Cases and authorities

Criminal law - appeal against sentence - Customs Act drug offences - Crown accepts errors in sentencing process but asserts not material - absence of allowance for utilitarian value of early plea - prospects of rehabilitation - import for own use and to fund addiction - head sentence reduced and non-parole period varlied.

Appeal against severity - robbery - using an offensive instrument to prevent lawful apprehension - Judge overlooked s439 of the Crimes Act 1900 (now s 22 of the Crimes (Sentencing Procedure) Act 1999 - On appeal discount allowed for plea of guilty on second day of trial.

ENVIRONMENTAL LAW - resumption of land - compensation for resumption of land - severance - highest and best use - comparable sales - PROCEDURE - disqualification for bias - association or interest - reasonable apprehension of bias by a fair-minded lay observer - COSTS - exercise of discretion - consideration of irrelevant factor - whether error constitutes a miscarriage in the exercise of discretion - D

PROCEDURE - Costs - Part 39A, rule 25 of the District Court Rules - offer of compromise - Calderbank offer - whether exceptional circumstances or for the avoidance of substantial injustice - ND

CRIMINAL LAW - accused not guilty of murder by reason of mental illness

Criminal law - summary prosecutions - destroyed evidence - power to stay proceedings - necessary criteria for exercise of power - applicability in New South Wales of decision in Commonwealth Service Delivery Agency v. Bourke - availability of remedies other than stay - availability of acquittal - Bourke not decisive in New South Wales of when a stay should be granted.

DEFAMATION - imputation relating to group membership may be defamatory of an individual member if the matter complained of related to an organised group or if there was something to point to the particular individual - jury may consider implications and inferences which may be drawn from a television programme

PROCEDURE [106] - Practice under Supreme Court Rules - Interim preservation - Party seeking ex parte extension of caveat and injunction - Proposed defendant attends court on notice - Applicant decides not to proceed with application and announces he will withdraw and not file summons - Applicant required by Court to file summons - Proposed defendant seeks costs.

LANDLORD AND TENANT - purported termination for breach of covenants to pay royalties and to work mine - construction of royalty clause - whether failure to comply with notice demanding excessive sums for royalties amounted to repudiation - whether covenant to work mine required continuous working when uneconomic

PROCEDURE [32] - Courts and judges generally - Courts - Adjournment - Discretion of Court - Exercise in relation to long standing fixture when realistically matter will not be ready.

Sentencing - appeal against severity - drug and firearm offences - whether Judge took into account the appellant's youth as a matter relevant to the interplay between general deterrence and rehabilitation - whether Judge applied principle of totality.

Criminal law- sentencing- - possession of prohibited drug- - supply or personal use- - consideration of a discount after guilty plea- - elements of the offence.

Criminal law - appeal against sentence - armed robberies - applicant a child at time of offences and sentence - asserted disparity with more intelligent co-offender - applicant of low intelligence - general and specific deterrence (by majority - Hodgson, JA. and Greg James, J. - Adams, J. dissenting) - sentence not in error.

Criminal law - sentence appeal - attempted murder of estranged spouse - culpability little short of completed offence - effect of depression - sentence based on mistaken assumption depression not operative - fresh evidence - re-sentence.

Sentencing - Appeal against severity - malicious wounding with intent to inflict grievous bodily harm - Whether judge gave sufficient weight to appellant's depressive condition.

Respondent employed by a sub-contractor under an agreement with appellant - respondent injured when working for sub-contractor on appellant's premises - contributory negligence - Workers Compensation Act contributions s151Z

CORPORATIONS — Extension of time to hold requisitioned meeting under s1322(4) of Corporations Law where cost of having separate meeting from annual general meeting very high — Meaning of requirement that no substantial injustice caused — Whether any contractual obligation created in favour of retiring director for retirement benefit under policy adopted by board resolution.

LANDLORD AND TENANT - termination on tenant being placed in liquidation - whether satellite dish and technical equipment fixtures, tenant's fixtures or chattels

Appeal decision of Magistrate

CRIMINAL LAW - appeals - break, enter and steal - armed robbery with a dangerous weapon - appeal against leniency of sentence - subjective circumstances - most exceptional circumstances - rehabilitation - two step process of sentencing - whether suspended sentence appropriate

Criminal Law - sexual assault - onus of proof - accused not testifying - direction

CONTRACT - Building contract - Progress payments - Whether required by contract - Whether breach by late payments - Whether builder entitled to rescind.

Negligence - motor vehicle accident - property damage - driver suffers heart attack - failure to stop before crashes into hotel. (ND)

Family Provision. - Application by elderly widow who needs a live in carer to look after her in her home in which she has lived for 35 years. - Long marriage and contrinbutions to the estate. - Order that the whole estate pass to the widow.

CRIMINAL LAW & PROCEDURE - criminal assets recovery

Motion to strike out Statement of Claim adding cause of action in negligence and under the Trade Practices Act 1974 - Motion to strike out - Application of Pt 20 SCR

CONVEYANCING — CONTRACT — PROCEDURE — Agreement for lease — 23 year lease — Party not yet in occupation — Strike out application — Could not be said to be "clearly demonstrated" specific performance could not lie — Clause entitling lessor to force relocation where conditions satisfied not sufficient to convert lease to licence or necessarily preclude specific performance — Specific performance of licence where damages not adequate remedy may be possible.

Plaintiff - a company incorporated under laws of State of California in the USA. - Defendant - a company incorporated under the laws of Malaysia. - Litigation arises out of sale by plaintiff to defendant the whole of the issued share capital in its wholly owned subsidiary carrying on business in Papua New Guinea. - Sale agreement included sale of potential tax losses. - Issue arises as to appropriate currency of payment - American dollars or PNG Kina.

TAXATION - payroll tax - whether seasonal fruit pickers were paid a "wage" within the meaning of s 3AA(1) Pay-roll Tax Act 1971 - whether these workers were properly classified as employees - EMPLOYMENT LAW - determinants of employment relationship - control of seasonal workers - absence of mutuality of obligation to work - method of payment - facts showed workers were under constant right of conrol and threat of summary dismissal - trial judge's view that employment relationship existed and was justified task of appeal court - appeal dismissed. D

Sentencing - Robbery - Assault Police - Whether Judge erred in holding that the appellant's psychiatric or psychological conditions played no role in the commission of the offence.

PARTNERSHIP - Whether partnership dissolved by winding up of corporate partner - Winding-up not "bankruptcy" for purposes of Partnership Act, s.33(1) - Appointment of receiver to wind up partnership

CONTRACT - construction - exclusion clause - lessee not entitled to damages if elevators or air-conditioning plant fails to function for any reason - exclusion clause held not to prevent Lessee recovering damages for Lessor's interference with operation of air-conditioning plant DAMAGES - breach of covenant to use best endeavours to maintain air-conditioning plant - evidence establishes breach was one of several causes of Lessee's business loss - principles as to assessment of damages

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

[DEEDS] - Construction - Release in Deed of partnership dissolution - Whether Release includes claim for contribution for damages awarded to end users of asbestos products produced by partnership in claim brought many years later in which only one partner is sued - Cautionary principle to be applied in approach to construction. [EQUITY] - If such claim is included in Release, whether in fairness and equity the releasee is entitled to rely upon it.

Costs.

VOLUNTARY ASSOCIATION - Whether election of council valid - Whether University has standing in relation to controversy concerning constitution of students' association - Justiciability of such controversy - Construction of provisions concerning termination of office after subsequent election of officers - Whether several persons may occupy one office - Whether Court will sanction single trustee where instrument requires several trustees - Principles upon which Court will appoint receiver of trust property in jeopardy - Need for other avenues of resolution to be further pursued first.

Practice and Procedure - costs - Calderbank offer to several defendants - application for indemnity costs - offer only capable of joint acceptance - time for acceptance limited - highly complex issues in proceedings.

Private International Law - choice of law - injury occurring within foreign flagged vessel in New South Wales territorial waters - whether law of the flag or law of New South Wales applies - inappropriate forum - whether correct test in New South Wales is "clearly inappropriate" or "inappropriate"

Defamation - imputations - implied authorisation to publish - whether posing for photograph can be taken as implied authority to publish relevant photograph - whether necessary to plead knowledge that photograph will or might be used for media purposes - no sufficient allegation of fact in statement of claim.

Criminal law - sentencing - armed robbery - juvenile - whether manifestly excessive - whether Henry [1999] 46 NSWLR 346 guideline applicable to juvenile offenders - Children (Criminal Proceedings) Act 1987.

Administrative Law - Medical Tribunal - whether member of Tribunal disqualified from sitting - whether member had "previously dealt with the particular matter" - meaning of "matter".

District Court - medical negligence - whether perforated eardrum was occasioned by syringing - whether syringing was negligently performed - whether negligence in failing to warn of possibility of perforation - whether failure to warn caused harm to patient.

Evidence - whether evidence of DNA test results was based on the witness' specialised knowledge based on training, study and experience - Held: Yes. - Evidence - whether evidence of DNA test results had substantial probative value - Held: Yes. - Evidence - whether admission of evidence of DNA test results gave rise to danger of unfair prejudice to accused - Held: No.

Practice and Procedure-Construction List-particulars

CRIMINAL LAW - Appeal - Verdict - Whether unreasonable, or cannot be supported, having regard to the evidence - Role of appellate court

Corporations Law - declaratory proceedings by insured against insurer - appointment of provisional liquidators - applications for leave to proceed - principles and considerations affecting discretion.

Corporations Law - declaratory proceedings by insured against insurer - appointment of provisional liquidators - applications for leave to proceed - principles and considerations affecting discretion.