Cases and authorities

CORPORATIONS - company previously under deed of company arrangement now in liquidation - priority of payments in winding up - whether contributor to fund under deed of company arrangement advanced money out of which employee entitlements met - whether such contributor entitled to priority under s.560 - CORPORATIONS - charges - where charge void against liquidator because not registered within required time - application by liquidator for order declaring such charge to be valid against liquidator but on basis of curtailed operation and effect - no jurisdiction to make such order shown - CORPORATIONS - deed of company arrangement - residue of funds held by deed administrators after termination of deed - whether such funds became subject to trust in hands of deed administrators - whether any such trust survived termination of deed of company arrangement

RECEIVERS - receivers appointed by court - remuneration - principles governing determination of remuneration - application of principles to the particular case

CORPORATIONS - winding up - statutory demand - whether copy of s.459G application and supporting affidavit served within relevant period of 21 days - what constitutes service - whether service effected by leaving in ground floor letterbox when address for service is office of solicitor in numbered suite on first floor - whether service effected by leaving at office of solicitor when documents taken there and taken away again - whether service effected when documents given to and received back from director

Sentencing - whether excessive - matters on which applicant relied taken into account - applicant dealt with leniently - no question of principle.

CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – caveats against dealings - ex parte application to extend caveat

Whether utterances by accused constituted an admission - whether utterances met test of relevance - significance of accused's mental illness upon question of reliability of admissions - whether unfair to accused to use the evidence - whether probative value outweighed by unfair prejudice

Criminal Law - Sentence - armed robbery - failing to give discount for plea of guilty based upon Henry guideline - whether drug addiction mitigating - whether any less sentence warranted.

Criminal Law - Separate trial application refused by trial judge - application for leave to appeal - whether joint trial would render unfair the trial of the applicant by reason of strength of Crown case against co-accused.

Criminal Law - Aggravated driving causing gbh - concurrent sentences erroneous - sentence not manifestly excessive - Appeal - fresh material - need for counsel to address purpose and usefulness of the material tendered.

PRACTICE – costs – defendants compel plaintiff to commence proceedings when defendants have no basis upon which proceedings could be opposed – indemnity costs order appropriate

PRACTICE – subpoenas and notices to produce – when fishing – when sufficiently particular – whether subpoena objectionable because it describes documents as “relating to” a subject matter – when oppressive

Appeal from Local Court - alleged errors of fact and law - no question of principle

Employment contract - whether for closed period or open-ended but terminable by notice - construction of particular document in light of earlier documents.

PRACTICE AND PROCEDURE – Equity – Interlocutory injunction – Principles upon which unsuccessful plaintiff may apply for interlocutory injunction pending resolution of appeal – Balance of convenience issues – Interlocutory relief not allowed – Relevance of early appeal hearing.

contract of employment - date of expiration of employment contract - whether contract contains entire agreement - requirements for termination of contract - whether oral term limiting contract period to two years - conditions necessary for implied term of contract - whether plaintiff waived rights under contract and therefore ought to be estopped from asserting them - whether notice of termination of contract given - whether injunctive relief available

Criminal Law: Criminal Code Act (Cth) - Terrorism offences - indictment - duplicity

COSTS - Whether grounds for making indemnity costs order in respect of issue resulting in adjournment - Issue not pursued - Whether jurisdiction to vary earlier costs order made when proceedings adjourned - Indemnity costs order refused.

Appeal from decision of Associate Justice - action for damages arising from police shooting - application to strike out statement of claim, summary dismissal - whether police owed duty of care - public policy considerations

SENTENCING - conspiracy to import prohibited drug (heroin) - conspiracy to import prohibited drug (ecstasy) - appeal against severity - alleged errors in factual findings and sentences said to be manifestly excessive - no error established and sentences held not to be manifestly excessive - Crown appeals against sentences - Kardoulias' sentence held not to be manifestly inadequate - Andres' sentences held to be manifestly inadequate - Andres resentenced and sentences increased.

LIMITATION OF ACTION – extension of time – mental injury LIMITATION ACT 1969 (NSW) - ss60G and 60I - awareness of mental injury

CORPORATIONS - failure by first and second defendants as officers to discharge statutory duty of care and diligence - whether they should be relieved from liability under s 1317JA or s 1318 - history of provisions - legal requirements for relief - discretionary factors - significance of whether conduct was reasonable

CRIMINAL LAW - Sentence - two counts of murder - adoptive parents murdered by son to gain inheritance - full admissions to police - pleas of guilty - assistance to authorities

Motion to strike out - Negligence - Immunity of Counsel for out-of-court work - Deliberate and inadvertent conduct - Principles for summary disposal - Arguability of duty on Barrister to advise client of negligence of solicitor

SENTENCING - application for extension of time - appeal against severity of sentence - supply prohibited drug - periodic detention - need to fix term of sentence before considering alternatives to full-time custody - error established - application of test under section 6(3) Criminal Appeal Act 1912 by Court of Criminal Appeal - whether Court to apply test by reference to events at time of sentence in the District Court or at time of hearing by Court of Criminal Appeal - nature of section 6(3) test - section 6(3) test satisfied - sentence quashed - matter remitted under section 12(2) Criminal Appeal Act 1912 to District Court for resentencing.

PROCEDURE - COSTS - Whether costs order made in disposing of appeal should be altered.

Negligence - Failed sterilisation procedure - Trial Judge's findings of fact - Reliance upon absence of testing by cross-examination when cross-examination forgone - Failure to consider all the evidence - Reasons.

Limitation of Actions - Application for extension of time - Limitation Act, s 60C - Onus of proof - Application of Limitation Act, s 60E - Costs - Whether trial judge erred in advising that each party pay own costs.

FAMILY LAW - CHILD WELFARE - ADOPTION - Whether errors were made by primary judge in failing to address alternatives, in failing to take into account factors required by ss.8 and 90 of the Adoption Act, or in dispensing with the mother's consent - Whether lack of capability referred to in s.67(1)(b) of the Act must be long-term - Whether "serious cause for concern" referred to in s.67(1)(c) of the Act must be closely linked to the available alternatives - PROCEDURE - ADJOURNMENT - APPEAL - Whether primary judge erred in refusing adjournment on the grounds of the mother's ill-health - Evidence of mother's recovery and changes of circumstances after hearing - Whether this evidence should be admitted on appeal - Whether further hearing of adoption application in best interests of child.

Summary dismissal of proceedings - Appeal from Associate Justice - Witness immunity - Immunity arguably not available to employer of witness - Misfeasance - No de facto authorisation - No invalid public duty - Witness immunity available in Trade Practices Claims - Commonwealth arguably in trade and commence in supplying analyses for fee

PROCEDURE - documents produced on subpoena and notice to produce - claim for legal professional privilege - whether drafts of expert's report privileged - whether privilege waived in respect of other documents - responsibility of party bearing onus of establishing privilege

ENVIRONMENT AND PLANNING – Compulsory acquisition of land – Compensation for injurious affection – Acquisition of road frontage land – Proposed transitway with no access from retained land to main road – “Before” and “after” valuation exercise – Appropriate discount for risk – Whether Point Gourde principle applied to determination of injurious affection – Affect to underlying zoning of retained land – Land Acquisition (Just Terms) Compensation Act 1991 s 55(f)

ADMINISTRATIVE LAW – Administrative Decisions Tribunal – Appeal Panel – Disciplinary proceedings – Whether appellant's right of appeal from Tribunal to Appeal Panel extended to merits review – Whether appellant denied procedural fairness – STATUTORY CONSTRUCTION – Whether extension of appeal to merits review under s 113(2)(b) of Administrative Decisions Tribunal Act dependant upon appeal raising question of law – Proper construction of transitional provisions in ADT Act – Purposive construction to avoid lacuna or gap in legislative scheme – Veterinary Surgeons Act 1986 s 34 – Administrative Decisions Tribunal Act 1997 ss 112, 113, 119, 120, cl 37 Sch 5

NEGLIGENCE – Breach of duty – Duty of school to students – Where student injured while playing touch football on school grounds during lunch break – Where foot caught in pothole – Whether school breached duty to student – Whether school failed to respond to reasonably foreseeable risk of injury – Whether school should have had in place system of regular and close inspection

INTERLOCUTORY RELIEF - application for an interlocutory injunction - whether the point of law sought to be agitated on the appeal was unarguable - the purpose of the power and the nature of the application considered - preservation of the subject matter of the litigation, pending determination of the proceedings - where the balance of convenience lies - potential prejudice on either side of the record, resulting from the grant or refusal to grant the inunction sought - whether in addition to the usual undertaking as to damages, the grant should be conditional on the giving of an additional special undertaking

LEGAL PRACTITIONERS – Contractual and tortious duties to client – Retainer properly to advise client – Whether solicitor and/or barrister provided adequate and timely advice as to available claims – Whether failure to take reasonable steps to ensure client understood advice – Barristers’ immunity from suit – Whether barrister’s advice “connected with conduct of litigation” – Causation – Whether client suffered loss as a result of practitioner’s negligence – Assessment of damages – Workers Compensation Act 1987 s 151A

Damages - breach of contract - delay in completion of sale of land - purchaser was lessee from vendor - vendor sued for rent for period of delay - whether claim failed because was taking advantage of own wrong - was entitled to rent - purchaser entitled to damages in the same amount - whether in assessing damages allowance for benefit to purchaser of not having to pay purchase price for period of delay - what was benefit - needed proof of actual benefit - and no allowance because in the circumstances any benefit not caused by breach of contract. D

NEGLIGENCE – Breach of duty – Where plaintiff tripped over rope strung across entranceway to park – Whether risk of injury reasonably foreseeable – “Shirt balancing exercise” – Reasonable response in circumstances – Whether plaintiff failed to exercise reasonable care for own safety – Obviousness of risk - NEGLIGENCE – Assessment of damages – Component for future gratuitous attendant care services – Civil Liability Act s 15

CORPORATIONS - winding up in insolvency - winding up application - whether leave should be granted to defendant to rely on grounds that were or could have been relied on in seeking to have statutory demand set aside - failure of defendant to show grounds material to proof of solvency - failure of defendant to show explanation for non-reliance on grounds which statutory demand challenged - application by defendant to join its shareholders as co-defendants - stated intention of shareholders to rely on grounds of defence not open to defendant - application by defendant for stay of winding up application pending determination of appeal against refusal to set aside statutory demand - period for compliance with statutory demand expired - no point in stay

INSURANCE – occupier liable in negligence – insurer’s liability to indemnify – statutory Employment Insurance Policy – whether injured person was a deemed worker – Schedule 1 Cl 5 Workplace Injury Management and Workers Compensation Act 1998 – direct marketing of cookware products – sales arranged at hostesses’ homes – salesperson under cl 5 – characterisation of remuneration as a commission – where seller is a registered business – whether incidental to an independent trade or business. (ND)

NEGLIGENCE – public swimming pool – diving accident – quadriplegia – warning signs – appeal on causation finding – whether breach materially contributed to injury – where breach was a pattern of non-enforcement of prohibition on diving – where plaintiff did not appreciate risk – whether plaintiff would have heeded prohibition had there been stricter enforcement – use of evidence of disobedient conduct – attitude towards authority - permissibility of inferring causation from breach – persuasive onus – evidentiary onus – whether analogous to medical negligence failure to warn – expert evidence – opinions outside area of specialised knowledge. (ND)

CONTRACTS – “process” contracts – entrance criteria for divisional competition set by football governing body – whether “process” contract formed - EQUITY – estoppel – detrimental reliance – whether applicant clubs placed in position of detriment by assuming football governing body would adhere to set selection criteria - CORPORATIONS – oppression – application of s 232 Corporations Act – where football governing body departed from prescribed selection criteria not set by constitution – whether departure made in good faith - TRADE PRACTICES – misleading and deceptive conduct – representations respecting future matters misleading if made without reasonable grounds – mere non-fulfilment of statement as to future matter does not establish that statement was misleading or deceptive - (ND)

WORKERS COMPENSATION – Appeal on question of law – Where employee sustained psychological injury due to disciplinary proceedings – Whether s11A Workers Compensation Act 1987 properly applied – Interpretation of s11A – Interaction with s9A – Discussion of “reasonable action” – Where Court below failed to consider whether the employee’s psychological injury was “wholly or predominantly caused” by employer’s “reasonable action with respect to discipline” - WORKERS COMPENSATION – Appeal on question of law – Where error of law found – Whether matter should be remitted to Commission for redetermination – Workplace Injury Management and Workers Compensation Act 1998, s353 – Supreme Court Rules, Pt 51 r 23 - WORKERS COMPENSATION – Appeal on question of law – Whether finding that injury sustained “in the course of” employment discloses a question of law – Whether finding that employment was the “substantial cause” of injury discloses a question of law – No question of law – Workplace Injury Management and Workers Compensation Act 1998, s353 – Workers Compensation Act 1987, s4, s9, s9A - WORDS AND PHRASES – “reasonable action”

ADOPTION - Application to adopt children from the Philippines - Philippines is a convention country for the purposes of The Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption - Commonwealth regulations provide a regime for intercountry adoptions between convention countries - Where Commonwealth regulations inapplicable if State has enacted laws having same or comparable effect - Where application for adoption was made under Adoption Act (NSW) - Whether NSW legislation has the same or comparable effect to the Commonwealth regulations - Possible inconsistency between State and Commonwealth legislation gives rise to s 109 question - Direct that notices under s 78B of Judiciary Act be given.

WORKERS COMPENSATION - Dust diseases - insurance - claim for common law damages against insurer where employer company wound up between end of employment and manifestation of disease - availability of insurance as at time of last employment under Workers Compensation Act 1926 s.18(6B) - effect of repeal of WCA 1926 and whether accrued liability at time of repeal - conflicting views in Dust Diseases Tribunal - while appeal pending, retrospective amendment to s.151AB enacted provision similar to repealed s.18(6B) - appeal decided in accordance with retrospective amendment - reject contention that retrospective amendment breached the Kable principle.

Evidence - a certificate under s 61 of the Motor Accidents Compensation Act 1999 is conclusive evidence as to the matters mentioned in subs (2)(a), (b) and (c), unless subs (6) is successfully invoked.

PRACTICE & PROCEDURE – Costs – Security for Costs – Applications by the defendants for security for costs pursuant to s 1335 of the Corporations Act 2001 (Cth) or r 42.21(d) or (e) of the Uniform Civil Procedure Rules 2005 (NSW) – Whether jurisdictional grounds for ordering security for costs made out – Discretionary factors relevant to exercise by the Court of its power to order provision of security for costs – Applications granted in part.