Cases and authorities

CRIMINAL LAW - APPEAL - Identity of inanimate object - Whether s.165 direction required - Need to have defence case fairly before jury - Whether alternative count appropriate - Circumstances in which appeal court can substitute for the verdict found by the jury a verdict of guilty for another offence.

Leave to appeal - application pursuant to s 151D(2) of the Workers Compensation Act - Appeal from District Court to commence proceedings out of time - Leave to appeal to Court of Appeal

CORPORATIONS - winding up - creditors voluntary winding up - application by liquidator seeking to clarify status of moneys received by company - notice to person asserting claim to moneys - arrangement with such person that liquidator seek order of court - court directs that the person be given express notice of adjourned hearing - appropriate form of relief discussed

INSURANCE - REINSURANCE - Reinsurance policy relating to professional indemnity insurance - method of calculating aggregate - policy to be construed in light of commercial objective of reinsured - whether "special condition" was incomplete description of interest covered - whether reference "as per original wording" in "Interest Covered" section of certificate meant that contract of reinsurance to be governed by same terms and conditions as original insurance policy - ASSIGNMENT - CONTRACT - Assignment - whether purported assignments of contract of reinsurance valid - whether potential benefit under contract of reinsurance is a "mere expectancy" and thus incapable of assignment - whether novation required for assignment of contract of reinsurance - whether possible to assign contractual liability - whether possible to assign contractual liability for purpose of s 36 Insurance Act 1973 (Cth)

MORTGAGES - rights of mortgagor - principal sum payable on fixed date - whether mortgagor may redeem early with interest to date of redemption only - effect of notice given by mortgagee under Farm Debt Mediation Act - effect of agreement reached by mediation under the Act - co-existence of statutory right of early redemption with contractual right arising from implied term of such agreement

CORPORATIONS - competing s.237 applications to represent defendant company - directors eventually able to deal with defence - both applications dismissed - liability for costs of applications - PROCEDURE - costs - whether gross sum should be awarded - whether indemnity costs should be awarded - whether costs should be payable forthwith

DAMAGES - breach of contract by repudiation - calculation of damages for loss of opportunity to participate in property re-development joint venture

ADMINISTRATIVE LAW - procedural fairness - Disciplinary Tribunal - complaint established - need to receive further submissions on penalty - apprehended bias

CORPORATIONS - winding up - application for order setting aside statutory demand - alleged genuine dispute - alleged offsetting claim for misleading or deceptive conduct

CORPORATIONS - Winding up - application for order setting aside statutory demand - judgment debt - steps taken to appeal - whether statutory stay of execution, if in force, gives rise to genuine dispute as to existence of debt - whether appeal of itself gives rise to genuine dispute - whether statutory stay of execution represents some other reason why demand should be set aside - PROCEDURE - Local Court judgment for debt - avenue of appeal to Supreme Court - whether leave to appeal needed - whether appeal initiated within time - whether statutory stay of execution in force

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - adoption of report by referee - whether indemnity applies - no question of principle

Order for costs consequent upon a civil claims judgment - judicial discretion - contention that discretion miscarried.

Admission that evidence given at trial was false - quashing of conviction.

Criminal law - sentencing - Crown appeal against sentence - multiple offences - armed robbery - detaining for advantage - "guideline" offence - totality

Motor Accidents Act 1988 - ss40(2) 43, 43A, - Limitation period - Delay in making claim for damages - Full and satisfactory explanation for delay - "court is satisfied" - reasonable person in position of the claimant - justifiability of delay (D)

Slip Rule - variation of award - Costs of appeal - rejection of pre-trial offer of compromise - Calderbank offer - less favourable result - Discretion as to costs - Supreme Court Rules Pt 52A r11 - District Court Rules Pt 39A r 25(6) not bound to apply - absence of renewal of offer - no variation of costs orders. (ND)

Negligence - non-delegable duty of care - labour hire business / "body-hire" company - duty to take reasonable care - where relationship between parties analogous to employer/employee - Safety of plant/machinery - employee training in safety procedures - repair and maintenance - inference of negligence - implied warranty of fitness for purpose - contractual indemnity. (D)

SUBPOENAE - seeking to set aside

CORPORATIONS - winding up - creditor's statutory demand - affidavits supporting application to set aside statutory demand - contents of affidavit - whether affidavit sufficiently indicated ground advanced at hearing

[GUARANTEE] - Whether the Guarantee was unjust within the meaning of that term in the Contracts Review Act 1980 (NSW) - Substantive and procedural injustice - Whether the Guarantors are entitled to a reduction in amount guaranteed by reason of: (a) receipts from other guarantors - (b) alleged prejudicial conduct by creditor - and (c) by reason of provisions of A New Tax System (Goods and Services Tax) Act 1999 (Cth) - [FRANCHISE] - Whether agreements were franchise agreements - Definition of franchise agreement under Franchising Code of Conduct - Duty of disclosure - Consideration of section 51AC of the Trade Practices Act 1974 (Cth) - [MISLEADING OR DECEPTIVE CONDUCT] - Whether the plaintiff made certain representations or whether representations should be implied - Whether representations were misleading or deceptive - Whether reliance was placed on representations to enter into Merger

CORPORATIONS - winding up - annual meetings and final meeting to be convened by liquidator in creditors voluntary winding up - failure by liquidator to convene annual meetings - explanation and undertaking given - annual meetings may be dispensed with

PRACTICE AND PROCEDURE - adjournment - no question of principle

Limitations - extension of time - prejudice from delay whereby fair trial unlikely - clinical notes destroyed - whether significant prejudice - not shown clinical notes likely to bear upon the negligence alleged or causation - extension granted. ND

PROCEDURE [89] - Supreme Court procedure - Procedure under Supreme Court Rules - Parties - Joinder and addition of parties - Joinder of all persons interested in subject matter.

Criminal law - possession of heroin - whether necessary to direct jury that Crown had to negative the possibility that in the possession of someone else - direction depends on evidence and issue at trial - full directions on what was possession - including exclusivity and on burden and standard of proof - the specific direction not required - whether finding of guilt open to jury - finding open.

application for leave to appeal - District Court Judge's refusal to stay proceedings - Dietrich v The Queen (1992) 177 CLR 292 - R v Mosely (1992) 28 NSWLR 735 - costs incurred in the course of an aborted trial - trial aborted due to prosecution fault

CRIMINAL LAW - sentence appeal - application of principle of double jeopardy to Crown appeal against sentence - whether sentence manifestly inadequate - whether failure to properly address objective seriousness of offences - whether accumulation or concurrence of sentences considered - whether principle of totality of criminal behaviour applied - whether adequate weight given to principles of deterrence and denunciation

Negligence - Pedestrians - Running down - Carelessness of pedestrian - Where pedestrian stopped, looked at car and continued to cross

INSURANCE - Professional indemnity policy - Claims made policy - Indemnity for claims made outside period of policy - Requirement of immediate notice of occurrence which might give rise to claim - Failure to give notice - Insurance Contracts Act 1984 (Cth) ss40, 54

Development consent - conditions - s94 - discretion

PRACTICE - APPEAL - COSTS - Plaintiff sues two defendants, and first defendant cross-claims against second defendant seeking an indemnity - Plaintiff's claim dismissed, and cross-claim dismissed for that reason - Plaintiff seeks leave to appeal as against first defendant only, and first defendant seeks leave to cross-appeal against dismissal of its cross-claim - Leave to appeal granted and leave to cross-appeal refused - Whether second defendant "affected by the relief sought by a notice of appeal" or "interested in maintaining the decision under appeal" - Who should pay costs arising from joinder of second defendant on application of first defendant.

Defamation - s7A hearing - Directed verdict - whether evidence capable of identifying first plaintiff (franchisor) - capacity to give rise to imputations.

CORPORATIONS - winding up - application by liquidators of company in voluntary winding up for winding up by the Court - effect of ss 468 and 588FJ - possible effects of directors' and officers' insurance policy - whether grounds sufficient to justify winding up by Court

CORPORATIONS - winding up - distribution of trust funds - difficulty or impossibility of tracing - whether Court should order pooling of funds and proportionate distribution to known claimants

CONTRACTS [37] - General contractual principles - Offer and acceptance - Agreements contemplating execution of formal document - Whether concluded contract - Handwritten agreement executed in counterparts.

CORPORATIONS - interim receiver - company in receivership incurs legal costs through director in defending winding up application - whether director had authority to authorise the incurring of costs - whether interim receiver should recognise and pay costs

Appeal against interlocutory judgment - Crown seeks leave to withdraw acceptance of guilty plea to lesser charge - duty of the prosecution to the Court - prejudice to the accused - adduction additional evidence.

Refusal of appeal against conviction and sentence - appliction to withdraw guilty plea - plea allegedly induced by mental state and pressure by legal representatives - no miscarriage of justice.

Negligence - pedestrian trips in council plaza - drain covered by grates - grates allowed to become unsecured - particular grate not replaced flush - negligent system of maintenance and inspection (ND)

Criminal Law and Procedure - Evidence - Validity of listening device warrants - Lawfulness of the use of the listening devices authorised by the warrants

Practice and Procedure - Application by defendants for leave to file and read as part of their case affidavit by witness - Plaintiff's case closed and plaintiff conducting cross examination of defendants witnesses - Deliberate decision by defendants not to call witness - Alteration to evidentiary landscape - Prejudice to plaintiffs - Overriding purpose rule

Appeal from Master - competence - Justices Act 1902 Part 5 appeal referred to Master - appeal by leave to Court of Appeal

NEGLIGENCE - liability of highway authority to pedestrians - reasonable foreseeability - whether risk far-fetched or fanciful - whether change in height of guard rail constitutes a concealed hazard or trap - ND

Trial Judge's findings of fact - review by appellate Court - competing accounts of incident.

REAL PROPERTY - easements - easement by prescription - lost modern grant - 20 years uninterrupted use - ownership in estate of person who died in 1885 - capacity to grant an easement - acquiescence - requirement of knowledge - whether constructive knowledge sufficient - onus of proof

CRIMINAL LAW - conviction appeal - sexual assault - whether jury verdict unreasonable and not supported by evidence - whether jury should have held a reasonable doubt as to guilt - whether trial miscarried because there was not a separate direction on lies - where counsel for the offender at trial had not sought such a direction - whether absence of an express direction on need for a jury to be satisfied of guilt beyond reasonable doubt of an essential factual element resulted in a miscarriage of justice

Criminal law - child offender - sentence - appeal - multiple armed robberies - fresh evidence to show offender aged 14 not 16, as held by trial judge - ordered to be detained in detention centre - consideration of remitter to trial judge - whether fresh evidence could make any difference - appeal dismissed.