVICE – EXPIRATION OF LIMITATION PERIOD - PROCEDURE – STATEMENT OF CLAIM – EXTENSION OF TIME FOR SERVICE – EXPIRATION OF LIMITATION PERIOD – EXERCISE OF DISCRETION

Indemnity costs - Delinquency

Name of defendant - denial of natural justice and other issues

Criminal Law - Sentencing - Guilty plea in Local Court - whether discount of 15 per cent sufficient - whether sentence manifestly excessive - whether lesser sentence warranted.

CRIMINAL LAW - leave to appeal against sentence - conspiracy to import commercial quantity of MDMA - whether sentence manifestly excessive having regard to applicant's involvement in offence and early guilty plea - whether appropriate sentencing discounts allowed having regard to applicant's advanced age, poor health and the combined effect of an early guilty plea and applicant's willingness to assit authorities - question of parity with co-offender - appeal dismissed