Cases and authorities

Appeal from Local Court under Local Court's (Civil Claims) Act 1970 - Appeal limited to error in point of law - Relationship between Local Court's (Civil Claims) Act) 1970 and Part V of Justices Act 1902 - Section 69 of Local Court's (Civil Claims) Act 1907 not repealed by Justices Legislation Amendment (Appeals) Act 1998 - Extension of time for appealing - Factors relevant to grant or refusal of leave

Imputations - capacity - form

A decision of fact.

Criminal Law - sentencing - particular offences - fraudulent misappropriation, Crimes Act 1900 s.178A - sentence not manifestly inadequate. - Criminal Law - sentencing - guilty plea.

CRIMINAL LAW - sexual assault - appeal against conviction - unsafe and unsatisfactory verdict - unreasonable conviction - miscarriage of justice

CRIMINAL LAW - sentencing - sentencing guidelines - guilty plea

CRIMINAL LAW - affray - maliciously inflict GBH - assault occassioning ABH - appeal against convictions - verdict - whether unreasonable or cannot be supported - EVIDENCE - admissibility of identification evidence - no identification parade held - highly probative value outweighed prejudicial effect - CRIMINAL LAW - appeal against sentence - whether manifestly excessive - special circumstances - whether appropriate to impose cumulative sentences - relationship between minimum and additional terms

Murder - appeal against conviction - application for leave to appeal against sentence

CRIMINAL LAW - dishonesty offences - appeal against conviction - CRIMINAL LAW & PROCEDURE - inadvertent and potentially prejudicial event - no application for discharge of jury - whether direction overcame prejudice - EVIDENCE - statements of deceased witness - paper committal - notice for attendance of witnesses - non appearance by accused at committal - whether statements admissible at trial

Stamp duties - loan security - up stamping - statutory construction - Stamp Duties Act 1920 (NSW) s 84(4) - ND

Verdict unreasonable - 30 year delay - uncorroborated complainant - conduct inconsistent with documents - flashbacks

ADMINISTRATIVE LAW [109]- Appeal- Extent to which decision of Tribunal should be respected - MENTAL HEALTH [9]- Protection order- Appeal from Guardianship Board- Incapable person empowering son- Son validly using power of attorney for both father and son's benefit- Whether conflict of interest sufficiently serious to pass over son- Tribunal could properly find affirmatively.

APPEAL from Magistrate - decision under Contractors Debts Act 1997 - whether the rights of a subcontractor to recover moneys under the Act extend to recovery from a security bond from bank - whether the bank guarantee was "money that is payable or became payable to the defaulting contractor" by the proprietor - whether there was a statutory obligation on the proprietor to call upon the security - appeal upheld - STATUTE - Contractors Debts Act - interpretation - whether term "money" included a security bond from bank - whether Act should be construed purposively - no ambiguity in the term "money"

CORPORATIONS — Selective reductions of capital to acquire minority — Objectors allowed costs on similar principles to scheme of arrangement and now compulsory acquisition following conventional takeover — Preclusion of recovery where objection frivolous or time wasting.

DAMAGES - non-economic loss - past economic loss - ND

Appeal decision on ground of inadequate amount. - Future wage loss inadequate. - Age sixty terminal point of employment instead of age sixty-five.

CONVEYANCING [161] - Torrens system - Indefeasibility of title - Exceptions - Adverse possession of others - After certificate - NSW - Peaceable possession - Meaning - Registered proprietor claims to have refrained from curial action during limitation period through fear.

CONTRACTS [146]- Harsh and unconscionable contract- Bank persuading customer to take out loan to fund unviable project- Application fails on the facts. PROCEDURE [24]- Cross-vesting- Federal Court with no jurisdiction to hear one aspect of case- Whether Supreme Court can deal with that aspect under Federal Courts (State Jurisdiction) Act, 1999.

Sexual assault - adequate warning as to reliability of complainant’s evidence - findings of fact on which the judge relied - verdicts reasonable - not incumbent upon trial judge to detail each and every error of witness - no error in determining that appellant’s ERISP answers were "not really denials" - Longman warning - judicial direction under s405B Crimes Act - ND.

Negligence - plaintiff’s accident on wharf boarding vessel - defects in wharf which should have been repaired in owner’s exercise of due care - contributory negligence - plaintiff’s extensive experience in and around wharves - plaintiff’s proper regard for his own safety - damages - economic loss - loss of earning capacity - plaintiff’s opportunity since accident to find gainful employment consistent with medical condition - whether contractual indemnity novated by a subsequent letter - plaintiff’s failure to sue the Commonwealth under the Safety, Rehabilitation and Compensation Act 1988 not relevant - ND

Application for leave to appeal against refusal to order security for costs - whether fact that proceedings would be discontinued if an order for security were made is a relevant consideration - where similar application for stay made one year earlier - application dismissed.

Appointment of trustee - s 66G Conveyancing Act - Summary judgment against second defendant

Family Provision - Claims by adult grandchildren - Whether or not plaintiffs were partly dependent upon testator - Residence of testator was divided into two separate flats - Testator and her husband lived in one - Plaintiffs and their parents lived in the other - Frequent visitations between the two flats - Testator provided gifts and benefits to plaintiffs and their parents - Where plaintiffs were residing with their own parents, and where it was their own parents who had the primary responsibility for the maintenance, care and support of the plaintiffs, such gifts and benefits, are not sufficient to establish that the plaintiffs were partly dependent upon testator - Whether there are factors which warrant the making of the application - Whether either or both plaintiffs have otherwise established relevant need - Whether, in any event, either Plaintiff has established an entitlement to an order for provision

Developmentally disabled - Dismissal of charge for development disability - Error

Criminal law - Sentence - Robbery in company - Juvenile

Application to remit referred matter to Referee pursuant to Part 72 Rule 13 of the Supreme Court Rules for further consideration and report on basis of failure to afford natural justice.

Sentence Appeal from Drug Court - Rehearing - Admission of further evidence on special grounds - power to impose suspended sentence

Sentence Appeal from Drug Court - Final Sentence did not take special circumstances into account including accumulation of sentence. Post sentence events and rehearing

Criminal law - conspiracy - sentence - no adjustment to be made

Severity appeal - Aggravated dangerous driving occasioning death - Alcohol problem

Sentence appeal - Break, enter and steal - Larceny - Principle of totality - Principle of parity

Workers Compensation Act - Interpretation and application of s 52A and s 54 - meaning of "discontinuance of payments"

Workers Compensation Act s 52A, s 54 Schedule 6 cl 14 - Construction and application before and after 1998 amendments

Statutory interpretation - amendment of Motor Accidents Amendment Act 1995 - scope of third-party policy - meaning of "injury" - whether injury caused by a "defect in the vehicle" - D

Workers Compensation Act (1987) - Meaning of "incapacity" in s 16

DAMAGES - Franchisees entitled to such compensation as would put them in position they would have been in if a website had remained an asset of a certain fund - Franchise agreements provide option for renewal on terms of Franchistor's then standard form of agreement - Franchisor introduces new form of agreement precluding any claim by Franchisees to website - Whether damages thereby limited to period of current agreements.

Criminal law - application for leave to appeal against sentence - asserted error in assessing comparative culpability with courier co-accused - no error.

Severity appeal - Assault occasioing actual bodily harm

Practice and procedure - default judgment - variation of judgment - enforcement of covenant for vacant possession - appropriateness of writ for possession of company title unit - s 19 Supreme Court Act 1970 - Pt 42 r 4 Supreme Court Rules - whether right of occupation of company title unit vested in registered holder of shares over trustee in bankruptcy of registered holder's estate - s 58 Bankruptcy Act 1966 (Cth) - whether right of occupation vested in registered holder over chargee of shares.