Cases and authorities

District Court action for negligence - apportionment of liability between three defendants

Workers compensation - Section 151Z of Workers Compensation Act 1987 - Section 213 Police Service Act 1990 - Section 3 Employees Liability Act 1991 - whether (1) police constable driving a paddy wagon while on duty is exercising "a function ... with respect to the protection of persons from injury or death or property from damage" within the meaning of s213 of Police Service Act - Held: on those facts and no more, answer is no - whether (2) police constable is an employee within meaning of s 3(1) of Employees Liability Act 1991 - Held: answer is yes.

Damages - Assessment for future economic loss - Inadequte award - Judgment - Reasons for judgment - Inadequate reasons

Specific performance - partnership - winding up

DAMAGES - Tort - Fraud - Interest - Whether damages by way of compound interest appropriate - FRAUD - Deceit - Inducement to purchase property - Measure of damages - TRADE AND COMMERCE - Trade practices - Misleading and deceptive conduct - Measure of damages - No necessary analogy with contract, tort or equitable remedies

Leave to appeal - meaning of "at issue" in District Court Act 1973, s127(2)(c) - costs of unnecessary application for leave to appeal

Practice & Procedure. Application by a former disabled person for verdict moneys administered by the Public Trustee to be paid to the plaintiff. - Held that the plaintiff was now capable of managing his financial affairs and order made in his favour.

Equity - de facto relationship - domestic relationship - application for adjustment of interests with respect to property - just and equitable - pooling of resources - contributions to acquisition, conservation or improvement of property - direct financial contributions - non-financial contributions - domestic contributions - claim to constructive trust - claim of common intention - claim of unconscionability - intention to marry - promise to provide financial support and accommodation for life - alleged disposal of real property in reliance upon promises to detriment of plaintiff - equitable estoppel - proprietary estoppel

NEGLIGENCE - bicycle accident - claim against council because of potholes in road - whether loss of steering control because hit potholes or hit potholes because of loss of steering control - on facts, the former not established - claim fails. ND.

EQUITY - Undue influence - unconscionable dealing - intervention by equity even though consideration adequate and affected party gave consent - party affected by significant intellectual impairment, social dysfunction and alcoholism - other party's knowledge thereof - features of transaction and circumstances from which disability must have been realised - EQUITY - remedies - restitution - gain realised by perpetrator of equitable wrong must be restored to victim - certain counter-balancing benefits and detriments may lie where they fall - CONTRACTS - harsh and unconscionable contracts and statutory remedies - contract measured against each relevant statutory criterion and against combination

Abuse of process - whether proceedings may be stayed by reason of prejudice in other proceedings - whether Magistrate had power to award costs - costs - against prosecutor when ordering stay of proceedings

PROPERTY -- Damages claimed against Registrar General for wrongly amending Register to show reserved road -- Damages under s126 or s127 of Real Property Act -- Effect of claimed lost opportunity to sell as a golf course -- Causation issues -- Calculation of damages for loss of a chance - 10% discount -- Valuation issues -- Assessment of loss at time of deprivation.

CUSTOMS OFFENCES - smuggling, evading payment of duty and making a false statement - whether prosecution must prove the customs value of the imported goods. D

Criminal Law and Procedure - offence against property - Aggravated break enter and steal - elements of the offence - onus of proof.

CRIMINAL LAW - Crown appeal on sentence - aggravated break and enter - assault - conditional bond - whether sentence manifestly inadequate - co-offender - excellent prospects rehabilitation - whether extenuating circumstances - double jeopardy - ND

CORPORATIONS - standing of creditor to seek provisional liquidation - no standing where claim for unliquidated claim or where amount of liquidated claim tendered and paid into court - PROCEDURE - notice to produce - party called need not produce where object is to seek to discover whether case can be made

PROCEDURE [548] - Costs - Jurisdiction - General - Interest - May be ordered on costs in respect of period prior to order for costs even though costs not paid by litigant to solicitor - STATUTES [16], [30] - Acts of Parliament - Interpretation - Rules of construction - Particular rules - Expressum facit cessare tacitum - Expressio unius est exclusio alterius - Caution in application.

Family Provision. - Claim by a widow. Incfrease in legacy given under the will by the court. No matter of principle.

Court of Appeal - restitution of money paid under judgment set aside - unjust enrichment - rate of interest - Schedule J rates unless exceptional circumstances (D)

Workers Compensation - injury from potato-brushing machine - worker suffered laceration to ear and face and blow to the head - Commissioner found worker totally incapacitated for employment - award for weekly payments made - challenge to award - whether Commissioner failed in judicial obligation to give reasons - causation - schizophrenia - whether accident was contributing factor - whether causal link a possibility or probability - several possibilities established by evidence as triggers for schizophrenia, including worker's divorce or underlying condition- factual finding that no loss of consciousness followed the accident - medical reports favourable to worker were based on substantial loss of consciousness - evidence of treating doctor not analysed in judgment - no findings resolving conflicts between opinions - remitted to Compensation Court for rehearing. (ND)

REAL PROPERTY [315] - Partition of land - Statutory trust for sale - Effect of statutory trust - Power of Court to vary trust - Whether power may be exercised after sale - Whether statutory trust should be varied so that defendant's share of proceeds should bear whole of trustee company's costs of acting.

[CONTRACT] Whether exchange of correspondence created an immediately binding contract - Intention of the parties to be bound by the agreement. - [GUARANTEE] Whether guarantors remained bound to perform the obligations under the guarantee in relation to the new agreement between the parties.

Radio broadcasts - imputations - capacity - form - difference in substance - "corrupt" - "dishonestly" - "sincere"

JUDGMENTS AND ORDERS - COSTS - SUITORS FUND CERTIFICATE - ARBITRARY CAP ON AMOUNT RECOVERABLE - WHETHER ORDERS SHOULD BE AMENDED TO TAKE ACCOUNT OF LIMIT - OBSERVATIONS ON VARIOUS CHARGED ITEMS - SLIP RULE NOT AVAILABLE (PART 20 RULE 10)

CRIMINAL LAW - Deemed supply heroin - whether evidence sufficient to establish possession

CRIMINAL LAW - reference by Minister under s 474 Crimes Act 1900 - "whole case" rule not applicable - fresh evidence led by appellant - Crown may adduce evidence to contradict - handwriting - expert evidence - jury entitled to make own comparison - acquittal rather than new trial.

Criminal law: Sentence - deemed supply heroin - whether applicant properly characterised as a dealer.

Sentencing - Young offenders - Principles different from adults - Children (Criminal Proceedings) Act 1987 s 6

Admission of a prescribed statement made by deceased complainant on trial - exercise of discretion to exclude under s116(2) of Criminal Procedure Act 1986 - circumstances to be considered - relationsdhip of s116(2) and Evidence Act 1995 - discretion to exclude otherwise admissible evidence because it will lead to an unfair trial - verdict reasonably supported by the evidence.

PRACTICE AND PROCEDURE - order under Part 25 Rule 5 of Supreme Court Rules - whether a medical examination can be ordered - where evidence is sought for purpose of challenging the testamentary and legal capacity of the person examined - exercise of discretion set aside

LIMITATION OF ACTIONS - postponement of bar - appeal against grant of extension of time under s 60G Limitation Act 1969 - cause of action to recover damages for post traumatic stress disorder - whether applicant was aware, or ought to have been aware, of "nature [and] extent of injury" more than 3 years before making application to extend time - aware of symptoms but not aware of diagnosis as post traumatic stress disorder - s 60I(1)(a)(ii), s 60I(1)(b) - exercise of discretion under s 60G(2) - relevant considerations - what applicant knew or ought to have known about nature and extent of injury

LIMITATION OF ACTIONS - appeal against refusal to extend time under s 52(4) of the Motor Accidents Act 1988 -extension sought for action to recover damages for nervous shock allegedly caused by incident that occurred 11 years ago - prejudice to defendant - whether trial Judge erred in concluding there would be significant prejudice to defendant and there could not be a fair trial

Wills Probate and Administration - Testamentary instruments - Informal document intended to operate as a codicil to existing will - Time at which intention to be determined - Effect of subsequent change in intention D

Police pursuit plaintiff suffers injury - care, control, management and training of police - negligence in the continuation of pursuit - vicarious liability in negligence - was the injury caused by assault or fall - plaintiff's memory affected by injury - memory enhanced by hypnosis - admissibility of enhanced memory.

Family Provision. Application by an infant child born after the death of deceased. Competition with claim by the deceased's mother who the deceased had promised could live in his house in England. Priority accorded to child's claim and orders made.

Insurance - Contribution between insurers - Two policies - Whether there is identicality of risk - Injury to employee at work, whilst driving a bobcat - Injury was caused by the fault of the owner of the vehicle - Whether the injury was caused in the use or operation of the vehicle

Criminal law - sentencing - redetermination of life sentence - where applicant sentenced to penal servitude for life - offence of murder committed by applicant involved a high degree of criminality, however it did not involve criminality of the highest order - where appropriate to set a specified term for sentence

CORPORATIONS - meetings - quorum - some members leave during meeting - incorporated social and community organizations - Articles of Federation (first defendant) entitled Brotherhood (fifth defendant) to appoint officers of Federation - plaintiffs claimed to have been appointed - Articles of Brotherhood provided for quorum of Committee - where eleven Committee members quorum was eight, where 10 quorum 7 - ten of eleven attended, three withdrew during the meeting, the plaintiffs' claim depended on the validity of a resolution passed by remaining seven. Issue whether absent member had vacated office through absences. It was found that there had been no decision to treat him as having vacated office, and there was no evidence that he was liable to vacation as he had not been given notice of meetings as required by Articles. Factual issues about the points of time at which the three withdrew. It was found that the three withdrew before the challenged resolution was passed. Held - the resolution was ineffecive for lack of a quorum - the plaintiffs' claim to hold office in Federation under the resolution failed.

Duty of care to prevent injury resulting from the criminal behaviour of third party owed by occupier of land upon which it takes place - special circumstances - amendment of Statement of Claim and striking out of Cross-Claim.

CORPORATIONS - procedural irregularity - absence of resolution of shareholder company authorising representative to act at general meeting - all directors of shareholder company approving action of representative - curative order made

EVIDENCE - Expert evidence challenged as not satisfying s79 of Evidence Act 1995 - Expert director of companies and former leading accountant and auditor.

CORPORATIONS - termination of winding up - only one director remaining - constitution contemplates multiple directors - desirable to direct that second director be appointed

Criminal Law - Murder - Appeal - Conviction - Conduct of legal practitioners - Incompetent representation - Whether legal representatives at trial were incompetent - Whether counsel should have led further character evidence - Whether counsel should have applied for separate trials of co-accused - Whether incompetence caused prejudice to appellant creating miscarriage of justice - Criminal Law - Murder - Appeal - Application to adduce further evidence on appeal - Whether "fresh evidence" - Whether further evidence likely to lead to new trial - Whether further evidence raised possibility of miscarriage of justice - Criminal Law - Murder - Appeal - Judicial directions to jury - Whether misdirections - Whether direction necessary that jury members must all be satisfied on at least one basis of liability - Where one indictment count of murder but alternate bases of liability at trial including felony murder and mens rea murder - Whether manslaughter verdict ought to have been left open to jury - Directions re elements of felony murder - Directions re use of relationship evidence - Directions re lies of accused and consciousness of guilt - Directions re evidence from deceased witness - Criminal Law - Murder - Appeal - Evidence - Whether trial judge erred in permitting Crown to cross-examine a witness as unfavourable - Evidence Act 1995, s 38(1)(c) - Whether trial judge erred in failing to exclude evidence of lies as "admissions" - Crimes Act 1990 (NSW), s 424A. - Criminal Law - Murder - Appeal - Joint-trial - Whether trial judge ought to have ordered separate trial of co-accused - Criminal Law - Murder - Appeal - Sentence - Whether sentence excessive - Whether lack of parity between sentences imposed upon co-offenders - Whether proper consideration by sentencing judge of assistance given to police by appellant - D

Criminal law - sentence - Crown appeal - principles applicable - break enter and steal offences - application of guideline judgment in Ponfield - assault police - inadequate sentences - disproportionately short non-parole period.

NEGLIGENCE - Local council - control of beachside promenade, pools and steps - bather left rock pool and walked across rocks towards concrete steps - rocks not under control by Council but gave access to area under control - slipped and fell on marine growth on rock - scope of duty and whether breach of duty - findings of breach based on failure to erect warning sign were set aside - scope of duty did not extend to erecting warning sign.