Cases and authorities

Nuisance - form of injunction - no other question of principle

Serious question to be tried - Balance of convenience - Tendering - Suggested improper influence upon Committee evaluating tenders

LEGAL PRACTITIONERS - professional discipline - where Bar Council cancelled the practitioner's practising certificate pursuant to s 38FE(1)(b) of the Legal Profession Act 1987 - appeal against Bar Council's decision to Supreme Court under s 38B(1) - hearing de novo in the original jurisdiction of the Court - where legal practitioner failed to make payments of income tax and additional tax and interest - where practitioner became bankrupt - whether act of bankruptcy committed in circumstances that show the practitioner is not a fit and proper person to hold a practising certificate - elements which inform the decision as to whether a practitioner is fit and proper - in the context of bankruptcy the test to be applied in determining fitness to practice is whether the indebtedness which led to the bankruptcy was brought about or associated with dishonest conduct by the barrister

Extradition -appellant voluntarily returned to Australia in custody to face charges - whether extradited to Australia - Extradition - appellant voluntarily returned to Austalia in custody to face charges - whether surrendered to Australia - Extradition - appellant voluntarily returned to Australia in custody to face charges - later charged with offences arising out of different facts - whether entitled to rely on speciality rule

Family provision - Claim by adult grandson - Whether an eligible person - Whether partly dependent upon testator - Factors which warrant the making of the application - Proceedings out of time - Whether Plaintiff was served with a notice of claim in earlier proceedings against the same estate - Fact that he was not served is not determinative of whether an extension of time should be allowed - Financial and material circumstances of Plaintiff - Whether Plaintiff has been left without adequate provision for his maintenance - Notional estate - After expiry of the prescribed period the only significant asset was transferred to the beneficiary entitled thereto - Whether an order should be made designating that property notional estate - Importance of not interfering with reasonable expectations in relation to property

Criminal law - Sentencing - Crown Appeal - delay in serving notice of appeal - respondent avoided service - whether Court should decline to interfere with an inadquate sentence

Insolvency - rule against double proofs - money paid under bank bonds - whether money paid reduced debt of primary creditor.

NEGLIGENCE - causation - cause of motor vehicle accident - whether accident reasonably foreseeable - test for duty of care - liability - who is responsible for maintenance and traffic regulation of public road - highway rule no longer applicable - general damages where plaintiff is tetraplegic requiring 24 hour care - horrific injuries - whether damages awarded for funds management - whether damages awarded for nanny in event of plaintiff becoming pregnant.

Circumstantial evidence direction - Voice identification warning - Need to include matters affecting reliability of identification - Inferences arising from Counsels conduct of cross examination - Need for circumspection when drawing inference

Criminal Law - Appeal against conviction - Leave to appeal against sentence - indecent assault - sexual intercourse without consent - complainants brothers - over 17 year delay in complaint - Longman warning required rather than mere comment on delay - cannot be said conviction inevitable - direction fundamentally flawed - new trial.

CRIMINAL LAW - sentencing - "special circumstances" - Crimes (Sentencing Procedure) Act 1999, s44(2) - CRIMINAL LAW - sentence appeals - statutory trigger for re-sentencing - Criminal Appeal Act 1912, s6(3)

Land & Environment Court - Class 1 proceedings - Application for leave to appeal -- refusal to grant development consent for housing for aged people - whether development permitted pursuant to Local Environmental Plan or State Environmental Planning Policy - SEPP 5 - whether subject land identified by description "open space" - zoning map incorporated in LEP - whether identification of land by description in Index to map sufficient to engage Schedule of SEPP - whether heading in Index has any operative force.

CRIMINAL LAW - Sentence - murder - plea of guilty

CORPORATIONS - winding up - contracts by liquidators not to be performed within three months - contracts entailing statutory non-compliance will not be approved - INSURANCE - agents and brokers - statutory duties of broker to account to insurer

Manslaugther - Malicious woundings - Multiple convictions - Temporally related crimes - Totality - Provocation - Plea of guilty to manslaughter - Late contrition - Concurrency of sentences - Special circumstances - rehabilitation prospects

Manslaughter - Shooting - Absence of specific intent - Drunkeness - Alcohol - Drugs - Cannabis - Aggravation - Mixture of drink, drugs and dangerous weapons - Subsequent behaviour - Concealment of crime, death and body - Special circumstances - Protective custody

Murder - intent to cause grievous bodily harm - taxi driver victim - plea of guilty

Judgment on sentence - Plea of guilty to murder - Whether premeditation involved - Long term drug and alcohol abuse - Special circumstances

CRIMINAL LAW - sentencing - manslaughter - mother causing death of child - unlawful and dangerous acts - plea of guilty

CRIMINAL LAW - committal proceedings - application for attendance of a witness under s48E(2)(b) Justices Act - whether magistrate applied correct test

COSTS - whether order as to costs in favour of respondent to appeal should be made - whether order for indemnity costs from date of offer of settlement should be made in relation to first instance proceedings - where offer had been made and rejected prior to judgment on costs in first instance proceedings.

LIMITATION OF ACTIONS - Extension of time - Whether "just and reasonable" - Onus of proof - Applicant must prove there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. D.

CORPORATIONS - winding up - whether directors retain residual power to cause company to appeal against winding up order - s.417A excludes such residual power - court's approval of such action by directors may be given nunc pro tunc - CORPORATIONS - winding up - termination of winding up on application of contributories - need for solvency and financial stability to be shown - order made on undertakings of related creditors not to call up debts while money owing to external creditors

Application for certiorari in respect of refusal of leave by Children's Court - Considerations in the granting of leave under s90(2) of the Act to revoke or vary a care order

LANDLORD & TENANT [43]- Covenant not to assign without consent- Effect of lease stating matters of concern on assignment- Whether application for consent must be full and detailed- Relevance of collateral motive of landlord- Shopping centre lease. PROCEDURE [744]- Declarations- Standing of proposed assignee of lease for declaration that consent to assignment unreasonably withheld- Whether declaration of utility.

EQUITY - fiduciary obligations - agreement between brothers for joint venture through corporate vehicle - construction and interpretation - claims of breach of fiduciary duty - CONTRACTS - Joint venture agreement - determination of terms - CORPORATIONS - winding up - oppression

Imputations - capacity - identification - particulars

PROCEDURE [80] - Supreme Court procedure - Jurisdiction and generally - Other matters - Power to order mediation - Whether power should be exercised over opposition of a party.

Imputations - capacity - identification - particulars - verification

BANKRUPTCY [209] - Fraudulent disposition of property - Conveyancing Act 1919 s 37A - Proof of intent to defraud - Proof that alienation not to a purchaser in good faith not having notice of the intent to defraud - EVIDENCE [142] - Presumptions and weight and sufficiency of evidence - Generally - Credibility and weight - Party's failure to give or call evidence - Failure to call particular witnesses.

Corporations Act - directors' liability for insolvent trading - relevance of directors' belief that no debt incurred - whether the relevant obligation was a 'debt' - Trusts - whether beneficiaries of unit trust personally liable to indemnify the trustee - whether taking up of additional units in trust involved an obligation to indemnify for past debts.

Liability under Motor Accidents Act and Common Law - Quantum of Damages agreed upon by Parties

Jurisdiction of the Tribunal - erroneous decision as to jurisdiction.

Application of Supreme Court (Summary Jurisdiction) Act - whether offences capable of prosecution in the summary jurisdiction of the Supreme Court - indictable offences - summary offences - exercise of Federal jurisdiction by State courts.

Contract - plan of subdivision to be registered within 12 months - whether vendor took all reasonable steps - whether vendor entitled to rescind at end of 12 months - whether rescission unjust.

Equity. Fraudulent misrepresentation. Claim by the plaintiff who could not read or speak English that his son and solicitor had fraudulently misrepresented the terms of two transfers by which the plaintiff's property was transferred to the son. - Held no misrepresentations made and that the transfers were part of a deliberate scheme to defeat claims which were being made upon the plaintiff for provision by the plaintiff's new wife. - Proceedings dismissed.

EVIDENCE - Procedure -- Plaintiff ASIC -- Splitting case not permitted -- Relevant considerations -- Implications of fact that this a civil penalty prosecution.

Negligence - dangerous goods - fire caused by spontaneous combustion - whether occupier should have known - meaning of Dangerous Goods Regulation 1978 - causation - whether Ockham's razor applicable

Family Provision claim by a widow. Contributions by children of the first marriage to deceased's home. Widow left a life estate. Life estate replaced by a legacy to enable widow to purchase a home.

Family Provision - Claim by adult son - Applicant must place before the Court as fully and as frankly as possible details of his financial and material circumstances - Whether applicant has been left without adequate provision for his proper maintenance - Applicant must establish his own case on its own merits - Competing claim of widow

CRIMINAL LAW AND PROCEDURE - SENTENCE - IMPORTATION OF COMMERCIAL QUANTITY OF NARCOTICS (MDMA) - COURIER ACTING FOR FINANCIAL GAIN - OFFENDER BECOMING PREGNANT AFTER ARREST AND CHARGE - APPEARING FOR SENTENCE AT A TIME WHEN NEWBORN APPARENTLY BEING BREASTFED - INSUFFICIENCY OF EVIDENCE OF POTENTIAL CONTACT BETWEEN MOTHER AND CHILD IF MOTHER IN CUSTODY - THREE YEARS IMPRISONMENT WHOLLY SUSPENDED - CROWN APPEAL - MANIFEST INADEQUACY - APPROPRIATE COURSE TO REMAND AND RECEIVE EVIDENCE ENABLING ASSESSMENT THAT CIRCUMSTANCES OF CUSTODY WILL BE HUMANE IN RESPECT OF CONTACT BETWEEN MOTHER AND CHILD - EXCEPTIONAL CIRCUMSTANCES REQUIRED TO GIVE SUBSTANTIAL WEIGHT PROBABLE EFFECT OF SENTENCE ON FAMILY OR DEPENDANTS PURSUANT TO s16A(2)(p) CRIMES ACT 1914 - APPLICABLE LIMITATIONS ON AVAILABILITY OF PERIODIC DETENTION AND HOME DETENTION NOT REMOVED FOR FEDERAL OFFENCES BY s20AB(1A) CRIMES ACT 1914 - RELEVANCE OF INTERNATIONAL CONVENTIONS - OBSERVATIONS CONCERNING CONVENTION ON THE RIGHTS OF THE CHILD - INNOCENTI DECLARATION ON THE PROTECTION, PROMOTION AND SUPPORT OF BREASTFEEDING AND CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN - FINDINGS BY SENTENCING JUDGE - (PER SPIGELMAN CJ & GROVE J, EINFELD AJ CONTRA) DESIRABILITY OF RESENTENCE BY DIFFERENT JUDGE ON REMITTER TO TRIAL COURT

CRIMINAL LAW - appeal against severity of sentence - supply of methylamphetamine - possession of cannabis - earlier offence inappropriately taken into account during sentence - double jeopardy principle - error on the face of the record - Use of Judicial Commission Statistics for comparison with like offences - existing sentence excessive to a small degree only.

Appellant unfit for trial - special hearing - necessity for arraignment - whether evidence must be sworn - whether person charged may consent to tender of entire prosecution case - desirability of reading tendered statements - adequacy of reasons - appeal allowed - verdicts of acquittal entered

CRIMINAL LAW AND PROCEDURE - SEXUAL ASSAULTS - DELAY - PREJUDICE TO ACCUSED - REQUISITE ASSISTANCE TO JURY OF HANDICAP IN PREPARATION OF DEFENCE - DENIAL OF EVENTS OF EARLIER ALLEGED OFFENCES BUT CONSENT TO LATER EVENTS - CAPACITY TO VIEW CIRCUMSTANCES DISCRIMINATEDLY WITH CONSEQUENT AFFECT TO APPEAL OUTCOME - ACCUSED UNREPRESENTED AT TRIAL - ILLNESS OF ACCUSED - WHETHER TRIAL UNFAIR - WHETHER INSTRUCTIONS TO JURY ADEQUATE - PARTICULAR INSTRUCTIONS ON COMPLAINT CORROBORATION CHARACTER AND FAILURE OF ACCUSED TO TESTIFY

Criminal Law - application for leave to appeal against sentence - no question of principle