Cases and authorities

FAMILY LAW & CHILD WELFARE [163]- Child welfare- Prohibited person seeking declaration that prohibition not apply to him- Factors to be considered.

CORPORATIONS - managed investment scheme - winding up under s.601EE - powers of receiver appointed by court to wind up - whether receivers may continue proceedings initiated by operator of scheme - whether leave should be granted for receiver to conduct proceedings in operator's name

Companies. Constitution. Determination of area which the Articles of Association of a company give a right to occupy. Orders made. No matter of principle. Damages. Circumstances in which a court will order an enquiry as to damages. No order made.

Administrative law - application of policy - relevant and irrelevant considerations - irrationality

Contract - Banker and Customer - Loan facilities - Guarantee - Claim that CDBA and CBA acted unconscionably in dealings concerning facilities granted by both banks - Claim that CBA knowingly interfered with loan facility granted by CDBA with intention of procuring breach of facility - Alleged undisclosed decision to decline application for further accommodation - Alleged unconscionable conduct in delaying communication of suggested decision to decline further accommodation - Obligation to act in good faith - Alleged unconscionable conduct - Alleged misleading and deceptive conduct - Farm Debt mediation - Alleged unconscionable conduct in relation to holding of mediation - Claim to set aside Heads of Agreement reached during mediation on the ground of vitiating factors including alleged duress in terms of suggested threats to appoint receiver unless Heads of Agreement entered, in terms of emotional state of customer representative participating in mediation and other matters.

CONVEYANCING [40]- Condition- Purported waiver- Whether condition solely for benefit of one party. CONVEYANCING [64]- Time- When completion due- Whether notice to complete premature.

Applications to amend Defences and Cross-Claims at conclusion of trial but prior to reservation of judgment - One applicant took no part in the trial until last day - Unjustified allegations against plaintiff and its lawyers of "sharp practice" - Meaning of term "sharp practice" - Evidence given by plaintiff's witness late in trial a suprise to both plaintiff and defendants. Late tender of material as an alternative to reliance upon a Certificate under the guarantee in relation to the amount of the debt alleged under the guarantee.

Succession - Family provision - Whether Plaintiff and Deceased were in a de facto relationship - Whether Plaintiff has been left without adequate provision for her maintenance - Financial and material circumstances of Plaintiff - Competing claims - Claim by Plaintiff's daughter has been resolved by consent orders - Those orders do not override claim of Plaintiff - Nature of provision sought by Plaintiff - Asserted need to purhcase a residence - Plaintiff has for many years lived in rented accommodation - Plaintiff and Deceased did not propose to purchase a residence - Plaintiff is secure in her present accommodation - Plaintiff is entitled to receive a fund to upgrade her lifestyle and provide for contingencies.

Default Judgment in possession - erroneous direction by registrar to file a defence - no arguable defence - filed purported defence a nullity and abuse of process - purported defence struck out.

Forensic evidence that appellant was in car - appellant denied steaing car from Hill Street - said he got in car in Grace Avenue to steal it but saw child and did not do so - examination of evidence - disbelief of appellant's evidence did not prove he stole car from Hill Street - evidence insufficient for proof beyond reasonable doubt. D.

Criminal law - life sentence - re-determination under s.13A, Sentencing Act 1989 - murder and attempted rape of child under 10 - considerations of principles applicable - consideration of life sentences under subsequent sentencing regimes - consideration of sentences passed after re-determinations - offence not meriting life means life - difference in nature between life sentence with parole and life sentence with no prospect of release - application of principles relating to non-parole period to fixing minimum term.

Criminal law - sentencing - manslaughter - use of weapon against unarmed offender - unreasonable response even in circumstances as offender perceived them - Crimes Act s.421(2). Criminal law - sentencing - malicious discharge of firearm with intent to do grievous bodily harm - s.33A(1) of Crimes Act.

Legal Practitioner - Application for Admission - Barrister, Character

REAL PROPERTY - easements - cause of action for interference with easement lies in nuisance - availability of mandatory injunction to require removal of fence preventing use of easement - INJUNCTIONS - availability of mandatory injunction to require removal of fence preventing use of easement

Labour Hire Agreement - Duty owed to worker by the hirer and the hiree - Foreseeable risk of injury - Intervening action of the plaintiff - Causation and remoteness - Novus actus interveniens - Public Liability Insurance Policy - meaning of "arising out of or in the course of employment of such person" meaning of an event "in connection with the business of the insured".

Contracts - Building, Engineering and related contracts. - Summary judgment application in respect of a progress claim under CL42.1 of AS 2124-1992. Superintendent fails to deal with claims within time. Contractor fails to supply statutory declaration as to payment of subcontractor. Held amount of progress claim due. - Progress claim also made under the Building Construction Industry Security of Payment Act 1999. Held claim under statutory scheme and under contract can be made at same time in one document.

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - whether document should be admitted to probate under section 18A Wills, Probate and Administration Act 1898 - costs in application under section 18A Wills, Probate and Administration Act 1898 - PROCEDURE - costs - application to determine whether a paper should be admitted to probate under section 18A Wills, Probate and Administration Act 1898

Appeal from Local Court - application to amend statement of claim - application refused - whether exercise of discretion miscarried. Local Courts (Civil Claims) Rules - Pt 16 r 4 - whether rule ultra vires.

CORPORATIONS - winding up - examination summons and orders for production served by liquidator - whether Corporations Act provisions impliedly prohibit use by liquidator of orders for production - whether a corporation can be made subject of examination summons - breadth of "examinable affairs" concept

Practice & Procedure - application for leave to amend Statement of Claim - no question of principle

Practice & Procedure - application for security of costs - no question of principle

PRACTICE and PROCEDURE - SUBPOENA - Inspection of documents - legitimate forensic purpose - Family Court file was produced to the Court by Family Court Registrar in response to Letter of Request issued by Supreme Court Registrar on application of party - production was act of judicial comity as Family Court is not subject to Supreme Court's subpoena power - in deciding whether to grant leave to inspect the Court should observe the substance of SCR Pt.37 r.10 and Family Law Rules O.5 r.6 although they do not literally apply - high value placed on confidentiality - leave to inspect limited parts of file which contained information relevant to issues in Supreme Court.

REAL PROPERTY [409] - Easements - Easements generally - Creation - By express agreement or under statute - Other matters - Grant by Court - Reasonably necessary for effective use or development of land - Discretion of Court.

PROCEDURE - notice to produce - whether oppressive - whether impermissible substitute for discovery

CORPORATIONS - winding up - application to set aside statutory demand - alleged debt for employee's holiday pay - whether genuine dispute - whether offsetting claim by employer for breach of duty - whether Truck Act provisions prevent set-off in any relevant sense

PROCEDURE - appeal from Master to Judge - plaintiff seeks to tender as admission parts of affidavits filed and served by defendant - whether new evidence should be allowed - whether affidavits protected by client legal privilege - whether admission

Criminal Law - application for leave to appeal against sentence - no question of principle

Appeal against severity - social security offences - voluntarily ceasing fraudulent activities - significance of pecuniary penalty order - no basis for intervention.

Criminal Law - application for leave to appeal against sentence - no question of principle

Criminal Law - application for leave to appeal against sentence - no question of principle

Trusts and trustees - Breach of trust - Whether fraudulent - Infant beneficiary - Failure by trustee to pay benficiary - Whether assets of estate exceeded liabilities - Payments alleged to have been made by trustee - Whether those payments, if made, were in discharge of liabilities of estate - Information in Stamp affidavit stated by trustee to be false to his knowledge at time he swore that affidavit - Sale of principal asset to trustee's wife, at an undervalue - Limitation defence - Defences of laches and delay - Appropriate relief - Compensation - Beneficiary entitled to interest

INJUNCTIONS - to restrain breach of criminal law - Listening Devices Act 1984 - whether it creates a private right enforceable by injunction

Administrative law - whether compliance with procedures under bylaws a condition of jurisdiction - legislative purpose - investigation - no denial of natural justice.

PROCEDURE - Discovery and interrogatories - Affidavits disclosed under court order - Implied undertaking not to use information for collateral or ulterior purpose - Undertaking at end when affidavits read in open court - Application for release from undertaking to disclose to ASIC and Commonwealth DPP - Balancing public interest in investigation of criminal offences against public interest in maintenance of confidentiality - Motive of applicant - ASIC and DPP not wishing to be heard - Disclosure of affidavits three years before application - Application following publicity deponent to return to Australia to give evidence under DPP statement no likelihood of arrest for past criminal matters and no fresh charges in contemplation

TAXES AND DUTIES - Income tax and related legislation - Liability of directors to penalty for PAYE deductions not remitted to Commissioner of Taxation - Construction of penalty and defence provisions - Continuing obligation - Incumbent upon Commissioner to exercise powers expeditiously - Income Tax Assessment Act 1936 (Cth) s 222AOB, s 222AOC, s 222AOD, s 222AOJ

REAL PROPERTY - caveats - order for removal - relevance of fact that land has been sold to a developer, for use as trading stock, in assessing balance of convenience - otherwise no question of principle

Appeal against sentence - robbery whilst armed with an offensive weapon - young offender aged 15 years with favourable subjective features - same sentence passed upon co-offender - sentence reduced.

Appeal against sentence - knowingly take part in supply of not less than commercial quantity of amphetamine - Form 1 offences - acted as "middleman" - plea of guilty - prior convictions - in poor health - appeal dismissed.

FAMILY LAW - DE FACTO RELATIONSHIPS - Orders as to property rights - Relevance of gross and net values - Claims in respect of increases in value of assets during period of de facto relationship.

APPEAL - findings of fact - no question of principle

CORPORATIONS [255]- Winding up- Disclaimer- Contaminated oil- Extent of power to vest disclaimed property.

Succession - Family Provision - Claims by widow and by adult daughter - Adult daughter does not pursue her claim, so long as her interest under the will is not eroded by claim of widow - Financial and material circumstances of widow - Effect of will is to require widow to reside in a house property which was not her home during the marriage and is in a location with which she has no ties and is uncongenial to her - Whether widow has been left without adequate provision for her proper maintenance - Competing claims of the beneficiaries.

PROCEDURE - evidence - client legal privilege - "fraud" exception considered

CONTRACT - breach - whether non-payment of franchise fee amounts to breach of the franchise agreement - RESTRAINT OF TRADE - whether a restraint of trade clause is too wide and therefore against public policy - whether the franchisees should be restrained from setting up and operating a business in competition to the business previously conducted under the franchise agreement - TRADE PRACTICES ACT - misleading deceptive and unconscionable conduct - whether alleged representations made about the franchise business were misleading and deceptive under s52 of the Trade Practices Act - whether the conduct of the franchisor was unconscionable under s51AC