Cases and authorities

TORT – NEGLIGENCE – personal injury – psychiatric/psychological harm – plaintiff bullied at primary school – reports of bullying to school authorities by plaintiff’s mother – severe anxiety symptoms – reliability of mother’s evidence – some discrepancies – no significance – duty of care – expert evidence – identification of psychiatric disability – causation – relevance of mother’s own psychiatric condition - DAMAGES – non-economic loss – economic loss – superannuation – discount for vicissitudes - EVIDENCE – hearsay – exceptions to hearsay rule – whether person who made representation is competent to give evidence of asserted fact – no recollection of asserted fact

Limitation of action - eight separate proceedings as a result of collapse of dance floor - proposed defendants joined in some proceedings but not in others - whether time should be extended if little evidence to show that cause of action exists - joint tortfeasors.

CONTRACT - building and construction - where defendant has recovered adjudication determination and judgment against plaintiff - where defendant subject to deed of company arrangement - where plaintiff asserts cross-claim for liquidated damages and defective and incomplete works - plaintiff seeks permanent stay and return of security given by it - whether Building and Construction Industry Security of Payment Act 1999 ceases to apply when contractor or subcontractor becomes insolvent - impact of external administration - where conflict exists between s 25(4) of the Act and ss 553, 553C of the Corporations Act - whether refusal of stay will cause irreparable prejudice

MENTAL HEALTH - Protected Estates - proposed appointment of Trustee Company as manager - Trustee Company proposed declaring special trust of managed estate assets - possibility protected person might not be sole beneficiary - discussion of difference between trust estates and managed estates - many provisions of proposed trust deed not appropriate for an estate managed pursuant to an order under Protected Estates Act 1983

CORPORATIONS - reinstatement of deregistered company - ex parte application to court - court directed that ASIC reinstate registration - ASIC reinstated registration - persons claiming to be affected seek order setting aside court's earlier order directed to ASIC - whether such persons entitled to opportunity to be heard - whether they in fact had such opportunity - whether full information given on ex parte application - whether order setting aside order directing reinstatement would be of any utility where reinstatement complete - nature and scope of jurisdiction to direct rectification of ASIC registers discussed

PROCEDURE - costs - where no determination on the merits - whether unreasonableness on either side warranting departure from outcome that there should be no order as to costs

CRIMINAL LAW – SENTENCING – Murder – Intent – Level of objective seriousness – Intoxication – Aggravating Factors: Injury, emotional harm, loss or damage caused by offence was substantial - Offence was committed while offender on conditional liberty in relation to an offence or alleged offence - Victim was vulnerable - Offence part of a planned criminal activity – Plea of guilty – Remorse – Rehabilitation – Subjective factors – Standard non-parole period – Deterrence – Crimes (Sentencing Procedure) Act 1999 (NSW) – Crimes Act 1900 (NSW)

Criminal Practice and Procedure - sentencing - murder - guilty plea - lack of contrition - voluntary disclosure - utilitarian discount - sentencing practice as at the date of commission of offence.

PROCEDURE - application for stay - order for payment of money by defendant to plaintiff - appeal by plaintiff and cross-appeal by defendant - money claimed under lien by plaintiff's lawyers - whether stay warranted pending appeal

CORPORATIONS - winding up - proof of debt - rejection by liquidator - appeal to court - whether existence of debt proved - no matter of principle

[ORDERS] - Whether "strike out" order "determined" the proceedings - whether order made after specified date in Deed of Company Arrangement precludes creditor from obtaining leave to enforce order against company in administration.

CRIMINAL LAW: - Crimes (Serious Sex Offenders) Act - application for interim detention order - sufficiency of supporting documentation - defendant likely to be deported upon release - fresh charges

PROCEDURE - costs - application by plaintiff for leave to amend - amendment rendered futile after initiation of application and before application heard - whether plaintiff should have persisted beyond that point

CRIMINAL LAW - Crown Appeal against sentence - Criminal Appeal Act s5DA - Court's discretion - Appeal dismissed in exercise of discretion

APPEAL – fact – appellant unsuccessfully sought damages for professional negligence from the respondent general practitioner who had diagnosed the appellant’s delusional beliefs as ‘psychotic’ in nature – medication prescribed by the respondent caused catastrophic, but rare, side-effects – whether, on the primary facts that were, or should have been, found by Hall J, it was reasonable for the respondent to diagnose the appellant as suffering from a psychosis, or depression complicated by psychotic symptoms – difference between psychosis and anxiety or a phobic state

CRIMINAL LAW - trial by jury for offences against the law of the Commonwealth - trial commences with jury including a person disqualified from serving as a juror - discovery of this fact during trial - whether person may be discharged and trial continue with a jury of eleven under s.22 Jury Act 1977 - held that power to discharge juror and continue trial under s.22 was available and ought be exercised

CORPORATIONS - Directors - Insolvent trading - Compensation orders. - (Cth) Corporaitons Act 2001, s 588G

TAXATION – group tax withheld by company employer – amounts withheld not remitted to Commissioner – liability of directors to penalty – remission by statute – whether agreement one for discharge of group tax liabilities – whether penalty remitted.

Decision by Registrar not to refer appeal to panel - nature of decision - whether relevant material considered by Approved Medical Specialist - failure by Registrar to consider all grounds of appeal - illogical or irrational findings of fact.

CONTRACTS [45], [87] – General contractual principles – Parties – Rights and liabilities of third parties – Enforcement by non party beneficiary – Consideration – What amounts to consideration – Other cases – Practical benefit or disbenefit - CORPORATIONS [1228], [1241] – Management and administration – Officers of corporation – Director – Remuneration – Responsibility for fixing – Authority, rights and powers of officers of corporation – Termination payments – Entitlements on resignation – Statutory caps on quantum – Time of operation of provision prohibiting excessive entitlements - EQUITY [379] – Equitable remedies – Specific performance – The jurisdiction in general – General principles – No longer limited by particular categories – Available at suit of party to contract to enforce payment of monetary sum to non party - GUARANTEE AND INDEMNITY [20] – Discharge of surety – Departure from terms of contract with surety – Whether total failure of consideration.

Sentence - manslaughter by excessive self-defence - genuine belief that force used necessary - unreasonably excessive - unprovoked attack by irrational victim - accessory after the fact to manslaughter - helped principal offender to conceal body - cleaned blood from premises - believed that no offence committed by principal offender - effect of lengthy custody on remand.

Criminal law - Crimes (Serious Sex Offenders) Act 2006 (NSW) - application for interim detention order - evidence required for an application for an interim order under the Act - standard of proof - nature of the standard - a predictive risk assessment as to the probability that a particular offender is "likely" to commit a further serious sex offence - the requirements for the making of an interim detention order were satisfied - the material sufficiently established a risk of re-offending for the purpose of an interim order - there was no relevant delay in the making of the application and if delay were shown, it was not such as to provide a basis for refusing the interim order

Appeal - Local Court - insurance policy

WILLS, PROBATE AND ADMINISTRATION – Testamentary instruments – Video tape purporting to explain will – Video tape constituted “document” – Whether will should be rectified in accordance with video tape – Rectification claim dismissed – Whether video tape was intended to be an amendment to will – Held video tape was intended to explain will and was not intended to be an amendment to will - Wills, Probate and Administration Act 1898, s18A

PARTNERSHIP- Contribution- One partner settled claim of plaintiff and cross-sued for contribution from other partner- Whether partnership agreement precluded contribution- Held- "No"- Whether paying partner entitled to equal contribution to own costs in defending plaintiff's claim- Held a co-surety or co-tortfeasor may claim contribution for costs reasonably incurred in defending claim.

CORPORATIONS – COMPANY CONSTITUTION - construction of provisions in constitution of a professional indemnity insurer – whether insurer had power to make a “call” when membership had ceased due to default in payments of subscription – whether debt was sufficiently proved by the claimant’s name being on the register of ordinary members

CORPORATIONS – Winding up – Application for stay or termination – Whether court should order stay or termination – Where condition for termination of the winding up offered by applicant that applicant release debts in consideration for issue of redeemable preference shares in the company – Where current assets will be sufficient to satisfy current liabilities once loans capitalised – Undertakings to court that debts be released – Interests to be considered – Future creditors – Public interest – Order that winding up of defendant be terminated – (CTH) Corporations Act 2001, s 482

EQUITY – Equitable fraud – Unconscionable dealing – Plaintiff 101 years old and living in nursing home – Defendant 58 year old woman who visited him at the nursing home – Series of transactions between plaintiff and defendant – Defendant claims transactions were for the benefit of the plaintiff – Plaintiff traumatised and in a position of vulnerability and disadvantage when transactions took place – Whether or not plaintiff intended to she did take advantage of the age and medical condition of the plaintiff – Transactions were unconscionable

Award of fund management for a plaintiff with pre-existing intellectual handicap

Criminal law - procedure - lower courts - form of court attendance notice - section 175(3)(e) of Criminal Procedure Act 1986 - commencement of proceedings - jurisdiction of Chief Industrial Magistrate - declaratory relief declined.

Child plaintiff - contributory negligence

Appeal - Appeal Panel - Administrative Decisions Tribunal

Costs

Succession - Wills - testamentary capacity - testator suffering from schizophrenia and insane delusions - strained relationship between testator and two surviving children - whether the testator suffered from schizophrenia and insane delusions at the time of making his Will - whether a claim pursuant to the Family Provision Act is available to the surviving children

Section 327(5) WIMWCA - calculation of time period to lodge an appeal

LIMITATION OF ACTIONS – tort – personal injury – psychological/psychiatric injury arising from sexual abuse of plaintiff as a child in care of first defendant between 1960 and 1965 – plaintiff under disability until April 1971 – action statute barred – application for extension of time – application governed by SA legislation – amendments to legislation – whether amendments apply to proceedings already commenced – whether plaintiff had an accrued right – correct identification of right said to have accrued – whether material fact(s) not ascertained by plaintiff until within twelve months of institution of proceedings – whether any conduct of first defendant available to excuse plaintiff’s failure to institute proceedings within limitation period – what constitutes material fact – when plaintiff aware of material facts – whether it is just to grant extension of time – estoppel – whether failure of first defendant to particularise opposition to application relevant to justice of granting extension – Limitation of Actions Act 1936 (SA) s 48

CORPORATIONS – Winding up – Application for stay or termination – Whether court should order stay or termination – Where company’s liabilities exceed its assets – Interests to be considered – Future creditors – Public interest – Application dismissed – (CTH) Corporations Act 2001 s 482

Criminal law - search warrants - validity - whether warrants were granted as covert warrants - whether statutory scheme under the Search Warrants Act 1985 (NSW) authorised covert search warrants - the warrants in question were validly granted, but not as covert search warrants - however the covert execution of the warrants was unlawful and had the effect of negating procedural safeguards created by statute in favour of an occupier of premises - jurisdiction of Supreme Court where pending criminal trial in the District Court - principles that guide the discretion in exercising the jurisdiction

Strike out, security for costs, leave to file amended cross-claim, set aside notices to produce

CRIMINAL LAW – SENTENCE APPEAL – error of law to preclude capacity to suspend sentence – aberrant behaviour – absence of damage to any person or property – significant subjective factors – appeal granted – imprisonment suspended.

CRIMINAL LAW – arrest – arrested person to be taken before an authorised Justice to be dealt with according to law – delay – factors to be considered when determining whether delay unreasonable – where police station has influx of prisoners – where prisoners’ solicitor busy with multiple prisoners – Crimes Act 1900, section 352 - CRIMINAL LAW – arrest – bail – police bail – police required to determine bail or bring accused person before a court as soon as reasonably practicable – delay – factors to be considered when determining whether police bail decision made as soon as reasonably practicable after accused person charged – external constraints on police – where police station has influx of prisoners – where prisoners’ solicitor busy with multiple prisoners – Bail Act 1978, section 18 - POLICE – actions for wrongful arrest, trespass and other wrongs – false imprisonment – whether initially lawful detention became unlawful after delay in bringing accused person before an authorised Justice - POLICE – rights, powers and duties – police powers of detention – length of time during which accused person may be lawfully detained – requirement to take accused person before an authorised Justice - TORTS – trespass to the person – false imprisonment – action by people arrested and then detained at police station – whether initially lawful detention became unlawful after delay in bringing accused person before an authorised Justice - EVIDENCE – admissibility and relevance – Local Court charge sheets – whether charge sheets improperly obtained – discretion to exclude improperly obtained evidence – section 13 Criminal Records Act 1991 – section 18 Privacy and Personal Information Protection Act 1998 – Evidence Act 1995, section 138 - EVIDENCE – admissibility and relevance – evidence admitted provisionally – trial judge indicated admissibility would be considered later in reasons – failure of trial judge to later give reasons on admissibility - JUDGMENTS AND ORDERS – statement of reasons for decision – trial judge admitted evidence provisionally on the basis reasons would be given later – failure of trial judge to later give reasons - JUDGMENTS AND ORDERS – statement of reasons for decision – adequacy of reasons – failure to analyse evidence – whether inadequacy of reasons warrants correction on appeal – whether substantial wrong or miscarriage resulted - POLICE – action for wrongful arrest, trespass and other wrongs – assault – whether police used reasonable force in arresting suspect - POLICE – actions for wrongful arrest, trespass and other wrongs – negligence – whether injuries sustained by suspect during arrest resulted from police negligence - WORDS AND PHRASES – “disclose”

TORTS – vicarious liability – Civil Liability Act 2002 (NSW) – whether s 3B(1) excluded the operation of the Act in relation to the vicarious liability of an employer for an intentional tort by its employee - TORTS – vicarious liability – employment of security guards on licensed premises – – conditions imposed on licences under Liquor Act 1982 (NSW) – unauthorised act by an employee – whether employer of security guard vicariously liable - DAMAGES – exemplary damages – whether employer could be vicariously liable for exemplary damages - DAMAGES – future economic loss – whether assessment should be by way of a ‘buffer’ – whether correct comparable earnings used - DAMAGES – superannuation based on future economic loss – whether actuarial evidence necessary – whether a second discount should be applied because the amount is received now rather than later

COURTS AND JUDGES – Supreme Court of New South Wales – multiplicity of proceedings – abuse of process – where order in Commercial List proceedings ordered specific performance of a contract and reserved liberty to apply and further consideration – where later dispute arose concerning same transaction – where opponent sought resolution of later dispute in original Commercial List proceedings under reservations of liberty to apply and further consideration and claimant commenced new proceedings in Equity Division to resolve later dispute – where claimant sought stay of Commercial List proceedings and opponent sought stay of Equity Division proceedings – where Equity Division judge ordered stay of Equity Division proceedings – whether matters claimant sought to raise in Equity Division proceedings could be raised in original Commercial List proceedings under reservations of liberty to apply and further consideration – whether stay of Equity Division proceedings inhibited claimant from presenting case – whether Commercial List judge correct in ordering stay of Equity Division proceedings - PROCEDURE – liberty to apply – scope of orders that can be sought under liberty to apply – order for specific performance – “working out the order” - PROCEDURE – further consideration – scope of further consideration – where trial judge reserved for further consideration by associate judge - COURTS AND JUDGES – appeals – leave to appeal – events occurring after judgment below – whether subsequent events relevant to question of whether to grant leave to appeal – whether subsequent events relevant to question of whether trial judge made appellable error – whether subsequent events relevant when appeal court exercises its own discretion

CORPORATIONS - winding up - application by liquidators for direction - where liquidators required to answer subpoenas in criminal proceedings - very large quantity of documents - some subject to legal professional privilege - desire of liquidators to avoid expense of examining all documents - liquidators wish to produce all documents - whether appropriate matter for court's direction

Claim against solicitors - recovery from solicitors of money paid for disbursements - whether Legal Profession Act 1987 entitled plaintiff to recovery of money so paid - whether monies paid to solicitors under "duress" - whether entitlement to aggravated or exemplary damages.

EQUITY – Equitable remedies – Injunctions – Interlocutory injunctions – Defendant and plaintiff parties to contract under which defendant provides container freight station services – Plaintiff purported to terminate contract on basis of material breaches – Defendant disputed plaintiff’s entitlement to terminate, purported to accept termination as repudiation then purported to terminate contract – Claim to restrain defendant from acting upon its termination of the contract – Serious question to be tried as to whether plaintiff entitled to terminate contract or whether its conduct constituted a repudiation – Where termination would cause substantial damage to plaintiff – Balance of convenience in favour of granting injunction – Claim to restrain defendant from enforcing lien over goods deposited for storage by plaintiff as agent – Serious question to be tried as to whether defendant entitled to enforce a lien over goods – No sufficient reason to doubt adequacy of plaintiff’s undertaking as to damages – Where, upon plaintiff’s paying amounts owing under contract, balance of convenience favours restraining defendant from asserting lien – Injunction granted on terms. - (NSW) Warehousemen’s Lien Act 1935, ss 3 and 4.

PRACTICE & PROCEDURE: - Application to set aside ex parte orders for examination of witness under Evidence on Commission Act (NSW) - discretion conferred by s33 - serious illness of witness - whether examination of witness orally or in writing practicable

CRIMINAL LAW - sentence - child offenders - aged 14 - manslaughter - attack on taxi driver - injuries inflicted triggered heart attack - offenders affected by alcohol and drugs - engaged in activities associated with adults - need for rehabilitation - need for punishment and deterrence.

PROCEDURE - discovery and interrogatories - consent regime for discovery progressively created by consent orders - apprehension by one party that certain documents may have been destroyed - application by that party for leave to administer interrogatories as to fate of documents - whether interrogatories appropriate

JURISDICTION OF COURTS – Transfer of proceedings – from Supreme Court to Family Court – whether seriously arguable that Family Court would not have jurisdiction – jurisdiction of Family Court under Family Law Act, s 78 - accrued jurisdiction of Family Court – where claim brought by third party against property of party to marriage after matrimonial proceedings instituted – relevant considerations on transfer application – third parties who in context of marriage breakdown assert rights against matrimonial property should join in existing matrimonial proceedings rather than commence separate litigation. - FAMILY LAW – Jurisdiction – third parties – jurisdiction of Family Court under Family Law Act, s 78 - accrued jurisdiction of Family Court