Cases and authorities

Evidence - Expert evidence - requirements of admissibility - Necessity for expert evidence to be within relevant field of expertise - Necessity for expert witness to state with precision the assumptions upon which their evidence rests - Necessity for expert evidence to be in a form comprehensible to the Court. - Discretion of Court to reject evidence - Discretion to reject evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice - Unfair prejudice consisting of forensically awkward position.

General Principles Relating to the Construction of a Commercial Contract:; Cehane NV v Bremer Handekgesellschaft mbH [1976] QB 44 at 71, Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99 at 109, Ankar Pty Limited v National Westminster Finance (Australia) Limited (1987) 162 CLR 594 at 556-557 and Hide & Skin Trading Pty Limited v Oceanic Traders Limited (1990) 20 NSWLR 310 applied.; Whether a breach of contract is curable and meaning to be attributed to that word:; Batson v De Carvalho & Ors (1948) 48 SR 417, Tricontinental Corporation Limited v HDFI Limited (1990) 21 NSWLR 689, F.L. Schuler AG v Wickman Machine Tool Sales Limited [1974] AC 235 applied.; Dr J.W. Carter "Termination Clauses" Vol 3 Journal of Contract Law (1990-1991) 90 at 95 referred to.; Whether a term or condition of a contract:; Tramways Advertising Pty Limited v Luna Park (NSW) Limited (1938) 38 SR 632, DTR Nominees Pty Limited v Mona Homes Pty Limited & Anor (1978) 138 CLR 423, Bentsen v Taylor & Sons & Co (No 2) [1893] 2 QB 274, Amann Aviation Pty Limited v Commonwealth of Australia (1990) 22 FCR 527, Hong Kong Fir Shipping Co Limited v Kawasaki Kisen Kaisha Limited [1962] 2 QB 26, and Shevill v Builder's Licensing Board (1981) 149 CLR 627 applied.; Whether a fiduciary duty created:; United Dominions Corporation Limited v Brian Pty Limited (1987) 157 CLR 1 at 12, Australian Breeders Co-operative Society Limited v Jones (1997) 26 ACSR 26, Marr v Arabco Traders Limited [1987] 1 NZBLC 102,732 at 102,745, Bialla v Mallina (1993) 11 ACSR 785 at 831, Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 72-73, Bristol and West Building Society v Mathews [1998] 1 Ch 1 at 17, Biala Pty Limited v Mallina Holdings Limited & Ors (1993) ACSC 11.785, Dickie v Torbay Pharmacy (1986) Limited [1995] 3 NZLR 429 at 439-440 and Brunninghausen v Glavanics (1999) NSWCA 199 applied.; Consequences of Breach of Fiduciary Duty and Causation:; Beach Petroleum NL v Abbott Tout Russell Kennedy (1997) 26 ACSR 114 noted.; Greater Pacific Investments Pty Limited (In Liquidation) v Australian National Industries Limited & Anor (1996) 39 NSWLR 143 at 154, O'Halloran v R.T. Thomas & Family Pty Limited (1998) 45 NSWLR 262, Environment Agency (formerly National River Authority) v Empress Car Co (Abertillery) Limited [1998] 2 WLR 350, Target Holidays Limited v Redferns [1996] 1 AC 421, Cansor Enterprises Limited v Broughton & Co (1991) 85 DLR (4th) 129, Maguire & Anor v Makaronis & Anor (1997) 188 CLR 449, and London Loan and Savings Co v Brickenden (1934) 34 DLR 465 applied.; Term of Contract for Co-operation:; Mackay v Dick (1881) 6 App Cas 251 at 263, Butt v McDonald (1896) 7 QLJ 68 at 70-71, Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Limited (1979) 144 CLR 596 and News Corporation Limited v Australian Rugby League (1996) 139 ALR 193 noted and applied.; Terms of Contract for Reasonableness and Good Faith:; Renard Constructions (ME) Pty Limited v Minister for Public Works (1992) 26 NSWLR 234, Hughes Bros Pty Limited v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor (1993) 31 NSWLR 91, Alcatel Australia Limited v Scarcella & Ors (1998) 44 NSWLR 349 and Aiton Australia Pty Limited v Transfield Pty Limited (1999) NSWSC 996 noted and followed.; Dispensation with performance of contract:; Peter Turnbull & Co Pty Limited v Mundus Trading Company (Australasia) Pty Ltd (1954) 90 CLR 235, Mahoney v Lindsay & Ors (1980) 55 ALJR 118 and Foran & Anor v Wight & Anor (1989) 168 CLR 385 followed.; Application of Rules in Browne v Dunn:; Browne v Dunn (1894) 6 R 67 and Allied Pastoral Holdings Pty Limited v Commissioner of Taxation [1983] 1 NSWLR 1 applied.; Measure of Damages; Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638; Tszyu v Fightvision Pty Limited & Anor (1999) NSWCA 323 (13 September 1999), Norris v Blake (No 2) (1997) 41 NSWLR 49 and Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332 at 355 applied.; Inference where a witness not called:; Jones v Dunkel (1959) 101 CLR 298, Favre v Arenales & Anor (1992) 27 NSWLR 437, Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 and Payne v Parker [1976] 1 NSWLR 191 noted and applied.; Mistake and Breach of Fiduciary Duty: ; Taylor & Ors v Johnson (1983) 151 CLR 422, Tutt & Anor v Doyle & Anor (1997) 42 NSWLR 10, Brickenden v London Loan & Saving Co [1934] 3 DLR 465 at 469 and Commonwealth Bank of Australia v Smith (1991) 102 ALR 453 applied.; Accessory Liability:; Royal Brunei AIrlines Sdn BHd v Tan [1995] 2 AC 378 applied.; Exemplary Damages Not Awarded for Breach of Contract:; McGregor on Damages (16th Edition) (1997) para 442, Halsbury's Laws of Australia (Volume 6) para 110-11060, Butler v Fairclough & Anor (1917) 23 CLR 78, Gray v Motor Accident Commission (1999) 73 ALJR 45, Flamingo Park Pty Limited v Dolly Dolly Creation Pty Limited & Ors (1996) 65 ALR 500 at 526 and Wehbe & Anor v Rolando Pty Limited & Ors (1990) NSWSC 384 applied.

Evidence - Expert evidence - requirements of admissibility - Necessity for expert evidence to be within relevant field of expertise - Necessity for expert witness to state with precision the assumptions upon which their evidence rests - Necessity for expert evidence to be in a form comprehensible to the Court. - Discretion of Court to reject evidence - Discretion to reject evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice - Unfair prejudice consisting of forensically awkward position.

Defamation; Section 7A Defamation Act 1974; whether plaintiff identified; whether jury question

Construction of a one-off Agreement.; Australian Broadcasting Commission v Australian Performing Right Association Limited (1973) 129 CLR 99 at p.109 applied.

Transfer to District Court

Claim for damages - closure of business

CRIMINAL LAW & PROCEDURE - sentencing - manslaughter by unlawful and dangerous act - special circumstances (Sentencing Act 1987 (NSW) s 5(2))

Criminal Law - Murder - Diminished Responsibility - Trial

Defendant's Notice of Motion for Further Discovery

Contract for supply of goods - conflict of laws - proper law of contract - part 10.r.2 of Supreme Court Rules - Trade Practices Act, ss 67.

Interlocutory

Common law; claim that Council acted ultra vires in development consent.

Family Provision; Claim by adult daughter against estate of her mother; Estate left equally among plaintiff and defendants; Benefits given to each party by their deceased father; Expression of wishes (entitled "Direction") made by father before his death; Financial and material circumstances of plaintiff; Residence of plaintiff is valuable, but in need of repair; Plaintiff not left without adequate provision for her proper maintenance and advancement in life; Application not made within time; Plaintiff was before the expiration of the limitation period aware of the Family Provision Act and of the limitation period for making a claim thereunder; Conduct of defendants as an asserted cause of the failure of the plaintiff to institute proceedings within time; Competing claims of the defendants.

Appeal against decision of costs assessor; Extension of time

Self-incrimination - privilege as regards answers, documents etc. given in evidence before Independent Commission Against Corruption and Royal Commission (Police Service) - use which Parole Board may make of such evidence when tendered on behalf of applicant for release on parole - waiver of privilege by tender of transcript of evidence - declaration that Parole Board not entitled to view adversely to applicant for release on parole such evidence tendered by him refused.

DISTRICT COURT - proceedings dismissed then re-instated - powers under District Court Rules to re-instate proceedings - Pt 18 r 3 - concurrent leave application

dismissal of proceedings; whether dismissal granted on motion of parties or of the court; order made outside jurisdiction; court cannot ratify a nullity

workplace injury-; alleged breach of duty of care ; lack of spaciosness in workplace ; damages

Extension of time to appeal; Appeal decision of costs assessor; Leave to appeal; functus officio

Family Provision. Application by niece in respect of estate passing to the Crown as Bona Vacantia. Consideration of factors warranting. Inappropriate to have regard to possible application under s 61B(8) of the Wills Probate and Administration Act. Order made for a legacy.

Family Provision. Application by a son who has autism and a severe intellectual handicap in respect of an estate of $859,000. Estate left to widow who had lived with the deceased for 7 years. A balancing of the relevant considerations leads to a legacy for the plaintiff of $525,000.

Application for leave to appeal against refusal to permit withdrawal of guilty plea - plea deliberately entered on competent advice - integrity of plea not bona fide in question - no real prospect of defence - no error in exercise of discretion - application for leave to appeal against sentence - no error.

CRIMINAL PRACTICE & PROCEDURE; Application for leave to appeal against severity of sentence; discount for assistance; desirability of Judge including arithmetic where discount for assistance

CRIMINAL LAW; Practice & Procedure; Appeal against severity of sentence

Conviction for sexual offences against 3 complainants (2 complainants under 16 yrs; 1 complainant just 16 years). Charges tried jointly - evidence admitted under S 98 of the Evidence Act 1995. The coincidence rule - permissible use of evidence of "related events" - use of stupefying drugs and other similar facts. No need for further direction as to impermissible use of evidence where S 97 considerations do not arise in the trial. Sentence - additional term of less than S 5(2) statutory ratio - within judge's discretion for 64 year old offender.

Negligence - personal injury - post traumatic stress disorder - causation - principles - second tort would have caused injury but damage greater because of aggravation of earlier tortious injury - avoidance of double compensation

WORKERS COMPENSATION - effect of Pt 14 cl 1 of Workers Compensation Act 1987 on s63 of Workers Compensation Act 1926 - whether claim for compensation for injury the subject of earlier settlement is barred; WORKERS COMPENSATION - whether consent award gave rise to issue estoppel or res judicata where award was for lump sum and where new claim was for weekly compensation

COSTS - Costs on the indemnity basis - Costs orders against legal practitioners - Orders for payment of costs on the indemnity basis made against applicant for relief and also her solicitor - Discussion of principles upon which costs on the indemnity basis ordered - Discussion of principles on which costs orders are made against legal practitioners - Counsel for respondent claimed to have appeared pro bono - Whether appropriate for this matter to be dealt with by Court or costs assessor - Analysis of complex factual situation.

ADMINISTRATIVE LAW - judicial review - certiorari - error of law on the face of the record - appeal to District Court from Pharmacy Board - Judge applied wrong test - summons dismissed because rehearing would be futile - Court asked to reconsider decision - whether management agreements gave pecuniary interest in pharmacy businesses to non-pharmacist

Local Government; negligence; immunity for non-feasance; whether stormwater drain part of the highway; barricade erected by a resident; whether removal of barricade created a danger; whether breach of Council's duty of care; whether Council had duty to inspect

Legal practitioners - professional misconduct - offence of dishonesty - income tax

APPEAL - application to set aside earlier orders of the Court of Appeal - appeal by way of rehearing - alternative case presented - whether open to Court of Appeal to entertain a fresh point having regard to the way the case was conducted at trial - whether the capacity to raise an alternative point should be precluded where raising the issue below would have meant evidence could have been given which would have prevented the point from succeeding - scope of duty of appellate court to address new questions of law arising upon facts either admitted or proved beyond controversy

Negligence - personal injuries - employer's duties - hire of goods - reasonably fit for purpose

Criminal Law; Murder; Stay of Proceedings

Criminal Law And Procedure - Murder - Circumstance - Motive - Relationship Evidence Concerning Victim And Appellant - Content Of Charge To Jury - New Evidence - Psychiatrist's Opinion Of Fear Of Fire - Victim Killed By Incineration - Letter Claimed To Be Written By Deceased - Deliberately Withheld On Advice Of Senior Counsel - Content Of Letter Does Not Indicate Miscarriage In Any Event

Dust Diseases Tribunal Act; Right of appeal

Deed of arrangement; Resolution of creditors failure to give notice of meeting; Termination of deed; Unexplained delay; Lack of financial benefit

LAND AND ENVIRONMENT COURT - appeal to judge from commissioner (refusing development consent for subdivision of land) - application for leave to appeal and appeal heard concurrently, construction of clause contained in Local Environmental Plan, power of Land and Environment Court to utilise s 39(2) of the Land and Environment Court Act 1979 to give Council's agreement under the Local Environmental Plan

Employment contract- whether employee or volunteer - Workers Compensation Act 1926

Practice - Discovery - Further discovery - Discovery not to be used as indirect interrogation - Matters in issue - Relevance - Whether documents generally relating to the significance to the defendants of E-commerce for the provision of financial services, go to facts in issue - Evidence - Ambit of evidence permissible on claim to expand categories of discoverable documents.

Separation, property order by Family Court, short marriage, intention of parties to finally end their marital financial commitment

CRIMINAL LAW; Verdict unreasonable or not supported by evidence; delay between alleged offence and proceedings

Sentencing; gravity of using an offensive weapon (blood filled syringe) to prevent detention; sentence not excessive; sentence on assault charge exceeding maximum

Sentencing; aggravated indecent assault on young child; sentences not excessive