Cases and authorities

DEFAMATION - application for leave to appeal from refusal of application for summary dismissal - question whether claimant responsible for internet publication on school computers where principal failed to respond to plaintiff’s request to have matters complained of removed from website, or to bar students from accessing computers - matter of practice and procedure - primary application proceeded on assumed facts - actual facts to be determined by jury at s 7A Defamation Act hearing - leave refused (ND)

Proceeding for damages for deceit

Appeal - Local Court - intention to enter into a contract

Practice and Procedure - Interrogatories - Separate question orders

[CONTRACT] - whether certain resolutions were "in relation to matters listed in clause 13.2" of the Joint Venture Agreement - whether contract purportedly made pursuant to those resolutions valid and/or binding. - [FRAUD ON THE POWER] - whether doctrine applicable - whether principles in Gambotto v WCP Limited applicable. - [FIDUCIARY DUTY] - ambit of fiduciary duties of joint venturers - numerous agreements - lack of precision in authorisation of one joint venturer to sell the Land, the subject of proposed development - whether breach of fiduciary duty - whether accessorial liability for breach of fiduciary duty. - [CONTRACT] - whether breaches of contract - selling Land at an undervalue - whether breaches induced by other parties.

CORPORATIONS – Winding up – Examinations by liquidator – Application to set aside summonses for examination – Applicants’ company loaned moneys to company now in liquidation – Moneys secured by mortgage – Applicants gave notice under mortgage and commenced proceedings in Equity Division of Court against company now in liquidation – Directors of company now in liquidation brought cross-claim against applicants and applicants’ company – Liquidators appointed to company now in liquidation – Liquidators issued summonses to applicants pursuant to s 596B Corporations Act 2001 (Cth) – Whether summonses should be set aside because applicants unable to give information about “examinable affairs” of company now in liquidation – Words “examinable affairs” as used in ss 9 and 53 Corporations Act considered – Whether summonses should be set aside because they were issued with the improper purpose of conducting a dress-rehearsal of cross examination likely to occur in Equity Division proceedings – Whether summonses should be set aside because liquidators failed to disclose all material matters in affidavit in support of application – Held that affidavit in support of application failed to disclose pendency of Equity Division proceedings – Pendency of Equity Division proceedings a material matter – Application granted.

REAL PROPERTY - Torrens system - caveat against dealing - lapsing notice served - application by caveator for order extending operation of caveat - no service on registered proprietor - attempted service at address given by registered proprietor in application for issue of lapsing notice - whether order under s.74K(3) dispensing with service on registered proprietor should be made

Set aside default judgment

CRIMINAL LAW: - Application for leave to appeal against sentence - robbery in company - whether adequate weight given to applicant's mental illness.

CRIMINAL LAW – CRIMINAL APPEALS – SENTENCING APPEAL - aggravated indecent assualt - using statutory non-parole period as more than a guideline - using statutory non-parole period as starting point for calculation of sentences - misuse of standard non-parole period - objective seriousness - inappropriate reduction of discount for earliest plea of guilty based on other than utilitarian value of plea

CRIMINAL LAW – sentencing – offence of infliction of grievous bodily harm – whether sentencing process miscarried due to incompetent representation by counsel - PRACTICE AND PROCEDURE – offender represented by counsel instructed by Aboriginal Legal Service – trial judge noted inadequacy of evidence – evidence adduced to minimise objective criminality was in hearsay form – evidence in hearsay form of little evidentiary value – whether incompetency of counsel or tactical decision – whether miscarriage of justice - SENTENCING – subjective circumstances of offender – Aboriginal offender – significantly disadvantaged background – evidence of background and of problems with alcohol in hearsay form – whether miscarriage of justice

Contempt of court - admissibility of evidence - whether its tender constituted an abuse of process

PRACTICE - costs - significance of uncommendable behaviour by a defendant - PRACTICE - costs - the effect of an entitlement to nominal damages on costs - PRACTICE - costs - other matters not involving considerations of principle

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS –adjustment of property interests –approach to property adjustment – evaluation of contributions – date for ascertaining pool of divisible property – where extensive and unclear dealings by both parties with property retained by each since separation – where impracticable and potentially unjust to adjust pool of present property for property use or withdrawn from pool by parties since separation – adoption of pool of property at date of separation valued at date of hearing – post-separation contributions – whether there can be contributions as homemaker to welfare of family after separation – held, there can, family does not need to remain intact – methodology - where evidence does not permit reliable tracing of contributions through assets or identification of discrepant contributions to different assets – whether asset-by-asset approach should be adopted – held, it ought not – significance of expenditure in assessment of contributions – held, assessment of contributions is concerned with who contributed what to relationship (1) by property introduced at outset, (2) by income and accretions of property and domestic contributions during the relationship, and (3) by income and accretions of property and domestic contributions after separation, not with who paid for what.

Sentence - murder - two victims - motive to remove witness - life sentence

COSTS – bill of costs included work done by solicitors involved in decision to commence proceedings – objection that solicitors disqualified and costs should be disallowed – objection overruled

CORPORATIONS – Winding up – Proceedings by or against the company – Leave to proceed – Defendant wound up in earlier proceedings before Court – Plaintiff sought leave to commence proceedings against defendant in NSW Local Court – s 471B Corporations Act 2001 (Cth) – Whether plaintiff entitled to leave to proceed against defendant – Where evidence in support of application meagre – Application refused.

CORPORATIONS – Winding up – Winding up in insolvency – Statutory demand – Application to set aside statutory demand – Court ordered defendant be wound up on earlier application of plaintiff – Order made in absence of appearance by defendant – Defendant contended that debt claimed by plaintiff was not owed due to earlier cancellation of workers’ compensation policy which gave rise to alleged debt – Plaintiff decided to executively reverse debt on basis of which it served statutory demand on defendant – Whether Court should set aside winding up order pursuant to r 36.16(2)(b) Uniform Civil Procedure Rules 2005 (NSW) – Whether defendant solvent – Where any debts owed by defendant discharged by forgiveness or novation – Application to set aside statutory demand granted.

CRIMINAL LAW - parole - decision of State Parole Authority to refuse parole - whether decision made on basis of false, misleading or irrelevant information.

EVIDENCE – burden of proof, presumptions, and weight and sufficiency of evidence – presumption of capacity

CRIMINAL LAW - indictment alleging offences under ss.29D, 70 and 73 Crimes Act 1914 (Cth) - Crown seeks to adduce evidence of conversations obtained by warrant under Telecommunications (Interception) Act 1979 (Cth)- Accused contends that warrant is bad on its face - warrant to contain short particulars of offence - whether short particulars disclosed on warrant - meaning of "serious fraud" - held warrant good on its face and valid

COSTS – Departing from the general rule – Indemnity costs – Director of defendant filed interlocutory process seeking order that costs order made against him in earlier proceedings be overturned – Correct procedure to overturn costs order was application for leave to appeal to NSW Court of Appeal –Interlocutory process discontinued – Whether defendant should pay costs of interlocutory process on indemnity basis – Whether defendant relevantly delinquent – Application refused.

CORPORATIONS – Winding up – Recovering property or compensation for the benefit of creditors of insolvent company – Voidable transactions – Plaintiff, the liquidator of a company, sought to recover payments made by the company to the Commissioner of Taxation – Company made payments whilst insolvent – Whether payments to Commissioner had unfair preferential effect – Whether director of company liable to indemnify Commissioner pursuant to s 588FGA Corporations Act – Held that plaintiff entitled to recover payments made by company – Held that director of company liable to indemnify Commissioner.

REAL PROPERTY – Strata and related titles and occupancy – owners corporation’s duty to maintain common property – whether steel uprights enclosing balcony common property – whether waterproofing membrane common property - whether private cause of action available – whether duty strict – whether contributory negligence available as defence – whether proceedings ought to have been brought in Consumer Trading & Tenancy Tribunal – Remedies – Damages - measure of damages – damages for diminution of value - whether cost of repairing common property recoverable as damages – held, it is not - whether mandatory injunction more just remedy where diminution not necessarily permanent – held, it is, subject to reservation to plaintiff of entitlement to have damages in lieu if mandatory injunction is not performed – damages for loss of use of property.

PERSONAL PROPERTY – Livestock – Cattle – Agistment – possession of cattle on agistment – commixture of goods – where herd comprises cattle in bankrupt estate, and cattle previously sold by bankrupt’s stock mortgagee to third party, and impossible to ascertain which cattle are in which category

Criminal Practice & Procedure - application for leave to appeal against sentence after appeal against conviction allowed on some counts and new trial ordered - conviction confirmed on one count - old offence - judge adopted global approach to sentence - whether sentence on remaining count anomolous and excessive - jurisdiction of Court of Criminal Appeal - re-sentence - sentence reduced.

EVIDENCE - exclusion of admission if unfair to use it (Evidence Act s 90) - offender aware not obliged to speak to police - believed conversation with police could not be used against him if not recorded - unaware that conversation was being recorded - police not responsible for erroneous belief - even if police aware of erroneous belief, not unfair to use admissions - DIRECTIONS - that admissions were unreliable squarely raised by defence case - no need for warning that admissions may not have been reliable - SENTENCING - whether sentences manifestly excessive - or error in failing to find special circumstances - or in degree of cumulation of sentences - or flawed on parity grounds - on facts, no error in these respects.

PRACTICE and PROCEDURE - amendment - plaintiff sued State for assault, false imprisonment and other claims after being arrested charged tried and acquitted for armed robbery - plaintiff did not sue until some of police admitted fabrication in Police Integrity Commission about 11 years after arrest - claims were time-barred and he wishes to rely on Limitation Act s.55 (fraudulent concealment) - after complex events in litigation, District Court allowed amendment of Statement of Claim to restore some counts earlier abandoned - State sought leave to appeal on grounds which included that it is beyond argument that the plaintiff could not succeed, because of the time bar - the Court of Appeal was of opinion that plaintiff's proposed Reply to time bar relying on s.55 and or estoppel was not unarguable, required redrafting of the Statement of Claim but refused leave to appeal. Consideration of claims of prejudice and other grounds for opposing amendment. Consideration of Queensland v J L Holdings and amendment under Civil Procedure Act 2005

BUILDING CONTROL & TOWN PLANNING – consent and approval of councils – development application – where consent authority is the owner of the land – where the land is not a public road – subject land owned by council as investment asset – whether land remains “public land” - LAND AND ENVIRONMENT COURT – powers – Land and Environment Court Act 1979 s 39(2) – construction – whether powers of the Court under s 39(2) extend to an investment asset

CONTRACT - mistake. PRACTICE and PROCEDURE - set aside consent judgment - Appellant, defendant in District Court, applied to District Court to set aside judgment entered against him by consent under agreement with co-defendant (respondent) - claim to set aside based on mistake in course of negotiations with co-defendant - claims to effect that co-defendant was aware of mistake and/or deliberately set out to ensure that appellant did not become aware of mistake or misapprehension - alleged mistake based on accepting as fact a statement made by respondent when giving particulars which was no longer correct at the time of negotations some months later, on a subject which was not mentioned in the negotiations - challenge to District Court finding that there was no deliberate action to conceal the change of circumstances - consideration at length of challenges to findings - consideration of power to set aside judgment given "irregularly, illegally or against good faith" DCR Pt.31 r.12A (cf UCPR 36.15) held there was no error, appeal dismissed with costs.

NEGLIGENCE - respondent injured while moving heavy safes at work - contributory negligence - single injury cased by two events - WORKERS' COMPENSATION - s 151Z(2) of the Workers Compensation Act 1987 (NSW) not pleaded at trial. ND

NEGLIGENCE- Duty of care- Application to strike out claim- Whether police owe duty of care to individuals- Fatal police shooting- Damages claimed by relatives of deceased for psychiatric injury- Held there was no assumption of responsibility by police to plaintiffs/respondents- Claim struck out.

Motor accident - child aged 23 months - masked by metal chevron sign on pedestrian crossing - motorist moving at low speed - breach of duty - whether breach caused accident - dangers of hindsight reasoning.

Reinsurance Treaties - Proper construction and effect of service of suit and arbitration articles - Service of suit article providing that in the event of a dispute arising under the agreement, reinsurers at request of insurer will submit to jurisdiction of any competent court in the Commonwealth of Australia such dispute to be determined in accordance with the law and practice applicable in such court and reinsurers to abide final decision of such court or any competent appellate court - Arbitration article providing that disputes arising out of agreement or concerning its validity to be submitted to decision of a Court of Arbitration consisting of three members to meet in Australia and that decision of Court of Arbitration shall not be subject to appeal - HIH Casualty & General Insurance Ltd (in Liquidation) commences proceedings against Lloyd’s Syndicate in Supreme Court seeking to test the analysis of the House of Lords in Charter Reinsurance Co Ltd v Fagan [1997] AC 313 on question of whether payment by the insurer to its insureds is a condition precedent to its right to recover from the reinsurers the balances confirmed from time to time to be owing by reinsurers - Test case likely to affect recovery of amounts from other reinsurers on other reinsurance contracts - Evidence that potential denial of the access of creditors to reinsurance assets that form part of an insurance company's solvency requirements, once the company has entered formal insolvency, may well have serious regulatory implications - Reinsurers seek stay of proceedings under section 7 of International Arbitration Act 1974 (Cth) - Whether arbitration clause/agreement not binding upon HIH by reason of the provisions of section 19 of the Insurance Act 1902 (NSW) - Whether section 19 inconsistent with section 7 of International Arbitration Act and therefore inoperative by virtue of section 109 of the Constitution (Cth) - Whether the effect of section 7 (2) of International Arbitration Act is to provide a party with a right to a stay of proceedings whereas section 19 of Insurance Act purports to limit the availability of that right - Whether International Arbitration Act intended to cover the field for regulating recognition and enforcement of foreign arbitration agreements leaving no scope for operation of section 19 of Insurance Act - Meaning of the term 'Insurance' in section 19 - Whether as a matter of construction section 19 inapplicable to instant circumstances because article dealing with arbitration not 'a provision in a contract of insurance' or 'a provision with respect to the submission to arbitration of any matter arising out of the contract of insurance' - Whether arbitration clause not engaged because properly construed policy gives an option to HIH to litigate rather than to arbitrate - Whether arbitration clause not engaged because action is for payment of 'a confirmed balance' - Whether arbitration agreement not one to which International Arbitration Act applies as it is not ' an agreement in writing' - Consideration of procedures whereunder Lloyds syndicates contractually bind themselves in relation to inwards reinsurance including affixation of syndicate's stamp and 'scratching' on slips presented by broker as agent for ceding insurer - Procedures taken by Lloyds Policy Signing Office - Whether proceedings involve ‘claims for the payment of confirmed balances’ - Whether arbitration agreement an 'agreement in writing' within meaning of International Arbitration Act - Principles of construction of contractual documents - Estoppel - Whether Court should exercise its discretion to refuse a stay of proceedings - Courts begin with a strong disposition in favour of maintaining a bargain unless strong reasons adduced against grant of a stay

REAL PROPERTY – EASEMENT – COMMUNITY LAND – Whether right of carriageway over community land reasonably necessary for effective use of private property – whether Court should impose terms as to release of easement in future – whether compensation should be ordered – whether applicants should pay defendant’s costs of application.

Sentencing - plea of guilty to a charge of concurring with a false or misleading statement to obtain financial advantage - s.178BB Crimes Act 1900 (NSW) - offender held position of chief accountant with HIH - relevant sentencing factors pursuant to s.21A, Crimes (Sentencing Procedure) Act 1999 (NSW) - court must not sentence an offender to imprisonment unless satisfied, having regard to all possible alternatives, that no penalty other than imprisonment is appropriate - community service order an appropriate sentence in the circumstances

CRIMINAL LAW - application for life sentence redetermination - whether application should proceed by audio-visual link

MEDICAL PRACTITIONERS – appeal from orders of Medical Tribunal made on appeal from Professional Standards Committee – refusal to make orders by consent - JURISDICTION – whether a right of appeal exists pursuant to s 90 of the Medical Practice Act 1992 (NSW) from orders made by the Medical Tribunal on appeal from a Professional Standards Committee – whether relief should be sought by way of summons under s 69 of the Supreme Court Act 1970 (NSW) - ADMINISTRATIVE LAW – whether Tribunal prejudged the matter for decision resulting in a denial of procedural fairness – whether Tribunal took into account irrelevant considerations – whether Tribunal failed to take into account of relevant considerations – whether Tribunal failed to give adequate reasons

CONTRACT - Offer and acceptance - Equipment rental agreement - Whether defendant's offer accepted by plaintiff - Whether offer could be accepted by conduct - Whether communication of acceptance necessary - Whether contract made otherwise than by offer and acceptance.

CRIMINAL LAW - Appeal - Question of law - Self-defence - Whether evidence before magistrate sufficient to raise self-defence - Need for evidence capable of indicating, as a matter of legitimate reasoning, a reasonable possibility that the accused had the requisite belief and perception - In absence of evidence from the accused, need to consider what beliefs and perceptions could reasonably be had.

PROCEDURE - District Court Rules Pt 1 r 7A - order made setting aside preliminary dismissal order - preliminary dismissal order made because of breaches of District Court Practice Note 33 and procedural directions - application to set aside approximately 3 years after preliminary dismissal order made - primary judge accepted substantial part of that period explained by fact plaintiff's former solicitors failed to inform it of preliminary dismissal order - 2 month unexplained delay in application to set aside preliminary dismissal order after plaintiff became aware of it - no actual prejudice to defendants if order set aside - held - question whether preliminary dismissal order should be set aside turns on demands of justice between the parties - court has regard to whether a satisfactory explanation and excuse for the delay in making the application has been provided, with explanation for the original failure, and whether it has been cured, both being germane - factors such as the availability of a claim against former solicitors, expiration of the limitation period and blameworthiness of plaintiff and/or legal representatives relevant but not determinative (D)

LEASE – Land leased with partly completed development – reduced rent payable – whether lease subject to implied term that landlord should complete the building in accordance with the interim occupation certificate under the Environmental Planning and Assessment Act 1979 (NSW) within a reasonable time - DAMAGES – relocation to new premises – whether cost of relocation so far in excess of costs for completing building that it was not reasonable compensation – whether period for costs of additional rent should not extend beyond the date of termination of existing lease

GAMING – Interpretation of the Gaming Machines Act 2001 (NSW), savings/transitional clauses, Schedule 1, cl 2 and 10 – whether conditions imposed on authorisation of further gaming machines under s 88AF of the Registered Clubs Act 1976 (NSW) apply under the Gaming Machines Act