Cases and authorities

LIMITATION OF ACTION – test for extension of time under the Motor Accidents Compensation Act (NSW) 1999 is whether a “full and satisfactory” explanation for the delay has been provided by the claimant – full and satisfactory explanation provided – deficient initial legal advice by claimant’s previous solicitors - reasonable steps taken by current solicitors in pursuit of a claim - claim hindered by absence of cooperation and inadequate information on the part of the other parties – reasonable person would have failed to comply with statutory requirements - MOTOR ACCIDENTS – extension of time to commence proceedings – whether “full and satisfactory” explanation for delay - APPEAL – incorrect test applied by trial judge – not open to trial judge to find otherwise than that a full and satisfactory explanation had been given

Transfer of Real Property Act lease of premises — consented to by lessee — transfer not registered — eviction for non-payment of rent — claim for damages for breach of covenant for quiet enjoyment. - Appellants' argument for equitable assignment of legal lease unnecessary to determine — whatever type of lease held by appellant subject to lessor's right to re enter on non-payment of rent. - Collateral agreement for set-off against rent — costs of repairs and other work required by local council performed by lessee — irrelevant to lessor's right to re enter on breach of covenant to pay rent — no application for relief against forfeiture — appeal dismissed.

Construction of rental agreement and variation - variation did not extinguish automatic renewal entitlement.

CONVEYANCING [151] - Land titles under the Torrens system - Powers of Court - New South Wales - Order for cancellation of certificate of title and issue of new certificate - Circumstances in which further investigation of whereabouts of certificate of title required.

CORPORATIONS - winding up - reliance by defendant on ground that "could" have been advanced in claim for order setting aside statutory demand - where defendant had no knowledge of and no means of discovering such ground when challenge to statutory demand open

Hinder investigation into and apprehension of a person who had committed murder - person was offender's de facto - pleas of guilty

CORPORATIONS - managed investment schemes - stapled securities - provision for compulsory sale of securities of holders in countries with difficult regulatory regimes - whether Gambotto principles apply - TRUSTS AND TRUSTEES - judicial advice - where no affected beneficiary wishes to be heard

PROCEDURE [107] - Supreme Court procedure - Practice under Uniform Civil Procedure Rules - Separate decision of questions - When appropriate.

CRIMINAL LAW - appeal against conviction - soliciting to murder - entrapment - illegally obtained evidence - vulnerability - warnings to jury regarding use of transcripts of recorded conversations - trial judge's discretion to admit evidence - hearsay evidence - investigating the mind of a juror - error on the face of the indictment

CRIMINAL LAW - appeal against conviction - maliciously inflicting grievous bodily harm with intent - kidnapping and attempted kidnapping - directions to jury - claim of right - fact of an acquittal on one count in considering verdicts on others - unreasonable verdicts on the evidence - regard to be had to jury's benefit in seeing and hearing witnesses at trial

Offences of aggravated sexual intercourse without consent and sexual intercourse without consent - whether sentencing judge erred in considering various aggravating factors - whether less severe sentences warranted

Breach of warranty of quiet possession - plaintiff had possession or immediate right to possession at the time of seizure by police - subsections (1) and (2) create independent rights.

CORPORATIONS - takeovers - off-market bid - extension of offer period - failure to send notice to offerees before end of offer period - sent 80 minutes after end of period - steps necessary to effect extension - whether failure was "contravention" - whether "essentially of a procedural nature" - whether validation would cause "substantial injustice"

JURISDICTION - Application to transfer proceedings from Administrative Decisions Tribunal to Supreme Court - retail lease - alleged breach of covenant for quiet enjoyment - retail tenancy claim lodged with Administrative Decisions Tribunal - potential third party claims - risk of inconsistent findings if aspects of matter dealt with separately in court and Tribunal - risk of additional cost to party if proceedings not transferred - inherent power of Supreme Court - interpretation of s 76 Retail Leases Act 1994 - whether Supreme Court has jurisdiction to hear proceedings if transferred

CRIMINAL LAW AND PROCEDURE - ACCESSORY BEFORE THE FACT TO MURDER - INTENTION TO CAUSE GRIEVOUS BODILY HARM BY APPLYING ACID TO FACE - FACTS AND CIRCUMSTANCES ASSESSED - NO SPECIAL POINT OF PRINCIPLE FOR DETERMINATION

Sentence - Crown appeal - home invasion - relevance of motives - significance of positive good character - objective seriousness - relevance of standard non-parole period

Negligence - Personal injury - Pedestrian injured by fall in hole in Guides' Hall grounds - Misuse of forensic advantage - Duty of care - Civil Liability Act 2002 Divisions 2,4 and 8 - Damages - Assessment by "splitting the difference" - Civil Liability Act 2002 s 13.

PROCEDURE - Supreme Court procedure - setting aside entered order made in absence of a party - order was one dismissing proceedings of plaintiff, in circumstances where plaintiff had failed to comply with court directions - consideration of relevant factors

PROCEDURE [557] [573]- Costs- Defendant succeeding- However plaintiffs succeed on some issues- Whether defendant entitled to whole costs of action.

Criminal Law - cross-examination of accused by prosecutor - whether it could have led to miscarriage by breaching right to silence or tending to shift onus of proof.

Criminal law - appeal against conviction and sentence - sexual assault - directions as to the use of a doctor's evidence - doctor not cross-examined - directions as to evidence of complainant and accused - complaint that trial judge's remarks diverted the jury from its fact finding task - directions of the trial judge to choose between the account of the complainant and the accused - use of rhetorical questions in addressing a jury - warning about acting on uncorroborated evidence - Murray direction - directions relating to self-defence.

Criminal Law - Crown appeal - concurrent sentences for unrelated offences - whether delay before arrest relevant - respondents resentenced.

Practice and Procedure – determination of appropriate form of orders – whether order in the nature of specific performance should be made with respect to the transfer of poker machine entitlements created by the Gaming Machines Act 2001 (NSW) – consideration of consequences of a failure to file a notice of contention – whether damages would be an adequate remedy

CONTRACT - breach of contract - whether breach causative of substantial damages - DAMAGES - loss of a chance - estimation of probabilities in assessment of damages - MITIGATION - where innocent party not aware of facts giving rise to breach - when duty to mitigate damage arises - APPEAL - further evidence - s 75A (9), Supreme Court Act 1970 - new trial ordered (D)

Proceedings dealt with by magistrate in chambers on written statements and submissions - no judgment - reasoning process to be discerned from court letter signed by registrar and contents of worksheet - failure to adequately disclose reasoning process and miscarriage of justice.

DEEDS [10] – Deed of release – General words of release – Matters in contemplation of parties - INTERPRETATION [26] – Admissibility of extrinsic evidence in relation to instruments – Matters particularly relating to contract – In general – Relevant principles.

BUILDING AND CONSTRUCTION – Contracts – Payment claims – Adjudication – Challenge to validity of adjudication application and adjudication determination – Basic and essential requirements for application and determination – Whether differences between payment claim and adjudication application rendered application invalid – Whether adjudicator determined claim substantially different to payment claim – Whether failure to determine payment claim rendered determination void – Building and Construction Industry Security of Payment Act 1999 ss 13, 14, 17, 20, 22, 25. ADMINISTRATIVE LAW – Judicial Review – Judisdictional error – Whether determination a bona fide exercise of power – Whether denial of natural justice

[DISCOVERY] - Conclusive nature of affidavit of discovery - Exceptions - Test to be applied when it is alleged there has been a misconception of the case

Indictment - joinder application

Criminal law: Criminal Code Act (C'Wealth) - Terrorism offences - indictment - duplicity - failure to specify all essential matters - Particulars

Sentence appeal - offence capable of being dealt with summarily - failure of sentencing judge to refer to that fact - whether error - principle of totality.

APPEAL – competency – amount involved – claim and value must be capable of reasonable support - CONVERSION – claim to bare declaration and inquiry without proof of cause of action misconceived - JUDGMENTS AND ORDERS – claim to declaration and inquiry as to damages – cause of action must be established at trial – inquiry consequential - D

Service in Florida - application to set aside service - process fails to plead a cause of action and to demonstrate the meeting of jurisdictional requirements - onus - discretionary remedy.

PROCEDURE [81] – Supreme Court Procedure – Practice under Uniform Civil Procedure Rules – Preliminary rules and generally – Dispensing with compliance with rules – Dispensing with service of summons on defendant.

[SUMMARY DISMISSAL] - Application to dismiss proceedings for failure to prosecute with due despatch. [CASE MANAGEMENT] - Objectives - Dictates of justice - Barristers' and solicitors' obligations to assist the Court.

RESTRAINT OF TRADE - Application for interlocutory injunctive relief - where decision to grant injunction will determine substance of the matter - where serious question - where employer delayed enforcement of restraints - whether restraint on competition is reasonably necessary to prevent disclosure of confidential information or exploitation of former client relationships - where restraints on solicitation of employees and clients are broad and damages are an adequate remedy - whether restraint on solicitation is based on confidential knowledge gained during employment.

Convictions for supply of amphetamines - juror discharged because might have seen accused at his place of work - jury then discharged, returned to panel and fresh jury chosen - whether reasonable apprehension of bias on part of fresh jury - no reasonable apprehension - whether verdict on one of the counts unsafe - on analysis of evidence, open to jury to be satisfied of guilt beyond reasonable doubt - whether miscarriage of justice in failure to discharge jury after possibly prejudicial evidence of dealing in other drugs - judge in best position to decide how to deal with the evidence - not later expressly referred to - direction to put aside any question of dealing in other drugs - no miscarriage - whether miscarriage of justice because counsel unprepared or failed to act on accused's instructions in conduct of defence - no deficiency which might have affected outcome of trial.

Sentence appeal - no question of principle

APPEAL – sentence – excessive – no question of principle

Sentence appeal - Supply large commercial quantity of LSD - Imposition of sentence in excess of maximum penalty - Failure to comply with Pearce - Relevance of standard non-parole period.

NEGLIGENCE – police officer shot at during siege and developed posttraumatic stress disorder - whether reasonably foreseeable risk of psychiatric harm – whether State breached its duty of care by not providing proper psychiatric and psychological treatment and counselling – whether breach of duty caused loss – whether breach of duty materially contributed to severity and duration of PTSD – whether breach of duty caused loss of a chance to reduce severity and duration of PTSD – contributory negligence

ASSOCIATIONS AND CLUBS - co-operative societies - application of Corporations Act provisions - CORPORATIONS - winding up - examination of officers - examination summonses previously issued but no longer extant - whether liquidator entitled to obtain issue of further examination summonses directed to same persons - whether also entitled to order that some of such persons file affidavit of assets and liabilities - concept of "examinable affairs" - whether persons concerned should have opportunity to be heard

PRACTICE AND PROCEDURE - Registrar ordered plaintiff to provide security for costs - Whether plaintiff entitled to extension of time to seek review of order of Registrar - Whether plaintiff entitled to extension of time to provide security for costs - No question of principle.

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - legal proceedings generally - application for issue of new certificate of title to give effect to order for rectification of a mortgage - PROCEDURE - Supreme Court procedure - liberty to apply - how exercised - scope of orders which can be sought under liberty to apply - PROCEDURE - costs - application for indemnity costs to give effect to a contractual provision concerning costs

Appeal from determination of one issue - lack of disclosure of reasoning process - no defence to claim for unpaid franchise fees.

PROCEDURE - Supreme Court procedure - power to dismiss proceedings if plaintiff does not prosecute proceedings with dispatch - power to dismiss proceedings if plaintiff fails to comply with directions - effect of introduction of Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – TAXES AND DUTIES – STAMP DUTIES – Vesting order under Family Provision Act – whether liable only to nominal duty as transfer by legal personal representative to beneficiary under trust in will – held, it is.

Application to transfer proceedings to the Land and Environment Court. - Whether proceedings fall within the description of those referred to in s 20(2) of the Land and Environment Court Act 1979.

ADOPTION - application to vary particulars in adoption order by amending year of birth - child born in remote part of Ethiopia and orphaned at early age - no reliable evidence of date of birth - observations of parents, medical evidence and opinions of teachers support conclusion that child one year younger than recorded age