Cases and authorities

CONTRACTS - General Contractual Principles - Implied Terms - Performance within a reasonable time - Representations that 119 tickets to the World Cup soccer final would be delivered five to seven days before the event - Reasonable time expired five days before the final - Unblocked tickets not in breach of implied term of reasonable fitness for purpose - no secondary contract in substitution that tickets be sold and sale price accounted to plaintiff - TRADE PRACTICES - Consumer Protection - Statement false with respect to defendant but true of affiliated group not causative of relevant loss under Trade Practices Act 1974 (Cth) s 52 - Defendant received second instalment of purchase price when reasonable grounds of which it ought reasonably to have been aware for believing that it would not be able to supply the tickets within a reasonable time in contravention of s 58

PROCEDURE - question raised by judge after judgment reserved and before judgment delivered - whether question should be entertained

Criminal law - murder - judge only trial - mental illness - special verdict - order for detention

CRIMINAL LAW: Crown appeal against sentence - sexual intercourse without consent - victim an elderly woman at home - plea of guilty - special circumstances - 4 years, non-parole period 2 years.

Criminal law - appeal against conviction - leave to appeal against sentence - supply of prohibited drug - heroin - admissibility of voice identification evidence - intercepted telephone conversations - relevance - s 55 (1) Evidence Act 1995 - probative value - whether trial judge's direction on voice identification evidence was adequate - overconfidence in witness - whether witness's prior familiarity with voice identified amounted to unfair prejudice to accused - Evidence Act 1995 s 137 - identification evidence - Evidence Act 1995 s 116 - whether trial judge's summing up was satisfactory - perverse verdict - search warrant - execution of search warrant by night - Jones v Dunkel - failure of accused to call particular witness - failure of Crown to call particular witness - operation of proviso to s 6(1) of Criminal Appeal Act 1912 - where no substantial miscarriage of justice has actually occurred - whether appellant lost a chance, which was fairly open, of being acquitted or lost a real chance of acquittal - Sentencing - consideration of circumstances.

Murder - appeal against conviction - leave to appeal against sentence - supply of questionnaire to jury by trial judge - whether substitute for oral directions - jury request for 'previous testimony' of witness - need for independent pathologist - failure to supply photographic evidence - jury member conflict of interest - circumstantial case - sentence not manifestly excessive - no special circumstances

Crown appeal against sentence - question of parity with a co-offender - respondent has an intellectual disability - sentence held to be manifestly inadequate but appeal dismissed in exercise of court's discretion

Costs - no question of principle

LANDLORD AND TENANT - Abatement of rent when property damaged - Whether affectation by rising damp can be damage - Whether tenant must give notice of claim for abatement - Whether abatement can be claimed in respect of rent already paid.

Negligence - snorkeller hit by motorboat - contributory negligence - volenti non fit injuria - lost earning capacity (ND)

Equity - property law - planning and environment - application for leave to appeal - development application lodged by lot owner - rejection of development application by council - strata scheme - body corporate - owners corporation - whether body corporate can refuse consent to development application - whether body corporate is included in definition of 'owner' - regulation 46(1)(b) EPA Act - whether development application concerned common property - Whether Halpin's case should be reconsidered - jurisdiction of Supreme Court - council - joinder - Whether the rights and liabilities of council were directly affected - notice of contention - D

DAMAGES - personal injuries - no question of principle - COSTS - arbitration - offer of compromise - defendant requests rehearing - judgment increased - appeal - judgment reduced - more than award but less than offer - exceptional circumstances - DCR Pt 39A r 25(6) - special order made

TORT - negligence - duty of care - motor accidents - liability - quantum - Compensation to Relatives Act 1897 - ND

Personal injury claim at common law

Leave to appeal - extension of time - applicant stated would not appeal, then changed its mind - unsatisfactory reason for change of mind - refusing application would not cause injustice to applicant - extension of time refused.

TORT - Duty of care of designers of works, suppliers, contractors and employers to employees exposed to asbestos - Contribution proceedings under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 - Claim for damages by one joint tortfeasor in direct action for damages against other joint tortfeasor for amount first tortfeasor required by contribution proceedings to pay plaintiff - Pure economic loss - Damages representing the costs incurred in defending a third party claim - Apportionment of liability under the Law Reform (Miscellaneous Provisions) Act 1946 - Knowledge of statutory corporations - Right of appeal from the Dust Diseases Tribunal. D

Personal injury claim - action by injured motorcyclist - claim against council conducting road works - whether breach of duty by defendant - if so, whether contributory negligence.

Contract of Insurance - Construction - Identification of the Insured - Joint Venture clause - Extension - Policy extended to "indemnify the Insured in respect of any liability for work undertaken by any Firm, Company or Individual with whom the Insured are operating jointly and any Joint Venture, Joint Company and/or Consortium which includes the insured" - Intention that an insurance cover would be extended to entities other than the named insured should not be readily implied absent there being in the language of the policy or the circumstances, reasons sufficient to justify such a construction.

Evidence - Expert - Ambit of expertise - Opinion evidence - Comparison between the rule of admissibility of opinion evidence under the common law and under the Evidence Act, 1995.

Real property - Co-ownership - Statutory trust for sale - Liability of co-owners for outgoings, costs and expenses - Expenditure incurred for an illegal purpose - Expenditure incurred after appointment of statutory trustee for sale - Property did not increase in value as a result of expenditure - One of four co-owners neither authorised nor was informed of that expenditure - Liability of that co-owner for contribution to such expenditure.

Administrative Law - judicial review of departmental decision as to conditions for enrolment in a selective high school - application for interlocutory relief - balance of convenience - no question of principle

CORPORATIONS - derivative action to assert company's claim - whether Part 2F.1.A of Corporations Act applies to company in liquidation - whether Court's inherent power to authorise creditor or contributory to assert rights of company in liquidation survives Part 2F.1.A - whether Part 2F.1.A applies where general law derivative action commenced before 13 March 2000 - discretionary considerations under Part 2F.1.A - PRACTICE AND PROCEDURE - application for leave to amend statement of claim - delay and prejudice - new claims - LIMITATION OF ACTIONS - whether amendment with leave relates back to time of filing of summons when no new party is joined

Criminal Law - bails - extradition - no question of principle

Practice & Procedure - subpoena - set aside for abuse of process - "fishing" - where attempt to find an alternative case

No question of principle

Information - validity - omission of express reference to element of offence - whether reference to offence section in Act sufficient - whether averment of fact must be explicit - whether no evidence of element of offence is jurisdictional error - s8ZL Taxation Administration Act 1953 - s146 Justices Act 1902

APPEAL - Expedition - Plaintiff's estate not entitled to future economic loss if plaintiff dies before hearing - Whether extreme expedition justified

TRADE PRACTICES - misleading and deceptive conduct by representations - alleged representations found not to have been made - INTELLECTUAL PROPERTY - assignment of copyright - alleged breach of copyright in concept for television series - developed material significantly different from original material

Sentence - Murder - Stabbing - Multiple wounds - 19 year old offender - No actual intention to kill - Killing in course of armed robbery - Killing in public place - Victim a stranger - Objective seriousness of crime - General deterrence - Remorse, contrition - Rehabilitation - Totality - Special circumstances

Sentence - Murder - Stabbing - Multiple wounds - 19 year old offender - No actual intention to kill - Killing in course of armed robbery - Killing in public place - Victim a stranger - Objective seriousness of crime - General deterrence - Remorse - Contrition - Rehabilitation - Totality - Special circumstances - Credits to be given.

Extradition - jurisdiction of Supreme Court - writ of habeas corpus - bilateral treaty prohibiting surrender in certain circumstances - whether proof of such circumstances entitles detainee to release - role of Minister - ss 11, 22 Extradition Act 1988

Extradition - part-heard proceedings in Supreme Court - surrender warrant issued - proceedings under s39B Judiciary Act 1903 - whether should be cross-vested to Federal Court - whether "special reasons" present - whether merits of part-heard proceedings material - s6 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

Criminal Law - murder - conviction appeal - judge sums up on an alternative basis for conviction, but not canvassed by prosecution - whether accused thereby placed at a tactical disadvantage such as to render the trial unfair to him - whether judge erred in directions to the jury on voluntariness and accident - Sentencing - whether judge erred in making no adjustment to sentence for the appellant's Aboriginality - whether sufficient consideration given to appellant's youth - whether sentences manifestly excessive.

DEFAMATION - justification - substantial truth - DEFAMATION - qualified privilege - reasonableness - 'Lange' defence - malice - reckless indifference - lack of honest belief - improper motive - DEFAMATION - damages - harm to reputation - lifestyle - injury to feelings - plaintiff not giving evidence - DEFAMATION - damages - psychiatric injury - DEFAMATION - exemplary damages - APPEAL - credit based findings - 'Abalos' principle - STANDARD OF PROOF - civil case - grave allegations - evidence act s140 - INDENTIFICATION EVIDENCE - civil case - CORROBORATION - civil case - allegations of criminal conduct - ADMISSION BY CONDUCT - interfering with witnesses - lies - COSTS - offer of compromise in defamation case - interest

Large estate - de facto spouse - long & happy relationship - adequacy of provision - role as single mother - whether provision should enable plaintiff to remain out of the workforce until children complete secondary education - community expectations - competing claims - elderly mother - step siblings - primary duty of testator to spouse - children - no provision - reliance on cost of living report - provision for private education.

Sentencing - Principal in cocaine importation - low commercial quantity - Head sentence of 15 years correct - Non-parole period reduced to accord with usual range

Large estate - second wife - long - harmonious marriage - lifestyle - provision and right to reside - substantial provision during lifetime - whether provision adequate - significant role as carer of deceased - no evidence of competing needs.

Personal injuries - Assessment of damages where baby suffered very severe brain damage in car accident - Appropriate provision where plaintiff's condition required a change of his parent's residence to a specially modified house in the vicinity of assistance - The approach required in law to the question of life-expectancy and the contingency of early death - - Having assessed life expectancy, inappropriateness of any further discount for the contingency of early death from the figure assessed for future care - Correct basis for calculation of loss of superannuation benefit - Whether the cost of counselling for the plaintiff's mother could be allowed as reasonably necessary to enable her to care for him - Construction and effect of limits on Griffiths v Kerkemeyer awards imposed by s. 35C of the Motor Vehicles (Third Party Insurance) Act 1942 and s. 72 of the Motor Accidents Act 1988 - Where services are provided by several persons, is there one limit covering all or are there separate limits for each? - Cost of commercial care - Allowance for management fees

EVIDENCE [96] - Admissions and declarations - Admissions - Letters and statements without prejudice - General principles - Communications made in furtherance of the commission of a fraud - Document used in mediation.

Criminal Law - appeal against conviction - principles relating to the exclusion of or limiting the use of evidence for "unfair prejudice" pursuant to ss 136 & 137 of the Evidence Act 1995 - whether trial judge was bound to do so of his own motion - otherwise, no question of principle

CRIMINAL LAW: Sentence - Crown appeal - ongoing supply of heroin and cocaine - whether sentences inadequate - parity with co-offender - attitude of Crown in sentence proceedings.

Sentencing - Lack of parity requiring re-sentencing - no question of principle.

CRIMINAL LAW - appeal against conviction and sentence - murder conviction - Analysis of DNA evidence - witness evidence after lapse of time - identification evidence - Chamberlain direction - whether verdicts unreasonable and supported by the evidence.

CRIMINAL LAW - sentencing - application for guideline judgment - "assault police" - whether appropriate to promulgate guideline - where offence encompasses wide range of offending behaviour - where no history of crown appeals - Crimes Act 1900, s 60(1).

Tendency evidence incorrectly admitted as wrong test applied - highly prejudicial - inadequate warning by judge - verdict unreasonable and not supported by the evidence.