Cases and authorities

Interlocutory Injunction - no question of principle

Defamation - imputations - true innuendo - juxtaposition video film depicting plaintiff with commentary not directly related to her - "anti-social" - whether imputations defamatory

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

CRIMINAL LAW & PROCEDURE - evidence - application for witnesses to give evidence by video-link - witnesses scared of accused

Negligence - medical practitioner and hospital - whether failure to inform or warn of risks - role of practice in relation to breach of duty - whether damage causally related to any breach of duty

CRIMINAL LAW - Appeal against conviction - arrest and detention unlawful - knowledge of reason for arrest - intention of police to bring accused before magistrate as soon as practicable - lack of evidence as to arresting officer's intention - common purpose doctrine - adequacy of directions to jury - no misunderstanding by jury as to judge's directions - provocation - whether rape of co-offender could properly amount to provocation - whether playing of pornographic video could properly amount to provocation - adequacy of direction to jury - directions appropriate - Crown appeal on sentence - accused sentenced at second trial after initial appeal succeeded and new trial ordered - sentence at second trial resulted in 18 month reduction - exercise of trial judge discretion as to sentence - sentencing discretion not limited by sentences imposed by other judges - Appeals dismissed.

Criminal law - sentence - Crown appeal - Crimes Act, s52A - home detention - relevance of forgiveness by victim's family

Tort - negligence - where trial judge ordered separate hearings of liability and damages - assessment of damages - appeal allowed in part.

Practice - transfer of proceedings - meaning of 'proceedings' - where lack of jurisdiction - District Court Act 1973, s145(1), s145(3)

CONVEYANCING [185] - Land titles under the Torrens system - Caveats against dealings - Form of caveat - Statement of estate or interest - Statement reveals caveator relies on contract which is oral and therefore unenforceable.

CORPORATIONS [118] - Management and administration - Directors and other officers - Liability for officers’ acts - Other matters - Whether trustee corporation "at fault" by reason of acts of director and manager for purpose of exercise of right of indemnity against trust fund in respect of tort or contravention of consumer protection provisions of Trade Practices Act 1974 (Cth) - EQUITY [171] - Trusts and trustees - Powers, duties, rights and liabilities of trustees - Indemnity, lien and reimbursement - General principles - Damages awarded against trustee for breach of consumer protection provisions of Trade Practices Act 1974 (Cth) - Trustee claims indemnity - Relevant considerations.

Criminal law - bail - pending special leave application - necessity for special or exceptional circumstances such as would show special leave application otherwise futile - asserted to be strong - grounds, at best, barely arguable.

DEVELOPMENT CONSENT - lapse - whether building, engineering or construction work relating to the building or subdivision physically commenced on the land - activities relied on in breach of condition of development consent - activities relied on themselves carrying out development without consent - could not be physical commencement - development consent had lapsed.. D.

Injunction to restrain operation of closure order of licensed premises

Family Provision. Application for adult son suffering from schizophrenia. Conflicts with testator when plaintiff's illness not diagnosed. Small estate. - Order for legacy.

Practice and Procedure - Application for leave to amend - Interference with contractual relations - Torts - Procuring beach of contract - elements of tort - alleged tortfeasor must know of the contract and sufficient of its terms to know that what the defendant induced or procured the party to the contract to do would be in breach of the contract - Director, officer or employee of corporate contracting party - directors are not liable for the tort where, in exercising their functions as directors and in acting within authority, they have caused the company to breach its contract - meaning of 'acting within authority' - 'acting bona fide within the scope of authority'.

Certiorari - costs in criminal proceedings - whether certiorari available for any error of law or only jurisdictional error in relation to a decision of the Local Court in criminal proceedings - whether jurisdictional error - whether error of law - discretion to grant certiorari where available appeal

ESTOPPEL - Constructive trust - Representations as to property to be left by will - Reliance - Action to detriment - Whether non-fulfilment unconscionable, where in last 20 years of life the deceased incurs substantial additional moral obligations. - SUCCESSION - Family provision - Late application - Estate distributed - Whether 'sufficient cause' within s.16 of Family Provision Act - Whether 'special circumstances' within s.28 of the Act.

PROCEDURE [573] - Costs - Departing from the general rule - Powers of the Court - Proceedings generally adversary in nature - Trustee's primary case denial of trust - Confusion caused by actions of creator of trust.

LIMITATION OF ACTIONS - extension of time for action for personal injury - plaintiff to show she was unaware of the connection between the personal injury and the defendants act or omission under Limitation Act 1969 (NSW) s60I(1)(a)(iii) - Master's finding that plaintiff was unaware was attacked on basis of cross-examination which was not dealt with in judgment - the material which was not examined was directed to present perception of the implication of available information and not to awareness at the relevant time - the parties were not called on to deal with it in detail - finding for the plaintiff was credibility based and should not be disturbed - there was some evidence to connect the other defendants to the events - consideration of extension of time to sue other tortfeasors on principle in Briggs v. James Hardie - decision to extend time affirmed.

Family Law. Application under Property Relationships Act for adjustment of parties' interests following termination of a same sex relationship. Consideration of whether there was a domesticl relationship between the parties. Held that any such relationship had ceased before 28 June 1999 when the amendments brought about by the Property (Relationships) Legislation Amendment Act 1999 came into effect. - Whether parties had entered into a termination agreement. - Held no such agreement. - In the event that such an agreement had been entered into then in the circumstances regard should not be had to the terms of the agreement. - Even if there had been a relevant relationship any contributions had been adequately compensated and that no order should be made in favour of the plaintiff. - Order on defendant's cross claim for two claims for money had and received and conversion of chattels for $110,215.99.

NEGLIGENCE - ABATTOIRS - RISK OF 'Q' FEVER

COMMERCIAL LAW - director's duties - s 60(1) The Corporations Law - whether a de facto director or a shadow director - extent of involvement in business necessary to be deemed a director - ND

APPEALS - District Court decision - Decision on separate question - Proceedings dismissed - Whether leave to appeal necessary. D.

CORPORATIONS — Withdrawal of statutory demand directed wrongly against the Plaintiff company — Policy of statutory regime — Costs awarded in favour of Plaintiff.

CHILDREN - care proceedings - interim order by Children's Court for access - interlocutory relief in this Court in support of that order - question of costs

Defamation - Capacity of Imputations to arise - Defects in form

Limitation period - Damages - Equitable remedies

Criminal law - appeal against conviction on 3 charges of indecent assault - where charged with 6 offences of indecent assault but only convicted of first 3 - inconsistent verdicts - unsafe and unsatisfactory verdicts - appeal allowed.

CONTEMPT - criminal contempt - standard of proof "beyond reasonable doubt" - CONTEMPT - knowledge of orders essential element of contempt charges - level of knowledge required - knowledge of substance of orders sufficient - lack of evidence showing requisite knowledge - CRIMINAL LAW - "no case" submission - can be made at close of claimant's case in criminal contempt - standard of proof "beyond reasonable doubt" - difference between jury trials and cases where judge/magistrate sitting alone - whether it is permissible for judge/magistrate sitting alone to assess evidence qualitatively and make factual findings - "no case" submission question of law - determination of guilt question of fact - preference to keep questions of fact and law separate - wrong for judge/magistrate to make factual findings at "no case" submissions stage. D

COSTS ND

Legal Profession - misconduct, unfitness and discipline - criminal offence - removal of name from Roll

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

CONVEYANCING [189]- Caveats- Applications for extension- Not to be made ex parte- Not to be left to last moment.

Contract - deed of agreement for lease - commencement date provided - whether time of commencement essential - agreement to erect building to lock-up stage by certain date, subject to contingencies - whether promisor in breach.

Transfer of proceedings

CRIMINAL LAW - armed robbery - kidnapping - whether convictions unreasonable or could not be supported having regard to the evidence or whether a miscarriage of justice occurred. CRIMINAL LAW - Crown appeal - armed robbery - whether sentence manifestly inadequate - parity of sentencing with co-offender - whether conduct of Crown in sentencing proceedings of co-offender relevant - whether court should exercise discretion not to intervene despite manifest inadequacy of sentence.

ADMINISTRATIVE LAW - APPEALS - Appeal to District Court under Children (Care & Protection) Act 1987 - Whether further appeal to Supreme Court - Whether certiorari available.

Corporations Law. Application to set aside statutory demand. Failure to annexe a company search to the affidavit in support. - Held not a defect going to jurisdiction. - Demand set aside.

CORPORATIONS [257]- Applications to Court by liquidators for advice- Role of Court- Evidence required- Practice.

CONTRACT - Head contract for supply and maintenance of computing system - Sub-contract for services for that system - Contract between customer and sub-contractor dealing with intellectual property - Head contractor goes into administration - Sub-contract terminated - Customer enters into new head contract - Questions as to obligations of sub-contractor and rights to intellectual property, in new circumstances.

CRIMINAL LAW - appeal - appeal against sentence - indecent assault of a female under 16 years - rape - miscarriage of justice - failure to give Longman direction - failure to give direction on way to proceed if jury not satisfied that complainant was telling the truth on one or more counts - failure to give a direction in relation to intoxication - failure to direct jury in relation to lies - directions on alibi evidence

BUILDING CONTROL & TOWN PLANNING - consent and approval of councils - development application - property within conservation area - heritage significance of property - clause 32 of Local Environmental Plan - whether council properly considered clause 32 and the relevant conservation plan - elements of conservation plan - council found to have considered all relevant matters under clause 32 LEP - approval of development application upheld. D

DUST DISEASES - Plaintiff successful at trial agaist first and second respondents - first and second respondents cross claims for contribution against appellants - appeals from Dust Diseases Tribunal - TORT - contribution - s 5 Law Reform (Miscellaneous Provisions) Act 1946 - effect of causation findings upon contributions claims - DAMAGES - inconsistency in method of calculation at trial - EVIDENCE - admission of further evidence on grounds that the case would otherwise be decided on a factual basis known to be false. D