Cases and authorities

PROCEDURE - costs - application for costs order by way of a gross sum - whether affected by counsel being briefed on "direct access" basis - whether costs order should include indemnity for GST - application for costs of order seeking payment out of money paid into Court

LEGAL PRACTITIONERS - ALLEGED CONFLICT OF INTEREST OF SOLICITOR - FORMER EMPLOYEE OF LAW SOCIETY - APPLICATION BY INVESTIGATOR AND RECEIVER - RESTRAINT FROM ACTING - NEED TO IDENTIFY SUBJECT MATTER OF RISK

Probate - Appeal an application for order making provision for appellant out of respondent's estate on basis of need. - D

Claim for possession - application that should have been dealt with in the Possession List - striking out of pleadings and entry of judgment.

MORTGAGES - Remedies of the Mortgagor - Clog on the equity of redemption - Collateral advantage - Option to purchase - Whether transaction, in substance, a mortgage - Whether clog rule binding on single judge - Whether unconscionability the only basis for unenforceability of collateral advantage

Criminal law - Appeal against sentence - Sexual intercourse without consent - Breaking and entering a dwelling house with intent to commit a serious indictable offence - Circumstance of aggravation - Not every reference to a circumstance that may amount to aggravation will infringe the relevant common law or statutory principle in this regard

SENTENCE - supply prohibited drug - whether sentence excessive

REAL PROPERTY - extension of caveat - call option - option defined by reference to plan subsequently varied before Council consent - whether Council consent was consent for purposes of option contract - whether grantor validly terminated option contract - whether caveat should be extended by interlocutory order

Guardianship Tribunal order

CRIMINAL LAW AND PROCEDURE - SENTENCE - ONGOING DRUG (AMPHETAMINE) TRAFFICKING - MULTIPLE SMALL SUPPLIES - PROXIMITY OF SCHOOL TO HOUSE WHEREIN DEALING ARRANGED AND CARRIED OUT - PARITY - SENTENCING PATTERNS - NO SPECIAL POINT OF PRINCIPLE

NEGLIGENCE - Appellant injured when her foot caught in an embedded footprint in concrete - Evidence that tended to establish that respondent had not repaired the footpath was overwhelming - Appellant failed to establish that whomsoever repaired the footpath did so in a negligent manner.

DUST DISEASES - Dust diseases legislation - Dust Diseases Tribunal - Exclusive jurisdiction - Jurisdiction of Supreme Court to hear ancillary or related matters - PROCEDURE - Abuse of process - Application for stay - Associated proceedings between same parties in different courts - Further proceedings involving another party raising issue raised in subject proceedings - Whether stay should be granted - Role of case management

MENTAL HEALTH - protected estates - managers - claim for transfer of management of estate from Protective Commissioner to trustee company - matters for consideration - loss of confidence in Protective Commissioner - no facts given as to reasons for loss of confidence - no breach of duty - competing claims of Protective Commissioner and trustee company - consideration of the level of fees charged against estate

PROCEDURE [114] Appeals- From a Master- Whether to single Judge or Court of Appeal- Whether motion following Family Provision Act order a matter or a trial. WORDS & PHRASES- "Matter".

Corporations Law. Application to set aside statutory demand. Effect of a stay when debt ordered to be paid by instalments. Demand set aside under s 459J(1)(b).

EQUITY [35]- Fiduciary duties- Accountant for Japanese investor- Alleged gift of capital to fiduciary- Fiduciary producing documents on which to base claim- No independent advice- Claim fails. EQUITY [109]- Trust- Whether trust exists- On facts held no. WORDS & PHRASES- "Within"- (within 10 years).

CORPORATIONS - receivers managers and controllers - when receiver appointed "eligible applicant" for purpose of conducting examinations under Part 5.9 Corporations Act 2001 - circumstances for receiver to disclose documents produced under compulsory process for such an examination - CORPORATIONS - winding up - "eligible applicant" appointed to conduct examinations - circumstances in which that "eligible applicant" can disclose documents produced on compulsory process for purpose of the examination

Judicial review - Certiorari - Appeal from Children's Court to District Court - Jurisdiction of District Court

Appeal and New Trial - Appeal - Interference with judge' s findings of fact - Functions of appellate court - Where findings based upon credibility of witnesses - Preference of expert reports - Re-examination of facts - Negligence - Dangerous premises - Liability of Occupier - Obviousness of risk - Illumination of area

Practice and Procedure - interlocutory orders - mareva order - applicable principles

EQUITY [111]- Trusts- Whether trust exists- Written declaration of trust- Minimum communication- Acts done by legal owner inconsistent with trust- Some acts consistent with trust. EVIDENCE [216]- Browne v Dunn (1893) 6 The Reports 67- Effect of failure to cross examine on evidence contained in affidavit and traversed in opposing affidavits.

Family Provision. Application by a daughter. Lecacy awarded - no matter of principle.

Practice and procedure - whether separation of issues of liability and quantification of damages should be ordered - relevant principles

Criminal law - murder - plea of guilty - assistance to authorities - sentence after discount must remain reasonably proportionate to offence.

CRIMINAL LAW - Whether the indictment was defective and bad in law because it contained charges against two persons - Nature of the trial judge's task when summing up - Failure by counsel to raise objections to the trial judge's directions or omissions to direct - Criminal Procedure Act 1986, s 99 - Whether to grant leave under r 4 of the Criminal Appeal Rules to raise certain directions, or omissions to direct, as grounds of appeal - Whether a miscarriage of justice arose with respect to the trial judge's directions or omissions to direct - Whether it was open to the jury to conclude beyond reasonable doubt that the offence was committed in company - Factors for consideration when re-sentencing.

LEAVE TO APPEAL - Costs - whether refusal of insurers to indemnify costs of defendant directors taken into account in costs order in interlocutory proceedings - whether irrelevant consideration where matter not raised below.

APPEALS - Questions of fact - Whether appellable error - CORPORATIONS - General meetings - Votes of members - Chairman appointed proxy - Chairman fills out and lodges, but does not sign, poll paper - Votes counted - Whether chairman failed to vote - Whether breach of Corporations Law s.250A. - CORPORATIONS - Directors - Duties of directors - Director appointed proxy for members - Whether action pursuant to proxy appointment an exercise of a director's powers or a discharge of a director's duties - PROCEDURE - Pleading - Surprise - Natural justice - No allegation by respondent of possible bases for finding as to directors' duties - Whether Court should itself formulate and determine such bases

Costs - Ordinary rule in civil proceedings in Supreme Court - Successful party usually entitled to costs in the absence of misconduct - Procedure - No different rule for governments, government departments or public authorities - Public interest litigation - Personal benefit of party

Plea to Manslaughter - Alcoholic - Excessive self defence

CRIMINAL LAW - SENTENCE - sexual assault - appeal against accumulation in sentence structure - whether trial judge took into account circumstances of custody in finding of special circumstances - whether sentences considered as a whole reflect trial judge's intended result as to variation of statutory non-parole period ratio.

CATCHWORDS: Costs - General Rule - Costs follow the event - Failure to call witnesses at arbitration led to adverse costs order - Fair and just results for costs - Appeal from a discretionary decision of trial judge - Is there conduct that allows the Court to depart from the general rule

Tort - Negligence - Duty of care of council to pedestrian - D

Damages - compensatory damages - aggravated compensatory damages - exemplary damages - - Whether new trial necessary - which judge would hear new trial - Whether Court can re-open matter - Costs

CORPORATIONS - winding up - statutory demand - application to set aside - genuine dispute based on Building and Construction Industry Security of Payment Act shown - allegation of such dispute not shown in any way by s.459G(3) affidavit - offsetting claim also alleged - widely differing amounts attached by serving party to claims for unliquidated damages - whether precise amount necessary when all asserted figures greatly exceed debt claimed by statutory demand

CRIMINAL LAW - Appeal by Director of Public Prosecutions - Criminal Appeal Act 1912 ss 5C and 5F- Drug Misuse and Trafficking Act 1985 - "supply" - permitting or suffering another to supply - corrupt police officer allows dealer to continue supplying in return for ongoing bribes - officer arguably guilty of "supply" (D)

Statutory Interpretation - Telecommunications Act 1997 (Cth) Sch 3 Pt 1 Div 4 cl 7 - "maintain a facility" - whether Council-owned light pole a "facility" under the Act - whether respondent authorised by the Act to remove and replace light pole. (D)

Criminal Law - murder or provocation manslaughter - jury unable to agree - directions

Justices Act - appeal from as Justice - person whose driver licence is cancelled

ARBITRATION [29]- Application for stay- Alleged agreement for rabbinic arbitration- Whether "arbitration" within Commercial Arbitration Act 1984- Held agreement subject to non-fulfilled condition. CONTRACT [109]- Abandonment- Whether an agreement for arbitration was abandoned by inactivity. ESTOPPEL [33]- Promissory estoppel- Alleged promise that liability under deeds would not be enforced.

Justices Act - appeal from a Justice - issues of fact determined without hearing evidence

CRIMINAL LAW AND PROCEDURE - SENTENCE - B.E & S IN CIRCUMSTANCES OF SPECIAL AGGRAVATION - CATASTROPHIC INJURY TO 12 YEAR OLD OCCUPANT OF HOUSE - YOUTHFUL OFFENDER - MATTERS OF PRINCIPLE WELL ESTABLISHED - NO ERROR IN APPLICATION OR ASSESSMENT

APPEAL - interlocutory judgment or order - refusal to set aside grant of administration in common form interlocutory

costs

PROCEDURE - Pleading - Amendment - Requirement to plead material facts - Surprise - Delay.

Nuisance - erection of wall adjacent to plaintiff's property - loss of city views - loss of sunlight - radiated heat - reflection of glare - whether Council negligent - damages awarded.

Leave to appeal - action to recover inter alia costs for legal services - failure to make disclosure required by statute - client not obliged to pay and solicitor not entitled to maintain proceedings to recover costs unless there has been a costs assessment - s 182 applies to quantum meruit claims - distinction between a contract for the provision of legal services and a costs agreement - the action may be summarily struck out.

Severity appeal - parity - justifiable sense of grievance with particular co-offender's sentence.

Criminal law - appeal - application for leave to appeal - refusal of permission to have McKenzie friend - applicant with legal aid dismissed barrister and solicitor who were retained and available - proposed McKenzie friend a fellow prisoner - application refused. (ND)