Cases and authorities

Judicial Review - certiorari sought in relation to judgment of District Court of NSW - whether denial of natural justice - whether the grant of leave by the Court to amend notice of appeal to appeal against sentence only denied claimant's right to pursue defence of honest and reasonable mistake - nature of defence of honest and reasonable mistake.

CRIMINAL LAW - appeals - appeal against conviction - sexual assault - aggravated sexual assault - verdict unreasonable of being supported having regard to the evidence - jury better placed to evaluate reliability of the witnesses than court - competing versions - identification evidence - warning for use identification evidence - question of motive - motive to lie

Practice & Procedure - client legal privilege - imputed waiver through solicitor's oversight during discovery - principles applicable

Local Court proceedings - information containing typographical error as to date of offence - correct date within six months of date information laid - application of Justices Act ss 56, 65.

Damages claim for personal injury - occupier's liability - not taking adequate precautions - failing to provide suitable steps to enter caravan - no breach of duty of care established.

RESTRAINT OF TRADE — Corporations — Employee — meaning of director or executive officer for purposes of s235 of the Corporations Law as applicable to "officer" — Duties, if any, in relation to customer list where taken with consent — Duty not to canvass customers of employer while still employed — s235 of Corporations Law — Confidentiality attaching to customer list — Business cards.

Criminal law - appeal - offences pursuant to s125 Environment Planning & Assessment Act 1979 - cutting down of trees contrary to conditions in development consent - failure to erect adequate barrier around tree - whether summons disclosed offence known to law - whether summons bad in failing to identify essential factual ingredients of the offence - summons and order in each matter adequate in specificity to put appellant on notice of charges faced - discussion whether necessary to invoke s76(2) Environment Planning & Assessment Act 1979 to show appellant offended against directions and prohibitions contained in conditions - Fleming v R not applicable to trial of summary offences - penalties for environmental offences - appeal dismissed.

NEGLIGENCE - Occupiers liability - Dangerous premises - Invitees - Unusual danger - Sufficient that occupier knew or ought to have known facts tending to create danger - Doctor's surgery leased from defendant/appellant - Access from car park on defendant/appellants' property via ramp on defendant/appellants' property - Ramp steep and, when wet, slippery - Plaintiff/respondent injured when descending ramp in rain - Liability of defendant/appellant D

ADMINISTRATIVE LAW - certiorari or declaration sought re order of Administrative Decisions Tribunal of New South Wales

Whether the plaintiff has standing to bring these proceedings in New South Wales by reason of the application of Swiss law. Held it did not. - Applicability of foreign law considered.

Set aside default judgment - summary judgment

APPEAL - seizure of car under Search Warrants Act - magistrate directs disposal of car when no longer required - whether appeal lies from such decision to this Court - Search Warrants Act s 7(3) and Justices Act ss 102, 104.

EVIDENCE - prosecution before magistrate - evidence of admissions introduced by prosecution - whether admissions made in consequence of promise or inducement - also failure to caution accused before admissions made - whether admissions should be allowed into evidence - need for magistrate to address issues raised and to state reasons - Evidence Act 1995, ss 85, 90, 138 and 139.

No question of principle

Evidence - information disclosed in counselling session between persons in "de facto" relationship - one party consents to disclosure - other party is dead - whether Family Law Act 1975 applies - whether counsellor bound by oath of secrecy - application of s 126B Evidence Act 1995

CRIMINAL PRACTICE & PROCEDURE - Jurisdiction where issue is one of admissibility of evidence - Invalidity of Listening Device warrant - Admissibility of conversations recorded under invalid warrant

Negligence - Personal Injury - escort of overdimension vehicle by police car - whether police officer negligent in permitting overdimension vehicle to be driven at night - apportionment of negligence - contributory negligence - damages - no point of principle.

Insurance claim - letter to solicitor demanding return of title deeds - whether letter asserted cause of action against solicitors - discussion of what constitutes"claim" for the purposes of insurance policy - letter went beyond reservation of rights and embodied a claim - appeal allowed. (ND)

COSTS - PROCEDURE - Discovery and inspection - Documents returned to discovering party in form and order requiring significant restoration - Order for costs thrown away.

Corporations Law. Application to set aside statutory demand. Genuine dispute about identify of contracating party. Demand set aside.

Family Provision - Claim by widower - Plaintiff given a right of residence in matrimonial home - Plaintiff, aged 83, is frail and infirm - Plaintiff can no longer exercise right of residence - Defendants do not dispute that Plaintiff is entitled to an order for provision for his maintenance - Whether that order for provision should enable Plaintiff to remain in a home environment with his son and daughter-in-law, or whether it should merely be sufficient to enable him to spend his declining years in a nursing home - Strict arithmetical calculations are neither appropriate nor desirable to the circumstances of this case

COSTS - plaintiff claims against defendant - defendant cross-claims against three cross-defendants - offer of compromise under rules made to defendant by one of the cross-defendants - no costs consequences under rules - treated as Calderbank letter - also Calderbank letter sent - plaintiff succeeds against defendant and defendant against all cross-defendants - but for less than amount of offer - whether defendant should pay cross-defendant's costs - by majority, departure from ordinary rule not warranted - cross-defendant to pay defendant's costs. D

SUCCESSION [263]- Realizing estate- Joint executors- One recalcitrant- Procedure to be adopted when one executor requires sale.

CRIMINAL LAW - whether accused fit to be tried

Workers compensation - truck driver suffers back injury over time in consequence of twisted seat shuddering - s151D Workers Compensation Act - outside three year limitation period - use or operation of the vehicle - definition of "claim" for purposes of Part 5 Motor Accidents Act - "claim" when used in Part 5 Motor Accidents Act means claim arising out of motor accident notwithstanding more limited definition in s40(1) - opponent’s claim is one relating to injury arising out of nature and conditions of employment - appeal dismissed. (ND)

SUPREME COURT PROCEDURE - where appeal incompetent - where appellant did not seek leave to appeal - where respondent made no application to have appeal struck out - adjournment not granted

PRACTICE & PROCEDURE - Motion for summary dismissal of claims in fraud - effect of s86 Bankruptcy Act - whether Anshun estoppel applicable

Workers Compensation Act ss.66, 67, 68A - primary and additional injury sustained between 1981 and 1997 -

Criminal law - Sentence - Robbery in company - Juvenile - Children's Court

Personal injury - bicycle rider - quadriplegic - liability only

CONTRACT - sale of business - provision entitling purchasers to rescind if takings below specified amount - HELD - the purchasers were not entitled to rescind - DAMAGES - HELD - vendors who rescinded were entitled to be placed in same position as if contract had been performed giving credit for value of business as at date of rescission - FAIR TRADING ACT 1987 (NSW) - HELD - purchasers had failed to establish that defendants (vendors) were guilty of engaging in misleading conduct. - DEFAMATION - HELD - the publications complained of were not reasonably capable of carrying the imputation pleaded by the plaintiff and accordingly did not do so - claim for damages for defamation dismissed

CONTRACTS [126] - General contractual principles - Discharge - Impossibility of performance - In what cases performance excused - Contract giving pre-emptive right to purchase land, stock and equipment and statutory milk quota of dairying business - Abolition of milk quota.

De Facto Relationship - Adjustment of interests of parties in property - Relationship for a period of 7 years - Parties resided together in New South Wales for 2 years and on Norfolk Island for balance of relationship - Respective contributions of de facto partners - Loan by Plaintiff to Defendant - Whether loan carried interest and, if so, at what rate - Entitlement of Plaintiff under the general law to repayment of loan, together with interest - In claim under De Facto Relationships Act Plaintiff is not entitled to duplicate her foregoing entitlement under the general law.

CRIMINAL PRACTICE & PROCEDURE - Relationship evidence - Limits on such evidence - Requirement for notice of tendency evidence

indemnity costs - offer of compromise - must be capable of acceptance

EVIDENCE - Affidavit - Applicability of Evidence Act - Evidence about advice from solicitor given by annexing solicitor's file note and commenting on it - Whether admissible.

WILLS, PROBATE AND ADMINISTRATION - Construction and effect of testamentary dispositions - Whether Will conferred a life estate or a mere right of residence alleged to have been abandoned - Intention of testator - The effect of the use of the words "life estate".

Summary judgment

NEGLIGENCE - Motor vehicle accident - Car towing turning right across path of overtaking road train - Whether driver of car negligent in circumstances - Whether driver of road train negligent in circumstances - No question of principle ND

PROCEDURE [698] - Contempt - What constitutes - Breach of undertaking to Court - Release from undertakings - Anton Piller order - Permission for articles to be delivered to plaintiff and destroyed at its discretion - Articles valueless or owned by plaintiff - Defendant disappeared.

DEFAMATION - performance by school students - circumstances in which school authorities liable - publication by consent or approval - failure to stop performance - questions for jury.

Will - Distribution of assets - Death of beneficiary (being child of testator), leaving issue, during lifetime of testator - Entitlement of widow of beneficiary upon his intestacy - Executor in probate application discloses entitlement of other persons to one half of estate - Executor distributes to herself entirety of estate - Whether relevant limitation period in respect of claim by widow has expired - Which party bears the evidentiary burden in respect to such asserted expiry of the limitation period - Appropriate relief.