Cases and authorities

INSURANCE - subrogation - scope of waiver clause - construction

LIMITATION OF ACTIONS - Motor vehicle accidents - Leave to commence proceedings out of time - Discretion to grant leave - Scope of discretion - Factors to be considered D

Anshun principle - Res judicata - Issue estoppel - Privies - Right appeal Small Claims Court against interlocutory judgment - Unsuccessful action against one party for a joint debt - Can the otehr be sued?

Vexatious litigant

Extension of limitation period - s 151D WCA

Practice and Procedure - Additional Discovery

Practice and Procedure - Application to vacate judgment and reasons - Principles - Court entitled to proceed upon basis on which proceedings argued

Appeal against severity of sentence - Sexual assault - Indecent assault - Unlawful entry onto premises - Rehabilitation

Appeal against severity of sentence - Attempted armed robbery - Robbery with a dangerous weapon - Parity - Aggravating factors - Justifiable sense of grievance

Sentencing - multiple offences - application of Pearce v The Queen - young offender - sentence on one count manifestly excessive

Appeal - effect of hire purchase agreement allegedly misrepresented by broker to hirer and financier - issues of fact resolved at trial (ND)

CORPORATIONS - corporate character - new company adopts name simultaneously relinquished by existing company with same controllers - confusion as to which contracts - CONTRACTS - general contractual principles - formation of contract by conduct - no need for offer and acceptance - representations by one party cause insurer to contract with it on basis of prior insurance contract with another party - insurer willing to contract with all-comers - ESTOPPEL - general principles - insurer induced to meet claims by party later denying insurance contract - estoppel established - WORKERS COMPENSATION - insurance or levy - insurer's right to recover premium not prejudiced by employer's application for premium review

Denial of natural justice - Failure to apprise unrepresented litigant of right to object to evidence and seek adjournment

Strike out application - Indemnity costs

PROCEDURE [553] - Costs - Costs of whole action - Generally - Where action settled - Usual rule - Exception when it is plain one party would have succeeded had matter been fully tried.

AVIATION - carriage by air - damage to cargo between airport of destination and bonded warehouse - Warsaw Convention arts.18 and 22 - meaning of "in an aerodrome" - definition of airport site by Commonwealth law - whether warehouse outside airport boundary constructively within airport - construction of house air waybill - whether liability limitation clause applies to transportation after air carriage complete - common law liability for breach of contract, negligence and breach of bailment - whether undamaged portion of cargo so dependent for utility on portion damaged as to be reduced to salvage value only - liability for damages established - question of currency in which judgment should be entered to be argued

Summary judgment - abuse of process - bankruptcy

Family Provision by a defacto partner and a son. Estate passes to wife from whom deceased had been separated for some years. Small estate. Orders made for provision with specific orders in respect of costs to cater for variations in the estate.

CONTRACT- leave to appeal - formation of contract - terms of retainer – where terms of contract contained in contents of letters - whether mutual mistake – whether error of law – no error of law found

Two motions - interrogatories - amended defence

Criminal law - appeal - leave to cross-examine unfavourable witness - matters to be considered on grant of leave - extent of leave - ambit of cross-examination - prejudice - risk of shifting focus of trial - importance of adequate directions

Summary dismissal - whether claim shows plaintiff suffered loss - enforceability of shareholders - creditor's rights

CRIMINAL LAW - Sentence - provocation - manslaughter

Family Provision. Claim in respect of a small estate. No matter of principle.

Criminal law - appeal against sentence - whether manifestly excessive - supplying a prohibited drug - whether findings of fact open on the evidence - plea of guilty - utilitarian value - contrition.

Criminal law - sentencing - combined discount for early plea of guilty and for assistance to the authorities - whether sentence after such discount excessive - whether strength of Crown case relevant to utilitarian value of plea - whether strengthening of Crown case by assistance to the authorities relevant to the plea as evidence of contrition - ambit of "special circumstances" - dismissal of appeal against sentence on ground that the Court would not impose a lesser sentence if applicant were resentenced

Motor Vehicle Accident - negligent driver - compulsory third party insurance - whether husband or wife driving vehicle at time of accident - insurer joined as party to proceedings - s66A Motor Accidents Act 1988- factual challenges to trial judge’s finding - Jones v Dunkel - whether insurer’s failure to call witness should give rise to inference favourable to plaintiff (D)

Torts - Negligence - Liability - Foreseeability - Causation - Remoteness - Whether employer liable to deceased employee’s widow for damage caused to her by employee’s suicide - Employer breached duty of care to employee causing back injury - Employee applied for extension of limitation period in order to bring action for damages for back injury - Employee suffered stress from cross-examination in the hearing of application - Employee developed depression and committed suicide shortly after hearing - D

Loss of a chance - breach of contract - repudiation - factual matrix to assist construction - ready willing and able - recovery of money payable under contract but unpaid at date of termination - damages - reasonable contemplation of parties

CRIMINAL LAW - sexual offences - appeal against conviction - whether five verdicts of guilty returned by the jury unreasonable having regard to one verdict of not guilty - Jones v The Queen (1997) 191 CLR 439 - CRIMINAL LAW - sexual offences - appeal against conviction - directions of trial judge to jury - whether adequate direction relating to relevance of delay in complaint to credibility of complainant - where significant delay between commission of offences and complaint - whether adequate direction given relating to relevance of acquittal on any count to credibility of complainant on all counts - CRIMINAL LAW - sexual offences - appeal against conviction - whether question asked by jury about complainant’s motivation for complaint suggested impermissible process of reasoning - where significant delay between commission of offences and complaint - whether trial judge’s response to question was adequate.

Summons for judicial review - whether statement made to police by first opponent was not a matter which ought to be taken into account for the purposes of s 30(1)(d) of the Act

Family Law. Application for adjustment of parties' property interests pursuant to the Property (Relationships) Act. Order made for adjustment. No matter of principle.

EQUITY — Procedure — Misleading and deceptive conduct under Trade Practices Act — Injunctive relief denied where its grant depends on final relief based on disappointed expectations where such relief not available.

Summary judgment - third defendant only

Evidence Act - S.78 lay opinions - Principles

Family Provision Act - bankrupt - additional provision - benefit of creditors - infant beneficiary - lack of evidence as to needs

Practice and procedure - Application for security for costs - Documents sought by defendants for purposes of application for security for costs - Conditions to be imposed by Court by way of confidentiality undertakings in relation to use of documents sought - Whether form of undertaking should oblige defendants not to use confidential information other than for the purposes of the proceedings or rather for the purposes of the security for costs application - General rule as to use of documents disclosed in proceedings - Whether general rule should govern access in this case - Extremely sensitive documents containing information as to capacity of plaintiffs to continue with litigation - Bifurcation of defendants' team between those given access to confidential documents and those denied access based on past involvement and non-involvement with proceedings - Disadvantage to defendants of bifurcation by depriving them of knowledge gained by solicitors, agents and counsel during main proceedings - Exercise of discretion taking into account unusual nature of case - Possible, likely and probable prejudice to plaintiffs in being forced to abandon litigation outweighs possible prejudice to defendants in non-disclosure regime to be ordered.

Family Provision Act - freedom of testamentary intention - significant medical problems of the parties - quality of relationship - spendthrift - lack of evidence re assets - breach of duty by executor - unrealistic expectations

CRIMINAL LAW - armed robbery - conspiracy to commit - essential agreement - means required to implement the agreement - CRIMINAL LAW - conspiracy - whether impossible to commit the offence - EVIDENCE - admissability of statements - whether 'verballed' by police - exercise of discretion - EVIDENCE - admission of listening device tapes - whether terms of indictment excludes tapes - CRIMINAL LAW - sentence - whether conduct of police informer mitigates sentence

ENVIRONMENTAL LAW - sentencing - consistency - Marine Pollution Act 1987, s27(1) - CRIMINAL LAW - sentencing - discretion to dismiss a charge without proceeding to conviction - "potential for harm" - Crimes (Sentencing Proceedure) Act 1999, s10

CONTRACT - exclusion clauses - whether conduct in good faith - whether honest belief for the benefit of beneficiaries - CONTRACT - exclusion clauses - construction - whether obligations under the Agreement complied with - NEGLIGENCE - right of contribution - whether obligations 'of the same nature and the same extent' - common burden - NEGLIGENCE - duty of care - conflict of interest - EQUITY - trust - breach of trust - whether breach in good faith - whether honest belief conduct was in interests of beneficiaries - D

CORPORATIONS — Statutory Demand — Agent for disclosed principal — Ambiguity — Statutory Demand set aside — Indemnity costs awarded.

Negligence - financial advice - where adviser should in the circumstances have informed clients that there were risks to their capital - whether reasonable basis for investments recommended - where representation that investment was secure

Criminal law - Evidence - Accused not giving evidence - Right to silence - Distinction between comment and direction by trial judge - Circumstances where comment permissible - Contravention of Evidence Act 1995 (NSW), s 20(2).

Sexual assault - complaint to police 25 years later - appropriate directions - content of Longman direction

Torts - Negligence - Occupier's Liability - Whether occupier of motel had and/or breached any duty of care to family member staying in motel to prevent injury from a third party assailant - Where third party acted criminally by reaching through gap in motel room sliding door and hitting sleeping person on head with iron bar - D

NEGLIGENCE - damages - no question of principle

EVIDENCE - opinion evidence - "specialised knowledge" - whether chartered accountant has specialised knowledge of standards of conduct of company directors - EVIDENCE - opinion evidence - opinion on what is ultimately question of law - evidence not relevant