Cases and authorities

Criminal Law and Procedure - whether an alternative count should be left to the jury.

Secured guarantees - unconscionable conduct - volunteers - independent explanation and adequacy thereof - validity of demands - quantification of alleged debt and Dobbs certificate.

CRIMINAL LAW - manslaughter - sentence

Criminal Law - dangerous driving causing death - dangerous driving causing grievous bodily harm - appeal against severity of sentence - where plea of guilty - where aggravating factors establishing a high degree of moral culpability - manner of determining non-parole period - lesser sentence not warranted in law

PRACTICE AND PROCEDURE - closing address to jury - where Crown invites jury to disbelieve witness evidence when no basis for making invitation - where no cross-examination of the witnesses the jury was invited to disbelieve - trial judge's duty to direct jury to ignore unsubstantiated and improper assertions - whether trial miscarried - s8(1) Criminal Appeal Act 1912 (NSW) - whether order for new trial appropriate - EVIDENCE - inviting jury to disbelieve witness's evidence with no basis for making invitation - no cross-examination of the witnesses the jury invited to disbelieve - s38 Evidence Act 1995 (NSW). - APPEAL - jury verdict - whether jury ought to have entertained reasonable doubt - whether unsafe or unsatisfactory verdict - whether evidence contained discrepancies or lacked probative force - whether significant possibility that innocent person convicted - s6(1) Criminal Appeal Act 1912 (NSW).

Trial by Jury - Jury Act (NSW) - Is accused entitled to know names and occupations of Jurors?

Criminal law - appeal against verdict of not guilty by reason of mental illness - appeal incompetent in view of the plea having been entered on the appellant's informed instructions - appeal also dismissed on the merits - no question of principle

BUILDING AND CONSTRUCTION - breach of contract - negligence - expert determination clause - power to stay proceedings - whether claims should be struck out or stayed on basis that they have been the subject of binding expert determination - whether expert determination is final and binding - meaning of "final and binding" - whether alternative tort claim was subject of expert determination

Subpoena - application to set aside - Publication against Court exercising power - Collateral purpose and abuse of prcess - Prosecutor: duty to call witnesses - Denial of natural justice - s 128 of Evidence Act: should witness be equired to give evidence? - Reasons for refusing

Equity - Contract for sale of land - Land transferred by mistake - Mistake in transfer executed by vendor - Purchaser knew or ought to have known disputed land not included in sale - Retention of disputed land by purchaser unconscionable - Retransfer ordered. - Torrens system - indefeasibility of title - exceptions - personal equity - equity to order rectification and retransfer for mistake.

Appeal against sentence - supply prohibited drug - co-offender - parity principle

CRIMINAL LAW - appeal against convictions and sentence - appellant convicted of offences of maliciously inflicting grievous bodily harm: s 35 Crimes Act 1900 (NSW), assault: s 61 Crimes Act - also pleaded guilty to using offensive weapon with intent to prevent lawful apprehension: s 33B Crimes Act - principles governing operation of Criminal Appeal rule 4 - whether trial judge adequately directed jury as to assault - where threat to strike complainant made at distance making contact impossible - sufficiency of evidence as to assault - whether trial judge adequately directed jury as to "maliciously" and "recklessly" - admissibility of evidence - whether tendency evidence - whether relevant to appellant's state of mind - evidence of conduct forming part of a relevant transaction - whether Markuleski direction necessary - no miscarriage of justice - SENTENCING - overall sentence manifestly excessive - offences arising out of single episode of criminality - considerations governing resentencing - relevance of offender spending time in protective custody. (D)

appeal against severity of sentences - pleas of guilty - robbery in company - robbery whilst armed with an offensive weapon - driving a conveyance without consent of owner - subjective circumstances - gambling addiction - parity - concurrence - totality - special circumstances - re-sentencing - protective custody - rehabilitation

PROCEDURE - Supreme Court procedure - Notice of motion in the proceedings to enforce orders of the court - Only order made was vacation of earlier costs orders - Settlement called for defendant to pay upon full compliance by plaintiff to vest title and possession to chattels in defendant - Failure of complete compliance - No payment by defendant - No undertaking to do so embodied in court order - Whether appropriate to enforce settlement by notice of motion in the proceedings under the Supreme Court Act 1970, s 63

PRACTICE AND PROCEDURE: Application to set aside confiscation orders - orders made in absence of applicant and his solicitor - applicant in custody - Judge unaware that applicant had changed solicitors.

Summary judgment, malicious prosecution, abuse of process, assault, false imprisonment, emotional distress

MISLEADING AND DECEPTIVE CONDUCT - NEGLIGENCE - Incorrect tyre size information in harvester manual - tyre size relied on by appellant and injury resulted when replacement tyre exploded - whether importer and seller had duty to inspect manual for error - whether failure of trial Judge to deal with misleading and deceptive conduct claim under Trade Practices Act 1974 and Fair Trading Act 1987

Costs - Indemnity Costs - Offer of settlement

COSTS - indemnity costs - requirement for special or unusual features - whether shown - no question of principle

CRIMINAL LAW - Sentence - murder - plea of guilty.

Contracts - whether intention to be legally bound has been shown - whether void for uncertainty.

Medical negligence - laparoscopic cholecystecomy - anoxic brain damage - whether surgery negligently performed - adequacy of warnings given before surgery - whether plaintiff suffered psychiatric injury - whether plaintiff had pre-existing disorder - epilepsy

EQUITY - Equitable Estates and Interests - Land purchased in names of father and son as joint tenants - Whether son's interest held on trust for father - Whether father's interest held on trust for son - Father died intestate - Mother bequeathed residue of her estate to son and daughter equally

application for leave to appeal against severity of sentence - resist officer in execution of duty - possess housebreaking implements - possess unlicensed firearms - possess prohibited handgun - subjective circumstances - antecedent criminal record - correction of commencement dates of sentences

PRACTICE AND PROCEDURE: "long-arm" jurisdiction - action for damages for personal injury sustained in England - English defendants - whether this Court has jurisdiction - prospects of success in this Court because of expiry of limitation period - whether this Court an inappropriate forum - whether amendment of names of defendants should be allowed.

Appeal decision of Local Court Magistrate - dividing fence

SENTENCING - Sentence excessive - Special circumstances - s.44 of Crimes (Sentencing Procedure) Act (NSW)1999 - Multiple offences - Individual sentences should appropriately reflect the criminality of each offence - Where an error in sentencing is identified the Court of Appeal must re-sentence - Re-sentencing will not necessarily involve a reduction in original sentence - Where an increase in original sentences is proposed, the appellant must be given time to decide whether to or not to proceed with his/her appeal.

WORKERS COMPENSATION - Compensation - Redemption of liability - Whether redemption is compensation - Whether 'claim for compensation' - Whether 'person claiming compensation' - Where trustee of redemption money being changed - Whether employer ought to always pay worker's costs - ss 85 85A Workers Compensation Act 1985 (NSW) - s 15 Workers Compensation Act 1926 (NSW) - ss 112 116 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - PRACTICE AND PROCEDURE - Compensation Court - Whether employer was a party to the proceedings - Whether employer ought to have been joined to proceedings - Whether employer had an interest in the proceedings - Abuse of process - Whether Compensation Court had power to order employer to pay worker's costs - Whether exercise of discretion to award costs miscarried - ss112 116 Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Costs - order that defendant pay plaintiff's costs of proceedings - extension of time to apply for leave to appeal - communication through defendant's Italian lawyer - inference that significance of costs and of time for leave to appeal not appreciated - no evidence of prejudice - extension granted - leave granted - whether error in principle in costs order - error found in failure to pay sufficient regard to plaintiff's conduct in bringing about the need for the proceedings and in generating their length and complexity - analogy with testator's conduct in generating dispute over proof of will - different costs order made. D

Negligence - whether employer failed to provide a safe system of work - submissions on appeal not within pleadings or manner case conducted at trial - no error in judge's conclusion - no question of principle. ND

PRACTICE & PROCEDURE - procedural fairness - fair trial - where primary judge utilises unfavourable finding of credit against party without giving party chance to make submission - where primary judge imputes to Witness B unfavourable finding of party's credit vis a viz Witness A without giving party chance to make submission - whether deprived of possibility of successful outcome - new trial - APPEAL - new trial - civil jurisdiction - whether substantial wrong or miscarriage of justice - whether departure from rules of natural justice will entitle aggrieved party to new trial - whether compliance with rules of natural justice would have made any difference to the result - whether new trial would be a futility - inappropriateness of appellate court to deal with matters that will figure in new trial - inappropriateness of appellate court to exclude a party from new trial in circumstances where it is open to new trial judge to resolve matter in way that may make party liable - EVIDENCE - late admission of evidence - reopening case - Pt28 r8(3) District Court Rules - prejudice associated with late admission of evidence - inability to cure prejudice by adjournment - new trial - standard of proof - balance of probabilities - civil litigation - tort of assault

CONTRACT - construction of agreement dealing with acquisition and disposal of Trust properties - where respondent evinced intention to sell an estate or interest in Trust properties leased by appellant - clause providing for issuing of sale notice to appellant where respondent wished to sell any estate or interest in a property - whether sale notice may be given by respondent where the proposed sale is of any part of its estate or interest - whether sale notices served by respondent were premature. (D)

CORPORATIONS - constitution and legal capacity - requisition of meeting to amend objects of company - whether proposed resolutions void for uncertainty - whether resolution invalid because it proposes an object inconsistent with an existing object - CORPORATIONS - management and administration - requisition of meeting to consider amendment of objects of corporation - whether directors obliged to submit resolution to a meeting if proposed objects are void for uncertainty - whether proposed objects are void for uncertainty - whether resolution seeking to include new objects void by reason of conflict with existing objects - whether resolution proposed for an improper purpose - extension of time for calling and holding of meeting - whether extension of time for four months beyond minimum extension needed to enable meeting to be called is justified by saving in expense of calling meeting

CRIMINAL LAW - accessory after the fact to murder - sentence - no matter of principle

MEDICAL PRACTITIONERS - OBSTETRICIAN - ALLEGED BREACH OF DUTY OF CARE - BIRTH OF HANDICAPPED CHILD - TRIAL OF ACTION

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Need to fund litigation.

CORPORATIONS - winding up - examination summonses issued by special purpose liquidator - no benefit in examinations at this stage

summons regarding matters in Coffs Harbour Local Court - notice of motion seeking dismissal of summons - assertion of bias - Court of Appeal decision

application for leave to appeal against interlocutory judgment and order - objection to production of documents - public interest privilege - conduct of governmental functions - conflicting aspects of public interest

Criminal law - sexual offences - refusal to order separate trial - late disclosure of witness statement of co-offender - identification issues - directions as to consciousness of guilt - prosecutor's comment on accused's failure to give evidence - directions on standard of proof - "beyond reasonable doubt" should not be enlarged upon - complainant's reliability - directions about lies - whether verdicts unreasonable. - (D)

Criminal appeal - kidnapping and sexual assault in company - separate trial applications - evidence of prior convictions - whether good character had been raised - identification evidence - directions on identification - whether defence submissions unsupported by evidence impacted upon fair trial for co-accused - judicial response thereto - whether warning about unreliability of evidence of co-accused appropriate - directions in relation to failure to testify - whether comment" infringed Evidence Act, s20(2) - whether address of counsel for one defendant caused co-accused's trial to miscarry - whether verdicts unreasonable - evidence that medical examination of complaints was "consistent" with their history of assaults. (D)

Criminal Law - Sentencing - maliciously inflict grievous bodily harm - form of sentence - utilitarian value of plea of guilty

Tort - Duty of care - liability of Department of Corrections for injuries caused following escape of prisoner from gaol - reasonable foreseeability - policy - special relationship - special knowledge - control - assumption of responsibility - extent of liability - vulnerability - conflict and coherence - remoteness.

Compensation to Relatives Act claim following death of de facto husband while employd by respondent - adequacy of medical and communication facilities at place of posting - whether breach of duty of care when respondent had knowledge of deceased's asthmatic condition - whether response to risk was reasonable.

BUILDING AND CONSTRUCTION - contract - amended standard form Building Works Contract - whether entitled to extensions of time - determination of date for extended practical completion - whether entitled to liquidated damages - whether liquidated damages clause a penalty - whether unconditional guarantee of completion date given - whether any such guarantee relied upon - whether negligent certification that the design of works complied with relevant requirements - whether certification relied upon in deciding whether to enter into the contract - misrepresentation

CORPORATIONS - winding up - company in administration - whether winding up order should be made notwithstanding administration

CONTRACT - building, engineering and related contracts - residential premises - whether contract breached by builder's failure to effect insurance under Home Building Act - whether "requirement" to obtain such insurance - whether proprietor validly terminated builder's employment - whether purported termination by proprietor was repudiation as against builder - builder's statutory claim to quantum meruit - whether quantum meruit recovery "just and equitable" - relevance of terminated contract to quantum meruit claim - relevance of actual costs - relevance of defects and cost to rectify - MORTGAGES - mortgages and charges generally - bank guarantees lodged by builder as security for performance of building contract - right to recover guarantees after contract terminated