Cases and authorities

Jurisdiction - Cross-vesting scheme - Re Wakim - whether proceedings in Supreme Court fatally flawed because dependent on orders made by Federal Court without jurisdiction - Re Macks - Ex parte Saint - State Jurisdiction Act - "ineffective judgment" - statute creates its own rights, liabilities, obligations, status - whether Supreme Court proceedings a contempt of High Court prohibition - Acton Engineering Pty Ltd v Campbell. (D)

Extension of time to commence proceedings - Sections 60G and 60I Limitation Act - Voyager/Melbourne collision

Transfer of proceedings from District Court - supply of barley for export to Vietnamese beer company

Sale of land - whether vendor has provided "evidence of approval from ... Council for use of the premises as a Boarding House" - whether contract validly rescinded

SCHOOLS - INJURY ON PLAYGROUND - NEGLIGENCE - TEMPORAL LOBE EPILEPSY - DISPUTES ON DIAGNOSIS - FACTUAL ISSUES

Amendment - New cause of action based on essentially same facts - Prejudice - Effect of dismissal of first action - Stay of second action on essentially similar facts until costs for first action paid - Estoppel - traditional and Anshun - Relative financial positions of parties

CONVEYANCING [189]- Caveat- Equitable charge- Preferable but not absolutely necessary for amount to be specified. MORTGAGES [16]- Equitable mortgage- Company paying shareholders' mortgage- Company may hold equitable charge- Caveat retained.

Separate determination of liability - Part 31 r 2 - alleged misfeasance in public office

Manslaughter - Killing by injection of morphine - Effects of alcohol on prisoner and deceased - Special circumstances - Health of prisoner - Circumstances of imprisonment

CRIMINAL LAW - sentencing - manslaughter - where offender entered a plea of guilty to manslaughter - where offender gave assistance to police

TORTS - NUISANCE - elements of tort - by tree roots encroaching on neighbouring land - adoption or continuance of nuisance - form of order - whether mandatory injunction requiring removal of tree appropriate

Corporations Law. - Application to set aside statutory demand. - Demand set aside. - No matter of principle.

Contract - breach of contract - claim for monies said to be outstanding under contract and damages for breach and repudiation of contract - whether section 92 and 94 of the Home Building Act 1989 (NSW) preclude the plaintiff from relief - construction of statutory definitions - whether contract was "to do residential building work" - whether contingency was required to be satisfied before contract became a contract "to do" building work - whether builder's obligation was conditional upon site being made available to it - conditions precedent - conditions subsequent - whether plaintiff obtained a contract of insurance

SENTENCING - appeal against sentence - whether lack of parity in sentence creating a "justifiable sense of grievance"

Crown appeal on inadequacy of sentence - Manslaughter - Provocation - Intention to kill - Re-sentencing

EVIDENCE - self-incrimination - objection taken - already convicted of offence - possible appeal - whether reasonable grounds for the objection.

Directions to jury - where inconsistency between statement by counsel and evidence of accused - appropriate directions - application of R v Birks (1990) 19 NSWLR 677 - direction on lies - application of Zoneff v The Queen (2000) 200 CLR 234.

Criminal Law - Murder - Appeal against conviction - Evidence - Unreliable evidence - Judicial directions to jury - Whether necessity for unreliable evidence warning - Where Crown's major witness testified under indemnity from prosecution - Where no such warning sought at trial - Whether leave should be granted to argue point - Whether witness was "criminally concerned in the events giving rise to the proceeding" - Criminal Appeal Rules, r 4 - Evidence Act 1995 (NSW) s 165 - Criminal Law - Murder - Appeal against conviction - Evidence - "Relationship evidence" - Admissibility - Evidence of contemporaneous representations by deceased demonstrating deceased's negative state of mind about relationship with appellant - Exception to hearsay rule - Whether unfairly prejudicial justifying exclusion - Evidence Act 1995 (NSW), ss 55(1), 72 and 135-137 - Criminal Law - Murder - Appeal against sentence - Whether non-parole period of less than three-quarters of head sentence warranted - Whether appellant's intellectual/physical difficulties amounted to "special circumstances" - Crimes (Sentencing Procedure) Act 1999, s 44(2) - D

Criminal law - sentencing - whether sentence imposed was manifestly excessive - whether principles in R v Henry & Ors applied - whether adequate weight given to plea of guilty - whether sentencing judge erred by not separately identifying the component of the sentence relating to different offences

TRIAL - relief granted including noting understanding by appellants - APPEAL - appeal failed - application after judgment to have undertaking varied - amendment to notice of appeal required - by analogy with reopening a judgment, should be refused - in any event no grounds for variation shown - giving of undertaking part of agreed interlocutory arrangement - no reason to strike down agreement. ND.

NEGLIGENCE - duty of care - breach of duty - unsealed roads - failure to maintain - local authority.ND

EVIDENCE - Privilege - Legal professional privilege or client legal privilege - Exceptions - Whether displaced in protective proceedings - Opinion evidence - Whether admissible if based on privileged communications - Protected reports - COURTS AND JUDGES - Appeal - Objection to evidence not taken below - Whether can be taken on appeal - MENTAL HEALTH - PROFESSIONS - Lawyers - Duties to client - Privilege - Duty of confidence - Conflict of interests - Lawyer believes client incapable of giving rational instructions - Whether lawyer can take protective proceedings against client - Whether lawyer can use or disclose confidential information in such proceedings. D.

Conversion - Unjust Enrichment - Cheques

SENTENCING - appeal against sentence - whether lack of parity in sentence creating a "justifiable sense of grievance"

CRIMINAL LAW - appeals - appeal against sentence - maliciously inflict grievous bodily harm - supply prohibited drug - whether sentence manifestly excessive - offence not trivial and sentence properly reflected totality of criminality involved - applicant developed condition of idiopathic epilepsy while in prison - whether illness present at time of sentencing, although quiescent - ill health will be a factor tending to mitigate punishment only where it appears that imprisonment will be a greater burden on the offender by reason of his state of health - imprisonment likely to exacerbate condition of applicant - special circumstances found to exist to justify intervention - reduction in non-parole period only.

Proceedings in negligence and nuisance - issue of liability only - question of causation.

Sentence

FAMILY LAW AND CHILD WELFARE [108] - Child welfare other than under Family Law Act 1975 (Cth) - Wards of Court - Supreme Court - Inherent jurisdiction to protect infants - Orders for detention and medical treatment of infant using reasonable force if necessary - Whether order for wardship necessary.

Leave to commence proceedings - deficiency in explanation for delay.

Private Nuisance - stormwater incursion from the street - elements of private nuisance - adopting a nuisance - meaning of "liberty to apply" - whether the court was functus officio by reason of earlier consent orders in the proceedings - whether unreasonable delay in exercising liberty to apply - whether there was a nuisance for which defendant was responsible - whether defence of statutory immunity - whether injunction should be granted - special damages - general damages - payment for use of land not the subject of an easement

Interrogatories - No question of principle

EQUITY - undue influence - option to purchase lands - whether obtained under duress - Contracts Review Act - whether option agreements unjust

STATUTES - ACTS OF PARLIAMENT - Interpretation - Section 14 Status of Children Act 1996 - FAMILY LAW AND CHILD WELFARE DE FACTO RELATIONSHIPS - Children - born through artificial fertilization procedures - sperm donor in de facto relationship with mother at time of donation but not at time of implantation of embryo - whether father of resulting child

Extension of time within which to commence proceedings - s 60C & E - add defendant

SALE OF GOODS - transfer of title by non-owners - rights of an unpaid seller against goods - Factors (Mercantile Agents) Act 1923 - agency - agency by estoppel

Criminal law - appeal - sentence - dangerous driving - application of R. v. Jurisic - culpable conduct not identified in trial judge's reasons - error - applicant re-sentenced - disqualification confirmed.

Criminal law - appeal - sentence - robbery - drug addiction - application of R. v. Henry - application of Judicial Commission statistics - no error in exercise of discretion.

Submission of questions of law pursuant to s 5A(2) of Criminal Appeal Act - questions concerned the interpretation of R v Tillott and effect upon it of Evidence Act 1995 (NSW) - Held, R v Tillott laid down advisory guidelines not mandatory rules of exclusion - not necessary to answer other questions.

CRIMINAL LAW - DNA evidence - Paternity Index - Relative Chance of Paternity - "Prosecutor's Fallacy" - CRIMINAL LAW - directions - use to be made of DNA evidence - CRIMINAL LAW - DNA evidence - errors committed at trial - conviction inevitable - application of the proviso - Criminal Appeal Act 1912, s6(1)

Criminal appeal - direction - applicant relying on fresh evidence to file affidavits.

CORPORATIONS - selective capital reduction - whether separate meeting of minority shareholders was held - whether if not held the capital reduction was nonetheless valid by force of s 256D of the Law or could and should be validated by an order under s 1322(2) or (4) - whether scheme of arrangement required - whether Gambotto principles applied - whether failure to make proper disclosure to shareholders - whether capital reduction fair and reasonable - all challenges to validity of capital reduction failed. D.

DEFAMATION - Common law defence of qualified privilege - Truth - Contextual imputations - Whether occasion of qualified privilege - Reciprocal duty and interest - Inaccurate report of court proceedings - Whether privilege defeated - Whether additional material protected. D.

District Court - Jurisdiction - Equitable Jurisdiction - Claim for Account - Claim for Prohibition - Exercise of Discretion

Defamation - Imputation of Dishonesty - Perverse Jury Verdict