Cases and authorities

Licencing Law - Closure order for short term - Jurisdictional requirements - Satisfaction of authorised justice, not applicant, required - Matters to be proved - Onus of proof - Standard of proof - Difference between satisfaction, belief and suspicion - Effect of accumulation of events - Necessary - Possession, use and sale of drugs on licensed premises - In charge of licensed premises applies to servant as well as person

PROCEDURE — Practice Note No. 97 dated 9 March 1998 — Availability of Statement of Claim filed prior to any Defence being filed when requested by newspaper — Relevance that Statement of Claim already made available by the party filing the Statement of Claim — Interests of justice not prejudiced and openness of court’s processes vindicated by release in those circumstances and where readers will appreciate likelihood of Defences being filed and that allegations may or may not be ultimately substantiated.

EVIDENCE - Summons for declaration and orders - forensic samples taken from suspect - suspicion of crime of murder - whether forensic procedure undertaken illegally - whether court should now make order restraining testing of samples - whether court should now order destruction of samples - exercise of discretion - Crimes (Forensic Procedures) Act 2000 considered.

Summary judgment

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

Corporations - Statutory Demand - Application to set aside - Whether there is a debt - Status of Defendant to serve demand - Whether Defendant is a creditor - Whether demand is defective - Authority of partner of Defendant to sign demand - Matter of evidence - Affidavit accompanying demand - Whether affidavit complies with the rules - Requirement that affidavit verifies that the debt is due and payable - Debt asserted to arise upon a dishonoured cheque - Whether there was valuable consideration for the cheque - Antecedent debt - Relationship between receipt of cheque and antecedent debt - Bearer cheque - Status of Defendant as bearer of cheque - Status of Defendant as holder of cheque - Whether there is a genuine dispute as to the existence of the debt - Whether demand should be set aside for "some other reason".

DEFAMATION - Defences - JUSTIFICATION - Defamation Act 1974, s 15 - truth based on statistical information - defendant claimed statistics showed referee was biased - held, statistical information inadequate to prove the truth of the imputations - COMMENT - Defamation Act 1974, s 32 - whether imputations were opinion or statements of fact - held, imputations were opinion - whether comment was based on proper material for comment - s 30 - some factual statements not substantially true - whether comment represented an opinion which might reasonably be based on material which was substantially true - s 30(3)(b) - objective reasonableness - held, material not reasonably capable of supporting opinion - QUALIFIED PRIVILEGE - Defamation Act 1974, s 22(1)(c) - whether defendant’s conduct reasonable in the circumstances - defendant’s conclusions did not follow logically, fairly or reasonably from information provided - held, defendant’s conduct not reasonable - UNLIKELIHOOD OF HARM - Defamation Act 1974, s 13 - whether denial of defamatory statement by third party neutralised sting - defence not made out - DAMAGES - Defamation Act 1974, ss 46, 46A - relevant considerations

Statutory Interpretation - restraining order under Proceeds of Crime Act 1987 - application for extension of waiting period - where application made within 6 month waiting period but not heard within that time - whether extension can still be granted - power to extend waiting period operates until application is determined - appeal dismissed.

CONTRACT - implied terms - that power be exercised in good faith and not unreasonably - contract terminated pursuant to right under contract but for reasons in contemplation when contract entered into - whether breach of good faith term - CONTRACT - estoppel - estopped by convention - requires state of affairs assumed by both parties

Corporations Law. - Application to set aside statutory demand. - Demand set aside. - Liquor Law. Section 154A of Liquor Act 1992. Circumstances in which liability arises considered.

CRIMINAL LAW - sexual offence - appeal against conviction - whether one verdict of guilty unreasonable in light of five verdicts of not guilty - where evidence corroborative of complainant on count on which convicted but no corroboration on other counts - CRIMINAL LAW - sexual offence - appeal against conviction - directions to jury - whether warning given by trial judge regarding delay in complaint was adequate - whether should have been a warning of the danger of convicting on the evidence of the complainant alone - where jury did not convict in absence of corroboration - whether direction regarding possible unreliability of witnesses adequate - where evidence given of events occurring when witness was a young child - s165 Evidence Act 1995 - CRIMINAL LAW - sexual offence - appeal against conviction - fresh evidence - whether new evidence admissible - where new evidence went only to credit of complainant - s106(d) Evidence Act 1995 - CRIMINAL LAW - sexual offence - application for leave to appeal against sentence - whether appropriate to sentence on standards at time of commission of offence or time of conviction - where long delay between the commission of the offence and conviction.

Criminal Law - application for leave to appeal against decision declining to redetermine life sentence - no question of principle

Practice & Procedure - summary judgment - whether given in absence of defendant within meaning of Pt 40 r 9(2)(b).

Application for indemnity costs on basis of conduct claimed to be unreasonable - Failure to follow express findings in a judgment referring cost determinations to the defendant for re-determination.

Administrative Law - Prerogative proceedings - Summons in the nature of certiorari quashing orders of District Court - Claim of error on the face of the record - Discretionary factors - Where seven month time delay in commencing proceedings and seeking remedy - Where claimant familiar with statute in relation to which claim made - Where amendments to relevant statute had occurred since events in issue - Where few factual findings contained within the record - Summons dismissed - Victims’ Compensation - Summons in the nature of certiorari quashing orders of District Court allowing appeal from decision of Chairperson of Victims Compensation Tribunal - Summons dismissed for discretionary reasons - ND

LIMITATION OF ACTIONS - Motor vehicle accident - Leave to commence proceedings out of time - Application for - Repeated applications for - Four applications dismissed - Fifth application based on same evidence as third and fourth application - Abuse of processs D

LAND AND ENVIRONMENT COURT - development consent - enforcement of condition for granting of easement and construction of access - stay of orders pending appeal - no question of principle

NEGLIGENCE - CONTRIBUTION BETWEEN TORTFEASORS - APPELLANT MOTORIST LIABLE TO PAY DAMAGES TO RUN DOWN PEDESTRIAN - INTOXICATION OF PEDESTRIAN - CLAIM BY APPELLANT FOR INDEMNITY OR CONTRIBUTION FROM RESPONDENT HOTEL LICENSEE WHO SERVED PEDESTRIAN WITH LIQUOR - SUFFICIENCY OF EVIDENCE TO ESTABLISH BREACH OF DUTY OF CARE BY RESPONDENT TOWARDS PEDESTRIAN - SUFFICIENCY OF EVIDENCE OF CAUSATION - OBSERVATIONS ON POTENTIAL LIABILITY OF INNKEEPERS D

CORPORATIONS - Commission's power to prosecute - PRACTICE & PROCEDURE - correction of previously published reasons for judgment

Proceedings after conviction - sentenced for manslaughter - discount for assistance

Tort - negligence - where respondent failed to provide transport to and from school for physically disadvantaged child - where child hit by car on way home from school - whether duty existed - whether breached - appeal dismissed.

Torts- Negligence- Plaintiff slipped on floor at junction between carpet and timber surface- Whether negligence- Held No. (ND)

Murder - Plea of guilty on the ground of mental illness - Judge alone trial - Psychiatric evidence - Mental Health Review Tribunal

Manslaughter - Stabbing - Delusional disorder - Special circumstances

CONTRACTS [6]- Uncertain promises- Lease- Badly drawn document- Rental uncertain in document- Tenant in possession for two years- Parties agreed on rent- Contract enforceable. EQUITY [405]- Specific performance- Uncertainty- Ascertainment of rent for renewed lease- How far may court supply deficiency- Ancient doctrine of part performance. LANDLORD & TENANT [39]- Covenant for renewal- Uncertainty as to rent- Whether enforceable.

CONVEYANCING [76] - Relationship of vendor and purchaser - Breach of contract - Deposit - Recovery of deposit - Statutory power to order - Whether power extends to a deposit paid by a person other than the purchaser - GUARANTEE AND INDEMNITY [37] - Indemnities - Construction of contract - Indemnity against losses, damages etc which may become due and payable by purchaser to vendor under contracts for sale of land - Whether indemnifiers liable on termination of contracts for unpaid balance of deposits.

[STATUTORY CONSTRUCTION] - Whether a property promoted as a "Ranch" with a motel and tourist facilities offering accommodation, horse riding and a function centre operation is a "farming operation" and whether each, or any of, the defendants is a "farmer" for the purposes of the Farm Debt Mediation Act 1994 (NSW).

PROCEDURE [575]- Costs- One party's conduct producing suspicious document- On balance of probabilities document genuine- Conduct good reason to deprive party of costs.

Practice and procedure - application for stay pending application for special leave to High Court - threatened presentation of winding up petition (ND)

No question of principle

Victims Compensation Tribunal - Supreme Court Appeal - Mandamus - Denial of Natural Justice - Error - Setting aside determination

Criminal law - appeal against severity of sentence - s 319 Crimes Act - act with intent to pervert the course of justice - applicant pleaded guilty to charge that he entered into an agreement and made preparations to give false evidence on behalf of a defendant in Local Court proceedings - objective - criminality of the applicant - case where subjective matters significant - serious nature of offence

Partnership - Restraint of Trade - interpretation of the restraint clause discussed - whether restraint too wide - operation of Restraints of Trade Act 1976 discussed - whether resolution reducing entitlements of retiring partner was a penalty.

Administrative law - appeal on questions of law from a decision of the Home Building Division of the Fair Trading Tribunal - building dispute - redevelopment proposal - whether the Tribunal erred in holding it had jurisdiction to determine the claim - whether goods or services provided in the course of considering the feasibility of the redevelopment to be considered "residential building work" - whether plaintiff denied natural justice as a result of the Tribunal's failure to record the correct address.

PROCEDURE - miscellaneous procedural matters - whether proceedings by plaintiff against two defendants should be tried separately - common factual questions - just, quick and cheap resolution better served by refusing application for separate trial - ARBITRATION - submission and reference - agreement to submit dispute to arbitration only if expert determination first results in liability of more than $500,000 - whether "arbitration agreement" within Commercial Arbitration Act 1984 - whether claims that contract void for mistake or should be declared void for misleading and deceptive pre-contract representations are "in any way related to" contract - whether such claims may properly be determined by expert - whether proceedings should be stayed pending expert determination and, if applicable, arbitration - only one defendant bound by dispute resolution clause - undesirable multiplicity of proceedings - stay refused

PROCEDURE [117] - Practice under Supreme Court Rules - Reference by Court to referee - Powers of Court in relation to report - Whether report ought be adopted when subject matter of proceedings resolved between delivery of report and hearing of motion for adoption - PROCEDURE [553] - Costs - Costs of whole action - Generally - Where action settled - Usual rule - Whether usual rule should be departed from - Whether plaintiff should be regarded as successful.

PROCEDURE [565] - Costs - General rule - Costs out of a fund - When costs allowed out of fund - Benefit of estate - Defendant defending proceedings for own benefit rather than benefit of estate.

CRIMINAL LAW - murder - accessory to murder - joint enterprise - EVIDENCE - criminal law - failure of accused to give evidence - whether Weissensteiner direction appropriate - EVIDENCE - criminal law - character evidence - cross-examination on material not in evidence - discretion to allow - s 192 Evidence Act 1995 - EVIDENCE - criminal law - balancing prejudice against probative value - ss 97, 101 Evidence Act 1995 - EVIDENCE - criminal law - credibility - whether Edwards or Zoneff direction necessary

PROCEDURE [487] - Judgments and orders - Amending, varying and setting aside - Correction under "slip" rule - Inadvertence of legal representatives - Inadvertence of court - What constitutes accidental slip or omission by Judge.

Workers Compensation - claim dismissed upon factual findings - no point of law raised in appeal

Contempt of Court - procedure - a party making a charge of contempt may not rely on Part 18 to prove its case, although the contemnor may, by responding, waive its rights against self-incrimination

PROPERTY — Caveat — Caveatable interest — No proper description of an available caveatable interest — Possibility of amending caveat.