Cases and authorities

JURISDICTION – Court of Criminal Appeal – Charges against Appellants under Occupational Health and Safety Act 1983 (NSW) found proved in Industrial Court – whether appeal from Industrial court can be brought to Court of Criminal Appeal under Criminal Appeal Act 1912, s5(1) – whether the Appellants can make an application for an inquiry under Crimes Act 1900 (NSW), Part 13A - JURISDICTION – Court of Appeal – whether the Court of Appeal has supervisory jurisdiction over the Industrial Court – whether the jurisdiction should be exercised - PRIVATIVE CLAUSE – whether s179 of the Industrial Relations Act is valid – whether s179 operated in relation to proceedings in the criminal jurisdiction of the Industrial Court

EQUITY - claim by co-guarantor to equitable contribution for any amount paid in excess of 50% of the debt - guarantor seeking relief but with no prospect of paying his 50% of debt - co-guarantor bankrupt - appropriateness of granting declaratory relief in such circumstances

CONTRACT - Appeal - Primary judge not satisfied that oral promises or representations made as conditions for entry into a written agreement - Whether factual errors shown.

APPEAL – defamation – jury trial under s 7A of the Defamation Act 1974 (NSW) – unreasonable verdicts – appellate intervention warranted – verdict entered by appellate court in favour of appellant - APPEAL – error in inviting jury to consider whether an imputation involved an inference upon an inference – question one of capacity - DEFAMATION – publication – person injured in business, trade or profession - JURY – directions to jury – inadequate directions – clear directions needed to overcome misleading or irrelevant matters in counsel’s address – interfering with jury verdict – imputations plainly defamatory – no reasonable jury properly directed could find otherwise

CRIMINAL LAW - sexual assault - whether Department of Community Services documents were admissible - whether Crown should have been permitted to split its case - application of the proviso - whether directions sufficiently corrected submissions regarding corroboration and motive to lie - whether directions failed to warn against reasoning towards guilt from findings on individual counts

PRACTICE - application for specific performance of alleged settlement agreement - whether offer of a sum "plus costs as agreed or assessed" is an offer of compromise "exclusive of costs" pursuant to UCPR rule 20.26(2) - where no express provision regarding time for acceptance - whether time for acceptance extended pursuant to UCPR rule 20.26(7)(b) - COSTS - where plaintiff's case fails - whether application unreasonable - whether costs should be awarded on an indemnity basis - no question of principle

CRIMINAL LAW AND PROCEDURE - MURDER - ADMINISTER NOXIOUS THING SO AS TO ENDANGER LIFE - SENTENCE FOLLOWING TRIAL AND CONVICTION

EQUITY – Trusts and trustees – Resulting trusts – Constructive trusts – Director of trustee of unit trust bought properties in his own name intending them to be acquired for his superannuation funds – Properties acquired with 100% finance – Superannuation funds unable to borrow – Director and superannuation funds held units in the unit trust – Loans made to trustee, the director and director’s wife jointly – Trustee of unit trust derived all income and paid all mortgage and other expenses – No declaration of trust – Director later made bankrupt – Whether properties held by director on trust for trustee of unit trust – Whether resulting trust or “common intention” constructive trust – Held trustee of unit trust entitled under resulting trust to a one-third beneficial interest in properties and entitled to contribution secured by charge.

CORPORATIONS - Winding up - Voidable Transactions - Payments made by insolvent company to defendant commissioner within six months prior to the relation-back day - Liquidator's application for their recovery - Whether unfair preferences - Whether Commissioner entitled to indemnity from respondent director for so much as related to non-remitted PAYG payments - Whether respondent should be ordered to pay a proportionate part of the costs the Commissioner is ordered to pay the liquidator and his costs of defending the liquidator's claim

Extension of time - ss 60G & I - Limitation Act 1969 - adoption of baby in 1962

EQUITY – ESTOPPEL – Proprietary estoppel – Right of residence – irrevocability resulting from reliance on expectation of indefinite or lifetime right to remain - where plaintiffs have expectation that in return for plaintiff’s (deceased) husband doing the carpentry for house on defendants’ property free of charge, plaintiffs would be permitted to occupy property indefinitely, provided that they paid a concessional rent while the mortgage remained outstanding, and after they ceased to make those payments, paid the rates and insurance, and maintained the property – where expectation acted upon by building house without remuneration and fitting it out in a manner which suited plaintiffs who thereafter occupied it - where defendants induced plaintiffs to adopt expectation and encouraged their reliant activity by being party to the understanding from which the expectation arose - held, it would be unconscionable for defendants to deny truth of expectation, so long as plaintiffs performed their obligations of paying the concessional rent, and thereafter rates insurances and maintenance - whether plaintiff disentitled from enforcing equity by default in performance of condition to which expectation equity was subject - where parties by arrangement substituted different obligations to pay concessional rent – where mortgage would have been discharged if defendants had acted in accordance with expectations – held, plaintiff bound to pay arrears of rates insurances and maintenance as condition of relief – Remedies – minimum equity – where equity is expectation based – prima facie parties should be held to the expectation.

ABUSE OF PROCESS - claim for damages for malicious prosecution, false arrest, false imprisonment and abuse of process - plaintiff alleges that he possesses tape recording of police officer soliciting a bribe from him - tape said to be important potential evidence in proceedings - directions made by judge for technical analysis of tape - proceedings adjourned for that purpose - plaintiff then destroys the original tape - application by defendant that proceedings be stayed or dismissed as an abuse of process - elements of abuse of process - principles applicable where application is made for stay or dismissal of proceedings on grounds of destruction of potential evidence after proceedings commenced - order made dismissing proceedings

Plaintiff is a litigant in person who was a defendant to a claim for legal costs in the order of $1,000 in the Small Claims Division - his defence was that the fees were excessive - he did not appear at the hearing allegedly because of ill health - judgment entered in his absence - unsuccessful application to set aside judgment - appeal brought to this Court without leave and out of time on the basis of denial of natural justice alleging inter alia that he was not allowed to present his case.

REAL PROPERTY – Strata and related titles and occupancy – Validity of by-laws - Strata scheme of subdivision adopted special by-law – By-law created right in favour of lot owned by defendants to use or occupy part of lot owned by plaintiff for purposes of storage of small watercraft – Whether by-law ultra vires – Sections 41, 43, 47, 49, 50 and 52 of Strata Schemes Management Act 1996 (NSW) considered – Sections 7(3), 8(4C) and 16(1) of Strata Schemes (Freehold Development) Act 1973 (NSW) considered – Sections 32(1)(c) and 42 of Real Property Act 1900 (NSW) considered – By-law valid – Plaintiff completed construction works in violation of by-law – Orders made for restoration of damage done by construction works.

[SUMMARY DISMISSAL/ STRIKE OUT] Application for summary dismissal of the proceedings on the basis that the assignment to the plaintiff by which it purports to bring the proceedings was prohibited by contract and/or ineffective - whether plainitff has "genuine commercial interest" in relation to action for damages for breach of contract.

CORPORATIONS - Receivership - affidavit in support of issue of examinations summonses and orders for production - proposed examinees' application to set aside examination summonses fails, while application to set aside orders for production succeeds in Court of Appeal - application for issue of revised orders for production - whether proposed examinee should be granted access to receiver's initial affidavit in connection with their resistance to the application to issue revised orders for production - whether revised orders should be made - procedure to be adopted where claims for privilege are expected

CORPORATIONS - winding up - winding up in insolvency - where voluntary administrator unable to make reliable findings as to identities of creditors - apprehension that any decision of second meeting of creditors in Part 5.3A administration may be flawed - company clearly insolvent - whether voluntary administrator has standing to apply for winding up

LANDLORD AND TENANT – Covenants in lease – Not generally preconditions to performance – Rent usually payable notwithstanding demised premises unusable. - CONTRACTS – Construction and interpretation – Deed of settlement – Where precludes further action on issues joined by claimant – Whether precludes cross-claim by opponents.

LIMITATION – extension of time – sexual abuse – psychiatric injury – awareness of nature and extent - ND

MOTOR ACCIDENTS – assessment of compensation – necessity to give adequate reasons for assessment - DAMAGES – assessment of economic loss – past and future economic loss –business conducted in partnership – principles applicable - JUDGMENT – adequacy of reasons – trial judge must review all relevant evidence in support of factual finding – trial judge must make relevant factual findings - EVIDENCE – medical evidence – preference of particular medical experts over others – trial judge must state where preference, if any, lies and adequate reasons for so preferring

NEGLIGENCE – motorcycle accident – dispute as to driver – permissible inferences as to likely driver – presumption of continuance – numerical probability distinguished from balance of probabilities standard. - EVIDENCE – rejection of expert evidence based on factual assumptions made. - EVIDENCE – evaluation of contested evidence of admissions – “rider” with respect to motorcycle carrying two persons – “riding” with respect to motorcycle carrying two persons. - Luxton v Vines (1952) 85 CLR 352 distinguished. - Carian v Elton (2000) 31 MVR 421, considered. - Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, considered.

TRUSTS – application for judicial advice by trustee – parties given notice under s 63(4) of the Trustee Act 1925 (NSW) – whether parties given notice are entitled to privileged legal opinion obtained by trustee and provided to Court – no entitlement to privileged material - JUDICIAL ADVICE – application under s 63 of the Trustee Act 1925 (NSW) – whether proceedings adversarial - proceedings non-adversarial - PRIVILEGE – legal professional privilege –legal opinion obtained by trustee to assist court in application for judicial advice – privilege covers legal opinion in its entirety – privilege not abrogated by rules of natural justice –whether implied waiver by placing legal opinion before court – no waiver

Admissibility of the electronically recorded interview (ERISP)

Claim for debt evidenced by IOU - appeal - no error in point of law - decision of Magistrate founded on findings of fact supported by ample evidence.

EQUITY - Equitable Doctrines and Presumptions - Claim that property held in trust for plaintiff - Whether plaintiff contributed to purchase price - Question of fact - No principles involved

Admissibility of expert opinion evidence

Admissibility of forensic photographs

Appeal from panel - no appeal as of right - no basis for the granting of leave.

Dust Diseases - Dust diseases legislation - Dust Diseases Tribunal - Damages for non-economic loss after plaintiff’s death - Plaintiff dies after instituting proceedings in Dust Diseases Tribunal – Estate joins additional defendant after plaintiff’s death – Whether damages for non-economic loss are recoverable against defendant added by amendment after plaintiff’s death - Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(2)(d) — Dust Diseases Tribunal Act 1989 (NSW), s 12B

CRIMINAL LAW: - appeal against conviction - two charges of obtaining money by deception - various complaints about conduct of the trial - criticisms of the evidence - no question of principle

[PLEADINGS] - application for leave to file Amended Cross-Claim - extensive use of cross-referencing - obscurity - whether various claims including claims of implied warranties under s 69 of the Trade Practices Act 1974 should be permitted.

DECEIT - claim of forgery of signature on guarantee - whether forgery proved - expert handwriting evidence - claim of forgery rejected - element of reliance in tort of deceit

REAL PROPERTY - restrictive covenants - covenant provided height restriction - privacy screen and hand rail above garage built higher than covenant height - screen and rail 'a building' under covenant - purpose of covenant to protect views collateral benefits as a result, impact of use of garage roof on persons having benefit

PROCEDURE – application by non-party to be heard concerning whether ex parte orders should be extended – application by media proprietors to be heard concerning injunction restraining publication of contents of affidavit served for purposes of a court application, but not read – distinction between role of media on such an application and role of media concerning non-publication order concerning events in open court – need for evidence to establish interest

CONTRACTS - unjust contracts - agreement loan for three months at 72% per annum - secured on borrower's home - loan proceeds wholly paid to third party - whether contracts "unjust" within Contracts Review Act 1980 - consideration of various factual matters relevant to s.9 criteria

EVIDENCE - cross-examination on documents not tendered - third party documents and prior representations of the witness - transcripts of examinations including transcripts that could not be tendered in penalty proceedings - discretionary considerations

PROCEDURE - repeated non-compliance with directions

EQUITY – Trusts and trustees – Implied trusts – Resulting trusts – Plaintiff and defendant were in de facto relationship – Plaintiff and defendant purchased property as joint tenants – Plaintiff contributed disproportionately to purchase price of property – Defendant contributed disproportionately to payment of plaintiff’s personal expenses – Plaintiff and defendant separated – Joint tenancy severed – Whether defendant holds entirety of interest in property on resulting trust for plaintiff – Whether property held on resulting trust in proportion to parties’ contributions to purchase price – Presumption that property held on resulting trust – Evidence of parties’ actual intentions – Presumption rebutted – Plaintiff’s claim rejected - EQUITY – Trusts and trustees – Implied trusts – Constructive trusts – Plaintiff’s contribution to purchase price made immediately prior to termination of parties’ de facto relationship – Whether plaintiff’s contribution to purchase price made in expectation of continuing relationship – Whether defendant holds interest in property on constructive trust for plaintiff on principles in Baumgartner v Baumgartner (1987) 164 CLR 137 – Constructive trust found – Plaintiff’s claim made out.

CRIMINAL LAW - 5F APPLICATION - unlawfully administering a drug with intent to procure a miscarriage - subpoena - whether a fishing expedition or abuse of process - whether legitimate forensic purpose - whether related to meeting anticipated defences - whether relevant as character evidence - whether relevant to allegation of negligence

NEGLIGENCE - liability of manufacturer to end user - asbestos cement sheeting - in 1961 the plaintiff, a priest, worked with asbestos cement sheeting purchased retail by a relative and manufactured by defendant and was exposed to asbestos dust and fibres - work totalled about 12 hours over several days - extension to his sister's house - no other exposure to asbestos dust and fibre apart from ordinary environmental exposure - in 2003 plaintiff became ill and mesothelioma diagnosed - Dust Diseases Tribunal found, on extensive review of evidence including publications about knowledge of risks related to asbestos in 1961, that defendant owed duty of care to plaintiff and was in breach by failing to print warning on each sheet - on review of evidence, held that the conclusion, on test in Shirt v Wyong S.C. that there was a foreseeable risk of injury to class of persons including the plaintiff and hence a duty of care to the plaintiff, on state of available knowledge in 1961, was not reasonably available - held no duty of care - consideration of establishing relevant class of persons for purposes of foreseeability and casual end users not conflated with persons more intensely exposed in industrial occupations - consideration of Trial Judge's decision on need to print warning on sheets - admissibility of plaintiff's evidence on how a warning would have affected his conduct.

SUCCESSION - Family Provision and Maintenance - Failure of testatrix to make provision - Able bodied adult in close personal relationship with her for 10 years left nothing and debt not forgiven - Relationship like that of aunt and nephew - Lived together non-sexually - He financially dependent upon her and he providing domestic support and personal care - Estate left to siblings - Estate in excess of $1.5 million - No evidence of needs of siblings - Provision made to buy and furnish a house and a buffer against exigencies

DEFAMATION – interlocutory injunction to restrain – INJUNCTIONS – interlocutory – to restrain alleged defamation – PRACTICE – costs – defendant attending court, before being served with any process, but after having been informed an injunction would be sought against it – injunction then refused

REAL PROPERTY – tenants in common – consent order made over three years ago for sale of property – defendant becomes unwilling to co-operate in procedure – appointment of trustees for sale – role of Registrar in carrying through consent orders

Judicial review of decisions by teachers - power - claim of procedural fairness - utility - internal procedures - unrealistic litigation - summary relief.

Sentencing - malicious wounding - whether manifestly excessive - sentence outside available range - re-sentencing - depends on particular facts.

CRIMINAL LAW: application for leave to appeal against sentence - ongoing supply of heroin - form 1 matter - sentence of 3 years - non-parole period 18 months - to be served by way of periodic detention - whether manifestly excessive

PROCEDURE – discovery – claim that discovery is oppressive – trial judge failed to engage in balancing exercise required – failure of trial judge to give a fair hearing and reasonable opportunity to be heard – improper assessment of case during hearing – inadequate hearing due to judicial time pressure – miscarriage of justice - JUDGMENT – extempore judgment – revision of judgment after hearing – reference added to evidence without having had proper regard to that evidence during the hearing – trial judge failed to give proper consideration to issues - PROCEDURE – counsel had not previously taken objection to manner in which case dealt with by trial judge – whether precluded from raising issue on appeal – nothing justifies usurpation of justice in favour of court efficiency and case management

APPEAL – limited to error of law - COMPENSATION – compulsory acquisition – assessment to disregard effects of proposal to carry out public purpose – questions of law – questions of fact - D

Insurance - defendant's costs of defending proceedings - whether claimed in statement of claim - whether claim raised in submissions for decision although not in statement of claim - whether failure to give reasons for not deciding claim or why claim failed - whether miscarriage of justice - whether appeal court would decide claim - held raised for decision, inadequate reasons, new trial. D