Cases and authorities

CRIMINAL LAW - Appeal against conviction - Sexual intercourse with child under 10 - Whether miscarriage of justice - Whether verdict unreasonable - Where no medical evidence because complainant previously sexually abused by another offender - Where inconsistencies in complainant’s evidence - Where trial Judge suggested to jury complainant’s allegations beyond capacities of child her age - Where no objection raised at trial - Whether misdirection - Criminal Appeal Rules, r 4.

Workers Compensation - two injuries but single incapacity - apportionment

Equity - Unconscionable conduct - Undue influence

Criminal law - offences against the person - obscene phone calls - appeal against conviction - leave to appeal against sentence - whether the trial judge failed to properly direct the jury regarding the elements of the offences charged - whether the convictions were unreasonable and unsupported by the evidence

Crown appeal against sentence - maliciously inflict grievous bodily harm - reckless driving of vehicle in direction of victim

Refer attached

PARTNERSHIP - no written partnership agreement - partner negligent but not gross or culpable negligence - whether implied term that defaulting partner indemnify the others - whether other partners entitled to contribution

Claim for indemnity under an income protection policy of insurance, which policy was held to be a life policy within the meaning of the Life Insurance Act 1995, upheld.

LEGAL PRACTITIONERS - confidential information received by solicitors in settlement of proceedings between first clients and defendant - Second client brings proceedings seeking similar relief against same defendant - Issues almost identical - Whether real and sensible possibility of inadvertent use of confidential information by solicitors in continuing to act for second client.

Costs - misconceived summons

Magistrate courts - Justices Act s65 - leave to withdraw information - autrefois acquit - substitution of charge - abuse of process

Family provision - Claim by adult son - Deceased had four children - Deceased by his will divided residue into four equal parts and gave one part to each of two children and one part to children of each remaining child - Financial and material circumstances of Plaintiff - Plaintiff has demonstrated no relevant need - Competing claims of other children and of infant grandchildren of Deceased

Murder - Robbery with corporal violence - Assault occasioning actual bodily harm - Direction to jury - Unsafe and unsatisfactory verdicts - Manifestly inadequate sentence

Manifestly inadequate sentence - character - double jeopardy - manslaughter

CRIMINAL LAW - appeals - appeal against conviction - sexual assault - multiple count sexual assault - uncorroborated evidence of complainant - conflicting or inconsistent verdicts - verdicts unreasonable or incapable of being supported having regard to the evidence - lack of probative force - verdicts of acquittal.

Whether verdict on second count unsafe or unsatisfactory where first count withdrawn from jury

FAMILY LAW - de facto relationships - De Facto Relationships Act 1984, ss 17 and 20 - where relationship existed for less than two years - adjustment of property interests - contributions - contribution prior to commencement of relationship NR

ADMINISTRATIVE LAW - Judicial review - Denial of natural justice - Void/voidable decisions - Discretion to set aside decision. - LEGAL PRACTITIONERS - Legal disciplinary authorities and proceedings - Legal Services Commission of New South Wales - Allegations of professional misconduct - Commissioner’s decision to institute proceedings against practitioner before Legal Services Tribunal in contravention of natural justice - Consequences of contravention - Whether decision void - Court’s discretion to set aside decision. - LEGAL PRACTITIONERS - Professional misconduct - Whether misconduct in instituting proceedings on clients’ behalf - Whether proceedings brought for improper purpose - Whether improper to bring proceedings to terminate grant of legal aid of opponents in litigation - Whether misconduct in giving inaccurate evidence - Requirement of knowledge. - PROCEDURE - Stay of proceedings in disciplinary tribunal - Abuse of process of tribunal - Breach of natural justice - Whether proceedings foredoomed to fail - Delay in making complaint and instituting proceedings - Improperly obtained evidence - Whether pending contempt proceedings raise same issues as legal disciplinary proceedings. - PROCEDURE - Discovery - Use of documents for collateral or ulterior purpose - Implied undertaking by party to whom documents produced - Use in making a complaint to legal disciplinary authority. - PROCEDURE - Parties - Joinder of parties - Where complainant applied during hearing of appeal to be joined as party to proceedings between legal practitioner and Legal Services Commissioner - Complainant’s role under Legal Profession Act 1987. - PROCEDURE - Amicus curiae - Where complainant applied during hearing of appeal to be heard as amicus curiae in proceedings between legal practitioner and Legal Services Commissioner. D

NEGLIGENCE - Liability of State for injury sustained in grounds of State primary school - Injury sustained by pupil of school playing in school grounds outside school hours - Pupils and parents previously advised school grounds "out of bounds" outside school hours - Pupil injured when fell while playing on a "fort" erected in school grounds - At trial the pupil's case was that the "fort" was dangerous because the ground surface around and under it was inadequate to provide "a soft landing" in the event of a child jumping or falling from it. - D

NEGLIGENCE - employer/employee - nurse slips on floor in nursing home - assessment of damages

CRIMINAL LAW - appeals - appeal against sentence - appeal against conviction drug offence - guilty plea - setting aside guilty plea - incorrect or improper advice from legal representative - miscarriage of justice

Sentence - murder - stabbing to avoid apprehension - plea of guilty - young offender - first offence

CRIMINAL LAW - sentencing - double murder

MENTAL HEALTH [3]- Guardianship- Extent of power of Guardianship Tribunal- What guardianship entails- Costs on appeals- How borne.

Negligence - Statutory duty - Building and construction - Employer and employee - Independent contractor - factors to distinguish - Duty of care to independent contractor - Application of regulations to head contractor - Breach of statutory duty - Contributory negligence - Person who if sued would be liable - Coextensive duties owed to and by company and employee/controller of company and operations - Circuity of action - Action per quod servitum amisit - Measure of damages - Damages

No question of principle.

JUDGMENT AND ORDERS - corrections under slip rule - Supreme Court Rules, Pt 20 r10(1) - RESTITUTION - repayment of judgment debts - where successful appellant had already paid money to the respondent - NR

Practice and Procedure - costs - interlocutory proceedings derived by consent orders after extensive history

EQUITY - Application for specific performance of Share Sale Agreement between plaintiff and defendant company pursuant to which deposit has been paid and failure to complete. EQUITY - Fiduciary Obligations - Application to set aside Share Sale Agreement - Whether director caused the defendant company to enter into the Agreement in breach of fiduciary duty - Whether plaintiff was knowingly concerned or an intentional participant in the breach.

Corporations Law - application to set aside statutory demand as an abuse and as an unreasonable failure to compound the debt. Summons dismissed.

DISTRICT COURT PRACTICE - requisition of jury - referral of matter to arbitration - power of court to refuse reference to arbitration - discretion of court to refuse reference to arbitration when jury has been requisitioned - ND

Workers' Compensation - redundancy - whether, by accepting offer of redundancy, the worker rejected suitable employment - whether the worker's action was unreasonable - meaning of "obtains suitable employment" discussed but not determined.

NEGLIGENCE - professional negligence - solicitor failed to discover defect in title - respondents relied on negligent advice in purchasing property - LIMITATION OF ACTIONS - whether cause of action in tort complete when damage suffered at time of purchase or upon discovery of defect in title - defect in title would have been revealed by normal conveyancing procedures - time ran from completion of purchase - not from discovery of loss - Limitation Act 1969 (NSW)

Family Law - De facto relatioinships - Proper way in which to make orders for adjustment of property - Amount awarded by Master clearly justifiable - De Facto Relationships Act 1984, s.20

CORPORATIONS — s440A(2) adjournment — Relevant considerations — Deed of Company Arrangement.

DAMAGES [10] - General principles - Recovery of costs - Difference between costs incurred and costs recovered - PROCEDURE [574] - Costs - Departing from general rule - Order for indemnity costs - Factors relevant to exercise of court's discretion - Hopelessness of proceedings - Offer of compromise.

EQUITY [135]- Trustee- Conflict- Whether trustee should appoint self to be a director of company controlled by trust MENTAL HEALTH [8]- Administration of property- Whether manager should be appointed director of incapable person's company.

PROCEDURE [109] - Supreme Court procedure - Practice under Supreme Court Rules - Setting down for trial - Expedition - Equity Division - Whether trial directions should be given during mediation.

Summary judgment - dismissal for want of prosecution

Employment law - Crown employee - on probation - disciplinary proceedings - resignation - implied term in contract of employment of mutual confidence and trust - breach - whether constructive dismissal - bar to compensation for dismissal

Equity - Constructive trust - life tenant paying principal and interest due under mortgage on property subject to life estate. Principles upon which the remedy of constructive trust will be applied. Whether it is necessary to have a triggering mechanism or merely to fall within the rubric of unconscionable conduct. Finding of constructive trust as to 45% of the subject property.

Family Provision - Claims by three adult children and former wife - Small estate - Entire estate left to widow - Assertion by Plaintiffs that marriage of Deceased to Defendant was a marriage of convenience or a sham marriage - Deceased transferred to Defendant a one half interest in matrimonial home - Financial and material circumstances of Plaintiffs - Whether there are factors which warrant the making of the application by the former wife of the Deceased - Competing claims of Defendant

CRIMINAL LAW - appeal - verdict - whether unsafe or unsatisfactory - role of appellate court - conduct of legal practitioner - incompetence of counsel - relevant principles - sexual offence - requirement of acts constituting offence of a sexual nature on a number of occasions - attempting to pervert the course of justice - duplicity

CRIMINAL LAW - statutory requirement of "recklessly" - subjective test applicable - CRIMINAL LAW - statutory interpretation - Marine Pollution Act 1987 (NSW), ss8(2) and 8(3) - "damage" - "recklessly".

INTERLOCUTORY APPEAL - offences alleged involving two complainants - application for separate trials as to each complainant - refused - admissibility of evidence of one complainant as to the offences involving the other - possibility of collusion - no error of principle or unreasonableness in judge's decision.