Cases and authorities

Motor Accidents Act 1988, s73(4) - claim for interest - offer of settlement in fixed sum "plus costs" - value of costs to be disregarded in determining whether threshold passed (D)

Residential tenancy dispute - application under Residential Tribunal Act (1998), s 63 for a rehearing - whether Chairperson of the Tribunal bound to hear both parties before making a determination under s 63 - whether absence of a party is sufficient to demonstrate that evidence not reasonably available at the hearing is now available - appeal allowed.

s12 Crimes (Sentencing Procedure) Act 1999 - whether sentence contrary to law - whether execution of a sentence may be partially suspended - whether only power to impose term of effective imprisonment followed by non-custodial period is setting of non-parole period in accordance with s44.

SENTENCING - Appeal against sentence - whether the sentencing judge failed to give sufficient weight to the applicant's inability to obtain methadone - s 100 Crimes Act 1900 - letters demanding money with menaces - significant level of criminality

SENTENCING - pollution of waters - fine effectively of 30% of maximum penalty before discount for early plea - gravity of offence low - sentence manifestly excessive - much reduced fine substituted - observations on effect of legislature's increase of maximum penalty.

PERSONAL INJURY - damages - evidence given in other proceedings - judgment in the other proceedings tendered - objected to but admitted - judge relied on what was said in the judgment for evidence given in the other proceedings - not admissible for that purpose - conclusion based in part on this evidence - judge's findings vitiated - new trial as to damages.

TORT - Negligence - Employer's non-delegable duty of care - Whether task leading to injury was within scope of worker's employment - Apportionment of damages between joint tortfeasors - Effect of contractual indemnity on tortious liability. ND

Tort - conspiracy to injure by unlawful means - solicitor acting on client's instructions to terminate contract for breach or repudiation - alleged variation of contract - promissory estoppel - standing to sue for wrongs done primarily to company (ND)

EVIDENCE [23] - Admissibility and relevance - In general - Other cases - Test of admissibility under Evidence Act 1995 - Admissibility on one but not the other of two separate claims between different parties - Whether evidence should be admitted against some parties only - Whether use of evidence should be limited to use against some parties only.

Corporations Law. Application to set aside demand. Deman varied by reducing it from $70,000 to $50,000. No matter of principle.

Extension of time - ss 60G & I - alleged medical negligence - delay - fair trial

CORPORATIONS [23]- Security for costs- Plaintiff insolvent company in liquidation- Liquidator entered into funding arrangement- Arrangement not giving adequate protection to defendant- Order for security made. PROCEDURE [668]- Security for costs- Plaintiff company insolvent and in liquidation- Liquidator entered into funding arrangement- Arrangement not giving adequate protection to defendant- Order for security made.

Workplace injury - Unguarded machine - Contributory negligence - Projection of costs of expensive prosthesis

Sentence - robbery - drug addiction exacerbated by illness - significance - prison classification delayed - sentence reduced

Procedure - application to vacate hearing date (ND)

Application for leave to appeal - costs assessment - whether may include costs owing to former solicitor who is not presently seeking payment - leave refused on discretionary grounds without prejudice to claimant's right to renew application (ND)

WILLS - gift of trophies for children's sailing - whether charitable purpose - EQUITY - trusts - charitable trust - gift of trophies for children's sailing - whether charitable purpose

Costs - whether to award in favour of the Crown in a claim for prerogative relief.

CRIMINAL LAW - appeals - appeal against sentence - deemed supply of trafficable quantity of heroin - whether special circumstances justifying departure from the ratio between non-parole period and term of sentence - possible confusion between "exceptional circumstances" appropriate for non-custodial sentence and "special circumstances" appropriate for departure from ratio - special circumstances found.

Criminal law - sentence and procedure - appeal - whether manifestly excessive - parity - admission of fresh evidence.

Criminal law - Sentence - failure of trial judge to refer to protective custody when determining special circumstances - disparity resulting from difference in finding of special circumstances - whether justifiable sense of grievance arises

CRIMINAL LAW - appeals - appeal against sentence - dangerous driving causing grievous bodily harm in circumstances of aggravation - whether special circumstances justifying departure from the ratio between non-parole period and term of sentence - whether age, lack of antecedents and fact that sentence involves first occasion of custody are of themselves special circumstances - whether special help needed to overcome drug or alcohol problem

Criminal Law - Sentence - Use offensive weapon with intent to inflict gbh - importance of general deterrence in domestic violence offences

District Court - motor vehicle accident - pedestrian hit by car whilst running across road at crossing controlled by lights - whether respondent had time to avoid accident

TORTS - Nelgignece - Action for loss of services - Whether necessary to comply with claims requirements of Motor Accidents Act 1988. D.

Workers Compensation - Negligence - Employer and Employee - Duty of Care - Safe System of Work - Breach of Duty - Causation

CIVIL LAW - suicide - standard of proof - whether balance of probabilities or some greater degree of satisfaction - Briginshaw test - PROCEDURE - whether presumption against suicide still operates - proper inference on the evidence - ND

TORT - negligence - Order under s 124 of the Local Government Act 1993 to slash vegetation - liability of Council in absence of further complaint - whether danger was one the Council could have reasonably suspected to exist or known to arise - TORT - negligence - liability - duty of care owed to a trespasser - whether it was reasonably forseeable that a person would enter the land in question - D

TORTS - Negligence - Appeal on questions of evidence and fact - No question of principle. ND

Criminal law - sentence - appeal - whether manifestly excessive - guilty plea.

Practice & Procedure - forum non conveniens - application to stay or strike out - 'clearly inappropriate forum' test applied.

NSW Crime Commission - refusal by witness to be sworn or answer questions - convicted and sentenced under s 18 of the Act - successive summons directed at same investigation - whether oppressive - proceedings for declaration premarature

Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Law. - Consideration of sufficiency of affidavit in support and whether the whole demand should be set aside as an abuse of process. Demand varied.

Short marriage - quality of the relationship - need for clear evidence of financial position - appropriate accommodation for widow.

Family Provision - Application by carer - Intestacy, lifestyle of carer and deceased - Dependency can be mutual - Member of household - estranged relationship of deceased and sister.

Application for enquiry subsequent to conviction - whether doubt or question as to guilt - 'sense of unease or disquiet' as to convictions - appeal to CCA against convictions on grounds of fresh evidence and convictions unable to be supported by the evidence or unreasonable - matters of fact on appeal remitted by CCA to a single judge of court of trial - necessity to determine issues - whether enquiry subsequent to conviction should be deferred until after appeal determined - applicant elects to abandon any ground of appeal covered by enquiry - enquiry directed.

Strike out amended statement of claim

INJUNCTION - interlocutory injunction - plaintiff sought injunction restraining dealing with Fixed Deposit into which it claimed to trace part of proceeds of funds obtained by fraud - defendant explained on oath his dealings and circumstances in which payment was made to him - on the facts the plaintiff's prospects of success did not warrant interlocutory injunction - injunction obtained ex parte was dissolved.

Sentencing - solicit to murder - non parole period manifestly adequate - desirability of prisoner giving evidence - very limited weight to be given to untested, self serving statements made to experts - role of restoration of community harmony

Crown appeal - knowingly concerned in drug importations - need to identify precisely what offender did - whether guideline judgment applicable - general deterrence outweighs subjective matters - inadequate sentence - discussion of discretion to refuse appeal - resentencing - avoidance of double punishment - ratio between non-parole period and total sentence

Criminal Law - Appeal against conviction - Sexual Assault - Whether conviction unreasonable - Whether miscarriage of justice - Whether combination of matters created unreasonable conviction - Sufficiency of corroboration - Significance of inconsistencies between testimony of complainant and other evidence - Criminal Appeal Act 1912 (NSW), s 6(1) - Criminal Law and Procedure - Judicial directions to jury - Sexual Assault - Whether directions to jury on delay of complaint regarding sexual assault satisfactory - Whether miscarriage of justice - Effect of delay on credit - Whether relevant "delay" occurred - Where no objection taken to directions at trial - Whether leave should be granted to allow ground of appeal - Criminal Appeal Rules (NSW), r 4. - Evidence - Sexual Assault - Admissibility of evidence of prior sexual activity of complainant with person other than accused - Whether evidence should have been admitted - Whether probative value of evidence outweighed potential distress, humiliation and embarrassment - Whether exclusion of evidence rendered conviction unsafe and caused miscarriage of justice - Criminal Procedure Act 1986 (NSW), s 105 - D

Negligence - finding of trial judge on credibility of witnesses - negligence - whether plaintiff should have been allowed to reopen case - evidence.

Family Provision. Application by a daughter. Whole estaqte passes to a son. Orders for legacy made. No matter of principle.

CORPORATIONS - company in receivership pursuant to fixed and floating charge - property subject to floating charge - termination of employment during receivership - no right to redundancy payment under employment contract - employee making application after termination under s106 of Industrial Relations Act 1996 for determination contract unfair and for variation giving right to redundancy payment on termination or retrenchment - whether rights arising as result of order under s106 would give right to priority payment over rights of chargee under floating charge - INDUSTRIAL LAW - Industrial Relations Act 1996 - application by employee under s106 to vary terms of employment contract to give entitlement to redundancy payment - employer company in receivership pursuant to fixed and floating charge - s106 proceedings commenced after employment terminated by receiver - whether order under s106 would entitle applicant to payment of redundancy payment in priority to rights of secured creditor under floating charge

EASEMENTS and RIGHTS OF WAY - novel easement - Instrument under S.88B created Clos Farming Estate for vineyard of 80 small farming lots with scheme of easements and rights of way relating to water, electricity and other services. Fourteenth Restriction created Easement for Vineyard and conferred right on owner of Lot 86 owned by plaintiff to conduct viticulture and other cropping on farming lots - HELD that this was not a valid easement - consideration of requirements for a valid easement and significance of novelty in an easement - consideration of requirements for Profit a Prendre - HELD, the Fourteenth Restriction was not a right in the nature of a profit a prendre - observations on abuse of caveats - caveat removed, declaration that the Fourteenth Restriction was invalid.

On application for indemnity costs in accordance with SCR Pt 52A r 22 - and orders of Court - T9388