Cases and authorities

PRACTICE & PROCEDURE - subpoenaed documents - claims to privilege - application of Evidence Act principles under UCP Rules – EVIDENCE - client legal privilege - liquidator's examination proceedings - litigation funding agreement - participation by funder in conferences and correspondence with lawyers - whether privileged under s 118 or s 119 - whether privilege waived under s 122(2) or (4) - common interest privilege under s 122(5)(b) - loss of privilege through abuse of power under s 125 - whether grounds to attribute creditor's improper purpose to liquidator

FAMILY PROVISION ACT - claim by adult daughter - large estate - whole of estate passed to de facto wife - daughter has significant medical problems and at present is unable to work full time

CORPORATIONS – Winding-up – Plaintiff (2876/06) sought orders that second defendant be wound up in insolvency – Second defendant was parent company of first defendant – Plaintiff was creditor of second defendant because of contingent or prospective debt – Leave of Court required – s 459P(2)(a) Corporations Act 2001 (Cth) – Plaintiff failed to seek leave – Whether failure to seek leave constituted abuse of process – Whether plaintiff entitled to leave nunc pro tunc – Evidence that winding-up proceedings brought in attempt to recover disputed debt – Debt owed by second defendant’s subsidiary (first defendant) – Enforceability of debt disputed on substantial grounds – Other proceedings on foot to resolve whether first defendant liable to pay disputed debt – Evidence that winding-up proceedings retaliatory – Whether winding-up proceedings brought for improper purpose – Plaintiff issued press release publicising winding-up proceedings before expiry of 3 days after service of originating process and in breach of undertaking – Extensive media coverage – Whether issue of press release a breach of r 5.6 Supreme Court (Corporations) Rules 1999 (NSW) – Purpose of r 5.6 – Whether breach of r 5.6 warrants summary dismissal of proceedings as abuse of process – Whether breach of r 5.6 saved by s 467A Corporations Act - CORPORATIONS – Winding-up – Plaintiff sought orders that first defendant (2876/06) be wound up in insolvency – Plaintiff claimed status as creditor of first defendant because of certificate of costs awarded to it in other proceedings – Plaintiff entitled to have certificate of costs filed as a judgment – Whether first defendant entitled to set off debt owed to it by plaintiff against debt arising from certificate of costs –Basis of jurisdiction of Court to allow set-offs – Whether plaintiff a creditor of first defendant – Other proceedings on foot to stay enforcement of costs order – Whether filing winding-up proceedings in such circumstances constitutes abuse of process - PRACTICE & PROCEDURE – Plaintiff (2760/06) sought orders to restrain defendant (2760/06) from executing judgment based on certificate of costs obtained in other proceedings – Jurisdiction of Court to stay execution of its own judgments and orders – Jurisdiction to be exercised with caution in interests of justice – Requirements of justice in instant case - COSTS – Indemnity costs – Order for indemnity costs to be made where one party delinquent in its conduct of proceedings – Whether plaintiff (2876/06) delinquent – Order for indemnity costs made.

APPEAL - plea of guilty to supplying heroin (four counts) - appeal against conviction - no reason to doubt integrity of pleas of guilty - appeal against sentence - parity principle - sentences not manifestly excessive

CRIMINAL LAW - Appeal against conviction - Whether verdict of jury unreasonable.

CRIMINAL LAW – Crown appeal – robbery in company – offensive weapon – post-offending conduct – whether overall sentence adequately reflects criminality – criminal record – offences committed while on parole – appropriate sentence for multiple offences – distinguished from Henry guideline – offences on the Form One – whether temporal and causal connection between offences – delay in bringing Crown appeal – whether residual discretion should be exercised – specific and general deterrence

NEGLIGENCE - Occupiers Liability - the plaintiff, an experienced tiler, accompanied a tiler whom defendant had asked to attend at her house to give quotation for tiling work - defendant as owner-builder was carrying out building work, renovations, alterations and additions to the house, the work was incomplete and the areas to be tiled had bare concrete surface of balcony with two apertures left open for later installation of glass-tile skylights: apertures covered by gyprock held down by timber - no warning sign or other indication of aperture under gyprock - plaintiff stepped on gyprock and fell through to garage floor, suffering injuries - District Court found no breach of duty of care - on appeal held by majority, that there was a breach of duty in not giving a warning that the gyprock covered a substantial aperture - appeal allowed and damages awarded.

COSTS - - LEGAL PROFESSION - Cap on costs recoverable in connection with personal injury damages claims - cap applies in appeal unless Court of Appeal makes excluding order - unsuccessful defendant applied for leave to appeal and failed - cap of $13,587.23 on damages probably already exceeded after 3-day hearing in District Court - held by majority (Bryson JA dissenting) it had not been shown that the application for leave to appeal was not reasonably necessary for advancement of claimant's case. Note that this application was made under LPAct 1987 ss.198D and 198G, cf. LPAct 2004 ss 338 and 341 but see now LPAct 2004 s.338A.

CRIMINAL LAW – Appeal against sentence – manslaughter – malicious wounding – grievous bodily harm – assault in company – self-defence – agreed statement of facts – plea agreement – agreed non-parole period – agreed discount for plea – whether judge should have sentenced consistently with the plea agreement – whether judge made a finding contrary to the agreed statement of facts – whether sentence was appropriate having regard to objective criminality and subjective circumstances – whether sentences were manifestly excessive – whether the Crown on appeal is bound by the position of the crown at first instance

Appeal decision of Local Court Magistrate - Small Claims Division - vet fees - horse - impacted gut

Photograph of young victim - objection to tender

Costs

MOTOR VEHICLE - Suspension of driver's licence - demerit points - finding by RTA under s16(3) Road Transport (Driver Licensing) Act that suspension not unreasonable - whether a "decision" - whether right of appeal to Local Court under cl 6(1)(c) of Road Transport (General) Regulation 1999

CRIMINAL LAW AND PROCEDURE - SENTENCE - ARMED ROBBERY AND ROBBERY IN COMPANY - HIGHLY PLANNED AND ORGANIZED CRIMES - CUMULATION SPECIFIED BY JUDGE NOT IMPLEMENTED IN ORDERS - CROWN APPEAL MADE GOOD

BAILMENT - Duty of bailee to take reasonable care of goods - Standard of care - Onus of proof - Mercedes car stolen from premises with high degree of physical security, being damaged in the process - Keys kept out of sight, but not locked - Whether bailee established that the theft and damage was not due to its negligence.

CRIMINAL LAW - parole - decision of State Parole Authority to refuse parole - repeat sexual offender - relevant considerations under s.135 Crimes (Administration of Sentences) Act 1999 - offender's refusal to admit guilt - offender's refusal to apply for custodial sex offenders rehabilitation program - whether decision of State Parole Authority made on basis of false, misleading or irrelevant information for the purposes of s.155(1) Crimes (Administration of Sentences) Act 1999

PROCEDURE [553], [573] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendants win on some issues - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct - Whether issues intertwined.

Defamation - Two National telecasts (Promo & Program) - Imputations in context - ambit of imputations - defence of substantial truth and matters of public interest - extended review of construction of four houses - statutory defence of comment in NSW and corresponding defences in other States and Territories - proper material for comment, public interest, comment of defendant, of servant or agent and of stranger - facts sufficiently stated or identified - Trespass at Edmondson Park - Mr Cox lessee of premises - whether his companies had sufficient title to sue - bad instance of tort - compensatory, aggravated and exemplary damages awarded - Trespass at the Mosses - whether Ilvarity in possession at time of alleged trespass when off site for over 18 months - construction of building agreement - Ilvarity not in possession and at best entitled to possession when suspension of contract ceased - insufficient title to sue - False Representation and Misleading and Deceptive Conduct established - These causes of action available - plaintiffs not limited to damages for defamation and trespass but double counting avoided - Operation of s 65A of Trade Practices Act and corresponding State Acts - Promo was advertising - Causation under legislative causes of action - false representations etc enabling greater attack on plaintiffs by telecaster enhancing program

Appeal from dismissal of Local Court proceedings - construction of Magistrate's reasons - whether alternative basis for dismissal disclosed by Magistrate's reasons - construction of Tow Truck Industry Act 1998

CRIMINAL LAW - Sentence appeal - whether sentence manifestly excessive - limited value of statistics and sentences in other cases for this kind of offence - wide discretion of sentencing judge - no error demonstrated.

CRIMINAL LAW - APPEAL AGAINST CONVICTION - Appellants aged 11 and 12 at time of alleged offences - Doli incapax - Need for prosecution to prove beyond reasonable doubt that child between 10 and 14 knew that what he or she was doing was seriously wrong, not merely naughty or mischievous - Whether directions adequate - Whether jury's verdict reasonable.

PROPERTY – registered writ for levy of property – contract of sale by registered proprietor exchanged but not completed – purchasers sought to register transfer –meaning of ‘title’ in s112(2) of Civil Procedure Act 2005 (NSW) – effect of Real Property Act 1900 (NSW), ss105, 105A and 105B – whether purchasers’ interest had priority over a Sheriff’s purchaser under execution of the writ

Appeal decision of Local Court Magistrate - denial of natural justice - vet fees

REAL PROPERTY – Injunctions – Defendant agreed to pay third party commission on sale of lots of property in Queensland – Third party not licensed as real estate agent in Queensland – Third party agreed to assign to first plaintiff commission payable by defendant – Defendant disputed obligation to pay first plaintiff commission – Defendant and third party executed irrevocable authority agreeing to pay first plaintiff commission – Where irrevocable authority allegedly executed by person acting without authority of defendant – Where irrevocable authority allegedly procured through duress – Where irrevocable authority allegedly invalid for failure of consideration – Whether serious question to be tried that defendant bound by agreement to pay first plaintiff – Whether serious question to be tried that first plaintiff entitled to injunctions restraining defendant from distributing proceeds of sale of lots of property – Interlocutory relief granted - PRACTICE & PROCEDURE – Cross-vesting – Application for transfer of proceedings to Supreme Court of Queensland – Section 5(2)(b) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) – Where balance of convenience as to parties and witnesses even – Where subject matter of proceedings is land in Queensland – Where resolution of proceedings likely to involve interpretation of Queensland statute for which there is no New South Wales equivalent – Whether Queensland is the “more appropriate forum” – Application for transfer of proceedings granted.

FAMILY LAW - adoption of children - pre-hearing orders regarding evidence

ADMINISTRATIVE LAW - appeal from medical assessment under s.327 Workplace Injury Management and Workers Compensation Act 1998 - decision of Registrar of Workers Compensation Commission of NSW under s.327(4) that no grounds of appeal appeared to exist - claim for certiorari for error of law on the face of the record - nature of fresh evidence test in s.327(3)(b) - whether "or" in s.327(3)(b) is conjunctive or disjunctive - function of Registrar under s.327(3) and (4) in determining whether appeal should proceed to Appeal Panel

Criminal law: lies as consciousness of guilt - circularity - need for independent or separate evidence to point to untruthfulness - lies confined to credibility issue

Sentence - Maliciously Discharge Firearm with intent to cause grievous bodily harm - Maliciously Discharge Firearm with Intent to Prevent Lawful Apprhenension - Armed Offender Fleeing from Police - Conviction after trial.

COSTS – Parties joint owners of property – Plaintiff sought appointment of trustees for sale pursuant to s 66G Conveyancing Act 1919 (NSW) – Defendant resisted – Dispute between parties resolved without hearing on merits – Usual principle that costs incurred in appointment proceedings incident of joint ownership of property – Defendant allegedly tardy in arranging purchase of plaintiff’s share of property – Plaintiff allegedly unreasonable in rejecting defendant’s offers – Whether usual principle applicable – Principle applicable – Costs to be borne equally by parties.

Criminal law - Duress - Trial Judge's directions - Sentence

PRACTICE and PROCEDURE - COSTS - First appeal hearing - Summons for Leave to Appeal adjourned to permit first and second opponents to seek leave to amend Statement of Claim in District Court - first and second opponents' failure to make amendment application before first appeal hearing cause of wasted costs of that hearing - HELD - first and second opponents to pay costs of first appeal hearing save to extent already covered by costs thrown away order/agreement - Second appeal hearing - Summons for Leave to Appeal otiose once first and second opponents given leave to amend Statement of Claim - HELD - claimant to pay costs of second appeal hearing save to extent already covered by costs thrown away order/agreement. (ND)

NEGLIGENCE - collision between a ferry and a dinghy in Sydney Harbour - passenger on dinghy seriously injured - apportionment of liability between the operator of the dinghy and the ferry master - both ferry and dinghy on incorrect side of navigation channel when the collision occurred - failure to keep a proper lookout. - DAMAGES - whether the assessment by the trial judge was reasonable. ND

COSTS – apportionment – proceedings discontinued – legislative amendments necessitated discontinuance – whether each party should bear its own costs – whether proceedings likely to fail in any event – whether discontinuing party had an arguable case – impact of judgment in an unrelated matter concerning a relevant point of constitutional law

PERSONAL INJURY – negligence – damages – cross-claim for contribution - DAMAGES – negligence – award of personal injury damages – award overturned on appeal - STATUTORY CONSTUCTION – Legal Profession Act 1987 s198C and s198D –whether a cross-defendant is a “defendant” for the purposes of s198C – whether legal services provided to cross-defendant are provided “in connection with” a claim for personal injury damages for the purposes of s198D – whether a verdict for a defendant is an “award” of damages for the purposes of s198D - COSTS – costs cap in Legal Profession Act 1987 s198D – whether cap applies to costs incurred by a cross-defendant – whether cap applies when defendant is successful - WORDS AND PHRASES – “defendant” – “in connection with” – “award”

PRACTICE & PROCEDURE – Plaintiff sought leave to charge second defendant with contempt of court – Plaintiff’s application in state of disorder – Section 56(3) Civil Procedure Act 2005 (NSW) considered – Plaintiff a bankrupt – Section 60(2) Bankruptcy Act 1966 (Cth) considered –Leave refused – Plaintiff’s notice of motion stayed until further order.

DEFAMATION – statement of claim – multiple publications – defendant’s strike in application – separate radio talk-back programmes – whether plaintiffs should plead both programmes as one publication – UCPR r 14.28

Family Law. De facto relationship. Parties resided together during six separate periods. Whether one single (but at times interrupted) de facto relationship or six separate de facto relationships. Respective contributions of parties. House property acquired by parties as joint tenants (and subsequently held by them as tenants in common in equal shares). Whether respective interests of parties in proceeds of sale of that property should be adjusted.

Application for leave to substitute indictment – s 20 Criminal Procedure Act 1986 – joinder of offences and offenders – offences forming part of a series of offences of a similar character

TORT - NEGLIGENCE - Schoolgirl injured on a school excursion when she slipped and fell from a 3.8 metre high structure in an obstacle course - Whether reasonable precautions taken against risk of injury.

TORT – Woman falls and injures herself on recently polished floor where polish not visible – Whether hotel and cleaning company liable – apportionment of liability. - DAMAGES – Whether there was an “obvious risk” and if so what follows for the inadvertent plaintiff - In what way, if at all has the meaning of “obvious risk: and its consequences at general law been altered by the Civil Liability Act 2000 (NSW). - PRACTICE AND PROCEDURE – Did the trial judge err in the exercise of his discretion regarding the awarding of costs – Should a Bullock order have been made.

Practice and Procedure - Costs - Appellant to pay costs - Where basis for proceedings abandoned on appeal

Corporations. Application to set aside statutory demand. Demand reduced by a small amount. No matter of principle.

PROCEDURE - costs - successful application for order setting aside statutory demand - where defendant failed to give particulars going to defects as ultimately found by court - unreasonable conduct of defendant in pressing demand and compelling plaintiff to commence proceedings

PROCEDURE - costs - Family Provision Act claim - where plaintiff's claim had merit but failed because of greater need for claims of widow and young child to be met out of estate consisting of matrimonial home only - no order as to costs

CORPORATIONS - winding up - leave to proceed against company in winding up - claim for damages arising out of sinking of yacht manufactured by company - delay until conclusion of Coroner's Inquest - assets distributed - prospect of insurance claim

RESTRAINT OF TRADE – Employer and employee – customer connection – financial planner – construction of restraint – where purpose of restraint stated to be protection of confidentiality of business operations – whether statement of purpose limits plain words of restraint which protect customer connection – held, they do not - Validity – nature of customer connection – significance of some customers being personal relatives or friends of employee - significance of employee’s role including building of customer base – whether protectable interest where employer had purchased some clients, paid referral fees for others and received “trail commission” for their managed investments and paid bonus to employee for efforts in developing business – whether protectable interest where employee dealt directly with clients as their financial planning consultant – Reasonableness – whether restraint excessive insofar as it prohibited dealing with customers other than those with whom employee personally dealt – whether restraint excessive insofar as it prohibited dealing with clients of divisions of business group other than the business in which employee was engaged – whether restraint was excessive insofar as it prohibited not only soliciting but accepting instructions from customers of employer - Area – Duration – whether manifest failure to attempt to make restraint a reasonable one

plaintiff's notices of motion - claim for damages for personal injury - judgment for defendant - appeal allowed and new trial ordered - defendant's further amended defence pleading fraud - plaintiff seeks orders removing pleading of fraud - plaintiff seeks orders for verification of pleading - written statements - plaintiff seeks orders for affidavit evidence refused by Registrar - review of decision of Registrar - no basis for making orders sought - plaintiff seeks leave to prosecute witnesses perjury - requirements for conviction for perjury not met - no basis for making orders - identification of employer of plaintiff - insurer of defendant indemnifies it in respect of verdict awarded to plaintiff

CRIMINAL LAW: - Application for leave to appeal against sentence - accessory after the fact to armed robbery - whether appropriate weight given to plea of guilty - hardship to applicant's family as a result of his imprisonment - whether sentence manifestly excessive