Cases and authorities

LAND & ENVIRONMENT - development application - interpretation of condition in consent - meaning of "water drainage system" - flow of surface water obstructed by land fill - distinction between watercourse and surface water - application of Gartner v Kidman - whether order entered by trial Judge served any purpose

Family Provisions Act - grandson dependency - pensioner - disabilities - chronic drug and alcohol abuse - role of carer - provision during lifetime - no evidence of competing needs.

CRIMINAL LAW - EVIDENCE - Hearsay - Whether admissible - Whether unreliability warning required - Lies - Whether relied on only as to credibility - Whether directions adequate.

NEGLIGENCE- Conceded negligence by employee of horse spelling yard in and about permitting employee's guest to ride employee's horse on employer's property. By majority, circumstances show employer not liable and occupier of land breached no duty of care. (D)

Motion to strike out Statement of Claim - Judicial immunity - Abuse of process - Non-judicial Tribunal members' abuse of process

Practice & procedure - ex parte order set aside - common justice: party not represented due to solicitor being unaware of the fixture notwithstanding that requirement as to notice fulfilled - irregularity: court not informed of solicitor's explanation for non-attendance

WILLS - construction - gift to voluntary association - "to the Garden Club of Australia to its Building Fund" - whether created trust or condition impeding decision to apply Building Fund to general purposes - held it did not - UNINCORPORATED ASSOCIATIONS - Gifts - validity - presumption of operation as gift to existing members - Bacon v. Pianta presumption - held that the gift was valid as a gift to existing members.

Extension of time - s 151D(2) WCA - s 31 Limitation of Actions Act (Qld) - Queensland employment - Employment with third defendant

Cross-vesting applications - plaintiff's application - principles applicable - scope of legitimate considerations - relevance of prospective savings in private & public cost from pooling of similar cases in the one jurisdiction for joint case management - absence of factors otherwise connecting the cases with the proposed forum

FRAUD AND MISREPRESENTATION AND UNDUE INFLUENCE - undue influence - religious advisor, person in position of trust and confidence - the plaintiff claimed remedies against her donation of farm to incorporated association representing Hare Krishna Movement - farm later sold - extremely improvident gift of only substantial asset - no independent advice or influence - burden of proof on defendant - on detailed consideration of facts held that transaction was unconscionable and plaintiff awarded amount of price for which sold.

Murder charged - manslaughter (unlawful and dangerous act) plea accepted - domestic argument - kitchen knife - alcohol and drugs -genuine remorse and contrition - special circumstances

Quash Magistrate's decision - private criminal prosecution - The Local Court proceedings - Evidence Act 1995 (NSW) - Admission

Practice and procedure - Costs - Calderbank letters - Offers of compromise - Failure to give 28 days in which to accept Calderbank offer may disentitle successful party from receiving indemnity costs for period post Calderbank letter.

Crown appeal - malicious infliction of grievous bodily harm - matters of aggravation - objective gravity of offence - delay on part of the Crown

Contract Law - whether the parties were content to be bound immediately and exclusively by the terms agreed upon - whether it was expected that a further contract would be made in substitution of the first - appeal dismissed with costs.

Application to set aside default judgment - Excuse for delay - No triable defence or cross action

Evidence - Malicious prosecution - Malice - Police investigative team - Wilful blindness - Inducement to witness - Matters not specified in opening - Particulars limited - no reference to evidence sought to be adduced - Relevance - ambit - Policy of Evidence Act 1995 in relation to relevance in civil cases

Pt 31 Supreme Court Rules - matters for consideration - is the preliminary question critical to disposition - likelihood of real savings - multi defendants - are there discrete issues?

Criminal Law - Application for stay of trial - prejudice - interests of justice

Res judicata - no question of principle

Practice and procedure - Costs - Interest on contract up to Judgment - Interest as provided in rules thereafter

[EASEMENTS] - Rights of carriage way - Application for extinguishment of rights of way granted in 1956 - Whether rights of way should be deemed obsolete pursuant to s 89 of the Conveyancing Act 1919 (NSW) - Grant to Lot A with the intention to consolidate Lot A with a Lot adjacent to it - Whether intended that adjacent Lot have the benefit of the rights of way.

CORPORATIONS - application for winding up - voluntary administration - whether interests of creditors will be better served by continuation of administration than by winding up

EQUITY [340]- Mareva orders- Whether and if so when substituted service ordered. PROCEDURE [91]- Substituted service- Mareva order- When ordered.

Evidence - Statement by witness - Multiple possible inferences - Refining range of possibilities - "Could" in s 55 of Evidence Act 1995 means "it is possible it may" - Section 55 creates wide ambit of relevance - Relationship between s 55 and s 57 considered.

Appeal Against Conviction and Sentence - Conviction under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) - Sentence of three years imprisonment with a non-parole period of eighteen months - Allegations of misleading and negligent conduct against appellant's former solicitors - Whether sentence outside the range for s 25A offences.

robbery whilst armed with an offensive weapon - identification evidence

conviction of using an offensive weapon to prevent lawful arrest - question of what becomes a forcible entry - whether attempted arrest of appellant was lawful

MORTGAGES- Mortgagor may obtain an injunction that no money is owing under a mortgage. However, once it appears that there is an arguable case that something is owing, the mortgagee is entitled to pursue its rights under the mortgage. EQUITY- REMEDIES- INJUNCTIONS- Mortgagor's right to seek injunction limited. (D)

Employer/employee relations - employee suffered psychiatric damage during industrial dispute - employer confronts union - whether employer failed to take reasonable care for the safety of its employees - whether economic benefit to employer outweighed duty of care to employee - whether any distinction between psychiatric and physical injury in employment content - whether damages award proper. D

Tort - negligence - duty of care - personal injury - whether school "responsible for the care and welfare" of boarding students - in what sense school so responsible - absence of evidence directed to standards which should have been adopted by school - Limitation of actions - Limitation Act 1969 (NSW) - extension of limitation period - whether appropriate in particular circumstances - relevant considerations - ND

Imputations - form

CORPORATIONS [223]- Winding up- Termination- Who may be heard- "Any other interested person"- Ambit- Wide, but not so wide as to impede expeditious hearing of essence of application.

PROCEDURE - Supreme Court procedure - motion, under section 76A Supreme Court Act and Part 26 rule 1 Supreme Court Rules, prior to allocation of hearing date or appointment of trial judge, for order that a party not be permitted to rely on identified parts of that party's affidavit evidence - consideration of in what circumstances rulings on evidence should be made well in advance of trial

Application to dispense with jury - Supreme Court Act 1970 s86 - application for indemnity costs

CORPORATIONS - voluntary administration - extension of convening period for second meeting - complexities of cross border insurance business warrant unusually long extension

Reply - express malice - adequacy of particulars - discovery

EQUITY [368]- Injunction- Unique chattel- Held by auctioneer- Bailment terminated- Threat to sell notwithstanding- Injunction granted. PROFESSIONS & TRADES [4]- Auctioneers- Claim to retain goods after customer withdraws them from sale until "withdrawal fee" paid- Right under clause no higher than lien. WORDS & PHRASES- "Not obliged to withdraw property from sale".

Extension of limitation period - delay and inadequate explanation of delay (despite further opportunity to adduce relevant evidence).

Remand on charge of robbery in company to enable offender to undergo rehabilitation so judge could assess non-parole period to be fixed - Court had jurisdiction to entertain Crown appeal - Effect of s.11 of Crimes (Sentencing Procedure) Act 1999 on previous law - Remand must be to specified date within 12 months of the finding of guilt.

CRIMINAL LAW - Sentence - Crown appeal - Offender becoming pregnant after arrest and charge - Three-year suspended sentence overturned by Court of Appeal as mainfestly inadequate - On resentencing by District Court, five-year suspended sentence imposed - Evidence from prison authorities that no decision on whether the offender could have her child with her in prison could be made until the offender had served at least four weeks - Evidence that separation of more than one week likely to cause significant long-term psychological damage to the child - Probability of hardship to offender's family - Whether exceptional circumstances - Effect of double jeopardy - CRIMINAL LAW - Sentence - Commonwealth offence - Whether Court can consider directly whether three-years periodic detention is preferable sentencing option.

EVIDENCE - Privilege - Without prejudice communications attempting to negotiate a settlement of a dispute - Where such communications are alleged to evidence abuse of process - Whether admissible - PROCEDURE - Abuse of process - Proceedings against employees of deregistered company - Alleged purpose of obtaining money from holding company - Reasonable grounds for bringing proceedings against employees and against holding company - Whether proceedings against employees an abuse of process.

NEGLIGENCE - occupier's liability - causation - glasses overcrowded on tables - risk that glass on such tables may fall to the floor - glass on dance floor - plaintiff fell on glass causing injury - absence of proper and safe system for collection of empty glasses - inadequate implementation of system to collect glasses.

LIMITATION OF ACTIONS - motor vehicle accidents - Full and satisfactory explanation for the delay - Whether by claimant or persons acting on behalf - provision of full details - Denial of liability - Whether proceedings can be commenced notwithstanding the failure to provide full details.

Contract - Construction - Condition precedent versus condition subsequent - Auction - Australian Easter Yearling Sales - Valuable colt - Sale 'under the hammer' to defendant bloodstock agent - Post auction colt proved to be a 'wobbler' - Construction of Conditions of Sale providing that sale deemed to be cancelled if lot shall prove to be a wobbler within seven days of sale - Meaning of 'sale' - Meaning of 'prove to be' - Additional x-ray condition - Construction of provision requiring certificate from veterinary surgeon nominated by auctioneer certifying to condition