Cases and authorities

PRACTICE & PROCEDURE - Application for summary judgment - no right to trial by jury

CRIME - deemed possession of heroin - heroin found in locked car - appellant had driven car to where it was found and had keys - heroin was in his custody or control - but appellant's daughter had use of other keys to car and had chattels in car - daughter was a drug user - appellant's knowledge that heroin in car not established by his driving it and having keys - no other evidence capable of establishing knowledge beyond reasonable doubt - conviction quashed.

CRIME - sexual offences - complaint 20 years after the events the subject of the charges - trial 3 years thereafter - no Longman direction - no request for direction - whether direction required - whether appeal should be upheld although no request for direction - failure of Crown and defence counsel to fulfil duty to Court. D.

CRIMINAL LAW - appeals - Crown appeal against sentence - whether sentence manifestly lenient - common assault - assault of police officer occasioning actual bodily harm - kidnap - whether error of law in imposing a suspended sentence when respondent already subject to another sentence of imprisonment which had not been suspended - whether criminality involved could be appropriately dealt with by way of suspended sentence - whether objective seriousness of offence required accumulated sentence - subjective circumstances inappropriately outweighed objective criminality of the offence - double jeopardy and discretion - appeal allowed - necessary to re-sentence respondent and substitute further sentence of imprisonment.

TORTS - NEGLIGENCE - PROFESSIONAL NEGLIGENCE - failure to advise about limitation period - whether loss suffered - whether would have failed in original action - EVIDENCE - credibility - medical evidence - whether findings open - TORTS - NEGLIGENCE - causation - whether a presumptive inference - D

Motor vehicle accident - whether appellant or first respondent was driver - whether fraudulent claim

Negligence - whether skiing instructor failed to allow a sufficient runout area when teaching beginners to snowplough - whether skiing instructor had duty of care to those he was instructing - whether skiing instructor's misjudgment amounted to a mere error of judgment or negligence - significance of factor that skiing is a hazardous sport discussed.

Application to amend Defence - application for compulsory mediation

Practice and procedure - Just, quick and cheap overriding purpose rule - Case management procedures - Conduct of litigation not merely a matter for the parties but also one for the court - Public interest in the proper allocation of scarce resources as between courts - Extended litigation leading to one of three Commercial List Judges being unavailable to hear other cases for several years - Multiple experts - Procedure for Court appointed examiner to take cross-examination evidence from selected experts

Sentence - murder - home invasion - youthful offender - Victim Impact Statements - relevance

Negligence - duty of care - liability - where plaintiff injured when engaged in an illegal act - scope of duty of care owed by rail authority to passengers - whether rail authority owed a duty of care to a plaintiff who sustained injuries when he manoeuvred himself out of a train window to write graffiti on the exterior of the train - graffiti - volenti non fit injuria - contributory negligence

CORPORATIONS [188] - Receivers, managers and controllers - Appointment - By Court - Retirement Villages Act 1999 - Appointment of administrator - Whether application may be ex parte or should be on notice - Whether undertaking as to damages required on application by Director General of Fair Trading.

Practice and procedure - application for leave to amend - exercise of discretion to permit amendments - overriding purpose rule - just, quick and cheap resolution of the real issues - whether amendments involve additional questions of fact - application for leave to file further statements - whether statements respond to "new issues" raised by the plaintiffs - whether leave to file statements will cause prejudice to the plaintiffs - application by defendants by motion to adjourn proceedings for 12 months for "tidying up exercise" - application not ultimately pursued during submissions - case management procedures - large-scale litigation - substantial verdict sought - use of technology court - imposition of time limits on cross-examination - requirement of detailed statement of topics to be covered during cross-examination - appointment of an examiner to take cross-examination

Torts - negligence - whether duty of care existed - whether breached - appeal allowed.

PERSONAL INJURY - workplace injury - scaffolding collapsed - STATUTORY DUTY - breach - Whether regulation applies to a head contractor - where head contractor has an obligation to maintain scaffolding, head contractor liable - scaffolding unsuitable and unsafe - whether a person is bound by the regulations will depend on whether a person is actually carrying out the building work - Construction Safety Act 1912 - Construction Safety Regulations 1950 cll 6, 73 - NEGLIGENCE - breach of duty of care - whether contractor had a duty to ensure scaffolding was safe where subcontractor skilled and experienced - DAMAGES - quantum for - where injury causes depressive reaction - award inadequate to reflect the appellants losses

Misleading and deceptive conduct - Silence - Causation - Damages

CONTRACT- breach - damages for breach - residential building work- Whether subcontract enforceable where subcontractor not licensed - Home Building Act 1989, ss 4, 5, 10(3), 12, 16 INTERPRETATION - statutory construction - ss 4,5,10(3), 12,16 Home Building Act 1989 - whether Parliament distinguished between employees and subcontractors - legislative policy - legislative intent ascertained by reference to language and structure of Act

PROPERTY LAW - commercial lease - non-payment of rent - guarantors - rehearing of arbitration - whether final order or judgment entered - s49(1) District Court Act - Anshun estoppel - D

DE FACTO RELATIONSHIPS - claim for adjustment of property interest

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

REAL PROPERTY [430] - Restrictive covenants - Building and other schemes - Torrens system - Sheds erected in numbers and of materials contrary to covenant.

Sentence - manslaughter - joint criminal enterprise - lesser role in the attack - special circumstances

PROCEDURE [105] - Supreme Court procedure - Practice under Supreme Court Rules - Directions - Party's unexplained absence from directions hearing shortly before long trial - Costs.

Land tax - s52(i) Constitution - Land Tax Management Act 1956 (NSW) and Land Tax Act 1956 (NSW) - constitutional validity - whether characterised as laws with respect to Commonwealth places - when land ceases to be a Commonwealth place - whether land subject to land tax - statutory construction - relevance of Stocks & Holdings.

Application to strike out pleading

CRIMINAL LAW - appeals - Crown appeal against sentence - whether sentence manifestly lenient - assault - where reasons for sentence inadequate - failure to make clear and explicit findings of fact - purpose of report of trial Judge to Court of Criminal Appeal - whether sentence commensurate with objective gravity of crime - whether insufficient weight given to element of general deterrence - whether sentence by way of periodic detention unduly lenient - error of law - whether court should interfere - principle of double jeopardy - commencement of rehabilitation - delay - no interference with sentence - appeal dismissed.

Sexual assaults - multiple counts - inconsistent verdicts

CORPORATIONS [271]- Dissolution- Reinstatement- Who may apply- When just to reinstate. WORDS & PHRASES- "Just"- "Person Aggrieved".

EQUITY [136]- Trusts- Trust property shares in private company- Trustee a director and employee- Monies paid to trustee- Whether accountable. LIMITATION OF ACTIONS [38]- Trustees- Allegation that trustee overpaid himself income- Payment more than 6 years before suit- Barred.

BANKRUPTCY [120]- Personal rights- Whether bankrupt has standing to apply to discharge injunction or mareva order. EQUITY [340]- Mareva order- Defendant bankrupt- Whether mareva should be dissolved.

Appeal - trial judge's directions to jury - summing up - sexual assault - whether defence case fairly put - directions regarding complaint - whether Longman direction required - whether directions as to motive in error - whether evidence in one count used as evidence of another.

Sentencing Appeal - whether sentencing judge failed to approach the sentencing task in manner required by s 44 of the Crimes (Sentencing Procedure) Act 1999 -whether non-parole period should be reduced.

Negligence - employer - employee - breach of duty in failure to warn and instruct re safe lifting practice and/or unsafe system of work - foreseeably in relation to contributory negligence - no question of principle - ND

PRACTICE AND PROCEDURE - jurisdiction of Administrative Decisions Tribunal - whether Tribunal had jurisdiction over a complaint against a barrister filed in 1993 - interpretation of clauses 30(2) and 31(1) of the Legal Profession Regulation 1994.

ADMINISTRATIVE LAW [52]- Procedural fairness- Inquiry made by advisory committee- Applicant not informed of matters concerning committee- Committee furnishing decision maker report without reasons- Whether valid process. HEALTH LAW [67]- Appointment of visiting medical officer- How effected- Whether natural justice to be given to applicant.

CONTRACT - offer and acceptance - vendor's agent wrote to two prospective purchasers informing them that the vendor had instructed its solicitors to exchange with the best offer delivered to them by 4pm on that date - whether the one purchaser who made an offer by 4pm had binding contract - CONVEYANCING - vendor and purchaser - contract for the sale of land - common assumption and intention that there shall be no binding agreement until contracts exchanged - CONVEYANCING - vendor and purchaser - contract for sale of land - vendor's agent wrote to two prospective purchasers informing them that the vendor had instructed them to exchange with best offer delivered to them by 4pm on that date - letter headed "subject to contract" - whether this prevented binding agreement from arising with the one purchaser who had submitted in time

Claim upon the Solicitor's Fidelity Fund - failure to account - administrative law challenge to the finding by the Law Society Council that the solicitor's acts or omissions were not dishonest

Sentencing appeal - importation of commercial quantity of cocaine - whether applicant sentenced for participating at an incorrectly high level in the organisation - whether non-parole period excessive - whether a worst case.

CRIMINAL LAW - appeals - appeal against sentence - importation of trafficable quantity of ecstasy - whether sentence manifestly excessive - whether failure to take into account utilitarian value of plea, assistance to authorities and contrition - whether starting point of sentence too high - consideration of objective and subjective circumstances - no error of law - appeal dismissed.

CRIMINAL LAW - appeals - appeal against sentence - importation of trafficable quantity of cocaine - low level courier - sentence at top end of the range - whether discount for plea inadequate - whether error of law in exercise of sentencing discretion - discounting of sentences for pleas of guilty authoritatively stated in guideline judgments - need to distinguish between application of guideline judgment and enunciation of what are said to be further principles of law derived from the guideline judgment itself by two judge benches.

TORT - assault and battery - false imprisonment - wrongful arrest - detention of excluded person in casino - whether detention authorised by statute.

Motor vehicle accident - Assessment of damages - No error

Civil Practice and Procedure - Limitation period - Judicial discretion to allow claim out of time - Prejudice to defendant - Claim out of time under Workers Compensation Act - Appeal against decision denying leave to commence proceedings out of time - Whether defendant would suffer prejudice - Reference to modern role for ambush and adversarial tactics in civil proceedings - Incorporation of components of reasons and commentary from Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 - Workers Compensation Act 1987 (NSW), s 151D(2). - Civil Practice and Procedure - Discretion of Court of Appeal to admit new evidence - Appeal against decision denying leave to commence proceedings out of time - Evidence relating to causation of personal injury - Supreme Court Act 1970 (NSW), s 75A(7)-(9). - ND

Civil Practice and Procedure - Limitation period - Judicial discretion to allow claim out of time - Prejudice to defendant - Claim out of time under Motor Accidents Act - Appeal against decision denying leave to commence proceedings out of time - Whether defendant would suffer prejudice - Discussion and commentary on modern role for ambush and adversarial tactics in civil proceedings - Motor Accidents Act 1988 (NSW), s 52(4). - Civil Practice and Procedure - Discretion of Court of Appeal to admit new evidence - Appeal against decision denying leave to commence proceedings out of time - Evidence relating to causation of personal injury - Supreme Court Act 1970 (NSW), s 75A(7)-(9). - - D

Workers Compensation - Personal Injury - Damages - Severity of illness and extent of damage caused - Whether plaintiff's claim was adequately considered by trial judge - Effect of plaintiff's credibility and plaintiff's evidence on factual findings re ongoing illness - Effect of medical opinion evidence and other evidence on factual findings re ongoing illness - Workers Compensation Act 1987 (NSW) - Court of Appeal - Orders - New trial - Order for new trial sought - Whether plaintiff's claim was adequately considered by trial judge - Workers Compensation claim by employee against employer - Effect of plaintiff's credibility and plaintiff's evidence on factual findings re ongoing illness - Whether "substantial wrong or miscarriage" - Supreme Court Rules 1970 (NSW) Pt 51 R 23 - D

Sentence for convictions of murder and manslaughter