Cases and authorities

Alleged jurisdictional error in District Court hearing an appeal against a refusal to annul a conviction in the Local Court - Whether refusal to annul a conviction pursuant to s 100D of Justices Act 1902 was an order capable of appeal pursuant to s 120 of Justices Act - Whether leave of District Court required to appeal pursuant to s 123 of Justices Act - "rights of appeal" under Pt 4A of Justices Act - Whether proceedings under Pt 4A are an appeal against a conviction, order or sentence in summary proceedings - Whether a decision to decline an application to annul pursuant to s 100D is an interlocutory or final order

Defamation - former s89 and present s86 Supreme Court Act 1970 - Defamation Act 1974 s7A - application to dispense with jury

EQUITY - Equitable Estates and Interests - Sale of house to son at undervalue on terms that father provided with accommodation and care for life - Eviction of father for alleged improper suggestions of a sexual nature to grandson - Whether breach of implied term not to make such suggestions proved - Whether plaintiff entitled to equitable interest in house to extent of value exceeding purchase price - Whether unconscionable and inequitable for son to retain house freed from obligation to provide accommodation and care

Defamation - vicarious liability -s7A trial - limited issue

Defamation - internet publication - particulars of uploading - imputations - capacity - form

Criminal law - sentence - manslaughter - unlawful and dangerous act - no intent to kill or injure - carrying loaded shotgun to coerce person believed to be wife's lover - weapon discharged in struggle - previous estimable character - remorse - early plea and co-operation - gravity of crime.

Application for declaration and certiorari - whether administrative Tribunal acted unreasonably or irrationally - nature of test - Tribunal not satisfied psychiatric or psychological disorder "severely disabling" - question of fact - refusal to so find not outside ambit of fact finding function conferred on Tribunal by the Act.

PRACTICE AND PROCEDURE - Mareva orders - dispute under Building and Construction Industry Security of Payment Act 1999 (NSW) - where defendant is an American corporation - where work conducted in Australia through a subsidiary - where subsidiary has made substantial losses - where defendant has no assets in Australia apart from shareholding in subsidiary, debts owed to it by subsidiary, and adjudicated amount under Act - whether facts reveal a sufficient basis for grant of a Mareva order - whether power to grant a Mareva order enlivened by problems of enforcement within the jurisdiction, or enlivened by problems of enforcement generally

Severity appeal - drive in a manner dangerous occasioning death - no lesser sentence warranted

CRIMINAL LAW AND PROCEDURE - PENDING INTERLOCUTORY APPEAL - CERTIFICATE BY JUDGE THAT SUITABLE FOR APPEAL - LENGTHY PRE-TRIAL HEARING - COMMENCEMENT OF HEARING IMMINENT - STAY OF TRIAL SOUGHT

Criminal Law - sentencing - no question of principle

Criminal Law and Procedure - Sentencing - relevance of matters of aggravation and mitigation under s 21A of Crimes (Sentencing Procedure) Act - Appeal - fresh evidence on sentence appeal.

Construction of contractual arrangements- whether representations by respondent concerning duration of Bills Discount Facility- alleged breach of agreement concerning interest rate- whether respondent entitled to charge limit excess overdraft rates and debit appellants' account- onus of proof- finding against weight of evidence

RESTRAINT OF TRADE - contract of employment - where defendant seeks to enforce restraint of trade in contract of employment - restraint in form of non-solicitation clause - where restraint would prevent plaintiff from approaching prospective clients of defendant - where restraint would prevent plaintiff from approaching actual clients of defendant that plaintiff had no contact with in the course of his employment with defendant - whether restraint no wider than reasonably necessary to protect legitimate interests of defendant - Restraints of Trade Act 1976 (NSW) - s 4 - whether restraint should be read down - whether grant of relief under Act would mean redrafting restraint

Criminal Law and Procedure - Crown appeal against sentence - child sexual assault offences - failure to cumulate some sentences - exceptionally serious offences - delay in appeal and unsatisfactory history of proceedings - insufficient to justify court not intervening.

VICTIMS COMPENSATION - whether evidence of injury is required to establish that a victim of a sexual assault is a primary victim of an act of violence pursuant to ss 5(1) of the Victims Support & Rehabilitation Act 1996 (NSW) or is otherwise entitled to compensation in respect of the compensable injury of sexual assault - whether the facts of the sexual assaults in this case demonstrated actual physical contact amounting to 'harm' for the purpose of the definition of 'injury' in the Act. (D)

Negligence - pedestrian tripped on boarding laid across footpath as protection during building works - found visible to pedestrian exercising reasonable care for own safety - whether failed to pay regard to all evidence - whether failure to give sufficient reasons - whether incorrect to apply approach of a pedestrian exercising reasonable care for own safety. ND

CONVEYANCING - land titles under the Torrens system - caveats against dealings - application for extension of caveat - final order of Federal Court denies interest claimed by plaintiff as caveator - appeal by plaintiff to Full Federal Court pending - whether plaintiff has interest capable of supporting caveat

CONTRACT - tender for construction works - letter of intent issued - formal contract to be entered into - letter of intent envisaged commencement of work prior to formal contract - work commenced and carried on while negotiations continued - whether on construction of letter of intent and with regard to the parties' prior and subsequent conduct a fourth class Masters v Cameron contract had come into existence upon commencement of work - whether party's case in a reference had included that the contract had come into existence - PROCEDURE - contractual claims abandoned in submissions in favour of quantum meruit claim - abandonment conditional on leave to amend - leave opposed - in the event, not necessary to decide question of leave or quantum meruit claim - whether judgment should have been given on contractual claims against abandoning party - COSTS - whether evidence relevant to abandoned claims remained relevant for other purposes - whether error in failing to give other party a costs benefit referable to the abandonment of claims. D.

LIMITATION OF ACTIONS - extension of limitation period - Limitation Act - negligence claim by former police officer based on systemic and operational breaches of duty - no prejudice in respect of alleged systemic breaches - prejudice in respect of operational breaches - extension upheld confined to systemic breaches - D

Application for leave to appeal - refusal of application to file further evidence - subject of appeal no longer in issue - only serious quesiton is costs - whether Court should determine appellate proceedings in order to resolve question of costs - summons for leave dismissed. (ND)

PRACTICE AND PROCEDURE - costs - indemnity costs - plaintiff makes application for order that defendant's solicitor pay its costs - application withdrawn - whether indemnity costs appropriate

CORPORATIONS - Registers - Claim for rectification - Whether share transfer forms signed in blank evidenced transfers of shares - Whether such transfers were vitiated by fraud or unconscionability - Whether the misstatement of the consideration and backdating of the transfer forms gave rise to an entitlement to rectification under the Stamp Duties Act 1920, s 97(1) or the Corporations Act 2001 (Cth), s 1091(1)

Summary judgment - equitable set-off - possession

CRIMINAL LAW - Crown appeal against sentence - manslaughter of child by carer - gratuitous cruelty - sentencing range - relationship between sentence for murder and sentence for manslaughter

CRIMINAL LAW - murder - kidnapping - leave to appeal from application for stay of prosecution - prejudice based on adverse publicity - abuse of process - breach of principle of fairness - fresh evidence

Criminal Practice and Procedure - Sentence - Kidnapping - whether the sentence was manifestly excessive - no matter of principle.

REAL PROPERTY - Doctrine of lost modern grant - rights of way - easements by prescription - acquiescence - onus - whether doctrine of lost modern grant extends to the Torrens system - Conveyancing Act 1919, s178 - whether "grant of a way" a public right of way only - CONTRACT - implied terms - Fair Trading Act 1987 - whether misrepresentations misleading or deceptive - whether State Transit Authority relevantly the Crown (D)

DEFAMATION - whether publication capable of carrying imputations as framed - ordinary reader of newspaper does not read articles in the way a lawyer would - leave to amend statement of claim

Insurance - legal professional privilege - joint privilege - common interest privilege - fiduciary duties - whether solicitor-client relationship formed between insured and insurer-appointed lawyer - whether privilege could operate between insured and insurer - claims assessor's report - whether privileged and whether privilege belonged to insurer and/or insured. (D)

LIMITATION OF ACTIONS - extension of limitation period - Motor Accidents Act - application for extension seven years out of time - defendant prejudiced on medical issues - extension refused - no question of principle - ND

DEFAMATION - challenge to jury finding that imputation was not defamatory - whether finding one no reasonable jury could come to - whether jury should have been discharged - discretion of trial Judge - whether directions insufficient when no objection taken to directions at trial

Conveyancing - Option exercise - Relief against effects of breach of conditions - Notices given under Conveyancing Act - Forms - Failure to comply with form - Substantial compliance

LAND ACQUISITION - MANDATORY ACQUISITION BY COUNCIL ON REQUEST BY OWNERS - STATUTORY OBLIGATION - VALUATION BY VALUER-GENERAL - CONTRACT TO VALUER TO RECOMMEND TO VALUER-GENERAL - ADMINISTRATIVE LAW RELIEF - NO ERROR OF LAW BY VALUER-GENERAL OR CONTRACTOR - STATUTORY ENTITLEMENT OF LANDOWNERS TO WRITTEN OFFER OF ASSESSED COMPENSATION

CORPORATIONS - winding up - statutory demand - application to set aside or vary on basis of offsetting claim - statutory demand based on judgment debt arising from determination under Building and Construction Industry (Security of Payment) Act 1999 - whether possible to have an offsetting claim against such a judgment debt - whether offsetting claim established on the facts - STATUTES - ACTS OF PARLIAMENT - operation and effect of statutes - Building and Construction Industry (Security of Payment) Act 1999 - whether judgment debt arising from adjudication under that Act can be subject of an "offsetting claim" for purposes of section 459H(5) Corporations Act 2001 (Cth) - CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - adjudication under Building and Construction Industry (Security of Payment) Act 1999 becomes subject of judgment debt - whether able to be the subject of an "offsetting claim" under section 459H(5) Corporations Act 2001 (Cth)

Criminal Law - Sentence - No question of principle.

Pleas of guilty to manslaughter and aggravated robbery - young offenders - issues of parity.

SUCCESSION - probate and letters of administration - application for letters of administration cta - general caveat filed by defendant against a grant in the estate - caveator white of son of deceased involved in Family Law proceedings against son - son not entitled to benefit under last will of motion but sole beneficiary under earlier will - son did not intend to challenge later will or claim provision under Family Provision Act - evidence, casting doubt on validity of last will sufficient for contested proceedings if caveator had an interest - order for contested proceedings raising the question of interest - interest issue tried as separate question - if son took whole estate of his mother very big fund available out of which Family Court could, if appropriate, order provision for wife - whether caveator wife had interest entitling her to contest proceedings - STATUTES - interpretation - Wills Probate and Administration Act 1898 s144 - proper meaning of "any person"

criminal law - sentencing - murder

SOLICITORS - COSTS - RIGHTS IN NATURE OF A LIEN OVER "FRUITS OF ACTION" - DECLARATORY ORDER SOUGHT - NO REASONABLE BASIS FOR DETERMINING APPRECIABLE RISK THAT FORMER CLIENTS WILL DEPRIVE SOLICITOR OF PROPER COSTS - OFFERS TO HOLD OR PAY INTO COURT SUM IN DISPUTE - IN FACT PAID INTO COURT - PROTECTION OF COURT BY DECLARATORY ORDER NOT SHOWN TO BE REQUIRED - BANKRUPTCY OF ONE OF TWO FORMER CLIENTS - NO DEMONSTRATION OF NEED FOR ORDER ARISING OUT OF THAT CIRCUMSTANCE

Sentencing - parity - special circumstances

PRIVILEGE - Legal professional privilege - Nature of privilege - Rule of substantive law - Rule is not to be outweighed by principle that there is no property in a witness - Rule is to be applied strictly and not limited to judicial or quasi-judicial proceedings. - STATUTORY INTERPRETATION - Statue not to be construed as abrogating a fundamental principle of the common law in the absence of clearly expressed intention to do so.

CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - breach of contract - warranties implied under section 52A Conveyancing Act 1919 - warranty that there is no matter in relation to a building that would justify the making of any upgrading or demolition order - whether that warranty applies to land containing building work not approved by council - effect decision of council to do nothing about unapproved building work, when building certificate has not issued - CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - refusal or failure of caveator to withdraw caveat - circumstances when compensation recoverable from caveator for such conduct - caveator does not remove caveat in circumstances where it demands a greater benefit as the price of removing the caveat than the Court would give it on application under section 74MA for caveat to be removed

Criminal law - sentence - manslaughter - plea to alternative to murder - reduction for early plea - contrition and co-operation - effects of alcoholism and intoxication - also depression - landlord drowning boarder in bath and disposing of body - conduct bizarre - strong prospects of rehabilitation.

Family Provison. Applications by a daughter and a widow under Family Provision Act 1982. Daughter's blackmail of her mother was conduct disentitling in respect of the deceased. Claim refused. Further provision made for the widow.

Security for costs of arbitration

CORPORATIONS - management and administration - requisition of meeting to consider amendment of objects of corporation - previous court decision extends time for calling, and holding, meeting - application for another order further extending time for calling, and holding, meeting - circumstances when such a second application can be entertained - consideration of factors relevant to granting of extensions - whether condition to be imposed on granting of extensions