Cases and authorities

TRUSTS and TRUSTEES - resulting trust where transfer without consideration - plaintiff transferred his house to his father (now deceased) for expressed consideration of $55,000 and now claimed that the true arrangement was a transfer without consideration to conceal assets if plaintiff should become bankrupt - the plaintiff succeeded on findings of fact upholding his case after lengthy consideration of facts and circumstances of dealings within the family over almost 40 years - decision on fact - consideration of - approach to facts where claim is made against estate of deceased person - illegality where the illegal purpose was not acted on.

CRIMINAL LAW - appeal - sexual assault - complainant's evidence essential on each count - different verdicts on different counts - whether guilty verdicts unreasonable.

EQUITY - duty of confidence - serious question to be tried

ADOPTION - Inspection of Court record - sealed copy of adoption order - after Relative Adoption (by natural mother and husband of her second marriage) the natural father applied for a sealed copy to establish to Child Support Agency that his obligations had ended - consideration of practice of Court in issuing sealed copies - only to plaintiffs - otherwise only an order under s.67 and Reg 38 - confidentiality of information is the principal consideration - as this was an open adoption all information was already known to natural father and a copy was given to him on terms which limited his use of it - observations on means available other than obtaining copy of order - inspection of record within s. 67 - issue of sealed copy of adoption order allows inspection.

Negligence - omission by a golf club to warn kangaroos might attack players amounted to a breach of duty - ND

EVIDENCE - criminal trial - confessions and admissions - discretion to exclude - reliability - whether there was a miscarriage of justice - Evidence Act 1995, s90, s138 - Criminal Appeal Act 1912, s6 - EVIDENCE - criminal trial - confessions and admissions - discretion to exclude - restrictions on appellate court review - CRIMINAL LAW - appeal against conviction - whether verdict was "unsafe and unsatisfactory" - "unreasonable" - Criminal Appeal Act 1912, s6(1)

Negligence - solicitor - failure to advise client as to right of appeal against dismissal from Telecom - causation - valuing lost right - damages. ND

District Court - deemed dismissal of action for non-filing of a praecipe for trial - validity of Pt 12 r4C District Court Rules - Court discretion to dispense with District Court Rules - discretion to extend time conferred by Pt 3 r2 District Court Rules - D

WORKERS' COMPENSATION - Dust Diseases - Workers' Compensation (Dust Diseases) Act 1942 - NEGLIGENCE - Proof of negligence - Causation - Whether exposure to asbestos dust and fibre caused squamous cell carcinoma of the lung - Where deceased exposed to asbestos dust in the course of employment and where deceased a moderate smoker - Whether evidence capable of proving causation - APPELLATE jurisdiction of Supreme Court - Question of law - Compensation Court Act 1984, s32 - ND

Contract [7]- Agreement subject to further document- Heads of Agreement to settle litigation- On facts, parties had made contract.

CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act.

Legal professional privilege - waiver - reviving or refreshing recollection

PROCEDURE - Motion to single judge to set aside interlocutory order of another judge - claim that order made without jurisdiction - whether one judge of a division has power to set aside the order of another judge in those circumstances

DEFAMATION - practice - injunction to restrain publication - other related proceedings in Equity Division - Practice Note No. 85. PRACTICE & PROCEDURE - Abuse of power - related proceedings in separate Divisions.

PRACTICE AND PROCEDURE - civil contempt - failure to comply with orders made by Federal Court - proceedings transferred from the Federal Court pursuant to Federal Courts (State Jurisdiction) Act 1999 after orders made - defendant alleged to be in breach of orders by allowing securities reports to be published on the Internet - whether the documents were securities reports - whether the defendant as publisher of the Internet site had the power to add, move, modify or delete documents posted on that site

EVIDENCE [72] - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - General principles - Confidential documents which are private and irrelevant - No privilege.

Appeal pursuant to s 104(2) of Justices Act 1902 against orders made dismissing Informations for false swearing pursuant to s 87 of Independent Commission Against Corruption Act 1988 - Transcript of admissions of giving false evidence excluded by the Magistrate under s 90 of Evidence Act 1995 (NSW) on bases which contained errors of law - Application of s 110 of Justice Act 1902 in which the Supreme Court has power to refuse to quash or set aside orders if there are sufficient grounds to have authorised the making of the order.

CRIMINAL LAW - Evidence - admissibility of statements by co-offender to undercover police officer - whether verdict unreasonable

crown appeal - malciously inflict grievous bodily harm - inadequacy of sentence

Application for leave to appeal against interlocutory order - pseudonym order - standing of witness to seek leave to appeal or to appeal - standing of witness to set aside subpoena - meaning of 'judgment' - principles of open justice - relevant discretionary factors - Supreme Court Act 1970 (NSW) s 101 - D

Discretionary trust - partnership relief sought differs from that sought before the trial judge - judgment under appeal interlocutory - fiduciary duty - declaration of trust in property - just allowances - trust property used as security for loans - beneficiaries' interests in later properties - breach of trust - ND.

NEGLIGENCE - whether storage of loaded rifle was unsafe - whether storage of loaded rifle was breach of duty of care - inherently dangerous chattel CAUSATION - whether son discharging rifle was novus actus interveniens - Firearms Act 1989 s 12. D

INTELLECTUAL PROPERTY - Property in medical records as between doctors and owners of medical clinics - Intention of parties - CONTRACTS - Relationship between doctors and owners of medical clinics - Property in medical records - EQUITY - Equitable remedies - Grant of injunction - Considerations upon which court exercises discretion - ND

LAND AND ENVIRONMENT COURT - class 4 application - Environment and Planning Law - words and phrases - 'floodway' - Fairfield Local Environmental Plan (1994) - whether Court properly construed definition of 'floodway' - use of extrinsic material - whether divided floodwaters form two flow paths. D

DEFAMATION - imputations - capacity

CRIMINAL LAW AND PROCEDURE - Several accused jointly charged with murder - application by one accused for separate trial - desire to call co-accused to support his defence

Corporations Law. Application to set aside statutory demand. Various grounds including defects in the affidavit in support. Demand set aside.

Admissibility - relevance to case as particularised - objection - T4881

EQUITY - rectification - agreement made on day written document signed and prepared by parties - need for clear proof - both parties had signed deed of confirmation but one did not give evidence of intention - whether third party rights affected - whether rectification purposeless

CRIMINAL LAW - Admissibility of evidence - voir dire - whether police failed to comply with Regulation - state of intoxication - whether unfair to use interview in evidence.

PROPERTY — Equity — Practice and Procedure — Case stated from magistrate — Relevant principles — Sufficiency of evidence that was an effective assignment — Limitation Act 1969 (NSW) does not bar enforcement action against a debtor brought by an equitable assignee without joining the legal assignor though legal estate only got in after limitation period expired — effect of Local Court Rules for civil claims.

On defendant's application to amend particulars re D20 - T4888

LOCAL COURTS - Appeal from magistrate in Small Claims Division - denial of natural justice but magistrate's decision correct in law.

On defendant's claim for privilege - Notice to Produce - - Notice of Motion filed 14 March 2000 re pseudonym order

PRACTICE AND PROCEDURE - order for production under SCR Pt 36 r12 - production in support of examinations under the Corporations Law - parent company claimed to hold insurance policy giving indemnity to subsidiary company - whether such policy within power of subsidiary - whether order for production extends to document within power - whether court could order subsidiary to request parent to produce on basis legal entitlement to production

On admissibility of part of MFI's 119 &125

Appeal from Master - Interference with Discretion - Extension of time for bringing action - gateway, bar - discretion - principles for exercise of discretion - just and reasonable - fair trial of action - prejudice - factors to consider - public interest