Cases and authorities

CONTRACT - whether contract created by conversations at meeting - whether case within first or third class in Masters v Cameron - ESTOPPEL - whether one party acted in reliance on belief as to legal relations induced by other - whether unconscionable to resile from consensus reached in conversation - PROCEDURE - judgments and orders - reserved judgment - protocol applicable where legal representative of party desires to complain of delay in delivery of judgment

Appeal decision of CTTT - whether a party was properly joined to proceedings

APPEAL FROM MASTER - STATEMENT OF CLAIM NOT DISCLOSING CAUSE OF ACTION - NO BASIS FOR ORDERING MEDIATION - NO SPECIAL POINT OF PRINCIPLE

NEGLIGENCE - motor vehicle accident - survival of causes of action - Motor Accidents Compensation Act 1999 - claim for compensation - medical assessment - death of claimant - whether assessment can proceed after death - ADMINISTRATIVE LAW - procedural fairness - whether contents of letter constituted representations as to future course of conduct - WORDS & PHRASES - guidelines - is.

Summing up - murder/ manslaughter - defence of another person

Criminal Law - Sentencing - special circumstances - whether failure to find was an error - no lesser sentence warranted in law.

Criminal Law - Sentencing - late pleas of guilty - discount for utilitarian value - need for transparency - additional matters on Form 1.

CRIMINAL LAW: Appeal against conviction and sentence - murder - adequacy of directions on joint criminal enterprise in respect of felony murder - application of the proviso - no question of principle on sentence.

CRIMINAL LAW - sexual assault - complainant daughter of appellant - delay in complaint - necessity for Kilby direction - Longman direction - sufficiency of - multiple counts - different verdicts - whether inconsistent - summing up - directions on onus of proof - whether misleading or confusing - proviso - CRIMINAL LAW - sexual assault - date of offence - legislative changes - offence not in existence at date of offence - fellatio not carnal knowledge - CRIMINAL LAW - sentencing - sexual assault - complainant daughter of appellant - EVIDENCE - limiting cross-examination of complainant - whether any miscarriage of justice

Sentence appeal - maliciously inflicting grievous bodily harm - applicant part Pacific Islander - provocation by racist remarks - inappropriate questioning by sentencing Judge - minor - effect of delay - parity of sentencing

CRIMINAL LAW: - Application for leave to appeal against sentence - thrirty-three counts of defrauding a body corporate as an officer - whether sentences structured so as to offend principles in Pearce v The Queen - whether aggregate sentence excessive

PRACTICE and PROCEDURE - Court of Appeal - security for costs - Hodgson JA ordered security for costs of appeal from McClellan J - likely that requiring security would stifle the appeal as appellant could not comply - on review of suggested errors, CA refused to discharge the order for security.

NEGLIGENCE - injuries sustained in the course of employment - PLEADINGS - whether judge failed to deal with alternative case - whether alternative case properly opened or maintained at trial - whether employer negligently failed to devise or enforce a safe system of garbage disposal. (ND)

Family Provision. Application under the Family Provision Act by a widower who was married to the deceased for six years. Contributions to renovation of house. Order for a share of house to pass to plaintiff and balance to be held on a Crisp order.

Practice and procedure - proceeding in closed court - publication of reasons for rulings on questions of law decided in closed court. - Evidence - privilege - common interest privilege. - Evidence - privilege - privilege against self-incrimination.

CORPORATIONS - composite merger proposal involving scheme of arrangement between company and members and alteration of constitutions of managed investment schemes - whether court should make order approving scheme when a condition precedent within control of company or controlled entity remains unsatisfied

EVIDENCE - legal professional privilege - where plaintiff seeks to restrain first defendant from providing legal services to second defendant - where second defendant asserts that plaintiff gave consent to first defendant to do so - where second defendant relies on laches, acquiescence, waiver or estoppel - where second defendant claims privilege in evidence of conversations from which consent may be inferred and on which claims of laches, acquiescence, waiver or estoppel are based - loss of privilege - whether privilege lost - s 122 Evidence Act - whether implied consent -inconsistency - whether inconsistent for second defendant to assert that first defendant obtained consent of plaintiff to act for second defendant and maintain privilege in discussions said to prove consent - whether inconsistency where second defendant relies on relevant facts to support claims of laches, acquiescence, waiver or estoppel

PROCEDURE [566]- Costs- FPA- Limitations on party/party costs and costs out of estate considered. SUCCESSION [307]- FPA- Small estate- Spouse's benefit paramount- Insufficient to provide for adult sons with some needs.

Criminal law - Sentencing - Utilitarian value of plea not qualified by strength of Crown case - Double jeopardy.

CRIMINAL LAW AND PROCEDURE - SEXUAL OFFENCES - "PRETEXT" CONVERSATION BY TELEPHONE BETWEEN COMPLAINANT AND OFFENDER RECORDED IN QUEENSLAND IN ACCORDANCE WITH QUEENSLAND POLICE PROTOCOL - SUCH PROCEDURE EXPLICITLY LAWFUL PURSUANT TO QUEENSLAND STATUTE - OFFENDER SPEAKING ON TELEPHONE IN NSW - RECORDING WOULD HAVE BEEN CONTRARY TO STATUTE (LISTENING DEVICES ACT) IF PROCEDURE UNDERTAKEN IN NSW - WHETHER EVIDENCE IMPROPERLY OBTAINED WITHIN MEANING OF s138 EVIDENCE ACT - PROPOSED WITNESS ON VOIR DIRE - NATURAL THERAPIST WHO HAD CONSULTED WITH COMPLAINANT - ALLEGATION OF CONFABULATION - RULING THAT CROSS EXAMINATION BE REFUSED - APPLICATION LATER NOT PRESSED AT HEARING - SENTENCE - OBJECTIVELY SERIOUS OFFENCES ON GIRL DURING HER PASSAGE FROM CHILDHOOD TO TEEN YEARS - SENTENCES IMPOSED NOT MANIFESTLY EXCESSIVE

Strike out proceedings as against second defendant - ss 44 & 45 Safety Rehabilitation & Compensatiuon Act 1958 (Cth)

The case turns on its facts.

Summary judgment - penalties - pay-roll tax - Income Tax Assessment Act 1936 (Cth) s 221YHDA

Costs - appeal from Licensing Court of NSW - whether to remit the question of the costs of the proceedings in that court to that court for decision

Costs - whether a successful defendant precluded from recovering costs against an unsuccessful defendant by reason of failure to call evidence at an arbitration hearing - whether successful defendant entitled to costs against an unsuccessful defendant on an indemnity basis in reliance upon non-acceptance of an offer to contribute as a Calderbank letter - whether non-acceptance of offer to contribute unreasonable

Criminal Law - Sentencing - on-going supply of amphetamines - guilty plea - utilitarian value - not related to strength of Crown case - need to specify discount allowed - special circumstances - desirability of expressing findings thereon - care and supervision of disabled child.

CRIMINAL LAW - Appeal against conviction - Unreasonable verdict and other grounds - Appeal against sentence - Whether error concerning parity, discount and/or personal deterrence.

EVIDENCE - Admissibility - Hearsay - s65 Evidence Act - Witness unavailable - Unable to locate witness overseas - Transcript evidence from previous trial

CONVEYANCING - Land Titles under the Torrens System - Easements - Right of way created from road frontage for access to rear of dominant tenement in 1920 - Lane created to rear of dominant tenement in 1935 - Paling fence across road frontage from early 1960s to early 1980s when pathway constructed over right of way with padlocked gates at either end closed after business hours of owner of servient tenement - Closing gates later abandoned - No parking on road frontage - Deliveries to servient tenement made from right of way - Customers of tenant of dominant tenement with other members of public used pathway to gain access to road frontage from public car park off rear lane - Owners of dominant tenement valued attraction to prospective tenants, access to light to windows and access for repairs of building on dominant tenement - Whether predecessors in title to defendant owners of dominant tenement had abandoned the easement and it ought to be extinguished under the Conveyancing Act 1919, s 89(1)(b) - Whether the easement should be deemed obsolete by reason of change in user of dominant tenement or in character of neighbourhood or whether it impeded reasonable user of servient tenement of plaintiff without practical benefit to owners of dominant tenement under s 89(1)(a)

EVIDENCE - witnesses - deponent of affidavits not made available for cross-examination after notice - application to read affidavits notwithstanding deponent not being produced for cross-examination - affidavits contain some material concerning which opposite party would be prejudiced if deponent not available for cross-examination, and other material where unavailability of deponent does not prejudice opposite party - appropriate form of order

CORPORATIONS - share buy back - requirement for approval by special resolution on which no vote cast in favour by person whose shares are to be bought back or by associates of such person - identifying "associates" - "acting in concert" - need to show understanding as to common objective - need for concert to be "in respect of" particular "matter" of voting on particular resolution - family relationships and past ties insufficient to raise serious question to be tried - whether interlocutory injunction in any event justified to defend utility of oppression proceedings - consideration of wide range of remedies court may grant if plaintiffs successful - balance of convenience considerations where interlocutory order would compel breach of contract

SUCCESSION [163]- Wills- Construction- Omitting or supplying words.

SUCCESSION - EXECUTORS AND ADMINISTRATORS - commission - special commission allowed for professional work - effect of solicitor's charging clause being invalidated by executor being a witness to the Will - general commission for executorial work - approach to award to costs on application to the Court to review Registrar's decision concerning quantum of commission

Criminal Law - appeal - identification - standard of proof - negative identification - rule in Browne v Dunn - judicial intervention - warning concerning potential unreliability of defence witnesses

Criminal law - Sentencing - Fernando principles - Protective custody - Sentence not manifestly excessive.

CRIMINAL LAW - Appeal against sentence - Guilty pleas for three robbery offences - Where offences had extremely serious consequences for victims - Where accused was young with no prior convictions - Partly principle - Whether trial judge erred in not taking the regret and remorse of the accused into account - Importance of the serious criminality of the offences.

Criminal law - Sentencing - Henry guideline - Departure from - Special circumstances - Application of s 44 of the Crimes (Sentencing Procedure) Act 1999.

Extension of stay - development consent for change of use of premises - need for Minister to approve amended LEP

PLEADING - Strike-out - Dismissal - Leave to replead. - DEFENCE - Illegality - Unclean Hands. - ILLEGALITY - Whether statute intended that contracts entered into as part of an unregistered scheme are illegal - Unlawful conduct no bar to bringing proceedings. - EQUITY - Equitable defence - Doctrine of unclean hands - Party who offends principle may wash hands of the impropriety.

NEGLIGENCE-LEGAL PROFESSION-SOLICITOR-The defendant solicitor was sued for negligence over a conveyancing transaction. The solicitor acted for the purchaser who had purchased the property from a friend at "a good price". Thevendor did not own the property but had a power of sale. The solicitor had difficulty in ensuring that the vendor could produce a registrable transfer because of problems with the administration of various estates for which he did not act. The vendor then died and the beneficiaries forced the purchaser to pay a higher price. The purchaser sued the solicitor to recover the extra price claiming that had he acted properly, the conveyance should have been completed before the vendor's death. The trial judge found no negligence. This was affirmed on appeal. PRACTICE- The judgments also comment on the question as to whether non-joinder of a person who holds a joint right the plaintiff is fatal and EQUITY discusses problems with equitable compensation observations as to the need for proper evidence of quantum of loss.

CONVEYANCING - right of first refusal to purchase - how right of first refusal to purchase operates when grantor of right of first refusal grants an option to purchase to someone else - WORDS AND PHRASES - "purchase" - EQUITY - equitable estates and interests - conversion of right of first refusal into an equitable interest - EQUITY - priority and notice - relative priorities of grantee of right of first refusal, and grantee of option, when granting of option converts right of first refusal into an equitable interest and grantee of option has notice of the right of first refusal

SUCCESSION [336]- FPA- Burden of orders- How discretion might be exercised- Family Provision Act 1982, s 13

COMMERCIAL - share and options trading - margin lending facility - identity of parties to agreements for margin lending facility - powers of attorney - whether sub-attorney validly appointed - whether documents executed by sub-attorney binding upon donors of the power - whether power of attorney general or special - whether special power of attorney attracts Powers of Attorney Act 1956 (ACT) - whether documents executed under unregistered power of attorney effective - novation - estoppel by convention - whether agreement in respect of margin loan facility - margin call under options agreement and loan agreement - whether trader's failure to meet margin call justified closure of options and sale of shares under the agreements

Appeal from decision of CTTT - Jurisdiction - building work

CORPORATIONS - winding up - statutory demand - application to set aside on grounds of genuine dispute and offsetting claim - Graywinter principle precludes case based on genuine dispute - whether offsetting claim where agent alleged to have received secret profits from clients of principal - quantification of claim - the "not fanciful" requirement

PERSONAL INJURY: - alleged breach of duty of care - slip ascending stairs - whether stairs unacceptably hazardous - whether water on stairs - absence of handrail - slip resistance requirements - reliance of Australian Standard AS1675-1992 "Fixed Platform, Walkways, Stairways and Ladders - Design Construction and Installation"