Cases and authorities

PROCEDURE - APPEAL - Refusal to set aside default judgment - Requirement of defences on the merits.

LEASE- Whether retail shop lease- Whether purpose of lease found in lease document or actual use of premises- Approach to construction of Retail Leases Act 1994.

Private industrial law - choice of law - fatal accident in Papua New Guinea - whether necessary for Papua New Guinea statute to be pleaded in proceedings in Supreme Court of New South Wales - effect of failure by either party to plead statute of foreign lex causae - rule in Weldon v Neal - whether Pt 20 r4 of Supreme Court Rules applies to local proceedings involving foreign limitation provision (ND)

Criminal law - appeal on law from magistrate's decision - elements of offences under Regulation made under Prevention of Cruelty to Animals Act 1979 - consideration of definition of person in charge - whether applicable to Australian Quarantine and Inspection Service veterinarian performing functions under Commonwealth law.

Criminal law - justices - private information - review of justices decision - whether charges offences known to the law - whether information complies with Justices Act - whether information otherwise an abuse.

CORPORATIONS - winding up - company deregistered - company in liquidation at time of deregistration - whether reinstatement to register causes liquidator to be again in office

PROCEDURE [105] - Supreme Court Procedure - Practice under Supreme Court Rules - Directions - Non compliance with directions - Inability to conduct case in orderly fashion.

Civil claims - appeal to Supreme Court from Local Court - question of law - terms of sub-bailment - conduct of proceedings before magistrate - proceedings turning on critical fact - whether appeal available - costs - what opportunity to be heard necessary.

TAXES AND DUTIES - Land Tax - Whether husband and wife with a principal place of residence exemption can have a principal place of residence exemption with respect to other premises - Whether the other premises were the principal place of residence of the husband - Whether the Chief Commissioner is entitled on appeal to submit that the exempted premises should be assessed because of the use of a room as an office unknown to the Chief Commissioner before the institution of the application for review

Practice and procedure - Application for leave to amend summons - Prejudice - Separate determination of issues under Supreme Court Rules Part 31 Rule 2 - Experience of the Court in relation to separate question issues

CRIMINAL LAW - Appeal - Opinion of trial judge that facts alleged by Crown do not constitute offence - Whether an interlocutory judgment or order - Firearm fired from car in public place - Whether discharged in or near a public place.

CRIMINAL LAW: Application for leave to appeal against sentence - offences of sexual assault - whether adequate regard to applicant's plea of guilty and remorse - whether finding of premeditation available - failure to take into account protective custody.

Criminal law - appeal against conviction - sentence - voice identification - speech in intercepted telephone calls in Cantonese - police officer hears calls - later identifies voice of speaker from Cantonese speech at interview with police - held evidence rightly admitted - appellant spoken to in Cantonese during interview in which he refused to answer questions - his reply in Cantonese used for voice identification - no impropriety found - vocal sounds not a representation - no legal necessity for recording to make the voice identificaion evidence admissible - no basis for challenge to sentence.

REAL PROPERTY- Torrens System- Fraud- Alteration of document by registration clerk- Whether fraud- Whether attributable to registered proprietor. AGENCY- Principle that he who takes benefit of an authorised agent's act is bound- What is meant by "benefit".

REAL PROPERTY [409] - Easements - Easements generally - Creation - By express agreement or under statute - Other matters - Grant by Court - Reasonably necessary for effective use or development of land - Discretion of Court.

Appeal - Small Claims Division of Local Court - damage to electrical appliances - power surge

Imputations - capacity - capacity to be defamatory - police informer

ARBITRATION - Commercial Arbitration Act 1984 - leave to appeal - whether error of law - whether "no evidence" submission raises error of law arising out of award - whether alleged error substantially affects plaintiff - ARBITRATION - Commercial Arbitration Act 1984 - misconduct - technical misconduct - whether technical misconduct made out - whether discretion to set aside if technical misconduct made out

Tort - malicious prosecution - improper motive - mode of proof - wrongful arrest and false imprisonment - onus of proof - justification - meaning of s 352(2) of the Crimes Act 1900 - police - Director of Public Prosecutions - DPP - inference - speculation - damages - aggravated damages - exemplary damages

TORTS - negligence - duty of care to employee - extent of injuries - conflict in medical evidence tendered in written reports - no oral evidence of doctors - DAMAGES - employment injury - Workers Compensation Act 1987 S151G and S151H - proportion of most extreme case

RESTITUTION - general principles - not a cause of action - need for "injustice" which is an element in restitution to be within a recognised category or a new category justifiable by legal reasoning - need to plead facts demonstrating such a category - no such facts pleaded - factual matters actually relied on by plaintiff to establish a restitutionary claim not made out

SUCCESSION [167]- Specification of beneficiaries- Construction- Proper exercise of will-making power- Bequest to trust to be established- Intention of testator- Court to make will operative where possible- Gift held to be to administrators on trust for parties named as beneficiaries in proposed trusts- New trustees appointed.

Criminal law - sentencing - disposing of stolen property

PROCEDURE - Supreme Court Procedure - Whether judgment should be reopened before entry - Whether the Supreme Court Act 1970, s 94 empowers an order for pre-judgment interest on an award of damages under the Trade Practices Act 1974 (Cth), s 82 - Whether an order for interest under s 82 should be set aside - Whether as a condition of reopening, the plaintiff should be allowed to tender further evidence on interest rates on borrowings or investments as part of the damages under s 82 - Principles applicable to reopening to admit further evidence considered

REAL PROPERTY - Determination of common boundary between two properties - ND

REAL PROPERTY - whether proprietary estoppel - whether party entitled to right of way through Crown land - ND

PRACTICE AND PROCEDURE - leave to appeal - whether claimant's case sufficiently arguable - where no direct evidence of breach of duty of care - whether evidence sufficient to enable the trial judge to find the burden of proof discharged in the absence of any contradiction - review of Registrar's decision to dismiss appeal as incompetent - whether grant of extension of time based upon extraneous or irrelevant matters.

Negligence - causation - foreseeability - PTSD following armed robbery at hotel - whether employer negligent in not employing security guard - whether employee use of heroin with subsequent overdose and brain damage caused by PTSD - nature of decision to take heroin

CORPORATIONS - Whether, where in winding up proceedings the company is precluded from contesting the debt alleged in a statutory demand, and a winding up order is made, the liquidator is estopped from rejecting entirely the petitioning creditor's proof of debt - whether inquiry should be ordered under s 536 into matters relating to a liquidation - construction and scope of s 536 - whether proof of debt should have been dealt with under s 554A - construction and scope of s 554A - whether s 479 (3) was available to a liquidator faced by strenuously disputed and complex claim - whether liquidator as chairperson was entitled to reject proofs of debt for the purpose of voting or should have marked them under reg 5.6.26(2) and allowed the creditors to vote - whether an extension of time should be granted for an appeal against chairperson's ruling.

EVIDENCE [56] - Admissibility and relevancy- Opinion evidence - Expert opinion - Qualifications of witness - Compliance with expert witness code of conduct - Dispensation with compliance.

RECTIFICATION - of mortgage - whether common mistake - whether unilateral mistake and unconscientious taking advantge by defendant of that mistake

CONTRACTS - option to purchase - contractual right to extend time for exercise of option to purchase - whether strict compliance with conditions for exercise of contractual power required - CONTRACTS - substantial performance - field of operation - CONVEYANCING - LAND UNDER THE TORRENS SYSTEM - caveats against dealings - option to purchase confers caveatable interest - EQUITY - relief against forfeiture - when available concerning loss of an option - what is a forfeiture

Criminal Law - appeal against severity of sentence - parity of sentence - totality - use of criminal record.

Criminal Law - appeal against severity of sentence - parity of sentence - totality - use of criminal record.

Criminal law - sentencing - robbery and aggravated robbery

Evidence - Admissibility - Admissions - Police secretly record conversation with suspect - Failure to fully caution - persistent questioning - Whether evidence obtained improperly or whether admission of evidence unfair or unfairly prejudicial - Application of statutory discretions

No question of principle

Construction contract - dispute resolution clause - validity of notice of dispute (ND)

APPLICATION FOR LEAVE TO APPEAL: Judgment at first instance - Grounds of appeal different to issues dealt with in judgment appealed from.

Negligence - personal injuries - alternative statutory counts under Construction Safety Regulations - plaintiff fell from upper floor of building site - plaintiff's case that there was no fence rejected - plaintiff's case that any fence was defective not considered - rule in Browne v Dunn - sufficient if fair notice of alternative case raised by plaintiff in pleadings, opening and evidence in chief - not necessary for plaintiff to cross-examine all of defendants' witnesses on the point - new trial ordered on all issues (ND)

Declarations that the opponent is guilty of professional misconduct and is unfit to remain on the roll of legal practitioners, order that he be removed from the roll. Solicitor - forged clients' signatures on mortgages - mortgaged clients' properties to obtain funds for himself - under influence of bipolar disorder - whether professional misconduct - whether now unfit to remain on the roll of legal practitioners. D

Appeal decision of Local Court Magistrate - joint expert report

CONTRACTS - general contractual principles - whether particular terms included in contract - no question of principle - TRADE AND COMMERCE - statutes relating to misleading or deceptive conduct in trade - whether representations made - whether relied upon - no question of principle

Practice & Procedure- proper parties. Whether a lot holder in a strata plan is a necessary party to a claim in negligence against the builder of the building comprising the Strata Plan. Consideration of section 227 of the Strata Scheme Management Act 1996 and the powers of an Owners Corporation.

CONTRIBUTORY NEGLIGENCE - Personal injury suffered by farm worker when igniting stack of wood - Breach of duty of care by unsafe system of work - Whether finding of contributory negligence can be sustained - Employee's method of igniting stack of wood was knowingly dangerous - Whether employee's actions were part of a prescribed system of work - Apportionment of damages. ND

Criminal Practice & Procedure - inconsistent verdicts - unreasonableness of verdict - use of doubt on one count when resolving issues on other counts - pressure on jury to reach verdict - recklessness in context of consent to sexual intercourse - directions on complaint evidence cf accused's denials