Cases and authorities

Criminal Assets Recovery Act 1990 - s10 - ex parte application for restraining order - existence of reasonable suspicion - further hearing may be made - meaning of ancillary in s12.

Subpoena - no oppression - cannot be characterised as discovery.

Misleading conduct - Trade Practices Act 1974 (Cth); s 1005 Corporations Law; s 68 Fair Trading Act 1987; Contract to subscribe for shares and the granting of options in listed corporation; Body of shares in corporation subject to restriction agreements under ch 9 of Listing Rules of Australian Stock Exchange; Existence of shares not known to subscriber of shares; Annual and half yearly reports of corporation omitted references to restricted shares; Wrongly described all of corporation's issued shares as quoted shares; Subscriber misled by conduct of corporation; Whether insider trading; s 1002G(2) Corporations Law; Damages; no causation nexus between misleading conduct and subscriber's losses.

CRIMINAL LAW & PROCEDURE; Sentencing; Murder

An Aboriginal boy was made a ward of the State as an infant. After the expiration of the limitation period he sought to bring proceedings against the respondents alleging common law negligence, and breach of statutory and fiduciary duties. The Master refused to extend the time on the basis that he had not established the requirements of s.58(2) and ss.60G and I. Held the Master was in error in this regard, but not in finding that he had available causes of action and it was otherwise just and reasonable to grant the extension.; Test to be applied as to the extent to which the applicant must show an available cause of action in an application to extend time:-; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1994) 35 NSWLR 497; Commonwealth of Australia v McLean (1997) 41 NSWLR 389.; Exercise of discretion in extending time under Limitation Act:-; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Sydney City Council v Zegarac (1998) 43 NSWLR 195.; The Nature of the Appellant's Case; Breach of Common Law Duty:-; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1999) 25 FamLR 86; Hahn v Conley (1971) 126 CLR 276; Perre v Apand Pty Limited (1999) 73 ALJR 1190; Cubillo v Commonwealth of Australia (1999) 163 ALR 395.; Breach of Statutory Duty; Policy or operational:-; Pyrenees Shire Council v Day (1998) 192 CLR 330, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Air Services Australia v Zarb (Court of Appeal - 26 August 1998 - unreported); TC v New South Wales (1999) NSWSC 31; X (Minors) v Bedford County Council [1995] 2 AC 633.; Breach of Fiduciary Duty:-; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Henderson v Mevrett Syndicates [1995] AC 145; Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (Marion's Case) (1992) 175 CLR 218 at 317; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1994) 35 NSWLR 497; Paramasivan v Flynn (1998) 160 ALR 203; M(K) v M(H) (1992) 96 DLR (4th) 289; Breen v Williams (1996) 186 CLR 71; Northern Land Council v The Commonwealth (No 2) (1987) 75 ALR 210; Brunninghausen v Glavanics (1999) 46 NSWLR 538.

Criminal law - appeal - taking girl from custody of parent - nature of offence - effect of girl voluntarily leaving - comparison with other offences - necessity for accused to take some active role in depriving custodial parent of possession - issue for jury - necessity to put defence in summing-up - new trial or acquittal - criteria for exercise of discretion - recommendation for reform of relevant offences.

CRIMINAL LAW - Customs Act - s 233B(1) - possessing prohibited import - cocaine - quantity not less than trafficable quantity; SENTENCING - whether head sentence outside range appropriate for offence - whether non parole period excessive in relation to head sentence - whether quantity of prohibited import a relevant factor in sentencing

Review of notice of motion; Appeal struck out by Registrar; Repeated default of legal practitioner; no explanation offered

T2878 - admissibility - evidence of particular impact of imputations

T2912 - admissibility of evidence

Real Property - Easements - Construction

APPLICATION - leave to appeal - commercial arbitration - misconduct - delay in making award - credibility - whether appeal had any prospect of success

Defamation - evidence - cross-examination upon expert's report - whether other party entitled to tender the report - whether that right is only available whilst the author of the report is still in the witness box.

Admissibility of evidence - reputation - specific acts - T2810

Admissibility of evidence - anonymity of makers out of court statements - impact of publication - Evidence Act 1995 (NSW) ss 48 & 135 - T2847

CORPORATIONS - liquidation proceedings to assert the company's claim, brought by another person - appointment of receiver to bring proceedings - when appropriate; EQUITY - Court-appointed receiver - grounds for appointment of receiver to conduct litigation when company in liquidation

FAMILY PROVISION - claims by four adult sons and daughter - extensive powers conferred by will on trustees over discretionary trust of residue and shares in company which owned family business - established state of conflict between plaintiffs and trustees - provision made by controlling exercise of trustees' powers over residuary trust and controlling voting and disposition of estate's shares in family company.

Application for inspection of defendant's discovered documents - the post-publication Quail diaries

Defamation - evidence - whether business record is, in the circumstances, admissible pursuant to s69(2) of the Evidence Act, 1995 in the absence of the author as a witness - if admissible whether unfairly prejudicial.

CRIMINAL LAW & PROCEDURE - Sentencing - Manslaughter - Substantial impairment by abnormality of mind (Crimes Act 1900 (s 23A))

Criminal law - manslaughter - alternative bases for a finding of guilt - whether jury must be unanimous as to either basis. HELD: no; Criminal law - manslaughter alternatively by gross negligence and unlawful and dangerous act - whether these bases involved materially different issues or consequences; HELD: they did not.

Medical Tribunal; Relevance of cross-examination; Bias of examinor

Defamation - whether particulars of justification defence provided to expert witness admissible in evidence.

Admission into evidence of MFI 27, copy "unabridged" report of Dr Dent dated 18 May 1998: T2702

Proceedings to set aside or vary a Statutory Demand - Appeal - from an award of costs by Master in circumstances where the appellant/plaintiff had been ordered to pay costs of proceedings it had commenced to set aside or vary a Statutory Demand and the Demand had been withdrawn the day before the hearing.

Admissibility of evidence - proof of factual matters referred to in medical reports - Evidence Act 1995 (NSW) s 135 - T2757

Extension of limitation perid - third defendant; Section 60C and s 60E

CORPORATIONS LAW — Alleged debtor seeking to set aside a statutory demand under s459G of the Corporations Law — Requires strict compliance including service of the application to set aside on the claimant creditor within twenty-one days — Served copy of application before it was filed and omitting return date — Latter omission fatal non-compliance not capable of remediation — Effect of former omission may not be fatal.; WORDS AND PHRASES — "served"

Family Provision. Application by a grandaughter and a son. Consideratrion of dependency and factors under s9(1). Correct approach when considering conflicting decision of Court of Appeal. Son left with a provision by way of discretionary trust. Held not an adequate provision. Orders made in favour of both plaintiffs.

CRIMINAL LAW - Insufficient evidence of elements of offence ; EVIDENCE - Evidence Act 1995, s98 - probative value of coincidence evidence outweights prejudice; SENTENCE - Customs Act 1901, s233B - appropriate sentence; SENTENCE - parity with co-offender.

CRIMINAL LAW - sentencing - Crown appeal - cheat and defraud as a director - inadequacy; EVIDENCE - Court does not require evidence of its own proceedings, Evidence Act, s 144.

CRIMINAL LAW - murder - appeal against conviction - circumstantial evidence case - whether certain specified intermediate facts essential - trial judge's directions erroneous but favourable to accused - open to jury to convict on evidence, but not in accordance with trial judge's directions - irregularity such as to constitute miscarriage of justice - appeal allowed - new trial or judgment of acquittal; CRIMINAL LAW - murder - indictment - single count - crown case put on alternative basis; EVIDENCE - murder trial - hearsay - evidence of relationship between accused and deceased.

CRIMINAL LAW - Sentence - import heroin - trafficable amount - whether manifestly excessive

Bias of juror - knowledge of witness - questioned by judge - whether appropriate - direction to jury on discharge of a juror - witness - whether doubtful - s165 Evidence Act 1995 - whether unfavourable - s38 Evidence Act 1995

Sentences for multiple serious sexual offences by head of family

Appeal from Interlocutory Orders; Appeals against Master's decision extending time to bring proceedings under Motor Accidents Act 1988 and against single Judge's decision dismissing that appeal dismissed.; Appeal From Trial Judge's Assessment of Damages; (a) Consideration of novus actus interveniens; (b) Amount to be deducted conformably with principle in Kempsey District Hospital v Thackham; (c) Generally parties should be held on appeal to the way in which the case was conducted at first instance.

FAIR TRADING ACT 1987 - misleading and deceptive conduct - lease of premises - restaurant - faulty air-conditioning - downturn in business - causation - damages