Cases and authorities

SUCCESSION - estates - right of burial

DEFAMATION - consideration of defences of qualified privilege after jury answered questions of fact pursuant to s 90 - whether answers by jury to questions relating to comment defence inconsistent - whether matter should be referred to the Court of Appeal pursuant to Pt 12, r 2 - whether apparently inconsistent answers can be treated as surplusage - application for amendment of defence and particulars of qualified privilege after jury returned answers to s 90 questions - reasons for refusal of application.

CONTRACTS [3] - General contractual principles - Offer and acceptance - Matters not giving rise to binding contract - Vagueness and uncertainty - Introductory - Right to second mortgage given by contract for sale of land - Whether term so incapable of any definite or precise meaning that Court unable to attribute any particular contractual intention.

Contempt - Appeal - Bail - Relationship between Bail Act and Common Law - Common Law preserved - Principles applicable to grant of bail for contempt after sentence imposed

NEGLIGENCE - occupier's liability - turns on own facts.

DeFacto relationship - Imperfect deed - Whether amounted to binding contract - Intention of parties - enforceability - Specific performance

Costs - ND

SUCCESSION [156]- Lapse- Gift to child- Child predeceased testator- Whether contrary intention shown by gift over.

Family Provision. Application by children under Family Provision Act. No matter of principle. Orders made

Admissibility of Amended Notice under s 19 Listening Devices Act 1984 - Police Integrity Commission Act, 1996 - T6485

On objection to question asked of Detective French in relation to Elomari tapes - admissibility - Listening Devices Act 1984 - Police Integrity Commission Act 1996 - T6492

CORONERS - death of prison inmate - application to reopen inquest - determination that death caused by multiple drug toxicity - application that further evidence from other prisoner be taken - whether Coroner performed duties under Act.

Practice and procedure - Costs - Calderbank letters - Principles applicable - Contract - Damages for loss of chance - Damages awarded by reference to the possibilities and probabilities of what would have happened - Relief - Outstanding questions raised in Judgement of 10 March 2000 determined.

STRATA TITLE - special by-laws giving owner of lots and complex manager exclusive right to conduct real estate business on premises - lease entered by another owner in contravention of by-laws - lessee not notified of special by-laws by lessor as required - application to restrain use under lease as real estate agency - owners of lots in complex bound as between each other by by-laws - presumption of regularity in making of special by-laws - whether court should decline to exercise jurisdiction - whether lot owner had a right to have dispute adjudicated under machinery in legislation - whether exclusive right excessive - whether any injunction should have effect only against lessee

Admissibility - Listening Devices Act, 1984 - purported "warrant" - tender rejected - T6500

Special hearing - finding on limited evidence available that offender committed crime of murder - nomination of "limiting term" - principles applicable - Mental Health (Criminal Procedure) Act, ss 23,24

CRIMINAL LAW AND PROCEDURE - Sexual assault - Evidence - Cross-examination of complainant - Complainant accused of fabricating evidence - Complainant cross-examined to demonstrate motive - Complainant's evidence "why would I make a story up ..." and "why would I be sitting in this court room ... wasting all these people's time ..." - Accused not cross-examined to demonstrate absence of motive - What, if any, direction to jury called for or permissible. - CRIMINAL LAW AND PROCEDURE - Sexual assaults - Evidence - Similar facts - Admissibility - Relationship evidence - Tendency evidence - Prior sexual acts between complainant and accused - Evidence Act 1995 ss 97, 101 - What direction to jury as to use of evidence called for

Tort - general damages for personal injury - accident in a school laboratory - burns victim - unbalanced summing up by the trial judge - general damages excessive - damages for impairment of earning capacity as related to future economic loss - incomplete evidence of earning capacity - provision of written submissions to the jury - discounting for vicissitudes

Criminal law - homicide and assault - mental illness - special verdict.

Application by a party which alleges that it is an occupier to be joined in proceedings for possession - Application refused on the bases that:- - (a) the orders sought by the plaintiff adequately protect the position of the applicant - and - (b) there is no pending issue that the applicant will not, even if the plaintiff is successful, be able to exercise such rights as it has in relation to the land.

CRIMINAL LAW - appeals - appeal against conviction - murder - rejection of defence evidence - directions to jury - sufficiency of directions on motive - whether McKinney direction or warning required - providing the jury with transcript of trial - sufficiency of directions concerning lies - leave to cross examine witnesses under s38 Evidence Act - use of the term "dock statement" - whether Weissensteiner direction appropriate.

Criminal law - appeal - asserted failure by accused to call witnesses - directions to jury - application of Jones v. Dunkel principle to case of accused occasioning miscarriage.

Criminal Law - conspiracy to supply drugs - sufficiency of evidence of agreement as distinct from expectation - Criminal Law - failure to call witness - Jones v Dunkel direction inappropriate.

Defamation - proper material for comment - barrister's life not per se a matter of public interest - rational relationship between the material relied upon by the defendant and the imputation relied upon by the plaintiff - Pt 3 Div 7 Defamation Act 1974. (ND)

Admissibility - Listening Devices Act 1984 - tender of s 19 reports - Certificate under Police Integrity Commission Act 1996 s 56(4)(c) - admitted on limited basis - T6328

CRIMINAL LAW - appeals - appeal against conviction - murder - trial by judge alone - role of Court of Appeal - causation - whether death of deceased caused by act of appellant - where more than one possible cause of death - where constitutional defect - admissibility of admissions - confabulation - reliability of admissions.

Sentence - manslaughter - substantial impairment of mental capacity - depression - attempted suicide - relevance of general and personal deterrance - role of denunication in sentencing

On application to exclude evidence - T6342

PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Late application to amend statement of claim - Adjournment of trial probably necessary - Order for costs to compensate prejudice - Plaintiff's doubtful ability to pay - Requirements of justice.

contempt of court - failure to answer questions - denunciation

Claim for privilege by defendant in relation to pre-publication advice - T6288

On application to postpone evidence of Mr Arnold in order to make determination as to whether to present him as an expert witness - T6326

CHARITIES [33] - Administration and control by Court - Generally - Settlement of schemes - General principles - Administrative schemes - Variation of schemes - Cy-pres schemes.

Extension of time to commence proceedings - Ss 60G and 60I

CONTRACT [107]- Implied terms- Allegedly necessary for performance- Vague agreement- In facts and circumstances no implication made.

On admissibility of evidence sought to be led from Mr Arnold - T6308

Family Provision. Claim by children of the deceased. Orders made. No matter of principle.

EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Serious question to be tried - Balance of convenience - Efforts of State agencies to find plaintiff alternative accommodation - Shortness of time for which injunction sought.

Criminal Law - appellant convicted at four consecutive trials of sexual assaults on four children - whether jury directed appropriately - HELD: yes. - Criminal Law - appellant convicted at four consecutive trials of sexual assaults on four children - whether verdicts unreasonable - HELD: no. - Criminal Law - sentencing - sexual assaults on four children - whether sentences excessive - HELD: no.

CONTRACTS - Construction and interpretation of contract - Dispute determined by expert - Review of expert's decision - Meaning of 'price' - ND

Criminal law - sentence - manslaughter by reason of diminished responsibility - effect of mental illness - Aboriginality - rehabilitation - effect of drugs and alcohol - application of sentencing principles under new statutory regime.

Admissibility of tender documents - Evidence Act 1995 (NSW) s 69(3)(b) - T6235

Police Service of New South Wales - T6273