Cases and authorities

Leave to appeal - question of costs - order made against non-party - what has to be demonstrated to obtain a grant of leave - leave refused.

EVIDENCE - opinion evidence - valuation of foreign land - opinion represented as reached by reference to particular features of each of several properties - no discussion or explanation of such features of any of the properties - opinion also represented as based on consideration of comparable sales - no explanation of basis of comparability - inability of trier of fact and potential cross-examiner to know facts, assumptions and reasoning processes - report rejected

ADOPTION - change of given names - where existing separate names to be hyphenated - hyphen needed to facilitate entry on databases - special reasons shown

PROCEDURE – interrogatories and discovery – subpoenas – where relevant only to costs

PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally.

Criminal Law - appeal against sentence - use of aggravating factors under s.21A Crimes (Sentencing Procedure) Act - Special circumstances - different sentence is not warranted

Criminal Law - appeal against conviction - maliciously inflicting grievous bodily harm - requirement to direct jury on self defence - no reasonable hypothesis for self-defence - Rule 4 of Criminal Appeal Rules - whether verdict unreasonable and unsupported by evidence

CRIMINAL LAW - Crown appeal against sentence - armed robbery with an offensive weapon - whether undue weight given to subjective features and insufficient weight to objective seriousness - whether appropriate in exceptional circumstances to impose a non-custodial sentence - whether circumstances were exceptional - young offender - no prior convictions - good prospects of rehabilitation

CRIMINAL LAW - appeal against sentence - false statement with intent to hinder the investigation of the person responsible for serious indictable offence - whether erred, as a result of lack of assistance from counsel, in taking into account certain matters resulting in an adverse impression of the applicant's credibility - whether erred by sentencing on basis of facts which give rise to more serious offence - whether erred in not making reference to guilty plea - whether manifestly excessive

CRIMINAL LAW - sentencing - whether justifiable sense of grievance after co-offender resentenced on appeal. CRIMINAL LAW - compensation direction - co-offenders - principles applicable - Victims' Support and Rehabilitation Act 1996.

EVIDENCE – s138 of the Evidence Act 1995 (NSW) – improperly obtained evidence - whether prosecuting authority acted ‘improperly’ in procuring minors to purchase cigarettes as part of ‘compliance testing’ – extent to which common law principles of Ridgeway v the Queen survive the Evidence Act 1995 (NSW) – consideration of whether statements made in Second Reading Speech for the Public Health Act 1991 (NSW) that ‘prosecution is used by public health units and the department as a last resort’ informed the propriety of the conduct of the Department of Health for the purposes of s138

Criminal Law - Crown appeal against sentence - supply commercial quantity of cocaine - relevance of standard non-parole period after plea of guilty - whether offence is mid range of seriousness - sentence manifestly inadequate - respondent resentenced.

CRIMINAL LAW - Crown appeal against sentence - maliciously inflicting grievous bodily harm upon an infant - brain damage - injury inflicted recklessly in panic - remorse - guilty plea - periodic detention - sentence partly served - whether sentence manifestly inadequate - whether insufficient weight given to objective seriousness of offence - whether Local Court jurisidction an irrelevant consideration - whether incorrect formulation of sentence

CRIMINAL LAW - admissibility of statement by deceased victim - whether made "shortly after" the asserted fact - whether in circumstances that made it unlikely that the representations a fabrication - Evidence Act s65(2)(b). CRIMINAL LAW - summing up - self defence - whether jury sufficiently alerted as to need for Crown to exclude reasonable possibility of the appellant having acted in self defence.

EVIDENCE – s138 of the Evidence Act 1995 (NSW) – improperly obtained evidence - whether prosecuting authority acted ‘improperly’ in procuring minors to purchase cigarettes as part of ‘compliance testing’ – extent to which common law principles of Ridgeway v the Queen survive the Evidence Act 1995 (NSW) – consideration of whether statements made in Second Reading Speech for the Public Health Act 1991 (NSW) that ‘prosecution is used by public health units and the department as a last resort’ informed the propriety of the conduct of the Department of Health for the purposes of s138 – whether finding that one of the minors could have been in her early twenties affected the propriety of the conduct of the Department of Health. - COSTS – whether the Suitors’ Fund Act applies in relation to appeals from convictions for summary offences or is limited to civil proceedings.

TORT – Negligence – Consumer protection provisions s74B and s74D of Trade Practices Act – Uncertainty as to precise cause of loss not a bar to recovery where no explanation available consistent with absence of negligence – Standard of proof based on balance of probability not higher standard – Expert evidence – Fitness of purpose to be measured against what it was objectively reasonable to expect – Test satisfied and also negligence found where only two explanations each consistent only with negligence – undesirability of breaking up explanation into supposedly self-contained separate elements as if these constituted an individual explanation.

CORPORATIONS- Winding up voluntarily after administration- Meeting of creditors- Creditors informed of the possible pooling of assets and liabilities of companies in group- Failure by administrator to provide adequate information to creditors- No dissent received- Insufficient to show consent of creditors- Trial judge so decides- Court of Appeal agrees- Discussion as to power of court to allow pooling- Whether solicitors who badly advise liquidators should personally pay costs of failed application to court.

Appeal and New Trial - Error of law - Process of reasoning not exposed in reasons for decision - Justice not appearing to be done - Legal professional privilege - Evidence Act 1995 section 122 - Waiver by Counsel not taking objection in cross-examination.

EVIDENCE – s98 and s101 of the Evidence Act 1995 (NSW) – coincidence evidence – attempted importation of narcotics – possession of narcotics – whether evidence of importation admissible in relation to the count of possession and vice versa – whether two or more related events established under s98 – consideration of ‘related events’ – whether the evidence had significant probative value – whether substantial miscarriage of justice occasioned - EVIDENCE – standard of proof – whether reference in trial judge’s summing up to ‘it was likely that she knew’ undermined the standard of proof of beyond reasonable doubt

ADOPTION - change of given names - one name given by natural mother and registered after birth - second name chosen by proposed adoptive parents with knowledge and consent of natural mother - child known by both names - child baptised by both names - special reasons shown

EVIDENCE - opinion evidence - valuation of foreign land - valuation report by two persons - evidence given by only one person, being person accepted as having relevant qualifications and experience - no indication of which parts of joint report attributable to each person - opportunity given for witness to be examined as to parts of report for which he is solely responsible - no satisfactory identification of such parts - report rejected

TRUST AND TRUSTEES - Trust property - Accounting for trust assets

CONTRACTS - application by member clubs to football governing body to participate in new competition - whether "process contract" formed - CORPORATIONS - constitution of company as statutory contract - whether implied term of good faith performance and fair dealing where directors perform functions under constitution - CORPORATIONS - oppression and related conduct - whether directors performing functions under constitution acted otherwise than in good faith - whether decision such that no board acting reasonably could have made it - TRADE AND COMMERCE - statutes relating to misleading or deceptive conduct - whether football governing body engaged in trade or commerce - whether "12 teams representation" and "criteria representation" made - whether "criteria representation" misleading or deceptive - whether statement as to future matter - whether statutory injunction would be granted - whether club members to which representation was made suffered damage "by" such conduct - ESTOPPEL - whether applicant member clubs acted to their detriment on basis of "criteria representation"

CRIMNAL LAW – sentence - offence of aggravated detaining for advantage – whether the sentencing judge erred in failing to differentiate between the applicant and a co-offender who was charged under a different section of the Crimes Act, which carried a different maximum sentence – whether the sentencing judge erred in imposing a sentence above the middle range when the sentencing judge found the offence to be in the middle range of seriousness – whether in all the circumstances the sentence is manifestly excessive – parity

CORPORATIONS – application to set aside examination summonses made pursuant to s596B of the Corporations Act - whether summonses satisfied the jurisdictional requirements of s596B – whether claimants ‘may be able to give information about the examinable affairs of the corporation’ - meaning of ‘examinable affairs’ – whether s596B operates so as to exclude client legal privilege – client legal privilege under the Evidence Act 1995 (NSW) – whether significant number of communications the subject of the summonses and orders for production were likely to be privileged – whether summonses were oppressive or otherwise an abuse of process - PRIVILEGE – consideration of sections 117 and 118 the Evidence Act 1995 (NSW) – whether Evidence Act 1995 (NSW) or Evidence Act 1995 Act (Cth) applies – whether Corporations Act excludes operation of Evidence Act –whether client legal privilege provides an immunity from answering questions under s596B of the Corporations Act – whether an examination is a ‘proceeding’ for the purposes of the Evidence Act – whether the reports the subject of a possible claim for privilege obtained by solicitor acting on instructions of client – consideration of use of solicitors to obtain reports as a mere ‘stratagem’ or ‘sham’ – whether claimants agents of the client or agents of its solicitors – consideration of the definitions of ‘agent’, ‘client’ and ‘lawyer’ in s117 of the Evidence Act and under common law - PROCEDURE – order for production under Part 36 rule 12 of the Supreme Court Rules – whether privilege attaches to documents the subject of the order – consideration of Part 36 rule 13 - whether significant number of communications the subject of the orders for production were likely to be privileged – whether orders were oppressive or otherwise an abuse of process

EMPLOYER & EMPLOYEE – 2001 Act curtailed common law rights of workers retrospectively – transitional provisions – existing actions quarantined – effect on action commenced after amendments - STATUTE – transitional provisions – retrospective legislation – existing actions quarantined – effect - D

NEGLIGENCE - employee injured his back when he emptied water from wheelbarrow - whether employer breached its duty of care to provide a safe system of work - proceedings involved two causes of action - cumulative effect of strenuous effort over a period of weeks and failure to train employee in proper use of wheelbarrow - employer failed to consider reasonable steps which could have been taken to remove or minimise forseeable risks of injury - whether retrial should be refused on the basis that even if total claim divided equally between the two causes of action, the appellant would not reach the threshold in s151G(4) of the Workers Compensation Act 1987 (NSW) or that neither cause of action caused injury greater than 17% of a most extreme case.

Torts - vicarious liability - contributions between tort-feasors, both of whom are vicariously liable.

DAMAGES – application for leave to appeal against an order for interim payment made pursuant to s82(1) of the Civil Procedure Act 2005 (NSW) – whether claimant had been denied procedural fairness in that it had not had an opportunity to present full submissions as to why an order should not be made under s82 – whether the case falls within any of the three paragraphs of subs 82(3) of the Civil Procedure Act – the term “judgment” in paragraph (b) of subs 82(3) construed – the interaction of s82 of the Civil Procedure Act and s151B(1)(b) of the Workers Compensation Act 1987 (NSW), now repealed – whether an order that the appellant is not entitled to recover workers compensation payments out of the money ordered to be paid is contrary to the appellant’s statutory entitlement to recovery under s151B(1)(b) – whether the failure to take into account the compensation payment rendered the separate contributions of the two defendants disproportionate, and therefore contrary to the requirements of s82(5) and (6).

Damages – - assault and trespass committed by police officers - exemplary damages – aggravated damages - whether award of exemplary damages and/or aggravated damages against the State appropriate – whether award precluded by s21 of Civil Liability Act (2002) (NSW) – whether s3B(1)(a) operates to exclude the application of the Act – whether the proceedings were with respect to ‘an intentional act done with intent to cause injury’ - consideration of principle of coherence

CONTRACT – whether State validly terminated contract with first Plaintiff – whether purported termination applied correct legal test – whether director of first Plaintiff responsible because of acts or omissions for refusal of tender to related company – whether related company actually refused tender – no question of principle.

EQUITY [343]- Interlocutory injunction- Freezing of proceeds of sale- Injunction dissolved- Undertaking as to damages- Assessment of- Lost interest allowed whether or not claimant would have invested money- Extra damages may be awarded where other party has knowledge of claimant's circumstances and extra expenses are incurred as a result of deprivation of funds- Whether account may be taken of gain to other party at claimant's expense in addition to loss suffered by claimant.

CONTRACTS [120]- Deed of release- Construction- Negative stipulation- Defendant not to object to plaintiff's mining application- Submission of plan necessary precondition to grant of application- Whether objection to plan also objection to application. EQUITY [328]- Mandatory injunction- Defendant made negative submissions concerning preliminary application- Possible breach of contract- Third parties also made submissions- Injunction sought for withdrawal of submissions- Whether injunction futile. WORDS & PHRASES- "Object".

CORPORATIONS - managed investments - stapled securities - proposal to further staple one stapled security to another stapled security - procedure - whether Gambotto principle relevant - TRUSTS - judicial advice to trustees - managed investment scheme - unit in unit trust stapled to company share - proposal to call meetings of unit holders to consider further stapling of stapled security to another stapled security - advice concerning calling of meetings of unit holders, and powers of amendment of trust deeds

PROCEDURE - Costs - Reasonable expenses or losses of a non-parties in consequence of service of subpoenas - Supreme Court Rules 1970, Pt 37 r 9 - Whether it applied or the Uniform Civil Procedure Rules 2005 applied - Reference to expert - Whether report should be rejected for reliance upon cost summaries when source documents not in evidence - Legal costs of all applicants discharged by one - Whether others excluded from recovery of costs - Joint answer to subpoenas by two persons - Whether both excluded from recovery of costs - Whether costs of unsuccessful application to set aside subpoenas recoverable - Whether costs of compliance with court order that defendants provide a list of documents for which privilege claimed recoverable by applicants - Whether costs of identifying searching for and collating documents claimed to be privileged recoverable - Whether recovery of those costs should be deferred until claims for privilege made

Conveyancing - Mortgages - Unconscionable conduct - Effect of mortgagee's unconscionable conduct

REAL PROPERTY - Application to extend caveat - Insufficient grounds for dispensing with service otherwise required by s 74K of the Real Property Act - Order under s 74O permitting a caveat on identical terms to be lodged on condition that it be withdrawn on the return date unless the court orders otherwise.

CRIMINAL LAW - Appeal - Adequacy of directions concerning identification evidence.

TORT - Negligence - accident - Meaning of injury - Injury to plaintiff's hand when starter motor activated to test if plaintiff had fixed a problem - Whether injury a result of and caused during the driving of the vehicle or a collision with the vehicle - INSURANCE - Whether owner's liability covered by a public risk insurance policy.

SUCCESSION - no provision made in estate of deceased for first wife - fraud established on part of deceased at time of property settlement in divorce proceedings with first wife - deceased marrying again - relevance of fraud - SUCCESSION - no provision made in estate of deceased for daughter - Singer v Berghouse two stage approach applied - consideration of 'the totality of the relationship' in determination of 'jurisdictional question' - relevance of concepts 'moral duty' and 'moral claims' in determining the 'jurisdictional question ' - effect of estrangement between parent and child - parent's lack of generosity in providing financial support to child - Gorton v Parks affirmed. - EVIDENCE - standard of proof in civil case where fraud sought to be inferred from circumstantial evidence - Bradshaw v McEwans applied - approach in civil case in the determination as to whether circumstantial evidence leads to the inference of fraud. D

LIMITATION OF ACTIONS – Extension of limitation period – Motor accident claim – Leave sought to commence out of time – Delay as a result of failure to obtain legal advice – Where plaintiff brought workers compensation claim in relation to accident – Where plaintiff unaware of entitlement to bring separate claim for damages – Where plaintiff worked in legal environment – Whether “full and satisfactory explanation” for delay provided – Whether reasonable person in plaintiff’s position would have been justified in experiencing same delay – Prejudice to defendant by reason of delay – Motor Accidents Act 1988 ss 40(2), 52(4) - APPEALS – Appealable error – Judge’s duty to provide reasons – Appeal from discretionary decision

TRADE PRACTICES - Misleading, deceptive and unconscionable conduct - Primary judge not satisfied that alleged representations made, or that, if made, they were relied on - Whether errors or deficiency of reasons shown

BAILMENTS - goods of a particular kind purchased and stored for investors - appropriation of particular items to particular investors not able to be demonstrated - how title to goods of that kind held - dealing with fractional entitlements to an item of goods of that description - SALE OF GOODS - passing of property and risk - goods of a particular kind purchased and stored for investors - appropriation of particular items to particular investors not able to be demonstrated - how title to goods of that kind held - dealing with fractional entitlements to an item of goods of that description - RECEIVERS - court-appointed receivers - entitlement to lien - approval of fees - CORPORATIONS - winding up - authorising liquidator to dispense with proof of debts

Workers Compensation - appeal against medical panel - whether decision involved jurisdictional error and was beyond power.

Negligence - damages - remoteness of damage - foreseeable loss - loss of profits - loss of goodwill

PROCEDURE - miscellaneous procedural matters - compromise - proposed consent orders inconsistent with judgment on separate question already determined - alternative orders made consistent with intent of parties and with prior judgment.