Cases and authorities

CRIMINAL LAW & PROCEDURE - voir dire - admissibility of evidence

Family Provision - Small estate - Deceased, a widower, left entirety of estate to one child - Claims by three other adult children - Financial and material circumstances of each Plaintiff - Competing claim of beneficiary

DEFAMATION - Imputations of guilt - Objections to form

Penalty: Held that on a proper construction of the Agreement and in all the circumstances the requirement to pay a greater amount did not constitute a penalty - Breach: Held no breach of contract and that, in any event, the breach alleged was not essential and did not go to the root of the contract - Damages: Held that the plaintiffs had established that the difference between the original contract price and the ultimate sale price was the proper amount of damages, and that the defendant had not established that there was a failure by the plaintiff to mitigate - Non-Fulfilment of Conditions: Held that the defendants' conduct dispensed the plaintiffs from the obligations of fulfilling conditions.

Corporations Law. Commencement of proceedings to set aside statutory demand by Notice of Motion in proceedings already in existence between the same two parties. Factual background of proceedings similar to background of debt claimed in demand. - Held proceedings could be commenced by Notice of Motion and that motion substantially complied with Form 3 of the Corporations Law Rules. Considerations of whether proceedings final or interlocutory.

Application under Part 32A Supreme Court Rules - delay - unconstitutionality of cross-vesting to Family Court - "ineffective proceedings" - claim for costs not unarguable - delay curable - related proceedings in Court of Appeal - common questions of merits - decline dismissal on terms application made for Court of Appeal to dispose of outstanding issues.

CONVEYANCING — Reinstatement of purchasers into possession pending resolution of proceedings for specific performance — Notice to complete requires no breach of condition by party giving it — Defects requiring rectification — Waiver of notice to complete?

DEFAMATION - Imputations pleaded using terms of article/slang

Appeal - Severity - conviction for murder by youthful offender - a worst category of case but not requiring a sentence for the term of the offender's natural life - sentencing Judge misinformed as to the period served in protective custody - appellant to be re-sentenced on the basis that he will serve virtually the whole sentence in protective custody.

Negligence - Employer duty of care - Unsafe place of work

Dust Diseases Tribunal claim - Crimmins Case - transfer of South Australia's non-metropolitan railways to Commonwealth - inchoate tortious claims passed - mesothelioma later diagnosed (ND)

PROCEDURE — Interlocutory mandatory injunctions — Did interlocutory relief have practical effect of final relief — Serious question to be tried or prima facie case — Making available of trust records under superannuation trusts by manager to new trustee — Construction of trust deed — Confidentiality claim by manager can’t prevail over obligations under s52(2) of Superannuation Industry (Supervision) Act 1993 (Cth) — Manager not entitled to insist on practical benefit of lien — Role of APRA.

Fully drawn loan facilities - development project - what constitutes reasonable conduct by the financier with respect to release of progress payments in the absence of express terms.

Sentencing - Extended course of dishonesty - Whether subsequent offences correctly taken into account

Proviso to s6 of the Crimes Act

Practice and Procedure - Competence of Appeal from District Court - Whether appeal from District Court incompetent because the affidavit pursuant to Part 51 rule 8 SCR failed to show that the appeal involved a matter at issue amounting to or of the value of $100,000 or more - Held the appeal was incompetent at the time the Notice of Appeal was filed as the affidavit did not disclose facts but rather a belief: Anthony v Maglovenos (Court of Appeal - 11 July 1978 - unreported) and Ozpinar v Assaily (Court of Appeal - 19 February 2001 - unreported) followed. - Held by Powell JA that the appeal was also incompetent at that time as a substantial amount involved was liquidated damages for which the plaintiff could not sue under the policy having elected to affirm it: Larratt v Bankers & Traders Insurance Co Limited (1941) 41 SR 215 and Russell Young Abalone Pty Limited v Traders Prudent Insurance Company Limited (1993) 7 ANZ Ins Cas 61-182 - Principles on which leave to appeal will be granted - Application for leave to appeal refused as neither the amounts involved justified it and there were no questions of principle: Dunn v Ross Lamb Motors [1978] 1 NSWLR 26 and Carolan v AMF Bowling Pty Limited (Court of Appeal - 16 November 1995 - unreported) followed and applied - Matters for Pleading - Desirability for the pleading of all issues, which should be pleaded, rather than reliance on the way in which case fought or argued: Dare v Pulham (1982) 148 CLR 658 referred to.

Criminal law - importation of prohibited substance - appeal against conviction - direction to jury - circumstantial case - appeal against severity of sentence - principle of parity - appeal dismissed.

Contract - third party mortgage - mortgagee bank misrepresentations - misleading and deceptive conduct - negligence - unjust circumstances - unconscionable conduct.

Action for Damages - - Plaintiff employee of defendant - dismissed - whether defendant negligently advised him to abandon statutory right of appeal against dismissal - whether such an appeal could have succeeded - whether his dismissal and subsequent criminal prosecution attributable to unsafe work practices of defendant

CRIMINAL LAW - sexual assault - consent only issue - directions to jury incorrect - Weissenteiner v The Queen (1993) 178 CLR 217 - RPS v The Queen (2000) 199 CLR 620

Criminal trial - Jones v Dunkel direction - whether accused could be expected to call witnesses - need for caution in deciding whether to give direction at all - if given, need for direction as to possible explanation for witnesses not being called

CRIMINAL LAW - Crown appeal against inadequacy of sentence - Whether sentencing Judge gave inadequate weight to the seriousness of the substantive offences on indictment and twenty-seven offences on a Form 1 - Strong deterrent element when sentencing for using a weapon with intent to prevent lawful apprehension - Appropriate influence on sentence of matters listed on Form 1.

Crown lands - Crown Lease - Crown Lands Consolidation Act 1913 - special condition - Forestry Act 1916 - compensation for damage - royalties paid to Crown on timber removed - whether statutory change abrogated lessee’s rights - failure to prove damage - declaratory relief. ND

Application for leave to appeal - trespass to land - claim of aboriginal sovereignty - Mabo's Case

Extension of limitation period - ultrasound of baby - medical negligence - cross claims - summary judgment

Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Law. Whether failure to specify an address in Australia for payment is a reason for setting aside. - Held no substantial injustice and proceedings dismissed.

SUCCESSION [171]- Construction- Disposition to "other daughters". WORDS & PHRASES- "Other".

PROCEDURE — Pt 32A Supreme Court Rules — Striking out proceedings for failure to take any step in the court file for twelve months in the absence of special circumstances — Steps taken only in related proceedings — Appeal from Master — Relevant considerations by way of special circumstances — "Just, quick and cheap" as an overriding purpose of the Rules — undertakings required for future expeditious prosecution.

SUCCESSION [335]- Family Provision- Application for release- What evidence required.

SUCCESSION [96]- Executor- Renunciation- Whether leave to retract should be given.

Crown appeal claiming manifest inadequacy in sentencing - sentencing judge accepted facts establishing quite exceptional degree of hardship to severely afflicted child of respondent if sentenced to custodial imprisonment - sentences suspended on entering into bond - sentencing judge took all relevant considerations appropriately into account - no relevant error of principle shown - no attack available against sentencing judge's factual findings.

Criminal law - Sentencing - Social Security fraud - Whether sentence manifestly excessive - Whether sufficient weight given by sentencing judge to subjective circumstances - Mitigative weight of pre-sentence reparation by way of partial repayment of defrauded monies - Whether prospect of loss of applicant's house involves a considerable or real sacrifice on applicant's behalf - "Tragic life" and emotional attachment to house

Criminal Law - Sentencing - Knowingly concerned in prohibited importation of commercial quantity of heroin - Crown appeal against alleged manifest inadequacy of sentence - Whether special circumstances existed to take case outside R v Wong sentencing range - Whether ratio of non-parole period to head sentence should have been greater than 54 per cent - Confession and full co-operation with law enforcement authorities - Plea of guilty - Remorse and contrition - Whether respondent's admissions vital in establishing the prosecution's case against him - R v Wong and Leung (1999) 48 NSWLR 340

Tort - Whether unlawful arrest - Whether assault - Damages sought - Whether collateral purpose of arrest - Police conduct - Use of force by police during arrest - Whether excessive force used - Resistance of arrestee - Effect of trial judge's rejection of plaintiff as witness of truth on claim for unlawful arrest and assault. D

Family Provision. Application by son of first marriage who had been left a legacy of $40,000 the residue passing to the widow. - Estate not sufficient. Claim dismissed.

CONVEYANCING — Strata Titles Act — By-laws purporting to give exclusivity to caretaker manager — Did they extend to preclude use of selling agents when no reciprocal obligation to provide the service or do so on reasonable terms — Principles of construction — Unreasonable restraint of trade — Constraint on transfer of units.

CRIMINAL LAW - leave to cross examine witness under s 38 Evidence Act 1995 (NSW) - meaning of "unfavourable" - grant of leave pursuant to s 192 of Evidence Act 1995 (NSW)

Criminal law - appeal against sentence - whether sentence discloses error or is manifestly excessive - escaping from unlawful custody - special cirucmtances.

Whether on the whole of the evidence a reasonable jury must have had a reasonable doubt about the accused's guilt - severity appeal - appellant supplied drugs and alcohol to two 14 year old girls to render them less capable of resisting sexual assault.

Practice - Leave to file affidavits out of time - no point of principle.

Franchise Agreement - notice of breach - whether the notice adequately identified the breach - Practice - motion for judgment under Part 34 rule 8 - whether motion appropriate when counsel addressed generally on the case.

EQUITY [96]- Trust- Resulting trust- Joint purchase of land- Husband and wife- Evidence sketchy- Likelihood that equal equitable ownership intended. FAMILY LAW [5]- Matrimonial cause- Claim that wife unequal owner in equity not such a cause. WORDS & PHRASES- "Matrimonial cause"- "Property".

Appeal from Local Court - question of law - insufficiency of evidence - monthly tenancy - implied term - estoppel - what evidence is sufficient.

Criminal Law - Bail - Proceeds of Crime Act 1987 - acceptable security

Criminal Law - Bail - s8A of Bail Act - presumption against bail - principles to be applied

Criminal Law - Appeal against conviction - Murder - Defence of provocation - Trial judge's directions to jury on provocation - Whether personal characteristics of accused should be imputed to the "ordinary person" by jury when applying s 23(2)(b) of the Crimes Act and determining whether defence of provocation made out - Whether New South Wales Court of Criminal Appeal bound by High Court decisions on provocation - Stingel v R (1990) 171 CLR 312 - Masciantonio v The Queen (1995) 183 CLR 58 - R v Green (1997) 191 CLR 334 - Crimes Act 1900 (NSW), s 23(1) and (2)