Cases and authorities

Prohibition against Tribunal - reasonable apprehension of bias - Tribunal hearing disciplinary appeal against dismissal by Department - Chairperson's term of office to expire - appointment of replacement by application and selection process - Chairperson asks Department's representative sitting with him on the appeal about a reference from the Department - Department declines - application to Chairman to disqualify himself - application declined - HELD: reasonable apprehension of bias - order prohibiting Chairman's further participation in the hearing. D

CAUSATION - whether conclusion of causation open - inference of probable connection - expert evidence of possible cause of fire - absence of scientific theory refuting scientific theory advanced by plaintiffs - sequence of events - APPEAL - evidence - appellate review of trial judge's acceptance of expert witness - STATUTORY CONSTRUCTION - whether Dangerous Goods Regulation 1978 (NSW) created private cause of action - whether statute imposes a duty to take specific precautions or measures for the safety of others - no private cause of action where statute prescribes the end but not the means - content of statutory duty - whether absolute obligations imposed - what constitutes "practicable steps" or "practicable precautions" - BREACH - foreseeability - DAMAGES - evidence of value. (D)

TRUSTS - trustees' powers of investment - power to acquire interest in land to provide dwelling house for beneficiary to live in - power of trustees to make trust interest in land available as security for a loan, when trustees will not themselves be borrowing money - removal of trustees - conduct endangering trust property, and showing want of proper capacity to execute duties of trust - removal of bankrupt trustee - costs of application for removal of trustee - PROCEDURE - costs - costs of application for removal of trustee

Family Provision - Claim by a step-grandchild. Order for small legacy. - No matter of principle.

Denial of natural justice - role of Small Claims Division.

Corporations - s 588FF(3) considered - Whether claim for extension of time under s 588FF(3)(b) validly made - Whether claim abandoned on filing statement of claim which did not seek extension - Whether s 588FF(3)(b) precluded amendment pursuant to SCR Pt 20 - Delay in seeking to make amendments - Whether causes of action alleged in amendments statute barred - Whether extension of time for bringing fresh action under s 588FF(1) would be granted under s 588FF(3)(b) - Discretionary considerations - Absence of prejudice to defendant - Possibility of substantial hardship to plaintiffs if amendment refused - SCR Pt 20 r 4(5) considered - Meaning of "substantially the same facts" discussed - Pt 20 r 1 considered - McGee v Yeomans [1977] 1 NSWLR 273 - Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, and Clutha v Millar (No. 2) [2002] NSWSC 523 considered.

PROCEDURE [552] - Costs - Jurisdiction - Other cases - Costs of interlocutory proceedings - Payable forthwith - When court may order - Relevant circumstances.

Contract - Whether representations created binding contractual obligations - Principles - Damages - Principles

Conviction appeal - trial judge reqires Crown to call evidence - whether miscarriage - effect of delay - inadequate Longman direction

Sentence appeal - series of serious offences - history of mental disturbance - effect on sentence - effect of accumulation on utilitarian discount - need to adjust overall sentence to demonstrate discount

application for leave to appeal against severity of sentences - pleas of guilty - combination of two sets of offences and two sets of sentences - subjective circumstances - principle of totality - accumulation of sentences - special circumstances - delay in processing DNA evidence

Sentence appeal - sexual assault - mental abnormality falling short of psychiatric disease - relevance - effect on sentence

WORKERS' COMPENSATION - TORT - Security guard injured in the course of his employment - Where injury occurred because of a defective gate mechanism - Duty of occupier of the land - Duty of employer - Apportionment of fault between employer and occupier - Contributory negligence. ND

Appeal - construction of building contract - costs.

FAMILY LAW - De facto relationship - Adjustment of interests of parties in property - Respective contributions of parties - Purchase of a property - One party contributed capital, whilst the other party made higher repayments - Caution should be exercised in applying to a claim by a de facto partner under section 20 of the Property (Relationships) Act 1984 (NSW) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Cth) - The Property (Relationships) Act looks to past contributions whereas the Family Law Act looks also to present and future needs

Practice and procedure - further submissions after judgment reserved - no question of principle

Mediation of civil proceedings - party not consenting to order - compulsory order for mediation - Principles - meaning of obligation to mediate in good faith - Overriding purpose of Supreme Court Rules - Just, quick and cheap resolution of issues in civil proceedings - Consideration of advantages of mediation in terms of forcing parties to hear one anothers viewpoint

Application to allow summary evidence - Legal Professional Privilege

CRIMINAL PRACTICE & PROCEDURE - perjury - address by Crown - misleading explanation of rule in Browne v Dunn - whether rule applies in criminal trials - improper comments by Crown in address - elements of perjury - instruction on possibility of mistake - whether new trial.

COSTS - appeal succeeding on point not raised below - appellant not entitled to costs of appeal - STATUTE - construction - reference to Act - Act repealed and re-enacted with modifications - Interpretation Act 1987 - reference to Act later repealed construed as reference to Act which re-enacted repealed Act with modifications

STATUTORY CONSTRUCTION - Workers Compensation Act 1987 - Workers Compensation Legislation Further Amendment Act 2001 (No. 94) - Transitional Provisions. - STATUTORY CONSTRUCTION - Interpretation Act 1987, s.68 - Whether contrary intention.

FAMILY PROVISION - claim by adult daughter of first marriage - assets of deceased and surviving widow held jointly - widow making substantial contribution from gambling win - deceased formerly had substantial property in own right - provision to enable daughter to purchase house not justified

Application to recall reasons for Judgment - Principles

Procedure - costs. Application under Family Provision Act 1982. Plaintiff dies before hearing. Consideration of whether in this case the Court can make an order for costs. Held no power to make an order for costs.

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - trusts, equities and unregistered instruments and interests - unregistered lease and unregistered mortgage - no allegations of disentitling conduct - priorities dependent upon time of creation of equitable interests - PROCEDURE - miscellaneous procedural matters - withdrawal of admission in pleading made by mistake - when permitted - PROCEDURE - stay pending appeal - no undertaking as to damages offered - possibility of damage to third parties

Administrative Law - appeal - prerogative relief - order by Consumer, Trader & Tenancy Tribunal transferring proceedings to District Court

Criminal law - sentencing - murder

Contract - Lease of land - Mistake as to terms of the lease - Rectification to give effect to the common intention of the parties - Failure of defendant to call evidence - If defendant not mistaken, defendant aware of plaintiffs' mistake - Rectification for unilateral mistake.

PARTNERSHIP - generally - whether partnership exists - whether business carried on in common - no question of principle

FAMILY LAW [105] De facto relationship- Wealthy man- Woman working in man's business- Sexual relationship- Whether de facto wife.

ADMINISTRATIVE LAW - Application for writ of certiorari to quash criminal convictions - Application for declaration that criminal trial was a nullity - Alleged non-disclosure by Crown of information relevant to the claimant's defence - Certiorari as a discretionary remedy - Relevance of alternative remedies - Where full rights of appeal available - Application dismissed. ND

EQUITY [105]- Constructive trust- Barnes v Addy- Knowing Assistance- Elements considered.

Costs

SUCCESSION - executors and administrators - administration - application for interim distribution - estate not fully administered - assets nevertheless clearly sufficient to allow payment of pecuniary legacy

CONTRACTS - whether oral contract exists - terms of such contract - whether contract to hold interest in property upon trust or to transfer such interest - Statute of Frauds - whether sufficient acts of part performance

CRIMINAL LAW AND PROCEDURE - SENTENCE - PROHIBITED FIREARM - JOINT POSSESSION FOR PERIOD WITH ANOTHER OFFENDER - THAT OTHER OFFENDER BUT NOT THE APPLICANT INVOLVED IN SALE - WHETHER SENTENCE EXCESSIVE

Criminal Law - Sentencing - Dangerous driving causing death - Application of s 21A of the Crimes (Sentencing Procedure) Act - relevance of inpact of death of the deceased - whether R v Previtera should be reconsidered.

CRIMINAL LAW - recusal - refusal of judge to disqualify himself from sentencing - jurisdictional basis for an appeal from a ruling as to disqualification - grounds on which leave to appeal against sentence may be sought

NEGLIGENCE - injuries sustained when claimant stepped on concrete ramp, her foot then slipping backwards and going from under her resulting in serious head and facial injury - leave to appeal from unsuccessful action to recover from Council for injuries suffered - whether insufficient evidence on the balance of probabilities that Council constructed ramp - whether no evidence of negligence - whether no evidence that negligence caused accident.

Application for extension of stay where Minister refused amended LEP - when proceedings before Land and Environment Court challenging Minister's decision

Criminal law - soliciting to murder- context of custody battle - seeking leave to appeal against severity of sentence - Crown appeal against manifest inadequacy of sentence - question of inherent criminality.

Dismiss proceedings - whether witness immunity covers expert

Injury caused by slipping from fire truck - ownership of vehicle - not caused by defect in vehicle - not entitled to sue Nominal Defendant.

PRACTICE AND PROCEDURE - application for postponement of lengthy hearing - relevant considerations

Family Law. Application for property adjustment under Property (Relationships) Act 1984. Consideration of contributions. No matter of principle.

CRIMINAL LAW - Evidence - identification - examination of photographs shown by Crime Commission - not pictures kept for use by police officers - whether picture identification evidence - prior refusal of identification parade - whether further offer required - whether unfair prejudice - WORDS and PHRASES - picture identification evidence

EQUITY - Equitable Estates and Interests - Breach of trust - Trustee withdrawing trust funds for own benefit - Replacement trustees seeking recovery of funds plus interests - No principles

APPEAL AGAINST SENTENCE - four offences - questions of cumulation and concurrence - whether aggravated robbery sentence outside the range of a proper exercise of the sentencing discretion - effect on total sentence - special circumstances to be taken into account