Cases and authorities

Criminal Law and Procedure - Appeal - Appeal against conviction - Question of fitness raised after conviction and sentence

CRIMINAL LAW AND PROCEDURE - NEW EVIDENCE - INTERMITTENT PRESENCE OF VISITORS TO PROPERTY WHERE SEXUAL ASSAULT ALLEGED TO HAVE TAKEN PLACE - CREDIBILITY - ISSUES OF FACT

CRIMINAL LAW: - Sentence - robbery, alternative stealing from the person - plea of guilty to alternative charge - whether judge maintained distinction between robbery and stealing from the person - failure of judge to refer to plea of guilty - factors on re-sentence

FAMILY PROVISION AND MAINTENANCE - no provision made by will of mother for adult daughter - no competing claim of sole beneficiary - statement in will as to reason for omission - provision made by father for daughter - whether provision ought to be made - factors taken into account

Negligence - Council approvals - Stop work order by Council - Stop work order by Workcover - Expert's report for purposes of litigation - Delay on part of party to litigation - Request for irrelevant information - Amendment - Application for trial by jury in civil action - Interests of justice must require jury in proceedings - High threshold - Costs

Extension for leave to appeal - damages for injuries whilst travelling on a train.

INSURANCE - Contract of insurance - Construction - Joint venture clause - Whether such as to extend indemnity to parties other than the insured. - JOINT VENTURE - Contribution - Proceedings by third party against joint venture - Cross-claim brought by joint venture - Benefit of cross-claim assigned to one of joint venturers - Proceedings settled - Sum paid to third party by venturer with benefit of cross-claim reduced by setting off proceeds of cross-claim - Whether contribution from other venturer should be correspondingly reduced.

PRACTICE AND PROCEDURE - costs - interest on costs - whether incipitur rule or allocatur rule is "normal rule" in Equity Division of Supreme Court - whether Court's discretion under s 76 is narrowed by s 95(4) - discretionary considerations where mixed success of parties has been reflected in costs orders

PARTNERSHIP - identity of trustee where earlier trustee of same trust entered into partnership agreement - partnership conducted without written agreement but in accordance with unexecuted form of written agreement - one partner (a company) was identified by name "acting in its capacity as trustee of the Trust or the Trustee ... for the time being of the Avoca No.3 Trust" - that company was in fact trustee of Avoca No.4 Trust, and not of Avoca No.3 Trust - company later appointed plaintiff as new trustee of Avoca No.4 Trust - on the facts, found that the partner was trustee of Avoca No.4 Trust, not of Avoca No.3 Trust, the reference to Avoca No.3 Trust was a misnomer and the plaintiff as new trustee had standing to bring proceedings for winding-up partnership - on the construction of the Deed of Settlement of Avoca No.4 Trust clause 29 it was held that endorsement of the appointment on the Deed of Settlement was not essential for the validity of the appointment of a new trustee.

CORPORATIONS - voluntary administration and winding up - costs orders against deed administrator after termination of deed -whether orders should be limited to assets of company - whether deed administrator entitled to be indemnified for costs -whether deed administrator should be required to pay costs personally

Criminal law - Crown appeal - dangerous driving causing grievous bodily harm - sentence and particularly non-parole period markedly less than range in guideline judgment - severely aggravating circumstances - trial judge's finding of unusual mitigating circumstances in mitigating non-parole period on erroneous view matter could be dealt with in lower court - error in holding matter outside the guidelines - sentence and non-parole period manifestly inadequate - non-parole period disproportionately short but Crown appeal dismissed in exercise of discretion.

Criminal law - appeal from interlocutory decision to refuse permanent stay - principles in Dietrich v The Queen - no error demonstrated

Criminal law - appeal - sentence - drug offence - considerations mitigating length of non-parole period - first time in custody - elderly offender of prior good character - full utilitarian value for plea - prospects of and need for rehabilitation.

ADMINISTRATIVE LAW: Judicial Review - Administrative Decisions Tribunal - Ombudsman Act - Privacy and Personal Information Protection Act

CRIMINAL LAW - Knowingly concerned in supply of ecstacy, cultivation of cannabis - use of premises leased by appellant - requirement of knowledge

Appeal - DAMAGES - negligence - personal injury - evidence - causation - injury received in motor vehicle accident - whether further injury sustained in subsequent motor vehicle accident - apportionment of damages - liability of respondent - whether trial judge's conclusion to discount damages by reason of subsequent accident was correct. - Appeal - DAMAGES - mitigation of damages - whether finding by trial judge of a failure to mitigate was correct. - Appeal - costs order - offers of compromise - District Court Rules Part 39A rule 25 (1A) - whether trial judge took proper account of offers of compromise.

CATCHWORDS: DAMAGES - personal injury suffered in motor vehicle accident - liability for negligence - quantum - damages for non-economic loss, past economic loss, future economic loss, future out of pocket expenses - self-employed (respondent) assessed as employee by trial judge when assessing future economic loss - whether admit new evidence on appeal - failure to adduce evidence - Jones v Dunkel inference - award excessive

WILLS PROBATE and ADMINISTRATION - Will Construction - gift of shares to a company which had no function except as trustee of a discretionary trust was held to be subject to that discretionary trust - direction to executors to transfer the shares so given on 10th anniversary of testatrix' death was held not to postpone passing of beneficial ownership and right of donee to call for transfer earlier - alternatively there was such a right under rule in Saunders v. Vautier - decision on terms of will.

LANDLORD and TENANT - agreement to lease - formation of agreement - correspondence marked "Subject to Lease" and expressing conditions for binding effect requiring execution of formal lease - held no agreement for lease formed, no estoppel or other alleged causes of action

REAL PROPERTY - caveats - whether caveator fourth mortgagee bound to consent to refinancing of mortgages taking priority when total amounts secured in priority are probably increased - SOLICITORS - contracts for sale of land - clauses with conflicting purchase prices - no consideration for reduction in price - duty of solicitors not to mislead

Succession - Family Provision - Claim by two adult children - Financial and material circusmtances of Plaintiffs - Competing claims of beneficiaries (especially of de facto widow) - Whether additional provision for Plaintiffs should be borne by residue or by some other part of the estate.

Contract - construction contract - payment claim - non-payment of amount claimed - Building and Construction Industry Security of Payment Act 1919 (NSW) - progress payment claim - payment schedule of $Nil - adjudication - attempted service of adjudication application - appointment of adjudicator - failure to provide adjudication response - validity of acceptance of appointment by adjudicator - jurisdiction of adjudicator to adjudicate - validity of determination given by adjudicator - sections 13, 14, 17, 19, 20, 21, 31 of the Act - Service - ordinary meaning of "service" - validity of service of documents on legal representatives - principles of actual or ostensible authority in solicitors to receive service of copies of relevant notices - statutory construction - formal and strict requirements to observe time stipulations in the Act

INSURANCE - CONSTRUCTION OF POLICY DOCUMENTS - CONTRA PROFERENTEM PRINCIPLE - Whether Defendant obliged to indemnify Plaintiff in accordance with insurance policy - Whether declaration and order for payment be made - Whether failure to cancel existing insurance policy prevents recovery of payment - Whether intention of parties to incorporate condition as part of insurance contract. - HELD Plaintiff entitled to declaration and order sought in summons. - CONTRACT - AGENCY - Whether Cross Defendant to Second Amended Cross Claim liable to indemnify Defendant against loss suffered. - HELD Cross Claim dismissed.

CORPORATIONS - voluntary administration - company insolvent - creditors other than plaintiff limited to sole proprietor and associates - administration timed to stifle hearing of District Court proceedings brought by plaintiff - deed of company arrangement of doubtful viability proposed - whether administration abuse of provisions of Part 5.3A - whether company should be wound up

Leave to appeal against sentence - Break, enter and steal - take and drive a conveyance without consent - larceny - Form 1 offence - - Accumulation - non-parole period - special circumstances -

NEGLIGENCE - occupier's liability - breach of duty of care - appellant injured while removing rubbish from his truck at rubbish tip - appellant an independent contractor who had frequented the tip previously - whether appellant had been directed to the proper area for disposal of his rubbish load - whether the respondent undertook a proper inspection of loads - EVIDENCE - failure to call witness - Jones v Dunkel inference - APPEAL - admission of fresh evidence on appeal - D

[STATUTORY ADJUDICATION] -Statutory regime for recovery of progress payments under construction contracts - Application for injunction permanently restraining an adjudication - Whether adjudicator validly appointed - Whether adjudicator has jurisdiction to determine a dispute in relation to a Payment Claim that contained a claim conceded to be appropriately made under s 13 of the Building and Construction Industry Security of Payment Act 1999, but which also included a contentious claim for damages or loss of profits for alleged wrongful repudiation of a contract.

CRIMINAL ASSETS RECOVERY - PROCEEDS ASSESSMENT - CLAIMS FOR RELIEF FROM FORFEITURE - ONUS - EVIDENCE

CONVEYANCING - construction of contract - no question of principle

CONTRACT - REAL PROPERTY - STRATA TITLES - Agreement for caretaker services to a large complex of strata units - Whether amounted to delegation of functions of owners corporation in breach of Strata Schemes Management Act 1996

Appeal seeking payment of relevant superannuation allowance on discharge from office.

The respondent was injured at Dubbo cattle saleyards, which are operated by the appellant. He commenced an action against his employers, Elders and the Council. The respondent and Elders settled. The appellant then called for production of the medical reports served by Elders on the respondent. The Plaintiff claimed legal privilege and would only produce them if ordered to do so by the Court. The trial judge held that the documents were privileged. - EVIDENCE - ss 121, 122 Evidence Act 1995 - privilege - whether privilege waived when medical expert reports served - when is privilege waived? Obligations under SCR Pt 36(13) and (13A) - ND

Costs - application to revist proposed costs order - reasonable expectation of costs order following amendment application only in the usual course

Principles - Interest - Costs - Judgment for causes of action abandoned

Evidence - relevance - BMX track - earlier fatal accident at same track - forseeability of harm - Evidence - expert's opinion/reports - need for report and evidence to expose reasoning showing how expert opinion based on specialized knowledge training or experience

Criminal law - sentencing - parity

CRIMINAL LAW: Evidence - Credibility - Satisfaction of burden of proof - Findings in aggravation of sentence - Parity

Appeal - Mediation Agreement - Evidence - Whether entered into in good faith - whether obtained by unconscionable conduct. - Appeal - Courts and Judges - Bias - Claim of actual or ostensible bias - No material support - No objection taken during trial - Waiver of subsequent right to complain.

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - other matters - costs - whether full costs to be awarded when comparatively small award obtained - PROCEDURE - costs - application under Property (Relationships) Act for constructive trust - comparatively small order obtained - appropriate order for costs

PROCEDURE - Supreme Court procedure - subpoenas - extent of obligation to tender "reasonable expenses" at time of service of subpoena - extent of rights of recipient of subpoena to recover expenses and loss involved in complying with subpoena - WORDS AND PHRASES - "expenses" - "loss"

Criminal law - pending murder trial - pre-trial ruling as to matreial objected to as irrelevant or to be excluded on basis prejudicial effect outweighs probative value

Assessment of Damages - effect of pre-existing injury - extent of injury suffered in accident - economic loss - out of pocket expenses - vicissitudes - non-economic loss - applicable tax rate to be applied to economic loss

BANKING - Appropriation of payment - what constituted a "true inference" to appropriate - authority to debit payments on Bank's part - does it preclude earlier appropriation by debtor by deposit into trading account - Can a deposit into a certain account suffice for an appropriation vis a vis the Bank.

Criminal law - sentence - appeal - multiple offences part of a continuing series of offences - totality of criminality and sentence - cumulation and concurrence of sentences.

Criminal law - sentence - Crown appeal - asserted inadequacy of 18 month suspended sentences - crime of violence - young offender's prospects of rehabilitation - most unusual circumstances - discretion of trial judge.

Appeal seeking an extension of time in which to bring an action for damages for personal injury.

LAND AND ENVIRONMENT - Reasonableness of conditions imposed under a contributions plan - Right of review by court - Standard of reasonableness - s94(12) of the Environmental Planning and Assessment Act 1979

Criminal law - sentencing - murder