Cases and authorities

ESTOPPEL [6] - Former adjudication - Judgment inter partes - Res judicata distinguished from issue estoppel - Application seeking order inconsistent with existing interlocutory orders - Existing orders made by consent on settlement of earlier interlocutory hearing - Abuse of process - Whether present application should have been made at earlier hearing.

APPEAL AND NEW TRIAL - plaintiff seeks review of decision of Consumer, Trader and Tenancy Tribunal - whether error of law - whether facts capable of supporting findings - whether "issue" concurrently before Industrial Relations Commission - LANDLORD AND TENANT - residential tenancies legislation - whether right of occupation granted by employment contract arises from "residential tenancy agreement"

LIMITATION OF ACTIONS - extension of the limitation period - whether cause of action - no question of principle

Disciplinary proceedings in ADT - decision given making serious findings against veterinary surgeon - decision on penalty reserved - application in Common Law Division to prevent ADT giving decision on penalty - allegation that ADT denied procedural fairness in relation to penalty - application refused - appeal brought - whether should be relief pending hearing of appeal directed to ADT and preventing giving decision on penalty - nature of relief sought - significance of protective purpose of disciplinary proceedings - prospects of appeal - relief refused. ND

NEGLIGENCE - WORKPLACE INJURY - SUPERVISION - CREDIBILITY - NO SPECIAL POINT OF PRINCIPLE

Appeal decision of CTTT - refusal to grant adjournment

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

CORONIAL INQUEST - Coroners Act 1980, s 19 - Requirements of procedural fairness - Nature of a coronial inquest - Stage at which procedural fairness requires the disclosure of all relevant material to a witness whose interests might be adversely affected by the exercise of the Coroner's powers under s 19 - Circumstances in which the withholding of relevant material from such a witness is necessary to protect the integrity of the investigation - Withholding relevant material for tactical reasons. D

Appeal decision of Local Court Magistrate

Sentence - murder - early plea - assistance to authorities - 18 years with 13.5 years non-parole period

NEGLIGENCE - Statutory Body - Duty of Care - Tort of Intimidation - Misfeasance in a Public Office - Trespass to Goods and to Land - Whether Vicarious Liability of the Boards and of the State.

Evidence - expert opinion evidence - concessions by counsel - whether use of evidence goes to relevance

Fraudulent Conveyances - Conveyances Fraudulent as Against Creditors - Mortgage by husband over interest in property to wife - whether fraudulent as against prospective creditor, a litigant in proceedings against the husband.

Leave applications - Workers Compensation Act, s151D - plaintiff deferred decision to sue in light of legal advice while resolving to keep position under review. - (ND)

Appeal decision of Local Court Magistrate - distribution of milk

Security for costs - Orders made for payment of specific amount - Application to vary orders by substitution of personal guarantee - Principles

LOCAL GOVERNMENT - Building control and town planning - Consent and approval of councils - Development application - Matters for consideration - Need to address question posed by statute - Presumption of regularity - Significance of imposition of conditions.

Motor Vehicle Accident - Injury - Respondent suffering ongoing symptoms - damages - Non-economic loss - assessment of impairment at 30% of a most severe case - whether outside the bounds of sound discretionary judgment - Future out-of-pocket expenses - whether award too generous - Future economic loss - challenge to cushion award - s70A Motor Accidents Act - primary finding of 25% likelihood of diminished future economic capacity - whether finding supported by evidence

Appeal decision of CTTT - alleged non-receipt of notice of hearing

Criminal Law and Procedure - Conspiracy - Defence of multiple conspiracies - whether there should be a verdict by direction.

CRIMINAL LAW - manslaughter - mother's refusal to seek medical treatment for child - duress - Battered Wife Syndrome - sufficiency of summing up - relating evidence to issues in the trial - lies - CRIMINAL LAW - sentencing - manslaughter - mother's refusal to seek medical treatment for child - assistance to authorities - possibility of serving sentence on protection

NEGLIGENCE - medical practitioner - hysterectomy - whether medical practitioner sufficiently advised plaintiff of her condition and options available.

PROCEDURE - application for stay of proceedings - contract-based claims in Supreme Court - subsequent application in Industrial Relations Commission for avoidance or variation of contract - whether Supreme Court proceedings should be stayed pending determination of Commission proceedings

SUCCESSION [168][179]- Will- Construction- Gift to grandchildren who survive testatrix and attain 25- Whether postnates take. WORDS & PHRASES- Meaning of "survive".

Appeal - criminal law - aggravated sexual assault - whether evidence of motive to fabricate false allegation of sexual assault excluded - need for counsel to formulate lines of future questions clearly - Evidence Act, s44(2)(b) - what is requisite to enable court to be satisfied that the document being used to cross-examine a witness will be admitted - whether judge entitled to be informed that document is not that of witness being cross-examined before witness is confronted with it - whether unfair criticism of counsel caused trial to miscarry - damaging admission - attempt to explaint cut short - proviso. (ND)

Sentencing - Crown appeal against manifest inadequacy - whether sentencing judge erred in backdating sentences to date of arrest - whether judge erred in imposing concurrent sentences.

Sentence appeal - social security fraud - no question of principle. ND

CONSTRUCTION, SECURITY OF PAYMENT ADJUDICATION, Whether Adjudicator acted ultra vires in adjudication and determination - whether Adjudicator's determination a nullity - whether payment claim is foundation of jurisdiction of Adjudicator - whether serious issues to be tried - whether Defendant entitled to declarations and summary judgment - HELD: Defendant entitled to recover adjudicated amount from Plaintiff as debt due to it and entitled to summary judgment of $71,086.52

Pleadings - late application for leave to amend defence and file cross claim - case management -

Appeal decision of Local Court Magistrate - Amendment of statement of claim - Adjournment application

TORRENS SYSTEM - caveats - who may lodge - one of two joint tenants assumed to have killed other intentionally and wrongfully - assumed wrongdoer died soon after assumed victim - beneficial accrual to assumed wrongdoer precluded by forfeiture rule - undivided half share accruing held upon constructive trust for estate of assumed victim - whether caveat by executrix of assumed victim precludes registration of executrix of assumed wrongdoer as proprietor by transmission - whether caveat should be removed

Multiple offences - young adult - conditions of custody - grossly disadvantaged background - totality

appeal against severity of sentence - small quantity of heroin - jurisdiction of Local Court - discount for plea of guilty - objective seriousness of counts - manifestly excessive sentence - general and personal deterrence

Parity

application for leave to appeal - severity of sentence - plea of guilty - parity of sentence imposed on co-offender

PROCEDURE - application for stay of judgment pending application for special leave to appeal to High Court - applicable principles - where application for stay of refusal to grant a stay - prospects of success - LEGAL PRACTITIONERS - cancellation of practising certificate - stay application in disciplinary proceedings - applicable principles

Expert valuation of real estate - Contention that expert valuer's figures were negligent - Onus on plaintiff to prove negligent - "Bracket Test" - Utility of "Bracket Test".

Uncorroborated and delayed allegations of sexual impropriety - verdicts unreasonable and inconsistent

Practice - abuse of process - inherent jurisdiction to dismiss action as abuse of process - plaintiffs attempting to relitigate issues decided in earlier proceedings against another party - present defendant witness in earlier proceedings - substantial identify of issues as to defendant's professional conduct in both proceedings - action against defendant dismissed as abuse of process

Succession - Family Provision - Claim by adult daughter - Financial and material circumstances of Plaintiff - Plaintiff must establish areas of need which should be addressed by an order for provision. - Competing claim of beneficiary - Practical consequence of an order for provision in favour of Plaintiff would be to deprive beneficiary of her residence.

EQUITY - equitable contribution - requirement for plaintiff to have actually paid or to be about to be required to pay more than his/her share - contribution dependent on matters of substance not technicality - contribution not available when plaintiff in substance not worse off through circumstances of discharge of liability - EQUITY - equitable contribution - whether now available between joint tortfeasors - EQUITY - limitation of action - application of statutes by analogy - TORTS - THE LAW OF TORTS GENERALLY - joint or several tortfeasors - basis for contribution between joint tortfeasors - whether common law action now available for contribution between joint tortfeasors - LIMITATION OF ACTIONS - contribution between tortfeasors - application of limitation period by analogy if equitable right of contribution were available between tortfeasors - CONTRACTS - whether contract entered in particular circumstances - no consideration of principle - ESTOPPEL - whether estoppel exists in particular circumstances - no consideration of principle

Criminal law - manslaughter - sentence - level of culpability - offender affected by sleep disorder - lacked specific intent for murder - mental state verging on that of automaton - consideration of interim sentencing regime under amending legislation - aggravating and mitigating features - special circumstances found.

Appeal from Local Court - inadequacy of reasons and findings - amendment of grounds of appeal - attempt to litigate matters not ventilated in Local Court - no error of law.

Criminal law - Evidence - Attempt to obtain possession of narcotic goods - More than commercial quantity - Circumstantial case - Prior entry into Australia using false name and documents - False banking and other documentation - Knowledge of goods in possession of accused - Suspicious circumstances combined with failure to make inquiry - Wilful blindness - Specific direction not required - Propensity - Character - Flight - Lies - Credibility - Ambit of s 108(3) of Evidence Act 1995 - Section 108(3) not limited to the particular witness in the witness box against whom relevant allegation made - Limitation on use of prior consistent statement admitted only under s 108(3) - Procedure to be adopted in relation to evidence concerning prior consistent statement - Error - No miscarriage of justice - Role of Appellant more than mere courier, not mastermind but performing organisational role in relevant criminal enterprise