Cases and authorities

MOTOR TRAFFIC: suspension of licence under s 16(9) Road Transport (Driver Licensing) Act - whether appeal lies to Local Court - extent of magistrate's powers on appeal.

MORTGAGE - first party mortgage over home - guarantors - exclusive clause in mortgage - transfer of funds from fixed term deposit - claim that Bank had breached contractual obligation - Contracts Review Act 1980, s7 - duty of care to guarantors - unconscionability

INTERPRETATION - construction of clause in agreement - share placements - "opportunity to participate" - "same or equivalent terms and conditions" - industry practice - breach of clause - nominal damages

Extension of time - s 151D WCA

Appeal - appeal from Local Court - refusal of adjournment

Government tender - whether creates process contract - nature of contract - whether implied term of good faith - whether statements of tendering ethical codes part of cotnract - whether public law principles apply - duty of legal advisers to Government - whether conflict of interest - Chinese walls - whether rules of natural justice apply to Government advisers - whether rules of natural justice apply to evaluation committee - whether apprehended or actual bias material - duty of probity auditor - application of clean hands doctrine

Judgment as to costs

Criminal law - sexual offences - delay in complaint - whether warnings sufficient in the circumstances of the particular case.

Sentencing - Crown appeal - serious offences usually giving rise to custodial sentences but exceptional circumstances - Periodic Detention - failure to fix non-parole period or give reasons for not doing so - subsequent revocation of periodic detention order

Criminal law - jury verdict - unreasonable - could not be supported by the evidence - identification - cogent evidence of the possibility of another as offender

FAMILY LAW - CHILD WELFARE - Wards - Termination of custody by Minister - Risk of abuse - Interests of wards - Natural justice to carers - ADMINISTRATIVE LAW - Appeals from administrative authorities - Error of law - Review of merits - Correct and preferable decision - Whether to be judged at time of original decision or time of review.

Limitations - motor vehicle accident - solicitor instructed - solicitor failed to commence proceedings within the time allowed under the Motor Accidents Act 1988 (date 1) - application for extension of time refused (date 2) - solicitor allegedly failed properly to conduct application - action against solicitor more than six years after date 1 but less than six years after date 2 - whether cause of action in relation to failure to commence proceedings statute barred - whether separate cause of action in relation to failure to properly conduct application. D.

TAXES AND DUTIES - stamp duties - admissibility of unstamped instrument - whether unstamped instrument able to create a caveatable interest in land - CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - appropriate remedy if caveat good in part and bad in part

Extension of time - ss52, 60C & E, 60G & I Limitation Act - medical negligence

Practice and Procedure - Cross-claim by Defendant against an entity which is not the Plaintiff - Application by Defendant for leave to cross-claim - Requirement that nature of cross-claim be told to the Court as soon as may be practicable - Plaintiff claims payment to her by Defendant of compensation for compulsory acquisition of land in amount determined by Valuer General - Defendant disagrees with amount so determined - Defendant seeks by proposed cross-claim to challenge validity and efficacy of that determination - Whether the Court in the exercise of its discretion should grant that leave - Whether proposed cross-claim discloses a reasonable cause of action - Whether proposed cross-claim is in a form which, if filed, would be liable to be struck out as embarrassing - Relevance of conduct of Defendant preceding the institution of proceedings - Whether Defendant in seeking leave approaches the Court with clean hands - Any dispute in respect to proposed cross-claim is a dispute in which the Plaintiff could have no practical participation - Conduct of Defendant is in contravention of legislative scheme disclosed in Land Acquisition (Just Terms Compensation) Act 1991 - True complaint of Defendant is its disagreement with the valuation performed by the Valuer General - Any challenge to the validity and efficacy of the Valuer General's determination must not be allowed to drift into an attack on the merits of the impugned decision - Exercise of Court's discretion to grant leave sought - Prejudice to Plaintiff - Application by Plaintiff for summary judgment - Defendant does not dispute factual basis of relief sought by Plaintiff.

Calderbank letters - indemnity costs.

Family Provision. Application by a bankrupt. Bankruptcy still in force at date of trial. Any award would only be for the benefit of the bankrupt's creditors and not the bankrupt. Application dismissed.

Criminal Law - Appeal against sentence - Fraudulent misappropriation - Form of indictment - Names of persons to whom payments are to be made not included in indictment - Accused aware of the essence of matters alleged against him - Essential factual ingredients of the offence included in indictment together with sufficient particularity to enable accused to be reasonably apprised of charge - Non inclusion of names not fatal to validity of indictment - Desirability of including in indictment names of persons to whom payments are to be made

NEGLIGENCE - appellant injured in a bus accident - causation - whether the bus accident was causally related to appellant's subsequent psychological state - quantum - ND

REAL PROPERTY - transfer of property to son without consideration - whether undue influence on part of son - whether negligence on part of solicitor - no point of principle.

Contract - Dispute resolution - Suit seeking specific performance of dispute resolution clause - Expert determination procedure - Whether expert determination mandatory - Whether clause ousts jurisdiction of the Court - Whether clause void for public policy - Whether clause void for uncertainty - Effect of uncertainty in agreement to submit dispute to expert determination - Specific performance of agreement to submit to expert determination of curial proceeding - Principles relating to exercise of discretion to grant specific performance - Consideration of matters which may affect the exercise of the discretion to adjourn or stay Court proceedings so as to allow alternative dispute resolution agreement to be engaged and followed.

PROCEDURE - Courts and judges generally - appeal from Master's exercise of discretion - relevant principles - PROCEDURE - Costs - Order for costs to plaintiff on discontinuing proceedings - whether defendant acted unreasonably in resisting claim - EVIDENCE - Admissibility and relevancy - alleged user of land without local authority approval - whether relevant to Master's review of costs order by Deputy Registrar on discontinuance of proceedings to gain access to a right of carriageway - access sought regardless of user of land - no use of court procedure to achieve a breach of the law - Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 distinguishable.

CONTRACT - contract by mother before child's birth not to make allegations of paternity against other party to contract - construction - public policy in establishing parentage - public policy against curtailing Family Provision Act jurisdiction - EVIDENCE - whether evidence of mother about child's parentage inadmissible because of contract not to make allegations of paternity

FAMILY PROVISION Application by former spouse for provision out of former husband’s estate - Marriage in 1957, divorce in 1968, and the former husband died in 1999 - Little or no relationship between the former spouse and the deceased - Section 9(1) of the Family Provision Act - Is the former spouse a person who would be regarded as a natural object of testamentary recognition? If the former spouse is one of that class of persons, with regard to the circumstances, should the deceased have made provision for the former spouse in his will? - WILL - PUBLIC POLICY - whether a provision in will void as against Public Policy - Whether clause which prevents remaindermen from taking their interest in possession until - death, burial or cremation - of their mother, should be excluded because that clause has the tendency to cause the children to hate their mother and wish her dead

CORPORATIONS - oppression and other conduct within s.232 - whether sole shareholder can be "victim" of such conduct - non-payment of dividend by wholly-owned subsidiary to immediate parent - failure of parent to obtain dividend from wholly-owned subsidiary - consolidated retained earnings position does not indicate capacity of any group company to pay dividend - CORPORATIONS - statutory derivative action - s.237 tests discussed - court cannot grant leave unless all tests satisfied - serious question to be tried not shown - collateral purpose indicates lack of good faith - not in best interests of parent that it pursue s.232 claim against subsidiary based on non-payment of dividend

Sentencing - appeal against sentence - four counts of aggravated sexual assault - four related sexual offences on a form 1 - manner in which the Form 1 offences were to be taken into account discussed - calculation of the discount for the utilitarian benefit of pleas of guilty discussed - appropriate approach to the determination of special circumstances discussed - whether despite errors of law some other sentences were warranted in law pursuant to subs 6(3) of the Criminal Appeal Act, 1912 considered.

PRACTICE AND PROCEDURE - pleading - limitation of action - whether pleading in negligence of failure over time to discharge continuing duty of care gives rise to a single cause of action beginning when measurable damage is first suffered, so that if that time is outside the limitation period, the claim is statute-barred - or, in the alternative, whether the pleading gives rise to multiple causes of action, some not statute-barred if part of the period of failure to discharge the duty is within the limitation period

[INTEREST] - oppression suit settled by consent orders - Valuation of plaintiff's shareholding referred under Part 72 to referee - Report remitted to referee for denial of natural justice - Further report finds same value - Consent orders make no provision for interest - Plaintiff claims entitlement to interest - [COSTS] - Competing claims for costs of proceedings to date of consent orders and for Motion for remittal of the matter to referee - Plaintiff's claim for additional costs by reason of alleged unreasonable delay by first defendant in payment of purchase price.

Appeal from Local Court - findings of fact by Magistrate not disputed - proper principles for exercise of discretion - settting aside default judgment - no error of law

CRIMINAL APPEAL - application for extension of time to appeal - appeal against conviction - whether verdict was unsafe - Grevious bodily harm - blood DNA evidence - explanation for presence of blood - alibi - evidence of good character - confession evidence

CRIMINAL LAW - trial by jury - testimony of Crown witness - issue of credibility - necessity for warning - whether warning given sufficient - Evidence Act, s.165. CRIMINAL LAW - trial by jury - introduction by Crown Prosecutor of assessment of credibility of Crown witness attributed to judge (other than trial judge) who had earlier sentenced the witness - whether resulting miscarriage. CRIMINAL LAW - trial by jury - whether verdict on each count unsafe and unsatisfactory.

CRIMINAL LAW: jury trial - two week interruption of the trial in the course of the Crown case - whether jury should have been discharged - whether trial as a whole unfair.

CRIMINAL LAW - practice and procedure - note from juror about character witness - note not marked and contents not read onto transcript - note returned to jury to discuss - evidence of good character - jury directed to consider if otherwise a doubt about guilt - misdirection - robbery with corporal violence - accomplice - extent of knowledge

CRIMINAL APPEAL - appeal from conviction - Drug Misuse and Trafficking Act 1985, s23(1)(a), s24 - premises used for purpose of manufacturing prohibited drug - cultivation of cannabis plants - Circumstantial evidence - reasonable hypothesis - whether conviction was unsafe/unsatisfactory

COSTS - indemnity costs in Court of Appeal - offer of compromise from plaintiff ignored by defendants - broad judicial discretion - Calderbank letter a relevant but not determinative factor - whether judgment was a substantial improvement on terms offered - whether appellants' conduct can be categorised as unreasonable. (ND)

Injunction - to restrain threatened commission of a crime - refused in exercise of discretion in view of provision for an apprehended personal violence order

Review of Registrar's decision - whether Court of Appeal can grant prerogative relief against a judge of the Court - otherwise procedural matters. ND

Stay of proceedings on judgment - appeal not easy but not without prospects - plaintiff could not repay anything if money paid over - stay plus expedition granted. ND

Negligence - foreseeability - no question of principle

LIMITATION OF ACTIONS - contracts, torts and personal actions - action for contribution between tortfeasors - TORTS - THE LAW OF TORTS GENERALLY - joint or several tortfeasors - availability of contribution between joint tortfeasors at common law