Cases and authorities

Criminal Law - Crown Appeal - maliciously wound with intent to do grievous bodily harm - manifestly inadequate sentence - totality - double jeopardy.

Criminal Law - Summing up - directions- corroboration - onus of proof - reasonable doubt - lies - need for scrutiny of complainant's evidence - Criminal Law - Crown Prosecutor's final address - demeanour of complainant - tears - reference to - Evidence - second trial after jury in first trial discharged - witness overseas - whether "unavailable" - whether witness' evidence in previous trial admissible - depositions - Words and phrases - depositions

Conviction appeal - murder - Jones v Dunkel direction against accused - no evidence that witness available - duty of Crown - no onus on defence to call any witness

Criminal law - appeal - inconsistant verdicts - applicable principles - directions to juries

Leave to withdraw pleas of guilty refused - not entered under undue pressure - judge entitled to revoke bail - serious frauds - strong Crown case - sentences not excessive

CRIMINAL PROCEDURE - fitness to plead - where trial judge ordered permanent stay of proceedings as abuse of process - test for ordering permanent stay - whether procedure for determining fitness to plead in Mental Health (Criminal Procedure) Act 1990 should have been allowed to operate - relationship between Mental Health (Criminal Procedure) Act and inherent jurisdiction of superior courts.

LIMITATION - extension of time - informed decision not to sue - change of mind - explanation - pressure from husband led to first decision - discovery of his adultery led to second decision - no prejudice - extension granted - D

CHILDREN'S COURT - Whether Children's Court has power to make an order providing for parents to have contact with child in foster care in form requiring DOCS to pay rail/bus fares and reasonable accommodation expenses of parents - Statutory interpretation - Possible sources of power - Children and Young Persons (Care and Protection) Act 1998 s 74 - Children's Court Act 1987, s 15 - Implied power. D

Personal injury - fall from bicycle - whether judge entitled to accept plaintiff's evidence - whether judge misapprehended plaintiff's evidence and erred in findings as to fall - whether this error vitiated holding as to breach of duty - no question of principle.

Damages appeal - psychiatric illness stemming from bungled police operation - credibility-based findings as to causation and impact of injuries - absence of reasons - hopeless appeal - expressions of concern about why and how it was prosecuted (ND)

CRIMINAL LAW – Sentencing – Declaratory relief sought where ambiguity as to the length of non-parole period imposed – what constitutes the record of sentence in a s 51A matter – whether sentence contrary to law or failing to impose a penalty so as to attract the jurisdiction to reopen under s 43 of the Crimes (Sentencing Procedure) Act – whether declaratory relief appropriate in the circumstances.

NEGLIGENCE - Claim by parents for damages for mental trauma resulting from death of son who fell down cliff at reserve maintained by opponent - Whether opponent should have installed safety fences - Whether opponent should have erected warning signs - Whether the risk of cliff edges being proximate to picnic area or bush path was obvious. ND

NEGLIGENCE - Causation - Conflicting medical reports - Whether it was open to the trial judge to reject medical opinions in determining causation on the basis of unreliability - What is required to warrant an appeal court disturbing the finding of a lower court in relation to causation - Burden of proof - Damages - Whether trial judge should have awarded damages for non-economic loss - ND

CORPORATIONS [195]- Controller- Receivers' fees- Company charge- Application to compel receivers to pay over surplus of collection before their fees fixed- Other secured creditor claiming surplus- Analysis of causes of action. MORTGAGES [6]- Moneys secured- Costs and fees- Normally mortgagee's internal costs of the mortgage not included- Question of construction- Receivers' fees sometimes secured.

Defamation - practice and procedure - requirement of compliance with consent order to file defence notwithstanding separate question of law to be argued

Deeds -- Whether deed handed over in escrow pending the making of a loan -- Held not as it was merely a recording of an existing indebteness -- Setting aside of deed under Contracts Review Act as one covenantor had not recieved any of the funds lent and acknowledged in the deed

TRUSTS AND TRUSTEES- After end of domestic relationship between Story (Appointor of Trust) and 2D, plaintiff claiming to be New Trustee of T & C Trust sued to establish charges over 2D's house by tracing proceeds of disposition of Option to Purchase investment property through several forms of investment- Option was assigned to 1D and P alleged that 1D declared trust of the option and proceeds by document under seal and signed by 1D's directors (who were 2D and 3D)- Defendants disputed authenticity of declaration of trust- on complex facts it was found that the declaration of trust was not authentic document of 1D- numerous factual questions relating to tracing- appointments of new trustees were not within power in Deed of Settlement and plaintiff had no standing to enforce interests of T & C Trust.

CRIMINAL LAW - Sentence

CORPORATIONS [248]- Winding up- Effect on transactions- Uncommercial transaction- What is- Order made varying price.

Family Provision Act -- Claim by husband of deceased -- Large estate left to daughters of deceased's prior marriage -- Legacy to plaintiff substantially increased

EVIDENCE - character evidence in civil proceedings - whether evidence relevant - whether evidence admissible as opinion evidence - whether evidence admissible under tendency rule - whether evidence should be excluded on discretionary grounds

Criminal law - sentence - multiple murders - single episode - previously sentenced for same crimes to determinate sentences - previous sentences set aside following offenders' successful appeals - presently convicted of a lesser number of crimes - persuasive effect of previous order - whether criteria for life sentences met - discretion not to impose life sentence.

CORPORATIONS - winding up - application for appointment of special purpose liquidator to investigate renounceable rights issues - whether liquidator in a position of conflict - whether any possible claim - whether imminent expiry of limitation period for one suggested claim justified appointment - whether appointment should be restricted to avoid expense in enquiries on a matter which would be determined in other proceedings

PRACTICE AND PROCEDURE - costs - application for stay of proceedings - relevant considerations

PROCEDURE - Summary Termination - Principles involved - Re-litigation of issues as abuse of process - Principles involved - Earlier unsuccessful litigation to set aside a settlement on grounds of wrongful inducement by counsel - Whether current proceedings against instructing solicitor for acting in concert sustainable

CONFLICT OF LAWS - private international law - stay of proceedings - appropriateness of forum - statutory jurisdiction - relevant considerations - Supreme Court Rules 1970 (NSW) Pt 10, r 6A - Pt 11, r 8A

Criminal law - sentencing - totality

Criminal law - appeal - sexual offences against boys - long delay in complaint - directions as to effect of delay inadequate - error conceded - error amounts to miscarriage - proviso cannot be applied - whether to order new trial or acquittal - sentence substantially served - little if any corroboration - offences over 30 years old - discretion to order new trial not exercised - convictions and sentences quashed - later sentences cumulative on sentences set aside - commencement date of sentences on those matters varied so that all custody served applied to those offences.

Conviction appeal - sexual assault - effect of long delay - sufficiency of directions - conviction quashed

Criminal Practice & Procedure - applicant mentally unwell but not insane - deterrence - whether sentence gave proper weight to mental state

application for leave to appeal against severity of sentences - sexual assault on own children - form 1 offences - history of offences - assistance to authorities - parity of sentences of co-offender - concurrency of sentences - totality principle

DUTY OF CARE - content of duty - failure to warn - CAUSATION - whether advice would have been acted upon - FAILURE TO TAKE INTO ACCOUNT EVIDENCE - whether evidence that advice potentially harmful - Browne v Dunn - DAMAGES - whether excessive

COSTS - how costs should be divided as between the parties - whether costs order should be made on a party/party basis or an indemnity basis - ND

Residential Tenancies Act 1987 s68 - meaning of injury - whether recovery limited to recognisable psychiatric illness or extending to other forms of emotional disturbance

SUCCESSION - proceedings against executors and administrators - duty of legal personal representative upon sale for purposes of administration - duty to make advantageous sale - standing of residuary beneficiaries - whether purchaser took with knowledge of breach of duty - whether property sold by administrator held by purchaser on trust for residuary beneficiaries - whether residuary beneficiaries have right to damages against administrator

CORPORATIONS - voluntary administration - appointment of joint administrators by provisional liquidator - need for leave of court where provisional liquidator and his partner to be appointed - factors relevant to grant of leave - abbreviation of new administration where some steps taken under earlier administration

possession - mortgage - registration indefeasible by title despite alleged fraud

Imputations - capacity - form

SUCCESSION [322]- Family Provision application- Principles upon which relief granted- Claim by child of testator- Adult daughter only left $10- Test to be applied when assessing whether the court should make an order under the Family Provision Act- Two-stage test- Considerations when estate is of small value- Considerations when applicant entitled to a government pension- Circumstances to be considered.

Manslaughter Plea

Criminal Law and Procedure - Appeal against sentence - question of parity with co-offender.

Appeal - sentence - no question of principle

CRIMINAL LAW - appeal on conviction for theft - whether trial judge should have admitted tendency/coincidence evidence - ND

Personal injury - plaintiff burnt by below-ground hot coals at rubbish tip - whether evidence sufficient to prove tip managed by burning rubbish and covering it with soil - whether sufficient to prove negligence - whether plaintiff had to prove tip not conducted by contractor to defendant. ND