Cases and authorities

Criminal Law - Sentence - guilty plea - no matter of principle

Sentence - discount for plea of guilty - totality - application of Pearce v The Queen

APPEAL - COSTS - NO QUESTION OF PRINCIPLE

PROCEDURE - conduct of jury trial - empanelling of jury - inadequate number of persons in panel - whether an irregularity which leads to nullity of jury verdict - PROCEDURE - jury trial - whether jurors so ill as to be unable to continue and do duty as jurors - ND

Insurance - claims made and notified policy - failure to disclose "circumstances which may give rise to a claim" - scope of s6(4) of Law Reform (Miscellaneous Provisions) Act 1946 (ND)

Criminal law - Sentence - discount for early plea - accumulation of sentences - totality

SUCCESSION [5] & [8] - Wills, probate and administration - The making of a will - Testamentary capacity - Soundness of mind, memory and understanding - Forms of unsoundness of mind - Alzheimer’s disease - Paranoid delusion - Onus of proof - In general.

Practice and Procedure - Lay statements of opinion - S.78 Evidence Act - Principles - If a witness's "perception of a matter or event" is relevant, evidence of that perception is admissible - and if evidence of that person's opinion is necessary to obtain an adequate account or understanding of his or her perception, then an opinion based on what that person saw, heard or otherwise perceived about the matter or event is admissible as exception to the opinion rule - There is a clear difference between on the one hand, experts called who were not in earlier years, in any way involved as contemporaneous witnesses and on the other hand, persons not qualified as S.79 experts, but who can give S.78 evidence of a contemporaneous nature as to their then perceptions. - S.135 discretions

Extension of limitation period - s 151D WCA

On interest claimed under s 94 of the Supreme Court Act 1970 - T9374 - entry of judgment

On costs relating to interlocutory rulings - T9388

REAL PROPERTY - Strata and related titles - Body corporate's duty to keep common property in good and serviceable repair - Whether wall entirely within lot is common property - Whether wall on boundary between lots is common property - Whether floor tiles entirely within lot are common property - PRACTICE AND PROCEDURE - Appeal by way of stated case - Question of law arising on stated case - Whether particular items are common property is question of law - Whether there was evidence of fact found - When determination affected by erroneous decision of law need not be remitted

Professional negligence - contract - tort - limitation period - instructions to advise and sue third party - assignment and reassignment of cause of action against third party - omission to commence action against third party or to advise of limitation period - breach of contract and tort.

PRACTICE & PROCEDURE - suppression orders regarding names and addresses of witnesses

NEGLIGENCE - personal injury - duty of care - whether design of urinal satisfactory - damages - post head injury syndrome

Family Provision. - Application by daughter in resepct of small estate left to grandchildren. - Order for legacy. - No matter of principle.

Action brought by plaintiff the widower of hte deceased - relationship began in 1960's - lived as de facto until 1980's when they married - harmonious marriage of 14 years - contributed his salary, and later pension and superannuation entitlements to the relationship although did not make a capital contribution to the purchase of the unit they lived in - surviving spouse should be provided with security of accommodation.

Pervert the course of justice - Sentence - Proportionality - Periodic detention

Criminal Law - Sentence - determination of maximum penalty under s90A Crimes Act - meaning of "substantial injury" - question of parity with co-offenders

Criminal Practice and Procedure - Natural Justice and Procedural Fairness - Whether natural justice denied - Whether case should be reopened and further submissions considered - Where appellant’s solicitors but not counsel were given advance notice of the time of judgment delivery - Where appellant not specifically informed that court would consider application of proviso under Criminal Appeal Act 1912 (NSW), s 6. - D

Criminal Law - Practice and Procedure - application of De Simoni principle - duty of prosecutor in relation to facts and material placed before the sentencing court.

Application for leave to appeal - Supreme Court considering interlocutory order of Children's Court - Children (Care and Protection) Act 1987 - no error of discretion (ND)

Torts - Negligence - Liability - Whether breach of duty of care - Whether occupier of public building breached duty of care to person who fell down external steps - Whether dimension of steps relevant - Where no hand-rails, edge-delineation strips, nor warning signs present - ND

Motions to strike out statement of claim - strike out defences - summary judgment - security for costs

CORPORATIONS - Corporations Law - partners borrowing money from individuals at a fixed rate of interest and pooling this money to invest - whether this constituted a "managed investment scheme" - whether the partners carrying on a securities business - whether the partners carrying on an investment advice business - whether banning order under s206E should be made

Misleading and deceptive conduct - findings that a representation was made and relied on but that the representation was correct - trial judge's failure to understand the evidence - failure to comprehend strength of evidence that representation incorrect and misuse of evidence in consideration of representors' credibility - finding that representation correct set aside - new trial ordered. ND

CONFIDENTIAL INFORMATION - INJUNCTION - interlocutory injunction - plaintiff claimed interlocutory injunction against use of Customer Lists - defendants bought franchised business from franchisee, conducted the business from November 1999 to April 2001, used Customer Lists and negotiated with plaintiff for Franchise Agreement but did not reach agreement - held that any confidentiality of Customer Lists had been lost - interlocutory injunction refused.

Lawful arrest - whether necessary to intend to take suspect before a justice - effect of Part 10A, Crimes Act 1900, exercise of discretion to exclude evidence under s 138 Evidence Act 1995 - meaning of "reckless" - Identification - photograph identified long after observation - whether witness' evidence of prior identification by him is hearsay - applicability of ss 59, 62 of the Evidence Act 1995

Family Provision. Application under Testators Family Maintenance & Guardianship of Infants Act 1916 by children. Order for provision made. No matter of principle.

Criminal law - Committal proceedings - Appeal - Orders in the nature of certiorari and mandamus - Distinction between remedies - Disinclination of courts to intervene - Discretion - Evidence - Refusal by magistrate to allow cross-examination of witnesses

Family Provision. Application by daughters of first marriage. Estate passed to second wife. Not a large estate. In the circumstances no order should be made. Discussion of whether special circumstances existed under s28(5)(d) of the Act.

DEEDS [2]- Recitals- Effect. WORDS & PHRASES- "Deliver".

Discovery - experts retained to retrieve data deleted from hard drive

Cross-vesting - Criteria for cross-vesting - Uplifting from District Court to Supreme Court - Transfer to another Supreme Court for further transfer to County Court - Jurisdiction - Amendment of basis for uplifting from District Court - Small claim - Delay in application - Additional costs if transferred - Additional delay if transferred

Appeal decision of Fair Trading Tribunal

Practice & Procedure - application to transfer proceedings out of juridiction - "interests of justice" ground - overlapping issues with issues in Queensland Supreme Court proceedings - order for early determination of separate question in Queensland proceedings - avoidance of two tribunals exercising jurisdiction over related issues.

Appeal from Master - Strike out of Statement of Claim - Imbalance in representation - Leave to amend refused

Retirement village - Retirement Villages Act 1995 - lessor sues to recover share of outgoings - cross claim - referee determines most issues - judgment entered despite outstanding defences raising claims of misleading and deceptive conduct - intention that issue of misleading and deceptive conduct should be litigated in representative proceedings commenced by residents in Federal Court - lessees acquiesce in proposed procedure - lessees bound by conduct of counsel (ND)

Workers Compensation - "curative apparatus" - leave granted to argue correctness of Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318

CONSTRUCTION AND INTERPRETATION OF CONTRACTS - Essential Terms - Whether Time Stipulation an Essential Term - Surrounding Circumstances - Reference to Earlier Contracts Between Parties - IMPLIED TERMS - Implied Terms of Good Faith and Reasonableness - Implication of New Terms at Law - BREACH OF CONTRACT - Validity of Notices of Termination - Whether Breach Capable of Cure - MISTAKE - ACCESSORY LIABILITY - Liability for 3rd Party’s Breach of Fiduciary Duty - FIDUCIARY DUTY - Fiduciary Duty Where No Concluded Arrangements Between Parties - STAY OF ORDERS - Failure to Obtain Stay of Non Monetary Orders - Inability to Obtain Reversal of Non Monetary Orders When Orders Complied With - APPEAL - New Issues Raised on Appeal - DAMAGES - Basis of Assessment - Date of Assessment - Assessment of Lost Opportunity - Allowance for Vicissitudes - Interference with Award of Trial Judge - Equitable Compensation

TORT - Negligence - Duty of care - Occupier's liability - Whether foreseeable risk of injury present - condition of earthen mound - significant risk of harm due to unsafe condition of mound after heavy rain - risk of carelessness on the part of entrants to be expected - scope of duty of occupier - occupier should have taken steps to avoid possibility of injury from walking across mound after heavy rain - Contributory negligence - apportionment. - DAMAGES - Assessment of damages - Loss of past earning capacity - error in assessing loss due to wrong finding that respondent would have worked full-time - Loss of future earning capacity - error in assessing damages - Damages for domestic assistance. D

PRACTICE - Jurisdiction - Self-executing orders - Application for leave to appeal - Whether orders made by Master and entered by Deputy Registrar had effect - Powers of Registrar - orders of court - proceedings were dismissed by orders of Deputy Registrar and thus there was no jurisdiction for the orders to be later set aside or an extension of time granted. D

Administrative Decisions Tribunal - natural justice