Cases and authorities

PRACTICE AND PROCEDURE - rehearing of arbitrated dispute - where party fails to notify of intention to expand scope of rehearing - whether other party is entitled to adjournment in order to prepare its case - whether party should not be allowed adjournment because they treated arbitration hearing as a "dry run" - appropriate balance between principles of justice and case management in such a situation.

PROCEDURE - Application for stay of proceedings - Proceedings in Industrial Relations Commission already on foot - Commission's jurisdiction is statutory and specific - Commision cannot award remedies sought in the Court proceedings - Compulsory conciliation to take place in the Commission in near future - Desirable that parties use that conciliation as a genuine attempt to resolve all differences - Stay granted until further order

Limitation of actions - extension of period - cause of action in respect of personal injuries - general matters - what constitutes an "application" to extend the period - Limitation of actions - extension of period - cause of action in respect of personal injuries - knowledge of material facts - in general - what level of awareness is needed, in relation to facts about which there is a doubt

INJUNCTIONS - interlocutory injunctions - INDUSTRIAL LAW - picketing - interlocutory injunction. Plaintiff owned Paint Factory - indefinite stoppage of work and picketing - picketing included obstruction, harrassment by insults - consideration of lawful picketing, unlawful picketing by obstruction and besetting - significance of proceedings in I.R.C. - injunctions in Supreme Court in industrial disputes - inerlocutory injunction granted.

CRIMINAL PRACTICE & PROCEDURE - Application by accused for Permanent Stay - Loss of exhibits - Lengthy delay in prosecution

No question of principle

TORTS - negligence - duty of care - breach of duty - causation - contributory negligence - apportionment - discount for contingencies - TORTS - negligence - whether duty of care owed by approval authority - reasonable forseeability - whether pedestrian access as well as vehicular access required to be considered - s 333 Local Government Act 1919 - D

STATUTES - interpretation - Building and Construction Industry (Security of Payments) Act 1999 NSW - whether Act applies to sub-contracts when head contracts procede the Act - CORPORATIONS - statutory demands - demand signed by employed solicitor of firm acting for creditors - whether effective

file cross claim against previous employer

PRACTICE AND PROCEDURE - Limitation Act 1969 - ss60I, 60G - whether plaintiff made application for extension of limitation period within three years of becoming aware of his condition and its connection to the defendant's acts or omissions - whether just and reasonable to order extension of limitation period

Criminal Law - summary jurisdiction of the Supreme Court - no question of principle

Criminal law - evidence - recorded conversations - quality of recording such that what was said cannot reliably be determined - recordings inadmissible - consideration of concept of admissions - relevance - discretion to admit and reject.

PRACTICE and PROCEDURE - stay of proceedings - concurrent claims to declare void Management Agreement for home units in Supreme Court and to modify agreement (as agreement whereby person performs work in an industry) in Industrial Relations Commission - applicant in Commission applies to stay proceedings in Supreme Court - consideration of principles - stay of proceedings refused.

MORTGAGES [14]- Covenant by mortgagor to acquire land- Expedient to perfect security- Scope- Mortgagee appointed attorney to carry out covenant- Mortgagor becomes incapable.

criminal law - detaining for advantage - sexual assault - attempted sexual assault - armed robbery - indecent assault - admissibility of evidence - tendency and coincidence evidence - DNA evidence - separate trials - illegally or improperly obtained evidence - impropriety - picture, object, voice identification

Sentencing - appeal against severity (2)- obtain money by deception -receiving (2) - extent of loss to owners/insurers not established at trial - alleged failure of trial judge to consider principle of totality.

Sentencing - appeal against severity - break, enter and steal - whether subjective circumstances properly considered by trial judge - reduced non-parole period reflected applicant's desire to return to Lebanon - appeal dismissed.

CRIMINAL LAW - sentencing - Crown appeal - undue weight given to special circumstances - Crimes (Sentencing Procedure) Act 1999, s44(2)

Criminal law - Companies (NSW) Code ss 169, 570(1) - Corporations Law, ss 780, 232(6), - 101A(1) - 1064(1), 1311(1) - Securities Industry (NSW) Code, s 43 - Crimes Act 1901 (NSW), s 173 - Crimes Act 1914 (Cth), s 5 - Corporations (NSW) Act 1990, s 8, s 13(2), Pt 8, s 55 - Corporations Act (Cth) 1989 s 82 - fraudulent intent - dishonesty - sufficiency of directions - claim of right - "prescribed interest" and "participation interest" pursuant to Companies (NSW) Code and Corporations Law - adequacy of directions as to relevant facts - what facts necessary to be averred in indictment - consciousness of guilt - directions as to - onus of proof - "directing mind of a company" - identity between directing mind of company - whether consensual transaction in transferring company's property - whether fraudulent - authority of Director of Public Prosecutions (Cth) to prosecute charges laid under state legislation - jurisdiction of District Court of NSW to hear charges - knowingly concerned in offence (Crimes Act 1914 (Cth) (s5) - offences against the law of the Commonwealth - application for leave to appeal against sentence.

Tort - Negligence - Duty of care - whether employer failed to provide safe system of work - whether method of disposal of used needles was safe and had been explained - whether manual was defective - nurse injured by contaminated needle.

Workers Compensation - worker died shortly after receiving head injury - whether worker suffered brain damage - whether injury was permanent - whether worker could recover 100% as a most extreme case - whether employee's and dependant's rights amounted to double compensation - whether employee's claim for 100% compensation was inconsistent with the Human Tissue Act 1983 - whether error of law in award of 100% compensation.

CONTRACT - Loan - Whether to company or principal of the company - No appealable error by trial judge. ND

Torts - Negligence - Liability - Slip and Fall - Whether employer failed to provide a safe means of access between car park and offices - Whether stairs slippery - Whether expert evidence on slipperiness of stairs should have been accepted by trial judge - Discussion in obiter dicta about credibility of party-witness - Where employee injured whilst walking between roof-top car park and office - Where lack of previous slipping accidents on stairs - Evidence - Opinion - Expert evidence - Admissibility and use - Discussion of common law and statutory requirements - Need for expert witness to reveal factual and intellectual basis of opinion - Evidence Act 1995 (NSW), ss 76, 77, 78, 79 and 80 - D

MOTOR VEHICLES - "Defect in the vehicle" - whether Motor Accidents Act 1988 applicable - loading and offloading goods - whether strap attaching ramp to trailer was part of vehicle - whether defect in strap constituted defect in vehicle - appeal and cross appeal allowed. D

Sentencing - possession of offensive weapon - provocation as a mitigating factor - sentence 50% longer than that given for similar offences.

Criminal Law - error of reasoning in admitting identification evidence over objection based on s137 of Evidence Act 1995 - no question of principle

criminal law - detaining for advantage - sexual assault - aggravated sexual assault - attempted sexual assault - armed robbery - indecent assault - admissibility of evidence - tendency and coincidence evidence - DNA evidence - separate trials - illegally or improperly obtained evidence - impropriety - picture, object, voice identification

EQUITY [389]- Specific performance- Chattels- Whether unique- Whether Hall v Busst principles apply- How far part performance of contract relevant. VALUATION [5]- Plant in hotel- How to be valued on termination of lease.

COMPANY LAW - receiver appointed under Deed of Charge to some but not all companies in Group - companies in Group in voluntary administration, and subsequently liquidation - difficulty in classifying masses of documents as documents belonging to companies in receivership or to other group companies - receiver's claim to possession or inspection of all documents in possession of companies subject to charge - whether declaratory and other relief should be made reflecting receiver's claim

Appeal from Magistrate - search of defendant's vehicle by police officer - consent to search - whether knowledge of right to refuse consent is critical to validity of consent - admissions - whether consent to search is admission - whether any breach of legal requirements by police officer was "deliberate" or "reckless".

[PRACTICE & PROCEDURE] - Summary Judgment applications in the Construction List - Practice Notes - Administration of List - Application to refer Motion for Summary Judgment to call over - Whether referral is consistent with the just, quick and cheap resolution of the litigation.

Motor vehicle- Accident causing personal injury- Claim made out of time- Whether District Court Judge could be satisfied that there was no full and satisfactory explanation for the delay. Words & Phrases- "Reject". (D)

TRADE PRACTICES - Trade Practices Act 1974 (Cth), s.52 - misleading and deceptive conduct - pre-contractual consensus - subsequent specific representations omitting matters material to operation of consensus - whether such matters should have been gathered from other materials provided - reliance on incomplete version - resultant failure to negotiate better contractual position according with consensus - claim for damages made out

The case involves a number of separate disputes of fact, and the application of settled rules of law to those factual disputes.

LOCAL COURT - appeal from decision in civil claim - contract subject to Home Building Act - estoppel - recovery of deposit - whether magistrate considered relevant issues

Practice and procedure - Costs - Security for costs - General principles - Impecunious plaintiff - Bodies corporate - Litigation for benefit of third parties - Delay in pursuing claim for security for costs - Significance of prejudice - Final hearing to take extended period of years - Application for security as to - (1) defendants' future costs in respect of amendments to statement of claim allowed well after commencement of final hearing - (2) defendants' future costs in respect of claims made by Market Holdings (in liquidation) - (3) defendants' costs, past and future, in respect of MLC proceedings initiated following the commencement of the final hearing of the existing proceedings and ordered to be heard together with the existing proceedings - Primary purpose of an award of costs is to indemnify the successful party - A secondary purpose concerns the public interest objective in the sense of instilling in parties commencing litigation a realisation of the potential financial expenses involved - Large-scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased and often unnecessary burden on the scarce resources of the publicly funded system of justice - Purpose of a security for costs order is a protective jurisdiction to ensure that the primary purposes for having costs orders themselves can be achieved - A defendant is protected against the risk that a cost order obtained at the end of the proceedings may turn out to be of no value by reason of the impecuniosity of the plaintiff - The jurisdiction assists both the compensation purpose as well as the public interest objective

EQUITY [125]- Trustees- Removal- One of three trustees bankrupt- Principles considered re removal of bankrupt trustees- Order made.

Damages for the loss of a chance - Discounting back to date of breach - Discretion to reduce costs - Award of interest - Taxation on verdict - whether allowance should be made - Re-opening the orders - the power to re-open - The Slip Rule

Sentencing - appeal against allegedly excessive sentence - maliciously wound with intent to do grievous bodily harm - sentence to be served in protective custody - whether sufficient allowance for plea of guilty

Torts - Defamation - Appeal against decision of jury - Damages - Defence re contextual imputations - Whether quantum of damages manifestly excessive - Whether jury's finding that contextual imputation was untrue was perverse and led to miscarriage of justice justifying re-trial - Defamation Act 1974 (NSW), s 16 - Supreme Court Rules 1970 (NSW), Pt 51 r 23(1) - Torts - Defamation - Appeal against decision and directions of trial judge - Whether statutory and common law defences of qualified privilege made out - Whether publishers' actions were "reasonable" - Whether trial judge should have directed jury to consider range of damages in personal injury verdicts - Whether trial judge should have ordered separate verdicts for the various imputations - Defamation Act 1974 (NSW), ss 9(5), 22(1)(c), 46A(2), 48(b) - Evidence - Relevance - Representations - Form - Discretion - Evidence Act 1995 ss 55, 57, 65 and 135 - D

Company Law - members' requisition for general meeting to put resolution to amend Constitution - amendment to require board election campaign funding details to be fully disclosed - whether meeting convened for proper purpose - NRMA v Parker (1986) 6 NSWLR 517 distinguished -whether amendment would constitute oppressive conduct - whether proposed article so vague as to be meaningless - whether amendment retrospective in effect (D)

Evidence - admissibility - opponent charged with summary offences - brief served on opponent contained evidence obtained pursuant to warrants under Listening Devices Act 1984 (NSW) and the Telecommunications (Interception) Act 1979 (Cth) - brief did not include warrants or evidentiary certificates - s66B Justices Act 1902 - whether warrants should have been included in brief - "documents regarding the evidence that the prosecution intends to adduce in order to prove the commission" - DPP v Sounthorn [1999] NSWSC 786. (D)