Cases and authorities

APPEAL - grounds - failure to give reasons - whether trial judge failed to give reasons or to give adequate reasons - failure to consider evidence - whether trial judge failed to give consideration to relevant evidence - whether new trial should be ordered. D

CONTRACT – Offer and Acceptance – Offer to vary terms of lease – Whether precise correspondence between offer and purported acceptance - LIQUOR LAW – Poker machine entitlements – Lessee required to transfer hotelier’s licence on termination of least at lessors’ direction – Whether poker machine entitlements held on trust for lessors prior to lessors re-taking possession - LANDLORD AND TENANT – Lease of licensed premises – Term that lessors were beneficial owners of hotelier’s licence – Where no trust created because licence is not property – Implications with respect to poker machine entitlements appurtenant to licence.

MEDICAL NEGLIGENCE CLAIM - six year old patient referred to first defendant paediatrician on 28 December 1990 with a history of headaches - hospital admission 29-31 December 1990 - varicella rash by time of discharge - whether first defendant negligent in treatment in failing to detect medulloblastoma - no CT scan to investigate cause of headaches. MEDICAL NEGLIGENCE CLAIM against second defendant - consulted as paediatrician on 11 January 1991 - resolving varicella rash - continuing headaches - provisional diagnosis of meningitis - hospital admission 11 January 1991 - lumbar puncture 13 January 1991 - deterioration 14 January 1991 - CT scan then reveals medulloblastoma - whether second defendant negligent in treatment - whether failure to arrange CT on 13 January 1991 causative of harm. MEDICAL NEGLIGENCE - lost chance of better outcome - entitlement to damages - assessment of value of lost chance. The plaintiff was a six year old child who was referred to the first defendant in his capacity as a specialist paediatrician on 28 December 1990 with complaints of headaches. The plaintiff was admitted to hospital on 29 December and remained there until 31 December 1990, by which time a varicella rash had appeared. The plaintiff was examined by the first defendant before her discharge from hospital on 31 December 1990, the last occasion on which the first defendant saw the plaintiff. The plaintiff consulted the second defendant, who was a specialist paediatrician on 11 January 1991, with resolving varicella rash and with complaint of continuing headaches. The plaintiff was admitted to hospital again on that date for investigation, the second defendant making a provisional diagnosis of meningitis. A lumbar puncture was performed on 13 January 1991 and on 14 January 1991 a CT was performed after the plaintiff's condition deteriorated. This procedure disclosed that the plaintiff had a medulloblastoma. The plaintiff was subsequently operated on for a subtotal removal of the medulloblastoma. The plaintiff later had extensive chemotherapy and radiotherapy. The treatment was successful but the plaintiff has been left severely disabled. The plaintiff claimed damages against each defendant, alleging negligence by each defendant in treatment and the failure to detect the medulloblastoma before it was detected. HELD - As to liability: (1) The claim against the first defendant failed - (2) The claim against the second defendant succeeded in that there was found to be a breach of duty of care in not arranging for an urgent CT on 13 January 1991 following an episode occurring on that day - (3) The failure to arrange for that procedure was not proved on the probabilities to be causative of harm, having regard to the plaintiff's pre-existing condition at that time, and to the treatment likely to have been provided if there had been a CT on 13 January 1991 - (4) The plaintiff, however, proved an entitlement to damages for loss of a chance of a better outcome and the avoidance of the damage done on 14 January. Damages: (5) There were four contributors to the totality of the brain damage from which the plaintiff suffers: (i) the medulloblastoma with its seeding and hydrocephalus - (ii) the damage that occurred on 14 January 1991 - (iii) the surgery on 16 January 1991 - (iv) the subsequent radiotherapy treatment - (6) Except for (i), each of the remaining contributors added to the brain damage preceding its contribution - (7) The contribution of the damage that occurred on 14 January to the total damage and resulting disabilities was not greater than twenty-five percent - (8) The loss of the chance of a better outcome and avoidance of the harm suffered on 14 January 1991 was quantified as a forty percent chance - (9) Damages were assessed on the loss of a chance basis at $610,000.

CORPORATIONS – Winding-up – Winding-up in insolvency – Statutory demand – Application to set aside statutory demand – For defect or some other reason – Defendant served plaintiff with statutory demand – Statutory demand described relevant debts as judgment debts and was not accompanied by affidavit verifying amounts due – Plaintiff claimed that relevant debts were not judgment debts because of small disconformities between amounts claimed as judgment debts and amounts in certificates of costs determination which constituted judgment debts – Whether statutory demand liable to be set aside pursuant to s 459J(1)(b) Corporations Act 2001 (Cth) – Where plaintiff failed to delineate s 459J(1)(b) claim in affidavit in support of originating process – Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 considered – Application dismissed.

CORPORATIONS - winding up - statutory demand - application to set aside - whether plaintiff has offsetting claim of an amount greater than that for which statutory demand pressed

Administrative Review - Workers Compensation - Workplace Injury Management and Workers Compensation Act 1998 - Appeal from assessment of approved medical specialist to appeal panel - Workcover Guildlines - AMA Guides to the assessment of permanent impairment - Discretion of appeal panel not to require further medical examination of plaintiff - Exercise by appeal panel of its discretion did not miscarry

CORPORATIONS - scheme of arrangement - convening of scheme meeting - statutory disclosure requirements - whether scheme one that shareholders would approve - credit risk - whether risk to security holders whose securities are divested by virtue of the scheme - Corporations Act 2001 (Cth) s 411 - WORDS AND PHRASES - "scheme of arrangement" and "explanatory memorandum" - Corporations Law s 411(1)

PARTNERSHIP - where relationship between joint venturers was one of partnership - where loans made to partnership - whether amounts owing should be established on the taking of accounts - whether conduct of fiduciary agent warrants taking of accounts - where loss of capital likely - whether orders for repayment of loans should be made before taking of accounts and ascertainment of extent of any loss - rule in Cherry v Boultbee (1839) 4 My & Cr 442

CIVIL PROCEDURE - ACTION IN TORT - PREVIOUS LITIGATION BETWEEN PARTIES IN INDUSTRIAL RELATIONS COMMISSION - SETTLEMENT OF THOSE PROCEEDINGS AFFIRMED BY IR COMMISSION - ACTION BASED ON SAME FACTS - EMPLOYEE (TEACHER) SUING FORMER EMPLOYER - ESTOPPEL OR ABUSE OF PROCESS CLAIMED BY DEFENDANT - UCPR 13.4

Judicial review - appeal by application to the Registrar - test to be applied by Registrar - conflicting authority - discretion - demonstrable error - failure to discharge onus.

EQUITY – Trusts and trustees – Powers, duties, rights and liabilities of trustees – Indemnity, lien and reimbursement – Trustees appointed to act as trustees for sale – Prior to completion of sale, trustees proposed to withhold an amount from proceeds of sale to cover legal costs in respect of proceedings threatened by beneficiary – Beneficiary objected to trustees’ proposal – Trustees backed down and did not retain any moneys from proceeds of sale in respect of future costs or remuneration – Beneficiary pursued threatened proceedings – Trustees incurred substantial legal costs – Whether trustees entitled to order that beneficiary pay trustees’ costs of proceedings brought by beneficiary on indemnity basis – Where proceeds of sale already distributed to beneficiaries – Order that beneficiary pay trustees’ costs of proceedings brought by beneficiary other than costs incurred in breach of trust - EQUITY – Trusts and trustees – Powers, duties, rights and liabilities of trustees – Remuneration – Allowance by the Court – Whether trustees entitled to remuneration for work in defending proceedings brought against them by beneficiary – Order that trustees entitled only to their proper remuneration in administration of trust for sale.

NEGLIGENCE - appeal on liability - bicycle collision with a bollard erected in the middle of a pathway - duty to care owed by local council to cyclists - missing reflector tape on bollard - obviousness of risk - whether appellant cyclist failed to keep proper lookout - voluntary assumption of risk - contributory negligence.

NEGLIGENCE – essentials of cause of action – breach of duty of care – slip and fall – entering house – adjustment of latch or spring device on door – where familiarity with door through extended use. - EVIDENCE – Credibility and weight – alleged admission – denial of admission. - APPEAL AND NEW TRIAL – general principles – when court will intervene – credibility finding – error going to matter at issue in trial – mere presence of error – process error – whether findings on mechanics of fall based on credibility taint finding of negligence.

CORPORATIONS [1083] – Legal capacity and relations with outsiders – External litigation procedure – Appearance in court by company and representation – Who may appear – Representation by director – In Supreme Court of New South Wales UCPR r 7.2 must be strictly complied with.

INTEREST – award of interest as damages – interest rate – relevance of prescribed rate for interest on judgment debts - where on evidence market rate is significantly lower than prescribed rate for interest on judgment debts – whether statutory interest allowable on damages calculated as interest – held, it is.

Sentence - aggravated armed robberies - failure to have regard to principles applicable to juvenile offenders - sentence not according with agreed statements of facts - parity.

Criminal Law - Sentence - failure by Judge to properly apply principle of totality in accumulating sentences with sentence imposed by another court - errors in exercise of discretion in favour of applicant - no lesser sentence warranted.

CRIMINAL LAW - PRACTICE - COSTS - Prosecution in local court - Appeal from conviction - Conviction set aside - Circumstances in which costs awarded to appellant - Investigation into the alleged offence conducted in an unreasonable manner - Unreasonable failure to investigate relevant matter - Whether necessary to prove what an absent witness would have said.

Criminal law-sentencing-supply of prohibited drug not less than commercial quantity-role in drug hierachy and actual participation in criminal enterprise-parity-relevance of record of co-offender-standard non-parole period.

Criminal Law - Appeal against conviction - admissibility and relevance of medical evidence of injuries to complainant, whether corroboration, whether directions to jury appropriate - Summing up - whether unfair by reason of failure to summarise evidence of appellant - Sentence - whether psychiatric report should be admitted as fresh evidence - relevance of mental conditon of appellant - whether sentences should have been concurrent.

Courts and Tribunals - Proceedings in nature of Certiori - Failure by Judge to revoke bonds under s 12 of Criminal Procedure Act - whether error of law in reasons given - proper approach to s 98(3)(b) of the Act - Criminal Law - breach proceedings for s 12 bonds - whether Judge erred in law in failing to revoke bonds - relevant consideration in determining proceedings under s 98 of the Act.

INSURANCE - Accident and Sickness Insurance - Reopening of case - Insurance Contracts Act 1984 (Cth), s 57 provides for interest on amounts withheld by an insurer from time unreasonably to have withheld until payment, to the exclusion of any other law - When was it unreasonable for insurer to have withheld - Whether compound interest appropriate - Appropriate calculation of interest under the Insurance Contracts Regulations (Cth), reg 32

DEFAMATION- qualified privilege at common law - malice - damages

PROCEDURE [482] – Judgments and orders – In general – Other matters – Making of orders after trial of separate questions deferred – Whether orders should be made before further trial.

PROCEDURE - costs - where no determination on the merits - no matter of principle

Family Provision. Application by son. Legacy ordered. No matter of principle.

PRACTICE & PROCEDURE - lodgment of written submissions - applications for extension of time in large and complex case - no issue of general principle

LEASE - Notice to quit - breach of covenant to pay rent and discretion to refuse the grant of relief against forfeiture.

CRIMINAL LAW - Appeal against sentence - supply of cocaine - flooring enterprise disguising drug distribution - whether sentencing judge erred in finding the applicant played a major role - lacked remorse - provided no assistance to authorities - whether applicant acted out of fear - whether sentence manifestly excessive - whether discount given for early plea sufficient - special circumstances justifying variation of the standard non-parol period - impact of delay in sentencing - adjustment allowed for additional days in custody

Criminal Law - sentencing - aggravated indecent assault - relevance of prior similar offending - undiscounted starting point of sentence - standard non-parole period - application of s 44 Crimes (Sentencing Procedure) Act

Carrying out of forensic procedures on serious indictable offenders in a place of detention - non-intimate procedure (hair sample) - refusal of consent - order by senior police officer - threshold requirements - construction of statutory provisions - jurisdiction of a Court.

PRACTICE AND PROCEDURE - discovery - application by Defendant for withdrawal of category of documents from order for discovery - failure by Defendant to comply with Court order - Defendant in breach of duty to assist Court to facilitate just, quick and cheap resolution of real issues in dispute on application - obligations of Defendant as model litigant - order for costs on indemnity basis

Review Registrar's Decision

COSTS - effect of settlement offers - failure to accept offer of compromise - failure to accept Calderbank offer - reasonableness of those offers - relevance of circumstances prevailing at the time when offers made.

CORPORATIONS [1092] – Membership, rights and remedies – Members’ remedies and internal disputes - Oppressive or unfair conduct – What constitutes – Generally – Corporate quasi-partnership – Proposed relationship of “partners” terminated before company commences operations – Operations removed from “partnership” company to another company – At what time oppression determined.

ASSOCIATIONS AND CLUBS - incorporated associations - expulsion procedures - natural justice – where defendant incorporated association is a federation of affiliated unincorporated associations and clubs – where plaintiff is a member of an affiliated unincorporated association - where defendant purports to expel plaintiff which has effect of barring him from involvement in amateur boxing in NSW – whether plaintiff has standing to claim declaratory and injunctive relief against defendant – held, he does – whether upon proper construction of defendant’s constitution its Executive Committee had power to discipline plaintiff – held, it did not – whether determination of Executive Committee affected by any breach of the Constitution or the rules of natural justice – held, notice was inadequate and communication to plaintiff of refusal to hear more than one witness was constructive failure to afford proper hearing – whether relief for denial of natural justice should be declined on basis that it was immaterial – held, relief should not be declined – whether excess of power and/or denial of natural justice cured by subsequent “appellate” proceedings – held, subsequent proceedings were not an appeal of the type which could “cure” any such defect - whether relief should be declined on discretionary grounds – held, it should not - whether damages available - held, they are - relationship between association rules and natural justice

Contracts – Vendor and purchaser – rescission of contract of sale of land – Condition precedent to parties’ obligations to complete – S.C.23 authorised rescission by either party if vendor unwilling or unable to obtain a Building Certificate prior to completion – Vendors’ failure to satisfy condition precedent – No requirement that purchaser establish that vendors were “wholly and finally” unwilling or unable to carry out work required for issue of Building Certificate – No requirement that purchaser establish that he was ready, willing and able to complete before entitled to exercise right to rescind – Whether purchaser in breach of term requiring provision of documents for transfer of liquor licence – Whether timely compliance waived - Purchaser not precluded from exercising right of rescission where purchaser’s breach did not contribute to the vendors’ non-fulfilment of S.C.23 – Held that purchaser’s rescission valid.

CRIMINAL LAW - admissibility of evidence of six telephone conversations obtained by warrant under Telecommunications (Interception) Act 1979 (Cth) - whether evidence relevant to prosecution of Accused for alleged offences under ss.29D, 70 and 73 Crimes Act 1914 (Cth) - whether three conversations, if relevant, ought be rejected under s.135(a) Evidence Act 1995 upon basis that probative value substantially outweighed by danger that evidence might be unfairly prejudicial to Accused - evidence of each of six conversations admitted

CRIMINAL LAW – Registration of child sex offenders – where plaintiff convicted and sentenced in Victoria to imprisonment wholly suspended – whether plaintiff is a “registrable person” for the purposes of the NSW Registration Act - whether Victorian suspended sentence of imprisonment is a sentence which includes a term of imprisonment for purposes of (NSW) Child Protection (Offenders Registration) Act 2000, s 3A – whether suspended sentence of imprisonment is a sentence which includes a requirement that offender be under supervision - whether relief should be refused on discretionary grounds arising from recent retrospective amendment to Victorian legislation - Child Protection (Offenders Registration) Act 2000, s 3, 3A, 3C

Criminal Law - Sentence - Robbery with a dangerous weapon - relevance of alcohol addiction - whether sentence manifestly excessive - whether error in finding no special circumstances.

SUCCESSION - intestate estate - competing claims for letters of administration - deceased unmarried and without issue - claim by father - claim by alleged de facto wife - whether claim to have been de facto wife established - WORDS AND PHRASES - "live together as a couple"

ADMINISTRATIVE LAW - claim for prerogative relief in the nature of certiorari - disciplinary action against motor dealer under Motor Dealers Act 1974 - sale of repaired hail-damaged new and demonstrator vehicles to purchasers without notice being given of hail damage and repair - whether such notice required under s.24(7) Motor Dealers Act 1974 and clauses 32 and 51 Motor Dealers Regulation 2004 - findings that motor dealer carried on business in dishonest or unfair manner - whether error of law on face of record, jurisdictional error or denial of procedural fairness in such findings

PARTNERSHIP - dissolution - delineation of partnership property - whether certain debts payable out of partnership property - no matter of principle

Defamation - whether defences should be struck out - whether imputations and comment related to matters of public interest - whether contextual imputations capable of arising - whether qualified privilege and Polly Peck defences should be struck out

CONTRACTS - general contractual principles - whether terms sufficiently certain to create legal relations - whether supported by consideration - harsh and unconscientious contracts - undue influence - unconscionable conduct - whether one party to knowledge of other labouring under disability - CORPORATIONS - directors - duties of directors - where one director/shareholder induces other to agree to cessation of company's business and transfer of company property to him

CORPORATIONS - voluntary administration - administrator's lien for debts and remuneration - whether equitable lien can be asserted in addition to statutory lien - whether equitable lien may enjoy higher priority than corresponding statutory lien - whether, in the circumstances, any separate equitable lien enjoyed priority over interest of legal mortgagee

RESTRAINT OF TRADE - employment contract - application for interlocutory injunction - whether serious question to be tried - whether enforcement of restraint necessary to protect "legitimate interests" of employer in its confidential information - nature of interest sought to be protected - whether restraint is contrary to public policy - whether exploitation of a connection built up in the course of former employment - balance of convenience and discretion - whether hardship would be suffered if restraint enforced - no question of principle