Cases and authorities

NEGLIGENCE - passenger injured by projectile breaking window on train - foreseeability - whether injury reasonably foreseeable - whether protective screens should have been fitted - whether evidence supported findings

Criminal law - evidence - identification of accused by police from bank security photos - whether admissible - whether opinion evidence - whether unfair/prejudicial

Family Provision; Separate Question; Whether the testator entered into a prescribed transaction; Whether power of testator to remove a trustee and to appoint a new trustee constituted de facto control by him over the assets of a family trust.

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

Criminal law and procedure - sentencing - Crown appeal against sentence

Criminal law and procedure - appeal against conviction and sentence - aggravated indecent assault (s61E(1A) of Crimes Act) and aggravated sexual intercourse with child by person in authority (s66C(2)) - alleged inconsistencies in Crown case - claim of bias - sentence - no issue of principle

UNCOLLECTED GOODS ACT 1995 - GOODS LEFT ON PREMISES AT TERMINATION OF LEASE - ORDERS MADE UNDER ACT - WHETHER ORDERS VALID

Planning-old consent to use as squash courts-use prohibited under later planning instrument-use abandoned-whether consent still available-whether s109B of Environmental Planning and Assessment Act preserved consent

CRIMINAL LAW; Practice and Procedure; Crown appeal against inadequacy of sentence

Practice and procedure - Cross examination - Application to permit cross-examination by two counsel - Courts discretion whether to permit application to cross-examine by two counsel - Principles governing discretion - Importance of continuity of counsel present during cross-examination to the exercise of the discretion to permit - Importance of the nature of witness sought to be cross-examined - Application to permit cross-examination of witness by two counsel allowed

Practice and procedure - Cross examination - Application to permit cross-examination by two counsel - Courts discretion whether to permit application to cross-examine by two counsel - Principles governing discretion - Importance of continuity of counsel present during cross-examination to the exercise of the discretion to permit - Importance of the nature of witness sought to be cross-examined - Application to permit cross-examination of witness by two counsel allowed

Easements - Creation

Crown Appeal pursuant to S 5D of the Criminal Appeal Act, 1912 - error in sentencing where sentences imposed for serious drug offences are subsumed within sentence currently being served for an unrelated offence - such a sentence amounting to no sentence at all - hence demonstrating excessive leniency R -v- Dodd (1991) 57 A Crim R 349 - sentence not commensurate with the seriousness of the offences; R -v- Rushby (1977) 1 NSWLR 594 - notwithstanding assistance to authorities, necessary to impose sentence not unreasonably disproportionate to stated penalty for offences; R -v- C (1994) 75 A Crim R 309 - seriousness of role of couriers considered - R -v- Le Cerf (1976) 8 ALR 349; Reg -v- Behar (unreported NSWCCA 14.10.98); Reg -v- Herry Budiman (unreported NSWCCA 8.9.98) Reg -v- Trina La Shae Smith (unreported NSWCCA 20.8.98)

Evidence - Privilege - Documents Produced on Subpoena - Whether Evidence Act Applies - Whether Privilege Waived by Assertion of Belief.

Workers Compensation; Service of Claim; whether posting of claim to employer's post office box was sufficient service; Statutory Interpretation - mandatory or directory; whether posting to a post office box was a posting to a place of business; whether compliance or substantial compliance with s92A of Workers Compensation Act 1987

Damages for personal injury; whether sufficient allowance for general damages and for future economic loss; no point of principle.

Sentence - manslaughter - juvenile - use of knife - low level of culpability

Cultivation of cannabis plantation; Supply of cannabis leaf; setting a device capable of inflicting grievous bodily harm; sufficiency of evidence; warning as to reliability of evidence; corrupt police officer implicating other police in corruption; references to Police Royal Commission; meaning of "suffers or permits"; erroneous directions.

ss 66, 67 and 92A Workers Compensation Act - application to set aside benefits.

Motion seeking variation of earlier court orders to include issue of contributory negligence as well as damages - Contributory negligence not previously raised in appeal proceedings - Supreme Court Rules Part 40 r9, Part 51 r22 - Whether the respondent ought to be placed in the position in which she would have been if the trial judge had found negligence against her.

Stated case - no error on verdict; Stated case concerning costs; No error on indemnity costs - wrong application of scale

Crown appeal; S 5F of Court of Criminal Appeal Act; interlocutory orders permanently staying proceedings on an indictment; allegations relating to co-accused; miscarriage of discretion.

Limitation period; appeal against grant of extension; inadequacy of reasons and error of principle by primary judge; application for extension reconsidered by Court of Appeal; consideration of legitimate exercise of discretion to extend;sections 57B and 58 of Limitation Act 1969.

Credit Act - effect of contraventions - Commercial Tribunal - role and function when relieving from statutory penalty for contraventions - ambit of matters for consideration - nature of appeal - limited to identifiable errors of law material to conclusion - matters relevant to penalty - necessity to fix penalty for each kind of contravention.

De facto relationship; Adjustment of interests in property; Respective contributions of each party; Plaintiff was earning an income throughout entirety of relationship, whilst for first five years defendant was earning an income for only about half of each year; Plaintiff had benefit of free accommodation whilst defendant was absent overseas.

COURTS AND JUDGES; Children's Court; Power of court to make costs order as sanction for breach of directions; Whether incident of implied power

Crown appeal; inadequacy of sentence; act with intent to pervert the course of justice; give false evidence; bribery; police corruption.

Sentencing; offences against four young boys; nine offences on indictment and eight scheduled offences; concurrent sentences resulted in periodic detention for eighteen months manifestly inadequate.

FAMILY PROVISION ACT 1982 - s 9(2)-TEST FOR "INADEQUATE PROVISION" FOR "PROPER MAINTENANCE, EDUCATION AND ADVANCEMENT IN LIFE"-CLAIM BY STEP-SON-WHETHER MASTER APPLIED CORRECT TEST-WHETHER NEED ESTABLISHED

CORPORATIONS - co-operatives - scheme of arrangement - misleading and deceptive conduct - disclosure of takeover proposal with commentary - commentary held to be misleading - voting by postal ballot - procedure for replacement of postal votes held to be invalid; TRADE PRACTICES - misleading and deceptive conduct - spheres of application of Trade Practices Act, Fair Trading Act, Australian Securities and Investments Commission Act and Corporations Law

CRIMINAL LAW - application to withdraw pleas of guilty - ground of application, failure of legal representatives to advise of available defences - principles applicable; LEGAL PROFESSION - direct access of client to barrister - observations as to undesirability of this practice

Multiple murders - life sentence - worst case category - co-operation with authorities - discount - not available as sentence would become unduly disproportionate.

APPEAL - Sum at issue less than $100,000 - Dismissed as incompetent - Appellant claiming negligence of his solicitor in earlier proceedings - No question of principle

Torts; negligence; motor vehicle accident; injury to pedestrian child; reasonable response to risk attendant upon driving; opportunity to avoid collision; consideration of Stocks v Baldwin 24 MVR 416; by majority: not a case for appellate intervention.

TRUSTS - judicial advice sought pursuant to s63 of the Trustee Act 1925 - whether funds held on trust for children should be used to bring proceedings against their mother for the benefit she took from deceased's estate - reasonable chance of establishing that mother was involved in unlawful killing of deceased - children living with mother - insufficient evidence as to benefit flowing to children from such proceedings.

Costs - indemnity basis - offer of compromise by plaintiff - judgment for greater amount - whether exceptional case - Supreme Court Rules Part 52A, rule (22)4.

ANIMALS - Cruelty to animals - Diseased dog removed from premises in absence of owner - Dog euthanased pursuant to Prevention of Cruelty to Animals Act 1979 s26A - Elements of offence under s6(1) of this Act (aggravated cruelty) - Elements of offence under s27A (failure to provide name and address); POLICE POWERS - Arrest - Whether arrest appropriate in circumstances where service of a summons would have sufficed; PROCEDURE - Refusal of judge to state a case - Whether denial of procedural fairness in judge’s refusal to entertain application to state a case; EVIDENCE - Rule in Browne v Dunn (1893) 6 R 67 - Whether basis of rejecting relevant evidence

WORKERS’ COMPENSATION - Worker collapsed at work - Claim for compensation under Workers Compensation Act 1987 s66, s67 - Award of interest on compensation payments pursuant to s19A of Compensation Court Act 1984 - Impact of WorkCover Legislation Amendment Act 1995 - Whether interest had been claimed

TORT - Personal injuries - Motor vehicle accident - Contributory negligence - Whether plaintiff in the circumstances acted reasonably regarding own safety - Unexpected events requiring urgent action - Plaintiff working below grader situated on banking - Reasonable to assume grader would be maintained safely in position; DAMAGES - Economic loss - Quantification - Cost of providing full time foreman appropriate measure of loss of earning capacity of plaintiff - Loss of opportunity of developing farm property - Son and mother partnership at will - Whether loss of future earning capacity calculated by reference to plaintiff’s share of partnership profits; DAMAGES - Interest on - Successful claim under Motor Accidents Act 1988 - Purpose and operation of s73 - Whether offer of settlement unreasonable - Whether at time offer made defendant not able to make reasonable assessment of plaintiff’s full entitlement to damages; JUDGMENTS & ORDERS - Courts and Judges - Statement of reasons for decision - Scope of - Judge’s duty to state reasons - Inferences to be drawn from absence of reasons - Whether relevant injustice or prejudice requiring decision be set aside

NEGLIGENCE - Medical practitioner - Issue as to symptoms disclosed - Credibility finding favouring doctor challenged - Documentary evidence ambiguous

CORPORATIONS - orders sought pursuant to s1322 of the Corporations Law for extension of time for calling of members meeting - need for preparation of extra material accompanying notice - increased costs of postage - confusion of members - extension not granted

Application for leave to file a cross-claim for contribution pursuant to s.5 of the Law Reform (Miscellaneous Provisions) Act 1946 against directors and solicitors (being the same people) of the plaintiff company. Application opposed on the ground that defendant had pleaded contributory negligence against the plaintiff and the defendant could not in those circumstances claim contribution as this would amount to "double dipping": Daniels & Ors v Anderson & Ors (1995) 37 NSWLR 438 relied on. Held that the cross-claim not futile, the application of the relevant principles depending on the findings of fact.; Also held that a claim for contribution could be made in respect of an action for damages under the Trade Practices Act 1974. Conflicting authorities noted: Australia and New Zealand Banking Group Limited v Turnbull and Partners Limited (1991) 106 ALR 115; Bailkower v Acohs Pty Limited & Ors (1995) 154 ALR 534; South Cross Airlines Holdings Limited v Arthur Andersen & Co & Ors (1998) 280 FCA (27 March 1998) and Wickstead & Ors v Browne (1992) 30 NSWLR 1 noted: matter to be determined at the trial.; Held application was not futile and should be granted.