Cases and authorities

REAL PROPERTY - summary judgment - no interest in property

Preliminary discovery - threshold requirements - discretion - discretionary considerations - appeal from interlocutory decision - leave.

PROCEDURE – Costs – security for costs – whether plaintiff is suing for the benefit of others pursuant to UCPR 42.21(1)(e) - where proceeds of litigation are subject to personal insolvency agreement plaintiff entered with creditors – where plaintiff is otherwise impecunious - relevance of defendants’ delay in bringing application – PROCEDURE – whether appropriate to vary order fixing trustees’ remuneration to accord with subsequent costs assessment – whether appropriate to order payment of trustees’ remuneration out of trust fund - TRUSTS AND TRUSTEES – trustees’ remuneration - principle upon which trustee is entitled to indemnity for expenses from trust fund

Criminal Law - Sentencing - Crown Appeal - relevance of prior convictions for offences committed after offences for which sentence is passed - whether discount for plea of guilty should reflect remorse - the application of the totality principle where multiple sexual assault offences committed against different complainants of increasing seriousness - whether sentences manifestly inadequate.

DAMAGES – damages arising from indecent assault of a minor – civil proceedings conducted prior to criminal proceedings – where defendant in both proceedings sought stay in civil proceedings until completion of hearing of criminal proceedings – stay refused – whether refusal of stay amounted to a denial of procedural fairness – DAMAGES – aggravated damages – exemplary damages – future economic loss – general damages – assessment – principles – whether excessive – CIVIL PROCEDURE – stay application – principles – guidelines enunciated in McMahon v Gould (1982) 7 ACLR 202 – whether miscarriage of discretion

Corporations Act. Application to set aside statutory demand under s459J(1)(b) due to pending appeal giving rise to an off-setting claim. Demand set aside.

penalty - offences under Customs Act 1901 - one offence of moving or interfering with, without authorisation, goods subject to the control of Customs - thirteen offences of evasion of duty payable - parity not relevant - general and specific deterrence - expense of defence of prosecution - delay - delay not taken into account - totality - reparation - costs

PROCEDURE – EVIDENCE – Evidence in one proceeding tendered in second proceeding – whether leave to use evidence to be given by Court hearing second proceeding or by Court in which evidence first taken.

PROCEDURE – appropriate final orders where each party has proposed short minutes – no question of principle – PROCEDURE – Costs – where plaintiffs only partially successful – where plaintiffs had obtained interlocutory relief notwithstanding defendants’ undertaking to maintain status quo – where plaintiffs had rejected offers of compromise including a Calderbank offer

defamation - television programme - nine imputations - defendant objections to imputations - separate trial pursuant to UCPR 28.2 - "rolled-up" or "composite" imputations - "rhetorical" imputations - difference of substance

CRIMINAL LAW - Appeal against conviction - act of indecency - sexual intercourse - child under ten years - miscarriage of justice - warnings to jury relating to evidence-in-chief given by recording - warnings to jury relating cross-examination by CCTV - whether error in allowing recordings and transcript to be taken to jury room - disproportionate weight - no adverse inference - whether proper procedure followed for allowing recordings and transcripts to be taken to jury room - improper cross-examination - evidence of children - warnings on unreliability - whether a warning appropriate - whether contemplated under s 165 of the Evidence Act

Criminal Law: Sexual intercourse without consent - prisoners being denied access to medical treatment. - Whether too much weight was given to the sentencing judges previous experience

Criminal Law - Appeal against sentence - importing prohibited imports- whether hardship to third persons relevant to the sentencing of an offender - “exceptional” hardship

CRIMINAL LAW - appeals against conviction at two trials - offences of indecent assault and buggery committed against three minors between 1978 and 1984 - complainant covertly recorded conversation in 1999 with Appellant containing admissions - no warrant under Listening Devices Act 1984 authorising recording - whether recording was "reasonably necessary for the protection of the lawful interests" of complainant who recorded conversation - construction of s.5(3)(b)(i) Listening Devices Act 1984 - trial judge erred in holding that requirements of s.5(3)(b)(i) were satisfied - recording admissible under s.138 Evidence Act 1995 - whether trial judge erred by declining to use the "dangerous to convict" formula as part of the direction under Longman v The Queen (1990) 168 CLR 79 - no error established

PRACTICE AND PROCEDURE - costs - application for Sanderson order - judgment against one defendant set aside on appeal - whether conduct of unsuccessful defendant warrants the granting of a Sanderson order. ND

Attendant care services - s 15(3) CLA

CIVIL LAW - COSTS - liability determined - contributory negligence determined - damages to be assessed in future - split proceedings - costs and disbursements of the preparation of damages aspect of litigation are costs which follow the event - cross-claim dismissed - indemnity costs of cross-defendant - Offer of Compromise not a genuine offer of compromise - costs not awarded on an indemnity basis.

CIVIL LAW - COSTS - Interest on defamation damages award - indemnity costs - unreasonable to reject Offer of Compromise.

Practice and Procedure - Interest on costs - Arbitral proceedings - Power of Supreme Court to order interest on costs

LANDLORD AND TENANT – termination of the tenancy – relief against forfeiture – terms on which granted – whether, in addition to payment of arrears of rental, and payment of legal expenses and costs of re-entry, costs of posting security guard outside premises ought be a condition of relief against forfeiture – whether payment of costs of proceedings ought be a precondition of relief against forfeiture – EQUITY – equitable remedies – principles by reference to which granted – relief against forfeiture – appropriate preconditions for grant of relief against forfeiture

CIVIL LAW - Strata Schemes Management Act - Jurisdiction of Consumer Trader & Tenancy Tribunal - planning and development - Council grant of development approval void ab initio for want of owners’ consent - exclusive use by-law from owners’ corporation to be gained before lodging development application with Consent Authority (Council) - construction of Environmental Protection and Assessment Act 2001 - retrospective consent for work already completed - orders of Consumer, Trader and Tenancy Tribunal quashed.

PRACTICE – application for stay of Registrar’s order for discovery pending appeal against Registrar’s order – summary determination of the appeal

PROCEDURE – variation of orders – variation pursuant to UCPR r36.16 – LOCAL GOVERNMENT – town planning – potential redevelopment of properties – impact of proposed Local Environment Plan – powers of receivers under prior orders of the Court of Appeal

CONTRACTS – appellant sub-contracted insulation work to respondent – breach of sub-contract by respondent – head contract terminated as a result – whether respondent liable for appellant’s loss of profits on head contract - REMOTENESS – second limb of Hadley v Baxendale – whether loss within reasonable contemplation of parties – whether respondent knew of special circumstances such that it would be within reasonable contemplation that breach of contract would cause loss – head contract as special circumstance - REMOTENESS – second limb of Hadley v Baxendale – whether event giving rise to loss (a fire due to faulty workmanship) was not unlikely to occur REMOTENESS – knowledge of special circumstances – whether appellant responsible for supervising works – contract price out of all proportion with risk of being liable for enhanced damages

PRACTICE AND PROCEDURE – respondents were parties to similar proceedings brought against appellant in the Family Court and the Supreme Court – Family Court proceedings resolved in favour of respondents – whether continuation of Supreme Court proceedings constituted an abuse of process by respondents - PRACTICE AND PROCEDURE – discontinued proceedings – appellant rejected offers made by respondents to discontinue proceedings – whether refusal of offers unreasonable – whether offers had effect of discontinuance – whether trial judge erred in awarding costs to respondents - COSTS – order by trial judge that appellant pay respondents’ costs – whether trial judge erred in failing to have regard to respondents’ ability to discontinue proceedings – application of Rule 42.19 of Uniform Civil Procedure Rules which provides discontinuing party is to pay costs unless some other order made by court

CORPORATIONS – Winding-up – Liquidators – Examinations by liquidator – Special purpose liquidator appointed to investigate renounceable rights issue by company now in liquidation – Application by special purpose liquidator for orders permitting public examination of such persons as special purpose liquidator considers appropriate – Whether special purpose liquidator justified in applying for issue of examination summonses – Where substantial sums have already been paid to special purpose liquidator by way of remuneration and reimbursement – Where issue of examination summonses likely to result in further substantial expense – Where special purpose liquidator able to rely on information emanating from other proceedings in conduct of investigation – Where evidence in support of application scant – Application refused.

PRACTICE AND PROCEDURE - discovery - claim of client legal privilege - report prepared by legally qualified police officer concerning a police internal investigation - whether report created for dominant purpose of giving legal advice - whether separate category of documents concerning police internal investigation are discoverable

WILLS PROBATE AND ADMINISTRATION - executors commission - review of decision of Deputy Registrar for lump sum commission - and disallowing commission on transferred assets as one of two executors a transferee of those assets - whether commission should be by way of percentage or lump sum - whether commission should be ordered on transferred assets - whether commission could be apportioned to particular executors

Family Provision. Application by second wife. Provision for maintenance granted. Provision of fee simple in residence refused.

CORPORATIONS - Winding up - General - Application for appointment of provisional liquidator of a company and receiver and manager of the assets of a number of trusts - Appointment of provisional liquidator not opposed - Evidence that moneys raised from investors had found their way into the trusts - Evidence that an individual defendant had caused some corporate defendants to breach asset protection orders - Whether receiver and manager should be appointed

REAL PROPERTY – restrictive covenants – when injunction to enforce is appropriate – WORDS AND PHRASES – “vehicle with a weight greater than 3 tonnes”

Negligence - motor vehicle accident - damages - costs.

CRIMINAL LAW – Practice and Procedure – Powers and duties of prosecution – Prosecutor’s duty does not extend to obtaining statements as distinct from calling witnesses. - CRIMINAL LAW – Practice and Procedure – Information, indictment or presentment – Whether bad for duplicity - Whether unfair to accused – Role of unfairness in law of duplicity. - CRIMINAL LAW – Practice and Procedure – Availability of miscarriage of just under s 5AA Criminal Appeal Act 1912 (NSW) - CRIMINAL LAW – Practice and Procedure – Validity of order

CRIMINAL LAW: Application for leave to appeal against sentence - cultivating commercial quantity of cannibas - whether sentence manifestly excessive.

INSURANCE – Contract of Insurance – Insuring Clause – Interpretation – Cover for “liability for personal injury” extends to claim under implied contractual warranty of quality and fitness contained in Sale of Goods Act 1923 - INSURANCE – Contract of Insurance – Exclusion Clause – Interpretation – Where clause excluded liability accepted under a contract – Claims under implied warranty of quality and fitness contained in Sale of Goods Act 1923 not excluded – Where clause excluded liability for liability accepted under a contract requiring the waiving or limitation of rights of recovery – Does not exclude liability on the basis of a contract with a third party in respect of which no liability has been accepted - WORDS & PHRASES - "for personal injury"

WORKERS COMPENSATION – work related injuries – visa change after injury disentitled appellant to work – compensation claim dismissed by arbitrator – whether presidential member of Workers Compensation Commission erred in confirming arbitrator’s dismissal – arbitrator erred in misconstruing Workers Compensation Act – determination of probable earnings but for injury in similar employment – visa status irrelevant for determining post-injury earning capacity

ENVIRONMENTAL PLANNING – definition of “development standards” – Environmental Planning and Assessment Act 1979 (NSW) s 4(1) – whether the zoning subscript, referred to as a consolidation requirement, in the local environment plan was a “development standard”. - STATUTORY CONSTRUCTION – “development standards” – application of definition to planning instruments via a planning policy.

DUTY OF CARE – occupier’s liability – statutory authority as occupier – control over land an important factor in determining duty – liability dependent on content of duty in particular case – duty not extinguished or restricted by obviousness of risk - BREACH OF DUTY – duty to avoid injury to inexperienced riders – whether breach of duty by failing to fence off an area of the BMX track particularly likely to cause injury - OBVIOUS RISK – relevant to breach of duty of care – not determinative of breach – whether obvious risks of BMX riding undertaken by inexperienced riders – whether occupier entitled to expect reasonable care of young entrants - CAUSATION – common sense reasoning – inferential reasoning sufficient in absence of precise evidence - CONTRIBUTORY NEGLIGENCE – comparison of culpability required - JUDGMENT – adequacy of reasons – whether basic requirements of a statement of reasons were met by the trial judge - JUDGMENT – acceptance and weight of evidence, and findings of credit, are matters for the trial judge unless error established – preference of trial judge for particular witness – whether any error established - DAMAGES – whether award outside discretionary range – whether Griffiths v Kerkemeyer damages can be awarded for care of plaintiff’s child – whether award for costs of fund management to be reduced by contributory negligence

NEGLIGENCE – employer of independent contractors – no duty of constant supervision - NEGLIGENCE – employer of independent contractors – no duty to ensure independent contractor has adequate and proper equipment - VICARIOUS LIABILITY – employer not liable for unauthorised acts of independent contractor

ADMINISTRATIVE LAW – procedural unfairness – statutory body – lack of reasonable opportunity to make submissions – failure to identify criteria for decision- making – what is the operative decision – whether procedural unfairness of earlier decision infected later decision. - ADMINISTRATIVE LAW – procedural unfairness – apprehended bias – application of general law principle to statutory administrative decision-maker – Greyhound Racing Act 2002 (NSW), Schedule 1, cl 10 and 11. - DECLARATORY RELIEF – declarations of procedural unfairness – decisions not set aside – affected parties not joined – undertakings accepted in absence of affected parties.

ARBITRATION - appeal from determination of Board of Arbitrators - whether other questions of law can be pursued on appeal if a separate error of law satisfies the criteria for granting leave to appeal under s 38(5) of the Commercial Arbitration Act 1984 (NSW) - delay in delivering arbitration award - whether delay in delivering award amounted to a denial of procedural fairness and an error of law under s 38(5)(b) - whether arbitration award contained manifest errors on its face - whether determination of questions raised by errors could add substantially to the certainty of commercial law as required by s 38(5)(b)(ii). ND

PROCEDURE - costs - whether successful defendant should be deprived of costs - whether unsuccessful plaintiff should be ordered to pay costs on indemnity basis after rejecting settlement offer

TRUSTS – capacity to be a trustee – whether minor can be subject to a resulting or constructive trust – INFANTS AND CHILDREN – property – whether minor can be subject to a resulting or constructive trust – PROCEDURE – whether rule forbidding taking any step in proceedings against person under legal incapacity following service of originating process until tutor has been appointed applies to making of Mareva order against a minor at time of institution of proceedings against that minor

COSTS – costs of separate issues – where plaintiffs abandon primary claims at commencement of trial but succeed on alternative claim – where defendant amends late to raise limitation defence to which plaintiffs attribute decision to abandon primary claims – where primary claims always had poor prospects – setting off of costs entitlements not necessarily appropriate where one party represented and other not – interest on costs.

Criminal law - Crown appeal - Sentence not manifestly inadequate.

CRIMINAL LAW: - Appeal by Crown under s5F, Criminal Appeal Act - admissibility of evidence - admissions to police officer - whether s281 of the Criminal Procedure Act complied with - admissions to insurance investigator - investigator acting on behalf of police as well as insurer - whether unfair to admit that evidence.

CRIMINAL LAW - s 5F APPEAL - form of the indictment - duplicity - insufficient to make out element of the offence - abuse of process - relevance of history of proceedings

Sentence Appeal - Break, Enter and Steal offences - sentences imposed on the basis that offences committed while the Applicant was suffering from a mental illness - whether Court should allow fresh evidence - no miscarriage of justice justifying reception of fresh evidence