Cases and authorities

PROCEDURE [93] - Summary disposal - No basis for proceedings – Plaintiff undischarged bankrupt – Interests in property subject of cross claim vested in trustee in bankruptcy.

Adult son - step-son - no provision by deceased (aged 87) - estate about $440,00 to neighbour - stepson who left home about 37 to 40 years before death of testator and lived mostly interstate - issues of fact about membership of household and dependence - found, an eligible person - claimant aged 55, no capital assets (house, car or other), never married, rented accommodation, earnings sufficient for maintenance - appraisal of relationship - neighbour not in need - provision ordered $35,000 as reserve against contingencies.

NEGLIGENCE – Solicitor - TORRENS SYSTEM – claims for compensation - MORTGAGOR and MORTGAGEE – Construction of mortgage – mortgage forged by persons associated with Mr Pan, not associated with registered proprietors – Mr Miller solicitor obtained new CT on instructions of Mr Pan who falsely told Mr Miller he was authorised by registered proprietors on false claim that original CT was lost – Mr Pan used new CT and forged documents including mortgage and loan agreement to obtain loan from PTV and divert moneys advanced. On the construction of the mortgage and incorporated memorandum HELD that references to mortgage given by registered proprietors did not extend to forged mortgage and hence no debt was secured – registered proprietors obtained declaration that no debt was secured. Consideration of registered proprietors’ claim of negligence against solicitor: HELD duty of care, negligence but no loss. Consideration of registered proprietors’ claim against RG under ss 120 and 129 RPAct – HELD no loss and also RG protected by defence s 129(2)(b) (remedy available against insured solicitor). On claim by PTV against solicitor HELD no duty of care. Extensive consideration of circumstances in which there is a duty of care against economic loss. On claim by PTV against RG HELD PTV entitled to recover under s 120 and 129. On cross-claim by solicitor against JP who witnessed mortgage HELD – no breach of duty of care by JP who had information about identity of persons signing mortgage from apparently reliable source.

Partnership dissolution - whether treatment of goodwill was the subject of a binding agreement precluding further claims by one of the former partners - issue of effect of agreement determined to have been reached - how plant and equipment to be valued

Application for extension of time - s 60C of the Limitation Act 1969 - explanation of delay - evidence of cause of action - prejudice - just and reasonable to extend limitation period.

INSURANCE – Industrial special risk policy providing cover against property damage and consequential loss of profits – property destroyed by fire – refusal of indemnity by insurer on basis of insured’s failure to take reasonable precautions as required by the policy and on basis of s56(1) Insurance Contracts Act 1984 (Cth) for fraudulent stock and business interruption claims – insured seeks damages for breach – whether insured took reasonable precautions and test to be applied – whether fraud established in stock and business interruption claims – whether reinstatement value, indemnity value or difference between market value before and after event applies – quantifying loss – extent of insured’s obligation to act with reasonable dispatch after termination of policy by effluxion of time – availability of consequential damages where policy not terminated for breach

Estoppel – Res Judicata – Issue estoppel – Anshun estoppel – Default judgment in action by mortgagee for possession and for money sum due under mortgages in first proceedings – Defendant sought to bring cross claim for damages under Trade Practices Act – Whether defendant estopped from bringing cross claim – Issue raised in new proceedings must be on precise issue determined in original proceedings – No estoppel - Equity – Trade Practices Act – Unconscionable conduct – Where cross-claimant gave mortgage due to fraudulent conduct of third party – Cross-claimants not in a position of special disadvantage – Lender did not have knowledge of third party’s fraud – No unconscionable conduct - Contracts – Unjust contracts – Contracts Review Act – When contract “unjust” – Where borrower did not have means to repay loan – Where lender given fraudulent information about borrower’s ability to repay loan – Where rates of interest unrelated to lender’s risk – Where contract was a bad bargain – Contract not unjust – Whether strong possibility of default under mortgage triggering very high default rate could amount to predatory conduct – Contracts Review Act 1980 ss 7, 8, 9 - Legal Practitioners – negligence and retainer - Duties and liabilities – To client – Solicitor advising on security documents – Scope of duty – No obligation to advise client on financial sense of mortgage – No obligation to recommend client obtain financial advice – Scope of Rule 45 of the Solicitor’s Practice Rules - Mortgages – Gap between higher rate and lower rate – In reality lower rate not concessional rate but expected rate

Criminal law - sentencing - break enter and steal and other charges - whether errors in sentencing concerning planned or organised criminal activity, regard to fact offender had children and treatment of offences on a Form 1 - no errors - whether sentences manifestly excessive - not lenient but within range open to judge.

Criminal law - Sentencing - De Simoni principle - Backdating sentence - Special circumstances - Sentence not manifestly excessive.

Criminal law - sentencing - offences of armed robbery - errors in relation to pleas at earliest opportunity - and aggravating factors - and taking account of offences on a Form 1 - resentencing - reliance on material in reports without sworn evidence - juvenile offender - reliance on guideline judgment in R v Henry - resentencing more lenient than for adult offender.

CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – admissions – discretion to exclude evidence adduced by prosecution if, “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence” – where admission made to ambulance officers treating defendant’s dying infant son – whether unfair to defendant to admit the evidence – Evidence Act 1995, s 90 - CRIMINAL LAW – manslaughter – autopsy report – cause of death – reasonable doubt – whether alternative hypothesis concerning cause of death created reasonable doubt - CRIMINAL LAW – offences against the person – assault – inflict grievous bodily harm – reasonable doubt – whether alternative hypothesis concerning how injuries inflicted created reasonable doubt - EVIDENCE – criminal proceedings – judicial discretion to admit or exclude evidence – admissions – discretion to exclude evidence adduced by prosecution if, “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence” – unfairness – Evidence Act 1995, s 90 - CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER CONVICTION – role of court when considering appeal by unrepresented person against conviction

FAMILY LAW AND CHILD WELFARE – Community Treatment Order made in respect of young person by Mental Health Review Tribunal – Interim Care Order made by Children’s Court – parens patriæ jurisdiction of Supreme Court – what is appropriate forum for determination of all issues.

Dispute as to nature of contract - alleged payment under mistake - claimant not licensed to perform residential building work - defence of illegality and alternative claim for quantum meruit not pleaded - claim for the latter allowed - opportunity not given to raise defences or adduce evidence in respect of the claim - cross-claim cursorily dismissed without reasons

MENTAL HEALTH [18] – Ch 10 Legal proceedings by and against mentally ill and other protected persons – Compromise – Power of Court to approve settlement - Proceedings against incapable person – Apparent lacuna in Civil Procedure Act 2005 s 76 – Inherent power of Supreme Court - PROCEDURE [483] – Judgments and orders – Amending, varying and setting aside – Final orders made after hearing both sides – General rule – Exception for order not determining claim for relief or dismissing proceedings even when order entered – Uniform Civil Procedure Rules 2005 r 36.16(3).

Defamation - radio programmes - pleading of imputations - whether imputations capable of arising - specificity of imputations - defendant's allegations of plaintiff non-specific - whether imputations differ in substance

CRIMINAL LAW AND PROCEDURE - COUNTS CHARGING SEXUAL INTERCOURSE WITHOUT CONSENT AND INDECENT ASSAULT - CONVICTION ON COUNTS CHARGING INDECENT ASSAULT - APPEAL AGAINST CONVICTION - PARTICULAR ADVANTAGES OF JURY INCLUDING VIDEO OF 9 YEAR OLD COMPLAINANT DESCRIBING EVENTS GIVING RISE TO CHARGES - VIDEO NO LONGER AVAILABLE - SINGLE GROUND OF APPEAL ALLEGING VERDICTS OF GUILTY UNREASONABLE - NO INCONSISTENCY IN JURY VERDICTS DEMONSTRATED - SUBMISSION THAT CREDIBILITY OF COMPLAINANT CHILD FATALLY FLAWED REJECTED

CRIMINAL LAW AND PROCEDURE - SENTENCE - OFFENCES OF SUPPLYING PROHIBITED DRUG AND SUCH SUPPLY ON A CONTINUING BASIS - SEPARATE CHARGE OF DOING ACT WITH INTENTION TO PERVERT THE COURSE OF JUSTICE - ALL SENTENCES ORDERED TO BE SERVED CONCURRENTLY - OBSERVATIONS CONCERNING NEED FOR CUMULATION ON THAT SEPARATE MATTER - FINDING BY SENTENCING JUDGE THAT THERE WERE NOT SPECIAL CIRCUMSTANCES JUSTIFYING DEPARTURE FROM STATUTORY PRESCRIPTION FOR DIVISION OF NON PAROLE PERIOD AND BALANCE TERM - SPECIFICATION OF NON PAROLE PERIODS INCONSISTENT WITH THAT FINDING BUT TO ADVANTAGE OF OFFENDER IN SHORTER PERIODS THAN APPLICATION OF STATUTORY FORMULA WOULD PRODUCE - ERROR IN PROCESS BY TRIAL JUDGE DOES NOT REQUIRE LESSER SENTENCES BEING IMPOSED - SENTENCES NOT MANIFESTLY EXCESSIVE

Criminal Law - Appeal - Disparity with sentence of co-offender that was manifestly inadequate - Ellis discount misapplied - whether disparity so gross that the Court should intervene.

CRIMINAL LAW AND PROCEDURE - ROBBERY AND ATTEMPTED ROBBERY WHILST ARMED WITH A KNIFE - MENTALLY ILL OFFENDER - SPECIAL HEARING - CHALLENGE TO SETTING OF LIMITING TERMS - FORENSIC PATIENT GIVEN TO VIOLENCE AGAINST SELF AND OTHERS - UNAVAILABILITY OF SUITABLE HOSPITAL FOR HER DETENTION - WHETHER DISCRETIONS OF SENTENCING JUDGE IN SETTING LIMITING TERMS MISCARRIED

NEGLIGENCE - Duty of Care - Liability of principal for employee of contractor - Failure to provide a safe system of work - Where manner of performing a task left to the contractor - Safe access to place of work - meaning of "place of work" - Occupational Health & Safety Regulation 2001 cl 39

Workers Compensation - judicial review - Appeal Panel - ground of "demonstrable error" - nature and scope of "review" by Appeal Panel - whether "a demonstrable error" on medical assessment certificate of approved medical specialist.

Setting aside registration of foreign judgment - extension of time for application - sufficient time to defend - fraud

Defamation - application under R.29.10 Uniform Civil Procedure Rules 2005 re no case to answer in injurious falsehood claim - whether evidence of special damage.

Appeal from decision of Consumer Trader and Tenancy Tribunal - whether denial of procedural fairness - did Tribunal decide matter on basis other than that argued before it - whether refusal of adjournment amounted to denial of procedural fairness.

EVIDENCE - Witnesses - Allegation of provision of secret commission by corporate defendant - Registrar ordered it to serve witness statements - On review, Associate Justice ordered the statements to be served only after close of plaintiff's case - Privilige against self-incrimination not open to corporations - Whether Associate Justice in error

APPEAL – Appeal from pre-trial interlocutory proceedings – discretionary judgment of the judge below not to stay proceedings – no error in the exercise of discretion - CONSTITUTIONAL LAW – Operation and effect of the Commonwealth Constitution – Restrictions on Commonwealth and State legislation – rights and freedoms implied in the Commonwealth Constitution – freedom of political communication – s474.22 of the Criminal Code does not place an impermissible burden on the freedom of communication. - CRIMINAL LAW – Offences against decency and morality – Publication of child abuse material on the Internet – interpretation of s474.22 of the Criminal Code.

RESTRAINT OF TRADE – Employer and employee – Chief Executive Officer and Chief Technical Officer of media technology company – Construction – whether “business” of employer as carried on in twelve months prior to termination of employment included a line of business which employer intended and was exploring opportunities to pursue but had not yet commercialised – whether restraint on “soliciting” contravened when initial approach made by customer but former employee then encourages customer – Validity – customer connection – where CEO was responsible for employer’s contacts with customers and CTO was responsible for its technology – confidential information – where employer acquired its assets and undertaking including intellectual property from insolvent administration of company of which employees were shareholder and CEO – Reasonableness – where restraint operated in event of termination by employer otherwise than for cause – Area – Duration. INJUNCTIONS – Interlocutory injunctions – Laches – where no prejudice from delay – Balance of convenience – relative strengths of case where interlocutory determination would practically determine the case.

CORPORATIONS – whether shares in corporate defendants acquired by first defendant beneficially or upon trust as to half for plaintiff – competing versions of facts – Winding up – Just and equitable ground – deadlock – no question of principle

District Court transfer - threshold requirement - serious disability and range of possibilities concerning liability and quantum - discretionary considerations

PROCEDURE – Stay of execution – pending appeal – in winding up proceedings – applicable test

PROCEDURE – determination of separate questions – orders to be made consequential upon determination – where plaintiff prima facie entitled to judgment on claim – where defendant seeks leave to file cross-claim which is seriously arguable – whether judgment on claim should be given and if so whether execution should be stayed – PROCEDURE – set-offs and cross-claims – where plaintiff claims fees due under contract – where defendant seeks to set-off and/or cross-claim for damages for breaches of warranty in same contract – where alleged breaches of warranty caused lender to make loans which it would otherwise not have made – approach to measure of damages – whether claim for damages is liquidated or unliquidated – CONTRACT – damages for breach – where alleged breaches of warranty caused lender to make loans which it would otherwise not have made – approach to measure of damages

WORKERS’ COMPENSATION – where death of employee occurs in interval between periods of work – sufficient connection between injury and employment – whether employment a substantial contributing factor - Workers Compensation Act 1987 (NSW) s 9A - PROCEDURE – appeal to Presidential Member of the Workers Compensation Commission from decision of arbitrator - admission of new evidence - APPEAL – error of law - no evidence

NEGLIGENCE – duty of care – standard of care owed by inexperienced driver to driving instructor – where knowingly involved in joint criminal activity – whether duty abrogated by voluntary assumption of risk - NEGLIGENCE – contributory negligence – where driving instructor failed to give instructions to inexperienced driver - JURISDICTION – where action is brought in New South Wales with respect to motor vehicle accident occurring in the Northern Territory – whether the law of New South Wales or the Northern Territory applies - CHOICE OF LAW – operation of Motor Accident Compensation Act (NT) s 5 – effect on choice of law rules - DAMAGES – gratuitous domestic assistance – household improvements

DAMAGES: - personal injury - supplementary judgment to [2007] NSWSC 508 - final orders

CRIMINAL LAW – plea of not guilty – sexual offences – assault occasioning actual bodily harm – directions given by trial judge – tendency evidence - delay - SENTENCING - special circumstances - whether sentences manifestly excessive

Criminal law - sentencing - multiple offences - sentence manifestly excessive.

Criminal Law - Sentencing - Three offences of break and enter a building and commit a serious indictable offence - no arguable error demonstrated in sentencing - responsibility for health care - no expert evidence health care provided inadequate

CRIMINAL LAW - Sentencing - Crown appeal against sentence - Suspended sentence - Whether sentence manifestly inadequate - Whether approach to sentencing erroneous - Intoxication

Criminal law - Sentencing - Crown appeal - Sentence manifestly inadequate - Henry sentencing principles.

Presumption of undue influence - appeal from Local Court civil claim

CORPORATIONS - Reinstatement of deregistered company under s 601AH(2) of Corporations Act 2001 (Cth) - Proper parties to application - Whether upon reinstatement company will have a member, where its shares owned by a second deregistered company incorporated in Ireland - Where second deregistered company's assets vested in State of Ireland, State of Ireland will be member of first company upon its reinstatement - Whether plaintiff a person aggrieved by deregistration of first company - Where plaintiff a beneficial shareholder in Irish company and there is a serious question to be tried that plaintiff may be given leave to bring proceedings on behalf of deregistered company if it is reinstated to recover compensation, damages or assets - Held that plaintiff is a person aggrieved by deregistration and it is just that company's registration be reinstated - Order that defendant company be reinstated. - CORPORATIONS - Service - Whether service at registered office of deregistered company effective - Effect of reinstatement - Company not taken to have continued to have a registered office - Held that purported service at registered office of deregistered company ineffective. - CORPORATIONS - Membership, rights and remedies - Proceedings on behalf of company by member - Statutory derivative action - Held that question of whether such action may be brought by company to be reinstated does not arise on present application. - (Cth) Corporations Act 2001, ss 114, 236, 237, 601AH(2), (3) and (5).

CRIMINAL LAW - Sentence - Manslaughter - domestic context - no history of violence - offender affected by drugs and alcohol

CRIMINAL LAW - trial on indictment before Supreme Court - subpoena directed to Commonwealth Director of Public Prosecutions - seeks production of notes of conferences between prosecuting counsel and solicitors and Crown witnesses - claim of client legal privilege - whether Part 3.10 Evidence Act 1995 or common law principles apply to privilege claim - relationship between client legal privilege and prosecution duty of disclosure - whether privilege waived by prosecution calling witnesses at committal proceedings or earlier trials of Accused - claim for privilege upheld

Succession. Family Provision. Claim by adult daughter. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for her proper maintenance. Only asset of Deceased was her interest as joint tenant with Defendant in their residence. Competing claim of Defendant, who was sole object of testamentary beneficence of Deceased. Contributions by Defendant towards purchase of and repairs and renovations to house property. Notional estate

COSTS – Defendants’ application for indemnity costs – Calderbank offer more favourable than ultimate outcome – Whether plaintiffs’ rejection of Calderbank offer unreasonable – Whether defendants demonstrated that rejection of Calderbank offer was unreasonable – Whether ordinary costs rules applied

CORPORATIONS - Voluntary administration - Creditor's meeting - Time to convene and extensions of time - Discussion of applicable principles - Policy behind Part 5.3A of the Corporations Act 2001 (Cth) - Extension granted. - (Cth) Corporations Act 2001, ss 435A, 437A, 439A and 447A