Cases and authorities

Workers Compensation - Dust Diseases - Employment to the nature of which the disease was due - s 151AB of the Workers Compensation Act 1987 (NSW)

SUPERANNUATION — Meaning of retrenchment for purposes of the Superannuation Act 1916 as amended in 1987.

Home Building Act ss3A, 92, 96, 99, 101, 103C, 103D

On public interest immunity claim - T6018

LESSOR and LESSEE - option of renewal - exercise by delivery of written notice - issue of fact whether notice was delivered - on the facts it was found that it had been - consideration of terms of lease relating to time of payment of rent and alleged breaches of covenant as discretionary grounds for refusing specific performance - order for specific performance.

Restitution - workers compensation - overpayment of workers compensation - defence of change of position

CORPORATIONS - interlocutory injunction sought restraining the passing of a resolution proposed in notice of extraordinary general meeting - resolution purported to vest unit trust and distribute assets to unitholders - principal litigation seeks winding up of companies on ground of oppression - whether directors had power to make resolution - whether applicant for injunction had standing as director to enforce Unitholders Agreement - whether resolution in breach of Unitholders Agreement - application refused - appointment of provisional liquidator refused - PRACTICE AND PROCEDURE - Mareva order restraining dealings with term deposit - application to vary order to allow use of funds for purchase of property and mortgage in favour of bank - application refused as enforcement would be unduly complex

Cross-examination - bias of other witnesses - T6022

Criminal Law - S 5F Criminal Appeal Act, 1912 - charge of demanding money with menaces in contravention of S 99 Crimes Act 1900. - Whether permanent stay of proceedings available due to delay of trial. - Reluctance of court on appeal to interfere with exercise of trial judge's discretion to refuse stay. Nicholson (1998) 102 A Crim R @ 459 considered.

WORKERS' COMPENSATION - "Employment to the nature of which [an] injury is due" - Correct test - Workers Compensation Act 1926 s.17. - APPEAL AND NEW TRIAL - When appeal lies - Question of law - What constitutes - Whether finding of fact open - Application of correct law to facts. - JUDGMENTS AND ORDERS - Reasons for - On finding of facts - Suficiency.

PROCEDURE [115] - Supreme Court procedure - Practice under Supreme Court Rules - Masters - Trial of proceedings referred to a Master by order of a Judge - Circumstances in which reference should be made.

LANDLORD & TENANT - Rent - Payable in advance - Lease terminated during period for which rent paid - Whether proportion of rent recoverable - RESTITUTION - Rent paid in advance - Lease terminated without fault of lessee - Failure of consideration - WATER - Lease entitling lessee to use of water rights under authority under Water Act - Whether lessee as one holder of that authority could transfer water allocation - Whether lease authorised use of water only on leased property

Local Court - Practice - Power of Local Court to set aside judgment after Statement of Confession of judgment - Leave to appeal to Supreme Court - Effect on discretion of small amount of claim - Effect of delay even if arguable case

Succession [74]- Administration- Court has power to make whatever grant of administration of a deceased person's estate is appropriate.

Criminal Law and Procedure - Trial - Withdrawal of Legal Representatives - Continuance - Whether Trial Unfair - Indictment - Duplicity - Content of Charge to Jury - Sufficiency of Evidence on Particular Count

BANKRUPTCY [209] - Fraudulent disposition of property - Conveyancing Act 1919 s 37A - Proof of intent to defraud.

On admissibility - reasonableness - plaintiff's non-participation in program - T5910

On plaintiff's application to amend his particulars in relation to malice - T5861

CORPORATIONS [212] - Winding up by Court - Grounds for winding up - Insolvency - Application to set aside demand - Genuine dispute as to indebtedness - Assessing genuineness.

Defendant's application for a pseudonym order - D18 - T5852

Criminal law - sentence appeal - multiple offences - complaint that last sentence had been accumulated on earlier concurrent sentences.

Competing interests in registrable goods - Bona fide purchaser for value without notice - Nemo dat rule

MEDICAL PRACTITIONERS - Complaints of professional misconduct - Criminal proceedings against practitioner set to begin after the complaints proceedings - Application for adjournment of complaints proceedings refused by Medical Tribunal - Appeal pursuant to Medical Practice Act 1992, s89 - No error of law - ND

APPEAL AND NEW TRIAL - Appeal from Common Law Division following application for review Consumer Claims Tribunal - Whether leave to appeal required. - INFERIOR COURTS AND TRIBUNALS - Consumer Claims Tribunal - Appeal from - To Supreme Court - Grounds for - Party to claim denied natural justice - Whether established D

Security for Costs - Entitlement to an order for security for costs in the Court of Appeal in repect of costs incurred in Court below

Criminal law - sentence appeal - alleged failure by sentencing judge to achieve parity of sentence between co-offenders - appellant pregnant at time of sentence - no sentencing error detected.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - BIAS - whether comments by Presiding Member of Tribunal evidenced bias or prejudgment - whether apprehension of bias or prejudgment established an objective standard of a reasonable and fair minded observer in that context - whether judicial review available - whether powers of Supreme Court should be exercised in view of alternative proceedings available

Defendant's subpoena - Police Service - access - T5791

Confiscation of property - Restraining order - Revocation of restraining order - Tainted property - Property used in connection with the commission of a serious offence - Meaning of used - Meaning of in connection with - Power of Court to revoke restraining order

Costs

LAND TAX - exemption - construction - whether exemption in earlier Act applied - Local Government Act 1919 (NSW), s 651(1) - Land Tax Management Act 1956, ss 7(1), 9(1), 10(1)(a), 21C(1)

CONTEMPT - penalty

Prerogative relief - alternatively, leave to appeal - meaning of "manipulate" - ruling of Magistrate on status of witness as expert - whether prerogative relief can be granted when ruling within jurisdiction - whether relief should be granted in respect of interlocutory ruling in criminal proceedings

Application for reference to Court of Criminal Appeal - doubt or question as to guilt or part of evidence - conviction many years old - asserted fresh evidence - principles for referral - "sense of unease" or "disquiet" in allowing conviction to stand - alternatively whether arguable ground of appeal raised.

Stated Case - appeal against Magistrate's decision - Legal Profession Act 1987 - power of costs assessors - whether negligence of solicitors can be raised before costs assessor - Anshun principle in context of a cross claim

Real Property [314]- Partition- Sale- Property requiring demolition work before sale- Duties of trustees.

Criminal law - sentence appeal against severity - relevance of fact that matters could have been dealt with in the Local Court - applicant aged 68 - in poor health.

Appeal against inadequacy of Sentence. - Knowingly taking part in manufacture and supply of a prohibited drug. - Monitored telephone calls and captured listening device conversations.

Criminal law - sentence appeal - cancellation of periodic detention - detainee not present when cancellation order made - desirability of only one party representing the Crown.

Criminal law - sentencing - nature of offence under s315 of the Crimes Act.

VALIDITY OF SEARCH WARRANT - Requirement that Application for a search warrant specify the grounds upon which the warrant is sought - Search Warrants Act 1985 (NSW) ss 5, 11, 12A and 23 - Search Warrants Act 1985 - Regulation 1994 (NSW) Form 1 - Defect affecting the substance of a search warrant in a material particular - Strict legislative compliance in the issue of search warrants required to safeguard individual privacy - D

RES JUDICATA - issue estoppel - motor vehicle accident - concurrent proceedings raising common issues pending in an inferior and superior court - proceedings between same parties for property damage determined in Local Court before proceedings for personal injury heard in Supreme Court - whether issues the same - whether single duty of care - effect of no contributory negligence finding - no special circumstances displacing issue estoppel - whether abuse of process

Appeal by stated case - what constitutes "malfunction" - whether question of fact or law - Illegality - burden of proof - Registered Clubs Act, ss 77, 77B, 78 and 82