Cases and authorities

DEFAMATION - costs

CRIMINAL LAW - Sentence - use offensive weapon with intent to prevent lawful apprehension - exceptional case - whether full-time custodial sentence inevitable

RES JUDICATA - issue estoppel - earlier workers' compensation award - no issue estoppel against worker in later claim - no finding as to worker's capacity during period of later claim - WORKERS' COMPENSATION - issue estoppel

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

CRIMINAL LAW & PROCEDURE - three accused - joint & separate trials

CRIMINAL LAW & PROCEDURE - Restriction of access to public galleries - special transport arrangements for jury - CRIMINAL LAW & PROCEDURE - jury - evidence of jury's deliberations

Extension of time to commence proceedings'Ss 60G and 60I Limitation Act - Voyager/Melbourne collision

Negligence - master and servant - damages - economic loss - compensation for gratuitous services

Negligence - escaping horses - vicarious responsibility - damages - loss of earning capacity

Negligence - master and servant - credibility

CORPORATIONS LAW — Constitutionality — Not affected by evolving sovereignty of Commonwealth — Independent basis in s7 of Corporations (NSW) Act under State legislative power — NSW as a state did not cease to exist with change in its sovereignty — Indemnity cost orders against legal practitioner under Pt 52A r43 — Observations about repeated putting of variants of the same untenable submissions and the lack of deterrence in those cost orders.

DEFAMATION - Defences - Justification (Truth) - Qualified Privilege - Reasonableness - Comment - Unlikelihood of Harm - Damages

Appeal - Motor vehicle accident - Damages - Significantly impaired - Relationship between significant impairment and non-economic loss - Relationship between non-economic loss and economic loss - Principles of assessment of damages - global approach - Adequacy of reasons for judgment - Amendment of District Court Order - Slip rule - Test for application of slip rule

TORTS — Negligence — Damages — Causation — Medical retirement leading to future economic loss not attributable to pre-existing condition but to Appellant’s negligence which aggravated that condition — Tortfeasor gets no allowance for frailty of victim — Test in Purkess v Crittenden not satisfied but ample allowance for likelihood that Respondent’s pre-existing problems may come against her — Allowance in 25% discount rather than usual 15% for vicissitudes and in working life of 60 years rather than 65 years.

CONTRACTS - loan agreement - borrower mistaken as to property mortgaged - actual agreement not "radically different" to that presumed by borrower - non est factum not established - whether loan agreement harsh or unjust - whether unconscionable bargain - no error in Judge’s exercise of discretion in granting relief - Contracts Review Act 1980 (NSW) s7(1)

Griffiths v Kerkemeyer damages - interest on past damages - whether interest - whether slip in calculating interest - no question of principle. ND

PRACTICE — Supreme Court — Ex parte injunctive interlocutory proceedings resulting in Mareva orders but proceedings on merits otherwise not heard — Access sought to pleadings against wishes of the parties by non-party financial newspaper on public interest grounds — Practice Note No. 97 and Pt 67 r7 SCR — Relevant principles guiding discretion — Harman principle — Comparison with transcript.

NEGLIGENCE - Master and servant - Duty of care - Safe system of work - Employer's duty to provide - Scope of duty - Contributory negligence D

Negligence - motor vehicle accident - whether the trial judge erred in not allowing an adjournment application to plead contributory negligence - damages - ND

PRACTICE and PROCEDURE - transfer of proceedings commenced in District Court to Supreme Court - amount of proposed cross-claim in District Court proceedings exceeded jurisdictional limit - new pleadings of negligence and breach of fiduciary duty - proceedings on foot since 1990 and trial imminent - whether desirable to transfer proceedings to achieve trial of all matters in issue - whether Anshun estoppel applies if proceedings transferred - public interest in expediting proceedings - transfer refused.

Amendment of summons - discrete or continuing offence - s 6(1) of EO & P Act - sufficiency of particulars

Refusal of adjournment to call evidence - denial of procedural fairness and unreasonable exercise of discretion

Criminal Law - sentencing - manslaughter - provocation

Customs Act - Importation of prohibited imports - sentencing

Defamation - Damages

CONTRACT - implied terms - Law Society specialist accreditation scheme - contract between applicant and Law Society for accreditation - provision for re-assessment for unsuccessful applicant - applicant failed peer interview - whether implied term that written materials would be kept to allow proper re-assessment to take place

CRIMINAL LAW - sexual assault - failure of judge to sum-up on facts - duplicity - use of evidence of sexual assaults not charged - relationship evidence - delay in complaint - complaint direction - corroboration warning - rule 4 Criminal Appeal Rules - unreasonable and unsupported verdict

EVIDENCE - criminal trial - physical and sexual assault - "relationship evidence" - evidence should not have been admitted - EVIDENCE - criminal trial - physical and sexual assault - exclusion of evidence - Evidence Act 1995, s108(3)(b) - CRIMINAL LAW - trial - role of counsel

LEASES - Application for possession of premises. Lessee company operating brothel failure to pay rent. Lessee company deregistered pursuant to S. 601AB of the Corporations Law. Property of Company vests in ASIC. Claim in trespass against occupier of premises. Claim for relief against forfeiture.

CONTRACT - Parties - Offer and Acceptance - Terms of contract - Whether contract of employment or retainer of independent contractor. ND

Criminal law - appeal - inconsistent verdicts - new trial - discretion - effect of order.

TRUSTS - whether distribution of trust assets by will - testator trustee of discretionary trust where powers of trustee could be exercised by will - whether testator by will effectively exercised powers that he had as trustee of a discretionary trust - whether will exercised powers of trustee to determine distribution date determine entitlements of beneficiaries and amendments to list of beneficiaries - whether power to appropriate assets to beneficiaries exercised by will - TRUSTS - whether new trustee is bound to give effect to wishes of original trustee as set out in his will - clause inserted into trust deed by amendment required the trustee to give effect to the wishes of the original trustee as far as possible as evidenced by will - whether fetter on discretion - POWERS - powers of appointment - special power exercisable by will - whether power exercised - WILLS - special power of appointment - whether exercised by will

Criminal Law - Drug Offences - Restraining and Forfeiture Orders - Provision for "reasonable legal expenses" - application by NSW Crime Commission for provision for meeting alleged offender's reasonable legal expenses from restrained property - whether restraining order should be varied.

CRIMINAL LAW - jurisdiction of Court of Criminal Appeal in stated case - "question of law" Criminal Appeal Act 1912, s5AE - CRIMINAL LAW - procedure - summons must disclose essential ingredients of offence - CRIMINAL LAW - coercive orders, Land and Environment Court Act 1979 s41 - no requirement for judge to be satisfied of prima facie case against a defendant

CRIMINAL LAW - robbery - evidence - reliability - mental disorders - conduct of legal practitioners - incompetence of counsel - duties of trial judge

Criminal Law - Appeals - Crown appeal against sentence - inadequacy - Second trial - Constraint of second trial judge by sentence imposed after first trial - Misapplication of principles in R v Gilmore and R v Bedford

CRIMINAL PRACTICE & PROCEDURE - Appeal against conviction - Circumstantial evidence direction - whether warning required where evidence outside categories s165(1)(a) to (g)

CRIMINAL LAW- appeals - appeal against conviction - appeal against sentence - robbery - directions to jury - identification evidence - sufficiency of directions concerning photographic evidence - Jones and Dunkel direction - aggravating circumstances in sentencing.

Criminal law - appeal against conviction - offence abolished and replaced by new offence - unable to ascertain which offence committed because of date - Crown concedes ground of appeal - appeal allowed - necessary to re-sentence on other counts - cumulation and concurrence.

Suffocating with intent to murder - maliciously inflicting grievous bodily harm - mental illness defence - underlying schizophrenic condition affected by alcohol and drugs - extent to which appellant’s mental illness affected his capacity to reason - appellant did not know that what he did was wrong - Criminal Appeal Act 1912 s7(4) - ND.