Cases and authorities

Review or Appeal - legal professional privilege - waiver - r. 31.2 (evidence to be given by affidavit) - filing and service of affidavit - compulsion of law.

Dispute as to nature of retainer - conflicting evidence - no error in point of law.

ADMINISTRATIVE LAW - Judicial review of Registrar's decision to refuse application to appeal from decision of Approved Medical Specialist - meaning of "demonstrable error" in section 327(3) of Workplace Injury Management and Workers Compensation Act 1998.

defamation - defendants' objections to statement of claim - pleading - failure to plead substance of matter complained of - four publications - no reference to second, third or fourth plaintiffs - publication to first plaintiff - notice of motion - order to strike out statement of claim - order to dismiss proceedings - relief sought inappropriate - capacity of publications to convey imputations pleaded - circumstances in which a court may strike out pleadings - frivolous and vexatious proceedings

APPEAL - COSTS - Calderbank offer by defendant respondent - Whether appellant's refusal unreasonable - Whether indemnity costs should be ordered.

Retirement Village - Kitchen expenses - not reasonable or necessary

Common Law - civil - evidence - section 69 - business records - representation about state of mind of another party - personal knowledge - whether document prepared or obtained in contemplation of proceedings

CORPORATIONS – Injunctions – Plaintiff alleges contraventions by defendant of ss 180(1), 181(1) and 182(1) Corporations Act 2001 (Cth) – Plaintiff seeks orders pursuant to ss 206C and/or 206E Corporations Act disqualifying defendant from managing corporations – Where serious question to be tried that defendant breached Corporations Act – Where serious question to be tried that defendant liable to be disqualified from managing corporations – Whether Court has power to grant interim injunction pursuant to s 1324 Corporations Act restraining defendant from managing corporations until final determination of proceedings – Where no serious question to be tried that plaintiff could obtain injunction on final basis – Held that Court has no power to grant interim injunction in circumstances of case – Balance of convenience considered in any event – Delay by plaintiff, absence of threat by defendant to public interest and absence of undertaking as to damages from plaintiff – Interim injunctive relief refused.

CORPORATIONS - unregistered managed investment scheme - application for distribution of surplus assets in winding up - whether distribution may depart from investors' proprietary rights - form of directions to receiver - whether court should make findings of fact

Proceedings 20324 of 2005 - defamation - defendant’s objections to imputations - newspaper publication - internet publication - capacity of words in their natural and ordinary meaning to convey imputations - true innuendo - imputations defective in form - capacity of imputations to defame - application for order to strike out statement of claim - imputation (a) - (i) capacity - accusation of unlawful conduct in competition between rival media organisations - (ii) objections as to form - ambiguity - upheld - context does not clarify ambiguity - split infinitive - imputation (b) – (i) capacity - (ii) form - use of “and/or” - precision of pleading imputations depends upon clarity with which matter expressed - imputation (c) – capacity - imputation (d) – tone of matter complained of - Proceedings 20328 of 2005 - defamation - newspaper item - defendants' objection - capacity and form of imputations - inference available to ordinary reasonable reader - imputation of criminal conduct

Jurisdiction of the Tribunal - issue estoppel - requirements of s.64

Appeal and Cross-appeal - legal error and inconsistency - departure from issues ventilated by the parties - failure to make findings.

Unsuccessful application for adjournment of trial after legal representatives of accused granted leave to withdraw during trial - inference Judge drew, that the applicant was at fault for their departure, clearly open to Judge on material before him - applicant proposes to withdraw legal professional privilege and applies in s 5F appeal to call fresh evidence from counsel to negate that inference - procedure not appropriate in circumstances of this s 5F appeal - trial judge in far better position to consider the fresh evidence in the context of the trial as a whole - leave to appeal refused.

PRACTICE & PROCEDURE – criminal proceedings against a child – Children (Criminal Proceedings) Act 1987 (NSW) s 31 and Criminal Procedure Act 1986 (NSW) s 8 – whether the Director of Public Prosecution can bring proceedings in the District Court against a child by an ex offico indictment for an offence which is not a "serious children’s indictable offence" - JURISDICTION – whether an appeal against a finding that an indictment was invalid should be made under s 5C or s 5F of the Criminal Appeal Act 1912 (NSW)

NEGLIGENCE - injury on road where pavement surface was delaminated - appeal by Council against order that it indemnify the respondent under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) - whether Council breached its duty of care. ND

NEGLIGENCE - respondent was a joint owner of a home - respondent's signature forged on a registered mortgage - liability of witness who attested the forged signature - witness was a justice of the peace - whether witness owed a duty of care to the respondent - Hill v Van Erp (1997) 188 CLR 159 applied - whether duty of care was breached - causation under s 5D of the Civil Liability Act 2002 (NSW) - whether witness immune from action under s 135 of the Justices Act 1902 (NSW) - whether attesting the forged signature was an act done "maliciously and without reasonable and probable cause" within the meaning of s 135 - apportionment of liability. D

PROCEDURE – costs – Calderbank letter – whether appropriate to offer to settle both the claim made, and costs, on a particular basis – circumstances when failure to accept a Calderbank offer justifies indemnity costs – plaintiffs slow in articulating basis on which they eventually succeed, and raising numerous issues on which they lose – appropriate approach to costs order

PERSONAL PROPERTY - ownership and possession - ownership of medical records relating to patient treatment - ownership of pathology reports obtained by a medical practitioner for patients - rights to possession of pathology reports obtained for patients - MEDICINE - medical practitioners - ownership of records relating to patient treatment - ownership of pathology reports obtained for patients - rights to possession of pathology reports obtained for patients - role of medical practitioner in ordering pathology report - CONTRACTS - PARTICULAR PARTIES - Principal and Agent - role of medical practitioner in ordering pathology report for patient - MEDICINE - medical practitioners - manner of operation of bulk billing system in Medicare - CONTRACTS - GENERAL CONTRACTUAL PRINCIPALS - implication of terms - tests for implication in an informal contract - implication of obligations of confidentiality on medical practitioner working in another’s practice - MEDICINE - medical practitioners - obligations of confidentiality of persons working in a medical practice - EQUITY - obligations of confidence arising in equity’s exclusive jurisdiction - obligations of confidentiality of medical practitioner working in another’s practice - EQUITY - assignments in equity - whether as a matter of construction a contractual obligation of confidentiality has been agreed to be assigned - whether a contractual obligation of confidentiality is inherently assignable - rights of an equitable assignee of a contractual obligation - for what damages an assignee of the benefit of a contractual obligation can sue - PRECEDENT - whether a decision of the Court of Appeal, which has been affirmed in the High Court, for reasons different to those adopted by the Court of Appeal, is binding as a matter of law on first instance judges - EQUITY - equitable remedies - account of profits - principles for computation - allowance for expenditure of time effort and skill

Common Law - defamation - urgent injunction - current affairs television program - undertaking by Counsel - whether defendant explained program - whether reasonable and understandable to bring proceedings - costs - whether costs must favour party who successfully resists orders

CORPORATIONS - winding up in insolvency - whether defendant could raise at the hearing matters that could have been raised in the application to set aside a statutory demand - admissibility of evidence on such matters - proof of solvency, where company is not trading - significance of related creditors' debts being due and payable where related creditors oppose the winding up - court's discretion to decline to order winding up of insolvent company

Appeal decision of Local Court Magistrate - Small Claims Division

CRIMINAL LAW – application for leave to appeal against sentence – murder – life sentence –principles relevant to imposing natural life sentences – whether the offence was in the worst class of case – premeditation – whether mutilation of deceased’s body following murder was relevant to objective seriousness of offence – degree of violence – degree of danger to the community – risk of re-offending – no real prospects of rehabilitation – personality disorder – psychiatric evidence of personality – mental stability – likely future personality – no discount given for guilty plea –- no prior convictions – whether sentence manifestly excessive – protection of the community

CRIMINAL LAW – murder – appeal against conviction – directions on provocation – provocation not addressed by counsel – provocation raised on Crown case – onus of proof – whether directions on provocation reversed the onus of proof – fair reading of the directions as a whole

SENTENCING – 61 charges of fraudulently obtaining social security benefits by providing 22 false identities over 4 years – whether sentence reflected “overall criminality” involved in the offences – whether sentence excessive – manner in which factors identified in s 16A(2) of the Crimes Act 1914 (Cth) should be applied – whether sentencing judge failed to give appropriate weight to the provision of assistance by the applicant to federal authorities – whether judge failed to give sufficient reasons for sentence

CRIMINAL LAW – appeal against conviction – armed robbery – circumstantial case – evidence of flight – consciousness of guilt – whether error in admitting this evidence – whether error in characterising evidence as flight – other explanations of flight – whether other explanations prejudicial – whether evidence ought to have been led in a modified form – whether jury properly directed as to use of evidence of flight – whether verdict unreasonable – direction in relation to circumstantial evidence – nature of circumstantial evidence available

CRIMINAL LAW – PETITION UNDER S 474B OF THE CRIMES ACT – indecent assault – fresh evidence – whether a miscarriage of justice in light of fresh evidence– whether verdict unreasonable in light of fresh evidence – credit of witness – credit of complainant – directions on use of the complaint – inconsistencies in evidence –whether jury misdirected as to right to silence – direction appropriate in law at time of trial – direction subsequently ruled inappropriate – whether court could consider this ground – application of principles in Mallard

criminal law - plea of guilty - murder by shooting - break, enter and steal - stolen guns - Form 1 offence - subjective circumstances - personality disorder with paranoid features - psychiatric disturbance - intention to kill - aggravating features - victim in own home - objective gravity of offence - relevant factors in assessment of objective gravity - late plea of guilty - adequate explanation - standard non-parole period - effect of mental disability for sentencing purposes - diminution of culpability - assessment of future risk posed by applicant - allowance made for Form 1 offence - errors in appraisal of Form 1 offence - separate sentence imposed - sentence manifestly excessive - offence at mid-range of objective gravity - reason to depart from standard non-parole period - plea of guilty sufficient reason - mental illness causally related to commission of offence - specified deterrence - general deterrence - community protection - discount for plea of guilty

Sentence appeal - plea of guilty - significance of standard non-parole period - significance of time spent on remand

Appeal decision of Local Court Magistrate - vicarious liability, employee driving while intoxicated

Judicial review of appeal panel determination - construction of WorkCover guides - Clause 4.30 and Table 4.4

CONVEYANCING - defaulting purchaser - whether plaintiff vendors validly terminated contract and are entitled to forfeit deposit - PROCEDURE - non-attendance by defendants - whether trial should proceed

CAVEAT – EXTENSION – whether a prima facie case for interest claimed in caveat demonstrated.

CORPORATIONS - winding up - who should be appointed liquidator - associated company already in liquidation - whether same liquidator should be appointed

WORKERS COMPENSATION - Psychological injury –whether any psychological injury suffered by respondent wholly or predominantly caused by disciplinary action taken by appellant – nature of reasons giving rise to error in point of law.

ENVIRONMENTAL LAW - TOWN PLANNING - EASEMENTS - Development Consent - Condition requiring extension of existing easement - Interpretation of condition - Whether condition uncertain - Whether condition unreasonable

LOCAL GOVERNMENT – building control – development consent – impact of development – consent refused by Council but allowed by Land and Environment Court – powers of Land and Environment Court – construction of orders – whether consent final – whether proper account was taken of impact of development

CORPORATIONS - statutory derivative action - claim by one shareholder and two officers to bring claim on company's behalf not opposed by other shareholders and officers - whether s.237 criteria satisfied - INJUNCTIONS - interlocutory injunctions - where chargor seeks to restrain chargee from appointing receiver - chargor maintains no moneys secured - whether serious question to be tried - no action by chargor to pay into court moneys said by chargee to be secured - balance of convenience favours chargee

BANKING AND FINANCIAL INSTITUTIONS - various claims by customer against bank - alleged representations by bank - alleged delays caused by bank - contract claims not pressed - claims in estoppel, unconscionability and negligence - no basis for liability of bank shown

Costs

professional negligence - claim for damages - personal injury - claims in tort and in contract - surgical termination of pregnancy - extensive pelvic damage - incorrect assessment of duration of pregnancy - failure properly to examine patient - undue reliance on plaintiff's information - failure to discharge duty of care - causation - relationship of third defendant (medical facility) to first defendant (medical practitioner) - vicarious liability established - no contributory negligence on part of plaintiff - damages - psychiatric and psychological sequelae of surgery - major depressive disorder - video surveillance evidence - interpretation of video surveillance evidence - non-economic loss - past out of pocket expenses - future out of pocket expenses - past voluntary care - future commercially sourced care - loss of earning to date - loss of past superannuation contributions - future economic loss - loss of future employers' superannuation contributions

MORTGAGES – Mortgages and charges generally – Rights and liabilities of mortgagor and mortgagee – Defendant advanced sum of $45,000 to plaintiffs – Advance secured by registered second mortgage over real property owned by plaintiffs – Plaintiffs defaulted in making payments of interest and did not repay principal – Defendant took possession of property and attempted to exercise power of sale – Whether serious question to be tried that defendant not entitled to take possession of property – Whether serious question to be tried that defendant not entitled to exercise power of sale - CONTRACTS – General contractual principles – Harsh and unconscionable contracts and statutory remedies – Mortgage contract between plaintiffs and defendant included arguably oppressive terms – Interest payable at rate of 126 per cent per annum compounding at monthly rests – Whether serious question to be tried that plaintiffs entitled to relief pursuant to s 7 Contracts Review Act 1980 (NSW) - EQUITY – Unconscionable conduct – Whether serious question to be tried that plaintiffs in position of special vulnerability of which defendant took unconscientious advantage - EQUITY – Equitable remedies – Injunctions – Interlocutory injunctions – Whether plaintiffs required to pay into Court whole sum demanded by defendant as condition of interlocutory injunctive relief – Balance of convenience – Interlocutory injunctive relief granted.

Appeal from Local Court - jurisdiction of Local Court - nature of appeal - claim for delivery up of certificate of title - whether title to land was in question.

Conviction appeal - delay - Longman direction - whether adequate - appeal dismissed (by majority)

CRIMINAL LAW: - appeal against conviction - armed robbery - whether items of clothing similar to those worn by robber found at accused's home admissible - whether permissible for prosecutor to show witnesses items of clothing and ask them to comment upon them - whether permissible for Crown prosecutor to have accused put on item of clothing and repeat words of robber - rejection of alibi evidence because of absence of notice - failure of trial judge to give any or adequate reasons for rulings during trial - application of proviso

CRIMINAL LAW: - application for leave to appeal against sentence - charges of fraudulent misappropriation - fraudulently omit to account by solicitor - whether sufficient weight given to loss of professional standing