Cases and authorities

CRIMINAL LAW - Appeal against conviction - DNA evidence - Persons who carried out tests not called - Duties of prosecutor - EVIDENCE - Hearsay - Expert analysis of DNA evidence - Whether based on hearsay - Whether should be excluded as prejudicial. D.

Evidence - Admissibility and relevance - Trial judge refusing to allow accused to raise character in part - whether it gave rise to miscarriage of justice.

Defamation - qualified privilege - whether judge conflated issues of malice and excess of occasion of privilege - Judge's conclusions on qualified privilege at common law not a discretionary ruling - whether in emphasising the inaccuracy of the imputations the judge overlooked the fact privilege may be attracted despite untrue defamatory statements - Schedule of questions placed before the jury -form of template misleading - inconsistency in answers - whether trial judge entitled to treat second answer as surplusage - whether answers could not logically stand together - whether s13 Defamation Act defence should have been available - Adequacy of summing up. (D)

SUCCESSION - Wills, probate and administration - the making of a will and codicil - construction and effect of testamentary instrument - failure by testatrix to make sufficient provision for appellant - intention and capacity of testatrix - whether testatrix was affected by a delusion at the time of making the will - false belief not a delusion - ND

Evidence - Unfavourable witness - Application to cross examine unfavourable witness - Leave to cross examine unfavourable witness in respect of answers given in cross examination - Ambit of Section 38 of Evidence Act 1995

CORPORATIONS - winding up - application to set aside statutory demand - whether affidavit is supporting affidavit - applicant confined to grounds of opposition in supporting affidavit - cogent arguments arising from parties' contract demonstrate genuine dispute and offsetting claim

Family Provision. Application by same sex de facto partner. Short relationship. Benefits provided to plaintiff after date of death. Failure to properly quantify costs of further education of the plaintiff. Small legacy to the plaintiff.

Action for specific performance of contract to surrender easements - no question of principle.

Family provision - application by adult male - no adverse inference from lack of corroboration - application dismissed

CONTRACTS [75]- Part performance- Ambit of doctrine- Applies beyond specific performance suits. PROFESSIONS [95]- Solicitor- Duty to client when taking security for own costs.

Evidence - Effect of Section 192(2) of Evidence Act - Compound verb - Meaning and effect of "is to take"

CORPORATIONS - winding up on just and equitable ground and for oppression - relief for oppressive conduct - minority shareholder is foreign, majority shareholder/director fails to provide information and to hold meetings and misuses company funds for unauthorised travel and other expenses - EQUITY - joint venture agreement - fiduciary duties - breach of duty - remedies

CONTRACT - interpretation - construction of document - whether agreement to buy shares was made by Defendants 1, 2 and 3 as principals or as agents for unnamed parties.

LEGAL PROFESSION - Costs - Plaintiffs claimed declarations that correspondence establishing charging rates were not Costs Agreements within meaning of LP Act: numerous grounds of attack failed: held that it is not necessary that written disclosure of right to assessment be made in the Costs Agreement itself. On cross-claim it was declared that certain letters were Costs Agreements.

[Evidence] - Whether pleading of defence and cross claim amounts to consent to the production of documents bearing upon or relevant to the defendant's state of mind at the time of entry into the contract, the subject of the proceedings.

EVIDENCE - admissibility - exclusion - client legal privilege - letter from client to insurance broker - not seeking legal advice - Evidence Act 1995, ss 117, 118, 119 - EVIDENCE - admissibility - "confidential document" - "protected document" - Evidence Act 1995, ss 117, 126A - EVIDENCE - discretion to exclude - whether "probative" - opening up of lines of enquiry - Evidence Act s 135, 192, Dictionary (probative)

EVIDENCE - admissibility - industrial accident - claim for common law negligence - breach of duty imposed by statute - exclusion of action for breach of statutory duty - admissibility of breach of statute as evidence relative to common law negligence - evidence of which relevant facts - EVIDENCE - admissibility - industrial accident - action for common law negligence - plea of guilty to breach of statute - which facts admitted by plea

SENTENCE - MURDER OF WIFE BY HUSBAND

WORKERS COMPENSATION - limitation period - extension of time - scope of discretion - test for reasonableness of delay - conduct of applicant for leave - fully informed decision to allow statutory period to expire - Workers Compensation Act, s 151D(2) - APPEAL - interlocutory appeal capable of disposing of entire case - time when appeal should be heard - PRACTICE AND PROCEDURE - decision to dispense with jury - decision within discretion - District Court Act 1973, s 79A. D

CRIMINAL LAW - sexual offence - appeal against sentence - age and health of appellant - whether appropriate to sentence on standards at time of commission of offence - where long delay between the commission of offence and conviction - statutory trigger for resentencing

Criminal Law & Procedure - Sentence - Appeal against severity - Inadequate sentence of co-offender - Parity in such circumstances

WORKERS COMPENSATION - application of slip rule - adjustment of damages - two work injuries - need for separate assessment - future economic loss - ND

PROCEDURE - Decision in short form under s45(4) of Supreme Court Act - No appealable error - Principles applicable where findings of trial judge in substantial part based on credibility - Oral submissions of further grounds not properly pleaded or properly articulated in grounds of appeal. D

REAL PROPERTY - council resumed land - land later dedicated as public reserve - consideration of nature and extent of council's fee simple - then declared that land may be dealt with as Crown land - whether thereby council divested and land vested in Crown - whether land vested in Her Majesty within Aboriginal Land Rights Act - Registrar General deleted council as registered proprietor, recorded land as having become Crown land and cancelled Certificate of Title - whether conclusive that council divested and land vested in Crown - whether power to rectify register. D.

Costs - Indemnity Costs

WORKERS COMPENSATION - limitation period - extension of time - scope of discretion - test for reasonableness of delay - conduct of applicant for leave - fully informed decision to allow statutory period to expire - Workers Compensation Act, s 151D(2) - APPEAL - interlocutory appeal capable of disposing of entire case - time when appeal should be heard - PRACTICE AND PROCEDURE - decision to dispense with jury - decision within discretion - District Court Act 1973, s 79A. D

CRIMINAL LAW - Act intending to pervert the course of justice - Statement to judge that police witness alleged judge was corrupt - Judge disqualifies himself - Whether truth of statement relevant to intent - Whether new trial should be ordered.

Criminal Law & Procedure - Sentence - Appeal against severity - Youth - Deterrence must yield to rehabilitation to a degree

Practice and Procedure - application for extension of limitation period under s60C(2) Limitation Act 1969 - consideration of factors listed in s60E - held that trial Judge erred in granting extension.

TORT- Accident on highway- No evidence as to who carried out work on item causing accident- Plaintiff must fail- Proposition 1 of Powell JA in Lake Macquarie CC v Bottomley endorsed. (D)

LOCAL GOVERNMENT - powers, functions and duties of councils - Council Resolutions - Code of Conduct - expulsion of Councillor from meetings - utility of appeal - costs - ND

NEGLIGENCE - duty of care - reasonably foreseeable risk of injury - automatic retraction of cinema seats - duty to warn

Negligence - Causation

PRACTICE & PROCEDURE - Administrative Law List - appeal from Residential Tribunal - non-appearance by plaintiff - lengthy delays

Criminal Law- accused mentally ill - whether accused fit to be tried.

CONTRACT - Arbitration re noise dispute concerning home unit common property - submission to arbitration governed by contract - also on facts implied agreement to submit to arbitration - s25 of Commercial Arbitration Act not applicable in circumstances.

Civil procedure: appeal from refusal by Master of application to join additional defendant.

MORTGAGES - general law duty owed by mortgagee exercising power of sale - duty owed to third mortgagee same as duty owed to mortgagor - MORTGAGES - general law duty owed by mortgagee exercising power of sale - effect of first mortgagee taking deliberate action to keep seriously interested potential purchaser away from auction organised by first mortgagee - MORTGAGES - general law duty owed by mortgagee exercising power of sale - effect of first mortgagee's exercise of power of sale being affected by first mortgagee seeking an advantage for itself - MORTGAGES - general law duty owed by mortgagee exercising power of sale - juristic origin of duty to act in good faith - MORTGAGES - general law duty owed by mortgagee exercising power of sale - remedy for breach of duty - CORPORATIONS - RECEIVERS MANAGERS AND CONTROLLERS - duty of controller of property under s 420A Corporations Act 2001 (Cth) in selling that property - CORPORATIONS - RECEIVERS MANAGERS AND CONTROLLERS - remedies available for breach of s 420A Corporations Act 2001 (Cth). - CORPORATIONS - whether remedy of damages available under s 1324 (10) Corporations Act 2001 (Cth) when there is breach of duty established by the Act, but no injunction is sought concerning that breach - CORPORATIONS - RECEIVERS MANAGERS AND CONTROLLERS - who can obtain a remedy under s 423 Corporations Act 2001(Cth) against a controller who breaches a statutory duty established by Corporations Act - CORPORATIONS - RECEIVERS MANAGERS AND CONTROLLERS - range of remedies available under s 423 Corporations Act 2001 (Cth) - CORPORATIONS - RECEIVERS MANAGERS AND CONTROLLERS - procedure adopted by the Court in conducting an inquiry under s 423 Corporations Act 2001 (Cth). - PROCEDURE - separate hearings on liability and damages - when appropriate to order inquiry as to damages - PROCEDURE - election between remedies - MORTGAGES - general law duty owed by mortgagee exercising power of sale - form of order appropriate when inquiry and account ordered, following breach of duty

Practice and procedure - professional negligence claim - application for appointment of conference between experts - relevant considerations - Supreme Court Rules, Pt 36 r 13CA.

Restitution of moneys paid under judgment set aside on appeal - new trial as to damages only no reason for refusing restitution - right to seek interim damages under Part 5 Div 2 of Supreme Court Act a matter for Common Law Division

CORPORATIONS - winding-up - sole director seeks order setting aside winding-up order - need for leave under s.471A - various methods of retrieving company from liquidation

CORPORATIONS - voluntary administration - need to adjourn second meeting beyond last date allowed by s.439B - whether s.447A empowers court to extend time limit - factors relevant to extension

PROCEDURE [551] - Costs - Jurisdiction - Persons not parties to proceedings - Beneficiary not made party to probate suit - Beneficiary pays plaintiff executors' costs of suit - Beneficiary seeks to file application for order for costs in his favour late in hearing inter partes concerning costs - Whether application should be allowed to be filed.

CRIMINAL LAW - Crown appeal against sentence - supply of prohibited drug - principle of totality - principle of double jeopardy - subjective circumstances taken into consideration - sentence correctly discounted for guilty plea and co operation with police - insufficient weight given to respondent's reoffendeding whilst on parole - appeal allowed.