Cases and authorities

Tort - Medical negligence - Endoscopic surgery - No breach.

Personal injury - Occupier's liability - Construction site - Statutory counts - Contributory negligence - Section 151Z Workers Compensation Act 1987 - Damages.

Sentencing - offences of attempting to export native birds' eggs and hindering a Commonwealth official in performance of his functions - objects of leglislation - strong subjective case - whether manifestly excessive

Criminal law - appeal against sentence - supply of not less than commercial quantity of prohibited drug - parity of sentences - evaluation of roles - applicant's lesser role not reflected in sentence - justifiable sense of grievance - applicant re-sentenced.

Criminal Law - Sentencing - mixed Commonwealth and State offences -most serious offending Commonwealth crimes - whether non-parole period being 75 per cent of total sentence appropriate in those circumstances.

RESTRAINT OF TRADE - employment contract - access to and use of confidential information - application for interlocutory injunction - contractual definition of "competitive business" - grant of interim relief - strength of employer's case - whether grant of relief would cause severe or irremediable prejudice - whether evidence inconsistent, unchallenged or controverted - validity of restraint of trade - whether enforcement of restraint necessary to protect legitimate interests of employer in its confidential information

Cultivation of large commercial quantity of cannabis by co-offenders - assessment of value of pleas of guilty - whether sentences manifestly excessive - question of parity

Criminal Law - appeal against severity of sentence - sentence of imprisonment to be served by periodic detention - pre sentence custody and quasi custody - approach to sentence - parity

CONSTRUCTION CONTRACT - statutory regulation of entitlement to and recovery of progress payments - payment claim - valuation of delay costs - payment schedule - incomplete or defective works - whether adjudication determination void - natural justice - whether dispute decided on basis for which parties did not contend - requirement to have regard to certain matters (s 22(2)) - whether adjudicator entitled or required to consider statutory declaration except as submission in support of payment schedule

CORPORATIONS – External administration – winding up – provisional liquidation – circumstances in which appointment made – where winding up application based on oppression and just and equitable grounds – where “buy-out order” more likely than winding up order - where seriously arguable case that plaintiff should be entitled to control of two companies but not third company - where defendants consent to final winding up order but not to appointment of provisional liquidator in respect of the two companies, and oppose winding up of third – where significant risk that company resources will be expended on defence of majority, but otherwise no jeopardy to assets - significance of probable destination of future control of companies

CONTRACT – Lease - Terms – implied terms – whether term should be implied that lessee’s covenant to pay “further rent” would not operate in certain circumstances - where covenant to same effect has been subject of judicial consideration – where implication would be inconsistent with basis on which covenant previously held valid – term not to be implied - Variation – whether lease varied by conduct to omit covenant to pay “further rent” - requirement for contractual intention and consideration – where parties did not advert to relevant term of lease – where suggested variation exclusively for benefit of plaintiff/lessee from whom no consideration moves - no contractual variation – ESTOPPEL – Promissory estoppel – whether defendant/lessor estopped from insisting on strict legal right to payment of “further rent” where plaintiff/lessee had relied to potential detriment on assumption that only rent payable was standard rent - where defendants neither induced plaintiff’s adoption of assumption, nor acquiesced in it with knowledge that reliance may cause detriment if it were not fulfilled - defendants not implicated to requisite degree in plaintiff’s adoption of and detrimental reliance on assumption to found equitable promissory estoppel – Conventional estoppel – where plaintiff and defendants adopt same assumption that only rent payable was standard rent – where lessor and lessee conducted their relationship on the basis of that assumption, and each knew that the other was doing so – where plaintiff would incur detriment if assumption were falsified - no requirement that either party know that the other may incur detriment by reliance on the assumption – conventional estoppel established and lessor not entitled to claim “further rent”.

Defamation — qualified privilege — Reply alleging improper motive — content of such Reply — particulars to be supplied — relevance of falsity of defendant’s evidence in s7A hearing.

EASEMENTS - CONTRACTS - claims for extinguishment of right of footway under s 89(1)(b) Conveyancing Act 1919 and for specific performance of alleged extinguishment agreement - signed proposal between neighbours to extinguish right of footway - expressed "in principle approval" - no intention to create immediately binding agreement.

ADMINISTRATIVE LAW - Claims Assessment under Motor Accidents Compensation Act 1999 (NSW) - Decision not to exempt claim from assessment process - whether guidelines complied with - allegation of false and misleading claim - merits review - non-binding arbitration process

RETAIL LEASE – MISREPRESENTATION – whether the lessor made misleading or deceptive representations to intending lessee is – whether lessee is relied on any misrepresentations – whether failure to state representations in Lessee's Disclosure Statement created an estoppel against lessees.

TRIBUNALS - Consumer, Trader and Tenancy Tribunal is court for purposes of Suitors Fund Act 1951 (NSW) - Tribunal has power to award costs - costs generally

[DAMAGES] - Quantification of plaintiff's damages resulting from defendant's negligent misrepresentation in relation to zoning of land.

ADMINISTRATIVE LAW - Claims Assessment under Motor Accidents Compensation Act 1999 (NSW) - decision not to exempt claim from assessment process - whether guidelines complied with - meaning of complex matter - merits review - non-binding arbitration process

CRIMINAL LAW: - Crown appeal - possession of pistol, break and enter with intent to commit serious indictable offence - two years imprisonment suspended, 300 hours community service - approach to standard non-parole period on firearm charge - whether sentence is manifestly inadequate - exceptional case

CRIMINAL LAW: - Crown appeal - application for leave to appeal by offender - ongoing supply of amphetamine - matters on form1 - 2 year sentence, NPP 15months - suspended but bond later revoked - exceptional case - whether sentence manifestly inadequate - whether conditions of bond appropriate

appeal against conviction - possession of precursor intended for use in manufacture of prohibited drug - joint criminal enterprise - joint possession of precursor - appellant Franklin mother of appellant Jackwitz - whether indictment bad for duplicity - possession of precursor accompanied by relevant intention - duplicity not found - joint possession an inference available to trial judge

CRIMINAL LAW: - application for leave to appeal against sentence - supplying heroin, aggravated break and enter and commit serious indictable offence - separate incidents - delay in prosecution of supply charge - accumulation of sentences - totality - whether aggregate sentence excessive

Sentence appeal - Accessory Before the Fact to Steal Motor Vehicle - Fresh Evidence - Disparity - Hardship to offender's family.

JUST TERMS COMPENSATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 56(1)(a) – meaning of “the proposal” – land zoned for industrial use – whether land should have been treated as zoned for residential use – whether zoning authority’s decision to maintain existing zoning to prevent land being developed in a manner inconsistent with a possible future use constituted part of “the proposal to carry out the public purpose”: – resuming authority did not have proposal to acquire land at time of the rezoning authority’s decision – whether decision to maintain zoning caused decrease in value of land

DAMAGES – whether excessive – credibility of plaintiff – proof of pre-existing condition.

JURISDICTION – appeal from Appeal Panel of Administrative Decision Tribunal – whether decision was interlocutory – whether leave required – whether notice of appeal incompetentRETAIL LEASE – statutory interpretation – Retail Leases Act 1994 (NSW) ss 11 and 12 – whether the term “services” under s 12 included “outgoings”RETAIL LEASE – Retail Leases Act 1994 (NSW) s 30 – whether calculation of contribution to outgoings on proportionate basis should take into account vacancy ratesRETAIL LEASE – whether contractual obligation to pay contributions to outgoings included requirement that amount claimed be “reasonable” PROCEDURAL FAIRNESS – whether Administrative Decision Tribunal erred in relying on audited statement of outgoings and cross-examination of auditor without granting party access to further documentsCOSTS – whether Appeal Panel of the Administrative Decision Tribunal was a “court” for the purposes of the Suitors’ Fund Act 1951 (NSW)

PLANNING AND ENVIRONMENT – local environment plan – validity – preparation of environmental study – public exhibition of draft local environment plan – whether compliance with Environmental Planning and Assessment Act 1979 ss 57(2), 66 – effect of non-compliance – construction of legislative provisions – whether jurisdictional requirement – whether mandatory consideration – relevant considerations

NATURAL JUSTICE - refusal to adjourn - special considerations in criminal proceedings - balance justice between parties - constructive failure to exercise jurisdiction

CLAIM FOR DAMAGES - misleading and deceptive conduct claim against State of New South Wales for false and misleading statements made by officer of the Department of Aboriginal Affairs - whether ostensible authority established to render State of New South Wales liable - whether Plaintiff put on inquiry by circumstances of dealing with officer - whether Department of Aboriginal Affairs carrying on business for purposes of Fair Trading Act 1987 - whether State of New South Wales vicariously liable for acts of officer - whether officer engaged in a frolic of his own - whether direct liability in negligence established against State of New South Wales arising from appointment of officer to departmental position and supervision of him

CRIMINAL LAW: - sentence - manslaughter - after trial for murder - provocation

PRACTICE AND PROCEDURE - strike out application - abuse of process - res judicata - issue estoppel - vexatious litigant order.

DOCUMENTS - Solicitors' Lien - Payment into court - not examine merits of charge - order conditional on a claim being made bona fide - no interests of third party affected - costs of production - photocopying costs disallowed.

proceedings in Children's Court of New South Wales - review of orders made in Children's Court - whether Children's Court lacked jurisdiction - legal practitioners involved in Children's Court proceedings named as parties to proceedings in this Court - distinction between role of legal representative and role of party to proceedings - care order - care application - care proceedings - interim order allocating parental responsibility - abuse of process - ulterior purpose of removing children from this jurisdiction to return them to New Zealand not found

Negligence - misleading and deceptive conduct - accountant's representations inducing plaintiff to lend money - causation - whether release of debt in favour of taking up worthless shares was the cause of loss (ND)

CORPORATIONS - effect of incorporation on liability of parties in quasi–partnership - company’s activities financed in part by funds raised by personal borrowings from family and friends by 2 directors and shareholders on-lent to company - whether agreement to bear burden of personal borrowings equally - nature of relationship between parties - whether evidence established fiduciary relationship.CONTRACT - ongoing relationship - necessary to look at whole relationship to determine whether contract in existence not only at what was said and done when relationship first formed.PARTNERSHIP - whether manifestation of mutual assent sufficient to prove a partnership agreement pursuant to which parties undertook to assume personal, and equal, responsibility for borrowings from family and friends - whether partnership displaced by incorporation of company.QUASI–PARTNERSHIP - mutual trust and confidence manifest from outset of business relationship - whether fiduciary relationship between parties exposing them to an obligation to account to each other in relation to personal borrowings on-lent to company - nature of the subject matter over which obligation extends EQUITY - fiduciary relationship - fiduciary relationship between parties arising from mutual trust and confidence reposed in each other from the outset of business relationship – determined by reference to course of parties’ conduct and inferences drawn from that conduct - can exist despite fact parties are in a corporate relationship - can exist between parties who have not reached, and who may never reach, agreement upon the consensual terms which are to govern the arrangements between them.CONTRIBUTION - right of contribution - rests on matters of substance not form - absence of contractual arrangement not controlling - common interest and common burden - shared decision-making touching administration of loan and application of loan proceeds - whether right of contribution where creditor not threatening to enforce debt - whether relief should be refused on discretionary grounds.DELAY – notwithstanding lapse of time possible to grant equitable relief on just terms - respondent on notice claim not abandoned. (D)

MOTOR ACCIDENTS ACT – injury – defect in vehicle – fault of employer – within Act

COSTS – consequential orders – exercise of discretion by primary judge – reopening of argument – principles

Workers Compensation Act 1987, s9(A) - Whether employment a substantial contributing factor to injury - Whether error of law in process where trial judge preferred one expert over the other - Proper approach where Court faced with competing hypotheses as to cause of an injury - Capacity of a trial judge to draw inferences which depend at least in part on intuition - Adequacy of trial judge's reasons - Consideration of interplay between the requirement of "contributing factor" in s 4(b)(ii) and "substantial contributing factor" in s 9(A) of Workers Compensation Act 1987

PROCEDURE – defamation claim – litigant in person – refusal of application for appearance of McKenzie friend – refusal of application to vacate or adjourn proceedings – appellant abandoned hearing – whether apprehended bias – whether wrongful admission of witness statements – whether defences of truth and contextual truth made out – standard of proof – course of proceedings in Supreme Court

PROCEDURE - appellant’s motor accident proceedings deemed dismissed on 1 January 1998 by virtue of Pt 12 r 4C District Court Rules 1973 - application in August 2005 for extension of limitation period to apply to rescind deemed dismissal and if successful, to rescind deemed dismissal - HELD - whether to rescind deemed dismissal turns on what is fair and just as between parties - - principles applicable in applications to extend limitation periods must be applied cautiously in an application focusing on what is appropriate to do justice between the parties - prejudice to both parties relevant - no actual prejudice to respondent - MENTAL HEALTH - uncontradicted expert evidence before the primary judge that since at least September 1994 appellant incapable of managing her own affairs because afflicted by a form of schizophrenia - respondent concedes no personal responsibility for delay could be attributed to appellant - matter handled by inexperienced solicitors - primary judge concluded appellant had not demonstrated her mental disability explained delay HELD - primary judge’s exercise of discretion miscarried because she gave no, or insufficient, weight to appellant’s mental disability - appellant’s ability to pursue her proceedings with the diligence the law attributes to the reasonable person must have been gravely compromised by her mental disability - PROCEDURE - Pt 12 r 4C omitted from District Court Rules as part of civil procedure reforms effected in August 2005 - motion to extend time to apply to rescind deemed dismissal filed before omission but heard after - consideration of jurisdiction to grant relief HELD - substantive right in existence at time Pt 12 r 4C(4) omitted to have deemed dismissal order reconsidered and determined by the District Court protected by s 30 of the Interpretation Act 1987 - consideration of transitional provisions in Schedule 6 to Civil Procedure Act 2005 - COSTS - costs of application before primary judge - whether to be borne by appellant HELD - costs should follow the event - respondent’s opposition to application to rescind deemed dismissal “wholly unreasonable”. (D)

DISTRICT COURT – Judicial Registrar – powers – appellate review - FEDERAL JURISDICTION – Court of State – exercise by officer of Court – exercise not subject to appellate review - FEDERAL JURISDICTION – concurrent State jurisdiction – no intention to cover field - CORPORATIONS ACT – Federal jurisdiction – no intention to cover field

ENVIRONMENT AND PLANNING – local environment plan – provision for acquisition of land by Council – notice requirement – notice given but land not acquired – construction of provision – principles

COSTS – appeal successful in part – primary hearing in Land and Environment Court – Class 1 appeal – where preliminary issues of law determined prior to merits hearing – appropriate orders – principles

DEFAMATION – successive actions – same publications - DEFAMATION – 1974 Act – s 9(3) – leave to bring second action – principles – leave refused - RES JUDICATA – successive actions – same publications – cause of action estoppel

COSTS – application by respondent for indemnity costs – whether some good cause to depart from ordinary rule of costs following the event – offer of compromise made by respondent prior to trial but not later renewed – appellant abandoned certain arguments on appeal

ADMINISTRATIVE LAW – application for prerogative relief in relation to the decision of the State Parole Authority revoking the plaintiff’s order for parole – alternative form of relief sought in the form of a direction pursuant to s.176 Crimes (Administration of Sentences) Act 1999 that information upon which the Authority made its decision was false and/or misleading – question before the Authority was whether or not to rescind the revocation of the plaintiff’s parole order – no legal error discerned in the Authority’s decision not to rescind the revocation of the plaintiff’s parole order.

PROCEDURE – miscellaneous procedural matters – malicious prosecution proceedings – plaintiff unrepresented – withdrawal of consent to trial without jury – plaintiff not tricked into giving his consent – no extraordinary circumstance warranting revocation of the consent order – motion for dismissal of proceedings for want of prosecution – proceedings not dismissed – self-executing orders made with consequence that non-compliance will render proceedings dismissed.