Cases and authorities

Criminal Law and Procedure - Stay of Proceedings - Sexual Offences - Abolition of Offence by Statute - Absence of Retrospective Operation - Charges of Conduct Prior to Legislation - Particulars of Span of Dates in Indictment - Crown and Defence Postulate Limited Issue at First Instance - Passage of Years Since Alleged Offences - Loss of Corroborating Material Potentially Definitive of Crown or Defence Assertions - - Per Grove J: The specifications of dates in an indictment are immaterial allegations and parties cannot by consent make them so by mere pleading as distinct from dates becoming material in the course of evidence in a trial. A court cannot be required to try an issue which is incompatible with the law as current and applicable at a relevant time. - - Per Adams J (dissenting): At trial the Crown evidence should be limited to the assertions of conduct within the span of its specification. To permit otherwise would render the trial inevitably unfair. The nature of indecency in the context of sexual assault discussed. Comment upon the notion of equal justice with particular reference to gender. The reflection of community standards in legislation and otherwise and the perception of abuse of process considered. - - Per Smart AJ: An applicant for permanent stay of proceedings should be required to verify his position. This did not occur. The assertion that sexual activity took place a year later than alleged but at a time when such activity was unlawful does not provide foundation for exercise of discretion to order permanent stay of proceedings.

Contract - promise to give employee a share in the company - promisor not a party to appeal - no evidence of agency of promisor. ND

Workers Compensation - employment substantial or contributing factor.

CRIMINAL LAW AND PROCEDURE - Plea of guilty - Appeal - Setting aside conviction on appeal after plea of guilty

DEFAMATION - where plaintiff recovered in litigation on first publication and seeks to recover for second and third publications against different defendants including different printer and distributor - PRACTICE AND PROCEDURE - abuse of process - application for striking out of proceedings for defamation on grounds of abuse of process - whether re-litigation of same cause of action - Anshun estoppel - whether the previous action should have been amended to add claims based on reprints or to add additional defendants - where claims by plaintiff inconsistent with claims in previous proceedings - whether prospect of inconsistent findings - Pt13 r5, Pt15r26 Supreme Court Rules - PRACTICE AND PROCEDURE - estoppel - whether a defence of estoppel should be pleaded and tried separately rather than bring motion for dismissal as abuse of process - PRACTICE AND PROCEDURE - defamation - amendment of imputations - date of operation of amendment - Pt20 r4(5) Supreme Court Rules

APPEAL from decision of Magistrate - whether adequate reasons provided for findings of fact and law - appeal upheld

EVIDENCE - witness - refusal to be sworn or affirmed at inquest - claim of privilege against self-incrimination - whether 'lawful excuse'

APPEAL AND NEW TRIAL [108] - Practice and procedure - Suitors' fund - Discretion to grant indemnity certificate - Principles - Mistake in court system.

CORPORATIONS — Means of binding creditors to a pooling of assets and liabilities in a liquidation of two companies where affairs so intertwined they could not be separated and where creditors of each company could not be identified save that they were creditors of one or other — How may dissentients and non voting creditors be bound in absence of s411 scheme where this uneconomic — Use of s510 of Corporations Law and s1322 remedial orders — Alternative of s447A in combination with a compromise approved under s477(1)(c) and s477(2A) of Corporations Law — scope of s447A — are dissentients bound.

Severity appeal - Malciously damaging property with intent to cause bodily harm - Mental illness - Protection of the community

COSTS

Criminal law - sentence - delay before sentencing

Criminal Law - sentencing - accessory after the fact of murder.

Imputations - capacity - Harrison

CONTRACTS - Building, engineering and related contracts - Retention moneys and security - Performance bond - Rights of owner and builder - Whether set-off available. - INJUNCTIONS - Interlocutory injunctions - Whether questions of law should be decided.

CONVEYANCING [67]- Contract for sale- 1996 edition cl 20.6.3- Insufficient to authorise summons to be served on solicitor named in contract.

Highway authorities - Non-feasance/misfeasance rule

Professional negligence (medical) - Appeal attacking judge's fact finding

Costs - personal injuries - indemnity costs - verdict more favourable than offers and arbitration award - all matters in issue at trial - limited probability of party initiating re-hearing obtaining more favourable result - consideration of principles.

Severity appeal - Assault occasioning actual bodily harm

Severity appeal - Assault occasioning actual bodily harm - Special circumstances - Attack not premeditated

Criminal procedure - adequacy of directions after counsel's address - refusal of discharge of jury - exclusion of evidence of prior consistent statement

NEGLIGENCE - industrial deafness - independent contractor - deemed employment - duty of principal to contractor - direction by principal - co-ordination by principal - organisation by principal - interdependence between operation of the principal and activities of contractor - safe system of work - supervision - vulnerability to injury - ND

RESTITUTION - recovery on quantum meruit - reasonable remuneration - date from which interest calculated - recovery on quantum meruit - reasonable remuneration - relevance of letter demanding low remuneration to assessment. ND

Justices Act 1902 (NSW) - Appeal - Detinue - Bailment - Rejection of subject property by Trustee in Bankruptcy - Entitlement to bring detinue proceedings

PROCEDURE [81] - Supreme Court procedure - Jurisdiction and generally - Other matters - Proceedings in absence of public - Discretion of court - Protected witness party in civil proceedings.

CRIMINAL LAW - appeal - application to re-open appeal - denial of procedural fairness.

CRIMINAL LAW - defences - insanity - second limb of the M’Naghten test - CRIMINAL LAW - defences - diminished responsibility - requirement on trial judge to direct jury - Crimes Act 1900, s23A - CRIMINAL LAW - conduct of trial judge - no excessive intervention - CRIMINAL LAW - no fresh evidence

STOCK EXCHANGE - business rules - investigations - exchange may require member to cause officers to appear and give information - member refused to appear other than on conditions - whether failed to comply with business rules - held yes - whether exchange could require that that officers give confidentiality undertakings - held no. D

Negligence - whether driver of vehicle negligent when he continued to drive with passenger on the roof - whether the percentage of contributory negligence apportioned by the trial judge was too low - whether the damages awarded for non-economic loss, economic loss, future economic loss and future care by the trial judge were excessive. - ND

De Facto Relationships Act 1984 - challenge to Master's findings - whether appellant entitled to whole amount of proceeds from the sale of a jointly owned property - ND

Criminal Law - sentencing - manslaughter by unlawful and dangerous act.

PROCEDURE [553] - Costs - Costs of whole action - Generally - Where action settled - PROCEDURE [592] - Costs - Departing from the general rule - Nature of proceedings - Defence of legal right - REAL PROPERTY [416] - Easements - Extinguishment - Relevant considerations.

Contextual imputations - capacity - form - s 13 - insufficiency of particulars - mitigation of damages - bad reputation - insufficiency of particulars

Imputations - capacity - tests to be applied - newspaper article - fanciful and extreme construction

Evidence - Brief of evidence in prescribed summary offences - Contents of brief of evidence - Statutory construction - Regarding - meaning and effect - Ambit and plane of nexus required - Telecommunication intercept and listening device evidence - Warrants for telecommunication interceptions and listening devices to be included in brief of evidence

Particulars of republication - true innuendo - "metaphor"

Withdraw election - leave to commence proceedings - ss 151A & 151D WCA

CONTRACTS [120] - General contractual principles - Construction and interpretation of contracts - Commercial contract - Construction to make commercial sense of contract - LANDLORD AND TENANT [41] - Covenants - For renewal - Right to exercise option - Relief against loss of option for renewal - Principles applicable.

Motor vehicle accident - motor cycle - dispute as to driver - presumption of continuance - evaluation of contested evidence of admissions - ND

Negligence - Claim for damages for personal injuries suffered by sixteen year old girls in "All Terrain Vehicle" accident ("ATV") - whether there was an "allurement" within the meaning of the "children's cases" authorities - whether there was a foreseeable risk that the girls would take the ATV without permission in circumstances where the key had been left in the ignition.

LOCAL GOVERNMENT - credibility of evidence - building certificate - fire safety - ND

DEFAMATION - Capacity of material to carry contextual imputations - General and specific imputations

CORPORATIONS — Giving two creditors an advantage over the others under s450 of the Companies (NSW) Code or s564 of the Corporations Law where the two creditors funded risky, complex and expensive litigation — How is risk assessed over continuing period of litigation — Hindsight — Should 100% of the recovered proceeds go to funding creditors or something less — Relevance of one of them withdrawing from a commitment to contribute but continuing to contribute thereafter — Meaning of "indemnity" includes actual contribution whether pre-committed or not — also s450 includes preservation of property being right of action — Relevance of risk of cost order against non-party funders of litigation — Relevance and foreseeability of litigation risk — How and when ascertained — Relevance of the two non-funding creditors not having been asked to fund but generally aware of litigation and standing passively by — no realistic prospect would have funded despite assertions otherwise — All or nothing approach appropriate rather than valuation of a chance — Relevance if at all of other sources of recovery for non-funding creditors — joinder of parties.