Cases and authorities

NEGLIGENCE - AMUSEMENT PARK RIDE - FACTS RELATING TO CONDUCT OF PARTICULAR FACILITY KNOWN AS WIEGAND TOBOGGAN - ABSENCE OF EVIDENCE OF BREACH OF DUTY - NO PARTICULAR POINT OF PRINCIPLE

Equity - contract for sale of land - relief against forfeiture - whether unconscionable conduct on part of vendor to terminate contract

TORT - negligence - mesothelioma - contribution - s 5 Law Reform (Miscellaneous Provisions) Act 1946 - claim by employer for contribution by manufacturer and supplier - no warning of danger given - claim against State of New South Wales - premises inspected by State - whether inspectors subject to control by State - whether State had knowledge of danger and failed to adequately protect workers - TORT - negligence - indemnification - exemption from liability - s 5(2) Law Reform (Miscellaneous Provisions) Act 1946 - whether exemption power available where both tortfeasors independently at fault - whether discretion miscarried - TORT - liability - contribution - apportionment - comparison of culpability - whether trial judge's discretion miscarried - whether apportionment unreasonable - whether employer entitled to a complete indemnity - independent tortfeasors - whether manufacturer had an overriding duty - inherently dangerous product - COSTS - party successful on one aspect of case - whether issue raised reasonably - whether proper exercise of discretion - COSTS - Calderbank letter - change of circumstance - cross-claim filed after Calderbank letter - PROCEDURE - leave to amend cross-claim refused - when discretion exercised unreasonably - 'relevant period' extended - no relevant cross examination - no pre-trial inquiry and preparation - whether qualified as a point of law under s 32 Dust Diseases Tribunal Act - PROCEDURE - previous settlement of related action - whether settlement amounted to binding admission - whether Tribunal bound by apportionment figures - whether settlement can affect third party proceedings - D

DUST DISEASES TRIBUNAL - CROSS CLAIM BETWEEN DEFENDANTS - CONSENT TO JUDGMENT IN FAVOUR OF INTENDED CROSS DEFENDANT AGAINST PLAINTIFF - OBJECTION BY CROSS CLAIMANT - PEREMPTORY ORDER - PROCEDURAL FAIRNESS

Workers Compensation - joint and several tortfeasors - Crown tortfeasor in different capacity - Judgment - review of reasons - Orders - slip rule - Statutory Construction - workers compensation

Criminal law - appeal - sentence - robbery - early plea - application of principles in Regina v. Henry - no error in exercise of discretion.

VENDOR and PURCHASER - agreement for sale of lot in unregistered subdivision plan - contract of sale of land exchanged under order for specific performance after exercise of option to purchase in lease - contract incorporated cl 28 of 2000 Standard Conditions with 6 months for completing subdivision - vendor sought leave to rescind after not completing works required by Development Consent within available time - consideration of the operation of cl 28 and whether vendor had done everything reasonable to have the plan of subdivision registered within 6 months - on the facts it was found that he had not and leave to rescind was refused. Consideration of case law relating to right to rescind where time for registration of plan not achieved through vendor's fault.

EQUITY - proprietary estoppel - a strip 6 feet wide separated the parties' houses - the plaintiff and the previous owners of the defendants' house agreed to build a fence down the mid-line and occupy half each - registered proprietor subdivided in 1920, deed in 1962 and executor took no action - defendants pursued searches, located executor and obtained transfer of strip without consideration - plaintiff claimed remedies based on alleged oral arrangement with defendants that each would enjoy possession of half so that eventually a claim would be made to title - claim expressed as breach of fiduciary duty in common venture, claim for constructive trust and proprietary estoppel - on the facts, the defendants did not give any commitment or make any arrangement as alleged.

Corporations Law. Application to set aside demand under s 459G of the Corporations Act. Demand reduced due to offsetting claim. No matter of principle.

PROPERTY -- Strata titles -- Exclusive use by-law foreshadowed which would deprive non-residential lot owners of previous right to use common property including swimming pool and leave it exclusively with residential lot owners -- Nature of that right as proprietary -- Validity of by-law under s52(1)(a) of Strata Schemes Management Act 1996 (NSW) -- Principles of statutory construction -- Same expression in adjacent provisions having different denotation but same connotation -- Relevance of principles concerning expropriation in construction of statute -- Challengeable as fraud on minority and as expropriation under Gambotto principles -- meaning of "expropriation" for that purpose -- Slander of title - Fair Trading Act 1987 (NSW) and meaning of conduct in trade or commerce -- Availability of relief -- prematurity no defence in circumstances.

TORT - negligence - liability - safety of spectators - organisation and control of event - placement of barriers - ND

COURTS AND JUDGES - Judgments - Duty to give reasons - Delay in giving judgment - Application during trial to raise limitation defence - Not decided until over 12 months after judgment reserved - Primary judge then calls for further submissions - Whether trial miscarried - LIMITATION OF ACTIONS - Tort - When damage suffered - Whether loss of secure employment was itself damage, when no loss of income occurred for four years. D.

CORPORATIONS [324] - Supervision, regulation and correction - Offences - Generally - Order prohibiting person from leaving Australia without the consent of the Court - Whether consent ought be granted.

CONVEYANCING [189]- Caveats- Caveat by third mortgagee- Dispute as to whether sufficient equity for caveator- Caveat impeding settlement of sale- Whether removal should be ordered. CORPORATIONS [230]- Winding up order- Pronounced at 11 am- Effective from first moment of day order made- Judicial act- Only to be pronouced by Supreme or Chapter III Court. TIME [4]- Fractions of a day- Judicial act deemed to occur at first moment of the day.

CORPORATIONS [156]- Takeover- Reverse takeover-Prohibitions- Resolution to lift prohibition- Entitlement of holding company to vote.

Clubs and Associations - expulsion of members - conduct prejudicial - whether implication that expulsion be reasonable - function of the court - whether resolution invalid because director over 72 years of age in breach of Corporations Law.

Dismiss proceedings for want of prosecution

PRACTICE - commencement of proceedings - parties - proceedings commenced on behalf of estate where no grant of administration - proceedings a nullity - Supreme Court Rules Pt8 r16 - WILLS PROBATE AND ADMINISTRATION - proceedings commenced before administration - whether Public Trustee authorised by s61 of Wills Probate & Administration Act 1898 to bring action but refused to do so - no such right in Public Trustee

PROCEDURE [91] - Supreme Court procedure - Practice under Supreme Court Rules - Service - Where personal service not required - Where defendants in default of appearance - Service of statement of claim effected by filing - Necessity of service of notice of motion dispensed with.

NEGLIGENCE - Employer's duty to employee. - Injury to employee caused by unlawful acts of strangers on premises not under the control of employer - Foreseeability of harm - Psychiatric injury, foreseeability.

Criminal law - appeal - sentence - armed robberies - principles in R. v. Henry - discount for plea - disclosure of other crimes - sentences not manifestly inadequate.

Criminal law - appeal - sentence - discount for plea - special circumstances - disproportion between head sentence and non-parold period - rehabilitation.

COURTS AND JUDGES - Judgments - Sufficiency of reasons - Claim dismissed without finding whether or not plaintiff's evidence accepted. ND.

FAMILY LAW - de facto relationships - distribution of property - financial contribution - non-financial contribution - FAMILY LAW - procedure - limitation period - when de facto relationship ended - whether imprisonment of a party for substantial period of time ended relationship - nature of separation - whether parties intended to end relationship - EVIDENCE - credibility - whether Master misused advantage - ND

CORPORATIONS - winding up - section 564 corporations law - advantage to those creditors who fund action to protect or preserve company property - whether appropriate for entire amount recovered to be distributed to funding creditors

CORPORATIONS - management and administration - validation of procedural deficiencies concerning giving notice of meeting, and quorum at meeting - CORPORATIONS LAW SECTION 447A, 1322 - prejudice or detriment perse is not injustice - orders can operate with effect from a date prior to the date of making the order

CORPORATIONS - winding up - section 564 corporations law - advantage to those creditors who fund action to protect or preserve company property - whether appropriate for entire amount recovered to be distributed to funding creditors

FAMILY LAW AND CHILD WELFARE [121] - Child welfare other than under Family Law Act 1975 - Custody - Practice - Separate representation of child - Proceedings for review by Supreme Court of Magistrate's interlocutory ruling - Whether separate representative should be appointed to carry out same functions as would legal representative appointed under s 99 of the Children and Young Persons (Care and Protection) Act 1998 in the Children's Court.

CORPORATIONS - management and administration - validation of procedural deficiencies concerning giving notice of meeting, and quorum at meeting - CORPORATIONS LAW SECTION 447A, 1322 - prejudice or detriment perse is not injustice - orders can operate with effect from a date prior to the date of making the order

Criminal Law - Sentence for conviction of murder

Criminal Law - Sentencing - Manslaughter - Provocation

Attempted escape - appeal against conviction - circumstantial evidence - whether appellant was prisoner who attempted to escape - Crown relied on evidence of three prison officers identifying appellant from security video - Mundarra Doolan Smith v The Queen [2001] HCA 50 - police witnesses in no better position than jurors to make relevant comparison - video tape missing since trial - Court unable to inform itself as to critical issue - new trial ordered. (ND)

Criminal Law - Whether beyond reasonable doubt should be explained - Directions where credibility of accused attacked.

PROCEDURE - competence of appeal - connection between judge of the Supreme Court and judge of appeal - Supreme Court Act 1970, ss38, 46, 101 - REMEDIES - costs - no entitlement to solicitor/client costs - REMEDIES - whether payments made as surety - whether there was an entitlement to subrogation.

COSTS

PROCEDURE [576] - Costs - Departing from the general rule - Conduct of parties - Demand, offer and consent - Refusal of offer of settlement by defendant - Court to apply sanction where party declines reasonable offer - Offer before proceedings commenced.

Sentence

Sentence

CONSTITUTIONAL LAW [16]- State legislation- Extra-territorial operation- Corporations Law- Effective to enable overseas directors to be pursued for trading whilst insolvent. CORPORATIONS LAW [258]- Misfeasance- Overseas directors bound by provisions making them personally liable for insolvent trading.

Plaintiff sues as Receiver of the Trust for Debenture Holders in Nambucca Investments and of assets of Nambucca secured under a Mortgage Debenture between Nambucca and the Trustee for Debenture Holders of that company.

Unconscionable bargain - Onus of proof - Husband and Wife - Confidential relation - Equitable relief - Whether wife a volunteer - Amadio principles - uneducated and illiterate wife accustomed to obey husband's directions in business matters - Contracts Review Act not applicable.

CRIMINAL LAW: Sentence - Crown Appeal - offences of violence upon infant - suspended sentence - exceptional subjective case.

CRIMINAL LAW - Crown appeal against sentence - break, enter and steal - offence committed while on parole - objective seriousness of offence - deterrance - drug addiction - rehabilitation program - CRIMINAL LAW - appeal - double jeopardy - appellate discretion - ND

Criminal Law - Sexual offences - Indecent assault - Attempted rape - Appeal against conviction - Delay in complaint - "Longman" warning - Whether "Longman" warning necessary - Whether delay caused forensic prejudice to accused - Correct form of warning - Discussion of history of warning and relevant case law - Criminal Law - Sexual offences - Indecent assault - Attempted rape - Appeal against conviction - Whether jury verdicts unreasonable, unsafe and unsatisfactory causing miscarriage of justice - Criminal Appeal Act 1912, s 6(1) - Criminal Practice and Procedure - Appeals - Remedies - Dismissal - New Trial - Whether appeal should be dismissed under proviso to s 6(1) of Criminal Appeal Act 1912 - Whether no substantial miscarriage of justice - Whether error so fundamental as to have caused trial to miscarry - Whether conviction inevitable despite error in trial judge's direction - Whether new trial should be ordered - consideration of discretionary factors - Criminal Appeal Act 1912, ss 6(1) and 8

Criminal Law - Particular offences - Attempt to obtain possession of commercial quantity of a drug - Elements of the offence - whether prosecution must prove knowledge of quantity of the drug.