Cases and authorities

COMMERCIAL LIST - Mediation - application to vacate date appointed for mediation - general observations on the duty of legal practitioners in relation to the efficient management of matters in the Commercial List particularly the need to consider at an early stage the possibility of negotiation between the parties or a formal mediation

CHARITIES [45]- Political purpose- Educational trust including aim to change legislation- Whether charitable.

Equity - Fiduciary obligations - whether misuse of confidential information - whether breach of implied term of good faith and fidelity - whether breach of fiduciary duties by employees - extension beyond period of employment - damages for breach of fiduciary duty - causation - breach of sections 181, 182, 183 of Corporations Act.

CORPORATIONS - winding up - winding up commenced in 1991 - identification of law governing such winding up - whether s.563B requires payment of interest on admitted debts - proofs by creditors with interest bearing debts - rights to interest accruing after commencement of winding up

CORPORATIONS - winding up - just and equitable and related grounds - no question of principle

FREEDOM OF INFORMATION - NSW - application for amendment of official records on ground that information incorrect, out-of-date, or misleading - not vehicle for collateral review of merits or validity of official action - JUDICIAL REVIEW - application for amendment of official records not vehicle for collateral review of merits or validity of official action

EVIDENCE - facts excluded from proof - Evidence Act section 122(1) - evidence given with consent - Evidence Act section 122(2) - Evidence Act section 122(4) - disclosure outside court with consent

Family Provision Act - intestacy - son - whether need established - competing needs of defendant - factors mitigating against further provision.

Costs - administration suit - accounts - reasonableness of plaintiff's request - dilatory conduct by executors - executorial duty over-rides family considerations - method of bringing application.

PROCEDURE [24], [92] - Courts and Judges generally - Courts - Concurrent jurisdiction of different courts - Transfer of proceedings under cross-vesting legislation - In general - Onus of proof - Applicant bears "persuasive" onus - Onus not discharged - Supreme Court procedure - Practice under Supreme Court Rules- Appearance - Application for transfer under cross-vesting legislation - Defendants cannot make application under Part 11 r 8 without filing appearance.

CRIMINAL LAW - statutory offence - appeal from a decision of a magistrate sitting in the local court - whether an offence of strict liability or proof of mens rea required - Prevention of Cruelty to Animals Act 1979

Order for costs - agreement between plaintiff and client that he will not have to pay any costs - distinction between such a case and a situation where a party is indemnified against his liability to pay costs - operation of s 208H.

defamation - damages and aggravated damages - proposed further amended statement of claim - imputations - particulars of extrinsic facts and identification - publication and republication - claim in deceit - whether available in respect of allegedly defamatory publication - pleas under the Trade Practices Act 1974 - exemplary damages

LEGAL PRACTITIONER - suspension from practice in foreign jurisdiction - SCR Pt 65A r 3 - automatic suspension in New South Wales unless court otherwise orders - fitness to practise primary consideration - foreign judgment not entitled to recognition - comity not relevant - PRIVATE INTERNATIONAL LAW - foreign order committing to prison - not entitled to recognition - foreign order striking off or suspending legal practitioner - not entitled to recognition

Appeal from Magistrate on error of law - Whether jurisdiction to deal mixed fact and law - Meaning error of law - No evidence

Leave to proceed with Statement of Claim served out of jurisdiction - what constitutes publication in New South Wales when material downloaded from Internet overseas - no abuse of process

PARTNERSHIP - dissolution and winding up - report by Court referee - whether appropriate to adopt - PROCEDURE - Supreme Court procedure - reference of questions under Part 42 Supreme Court Rules - report dealing with matters not referred to referee - no adoption of report

Appeal against conviction and severity of sentence - grievous bodily harm - appeal against conviction dismissed - application for appeal against severity of sentence allowed but appeal dismissed.

Criminal law - Supreme Court (Summary Jurisdiction) Act 1967 - unavailable for federal offences - available only for finite list of State offences - Judiciary Act 1903 (Cth), s68(2) does not alter situation

Sexual harassment - wrongful rejection of evidence - tendency and coincidence evidence - appeal dismissed with costs.

Tort - defamation - newspaper article - allegedly carrying defamatory imputations - jury verdict as to imputations - whether imputations open to jury - whether appeal required leave or lay as of right - D

Administrative law - summons seeking declarations - construction of residential home units - alleged defects in building work - claim by body corporate under insurance scheme - requirements imposed by scheme in considering claim - whether compliance with those requirements - if not, whether declarations should be made - consideration of utility.

CORPORATIONS - provisional liquidation - whether to make orders conferring power of sale on provisional liquidator, where a party seeks, in the alternative, determination of separate questions under Pt 31 - EQUITY - court-appointed receiver - whether to make orders conferring power of sale on provisional liquidator, where a party seeks, in the alternative, determination of separate questions under Pt 31

PROCEDURE - stay of proceedings - whether possibility of criminal charges against defendants warrants stay

Statutory construction (meaning of "to enforce any other remedy") - no errors of law.

TRADE PRACTICES - Consumer Protection - No Misleading or Deceptive Conduct - Meaning of Unconscionable Conduct - Whether it extends beyond Special Disability - Special Disability limited to Incapacity to form Judgment on Best Interests - CONTRACT - Construction and Interpretation of Contracts - Implied term of Good Faith in Commercial Contracts - Implication by Law - Whether Term of Good Faith can be excluded - Pre-contractual documents and Masters v Cameron

Summary dismissal application relating to claim pleaded by Nominal Defendant - rights of Nominal Defendant following satisfaction of claim in respect of uninsured vehicle - whether subrogated to rights of owner of vehicle who would have been liable on claim but for satisfaction by Nominal Defendant - nature of burden on applicant for summary dismissal.

Criminal law - appeal against conviction - whether inappropriate cross-examination by Crown Prosecutor caused trial to miscarry - whether adequate directions by trial judge to rectify any prejudice caused by the cross-examination - Sentencing - severity appeal - whether adequate weight given to strong objective circumstances.

Sentencing - Crown appeal - one count of dangerous driving causing death - one count of aggravated dangerous driving causing grievous bodily harm - whether sentencing judge erred in imposing concurrent sentences - whether sentences manifestly inadequate.

Workers compensation - non-employer tort-feasor - negligence - duty of care - non-delegable duty of care - dangerous defects - construction of lease - duty of maintain under commercial lease - breach of contract - whether inadequate reasons

EVIDENCE - client legal privilege - doctor interviews plaintiff to furnish report to defendant - whether plaintiff's conversation with doctor privileged - PRACTICE & PROCEDURE - doctor interviews plaintiff to furnish report to defendant - report privileged - right of plaintiff to call doctor in his case

CONTRACTS [90]- Illegality- By statute- Unlicensed debt collector- Consequences. CORPORATIONS [257]- Liquidator- Commercial decision to settle litigation- Bounds of challenge. DAMAGES [16]- Contract- Plaintiff if it had to sue client would fail for illegality- Whether any damage flows from denial of chance to do the work.

EQUITY [347] - Equitable remedies - Injunctions - Mandatory injunctions - Other cases - Order to compel delivery of goods - Circumstances where injunction granted on ex parte final hearing.

Extradition - Extradition proceedings before magistrate - review - supporting documents - warrant - dual criminality - extradition objections

COSTS - SOLICITORS RETAINER - INSURANCE - solicitors instructed by insurer to act in defence of District Court proceedings in which judgment given for defendant with costs - defendant company wound up - solicitors file bill of costs for assessment - plaintiff in District Court liable for costs obtains copy of insurance policy - successful defendant not insured under the policy - basis of insurer taking over conduct of proceedings could only be pursuant to insurance contract - defendant company itself had incurred no costs so indemnity of costs order not required - insurer a volunteer - assessment stayed

CRIMINAL LAW -Murder - circumstantial case - trial held 18 years after alleged offence - important evidence lost or destroyed - combination of a number of doubts over evidence - verdict unreasonable and inconsistent with the evidence. - CRIMINAL LAW - Murder - Identification evidence - Identification of deceased rather than accused - whether appropriate that warning to jury be given. - CRIMINAL LAW -Murder -Hearsay evidence - representation - silence or refusal to answer question as an implied representation. - CRIMINAL LAW -Murder - Expert Witness - whether relevantly qualified - highly complex evidence. - CRIMINAL LAW -Murder - Crown recall of Witness - interests of Justice required that the matter be clarified.

Criminal Law - Appeals against inadequacy of sentence - Enter dwelling with intent to commit a serius indictable offence (affray) in circumstantces of aggravation - plea of guilty - Crown appeal allowed (Kollas) - Appeal dismissed (Mitchell).

Importation of prohibited substance under s 233B of the Customs Act 1901 - whether the head sentence was reflective of the appellant's subjective circumstances - s 16A (m) of the Crimes Act 1914 - leave to appeal allowed - appeal dismissed.

Tort - negligence - duty of care - building design and construction - partial collapse of building on plaintiffs' land - during preparation for erection of new structure on plaintiffs' adjacent land - whether engineer advising in relation to erection of new structure owed and breached a relevant duty of care to the plaintiffs - ND

Corporations - listed companies - ASX Business Rules - "Affiliates" and "Participating Organisations" of ASX - breach of Rules - construction - Rule 13.5.1(4) - Rule permitting ASX to charge "an Affiliate or Participating Organisation" with breach of Rules or Prohibited Conduct - meaning of "or" - conjunctive or disjunctive interpretation - purpose of Rule - whether punitive or protective - ND

TORT - recaption of chattel - hire purchase agreement - repossession of vehicle - assault - reasonable force - VICARIOUS LIABILITY - collection of arrears - recaption of chattel - independent contractors - no authorisation to assault

Family law - De facto relationship - Adjustment of interests in property - House property puchased originally in sole name of Defendant and subsequently transferred by him into joint names of Plaintiff and Defendant - Respective contributions of parties - Parties conjointly conducted an illegal gambling enterprise - Court will not lend its aid to make an order adjusting the interests of the parties in the proceeds of that criminal activity - To do so would be highly offensive to public policy - Those proceeds will be disregarded in considering the respective contributions of the parties - Any consequent loss must lie where it falls - Evidence concerning present and likely future needs of parties should be disregarded - Caution should be exercised in applying to claims by a de facto partner under section 20 of the Property (Relationships) Act 1984 (NSW) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Cth) - The Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs - Real Property - Held in co-ownership - Application by one party for appointment of statutory trustees for sale.

INSURANCE - motion for separate questions - whether questions hypothetical - principles applicable when all relevant facts are pleaded

EQUITY - proprietary estoppel through 'encouraged assumption' - remedies - plaintiff's interest in land charged with payment of annual income to defendants - difficulty of measurement of capital value of defendants' right to income - alternative remedies

COMMERCIAL - construction of contract - where contractual term provided for the transfer of rights in a magazine business - where that magazine business had a long association with an awards show - whether the trade marks for the awards show and other photographic material should be included in the interest to be transferred - goodwill - whether the trade marks were a component of the goodwill of the magazine - breach of contract - whether there is an action for inducement of a breach of contract.

WATER & WATERCOURSES - discharge of effluent from sewerage treatment works into swamp - inundation of adjoining land - immunity of Council - extent of - WORDS & PHRASES - "good faith".

PROCEDURE [90]- Representative orders- Infants- Duty of representative- Whether order may be made in respect of unborn children. SUCCESSION [168] [179]- Will- Construction- Gift to grandchildren who survive testatrix- Whether postnates take. WORDS & PHRASES- "Survive".

Misleading and deceptive conduct - Fair Trading Act - valuations - failure to inspect - weight of evidence - damages - scope of damages - not construed narrowly - requires causal link between contravening act and loss - reasonableness of plaintiffs' conduct - onus on plaintiffs to prove damages.