Cases and authorities

MENTAL HEALTH - Protection, management and administration of property - Application to remove Protective Commissioner and to substitute a trustee company - Allegations of breach of duty by Protective Commissioner, and breakdown of relatioship with protected person's mother and primary carer - Nature of Protective Commissioner's duty - No breach of duty sufficient to show unfitness of Protective Commissioner, but new manager appointed in interests of protected person because of breakdown of relationship.

Practice & Procedure - application to transfer proceedings on "interests of justice" ground - balance of interests and procedural benefits favouring local court.

The appellant was found guilty of two murders. On a petition under s 474B of the Crimes Act 1900, pursuant to s 474C(1)(b) of that Act the case was referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. Whether leave to appeal as to questions of fact or grounds of appeal as to which appropriate objection had not been taken at the trial referred to but not decided: R v Johns (1999) NSWCCA 286 referred to. Numerous grounds of appeal were considered, almost all specific to the facts in the appeal. Pollitt v The Queen (1992) 174 CLR 558 and R v Clough (1992) 64 A Crim R 451 considered in relation to instructing the jury to consider specific matters which could reasonably be regarded as undermining the credibility of a prison informer. Pollitt v The Queen referred to in relation to corroboration where there is a possibility of joint fabrication. Ireland v The Queen (1971) 126 CLR 321 referred to in relation to admissibility of an interviewing police officer's statements to the person being interviewed of his beliefs and opinions. The Court declined to receive further written submissions delivered without leave after judgment was reserved.

VENDOR AND PURCHASER - vendor could remain in possession after completion until specified date - vendor not prepared to complete unless purchasers let her stay in possession for a longer period - purchasers absolved from obligation to complete - Foran v Wight (1989) 168 CLR 384 applied.

PRACTICE - Application to re-open after conclusion of hearing - Relevance of mistake

Criminal Law - sentencing - murder.

Criminal Law - sentencing - murder and conspiracy to murder - whether in worst category of cases - whether offender entitled to lesser sentence for assistance to authorities.

DISTRICT COURT - damages under Workers Compensation Act - Jury - Discretion to dispense with jury - nature of discretion - D

APPEAL AND NEW TRIAL - Leave to appeal - Application for dismissed - Subsequent application to revoke order for dismissal and to grant leave - Whether permissible - HIGHWAYS - Negligence and nuisance - Injuries to user of highway - Liability of highway authority - In respect of what matters - HIGHWAYS - Negligence and nuisance - Injuries to users of highway - Liability of highway authority - Nonfeasance and misfeasance - D

COURTS - Practice and procedure - Judgments and orders - Orders not passed and entered - Power to vacate and vary - Whether appropriate case. D

Negligence - personal injury - asbestosis - stevedore - Crimmins duty of Australian Stevedoring Industry Authority - contribution - Sanderson costs order - failure to abandon hopeless grounds of appeal - D

Sentencing - Crown appeal - hardship of custodial sentence to prisoner - hardship to family member - Drug Misuse and Trafficking Act 1985 s25(1) and s25(2) - the medical condition of the accused - paraplegia bringing complications in day to day living arrangements - capacity of the Corrections Health Service to care properly for the accused - Executive’s duty of care towards prisoners under its control.

REASONS - Admissibility - photographs - discovered by plaintiff - relevance - s 55 Evidence Act 1995 (NSW)

EQUITY - trusts - resulting trusts - amendments to trust instrument fail to deal completely with beneficial ownership - gap in beneficial ownership filled by resulting trust to beneficiaries of unamended trust SUPERANNUATION - construction of superannuation trust deed by reference to surrounding tax circumstances CORPORATIONS - board of directors - informal decisions

CONVEYANCING [184] - Torrens system - Caveats against dealings - Who may lodge - Person who lodged earlier caveat - Whether interest claimed in earlier caveat was the same interest - Circumstances in which leave to lodge will be granted.

Defamation - Capacity of material to carry imputations

Defamation - Capacity of material to carry imputations

REASONS - Admissibility - press cuttings - public interest - ss 15 & 16 Defamation Act 1974 - qualified privilege

Various documentary tenders by defendant

Crown appeal against sentence - (by majority) no error of principle by sentencing judge - sentence not so inadequate, bearing double jeopardy principle in mind, as to warrant interference on appeal

Motor Accident - Damages - Assessment of past and future economic loss - Indemnity Costs

ADDRESS FOR SERVICE - address of post office - not compliance with Pt 9 r 6 - Sarikaya v Victorian Workcover Authority (1997) 80 FCR 262 applied - APPEAL - extension of time - decision below unarguably correct - grounds of appeal made no sense - extension of time refused - appeal struck out. ND

No question of principle

CRIMINAL PRACTICE & PROCEDURE - Sentencing - murder - Retrial - Discount for onerous bail conditions

ASSOCIATIONS AND CLUBS [15] - Expulsion, suspension and disqualification - Exercise of powers - Generally - Whether internal appeal from Judiciary Committee available to disappointed complainant.

Directions

TORTS - negligence - motor vehicle accident - plaintiff appeals from finding on damages - where conflicting medical reports at trial and no oral expert evidence - Motor Accidents Act 1988, ss70A and 79 - NR

Appeal - application to extend time - new hearing ordered in appeal from Master to single judge - fresh evidence - whether appropriate to direct that matter be determined by different Master. ND

EVIDENCE - Admissibility - Hearsay - Where hearsay evidence admissible under Evidence Act 1995, s64 - Discretion under Evidence Act 1995, s135(a) - 'Unfairly prejudicial' - Whether denial of opportunity to cross-examine maker of statement admitted as exception to hearsay rule unfairly prejudicial to plaintiff - TORTS - Negligence - Duty of Care - Duty of occupier - Unstable step in residential premises - Where plaintiff injured while moving refrigerator - Where no evidence that defendant knew of or had reason to suspect defect existed - Whether foreseeable risk of injury - NR

Defendant’s application to re-open its case

Wrongful arrest - false imprisonment - alleged breach of apprehended violence order (AVO) - police officer's belief at time of arrest - resulting injury - damages

Held: on the facts, no breach of duty of care towards prisoner injured whilst attempting to escape from police custody

Victims Compensation Tribunal - appeal from - orders of District Court - Certiorari

Mortgage - default - whether time of essence - waiver - ND

Evidence Act 1995 - evidence of settlement negotiations - application of s 131 to claimed confidentiality - evidence admitted

Strike out application - Cause of action in negligence as an alternative to defamation

Contract - Contract for expert determination - Principles governing intervention of Court in determination of expert - Need to establish a mistake amounting to a breach of contract - No relevant mistake established. - Evidence - Circumstantial evidence - Evidence from which inference may be drawn - Distinction between inferences and hypotheses.

Criminal law - murder - sentence - parity - accessory and principal.

Motion to set aside subpoena - Costs

On admissibility of documents tendered by plaintiff - qualified privilege - T8348

Appeal against Magistrate's decision - Sufficiency of Stated Case

Appeal from Master - Self executing order striking out statement of Claim for non-compliance - Admissibility of fresh evidence - whether hearing on the merits - whether special circumstances required

Directions