Cases and authorities

Practice and procedure - Equity - Interlocutory injunctions - Enforcement of usual undertaking as to damages - Principles applicable when proceedings do not progress to final hearing - Injunction granted upon defendant’s breach of Development Deed relating to the construction of a building adjacent to a railway tunnel - Court discretion whether to enforce the undertaking - Principled exercise of discretion requires consideration of all circumstances of case - Defendant concedes that interlocutory injunction properly given at the time - Injunction dissolved by consent after subsequent reports from engineering experts retained by plaintiff confirmed a negligible risk to the tunnel

PRACTICE and PROCEDURE - vexatious litigant - order under s 84(2) Supreme Court Act 1970 based on defendant's conduct of series of proceedings - summary disposal of his latest claim - indemnity costs.

PROCEDURE - INSURANCE - Construction and effect of s.6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - Circumstances in which a plaintiff can proceed directly against insurer of party alleged to be liable to pay damages to the plaintiff - Claims-made policy - Whether s.6 procedure available when event giving rise to the liability to the plaintiff occurs before entry into the contract of insurance.

Personal injury - injury at processing plant - who was employer - employed by company conducting processing plant - then became trainee under training contract - different company named as employer in training contract - continued with same work - continued to be paid by first company - circumstances in which second company named as employer - not with clear consciousness it was to be the employer - effect of Apprenticeship and Training Act 2001 - if second company was employer, whether Workers Compensation Act 1987 or Workplace Injury Management and Workers Compensation Act 1998 made first company the employer for the purposes of those acts.

[CONTRACT] - Whether terms for payment regime when "business performance" is "lower than expected" uncertain - Whether uncertain terms can be severed - Whether terms providing for payment of rental for full term of terminated agreement "liquidated damages" or "a penalty" - [MISLEADING OR DECEPTIVE CONDUCT] - Whether alleged misrepresentation made - Whether false - Whether reliance

PRACTICE AND PROCEDURE – Preliminary discovery – Whether requirements of r 5.3(1)(a) of Uniform Civil Procedure Rules 2005 (NSW) are satisfied – Where it appears to the Court that the applicants may be entitled to make a claim for relief – Where it appears to the Court that reasonable inquiries have been made – Where relevant documentation already obtained through those inquiries – Where applicants have not disclosed what information they possess or identified what information is lacking for decision to be made – Whether it appears to the Court that applicants “unable to obtain sufficient information to decide whether or not to commence proceedings” – Objective assessment by the Court of information already possessed by the applicants is required to determine whether that information is sufficient for such a decision to be made – Requirements of r 5.3(1)(a) not satisfied – Order that application be dismissed. - (NSW) Uniform Civil Procedure Rules 2005, rules 5.3 and 5.4 - (CTH) Corporations Act 2001, ss 232 and 233

CORPORATIONS – Winding up – Statutory demand – Application for order setting aside under s 459G of the Corporations Act 2001 (Cth) – Where there is a genuine dispute about the existence of debt – Agreement that moneys paid by defendant as advance payment for stock to be chosen by defendant in the future – No express or implied term that moneys paid as a loan or that moneys repayable by plaintiff upon demand or at future date – No debt due and payable – Order that statutory demand be set aside.

LEGAL PROFESSION – Pro-bono scheme – application for referral certificate – relevant considerations – need for Court to exercise discretion

NEGLIGENCE – DUTY OF CARE – vendor and purchaser – actual knowledge of dangers – reason to know – vendor liable – importer/wholesaler liable – warning required – reasonable response – causation. TRADE PRACTICES ACT – meaning of consumer – used up in process of repair – tractor tyre not ordinarily acquired for domestic purpose – consumer except for purposes of Part V Division 2A. DAMAGES – election between damage under negligence and Trade Practices Act – future care principles – 24-hour care required.

CRIMINAL LAW – fair trial – temporary stay of proceedings – whether trial judge’s order refusing to grant a temporary stay of proceedings until the Commonwealth Director of Public Prosecutions paid the reasonable costs incurred by the applicant resulted in serious injustice or unfairness to the applicant – unfairness can only be established by proving fault on the part of the prosecution – whether a fault in the ‘machinery of the administration of justice’ is sufficient to establish unfairness

PROCEDURE – Discovery – Categories for discovery – Discovery by reference to relevance of documents to pleaded issues – Order that discovery be given confined to documents on which party giving discovery may rely, or documents which adversely affect case of any party, or documents which support case of parties seeking discovery – Inspection – Confidentiality – Departure from general principle that confidentiality of documents not sufficient reason to deny inspection – Exceptional case – Where reason to apprehend that party seeking discovery prepared to disclose confidential information to trade rival of party giving discovery – Order that discovery be given subject to confidentiality undertakings by solicitors, counsel and experts instructed by parties seeking discovery.

LIFE INSURANCE – Income Protection Policy – Purported avoidance by insurer defendant on grounds of fraudulent misrepresentation and non-disclosure as to income and medical history – Whether misrepresentations and non-disclosure – Whether made fraudulently – Plaintiff seeks damages for repudiation of policy– Basis for calculating such damages – Determination of entitlement to benefits under policy, period over which benefits would have been received, and present value of the entitlement

LEGAL PRACTITIONERS – Conflict of interest – Verification by solicitor of statement of claim where not qualified to do so and without proper basis – COSTS – Legal practitioners ordered to pay successful defendants’ costs on an indemnity basis - Costs of successful defendants to be borne by unsuccessful plaintiffs on party and party basis

[BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999] - consequence of failure to provide a notice under s 17(2) of the Act before filing adjudication application - whether filing adjudication application without providing notice under s 17(2) of the Act amounts to an election under s 15(2)(a)(ii) of the Act - whether the plaintiff is precluded from bringing proceedings.

PRACTICE AND PROCEDURE - freezing order - interlocutory application pursuant to r 25.14 of Uniform Civil Procedure Rules 2005 - claim for damages quantified - content of requirement for "good arguable case" - whether good arguable case demonstrated for full amount of order sought - unconditional bank guarantee in favour of defendant in support of undertaking as to damages - costs

Section 9 order - threshold requirement - risk to the safety of children - order subject to conditions - application for judicial review - discretionary considerations

PROCEDURE [103] – Supreme Court procedure – Procedure under Rules of court – Offer of compromise – Refusal – Entitlement to costs on indemnity basis.

Reasonable steps defence to overloading offence - construction of statutory provisions - misdirection and evidentiary requirements

Family Provision. - Application under Family Provision Act 1982 by a daughter who was left a small portion of deceased's grazing property. Balance left to son. Order for adjustment of parties' share of the property.

DEFAMATION - INTERLOCUTORY INJUNCTION RESTRAINING INTENDED TELEVISION BROADCAST - SUBJECT MATTER OF CURRENT PUBLIC INTEREST AND CONCERN - WHETHER CORPORATE PLAINTIFF HAS CAPACITY TO SUE - COSTS

Judgment procured by perjury in Local Court - proceedings to have it set aside in this Court - fresh probative evidence likely to produce a different result - proceedings remitted back for retrial

Procedure – Supreme Court procedure – Procedure under Rules of court – Offer of compromise – offer accepted – whether plaintiff entitled to entry of judgment – purpose of compromise regime under Uniform Civil Procedural Rules 2005 (NSW) – operation of r 20.27(3), r 20.29

Criminal Law - Appeal - whether verdict unreasonable - Investigation - whether listening device warrant invalid as a general warrant.

Application for Security for costs and stay - Co-plaintiffs - Individual and Corporation - Corporation unable to meet anticipated costs - Substantial overlapping of factual matters on liability - hearing actions together not materially increasing hearing time and costs - likely costs order against both plaintiffs if they lose - Security not ordered.

PROCEDURE – Supreme Court procedure – New South Wales – Motions – Plaintiffs seek leave to re-open matter – Application to set aside judgment on application to amend pleadings to include estoppel claim – Application for further discovery – Application for leave to further cross-examine witness notwithstanding cross-examining party’s voluntary withdrawal from the hearing – Relevant principles and discretionary considerations - CASE MANAGEMENT – Unrepresented litigants – Limit on cross-examination of witness and requirement of cross-examining party’s statement of topics

COMMUNITY SCHEMES – management agreement made during initial period – whether effect of management agreement disclosed in community management statement – whether management agreement ratified at first annual general meeting of community association – whether implied ratification might be sufficient – whether management agreement terminated at end of first annual general meeting – whether community association incurred a debt during the initial period by entering into management agreement – whether community association entitled to recover debt or damages from original proprietor - ESTOPPEL – conventional estoppel – whether community association estopped from asserting that management agreement terminated at end of first annual general meeting – estoppel by deed - where deed of assignment of manager’s rights and obligations – whether community association estopped by deed from asserting that management agreement terminated at end of first annual general meeting - EQUITY – fiduciary obligations – whether developer of community scheme is a “promoter” – whether developer owes fiduciary duties to community association – nature and extent of duties – where developer during initial period causes community association to enter into management agreement with third party – where third party pays developer a premium – where management agreement provides for “excessive” remuneration to third party – whether breach of fiduciary duties – whether developer liable to account to community association for premium -

PREROGATIVE RELIEF - CONVICTIONS BY LOCAL COURT FOR OFFENCES RELATING TO UNREGISTERED VEHICLE - EX PARTE HEARING - PROCEDURE ADOPTED BY MAGISTRATE VALID - CHALLENGE TO LEGISLATION MISCONCEIVED - PROCEEDINGS FUTILE AND SHOULD BE DISMISSED

Costs

COSTS – appeal on costs alone – the approach of appellate courts to such appeals – costs of an application for an access order under the Access to Neighbouring Land Act 2000 (NSW) – general discretion as to costs – ‘indulgence principle’ – whether, where a person seeks an access order under the Act and is unable to show that the refusal by the owner of the land to consent to access was unreasonable, the owner is entitled to the costs of the consent to access application – reasonableness of refusal to consent to access – onus on the person who refuses access to establish the reasonableness of the refusal – entitlement to costs thrown away – whether the claimants were entitled to such costs

Security for costs

Practice and procedure - Discovery categories - Conventional estoppel - Need for communications 'across the line'

Renewal interim detention order

CORPORATIONS – Administration – Application by shareholders to adjourn second meeting of creditors – Where there are two alternate proposals for deeds of company arrangement – Whether court should order adjournment of second meetings of creditors so as to allow time for second proposal to be offered unconditionally – Where second proposal subject to due diligence being completed and due diligence will not be complete before scheduled meeting – Where second proposal would be sufficient to discharge debts to all creditors and provide surplus funds and first proposal would discharge only debts to unsecured creditors – Where adjournment could result in first proposal being withdrawn and second proposal might not be offered unconditionally – Held that meeting ought not be adjourned or restrained – Order that operation of Part 5.3A of the Corporations Act 2001 (Cth) modified so that no deed of company arrangement may be entered into until expiration of 14 days after second meeting of creditors. - (Cth) Corporations Act 2001, ss 436C, 445D, 447A, 447E

CORPORATIONS – Winding up – Examination summons – Service outside Australia – Application for leave under r 11.5 of the Uniform Civil Procedure Rules 2005 (NSW) – Order does not constitute “originating process” – Leave of court given to serve former officer of company with summons for examination and order for production of documents. - PROCEDURE – Service – Substituted service – Application for order for substituted service of summons for examination and order for production of documents refused. - PROCEDURE – Service – Issue of warrant – Order for issue of arrest warrant sought for non-compliance with summons for examination – Whether service of summons for examination has been properly effected – Held that service ineffective due to failure to provide notice required by s 31, Service and Execution of Process Act 1992 (Cth) and r 4(1)(b) of the Service and Execution of Process Regulations 1993 (Cth) – Application refused. - (Cth) Corporations Act 2001, s 596A - (Cth) Service and Execution of Process Act 1992, s 32 - (Cth) Service and Execution of Process Regulations 1993, r 4(1)(b) - (NSW) Civil Procedure Act 2005, s 68 - (NSW) Uniform Civil Procedure Rules 2005, r 11.5

Judicial review - Appeal Panel - WIMWCA

Appeal CTTT - new car, paint defects - merchantable quality

APPEAL – adverse credibility finding – whether substantial wrong or miscarriage of justice occasioned – application of Supreme Court Act 1970 (NSW), s 75A and Supreme Court Rules, Part 51 r 23 - EVIDENCE – Jones v Dunkel inference – the plaintiff’s evidence rejected as implausible or incredible – whether “no evidence” to support a necessary inference – compartmentalising evidence - need to consider cumulative effect, even if parts carried little weight – failure to call relevant witnesses

STATUTE OF LIMITATIONS – extension of limitation period – suspension of limitation period as a result of disability under s 52 of the Limitation Act 1969 (NSW) – respondent substantially impaired in management of affairs in relation to cause of action by reason of mental condition – respondent suffering from major depressive illness - respondent unable to reason normally about various aspects involved in bringing a claim

Appeal - leave to appeal - whether arguable case of error in fact-finding by trial judge - whether errors in relation to admission of evidence - whether further evidence which would be received on appeal - failure to provide prima facie case of authenticity of a letter proposed to be relied on as fresh evidence - leave to appeal refused.

CRIMINAL LAW – PROCEDURE – Costs - informations on which defendant convicted dismissed – application for costs certificate – Costs in Criminal Cases Act 1967 – ss 2, 3, 3A – principles. CRIMINAL LAW – Costs against Crown – discretion to grant certificate – Costs in Criminal Cases Act 1967 – whether trial judge considered facts and reasonableness issue. COSTS – certificate for costs – meaning of "relevant facts" – Costs in Criminal Cases Act 1967 – ss 3, 3A. COURTS AND JUDICIAL SYSTEM – Judges – apprehended bias – whether comment that a statement made from the bar table was “commonsense” demonstrated lack of impartiality.

Appeal brought by a non party - findings of fact based on credibility and reliability of witnesses - sufficiency of disclosure of reasoning process for preference of version of one witness

Bailee for reward - claim for loss of value of goods - legal representation refused - alleged denial of procedural fairness - alleged error of law - ambit of s67 appeal

TORT – NEGLIGENCE – professional negligence – attempted suicide – alcohol consumption – admission to psychiatric hospital – voluntary admission – psychiatric examination – medical and nursing records – discharge – whether discharge premature – intoxication – whether plaintiff ought to have been admitted as involuntary patient – whether plaintiff ought to have been prescribed medication – whether plaintiff mentally – whether plaintiff mentally disordered – exercise of statutory powers – no breach of duty of care

Criminal Law - Offences - Child sexual assault - whether defence by reason of mistake of age exists - Criminal responsibility - whether repeal of statutory defence gave rise to common law defence - Statutory Interpretation - whether legislature intended to exclude common law defence when creating new child sexual assault offences - Appeal - whether verdicts unreasonable in light of acquittal of more serious alternatives - Sentence - failure to comply with provisions of Children (Criminal Proceedings) Act.

Criminal Law - Criminal Appeal Act s5A - indictments - whether counts in indictment alleged essential factual ingredients of offences - amendment of indictment

CRIMINAL LAW - appeal against sentence - five counts aggravated indecent assault, two counts aggravated sexual assault, one count attempted aggravated sexual assault - offender step father of victim - victim 10 and 11 years of age at time of offences - whether overall sentence manifestly excessive taking into account applicant's early plea of guilty - whether sentencing outcome sufficiently reflective of the finding of exceptional features identified by sentencing judge

CRIMINAL LAW – appeal against severity of sentence, robbery in company, affray, assault occasioning actual bodily harm, assaulting police officer in execution of duty thereby occasioning actual bodily harm, resiting police officers in execution of duty, objective seriousness of assault occasioning actual bodily harm, whether error to take into account fact that offender on parole at time of offence, no error shown, no miscarriage of sentencing discretion, sentences not manifestly excessive

ASSOCIATIONS AND CLUBS – Rights, liabilities and duties of members – liabilities – generally – unincorporated association – church – tort liability – vicarious liability – where fluctuating membership – where intentional tort committed by a member since deceased – whether current and/or past members liable – whether trustees of association liable – whether archbishop liable - ASSOCIATIONS AND CLUBS – Procedure in actions by and against – who may be sued - CHURCHES AND RELIGIOUS ASSOCIATIONS – General matters – churches – generally – relationship of church and communicant – relationship between members – relationship of trustees to church – relationship of archbishop to church - CORPORATIONS – Types of corporations – corporation sole – whether Roman Catholic Archbishop of Sydney is a corporation sole for purposes of tort liability – where predecessor may have committed a tort - ESTOPPEL – Estoppel by deed – in general – whether draft settlement deed contained representation as to proper defendants in matter – whether defendants estopped from denying that they are not the proper defendants - PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – parties – representative orders – “same interest” – “same liability” – what constitutes – whether requirement that defences need to be the same – order sought against unincorporated association with fluctuating membership – church – Uniform Civil Procedure Rules 2005, r 7.4 - PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – parties – representative orders – unincorporated association – whether a judgment is against the members individually or funds of an association – Uniform Civil Procedure Rules 2005, r 7.5 - STATUTES – Acts of parliament – statutory powers and duties – liability – negligence – particular cases – interpretation – purpose or object underlying Act – whether trustees of church for the purposes of property matters can be subject to all legal claims involving the church – Interpretation Act 1987, s 33