Cases and authorities

NEGLIGENCE - respondent tripped on nail protruding from boardwalk while walking - Primary judge found appellant negligent for failing to warn - Insufficient evidence of causal connection between breach of duty and damage suffered - Findings of breach set aside due to lack of consideration of causation - PROCEDURAL FAIRNESS - particularised grounds of liability not raised during proceedings - Ability of trial judge to find for party regarding assertion of negligence which did not form part of conducted case - Need to look at proceedings to determine if it was open to decide case on particular basis of liablity - Denial of procedural fairness to decide case upon basis of liability which was foreign to manner in which proceedings were conducted - Primary judge erred by deciding case solely upon issue not pursued by the respondent

NEGLIGENCE - respondent tripped on nail protruding from boardwalk while walking - Primary judge found appellant negligent for failing to warn - Insufficient evidence of causal connection between breach of duty and damage suffered - Findings of breach set aside due to lack of consideration of causation - PROCEDURAL FAIRNESS - particularised grounds of liability not raised during proceedings - Ability of trial judge to find for party regarding assertion of negligence which did not form part of conducted case - Need to look at proceedings to determine if it was open to decide case on particular basis of liablity - Denial of procedural fairness to decide case upon basis of liability which was foreign to manner in which proceedings were conducted - Primary judge erred by deciding case solely upon issue not pursued by the respondent

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - construction and interpretation of contracts - variation of terms of mortgage by terms of later mortgage securing same debt - WORDS AND PHRASES - "in default of" - EVIDENCE - burden of proof, presumptions, and weight and sufficiency of evidence - proof of a negative proposition - oral evidence concerning events long past - WORDS AND PHRASES - "due" - BANKING AND FINANCIAL INSTITUTIONS - banker and customer and business of banking generally - term loan - whether demand needed before loan is repayable at or after expiry of term - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - discharge, breach and defences to action for breach - accord and satisfaction - elements of - BANKER AND CUSTOMER- factual findings relevant to whether customer had been overcharged interest

s73 Evidence Act 1995 - pedigree declarations - admissibility

Dangerous driving occasioning grievous bodily harm - application of guideline judgments - procedure relating to Form 1 offences.

PROFESSIONS & TRADES [100]- Lawyers- Solicitors- Consequences of failure to attend for examination by receiver- Legal Profession Act 1987, s 105.

Multiple offences of armed robbery - young offender

CORPORATIONS - winding up - costs - application by company for leave to defend under s.459S - s.459S application determined before winding up application heard - whether the two should have been dealt with together - whether costs of s.459S application should be costs in the cause

CORPORATIONS - winding up - creditors providing financial support to liquidator to recover or protect property - whether support given during voluntary administration preceding winding up is within s.564 - whether liquidator's claims to recover unfair preference and on the basis of insolvent trading involve "property" for the purposes of s.564 - whether assistance given to receiver concurrently in office in connection with public examinations conducted by receiver in cooperation with liquidator qualifies under s.564 - determining appropriate relativities among creditors providing support

PARTNERSHIP - generally - whether partnership exists - whether business carried on in common - no question of principle

PROCEDURE [105] - Supreme Court Procedure - Practice under Supreme Court Rules - Directions - Non compliance with directions - Deferral of compliance pending application under s 63 of Trustee Act 1925 concerning use of trust funds in defence of proceedings.

Criminal trial - preliminary hearing - nature of accountant claims benefit of confidentiality clause - Basha enquiry - extent of power

MORTGAGES - mortgages and charges generally - priority of estates debts and encumbrances - equitable charge on land created by building contract - effect of agreements to grant registered mortgages - lien for property related expenses of owner's liquidator

FAMILY LAW AND CHILD WELFARE - de facto relationships - termination agreement under Property (Relationships) Act - susceptibility to avoidance under Contracts Review Act - CONTRACTS - unjust contracts - avoidance by court - principles to be applied

EVIDENCE [96]- Privilege- Without prejudice correspondence- Admitted as basis of estoppel or election- Evidence Act 1995, s 131(2)(i). LANDLORD & TENANT [23]- Option to renew- Form of exercise- Written notice necessary.

MEETINGS [3] - Public meetings and assemblies - Unlawful assembly - Effect of order under Summary Offences Act 1988 Part 4 - Principles on which order should be made or withheld.

TRUSTS - power to amend trading trust instrument - whether s 81 of Trustee Act empowers Court to confer on trustee a power of amendment affecting rights of beneficiaries - whether amendment after approval of beneficiaries would constitute a fraud on the power of amendment - CORPORATIONS - scope of Gambotto principles - PRACTICE AND PROCEDURE - nature and appropriateness of representative proceedings

CORPORATIONS [286] - Winding up - Liquidators - Rights and powers - In winding up by Court - Power to enter into agreement on company's behalf - Necessity for approval if performance of contract may extend beyond 3 months - Approval by Court - Basis on which discretion may be exercised - Relevant considerations - Necessity for approval of compromise of debt greater than $20,000.

ENVIRONMENT AND PLANNING LAW [478] - Courts and tribunals with environment jurisdiction - Land and Environment Court - Scope of jurisdiction generally - Exclusive jurisdiction to enforce environmental laws - Question whether Council has power to ban political advertising generally - Whether within exclusive jurisdiction - Whether proceedings should be transferred from Supreme Court to Land and Environment Court.

Prerogative writ - Habeas Corpus ad subjiciendum - Jury - Prisoner in custody following conviction and sentence - Notice of intention to appeal filed - No notice of appeal or grounds of appeal filed - Damages for wrongful detention - Director of Public Prosecutions - Functions and responsibilities of Director of Public Prosecutions - Director of Public Prosecutions has no power of arrest or of detaining a person in custody - Warrant of committment - Order for removal and transfer of inmate - Validity of warrants - Separation of jury after retirement to consider verdict - Common law concerning separation of jury following retirement to consider verdict and before verdict - Validity of s 54(b) of Jury Act 1977 - Repugnancy of State law to the law of England - Conditions required for repugnancy - Validity of Australia Acts 1986 - Inconsistency between decisions of the High Court - Scripture - Coronation oath - Differences between laws of the States concerning juries - Bail - Bail Act 1978 and Habeas Corpus

PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally.

PROCEDURE [112] - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Other matters - Order to attend for cross examination - Disobedience - Whether warrant may issue for arrest of person under Part 47 r 2 without service of notice of motion.

CORPORATIONS [177] - Voluntary administration - Administrator - Appointment - By liquidator - Of liquidator himself - Relevant principles.

CORPORATIONS [180] - Voluntary administration - Creditors' meeting - Application to extend time to convene - Relevant considerations - Extension for lengthy period.

CORPORATIONS [180] - Voluntary administration - Creditors' meeting - Application to extend time to convene - Relevant considerations.

Terminating winding up order - protection of interests of creditors

EQUITY - constructive trusteeship - knowing assistance - whether defendants had knowledge of trustee's dishonest and fraudulent design - CORPORATIONS - authority of officers and agents - usual authority of a national credit manager - whether national credit manager had actual or ostensible authority to bind company to engage a mercantile agent

CORPORATIONS - liquidation - disclaimer of onerous property - whether s 568(1B) of the Corporations Act empowers the Court to make an order varying contractual rights and liabilities by requiring a contractual party to exercise rights under the contract so as to bring forward in time the obligations of the parties with respect to settlement and payment

CRIMINAL LAW - Appeal against conviction - whether murder trial miscarried if jury sought and found irrelevant, inadmissible and highly prejudicial material concerning the appellant.

CRIMINAL LAW: Appeal against conviction - detain for advantage, common assault - complainant former wife of appellant - evidence of prior incidents of violence - whether admissible as tendency evidence - whether directions adequate.

CORPORATIONS - officer's statutory duty of care and diligence - chief financial officer - whether expert's opinion of what a reasonably competent chief financial officer in the defendant's position would do is relevant to the statutory standard and therefore admissible evidence

CORPORATIONS - winding up - application by ASIC on grounds of insolvency - whether ASIC should be required to give undertaking as to damages when seeking appointment of provisional liquidator

Sentencing - manslaughter - conviction after trial for murder - foster carer of young child - death by shaking and blow to head - extent of culpability and seriousness - whether sentence should exceed usual range - relevance of deterrence.

Criminal Law - crimes of dishonesty and breach of trust by senior manager - white collar crime - offer of assistance - suspended sentence provided fulfills undertaking to give assistance

CRIMINAL LAW - EVIDENCE - Application for exclusion of identification evidence under s137 of the Evidence Act - Whether admission of identification evidence would lead to an impermissible process of reasoning on the part of the jury - Whether probative value of evidence outweighed by prejudice

Anti-Discrimination law - child welfare law - whether a Government department that deals with an application by a person to be appointed a foster carer provides a service for the purposes of the Anti-Discrimination Act.

Environmental planning and development - Statutory interpretation - Whether plan inconsistent with Ministerial Direction under s117 of EPAA - Whether Council had power to prepare a plan inconsistent with Ministerial Direction - Whether s 66(b) EPAA breached and whether breach leads to invalidity of plan - Whether provision of plan severable

EQUITABLE ESTOPPEL - Representation made by appellant to protected witnesses - Whether representation was ambiguous - The effect of an ambiguous representation on promissory estoppel - Whether a memorandum of understanding (MOU) signed by the protected witnesses superseded any representation made to them by the appellant - Whether protected witnesses were estopped from denying that they were bound by MOU - Whether appellant was required to pay protected witnesses' income tax in respect of benefits afforded to witness under witness protection scheme - Whether protected witnesses relied on appellant's representations - Whether protected witnesses suffered detriment by going into the witness protection program - Whether failure of the appellant to keep its promise caused protected witnesses to suffer loss - Whether appellant's departure from representation was unconscionable - Whether protected witnesses' criminal conduct affected his and his estate's entitlement to equitable compensation - Whether compensation for the tax liability incurred by protected witness should be paid to administator of estate or to the Australlian Taxation Office. D

CRIMINAL LAW - Defrauding the Commonwealth - Element of loss - Whether evidence thereof - CRIMINAL PROCEDURE - Appeal from committal - Where evidence presented in summary form - Exercise of discretion on appeal - Whether charge should be settled by magistrate

ADMINISTRATIVE LAW - racing tribunal - meaning of "due inquiry" in Statute - procedural fairness - factual determinations - merits review inappropriate - Wednesbury unreasonableness distinguished from review of factual determinations based on irrationality or illogicality - meaning of Briginshaw standard and "comfortably satisfied" in context of administrative tribunal - relevance of informality of procedure and hearsay evidence - evidence "against interest" as applicable to reputation.

CONSTRUCTION - Interpretation of contract - Subdivision - Right to rescission - Vendor of apartments required to proceed with all due expedition to procure subdivision - The builder's failure to proceed diligently - Affect on vendor's obligation - Vendor's requirement to use 'best endeavours' to cause the work to be done - Proper and workmanlike manner - Time within which completion is required.

DAMAGES - Compensation to relatives - Limits to damages in Motor Accidents Compensation Act - What constitutes "net weekly earnings" - Indexation of limit - Application to past earnings.

NEGLIGENCE - Breach of Statutory Duty - Builder injured whilst renovating a house - Failure to erect safety rails - Failure to provide a safety-harness - Breach of statutory duty as owners and occupiers - Appellant disallowed from raising new matter on appeal - Whether appellant carried out construction work.

LOCAL COURTS - Summary prosecution by DPP - charges withdrawn, later reinstated - willingness of complainant to give evidence - no fresh evidence - suggestion of ulterior motive in complainant - delay - whether proceedings an abuse of process

Insurance - Income Protection Policy - Disability

Practice and Procedure - Part 31 Rule 2 Supreme Court Rules order for determination of separate questions - Rationale of Rule - Principles underpinning exercise of relevant discretion - Factors relevant - Orders made

CRIMINAL LAW - Intentional infliction of grievous bodily harm - Death of foetus - Whether death of foetus can constitute grievous bodily harm to mother - Meaning of 'person' in Crimes Act 1900, s 33.