Cases and authorities

PROCEDURE - report of expert - statement of awareness of and agreement to be bound by experts' code of conduct not included - expert satisfactorily examined on those matters - order displacing para (b) of Pt 36 r 13C(2)

appeal against conviction - murder - record of interview - admissions and incriminating statements - Crimes Act 1900, s352, Part 10A - detention without charge - maximum period permitted - investigation - calculation of period that has elapsed - investigation period reasonably suspended or deferred - discretionary judgment - application for detention warrant - must be made before expiration of investigation period - agreement between counsel - application for detention warrant by telephone - written verification required within one day of grant of telephone warrant - non-compliance with verification requirement - whether non-compliance invalidates warrant - requirement that person detained be given caution and information orally and in writing - partial non-compliance with requirement - Evidence Act 1995, s138 - admissibility of evidence improperly or unlawfully obtained - relevance of non-compliance with verification requirement - s138 impropriety established by reason of partial non-compliance with requirements for caution and information - s138 assessment - relevance of "nature of the relevant offence" for s138 assessment - appeal dismissed

Crown appeal against asserted leniency of sentence - threaten to inflict actual bodily harm by means of offensive weapon with intent to have sexual intercourse - offence objectively serious - psychiatric disorder - suspended sentence - principles of general and specific deterrence - exercise of discretion of Court of Criminal Appeal not to interfere with inadequate sentence

Criminal law - armed robbery - multiple offences - special circumstances - parity of sentence

JURISDICTION, PRACTICE AND PROCEDURE - general principles and guidelines - s 43(1)(b) of the District Court Act - exercise of the court's discretion to permit or refuse leave to a lay advocate to appear for an unrepresented litigant - rights of audience of unqualified persons - McKenzie friend - power of court to regulate proceedings - CONSTITUTIONAL LAW - whether s 43(1)(b) of the District Court Act is a law for the 'peace, welfare and good government' of New South Wales - whether s 43(1)(b) transgresses an implied constitutional right to procedural equality - D

CONTRACTS - Unjust contracts - When contract unjust - Relevant circumstances - Whether need be known to party against whom relief sought - EQUITY - Fiduciary relationships - Solicitor and client - Scope of duty - Varies from case to case - EQUITY - Remedies - Equitable compensation - Causation - Breach of fiduciary duty by solicitor - Court may consider whether loss would have occurred without breach - LEGAL PRACTITIONERS - Solicitors - Solicitor and client - Fiduciary duty - Scope - Varies from case to case - LEGAL PRACTITIONERS - Solicitors - Solicitor and client - Retainer - Scope D

TORTS - negligence - novel duty of care - interaction with administrative law - interaction with employment law - whether novel duty of care would infringe legal coherence - whether duty of care to conduct disciplinary proceedings so as to avoid psychological injury to teacher - TORTS - negligence - causation - whether evidence of causation goes to alleged breach of duty - CONTRACT - employment contract - interaction with provisions of statute - whether resignation received - whether resignation validly acted upon - whether resignation effectively withdrawn

RIVERS AND FORESHORES IMPROVEMENT ACT (NSW) 1948 - PROTECTED LAND - RIVER - EXCAVATION - DEVELOPMENT CONSENT

CHARITIES - cy pres scheme - supervening impossibility - power under Charitable Trusts Act 1993 s.10 - Leichhardt - Lilyfield Returned Sailors, Soldiers and Airmen's Memorial Hall Building Trust - AGNSW applied for cy pres scheme where charity owned site of Leichhardt RSL Club - after litigation Club in liquidation and some of Hall Trust Trustees sold land and distributed most of funds to other charities without authority of members and without proceeding to Dissolution in accordance with Constitution - on the facts, cy pres scheme was appropriate because of supervening impossibility and also under s.10 - consideration of practicalities affecting pursuing Recipients for repayment and then distributing according to a scheme devised by the Court - consideration of positions of trustees and other persons related to the Hall Trust - consideration of merits and claims of Recipients and of other charities which intervened - notwithstanding many considerations against doing so, the practicalities favoured adopting a cy pres scheme which in effect ratified the unauthorised distributions which had been made.

Criminal law - Costs in Criminal Cases Act

CORPORATIONS - Supervision Regulation and Correction - Failure to sign proxy poll paper - Failure to sign a failure to vote - Whether name and initials are a signature - Whether proxy directed to chairman is directed to an office - Corporations Law (Cth), s 250A(1)(c) - Failure of chairman and proxy to vote on a poll in the way directed - Corporations Law (Cth), s 250A(4)(c) - Whether duty as chairman distinct from duty as director - Failure to act honestly - Corporations Law (Cth), s 232(2) - Improper use of position - Corporations Law (Cth), s 232(6) - Chairman proffering amended minutes on his remuneration to board for confirmation - Failure to exercise due care and diligence - Absence of damage to company - Corporations Act 2001 (Cth), s 180(1) - Absence of dishonesty - Relief from liability - Corporations Act 2001 (Cth), s 1317S(2) - EVIDENCE - Admissibility - Document containing representation based partly on observation and partly on judgment - Admissible as business record - Evidence Act 1995, s 69(2)(b)

defamation - application by defendants to file and rely on amended defence - imputations found by jury to have been conveyed - "Polly Peck" defence - particularisation of substantial truth

TRUSTS - tracing of trust money - money held on different trusts mixed in a bank account, and bank account insufficient to meet all claims on it - principles by which proprietory right to money in bank account to be decided - CORPORATIONS - winding up - company in liquidation is a trustee - role of liquidator in administering trust assets - procedure for liquidator to follow to bar unknown claims to trust assets - entitlement of liquidator to costs from trust assets

defamation - interrogatories exceeding 30 in number - proof of factual matters - selectivity and discipline in the process of interrogation

Criminal law - conviction appeal - apparent inconsistency in jury's verdicts - appellant convicted, co-accused acquitted - whether a rational explanation for apparent inconsistency.

Criminal law - offences against the person - murder - sentencing - Crown appeal against manifest inadequacy - respondent pleaded guilty to murder committed after escaping from custody whilst serving a determinate sentence for a prior murder - whether the case was one calling for a life sentence in terms of s6(1) of the Crimes (Sentencing Procedure) Act 1999 - relevance of the comparison of the circumstances of the second murder to those of the first murder discussed - significance of the second murder having been committed whilst the respondent was an escapee discussed.

CRIMINAL LAW - importation of a commercial quantity of ecstasy - whether trial judge failed to properly characterise the applicant's criminality - whether trial judge undervalued the applicant's plea of guilty - appeal against sentence

PROCEDURE - whether argument not raised at trial may be added on appeal - characterisation of amendment

DEFAMATION - where a jury found an imputation of lying was conveyed but was not defamatory - whether jury's finding perverse - principles - circumstances where a jury verdict may have been a compromise - whether Court should order both issues to be retried - principles - Defamation Act 1974 s 7A - DEFAMATION - practice and procedure - power of Court of Appeal to direct a verdict - circumstances where the Court of Appeal would exercise discretion under s 108(3) Supreme Court Act 1970 - principles. D

PROCEDURE - contempt of court - whether alleged contemnor should be heard - alleged contempt by non-party by reason of participation in conduct by party in breach of order - whether alleged contemnor had knowledge of terms of order - need for knowing participation to be shown - no scope for application of principles of constructive notice

Commercial - Arbitration - complex agreement between the parties contained a dispute resolution clause - dispute heard by arbitrator pusuant ot arbitration clause - unsuccessful party sought to appeal the award - application of s.38 of the Commerical Arbitration Act 1984 (NSW) - separate determination of whether plaintiff is required to obtain leave to appeal pursuant to s.38 of the Act - legislative history of the section discussed - question of leave to appeal under s.38 should be heard in advance of the hearing of the substantive appeal

Criminal Law - proceeds of crime - application to vary order by allowing withdrawal for legal defence costs - whether restrained property illegally acquired

Landlord and Tenant - Notice of renewal of lease - Whether misdescription of premises invalidated the notice - Whether notice absolute and unconditional

Criminal law - sexual assaults - relationship evidence - complaint evidence - admissibility - evidence of prior good character - jury - verdict taken before question answered or further directions given - principles

ADMINISTRATIVE LAW - Administrative Decisions Appeal Act 1997, ss 25, 73, 79, 119(1) - Veterinary Disciplinary Panel - expiration of period of office of member - substitution of new member in matter already heard but not determined - whether entitled to a hearing de novo - record of proceedings - powers of judicial member sitting alone - direction of President as to procedure on rehearing beyond power and void - issues of procedural fairness and natural justice raised

EQUITY - fiduciary obligations - misappropriation of money by fiduciary agent - no question of principle decided - EVIDENCE - burden of proof, presumptions and weight and sufficiency of evidence - claims against deceased's estate - EVIDENCE - burden of proof, presumptions and weight and sufficiency of evidence - effect of destruction of documents - EQUITY - fiduciary obligations - claim for "damages for breach of fiduciary duty" - meaning and availability

LEGAL PRACTITIONERS - Solicitors - Negligence advice - Whether causative of loss - Whether error by primary judge shown. ND.

VENDOR AND PURCHASER - Contract for sale of strata lot "off the plan" - Contract conditional on registration of strata plan "substantially in accordance with draft strata plan - Whether strata plan ultimately registered substantially in accordance with draft strata plan - Whether vendor failed to use all reasonable efforts to secure registration of strata plan substantially in accordance with draft strata plan - Whether vendor entitled to terminate contract D

CORPORATIONS [182]- Administration- Protection of assets- Whether provisional liquidator should be appointed whilst administrator considers position.

defamation - causes of action - misfeasance in public office - negligence - Fair Trading Act 1987 - misleading and deceptive conduct

Torts - negligence - duty of care - motor vehicle accident - Torts - negligence - duty of care - causation - innkeepers' liability - service of alcohol - Torts - negligence - contributory negligence - volenti non fit injuria - intoxication by alcohol. D

DAMAGES - appeal against quantum of damages - whether the evidence justified amount of damages - where there was an absence of evidence supporting the findings of the trial judge - award for damages beyond the judge's discretion - - PRACTICE AND PROCEDURE - admission of fresh evidence - discretion - matters occurring after trial - principles - interest on damages. ND

TECHNOLOGY AND CONSTRUCTION- Comprehensive Insurance Scheme under Building Services Corporation Regulation- Time limits for claim- Meaning of clause 7 of the Scheme- Meaning of "major structural defects"- Scope of power in clause 7 to extend times- Whether defects have to be pervasive throughout a building to be major structural defects- Meaning of "element", "substantial", "functional", "habitability" and "structure" in clause 31 of the Building Services Corporation Regulation 1990- Effect of the inclusion of examples in a regulation- Principle of construction that the unit of language is the sentence rather than individual words- Whether an element of a building that provides an essential supporting structure within clause 31(a) may also be a substantial functional element essential to habitability within clause 31(b)- Effect of pre-trial proceedings in the Fair Trading Tribunal.

TORRENS SYSTEM - caveats against dealings - application by registered proprietor for preparation of lapsing notice - meaning of "lapse" - refusal of Registrar-General to record lapse because evidence not submitted within time set by non-statutory administrative practice

defamation - matter complained of obtained by means of application under Freedom of Information Act 1989 - s64(1) protections against defamation claims

Succession - Family Provision - Claim by de facto widow - Size of estate - Partial distribution - Plaintiff left without adequate provision for her proper maintenance and advancement in life - Competing claim of other beneficiary, who is mother of testator - Needs of Plaintiff - Accommodation - Whether appropriate accommodation should be a three bedroom townhouse or a two bedroom home unit - Nature of order for provision is constrained by assets available in estate.

CORPORATIONS - liability of directors for insolvent trading - companies carrying on business in partnership - common sole director - both companies subject to creditors voluntary winding up - whether director's liability for insolvent trading applies to incurring of partnership debts

Appeal for damages for injuries, disabilities and consequential losses occasioned by the motor vehicle accident.

LEGAL PRACTITIONERS - Solicitor's lien - Notice - Whether notice can be given before lien crystalises - Whether authority to receive can be notice of lien - Requirement of clarity - Effect of lapse of time and change of solicitors.

[LEAVE TO APPEAL] - Application for leave to appeal from District Court decision extending the limitation period under s 60G of the Limitation Act 1969 (NSW) - Whether primary judge failed to give adequate weight to the prejudice occasioned to the claimant - Whether primary judge misstated and misapplied the principles applicable to onus of proof.

NEGLIGENCE - aircraft suffered partial power failure - pilot able to regain airfield - lowered undercarriage for landing - whether negligent in doing so - whether doing so caused crash landing - depends on facts. ND.

Corporations - Proof of debt - Onus of proof - No point of principle

Review decision of costs review panel and costs assessor

ADMINISTRATIVE LAW - Judical Review legislation - claim that issue of statutory garnishee notice under section 1233 Social Security Act 1991 (Cth) is invalid - whether Supreme Court has jurisidiction to determine - EQUITY - equitable charges and liens - solicitor's "fruits of the action" lien - attributes - whether notice by solicitor to fundholder that solicitor claims to be paid costs from the fund is necessary for existence of the lien - SOCIAL WELFARE - social security payments - whether section 1233 Social Security Act 1991 (Cth) enables Commonwealth to receive the amount of a judgment debt owed to someone who is a debtor to the Commonwealth concerning overpaid social security payments, notwithstanding the existence of a solicitor's "fruits of the action" lien over that judgment - PROFESSIONS AND TRADES - lawyers - "fruits of the action" lien - costs and disbursements which are within the scope of the lien - whether interest is payable on amount of the lien

RESTITUTION - INTEREST - COSTS

SUCCESSION - WILLS PROBATE AND ADMINISTRATION - probate and Letters of Administration - requirement for probate of a lost Will - effect of section 18A Wills, Probate and Administration Act 1898 on those requirements - evidence for probate of lost Will - presumption of destruction with intention of revocation if Will not found on Testator's death - manner of operation of presumption - payment of costs in probate suits

EQUITABLE ESTOPPEL FOUNDING CAUSE OF ACTION, LIMITATION ACT 1969 s 23- Discussion of Waltons Stores v Maher - Commonwealth v Verwayen and Giumelli- Whether a cause of action arising out of equitable estoppel is "for other equitable relief" within s 23- Whether the Limitation Act s 14 applies "by analogy"- Whether since Verwayen the cause of action can no longer be seen as equitable because estoppel is a unified doctrine of common law and equity. PRACTICE AND PROCEDURE- Striking out of statement of claim as statute barred- Caution required by Wardley Australia Ltd v WA- Application of that caution to a case where the limitation is alleged to apply "by analogy".