Cases and authorities

Admissibility - relevance - qualified privilege - common law - s22 Defamation Act - Lange defendant - matter complained - imputations - information - belief in truths - T5128.

Construction of a Lease - Validity of Notice of Termination pursuant to Redevelopment Clause - Entitlement to Exercise Option.

s.48E application - special reasons

Life sentence - determination of minimim and additional terms - Sentencing Act 1989 - s.13A

Criminal Law - sentencing - importation of cocaine

Criminal law - application for leave to appeal against interlocutory order refusing an application for separate trials - Crown seeking to rely upon tendency and coincidence evidence under ss97 and 98 of the Evidence Act 1995 - consideration of the appropriate procedure where question of possible concoction may arise between complainants in charges of sexual misconduct involving more than one complainant - such questions should be resolved in the District Court under Rule 11 of Part 53 - Criminal Procedure Rules.

Criminal Law - whether verdicts of guilty consistent with verdicts of acquittal on other counts - whether verdicts 'merciful' - whether verdicts compromised - whether verdicts reasonable

NEGLIGENCE - harvester brought from area where Parthenium weed prevalent - approved to enter NSW by government inspector - used on NSW farm - paddock developed Parthenium weed infestation - whether from use of harvester - whether negligence in approving entry of harvester into NSW - whether negligence in use of harvester - whether negligence causally related to infestation - finding that weed infestation caused by use of harvester upheld - negligence in approving entry of harvester into NSW not causally related to weed infestation - (by majority) negligence in use of harvester was conjectural and not proved - distinction between conjecture and inference and whether facts permitted inference of causally related negligence considered. D

ADMINISTRATIVE LAW - veterans’ pensions - Statements of Principle - formulation by the Repatriation Medical Authority - Veterans’ Entitlements Act 1986 (Cth), s196B - ADMINISTRATIVE LAW - veterans’ pensions - Statements of Principle - review by the Specialist Medical Review Council - Veterans’ Entitlements Act 1986 (Cth), s196W and s196Y - ADMINISTRATIVE LAW - veterans’ pensions - "available" - Veterans’ Entitlements Act 1986 (Cth), s196W - ADMINISTRATIVE LAW - veterans’ pensions - "sound medical-scientific evidence", "meets the criteria" - Veterans’ Entitlements Act 1986 (Cth), s5AB(2) - ADMINISTRATIVE LAW - veterans’ pensions - "reasonable hypothesis" - "reasonable satisfaction" - Veterans’ Entitlements Act 1986 (Cth), s120(1), s120(3) and s120(4). - ADMINISTRATIVE LAW - procedural fairness - obligation to limit statutory review to matters raised in the application.

JOINT TORTFEASORS - proceedings against both - settlement between plaintiffs and one defendant - judgment entered for settlement sum and settlement sum paid to plaintiffs - plaintiffs continue against other defendant - summary judgment application by the defendant - becomes decision of separate question - whether by force of s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 the plaintiffs could not recover from the defendant more than the judgment sum - no, because the restriction on recovery in the action did not apply where the tortfeasors were sued in the same proceedings - whether satisfaction of the judgment barred further proceedings against the defendant - no, because on facts the judgment for the settlement sum was not in full satisfaction of the plaintiffs' loss - whether settlement and payment of settlement sum barred further proceedings against the defendant - no, because on the facts the settlement sum was not in full satisfaction of the plaintiffs' loss - consideration of rule against double satisfaction and its application to a judgment sum. D

Practice and Procedure - Costs - Taxation of Costs - 'Rule of Thumb' applicable when multiple defendants are variously successful and unsuccessful - Whether applicable to multiple plaintiffs variously successful and unsuccessful - Whether rule of thumb was properly applied in these proceedings - Whether rule of thumb excluded by the costs orders previously made. - Practice and Procedure - Jurisdiction of Court to correct errors in orders under the 'slip rule' - Principles governing the use of the slip rule - Whether slip rule may appropriately be employed in this case. - Practice and Procedure - Legal Profession Act 1987 - Appeal from 'decision' of a costs assessor - Whether appeal only permissible after determination of assessment - Differentiation between 'decision' and 'determination' of costs assessor - Purpose of provisions permitting for an appeal from a 'decision' of a costs assessor. - Practice and Procedure - Reckoning of time - principles governing the extension of time in which an appeal can be instituted. - Equity - Declaratory relief - Court's power to issue declaratory relief - Whether affected by the Legal Profession Act 1987 - Principles informing Court's discretion to issue declaratory relief - Relevance of alternative means of appeal.

Criminal Law - sentencing - accessory after the fact of manslaughter

Corporations Law. Application to set aside statutory demand due to a defect in the deman and affidavit. Reference in demand to a debt due under an agreement rather than a judgment obtained in respect of the debt. Held demand was a purported demand and no substantial injustice would result if it was not set aside. Summons dismissed.

Costs [ND]

COSTS - General rule - Costs follow the event - NEGLIGENCE - Duty of care - Occupier's liability - When duty arises - Extent of duty of care ND

APPORTIONMENT OF DAMAGES BETWEEN JOINT TORTFEASORS - LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1965 - Whether it was a proper exercise of discretion, in all the circumstances and having regard to the applicable principles, to hold each tortfeasor equally liable. Held that notwithstanding the caution which should attend interference with the exercise of the trial Judge's assessment that was not the proper apportionment and the Court of Appeal should re-assess the apportionment. Held that in lieu of equal amounts the appellant should pay 20 per cent and the respondent 80 per cent.

Practice and Procedure - application for stay or summary dismissal - utility of declaratory relief

EVIDENCE [228] - Witnesses - Refreshing memory - Generally - Documents used to revive memory - Memory revised before swearing affidavits read in evidence - Whether production required under Evidence Act 1995 (NSW) s 34 - Memory revived from part of privileged document - Rest of document not relevant to witness' testimony - Whether production of whole document should be required under s 34.

Law Reform- Limited grants of administration for Famiily Provision Act purposes- Improvements needed - Succession [95]- Administration- Soley for purposes of a Family Provision matter- Considerations- Wills Probate & Administration Act, 1898, s 41A

Defamation - Interlocutory injunction

CRIMINAL LAW - Miscarriage of justice - Verdict unreasonable and unsupported by evidence - Where complainant's evidence wrong in relation to when offences committed and where significant feature of occasion in which offences committe wrong - Where trial Judge directed jury to return same verdict on every count - No direction that each count could only relate to one event - Possibility of conviction for matter not charged

Tort of injurious falsehood - improper motive - false, misleading, maliciously published material - disseminated by grapevine effect - natural and probable consequence of republication of false material - Patrick Nugawela v Reginald Crampton and Royal Australian College of General Practitioners (Supreme Court of NSW, Levine J, unreported, 31 January 1996) - no intent to injure without just cause or excuse - no actual damage or injury suffered by the plaintiff by reason of the malicious publication of false material - ND

NEGLIGENCE - slipping case - whether shopping centre had adequate system of cleaning and inspection (yes) - whether should have had different flooring material (no) - no question of principle. ND

CORPORATIONS — Deed of Company Arrangement does not preclude election of board by members — Construction of regulations of constitution of Club re eligibility for election of Board.

Motor vehicle accident - liability

Law of contract - arbitration clause - whether clause void - whether enforcing clause constituted breach of natural justice - abuse of process

Family Provision. Application by a daughter. Provision made for daughter varied. No matter of principle.

EVIDENCE [228] - Witnesses - Refreshing memory - Generally - Documents used to revive memory - Whether documents sufficiently identified for production to be required under Evidence Act 1995 (NSW) s 34.

Add defendant - extend time for filing amended statement of claim - S 43(1) and s 52(4) MAA explanation - Part 33 r 8A SCR - Part 20 r 1 SCR - Part 20 r 4(5) SCR - Part 8 r 8 SCR - S75AO TPA

EVIDENCE [72], [75] - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - General principles - Evidence Act 1995 (NSW) - Privilege at common law - Waiver of privilege - Extent of disclosure required when party puts privileged material into evidence.

Contract - construction of put option clause - specific performance - uncertainty of option agreement.

CORPORATIONS — General solvency argued at winding up stage — No leave required under s459S of Corporations Law — Not in dispute that company had failed to set aside statutory demand but was solvent even if debt was paid in full — Registrar’s order declining to wind up confirmed.

LEAVE TO APPEAL - interlocutory order - waiver of legal professional privilege - whether matter of practice and procedure - whether leave should be granted - proceedings out of ordinary - in circumstances, leave granted. In re the Will of Gilbert (1946) 46 SR(NSW) 318 referred to. LEGAL PROFESSIONAL PRIVILEGE - delivery of particulars said to be based on or in accordance with a statement - whether waiver of privilege - whether inconsistency between this and maintaining the confidentiality protected by the privilege - no waiver. Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 and Mann v Carnell (1999) HCA66 applied. D

CONTRACT - Indemnity - decision on facts of alleged oral arrangements among individuals who were principals in group of companies and raised capital by (unequal) loans from principals and by security over assets of individuals for company borrowings.

Criminal law - sentence - hinder police investigation - serious offence - stale crime - resident of Queensland - nil further offences

Corporations - Winding up - Insolvency - Cash flow test - Whether can infer solvency from surplus of current assets over current liabilities - Whether is mere temporary illiquidity where debts could be paid by sale of assets.

Succession [30]- Lost will- Presumptions- Uncertainty whether will last in possession of testatrix or solicitor.

Succession [55]- Will- Revocation- Instructions for new will by writing on old will- Statements by testator that he had no will- Revocation under s 18A Wills etc Act, 1898

On defendant's application to reopen its case on Notice of Motion for a pseudonym order - T5007

On defendant's Notice of Motion of 14 March 2000 for use of a pseudonym and on waiver of privilege: T4993

Murder - Maliciously discharging a firearm with intent to do grievious bodily harm - Sentence