Cases and authorities

PROCEDURE [111] - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Subpoenas - To produce documents - Questions as to existence or possession - How determined.

Agreement reached between parties to application for leave to appeal - Agreement contained an undertaking to the Court - Agreement contained in Orders of the Court - Application to vary or abandon agreement and to replace it with a different undertaking based on circumstances created by a third party alleged to be circumstances that could not have been contemplated.

CRIMINAL PRACTICE & PROCEDURE - Parity - Discount for plea of guilty on utilitarian grounds - Home invasion

Motor accident - assessment of damages - whether properly addressed - flawed in a number of respects - new trial necessary - no question of principle. ND

Criminal Law Practice and Procedure - Sentence - Failure to apply Pearce v The Queen - Motor Traffic - Disqualification from driving - effect of taking matters into account on sentence - no conviction - Habitual traffic offender provisions have no application.

CORPORATIONS - voluntary administration - doubt as to validity of appointment of directors who resolved to appoint voluntary administrators - issue pressed after administrators had become liquidators - whether Court should make curative orders under s 1322 or s 447A of Corporations Act, or a declaration with respect to validity of directors' conduct under s 201M

GUARANTEE AND INDEMNITY - rights of surety - to mandatory quia timet order requiring principal debtor to pay the debt - basis of order - vailability when action for account on foot between surety and principal debtor - REAL PROPERTY - co-owners - co-owners have mortgaged land to secure debt of one of the co-owners - action for account on foot between co-owners - whether surety co-owner entitled to require principal debtor co-owner to discharge mortgage - EQUITY - surety's equity of exoneration - basis for - EQUITY - subrogation to mortgage when mortgage paid out - application between co-owners

Application to strike out s7A defence - for default judgment - Civil Liabilities Act 2002

Jury trial - false imprisonment - Supreme Court Act s89(2)(a) - "local investigation"

LEGAL PRACTITIONERS - action against barrister in respect of conduct of appeal - advocate's immunity from suit - whether argument should have been presented of apprehended bias on the part of the trial judge - counsel's paramount duty to the Court - PRACTICE AND PROCEDURE - circumstances where proceeding was required to be summarily dismissed

TRADE PRACTICES - Fair Trading Act - misleading and deceptive conduct in trade and commerce - financial information provided in application for participation in Travel Compensation Fund and in applications for renewal of participation - whether misleading or deceptive - whether Fund's loss through meeting compensation claims recoverable against licensed travel agent, a person involved in the misrepresentations, an accountant and an auditor - causation - NEGLIGENCE - negligent misstatements by accountant and auditor - reliance and causation - TRAVEL AGENTS - Fund's right of subrogation under Travel Agents Act - right of recovery against travel agent through subrogation to claimants' rights

Amend name of defendant - effective date - medical negligence

Negligence - misleading and deceptive conduct - solicitors - finance brokers

Criminal Law and Procedure - conspiracy to supply large commercial quantity of heroin - conviction appeal only - evidence of "possession" (of set of keys) - admissibility in circumstances - directions as to possession - search warrants - validity - intercepted telephone calls as basis therefor - "expert" evidence on coded language

District Court - psychologically injured worker - safe system of work - appeal allowed.

LEASES - statutory duty of lessor under Retail Leases Act not to engage in unconscionable conduct - covenant for quiet enjoyment - derogation from grant - implied good faith obligation - proposal by shopping centre lessor to supply to shoppers free of charge services supplied by tenant's business - INJUNCTION - interlocutory injunction - whether serious question to be tried - balance of convenience

PROCEDURE [101] - Supreme Court procedure - Procedure under Supreme Court Rules - Amendment - Justice between parties - Impact on Court efficiency - Possibility of issues of Anshun estoppel if amendment refused.

EQUITY - general principles and maxims of equity - a person who comes to equity must have clean hands - need for "an immediate and necessary relation to the equity sued for" - application where equity sued for is to avoid a contract because of mistake - PROCEDURE - Supreme Court procedure - pleading - defence of estoppel - need for pleading to state with particularity facts showing why the estoppel arises - whether appropriate to grant leave to re-plead

COMMERCIAL - arbitration - application for leave to appeal - whether there was an error on the face of the award in relation to latent conditions - whether there was an error in relation to overheads and profit - whether there was an error in relation to excess spoil removal - whether arbitrator had considered the contractual documents when making his decision - leave granted in part

CRIMINAL LAW - Sentence - Murder - pleas of guilty.

Negligence - claim against medical practitioner - whether breach of duty of care - whether any breach causative of harm.

PROCEDURE - Supreme Court procedure - Mareva orders - effect of breadth in orders - effect of delay in seeking orders - relationship between terms of Mareva orders, and final orders sought in proceedings - effect of discovery having already been ordered against proposed subject of Mareva orders - effect of proposed subject of Mareva orders having already been examined in liquidator's examination

Criminal Law - proceedings after conviction - sentenced for manslaughter

CORPORATIONS - winding up - liquidator - approval required to enter into agreement of greater than three months duration - approval sought after the event

TRADE PRACTICES - Consumer Protection - No Misleading or Deceptive Conduct - No Unconscionable Conduct - EQUITY - Fiduciary Obligations - If a Fiduciary Relationship no Breach of Duty - CONTRACT - Construction and Interpretation of Contracts - Best Efforts Clause - EVIDENCE - Admissibility and Relevancy - Rejection of Expert Report - No Criteria for Evaluation - JURISDICTION, PRACTICE AND PROCEDURE - Courses of Evidence, Statements and Addresses - Refusal of Leave to Re-open Case - DAMAGES - Damages Sustained by Shareholders as Mere Reflection of Losses Sustained by Company Irrecoverable

Defamation - contextual imputations - whether capable of arising - if so whether capable of attracting the defence under s16 of the Defamation Act 1974

Defamation - TV program in three segments - defamatory imputation said to arise out of segment two - should the plaintiff be compelled to plead the whole program.

Order for compensation - sentence appeal - no parity issue

TORT - Joint tort feasers - Contribution - Dismissal of proceedings against one defendant for non-compliance with Motor Accidents Act 1988 - Whether contribution could be claimed from that defendant.

Sentencing - Crown appeal - alleged manifest inadequacy of sentence - bond granted for blackmail - sentence inadequate - respondent suffering from mental illness - major depressive disorder - exercise by Court of its residual discretion.

Torrens system - indefeasibility of title - signature of mortgagor forged - mortgage registered - no fraud by mortgagee - whether any personal equity - application for summary judgment - whether any real question to be tried.

Imputations - rhetorical - s7A trial orders

NEGLIGENCE - HIGHWAY RULE - FOOTPATH - DUTY OF CARE TO PEDESTRIAN

Tort - negligence - duty of care - existence and scope of duty - whether council owed plaintiff a duty of care to ensure pavement in a safe condition - nonfeasance - Local government - councils - liability in tort - nonfeasance - relevance of budgetary allocation for pavement repairs to assessment of breach of any duty of care - ND

NEGLIGENCE - HIGHWAY RULE - DUTY OF CARE TO PEDESTRIAN

Imputations - capacity

Imputations - capacity - form

CORPORATIONS - alleged insider trading - whether grantee of option to purchase shares at price significantly below market price possesses price sensitive information - exception for information concerning own proposed or actual transactions - takeovers - alleged acquisition of shares in contravention of 20% threshold - effect of pari passu allotment and prospectus allotment exceptions

Monetary judgment - summary relief - was memorandum incorporated into mortgage and other defences and cross-claims - certificate and quantum of judgment.

Criminal Practice and Procedure - Crown Appeal - whether cumulation of sentences required - application of Pearce v The Queen - Seriousness of fraud by solicitors

Refusal of development application - appeal by applicant to Land and Environment Court - objector given leave to participate - appeal allowed - whether objector can appeal to Supreme Court - whether prerogative relief available - whether restriction on development on foreshore side of foreshore building line a development standard. D

Application by appellant on conviction appeal, alleging incompetent legal representation at trial, for orders requiring attendance of certain legal representatives at hearing of appeal.

Justification - contextual imputations - Polly Peck - partial justification - common sting

CRIMINAL LAW - sentencing - murder.

Inquiry under s 474D of the Crimes Act 1900

defamation - release of information known as "leaking" - condonation - capacity of matter complained of to convey imputations pleaded - reference to Watergate - composite of ideas within imputations pleaded - transitory nature of radio broadcasting - linkage between broadcasts