Cases and authorities

PRACTICE AND PROCEDURE - statement of claim - pleadings - statutory claim - Civil Aviation (Carriers' Liability) Act 1959 (Cth), Part IV - inter State carriage - appeal allowed

DEFAMATION - DEFAMATORY IMPUTATIONS - WHETHER CONVEYED BY PUBLICATION - JURY - PERVERSITY - TRIAL OF LIMITED ISSUES - PROCEDURE - ORDER OF ADDRESSES BY COUNSEL - INTERLOCUTORY ORDERS - CHALLENGE BY DEFENDANT TO PLEADED IMPUTATIONS - PLAINTIFF AVAILS HIMSELF OF LEAVE TO AMEND - ABANDONED PLEADINGS - WHETHER LEAVE SHOULD BE GRANTED TO RAISE AGAIN - CAPACITY OF PUBLICATION TO CONVEY SPECIFIC IMPUTATIONS

CONTRACTS - whether restrictive covenant varied - whether restrictive covenant breached - no questions of principle decided - ESTOPPEL - whether estoppel from enforcing restrictive covenant - no question of principle decided - CONTRACT - remedies for beach - whether an account of profits an available remedy - EQUITY - equitable remedies - availability of account of profits as remedy when breach of contract established. - PROCEDURE - pleading - need to plead basis for remedy of account of profits - TRADE PRACTICES AND RELATED MATTERS - consumer protection - whether representations made, or relied on, or caused loss - no question of principle decided - LANDLORD AND TENANT - termination of the tenancy - whether landlord entitled to terminate tenancy - no question of principle decided - CORPORATIONS - constitution and legal capacity - when execution of document on behalf of corporation binds the corporation - no question of principle decided

EVIDENCE [53] - Admissibility and relevancy - Hearsay - Particular cases - Exclusion of hearsay rule - Statement by person not to be called as a witness tendered by a party - Whether another party (who is the person's employer) may be required under s 169 of Evidence Act 1995 to call the person as a witness.

Disqualification for bias - litigation against judge and other defendants - application by a judge being heard before applications by other defendants who seek such procedure - objection by respondent to all applications - procedural reasons for adopting proposed order - disqualification refused

PROCEDURE [671] - Costs - Security for costs - Practice matters - Order for security by cash deposit or bank guarantee - Application for variation of order to permit guarantee to be given by controller of plaintiff and his wife.

CORPORATIONS - winding up - directions to liquidators -whether appropriate for court to give direction - PROCEDURE - legal professional privilege - liquidators' desire to deliver privileged material to Royal Commission in context of undertaking not to communicate except in certain circumstances - whether privilege waived if delivery voluntary - whether statutory compulsion exists

Sentence - Crimes Act,1900 s33B and Firearms Act, 1996 s7 - partially cumulative sentences - proper allowance for special circumstances

INSURANCE - storm damage - collapse of part of building - whether insured entitled to indemnity value of building viewed alone as distinct from together with the land on which it stood - whether insured worse off as result of the collapse - whether errors in evidentiary rulings - whether insured had proved costs of removal of debris - entitlement to interest. D.

TORTS - trespass to land - whether implied licence to enter - whether express licence to enter - where journalist and cameramen entered land with cameras rolling - scope of damages - consequential damages - whether damages for personal injury (mental trauma) recoverable - exemplary damages - whether necessary to separately identify amount - aggravated damages - TORTS - trespass to land - expert evidence - whether open to accept evidence - whether absence of cross-examination precluded acceptance - whether inadequate reasons for preferring evidence

ROAD TRAFFIC - DRIVER LICENCE - SUSPENSION BY REASON OF ACCUMULATED DEMERIT POINTS - APPEAL TO LOCAL COURT - CERTIORARI - NO ERROR BY MAGISTRATE APPARENT ON RECORD OR OTHERWISE

COSTS - INTEREST - ORDERS OF SUPREME COURT IN COURT OF APPEAL AND COMMON LAW DIVISION - JURISDICTION OF MASTER - CLAIM FOR COMMON LAW DAMAGES - SUPREME COURT ACT s95

Defamation - imputations - difference in substance - "lying" - "committed perjury" - true innuendo - multiple imputations embarrassing

CRIMINAL LAW - sentencing - multiple counts of dishonesty - special circumstances

CRIMINAL LAW - sentencing - dangerous driving causing death - gross abandonment of responsibility in driving - pregnancy not disclosed to sentencing judge - effect of imprisonment on applicant's young family

Sentence appeal - break enter and steal being armed with an offensive weapon - no question of principle.

Leave to appeal against severity - False migration documents - Misreading antecedents - Sentence manifestly excessive - Medical condition harder on applicant

CRIMINAL LAW - sentencing - ongoing supply of heroin for reward - non-parole period - special circumstances - accumulation of sentences

Crown appeal against inadequacy of sentence - drug offences committed whilst on bail for other drug offence - principle of totality - sentence manifestly inadequate

TORTS - Negligence - Contributory negligence - Apportionment of responsibility - Van hitting pedestrian crossing against traffic lights - Whether 50/50 apportionment reasonable. D.

Criminal law: accused unfit to be tried - special hearing - murder - issue of mental illness.

Sentence appeal - whether sentencing judge erred in declining to fix a non-parole period.

Defamation - identification - imputations - form and capacity - aggravation of damages - corporate plaintiff

Defamation - identification - imputations - form and capacity - aggravated damages - deficient particulars

CONTRACT - interpretation - contractual term obliged one party to accept the reasonable opinion of another - ambiguous contractual term - "first quality wine" - pre-contractual conduct of parties considered - whether evidence of post-contractual conduct may be considered - the word "otherwise" after specific description words should be considered in the context of the clause

Special Hearing - jury -accused unfit to be tried - guilty on limited evidence available - limiting term set - referred to Mental Health Review Tribunal.

Family Provision. Application. Application under Family Provision Act by a daughter in respect of a modest estate. Plaintiff received sufficient benefits under will of the deceased. Summons dismissed.

PRACTICE & PROCEDURE - leave to amend - application to amend defence to add limitation defence after final hearing and reasons for judgment handed down - relevant considerations

[LANDLORD AND TENANT] - Refusal to consent to sub-lease - Whether such refusal unreasonable.

Contracts - Construction of terms - Contracts upheld where possible - Severance - Expert determination clause - Provision in clause stated that an expert would be a person agreed between the parties or, failing agreement, a person nominated by the person prescribed in the Annexure - No person prescribed in the Annexure - Whether clause void for uncertainty - Whether part of the provision after the disjunctive 'or' could be severed, leaving an implication that the parties had a duty to cooperate in nominating an expert - Implied terms - Terms implied in fact - Terms implied in law - Terms implied to give effect to the presumed intention of the parties - Terms implied from a prior course of dealing - Terms implied where the principle terms are settled but necessary subsidiary terms are absent - Duty to co-operate

CRIMINAL LAW AND PROCEDURE - SENTENCE - CROWN APPEAL ALLEGING INADEQUACY - FACTORS IN RESENTENCE ASSESSMENT

Break enter and steal - suspended sentence - breach of conditions of suspended sentence by commission of further break enter and steal offence - discount for plea of guilty not quantified - ill-health of dependents - "special circumstances" - sentence backdated and to run concurrently - not manifestly excessive - whether power existed to order disqualification of licence where no conviction for offence of drive whilst disqualified it being on a Form 1 - power exists to impose "ancillary orders" in such circumstances

Drive in a dangerous manner causing grievous bodily harm - drive conveyance without the owner's consent - Form 1 matters - operation of R v Jurisic - discount for plea of guilty where Crown case overwhelming - "special circumstances" - effect of cumulative sentence - no less severe sentence warranted

PRACTICE AND PROCEDURE - dismissed for want of prosecution - self executing orders - powers of Registrar - failed to give reasons for dismissal - Supreme Court Act 1970 - Supreme Court Rules 1970

Order of priorities set by s 433(3)(c) of Corporations Law - s 106 of Industrial Relations Act 1996 - whether the Industrial Relations commission could retrospectively vary a contract of employment between a company and its employee - whether company was required to make a retrenchment payment to employee - characterisation of "retrenchment payment" within the meaning of s 556(1)(h) of Corporations Law - appeal dismissed with costs.

Criminal law - appeal - sentence - asserted error - evidence sufficient to support findings of fact by trial judge - necessity for court to consider some other sentence warranted in law should have been passed - no error.

LANDLORD & TENANT [11] & [48]- Lease by two adjoining owners of combined lots by one instrument- Assignment of reversion by one owner- Assignee seeking to re-enter its part- Rent- Whether set-off permitted.

Family Provision. Application under Family Provision Act 1982 by a daughter. Large grazing estate most of which was left to son who had built up estate. Additional legacy provided for the plaintiff.

EVIDENCE - Listening Devices Act - Evidence unlawfully obtained - plaintiff secretly recorded conference with family members and lawyers about circumstances of transactions made by her mother in 5 months before her death which conferred benefits on one grandson - conference was agreed to be without prejudice - plaintiff made recording to enable herself to consider fully and reflect on what was said - later she brought proceedings to remove trustee appointed by mother's will for not investigating circumstances of those transactions - trustee was her brother and father of favoured grandson - at the hearing the defendant waived without prejudice reservation, gave evidence of statements at conference and plaintiff tendered tape and transcript in reply - HELD - unlawful under Listening Devices Act s.5 because not reasonably necessary subs.5(3)(b) - not inadmissible under s.13 because within exception in subs.13(2)(b) conversation came to her knowledge otherwise than through the use of the recording - inadmissible under Evidence Act s.138 because illegal and an impropriety and in application of weighing exercise in subs.138(3).

Dismiss statement of claim as against fifth defendant

Appeal against conviction - error of law in admitting evidence of admissions - inconsisent evidence - equivocal evidence over existence of a video of interview - no case for an outright acquittal.

Sentence appeal - dangerous driving - no question of principle.

No question of principle - sentence for robbery in company not excessive

Impermissible cross-examination by Crown driving accused to say complainant was lying and to the effect that the reason his counsel had not asked her about certain matters was because he had recently made them up - difficulties compounded by inadequate re-examination and prosecutor's florid address - oath against oath - credibility of complainant and accused critical