Cases and authorities

Medical Negligence - Natural Justice - appellant sued hospital and two doctors for intellectual disabilities allegedly caused by their negligent treatment in relation to his birth - appeal against order under Pt 13 r 5 Supreme Court Rules summarily dismissing claim against doctors - whether trial judge erred in failing to apply principle in Wickstead v Browne - appeal allowed.

DETENTION OF GOODS - Plaintiff claimed return of formwork brought onto defendant's building site by building subcontractor which was under same control as plaintiff - plaintiff's case depended on showing that a practice was followed of transferring to the plaintiffs ownership all formwork acquired by companies in a Group - the claim failed on the facts as it was not shown that there was such a practice, or that it was followed.

Extension of time - ss 60C & E Limitation Act

VENDOR and PURCHASER - matters arising between contract and completion - Rescission - sale off-the-plan of home unit in proposed Strata Plan of building not yet built - Special Condition gave vendor right of rescission if Strata Plan not registered by 16 March 2001 - power to extend for delays exercised and extended to 15 August 2001 - vendor rescinded soon after 15 August 2001 - at time of exchange completion predicted before Olympic Games - main building work commenced December 2000 - no building contract signed until March 2001 - completion of registration expected March 2002 - found that non-registration was caused by breaches of contract by vendor and purported rescission was not effective.

SUCCESSION [30]- Family Provision- Widow's application- Wealthy estate- No other claimant- Approach- Relevance of lifestyle.

CRIMINAL LAW - Crown appeal against sentence - supply of heroin, methylamphetamine and cocaine - manifest inadequacy of sentence due to significant role played by respondent in supply - trial judge incorrectly assessed respondent's level of contrition, and the utiilitarian value of late plea of guilty - discount for asssitance erroneously applied wholly to the non parole period - excessive weight given to subjective circumstances - accumulation of sentence more appropriate than concurrency due to duration, frequency and volume of drug supply - appeal allowed - respondent resentenced.

CRIMINAL LAW - sentencing - Crown appeal against inadequacy of sentence - whether sentence manifestly inadequate - aggravated dangerous driving occasioning death and grievous bodily harm - whether offence fell within worst category of offences of this kind - where gravity extremely high and subjective case for offender weak - whether discount for guilty plea appropriate - whether finding of special circumstances based on rehabilitative prospects appropriate where persistently defiant attitude to law demonstrated.

CRIMINAL LAW AND PROCEDURE - MALICIOUS WOUNDING - SENTENCE - IMPRISONMENT SUSPENDED - NO MISCARRIAGE OF JUDGE'S DISCRETION - SENTENCE AND ORDER NOT MANIFESTLY INADEQUATE

Defamation - direction to jury - imputations under the Defamation Act 1974 - whether pleaded imputations are to be understood in the context of whole matter complained of. - Procedure - order for new trial on ground of non-direction - whether the lack of a direction led to a substantial wrong or miscarriage of justice. (D)

TESTAMENTARY CAPACITY - knowledge and approval of executed will by testator - application of principles to facts by trial judge - testator suffered a stroke and whether physical and mental consequences adversely affected her capacity - capacity of testator's memory and ability to give clear instructions - executor bore onus of establishing testamentary capacity - if a duly executed will is rational on the face of it there is a rebuttable presumption that the testator had testamentary capacity. (ND)

Defamation - perverse verdict - imputation that father directed violence to his son held not to be defamatory - new trial ordered, but limited to that imputation (ND)

Negligence - appeal - duty of care - local authority - occupier's liability - breach of duty - failure to take reasonable measures to prevent dangerous use of velodrome - voluntary assumption of risk - principles - apportionment of damages. D

Practice and Procedure - Leave to appeal - Extension of limitation period in which to bring proceedings for damages for personal injury arising from industrial deafness suffered during employment - Whether just and reasonable to extend limitation period - Whether inadequate weight given to prejudice occasioned by claimant if limitation period extended - Proper construction of s60G(2) of the Limitation Act 1969 (NSW) - Relevant consideration of putative defendant's position

Limitation of Action - Application for Extension - Appeal from granting of extension of time in which to commence action - Application for leave to extend limitation period in which to bring action pursuant to s 60G of Limitation Act 1969 (NSW) - Action for damages for injury relating to hearing loss suffered by respondent during employment with appellant - Whether respondent aware or ought to have become aware of connection between personal injury and appellant's acts or omissions - Whether requirements of s 601 of the Limitation Act 1969 (NSW) met - Whether actual or constructive knowledge of injury relevant - Imputation of knowledge - Whether extension of limitation period just and reasonable - Whether exercise of discretion miscarried

CRIMINAL LAW - grievous bodily harm inflicted - by either Crown witness or the accused - Crown witness convicted, on basis of joint criminal enterprise - fact of conviction for inflicting grievous bodily harm brought out in cross-examination - trial judge gives explanation - explanation introduced irrelevant and prejudicial material. D.

CRIMINAL LAW - Crown appeal - slip rule - jurisdiction to vary orders to ammend custodial sentence date - respondent not arrested until 14 months after judgment - correction of windfall to respondent created by failure to appear at sentencing.

Evidence - Relevance

appeal from Costs Assessor - question of law - sufficiency of evidence - Assessor's finding of fact

CORPORATIONS - winding up - challenge to winding up order - choice among various procedural avenues - insufficient service alleged - application dismissed - STATUTES - interpretation - Acts Interpretation Act 1901 determines deemed time of service of posted document under s.109X of Corporations Act 2001 - Evidence Acts not relevant

Evidence - Re-examination

CONTRACT [158][204]- Agency- Power of attorney- Attorney must sue in donor's name- Donee is not authorised to sue donor. MENTAL HEALTH [3]- Appointment of manager- Defendant outside NSW- Jurisdiction- Discretion. PROCEDURE [747]- Declaration- Utility- Agents seeking declaration they are third defendant's attorneys under power rather than first defendant.

COSTS - directors resolved to appoint voluntary administrators in bad faith and for improper purposes - administrators were on notice of improper purpose but not bad faith - plaintiff succeeds in terminating deed of company arrangement - whether administrators and directors should be ordered to pay plaintiff's costs - whether administrators should be prevented from recouping costs from company

CONTRACTS [120]- Interpretation- Inconsistent provisions- How resolved. CONTRACTS [166]- Agency- Authority to alter a deed relating to land must be registered as a power of attorney. CONVEYANCING [152]- Torrens system- Term of lease- How far Registrar-General's certificate conclusive. LANDLORD & TENANT [17]- Duration of term- Inconsistent clauses- How resolved. PROCEDURE [102]- Discontinuance- When leave to discontinue cross-claim should be given. PROCEDURE [746]- Declarations- Not ordinarily to be made where summons for possession appropriate procedure. REAL PROPERTY [29]- Ejectment- Who is an occupier.

Sentencing - Application to re-open based on health grounds - further reductions in sentences refused

JURISDICTION - whether offences capable of prosecution in the Summary Jurisdiction of the Supreme Court - indictable offences - abuse of process - Supreme Court Act 1970, s 76 - inherent jurisdiction - whether appeal to Court of Criminal Appeal competent - costs - ND

MOTOR ACCIDENTS ACT - limitation period - extension of time - full and satisfactory explanation

Application for bail pending determination of Appeal to High Court - "special or exceptional circumstances"

Plea of guilty to manslaughter - substantial impairment - relevance of general deterence - future dangerousness - plea of guilty - special circumstances

Summary judgment - malicious prosecution

CORPORATIONS - extension of period for challenging allegedly voidable transactions - principles to be applied - risk of subsequent adverse order if liquidator uses extension to pursue persons already identified

EQUITY [97] - Trusts and trustees - Classification of trusts - Implied trusts - Resulting trusts - Where intention presumed - When arising - Other cases - Voluntary transfer of Torrens title land - Whether presumption arises - Whether presumption precluded by Conveyancing Act 1919 s 44 (1).

COMMERCIAL LEASE - contract of guarantee - tenant went into liquidation - action by landlord against guarantor - orders for costs made - whether respondent entitled to recover costs pursuant to contractual indemnity provision - Supreme Court Act 1970 (NSW), s 76 - Supreme Court Rules (NSW), Pt 52 r 8 - res judicata - anshun estoppel - abuse of process - construction of the terms of contract - cross-appeal - interest on costs - D

PROCEDURE - Pleading - Amendment - Requirement to plead material facts - Whether pleading should state causes of action. D.

CORPORATIONS - winding up - statutory demand - genuine dispute - demand set aside

Procedure - hearing before National Crime Authority - requirement for witness to take oath or make affirmation in form approved by member presiding - prosecution of witness for refusal or failure - proof of offence - National Crime Authority Act, ss 28, 30.

Merits review - Administrative Decisions Tribunal - whether discrimination on the basis of medical disability occurred - whether there was error on the face of the record - failure to take into account relevant considerations, or irrelevant considerations taken into account - Wednesbury unreasonableness - Judicial notice - damages - lost opportunity.

Interlocutory application to remove or restrain receiver on grounds of a lack of power or breach of implied good faith in appointment of receiver.

PROCEDURE [105] - Supreme Court procedure - Practice under Supreme Court Rules - Directions - Power to make directions to facilitate just cheap and quick disposal of real issues between parties - Persons against whom fraud alleged cannot conveniently be joined as parties in statutory appeal against liquidator's decision - Course which ought be followed.

Family Provision. Application by an adult son. Modest estate passes to the de facto widow of 20 years standing. Small legacy awarded.

Plaintiff's vehicle travelling in wet conditions with heavy rain - goes out of control in or about intersection - collides with power pole - plaintiff attributes accident to water on highway - first defendant's liability for negligence in and about design of the roadway.

Directions - no evidence of any statement by accused upon arrest - accused gives no evidence at trial - absence of directions - no application for directions - trial counsel's affidavit - whether miscarriage of justice

EVIDENCE - bones found - on Crown case were bones of accused's wife - DNA analysis - likelihood ratio 660,000 times more likely to obtain DNA profile found in bones of child of wife's parents than if bones of a child of a random mating in the Australian population - left to jury that 660,000 to one chance that were bones of wife rather than any other person - and that 660,000 to one chance that evidence of persons seeking the wife alive were accurate and reliable - prosecutor's fallacy - summing-up failed to correct it - conviction quashed. D.

Development application - approval sought for subdivision of land - whether council had power to grant application - appeal dismissed.

defamation - pleadings - imputations

Associations and clubs - rights, duties and liabilities of members - rights of members to resign. Associations and clubs - jurisdiction of courts - property rights and obligations

Family Provision. Claim by a daughter under the Family Provision Acjt 1982 in respect of a small estate which had been left to the widow of 20 years standing. Claim dismissed.

PROCEDURE [572] - Costs - General rule: costs follow the event - Costs out of a fund - Limitation to part of fund - Whether order made by consent for costs out of proceeds of sale of property subject in part to a charitable trust should be construed as ordering costs out the whole of the proceeds or only that part subject to the charitable trust.