Cases and authorities

Negligence - Damages - Tripping at entrance to bathroom

Quash order of Fair Trading Tribunal - Denial of natural justice - interpreter

APPEAL AGAINST CONVICTION - sexual intercourse without consent - essential conflict over whether complainant asleep at the time - appeal on ground verdict unreasonable - on consideration of facts, not unreasonable - Fleming v The Queen (1998) 197 CLR 250, Jones v The Queen (1997) 191 CLR 439 and M v The Queen (1994) 181 CLR 487 applied - regard to be had to trial judge's remarks as to credibility of witnesses - R v Carbone (2000) NSWCCA 387 referred to. D

APPLICATION for stay of order from Medical Tribunal of New South Wales that name of medical practitioner be removed from register pending appeal

NEGLIGENCE - liability - passenger injured in exiting train - whether plaintiff was thrown from train or stepped off - trial Judge’s directions to jury.

BREACH OF CONTRACT - banker and customer - overdraft facility - concern about customer's solvency - bank "freezes" current accounts - no more drawings on current accounts - but arrangements for opening new accounts, for transfer of funds paid into current accounts to new accounts, and for operation on new accounts provided within overdraft limit - whether freezing in breach of implied term not to vary customary mode of dealing without reasonable notice - no implied term - customer's case at trial not founded on such a term. DEFAMATION - bank sends to customer bank statements with "in liq" at end of balance column - whether conveyed that customer in liquidation or that account in liquidation or reduction - bank statements received by fax at customer's office - customer a company - seen by management - also seen by some employees with no business to see them - to whom communicated by bank - whether publication to customer - whether publication to other employees. D

Appeal from Fair Trading Tribunal - statutory interpretation

ESTOPPEL - equitable estoppel - representation as to future conduct - ESTOPPEL - remedies - facts such that appropriate remedy to make the representation good

Damages - breach of contract - whether documented in personal capacity or as disclosed agent - whether binding contract.

Appeal From Fair Trading Trinual - statutory interpretation

Family Provision. Application by the plaintiff who migrated to Australia to marry the deceased. Deceased has a hear attack 3 days after her arrival and dies a week later. Whether the plaintiff was part of the household and partly dependent. Large estate. In circumstances order for a legacy. - Application by daughters. Appropriate vesting date for legacy. Change of vesting date from 25 to 23 years for one daughter and legacy ordered for daughter omitted from will.

TORTS - Nuisance - tree on road owned and under care and control of Council as highway authority - damage to adjoining property caused by roots of tree - tree no planted by council - non-feasance rule - HIGHWAYS - negligence and nuisance - damage caused to property adjoining highway from roots of tree growing on verge - non-feasance rule

STATUTES - INTERPRETATION - Pawnbrokers and Second-Hand Dealers Act - meaning of "auction" where not defined - does it include sale by tender - ordinary meaning does not - definition in other Acts does - purpose of other Acts not sufficiently similar to this Act to import definition

CRIMINAL LAW - appeals - appeal against conviction - aggravated break and enter and commit robbery - robbery in company - evidence of fingerprints - credibility of witness - whether verdict unreasonable and supported by the evidence

Criminal law - Crown appeal against leniency of sentence - threatening to use offensive weapons with intent to prevent a member of the police force investigating an act or circumstance that reasonably called for police investigation.

Criminal appeal - unreasonable verdict - indecent assault - inconsistent verdicts - no question of principle

Negligence - injury to pedestrian on footpath outside construdtion site - independent contractor at fault - construction site owner and pedestrian - non-delegable duty of care.

NEGLIGENCE - liability - provision of medical services - whether failure to warn of risks - whether procedure performed correctly - whether epidural anaesthetic effective - whether plaintiff’s account of the procedure supported by evidence - defendants had no personal recollection of procedure - whether appeal court should interfere with findings of fact and credibility. - NEGLIGENCE - liability - whether damage suffered - provision of medical services - failure to warn and advise - plaintiff received particular form of incision - doctor did not explain either before or after procedure that this form was medically necessary - whether plaintiff suffered psychological damage as a consequence of failure to warn or advise. - CONTRACT - breach - whether contract for provision of medical services breached.

On costs

CRIMINAL PRACTICE & PROCEDURE - Accused becoming unfit during the course of his trial - Fitness hearing - Discharge of Jury - Referral of accused to Mental Health Review Tribunal

Appeal decision of Residential Tenancies Tribunal

Contract - practice and procedure - construction of inspection of records clause - right to copy - orders declaratory of previous orders.

COSTS — Pt 52A r33 of Supreme Court Rules not applicable in circumstances where declaratory orders sought and s55(2A) of Conveyancing Act involved and where legal question of complexity and novelty relating to contribution — Principles applicable to indemnity costs — Relevance of Calderbank type letter not within Pt 22 of Supreme Court Rules — Ambiguity in offer of settlement goes against indemnity costs — Relevance of adequate time to consider and closeness to case commencing.

Set aside default judgment against second defendants - costs

EVIDENCE [23]- Inadmissible evidence by statute- Solicitor for X listening to tapes of tapped phone calls for criminal proceedings against X- Solicitor takes notes- Notes inadmissible in probate proceedings Y v X. SUCCESSION [4][48]- Suicide note- Whether an informal will- Whether maker of sound mind- when "will" made. WORDS & PHRASES- "Information".

Proceeds of crime - Commonwealth regime - forfeiture six months after conviction - extension of time application - necessity for order before expiration of original waiting period

PROCEDURE [21] - Courts and judges generally - Judges - Other matters - Judge discharging self from further hearing of part heard application - Relevant considerations - PROCEDURE [81] - Practice under Supreme Court Rules - Preliminary rules and generally - Overriding purpose of Rules to facilitate just, quick and cheap resolution of real issues - Duty of parties to assist - Court's concern at costs of litigation.

Verdict - whether evidence to support - Verdict - whether failure to give reasons vitiates - Assessment of damages - whether evidence to support - Assessment of damages - whether failure to give reasons vitiates

CONTRACTS [7]- Whether contract- Agreement to settle litigation- Deed of release drafted- Whether exchange of deed condition precedent- Held it was.

Legal Assignment of Securities. Defence of guarantor against a claim by the Assignor an equity binding on the Assignee, so that as the Assignor had covenanted not to sue the guarantor, the Assignee could not - Limitation Act: What amounts to a confirmation under s.54(2). held, in the circumstances of this case, no confirmation.

AGENCY - agent to effect contract - knowledge of principal relevant if contract made by principal - knowledge of agent relevant if contract made by agent - knowledge relevant however acquired - FRAUD - representation - representor intended one meaning - representee to knowledge of representor takes different meaning - different meaning false to knowledge of representor - representor fails to correct representee’s mistake - fraud established - INSURANCE - Insurance Contracts Act 1984 (Cth) - duty of disclosure - definition of knowledge - knowledge of agent to insure attributable to principal - negligent misrepresentation - misrepresentation by omission or silence - fraudulent misrepresentation and non-disclosure - KNOWLEDGE - whether belief equivalent to knowledge

Application to amend grounds of appeal

Crimes (Administration of Sentences) Act 1999 - s141 and Sch 1 cl 17 - disagreement between majority and judicial member entitled to vote at a meeting of the Board - failure of Board to discharge its duty under s141 to decide whether or not an offender should be released on parole or whether the question or whether or not the offender should be released on parole should be deferred - - D

Expedition application - Existing injunction extended

Trusts, constructive trusts. Gift of property by father to son. Arrangement whereby son rebuilds property to accommodate his family and the father after reconstruction at the son's expense. Breakdown in relationship. Father evicted. Order for charge in favour of the father.

Appeal against costs assessor's decision

Practice and Procedure - Application for leave to amend - quick, just and cheap resolution of real issues.

PROFESSIONAL NEGLIGENCE - medical practitioner and chiropractor - referral by medical practitioner - treatment by chiropractor - liability of each - DAMAGES - negligent treatment of pre-existing work injury - aggravation of earlier symptoms - allowance for workers compensation payments - assessment of damages

CORPORATIONS - Oppression - Arrangement for sale of product to majority shareholder - Prices fixed so that no profit made - Whether oppression against minority shareholder.

Criminal Law - sentence excessive - appeal against sentence allowed - no question of principle

CRIMINAL LAW - Sentencing - Crown appeal - - Break enter and steal - Receiving - Error of law in sentencing at first instance due to imposition of a global sentence for different offences - Sentence manifestly lenient - Crimes Act 1900, ss 112(1) and 189

Appeal against conviction - conduct of Crown Prosecutor - whether closing address by Prosecutor contained inappropriate and prejudicial comments - whether possibility that trial miscarried as a consequence.

Mortgage - guarantee - claim for possession - unconscionability

MENTAL HEALTH [9]- Guardianship Tribunal- Appeal- Question of fact- Whether leave to appeal should be given- Procedure- Leave refused.

Imputations - alternative pleadings

Sale of Goods Act 1923 (NSW) - fit for purpose - reliance - where goods supplied for use in execution of building contract between purchaser and third party.

Criminal Law - application for leave to appeal against sentence - murder - guilty plea - felony murder - intent to kill - objective criminality. Special circumstances - appeal dismissed.

Sentencing for murder - discounts for plea of guilty and assistance - parity - special circumstances but no need for a longer additional term.