Cases and authorities

DEFAMATION - whether jury should have been discharged at close of plaintiff's counsel's address - whether jury misled by counsel as to defendant's intentions and truth or falsity of assertions - whether jury answers unanimous - whether the trial Judge should have questioned the foreperson - whether miscarriage of justice justice

COSTS of appeal

PROFESSIONAL NEGLIGENCE – solicitor- acted for developer and homeowners in complex development agreement providing for demolition of 2 houses, construction of 5 units, sale of 3 units, homeowners to receive 1 unit + $100,000 each and developer to pay expenses and keep proceeds – decisions on construction of development agreement as to holding and applying parts of purchase prices received in advance of settlement- decisions on duty of care owed by solicitor to homeowners in dealings between them and his other client the developer- solicitor held liable to indemnify homeowners against liability for damages they incurred to purchaser of one unit when sale could not be completed as developer misapplied proceeds of sale- decision on complex special facts and construction of agreement.

NEGLIGENCE - fire at Conference Centre - owner seeks help from visitors - duty of care to visitors in case of emergency - request for help - whether reasonably forseeable that visitors will seek to help control fire - whether forseeable that appellant might suffer injury - failure to implement emergency plan - whether breach of duty. (ND)

CRIMINAL LAW - Crown appeal - grant of bail by District Court - conviction for sexual intercourse with child under ten years - whether s 9D of Bail Act applied correctly - whether appropriate regard given to fact that there was no presumption in favour of bail - appeal allowed.

NERVOUS SHOCK - mother and sister killed in car accident - when not present at scene of accident or aftermath - proximity test - Tame v New South Wales, Gifford v Strang Patrick Stevedoring - whether incorrect test for causation applied - whether caused or materially contributed to recognised psychiatric illness - costs of cross-appeal

Indemnity certificate in respect of appeal - Suitors' Fund Act 1951

INVESTMENT OF TRUST FUNDS - whether appellants liable to account to TRUSTEE IN BANKRUPTCY - whether relationship between appellant and first respondent that of debtor and creditor - whether joinder of trustee in bankruptcy necessary and proper - whether first respondent sought account between appellants and trustee in bankruptcy - whether wrongful rejection of evidence - calculation of accounts

[INSURANCE] - Whether the defendant was entitled to avoid an insurance policy issued to the plaintiff on the basis of fraudulent failure to disclose or fraudulent misrepresentation in the application / proposal for insurance.

Criminal Law - Sentencing - Self-defence - Manslaughter

PROCEDURE - application for statement of case under British Law Ascertainment Act 1859 (Imp) - no power or occasion to state case - application for direction that Attorneys General of Commonwealth, States and Territories be notified of matter arising under Commonwealth Constitution or involving its interpretation - no such matter arising from various arguments about Australian sovereignity - application for order that plaintiff's counsel no longer act - no basis for such order

Crown appeal principles - sentencing discretion - rehabilitation.

PRACTICE AND PROCEDURE - Workers Compensation - s353 limited appeal from decision of Presidential member of Workers Compensation Commission of New South Wales on point of law - whether an error in the application of s9A WCA Act in concluding that employment a substantial contributing factor - whether there was a failure to exercise the Commission's jurisdiction by remitting the matter back to the Arbitrator for determination.

Costs - Suitors' Fund Act 1951 - Chairperson of Tribunal refused to disqualify self for reasonable apprehension of bias - refused application for stay to allow refusal to be "taken to another place" - relief in the nature of prohibition granted against Tribunal continuing hearing with that Chairperson - GREAT a court for purposes of Act - relief was appeal for purposes of Act - whether Chairperson's refusal to disqualify himself a decision of a court for the purposes of the Act - whether Chairperson's refusal of a stay a decision of a court for the purposes of the Act - held no and yes - indemnity certificate issued. D

Anton Pillar relief granted by Federal Court - Cross-vesting orders made under Jurisdiction of Courts (Cross-Vesting) Act 1987 - Litigation before Supreme Court consolidated to include joint hearing of Federal Court proceedings, proceedings before Industrial Relations Commission under section 106 of Industrial Relations Act 1996-Confidential information - Intellectual Property - Fiduciary obligations of employee - Breach of copyright - Exemplary damages - Contract of employment - Employee agrees to be bound by employers code of conduct requiring employees to declare any interest they might have that could adversely affected employer - Fraudulent intent of employee - Employee determines to accept employment with competitor and to send to home computer e-mail attachments containing highly confidential information of first employer - Conflict between duty and interest exists from moment when employee forms intention to dishonestly take and use employers confidential information for his own benefit, contrary to fiduciary and contractual obligations - Further conflict of duty and interest constituted by the preferring by employee of his own interests in failing to disclose the conflict - Summary dismissal of employee - Restraint of Trade covenants - Employee proposes as soon as permitted to take up a position with major competitor - Relief - No evidence as to any pecuniary loss suffered by employer as a result of employees breach - No evidence of profit acquired by employee - Nominal damages - Restraint provision held invalid - Not possible to read down restraint period or geographic area to give restraint a reasonable operation - Court cannot redraft restraint provision

PROCEDURE - costs - application for indemnity costs - application for order that costs be assessed and payable forthwith

S.237 Corporations Act - Whether applicable to company under external administration - Costs

Appeal determination of Costs Assesor and Review Panel

RECTIFICATION - APPEAL FROM MASTER - Whether Respondents suspected Appellants had made a mistake in drafting new lease - no demonstrable error in Master's finding of fact - no question of principle involved.

Application for leave to appeal against severity of sentence - whether sentences on both counts were "manifestly excessive" - addiction - supply offences arose out of applicant's need to finance own drug use - sale of drugs to friends for relatively modest profit - not entrepreneurial or cynical drug supplier - applicant on bail at time - significant aggravating feature - whether "special circumstances" - head sentence. - non parole period.

CRIMINAL PRACTICE & PROCEDURE - appeal against sentence - error in Court taking account strength Crown case in fixing discount for plea - standard non parole period - whether Court should intervene - whether more lenient sentence warranted.

Criminal law - sentencing - accumulation of sentences - principles of totality - "special circumstances" - pre-sentence custody.

Criminal law - sentence appeal - accessory before the fact to murder - complicity in felony-murder - withdrawal from criminal enterprise not ultimately effective.

COSTS - Offer of Compromise - discretionary considerations - no special costs order warranted.

JURY TRIAL - requisition for trial with a jury served one day out of time - whether correct to dispense with jury - whether future case management and need for expedition were matters specific to case - whether incorrect estimate of length of jury trial by trial Judge - consideration of amendments to s79 District Court Act 1973

CONTRACTS [120] - General contractual principles - Construction and interpretation of contracts - Other matters - Admissibility of extrinsic evidence - Parol evidence rule - Ambiguity exception - Ambiguity of words "Truck Aligner" resolved with aid of extrinsic evidence.

CONTRACTS - BUILDING ENGINEERING AND RELATED CONTRACTS - remuneration - work required by contract completed, but no architect available to certify entitlement to retention money and bank guarantee - proprietor no longer contactable - entitlement of builder to retention money and banker's guarantee

[COMMERCIAL ARBITRATION] Application for leave to appeal from an Arbitrator's Award pursuant to s.38 of the Commercial Arbitration Act 1984 (NSW) - Whether manifest error on face of Award

Evidence - admissibility s 87(1)(b) Evidence Act - - Representations by accountant for the accused - no prejudice - s 137 Evidence Act

Construction of will - Whether the will creates merely a personal right of residence or a life estate or other estate in the land

CRIMINAL EVIDENCE - evidence given for the Crown by co-offender - co-offender had pleaded guilty - given bond conditioned on giving evidence for the Crown against accused - jury to be told of risk faced by witness if his evidence unfavourable to Crown

appeal against conviction - aggravated sexual assault - sexual intercourse without consent - prosecution duty of disclosure - cross-examination of appellant on credit - Evidence Act s104 - splitting the prosecution case - case in reply by the Crown where an accused person raises a new factual issue - Evidence Act s106

SENTENCING: Administering stupefying drug with intent to steal - s38 Crimes Act, 1900.

PROCEDURE - Whether appeal court should resolve disputed questions or order new trial.

PROCEDURE - Appeal - Issues not decided by primary judge, to some extent dependent on credibility - Whether appropriate for appeal court to decide - Relevant considerations - DAMAGES - Loss caused by breach of fiduciary duty - Equitable compensation - Loss due to realisation of risk knowingly undertaken by plaintiff and not significantly affected by the breach of duty - Whether defendant liable in whole or in part.

Join insurer - s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Contract - Sale of land - Forfeited deposit - Whether there was a revival of previous contract - Authority of licensed conveyancer to enter into a new contract for the vendor - Whether there were acts of part performance by purchaser - Claim for repayment of forfeited deposit.

COSTS - proceedings determined against plaintiff - subsequent and unsuccessful application by defendants for costs to be assessed on indemnity basis and to enforce supposed undertaking as to damages - claim by plaintiff for costs order re subsequent application - whether any separate "event" for costs purposes or merely minor aspect of overall controversy

CORPORATIONS - winding up - statutory demand - order by Master that amount of demand be reduced by certain offsetting claims - company initiates appeal on basis that certain further offsetting claims should have been recognised - whether time for compliance with statutory demand should be extended to accommodate appeal - whether company should be required to make payment into court - terms on which extension should be granted

DEFAMATION - Assessment of damages

Defamation Act 1974 s15, 22, 34. Substantial truth - public interest - qualified privilege - comment by a stranger, nominal damages.

Criminal law - Knowingly concerned in the importation of cocaine - On sentence trial judge followed sentencing parameters in Wong & Leung 108 A Crim R 53 - While that decision overruled by High Court in that respect, sentence appropriate notwithstanding.

CRIMINAL PRACTICE & PROCEDURE - appeal against sentence - error through Judge taking into account likelihood of deportation - whether another sentence warranted in law - error in non parole period - special circumstances.

LIABILITY: Motor accident - The appellant was the employer of a school teacher who was injured in a motor vehicle accident on her journey to work - whether the vehicle causing the accident was an unidentified government bus - claim for recovery sought from Nominal Defendant of workers' compensation paid by employer - whether indemnity claim against Nominal Defendant covered by s34 of the Motor Accidents Compensation Act 1999 - whether substitution of a contrary determination warranted on a matter of inference from fact.

DAMAGES - solicitor's negligence - original cause of action statute barred - action by former client against solicitors - proof of damage - no evidence of identity of putative defendants - no evidence that judgments against unidentified defendants would have been satisfied - loss not proved - ND

TORT- Whether if an injury is caused partly by the use of a motor vehicle and partly by some other negligent act, the Motor Accidents Compensation Act 1999 is applicable. Held it is.