Cases and authorities

MOTOR ACCIDENT - extension of time - application for leave to appeal - quantum damages - non economic loss - s 79A Motor Accidents Act - ND

MOTOR ACCIDENTS ACT - three year limitation period - extension where unable to commence proceedings at the end of the three years because of a bar in s 52(1A) - what is the period of extension - construction to promote the purpose of procuring settlement without court proceedings. ND.

CONVEYANCING - injunction - declaration - costs - utility of appeal - appeal dismissed

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE other than under Family Law Act 1975 and related Acts - paternity - prerequisites for proof of paternity by tender of report of DNA testing - proof of paternity based on DNA testing other than by tender of report

Costs - no question of principle

Courts and Judicial System - Cross-Vesting - Order sought to transfer proceedings - First set of proceedings brought in the Supreme Court of Victoria - Second set of proceedings brought in the Industrial Relations Commission of New South Wales - Whether Industrial Relations proceedings should be removed into the New South Wales Court of Appeal and then cross-vested to the Supreme Court of Victoria - Whether special circumstances in terms of specialist nature of Industrial Relations Commission jurisdiction exist to warrant order - Disparate approaches to cross-vesting applications - Whether further guidance warranted by Court of Appeal

ADMIRALTY - claim for salvage - expiration of limitation period - court's discretion to extend time for commencement of claim - onus lies on plaintiff to demonstrate lack of prejudice - whether services were rendered as an employee or as a volunteer

COSTS - "CALDERBANK" LETTER - INDEMNITY COSTS

PROCEDURE [548]- Costs- Anticipatory order for costs- Jurisdiction to make- Scope of discretion.

Appeal from decision of Local Court - action against two debtors following loan - security documents and their construction - whether lender's action following bankruptcy of one debtor released the other debtor - whether error of law by magistrate.

CRIMINAL LAW - appeal - summons charged appellant with polluting waters contrary to s 16(1) of the Clean Waters Act 1970 - whether omission of an allegation detailing the act of pollution said to have caused the pollution renders the charge fatally defective - whether curative effect of s 43 of the Land and Environment Court Act 1979 operates - whether act of polluting is a legal element of offence or merely essential factual ingredient - distinction between legal elements and essential factual ingredients - "polluting" of waters is legal element - the particular way appellant polluted waters constitutes factual ingredient - charge in summons alleges all the legal elements of an offence contravening s 16(1) - appeal dismissed.

Environmental law - development consent - permission granted for "rural industry" - ultra vires consent - Council had no power to consent to a development which was an "industry" - State Environment Planing Policy Amendment clarifying definition of "industry" to exclude "rural industry" was not effective to breathe retrospective life into a void consent - declaratory enactment - use authorised by the Consent prohibited - Council not estopped from challenging validity of its Consent. (D)

Tort - Negligence - Scope and content of duty of care - Proximity - Liability - Damages - Tort - Past and future care - D

Murder - Multiple stabbing - Subjective factors - Age of offender - Aboriginality - Health status - Victim's impact statement - Sentencing principles

PLEADING AND PARTICULARS - FAILURE TO DISCLOSE CAUSE OF ACTION - SUMMARY RELIEF

INTERLOCUTORY ORDER - ADJOURNMENT TO PERMIT AMENDMENT

(1) ADJOURNMENT - SUFFICIENCY OF GROUND - REFUSED - (2) PLEADING AND PARTICULARS - FAILURE TO DISCLOSE REASONABLE CAUSE OF ACTION - EXTENT OF RELIEF

EJECTMENT - EX PARTE APPLICATION FOR STAY OF EXECUTION - LIMITED RELIEF

INTERLOCUTORY ORDERS - STAY PENDING DETERMINATION OF COMPETENCY OF APPEAL - NO APPEARANCE OF OPPONENT

Corporations Act - qualification of audit report - article proscribing remuneration to directors - no breach - limited to individual - honorary treasurers duties - auditor proper contradictor - annual general meeting forum does not exclude power to grant declaration - no inhibition of auditor's duties - authority to commence proceedings - sufficient utility in threat of report to ASIC and future payment

Criminal Law and Procedure - Judgment and Punishment - Suspended sentence - when appropriate.

Application for leave to appeal against sentence - charges of aggravated break, enter and commit indictable offence, break, enter and steal - parity of sentence

Criminal Law & Procedure - Sentence - Appeal against severity - Special circumstances

Application for leave to appeal against sentence - charges of make and use false instrument and firearms offence - discount for plea of guilty and for assistance to the authorities - "special circumstances"

Criminal law - Summing Up - lies - consciousness of guilt - lies going to credit - whether requirement of direction as prescribed in Zoneff v The Queen (2000) 200 CLR 234 - Criminal Appeal Rules, r 4

Criminal Law & Procedure - Sentence - Appeal against severity

Crown appeal on inadequacy of sentence - counterfeiting - gravity of offence - general deterrence - no settled range of sentences

Appeal against verdict and judgment in favour of respondent.

Mediation - referral by Court opposed by one party - Supreme Court Act, s110K - relevant factors - relevance of costs and inability to recover them (ND)

Appeal against verdict and judgment in favour of respondent.

Extension of limitation period - sufficiency of explanation - no question of principle.

CRIMINAL LAW AND PROCEDURE - Murder - Appeal - EVIDENCE - Sexual mutilation of victim's body - Evidence of sexual interest of appellant in deceased (a 14-year-old boy) - Whether relevant - Whether prejudicial - Whether wrongly admitted.

CORPORATIONS - winding up - application to set aside statutory demand - "genuine dispute" - tests to be applied - CONVEYANCING - matters arising between contract and completion - guarantee given for deposit - whether purchaser defaulted - whether termination by vendor wrongful - whether vendor entitled to recover deposit after expiration of guarantee - whether such entitlement is a "debt".

Contractors Debts Act 1997 s 14(1) - attachment order - whether proceedings have been commenced - whether money claimed for work carried out and materials supplied - whether evidence establises that money is owing - discretion

Criminal Law- Accused found not guilty on the grounds of mental illness

CRIMINAL LAW - application for extension of time for appeal - appeal against conviction and sentence - indecent assault and act of indecency on person under the age of 16 - plea of guilty - duties of legal advisors - plea of guilty not improperly obtained.

Motor Vehicle Accident - whether trial judge failed to consider defendant's evidence - appeal dismissed.

EQUITY [109]- Trusts- Investment before trust deed signed. EQUITY [223]- Trusts- Beneficiary's right to inspect trust documents.

Limitation of Actions - Application of statute - When time begins to run - Tort - Professional negligence - Solicitor - Failure to discover defect in title - Rectification of contract for sale - Damage accrued when rectification no longer available.

Contract - Formation of contract - Ongoing negotiations - Intention to contract - Masters v Cameron classes - Whether binding and enforceable subcontract formed between the plaintiff and second defendant - If a contract is found, an arbitration clause requires proceedings to be stayed pursuant to s53 (1) of the Commercial Arbitration Act 1984 (NSW) - Invitation made by defendant to plaintiff to tender for the design and construction of hydraulics services for the Stadium Australia project - Request to tender contained documents including standard subcontract agreement - Plaintiff submitted tender proposal based on tender documents - Plaintiff issued series of revised proposals modifying both tender price and scope of work - Plaintiff notified as being preferred tenderer - Plaintiff commenced work - Plaintiff sent letter outlining total tender price and scope of work which letter was negotiated, amended and resent by consensus - Plaintiff sent subsequent letter referring to total contract price - Second subcontract agreement sent to plaintiff in terms different from original standard subcontract agreement - Subsequent negotiations ensued between parties over terms of second subcontract agreement - Whether binding contract was formed at any time during ongoing negotiations between parties - No formal signed agreement entered into by parties - Fourth class of Masters v Cameron - Existence of informal contract with further terms to be negotiated and included in a formal document - Relevance of prior negotiation and subsequent conduct - Objective determination of the intention of the parties - Classical theory of contract formation - Relevance of the subjective intention of the parties - Admissibility of post-contractual conduct - Whether parties arrived at a consensus capable of forming a contract - Whether alternative proposal put forth by plaintiff constituted an abandonment of the terms of the original subcontract - Whether second subcontract negotiations supports or mandates inference that parties did not intend to make concluded bargain

Corporations Law. Application to set aside statutory demand. Need to quantify offsetting claim. Sufficient quantification and demand set aside.

CORPORATIONS - Takeover of preference shares - Compulsory acquisition - Meaning of "fair value" - allocation of "fair value" between and within classes - Valuation principles. - CONSTITUTIONAL LAW - Acquisition on just terms where fair value paid under s667C - judicial restraint in not answering constitutional questions not required for decision. - STATUTORY INTERPRETATION - travaux preparatoires not determinative of interpretation.

Sentence - Appeal against severity - Pervert the course of justice - suspended sentence - breach of conditions thereof -"stale" offence - "special circumstances"