Cases and authorities

Extension of time to commence proceedings - ss60C & E - Add defendant - hand operation

Summary judgment - amend statement of claim - liability of individual members of a club

Extension of time to commence proceedings - ss60C & E Limitation Act - alleged medical negligence

CORPORATIONS - causes of action asserted by company and director/shareholder alleged to have exposed plaintiffs to loss from litigation - no causal connection shown between any such loss and alleged breaches of duty and statutory wrongs

CORPORATIONS - causes of action asserted by company and director/shareholder alleged to have exposed plaintiffs to loss from litigation - no causal connection shown between any such loss and alleged breaches of duty and statutory wrongs

CORPORATIONS - family company with two members - competing applications for relief - one relies on other's allegedly oppressive conduct to seek orders assisting him to exert control - other seeks winding up on basis of mutual loss of trust and confidence

DEFAMATION - action for distinct republication of libel not for same damage as action for earlier publication and not barred by Law Reform (Miscellaneous Provisions) Act 1946 s 5(1)(b) - DEFAMATION - action for republication of libel not barred by judgment for earlier publication - RES JUDICATA - judgment for publication of libel does not bar action for distinct republication of same libel - SUCCESSIVE TORTFEASORS - tortfeasors whose separate acts cause separate damage - not joint or concurrent tortfeasors

Dismissal of proceedings - want of prosecution

application for leave to appeal against order for committal for trial - s104 Justices Act 1902 - charge of defrauding the Commonwealth - Essenbourne Pty Ltd v Commissioner of Taxation [2002] FCA 1577 (unreported, 17 December 2002) - necessity to prove Commonwealth deprived of something of value - costs of or incidental to the proceedings giving rise to the appeal - costs of or incidental to the appeal

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - construction and interpretation of contract - general principles - application of general principles of construction to document containing a plan - contra proferentem rule - REAL PROPERTY - easements - grant under section 88K Conveyancing Act 1919 - payment of compensation

CORPORATIONS - winding up - leave to begin proceedings against company in liquidation - whether Supreme Court of New South Wales can grant leave when winding up order was made by the Supreme Court of Queensland

Appeal decision of Local Court Magistrate - rehearing refused

Criminal law - Appeal - Severity - Fixed term - Concurrent sentence - Convictions for other offences quashed - District Court Judge functus officio - Adjustment of commencement of sentence by Court of Criminal Appeal - No error at time of initial sentencing - Statistics - Changed circumstances - Jurisdiction of Court of Criminal Appeal - Powers of Court of Criminal Appeal to adjust form of sentencejhin8096@mail.usyd.edu.au

Criminal law - Appeal - Severity - Breach of parole - Backdating of sentence - No appearance of double punishment - Amount of money involved only one factor in determining seriousness - Criminal scheme - Serious deception

Criminal law - Appeal - Severity - Aggravated indecent assault - Early plea of guilty - Immediate admissions - Elderly offender - Adverse medical condition - Delay in proceeding to dispose of matter - No previous convictions - No violence involved - Breach of postion of trust - Matter essentially one suitable for Local Court - Maximum penalty in Local Court relevant

CRIMINAL LAW: Sentence - drug supply offences - two co-offenders - whether undue disparity between sentences imposed upon them.

Costs - no question of principle.

District Court - District Court Rules Pt 26 r6A - dismissal on plaintiff's application on terms - costs normally to be borne by plaintiff in accorance with Pt 39 r1A - trial judge's discretion as to costs miscarried. (ND)

Criminal law - indictable offences dealt with summarily - Pt 2 Div 3 subss (18) - (27)

Criminal Law - Sentence following conviction of murder

Family Law. Application under Property (Relationships) Act 1984 in respect of a 31 year relationship. One party contributes house at commencement of relationship. Assessment of contribution.

EQUITY [326]- Inadequacy of common law remedies- Chattels- Principles. PROCEDURE [113]- Judgment- Multiple causes of action- Plaintiff to elect after verdict- In default of election tort claim prevails.

EQUITY - equitable estoppel - whether representations were made - whether representations sufficiently clear to ground estoppel - whether representations were relied upon to plaintiffs' detriment - causation of loss - equitable compensation - measure of recovery

Legal practitioners - appeal against resolution of Law Society refusing application for practising certificate - whether certificate should, if granted, be conditional, and if so upon what conditions.

FRAUD MISREPRESENTATION AND UNDUE INFLUENCE - Undue Influence - medical attendant - de facto relationship- F aged 72 and M aged 36 lived in shared households from about 1983 until she died in 1994 aged 83 M was medical practitioner and GP attending F throughout- treated her, referred her to Specialists and allowed access to medications- she gave him sums of money gifts, surgery, property by series of transactions including sale without payment of expressed consideration and later discharge of her mortgage, she paid purchase price of home purchased in his name as to one-third - no independent advice - no rebuttal of presumption of undue influence - M claimed (1) de facto relationship and (2) this answered the claim of undue influence. On large body of evidence of behaviour of M & F and knowledge and perceptions of relatives, friends and associates, held that there was no de facto relationship- further that relationship of H & W if it existed did not rebut presumption of undue influence. - FAMILY PROVISION - Claim by M failed- prescribed period exceeded and no cause shown to extend- not eligible person- on merits no prospect of success. - WILLS PROBATE AND ADMINISTRATION - Claim to remove administrator based on alleged false evidence relied on in proceedings in which administration granted- dismissed.

CONVEYANCING - Land titles under the Torrens System - Easements - No power to impose conditions on modification or extinguishment - Height restriction a matter for Local Authority - Partial change in alignment a modification - EQUITY - Whether injunction may issue to restrain, temporarily, dominant tenement use of a right of carriage way - Whether provision for compensation may be ordered - PROCEDURE - Whether indication of circumstances in which a right of carraige way might be modified is abstract or hypothetical

Criminal law - sentencing - murder by reckless indifference. - Criminal law - sentencing - involuntary manslaughter. - Criminal law - sentencing - breaking and entering a dwelling house and committing a serious indictable offence in circumstances of aggravation.

PRACTICE AND PROCEDURE - stay - no question of principle

Criminal law - sentencing - hindering investigation of a serious indictable offence.

Appeal from Local Court in civil claim - error of law - no evidence submission - Limitation Act - contract claim - agreements to extend time - when did cause of action accrue - when was breach - waiver

CONVEYANCING [58]- Completion- Purchaser fails to attend settlement- Whether vendor in order to terminate must prove ability to convey. RESTITUTION [35]- Money paid to obtain development consent under contract for sale of land which fails- Whether recoverable as unjust enrichment of vendor.

CONTRACT - agreements - whether binding agreement existed - alleged agreement for formation of a new company to take over distributorship of computer security product from defendant company - whether binding agreement made at meeting between parties - claim for damages and equitable relief - whether defendants estopped from resiling from alleged agreement - whether exemplary damages available

CRIMINAL LAW - Criminal Procedure - Particularisation of facts, matters, and circumstances - Whether adequate particulars provided - CRIMINAL LAW - Liability and capacity - Mens rea - Mens rea not an element of offences - Native Vegetation Conservation Act 1997 - s65 - ENVIRONMENT- General - Unauthorised clearing of trees - whether vicarious liability applies - CRIMINAL LAW - Parties - Liability - Secondary participation - Whether a failure to prevent or permitting or acquiescing in the commission of an offence may be within the concept of secondary participation - EVIDENCE - Witnesses - Where prospective witnesses had declined to provide statements or affidavits - Whether prosecution should be allowed to adduce evidence despite prejudice occasioned by absence of statements or affidavits - CRIMINAL LAW - Double jeopardy - Where issue of double punishment could arise if it were held that double jeopardy does not arise at the prosecution stage - Where overlap of offences - ENVIRONMENT - General - Native Vegetation Conservation Act 1997 - Whether s21(2) and s65 create two distinct offences - Double jeopardy - Likelihood of double jeopardy arising at punishment or conviction stages

Criminal appeal - sentencing - remitter from High Court - many acts of sexual abuse of boys by priest - deterrence - relevance of good character - totality principle

Leave to amend Statement of Claim and to file Cross-Claim - no question of principle.

PROCEDURE - leave to serve subpoena in New Zealand - statutory direction that leave not to be granted if person to be served is under 18 - service on partners of professional firm - whether judge required to inquire into their ages

CORPORATIONS - winding up - application for order for winding up in insolvency on basis of unsatisfied statutory demand - whether statutory presumption of insolvency rebutted

Landlord & Tenant - Appeal from Statutory Tribunal - Limited Jurisdiction - No Case for Intervention by Court

TRUSTS AND TRUSTEES - application for judicial advice - advice relating to the use of fund to pay legal costs and expenses - plaintiff claims trust over most of available funds - whether Court should give directions that the defendant/cross claimant would be justified in using some of those funds for legal costs and expenses of the proceedings

Appeal by way of certiorari from decision of tribunal - misdirection as to standard of proof.

Criminal law - Appeal - Severity - Stealing from the person in circumstances of aggravation - Armed with offensive weapon with intent to commit robbery - Blood filled syringe - Hepatitis C affected blood - Young offender - Reasonable prospects of rehabilitation - No prior criminal record - Family support - Early plea of guilty - Utilitarian value not taken into account

Criminal law - Appeal - Severity - Break and enter offices - Possession of house breaking implements - Multiple offences - Offences committed whilst on parole and on suspended sentences - Aggravating factors - Non acceptance of previous opportunities for rehabilitation - Special circumstances a question of fact - Onus of proof - Statistics relate to highest sentence imposed, not to accumulated sentences - Basis for comparison of sentences

CONTRACT - Indemnity clause by which the Contractor is to indemnify the State for any loss or liability arising from a claim against the State caused by the Contractor's negligence - Personal injury claim against Contractor and State successful - Cross claim by State for Contractor to indemnify it completely in respect of its liability - Cross claim by Contractor against State for a contribution order pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 - Held that State's negligent conduct causing injury to the plaintiff was separate and independent from Contractor's negligent conduct, such that Contractor's negligence did not cause State's loss - State not entitled to be indemnified by the Contractor in respect of the State's liability. ND

Appeal to tribunal - nature of the appeal - statutory scheme - non-disclosure of pecuniary interest - complaints procedure and hearing - no basis for disturbing decisions of the Tribunal.

Family Provision. Application by a defacto partner who was only given a right of residue in matrimonial home. No competing claims and whole estate given to applicant absolutely.