Cases and authorities

Criminal law - Crown appeal - parity - restitution - discretion to dismiss

MURDER - appeal against conviction and sentence - Jones v Dunkel direction - inconsistent evidence - alternative scenario put to jury - motive to lie - taped confessions - agent of the state - discharge of the jury - unreasonable conviction

Medical - medical negligence - specialist general surgeon - alleged failure to warn about possible post-operative complication - dispute about whether such complication occurred - plaintiff's history to several treating doctors inconsistent with evidence given at much later trial - importance of admissions - trial Judge's findings overturned - (ND).

On application to adjourn cross-examination of plaintiff - T7202

CORPORATIONS [340]- Extension of time- Change of type- No extensions of one month period under s 164 of Corporations Law possible.

On defendant's Notice of Motion - SCR Pt 31 r 2 - in relation to "the Elomari tapaes" - proceedings pending in Court of Appeal

Appeal against conviction - did dishonestly destroy property with a view to making a gain - possibility of spontaneous combustion or electrical malfunction - failure to give directions to the jury - failure to discharge jury - inadvertent contact of solicitor with two members of the jury - failure to disclose contents of an MFI.

CRIMINAL LAW - murder - defences - diminished responsibility - "substantial impairment" - Crimes Act 1900, s23A

Possession of heroin found in premises - whether premises jointly occupied - whether appellant had possession - effect of failure to mention other occupant on arrest - accused alleged he did mention, denied by police - whether jury can take omission into account - R v Petty & Maiden (1991) 173 CLR 95 distinguished

Criminal law - sentencing - distinction between principal and courier - no error by trial judge in finding that the applicant was a principal in the importation of a prohibited substance contrary to Customs Act s 233B(1)(d) - sentence found not to be outside the proper range of primary judge's sentencing discretion - leave to appeal granted - appeal dismissed

Motor vehicle accident - damages - whether trial judge fairly disclosed intention to rely upon her observations of appellant’s behaviour in court room - trial judge’s silence as to intention to rely on observations until disclosed in reserved final judgment - appellant to have opportunity to persuade decision maker to a favourable view of conduct in question - denial of procedural fairness - (ND).

Family Provision - Application by a daughter. - Whole of estate passes to widow. Estate not large. - Application refused. - No matter of principle.

On claim for privilege - Dr Dent material - T7102-7104

PRACTICE AND PROCEDURE - service outside of Australia - application to set aside service under Pt 10 r 6A - cross-claim for contribution in tort claim - breach of duty of company officer - discretion to set aside - appearance filed by cross-defendant - circumstances affecting capacity of cross-defendant to defend claims - PRACTICE AND PROCEDURE - notice of appearance filed by cross-defendant served outside Australia - whether submitting defendant - whether right to apply to set aside service waived - PRACTICE AND PROCEDURE - whether joinder of cross-defendant afforded double protection to cross-claimant - PRIVATE INTERNATIONAL LAW - jurisdictional nexus - acts and omissions of company officer in New Zealand - transactions entered into by company in Australia - LIMITATION OF ACTIONS - whether joinder of party as cross-defendant in tort claim statute barred - accrual of cause action in negligence where contingent liability under mortgage - TORT - effect of release on co-sureties - co-ordinate liability - construction of document of general release

Criminal law - drug offences - parity of sentence - justifiable sense of grievance

Criminal law - drug offences - past and future assistance to authorities - calculation of discount for future assistance

CONTRACTS - Construction and interpretation of contracts - Implied term of reasonable care in a contract of professional services - Damages for breach of implied term where breach causes injury to third party and third party claims damages in negligence from both parties to the contract - Indemnity - TORTS - Negligence - Co-tortfeasors - Where liability apportioned between co-tortfeasors and one tortfeasor claims indemnity from the other tortfeasor arising out of an implied contractual term - APPEAL - Points not taken at trial - Attempt to raise new issue on appeal - ND

Criminal law - sexual assault upon the four daughters of the appellant under the age of 16 years - no error on the part of the trial judge in refusing application for separate trials - erroneous introduction of name of unrelated complainant, an irregularity without miscarriage of justice - whether Crown entitled to lead evidence in reply - duty of judge to give directions on consumption of alcohol, regardless of the views of counsel - Evidence of complaint, wrongly admitted under S 66 of the Evidence Act, 1995 and which may not have been admitted under S 108(3) of that Act - nevertheless no miscarriage of justice.

Sentence appeal by Crown - supply cocaine - low level offender - effect of delay - appeal allowed - periodic detention imposed

CRIMINAL LAW - sentencing - drug importation - no disparity of sentence.

PROCEDURE [620]- Costs- Unnecessary costs- Defendants sued jointly- No apparent reason for separate representation- Counsel restricted roles in cross-examination- One set of costs only normally allowed PROCEDURE [666]- Security for costs- Plaintiff trustee for discretionary trust- Ordinarily expected to provide security.

Determination of Life Sentence

Summary judgment

Addendum to judgment of 7 June 2000

Corporations Law. Application to set aside statutory demand. Whether debt repayable upon demand is due. - Summons dismissed.

Family Provision - Claim by adult daughter suffering from Down's Syndrome - No provision made by testator - No Contact by testator with plaintiff during lifetime of testator - Plaintiff resides in a group home - Present circumstances of plaintiff - Present and likely future needs of plaintiff - Claims by former wife and adult son - Proceedings instituted after expiry of prescribed period - Application for extension of time - Whether sufficient cause has been shown for proceedings not having been instituted within that period - Conduct of solicitor - No prejudice to defendants - Exercise of discretion involves a consideration of substantive claims - Lack of candour on part of former wife in failing to disclose information concerning her circumstances - Very short marriage to testator - Former wife subsequently entered into another relationship, and later into a second marriage - No contact with testator - No factors which warrant the making of the application - No provision made for adult son by testator - Absence of contact between testator and plaintiff during lifetime of testator - Plaintiff training for a career as an actor - Plaintiff has no assets and maintains a frugal lifestyle - Competing claims of widow and infant child (aged sixteen) of testator (who are the beneficiaries under his will) - Widow has subsequently married again - Contribution by widow to acquisition and conservation of assets of the estate.

MEDICAL NEGLIGENCE - duty of care of hospital to person attending emergency department - appropriate advice to person with head injury leaving department before treatment available - duty of care of general practitioner to such a person.

Defamation - defence and reply filed - application by the defendant in relation to reply

PRACTICE and PROCEDURE - application for further discovery

Extension of the limitation period - Transfer to District Court - Dismiss proceedings - Stillborn - oedema - HCCC - CTG

Banker and customer - partial financing of subdivision project - unreasonable refusal to provide additional finance - misleading conduct - fraudulent representation - deed of release - whether void for undue pressure - exercise of power of attorney clause in mortgage to get in security - RPA Mortgage effected and registered after s 57 notice & prior to transfer in exercise of power of sale - bona fides of sale by mortgagee - conversion of allotments by mortgagee.

Contract - Whether part performance or total failure of consideration - Remedies - Restitution only available if total failure of consideration - Benefit bargained for was not recieved - Benefit received was incidental to contractual obligations

Admissibility - defendant seeking to cross-examine the plaintiff as to contents of conversation between the plaintiff and Mr Elomari - the "Elomari" tapes - Listening Devices Act 1984 - T7023

PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Application to amend cross claim after judgment on basis that amendment would accord with case as conducted at trial - Whether prejudice incurable by costs order.

Practice and procedure - interlocutory order - no substantive right over which Court has jurisdiction - whether order should be maintained lis alibi pendens in relation to foreign proceedings - whether inherent jurisdiction or power of Court under s 23 or s 66(4) has any application - balance of convenience favouring maintaining order.

CORPORATIONS [202]- Winding up- Application by creditor- Contingent creditor- Includes a person who is owed some money even though quantum unliquidated - CORPORATI0NS [230]- Winding up application- Power of Court- Court may make Mareva type order.

Separate determination of questions pursuant to Part 31 Rule 2 of the Supreme Court Rules - Whether terms to be implied into Agreements for licence and support of Software.

CRIMINAL LAW - grounds for appealing against conviction after a guilty plea - CRIMINAL LAW - Crown appeal - sentencing for drug importation - manifestly inadequate sentence for a person "low in the hierarchy" - Crimes Act 1914 (Cth), s233B(1)(d)

CRIMINAL LAW - robbery while armed with an offensive weapon - sentence - Crown appeal - guideline judgment - co-operation with authorities - mental illness - special circumstances

DEFAMATION - Imputations - Application for leave to amend pleadings

Damages - stay pending appeal - terms

Possession - trust - whether home unit transferred on terms that transferee would permit the occupants to reside therein during their lifetimes.

Bail - application for review by persons charged - such persons granted bail in Supreme Court - bail revoked on subsequent application by Director of Public Prosecutions for review - whether second application for review attracted consideration of s 22A of Bail Act.