Cases and authorities

TRADE PRACTICES - Failure by vendor of Pizza Haven franchise business to disclose to purchaser that development consent had been granted for a Pizza Hut business in the area - non-disclosure held to constitute misleading or deceptive conduct in breach of s 52 Trade Practices Act 1974 (Cth) - materiality of undisclosed information - held to be immaterial that undisclosed information was known by some members of the public - Appeal allowed to the extent of reducing the pre-interest figure for that component of damages which reflects the difference between the price and value by $5,000, and reducing the figure for accounting fees by $800 - ND.

On defendant’s application, by way of Notice of Motion, for access to Listening Device Act 1984 warrants - T7615

PROFESSIONAL NEGLIGENCE - Specialist medical practitioner - Gender reassignment surgery - Male to female transsexual - Whether breach of duty to warn of material risks - Whether breach of duty in performance of surgery - Whether res ipsa loquitur applicable - contractural term(s) - Whether breach of contract - Whether cause of action in assault available.

CORPORATIONS — Statutory demand and s459G of Corporations Law — Application to set aside served out of time depending on date of service of statutory demand being established — How established — One application by way of summons used to set aside two statutory demands in relation to separate and distinct debts — Consequent non-compliance with s459G — Requirements for supporting affidavits.

On application for adjournment - observations in respect of the point of trial and defendant's "reservation" of its position as to further cross-examination - T7601

CORPORATIONS [319]- Winding up- Production of documents- Extent to which officer might be ordered to produce.

CRIMINAL LAW - Re-determination of life sentence.

Admissibility of MFI 121 - documents in relation to witness Jason Lilburn

Practice and Procedure - Cases claims - Application following judgment for leave to file cross-claim

CONVICTION APPEAL - self-defence - sexual assault by deceased - profound psychological effect on appellant - belief that would be further sexual assault - appellant's later decision to kill - killing carefully implemented - role of immediacy of threat to accused - no realistic hypothesis that appellant could have believed on reasonable grounds that killing necesary in self-defence. Viro v The Queen (1978) 141 CLR 88, Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 considered - R v Rogers (1996) A Crim R 542 referred to. SENTENCE APPEAL - no error shown.

Appeal against sentences - sentences manifestly inadequate - break and enter to commit a felony and break, enter and steal and associated assault - common assault, use of offensive weapon, kidnapping and escape from custody - drug and alcohol abuse - decline of Magistrate to deal with charge until previous outstanding charge had been disposed of - special circumstances.

Criminal law - aggravated break enter & steal - severity of sentence - parity of sentence - disparity between co-offenders - criminal records

MALICIOUS WOUNDINGS - conviction and sentence appeals - one conviction appeal upheld because of conceded misdirection as to appellant's election not to give evidence - RPS v The Queen (2000) HCA 3 referred to - other conviction appeal dismissed - no error in declining to give a direction as to the unreliability of particular evidence - Evidence Act s 165, R v Lewis (CCA, 8 September 1998) and R v Flood (1999) NSWCCA 198 referred to - no error in declining to give a direction as to an alternative case of self-defence - no miscarriage of justice because appellant asked in cross-examination whether he thought a Crown witness was motivated to tell lies, although question should not have been asked - R v Uhrig (CCA, 24 October 1996), Palmer v The Queen (1998) 193 CLR 1, R v Javanovic (1997) 42 NSWLR 520, R v AH (CCA, 27 November 1997), R v GET (CCA, 15 June 1998) referred to - jury's verdict not unreasonable or unsupportable having regard to the evidence - M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439, Fleming v R (1998) 158 ALR 379, R v McKnoulty (1995) 77 A Crim R 333 referred to - new trial as to one offence and need for resentencing on other offences.

NEGLIGENCE - damages for nervous shock - Compensation to Relatives Act 1897 (NSW) - trial judge found that the defendant had breached its duty of care to provide adequate warning of the road closure at which the plaintiff's son died when his motor cycle collided with a chain wire fence. - Appeal against decision by the trial judge that the breach of duty was not a contributing cause of the accident - appellant contended that the trial judge should have found that the defendant owed a higher duty of care to the deceased and that there was a causal link between the breach of that higher duty and the accident. - On appeal trial judge held not to have imposed too low a duty on the defendant - trial judge held not to have erred in finding that the plaintiff had failed to discharge the legal burden of proof that adequate warning of the road closure would have prevented the accident. ND

PERSONAL PROPERTY [10]- Tenancy in common- Co-owners must each have possession as of right not merely by agreement- REAL PROPERTY [315]- Partition- Whether company title home unit subject to statutory trust for sale- WORDS & PHRASES- "Tenancy in common".

Corporation - Information Memorandum - whether misleading or deceptive - s995, s611 and s1324(1) Corporations Law.

LOCAL COURT - Civil Claim - stated case

Practice and Procedure - Jurisdiction to review or rehear issues

Family Law. Application under the Property Relationships Act for adjustment of the parties' property interests. No matter or principle.

Compensation to Relatives - deceased's former drug abuse - likelihood of recidivism - widow's likelihood of remarriage and working - percentage of dependency - basis of calculating loss of income - superanuation calculation

On request by defendant for production to the Court of files containing Listening Devices Act warrants - T7424

Defamation - public interest - fair protected report - truth - qualified privilege - contextual truth - comment - damages.

ADMINISTRATIVE LAW - construction of Parliament members' guide to entitlements, facilities and services - warrants - air charter travel - 'transferable' - D

Defamation - imputations - difference in substance - SCR Pt 67 R 11(3) - form of imputations - degree of specificity required - capacity of matter complained of to convey imputations.

Criminal law - receiving - severity of sentence

Landlord and Tenant. - Order for costs in proceedings Consideration of basis of assessment. Whether it should be on a party and party or indemnity basis. Consideration of a clause in a lease dealing with costs. Held only entitled to costs on party and party basis. - - Mortgages - costs and other matters.

CONVEYANCING [184]- Caveat- Claim for rescission of surrender of lease- Not an interest in land to support caveat - LANDLORD & TENANT [99]- Retail lease- Effect of extension to five years under s 16(2) of Retail Leases Act runs foul of Real Property Act, s 53.

Application for leave to appeal against decision of Local Court - order made in Local Court under De Facto Relationships Act 1984 - refusal to make costs order - jurisdiction of Supreme Court to entertain application for leave to appeal - De Facto Relationships Act 1984 - Local Courts (Civil Claims) 1970 - Justice Act 1902 - application refused.

Application for access - subpoena to Police Service - cassette tapes & transcripts - Telecommunications (Interception) Act 1979 (Cth.) - Telecommunications (Interception) Act 1987 (NSW) - application refused

Defamation - interrogatories - adequacy of answers - relevance - whether plaintiff has sued publishers of other allegedly defamatory imputations - claim for aggravated damages - relevance of interrogatories to comment defence - discovery - adequacy of affidavit of discovery - obligations of parties in respect of affidavit of discovery - obligations of solicitors in respect of affidavit of discovery - Holding List - implications of consent to matter being placed in Holding List - obligations on parties proceedings in Defamation List - necessity to prepare with diligence - purpose of Defamation List - privileges accorded to parties to defamation proceedings - duties attendant thereon.

SENTENCING - offender sentenced on basis he only stood by - co-offender later sentenced on basis co-offender was the one who only stood by - could not be justifiable sense of grievance - Postiglione v The Queen (1997) 189 CLR 295 referred to - pre-sentence custody taken into account but sentence not backdated - no statement of reasons for not backdating - practice to backdate or state why not emphasised - R v McHugh (1985) 1 NSWLR 588, R v Deeble 19 September 1991, unreported - sentence nonetheless appropriate - minor adjustment made.

Criminal law - sentencing - robbery in company - invluntary and unintended assistance - remorse - rehabilitation - old offence - principles of sentencing der Crimes (Sentencing Procedure) Act - sentencing options - suspended sentence

Criminal Law - sentencing - murder.

PRACTICE AND PROCEDURE — Suitors Fund Act — Necessary elements for certificate pursuant to s6 — Is the Strata Titles Board to be treated as having made a "decision" of "a court" — Factors pertaining to exercise of this Court’s discretion to grant a certificate.

INTERLOCUTORY JUDGMENTS - when issues can be re-litigated. DEFAMATION - imputations.

Admissibility DNA evidence

Insurance - Subrogation and Industrial All Risks Policy. - Loss of profits' claim by one insured paid by insurer. Subrogated proceedings brought by insurer against co-assured based upon contractual arrangements between them for sale of business. Loss of profits caused by matters separate from events giving rise to subrogated claim. Held that express waiver clause prevented claim. Consideration of principles of circuitry of action.

Criminal law - drug offences - sentencing - effective late plea of guilty - community service order - double jeopardy

Criminal law - appeal - asserted miscarriage from failure to discharge jury - inconsistent verdicts - acquittal of complicity in possession of firearm practically inconsistent with guilt as accessory to malicious wounding by shooting - principles applicable to ordering new trial discussed.

NEGLIGENCE - Breach of duty - Medical practitioner - Duty to warn of possible adverse effects of proposed treatment - Extent of duty - No question of principle - ND

CORPORATIONS [238][287]- Winding up- Creditors voluntary winding up meetings convened- Quaere whether valid- Opposing application for provisional liquidator- Dispute to be resolved in least costly way.

Appeal against conviction - complaint evidence - sexual assault history taken by doctor - evidence as to truth of history - discussion of R v Welsh - restriction of cross-examination under s 409B(3)(c) Crimes Act - incompetence of counsel - miscarriage of justice