Cases and authorities

LEGAL PRACTITIONERS - costs - question of whether charge over property to secure solicitor's costs was not enforceable if solicitor had failed to make disclosure required by section 175 Legal Profession Act 1987 not convenient to decide on interlocutory application

[ADMINISTRATIVE LAW]: Whether jurisdictional error by adjudicator justifying the quashing of the adjudicator's determination - - [STATUTE]: Whether circumstances in which a determination is quashed is a circumstance that fits within s. 26(1)(b) of the Building & Construction Industry Security of Payment Act 1999 allowing the withdrawal of the adjudication application - Whether events which occurred after quashing of first determination precluded the further adjudication application

Corporations - Officers and employees - Duties and powers - Duty of care and diligence - Consent orders - Responsibilities of Chairman discussed - s 1317E requirements for specificity discussed - s 1317F discussed - Period of disqualification - Factors to consider for non-executive chairman.

CONVEYANCING - Relationship of Vendor and Purchaser - Matters Arising between Contract and Conveyance - Whether condition was inserted for the sole benefit of the purchaser - Whether the purchaser was entitled to waive its rights under the condition

Appeal decision of CTTT - breach of tenancy agreement - pot plants

Cross-claim heard as separate issue - Claim to enforce alleged oral agreement for transfer of shares after death of shareholder - Issues of credit - No question of principle.

Application to revoke a restraining order pursuant to s42 of the Proceeds of Crime Act 2002 (Cth) - Whether pre-existing order for the restraint may be revoked pursuant to s42(5) of the Proceeds of Crime Act 2002 (Cth)

TORT - Negligence - Plaintiff injured when car washed off causeway - Whether Council negligent in signage of causeway

CORPORATIONS - management and administration - director's access to corporate books and records - manner of exercise when allegations of violence against director - PROCEDURE - Supreme Court procedure - inherent jurisdiction to stay proceedings and orders in inferior court - inherent jurisdiction to prevent abuse of its own process - CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - apprehended violence order made by Local Court - power of Supreme Court to stay

CONTRACTS - General Contractual Principles - Offer and Acceptance - Terms of settlement of District Court action - Agreed variation - Whether terms of variation as deposed by plaintiff or defendant - No principles involved

Application for summary dismissal of claims for declaratory relief - Unconditional or on-demand bank guarantee - Construction of guarantee - Principle of autonomy - Whether vendors' entitlement to payment under guarantee affected by underlying contract for sale and purchase of land - Whether any exception to privity of contract doctrine - Whether payment to vendors would be an unjust enrichment - Whether relief available under s 55(2A) Conveyancing Act 1919 (NSW)

Claim in the nature of an allegation of professional negligence against a solicitor, who formerly acted for the plaintiff - Interlocutory judgment - Seeking to amend the Statement of Claim

Appeal from decision of CTTT - alleged non-receipt of notice of hearing - denial of procedural fairness

CATCHWORDS - Criminal Procedure Act 1986, s 294A - Criminal Procedure Amendment (Sexual Offence Evidence) Act 2003 - Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 - gang rape - sexual assault in company - appeal against conviction - self-represented defendants - self-represented defendants prohibited from personally cross-examining complainant - whether parliament can validly limit common law right to cross-examine - whether provision discriminatory - whether provision caused trial to be unfair and miscarry - whether s 294A constitutionally invalid for vesting functions in Supreme Court that are incompatible with the exercise of federal judicial power. (D)

TORT - Duty of care - Where plaintiff tripped on slightly raised paver - Where paver was in a footpath in a private area owned by the Council - Whether trippng hazard - Whether it was unreasonable of the Council to have left the footpath as it was - Obligation of pedestrians to take care for their own safety - Whether any relevant difference between this and an ordinary public footpath. D

CORPORATIONS - winding up - company already in administration - whether winding up proceedings to be adjourned - different operation of rules for recovery of preferential or other voidable payments under Deed of Company Arrangement and in liquidation - significance of recovery of preferential or other voidable payments for unsecured creditors - whether date from which preferences for other uncommercial transactions could be recovered will alter if adjournment is granted

CRIMINAL LAW: Application for leave to appeal against sentence - ongoing supply of cocaine and other charges - disparity from sentence of co-offender

CRIMINAL PRACTICE & PROCEDURE - Crown appeals - sentence for robbery in circumstances of aggravation - whether manifestly inadequate - discretion not to intervene - delay in sentencing and on appeal.

CRIMINAL LAW AND PROCEDURE - JOINT TRIAL OF OFFENDERS' - INDICTMENT - JOINT AND SEVERAL CONSTRUCTION - INADMISSIBLE STATEMENTS BY CO-ACCUSED NOT RENDERED ADMISSIBLE AT BEHEST OF OTHER ACCUSED - CROSS EXAMINATION OF COMPLAINANT WHERE SEXUAL OFFENCES ALLEGED - SCOPE OF "SEXUAL REPUTATION" - FACTS SUFFICIENT TO SUPPORT AGGRAVATED OFFENCES BY BEING "IN COMPANY" - INCONSEQUENTIAL SLIPS OF LANGUAGE IN CHARGE TO JURY - JUDGE'S FINDINGS OF FACT FOR PURPOSE OF SENTENCE NOT NECESSARILY IDENTICAL TO JURY FINDINGS LEADING TO GUILT - COMMENT BY CROWN PROSECUTOR ON FAILURE OF ACCUSED TO GIVE EVIDENCE OTHER ACCUSED HAVING DONE SO - WHETHER DEMONSTRATING MISCARRIAGE - SENTENCE - STRUCTURE RESULTING IN EXTREMELY LONG POTENTIAL PERIODS OF PAROLE - RESENTENCE APPROPRIATE

CRIMINAL LAW AND PROCEDURE - SENTENCE - DETENTION OF FAMILY MEMBER PERCEIVED TO BE FAILING PARENTAL DUTY TO SMALL CHILD - MISGUIDED MOTIVES - CULTURAL MORES ENFORCEABLE ONLY WITHIN LEGAL BOUNDARIES - SENTENCE SHOULD REFLECT GENERAL DETERRENCE - NEED FOR PERSONAL DETERRENCE NOT GREAT IN UNUSUAL CIRCUMSTANCES - NO PRACTICAL ATTEMPT TO DETAIN ONCE COMPLAINANT RETURNED TO TOWN OF HER CHILD'S PRESENCE - LOW LEVEL OF ACTUAL HARM - OFFENDER PARTICIPATES IN SUMMONING POLICE

Criminal Practice and Procedure - Sentencing - Crown appeal following conviction on two counts of dangerous driving causing death - application of R Whyte - relevance of the number of deaths - Crown appeal allowed and the respondent re-sentenced.

DUTY OF CARE - jogger fell and sustained injury on cycleway - duty to take reasonable care for own safety - whether Ghantous distinguishable - relevance of expert evidence - whether costs should follow the event

ASSESSMENT OF DAMAGES - injury to ankle - effect on employment and ability to play sport - whether damages awarded for non-economic loss, future economic loss, future domestic assistance and loss of future superannuation were manifestly excessive - meaning of 'most extreme case'.

Decision with respect to a matter of law - jurisdiction - lack of reasons - statutory duties - denial of procedural fairness and error of law.

Abuse of process - excessive delay preventing fair trial - permanent stay.

CRIMINAL LAW - murder - significant but not substantial impairment through abnormality of mind - shooting after childhood sexual assault - extra-curial punishment

EVIDENCE - facts excluded from proof - section 131 Evidence Act 1995 - whether it applies only to a dispute between parties to the present litigation - whether it continues to apply once the dispute has been resolved - EVIDENCE - client legal privilege - no question of principle - PRACTICE - subpoenas and notices to produce - masking parts of documents - construction - relevance

Extension of limitation period - pure mental harm - statutory prohibition to recovery of damages - plaintiff must have witnessed victim at the scene being killed, injured or put in peril - meaning of statutory terminology - delay and explanation for delay - conscious decision not to sue - prejudice and fair trial unlikely.

Criminal law - murder - intent to inflict grievous bodily harm - plea of guilty and other favourable subjective features

Interlocutory decision on jurisdiction - defence filed and matter ready for hearing - extension of time and leave.

Appeal - denial of procedural fairness - no question of principle.

Practice and Procedure - Part 72 reference - Application to adopt Referee's Report - Application to set aside sections of the Report - Principles applicable

Point of law appeal - adequacy of reasons.

LEASES AND TENANCIES - Premises - Outdoor area - Licensed under specific deed - Whether part of retail shop lease - Approval under s 125 Roads Act - Whether subject to Retail Leases Act - s 125 Roads Act - STATUTES - Interpretation - Generalia specialibus non derogrant - s 125 Roads Act 1993 - Retail Leases Act

PRACTICE & PROCEDURE - Part 72 r 13 Supreme Court Rules - reference -where claim for damages referred to referee for inquiry and report - where plaintiffs move for adoption, and defendant for rejection, of referee's report - obligation of referee to give reasons - where no evidence on particular point before referee - whether referee entitled to use his or her own experience as substitute for evidence - where conflict between expert evidence before referee - whether referee required to discuss speculative theories in report - onus of proof - delay of referee in reporting - COSTS - whether proceedings should have been commenced in District Court - s 134(1)(h) District Court Act 1973 - whether s 134(1)(h) enables District Court to grant injunctive relief - ss 44(1), 46(1), 140 District Court Act - power of District Court to grant injunctive relief - SCR Pt 52A r 33 - where neither party sought to transfer proceedings to the District Court - where there would be no difference in costs incurred as between Supreme Court and District Court - indemnity costs - whether plaintiffs entitled to indemnity costs - Calderbank letters - where failure of defendant to accept offer of compromise in Calderbank letters - where terms of settlement offer reasonable - where time for acceptance of settlement offer very short - whether unreasonable of defendant not to accept offer - where offer included no reference to the likely amount of the plaintiffs' costs - where offer made when plaintiffs amending reply to defence

Appeal from Tribunal - claim dismissed for want of prosecution - non-appearance by plaintiff - denial of procedural fairness and error concerning a question with respect to a matter of law.

DAMAGES - Loss of earning capacity - domestic assistance - exemplary damages.

CRIMINAL LAW AND PROCEDURE - SENTENCE - POSSESSION OF PROHIBITED WEAPONS (SUB MACHINE GUN AND HANDCUFFS) - MALICIOUS DAMAGE TO PROPERTY - APPELLANT IN DRUG INDUCED PSYCHOSIS - WOUNDED BY POLICE IN COURSE OF ARREST - RELEVANCE OF EXTRA CURIAL PUNISHMENT - OTHER MATTERS OF MITIGATION FOR ASSESSMENT - NO ERROR BY SENTENCING JUDGE

Application for leave to appeal against severity of sentence - Aggravated armed robbery - Early plea of guilty - Assistance to the authorities in order to secure the charges and convictions against co-offenders - Sentence imposed did not reflect discount for assistance to authorities.

Criminal law - armed robbery in company - theft of handguns - whether sentence manifestly excessive - whether justifiable grievance in relation to sentence of co-offender.

Criminal law - importation of commercial quantity of ecstasy - s 233B(1)(d) Customs Act 1901 (Commonwealth) - whether sentence inadequate.

MOTOR VEHICLE COLLISION - point of impact - assessment of evidence as to which vehicle crossed the centre line - whether trial Judge relied on evidence of tendency as to the appellant's character as a driver - whether evidence simply went to credibility as a witness - contributory negligence

EVIDENCE - essential tasks of a judge - acceptance and rejection of evidence - making of findings on evidence - tasks must be carried out even where evidence given by a party is not wholly consistent - EVIDENCE - drawing a Jones v Dunkel inference does not solve any insufficiency in the evidence of the opposing party - EXPERT EVIDENCE - Evidence Act 1995 (NSW), s.79 - person put forward as expert must have experience specifically relevant to the issue about which they give evidence

TORTS- Negligence- Res ipsa loquitur type inferences- Action against Nominal Defendant- Whether inference might be drawn that piece of metal on road fell from unidentified motor vehicle as a result of the fault of the operator.

Succession - Family Provision - Claim by adult daughter - Relatively large estate - Plaintiff and her five children share estate - Financial and material circumstances of Plaintiff - Competing claims of other beneficiaries - Whether Plaintiff has been left without adequate provision for her proper maintenance - Plaintiff seeks provision by way of a house.

Crime - Confiscation of Profits of Crime - Whether the defendants whose property has been forfeited to the Commonwealth under s30 of the Proceeds of Crime Act 1987 (Cth) have "an interest" in the property - Whether the defendants are subject to s31 of the Proceeds of Crime Act 1987 (Cth) for certain ameliorative measures under the Act - Construction of Commonwealth legislation conferring wide powers to confiscate the "proceeds of crime" - Public interest

CORPORATIONS - corporate finance - amendment of particulars of charge - appropriate form of order

PROCEDURE - Contempt, attachment and sequestration - Whether undertakings referring to a definition in a shareholder's agreement were too vague and imprecise to be enforced - Whether the undertakings should be construed in terms of a provision in the shareholder's agreement on which they were based - Whether counsel's opening that the undertakings were, relevantly, the same as the provision in the shareholder's agreement debarred the Court from considering any other case - Whether an inaccurate description of a business in the shareholder's agreement should be struck out under the falsa demonstratio non nocet maxim - Whether a presumption of continutiy of actions taken before the giving of the undertakings should be drawn - Whether inferences should be drawn from telephone calls charged to the mobile account of a defendant and emails sent and received at his email address that they were made or received by him - Whether the charges were proved beyond a reasonable doubt