Cases and authorities

This case turns on the facts

Criminal Law - Evidence - Listening Devices - Warrants - Contents of warrant - Meaning of "shall specify", "use", "premises on which", "place at which" - Period of warrant - Validity of listening device warrants

De facto relationship; Adjustment of interests in property; Respective contributions of each party; Date of termination of relationship; Plaintiff was a convicted felon held in custody in prison; Whether relationship continued after incarceration of plaintiff; Proceedings purported to be commenced by plaintiff without leave required by Felons (Civil Proceedings) Act 1981; Date of commencement of proceedings; Whether proceedings were instituted out of time; Application for leave to extend limitation period under De Facto Relationships Act 1984; Application by defendant for maintenance.

Family Provision. Application by a daughter under the Family Provision Act. No matter of principle.

Retail Leases Act 1994 - Concession agreements within theme park authorising plaintiffs (concessionaires) to take photos of visitors to theme park during rides and elsewhere in theme park and to sell photos and other items (certificates as to meanings of christian or first names, copies of personalised front page of fictitious newspaper and temporary tattoos) from premises within theme park - "Retail Shop" - Premises used by plaintiffs for the carrying on of the business of "Souvenir Shops" but not for the carrying on of the business of "Gift Shops", "Nick-Nack Shops", "Prints and Posters Shops" or "Wall Decorations Shops" within the meaning of Schedule 1 of the Act - Premises were accordingly "Retail Shops" -" Retail Shop Lease" - Plaintiffs had been granted non-exclusive right of occupation of premises for purpose of use as retail shops - Concession agreements were retail shop leases - Term of each retail shop lease prima facie extended to five years (section 16) - "Head Lease" - Head lease of retail shops terminable on one month's notice without breach - Termination of head lease effective to terminate sub-lease without breach - Prima facie extension of terms of retail shop leases to five years inconsistent with terms of head lease of retail shops - Section 16 not applicable to retail shop leases (section 16(5)) - Terms of retail shop leases not extended to five years

Criminal Law ; Evidence; Listening Devices; Warrants; Contents of warrant; Meaning of "shall specify", "use", "premises on which", "place at which"; Period of warrant; Validity of listening device warrants

Criminal law - sentencing - murder - life sentence - criteria for mandatory sentence under s.431B - common law principles not applicable - discretion to impose lesser sentence - then common law principles applicable.

Claim for privilege - Evidence Act 1995 (NSW) ss 122(6), 126, 135 - T2588

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Defamation - admissibility of evidence - whether proposed evidence could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings.

Indemnity; enforceability of indemnity; "letter of comfort"; activation of obligation under indemnity

DAMAGES - Award of general damages - Whether excessive; DAMAGES - Award of damages for past economic loss - Whether trial judge erred in acceptance of adjusted company figures calculated by respondent’s expert accountant - Whether trial judge erred in allowing income split between husband and wife for tax purposes to be adjusted to reflect the respondents true earning capacity - Whether income generated by respondent was "under his control"

Disqualification of licence; Failure to convert Queensland driver's licence to NSW driver's licence within three months

Insurance-Public Liability insurance; whether non-disclosure; whether relevant matters known to the insured or its broker - in public liability insurance, is the identity of the owner of the building a relevant matter; whether relevant matter known to insurer; whether extract from newspaper was knowledge or a means of knowledge; what is the significance of a survey undertaken by insurer; who has onus of proof of non-disclosure, the insurer or the injured plaintiff suing under s6 of the Law Reform (Miscellaneous Provisions) Act 1946; whether there should be a retrial when judge's interlocutory ruling on onus held to be wrong.

Criminal Law; Sentencing Act s23, Law reform needed

Consumer Claims Tribunals; Denial of natural justice

Building Contract; Head Contract entered into before commencement of Home Building Act 1989; Sub-contract entered into after that commencement; Construction of transitional provisions s 91, cl 39 Sched 4 of the Home Building Act; Whether s 92 of Act applied to sub-contract; Whether sub-contract unenforceable by reason of s 94 of Act; Whether head-contractor estopped from reliance upon s 94.

CRIMINAL LAW - no jurisdiction to allow appeal against sentence and re-sentence, where a lesser sentence not warranted, irrespective of whether there is error in the reasons for sentence below.

CRIMINAL LAW - sentencing - delay - due to applicant - whether ground for leniency; CRIMINAL LAW - sentencing - parity - sentence of co-offender - material differences.

District Court Appeal; Appeal against a finding that the holder of a certificate of registration issued under the Water Traffic Regulations (NSW) in respect of a motor vessel, which sank in consequence of the negligence of her husband, was vicariously liable for the negligence of her husband solely by virtue of the position she held enabling her to hold that certificate; and that she was liable for personal negligence.; The appellant was not claimed to be the owner of the vessel or to have exercised any de facto control over her or him on the day she sank or at any other time, such control being exercised by her husband.; Negligence; Held that the fact that the appellant was the holder of the certificate did not, in the absence of any other circumstances such as ownership or control, make the appellant vicariously liable for her husband's negligence; and that there was no evidence of any personal negligence.

DAMAGES - non-economic loss - whether acceptance of medical evidence paid due regard to other evidence showing histories given to doctors were exaggerated - no point of principle - economic loss - whether evidence justified assessment based on average weekly earnings of a tradesman factored up - permissible course (Dunlany v The Hunters Hill Bus Co Pty Ltd, CA, 12 May 1993, unreported; Graham v Baker (1961) 106 CLR 344; Husher v Husher (1999) 72 ALJR 1414; Todorovic v Waller (1981) 150 CLR 402 referred to) - justified on the evidence.

Family Provision. Claim by a son on a large estate. Lack of provision said to arise from a moral obligation to support his own adult son. Held that such a claim not recognised under the Family Provision Act. Claim dismissed.

Family Provision. Application under Family Provision Act by three children. Estate passes to a church. Small estate. Orders for estate to be divided equally between the plaintiffs. No matter of principle.

Justification & comment - qualified privilege -at common law only - sufficiency of particulars - ambit of interrogatories

TRUSTS and TRUSTEES - creation of trust by informal statements - decision on construction of words used in conversation - it was held that no trust was created.

LANDLORD AND TENANT - form and contents of lease - whether lease between plaintiff and defendants contained a three month termination clause - termination clause on a separate piece of paper inserted between pages of lease - not signed by parties - pure question of fact

Criminal law; Appeal; Criminal Appeal Act ss5AA, 5AB; Law reform

INTENT TO MURDER - victim stabbed with knife, intent of co-offenders formed while under the influence of alcohol, cannabis and LSD; AGGRAVATING FEATURES - premeditation - motive - circumstances leading to the wounding; SENTENCING - whether sentence manifestly excessive - disparity of sentences between co-offenders - mitigating and subjective features - treatment of issue of intoxication

CRIMINAL LAW - sentencing - relevance of lesser maximum penalty under alternative summary proceedings - when and how to be taken into account - whether sufficient allowance made for this consideration.

Criminal Law - sentence - armed robbery - heroin addiction - strong prospects of rehabilitation - young children - Aboriginal - advantage to community of leniency - special circumstances

Extension of time to commence proceedings; Ss 60G and 60I Limitation Act; Voyager/Melbourne collision

On admissibility of evidence relevant to "shunning" - T2368

On admissibility of evidence "relevant harm" - Defamation Act, 1974 ss 46 & 46A - T2408

Application to introduce evidence of conversations with police

Family Law. Application under Property Relationships Act. Consideration of contributions when parties' money used to make a windfall purchase in one party's name. Order for adjustment made.

CRIMINAL LAW - evidence - use of lies as showing a consciousness of guilt - proper directions.

CRIMINAL LAW; jurisdiction of District Court; appeal against order made under s19B of the Crimes Act (Cth); STATUTORY INTERPRETATION; "manner in which dealt with"; Crimes Act s19B

Criminal law - jurisdiction of Court of Criminal Appeal Criminal Appeal Act 1912 (NSW) s5F - exclusion of evidence under Evidence Act s137 may be "interlocutory order or judgment"; Evidence - Evidence Act s137 - complicated evidence not "unfairly prejudicial"

Estoppel; issue estoppel; Anshun estoppel; reasonableness of conduct of party against whom estoppel raised; privies; ‘approbate and reprobate’; public liability insurance policy; breach of condition of policy; contribution or indemnity under s5 of the Law Reform (Miscellaneous Provisions) Act 1946.

Criminal Law; costs; Justices Act s41A; no requirement of connection between reason for discharge and basis of cost order under s41A(2A).

Criminal law and procedure - murder - causation - whether special direction on causation required - sentencing - opinion that prisoner remorseful not admissible

NEGLIGENCE - PERSONAL INJURY - TRIPPING OVER BROKEN PIPE IN FOOTPATH - COUNCIL SUED AS STATUTORY AUTHORITY AND AS OWNER OF PIPE - WHETHER COUNCIL RESPONSIBLE FOR INSTALLATION OF PIPE

Personal Injury; Extent of duty of care; Failure to maintain safe environment; Causation

False Imprisonment of a patron at the Casino in relation to a dispute in respect of an overpayment to him by the Casino; Assessment of Damages; Compensatory damages; Aggravated damages awarded for lack of bona fides in persisting in an unjustifiable defence for a period of three years. Exemplary damages awarded - conscious and contumelious disregard of the plaintiff's rights - objectively conduct by the defendant high-handed deserving of curial disapprobation.

Extension of time to commence proceedings; Ss 60G and 60 I Limitation Act; Voyag/Melbourne collision

Appeals against a costs assessor