Cases and authorities

WILLS PROBATE AND ADMINSTRATION - construction of will - gift to children "who survive me" - substitution of grandchildren in case of children dying in lifetime of testatrix - one son had died before will made - whether substitution applied

NEGLIGENCE - Melbourne/Voyager collision claim for damages - breach of duty admitted - issue of causation - general anxiety and alcoholism - future career in Navy - extension of time granted - damages awarded.

CRIMINAL LAW - Manslaughter - Guilty Plea - Sentence Assessed

STRATA TITLES – Strata Management Scheme governing adjoining Strata Plans – Construction of Strata Management Scheme – Strata Management Scheme gave owners and occupiers of units in Serviced Apartment Strata Plan exclusive right with owners and occupiers of units in adjoining Residential Strata Plan to use recreation area in Residential Strata Plan’s common property – Owners corporation of Residential Strata Plan closed normal access route to recreation area – Alternative access routes to recreation area inferior to normal access route – Whether owners corporation of Residential Strata Plan entitled to close normal access route – Access route determined by objective intention at date of registration of Strata Plan – Questions of reasonableness and incidental rights - REAL PROPERTY – Right to use restricted area of adjoining property – Means of access to the area – Implied and incidental rights

PARTNERSHIP – dissolution and winding up – accounts – surcharges – falsifications – interest

NEGLIGENCE AND TRESPASS - VIOLENT ATTACK ON PATRON OF LICENCED CLUB BY ANOTHER PATRON - PREVIOUS ATTACK BY SAME ASSAILANT - LIABILITY OF CLUB, SECURITY GUARD COMPANY AND ASSAILANT

PRACTICE – Cross-vesting application – Claim for damages caused by fire in mill in Tasmania – Whether NSW or Tasmania the "natural forum" – Whether interests of justice require transfer of proceedings – No question of principle.

EMPLOYMENT LAW – Industrial Court – Jurisdiction - powers - INDUSTRIAL LAW – Industrial Court – Power to reopen final orders - COURTS – Industrial Court – not court of final appeal

JURISDICTION – review of referee’s report by judge of District Court – review of findings of fact - proper scope of discretion - Uniform Civil Procedure Rules r 20.24. JURISDICTION – appeal from decision of judge of District Court reviewing report of referee – application of Supreme Court Act 1970 (NSW) s 75A.

COSTS - unnecessary costs - claim for costs order against barrister to indemnify successful party against her own costs - matters for consideration - LEGAL PRACTITIONERS - incompetence of counsel - claim that barrister pay part of costs - Civil Procedure Act 2005 s99(c)

LEGAL PRACTITIONERS – conduct and discipline – compensation for misconduct – summary supervisory jurisdiction – summary disposal – extent to which negligence is sufficient to attract jurisdiction – negligence must be of a culpable quality, amounting to a “serious dereliction of duty” – whether negligent to express opinion which is erroneous because of incorrect assumption disclosed as such – whether seriously arguable case – whether sufficient case to call for answer – whether case suitable for summary jurisdiction

Appeal decision - Administrative Decisions Tribunal

[INJUNCTIONS] Proceedings commenced in US Court seeking to restrain the plaintiffs from continuing Australian proceedings.

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. Found no genuine dispute. Proceedings dismissed and no matter of principle.

CRIMINAL LAW - drugs - expert evidence as to meaning of words in conversations

APPEAL – appeal confined to a point of law – whether there was any evidence of a particular fact is a question of law - whether no evidence to support decision-maker’s finding that the parties had entered into a contract in New South Wales - CONTRACT – offer and acceptance – in determining existence of a contract it is not necessary to identify precise offer or precise acceptance nor a precise time at which an offer or acceptance could be identified – whether decision-maker erred in finding offer made by appellants and accepted by respondent in New South Wales - CONTRACT – terms of contract – contract may be entered into notwithstanding that all terms have not been agreed to provided there has been a manifestation of mutual assent – whether decision-maker erred in finding contract formed between parties in New South Wales - WORKERS COMPENSATION – Workers Compensation Act 1987 (NSW) s 13 – jurisdiction of Workers Compensation Commission to hear application – whether contract of employment formed in New South Wales so as to allow Commission to determine application for compensation

Adjournment of trial to permit election for trial by judge alone

Service of Statement of Claim by company in liquidation - validity of service - application to extend time - heard ex parte - discretionary considerations

REAL ESTATE AGENT – AUTHORITY – Whether real estate agent expressly given verbal authority to exchange contracts for sale on behalf of vendor.

EVIDENCE [53] – Admissibility and relevancy – Hearsay – Particular cases – Exclusion of hearsay rule – Evidence Act 1995 s 63 – Civil proceedings – Person who made previous representation not available to give evidence – Meaning of not available – Whether all reasonable steps have been taken to secure his attendance but without success.

Preliminary discovery - disk

Trial by judge alone - defence of mental illness

[LIQUIDATORS] - Prior adverse findings in relation to liquidator's conduct - further facts available demonstrating liquidator's conduct proper - litigation funding - question to be determined under s 511 of Corporations Act 2001 - whether liquidator justified in giving effect to Deed of Settlement.

CRIMINAL LAW – Evidence Act 1995 (NSW) s 13 – Evidence (Children) Act 1997 (NSW) s 9 – record of an interview – sound recording – admissibility – competent to give evidence at the trial – competence at the time a person is called to give evidence – presumed to be competent – neither the defence nor prosecution carries an onus of proving lack of competence – whether the Court is satisfied – the Court may inform itself as it thinks fit– balance of probabilities

Conviction appeal - omission from summing up of direction on element of offence - Rule 4 and application of proviso - direction on accused's good character - no fixed formula - no substantial miscarriage of justice.

PROCEEDS OF CRIME – application under s 104 Proceeds of Crime Act 2002 by lawful owner of property seized by Australian Federal Police and forfeited to Commonwealth – applicant not involved in commission of offence to which forfeiture related – applicant’s interest in the property not the proceeds of the offence – EVIDENCE - application pursuant to s 108A Evidence Act 1995 as to admissibility of evidence of credibility of person who has made a previous representation - CIVIL PROCEDURE – joinder of party to proceedings pursuant to rules 6.24 and 6.25 Uniform Civil Procedure Rules 2005

Equity - First and second limbs of Barnes v Addy - Plaintiffs' failure to prove essential element of cause of action upon which they rely against second defendant - Equitable compensation - Costs - Bullock order

Appeal from Costs Review Panel - "personal injury damages" and recovery of legal costs

ADMINISTRATIVE LAW - Appeals from Administrative Authorities - Government and Related Employees Tribunal - Head Teacher employed by Technical and Further Education Commission found by Officer appointed by the Commission to have been guilty of breaches of discipline and demoted to teacher - Appeal to Tribunal - Hearing in formal sitting evidence being given on oath subject to cross-examination and with the Commission's case presented first - Power in the Tribunal to make orders for discovery of documents in specified circumstances under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) - Tribunal made order that the appellant lodge copies of all documents relevant to the appeal, copies of a written case setting out the arguments on which he relied including a case outline, issues in dispute, witness statements and statement of the date he supplied copies of the documents to the Commission - Appeal against those orders - Whether orders justified under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1), s 39 or s 43(1) - Whether legal professional privilege abrogated - Whether it prevented the Tribunal requiring the appellant to lodge witness statements and any other documents within the ambit of the privilege - Whether the privilege against self-incrimination abrogated by the Government and Related Employees Appeal Tribunal Act 1980 and whether it prevented the Tribunal from requiring the appellant to lodge any documents that might tend to incriminate him - Whether the privilege against exposure to penalties is capable of application to quasi-judicial proceedings and whether it is capable of application to formal sittings of the Tribunal - Whether the privilege is excluded either expressly or necessary implication - Whether reduction of rank and loss of salary are exposures to penalties - Whether the appellant was exposed to penalties before the Tribunal notwithstanding that he had already being demoted

APPEALS - stay of judgment below pending hearing of appeal - principles on which stay should be granted - where judgment below ordered enforcement of mortgage security by judicial sale - exception to principle that order for judicial sale only stayed where mortgagor repays all principal and interest to mortgagee or into court - where existence of power of sale under attack - onus of proof in application for stay - balance of convenience

CONTEMPT OF COURT – implied undertaking by litigant not to use documents served by opposite party except for proper purposes of the litigation – whether binding on servants and agents of litigant. - CONTEMPT OF COURT – breach of undertaking to Court – civil or criminal – distinction. - CONTEMPT OF COURT – appeal from acquittal – whether competent. - CONTEMPT OF COURT – third parties who aid and abet breach of injunction or undertaking – civil or criminal. - APPEAL – Acquittal on charge of contempt – whether appeal competent.

Criminal Law - Sentence for Murder after plea - child killing by father - Aboriginal offender with depreived background and low intellect.

CONTRACTS – Construction and interpretation – All reasonable endeavours – Conditions subsequent not satisfied by sunset date – Whether to take into account an unexercised unilateral right to extend sunset date in determining breach – Termination – Contractual right of termination enlivened only after notice giving time to cure breach – Whether a breach that is not capable of being cured in the given time is one for which such a notice can be validly given – Election – Whether giving notice of termination pursuant to contractual clause constitutes election and waives right to terminate at common law

COSTS – appeal – appellant successful on appeal in reversing lower court orders – success due to considerable indulgence by Court of Appeal – whether appellant “successful” for the purposes of UCPR 42.1 – held no – court entitled to depart from “usual” rule – orders made on 1 May 2007 confirmed. COSTS – s 99(1) Civil Procedure Act 2005 – whether appellant’s legal representatives should pay costs of appeal – conduct did not reach threshold contemplated by s 99(1).

COSTS – costs of appeal – offer of compromise made by plaintiff before trial under DCR Pt 39A r 25 – plaintiff sought indemnity costs for trial and appeal – whether offer relevant to costs of appeal –neither DCR or SCR apply – costs order in discretion of the court – court considers circumstances at time offer made – no fresh offer made between trial and appeal – discretion to order costs of appeal on an indemnity basis turned on demonstrating unreasonable or delinquent conduct on the part of the party against whom order sought – no such conduct demonstrated – motion for indemnity costs of appeal refused - COSTS – costs of trial – application of UCPR to offer of compromise made under DCR Pt 39A r 25 – costs awarded on a solicitor/client basis - COSTS – offers of compromise – relevance of change in legal outlook to reasonableness of rejection of offer – principles.

ADMINISTRATIVE LAW – Statutory Interpretation – “GREAT” appeals under s20 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) – entitlement to appeal under s20 and by reference to s21(1)(e) – competency of appeal when made outside 21 days mandated by s55 of the GREAT Act. - WORDS AND PHRASES – meaning of “the decision of the Tribunal in respect of an appeal” within s48(4) – was there a decision when the result of the Tribunal’s determination but without its reasons was informally communicated in advance of the decision with reasons being formally provided.

LEGAL PRACTITIONERS – Liability for Negligence – Motor Accident – Where there was a successful Workers Compensation claim but solicitor failed to institute proceedings under the Motor Accidents Act for same injury – Where Motor Accidents claim likely to have been successful – Assessment of damages – Whether damages against solicitor should take into account requirement to repay Wokers Compensation out of any damages awarded for the original injury – Where likely award for damages for original injury would be less than Workers Compensation to be repaid – APPEAL AND NEW TRIAL – Where indemnity costs ordered at trial due to rejection of Calderbank offer – Where not possible for notional damages to exceed award requried to avoid further indemnity costs – Where new trial would be futile and contrary to claimant’s interests - Supreme Court Rules 1 970 Pt 51 r 23(1).

PUBLIC SERVICE – Disciplinary proceeding – Judicial immunity – Whether Registrar entitled to immunity from disciplinary proceedings where alleged misconduct in exercise of judicial functions – Public Sector Employment Management Act 2002 Part 2.7 – Liquor Act 1982 s 17 - Judicial Officers Act 1986 ss 44A, 44B and 44C

STRATA SCHEMES – by-laws – proper construction of by-law giving exclusive use of common property (a lift) to a proprietor – terms and conditions attaching to exclusive use – costs attributable to the repair, maintenance, renewal and replacement of the lift – relationship between obligations imposed by by-law and obligation to meet levies for the upkeep of common property generally - STRATA SCHEMES – by-laws – principles of interpretation – to be construed consistently with statutory context – "series of enactments" by which proprietors in a body corporate administer their affairs – public purpose going beyond function of facilitating internal administration of body corporate – to be interpreted objectively by what they would convey to a reasonable person – court to take into account their constitutional function in strata scheme in regulating rights and liabilities of proprietors – tight rein to be kept on recourse to surrounding circumstances (D)

EQUITY - estoppel by representation - cross-claim to claim for possession - handing over title deeds with statement "it is yours" - whether reliance on this in light of knowledge deceased intended to make will to provide for this - whether any detriment

COSTS - Defamation - s7A trial adjourned - late amendment - whether plaintiffs should pay costs of proceedings to date - whether costs should be on indemnity basis - whether costs should be payable forthwith - whether proceedings should be stayed until costs payed

CIVIL PROCEDURE – UCPR 13.4 and 14.28 – application for summary judgment or strike out – plaintiff seriously injured in explosion at fireworks factory – previous death of worker in similar circumstances three years earlier - whether duty of care owed by statutory authority by reason of its failure to enforce improvement and prohibition notices – whether existence of alleged duty reasonably arguable – summary judgment refused

Legal practitioners - whether opponent's solicitor should be restrained from acting - whether information claimed to be confidential identified - test to be applied - relevant considerations

TYLER: CRIMINAL LAW – SENTENCING – application for leave to appeal against sentence – conspiracy to import prohibited drug (cocaine) – plea of guilty – subjective circumstances – past assistance – prospects of rehabilitation – protective custody – whether sentence manifestly excessive – parity with co-offenders – applicant re-sentenced to establish parity with co-offender - CHALMERS: CRIMINAL LAW – SENTENCING – Crown appeal against sentence – conspiracy to import prohibited drug (cocaine) – plea of not guilty – supply prohibited drug (cocaine) – plea of guilty – subjective circumstances – role in conspiracy – criminality – general deterrence – protective custody – whether sentence manifestly inadequate – respondent re-sentenced and sentence increased