Cases and authorities

Pseudonym Order - T3432

Direction as to order of witnesses - T3393

DEFAMATION - defence under s 24 - protected report - whether matter a report of proceedings of a court.

Employee's negligence - hearing loss - dispute between experts whether attributable to accident - delay in delivering judgment - absence of findings on critical issues - unsatisfactory basis for preferring one expert over another - uncertainty as to whether proper allowance made for pre-existing condition - new trial ordered

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.

PRACTICE - Stay of proceedings - Whether delay and loss of documents preclude opportunity of fair hearing - Abuse of process - Whether proceedings unjustifiably oppressive

CRIMINAL LAW - summary offences - construction of Justices Act 1902, Div 2, subdiv 6A (service of briefs of evidence) - time for service of briefs of evidence.

On admissibility of evidence - aggravated damages - T3343

Gift of cheques - gift by plaintiff (father) to first defendant (son) of $120,000 by delivery of two cheques coupled with intention to make one gift of $50,000 and a second gift of $70,000 there being no issue that the cheques were paid - ; Held, the gifts were complete and could not be recalled by plaintiff (donor).

Application for indemnity costs in circumstances where an award of aggravated damages had been made for unjustifiable defence - Aggravated damages and indemnity costs distinct awards.

personal injury; occupier's liability

CORPORATIONS — Stock Exchange — Interpretation of its Business Rules particularly Rule 13.1(1) dealing with ASX investigations — Is the basis for legal adviser and others from Participating Organisation to be present an implied requirement of procedural fairness — Rules of procedural fairness and Business Rule 13.1(1) must accommodate requirement that such presence not prejudice integrity of the investigation — Meaning of that expression — Necessity and justification for implied term to that effect — Public purpose of business rules of ASX and in particular investigation regime in Rule 13.1(1) derived from Pt 7.2 of the Corporations Law and constitution of ASX — Power of ASX to impose undertakings of confidentiality as condition of presence where necessary to avoid prejudice to integrity of investigation — Effect of presence of senior executive in inhibiting answers by interviewee — Scope of Rule 13.1(1) in relation to a potential shadow director being managing director of parent of Participating Organisation.

CORPORATIONS [279] - Winding up - Liquidators - Resignation or removal - In voluntary winding up - Liquidator having conflict of interest - Actual or perceived conflict of interest - Prior involvement with company as investigating accountant for secured creditor.

On admissibility of document number 51 - T3338

Admissibility of documents 22 to 33 - T3323

On application by Corrs Chambers Westgarth for costs - T3282

On admissibility of evidence - T3306

Admissibility of documents numbered 47, 48 & 49 - T3337 - aggravated damages - injury to reputation

CORPORATIONS [188] - Receivers, manaagers and controllers - Appointment - By Court - Interlocutory application - Relevant considerations - Drastic consequences of appointment.

Admissibility of documents 34, 35, 39, 40 & 41 - T3323 - aggravated damages - no evidence in chief from plaintiff

VENDOR and PURCHASER - sale of home units "Off the plan" - condition for rescission if Strata Plan not registered within 24 months was held to be conditional on vendors complying with Printed Condition A6.1 ("the vendor must do everything to have the plan registered within the plan registration time") - found on the facts that there were breaches of A6.1, the vendors' Notice of Rescission was not effective, and purchasers were entitled to Specific Performance.

Admissibility of documents numbered 14, 16, 18, 19, 20 & 21 in tendered documents - T3317

ADMINISTRATIVE LAW - claim to set aside Administrative Decision - failure to provide natural justice/procedural fairness - breach of hearing rule - failure to disclose evidence brought against the plaintiff; TORTS - misfeasance in public office - requirements of intention to hurt or recklessness - whether there can be vicarious responsibility; TORTS - negligence in decision making - decision set aside for lack of procedural fairness - damages - causation - no loss if same decision would result from proper determination

On admissibility of interrogatories 63(A) & 63(B) - T3327 - failure to apologise - aggravated damages - general compensatory damages

Contracts - Construction of contracts - Power of amendment - Whether permitted derogation from accrued rights.; Corporations - Prohibition of trading in own shares - Exception for scheme approved by general meeting - Scheme amended and amendment later approved by general meeting - Whether amendment effective prior to approval.

Local Government; interpretation of Local Environmental Plan; compulsory acquisition of land; whether Council required to use its best endeavours to acquire land pursuant to Local Environmental Plan; change in zoning; whether right accrued under former zoning.

De facto relationship; Existence asserted by plaintiff and denied by defendant; Credibility of respective testimony of parties; Factors relevant to conclusion as to whether a de facto relationship existed; Respective contributions of each party.

CRIMINAL LAW - sentencing - manslaughter - unlawful and dangerous act - punch thrown in brawl.

Application by a debtor that proceedings may be brought in its name by a second creditor; Construction of Deed of Charge; Consideration of position of a receiver before and after liquidation; Necessity, if proceedings are brought, for liquidator to be protected against costs; Consideration of what is the "material date" in Part 72A rule 5; Consideration of whether a Summons seeking relief against an arbitral award should be struck out as failing to disclose an arguable cause of action.

On tender of documents - general compensatory damages - aggravated damages - "ratings" - relevance - admissibility

Corporations Law. Application to set aside demand. Whether a claim based upon a total failure of consideration is a debt within the meaning of s 459E. Held that it is a debt for the purposes of the section. Defects in the affidavit verifying statutory demand. Held that compliance with Queensland rules is sufficient. Summons dismissed.

Criminal law - appeal - evidence - complaint admissibility - principle in Graham (1998) 157 ALR 404 - admissibility of prior consistent statement - conduct of Crown Prosecutor - duty of fairness - improper address - contrary to standards of fairness, Bar Rules and Prosecution Guidelines - consideration of principles referred to in Kneebone [1999] NSWCCA 279 - substantial miscarriage of justice - discretion to order new trial where miscarriage fault of Crown Prosecutor - acquittal entered

Sentence appeal; Attempt to possess trafficable amount of heroin; Parity in sentencing; Co-offender; Criminality

Sentence appeal; Importation commercial quantity of heroin; inadequate interpreting facilities; relevant evidence

CRIMINAL LAW - offences - knowingly concerned in importation of narcotic goods - when importation complete; CRIMINAL LAW - duress - what constitutes duress; CRIMINAL LAW - sentencing - Crown appeal - inadequacy - parity; EVIDENCE - illegally obtained - discretion to admit - Evidence Act 1995, s 138.

Criminal law and procedure - sentencing - no question of principle

District court - jurisdiction - sentence appeal from Local Court withdrawn - no power to revoke home detention order - denial of natural justice.

BANKRUPTCY - liquidation - family companies - mutual dealings - set-off - limitation on debt

CONTRACTS - Discharge - Lease - Option to renew lease exercised - Breakdown of negotiations between lessor and lessee regarding renewal of the lease leading to cessation of rent payments - Whether there was an enforceable agreement to lease - Tender by appellant to respondent of document in form of lease in same terms as original lease - Refusal by respondent to execute ; ESTOPPEL BY CONVENTION - Registration of strata plan pertaining to leased property following renewal of option - Whether the registration of the strata plan altered the premises making performance of the lessor’s obligations impossible - Whether lessee’s consent to registration estops it from taking this stance.

Purchase of property; Professional negligence; Failure of client to advise solicitor

Contract of employment; Employing company part of company group; Restraint of trade; Breach of contract; Company party to contract not employing company

Procedural fairness; mortgage dispute; trial judge's refusal to grant an adjournment; refusal results in proceedings terminating; appellate review of discretionary judgments