Cases and authorities

PRACTICE AND PROCEDURE – Whether orders should include declarations, although not originally sought – whether declarations would have utility.

CRIMINAL LAW – SENTENCING – Contempt of court – Defendant carried on business of a motor vehicle repairer in contravention of Court Order – Pre-sentence report – Assessment of subjective factors – Imposition of sentence

PROCEDURE - application for summary dismissal - whether evidence capable of making allegations plausible - special considerations where multiple defendants - PROCEDURE - application for separate trial of case against fourth defendant - civil penalty proceedings to be conducted under rules for civil matters - trial of claims against all defendants together consistent with such rules - no basis shown for separate trial

DEFAMATION – Interlocutory proceedings – whether matters complained of capable of conveying imputations to "ordinary reasonable reader" - that the plaintiff was "crazy", gave "false evidence" to the Land and Environment Court, was an "irrational person" – whether to strike out imputations – Amendment of imputations

CRIMINAL LAW - application by Crown for leave to cross-examine witness under s.38 Evidence Act 1995 - evidence unfavourable to Crown - factors relevant to exercise of discretion under s.38(6) and s.192 Evidence Act 1995 - application granted

PRACTICE - preliminary discovery - where plaintiff banks with defendant at branch in China - where documents relevant to possible cause of action held at that branch - where plaintiff makes enquiries only of defendant's branch in Sydney - whether "reasonable inquiries" - whether principles relating to subpoena served on party outside Australia apply to preliminary discovery in these circumstances

ENERGY AND RESOURCES — Statutory regulation — Compensation — Subsidence – Appeal rights - STATUTES – Acts of Parliament – Interpretation – Mine Subsidence Compensation Act 1961 ss 12, 12A, 12B, 15 and 15B

MORTGAGE – Judicial sale – Conveyancing Act 1919 (NSW) s 103 – General equitable jurisdiction – Whether jurisdiction should be exercised – Whether second mortgagee should be compelled to discharge its security although debt not fully repaid – Minimal potential for gain to second mortgagees disproportionate to risk of loss to mortgagor and guarantor if forced mortgagee sale carried out – Held that exceptional circumstances existed so as to warrant directing judicial sale.

STATUTORY INTERPRETATION- Repeal of procedural provision- Motion to have preliminary dismissal order set aside under Part 1 rule 7A of District Court Rules 1973 after its repeal- Effect- Whether clause 10 of Schedule 6 of Civil Procedure Act 2005 sufficient to support District Court's power to grant order- Held, actions to reinstate litigation begun and completed before August 2005 could not be supported by the Schedule. WORDS & PHRASES- "Begun"- In a transitional provision reference to what is "begun" means something that can be continued and completed, not something begun but already completed.

PROCEDURE – Adjournment – where plaintiff affected by psychosis makes statements to his lawyers shortly before final hearing which raise doubt as to their ability to continue to act – where plaintiff admitted to institution – costs

CONVERSION AND DETINUE - where pallets bailed pursuant to terms of hire that reserve right of immediate possession to bailor at all times - whether bailor entitled to return of pallets on demand without terminating hire agreement - where bailee gives possession of pallets to stranger - whether bailor entitled to return of pallets on demand without terminating hire agreement between it and bailee - ius tertii - whether stranger can set up bailee's right of possession against bailor - whether warranty of quiet enjoyment implied by TPA s 69(1)(b) defeats bailor's claim to possession as against stranger - INJUNCTION - whether bailor entitled to mandatory injunction for delivery up of pallets - whether such an order can be made where pallets are not uniquely identifiable - whether such order can be made where pallets are fungible or interchangeable - CONTRACT - novation - offer and acceptance - where bailees notified of intention to novate bailor's obligations - whether acceptance of novation can be inferred from bailees' conduct - STAMP DUTIES - written offers orally accepted for transfer of title to and rights to use pallets - whether goodwill of pallet hire business assigned together with right to use pallets and associated equipment and technology - whether transfer of title to and right to use pallets includes transfer of goodwill relating to their use in business - whether transfer of "dutiable property" -

CONTRACTS - implied terms - where one company contracts with another to provide services of its employees - terms to be implied having regard to express terms and surrounding context - whether implied term justified termination for misconduct - CORPORATIONS - officers - paragraph (b)(ii) of "officer" definition - key risk management role carrying responsibility for preparation and delivery of budget - whether statutory duties breached - EQUITY - fiduciary duties - whether owed by person in key risk management role - whether fiduciary duty breached - CONTRACTS - breach of contract - various claims for damages - TRADE AND COMMERCE - misleading and deceptive conduct

Review of Magistrate's decision - order that the plaintiff attend scene of crime to undertake forensic procedure - definition of non-intimate forensic procedure - scope of expression "the taking of a photograph of a part of the body" - purpose of legislation

Discovery

Excise prosecution - direction for filing witness statements - priviledge against self-exposure to a penalty

WILLS/PROBATE - Whether copy of will annotated by testator satisfies provisions of s 18A of the Wills, Probate and Administration Act 1898 - Whether testator had testamentary capacity

EQUITY – Equitable remedies – Injunctions – Interlocutory injunctions – Injunctions to preserve status quo and property pending determination of rights – Prima facie cause of action where defendant transferred plaintiff’s property by forging memorandum of transfer then mortgaged property – Plaintiff lodged caveat over second property belonging to defendant in which plaintiff had no caveatable interest – Where inference available that defendant proposes to deal with second property so as to frustrate judgment by being unable to satisfy order that she discharge mortgage over first property – Injunction granted restraining defendant from dealing with second property on terms which minimise risk of damage to defendant and third parties.

MOTOR VEHICLES – Motor Accidents Compensation Act 1999 – section 3 – definition of “injury” – does not include a progressive injury claim. STATUTES – interpretation – amending Act purporting to clarify original Act may be taken into account in interpretation of original Act. PROCEDURE – Pleading – Statement of Claim – requirement to state case with sufficient clarity so defendant can understand case being put. PROCEDURE – application for leave to appeal – preparation of White Book – concurrent hearing – written submissions should be suitable for use on appeal

Prosecutions in Local Court - whether authorised under Fair Trading Act 1987 - character of prosecutions - whether authorised by s14 Criminal Procedure Act 1986 - difference between public and private prosecution - significance of delegation by authorised person - whether prosecutor acting in official capacity - significance of not doing so.

Magistrate determines application to have subpoena for production set aside in part - purported appeal to this Court against that decision - challenge to jurisdiction to hear such an appeal - jurisdiction restricted to appeals from defendants and prosecutors

PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Rules of court – Commencement of proceedings – Serious question that plaintiff under legal incapacity – Where tutor not pursuing application – Serious question that proceedings commenced irregularly – Application for summary judgment – No evidence that notice of motion served on defendant – Held that plaintiff not entitled to summary judgment – Where defendant could be expected to seek permanent stay of proceedings given lapse of time – Order that notice of motion dismissed. - (NSW) Civil Procedure Act 2005, s 3 - (NSW) Uniform Civil Procedure Rules 2005, r 7.14

PRACTICE & PROCEDURE: - Evidence on commission - sought for civil proceedings in US seeking damages for conspiracy to manipulate prices - treble damages sought - conduct alleged an offence under Sherman Act (US) - whether proceedings "relating to the commission of an offence or an alleged offence" - s32(2) Evidence on Commission Act (NSW) - whether examination a step in enforcement of US penal law.

Evidence supporting motive for complainant in sexual assault case to lie — Trial judge directs jury that there were a number of reasons it would not find that the complainant was lying, “because why would she lie?” — Invitation to jury to go beyond both the evidence supporting the asserted motive to lie on which the accused relies and the evidence denying it on which the Crown relies, and to ask “Why would the complainant lie?”, is to suggest to the jury that, in the absence of other evidence beyond that on which the accused relies, they should accept the complainant’s evidence — Jury should never be asked to go beyond the evidence on which both parties rely to establish or refute a motive to lie and to consider the question “Why would she lie?”. - Where objection to such a question being asked by the judge is taken by a co-accused, but not by the appellant, and where the objection is overruled by the judge, so that the judge has been given the opportunity to cure the error made, it would be excessively technical to insist that r 4 of the Criminal Appeal Rules denies to the appellant the opportunity to appeal in relation to the error which remained uncorrected.

CRIMINAL LAW - Appeal against conviction - murder and assault - attack by inmates - reliability of evidence - unofficial questioning - whether section 165 warning required - video link evidence admitted - delay between receipt of image and spoken words - whether transmission imperfections resulted in a miscarriage of justice - oral and written directions on accessorial liability - deficiency in written direction - whether correct oral direction sufficient to overcome deficiencies in second oral and written direction - interference with a juror - juror approached by a person attempting to discuss trial

CRIMINAL LAW - Appeal against conviction - 4 counts - knowingly take part in manufacture of methylamphetamine - supply methylamphetamine - possession of precursor - possession of prohibited weapon - failure by trial judge to direct Not Guilty verdicts on 2 counts - whether appropriate for trial judge to direct jury that it could take into account findings in respect of one charge when determining any other

PROFESSIONS AND TRADES – Lawyers – removal of name from Roll – misconduct, unfitness and discipline – other acts and omissions – practice as barrister without practising certificate

CONTRACT – Construction – Whether basis for setting price had changed such as to constitute a “change” that was “material” in terms of the relevant provision of the contract.

EQUITY – Equitable remedies – Injunctions – Interlocutory mandatory injunctions – Where serious question to be tried as to whether purchasers validly rescinded contracts for sale – Where balance of convenience favours stakeholder holding deposits pending final determination of proceedings – Where some deposit bonds will expire if not called upon by vendor by expiry dates – Order that bonds may be called upon by vendor but are then to be held by stakeholder so that held on trust for purchasers if it is found that purchasers validly rescinded contracts – Where cash deposits paid to vendor by stakeholder upon demand and stakeholder had notice of purchasers’ claims of entitlement to return of deposits – Order that vendor repay cash deposits to stakeholder pending final determination.

Civil procedure - application to vacate - lack of preparation for hearing - illness - dictates of justice

Succession. Family Provision. Claim by adult son. Under will Plaintiff receives one fourth of estate. Financial and material circumstances of Plaintiff. Obligation upon applicant for provision to place before the Court as fully and as frankly as possible all available information concerning his financial and material circumstances. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claim of Second Defendant. Proceedings not instituted within the prescribed period. Estate fully distributed.

Negligence - statutory authority responsible for rail infrastructure - failure to maintain fence - contributory negligence - standard of care of intellectually handicapped plaintiff

Family Provision. Application by a de facto partner. No matter of principle. Order for small legacy.

Entitlement to Interest on Judgment - Entitlement to costs - both parties partly successful - whether taking of accounts should be ordered

Family Law. De facto relationship. Household consisting of parties, their child and two children of Plaintiff. Respective contributions of parties. Acquisition of various pieces of real property during relationship. Claim by Defendant for mesne profits.

EQUITY – Penalties and forfeiture – penalties – where loan origination and management agreement contains promise by originator to act honestly and not engage in deceptive conduct, and provision for termination by manager for various events of default, including failure to rectify a breach of contract or engaging in deceptive or fraudulent activity or an insolvency event or a change of control – where contract provides that upon termination for insolvency or fraud (but not otherwise) originator has no further right to trailer commission – whether right to trailer commission is an accrued right – whether doctrine of penalties limited to obligations to pay agreed sum of money or extends to provisions forfeiting entitlement to receive accrued remuneration – whether doctrine limited to payments conditioned on breach or extends to events of default not being breaches but within payer’s domain.

INSURANCE - double insurance - contribution between insurers - whether same risk insured by both underwriters - whether obligation to contribute rateably to loss

Non-appearance of second defendant when earlier costs orders made explained - appropriate to review earlier costs order in view of lack of involvement of second defendant - not appropriate to make costs order against him in respect of principal proceedings - appropriate to make costs order of application to vary costs order against him

CONSTRUCTION CONTRACT - Building and Construction Industry Security of Payment Act 1999 - payment claim - where tax invoice states that it "is prepared under" the Act - whether tax invoice complies with s 13(2)(c)

PROCEDURE - hearing in open court - where applications relate to conduct of litigation by liquidators for benefit of large body of creditors - where hearing in open court might prejudice beneficial conduct of that litigation - public interest in open justice outweighed by public interest in due progress of insolvent administration and due conduct of liquidators' litigation

Action for possession of a farm - farm mortgage - s 8 notice - mediation - heads of agreement - lenders certificate - s 11(1) certificate - no misleading or deceptive conduct.

FAMILY LAW – Parentage – Parentage testing – Claim under Family Provision Act 1982 (NSW) – Paternity in issue – Whether parentage test should be ordered – Distress caused by imputation of mother’s alleged infidelity not sufficient ground to refuse testing – Where sample from deceased not taken in accordance with s 31 of the Status of Children Act 1996 (NSW) and Status of Children Regulation 2003 (NSW) – Seriously arguable that s 31 of the Status of Children Act 1996 (NSW) and procedures set out in Status of Children Regulation 2003 (NSW) do not provide exclusive means by which parentage report can be admissible in proceedings under Family Provision Act 1982 (NSW) – Admission of deceased’s results might not be required in ultimate proceedings where plaintiff’s parentage testing results could be compared with siblings’ results – Order that parentage testing procedures be undergone by plaintiff. - FAMILY LAW – Parentage – Parentage testing – Claim under Family Provision Act 1982 (NSW) – Paternity in issue – Whether parentage test should be ordered against persons not joined as parties to proceedings – Order refused. - (NSW) Status of Children Act 1996 – s 3(1), 26, 31 - (NSW) Status of Children Regulation 2003 – r 5 - (NSW) Family Provision Act 1982

CRIMINAL LAW AND PROCEDURE - MURDER - CONVICTION AFTER TRIAL - TEN YEAR DELAY BETWEEN OFFENCE AND TRIAL - SENTENCE

CONTRACTS - restraint of trade - restraint period of three years after termination of agreement by exercise of option - restraint pursuant to shareholders agreement not solely employment agreement - whether restraint contrary to public policy - whether restraint period reasonable

CRIMINAL LAW - SENTENCE APPEAL - no error identifiable or manifest - commission of offence on conditional liberty - caution in application of statistics - not outside of range of sentence available given recalcitrance of offender - backdating to account for pre-sentence custody.

CRIMINAL LAW - Appeal against conviction - Plea in bar - Autrefois convict - Where elements of offence overlap - Abuse of process - Admission of hearsay evidence pursuant to s.65 of the Evidence Act 1995 - Witness "not available" - Evidence given in a proceeding - Whether section limited to evidence given by prosecution witnesses - Whether unfairly prejudicial - Whether verdict unreasonable - Appeal against sentence - Whether manifestly excessive.

INSURANCE - Professional indemnity insurance - Claims made policy - No claim made during the term of policy - Effect of s.54 of Insurance Contracts Act 1984 (Cth) - Application to join insurer in proceedings under s.6 of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - Onus of proof in such applications.

APPEAL AND NEW TRIAL – General principles – right of appeal – where appeal lies – from interlocutory decision – leave to appeal – whether appealable decision – where no formal order made – appeal from decision on admissibility of evidence in disciplinary proceedings in the Administrative Appeals Tribunal – doubt expressed on whether appeal lies - EVIDENCE – Admissibility – general – evidence unlawfully or irregularly obtained –pursuant to warrant – whether obtained inadvertently or unexpectedly – whether it follows that information is obtained inadvertently or unexpectedly when it is obtained while investigating an unrelated offence – ss 12, 13, 14, Listening Devices Act 1984 - STATUTES – Acts of parliament – interpretation – permissive provision – expressio unius est exclusio alterius – where statute permits use of evidence in criminal proceedings but is silent on prohibiting use in civil proceedings – s 14, Listening Devices Act 1984

CORPORATIONS - winding up - examination of officers and others - where proceedings commenced by liquidator against examinees - examinees' solicitor given copy of statement of claim an hour or so before examinations due to begin - whether examinations should be adjourned