Cases and authorities

Appeal decision of CTTT - procedural fairness - adjournment - error of law

CORPORATIONS - statutory derivative action - shareholder seeks leave to commence proceeding on behalf of company - application by potential defendant in proposed proceeding to be made party to leave application - whether potential defendant has sufficient interest in leave application

Criminal law - sentencing - malicious wounding in company - assessment of discount for plea of guilty in light of strong Crown case

CONTRACTS - PRINCIPAL AND AGENT - Actual authority - Ostensible authority - Estoppel - Agent entrusted with document signed by principal - Other party relies on copy of that document - Whether relevant representation of authority made or permitted by principal.

NEGLIGENCE - Duty of care - Unincorporated association. - NEGLIGENCE - Duty of care - Volunteers - A person who seeks the services of a volunteer may be liable in negligence. - NEGLIGENCE - Duty of care - Breach - Necessity for evidence - there is no breach of duty where there is no evidence that the fault in the building which resulted in the appellant falling would have been detected through a building inspection - There is no breach of duty where there is no evidence that a person with appropriate supervisory skills would have directed the appellant not to climb the roof. - UNINCORPORATED ASSOCIATION - No duty of care owed by one member of an unincorporated association to another if that is the only relationship between them - Membership of the association's committee is not sufficient to displace this principle - Any duty of care must be established on ordinary principles of negligence in the particular circumstances.

Negligence - car accident - credibility of appellant's version of accident - whether physical evidence inconsistent - contradictory witness testimony - no appealable error demonstrated. (D)

TORT - Negligence - Slip on floor in hall - Claim against occupier fails - Whether error by trial judge

Jurisdiction exercised in the Motor Vehicles Division of the Tribunal - definition of "new motor vehicle" - "wheels" - a boat is not a motor vehicle.

CRIMINAL LAW AND PROCEDURE - Commonwealth prisoner - trial transfer order - autrefois convict - double jeopardy - abuse of process - WORDS AND PHRASES - to stand trial

CORPORATIONS - pre-registration contract - company sues for breach of contract ostensibly made on its behalf before registration - whether statutory conditions necessary to cause contract to be binding upon and for benefit of subsequently registered company were satisfied - time limit agreed by parties to pre-registration contract for registration of company and ratification of contract by it - whether time limit originally agreed extended by subsequent agreement - relevant concepts of ratification discussed - PROCEDURE - whether admission - whether court should decline to act on admission - WORDS AND PHRASES - "the date hereof"

On cross-examination relating to credit

EVIDENCE [76] - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - Particular cases - Employed legal advisers - Employees of Crown - Documents created by person having both legal and executive or administrative functions.

Negligence- Occupier- Duty of small recreational club with licence to use public land to public entrants.

SUCCESSION - probate - informal wills - testamentary intention - application for letters of administration with document annexed pursuant to s18A Wills Probate and Administration Act 1898 - informal document handwritten and signed by the deceased - document found under paper lining in cupboard - where evidence of conversations between deceased and beneficiaries prior to death supports intention of deceased that the document constituted her will - evidence of deceased's statement that she did not have a will, and intended to make a formal will at some future time insufficient to show that document was not intended by deceased to operate as her will. - SUCCESSION - probate - informal wills - amendments - where deceased made notes and alterations from time to time regarding amounts due and owing, including gifts made to her children prior to her death - effect of these amendments upon the main document. -

Agreement to lease - Whether a binding agreement existed between the parties - Whether parties intended to be immediately bound by initialling the document - Essential terms - Failure to specify a commencement date for the lease . - Agency - Agreement not initialled by second defendant - Whether first defendant purported to enter into agreement on behalf of wife (second defendant) - Whether first defendant had authority to contract on behalf of wife.

Application for permanent stay of criminal proceedings - Corporations Act 2001 - prior civil penalty proceedings - whether abuse of process - whether double jeopardy - scope and validity of s1317P.

CRIMINAL LAW AND PROCEDURE - SENTENCE - ALLEGEDLY EXCESSIVE - PARTIAL ACCUMULATION - FINDING AND APPLICATION OF SPECIAL CIRCUMSTANCES - NO CAUSE FOR INTERVENTION - NO PARTICULAR POINT OF PRINCIPLE

APPLICATION FOR REINSTATEMENT - s601AH(2) Corporations Act 2001 - reinstatement sought for purpose of serving notice for reimbursement under s145 Workers Compensation Act 1987 in order to recover from culpable director - whether person aggrieved - whether in public interest - whether discretion to refuse application on grounds of delay by WorkCover

SUCCESSION - Wills, Probate and Administration - Construction and effect of testimentary dispositions - Whether a trust engrafted on an absolute gift of residue - Whether the later provision was void for uncertainity or as infringing the rule against perpetuities - Whether the rule in Lassence v Tierney applied - Whether the later provision was a condition precedent or subsequent - Whether the later provision delayed vesting in interest or vesting in possession - Whether the gift of residue was a class gift - Whether the class closed on the death of the testator or at a later time

Appeal - cross appeal - Local Court - adequacy of reasons, foreseeability

PROCEDURE - access to content of court file - application by journalist for access - need to strike balance among competing public interests

Defamation - principal imputation of dishonesty in a journalist - defence of justification - contextual truth - comment of servant or agent of defendant - comment of a stranger

Ex parte assesment - alleged non service of formal order for costs - alleged non service of application - who has to serve unlodged and lodged application - costs assessor and substituted service - need to show utility - alleged nullity and validity of what is taken to be a judgment of the court.

Application for a revocation of the restraining order in respect to some jewellery that was captured by the restraining order issued in July 2003. The applicant, the wife of Mr Dante Tan, is not a defendant in the substantive proceedings, and moves upon a notice of motion seeking to revoke the restraining order and also seek certain consequential orders for damages and costs, however, the only issue before the Court presently is the partial revocation with respect to jewellery which is said to have been lawfully acquired by Mrs Tan. It is not a revisiting of the general application for revocation but a highly qualified, specified deletion from the otherwise general order which would continue to have force and effect if the present application is granted.

EVIDENCE - Evidence Act 1995 (NSW) - hearsay - business records exception - whether documents admissible as business records under s 69 - where author of document had personal knowledge of some, but not all, of the matters set out in document - s 69(2) - whether representations made by person who had knowwledge of facts asserted in representation, or on basis of information directly or indirectly supplied by such a person - construction of "or might reasonably be supposed to have had personal knowledge" in s 69(2) - s 69(3) - whether representations prepared for purpose of, or in contemplation of, or connection with, Australian proceeding - whether sub s (3) an exception to the operation of subs (2) or further condition of admissibility - whether s 69(3) applicable

Damages. - Assessment. - Common Law damages for loss of bargain. - Measure of such damages. - Whether Plaintiffs should be required to pursue uncertain litigation against the First Defendant. - Whether, in any event, First Defendant could meet any verdict which Plaintiffs might obtain in such litigation.

Criminal law - sentencing - manslaughter by unlawful and dangerous act.

Application by defendant, John Fairfax Publications Pty Ltd, to strike out imputations that the plaintiff, Jim Byrnes, says arise from 3 articles published in the Sydney Morning Herald in August of 2004 - That the Judge's role is a very limited one at this early stage of the proceedings, namely to determine the question as to whether the publication is reasonably capable of carrying the imputation pleaded by the plaintiff and, as an ancillary matter, whether the pleadings are overlapping in the sense as to whether they contain matters which could be characterised as a "rhetorical flourish" and are therefore inappropriate to go forward to the jury

LANDLORD AND TENANT - assignment, severance and underlease - lessee pursuant to registered lease agrees to assign, with consent of landlord, to third party - transfer of lease never registered - whether landlord bound to treat third party as lessee - payment of rent by third party to landlord - whether landlord and tenant estopped from denying that tenancy exists in terms of the lease - circumstances in which tenancy by estoppel comes to an end - principle in Walsh v Lonsdale (1882) 21 Ch D 9 creates no equities against persons not party to the agreement - TRADE PRACTICES AND RELATED MATTERS - misleading and deceptive conduct - no question of principle - EQUITY - alleged unconscionable conduct by landlord in circumstances of obtaining possession of tenanted property - no question of principle

DEFAMATION -- Mitigation of damage -- Evidence of bad reputation -- Ability to rely on post-publication evidence -- Importance of maintaining trial date

PROCEDURE [93] - Summary disposal - No basis for proceedings - Plaintiff who claims to own property does not.

ASSOCIATIONS AND CLUBS [9] - General matters - Other matters - Registered clubs - Allegation about any corrupt or other improper conduct in relation to a registered Club - Inquiry arranged under s 41X of the Registered Clubs Act 1976 by the Director of Liquor and Gaming - Whether inquiry may make finding in terms of corrupt or other improper conduct - Whether Director may determine as a matter that is to be the subject of an inquiry whether or not there has been corrupt or improper conduct by any person - Form of orders.

Criminal law - sentencing - murder - life sentence redetermination - prisoner murdered his wife

ADMINISTRATIVE LAW - Prerogative Writs and Orders - Whether defendant Council should be ordered to fulfil a duty under the Supreme Court Act 1970, s 65 - Council acquiring land by compulsory acquisition under the Land Acquisition (Just Terms Compensation) Act 1991 - Valuer-General determining amount of compensation to be offered in an amount inclusive of GST - Plaintiff accepting the amount - Council withholding an amount as GST payable to Commissioner of Taxation - Commissioner ruling no taxable supply involved - Whether a defensive claim of unjust enrichment open to the Council - Whether Council entitled to declaratory relief under the Supreme Court Act 1970, s 75 that plaintiff obliged to issue a tax invoice - Commissioner not a party to the proceedings

CRIMINAL LAW -- Proper construction of words "in accordance with their tenor" in s4(1) of the Commonwealth Places (Application of Laws) Act -- Relationship between s 12 Interpretation Act and s527C Crimes Act -- Whether s527C of Crimes Act requires stealing or unlawful obtaining to occur in NSW

CRIMINAL LAW AND PROCEDURE - SENTENCE - PRINCIPALS OF HIGHLY ORGANIZED DRUG DISTRIBUTION IN SYDNEY SUBURBAN AREA - LEVEL OF CRIMINALITY - OFFENDER RECEIVING LONGER SENTENCE ON PAROLE AT THE TIME OF OFFENDING - UTILITY OF STATISTICS AND CASES SUBMITTED FOR COMPARISON - STERN SENTENCE WARRANTED - NO ERROR IN ASSESSMENT BY PRIMARY JUDGE

Failure to identify co-offenders - relevance to contrition and rehabilitation, appropriateness of questions by sentencing judge.

COSTS - offer of compromise - s148B(1)(c) District Court Act 1973

CRIMINAL LAW: Sentence - murder - plea of guilty - stabbing in anger - some provocation, but significant lapse of time between provocative conduct and killing.

EVIDENCE - admissibility of evidence in cross-examination - documents allegedly obtained improperly and in contravention of Crimes Act 1914 (Cth) - whether, for purposes of ss 135 and 138 of Evidence Act 1995 (NSW), question about plaintiff's state of knowledge up to three years after evidence was obtained is relevant and should be allowed - discretionary considerations

EVIDENCE - facts excluded from proof - Evidence Act 1995 section 122(1) - evidence given with consent - Evidence Act 1995 section 122(2) - Evidence Act 1995 section 122(4) - disclosure of substance of evidence

Admissibility of Accounting evidence - Relevance - prejudice - s 137 Evidence Act

On plaintiff's application to strike out particulars

Family Law. - De facto relationship. - Same sex relationship. - Duration of relationship. - Date of termination of relationship. - Whether statutory amendments recognising same sex relationships have application to relationship between the parties. - Proceedings instituted more than two years after termination of relationship. - Discretion of the Court to allow proceedings to be instituted after the expiry of the two year limitation period. - Alleged resulting trust and alleged constructive trust. - Interlocutory application by Plaintiff to preserve the status quo. - Whether there is a serious issue to be tried. - Balance of convenience.

CRIMINAL LAW - Circumstances in which identity of juror may be disclosed - Proper interpretation of s68 of Jury Act - Whether word "person" includes a court - Whether circumstances listed in s68 are exhaustive - Disclosure permitted where necessary to establish whether or not there has been a significant miscarriage of justice

CRIMINAL LAW -- Sale of unauthorised firearms to undercover police officer -- appeal against sentence -- objective of general and personal deterrence entitled to substantial weight when sentencing for firearms offences which pose major threat to the community

Review of Registrar's decision - whether appeal incompetent - whether relevant decision was interlocutory - appeal from decision rejecting appeal to Supreme Court from Consumer, Trader & Tenancy Tribunal rejecting pleading amendment - whether appeal concerns a value of $100,000 or more - practice when competency challenged and appellant wishes to seek leave in the alternative. (D)

Appeal - special defences not expressly rejected - rejected by implication - no error in point of law justifying a disturbing of the decision of the Local Court.