Cases and authorities

EVIDENCE - general - effect of failure to call a witness - whether Jones v Dunkel inferences can be drawn concerning evidence of an eye witness - whether inference should be drawn when witness is not called who could give evidence on a particular topic but witnesses giving evidence on that same topic are called - effect of a witness who is not called being equally available to both parties - PROCEDURE - courts and judges generally - judge's obligation to give reasons - TORTS - NEGLIGENCE - proof of negligence - factual decision about whether negligence established concerning Council's operation of swimming pool - TORTS - NEGLIGENCE - contributory negligence - when appellate court justified in altering trial judge's assessment of proportions of contributory negligence - effect of age, intelligence and experience of a child plaintiff on contributory negligence - TORTS - NEGLIGENCE - proof of negligence - factual findings about whether negligence established against club operating water polo competition at swimming pool

Appeal - compensation - personal injuries - damages - second injury exacerbating the first - cross claim - compulsory third party vehicular insurance. Appeal against District Court decision which dismissed claims for two personal injuries - Appeal concerning first injury (on stairs) dismissed - Appeal concerning second injury (alleged to have occurred whilst Appellant being transported involuntarily by the Respondent) allowed - new trial ordered limited to the incidents of the second alleged injury - Respondent to pay the Appellant 65% of the costs of the Appeal - Cross Claim by Respondent against 2nd Cross Respondent (seeking indemnity (including costs) under a compulsory third party policy) dismissed.

Appeal - Justices Act 1902 - remittal order set aside - remitted to magistrate appealed from - appeal otherwise dismissed - meaning of s 109(d) Justices Act 1902 (now repealed) - judge's determination on appeal of the magistrate's decision is not disturbed, except for the remittal order - remitted to magistrate who heard the matter as per s 109(d) Justices Act (1902).

Extension of time to commence proceedings - ss 60C and 60-E Limitation Act 1969 (NSW) - rugby league tackle - quadripleiga

CORPORATIONS - winding up in insolvency - statutory demand - statutory demand served by post to old address on the day before a notice of change of address of registered office took effect - whether service effective

Practice and procedure - Joinder of all joint venturers where claims made to a breach of joint venture agreement

CORPORATIONS - practice and procedure - whether claim by administrator to be transferred to Supreme Court of Western Australia

Contract - Master and servant - Summary dismissal - Appointment of plaintiff by written contract of employment as chief executive officer and director of defendant - Defendant listed company operates in Australia and worldwide through subsidiaries - Contract stipulates that chief executive officer to perform all normal duties associated with the position held by a chief executive officer of a public company, to faithfully serve defendant and to competently exercise all skills as would be normally expected of persons holding the position of chief executive officer and director of a public company - Clause giving defendant entitlement to terminate the contract and the services of plaintiff without prior notice in the event that he commits any act of dishonesty, fraud, wilful disobedience, misbehaviour or breach of duty which might detrimentally affect defendant or wilfully, persistently and materially breaches any of the provisions of the contract and if the breaches are remediable, does not remedy them within 14 days after receiving notice in writing - Summary dismissal of plaintiff pursuant to clause - Plaintiff asserts that termination of his employment constitutes a repudiation of the contract and purports to accept repudiation - Proceedings concern events before and aftermath of 7 February 2003 profit downgrade announcement resulting in a decrease in the defendant's share price from $4.22 being the last price immediately before announcement released to low of $2.25 after the release and closing price of $2.40 on the day - Clarification announcements issued on days following initial announcement - Defendant claims that post 7 February events involved plaintiff making [or causing to be made] a series of public statements - Effect of public statements said to be to assert that he had had no warning of the possibility of a profit downgrade before 4 or 5 February 2003 - that he had been confident of a strong US profit result at the end of 2002 - that it was not clear to him before 4 and 5 February 2003 that Aristocrat had a problem with its profit margins in its North American business - Claimed conduct said to justify summary dismissal under contract - Defendant contends that these statements were false and false to the knowledge of plaintiff - Defendant contends that plaintiff failed to make full disclosure of his knowledge to the board - Defendant relies upon ASX continuous disclosure requirements and statutory obligations including obligations to use reasonable care and diligence and to act in good faith and in the best interests of the company - Plaintiff contends that he and defendant had only become aware of particular material information in early February 2003 and that this information had then been promptly released to the market - Plaintiff contends that there was no failure of disclosure of his own knowledge to the board - Line of defences include defences raising technical issues, as for example whether contract provisions unenforceable by reason of particular sections of the Corporations Act requiring shareholder approval - Examination of performance/standard of performance of the duties of a director and chief executive officer - Duties of disclosure of chief executive officer to board - Principles concerning fraudulent representations, wilful disobedience, misbehaviour/misconduct justifying summary dismissal at common law - Content of statutory duties to use reasonable care and diligence (section 180), to act in good faith and in best interests of company (section 181) and not to use position improperly to gain an advantage to himself (section 182)

Criminal Law -Sentencing - assault police in execution of duty - break, enter and steal (x2) - matters on Form 1 - seriousness of offences - accumulation of sentences appropriate - overall sentences manifestly excessive

APPEAL - Leave to appeal - Judgment apportioned as between defendants, so that judgment against claimant below threshold for appeal as of right - Discretionary considerations.

PRACTICE AND PROCEDURE - undertakings to Court - undertaking given subject to further order of Court - circumstances in which Court can and should make orders permitting partial release or variation of undertakings - discretionary considerations

PROCEDURE - referral out of whole proceedings to referee - interim report by referee covering some liability issues and failing to deal with others - gross delay by referee - one party wishes to have remaining liability issues remitted to referee other seeks determination by court on evidence before referee - need for "just, quick and cheap resolution" - LANDLORD AND TENANT - lessee's repair covenants - lessee's "use" by sub-letting - whether repair of damage occasioned by activities of sub-lessee "rendered necessary by" lessee's "use" - whether paved yard of factory is part of "demised premises" - whether repair of old asphalt paving is "structural" in nature - whether "reasonable wear and tear" - whether covenant to paint or repaint parts of premises "usually so treated" extends to re-application of coating applied to prolong life of roofing material not intended to be painted or coated

PROCEDURE - Family Provision Act claim - evidence complete - whether order for compulsory mediation should be made

Appeal decision of Local Court Magistrate - existence of partnership - contribution

application for leave to appeal against sentence - plea of guilty - supply of prohibited drug (cannabis) - Form 1 offence - goods in custody - level of involvement in organised commercial enterprise - utilitarian value of plea of guilty - sentence not manifestly excessive - parity - witness assistance to police having pleaded guilty in unrelated matters - limit Local Court jurisdiction - whether applicant's sentence could properly be increased by reason of summary offence on Form 1

LESSOR and LESSEE - Retail Leases Act 1994 s.10 compensation for misrepresentation - In Administrative Decisions Tribunal Judicial Member awarded compensation for misrepresentation under s.10 - Appeal Panel set aside and Newman AJ restored - whether JM's findings showed that there had been misrepresentation where Lessor said to the effect that nearby Residential Tower would be built - evidence did not deal with when and in what terms Development Consent was refused, with Lessor's intentions or whether they were reasonably based or with whether representation was misleading to the lessor's knowledge - appeals limited to question of law - held that there was no basis for award of compensation under s.10 - observations on representation as to a future matter.

FAMILY PROVISION - adult son and daughter - leave to appeal - Master awarded provision totalling $60,000 out of residue otherwise passing under will to de facto partner of 28 years - mathematical error meant that Master estimated distributable estate at $389,000 not $313,000 - on review of factors favouring and adverse to leave to appeal, leave refused - observations by Ipp JA and Bryson JA on primacy in relation to widows in Family Provision claims.

CONTRACTS – offer and acceptance – option, first refusal – affirm finding of Brownie AJ that, on evidence of correspondence and conversation, there was no concluded contract for a right of first refusal – consideration of nature of right of first refusal and case law thereon – reject argument that should follow decisions in States of US – significance of observations in Woodroffe v. Box (1954) 92 CLR 245 and Mackay v. Wilson (1947) 47 SR NSW 315. D.

HIGHWAYS AND BRIDGES - creation of roads - dedication of roads - between Local Government Act 1906 and Local Government Act 1919 - consideration of provisions of Local Government Act 1906 ss.99 to 101 and Real Property Act 1900 s.113 and procedures then in force to register Deposited Plans and obtain Council approval for opening roads - Consideration of requirements of common law and statute for dedication of road - not then necessary to transfer road to Council or to show dedication on Certificate of Title - on the facts, found that roads in Pacific City Estate were opened and dedicated by proprietor and accepted by public before 1 January 1920 and ownership vested in Council under s.232(1) of Local Government Act 1919.

PROCEDURE - offer of compromise - whether acceptance faxed to offeror's solicitor was properly served - whether acceptance actually coming to offeror's solicitor's notice after business hours on last day was effective acceptance - offer affected by mistake of offeror's solicitor - recipient of offer did not know of mistake - whether offeror may withdraw offer despite acceptance - whether wholly contractual matter - relevance of litigation context and court's functon of ensuring just result

Corporations - Winding up - Application for appointment of provisional liquidator - Undertakings to preserve assets adequate to preserve status quo.

CORPORATIONS - winding up - voidable preferences - claim by liquidator to recover from Commissioner of Taxation - claim by Commissioner for order under s.588FGA(4) against directors - whether Commissioner's claim should be by interlocutory process or cross-claim - whether Commissioner needs leave to initiate claim - whether Commissioner's interlocutory process should be struck out or stayed

REAL PROPERTY - easements - acquisition by prescription under doctrine of lost modern grant - easement not acquired over land of a tenant of the dominant tenement - effect of servient tenement coming under qualified title - method for ascertaining the scope of an easement acquired by prescription - effect of user not all being over precisely the same track - whether specific proof needed of use at night time to acquire an easement which permits use at night time - frequency of use needed before prescriptive easement arises - restriction of prescriptive easement by reference to purpose for which dominant tenement used during period when easement is accruing - whether prescriptive easement applies to lots into which dominant tenement is subdivided - abandonment of easements - fencing of easement - effect of illegality of use on acquisition of easement by prescription

Criminal law - sentencing - malicious wounding with intent to do grievous bodily harm - criminal law - sentencing - using a prohibited weapon without a licence or permit - criminal law - sentencing - children

Establishment of trust fund - Consumer protection - Fair Trading - Loss or Damage

Contempt of court - offender's name removed from roll of solicitors - breach of order restraining offender from acting as a solicitor - acted for a purchaser in real property conveyance - plea of guilty.

CRIMINAL LAW - SENTENCE - MURDER AND OTHER UNRELATED OFFENCES - CROWN APPEAL - INADEQUACY

PRACTICE AND PROCEDURE - pleading - amendment of statement of claim - whether proposed pleading discloses a reasonable cause of action - unadministered estate - nature of beneficiaries therein - cause of action pursuant to mediation agreement - whether possible for all beneficiaries of estate and executors to agree that particular assets will be distributed to particular people.

Averments - Appeal from Magistrate

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and Letters of Administration - whether grant to be made under section 18A Wills, Probate and Administration Act 1898 concerning informal document - no question of principle

TORTS - NEGLIGENCE - Motor accidents legislation - Workplace injury involving forklift truck - Whether injury within motor accidents legislation - Whether caused by the fault of the owner - Whether result of and caused during the driving of the vehicle - Whether motor accident insurer liable.

Family Provision. Application for provision from plaintiff's father's estate. Plaintiff already received assets from his mother's estate. Defendant son receives assets in father's estate. Proceedings in Queensland by parties in respect of mother's estate. Application dismissed.

PRACTICE AND PROCEDURE - case management - whether court should intervene to prevent costs and delay of commencement of second proceeding which may raise same issues as first proceeding - relevant considerations

Nature of appeals to the court from disallowance of claims on Law Society Fidelity Fund - meaning of "entrust" and "failure to account" - nature of function of Law Society in determining whether connection between claims and New South Wales practice not "sufficient" - sufficiency a matter of objective fact for judgment - whether Supreme Court could or should substitute its own order when error detected - errors of fact and law found - not necessary or desirable to remit.

CORPORATIONS - voluntary administration - extension of convening period - administrator handicapped in carrying out duties by receiver being in control of company's business and books and records - more time needed to properly advise creditors and investigate commercial opportunities

Review of Registrar's decision - production of documents - privilege

PRACTICE AND PROCEDURE - whether evidence of two witnesses should be taken by use of audio visual facilities - relevant considerations - whether, in the alternative, orders should be made for the issue of a letter of request to the competent judicial authority in the United Kingdom for the examination of the witnesses before the trial judge as examiner

Family Provision Act s 7 and 9 (2) - Proper maintenance and advancement in life - Claim by adult daughter - Father's large notional estate - relevance of needs of non-dependant family members considered - Re Buckland, deceased [1966] VR 404 - Singer v Berghouse (1994) 181 CLR 201.

Family Provision. Applications by two daughters for provision. One application out of time. Time extended and legacies provided. No matters of principle.

appeal against decision of a Local Court magistrate - order to supply a buccal swab and hair sample to police - circumstances authorising forensic procedure - Crimes (Forensic Procedures) Act, s23, 24, 25 and others - plaintiff a suspect - reasonable grounds to believe that the plaintiff had committed a prescribed offence - reasonable grounds to believe that the forensic procedure might produce relevant evidence - is procedure justified in all the circumstances - nature of evidence required in application - questions involved in determination

Motor Accidents Act 1988 - claim for damages for domestic assistance - Supreme Court jurisdiction - transfer to District Court

CRIMINAL LAW - Sentencing - malicious wounding with intent to do grievous bodily harm - non-parole period - special circumstances - CRIMINAL LAW - Sentencing - appeal - admissibility - evidence showing deterioration in prisoner's condition since sentencing

PRACTICE AND PROCEDURE - Application in District Court for costs order under s 198M of the Legal Profession Act 1987 (NSW) - Where District Court Judge dismissed application without hearing material in support of the application - whether failure of natural justice - Whether matter should be remitted to the District Court. ND

CRIMINAL - MURDER AND ATTEMPT TO CAUSE GRIEVOUS BODILY HARM WITH INTENT - THREE VICTIMS - MOTOR CAR USED AS WEAPON - SENTENCE

Criminal law - sentencing - murder - convicted on re-trial after successful appeal - both parties submit original sentencing appropriate, subject to subsequent circumstances - application of policy in Gilmore - reduction in non-parole period to reflect additional prospects of rehabilitation

Criminal Law - Sentence for conviction of murder.

Corporations Law. Application to set aside demand relying on s459J(1)(b). Held defect was a defect in demand and s45GJ(1)(a) applied. No substantial injustice. Proceedings dismissed.

CRIMINAL LAW - ENVIRONMENT LAW - LOCAL GOVERNMENT - Appeal - Offences pursuant to. s.125 Environmental Planning & Assessment Act 1979 - Carrying out prohibited development being a use of land - Directions to cease prohibited use complied with - Whether still open to Council to prosecute - Whether offence committed only when use commences or for so long as use continues - CRIMINAL LAW - Appeal against sentence - Sentencing judge refers to s.10 of Crimes (Sentencing Procedure) Act 1999 - Whether failed to consider factors in s.10(3) - Whether penalty manifestly excessive.

TORTS - NEGLIGENCE - Undulation in footpath - Whether Council negligent.