Cases and authorities

PROCEDURE [442.5] - Discovery and interrogatories - Discovery and inspection of documents - Production and inspection - Generally - Anton Piller orders - Consideration of when available.

CONTRACTS [35]- Contract by informal conversations- Considerations. REAL PROPERTY [308]- Partition or sale- Defence- Contract to develop property- On facts defence succeeds.

CIVIL LAW - compensation for workplace injury - mining injury - jurisdictional point.

Criminal law - summary jurisdiction - offences of strict liability - punishable only by fines - consideration of matters referred to by the Crimes (Sentencing Procedure) Act 1999 - totality of criminality - total of fines - means of offender as relevant to quantum of fine.

Sentence appeal - adequacy of discount for assistance and plea - adequacy of consideration of subjective matters - sentence not manifestly excessive - parity - no justifiable sense of grievance.

Supply amphetamines on an on-going basis - four occasions - helping out a friend for no personal financial gain - limited involvement but enabled business to continue - full-time custodial sentence held not to be outside the range even with favourable subjective features - new material showing true significance of facts in existence at time of sentence - sentence reduced.

Inconsistent verdicts - absence of obvious reason for jury to convict on one and not other counts - danger of compromise and wrongful conviction.

Appeal against sentence - assault police and malicious damage - appeal against head sentence only - strong subjective case - sentence held to be manifestly excessive - leave granted to withdraw Notice of Abandonment of Appeal - various conditions of parole removed.

CRIMINAL LAW - identification - witness recognises previous acquaintance as offender - nominates offender to police - subsequent photographic array - whether admissable - summing-up - adequacy of directions - CRIMINAL LAW - evidence - right to silence - cross-examination of accused - failure to inform police of alibi when arrested - CRIMINAL LAW - evidence - witness identifies accused as offender - not sure at trial - witness cross-examined as unfavourable witness - previous statements evidence of facts asserted therein - CRIMINAL LAW & PROCEDURE - questions by trial judge - whether constituted a miscarriage of justice - CRIMINAL LAW & PROCEDURE - summing-up - judge summarising Crown submissions on fact - submission not available in law - failure of judge to correct.

Sentencing - murder - offender aged 17 - would be worst case but for age - sentence of 45 years with 35 years non-parole period - whether error in finding no remorse - no error - whether error in not reducing sentence by virtue of plea of guilty - no error - whether sentence manifestly excessive - gravity of crime and need for protection of public - consideration of protection of public - need for protction properly founded in evidence - no appealable error as to head sentence - weighing of factors different for non-parole period - special circumstances - appealable error as to non-parole period. D.

ADMINISTRATIVE LAW - Review of decision of administrative tribunal - Undertaking by tribunal to deal with appliction in particular way - Whether valid - Whether remedy available if undertaking not complied with - Utility of declaration or order - PROCEDURE - Appeals - Whether appeal as of right - Decision to refuse order sought by Notice of Motion - Whether final or interlocutory.

DAMAGES - Frontal lobe epilepsy causing blackouts and aggressiveness - Residual earning capacity assessed at 35% of uninjured capacity, itself assessed as being a capacity to earn average weekly earnings - Whether defendant liable for whole 65% difference, with 15% allowance for vicissitudes.

CORPORATIONS - arrangements and reconstructions - scheme of arrangement between company and members linked with arrangement affecting managed investment scheme - determination of classes - observations on telephone communication with members - sequence of meetings discussed - appropriateness of case for judicial advice

INTERPRETATION - General Rules of Construction of Instruments - Insurance Policy - Extension of cover to subsidiary companies - Companies owned or controlled by an individual not included - Extrinsic evidence non-supportive of contract of insurance with company owned by insured - Subsequent conduct inadmissible to resolve ambiguity - Contra proferentem rule inapplicable - EVIDENCE - Failure to call witness - Jones v Dunkel inference does not arise in absence of evidence requiring an answer - Discretion whether to draw inference - Inappropriate when matter not put to opposing witnesses

CONVEYANCING [64]- Time- When notice to complete may be given- Vendor to fix special defects in building before completion- Debate whether defect special or general- Held special- Vendor's termination invalid. - WORDS & PHRASES- "Urgent".

PRACTICE & PROCEDURE - Appeal from Consumer, Trader and Tenancy Tribunal - No prospect of success - Summary dismissal.

Sentence - appeal against severity - offence of "assault with intent to rob whilst armed with an offensive weapon" - plea of guilty - eight years' imprisonment with non-parole period of six years - prior conviction for and on parole for armed robbery - sentence held to be manifestly excessive.

Sentence - appeal against severity - pleas of guilty to two counts of knowingly take part in the manufacture of amphetamines - matters taken into account on Form 1 documents - second offence committed whilst on bail for the first offence - need to properly assess applicant's role in offences - whether principles in De Simoni offended - applicant aged 18 at time of first offence - harsher than normal circumstances of incarceration including an assault upon the applicant by prison officers - pleas of guilty at first reasonable opportunity to lesser offences than originally charged - error demonstrated.

Sentencing - accumulation of sentences - need to give effect to totality principle - longer non-parole period required

cessation of payments under consultancy agreement - statement of confession - whether judgment entered irregularly - judicial discretion

NEGLIGENCE - causation - failure to provide additional handrails on set of stairs - different lighting levels - need for nosings to mark the edge of a step - NEGLIGENCE - contributory negligence - causation - apportionment of responsibility and damages

INSURANCE - public risk insurance - construction of policy - question of what risk covered by policy - NEGLIGENCE - duty of care - failure to warn - whether the defendant knew of the danger to which the plaintiff bystander was exposed

Tort - negligence - duty of care - existence - scope - motor vehicle collision - whether defendant keeping a proper lookout - breach - evidence of - findings of fact - Tort - negligence - duty of care - causation - whether alleged breach of duty causative of motor vehicle collision - no such causation - Practice - pleadings - grounds upon which trial run - where appeal sought to be run on different grounds - whether defendant surprised - no surprise where argument run on appeal pleaded at trial - ND

Tort - negligence - duty of care - existence - scope - collision between motor vehicle and pedestrian - pedestrian struck by vehicle while crossing road - proper precautions of driver - Tort - negligence - liability - contributory negligence - apportionment of liability - D

Tort - negligence - duty of care - occupier's liability - duty to provide safe workplace - whether duty fulfilled - whether conduct of plaintiff reasonably foreseeable - Tort - negligence - duty of care - employer's liability - knowledge of employer - whether sufficient to raise duty of care - ND

negligent misrepresentation - misleading and deceptive conduct - conduct by silence - whether adverse credit findings well based

PROCEDURE [112] - Practice under Supreme Court Rules - Evidence - Other matters - Affidavits - Leave to use affidavit when deponent not available for cross examination - Whether leave should be granted on conditions.

witnesses expenses - corporations law examinations

PROCEDURE - miscellaneous procedural matters - Mareva orders - expenditure of money for legal expenses - effect of provision in Mareva order that money may be expended for paying costs reasonably incurred - importance of seeking any variation to limit of funding for legal expenses before limit expires - living expenses - appropriate form of order when person bound by order can obtain money for living expenses from more than one source

CORPORATIONS - winding up - direction to provisional liquidator

Caveatable Interests - Corporations - Causes of action not conferred upon liquidators

Litigant in person - proceedings that are clearly hopeless - apparent attempt to procure a further adjournment by sending a purported medical certificate of dubious authenticity - further adjournment a futile exercise - proceedings dismissed so as to save the throwing away of further costs.

Committal Proceedings - Practice and Procedure - Evidence - Oral Evidence by Complainant - Oral evidence by other witness - Special reasons - Norm or datum for comparison - Statutory construction - Substantial reasons - Offence involving violence - Prescribed sexual offence - Offences under ss 67 and 76 of Crimes Act not within definitions

Foreign service - leave to proceed - stay of proceedings - inappropriate forum - tests - different parties - different cause of action.

CORPORATIONS - directors' duties - whether director breached his duties to the company in making payments from the company to himself and other companies controlled by him - TRUSTS - whether company with similar name to plaintiff company and in associated business formed and controlled by same director holds assets and business on trust for the first company

PROCEDURE - Injunction pending application for special leave to appeal to High Court - Applicable principles - Prospect of success - ADMINISTRATIVE LAW - validity of proclamation of boundaries by Governor - Local Government Act 1993, s 738(1)

Companies - disqualification order - stay pending appeal - whether should be granted - serious findings - little evidence of hardship - on facts, stay refused. ND

ADMINISTRATIVE LAW - Boundaries Commission - whether Boundaries Commission required to consider petitioning the Minister for a public inquiry - Local Government Act 1993, s 263

Seeking to sue insurer direct - interaction of s 6 Law Reform (Miscellaneous Provisions) Act 1946 and s 54 Isurance Contracts Act 1984 (Cth) - what constitutes a claim

Personal injury - motor vehicle accident - assessment - Background - Pre-accident employment - The accident - Damages - Non economic loss - Subsequent motor vehicle accidents - Second motor vehicle accident - Texas accident - Third motor vehicle accident - Fourth motor accident - Medical reports - orthopaedic - psychiatric - Past and future medical expenses - Domestic care - Economic loss - Past economic loss

TORTS - MISCELLANEOUS TORTS - conspiring to injure - meaning of "predominent purpose to injure the plaintiff" - factual findings about whether plaintiff suffered any loss in consequence of any conspiracy - TORTS - MISCELLANEOUS TORTS - conspiracy to injure by unlawful means - meaning of "purpose to injure the plaintiff" - meaning of "common intention to use unlawful means" - whether "unlawful means" needs to be activity which, if committed by one person alone without any conspiracy, would be actionable in damages - JUDGMENTS AND ORDERS - order made "until further order" - PROCEDURE - miscellaneous procedural matters - Mareva Orders - duration of

CORPORATIONS [280] - Winding up - Liquidators - Rights and powers - In winding up by Court - Custody or control of assets of company - Entry and seizure - Appropriate terms and conditions.

CORPORATIONS [188] - Receivers, managers and controllers - Appointment of receiver - By Court - Ex parte application - Circumstances when granted

SUCCESSION - WILLS PROBATE AND ADMINISTRATION - construction and effect of testamentary dispositions - construction of particular Will - SUCCESSION - WILLS PROBATE AND ADMINISTRATION - rectification of Will under section 29A Wills, Probate and Administration Act 1898 - principles for effecting rectification - EVIDENCE - standard of proof - s140 Evidence Act 1995 - claim for rectification of Will

PROCEDURE - evidence - access to documents produced - claim for client legal privilege - who is "client" - confidential communications concerning litigation funding

CONTRACT [122]- Discharge by agreement- Ambit- Difference from rescission- Difference from discharge by performance.

CORPORATIONS - winding up - extension of time for compliance with statutory demand - whether stay of judgment dismissing application to set aside statutory demand has same effect as extension of time for compliance with statutory demand - circumstances in which application can be made for extension of time for compliance with statutory demand

Sentence - Southammavong - found guilty of murder - intent to kill formed spontaneously - weapons taken to scene of crime - no apparent explanation for offences - not in worst category of offence - determinate sentence appropriate - further offence of malicious wounding with intent to inflict grievous bodily harm - partly cumulative sentence. Sentence - Sihavong - found not guilty of murder - guilty of malicious wounding with intent to inflict grievous bodily harm (x2) - partly cumulative sentence - finding of "special circumstances".

CORPORATIONS - winding up - application by liquidator for order for payment of money based on allegedly voidable transaction - nature of cause of action - where cause of action arises - PROCEDURE - application to set aside service - determining situs of cause of action

CORPORATIONS [280] - Winding up - Liquidators - Rights and powers - In winding up by Court - Custody or control of assets of company - Entry and seizure - Appropriate terms and conditions.