Cases and authorities

[CAVEATS] - Application by plaintiff under s 74MA of the Real Property Act 1900 (NSW) for removal of caveat - Whether the defendant has a caveatable interest by reason of provisions of the National Parks and Wildlife Act 1967 (the 1967 Act) and/or the National Parks and Wildlife Act 1974 (the 1974 Act) - Whether the defendant has an equitable interest in the land by reason of statutory discretion in Director General to transfer relics to Aboriginal owners. [STATUTES] - Construction of s 33D of the 1967 Act and s 83 of the 1974 Act - Meaning of "originally real property" in s 33D(2) of the 1967 Act.

Criminal law - murder by reckless indifference - whether omission to rescue deceased deliberately placed in danger capable of constituting actus reus. - Criminal law - murder by reckless indifference - whether binding, gagging and abandonment of deceased and subsequent omission to rescue deceased from danger constitute a single transaction. - Criminal law - murder by reckless indifference - whether mens rea and actus reus must exist at the same time. - Criminal law - murder by reckless indifference - whether unsuccessful attempt to rescue deceased deliberately placed in danger determines duty to remove danger.

CORPORATIONS - deed of company arrangement - deed incorporating s 553C of Corporations Act - claims by and against company extinguished by deed of company arrangement - whether, after termination of deed, company can sue to recover net amount claimed from defendant

No matter of principle.

Stay of execution - pending hearing of application for special leave to appeal to High Court - no prospects of grant of leave - stay refused. ND

Application for leave to appeal against severity of sentences - plea of guilty to s 25A(1) of the Drug Misuse and Trafficking Act together with two other offences of deemed supply - other offences involving sale and possession of prohibited weapons - matters on Form 1 - appeal dismissed.

Arbitration - existence and terms of contract - whether arbitrators validly appointed - non-compliance with procedures - misconduct - improper procurement.

Appeal from Licensing Court - Error of Law - Wrong test? - Limited exception where construction of Act - Relevance of particular areas within local community

PROCEDURE [112] - Supreme Court procedure - Procedure under Supreme Court Rules - Evidence - Other matters - Application to use at trial evidence taken earlier in the proceedings - Principles applicable.

Availability of verdict of manslaughter on evidence - judge correct to leave three different varieties of manslaughter - lies - verdicts reasonable and supported by the evidence.

Criminal law - robbery in company - Crimes Act 1900 s 97(1) - sentence - adequacy - Crown appeal - Criminal law - appeals - Crown appeals - appeals by convicted persons - different principles applying - Crown delay in lodging appeal - delay in hearing of appeal - relevance - discretion of Court of Criminal Appeal not to intervene notwithstanding appellable error - Criminal Appeal Act 1912 (NSW) s 5D

Criminal law - robbery in company - Crimes Act 1900 (NSW) s 97(1) - sentence - adequacy - Crown appeal - failure of Crown appeal against inadequacy of sentence imposed on co-offender - failure of that appeal turning on Crown delay in filing appeal - relevance to instant appeal - absence of objective or material subjective differences between circumstances of each offender - whether different sentences unjust

Damages - limitation of actions - whether leave to commence proceedings may be granted nunc pro tunc in relation to proceedings for damages brought pursuant to s151D(2) of the Workers Compensation Act 1987, that is, after the expiration of the limitation period prescribed by the section

PRACTICE AND PROCEDURE - review of a determination of the Registrar of the Court of Appeal - Registrar decision to dismiss an application for leave to appeal against a decision of an Appeal Judge to not recuse himself on grounds of bias or apprehended bias,

Guarantee and indemnity. Application to strike out paragraphs of defence - construction of agreement - whether common surety agreement was concluded rather than a guarantee on first demand - abuse of process - partial invalidity. - International Law. Forum non conveniens - coincidence of issues - breach of exclusive jurisdiction clause - submission to jurisdiction by commencement of proceedings. Cross claim stayed so matter could be resolved in German court.

Application to strike out Statement of Claim - professional negligence - adequacy of material filed pursuant to Part 14 r 6 SCR

Conviction appeals - conspiracy to manufacture methylamphetamine - whether adequate directions of law relating to elements of conspiracy - whether irreperable prejudice caused to remaining accused when one alleged co-conspirator pleaded guilty at the conclusion of the Crown case - whether verdicts unsafe and unstisfactory.

NEGLIGENCE - economic loss - failure to properly prepare walls before applying paint - failure to ensure paint properly adhered to walls

REAL PROPERTY - easements - accommodation of the dominant tenement - right capable of forming subject matter of a grant - novel easements - REAL PROPERTY - profit a prendre - profit a rendre - sui generis interest in land - novel interests in land - PRACTICE AND PROCEDURE - competency of appeal - whether appeal against an operative judicial act

MEDICAL TRIBUNAL OF NSW - disciplinary proceedings - permanent stay of complaint relating to specific patient - amendment of complaint to include additional patient - period of time elapsed between alleged conduct and making complaint - delay of patient in lodging complaint with Health Care Complaints Commission - destruction of practitioner's records - whether claimant actually prejudiced - whether impossible for claimant to have a fair trial - ND

Severity appeal - plea of guilty to offence of aggravated dangerous driving occasioning death - circumstance of aggravation being escaping from a police pursuit - impact of R v Whyte upon R v Jurisic - applicant suffered severe injuries - deceased was his best friend.

STRIKE OUT - Failure to disclose a reasonable cause of action - right to immediate distribution prior to estate being administered - mediation agreement - breach thereof - damages - extent - special damages - tests - need to plead duress not merely breach of contract.

FAMILY PROVISION ACT - Former de facto partner - separated at date of death - five year relationship - child of relationship - s 16 factors - sufficiency of explanation - likely prejudice to both parties - unconscionable conduct - moral claim - s 9 additional factors - balance between need created as a result of relationship with the deceased and subsequent events.

Damages - Inquiry by Master as to assessment - Necessity for an order for such an inquiry - Heads of damages - Loss of profits - Concept of unfair "springboard" or "headstart" in respect to profits.

CONTRACTS [28]- Acceptance- Exchange of counterparts- Authority of estate agent. CONTRACTS [165]- Agency- Authority- Extent of real estate agent's general authority.

COSTS - settlement - costs dispute - caveatable interest - reasonableness of parties actions - settlement negotiations - costs in relation to amendment.

EVIDENCE [78] - Facts excluded from proof - On grounds of privilege - Criminating questions - In general - Whether objection can be taken by witness who is controller of corporation whose counsel asks the questions.

Assault - post-hypnosis evidence - whether there is an overlay between two causes of action - trespass - negligence - Williams v Milotin (1957) 97 CLR 465 - appeal dismissed with costs.

NEGLIGENCE - safe system of work - fact finding - no question of principle - APPEAL - written submissions - content where fact finding challenged

Taxation - companies - PAYE tax instalments deducted from employees' wages - failure to pass payment to Taxation Office - breach of statutory obligation - Income Tax Assessment Act 1936 (Cth) s 221F - company directors - personal liability to penalties incurred for breach of statutory obligation - Income Tax Assessment Act 1936 (Cth) s 222AOB, s 222AOJ(3) - whether actions of director "reasonable" - availability of such defence - Statutes - construction - "reasonable" - D

NEGLIGENCE - SAFE SYSTEM OF WORK - NO QUESTION OF PRINCIPLE

PROCEDURE - appeal - stay - prejudice

Costs - Calderbank offer made by respondent - appeal dismissed - application for indemnity costs - no real element of compromise - application refused. ND

CORPORATIONS - Part 5.1 scheme of arrangement - nature of fairness criterion against which scheme is judged upon application for court's approval

professional negligence - discharge of duty of care - information about potential risks - laparoscopic sterilisation - personal injury - classification of risk as "material" - nature and cause of present condition - expert medical opinions - failure to warn

CORPORATIONS - schemes of arrangement - arrangement under special statute incorporating provisions of Corporations Act and Corporations Regulations - whether administrator of scheme has power to consent to variation of creditor's claim - whether Court may extend time for lodgement of claim, notwithstanding provisions of scheme document

COMMERCIAL - application to amend summons - thirteenth defendant retained to audit the financial statements of company - thirteenth defendant participated in a due diligence committee related to a prospectus - whether the auditor's duty of care was breached - whether the auditor engaged in misleading and deceptive conduct - principles relating to the liability of professional advisors discussed - the liabiilty of the auditors under Corporations Law discussed

TRADE PRACTICES AND RELATED MATTERS - jurisdiction - jurisdiction of State court to determine matter arising under the Competition Code - STATUTES - Acts of Parliament - whether definition of "special federal matter" in Jurisdiction of Court (Cross-vesting) Act 1987 picks up definition of "special federal matter" in Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) as at 1987, or as amended from time to time - section 68 Interpretation Act 1987 (NSW) - construction to achieve purpose of legislation - constructing of schemes of more than one statute - construction of statutes as "always speaking" - PROCEDURE - courts and judges generally - transfer of proceeding under section 5 Jurisdiction of Courts (Cross-vesting) Act 1987 - factors relevant to "the interests of justice" - WORDS AND PHRASES - "having regard to"

CORPORATIONS [253]- Winding up- Preference claims- Procedure for trying- Choice of forum and venue.

Review Registrar's decision - privilege

Local Courts: civil claim - appeal - issue of unjust enrichment.

Crown appeal against inadequacy of sentence - respondent convicted of three counts of aggravated sexual assault, one count of aggravated indecent assault and one count of act of indecency - victim was fourteen and the respondent was her stepfather - respondent had significant medical problems arising from spina bifida - no prior convictions - Crown appeal allowed - requirements in Pearce not observed - sentences made wholly concurrent - extent of intervention constrained particularly because of Crown's acquiescence and respondent's health.

Criminal law - sentence - massive heroin importation - one of five co-ffenders appeals against sentence and is dealt with separately - two other co-offenders claim a reduction in their sentences by reason of parity. - Held : no reduction justified