Cases and authorities

Defamation - imputations - capacity

HIGHWAYS - creation - public road - creation by dedication and public acceptance by user before 1864 was inferred from mass of evidence about usage and dealings in C19, consideration of necessity of user for land settlement, and terms of Surveyor's Plan of 1864.

CRIMINAL LAW - appeal against conviction - structuring cash transactions - meaning of "transaction" - whether two or more non-reportable cash transactions - Financial Transaction Reports Act (Cth) s31 - CRIMINAL LAW - evidence - whether Crown case split - whether error in allowing cross-examination by Crown on evidence of unexplained wealth - whether error in allowing Crown case in reply

TRADE - restraint of trade by agreement - validity and reasonableness - sale of medical practice - restraint of 5 years and 8 kilometres held valid but not enforced because purchaser repudiated - numerous issues on alleged breaches of contract in complex chain of agreements on sale of medical practice where vendor was to work as Medical Director in practice management organisation conducted by purchaser.

Criminal law - procedure - summary proceedings - appeal to Supreme Court on setting aside conviction - whether an acquittal can be entered - whether an analogy between Justices Act 1902, s.109 and Criminal Appeal Act 1912, s.8(1) - common principles but nature different - remitter whether necessary to original magistrate - when original magistrate unable to continue - effect of perceived pre-judgment.

Possession of land - Limitation Act 1969, Rural Assistance Act 1989 - power of plaintiff to commence proceedings - waiver

PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Late application - Whether prejudice may be cured.

Imputations - capacity - matter complained of incapable of being understood otherwise than as humerous - no libel

Imputations - corporate plaintiff

Admission on pleading - leave to withdraw - comment - altrenative defences - s16 defence - contextual imputations vis-à-vis failed plaintiff's imputations - s7A(4)(a) Defamation Act

Periodic detention - need to fix term of sentence before considering alternatives to full-time custody

Application for leave to appeal against sentence - plea of guilty to importation of trafficable quantity of cocaine - further material relied on - delay - no credit for time spent in custody in determination of head sentence.

Declaratory relief sought - Construction of company constitution - Accounting services provided by honorary member of committee - Challenge to correctness of annual financial report by independent auditor - D

Resumption or Acquisition of Land - Compensation - Assessment and Related Matters - Particular Properties and Undertakings - Highways - Rights of User and Other Matters - Rights of Access to Highway.

Reserve trust - Whether land rateable - Whether land Crown Land - ND

EVIDENCE [144] - General principles - Civil proceedings - Evidence Act 1995 s 140 - Serious charge - Fraud - PROCEDURE [112] - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Other matters - Affidavits - Affidavit allowed to be read although deponent does not attend for cross examination - Weight to be given to evidence - TRADE AND COMMERCE [32] - Trade and commerce generally - Statutes relating to misleading or deceptive conduct in trade - New South Wales - Interpretation - Whether representation made by agent who is employee on behalf of principal also made by employee personally - TRADE AND COMMERCE [136] - Trade practices and related matters - Enforcement and remedies - Actions for damages - Causation - Causal link between contravening conduct and loss - Extent of reliance on conduct.

Appeal from Tribunal - a question with respect to a matter of law - no evidence rule and procedural fairness - Cross-Claims.

Publication - republication - particulars - imputations of a corporation - capacity - difference in substance

Imputations - corporation - capacity - difference in substance

Imputations - capacity - form - difference in substance

Family Provision. Claim by adult daughter. Consideration of provision made during lifetime. Application refused. Costs and whether indemnity costs should be ordered. - Held: Party and party costs ordered.

Severity of Sentence - Parity of sentences - Relevant facts.

Criminal Law - sentencing - breaking, entering and committing a serious indictable offence - armed robbery

Appeal against sentence consequent on guilty plea - expression of contrition - prospects of rehabilitation - principle of totality - aboriginality.

DAMAGES - future economic loss - no question of principle - NEGLIGENCE - collision case - no question of principle

LOCAL COURT - APPEAL - QUESTIONS OF LAW - RECOGNIZED PRINCIPLES APPLICABLE TO PROCEDURE TO CHALLENGE RETAINER OF SOLICITOR - STATUTORY LIMIT TO APPELLATE INTERVENTION - ABSENCE OF ERROR IN POINT OF LAW RELEVANT TO DECISION

Procedure - application to amend pleadings three days into trial - whether fresh proceedings arguable - whether prejudice to the defendant

Negligence - Contributory negligence - Assessment of damages

Succession - Family Provision - Claim by adult daughter - Financial and material circumstances of Plaintiff - Relationship between Plaintiff and Deceased - Conduct of Plaintiff in respect whereof Deceased expressed concern - Obligation upon Plaintiff to place before the Court appropriate evidence of her needs and requirements and cost of meeting those needs and requirements - Nature of provision to which Plaintiff has established an entitlement.

Imputations - capacity - form

CRIMINAL LAW - Transferring foreign currency - Financial Transactions Reports Act 1988 - Trial judge exercised discretion to not enter conviction - Appeal dismissed.

DEFAMATION - foreign language broadcast - admissibility of transcript of English translation - DEFAMATION - imputations - whether conveyed - inconsistent verdicts - EVIDENCE - foreign language broadcast - transcript of English translation - admissibility - JURY - inconsistent verdicts

Criminal Law - Sentence - Drug courier - Factors to be taken into account - Plea of guilty - Discount of sentence - Size of discount - Criminal Law - Sentence - Factors to be taken into account - Poor health - Skin disease - Rosacea

LIQUOR LAW - licensing - poker machine entitlements - whether lessee of hotel can transfer poker machine entitlements to another person without consent of lessor of hotel - appropriateness of Supreme Court making declarations on matters dependent upon the state of mind of Liquor Administration Board - WORDS AND PHRASES - "in respect of"

Criminal Law and Procedure - Judge's summing up - whether warning under s 165 should be given where co-accused as a witness gives evidence implicating another co-accused.

PROCEDURE - Costs - Plaintiff successful on some claims and unsuccessful on others - Defendants successful on cross-claim - Cross-claim amounts set-off against amounts due to plaintiff in annual accounts of shares of net profits - Judgment for plaintiff in an aggregated single amount - Whether there should be separate orders for costs of claim and cross-claim or orders for costs of both proceedings together - Whether costs should follow the event - Whether dominant or separable issues involved

Prerogative Relief - whether proceedings on show cause notice should be stayed - whether reasonable apprehension of bias on the part of members of the Thoroughbred Racing Board - principles of natural justice

Criminal law - sentence - Crown appeal - cumulation of sentence aggravating circumstance of offence committed on bail - discretion to dismiss appeal notwithstanding sentencing error.

Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3

application for leave to appeal against sentence - plea of guilty - parity - subjective circumstances - remarks on sentence - juvenile co-offender

Termination of action by Deed of Release - Efficacy of Deed of Release - Sufficiency of Deed of Release for application under Pt 11 A r3 - Factors impairing efficacy of Deed of Release

Applications for leave to appeal and cross-appeal - Misappropriation of funds - Discovery s76A Supreme Court - Privilege against self-incrimination - Leave to appeal granted - Appeal allowed - Leave to cross-appeal refused - D

PRACTICE AND PROCEDURE - application by fifth defendant to strike out or dismiss proceedings against him - statement of claim pleads first plaintiff company conducted fraudulent unregistered managed investment scheme - plaintiff company appointed fifth defendant as agent to promote scheme by soliciting funds from investors - court previously ordered scheme to be wound up pursuant to s601EE of the Corporations Act - second and third plaintiffs appointed receivers to wind up the fund - claim of plaintiffs to recover from agent moneys paid to him as commission or fees for his services under various heads of Barnes v Addy, unjust enrichment and money had and received and fraud - no claim investors' moneys held on trust - no facts pleaded to ground any claim of receiver so dismissed - whether claim of fund controller doomed to fail - whether illegality and lack of clean hands defences when raised must succeed

Negligence - action against Council as highway authority for non-feasance - sick tree not removed from edge of road on which it was liable to fall in storm - Council in control of road including edge where tree was growing - duty of Council to take steps to remove obvious danger - duty to institute system for detection and removal of such dangers - whether in circumstances plaintiff was contributorily negligent in driving into the tree during a storm - measure of damages in case of very serious injuries - Griffiths v Kerkemeyer claim for extra attention in intensive care

PROCEDURE [576] - Costs - Departing from general rule - Conduct of parties - Demand, offer and consent - Offer in Calderbank letter - Relevant considerations - REAL PROPERTY [409] - Easements - Easements generally - Creation - By express agreement or under statute - Other matters - Application refused - Costs - Incidence of Conveyancing Act 1919 s 88K(5).

JURISDICTION, PRACTICE AND PROCEDURE - Jurisdiction - Boundaries of Judicial Power - Application for Judicial Advice under the Trustee Act 1925, s 63(1) - Trustee of employee benefit fund - Advice sought as to whether employer contributions are assessable income, are deductible to the employer and are not fringe benefits - Whether limitations upon declaratory relief apply - Whether hypothetical and of no utility in the absence of a proper contradictor - Whether further advice on prosecuting or defending proceedings against the Commissioner of Taxation should he raise assessments was premature

Criminal law - Practice and procedure - Listening device - Warrants - Indicia for grant - Meaning of nature of prescribed offence - Privacy - consideration extends beyond suspect - Alternative means of obtaining evidence - Evidentiary value of evidence - Grant of warrants discretionary - Policy of Listening Devices Act

Negligence - Breach of duty of care - Public swimming pool - D