Cases and authorities

ADMINISTRATIVE LAW - application for statutory mandamus under section 65 Supreme Court Act to require stewards enquiry by Greyhound Racing Control Board to be concluded

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

Administrative law - listening device warrants - necessary compliance with statutory requirements for issue - sufficient description of prescribed offence - definition of prescribed offence - inability to relate terms used in warrant referring to prescribed offence as referring to any partciular offence known to the law.

Conviction appeal - deemed supply of traffickable quantity of heroin in possession of co-accused - circumstantial evidence - sufficiency of evidence of joint possession - evidence incapable of justifying verdict - acquittal entered

NEGLIGENCE - Whether behaviour of 13 year old boy contributorily negligent - Schoolyard fight - DAMAGES - Future loss of earning capacity - Brain injury - Attention deficit - Ability to obtain employment - Future domestic care - Ability to carry out domestic tasks. ND

Leave to appeal - application for interlocutory relief - failure to hear submissions - remarks about taking technical points - strong arguable case that did not give procedural fairness.

Criminal Law - Sentence for conviction for 3 counts of Murder

standing - locus standi - Bankruptcy Act

Professional Negligence - breach of duty by doctor - causation of damage - two views accepted by profession as to treatment - whether loss of chance - proportion of worst case

CRIMINAL LAW: Appeal against conviction - defrauding the Commonwealth - whether evidence supported the charge as particularised in the indictment - whether verdict unreasonable.

PRACTICE AND PROCEDURE: Statements of claim - Causes of action - No cause of action disclosed - Content of pleadings - Amendment of pleadings.

COSTS - litigant in person

Contract law - Rectification - Alleged unilateral mistake as to whether rent was inclusive of GST - Dispute over leased area - Rectification refused - Order for damages for breach of convenant for quiet enjoyment

Equity - unconscionable conduct.

PRACTICE AND PROCEDURE - Court-appointed receiver - claim to be paid remuneration and expenses out of fund - defendants claim interest in fund as chargees - priority of claims CORPORATIONS - chargees under registered charge - whether chargees' claimed interest has priority over receiver's equitable lien

Practice and procedure - Pleading - Amendment of statement of claim - Whether proposed pleading discloses a reasonable cause of action - Unadministered estate - Nature of interest of beneficiaries therein - Cause of action pursuant to mediation agreement - Application for consolidation of proceedings.

CRIMINAL LAW - Appeal - Sentence - Armed Robbery - The Queen v De Simoni - Parity in Sentencing

Criminal Law and Procedure - Application for the issuing of a certificate under s 128 of the Evidence Act - whether application can be refused or deferred - whether the certificate can be limited in its application.

De Facto relationship claim - considerations relevant to leave to make a claim outside the statutory period of two years - claim raised in response to an action for debts incurred by one partner to the other in the course of the relationship - debtor's contribution to assets of partner - effect of De Facto Relationships Act 1984 (now Property (Relationships) Act 1984) - nature of a de facto relationship considered in the context of a relationship where the parties slept alternatively at each other's residences without establishing any one long term home - parties held to have "lived together on a bona fide domestic basis in the way that suited them" - appropriate relief.

Misfeasance of public office - pleading - no question of principle

[Client Legal Privilege] - Motion for access to documents produced on subpoena - Objection to access on ground that documents consisting of pleadings, affidavits and particulars filed and served in other proceedings are privileged and were filed and served under compulsion of law (s.122 (2) (c) Evidence Act 1995 (NSW) - Claim that pleadings and/or affidavits are not privileged so that s122 (2) (c) does not apply - Alternative application for access pursuant to Part 65 rule 7 and Practice Note 97.

ADOPTION - adoption order - variation of birth date PRACTICE AND PROCEDURE - setting aside or varying judgment or order - Pt.40 r.9(4) - adoption orders in February 1995 set out the birth dates for 2 children as shown in records from Colombia - children were foundlings without known family history or birth records and birth dates were assigned arbitrarily by Colombian authorities when the children came into care at ages of about 5 and 3 - bone age x-rays supported medical opinions that the children were about 2 years older than recorded birth dates indicated - adoption orders were varied pursuant to Pt.40 r.9(4).

Insurance - professional indemnity insurance - scope and extent of the coverage of this insurance policy determined by the policy's definition of "claims" - indemnity under this insurance policy covers costs arising in defending a professional negligence claim against the policy holder - scope of policy does not extend to any substantial alteration in the nature of the claim or claims defended and/or cross-claims arising from such alterations - statutory extension of insurance policy under Insurances Contracts Act 1984 s40(3) does not apply on these facts.

REAL PROPERTY [463]- Licences- Ordinarily terminate when licensor conveys the property. TORTS [189]- Trespass- Subterranean space- When trespass occurs.

Workers' compensation insurance - premium - classification of employer's business - relevant criteria - relevance of claims history - error of law

PRACTICE and PROCEDURE - Pre-Trial Directions Hearing - defendant sought leave at Pre-trial Directions Hearing to file Cross-claim and voluminous further evidence - filing documents would require lengthy extension of time and disrupt appointment for hearing on issues raised by plaintiff: leave refused, hearing to proceed.

Criminal law - leave to appeal against sentence - multiple offences - whether sentences excessive - concurrency - parity - no question of principle

Criminal Law - Sentencing - aggravated break, enter and steal in company - offence committed whilst on parole - motive need, not greed - assistance to authorities in respect of murder of sister - special circumstances.

Criminal Law - Sentencing - suspended sentence subject to bond - breach of bond - re-sentencing - limited to unexpired portion of original sentence.

INDEMNITY CLAUSES: Construction - Meaning of words "arising out of or in connection with or caused by" - Relationship between performance of services and injury.

INDEMNITY CLAUSES: Construction - Meaning of words "arising out of or in connection with or caused by" - Relationship between performance of services and injury.

ADMINISTRATIVE LAW - construction contracts - determination of adjudicator under Building and Construction Industry Security of Payment Act 1999 - whether jurisdiction to review - whether jurisdictional error of law - whether Superintendent's certification binding on adjudicator - whether denial of natural justice

appeal from Administrative Decisions Tribunal - meaning of 'premises' - Retail Leases Act 1994 (NSW) - Roads Act 1993 (NSW)

Equity - fiduciaries - nature of duties - guardian and ward - failure to provide adequate protection, supervision, education and medical care for ward - breaches of common law duty of care - whether constitutes breach of fiduciary duties

Pleas of guilty to various counts of armed robbery - offender suffering from a mental disorder.

Appeal against conviction - insider trading - appellant found guilty of contravening s1002G(2) Corporations Act 2001 - Whether miscarriage of justice - actual or ostensible bias of trial judge - former professional association - whether "personal animosity" involved in sentence - Whether trial judge erred in not directing verdict of acquittal - meaning of "information" - possession of information as particularised - materiality - Admissibility of evidence - relevance - prejudicial/probative value - medical evidence as to witness' capacity to give reliable evidence or to present more attractively - Whether summing up unfair - judicial comment/warning - Whether verdict unreasonable - Fitness to stand trial - brain tumour - frontal lobe dysfunction - appellant's mental state - conduct at trial - credibility - expert evidence - mental element of offence - Fresh evidence of undiagnosed meningioma - relevance on appeal to issues of fitness to stand trial, miscarriage stemming from inappropriate behaviour, mens rea and sentence - Equality before the law - law's concerns regarding fitness is with capacity to understand and follow proceedings not with maximising capacity to present as attractive personality - sentencing in "white collar" criminal matters - court's duty not to be swayed by "community attitudes" in particular cases as promoted by media - Appeal against sentence - whether sentence manifestly excessive - whether miscarriage of sentencing judge's discretion - insider trading not a "victimless" crime - appellant's public persona - good character - personal and general deterrence - finding of "contemptuous arrogance" - no contrition - impact of fresh evidence as to appellant's medical and mental state where absence of evidence as to any change of attitude by prisoner - D

Criminal law - sentencing - assault occasioning actual bodily harm - no question of principle

Offences of aggravated robbery - question of parity with co-offenders dealt with in Children's Court.

PERSONAL INJURY CLAIM - psychiatric illness - inconsistent medical evidence - causation

INSURANCE CLAUSES: Theft - fraud - onus of proof.

PRIVILEGE - Identity of client - Whether protected at common law from disclosure - If so protected whether overridden by specific provision in Crime Commission legislation

Leave to appeal - dismissal for want of jurisdiction - stay because of inappropriate forum.

Family law - De facto relationship - orders sought pursuant to s 20 of the Property (Relationship) Act - orders made.

CRIMINAL LAW - SENTENCE - SUPPLY OF ILLICIT DRUGS (COCAINE) - NO SPECIAL POINT OF PRINCIPLE